text:
    Sloan v. Village Creek Drainage District.
    Opinion delivered November 1, 1926.
    1. Drains — review op assessments on appeal. — On appeal from judgments of the circuit court assessing the benefits from a drainage improvement, review of the testimony on appeal to the Supreme Court is limited .to the question of- the legal sufficiency of the evidence, and not to the weight thereof.
    2. Drains — assessment—sufficiency of evidence. — Assessment of the benefits of improvements resulting from1' a lowering of the bed of a creek to prevent overflow held sustained by evidence.
    3. Drains — assessment of benefits. — The assessment of benefits for drainage improvements is a matter of estimate and forecast, and not one of absolute certainty.
    . Appeal from Lawrence Circuit Court, Western District; Dene S. Coleman, Judge;
    affirmed.

      Eugene Sloan, Cunningham é Cwtmmgham, H. L. Ponder, for appellant; O. C. Blackford and Eli Thorn-burgh, pro se.

      W. M. Ponder, W. A. Jackson, W. P. Smith and G. M. Gibson, for appellee.
   McCulloch, C. J.

The improvement district involved in this controversy was created by special statute enacted by the General Assembly at the extraordinary session of 1920, which authorized the construction of a drainage system in the area described in Lawrence County, and the imposition of taxes upon benefits in order to raise funds to pay for the improvement. The district embraces nearly 70,000 acres of land, and the authorized plan for the improvement contemplates the construction of u main ditch, or canal, from twenty to seventy-five feet in width, through the channel of Village Creek, for a distance of about twenty-two miles. The plan also contemplates the construction of six lateral ditches, from twelve to twenty feet in width, through certain creeks or bayous which empty into Village Creek. One of the laterals is called Little Village, another Cóon Creek, another Turkey Creek, ' another Lake Pond, another Lindsay Creek, and the other' the White' Oak láteral. The statute provides for an assessment of benefits "to be 'made by the commissioners of the district, and, when the list is filed, notice is given and an opportunity for a hearing in the county court. The statute' gives aggrieved owners of property in the district'the right of appeal to the circuit court from the' decision of the county court. ' "

' The commissioners completed their assessment of benefits and filed the list with the county court, and notice was given and a hearing was had in that court. There are about eight thousand calls, or items, in the assessment list, and there were numerous protests. . The maximum assessment on lands found to derive the greatest benefit was twenty-four dollars per acre, and the minimum, one dollar and fifty cents per acre. The lands bearing the lowest assessment were those which did not overflow from the creek, but, according to the testimony adduced in the case, received general benefit on account of the locality being drained.

The.county court approved the assessments made by the commissioners,: with a few exceptions, but forty-eight owners.of land appealed to the circuit court, and. there was a trial anew in that court. In the .trial in the. circuit court, the assessments of benefits were again approved, with one or two exceptions. Twenty-four of the-profesting landowners appealed to this court.

It is contended by counsel for appellee that some of the appeals should be dismissed — two of them for the reason that the transcripts were not lodged in time, and numerous others for the reason that the rules of the court have not been complied with in filing abstracts. We deem it unnecessary to pass upon the question raised on the motion to dismiss the appeal, for the reason that we have reached the conclusion that, even if ■ all the appeals had been perfected and duly prosecuted, the judgment in each instance must be affirmed.

' Each of the protests challenges the correctness' of individual, assessments; most of. the protestants, however, being the owners of more than One' tract, some of them numerous tracts. The questions as to the correctness of the: assessment on. separate tracts 'were heard consecutively, but each assessment was considered separately for' the purpose 'of determining whether or not the assessment was correct. It was conceded in'the trial below'that all of the lands, with possibly twO or three exceptions, were benefited to some extent and should be taxed, but the assault on the correctness of the assessments relates to- the amount of the assessments. The decision of the case in this court turns upon the character of the review which we give, and that question has been settled by prior decisions of this court. It will be remembered-that the-statute creating the district authorizes an appeal to the circuit court, and the case is heard there de novo, - "We have often decided that the-rule that limits our review of- the testimony in trials at- law to the question of the legal sufficiency of the evidence and not to the weight of the- evidence applies to cases of -this- kind, involving the correctness of assessments of benefits' in improvement districts. St. L. & S. F. R. Co. v. Fort Smith & Van Buren Bridge District, 113 Ark. 492, 168 S. W. 1066; Oates v. Cypress Creek Drainage District, 135 Ark. 149, 205 S. W. 293; Rysinger v. Road Imp. Dist. 143 Ark. 341, 220 S. W. 455; Gibson v. Lawrence County, 155 Ark. 319, 244 S. W. 341; Tucker Lake Reclamation District v. Winfrey, 160 Ark. 205, 254 S. W. 460.

It would serve no useful purpose and would unduly extend this opinion to discuss in detail the testimony in regard to each of the separate tracts of land-, involved in these protests. In each instance there was testimony of .''considerable weight introduced by the appellants in regard to their several tracts of -land, tending to show that the lands would be benefited, some of them not at all, and others to a considerably less extent than indicated in the assessment lists filed by the commissioners. If we were at liberty to review’ the testimony for the purpose of determining its weight,, there are some instances ■in which- the preponderance would appear to be against the finding of the trial court. But we are of the opinion 'that in .each instance there is legally sufficient evidence to support the finding. Appellees introduce,d, as witnesses, some of the commissioners who made the assessments, and the engineer of the district, and also owners of large amounts of property in the district, and their "testimony tended to show that there was more nr less benefit'to all "of the lands in the district. It- appears from the testimony that Village Creek is a wide,’ sluggish- stream, which overflows its low banks, and] .during the dry time in. the summer, does not flow a stream ¡of water,; but is reduced to pools. - The plan is to- lower the bed of the channel of this creek so as to, lower,the water level, and not only, carry off the water from the lands which overflow, but to afford what .the witnesses termed underground drainage, and that in this way lands which do n°t overflow will receive great, benefit. It appears that in' many instances tracts of. land' <?f ..different, owners are partly'subject to overflow, but are mostly above overflow. The land lies in ridges, and' is interspersed with low swales, and for this reason some of the owner's claim that they get very slight benefit',’ whilst the testimony' adduced by the" commissioners tends to show that'all'of the lands, even the ridges not subject to overflow, will be benefited from Underground drainage.

’ As we have often said, the mattér of assessment-of benefits is largely one of opinion, about which írién differ. ■It is a matter’ of! estimate; and of forecast, áhd not one bf absolute’ certainty. We are therefore unable’to Say 'that there is an "entire absence of testimony to support • the finding of the trial court upon either of the traetb of land involved'in the controversy. • ‘ 'r :

’ The ' judgment of the circuit eburt is: therefore affirmed.' ■ ‘ '


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    Mellon v. Stein.
    Opinion delivered November 1, 1926.
    1. Carriers — negligence in transporting goods — jury question.— In an action for goods lost in transportation, evidence' held to make it a jury question whether the carrier was negligent in causing the goods to be transported to destination marked on package, instead of to destination marked on the bill of lading, and whether the shipper was damaged, and hence it was error to direct a verdict for the shipper.
    2. Carriers — negligence in making shipment — jury question.— In an action for loss of goods shipped, testimony by the plaintiff’s shipping clerk that he was not sure that he had not misdirected the' package, held to make it a jury question whether he had not misdirected the package.
    Appeal from Sebastian Circuit Court, Fort Smith District; JoJmE. Tatum, Judge;
    reversed.

      Thos. B. Pryor, W. L. Curtis and Vincent. M. Miles, for appellant.
    I. J. Friedman, for appellee.
   Wood, J.

Benno Stein, an individual, engaged in the wholesale dry goods business in the city of Fort Smith, Arkansas, under the trade name of the- Stein Wholesale Dry Goods Company, will hereafter, for convenience, be called the appellee. Andrew W. Mellon, the successor of James C. Davis, agent of the-Director General of Railroads under the Transportation Act of 1920, will hereafter, for convenience, be called the appellant. In January, 1920, the appellant was operating the Missouri Pacific Railroad. On the 24th of January, 1920, the appellee delivered to the appellant, at its freight depot in the city of Fort Smith, a box of dry goods of the value at that date of $620.48, marked “B. E.'Loving, Loving, Oklahoma.” The appellee intended to ship the goods to B. E. Loving at Allen, Oklahoma, and he obtained a bill of lading for said shipment showing the consignee to be B. E. Loving and the destination Allen, Oklahoma. The appellee sent the invoice of the merchandise to B. E. Loving at Allen, Oklahoma. Loving, Oklahoma, is an inland town, and the nearest shipping point is Bates, Arkansas, a station on the Kansas City Southern Railway. Instead of being shipped to Allen, Oklahoma, as called for by the bill of lading, the merchandise was shipped to Bates, Arkansas. ¡Within a reasonable time after receiving the invoice, Loving advised the appélleé that the goods had not arrived at Allen, Oklahoma, and requested that it be delivered as soon as possible. The appellee notified the freight agent of the Director General that the shipment had not arrived at Allen, and asked that a tracer be sent. The goods were not delivered to the appellee sixty days after shipment. The Missouri Pacific Railway was returned to its owners by the Director General on March 1, 1920. The appellee did not know, in fact, that the Missouri Pacific Railway was being operated by a Director General of Railroads at the time of the shipment, and did not, in fact, know that the railroad had been returned to its owners by the Director General on March 1, 1920. On March 24, 1920, appellee filed his claim with the claim agent of the Missouri Pacific Railway for the loss of the goods. Some time in April, 1920, aq agent of the Kansas City Southern Railway Company notified the appellee that he had found a box of goods at Bates, Arkansas, addressed to B. E'. Loving, Loving, Oklahoma. Appellee was advised that the box was opened, and the marks and brands on the goods indicated that the appellee was the shipper. An inspector of the Kansas City Southern Railway Company notified the appellee that a box of merchandise was at Bates, Arkansas, marked B. E. Loving, Loving, Oklahoma, and asked the appellee what he intended to do with the box. Appellee replied that he had no further interest in the box of dry goods; that he had filed his claim against the Missouri Pacific Railway Company for the loss of the shipment, and would have nothing more to do with it. The Missouri Pacific Railway Company was notified on April 7, 1920, that the box of merchandise was at Bates, Arkansas. The box remained there until the latter part of October, 1920, when it was returned to the appellee by the Kansas City Southe'rn Railway with an expense and storage charge of $200. The appellee refused to receive the box, and it was later sold by the Kansas City Southern Railway Company for expenses and storage charges.

• > ,An action was instituted by the appellee, first against the Missouri.Pacific Railway Company on May 19, 1921, to:recover damages for the loss of the goods. On motion of the defendant, the Director General of Railroads under the Transportation Act of 1920 was made a party defendant. The Missouri Pacific Railway Company denied liability. The Director General admitted receiving the box of goods for shipment, but denied that it was lost through any negligence on his part; A trial was bad upon the above issues and facts, which resulted in a verdict and judgment against the Missouri Pacific Railway Company. That company appealed to. this court, and we held that the Missouri Pacific Railway Company was not liable, and the cause was remanded for. a new trial. See Missouri Pacific Rd. Co. v. Stein, 161 Ark. 405, 265 S. W. 373. In the trial of the present cause against the appellant, substantially the same facts as above set forth were developed. In addition, there was introduced in evidence a portion of a circular issued by the Interstate Commerce Commission, as follows :

. “The responsibility of the railroad for the safe transportation of property begins when the goods are accepted for shipment.. The evidence of the acceptance is, the signed bill of lading, shipping receipt or acknowledgment to a connecting carrier. These receipts, in whatever form they are given, should be for the actual amount and condition of the shipment; therefore a careful check of all freight is expected, whether carloads or less than carloads, so that the property, the receipts, the way-bill and the loading may be alike.”
“Rule 6. Sec. 1. Freight, when delivered to carriers to be transported at less .than. carload or any quantity ratings, must be marked- in accordance with the following requirements and specifications, except as provided in § 2 (b) of this rule, or otherwise provided in specific items in this classification or in the Interstate Commerce Commission’s regulations for the transportation of dangerous articles other than explosives hy freight (seepage 444). If these requirements and specifications are not complied with, freight will not be accepted for transportation.
“Section 2. (a) Each package, bundle or loose piece of freight must be plainly, legibly and durably marked by brush, stencil, marking crayon (not- chalk), rübber type, metal type, pasted label (-see note 1), tag (see note 2), or other method which provides marks equally plain, legible and durable,- showing the name of only one consignee, and of only one station, town, or city and State to which destined.
‘ ‘ (c) The marks on bundles, packages or pieces must be compared with the shipping order or' 'bill of lading, and corrections, if necessary, made by the shipper or his representative before receipt is signed.”

The above rules were in force from January 1, 1920, to January 31, 1920, inclusive.

. A shipping clerk of the appellee testified; among other things,'that he marked the box of merchandise in controversy and made out the bill- of lading from the same ticket, and that the box was marked just like the bill of lading and was checked again from the bill of lading before it left the appellee’s house; that he addressed the box, not by stencil, but with free-hand print. He could not say positively that he did not make 'the destination marked on the box and on the bill of lading the same.

Appellee, among other things, testified that' he refused to receive the box when it was tendered to him in October or November, 1920, because the goods were out of season and the market had dropped fully fifty or sixty per cent. The market value of the goods, as shown by the invoice, at the time the same were shipped to Loving, was $620.48. On cross-examination, the witness testified the market was strong in April and May, 1920. He would not be a bit surprised, but what it was higher in March and April, 1920. The effect of his testimony on cross-examination was that there was no falling-off of the market until about the first of August, 1920.

There was. testimony on behalf of the appellee to the effect that it was the duty of the station agent and clerk of the Director General of Railroads to check the mark on the box with the bill of lading, and, if there was a different mark, he was supposed to maké the correction before signing the bill of lading. It was in evidence by the defendant that the only marking on the box was “B.. E. Loving, Loving, Oklahoma.”

Upon the above facts, the court directed the jury to return a verdict in favor of the appellee. The jury returned a verdict in favor of the appellee in the sum of $620.48, with interest at six per cent, per annum from January 24, 1920. The appellant duly excepted to the ruling of the court in directing the verdict, and requested the court to instruct the jury to return a verdict in its favor, and also presented other prayers for instructions submitting to the jury the .issue as to whether or. not the appellant was liable. We deem it unnecessary to set out these requested prayers for instructions by the appellant. Judgment was entered in accordance with the verdict, from which is this appeal.

The court erred in directing a verdict in favor of the appellee. It was an issue of fact for the jury, under the evidence, to determine whether or not the appellant was liable. This issue. should have been submitted to the jury under correct instructions. There were two issues of fact for the jury, under the evidence: First, whether or not the appellant was negligent in causing the box of goods in controversy to be shipped to Bates, Arkansas, instead of Allen, Oklahoma; and, second, if appellant was negligent in this respect, it was still a question for the .jury, under the evidence, as. to whether the appellee was damaged, and, if so, the amount of such damage. The testimony of appellee’s own shipping clerk who made out the bill of lading and marked the box for shipment was to the effect that he made the bill of lading from the same ticket, and that the box was marked just like the bill of lading, and was checked again from the bill of lading before it left the house of the appellee. Bnt he concludes his testimony with the statement that he could not say positively that he didn’t make the destination on the box the same as the name of the consignee. This made it an issue for the jury as to whether appellee’s agent who handled the shipment for appellee made a mistake in marking the destination on the box “Loving,” Oklahoma, when it should have been Allen, Oklahoma.

For the error of the court in taking these issues of fact away from the jury and directing the jury to return a verdict in favor of the appellee the judgment is reversed, and the cause is remanded for a new trial.


text:
    Feldman v. Feldman.
    Opinion delivered November 1, 1926.
    1. Pleading — TITLE of pleading. — A statement of facts constituting a cause of action is sufficient to give the court jurisdiction, whether entitled a complaint or an affidavit.
    2. Replevin — sufficiency of complaint. — A complaint containing a sufficient description and value of the goods, alleging that plain- ■ tiff is entitled to possession and that defendant is in unlawful possession, is sufficient to give the court jurisdiction over the subject-matter, under Crawford & Moses’ Dig., § 8640.
    3. Replevin — direction of verdict. — Where the undisputed testimony established that a highway unloading equipment, built as part of a barn and attached thereto by bolts, was a fixture which passed by deed to plaintiff, it having been removed by defendant, it was not error to direct the jury to ascertain the value of the equipment and return a verdict for plaintiff for possession of the property or its value.
    4. Justices of the peace — jurisdiction.—A fixture detached from a barn by defendant became personal property in his possession, and a suit to recover same was within the jurisdiction of a justice of the peace.

      Appeal from Clay Circuit Court, Eastern District; W. W. Bandy, Judge;
    affirmed.

      Ward- é Ward, for appellant.

      Holifield & Irvin, for appellee. ' .
   Wood, J.

This action was instituted hy the plaintiff, Bessie Feldman, against the defendant, David Feldman,-in the justice court, as follows: “The plaintiff, Bessie Feldman, states that she is entitled to the possession of- the following property, to-wit:

■ 48 feet of hay-track used in barn of the ■
value of 25 cts. per foot............:..........................$12.00
Twenty-five hangers support track................... -3.00
-.Hay harpoon of the value of...................................: 5.00
. Two pulleys of the value of $1.25- each......... -2.50
. 150 feet of rope, one-inch.........-...................................... 8.00
Hay carriage.............................................................................. 10.00
One stop...................................................................................-..... 2.25
One hay trip........................................ 75
“of which the defendant unlawfully has possession without right, and which he unlawfully detains from the plaintiff. Wherefore, the plaintiff prays judgment for the recovery of -said property, and for ten dollars damages for the detention thereof, and for other relief.”

The -defendant moved in the justice court, and also in the circuit court to which the cause was appealed, to quash the order of delivery and to dismiss the cause on the ground that the affidavit, or complaint, and the order of delivery did not sufficiently describe the property. The trial court sustained the motion, and quashed the order of delivery, but overruled the motion' to dismiss the cause. To this ruling the defendant duly excepted.

. The facts are substantially as follows: . The defendant, by warranty deed, conveyed to the plaintiff a tract of land on which a barn was located. In this barn was an apparatus for unloading hay. It -consisted of 48 feet of track, 25 hangers, a hay harpoon, two pulleys, a hay carriage, one stop, and 150 feet of rope. This equipment was, necessary to unload hay into- the barn, and was fastened to the barn by bolts,, the hangers being bolted to the rafters, the hooks connected with the hangers, and the track was also connected with the hangers. On the track the carriage was placed, and all these tools constituted a hay-unloading outfit which had to be used all together in order to effectuate the unloading of the hay. The barn was constructed with the view of installing this equipment for unloading the' hay. When the defendant carried the equipment away, he had to unscrew parts of it from the barn. The defendant was asked, among others, the following' question: “You and she never had any agreement that you were" to have this stuff? A. It was stuff that I was to have. I was to have everything outside of the house but what' was mentioned. What she was to have outside of the house was mentioned. She was to have the land — that real estate the barn was on and the house. Q. There' was no special agreement that you were to- have the track and stuff in the barn? A. Agreed that I was to have everything but what was mentioned; that stock and cattle and horses. I was to have everything else. We talked about this, and I told her I wanted to trade this to her for the use of the barn.” The defendant further testified that a written contract was made between him and the plaintiff on October 3,1923. He stated that there was a verbal contract made at-the same time. They talked about it. Defendant stated to the plaintiff, “I will give you the whole hay outfit if you will let me use half of the barn.” Plaintiff replied, “No, I won’t — ■ the rope is worn out anyway. I don’t -want you to have anything more to do with it.” The rest of the contract was reduced to writing. Everything outside of the house that was mentioned she was to have, and everything not mentioned in the contract was to be defendant’s. This alleged written contract is not in evidence. The only written contract in the record is the deed above referred to, executed November 20, 1923. This deed, as above stated, conveys the land on which the barn is situated, and contains the following recital: ‘ This deed is made as a division of real estate in settle-merit of property rights between David and Bessie Feldman, in a suit in the chancery court for the Eastern District of Clay County, Arkansas.” The lands are described, and the habendum- clause recites, “To have and to hold the same unto the said Bessie Feldman and her heirs and assigns forever, with all appurtenances thereunto belonging.” •

The trial court instructed the jury, in effect, that the property in controversy was a fixture and therefore a part of the real estate, and directed the jury to find the value of the property and to. return their verdict in favor o.f the plaintiff for such value. The defendant duly excepted to the ruling of the court in giving this instruction. The jury returned a verdict in favor of the plaintiff for the possession of the property, ‘except the rope, and fixed the value thereof at the sum of $25. Judgment was entered in favor of the plaintiff, from which is this appeal. ' • ■

The court did not err in refusing to quash the affidavit or complaint, and did not err in refusing to dismiss the cause of action. Where there is a statement of the facts constituting the cause of action, whether the complaint be designated as an affidavit or complaint, it is. sufficient to give the court jurisdiction. Climer v. Aylor, 123 Ark. 510. The affidavit or complaint filed before the justice court has been duly brought into this record by certiorari, and is set forth above. The instrument set out above designated affidavit or complaint contains a sufficient description of the goods in controversy and their value, and alleged that the plaintiff was entitled to possession thereof, and that the defendant was in unlawful possession and unlawfully detained the same, and the plaintiff prayed judgment for the recovery thereof, This complaint was sufficient to give the court jurisdiction of the subject-matter to determine rights of property between the parties, under § 8640, C. & M. Digest. See Schattler v. Heisman, 85 Ark. 73, and cases there cited.

There was no error in the ruling of the court in directing the jury to ascertain the value of the property from the testimony and to return a verdict in favor of the' appellee for the possession of the property, or it's value. The court was justified in finding from the undisputed testimony that the property in controversy was a fixture. The undisputed testimony shows that the barn was built with a view of having the hay-unloading equipment made a part thereof; that this equipment was attached to the barn by bolts, and was a part of the permanent structure. The court therefore ruled correctly in holding that it was a fixture and passed to the appellee by the deed to the land.

When the appellant detached and removed the property in controversy, it was thereafter personal property in his possession, and appellee’s suit to recover the same was within the jurisdiction of the justice court.

The record presents no error in the rulings of the trial court, and its judgment is therefore affirmed.


author: Hart, J.,

text:
    Wallace v. Davis.
    Opinion delivered November 1, 1926.
    1. Mines and minerals — joint purchasers — accounting.—Where two persons buy an oil and gas lease for resale, and the total purchase price is advanced by one, the latter, on a resale, was properly decreed the portion of the purchase price advanced by him, less the other’s share of the profits.
    2. Banks and banking — liability for negligence in collection.— Before recovery can be had from a bank for negligence in delivery of an oil and gas lease without requiring payment of a draft attached thereto, there must have been an actual loss, and no liability is established where the drawee owed the drawer nothing.
    Appeal from Union Chancery Court, Second Division; George M. LeCroy, Chancellor;
    affirmed.
    STATEMENT BY THE COURT.
    J. H. Wallace instituted this action in the circuit court against W. E. Davis, F. L. Davis and the National Bank of Commerce to recover the sum of $900 damages alleged to. have- been occasioned by the negligence of the defendant bank in the performance of its -duty as agent for the plaintiff in the collection of a draft on the defend-ant Davis. The defendants'filed separate answer's. The bank denied negligence or.liability on its part,-and W. E.- Davis and F. L. Davis denied liability -on the draft. By the agreement of all parties, the case was transferred to the chancery court.
    The chancellor found'that, on'the 30th day of March, 1921, J. H. Wallace and F. L. Davis, by his agent, W. E. Davis, purchased from George Zeigan'a certain oil and gas lease to certain land in Union County, Arkansas, and took a deed therefor in the name of' J. H.'Wallace and F. L. Davis ,* that the purchase price of said lease of $3,250 was advanced and paid by F.'L. Davis through her agent, W. E; Davis, under an agreement that J. H. Wallace would pay to F. L. Davis; on the following Monday, one-half of said $3,250; that no part’of that-amount has been paid by J. H. Wallace to F. L. Davis; that the lease was purchased by J. H. Wallace and F. L. Davis for the purpose of resale, under an agreement that each was to pay one-half of the purchase price and to divide equally any profit or loss which might be incurred in the' transaction.
    The chancellor further found that, on the 15th day of September, 1921, J. H. Wallace, through the Savings Bank & Trust Company of Monroe, Louisiana, forwarded to the National Bank of Commerce of El Dorado. Arkansas, a draft drawn by the plaintiff on the defendant Davis in the sum of $900, to which draft was attached an .oil and gas lease executed by Wallace to his interest in the oil and gas lease above referred to.; that said‘conveyance was incomplete until signed by F. L. Davis; that said hank delivered said lease to W. ,E. Davis without the knowledge or consent of Wallace; and that W. E. Davis, after having caused said lease to be signed and acknowledged by F. L. Davis, as her agent, filed it for record in Union County, Arkansas; that no legal delivery of said1 lease, Which was attached to said draft, wa’s ever made by.said defendant bank to said Davis, and that .the deed so obtained by Davis is null and void, and passes no title,’ for the reason that no legal -delivery was made of it-by the bank to said W. E. Davis.-
    The'chancellor further found that J. H. Wallace has failed to sustain -his contention that W. E. Davis br F. L. Davis is indebted tohim in ¡the sum 'of $900;- and that the - eomplaint of J; .H. Wallace against'the defendant bankds not sustained by the evidence. Tt- was -therefore decreed- that, the'complaint against- these -defendants-be dismissed for want of equity-.,
    The chancellor further found that J. H. Wallace, was indebted to. -the defendant, F. L.. Davis, in the sum of $1,625, w^h interest thereon from the. 30th day of March, 1921, at six. per cent, per annum; that.F. E., Davis has collected, the sum of; $300. in, the .handling of-the .lease, in question, and -that .the $1,625, -due by Wallace ,-to F..L. Davis, should be. credited with one-half-;of the-$30.0 as of the date of March 30, 192Í; that-the-defendant, -F. L. Davis,, is entitled to judgment Therefor; that, under, the pleadings as amended to 'conf orm to .the evidence adduced at the trial, a lien should be declared on the one-half undivided interest of J. Hi Wallace, in' said- lease, and that, in default of the payment of the amount found,due, the. undivided interest of Wallace.in said, lease -should be sold under the orders of the. court and. the proceeds applied, first, to the payment,of the indebtedness found due by.J. H. Walla.ee to F. L. Davis, and the balance, if'any, should be, paid, to said Wallace. . ......
    . The above finding of facts in , a more detailed form is .embodied in the decree entered of record in the case; and, inasmuch as counsel for the plaintiff expressly, concedes that no question of fact is raised by the appeal, but that, accepting .the chancellor ’s finding as correct, the decree is erroneous as a matter of law, we .adopt .the above as our statement of facts presenting the issues raised by the appeal of the plaintiff.

      Coulter & Coidter, fox appeHani.

      Powell, Smead & Knox, for appellee.
   Hart, J.,

(after stating the facts). It appears from the record- that J. H. Wallace and F. L. Davis purchased an oil and gas lease to land in Union County, Arkansas, and took a deed therefor in their names, upon the agreement that the purchase price of said lease, which was $3,250, should be advanced and paid by F. L. Davis. It was agreed at the time that Wallace would pay to said Davis his one-half of the purchase price of said lease on the following Monday. This he failed to do, and never at any time paid any part of the purchase price of said lease. The lease was purchased by Wallace and Davis for the purpose of resale, and they were to share equally the profits or losses.

On the 15th day of September, 1921, through a -bank at Monroe, Louisiana, Wallace forwarded to the National Bank of Commerce a draft drawn by the plaintiff on the defendant Davis in the sum of $900. Attached to this draft was an oil and gas lease to said land duly executed by Wallace. This lease appears to have been executed by Wallace on the theory of a sale of the gas and oil lease by him and Davis for a profit of $1,800, of which his share would be $900.

According to the .finding of facts made by the chancellor, no such sale of the oil and gas lease owned by Wallace and Davis was made, and Davis only received $300 in the handling of the oil and gas lease. The chancellor properly held that Davis should account to Wallace for one-half of this amount. The chancellor also found that no part of the original consideration for the purchase price of the lease had been paid by Wallace to Davis according to the agreement. Under this state of facts, which is conceded to be supported by the evidence in the record, the -chancellor properly entered of record a decree in favor of Davis against Wallace for the part of the purchase money advanced by Davis to Wallace, after accounting to Wallace for his share of the profits made under the lease.

The decree dismissing the complaint of -the plaintiff against the defendant -bank was also correct. As we have just seen, the defendant Davis did not owe the plaintiff anything. On the other hand, the plaintiff owed Davis. In this view of the matter, it did not make any difference that the bank wrongfully delivered the oil and gas lease attached to the draft to Davis without collecting the amount of the draft.

In cases of this kind, even where the negligence of the”agent is established, it is a question of damages only; and the agent may show that, notwithstanding his fault, his principal suffered no damages. The agent may show that, if he had used the greatest diligence, the draft would not have been accepted or paid, because the person on whom'the draft was drawn did not owe his principal anything. This court has expressly held that, in cases of this sort, the collecting bank is liable only for the actual loss which results from its improper conduct or unauthorized acts. There must be an actual loss before any recovery can be had in such a case, and no recovery can be had for more than the actual loss sustained. Second National Bank of Baltimore, Maryland, v. Bank of Alma, 99 Ark. 386, 138 S. W. 432.

It follows that the decree must be affirmed.


text:
    Ozark-Badger Company v. Roberts.
    Opinion delivered November 1, 1926.
    1. Customs and usages — varying terms op contract. — In a suit on a promissory note, in which the maker counterclaimed for excessive credits taken by the payee while manager of defendant lumber company’s mill, admission of testimony that it was customary for lumber companies to allow managers their expenses in attending conventions of lumbermen and for entertainment of prospective customers held error where a written contract between the parties defined the duties of the manager and fixed his salary, without allowing him an expense account for entertaining customers.
    2. Principal and agent — authority op agent. — -A principal can be ■bound only by the authorized acts of an agent.

      3. Customs and usages — varying terms op contract. — Where an agency is created by .contract, the nature and extent of the . agent’s authority must be ascertained from the - contract itself, and, unless the language of the contract is technical or ambiguous, it cannot be extended by parol proof as to a custom.
    4.- Master and servant- — expenses op business trips. — The manager of a lumber company was authorized to charge the expenses of a business trip to the company. • ' " ' •
    6. 'Corporations — estoppel to deny'agent’s authority. — Officer^ of " ■ - a lumber company- not being under duty to examine its hooks' to , . -ascertain whether"-its manager .had-been guilty of wrongdoing, the company was not- precluded from: recovering the amount of .improper traveling expenses because they were set .out in such books. ;
    ■Appeal'from Drew Circuit-Court; 'Turner Butler, Judge;
    r-eversed.
    STATEMENT BY THE COURT.
    W. T. Roberts sued tbe Ozark-Badger Oompany to recover tbe sum of $668 alleged to. be due him on a promissory note executed to -him -by the defendant.
    The Ozark-Badger Company filed an -answer, in which it admitted the execution of the note and-the balance due and unpaid on it in the amount sued for. By way of counterclaim, it alleged that Roberts was manager of the sawmill business of the Ozark-Badger Company, a corporation, at Wilmar, Arkansas, during the years 1922-23, and until his resignation on the 13th day of March, 1924. It alleged that the manager was in charge of all the -books of the defendant during this period of time, and that he wrongfully and illegally took credit for the sum of $1,175.52 on his expense account. The statements -are set out specifically in the counterclaim, and -the' defendant asked judgment over and against the plaintiff in the sum of $475.52. On the trial of the case the. note was introduced in evidence, showing .a balance due on it in. the amount sued for.
    : The record-shows that W-. T. Roberts was employed as general manager of the Ozark-Badger -Company at Wilmar, Arkansas, on January 4, 1922, and continued as such manager until the 13th day of March, 1924. A written contract was entered into between tbe parties on'January 4, 1922, which defined Roberts’ duties and salary as such general manager; His original salary was '$300 per month, which was increased to $333.33 per' month’ about the' first of February, 1923.
    The president and the secretary of the Ozark-Badger Company resided at Stoughton, Wisconsin, and, at stated intervals, carde to Wilmar, but never made any examination of the books of the company." They did not know what the statements in the expense’account were for. On . one occasion, the president of the company met Roberts in the city of Chicago, attending a meeting of the rules committee of the National Hardwood Lumber Association, ánd Roberts stated that the ás'sociation was paying the expense of the trip. The company made no objection to Roberts attending these meetings, but his attendance was not a part of his duties as manager of the company, arid was not of any particular benefit to it. Roberts sent in a report showing the- total general expenses of the operation of. the sawmill, but the company did not know that the items involved in the suit had -been charged against the company until the president came to Wilmar- to make a final settlement, with Roberts after his resignation..
    ■■ Frank Seymour,’ assistant-manager of the -Gates Lumber Company; at Wilmar, Arkansas, was a witness for -the -plaintiff,- Roberts. Over the objections of the defendant company, he was permitted to testify that he charged up personal - expenses to the -Gates Lumber Company, which were paid by it, and that it was the custom of these lumber companies to allow their managers to spend a reasonable amount of money in entertaining prospective customers while away from- home, and that they were allowed a lump -sum for whatever they spent- in railroad fare, hotel bills and suppers for prospective customers while in attendance at lumber association meetings and the like. •
    W. T. Roberts was a witness for himself. According to his testimony, he never kept an itemized statement of Ms expense account involved in tMs lawsuit, because it was not the custom for general managers to keep such itemized statements. In a general way the expenses involved in the suit were for railroad fare, hotel bills and suppers and entertainment for persons with whom they did business and with whom they contemplated doing business. A part of the expenses was for railroad fare and hotel bills in going to Little Rock and Conway for the purpose of selling lumber and transacting other business for the company.
    The jury returned a verdict in favor of W. T. Roberts in the sum of $617.48, and, to reverse the judgment rendered upon the verdict, the defendant, Ozark-Badger Company, has duly prosecuted an appeal to this court.

      Williamson & Williamson, for appellant.

      Henry & Harris, for appellee.
   Hart, J.,

(after stating the facts). The first assignment of error is that the court erred* in allowing testimony to be introduced to the effect that it was customary for lumber companies like the Ozark-Badger Company to allow their general managers to spend reasonable amounts of money in attending the conventions of lumber associations and for the entertainment of .prospective customers while there. We think the court erred in admitting this testimony. There was a written contract between the parties, which defined the duties of the general manager and fixed his salary at a definite sum, to be paid monthly. Nothing whatever was said about allowing him an expense account for the purpose of entertaining prospective customers.

It is a fundamental proposition of law that a person can only be bound by the authorized acts of his agent. Where an agency is created by contract, the nature and extent of the authority of the agent must be ascertained from the contract itself, except where it is ambiguous,, and cannot be extended by parol evidence of the usage of agents of other companies. In other words, where there is no ambiguity in the language of the contract, evidence of usage is not admissible in respect to what the contract expressly declares. Evidence of custom or usage is admissible “to show the intention of the parties in all those particulars which are not expressed in the contract, or which are expressed in unusual or technical terms.” 17 C. J. 516; Kimball v. Brawner, 47 Mo. 398; Porter v. Patterson, 15 Penn. St. 229; Patridge v. The Insurance Company, 15 Wall. (U. S.) 573; and Greenleaf on Evidence, 15th ed., §§ 292, 294.

This court has recognized the general rule that, where the language of a contract is neither technical nor ambiguous, proof of usage in respect to the contract is not needed as an aid in its construction, and its admissibility would amount to establishing the principle that a custom may add to or vary a contract. Runyan v. Runyan, 101 Ark. 353, 142 S. W. 519; In re Paepcke-Leicht Lumber Co., 106 Ark. 400, 153 S. W. 833; and Batton v. Jones, 167 Ark. 478, 268 S. W. 857.

We have not copied the contract here, and do not deem it necessary to do so. It is sufficient to say that it employed Roberts as general manager of the Ozark-Badger Company at a stated salary, payable monthly, and defined his duties. There is nothing whatever in its terms from which it might be inferred that the company intended that Roberts should attend meetings of lumber associations, and charge his expenses in going there and entertaining prospective customers to the company. There being no ambiguity in the language of the contract, evidence of the usage of other lumber companies situated in the- same locality, as to the allowance of like expenses to their agents, was not admissible.

In this connection it may be stated that Roberts, as general manager of the company, would have the authority to send an employee of the company to Little Rock and to other nearby places for the purpose of selling lumber and transacting other business for the company, and allowing them the expenses of the trip, such as railroad fare and hotel bills. If Roberts had the authority to delegate this duty to another employee and to charge the expenses of the trip to the company, he could perform the same services himself and charge his expenses to the company,

' The court told the jury that, in the management and control of the plant of the company, Roberts had the right to spend money to further the interests of the com-pany, and that he might include in his expense account railroad fare, hotel bills, and the cost of entertaining customers while attending the meetings of lumber associations in Chicago. Under the principles above announced, such instructions were erroneous and necessarily prejudicial to the rights of the company, and therefore call for a reversal of the judgment.

. Finally, it is insisted by counsel for Roberts that the company is precluded from recovering these amounts, although they are illegal. This contention is predicated upon the fact that Roberts charged them in his expense account on the books of the company and that the president and the secretary of the company had access to the books of the company when they visited the min plant, and might have discovered these charges if they had examined the books. In answer to this, it is sufficient to say that the president and the secretary were not. required to examine the books for the purpose of ascertaining whether or not Roberts had been guilty of wrongdoing in his operation of the mill and had charged up illegal expenses to the company. In this connection, it will be remembered that both the president and the secretary of the company testified that they did not know anything about Roberts having charged the contested statements as proper expenses upon the books of the company until the president went to Wilmar, after Roberts had resigned, for the purpose of settling with him.

For the errors in the admission of testimony and in instructing the jury, as indicated in the opinion, the judgment must be reversed, and the cause remanded for a new trial.


text:
    Adkins v. Kalter.
    Opinion delivered November 1, 1926.
    1. Auctions and auctioneers — sale op state property at auction —TAX.—Where the Governor, through the appointment of an honorary-commission, accepted military property granted by the United States, and such acceptance was impliedly ratified by the Legislature in Acts 1923, pp. 229, 656, and Acts 1925, pp. 958, ■ 1072, the property was a valid gift to the State, and the proceeds of sale thereof, which were to be used by the National -Guard, were exempt under Const., art. 16, § 5, from the auction tax claimed under Crawford & Moses’ Dig., §§ 630, 634.
    2. States — power to acquire property. — A State may acquire real or personal property by conveyance, gift or otherwise, and .sell or dispose of it as it sees fit. .
    3. State — acceptance op gift. — While affirmative legislative action would be binding as expressing the intention of the State in accepting or rejecting a gift of property to the State, such action is not essential where the gift was accepted by the Governor, Whose duty it was to execute and perform the trust imposed under the terms of the gift, especially where such acceptance was subsequently recognized and impliedly ratified by the Legislature.
    4. Officers — liability for public funds. — Money collected on the State’s behalf by a State officer, under color of office but without authority of law, belongs to the State, and must be accounted for.
    Appeal, from Pulaski' Chancery Court; John E. Martmecm, Chancellor;
    affirmed;
    STATEMENT OE EAOTS.
    Appellant brought this suit in the Pulaski Chancery ■Court against appellees to recover an amount alleged to be due as a tax upon sale of personal property, at auction, in said county. The suit was defended on the ground that the property sold -belonged to the State, and that, on this account, the tax was not due. The -material facts are practically undisputed, and may be briefly stated as follows:
    A certain tract of land in Pulaski County, Arkansas, was purchased by the United States Government from the owners, at some time prior to the year 1922, to use as a United States army cantonment. Numerous buildings were erected on the land, and it was used as a military encampment and mobilization point of tbe United States Army after the entrance of the United States in the World war. On the 15th day of May, 1922, the War Department of the United States granted to the State of Arkansas what was called a revocable license to nse said buildings. The War Department retained the right to occupy any of the buildings which it might require in connection with the salvaging and disposition of Government property.
    The Hon. Thomas O. McRae, then Governor of thé State of Arkansas, appointed an honorary commission to take charge of said buildings, and also to accept, for the State of Arkansas, certain personal property from the United States. On the 19th day of May, 1922, the War Department of the United States entered into a written contract with A. D. Cohn, as trustee for said honorary commission, for certain surplus property then at Camp Pike, Pulaski County, Arkansas, and listed on certain inventories attached to the contract. The consideration recited in the contract was the payment of $140,564.29 to the United States in the form of a banker’s acceptance, payable on the 19th day of November, 1922, which said banker’s acceptance was furnished by the Surplus Trading Company, which was composed of certain nonresident individuals and corporations.
    In the agreement between the honorary commission and the Surplus Trading Company, it was agreed that this banker’s acceptance should be repaid to the Surplus Trading Company out of the proceeds of the sale of said surplus property. It was understood that the remaining proceeds of the sale of said surplus property should belong to said honorary commission, in trust for the State of Arkansas, for the use of the National Guard. The agreement provided that the Surplus Trading Company should act as the selling agent of said honorary commission in disposing of said property, and it was to receive a certain per cent, in addition to the repayment to them of the banker’s acceptance above referred to.
    Max Kalter was a member of the Surplus Trading Company, and took out an auctioneer’s license under the provisions of chapter 13 of Crawford & Moses’ Digest. Section 630 provides that no person shall exercise the trade or business of a public auctioneer, by selling any goods or other property subject to duty under the law, without a license, to be issued according to the law. Section 631 provides that there shall be levied and paid upon all sales of property at auction, except as hereafter excepted, a tax or duty to the county of one and one-half per cent: on all sales of said property. The record shows that Max Kalter, as auctioneer, sold something over $500,000 of said property, and that, if the tax was due to the county, it was entitled to recover $7,617.84.
    The chancellor found that the proceeds of the sale in question belonged to the State, and that no tax, under the provisions of the statute licensing auctioneers and levying a tax upon the sales of personal property at auction, could be recovered in this suit. It was therefore decreed that the complaint should be dismissed for want of equity. The case is here on appeal.

      Poe & Poe and J. C. Marshall, for appellant.

      Bose, Hemingway, Cantrell & Loughborough, for appellee.
   Hart, J.,

(after stating the facts). It is earnestly insisted by counsel for appellant that the chancellor erred in holding that the property in question belonged to the State and, on that account, was not subject to the auctioneer ’s tax under the provisions of the statute referred to in our statement of facts. We cannot agree with counsel in this contention. It is well settled that a State may acquire real or personal property by conveyance, gift or otherwise, and sell or dispose of it as it sees fit. 36 Cyc. 869, and 25 R. C. L., p. 388, § 21.

This court has held that, under our Constitution, the power of the State in respect to its property rights is vested in the Legislature. Little Rock & Fort Smith R. Co. v. Howell, 31 Ark. 119, and Bartlett v. Crawford, 36 Ark. 637. It does not follow, however, that, because the Legislature has not acted in respect to the property in question and provided for its disposition, it did not belong to the State.

The record shows that the Governor, acting in behalf of the State, appointed an honorary commission to accept the property in question and to use the proceeds for the National Guard of the State of Arkansas. In Hawkins v. The Governor, 1 Ark. 570, it was said: “It will be borne in mind that the office of President of the United States and the office of Governor of our State are, in many respects, like each other, with this essential difference, that the former is intrusted with the executive powers that relate exclusively to the General Government, and the latter is intrusted with the exclusive powers that belong to the State Government. The powers conferred and the duties enjoined upon both of these officers by the respective Constitutions of the two Governments are, in most particulars, identically the same, so far, at least, as regards their legal or constitutional discretion. ” ■ .

Article 6, § 6, of our Constitution provides that the Governor shall be commander-in-chief of the military and naval forces of this State, except when they shall be called into the actual service of the United States.

The object of the War Department in granting the surplus property at Camp Pike to the honorary commission appointed by Governor McRae was to provide a fund for the National Guard of Arkansas. It is true that a substantial money consideration was paid to the United States, but this payment was made by the Surplus Trading Company, which was to act as selling agent for the-honorary commission in the disposal of the property, and it was to receive back the consideration to be paid the United -States, first, from the proceeds of the sale of said property, and the balance was to be paid to said honorary commission, in trust, for the- National Guard of the- State of Arkansas, after deducting certain selling commissions of said Surplus Trading Company. The property was sold for something over $500,000. The sale was made within a few months after the property was accepted from the United States by the honorary commission, in behalf of the State of Arkansas. Thus it will be seen that, when the transaction is considered in its entirety, it was, in effect, a gift of the property to the State of Arkansas. The gift was accepted by the honorary commission duly appointed by the Governor, and this, in fact, constituted an acceptance by the Governor.

While affirmative legislative action would be binding as expressing the intention of the State, either in accepting or rejecting a gift of property to the State, yet such affirmative action is not essential in order to render a gift of property to the State valid. As we have already seen, the Governor, by virtue of his office, is cómmandérin-chief of the army and naval forces of the State, and, through an honorary commission appointed for the purpose, accepted the gift. The Arkansas National Guard was an existing volunteer association, organized pursuant to the terms of the statute, at the time the transaction in question took place. Crawford & Moses’ Digest, chap. 119. Under § 7173, the Governor is authorized, and it is made his duty, to establish and prescribe such rules, regulations, forms and precedents as he may deem proper and necessary for the organization, regulation, discipline and instruction of the Arkansas National Guard. The section further provides that the Governor shall have full control and authority over all matters touching the Arkansas National Guard, its organization and discipline. Thus, the gift was accepted by a-State officer, whose duty it was to execute and perform the trust imposed under the terms of'the gift. He was to become a trustee under obligation to expend the fund derived from the sale of the property in accordance with the provisions of the trust.

The Legislature which convened next after the transaction in question passed an act to promote the efficiency of the Arkansas National Guard. Gen. Acts of 1923, p. 229. Under § 5 of the act, it is made the duty of the Governor to appoint, subject to the approval of the Secretary of War, an officer of the Arkansas National Guard, who shall be regarded as the property and disbursing officer of the United States. The section further provides that this officer shall receive and account for all funds and property belonging to the United States in possession of the Arkansas National- Guard. It further provides that he shall render to the War Department such account of the funds intrusted to him as may be required by the Treasury Department. The same Legislature made the usual biennial appropriation for the support of the Arkansas National Guard. Gen. Acts of 1923, p. 656.

The Legislature of 1925 also passed an act to promote the efficiency of the Arkansas National Guard, and amended in some respects the act of 1923, above referred to. Gen. Acts 1925, p. 1072. This Legislature also made the biennial appropriation for the support of the Arkansas National Guard. Gen. Acts of 1925, p. 958.

The gift in question was for a public purpose, and was in accordance with the general legislative policy before and since the time of the transaction in question, and its object and purpose was to promote the efficiency of the Arkansas National Guard. The presumption is that, in making the biennial appropriations, the Legislature acquainted itself with the needs and resources of the Arkansas National Guard. Under the circumstances, the Legislature may be said to have, impliedly at least, ratified the act of the Governor in accepting the gift under consideration.

If it can be said that the Governor, by virtue of. his office, had no legal right to accept the property, still it must'be admitted that he acted at least under color of his office. Money collected by a State officer, under color of office, without authority of law, belongs to the State, and must be accounted for. It is true that the Legislature might have acted in the premises and provided for the disposition of the property or the proceeds of the sale thereof. However, it has not done so, and the Governor, acting at least under color of his office, has accepted the property and caused the proceeds from the sale of it to be applied to the upkeep of the National Guard of Arkansas, as contemplated by the War Department of the United States when it granted the surplus property at Camp Pike to the State.

It has been held that, where an agent of the State, without authority, sells property of the State and takes a note in payment therefor, the Legislature may ratify his act and enforce the note. State v. Torinus, 26 Minn. 1, 49 N. W. 259, 37 Am. Rep. 395. The principle announced in this case shows that the property in question belongs to the State, because the Legislature could not ratify the illegal act of the State officer unless the property or its proceeds still remained the property of the State.

Again, in People v. Van Ness, 79 Cal. 85, 21 Pac. 554, 12 A. S. R. 134, it was held that fees collected without legal authority by the Commissioner of Immigration, •in his official capacity and under color of law, belonged to the State, and not to him. In that case it was contended that, the money having been collected by Van Ness without legal sanction, he had the right to retain it as his own. The court held to the contrary, and said that the money, having been collected under color of office, should have been paid into the State Treasury, and did not belong, in any view, to Van Ness, and he had no right to retain it.

In the application of this principle to the case at bar, we are of the opinion that the proceeds of the sale of the surplus property at Camp Pike belong to the State, and on this account were not subject to an auctioneer’s sale tax under the statute.

Having reached the conclusion that the property in question belonged to the State by grant from the United States, but little more remains to be said. Under art. 16, § 5, of our Constitution, public property used exclusively for a public purpose is exempt from taxation. While the legal title to the property was in the honorary commission as trustee, the whole beneficial interest was in the State. The term “property,” as used in the section of the Constitution just referred to, is broad enough to cover an equitable interest like the one in question. The exemption from taxation is based upon the use- which is made of the property, namely, for the support of the National Guard of the State, and not upon the person in whom stands the legal title..

This principle was recognized in Grand Lodge of Free and Accepted Masons v. Taylor, 146 Ark. 316, 226 S. W. 129. There the court had under consideration a clause of the same section of the Constitution, which exempts, from taxation property used exclusively for public charity. The court said that the language, of the exemption clause refers not to the character of the corporation or association owning the property sought to be exempted, but, regardless of the character of the owners, to the, direction and exclusive use of the property for-public charity.

The result of. our. views is • that the .holding of the chancellor was correct, and the, decree will, therefore be affirmed. - -


author: Smith, J.

text:
    Turner v. State.
    Opinion delivered November 1, 1926.
    1. Criminal law — ruling as to juror’s qualifications. — Arecital in the record that each juror, over objection, was permitted to answer a question of the prosecuting attorney, whether he would let the unsavory reputation of a State’s witness influence his verdict held not equivalent to a ruling that only persons answering in the negative were competent to serve as jurors.
    2.' Criminal law — instruction as to credibility op witness. — It would be error to instruct the jury to disregard the unsavory reputation of a witness in making up their verdict,.
    3. Criminal law — presumption op regularity. — Every reasonable presumption, is indulged in favor of. the regularity and fairness of a trial.
    4. Criminal law — presumption in selection of jury. — Where the prosecuting attorney was permitted to ask jurors on their.voir dire whether they would let the unsavory reputation of a State’s witness influence their verdict, it will be presumed that the object of the question was' to enable the prosecuting attorney’ to exércise his peremptory challenges.

      5.- Criminal law-reputation of witness. — While the reputation . of,a witness should; be-considered by the jury in weighing .the-testimony, the jury, should not disregard the testimony of a witness , if they believed' it to be true, though the reputation of the witness was had. ’ ’’ - . ■
    :• Appeal from Ouachita Circuit Court.; L. S. Britt, Judge;
    affirmed.-
    - L. B. Smead and J. G.. Clary, fox appellant..

      H. W. Applegate, Attorhey General, and JoTm.L. Carter,.Assistant, for appellee. . .
   Smith, J.

Appellant was convicted of the crime of assault with intent to kill, alleged to have Been committed By'shooting one Mrs. W. M. Skinner, who testified that appellant came into the tent where she was living and demanded a drink of “choc,” a,kind of beer, which she'furnished him.. After drinking,the choc, appellant demanded.that Mrs. Skinner go out of, the tent, with him, and enforced the command By, drawing .a,, pistol on her. She obeyed, and, through fear; permitted appellant to have sexual intercourse with her, after which act he commenced shooting at her with a pistol,'‘and fired three shots at her, and' one of the' Bullets found lodgment in her fo'ot.'

The Bill of exceptions contains the’following recital:

“Thereupon, a .jury came, and Before the selection dr rejection of each juror called, the State, over the objection of’ the- defendant was permitted to ask each juror the following.question:' ‘Would you, if the State, relying on- a witness for conviction, who has an unsavory reputation, would you let the-facts of said witness’ unsavory reputation influence.you inarrivingat-your verdict?’ And each juror, over the objection of- the defendant; was permitted to answer-that-he would not! To which question- and answer the defendant duly saved his exceptions as.-to-each juror.¡ -■ ..... ■

The action of the court in permitting the prosecuting attorney to ask this question, in qualifying the jurors, is assigned as error in the motion for a new trial, and no other error is insisted upon for reversal of the. judgment.

It will be observed that the record' does not recite that only those jurors were held competent who qualified by answering this question in the negative. It does appear that each juror, over the objection of appellant, was permitted to answer that he would not let the unsavory reputation of a witness influence him in making up his verdict; but that recital is not sufficient to show that the court ruled that only such persons so qualifying were competent to serve as jurors in the case.

■ Such a ruling would have been erroneous, because it is the peculiar province of the .jury to determine the weight and effect to be given the evidence of any witness, and the court could not, at any-stage of the trial, usurp this function. Certainly it would be improper for the court tp instruct that the jury should disregard the unsavory reputation of a witness in making up their verdict, and, of course, it would be improper for the court to hold that only jurors were competent who would disregard and not consider reputation. •

Indulging, as we must do, every reasonable presumption in favor of the regularity and fairness of the trial below, we presume this question was asked by the prosecuting attorney to enable him to exercise, advisedly, the peremptory challenges which the law allows the State.

In the case of Gurley v. State, 164 Ark. 397, we said that the trial court has the discretion to permit the examination of a venireman within a -range reasonably calculated to disclose whether he has such bias or prej.udice for or against the State or the defendant as is calculated to influence his verdict, and that either-.side may ask relevant questions bearing on this subject, not only to establish actual bias which would disqualify a juror, but for the purpose of enabling the party propounding the questions to intelligently exercise his right of peremptory challenge.

We presume such was the purpose of the prosecuting attorney here, and also that, if the court had ruled that only those persons were qualified who answered the question in the negative, that fact would have been made to appear in the bill of exceptions.

At § 97 of the chapter on “Jury,” in 16 R. C. L., p. 281, 262 S. W. 636, it is said that “hypothetical questions are not competent, when their evident purpose is to have jurors indicate in advance what their decision will be under a certain state of the evidence, or upon a certain state of facts, and thus possibly commit them to certain ideas or views when the case shall be finally submitted to them for their decision. ’ ’ Here, however, the jurors were not asked what their verdict would be, but whether they would disregard testimony given by a witness of an unsavory reputation. The bill of exceptions does not show what other questions were asked the veniremen, either by the prosecuting attorney or by counsel for defendant, and it'may be that the prosecuting attorney desired only to know whether the veniremen to whom the question was propounded entertained such a prejudice against a woman of questionable character that they would not believe any statement she made merely because her reputation was bad.

As we have said, the reputation of a witness, when shown by the testimony, is a proper matter for the jury to consider in weighing the testimony of' the witness, but the jury would have no right to disregard the testimony of such a witness if they believed the testimony of the witness was true, even though her reputation was bad. We have applied this principle even when it was shown that a witness had testified falsely concerning some material matter, and have held it to be error for the court to charge the jury that they might disregard all the testimony of a witness if they found the witness had testified falsely in' any respect. The jury might consider' the fact that the witness had testified falsely in determining whether to believe any of the testimony given by the witness, but, if it were found that some of the testimony of the witness were true, it could not be disregarded in its entirety because some other part of the testimony was false. Taylor v. State, 82 Ark. 540, 102 S. W. 367; Flake v. State, 161 Ark. 214, 255 S. W. 885.

This was of course, a proper subject to be covered by instructions given by the court, and it must be presumed this was done, especially so as it affirmatively appears that “there were no refused instructions.”

' Wé think no showing of prejudice was made, and the judgment will therefore be affirmed.


text:
    Garrison Company v. Lawson.
    Opinion delivered November 1, 1926.
    1. Trial — application op instructions to case. — An instruction • relating to negligence regarding a-blowpipe and oily floor, in a personal injury case, should not have been given, where the evidence did not show that these conditions contributed to plaintiif’s injury.
    2. ' Master and servant — saps tools — instruction.—Where an employee, injured while operating a shaper machine, was sup- ■ posed to change the knives of the machine when dull, it was error to submit the question whether the knives were dull and the dullness contributed to the injury.
    3. Trial — conflicting instructions. — Where an employee was injured'while operating a shaper machine, it was error to submit grounds of negligence under instructions taking no account of assumed risk, even though this question was submitted under another instruction, if the. instructions, when taken together, were so conflicting as to confuse or .mislead the jury.
    4. Master ane> servant — assumed risk — jury question when. — ■ Whether an employee, injured while operating a shaper machine, assumed the risk of such injury, held, under the evidence,'for the jury.'
    Appeal from Sebastian Circuit Court, Fort Smith District; John E. Tatum, Judge;
    reversed.

      T. D. Wynne and Pryor, Miles $ Pryor, for appellant.

      J. F. O’Melia, for appellee.
   Smith, J.

Appellee recovered judgment to compensate a personal injury sustained by him while employed by appellant in the operation of a “shaper” machine in appellant’s furniture factory. Six separate acts of negligence were alleged on the part of appellant, and, in separate instructions, the court submitted each of these acts of negligence, each instruction being complete in itself, and each told the jury to find for the plaintiff if it were found that appellant was guilty of the act of negligence to which the particular instruction related.

The shaper machine which appellant was operating at the time of his injury was a-heavy steel table, with a perfectly smooth, polished steel top, about five feet square, through the outer edges of which there.were two holes, through each of which the end of a. shaft protruded.

These shafts turn at a high speed, and. on .the end of them the operator fastened various saws and blades, which cut the edge of the timber and lumber in various shapes, to be .used in decorating and manufacturing furniture, and, because of the use thus made of the machine, it is called a “shaper” machine. In the operation of the machine the operator determines the particular kind of knife or saw required, and he also determines when tbe knife or saw has become too dull for further use, in all of which instances it is the duty of the operator to change the knife, and it was not unusual for as many .as a dozen of these, changes to be made -in a day.. It was the duty of another employee, to see that the knives were kept sharp. . -.

Appellee testified that he was shaping a vanity dresser top,, on which another .piece of timber had been glued, and, .when the revolving knives hit the cross-grain of the part that was glued to the dresser top, it .jerked the piece of lumber he was shaping in a way to throw his hand into the knives, and all four of the fingers on his right hand, with which he was holding the lumber, were amputated.

The acts of negligence submitted to the jury were as follows: (1) the shaper did not have a proper guard or shield ; • (2-3) the shaper vibrated, rendering it dangerous, a condition which could have been remedied by fastening or bolting it more securely to the floor; (4) there was no proper footing for appellee to stand on, in that the floor was oily and slippery; (5) there was no sufficient blow-pipe to carry away the .shavings which accumulated on the shaper and on the floor; (6) the knives on the shaper were dull.

The instructions given permitted a recovery if it were found that appellant was guilty of any of the acts of negligence alleged, and to each of these instructions the objection was made that no account was taken of the defense of assumed risk set up in the answer. Appellant objected to the giving of any of the instructions, upon the ground that, under the undisputed evidence, •a verdict should have been directed in its favor.

It may be first said that certain of these instructions should not have been given, for the reason that the acts of negligence complained of were not the proximate or contributing causes of the injury. This is true of the allegations of negligence in regard to the blow-pipe and the oily condition of the floor. There is no testimony showing that these conditions, even though their existence constituted negligence, contributed to appellee’s injury, and the instructions on those subjects were therefore abstract and erroneous.

We are also of the opinion that it was erroneous to submit the question whether the knives were’dull, and, if so, whether their lack of edge contributed to the injury, for the reason that sharp knives were available, as they were required in the operation of the machine, to appellee, who would be the first person to know whether a knife had lost its edge, and it was his duty to change' the knives when this happened.

' We are also of the opinion that it was error to submit the other grounds of negligence under instructions which took no account of the defense of assumed risk. It is true this question was submitted under instructions requested by appellant, but this was done after the various instructions requested by appellee had been given, a number of which undertook to define the conditions under'which the jury should find for the plaintiff, and these instructions eliminated or failed to take into account the fact that appellee might have assumed the risk of the negligence complained of, and could not recover if he had done so.

This court has many times held that the instructions, when taken together, should not be so conflicting as to confuse or mislead the jury, not giving them a certain guide to follow in making their verdict. One of our leading cases on this subject is that of Southern Anthracite Coal Co. v. Bowen, 93 Ark. 140, 124 S. W. 1048.

The instructions do not come within the apparent exception to this rule announced in the case of St. L. I. M. & S. R. Co. v. Rogers, 93 Ark. 564, 126 S. W. 375, where it was said that, “though the instructions given may be apparently conflicting, if, from the language used or the relation which the instructions are made by the whole charge to bear toward each other, it is readily seen that they are to be read together without conflict and as a harmonious whole, and they can be so read, then it is our duty to so treat them.”

There was no intention, however, in the Rogers case supra, to depart from th'e rule that the instructions must, as a whole, give the jury a certain guide to follow in making up their verdict, for in that case it was also said: “It has been decided by this court, in an unbroken line of cases, that an instruction which ignores a material issue in the case about which the evidence is conflicting and allows the .jury to find a verdict without considering that issue, is misleading and prejudicial, even though another instruction which correctly presents that issue is found in other parts of the charge. "Where the instructions are thus conflicting, it is impossible for an appellate court to tell which of them the jury followed, and such an error calls for a reversal. Separate and disconnected instructions, each complete in itself and irreconcilable with each other, cannot be read together so as to modify each other and present a harmonious whole.” Among the numerous cases cited by the court in thus announcing the law was that of Southern Anthracite Coal Co. v. Bowen, supra.

It is the opinion of the majority, however, that, although the case must be reversed, because the instructions were conflicting and could not be read as a harmonious whole, and also because acts of negligence were submitted which were not shown to be proximate or contributing causes of the injury, the case should not be dismissed. It is the opinion of the majority — in which the writer and the Chief Justice do not concur — that it cannot be said as a matter of law that the injury was the result of one of the assumed risks of the employment.

Appellee was a man thirty-one' years of age, had been in service in France during the World war, and, after his return, had worked in and around machinery in furniture factories for about four years before his injury. He had, for a period of ten days or two weeks, operated a similar shaper machine at another factory, and had operated the machine at which his injury was sustained for about two and one-half months prior to his injury. It was shown, however, that all shaper machinery was dangerous, and required skill and care in its operation to avoid injury to the operator, and one of the shapermen who had operated the machine in question told the foreman, shortly before appellee’s injury, that the machine in question was dangerous because it had no hood,. and because of its vibration. Appellee testified that he had never - seen a guard on- such a machine, and, although there was testimony that a guard had been prepared by another employee for this machine, it had never been placed in position, and there was testimony to the effect that, had this been done, the chance of injury to the operator would have been greatly lessened-.

Other employees testified that the work of a shaper was one requiring much skill, and that years of experience were required to make one a skilled, shaper, and that the chance of injury was in proportion to the lack of skill.

It is the opinion of the majority that, although appellee must have known, as any one would know, that he would he cut if he permitted his hand to come in contact with the knives, yet he did- not appreciate the danger of this happening because of the lack of a guard, and that this lack of appreciation of the danger of operating the machine without -a guard, together with his inexperience as a. shaper, made a question for the jury whether he had received sufficient instruction or had had sufficient experience to appreciate the danger of the employment.

It is the opinion of tlie writer and the Chief Justice that the dangers attending the operation of the shaper' were so open and obvious that they must have been known and appreciated, and that they were therefore assumed, and that’the skill which the shaper acquired by years of employment -added nothing to the appreciation of the danger, although it increased his skill in folio-wing the patterns designed for the ornamentation of the furniture in the manufacture of which he was employed. -

■ It follows therefore that, although the case must be reversed, because of the- erroneous instructions given the cause should not be dismissed, and it will therefore be remanded for a new trial.


author: Humphreys, J.

text:
    Farmers' Exchange v. Drake.
    Opinion delivered November 1, 1926.
    1. Pleading — waiver of demurrer. — Any error in overruling a ■ •demurrer to a complaint and a motion to strike was waived when the defendant filed an answer and went to trial.
    2. Sales — implied warranty — jury question. — Whether a dealer acted as plaintiff’s agent in securing seed from defendant, so as not to preclude plaintiff from relying on an implied warranty in the sale, held for the jury.
    3. Appeal and evidence — conclusiveness of verdict. — A vérdict based upon substantial, though conflicting, evidence is conclusive.

      4. Trial — applicability op instructions. — Where the sale of seed was consummated by a telephone conversation, an instruction that, in determining whether defendant had sold seed direct to plaintiff, the jury should not consider oral evidence contradicting a written order, was properly refused.
    5. Trial — applicability op instructions. — In an action for breach of an implied warranty in the sale of seed, an instruction on the question • whether defendant sold the seed direct to plaintiff, ignoring the plaintiff’s theory that an intermediate dealer was acting as agent for plaintiff, on which issue the evidence was conflicting, held properly refused.
    Appeal from Washington Circuit Court; W¡ A. Dickson, Judge;
    affirmed.

      W. N. Ivie, for appellant.

      E. L. Pearson, for appellee.
   Humphreys, J.

Appellee instituted suit in the circuit court of Washington County .against appellant, a corporation, and J. L. McConnell jointly, to recover damages in the sum of $411.30 for the alleged breach of an implied warranty in the sale of Honey Drip sorghum-cane seed to him. The gravamen of the complaint was that appellee applied to J. L. McConnell, a feed and flour merchant in Prairie Drove, for twenty-five pounds of Honey Drip cane seed, to plant seven acres of land for the purpose of growing sorghum-cane to make molasses; that, not having the seed in stock, McConnell called appellant over the telephone, which was in the seed business at Fayetteville, and informed it of appellee’s desire, whereupon they agreed to furnish him seed of the kind and character desired; that he paid McConnell for the seed, and later received'and planted same; that, when the crop matured, it proved to be a mixture of various kinds óf cane, wholly unfit for making sorghtim, and was of no value, except of a small value for feed.

Appellant and J. L. McConnell filed separate demurrers to the complaint, alleging that the facts were not sufficient to constitute a cause of action against either, and that there was a defect of parties therein.

Appellant also filed a motion to strike and dismiss the complaint, alleging, first, that appellant was improperly joined as a defendant; second, that a privity of contract between appellee and appellant was not alleged; third, that facts sufficient to show a joint liability of appellant and McConnell were not alleged; and fourth, that the complaint was indefinite and uncertain in several particulars.

The court overruled the demurrers and motion, over the separate objection and exception of appellant, as well as McConnell.

Appellant then filed a separate answer, denying that it ever sold any cane seed directly-or indirectly to -appellee, but that it sold the seed to J. L. McConnell.

J. L. McConnell filed a separate answer, denying that he sold the seed to appellee, and alleging that, in telephoning to appellant for the seed, he acted in the capacity of agent for appellee.

The cause was submitted to a jury upon the pleadings, the testimony introduced by the parties, and the instructions of the court, which resulted in a verdict and consequent judgment for $205.50 in favor of appellee, from which is this appeal.

Appellant first contends for a reversal of the judgment because the court overruled its demurrer and motion to strike. If the court committed errors in overruling these pleadings, which it is unnecessary to determine, appellant waived them by pleading over. It did not stand upon its demurrer and motion, but filed a separate answer, joining issue upon the material allegations in the complaint, and proceeded to a trial of the cause, thus abandoning its demurrer and motion. Jarrett v. Wilson, 1 Ark. 137; McLaughlin v. Hutchins, 3 Ark. 207; Tatum v. Tatum, 19 Ark. 195.

Appellant next contends for a reversal of the judgment upon the alleged ground that the undisputed evidence showed that there was no privity of contract between the appellee and appellant, and,-for that reason, claims that appellee was precluded from any benefit under the implied warranty growing out of the -sale of said seed. "We cannot agree with learned counsel for appellant in Ms assumption that the undisputed evidence . showed that appellant sold the seed to J. L. McConnell and not to appellee.

J. L. McConnell testified, in substance, that he called appellant over the telephone, and, after ascertaining that it had Honey Drip cane seed for sale, told it that a man was present who wanted a half bushel, and to put that much aside for him, which it agreed to do; that he accepted pay for same, and had the truck bring the seed out two days later and send same to appellee.

Appellee testified that he requested J. L. McConnell to call up Fayetteville and see if he could get Honey Drip sorghum seed for him; that McConnell called appellant, and told it that a man was there who wanted Honey Drip cane seed to make sorghum, and, when informed that it had such seed, instructed it to hold a half bushel for appellee.

This was testimony of a substantial nature tending to show that McConnell acted as purchasing ■ agent for appellee in securing the seed, so it was not error to deny appellant’s request for an instructed verdict.

The opposing theories of appellant and J. L. McConnell were submitted to the jury in carefully worded instructions, and the jury found the issues against appellant upon conflicting testimony. The verdict is conclusive against appellant, because supported by some substantial evidence.

Appellant’s next contention for a reversal of the judgment is that the court erred in refusing to give 'appellant’s requested instruction No. 2, which is as follows:

“In ascertaining whether or not the defendant Farmers’ Exchange sold the seed in question direct to McConnell, or McConnell & Cravens, you are instructed that, if you find from the evidence that said- seed was sold on a written order and by a written bill to said purchaser, then in this event you will not consider any oral evidence introduced in this case which tends to contradict, vary, or add to or take from such writings.”

The -undisputed testimony in the case shows that the seed was sold over the telephone on the 27th day of May, and that same was put up and set aside on that day, and that the order referred to in the instruction was a written order, given to the truck-driver for the seed, who called at appellant’s store and got same on the 29th day of May, two days after the sale had been completed. To have given this instruction would have been tantamount to eliminating from the consideration of the jury the telephone conversation by which the sale and purchase of the seed was consummated.

The next and last contention of appellant for a reversal of the judgment is that the court erred in refusing to give its requested instruction No. 4, which is as' follows:

“You are instructed that, if you find from the evidence that the defendant Farmers’ Exchange, in the ordinary course of business, received an order from the defendant McConnell, or McConnell & Cravens, for the seed in question, and that said defendant Farmers’ Exchange, in compliance with said order, sold, hilled and delivered to said McConnell, or McConnell & Cravens, and said McConnell, or McConnell & Cravens, paid defendant Farmers ’ Exchange for said seed in the ordinary course of business, your verdict miist be for the said defendant Farmers’ Exchange.”

If this instruction had been given, it would have prevented the jury from considering and determining J. L. McConnell’s theory of the case, to the effect that he was acting as agent for appellee in ordering the seed. This was the real issue in the case as between appellant and J. L. McConnell, and it would have been improper to take this issue from the jury, in view of the fact that the testimony responsive to this issue was conflicting.

No error appearing, the judgment is affirmed.


text:
    Hutson v. State use of Hempstead County.
    Opinion delivered November 1, 1926.
    1. ■ Judges — civil liability. — A county judge is not civilly Háble to the county for fraudulently allowing'claims within the jurisdiction conferred by Crawford & Moses’ Dig., § 2279.
    2. "Counties — allowance of claims. — County courts act judicially in allowance or disallowance of claims against the county.
    3. Judges — civil liability. — So far as civil liability is concerned, no distinction is drawn between the acts of judicial officers which are mistakes and errors committed in good faith and those acts which are committed willfully, knowingly and corruptly.
    Appeal from Hempstead Circuit Court; J. H. MoGollum, Judge;
    reversed.
    O. A. Graves, U. A. Gentry, and Shaver, Shaver <& Williams, for appellant.

      Dexter Bush, Luke F. Monroe and Steve Garrigan, for appellee.
   Humphreys, J.

This suit was instituted by appellee against appellant- to recover $2,510.33 for willfully, knowingly and corruptly allowing a claim for jail cells' to his alleged co-conspirator, A. F. Pickett, while acting-in his official capacity as judge of the county court of Hempstead County, instead of making- the allowance to E. T. Barnum Iron Works, a corporation, that furnished the cells to said county, under a written contract signed “Hempstead County, Owner, by Wash Hutson, County Judge,” and approved by A. F. Pickett. The complaint is very long, but the gist is set'out in appellee ’s- brief as follows :

■ “The complaint alleges, among other things, that Wash Hutson, without first advertising for the work of the ■ installing of the jail cells, negligently, carelessly, recklessly, indifferently, unlawfully, and willfully contracted with his co-defendant,' A. F. Pickett, to do his work; that Wash Hutson negligently, carelessly, recklessly, indifferently, unlawfully and willfully contracted and agreed to pay the said A. F. Pickett a large price for said work; that Wash Hutson negligently, carelessly, recklessly, indifferently, unlawfully and willfully, and with full knowledge -and understanding of the exorbitant and unjust amount of the claim, examined and allowed to his co-defendant, A. F. Pickett, payment on said' cages and for said work; that Wash Hutson at the .time knew and had positive affirmative knowledge of the fact that Hempstead County, acting through him, Wash Hutson, county judge, had purchased direct from E. T. Barnum Iron Works the cells'and cages, under written contract dated December 5, 1921; that Wash Hutson, with direct and positive knowledge at the.time, knew that his co-defendant, A. F. Pickett, had' not furnished said cells and cages to Hempstead County, Arkansas, aiid had no right, title, or interest to the money for same, which belonged solely to the E. T., Barnum Iron Works of Detroit, Michigan, negligently, carelessly, 'recklessly, indifferently, unlawfully and willfully had two vouchers issued for said claim to A. F. Pickett at the time, one' iii the sum of $800 and one in the sum of $3,000; that fraud was practiced on Hempstead County by the defendant, Wash Hutson, county judge of Hempstead County at the time, in colluding, conspiring and agreeing with his co-defendant, A. F. Pickett, to allow said claim and order warrants issued for the same, which warrants viere appropriated by the said A. F. Pickett; that the said claim or claims of the said A. F. Pickett were allowed by the defendant, Wash Hutson, county judge, with full knowledge and understanding at the time that the defendant, A. F. Pickett, had no right, title, or. claim to said amounts, and that said Hempstead County was not liable to.him for said amounts.” .

Appellant filed a demurrer to the complaint, and, when same was overruled over his objection and exception, he filed a separate answer, controverting the allegations of the complaint.

The cause was submitted upon the pleadings, the"' testimony adduced by the parties, and the instructions of the court, which resulted in á- verdict and a consequent judgment in favor of appellee for $2,510, from which is this appeal.

Appellant requested the court to peremptorily instruct a verdict for him, which request was denied, over his objection and exception, and the cause was sent to the jury under instructions to the effect that appellee was civilly liable if he allowed the claim filed by Pickett, willfully, knowingly, and corruptly, with intent to defraud Hempstead County, while acting in his official capacity.

The testimony introduced by appellee tended to support the allegations of the complaint, and there is substantial evidence in the record in support of the verdict, to the effect that appellant,, while acting in his official capacity, willfully, knowingly and corruptly allowed the claim to his co-conspirator, A. F. Pickett, which rightfully belonged to the E. T. Barnum Iron Works, with intent to defraud Hempstead County. After the claim had been allowed, collected and converted to the use of A. F. Pickett, the E. T. Barnum Iron Works sued Hemp-stead County for the price of the jail cells appellant had bought directly from it for said county, and recovered $2,510, which was afterwards paid by the county. In other words, the county was compelled to pay for the jail cells twice, through the action of appellant in willfully, knowingly and corruptly allowing said claim to his co-conspirator, A. F. Pickett.

Appellant contends for a reversal of the judgment because, under the law, a judicial officer is exempt from civil liability so long as he acts within his jurisdiction and in his official capacity.

There can be no question in this case that appellant was acting within his jurisdiction in the allowance of the claim filed by A. F. Pickett. Section 2279, C. & M. Digest.

It is also the rule that county courts act judicially in the allowance of claims filed against the county. State use of Izard County v. Hinkle, 37 Ark. 532; Monroe County v. Brown, 118 Ark. 524, 177 S. W. 40; Johnson County v. Bost, 139 Ark. 35, 213 S. W. 388; Echols v. Lincoln, 154 Ark. 142, 241 S. W. 881.

Reverting to the contention of appellant, that judicial officers are exempt from civil liability when acting within their jurisdiction and judicially, it seems that the rule contended for is universal. 15- R. C. L., page 543, par. 31.

Cooley on Torts, at page 408, says: “Whenever the State confers judicial powers upon an individual, it confers them with full immunity from a private suit; in effect the State says to the officer that those duties are confided to his judgment; that he is to exercise his judgment fully, freely, and without favor, and he may exercise it without fear; that the duties concern individuals, but they concern more especially the welfare of the State, and the peace and happiness of society; that, if he shall fail in a faithful discharge of them, he shall be called to account as a criminal; but that, in order that he may not be annoyed, disturbed and impeded in the performance of these high functions, a dissatisfied individual shall not be sufficient to call in question his official action in a suit for damages. This is what the State, speaking by the mouth of the common law, says to the judicial officer.”

Our own court, in the early case of Trammell v. Town of Russellville, 34 Ark. 109, states: “It is a universally recognized principle that one acting judicially in á matter within the scope of his jurisdiction is not liable in an action for his conduct.”

In the recent case of Casey v. Casey, 142 Ark. 246, 218 S. W. 678, our court uses the following language: “The question of the civil liability of a judicial officer for a false arrest or for false imprisonment has been much discussed, both by courts and text-writers. On the one hand, the inviolability of personal liberty except under the forms of the law is involved, and, on the other, the dignity and independence of the judiciary should be considered. It has been frequently said that the general rule applicable to all judicial officers is that, where the officer has jurisdiction of the person and of the subject-matter, he is exempt from civil liability for false imprisonment, so long as he acts within his jurisdiction and in his judicial capacity.”

No distinction is drawn in any of the authorities between the acts of judicial officers which are mistakes and errors committed in good faith, and acts committed willfully, knowingly and corruptly, so far as civil liability is concerned.

. Appellee complains that the remedy open to taxpayers of becoming parti'es and contesting claims is not effective, and that on this account judicial officers should respond in damages for their willful and corrupt misconduct.. Such officers are criminally responsible for their corrupt acts, so a county is not without effectual remedy.

On account of the error indicated the .judgment is reversed* and the complaint is dismissed.