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

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

      J. G. Waskom-, for appellee.
   Butler, J.

This is an appeal from a verdict and judgment in favor of the plaintiffs, in the two cases which were consolidated for the purpose of trial. The damage for which appellees sued was for the killing of a number of mules belonging to them caused by the operation of appellant’s train.

The occurrence out of which comes this litigation happened about eight o’clock p. m. on the 23d of August, 1930, on a straight stretch of appellant’s line of railway a short distance south of where the railway crossed the floodway of Drainage District No. 7 in Poinsett County, Arkansas, and not near or at a crossing. The track at this point ran from north to south on a long bridge or trestle and across the floodway, which was from a half to a mile wide. To the south of the floodway and nearb}’ was an inclosure in which about 100 head of mules were accustomed to pasture. On the date aforesaid a number of these mules had got out, and were grazing on the dump and tracks of the railway. The country through which the railway ran at this point was low, and the dump was elevated about fifteen or twenty feet above the level of the surrounding land. The southbound passenger train of the appellant passed over the floodway, and a short distance beyond ran into and killed ten mules, the property of the appellees, and about half a mile further south killed another mule, not involved in this suit, belonging to some other person. At the time of this happening the country was experiencing a severe and protracted drouth, and, while the land in that vicinity was. naturally low and swampy, it was very dry at this time, and there was no water about except a small quantity in the two canals which were cut down the floodway. The mules were killed on Friday, and their loss was not discovered by the appellees until a day or two afterward, when evidence of where they had been killed was found. The mules had been buried by the side of the track, and they were dug up for purposes of identification. An examination was made along the line of railroad from this point back toward the floodway, and it was found that south of the floodway a short but undetermined distance the tracks of the mules were seen, and from the distance between these tracks and the nature of the same it was concluded that they had started running south down the railroad, and had gone in this manner a distance of approximately 200 yards before reaching the place where they were killed. All of these facts are undisputed.

The engineer and fireman in charge of the appellant’s train, while admitting that their train killed the mules, testified that it was impossible to avoid the injury, because, as the train approached the floodway from ■the north, a dense cloud hung over it which proved to be about 100 to 200 feet through, and so dense that the headlight of the locomotive would not penetrate a sufficient distance ahead to give a view of an object on the track in time to stop the train or to slacken its speed in order to avoid injury; that their train was traveling at the rate of fifty miles per hour, and they entered the cloud without slackening speed, and, as they passed through, they discovered the mules on the track but they were then so close that they could not avoid running upon them. They were unable to say of what the cloud was composed— whether smoke or fog — but the engineer stated that he thought it was a little of both. Both the engineer and the fireman testified that they were keeping a constant lookout ahead, but did not say that they gave any signals when they entered, or passed through the zone of cloud, or when they saw the mules as they emerged from it. The engineer also testified that he had observed fog and smoke several times before on that part of his run, but was unable to recall having seen it at this particular point before.

There was testimony introduced on behalf of the appellees tending to show that ther.e had been no smoke recently in that vicinity, and no indications of recent fires in the woods.

Basing their contentions on the testimony of the fireman and engineer, counsel for the appellant insist that the instructions given by the court were abstract and did not present the issues in the case, and that the modification made by the court to instruction No. 4 requested by the appellant and the giving of that instruction as modified was error. They chiefly contend that there should have been a directed verdict in favor of the appellant as requested, because, as they say, the undisputed evidence affirmatively shows that the killing of the mules was an unavoidable casualty, and that the presumption of negiigence raised by the admission that the mules were killed by the operation of appellant’s train was overcome by the testimony of the engineer and fireman, which was undisputed, and which established due care in the operation of the train. Upon the last contention depends the question of the correctness or error of the instructions as those given do not depart from the principles applicable, where the statutory presumption of negligence is not overcome by direct testimony probable in itself and not in conflict with other circumstances in testimony.

"While freely conceding that, where injury is shown to have been caused by the operation of its train, a prima facie case of negligence is established which casts upon its owner the burden of proving by a preponderance of the evidence that it was free from negligence, appellant insists that, as no one saw the accident but the engineer and the fireman, their conclusion that the injury was unavoidable and the facts testified to by them must be accepted, the presumption of negligence is at an end, and the burden of showing that there was no negligence in the operation of the train is discharged.

This contention cannot be sustained. The rule that the testimony of operatives in charge of a train may not be arbitrarily disregarded by the jury does not impose upon it the duty of accepting a statement of fact as true merely because so testified. For the jury to be bound to accept such evidence as true, it must be consistent with the other testimony in the, case, reasonable in its nature, and uncontradicted in its essential points. St. L. I. M. & S. R. Co. v. Landers, 67 Ark. 514, 55 S. W. 940; St. L.-S. F. R. Co. v. Minor, 85 Ark. 121, 107 S. W. 171; K. C. So. Ry. Co. v. Simmons, 140 Ark. 80, 215 S. W. 167.

It is elementary that it is the province of the jury to pass upon the credibility of the witnesses and to determine the weight to be given their testimony. In doing this it is the duty of the jurors to consider the testimony of a witness in the light of all' the evidence, whether direct or circumstantial, and to apply to any statement made their common sense and experience. Railway Co. v. Lewis, 60 Ark. 409, 30 S. W. 765, 1135. The engineer stated that the cloud covered the track for a distance of from 100 to 200 feet, and that it was over the floodway. It is also in testimony that the mules were south of this floodway, and their tracks showed that they were running, and that they had run for perhaps 200 yards south. It is reasonable, therefore, to conclude that, if the zone of cloud existed, the mules were never within it, and injury to them might have been prevented by the exercise of ordinary care. Then, too, the jury had before it testimony as to the climatic conditions then prevailing, and that the woods had not been on fire for some time before the date of the accident, and that no one had observed any smoke in that vicinity at or about that time. It was therefore not unreasonable for the jury to infer that no fog or cloud smoke existed, as no conditions prevailed from which the cloud might be expected to have been formed, and that the killing of the animals was the result of the failure to keep the lookout required by the statute. K. C. Sou. Ry. Co. v. McCrossen, 140 Ark. 68, 215 S. W. 161.

There was further evidence showing that another mule was killed a considerable distance further south, and that the speed of the train was not slackened nor any signal given upon entering the cloud, nor any testimony as to any effort made by signal or otherwise to avoid the injury to the animals; the engineer and fireman merely contenting themselves with the statement that, when the mules were first seen, the train was so near that it was impossible to keep from striking them.

When all the evidence is considered, we are of the opinion that it was sufficient to fix liability on the appellant. Counsel call our attention to the statement made in 52 C. J. at page 23, to the effect that a number of courts hold that a railroad is liable only for gross and wanton or wilful negligence where the operation of its train causes an injury to animals trespassing upon its tracks and that other courts hold that liability attaches only for injuries recklessly, wantonly, wilfully or intentionally inflicted. This lias never been tbe law in tbis State. Under our statutes and decisions a railroad company owes tlie duty to ,tbe owner of animals straying upon its tracks to use ordinary or reasonable care to avoid injuring them, after they are discovered or might by ordinary care have been discovered by keeping tbe proper lookout. Section 8568, Crawford & Moses’ Digest; L. R. & Ft. S. Ry. v. Holland, 40 Ark. 336.

Instruction No. 4 requested by tbe appellant limited tbe duty of tbe railway company to take precautions to avoid injury to animals after their peril was discovered. Tbe modification extended that duty to tbe peril which could have been discovered by tbe exercise of ordinary care. Tbe instruction as modified was a more1 correct statement of tbe law than as requested, and there was no error in tbe modification.

Since there was substantial testimony warranting tbe submission of tbe case of tbe jury, tbe instructions given by tbe court were not abstract, as contended by counsel, and were a fair statement of tbe principles applicable to tbe testimony. Tbe record presents no reversible error, and the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: Butler, J.

license: Public Domain

text:
    Fort Smith Traction Company v. Oliver.
    Opinion delivered February 22, 1932.

      Rill, Fitzlmgh >& Brizzolara, for appellant.

      Pattain Agee, for appellee.
   Butler, J.

This is an appeal from the Crawford Circuit Court, in which a judgment was rendered in favor of Charles Oliver against the Fort Smith Traction Company for damages for personal injury in the sum of $3,500.

The material facts that are undisputed are as follows: Appellee, Charles Oliver, boarded appellant’s street car in the city of Van Burén to go to Fort Smith in the early evening of February 15, 1931. The track of appellant’s street railway system passes from the city of Van Burén in a southerly direction across the Arkansas River over a public bridge. As the street car on which appellee was riding as a passenger was passing across the bridge from north to south and when it was within perhaps one hundred and fifty feet of the south end of the bridge, an automobile traveling from the opposite direction collided head-on with the street car in such manner that the street car and the automobile became fastened together. There were several persons in the automobile, some of whom were injured. On either side of the bridge was a walkway for pedestrians, who, on entering the bridge, would turn to their right — those traveling from south to north would travel along the east walkway and those from north to south along the west walkway. At the point where the street car and the automobile collided there was a public gas pipe about 18 inches in diameter which ran parallel with the street car track a sufficient distance from the track to give a space of about 18 inches between the side of a street car and the pipe. On the east side of the bridge at the north end was a telephone booth. In attempting to go from the street car back to the telephone booth to call for an ambulance the appellee was run down and injured by an automobile which was passing along the bridge from Fort Smith to Van Burén.

The theory on which the appellee based his right of recovery against the appellant was that he left the street car at the request of the motorman, who told him where the telephone was located and requested that he go to that place and from there call an ambulance; that in attempting to comply with the request of the motorman appellee descended through the west door at the front of the street car down the steps and into the space between the gas pipe and the .street car and went north between the pipe line and the car to the back or north end of the oar. When he reached this point he started across the car track toward the east for the purpose of getting on the walkway going on north to the telephone booth. As he was passing behind the street car, it made a sudden and unexpected backward movement, and, in an endeavor to avoid being injured by it, he jumped from behind the street car on to that part of the bridge used for the passage of automobiles and was struck by an automobile driven by one Bonnie Ruth Hill, and injured.

As to what occurred from the time of the collision relating to the request made by the motorman of the appellant to appellee, the manner in which he undertook to obey that request, and the movement of the street car thereafter and just preceding the injury, the testimony is in direct conflict. That upon the part of the appellee was to the effect that the motorman made the request directly to the appellee to go to the telephone; that in complying with this request he went in the direction alleged and was injured by the negligent backward movement of the street car which caused him to spring from behind the street car in front of the automobile. This, in effect, was the testimony of the appellee himself, which was corroborated by the testimony of Randolph Bryant, who stated that he was on the bridge on the-right-hand side in an automobile going across the bridge to Fort Smith; that he stopped when he got opposite the point of collision between the street car and the automobile and observed a man get out of the street car on the same side witness was on and go down the side of the car toward Van Burén; that, as the man went around behind the street car, it “jerked back’ ’ and moved five or six feet according to witness’ judgment, and the appellee was struck by an automobile. Witness was unable to state how far from the rear of the street oar appellee was when struck, but stated that he was close to it.

The motorman denied telling the appellee to go back to the telephone, but stated that he made a request of the passengers generally that some one of them do this; that he did not open the oar to let any one get out, but that the door had been opened by the jar when the collision occurred; that when he asked that some one go to the telephone he had his back to the passengers and did not look to see if any one went or not, but that in about a minute from the time he made the request the appellee suffered the injury complained of; that from the time of the collision until after the injury to the appellee there was no movement made by the street car. He and other witnesses for the appellant stated that it would have been impossible for the street car to move because the brakes were set, and the appliance for releasing them had been broken. The motorman further testified that, when the wrecker arrived to get the automobile, he made an attempt to move the street car, but could not do so, and it was not moved until a mechanic came and released the brakes about 45 minutes after the appellee was hurt.

There was some testimony to the effect that the appellee was not struck while close to the rear of the street car, as testified to by himself and Bryant, but at a point from GO to 150 feet north of the same.

At the conclusion of the evidence the appellant moved the court for a directed verdict in its favor, and now argues that it was error to refuse to so instruct the jury; that the evidence fails to establish actionable negligence on the part of the motorman as the proximate cause of the accident, and that the injury occurred to Ihe appellee because of negligence on his part contributing to its happening, and that for these reasons the judgment here should be reversed and the case dismissed.

Appellant further contends that the court erred in giving instruction No. 1 on behalf of the plaintiff, because that instruction attempted to submit the case to the jury on the theory that there was an emergency. We have examined the instructions and have reached the conclusion that they state the law applicable to the facts in a light as favorable as the appellant could ask. In our opinion it is quite immaterial whether or not, for the time being, the relation of master and servant existed between the appellant and the appellee by reason of an emergency and the authority given the appellee to go to the telephone. In this case liability of the appellant does not depend upon that relationship, but on whether or not, after the motorman had requested a passenger to go to the telephone informing the passengers where the telephone was, he made -a sudden backward movement of the car which he ought to have foreseen might result in injury to the passenger obeying his request. Since the jury, who were the sole judges of the credibility of the witnesses, have accepted the testimony on the part of the appellee as true, we must consider and weigh that evidence in the light most favorable to the appellee and indulge all reasonable inferences arising from it in his favor.

The law applicable is contained in instructions Nos. 6, 7 and 8 given by the court at the request of the appellant. These instructions, in effect, told the jury that some negligent act on the part of the motorman must have been shown which he ought to have anticipated, might occasion an injury, and if the motorman backed the oar after appellee started to the telephone he would not be guilty of negligence unless he should have foreseen that an injury might result as the consequence of his act. Boiled down, instruction No. 1 merely states the converse of these instructions. Therefore, if the reasonable inference can be drawn from the testimony accepted by the jury that the motorman knew that the appellee had started back to the telephone and that a sudden backward movement of the street car might cause injury to him, then this act upon the part of the motorman was a negligent one. The motorman knew where the telephone was located, and that he had directed the appellee where to find it. The reasonable inference is that he knew that appellee would take the usual and most direct route to that point, that, in order to do so, appellee would necessarily have to pass behind the street car, and that he ought to have foreseen that a backward movement of the car might result in injury to the appellee. It was a very short period of time, according to the testimony of the motorman himself, from the time he made the request that the ambulance be called by telephone until the appellee was injured. He estimated it at about a minute and the jury were justified in concluding that the movement of the street car under these circumstances was negligence.

The question of the contributory negligence of the appellee was submitted to the jury, and we are of the opinion that they were justified in finding that under the circumstances he was acting with ordinary care. By the backward movement of the street car he was confronted with an unexpected danger, and he could not be held to that degree of deliberate care which otherwise might have been required and cannot be held to be guilty of negligence per se because he chose the way of escaping danger by a method which placed him in the way of another where his conduct would not have been obviously unnecessary, unheedful and dangerous. Jacks v. Reves, 78 Ark. 426, 95 S. W. 781; Woodson v. Prescott, 91 Ark. 388, 121 S. W. 273.

Although appellant’s street car did not strike the appellee, its backward movement was the proximate cause of the injury, even though affected directly by another concurring cause — i. e., the automobile of Bonnie Ruth Hill. Bona v. S. R. Thomas Auto Co., 137 Ark. 217, 208 S. W. 306; C. R. I. & P. Ry. Co. v. Jenkins, 183 Ark. 1071, 40 S. W. (2d) 439.

The record presents no prejudicial error, and, as there is substantial testimony to support the finding of the jury, the judgment of the trial court is affirmed.


author: Hart, C. J.,

text:
    Doyle v. American Loan Co.
    Opinion delivered February 29, 1932.

      Howard H. Hasting, for appellant.

      J. Roy Howard and Fred M. Pickens, for appellee.
   Hart, C. J.,

(after stating the facts). Under our Constitution and laws, all contracts for a greater rate of interest than ten per cent, per annum shall be void as to principal and interest, and the G-eneral Assembly shall prohibit the same by law. Constitution of 1874, article 19, § 13; Crawford & Moses’ Digest, § 7362.

Counsel for the plaintiff seek to uphold the judgment under the well settled principle that where the promise to pay a sum above legal interest depends upon a contingency, or where for any cause the principal sum loaned is put in hazard, the loan is not usurious. Reeve v. Ladies’ Building Association, 56 Ark. 316, 19 S. W. 917; 18 L. R. A. 129; and 39 Cyc. 944.

It is equally well settled, however, that a merely colorable contingency or hazard will not prevent excessive interest charges from.being usurious. The record shows usury in the present case unless the generally recognized rule above announced should be followed. We are of the opinion, however, that the obligation sued on and the stipulation in the record that the plaintiff is not an insurance company and has not qualified to act as such under the laws of the State of Arkansas renders the contract a mere shift or device to escape our usury laws.

The Supreme Court of Minnesota has held a contract, similar in all essential respects, to be a loan of money with an agreement for perpetual forbearance in case of death, and said that the contingency set up in the contract was a mere contrivance to cover usury. Mr. Justice Mitchell, who delivered the opinion of the court, said:

“The peculiar and unusual provisions of this contract themselves constitute intrinsic evidence sufficient to justify the finding of the existence of every element of usury, vis., that there was a loan, that the money was to be returned at all events, and that more than lawful interest was stipulated to be paid for the use of it. The only one of these which could be seriously claimed to be lacking was that the money was not to be paid at all events, but only upon a contingency, to-wit, the continuance of the life of McLachlan; but the facts warrant the inference that this contingency was not bona fide, but was itself a mere contrivance to cover usury. The mere fact that the contract has the form of a contingency will not exempt it from the scrutiny of the court, which is bound to exercise its judgment in determining whether the contingency be a real one, or a mere shift and device to cover usury.” Missouri, Kansas & Texas Trust Company v. McLachlan, 59 Minn. 468, 61 N. W. 351.

A similar view was expressed in Matthews v. Missouri, Kansas & Texas Trust Company, 69 Minn. 318, 72 N. W. 121. Subsequently, the Supreme Court of the United States upon appeal from the Federal courts in the State of Minnesota, sustained this principle and said (172 U. S. 351, 19 S. Ct. 179) :

“The precise character of the contract between the present parties is not clear. It has some of the features of a loan of money; in other respects, it resembles a contract of life insurance. But our examination of its various provisions and their legal import has led us to accept the conclusion of the courts below, that the scheme embodied in the application, note and mortgage was merely a colorable device to cover usury. ’ ’

Continuing, the Supreme Court of the United States expressed approval of the quotation made from the Supreme Court of Minnesota.

We are of the opinion that the principles announced in these cases are sound and should control here. Therefore, we think the transaction was merely a colorable device to cover usury and should not be upheld. It follows that the judgment must be reversed,’’and the plaintiff’s cause of action will be dismissed here.


text:
    Clark-McWilliams Coal Company v. Ward.
    Opinion delivered February 29, 1932.

      Brock <& Williams and Cravens S Cravens, for appellant.

      R. W. Robins and G. O. Patterson, for appellee.
   Hart, C. J.,

(after stating the facts). Counsel for appellees seek to uphold the decree on the ground that the case calls for an application of the established rule in this State that a court of equity will treat a deed, absolute in form, as a mortgage whenever executed for a loan of money or as security for a debt. . The general doctrine prevails in this State that the grantor may show that a deed absolute on its face was only intended to be a security for the payment of a debt and thus is a mortgage. Since the equity upon which the court acts arises from the real character of the transaction, any evidence, written or oral, tending to show this, is admissible. If there is a debt existing with a loan of money in advance, and the conveyance was intended by the parties to secure its payment, equity will regard and treat an absolute deed as a mortgage. However, the presumption arises that the instrument is what it purports to be; and, to establish its character as a mortgage, the evidence must be clear, unequivocal, and convincing*. By this is meant that the evidence tending to show that the transaction was intended as a security for debt, and thus to be a mortgage, must be sufficient to satisfy every reasonable mind without hesitation.

In the early case of Scott v. Henry, 13 Ark. 112, the court said: “And, for the purpose of ascertaining the true intention of the parties, it is a well established rule, that the courts will not be limited to the terms of the written contract, but will consider all the circumstances connected with it; such as the circumstances of the parties, the property conveyed, its value, the price paid for it, defeasances, verbal or written, as well as the acts and declarations of the parties and will decide upon the contract and the circumstances taken together.” In that case, the court said that under the facts proved, although the evidence was not absolutely conclusive, still, under the uniform rules of courts of chancery, the court must treat the contract as a mortgage. This rule has been steadily adhered to ever since and applied by the court according to the particular facts and circumstances of each case. Wimberly v. Scroggins, 128 Ark. 67, 193 S. W. 264; Hays v. Emerson, 75 Ark. 551, 87 S. W. 1027; Rushton v. McIllvene, 88 Ark. 299, 114 S. W. 709; Gates v. McPeace, 106 Ark. 583, 153 S. W. 797; Snell v. White, 132 Ark. 349, 200 S. W. 1023; and Kerby v. Feild, 183 Ark. 714, 38 S. W. (2d) 308.

However, every case must, of necessity, depend upon its peculiar circumstances. No fixed rule can be laid down by which it. can be ascertained with mathematical certainty whether the proof has met the test above described. In the very nature of things, no decisive standard can be laid down to determine the sufficiency of the evidence. The reason is that the facts and circumstances stand in different relation to each other in separate cases, and what might satisfy the mind standing in á certain relation to - surrounding facts and circumstances might not be clear and decisive proof in another cáse. Like any other fact to be proved by evidence which satisfies the mind of its truth, the proof may be inferred from the attendant circumstances and often can not be proved in another .way.

In the present case, it is a significant fact that there was no contract for a sale and resale of the property. Ward was already indebted to N. E. Clark and H. G-. Clark in the sum of $15,000, principal, and $900, interest, which he had secured by a mortgage on the same property, executed to them. on the 31st day of March, 1928, due three years after date. As further security, he had also given them a transfer or assignment of whatever dividends or profits might be due him. There was no satisfaction of the mortgage indebtedness,, and he continued to be indebted to them after the sale in so far as the written record discloses. The Clarks retained the mortgage, and never at any time offered to satisfy it. Thus, so far as the written record shows, Ward con-tinued to be indebted to them after the conveyance to H. Gr. Clark and N. R. Clark on the mortgage indebtedness. Upon the payment of his mortgage indebtedness, he had a right to have the mortgage satisfied, bnt, until that was- done, he continued to be indebted to them after the sale. Herman v. May, 40 Ark. 146; Brewer v. Yancy, 159 Ark. 256, 251 S. W. 677; and Matthews v. Stevens, 163 Ark. 157, 259 S. W. 736.

According to the testimony of Ward, there was a positive understanding between him and H. Gr. Clark that the deed to his interest in the mine property in the corporation and his assignment of his dividends or profits therein was merely intended to secure his indebtedness, and there was no intention that the sale should be an absolute one. It was understood at the time that there was an amount coming to him in the way of profits for the year 1929 and this amounted to more than the amount of his stock assessment in the sum of $4,500. A subsequent audit of the books showed this to be true; for in about a month after the transaction in question, H. Gr. Clark paid himself the sum of $5,852.83, as a dividend on Ward’s interest in the corporation for the year 1929. Thus, he got $1,352.83 more out of Ward’s dividend for the year 1929 than it took to pay the stock assessment of Ward in the sum of $4,500. This tended strongly to corroborate Ward in his version of the transaction. It is true that Ward had already pledged these dividends to secure the payment of his mortgage indebtedness, but the property embraced in the mortgage was ample for that purpose.

Five persons, who testified that they were familiar with the value of the coal mine in question as well as with the value of other coal mines in that vicinity, testified that the property in question was worth from $120,000 to $175,000. According to their estimate, the one-third interest of Ward was -more than twice the consideration embraced in his deed to H. Gr. Clark. As above stated, in about a month after this, more than an amount sufficient to pay his stock assessment of $4,500 was collected as Ms share of the dividends in the corporation which had already been earned at the time the deed was executed on the 31st day of January, 1930. The witnesses who testified as to the value of the coal mine gave detailed information as to its location and drainage and other matters which add to its value.

It is true that H. Gr. Clark and N. it. Clark flatly contradict the testimony of Ward, and it is earnestly insisted that their testimony is entitled to a(s much credence as the testimony of Ward. Be that as it may, the testimony of Ward is strongly corroborated by the surrounding circumstances. These circumstances are stronger than the words of men and point unerringly to the fact that the transaction was intended between the parties to be a security merely for debt and not an absolute conveyance of the property.

Each side claims that it is corroborated by the testimony of Pufahl and Reynolds, but we do not consider their testimony of much value to either side. Each of them at first stated that he thought the transaction was an absolute sale, but his opinion was based upon what the parties said. They stated that later on during the conference, after Clark and Ward had retired for private conversation, they concluded that the transaction was not intended to be an absolute sale of the property. This view of the matter was merely conjecture from what they saw and heard. It is of but little value in arriving at the real intent of the parties.

The purpose of allowing oral testimony in cases of this sort is to prevent fraud and oppression in cases where the deed or other conveyance was obtained by advantage taken of the grantor in the deed. Such course is more apt to obtain the ends of justice.

No useful purpose can be served by entering into a lengthy and detailed discussion of the evidence. It is always embarrassing to judges to decide questions of fact between old friends and persons apparently of equal standing* in the community, but our duty is to apply the principles of law above announced to the testimony in the ease viewed in the light of the surrounding circumstances; and, when that is done, it seems to us that the circumstances attending this transaction point unequivocally to the fact that the transaction was not intended to be an absolute sale of the property, but was to be a mortgage to secure the indebtedness owed by Ward to the Clarks.

In addition to what we have said, it may be stated that this court has uniformly held upon appeal that the findings of fact made by a chancery court will not be disturbed unless they are against the preponderance of the evidence. Here the chancery court made an' express finding in favor of Ward in the application of the well-settled rule that the testimony in his favor must be clear, unequivocal, and convincing, and we cannot say that his finding and application of the well known principles of law stated above to the facts of this case is against the weight of the evidence.

We now come to the question of excess salaries, and on this point the finding of the chancellor was again in favor of Ward. It will be noted that an accounting by the auditors showed the profits made by the partnership when it came into existence during the first part of the year 1916 on down through the year 1927. The corporation was organized in 1922. Great profits were made during all of this time, and a resolution had been entered of record when the corporation came into existence, continuing the managing officers of the coal mine at the same salary they had when it was a partnership. No good reason is shown why these officers should be so* suddenly advanced in salary during the years 1929' and 19301. On the other hand, according to the testimony, the business was not so profitable during these years, and it would seem that there was every reason why the salaries of the officers and the expenses allowed them should not be increased. They had exclusive management of- the affairs of the corporation, and Ward and McWilliams knew nothing* at all about it. The whole relation of the parties during the existence of the partnership as well as of the corporation show that the Clarks were,the actual managers, and they stood in the relation of trustees'to the other stockholders. Nedry v. Vaile, 109 Ark. 584, 160 S. W. 880; and Horner v. New South Oil Mill Company, 130 Ark. 551, 197 S. W. 1163.

It was the duty of the directors to manage the corporate property for the benefit of the stockholders, just as it was the duty of the partners to manage it for the benefit of the other members of the partnership. In the performance of that duty, they were chargeable with the utmost good faith, and it was a breach of trust to the other stockholders for the managing directors to obtain an undue advantage to themselves by way of excess salaries.

Finally, it is insisted that the court erred in making Pat McWilliams a party to the suit. We do not think so. On this branch of the case but little need be said. Pat McWilliams became a party to the suit on the accounting branch of it. He immediately acted with Ward in the matter. He was -entitled to an accounting of the corporate affairs just as much as Ward was entitled to it. Besides this, no prejudice could have resulted to appellants on this account. McWilliams would be concluded by the decree of the court and could maintain no subsequent suit for an accounting. Thus, it will be seen that he was- a proper party if not a necessary one. He had a right to assign and transfer to Ward his part in the undivided profits of the corporation, and Ward could thus use the balance so assigned to him by McWilliams in payment of whatever indebtedness he owed the Clarks.

After a careful consideration of the whole testimony and of the arguments made by counsel in their respective briefs, we are of the opinion that the decree of the chancery court was correct, and it will therefore be affirmed.


author: Smith, J.

text:
    Maxwell v. Mitchell.
    Opinion delivered February 29, 1932.

      Edward Gordon, for appellant.

      E. A. Williams, for appellee.
   Smith, J.

E. E. Mitchell, trading as E. E. Mitchell & Company, obtained a decree foreclosing a vendor’s lien upon 160 acres of land which' he had sold to Johnnie Maxwell, who was dead at the time of the rendition of the decree. Maxwell’s widow and his heirs, who were minors, were defendants in the suit. A receiver had been appointed, who was in possession of the land and had collected the rents.

Pursuant to this decree, this land was sold by the commissioner named for that purpose to Mrs. Maxwell, the widow, for $1,025. The sale was reported to and approved by the court, but Mrs. Maxwell declined to comply with her bid by executing a note and bond as the notice of sale required the purchaser to do.

Thereupon a notice was served upon Mrs. Maxwell by Mitchell which contained the following recital: “You have failed to comply with said bid, by either -making bond or paying cash for same, and will also ask that the lands be resold and if they fail to bring the amount bid by you to-wit: the sum of $1,025, that judgment be given against you for the difference, and that execution issue for said balance, if any, and for all cost.” A formal petition was filed 'by Mitchell in which relief was prayed as indicated in the notice, and a response was filed by Mrs. Maxwell.

In this response Mrs. Maxwell alleged that she had refused to comply with her bid for the reason that, prior to the sale and unknown to her, Mitchell had caused the merchantable timber on the land to be cut and removed, thereby destroying the value of the land for the purpose to which she intended to- devote it.

Testimony was heard to the effect that there was only a limited quantity of merchantable timber on the land, and that its value was only about $50, and Mitchell had credited the decree with that sum. The timber was cut between the time of the rendition of the decree of sale and the sale thereunder, and Mrs. Maxwell testified that she had moved her family from the land, and .did not know the timber had been cut at the time she bid in the land, and that she would not have bid on the land hád she known this fact.

Under the decree of the court, the land was ordered resold, and at the resale Mitchell bid in the land for $700, and, upon the final hearing of Mitchell’s petition and the response thereto, a decree was rendered in his favor against Mrs. Maxwell, from which is this appeal.

By § 4320, Crawford & Moses’ Digest, it is provided that, if any person shall refuse to pay the amount bid for any property struck off to him, the officer making the sale may again sell such property to the highest bidder, and, if any loss shall be occasioned thereby, the officer may recover such loss by motion before the court under whose order the sale was made.

In the case of Fulbright v. Morton, 131 Ark. 492, 199 S. W. 542, it was held that this statute provided a cumulative, and not an exclusive, remedy against the purchaser at a judicial sale who refuses to comply with his bid, and that the selling officer still has the common-law remedy of maintaining an action against the purchaser for the full amount of his bid.

It is insisted that, while two remedies are open against the purchaser at a judicial sale, who refuses to complete his purchase, neither remedy can he pursued by any one except the officer mailing the sale. If this were true, the jurisdiction of the court would not be affected under the facts of this case, for the reason that all persons who would be made parties in such an action were parties to this suit, and the court had expressly retained jurisdiction of the cause for the purpose of making such orders as might appear to be appropriate. The commissioner, who was merely an agent of the court to perform its orders, was, of course, a party, for the reason that his report was before the court and the litigation arose over the action to be taken thereon. The decree of the court thereon would necessarily be conclusive of any right on his part to pursue either the statutory or the common-law remedy against Mrs. Maxwell, who not only became a party by her bid, but was also an original party, and was made a defendant in the proceeding* brought by Mitchell on account of her default in the petition above referred to. All these proceedings were had in the case brought by Mitchell to enforce his lien. We conclude therefore that the relief prayed is not to be denied for the reason that Mitchell proceeded in his own name, instead of that of the commissioner.

Now it is settled law that the rule of caveat emptor applies to judicial sales, and we do not intend by this opinion to impair it. One must know what he buys when he bids at a judicial sale. But it nevertheless appears inequitable to permit Mitchell to recover in this case. The recovery was for his benefit, although we have treated the case as if it had been a suit by the commissioner.

We do not impute to Mitchell any improper conduct or wrongful intention in cutting the timber, and he has credited his judgment with an amount which the court found represented the fair market value of the timber cut and removed. Yet the fact remains that Mitchell had no right to cut the timber, and Mrs. Maxwell did not know that he had done so, and she had the right to assume, when she hid in the land, that he had not done so. To permit him to recover under the facts of this case would be to allow him to profit from- his own wrongful act, especially in view of the fact that he has his land hack at his own price.

The case of Connell v. Savings Bank of Newport, 47 R. I. 60, 129 Atl. 803, 41 A. L. R. 1269, was one in which a house and lot were sold under a mortgage foreclosure sale, under which the purchaser was required to make a cash deposit of ten per cent, of the amount of his bid, which he did. Before the confirmation of the sale, and before possession was delivered to the purchaser, the house was destroyed by fire, and the purchaser -not only refused to pay the balance due on his purchase, but sued to recover the part paid. It was held by the Supreme Court of Ehode Island in that case, to quote the headnote, that, “where purchaser at mortgage foreclosure sale made deposit to be forfeited on failure to pay balance and take deed at time appointed, and before that time cottage on premises was destroyed by fire, purchaser was entitled to refuse deed and recover deposit.”

In the opinion in that case the court quoted from the case of Thompson v. Gould, 20 Pick. (Mass.) 134, as follows: “The only question therefore is, whether the plaintiff or the defendant is to sustain the loss by fire. In respect to the loss of personal property, under the like circumstances, the principle of law is perfectly clear, and well established by all the authorities. When there is an agreement for the sale and purchase of goods and chattels, and after the agreement, and before the sale is completed, the-property is destroyed by casualty, the loss must he borne by the vendor, the property remaining vested in him at the time of its destruction. * * * No reason has been given, nor can be given, why the same principle should not be applied to real estate. The principle in no respect depends on the nature and quality of the property, and there can therefore be no distinction between personal and real estate. * * * The same principle applies to an agreement to purchase a house, as in the present case, the house being casually destroyed before the purchase is completed. Neither party being in [fault, the loss must be borne by the owner of the property.”

The authorities are not uniform on this question, and cases on both sides are cited in the annotated cases of Re Mortgaged Lands of R. L. Sarmon, 182 N. C. 122, 17 A. L. R. 965, 108 S. E. 497; McGinley v. Forrest, 107 Neb. 309, 22 A. L. R. 567, 186 N. W. 74; Fine v. Beck, 140 Md. 317, 25 A. L. R. 68, 117 Atl. 754; Skean v. Ellis, 105 Ark. 513, 152 S. W. 153.

Now it must be admitted that there is a distinction between this Rhode Island case and the instant case, the distinction being that in the former the fire occurred after the sale, while in the instant case the timber was cut before the sale. The doctrine of caveat emptor would ordinarily operate to make this distinction of controlling importance, but the application of that doctrine to the instant case would permit Mitchell to profit by his own wrong. Mrs. Maxwell did not want the farm without the timber, and she had the right to assume, but for the doctrine of caveat emptor, that she was buying it and would have gotten it but for Mitchell’s wrongful act, of which she was not advised, and it appears inequitable to permit him to profit by his own wrong.

The more appropriate practice would have been for Mrs. Maxwell to have stood on her exceptions to the confirmation of the report of sale, on the ground that it was inequitable to confirm it, and to have appealed from an order of confirmation; but such, in effect, is the present status of the case, inasmuch as no persons are concerned in this litigation except only Mrs. Maxwell and Mr. Mitchell, there being no intervening rights of any third parties.

The decree of the court, in so far as it holds Mrs. Maxwell liable on account of her bid, will therefore be reversed, and the cause remanded with directions to enter a final decree conforming to this opinion.


author:
Kirby, J.,
      McHaney, J.

text:
    Lee v. State.
    Opinion delivered February 29, 1932.

      J. S. Utley and W. H. Childers, for appellant.

      Houston Emory, Prosecuting Attorney, for appellee.
   Kirby, J.,

(after stating the facts). The statute upon which the motion for discharge is-based, § 3132, Crawford & Moses’ Digest, reads as follows:

“If any person indicted for any offense, and- committed to prison, shall not be brought to trial before the end of the second term of the court having jurisdiction of the offense, which shall be held after the finding of such indictment, he shall be discharged so far as relates to the offense for which he was committed, unless the delay shall happen on the application of the prisoner.”

This statute has been construed and applied first in Stewart v. State, 13 Ark. 720, in Ware v. State, 159 Ark. 540, 252 S. W. 934, where all the cases are reviewed, and in Fulton v. State, 178 Ark. 841, 12 S. W. (2d) 777. In . the last cited case it was held that the person committed to the penitentiary, who had no opportunity to demand a trial on other indictments, did not waive his right to discharge from such indictments under said statute.

This case, however, furnishes no authority for the granting of the motion to discharge the defendant from the indictments herein because the prisoner there was prevented from.making such motion while he was in the custody of the State, serving a sentence upon a conviction for violation of her laws, the State having the exclusive custody of the convict- there, and could and should have brought him into" open court that he might demand a trial, and he waived no right to discharge under this statute by its not having done so. Here the appellant was in the custody of the United States Government, in her penitentiary, upon a plea of guilty to a violation of its laws, which furnished no ground for the dismissal of charges pending against him on indictments in the State court because of his not having had opportunity to demand a trial therein, and this is so without regard to whether the State could have sooner procured his presence under the comity rule from the United States Government, as announced in Ponzi v. Fessenden, 258 U. S. Reports, 254, 42 S. Ct. 309. In Rigor v. State, 101 Md. 465, 61 Atl. 631, 4 Ann. Cas. 719, it was said by the' Supreme Court of Maryland:

“The penitentiary is no't a place of sanctuary; and an incarcerated convict ought not to enjoy an immunity from trial merely because he is undergoing punishment on some earlier judgment of guilt.”

Appellant made no effort to demand trial while he was imprisoned in the United States Penitentiary, which he could have done, and the fact that the State could have procured his presence in her court for trial on the indictments and did not do so deprived him of no right he was entitled, to, and the court did not err in denying his motion for a discharge from the indictments pending in her court. The judgment is affirmed.

McHaney, J.

On the authority of Fulton v. State, 178 Ark. 841, 12 S. W. (2d) 777, I think the case should be reversed. The distinction attempted to be made between that case and this is, in my opinion, not a valid one. I therefore dissent.


author: Kikby, J.,

text:
    Gilbert v. Life & Casualty Insurance Company of Tennessee.
    Opinion delivered February 29, 1932.

      R. PL. Peace, Alvin D. Stevens and Joe Joiner, for appellant.

      Leonard G. Smead, for appellee.
   Kikby, J.,

(after stating the facts). The policy insures against accident resulting from insured’s being struck by a vehicle “propelled by steam, cable, electricity, # * * gasoline, etc., while insured is walking or standing on a public highway, which term, public highway, as here used, shall not be construed to include any portion of railroad or interurban yards, station grounds, or right-of-way except where crossed by a thoroughfare dedicated to and used by the public for automobile or horse vehicle traffic.”

The evidence shows that the place at which insured was standing when struck by the cable was laid out and made a public highway by order of the county court on the 20th day of January, 1930, insured being killed on the 5th day of May thereafter, and the stipulation shows that he was struck by a cable, one end of which was attached to a tractor pulling stumps out of this new roadway laid out. The Legislature, by act 666 of 1923, § 5, defined a public highway, and the policy limits the meaning public highway as prescribed in it, which in nowise conflicts with the contention that the road, laid out and being improved, was a public highway within the meaning of the statute and our decisions. Finney v. State, 172 Ark. 115, 287 S. W. 744. See, also, 29 C. J. 363.

If a person coming alongside a public highway over which vehicles of the kind specified in the policy moved, and while there was injured by being struck by any such vehicle with a cable or board or something else attached to it, or by a car or piece of car or anything carried on such vehicle in a collision between two cars, it would hardly be contended that the accident was not within the provision of the policy insuring against risks of this nature; or if he had been struck and injured by any such vehicle on a short detour from the public highway, made necessary by its obstruction, or a washout, certainly it could not be claimed that the injury was not covered by the terms of the policy, and, in the first illustration, whether he negligently or foolishly stood or walked by the side of the road would make no difference.

Being struck by the cable attached to the tractor was as much being struck and injured by a vehicle within the meaning of the policy as if the insured had been run over by the wheels thereof, or had come in collision with any other part of it, and such an injury was covered by the terms of the policy and insured against. Great American Casualty Co. v. Williams, 177 Ark. 87, 7 S. W. (2d) 775.

It was there held that, when a policy provided indemnity for accidental injury to insured while actively engaged in farming by actual contact with and while operating a threshing, mowing, reaping or binding machine, such provision covered an injury to insured, who was operating a binding machine harvesting rice, while he was down under it making adjustment or repairs and injured by a sledge hammer falling off the seat of the machine and striking his foot.

If there is ambiguity in the policy, or if its provisions are of doubtful meaning-, it must be most strongly construed against the company writing it, and more favorably to the insured. Great American Casualty Co. v. Williams, supra.

The court therefore erred in directing a verdict against the appellant, and the judgment is reversed, and the cause will be remanded for a new trial. It is so ordered.


author: McHaney, J.

text:
    Catlett v. Bradley.
    Opinion delivered February 29, 1932.

      Patterson d Patterson, for appellant.

      Brock d Williams, for appellee.
   McHaney, J.

Appellees, twelve separate and distinct landowners, brought this suit in one action for the cancellation of twelve separate and distinct conveyances of mineral rights under their respective parcels of land situated in Johnson County, Arkansas, on the ground of misrepresentation and fraud in the procurement thereof. The conveyances were made at different times by separate instruments. Eleven of them were made to appellant Catlett, and one to appellant Vance. They were procured by the other appellants acting separately. Appellants filed a motion to strike improperly joined causes of action and to require appellees to elect, which the court overruled. They then demurred on several different grounds, which vas also overruled. They then filed a motion to dismiss for misjoinder of cause of action, which was also overruled. Thereafter appellant Catlett filed a separate answer, denying that any fraud was practiced on any of the appellees, in procuring- the conveyances, by him or his codefendants, - and alleged that each of the grantors in the instruments of conveyance had full knowledge of the nature of the instrument executed by him, and that it was executed voluntarily' for the purpose of conveying the rights purported to be conveyed by such instrument, and that it was a valid instrument in his favor. The case was submitted to the court upon the pleadings, and the depositions taken on behalf of appellees, from which the court found in their favor and entered a decree canceling all the separate instruments mentioned in the complaint.

The record in this court is incomplete. The decree of the court recites that it was heard upon depositions taken on behalf of appellees. These depositions are not brought into the record by bill of exceptions or otherwise. There is a conclusive presumption therefore that the evidence before the court was sufficient to support the findings and decree of the court. Dumas v. Crowder, 178 Ark. 143, 10 S. W. (2d) 43; Franklin County v. Smith, 178 Ark. 666, 11 S. W. (2d) 446.

It is urged, however, that the court erred in failing to dismiss the complaints on their motion so to do on misjoinder of causes of action, and that the demurrer was improperly overruled. Conceding for the sake of argument that the causes of action were improperly joined, such misjoinder did not and could not prejudice appellants in any manner, since, if separate causes of action had been instituted, it would have been proper to have consolidated them for trial and heard them together. Section 1081, Crawford & Moses’ Digest, provides: “When causes of action of a like nature or relative to ' the same question are pending before any of the circuit or chancery courts of this State, the court may make such orders and rules concerning the proceedings therein as may be conformable to the usages of courts for avoiding unnecessary costs or delay in the administration of justice, and may consolidate said causes when it appears reasonable to do so.”

These actions, if they had been brought separately, were against the same parties, were of a like nature, and all related to the same question, and would therefore have been subject to consolidation for trial. St. L., I. M. & S. R. Co. v. Broomfield, 83 Ark. 288, 104 S. W. 133; Mahoney v. Roberts, 86 Ark. 130, 110 S. W. 225; Van Troop v. Dew, 150 Ark. 560, 234 S. W. 992. In the two cases last cited it was held that it was not prejudicial error to join several causes of action having sufficient identity to justify consolidation under § 1081 of the Digest, supra. Many other cases might be cited to the same effect.

As to the demurrer, it is argued that the allegations of the complaint were insufficient to show fraudulent misrepresentation in law. The complaint alleged in each case that the appellants represented to each grantor that he was signing a lease for oil and gas to the tract of land conveyed and persuaded them to sign an instrument which turned out to be a mineral deed and not an oil and gas lease. It was further alleged that the conveyance was wholly without consideration. We think this was sufficient allegation to state a cause of action for fraud and deceit in procuring the execution of the instruments, and not open to demurrer. Appellants answered, denying any fraud or misrepresentation, but the proof in this regard is not before us.

Affirmed.


text:
    Northwestern Casualty & Surety Company v. Rose.
    Opinion delivered February 29, 1932.

      Busbee, Pugh \& Harrison, for appellant.

      Rose, Hemingway, Cantrell .& Loughborough, for appellee.
   Butler, J.

This action was instituted by appellee against appellant, Northwestern Casualty &> ’Surety Company, to recover from appellant under an automobile liability insurance policy for sums appellee expended for medical bills and hospital bills for one Ben D. Bonner, struck by appellee’s automobile.

On the trial of the case the appellant took the position that it was not liable for medical and hospital bills because of the following provision in the policy: “The assured shall co-operate with the company at all times in facilitating the disposition of claims and suits, but shall not voluntarily assume any liability nor incur any expense or settle any claim except at his own cost without written consent of the company. In case of personal injury, the assured may provide at the company’s expense such first aid as is imperative at the time of the accident. ”

Upon this theory the appellant first requested a peremptory instruction for a verdict in its favor, and, such instruction being refused, it requested by instruction No. 2 a declaration that the appellee was only entitled to recovery for expenses incurred in securing immediate aid necessary at the time to relieve the sufferings of Bonner, and to see that he reached a place for treatment. The court refused to give instruction No. 2 as requested, but modified the same by adding the words, “unless Mr. Eose was liable to Mr. Bonner for his injury and damages.” The instruction, as modified, reads as follows: “You are instructed that in this case plaintiff is entitled to recover only for such immediate and imperative aid as was necessary to at the time relieve the sufferings of Mr. Bonner, unless Mr. Eose was liable to Mr. Bonner for his injury and damages.”

The trial resulted in a verdict in favor of the appellee for $1,640.05, the amount admittedly expended for medical bills and hospital fees.

Hospital charges and expense of medical treatment and such other expenses as are necessarily incurred in the usual and ordinary treatment, of a victim of an accident are among the damages which are the direct and proximate result of the injury for which a recovery may be had against one whose negligent conduct causes the injury, and therefore come within the terms of a liability ..insurance policy such as the one before us, by which the assured is indemnified against liability for damages suffered by any person on account of the .operation by the assured of an automobile causing the injury. U. S. Casualty Co. v. Johnson Drilling Co., 161 Ark. 158, 255 S. W. 890, 34 A. L. R. 727.

The appellant now concedes the rule announced and the correctness of the court’s modification of its instruction No. 2, but insists that there could be no recovery except for the expenses of first aid because the evidence does not justify the finding that the -appellee was liable for the accident. After the appellant was notified of the accident, it procured an explanatory statement from Mr. Rose, and, presumably after other investigations, settled with Mr. Bonner, the injured person, for $5,000, exclusive of the amount expended by Mr. Rose for hospital and medical attention for Bonner, and, during the course of the settlement with Mr. Bonner, Mr. Rose was advised by the appellant that Bonner was willing to accept $5,000 in settlement provided the former would assume for his own account the medical and hospital bills which he had paid. This Mr. Rose declined to do. Because of this refusal and the contention of the appellant as to the law of the case noted above, it seems that the testimony regarding the accident was not fully developed, the only testimony taken with respect to the same being that of Mr. Rose himself. We, however, are of the opinion that this was sufficient to warrant the jury in finding that there was liability. It is the well-settled rule that the duty rests upon the driver of an automobile to exercise ordinary care in its operation, and in the exercise of such care it is his duty to keep a constant lookout to avoid injury to others. This is particularly incumbent upon him when driving on the street of a city in order to avoid injury to pedestrians, as he should anticipate their presence upon such streets and their equal right to their use. Murphy v. Clayton, 179 Ark. 225, 15 S. W. (2d) 391; Byrd v. Galbraith, 172 Ark. 219, 288 S. W. 717; Smith A. T. Co. v. Simmons, 181 Ark. 1024, 28 S. W. (2d) 1052; Duckworth v. Stevens, 182 Ark. 161, 30 S. W. (2d) 840; Morel v. Lee, 182 Ark. 985, 33 S. W. (2d) 1110.

It is the rule arising from, common custom and recognized by law (Acts 1927, p. 721, § 9; Huddy, Cyc. Auto Law, vols. 3, 4, p. 157) that it is the duty of the driver of a motor vehicle to keep to the right of the road, and whether this is done or not is a matter to be considered by the jury in determining the question of negligence. The accident to Bonner occurred on Woodlawn Avenue, just beyond where it passes out of Prospect Avenue. Woodlawn does not leave Prospect at a right angle, as is usual in city streets, hut at less than a 45 degree angle, so that on leaving Prospect and entering Wood-lawn one has a clearer view of the way ahead than where a street crosses at right angles. Mr. Rose was driving to his home on Woodlawn and -approached on Prospect Avenue, turning into Woodlawn, driving at about the center of the street because it was a gravel street, and he was selecting the smoothest part of the road. This was on the 16th day of November, on a rainy evening. It was dark, but the street lights h-ad not yet been turned on. He had passed the intersection of Prospect and Woodlawn about four car lengths “when all at once a man loomed up in front,” who-appeared to be walking toward Rose. Rose thought the man too close to apply his brakes and stop the car, and thought that he could avoid striking him by turning quickly to the right. This he did but did not accomplish his purpose, striking the man with the left lamp and fender of his car, causing him to fall and the wheels of the car to pass over him. There was no one present at the time of the accident except Mr. Rose, the driver of the car, and Mr. Bonner, who received the injury. Within a short time, however, some one came who telephoned for an ambulance, and Bonner was taken to the hospital at the direction of Rose, where he was treated for about a week, and it was then deemed necessary to amputate his left leg. This operation was performed, and Mr. Rose paid the hospital expenses, including nurse’s hire, surgeon’s fees and other necessary expenses, amounting in all to the sum sued for.

The testimony is silent with reference to the direction from which Bonner was crossing the street, but it is reasonable to infer that it was from the left of the driver of the automobile, as the left light and fender knocked him down. The manner in which Woodlawn leaves Prospect Avenue does not require any considerable slowing down of a car to make the turn, -and it was in testimony that the car was being- driven at about 18 miles an hour and was slowed down somewhat on entering Woodlawn. There is no testimony as to whether or not the horn was sounded on making the turn or as to whether the headlights of the car were burning. If the lights on the car were not burning, it would have been extremely difficult to see ahead at all, and the jury might have inferred that, under the conditions then existing, the lights were burning, and, if so, that they cast light a sufficient distance ahead to enable Bonner’s presence on the street to have been discovered in time for the driver of the car to stop the same by an application of the brakes, or to have turned it to the righthand side of the street where it properly belonged, and thus to avoid the injury to Bonner. There was no question raised as to the contributory negligence of Bonner, nor is there any evidence regarding his actions except the impression of Mr. Rose, who stated that “he was angling across the street,” and that the point of accident was not at the crossing. It must have been very near the crossing, however, since the accident occurred just after the car was- “straightened out on Woodlawn, and in about the center of the street.” All of these circumstances raised a question of fact as to whether or not the appellee was in the exercise of ordinary care, and such circumstances-are sufficient to sustain the finding that he was not.

The judgment is therefore correct, and it is affirmed.


author: Humphreys, J.

text:
    Lazarus v. Alphin.
    Opinion delivered March 7, 1932.

      Eayme, Parles & Westfall and Powell, Smead d Knox, for appellant.

      J. K. Mahony, E. 8. Yocum, W. T. Saye and J. N. Saye, for appellee.
   Humphreys, J.

This suit was brought in the chancery court of Ouachita County, Second Division, by appellee, who was a creditor of the estate of Abraham Lazarus, deceased, against appellant to recover the proceeds derived, and to be derived from certain policies o£. insurance in excess of what an annual premium of $300 would pay for and subject said proceeds to the payment of the balance due him by the estate of said Abraham Lazarus. The proceeds derived and to be derived were and are from policies of insurance procured and carried by Abraham Lazarus for the benefit of his wife, Eosa L. Lazarus. She was the beneficiary named in said' policies at the time of his death. The suit was based upon § 557:9 of Crawford & Moses’ Digest, which is as follows:

“It shall be lawful for any married woman, by herself and in her name, or in the name of any third person, with his assent, as her trustee, to cause to be insured, for her sole use, the life of her husband, for any definite period, or for the term of his natural life; and, in case of her surviving her husband, the sum or net amount of the insurance becoming due and payable by the terms of the insurance shall be payable to her and for her use; and, in case of the death of the wife before the decease of her husband, the amount of said insurance may be made payable to his or her children, for their use, and to their guardian, for them, if they shall be under age, as shall be provided in the policy of insurance; and such sum or amount of insurance so payable shall be free from the claims of the representatives of the husband, or of any of his creditors; but such exemption shall not apply where the amount of premium annually paid out of the funds or property of the husband shall exceed the sum of three hundred dollars.”

In the recent case of Townes v. Krumpen, 184 Ark. 910, 43 S. W. (2) 1083, this court construed said section to mean that, in any event , a husband might expend as much as three hundred dollars annually out of his funds as premiums on life insurance protection for his wife, and that he might expend more than said amount for insurance if purchased in good faith and without an intent to cheat, hinder and delay his creditors. It was ruled in that case that the creditors of the deceased husband might subject any excess insurance carried for the benefit of his wife to the payment of their debts, provided it was alleged and proved that he made a gift out of his funds in order to' cheat, 'hinder and delay his creditors.

The record in the instant case fails to show that Abraham Lazarus expended more than $300 per annum in premiums out of his funds for life insurance for the benefit of his wife in order to cheat, hinder and delay his creditors. Appellee made no such allegation in his complaint and did not introducé any evidence to that effect. The allegation and facts in the instant case bring it within the rule announced in the case of Townes v. Krumpen, supra.

The decree rendered by the chancery court must therefore he reversed, and the cause dismissed, which is accordingly done.


author: Kirby, J.

text:
    Elliott v. Locklar.
    Opinion delivered March 7, 1932.

      B. K. Mason and Gaughan, Sifford, Godwin & Gaughan, for appellant.

      Haynie, Parks <db Westfall, for appellee.
   Kirby, J.

The only question for determination here is whether the setting* aside and cancellation of a deed made in fraud of judgment creditors bars the wife’s inchoate right of dower, she having joined in such conveyance relinquishing her right of homestead and dower.

Appellants insist that the court erred, after cancelling the deed executed by herself and husband conveying the lands to Miss Audrey Marks, and the one from Miss Audrey Marks to intervener, Mrs. Flote Elliott, as fraudulent conveyances, in decreeing that her right of homestead and dower be subjected to the lien of appellee’s judgment and sold with the land in satisfaction thereof, foreclosing and barring her rights therein.

The statutes provide for the endowment' of the wife in the lands whereof her husband was seized of an estate of inheritance unless the same shall have been relinquished in legal form, and also that no conveyance of such lands by the husband without the assent of his wife evidenced by acknowledgment of such conveyance as required by law shall pass the estate of a married woman, and no judgment or decree recovered against him shall prejudice the right of his wife to her dower or preclude her from recovery thereof if otherwise entitled thereto.

The general rule applicable herein is set out in 19 C. J., page 529, as follows:

“Although there is authority to the contrary, it is very generally held that where a conveyance or deed executed by a husband or wife is set aside as fraudulent as to the husband’s creditors, the wife’s dower in the land is restored. It is not material whether she participates in the fraudulent intent or not; in either case her right to dower is revived.” See also Rickett v. Bolton, 173 Ky. 739, 191 S. W. 471; and Huntzicker v. Crocker, 153 Wis. 38, 115 N. W. 340, and cases cited therein.

Certainly when the deeds executed by her in relinquishment of her dower and homestead in his lands under the statute are held to be void and set aside as fraudulent, they could be of no binding effect to convey her dower and homestead interest therein, and her status remained as though no such deeds had been executed so far as his said creditors are concerned.

Appellant waived no right by intervening in the cause nor was she put to any other action to determine whether she would defend the action as claiming to be the owner of the lands under a valid conveyance or claiming only the right to her dower and homestead interest therein upon the cancellation of the conveyance as fraudulent, the remedies being in no wise inconsistent.

The court erred in holding otherwise, and the decree is reversed and the cause remanded with directions to enter a decree in accordance with this opinion.


author: Mehaefy, J.

text:
    State Military Note Board v. Casey.
    Opinion delivered March 7, 1932.

      Hal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellant.

      Sam Rorex and Nat R. Hughes, for appellee.
   Mehaefy, J.

The appellee, Lee Y. Casey, as a citizen and taxpayer of Pulaski County, Arkansas, brought this suit to enjoin the issuance and sale by the State Military Note Board of negotiable notes of the State.

He alleged that act No. 14 of the Acts of the General Assembly of 1931 creating the State Military Note Board and authorizing and enjoining it'to issue and sell negotiable notes, not to exceed $400,000, was void; that senate bill No. 74, which became act 14, was not passed as required by the Constitution. He alleged that it was invalid on the ground that the journals of the two houses of the General Assembly do not show that the bill was agreed to in each house, but that the record shows that the bill was not read three times in the House of Representatives, was not placed on final passage, the vote was not taken by “ayes” and “nays,” and the names of the persons voting for and against the same were not entered on the journal.

It was further alleged that the Military Note' Board had been appointed under the provisions of the invalid act; that it was attempting to, and would, unless restrained, offer for sale and sell the obligations of the State in the amount of $400,000.

The complaint also alleged that the notes should be direct obligations of the State for the payment of which the full faith and credit of the State are pledged, and alleged that the State Military Note Board was without authority to pledge the faith and credit of the State.

The prayer of the plaintiff was that the act be declared invalid, and the defendants and each of them be enjoined from doing any act under the provisions of said act 14.

The appellants filed answer in which they denied that act 14 was invalid, and denied that the bill was not read three times and placed on its final passage, and, in fact, denied all the material allegations of the complaint with reference to the act being void.

It was also alleged in the answer that the legislative journals affirmatively show that every legal requirement was complied with, with reference to the passage of said act.

There was introduced’ a copy of the record of the proceedings on Bill 74, certified by the Secretary of State to be correct.

“Proceedings in the Senate on the Passage of Senate
Bill No. 74, as Shown by the Senate Journal.
“Senate Chamber.
“Little Rock, Arkansas, January 20, 1931.
“Senate Bill No. 74 by Senator Ward the same being a bill for an act to be entitled, 'An Act to Provide the Funds for the Construction or Purchase of Armories for the Use and Benefit of the Arkansas National Guard, to Authorize the Issuance of Notes, and for Other Purposes.’
“Read the first time, rules, suspended, read the second timé and referred to the Committee on Militia.
“January 28,1931.
‘ ‘ Senate.
“Little Rock, Arkansas, January 28, 1931.
“Mr. President: We, your committee on Militia, to whom was referred Senate Bill No. 74, by Senator Ward of the 6th District, beg leave to report that we have had the same under careful consideration and herewith return the same with recommendation that it do pass.
“Respectfully submitted,
“J. Paul Ward,
“Chairman Committee on Militia.
“January 30, 1931.
“Senate Bill No. 74 by Senator Ward, re-referred to Budget Committee.
“February 2, 1931.
“Senate.
Little Rook, Arkansas, February 2, 1931.
“Mr. President: We, your committee on Budget, to whom was referred Senate Bill No. 74 by Senator Ward of Independence, beg leave to report that we have had the same under careful consideration and herewith return the same with recommendation that it do pass.
“Respectfully submitted,
“Roy Milum, Chairman,
“Committee on Budget.
“February 3,1931.
“Special order for tomorrow. Senate Bill No. 74.
“February 4, 1931.
“Senate Bill No. 74, by Senator Ward, the same being a bill for' an act to be entitled, ‘An Act to Provide the Funds for the Construction or Purchase of Armories for the Use and Benefit of the Arkansas National Guard, to Authorize the Issuance of Notes and for Other Purposes.’
“Was placed on third and final passage. The question being shall the bill pass? The secretary called the roll and the following voted in the affirmative:
“Abington, Atkins, Bailey, Bennett, Brewer, Caldwell, Counts, Dillon, George, Hendricks, Kimsey, Lake, McElhannon, MoGehee, Milum, Mitchell, Nelson, Poole, Purkins, Quarles, Shaver, Shuster, Spence, Stewart, Thornton, Wahlquist, Waldron, Walls, Ward, Whaley, Wheatley, Wilson.
“Voted in the negative, none.
“Absent and not voting: Norfleet, Norrell.
“Total No. of votes cast.....................................................33
“Necessary to passage of bill.........................................17
“Total No. voting in the affirmative........................33
“Total No. voting in the negative................._...........00
“Total No. absent and not voting.............................. 2
“'So the bill passed, and the title as read was agreed to.
“Senate Bill No. 74 by Senator Ward having an emergency clause thereon, roll was called, vote as follows:
“Voting in the affirmative:
“Abington, Atkins, Bailey, Bennett, Brewer, Caldwell, Chaney, Counts, Dillon, George, Hendricks, Kimsey, Lake, McElhannon, McGehee, Milum, Mitchell, Nelson, Poole, Purkins, Quarles, Shaver, Shuster, Spence, Stewart, Thornton, Wahlquist, Waldron, Walls, Ward, Whaley, Wilson.
“Voting in the negative, none.
“Absent and not voting: Norfleet, Norrell.
“Total No. votes cast...........* ......................................33
“Necessary for adoption.....................................................24
“Total No. voting in-the affirmative.......................33
“Total No. voting in the-negative..............................00
“Total No. absent and not voting.............................. 2
“So the emergency was adopted.
‘ ‘ Senate.
“Little Rock, Arkansas, February 4, 1931.
“Mr. Speaker: I am instructed by the Senate to inform your honorable body of the passage of Senate Bill No. 74 by 'Senator Ward, the same being a bill for an act to be entitled, ‘An Act to Provide for the Construction or Purchase of Armories’for the Use and Benefit of the Arkansas National Guard, to Authorize the Issuance of Notes, and for Other Purposes,’ and I hereby transmit the same for yonr favorable consideration.
‘ ‘ Respectfully,
“M. E. Sherland, Secretary.
“February 6, 1931.
“Senate Bill No. 74 by Senator Ward, a bill for an act to be entitled, ‘An Act to Provide the funds for the construction or purchase of armories, for the use and benefit of the Arkansas National Guard, to authorize the issuance of notes, and for other purposes.’
“Was read the first time, rules suspended, read the second time and placed on the calendar.
“February 10, 1931.
“On motion of Mr. Pruitt the House went into the committee of the whole for the purpose of considering Senate Bill No. 74. Mr. Owen in the chair. -On motion of Mr. Deane the Committee arose and through its chairman made the following report:
“Hall of the House of Representatives.
“Little Rock, Arkansas, February 10, 1931.
“Mr. Speaker:.. We, your committee of the whole, to whom was referred Senate Bill No. 74 by Mr. Ward, beg leave to report that we have had the same under careful consideration and herewith return the same with recommendation that it do pass.
“Respectfully submitted,
“John T. Owen,
“Chairman of the Committee of the Whole. .
“February 10, 1931. •
“Was read the third time and placed on final passage; the question being, ‘Shall the bill pass?’ The Clerk called the roll when the following voted in the affirmative:
“Adkins, Alexander, Blackwell, Bollinger, Boyette, Bransford, Brown, Bullock, Burke, Butler, Cannon, Cardwell, Clark, Clay, Clayton, C'offelt, Coxey, Crumpler, Cunning-ham, Danley, Day, Dean, Dudley, Eberhart, Eddy, Evans, Ewell, Feinberg, Flemming, Gilliam, Gooch, Graham, of Benton, Graham, of Lonoke, Hall, Hardin, Hassell, Hollobough, Hollensworth, Johnson, Kelley, Kimbro, Laitting, Levine, Mason, McElhaney, Morehead, Myers, Newton, Oliver, Owens, Pilkington, Permenter, Perry, Pruitt, Ramsey, Raney, Robertson, Rogers, Rothrock, Scott, Stroupe, Stubblefield, Switzer, Tackett, Thomas, Thorn, Toland, Turner, Wade, Waldrip, Ward, of Lee, Ward, of Stone, Warfield, Watkins, Watson, Wheatley, Wilson, Mr. Speaker.
“The following being absent and not voting: Arnold, Campbell, Clement, Dowell, Duncan, Hester, Kaufman, Kitchens, Lawrence, McCabe, Proctor, Purdy, Reed, Silvey, Smith, of Pulaski, Talkington, Toney.
“Total No. of votes cast.............................................................83
“Necessary to the passage of the bill......................42
“Total No. voting in the affirmative........................83
“Total No. voting in the negative.............................00
“Total number absent and not voting..................17
“So the hill passed,- and the title as read was agreed to.
“There being an emergency clause attached to Senate Bill No. 74, the Speaker ordered the Clerk to call the roll upon the adoption of the emergency clause. The Clerk called the roll and the following voted as follows: “Affirmative: Atkins, Alexander, Blackwell, Bollinger, Boyette, Bransford, Brown, Bullock, Burke, Butler, Cannon, Cardwell, Cunningham, Danley, Day, Dean, Dudley, Eberhart, Eddy, Evans, Ewell, Feinberg, Flemming, Gilliam, Gooch, Graham, of Benton, Graham, of Lonoke, Hall, Hardin, Hassell, Hester, Hollobough, Hollens-' worth, Johnson, Kelley, Latting, Levine, Mason, Mc-Elhaney, Morehead, Myers, Newton, Oliver, Owens, Pilkington, Permenter, Perry, Pruitt, Ramsey, Raney, Robertson, Rogers, Rothrock, Scott, Sellers, Smith, of Fulton, Smith, of Randolph, Spinks, Stroupe, Stubble-field, Switzer, Tackett, Thomas, Thompson, Thorn, Toland, Turner, Wade, Waldrip, Ward, of Lee, Ward, of Stone, Warfield, Watkins, Watson, Wheatley, Wilson, Mr. Speaker.
“The following being absent and not voting: Arnold, Campbell, Dowell, Hester, Kaufman, Kitchens, Lawrence, McCabe, Proctor, Purdy, Reed, Silvey, Smith, of Pulaski,
Talking-ton, Toney, Duncan, Clement.
“Total No. of votes cast.....................................................83
“Necessary to the passage of the bill..................42
“Total No. voting in the affirmative .................83
“Total No. voting in the negative..............................00
“Total No. absent and not voting..............................17
“So the bill passed, and the title as read was agreed to.
“February 11, 1931.
“Returned to the Senate as passed.
“W: H. Phipps, Chief Clerk.”
‘ ‘ Senate.
“Little Rock, Arkansas, February 11, 1931.
“The sergeant-at-arms announced a messag-e from the House, whereupon the Chief Clerk of the House appeáred within the bar of the Senate and read the following communication:
“House oe Representatives.
“Little Rock, Arkansas, February 11, 1931.
“Mr. President: I am instructed by the House of Representatives to inform your honorable body of the passage of Senate Bill No. 74 by Mr. Ward, the same being a bill for an act to be entitled, ‘An Act to Provide the Funds for the Construction or Purchase of Armories for the Use and Benefit of the Arkansas National Guard, to Authorize the Issuance of Notes and 'for Other Purposes,’ and I hereby .return same for your favorable consideration.
“Respectfully,
“(Signed) W. H. Phipps, Chief Clerk.

Section 22 of article 5 of the Constitution provides:

“No bill shall become a law unless on its final passage the vote be taken by ayes and nays and the names of persons voting for and against the same be entered on the journal and a majority of each house be recorded thereon as voting in its favor.” This provision of the Constitution is mandatory, and must be observed by both houses- ,in the passage of a bill; otherwise the statute is illegal and void. Butler v. Kavanaugh, 103 Ark. 109, 146 S. W. 120; Smithee v. Garth, 33 Ark. 17; Chicot County v. Davies, 40 Ark. 200; State v. Corbett, 61 Ark. 226, 32 S. W. 686; Rogers v. State, 72 Ark. 565, 82 S. W. 169; State v. Bowman, 90 Ark. 174, 118 S. W. 714; Pelt v. Payne, 90 Ark. 600, 30 S. W. 426, 134 Am. St. Rep. 45.

It is however- equally well settled by the decisions of this court that an enrolled statute, signed by the Governor, and deposited with the Secretary of State raises the presumption that every requirement was complied with, unless the contrary affirmatively appears from the records of the General Assembly, and this presumption is conclusive, unless the records of which the court can take judicial-knowledge show to the contrary. Road Improvement District No. 16 v. Sale, 154 Ark. 551, 243 S. W. 825; State v. Crowe, 130 Ark. 272,197 S. W. 4, L. R. A. 1918A, 567, Ann. Cas. 1918 D, 460; Harrington v. White, 131 Ark. 291, 199 S. W. 92; Perry v. State, 139 Ark. 227, 214 S. W. 2; Booe v. Sims, 139 Ark. 595, 215 S. W. 659; Booe v. Rd. Imp. Dist., 141 Ark. 140, 216 S. W. 500; Connor v. Blackwood, 176 Ark. 139, 2 S. W. (2d) 44.

Act No. 14 of the General Assembly of 1931 was signed by the Governor and deposited with the Secretary of State and the presumption is that every requirement of the Constitution was complied with unless the contrary affirmatively appears from the record of the General Assembly.

The only question for us to determine is whether the record affirmatively shows that the Constitution was not complied with. We have set out the statement of the Secretary of State above which gives a full history with reference to the proceedings as to Senate Bill No. 74, which became act 14.

There is no contention that there is any irregularity or failure to comply with the constitutional provision, except it is contended that the vote on the bill in the House does not show that it was a vote on Senate Bill 74.

The record shows that on February 10,1931, the bill was considered by a committee of the whole, and the committee of the whole reported on the same day that they had carefully considered the bill and returned it with the recommendation that it do pass. There were then some other transactions by thé House, and then followed this statement: “Was read the third time, and placed on final passage; the question being, shall the ■bill pass? The clerks called the roll when the following-voted in the affirmative. ’ ’

Then follows the names of those voting for and against the bill and the names of those absent and not voting. The bill was then declared passed, and the title as read agreed to.

Immediately following this vote was the vote on the emergency clause attached to Senate Bill No. 74. There is no question, and can be none, about the house voting on the bill, and the ayes and nays being recorded as , required by the Constitution. ■ The only question is, was that Senate Bill No. 74? or rather, does the journal show affirmatively that it was not Senate. Bill 74?

Some bill was voted on on February 10, the number of which was not shown by the record. We have examined the record, and it shows that every other bill voted on on February 10, was designated by number and title, and this vote therefore could have been on no other bill than Senate Bill 74. Moreover the indorsement on the original bill, filed in the office of the Secretary of State, shows that on February 10, Senate Bill 74 was passed by the House, and as we have already said, the bill was enrolled, signed by the Governor, and deposited in the Secretary of State’s office. In addition to this, the journal shows that on February 11, the day after the vote on the bill, the House reported to the Senate the passage of Bill 74.

We think it is not so much a question about recording the ayes and nays on the passage of the bill, as a question of identification of the bill, and when the entire record is considered, we think it shows beyond question that Senate Bill 74 was passed in the House in the manner required by the Constitution, and certainly the record does not affirmatively show that it was not so passed.

We have therefore reached the conclusion that it does not affirmatively appear from the record that the constitutional provision was not complied with.

The appellee also contends that the State Military Note Board is without authority to pledge the faith and credit of the State. We do not agree with appellee in this contention. See Bush v. Martineau, 174 Ark. 214, 295 S. W. 9, and also Connor v. Blackwood, 176 Ark. 139, 2 S. W. (2d) 44, and Cobb v. Parnell, 183 Ark. 429, 36 S. W. (2d) 388.

The decree of the chancery court is reversed, and the cause dismissed.


author: McIIaney, J.

text:
    Harrison v. Rosensweig.
    Opinion delivered March 7, 1932.

      Arthur D. Chavis, for appellant.

      Beinberger Bemberger, for appellee.
   McIIaney, J.

An execution from the Pine Bluff Municipal Court on a judgment in favor of appellee against appellant of March 23, 1931, was returned unsatisfied. In June, 1931, a certified transcript of said judgment was filed with the clerk of the Cleveland Circuit Court, upon which execution was issued by said clerk, and the sheriff levied same on certain real property owned by appellant in that county. Thereafter appellant filed his schedule claiming the property levied upon as his homestead exempt, which was disallowed by the clerk, and the matter was presented to the court sitting as a jury. The court disallowed the claim of exemption as a homestead on the ground that appellant had moved away and abandoned his homestead, and that same was subject to execution. This appeal is from that judgment.

Appellant was the only witness examined. He testified that the 20 acres of laud was his homestead, and had been for about 20 years; that he had lived upon said land all that time until 1929 or 1930; that his first wife died while they were living there as also one child who predeceased his wife, and that he continued to live there about two years after his wife’s death; that he then moved to Pine Bluff to work where he had lived about a year; that he did not abandon his homestead, but was temporarily away at work, intending to return to it at an indefinite time, when he married again; that he had been married the second time about five months, but that he and his present wife had not lived on said land, but had been on it several times, and intended to move back ‘ ‘ this fall, ’ ’ when he g’ot money to move on; that he never did move all his household goods from the property, his cooking utensils and plow tools still being there in the custody of his relatives who rent the premises; that he re-covered the house on said land about six months ago at a cost of $75; and that he paid his personal tax for 1931 at Pine Bluff, in Jefferson County.

On this evidence the court found that appellant had abandoned his homestead, and this appeal challenges the sufficiency of the evidence to support the finding and .judgment. The rule in this court in this kind of case is the same as in any other case tried before the court sitting as a jury, and that is, that the finding of the court is entitled to the same weight as the verdict of a jury, which this court will not disturb if there is any substantial evidence to support it. Creekmore v. Scott, 179 Ark. 1113, 20 S. W. (2d) 177. In this case we think there is some substantial' evidence of abandonment. Appellant, on the death of his wife, was left without a family. Later he went to Pine Bluff to work, intending, as he says, to return when he married. If he had never married again, the presumption is, from that statement, that he would not have returned. In other words, his intention to return to his homestead was not unqualified, definite and certain, such as the law requires. In the case last cited, we said: “This court has uniformly held that an abandonment of a homestead is almost, if not entirely, a question of intention, which must be determined from the facts and circumstances attending each case. The court has further held that a removal from the homestead maybe caused by necessity, or for business purposes, and that, if the owner has an unqualified intention to preserve it as a homestead and to return to it, his removal cannot result in the abandonment of the land as a homestead. Gazola v. Savage, 80 Ark. 249, 96 S. W. 981; Caldcleugh v. Caldcleugh, 158 Ark. 224, 250 S. W. 324, and cases cited.”

The evidence further shows that appellant had been married to his second wife five months and had not moved back to his homestead! and had paid his 1931 personal taxes in Jefferson County. These are circumstances tending to show abandonment, and abandonment of a homestead may be proved by conduct, circumstances, and actions, as well as by direct testimony. Lilly v. Lilly, 178 Ark. 324, 11 S. W. (2d) 765; Creekmore v. Scott, supra. Tested by these rules, we cannot say there is no substantial testimony to support the finding and judgment of the circuit court.

Affirmed.

Kirby and Mehaeey, JJ., dissent.


text:
    Coleman v. Hawkins.
    Opinion delivered March 7, 1932.

      Isgrig \& Morrow, for appellant.

      L. P. Biggs, for appellee.
   McHaney, J.

Appellants purchased from appellee building material and supplies on a cash basis to the amount of $951.02 for rebuilding a house in Little Rock which had been partially destroyed by fire. The house was insured, but the amount of the loss was largely paid to the holder of the mortgage thereon to discharge it. Part of the insurance money was used to pay for labor in rebuilding the house. Appellants thought they could borrow sufficient money on a new mortgage to pay all labor and material bills, but were unable to do so. Mechanics’ liens were filed against the property, and finally an arrangement was effected to borrow $2,000 on a first mortgage and prorate this amount among the different lien-claimants. This was done, and the liens released. In this deal appellee received $483.01, leaving a balance due him of $468.01. Appellants then executed and delivered to appellee their notes aggregating $900 dated August 1,1930, pajmble $75 November 4, 1930, and $50 on the first of each month thereafter until the sum of $900 was paid with interest at 8 per cent., secured by a second mortgage on said property, both providing for accelerated maturity in the event of default. Appellants defaulted, made no payments, and suit was instituted to foreclose. The defense was that the contract was usurious and void. Included in this mortgage was a balance due another for plumbing in the sum of $83.75. The court found for appellee for the balance due him with interest in the sum of $525' and decreed a foreclosure.

Usury is the ground urged for a reversal. We think the court correctly held the contract not to be usurious. Appellants executed the notes and mortgage and delivered them to appellee to be held for a time with the intention of selling them at a discount, or a sufficient amount of them, to pay appellee’s account. No sale could be made. Appellee never at any time sought to collect more than the balance due him, and that is all he wanted or asked for in. the trial of this case. It was simply an arrangement between appellants and appellee to issue notes in excess of the account to be sold at discount for their joint benefit. “There was no element of lending or borrowing money in the transaction.” Smith v. Kaufman, 145 Ark. 548, 224 S. W. 978.

We find no error, so the decree is affirmed.