text:
    Guardian Life Insurance Company v. Dixon.
    Opinion delivered March 27, 1922.
    1. Evidence — presumption against suicide. — The presumption against suicide stands until overthrown.
    2. Appeal and error — conclusiveness of verdict. — To disturb a verdict on appeal, the Supreme Court must hold that the finding of the jury is against the uncontradicted evidence and every legitimate inference deducible therefrom.

      3. Insurance — evidence to support verdict. — In an action on certain insurance policies, evidence held to support a verdict that insured did not commit suicide.
    4. Insurance — evidence—coroner’s proceedings. — Though the minutes of the coroner’s inquest were exhibited with proof of death, the policy not requiring such exhibit, evidence of such proceeding was not admissible to prove a defense of suicide in an action to recover on policies.
    5. Witnesses — corroboration by proof of former testimony.— The testimony of a witness at a coroner’s inquest cannot be read to corroborate his testimony given at the trial.
    6. Insurance — penalty and attorney’s fee. — Notwithstanding the proof shows that a coroner’s jury returned a verdict that insured committed suicide, in an action on policies there was no error in allowing the statutory -penalty and attorney’s fee in judgments for the beneficiaries.
    7. Insurance — what law governs. — The nature, validity and interpretation of contracts are to be governed by the law of the place where they are made, but the remedies are governed by the law of the forum.
    8. Courts — comity.—A construction of a statute of another State will by comity be enforced in the ease of a contract there made if not contrary to general public policy of this State and not violative of any statute thereof.
    9. Appeal and error — harmless error. — In an action on a life policy, where the jury found that insured did not kill himself, an instruction authorizing recovery unless the jury found that deceased intentionally committed suicide was harmless.
    Appeal from Miller Circuit Court; George R. Haynie, Judge;
    affirmed.
    STATEMENT oe pacts.
    Four separate suits were brought by the beneficiaries against different life insurance companies to recover on policies of life insurance upon the life of Dr. B. E. Dixon and the cases were consolidated for the purpose of trial.
    Dr. Dixon had a policy for $5,000 in the Guardian Life Insurance Company of America which was for the benefit of his estate. Dr. Dixon had a policy for $1,000 in the Modern Order of Praetorians, and his minor child, Norman D. Dixon, was the beneficiary. Dr. Dixon had a policy for $3,000 in the Reserve Loan Life Insurance Company, and the policy named Norman D. Dixon, his ■minor child, as the beneficiary. Dr. Dixon also had a policy in the Reserve Loan Life Insurance Company payable to his wife, Ura E. Dixon, and the policy had a commuted value of $7,629. Dr. B. E. Dixon died as the result of a pistol-shot wound at the office of A. L. Bur-ford, an attorney, in the State National Bank Building, Texarkana, Ark., a few minutes before noon on the 6th day of December, 1920. It appears from the record that the Buchanan-Vaughan Auto Company, of which Earl Buchanan is president and Carl Vaughan is secretary, had sold Dr. B. E. Dixon an automobile for which he had executed two notes for $1,000 each in part payment and had also turned over to the compány his old automobile to be sold and the proceeds applied to the purchase price of the new one. Previous to this transaction, Dr. Dixon had given the Texarkana National Bank a mortgage on his old automobile for $500. The Buchanan-Vaughan Auto Company paid the mortgage of the bank and had the same transferred to it. A. L. Burford was attorney for the'company, and had for collection the two $1,000 notes given for the new car and also the $500 note secured by the mortgage on the old car.
    According to the testimony of A. L. Burford, at the request of Dr. Dixon he arranged for a meeting between Dr. Dixon and Vaughan and Buchanan at his office for the purpose of trying to adjust their differences. Dr. Dixon was insisting that they should take back his old ■ car, and that he would give them back the new one. Carl Vaughan did most of the talking for the auto company. During the course of the conversation, he pressed Dr. Dixon to know why he had not told them when he let them have the old car that it was mortgaged to the bank. He told Dr. Dixon that the auto company would expect him to pay the $500 that the company had paid to secure a transfer of the mortgage from the bank to it. Mr. Vaughan pressed Dr. Dixon pretty closely about not informing him that the old car was mortgaged, and Dr. Dixon finally asked Mr. Vaughan if he wanted to make it a personal matter, saying if lie did lie was ready to do it. Dr. Dixon offered to pay the indebtedness against the old car and take it back, provided they would take back the new car and give him his notes. During the course of the conversation, Vaughan was sitting at the north end of a roll top desk, in the private office of the witness, between it and the corner of a table 8x13 1/2 feet. The table was about two feet longer than the desk and stood in front of the desk about four feet away from it and about six feet from the east wall of the room. Dr. Dixon was sitting two or three feet from the southeast comer of the table, being eight or ten feet from Vaughan. After Dr. Dixon had expressed himself as being ready to settle the matter in a personal way if Vaughan wanted to make it a personal matter, Vaughan made the statement that he was ready to settle it in a personal way if Dr. Dixon wanted to. Burford told them to husli up, that this was-not the way to settle the controversy. They then talked further about the matter. Soon afterward Dr. Dixon rose up and drawing a pistol from his overcoat pocket, after taking a step or two toward Vaughan, fired at him. Vaughan rose up and started toward Dixon. The first shot missed Vaughan but the second one struck him. Dixon had an automatic twenty-five caliber, seven-shooting pistol. When Dixon fired the second shot, Vaughan was bent forward facing him. The second shot struck Vaughan at the edge of the hair in the front part of his head. Vaughan fell to the floor on the east side of the table and was rendered unconscious. He was not armed at the time. There were two doors in the private office of Burford. One of them led into a front room which was used by his stenographer, and the other opened into a hall of the building. The door leading into the hall had a spring lock and was usually kept closed. It was opened when the shooting occurred. Burford took hold of Dixon after he had fired the second shot and pushed him toward the hall door. He does not remember whether he pushed him entirely outside or not. Burford then passed into Ms stenographer’s room and toward his stenographer’s desk in order to get to the telephone. In going toward the telephone he had his back to the room in which the shooting occurred. He had not reached the telephone when he heard a third shot, and had not seen anything that had occurred in his private room while his back was to it going toward the telephone. When the third shot was fired, Burford turned around and saw Dr. Dixon about the time he fell to the floor. Dr. Dixon turned or twisted about the time he hit the floor, and almost immediately died. Buchanan ducked down on the floor when Dixon shot at Vaughan. He had gotten up off of the floor when Burford pushed Dr. Dixon towards the hall door. Buchanan did not leave the room until after the third shot was fired. Vaughan raised up after the shooting, but turned sick, and they laid him down oh the floor again. There was a large rug on the floor of Burford’s private office, and Dixon made no resistance at the time Burford took hold of him and led him towards the door.
    According to the testimony of Earl Buchanan, they all rose to their feet when Dr. Dixon first drew his pistol. Dr. Dixon fired the first shot over Buchanan’s shoulder and missed Vaughan. The second shot hit Vaughan, and he fell down on the floor. Burford then went to Dr. Dixon, put his arm around his shoulder and pushed him out of the room. Buchanan had ducked down on the floor when Dixon fired the second shot, and he got up just after Dr. Dixon went out of the room. After Dixon had been pushed from the room he walked .back into it. He looked around at Mr. Vaughan on the floor and then placing the pistol to his head, pulled the trigger and shot himself. He just simply raised the gun to his head and fired. He immediately fell on his face on the floor. Bur-ford and Dixon had no scuffle, and Dixon was led out of the room easily and gently. There was no more noise about it than the ordinary walking of two men. Buchanan knew the pistol had steel-jacketed bullets because an automatic pistol does not shoot anything else.

      Other occupants of the building heard the shots and ran to BurfOrel’s office. They found Dr. Dixon lying on his back with his head pretty close to the door entering the stenographer’s office and with his feet turned toward the east door of Burford’s office leading into the hall. His head lay a foot or two from the door leading into the stenographer’s office. The wound was in his hair on the right side of his head behind the ear. There was blood and apparently brains coming from it. The witnesses did not notice any pistol until after Dr. Light-foot came in. Dr. Dixon had on his overcoat and the flap of it was lying over his right arm and hid it from view. When Dr. Lightfoot took hold of Dixon’s right hand, the pistol fell from it. Yaughan was still down on the floor when the witnesses ran in after the shooting.
    G. G. Pope, an attorney, had offices in the same building directly under those of A. L. Burford. He was a witness for the plaintiffs. According to his testimony he heard two quick shots; then a sort of scuffling around like they were moving furniture or something, and then he heard another shot. On cross-examination Pope stated that the impression he got was that some kind of furniture was moved; probably chairs or something like that.
    According to other witnesses there were four bruises on the head and face of Dr. Dixon. There was a bruise below the eye and one above it. There was also a small bruise at the edge of the hair. The fourth bruise was above and a little to the left of the front bruise on the edge of his hair. The spots were dark, but there was not any swelling except a little puff under his eye. Experiments were made with the pistol found in the hand of Dr. Dixon by shooting it at a white cloth. One shot was fired at a distance of about four inches from the cloth, the next shot was six inches, the next eight, and the next twelve. The cloth was white and clean before the shots were fired. The first shot showed powder burns on the cloth and the other marks just powder. Similar experiments were made by firing" the same pistol at a dressed chicken at close range and powder burns were also found on the body of the chicken.
    The pistol wound was over the right ear of Dr. Dixon, a little behind and above it. The wound was a clean one. There was no blistering of the skin, and there were no powder burns. The flesh or skin was not scorched or burned, and the hair was not singed. The above is the testimony of the undertaker who had charge of the body of Dr. Dixon. He testified that in twenty years’ experience he had seen two or three bodies a year where death had resulted from a pistol wound, self-inflicted, and that the bodies showed powder burns; that in some instances the flesh was bleached or scorched, but there was always powder burns.
    Other witnesses for the plaintiffs testified that Earl Buchanan testified at the coroner’s inquest that he was down on the floor looking at Mr. Vaughan when the third-shot was fired and did not see Dr. Dixon until he fell on the floor. Earl Buchanan denied that he had so testified.
    Other testimony will be stated or referred to in the opinion.
    The jury returned a verdict for the plaintiffs in each case, and from the judgments rendered in favor of the plaintiff the defendants have duly prosecuted an appeal to this court.

      Frank G. West, Thomas L. McCullough, King, Mehaffy & Wheeler, for appellants; Guilford A. Deitch, of counsel.
    1. The coroner’s inquisition was admissible in support of the proposition that Dr. Dixon committed suicide, and the court erred in excluding it.
    The certified copy of the inquest proceedings was admissible in evidence, to be considered by the jury as a part of the proof of death, and as admissions on the part of the claimants, the plaintiffs. 22 Corpus Juris 296; Id. 321; Id. 327; 4 Cooley’s Briefs on Law of Insurance, pp. 3467, 3468, 3471, and authorities cited.

      2. It was error to permit the coroner and certain members of the coroner’s jury to testify that Earl Buchanan, when a witness in the inquisition proceedings, made certain statements at variance with and contradictory of the written testimony certified to and returned with the inquest proceedings. Neither the coroner nor any member of the jury can be permitted to contradict such written and certified testimony. C. & M. Digest, § 1582; 59 Ark. 50; 26 S. W. 377.
    3. The coroner’s inquisition, the official return with the verdict of the jury and the coroner, signed by all of them, etc., was competent impeachment of the testimony of the coroner. C. & M. Digest, § 4187.
    4. The allowance of the penalty and attorney fees against the Guardian Life Insurance Company and the Reserve Loan Life Insurance Company was clearly erroneous. It was shown that the defendants refused to pay the policies in full úpoñ the sole ground that the disclosures in the proof of death, including the copy of the proceedings before the coroner, showed that Dir. Dixon had committed suicide, and that the extent of their liability was the amount due under the suicide clause in the policies. We think the principles of the law of estoppel applies here. 9 Ark. 141.
    5. As to the Reserve Loan Life Insurance Company, the penalty and attorney fees were not recoverable because its contracts were made and delivered to the insured in Texas, and the Arkansas statute will not apply. 164 S. W. 296; 247 Fed. 677; 78 So. 22; 191 S. W. 418; 199.S. W. 108.
    6. It was clearly erroneous to give this instruction: ‘‘ The jury are instructed that suicide within the meaning of the policy sued on is intentional self-destruction, * * * and unless the jury find * * * * that deceased intentionally killed himself, your verdict will be for the plaintiff. ’ ’ So worded, the instruction limits the question of suicide to one of intention, whereas the policies of the Reserve Loan Life Insurance Company except the risk of self-destruction, whether the insured is sane or insane. 'Self-destruction by an insane person is not suicide. Black’s Law Dictionary. The policies do not limit the act to intentional suicide. 118 Fed. 374; 258 Fed. 897; 41 S. W. 461; 27 S. E. 39; 81 N. E. 19; 24 Atl. 656; 39 N. W. 658; 88 N. W. 687.
    7. It was error to charge the jury that, “unless this presumption against suicide has in this case been overthrown by evidence, your verdict will be for the plaintiff. ” The fact that there is a presumption of law against suicide does not alter or control the proved facts. 'Such presumption is available only in the absence of evidence. Where proof of the facts is made, the question is to be determined from the greaterweight of the facts so proved, and not from any presumption of law. 213 S. W. 45, and authorities cited.

      Jones é Head, for appellees.
    1. It is settled in this State, both as to ordinary insurance companies, and as to fraternal societies, that proceedings at a coroner’s inquest, even though returned by a beneficiary in the proof of loss, are not admissible in evidence in an action to recover on the policy; and this rule obtains in other jurisdictions as well. 7 Cooley’s Brief, § 3134 (b); Id. § 7435 (f); 126 Ark. 483; 106 Id. 91-101; 144 Id. 126; 144 IT. -S. 76-88; 80 N. E. 429.
    2. The position taken by the appellants in effect that the testimony as shown by the minutes of the coroner ’s inquest, are inviolate, and that they are absolutely binding on all parties, is not supported by Gole v. State, 59 Ark. 50, relied on by them, nor by the decisions of this and other States. See 22 C. J. 428; 60 Ark. 400; 71 Id. 351; 76 Id. 515; 112 Id. 37; 134 Id. 340; 98 S. W. (Ky.) 296.
    3. As to the impeachment of Earl Buchanan: It has been held that, even though the witness is present who took the testimony at a former trial, and even though such witness swears that the testimony is correct, such testimony may, nevertheless, be impeached by the testimony of others present at such trial. 76 Ark. 515; 33 Id. 539; 68 Id. 441.
    4. Appellants’ good faith in denying liability, because of the proofs of death being accompanied by the coroner’s jury verdict showing suicide, affords no defense against the allowance of damages and attorney’s fees under the statute. 86 Ark. 115; 106 Id. 91.
    The fact that contracts with the Reserve Loan Life Insurance Company were made in Texas will not defeat the imposition of the damages and attorney’s fees. 119 Ark. 102; 131 Id. 419; 7 Cooley’s Brief, § 3885 (a); Id. % 3886 (a); 178 S. W. 816; 176 S. W. 266. If it is a Texas contract, the courts of this State will apply to the construction given by the courts of that State, and the result is the same; 61 S. W. 336; 86 Ark. 121; 58 S. E. 93; 109 S. W. 1116.
    The enforcement of penalty and attorney’s fees is a matter connected with the performance of the contract, and is governed by the law prevailing at the place of performance — Miller County, Arkansas, in this case. 91 U. S. 406; 23 L. Ed. 245; 68 S. W. 889; 222 S.W. 832.
    5. No error in the court’s instruction 1. Dr. Dixon’s sanity or insanity was not in issue. The instruction meant to differentiate between an intentional act and an accidental or unintentional one. Moreover, the appellants cannot complain now. The giving of this instruction was not made a ground for new trial. 144 Ark. 126; 258 Fed. 897; 147 U. S. 888; 213 S. W. 45.
    6. In this State, the presumption against suicide is not one of law; but one of evidence. 128 Ark. 155; 144 Id. 126; 131 Id. 419; 136 Id. 84-93. See also Cooley’s Briefs, ’§ 3255 and authorities cited.
   Hart, J.

(after stating the facts). Each of the policies of insurance sued on contained a clause rendering the policy void in the event of the self-destruction of the insured.

The defendants assign as error that the evidence fails to sustain the finding of the jury that the insured did not commit suicide. Before entering into a discussion of the evidence on this question, it is well to state the principles of law which should govern the jury in reaching its verdict, and which must govern us in testing the legal sufficiency of the evidence to, support the verdict.

In the first place, there is a presumption against suicide, and such presumption stands until overthrown by evidence in favor of the insurer. Grand Lodge of A. O. U. W. v. Banister, 80 Ark. 190; Aetna Life Ins. Co. v. Taylor, 128 Ark. 355; Columbian Woodmen v. Matlock, 144 Ark. 126; and Watkins v. Reliance Life Ins. Co., ante p. 12.

Under the settled rules of practice in this 'State, to disturb a verdict on appeal, we must hold that the finding of the jury is against the uncontradicted' evidence and every legitimate inference deducible therefrom. The reason for the rule is, first, that the jury have weighed the evidence and found the verdict; second, that the trial judge who also heard the testimony from the mouths of witnesses and weighed the same, has, by overruling the motion for a new trial, given the approval of his legal judgment to the verdict; and third, this court can not have the benefit of seeing and hearing the witnesses and observing them while testifying, but only reads the substance of their testimony as it appears from the record. St. L. S. W. Ry. Co. v. Ellenwood, 123 Ark. 428. In this case, not only the jury found against suicide, but the verdict has the approval of the trial court. As we have already seen, there is a presumption against suicide, and the burden of establishing self-destruction by a preponderance of the evidence is upon the insurer. The question presented for our determination is whether or not the evidence for the insurance companies has overcome this presumption as a matter of law. We cannot say that the verdict of the jury was the result of conjecture merely. It is true that, according to the testimony of Earl Buchanan and A. L. Burford, Dr. Dixon committed suicide; but it can not be said that their testimony is undisputed, and therefore conclusively establishes the fact of suicide. There was direct proof that there were no powder burns observed on Dr. Dixon’s head near the wound. This condition is met by the defendant’s declaration that their proof shows that the cartridges used were loaded with smokeless powder, and that this kind of powder would not cause powder burns.

Again, they say that the blood flowing from the wound caused the powder burns to be effaced. The trouble about this position is that the jury did not accept this explanation, but believed the witnesses for the plaintiffs on this point. An undertaker of twenty years’ experience said that, in cases where the shot was fired by the person killed, there were always powder burns and sometimes scorched or blistered places. Other witnesses testified that they fired bullets from the pistol found in the hands of Dr. Dixon at the body of a dressed chicken; and that, when fired at close range, the body of the chicken showed powder burns. Again, other witnesses fired the pistol at a clean white cloth at a close range, and the cloth showed powder burns.

Then, too, a lawyer who had an office directly under the office of Mr. Burford testified that after the first two shots were fired, he heard a noise as if furniture of some kind was being moved about in the room before he heard the third shot.

The jury might have inferred from this that there was a scuffle of some kind going on in the room after the first two shots were fired and before the third one was fired. It is true that Buchanan and Burford testified that such was not the case. But we must deal with legal inferences that the jury might draw from the evidence as a whole.

Then, too, the jury might consider the fact that there was no motive for suicide on the part of Dr. Dixon, except the fact of his quarrel with Vaughan and Buchanan, and his shooting Vaughan in hot blood.

Again, the jury might consider the fact that four bruises were found upon the face and head of Dr. Dixon. It is true, as suggested, that these might have been produced by his fall, but this is not conclusive.

While Buchanan testified at the trial that he saw Dixon shoot himself, he also testified that he was very much excited at the time. Witnesses for the plaintiffs testified that at the coroner’s inquest Buchanan testified that he was down on the floor when the third shot was fired and did not see Dr.’Dixon until he fell. Under these circumstances it cannot be said as a matter of law that the testimony of Buchanan and Burford is so consistent with itself that it overcomes the circumstances tending to contradict it.

We cannot say, as a conclusion of law, that the evidence is not legally sufficient to support the verdict, when viewed in the light of all the surrounding circumstances and the presumption against self-destruction. Where reasonable men may differ as to the legal sufficiency of the evidence, the jury, and not this court upon appeal, must determine the issue.

It is also assigned as error that the court excluded from the jury the proceedings of the coroner’s inquest which contained the finding that Dr. Dixon came to his death by a gunshot wound self-inflicted. This court has held that where, in an action against a life insurance company to recover for the death of the insured, the defense is that he committed suicide, the duly certified verdict of a coroner’s jury is not admissible for the purpose of proving such defense. American Natl. Ins. Co. v. White, 126 Ark. 483.

It is also insisted that, inasmuch as the minutes of the coroner’s inquest were exhibited with the proof of death, the same should be admitted' on the trial of the issue in the present case as in the nature of an admission by the beneficiaries that the insured committed suicide. There is nothing in the policy which requires the proceedings at the coroner’s inquest, including the verdict of the jury,to he exhibited with the proof of death, and under the holding in the case last cited, such evidence is not admissible in an action by the beneficiary to recover on the policy.

We are in effect asked by counsel to overrule that case, but we decline to do so. The case of Aetna Life Ins. Co. v. Milward, 118 Ky. 716, is cited in support of it. That case is also reported and annotated in 68 L. R. A. 285.

After a thorough discussion of the question the annotator says that a consideration of the whole matter leads to the conclusion that tiie weight of authority in the United States is against the reception of the verdict of the coroner’s jury. This case is also reported in 4 Ann. Gas. 1092, and in a note to the case it is said that the holding of the main case is in accord with the weight of authority.

The case from our court of Cole v. State, 59 Ark. 50, lends no support to the contention of counsel for the defendants. That was a criminal proceeding in which Cole was present at the coroner’s inquest and was suspected of being guilty of the homicide. Subsequently he was indicted for the murder of the deceased, and on his trial the court held that it was competent for the State to show what he had téstified to at the coroner’s inquest because he was a patty to it.

The proof of the death of Dr. Dixon was in all respects complete without the minutes of the coroner’s inquest. Its contents form no part of the representations of the claimants; the statements therein contained were not sworn to by them, nor presented as worthy of belief. No issue was raised by the insurance company as to the fact of Dr. Dixon’s death,and the claimants were in no respect bound by the minutes of the coroner’s inquest.

It is also insisted that the minutes of the coroner’s inquest were admissible to show what Earl Buchanan testified to in that proceeding. We do not agree with counsel in this contention. Earl Buchanan was a witness for the insurance companies on the trial of this cause, and related the circumstances surrounding the killing as he saw them. Ilis testimony at the coroner’s inquest could not he read to corroborate his testimony given at the trial. It is true that certain witnesses at the trial testified that Earl Buchanan stated at the coroner’s inquest that he was down on the floor and did not see Dr. Dixon at the time the third shot was fired, and only saw him as he was falling to the floor after it was fired. It will be remembered that Buchanan testified on the trial of this case that he saw Dr. Dixon point the pistol at his own head and fire it. It was competent for the plaintiffs to introduce the testimony in question for the purpose of contradicting the testimony given by Earl Buchanan at the trial of this case. Earl Buchanan denied having testified before the coroner’s jury that lie did not see Dr. Dixon point the pistol at his own head and fire it. It was not competent to corroborate his testimony in this respect by what he testified to at the coroner’s inquest. This would have the effect, not only of bolstering his own testimony, but all parties concerned in this trial would be bound by what he testified to in that proceeding. It was a proceeding in which none of the parties in the present case were directly interested.

It is next insisted that the court erred in fixing the statutory penalty and attorney’s fee against the insurance companies. We do not agree with counsel in this contention. In Arkansas Ins. Co. v. McManus, 86 Ark. 115, the court held constitutional our statute providing that in all cases where loss occurs and the insurance company liable therefor shall fail to pay the same after due demand made therefor, such company shall be liable to pay to the holder of such policy in addition to the amount of the loss, twelve per cent, damages, together with all reasonable attorney fees. The court sustained the statute as a penalty which the Legislature might impose under the police power by which it regulates insurance companies. See also Mutual Life Ins. Co. v. Owen, 111 Ark. 554.

It is claimed, however, by the defendants that, inasmuch as the proof of death' showed that the coroner’s jury had returned a verdict that Dr. Dixon came to his death by a wound self-inflicted, the penalty and attorney fees prescribed by the statute should not be imposed. This contention has been decided adversely to the defendants in the ease of Fidelity and Casualty Co. v. Meyer, 106 Ark. 91. No valid reason is assigned by the defendants why the rule laid down in that case should be changed, and we adhere to it.

It is also insisted by the defendants that some of the policies were executed and delivered to the insured in the State of Texas, and for that reason our statute providing for penalties and attorney’s fees should not apply. This court has held that the nature, validity and interpretation of contracts are to be governed by the law of the place where they are made, but the remedies are governed by the law of the forum. Lawler v. Lawler, 107 Ark. 70, and Wilson v. Todhunter, 137 Ark. 80.

The statute of the State of Texas provides that in all cases where the loss occurs and the life insurance company liable therefor shall fail to pay the same within the time specified in the policy after demand therefor, such company shall be liable to pay the holder of such policy, in addition to the amount of the loss, twelve per cent, damages on the amount of such loss, together with all reasonable attorney fees for the prosecution and collection of such loss. Texas, Rev. Stat. 1895, § 3071.

This section was construed by the Court of Civil Appeals of Texas in Mutual Reserve Life Ins. Co. v. Jay, 109 S. W. 116. The court- said that the additional twelve per cent, upon the amount of the policy provided for in the statute is not a penalty, but is declared to be damages, and that every contract of insurance of the nature provided for entered into in the. State of Texas is made in view of the .statute, and its provisions enter into and form a part of it. A writ of error was denied by the Supreme Court of the State of Texas. Hence it may be taken as settled by tbe Supreme Court of that State that the plaintiffs were entitled to the twelve per cent, as damages together with a reasonable attorney’s fee. That construction of the statute will be enforced by comity in this State because it is not contrary to our general public policy on the question and is not violative of any statute of this State.

It is also insisted that the judgment must be reversed because the court in its instructions gave the plaintiff the right to recover unless the jury should find from a preponderance of the evidence that the deceased intentionally killed himself.

Counsel for the defendants contend that in the policies of some of the companies the intention of the insured is not material, but that the policies are void if he kills himself intentionally or accidentally. No prejudice could have resulted to them from this instruction, because the jury made a special finding that Dr. Dixon did not shoot himself.

Other assignments of error are made, which we have considered and find not well taken. "We do not deem them of sufficient importance to merit a detailed discussion.

We have carefully examined the record and have found no reversible error in it.

It follows that the judgment will be affirmed.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    McCuen v. Grand Lodge of Arkansas I. O. O. F.
    Opinion delivered April 3, 1922.
    1. Courts — jurisdiction.—Circuit courts have no jurisdiction of an action on account due by contract for less than $100.
    2. Pleading — amendment op complaint. — A complaint begun in the circuit court on a contract for $40, being without the court’s jurisdiction, could not be amended by increasing the sum sued for to $140, and the action was properly dismissed.
    Appeal from Pulaski Circuit Court, Second Division; Guy Fullt, Judge;
    affirmed.

      Oscar E. Winn, for appellant.

      Rowell & Alexanderf for appellee.
    The original complaint did not state a cause of action and it was within the discretion of the court to refuse to allow an amendment to he made, making new parties to the proceeding. 34 Ark. 144; Robertson Co. v. Rich Const. Co.; 139 Ark. 299; 94 Ark. 277. The error complained of is not here for review. 148 Ark. 316; 122 Ark. 148, The appellee and its subordinate lodges do not come within the fraternal benefit society act of 1917, therefore the attempt to sue Far West Lodge and the Arkansas City Lodge can not be sustained on any theory. 148 Ark. 323; 234 S. W. (Ark.) 464.
    The court did not abuse its discretion in' refusing to permit the amendment, and in sustaining a demurrer to the complaint. 104 Ark. 276.
   McCulloch, C. J.

Appellant instituted this action in the circuit court of Pulaski County against the appellees, Grand Lodge of Independent Order of Odd Fellows of Arkansas, a fraternal society, and against Far West Lodge I. O. O. F.., a subordinate branch of the society at Little Rock, and Lodge No. 495 I. O. O. F., another subordinate branch of the Grand Lodge, located in Desha County, at Arkansas City.

The action was instituted to recover the sum of forty dollars, alleged to be due on contract concerning the payment of burial expenses of appellant’s son, who was a member of the fraternity.

Neither the Grand Lodge I. O. O. F. nor the subordinate lodge at Arkansas City have any domicile in Pulaski County, and the chief officer of the Grand Lodge was served with process at Pine Bluff, and the officers of Lodge No. 495 were served at Arkansas City. The two. last mentioned appellees appeared in the action solely for the purpose of moving to quash the process, and later all of the appellees joined in a motion to dismiss on the ground that the complaint did not state a cause of action within the jurisdiction of the court, in that the suit was brought on an alleged contract to recover the sum of forty dollars. Upon a hearing of this motion the court sustained it.

At the time the motion was heard it appears that the amount stated in the complaint had been changed by pencil interlineation so as to show that the amount claimed was $140 instead of $40, but the court in its order dismissing the complaint made a finding that the amendment was made after the filing of the complaint. The court is presumed to have heard evidence on that question, and, as there is no bill of exceptions in the record, we must assume that there was sufficient evidence to warrant the court in finding that the interlineation was made after the complaint was filed. In fact, it is' not asserted by counsel for appellant that the interlineation was made prior to the filing of the complaint, ‘but the contention is now that the appellant had a right to amend the complaint at any time before an answer was filed.

The contention of colunsel in this resjpect twould be correct if the original complaint had been sufficient to confer jurisdiction on the court, but such is not the case, as the circuit court has no jurisdiction of an amount due by contract less than $100. There was, therefore, nothing to which the amendment could be attached, for the making of an amendment could, at most, only be treated as the commencement of a new action, and there was no error in the court refusing to permit the original complaint, as amended, to stand in the case as the commencement of a new action.

In the case of Kansas City Southern Ry. Co. v. Anderson, 104 Ark. 500, and S. R. Morgan & Co. v. Pace, 145 Ark. 273, we recognized the right of a plaintiff to amend his complaint at any time before answer, without permission of the court, and to amend after answer with permission of the court, but in those cases the original complaint stated a cause of action within the jurisdiction of the court. In the present case there is no jurisdiction stated in the original complaint, and, as before stated, there was' nothing to give the court jurisdiction, even to allow an amendment.

Judgment affirmed.


author: Smith, J.

text:
    Sims v. Hammons.
    Opinion delivered March 27, 1922.
    Landlord and tenant — jurisdiction to enforce landlord’s lien.— Under its general power to enforce liens, equity has jurisdiction to enforce a landlord’s lien, and, having acquired jurisdiction for that purpose, it may proceed to assess damages resulting from delay in threshing a rice crop and delivering his share to the landlord.
    Appeal from Prairie Chancery Court, Southern District; John M. Elliott, Chancellor;
    affirmed.

      W. A. Leach, for appellant.
    1. Chancery has no jurisdiction. The landlord’s lien is of statutory creation, exclusively. The statute prescribes an adequate and complete remedy. Sedgwick on Statutory and Constitutional Law, §§ 342, 343; 73 Ala. 390; 1 Cyc. 707; 1 R. C. L. 323, § 9; Rev.. Statutes (Ark.) ch. 88, §§ 11, 12, 13; C. & M. Digest, §§ 6559, 6560 and 6561; 7 Ark. 305; 10 Id. 602; 24 Id. 545; 25 Cyc. 681; 17 R. C. L. 613, § 26; 4 L. R. A. 531.
    2. That damages to a growing crop are not remote and speculative, and may be made the basis of an action, is well settled. Likewise the rule by which these damages are to be measured. 6 A. & E. Ann. Cas. 946; 136 Ark. 231. It was' competent for the appellant to estimate what the yield of rice would have been had the water supply been sufficient, basing* his statements on his own crops raised in 1918 and the crops raised on the leased premises in 1917. 57 Ark. 512.
    In arriving at the amount of damages or the value of the crop destroyed, it is proper to consider the hazard to which the crop is subjected, and the likelihood of its having ultimately matured. 56 Ark. 612.

      John h. Ingram and Meek & Meehan, for appellee.
    1. Equity has jurisdiction. It had it under the original statute creating the landlord’s lien, and the fact that similar jurisdiction was subsequently conferred upon courts of law does not divest the original jurisdiction of equity. The present statute, O. & M. Digest, § 6889, enacted in 1868, is but a reenactment of the statute of 1837. 30 Ark. 568; 56 Id. 544; 115 Id. 230; 36 Id. 575; 44 Id. 108; 48 Id. 355; 72 Id. 143.
    2. As to the extent of appellee’s obligation to furnish water, the parties must be held to have contracted with reference to the specific sources of water, and the distinction should be kept in mind between an undertaking to furnish a stipulated quantity of water, and such an undertaking where there is no express agreement or warranty that the well or wells will furnish all the water necessary. 13 Corpus Juris, 640.
    3. A party breaching a contract cannot maintain an action thereon.
    Sims, in order to recover, must show that his loss was due to Hammons’ breach of the contract. If there were mutual violations of the contract, both tending to diminish the crop, appellee ought not to be held for the entire loss. But, in this case, an adjustment of the equities is impossible, as it presents problems which are purely speculative. Appellant should be denied recovery on account of any breach by appellee.
   Smith, J.

Appellee was the owner of a tract of land containing 540 acres, which he rented to appellant for the year 1918 to grow a rice crop, under a verbal lease, about the terms of which the parties disagree. The chief point of difference relates to the quantity of water appellee was to furnish; and we think the testimony supports appellant’s contention in this respect. With this point settled, the contract may be stated as follows: Appellee was to install a new well and furnish the water necessary for making the rice crop, in, the weir ponds or pools. He was also to-furnish one-half the seed rice, one-half the sacks and twine, pay one-half of the threshing bill, and receive one-half the rice as rent. Appellant was to seed the land, distribute the water, cultivate and harvest the crop, furnish one-half of the seed rice and half the twine and sacks, pay half the threshing bill, and receive one-half the crop as his share, and deliver to appellee the other half either at LaG-rue station or in the warehouse on the leased premises.

It is contended by appellee that appellant grew and harvested a crop of 20,000 bushels, but that appellant did not properly care for the rice after growing it, thereby losing about 9,000 bushels, one-half of which would have gone to appellee, and this suit was brought in equity to recover the value of the rice thus lost and to enforce a lien upon appellee’s part of the crop which had been withheld from him by appellant.

Appellant denied that the crop amounted to 20,000 bushels, and denied that any part of the crop was lost by a failure on his part to properly care for the rice. He alleged, by way of cross-complaint, that appellee had failed to furnish a sufficient amount of water', whereby 153 acres which had been properly seeded were lost because of the lack of water, and there was a prayer for damages for appellant’s interest in the rice thus lost.

The original complaint alleged a failure by appellant to deliver to appellee his share of the rice, and there was a prayer for the appointment of a receiver, which application was later withdrawn.

It was contended by appellee that appellant failed to harvest and thresh a large quantity of the rice which was grown, and had failed to. deliver appellee his part of the rice which had been threshed, and that under the contract his part of the rice should have been delivered at threshing time, and that on account of the rice being held by appellant beyond that time the rice which was delivered was damaged and was worth less on the market than it was worth when delivery was due.

Appellant moved to transfer the cause to law, and assigns as error the refusal of the court to grant that motion.

We think the testimony shows that appellee failed to furnish the proper amount of water as required by the contract. But we think it appears with equal clearness that appellant did not conserve and properly use the water which was furnished. This was due chiefly to the failure to properly maintain the various levees necessary to distribute the water over the entire crop.

The undisputed testimony shows there was a large acreage on which the crop did not mature for the lack of water and which was never cut, and, as we have said, this resulted from concurring breaches of the contract by the respective parties.

In a written opinion on the facts, the court below found that “to determine how much rice might have been grown on this land if it had been properly watered, and how much should have been saved if it had been properly threshed, would require the court to enter the realm of speculation. The testimony regarding these matters is not sufficiently definite and certain to form the basis of a judgment in behalf of either party.”

We concur in this view; but each of the parties is so far responsible for the failure to mature the crop which would otherwise have been grown that neither can recover from the other, as we are unable to apportion the consequences flowing from the respective breaches of the contract.

The court below found, however, that appellee received 3,499 bushels of rice, for which he should have received $2 per bushel, or $6,998, but for which he actually received only $5,492.03, and judgment was rendered against appellant for $1,505.97, the difference. The court found that the damage resulting in this difference was caused by appellant’s unnecessary delay in harvesting the rice and in threshing it while wet and in holding it in storage after he should have delivered it to appellee.

The testimony is conflicting upon these questions of fact, but, without setting out this testimony, we announce our conclusion to be that the finding of the court below thereon is not clearly against the preponderance of the evidence.

The question, however, which is most strenuously insisted upon, and which might properly have been first disposed of, is that of jurisdiction. It is earnestly insisted that the cause should have been transferred to law, as this is nothing more than a suit to enforce a landlord’s lien and to recover damages, and that as the lien is of statutory creation, and as the statute which creates it provides a remedy for its enforcement by a suit at law, that remedy is exclusive.

In response to this insistence, it is pointed out that the statute giving a landlord a lien as reenacted in 1868 (the existing law) is identical with the first statute giving a landlord a lien, which was enacted in 1837, and that the statute providing for enforcement of the lien by an attachment proceeding was not enacted until 1860.

But, aside from this, equity had jurisdiction under its general power to enforce liens. We have frequently so decided in construing the statute on mechanics’ liens. The statute creating the mechanics’ lien provides that “all liens created by virtue of this act shall be enforced in the circuit court of the county wherein the property on which the lien is attached is situated, # * * * (Section 6925, C. & M. Digest); yet we have frequently held that such liens are enforceable in equity notwithstanding the remedy given at law for their enforcement. Among the cases where the question of jurisdiction was considered in the ‘enforcement of a mechanic’s lien is that of Martin v. Blytheville Water Co., 115 Ark. 230, where we said: “Again, it is contended by counsel for the intervener that he could not assert his lien after the receiver was appointed, ' because, under § 4983 of Kirby’s Digest, liens acquired by virtue of the mechanics ’ lien act must 'be enforced in the circuit court of .the county where the property on which the lien is attached is situated. In Rockel on Mechanics’ Liens, § 198, the author says that the act usually provided by statute is not regarded as giving exclusive remedy, but that it is merely cumulative, and the debtor may pursue whatever other remedy he may have to secure payment of his debt, and in support of the text, cites Murray v. Rapley, 30 Ark. 568. In the case of Kizer Lumber Co. v. Moseley, 56 Ark. 544, the court also held that an action to foreclose a mechanic’s hen can be brought in the chancery court.” See also Carr v. Hahn £ Carter, 126. Ark. 609.

No lien was claimed on the crop for the amount of the damages caused by delay in threshing the rice and delivering appellee his part of it. Few v. Mitchell, 80 Ark. 243; Stephenson v. Lewis, ante p. 361.

But, having acquired jurisdiction of the cause for the purpose of enforcing the landlord’s lien, no error was committed in assessing these damages. Horstmann v. LaFargue, 140 Ark. 558.

Decree affirmed.


author: Humphreys, J.

text:
    Sadler v. McMurtrey.
    Opinion delivered March 27, 1922.
    Highways — road improvement district — validity op act • creating. —Where a bill attacked the validity of an act creating a road improvement district on the ground that certain lands were arbitrarily excluded therefrom and that the only, practical route from plaintiff’s and other lands was over the excluded lands, without alleging facts showing that, on account of the topography of the country, this was plaintiff’s only means of access to the road, the allegations were insufficient to show that the exclusion of the lands in question was arbitrary and discriminatory.
    Appeal from Cleveland Chancery Court; John M. Elliott, Chancellor;
    affirmed.

      Woodson Mosley, for appellant.
    The statute is arbitrary and discriminatory on its face, and therefore unconstitutional and void. 130 Ark. 70; 139 Ark. 574; 142 Ark. 73; 145 Ark. 49.

      Rowell é Alexander, for appellees.
    The boundaries of special improvement districts are determined by the Legislature, and this court is concluded 'by that determination except as to obvious and demonstrable mistakes. 104 Ark. 430; 102 Ark. 553; 141 Ark. 301.
    There is nothing to show there was a mistake in fixing the boundaries, and the court was right in upholding the act. 139 Ark. 322.
    A collateral attack cannot be made upon the assessment of benefits except as pointed out by statute. 139 Ark. 168; 139 Ark. 277; 144 Ark. 632; 147 Ark. 469.
   Humphreys, J.

This is an attack by appellant, a property owner within Road Improvement District No. 3 of Cleveland County, upon the validity of the district created by special act No. 645 of the Legislature of Arkansas in 1919. The district was created for the purpose of constructing a road from Rison in a southeasterly direction toward Monticello. Lands embraced within the district were designated by government calls, laid on each side of the road to be constructed, were contiguous to each other, separated in no way, as shown by the plat, from other lands in the district except by Big Creek, Saline River, railroads and other roads in the district. The northwest boundary line of the district excluded from the district the southeast quarter of section 2 and the north half of the northeast quarter of section 11, township 9 south, range 11 west, and included within the district the north half of the northwest quarter of said section 11. Appellant owned the land covered by the latter call. The land excluded from the district was between appellant’s land and the town of Rison, the beginning point of the road to be constructed. The Rison and Kingsland road ran from Rison in a southwesterly direction through thef lands described which were excluded, and also through lands included in the district belonging to other parties than appellant. The road to be improved, as stated above, ran in a southeasterly direction from Eison. The lands described as being in sections 2 and 11 which were excluded were nearer the road to be improved than appellant’s land. The lands excluded in section ^1 lie directly east of appellant’s land and the road to be improved, but did not abut on the road. All lands to the south and southeast of appellant’s land, up to and abutting on the road to be improved, are included within the district. In this direction no excluded lands intervened between appellant’s land and said road. So far. as appears from the record, appellant’s land is accessible to said road in that direction. A small part of section 15 and all of section 22 in township 10 south, range 10 west, in said county, are included within the district, but lie. on the west side of Saline Eiver, which separates these lands and other lands embraced within the district. Section 27, immediately south of said section 22, was excluded from the district. The statements above made concerning the location of the lands excluded from and included within the district are based upon a plat of said district attached to the bill as an exhibit.

The validity of the act creating said district is questioned upon the grounds, first, that the exclusion of the lands ixi said section 2 and 11 was arbitrary and discriminatory, because the only alleged practical route from appellant’s land to the improvement was over the lands thus excluded; and, second, because the only alleged practical route from sections 15 and 22, south of Saline Eiver, to said road was over said section 27, which was excluded from the district. Appellaxit cites in support of his contention that the exclusion of the lands described was arbitrary and discriminatory, rendering the district void: Heinemann v. Sweatt, 130 Ark. 70; Mil-wee v. Tribble, 139 Ark. 574; Johns v. Road Imp. Districts, 142 Ark. 73; Ruddell v. Rutherford, 143 Ark. 49. The facts in the cases cited showed that the complaining owners of lands were entirely separated from the roads to be improved by intervening’ lands excluded from the district. In the case of Ruddell v. Rutherford, supra, the facts showed that, oil account of the main channel of White River, it was impractical to go from section 19 to section 17, and that the only practical route in passing from one section to the other was through section 18, which was excluded from the district, and that it was apparent that section 18 was benefited by the improvement if section 19 was so benefited. No facts were alleged in the bill in the instant case showing that, on account of the topográphy of the country, the only access from appellant’s land to the improvement was over and across said lands in sections 2 and 11 which were excluded from the district. The plat filed as an exhibit to the bill shows that the lands included in the district south and southeast of appellant’s land are open and without barriers, over which appellant might pass from his land to the road to be improved. According to the plat, his land is not entirely separated from approach to the improvement by lands not included in the district. So with reference to the lands in said section 15 and 22, lying south of Saline RiWer. According to the plat, they lie nearer to the road to be improved than section 27, over which it is alleged the practical route lies in passing from sections 15 and 22 to the road to be improved. The only obstruction shown by the plat in the direct route from sections 15 and 22 to the road to be improved is the Saline' River, which is a small river, and the bill of rivers. The allegations of the bill, being mere con-contains no allegation that it cannot be forded or crossed by ferry or other means common to travel in the vicinity elusions unsupported by alleged facts, were insufficient to show that the exclusion of the lands in question from the district was an arbitrary and discriminatory exercise of the power of the Legislature in defining the 'boundaries of the district. The court was therefore correct in sustaining a demurrer to the bill and, upon the declination of appellant to plead further, in dismissing the bill. The decree is therefore affirmed.

Wood and Hart, JJ., dissented.


text:
    Chandler v. Griffin.
    Opinion delivered March 27, 1922.
    Evidence — conditional delivery op note — parol evidence. — In an action on a note in which defendant set up the defense that plaintiff, defendant’s father, conveyed land to her as an advancement, and took the note as a memorandum of the transaction and on condition that it should never be paid, the effect of such defense is that the note was given without consideration, and parol evidence was admissible to prove the defense.
    Appeal from Searcy Chancery Court; Ben F. Mc-Mahan, Chancellor;
    reversed.

      D. T. Cotton, for appellant.
    The demurrer to the answer admitted its allegations to be true. 90 Ark. 158; 102 Id. 380; Id. 470; 104 Id. 466; 106 Id. 357; 94 Id. 505.
    The rule of law against the introduction of parol evidence to vary or contradict the terms of a written instrument has no application to the state of facts alleged by this answer. There was an understanding between the parties as shown by the answer that there should be no binding contract at all until the death of appellee, and then the amount was to be deducted from appellant’s share of his estate. 133 Ark. 105. Parol evidence was admissible. 76 Ark. 140; 128 U. S. 590; 153 U. S. 228; 44 Kan. 431; 21 Am. St. Rep. 292; 11 L. R. A. 805; 24 Pac. 946; 214 Fed. 973. The answer set up a good defense. 69 Ind. 181; 58 S. W. 758; 59 Ind. 556; 3 Id. 337; 11 Id. 288; 20 Id. 62; 82 Id. 234; 107 Id. 340. Parol evidence is admissible to show the purpose for which a note was executed'where sued on by the payee. 85 Neb. 121; 91 Neb. 269. See also 112 Md. 648; 128 N. Y. S. 1078.
    No brief filed for appellee.
   Humphreys, J.

This is an appeal from a decree rendered in the Searcy Chancery Court in favor of appellee against appellants for $724.40. The suit was brought at law by appellee against appellants upon a promissory note executed on the 15th day of March, 1915, by appellants to appellee for $500, due two years after date, bearing interest at the rate of ten per cent, per annum, and reciting that it was executed for value received. Subsequently the cause was transferred to equity upon the alleged ground that the appellants had, and would interpose, an equitable defense to the note. After the transfer of the cause appellants filed an amended answer which (omitting formal parts) is as follows :

“They admit that on or about March 15, 1915, they executed to plaintiff the promissory note in controversy, amounting to $500, due twenty-four months after date with 10 per cent, interest on same, but that plaintiff fraudulently induced them to execute same. That S. W. Chandler, one of the defendants herein, is a daughter of said plaintiff, R. D. C. Griffin; that he owned seventy acres of mountain land adjoining said defendants; that he represented to defendants that he desired to give them this said tract of land; that he had never given his daughter anything, and that he wanted to give her this, and they would never have to pay for same; that at his death said amount would be charged against her when his estate was Avound up; that plaintiff said at this time that he had made advancements to his other children in this way and that he held their notes, and some of them for more than their part of the estate would amount to; and that he desired that defendants herein execute to him note for the above amount; he said that if they did not he was afraid that thé other children would object; that he would execute-them a warranty deed for said lands, and they would never have to pay it; that it was a gift to his daughter. That said plaintiff did execute to them a warranty deed to said lands, and that on said representations of plaintiff they executed said note. Plaintiff falsely and fraudulently made said representations for the purpose of having defendants execute to him said note; that they objected to signing same, but, believing said representations to be true, they executed - said note, and would not have done so otherwise.”

Appellee filed a demurrer to the answer, which was sustained by the court, and, appellants electing to stand upon their amended answer, the decree complained of was rendered.

The sole question arising and to be determined on this appeal is whether the answer stated a defense to the cause of action. The trial court, in sustaining the demurrer to the answer, proceeded upon the theory that the alleged defense contravened the principle that written instruments cannot be varied by parol evidence. The defense set up in the answer amounted, in effect, to a plea of no consideration for the note. It was alleged therein that the land conveyed by appellee to his daughter, S. W. Chandler, one of the appellees, was intended as an advancement to her by her father, and that the note was in the nature of a memorandum evidencing the value of the land advanced to her. There is nothing in the face of the note indicating that it was given for the purchase price of the land. Nothing appears in the face of the note to connect it with the land. To make parol proof, therefore, that the note was without consideration will in nowise contravene the principle that parol evidence is inadmissible to vary or contradict the terms of a written contract. The rule announced in Bragg v. Stanford, 82 Ind. 234, is directly in point. It is- as follows (quoting syllabus): “When a father gives money to his daughter, intended as an advancement, and at the same time takes the promissory note of her husband for the amount, for the purpose of evidencing the advancement, parol evidence is admissible, in a suit to subject her real estate, in which said money was invested, to the payment of her husband’s debts, to show the facts. The effect is to show that the note was given without consideration.”

For the error indicated, the decree is reversed and the cause remanded, with directions to overrule the demurrer.


text:
    Bostleman v. Henkle.
    Opinion delivered March 27, 1922.
    1. Gifts — enforcement of parol gift of land. — Equity will not enforce a parol gift of land unless it is followed by possession and valuable improvements made by the donee.
    2. Frauds, statute of — part performance.- — Where a son, for valuable consideration, verbally transferred land to his mother, and, though they continued to reside thereon, he surrendered dominion of the property to her, and she afterwards paid taxes and otherwise exercised ownership over it, this constituted sufficient part performance to obviate the statute of frauds.
    3. Infants — appointment of guardian ad litem — judgment.— A judgment against infant defendants will not be reversed because the clerk appointed a guardian ad litem, for them before service was had on them, where it appeared that the guardian filed a sufficient answer after service on the infants; the purpose of the appointment being to have a real defense made for the infants.
    Appeal from Woodruff Chancery Court, Northern District; A. L. Hutchins, Chancellor;
    affirmed.

      E. M. Carl Lee and W. J. Dungan, for appellants.
    1. The decree should be reversed as1 to the interests of the minors, Howard and Marvin Yaughan,because they have had no defense as required by statute. A guardian ad litem appointed before the service of summons’ on the minors acquires no authority to defend for such minors. C. & M. Digest, § 1114; 40 Ark. 56.
    2. The facts in evidence do not made out a parol gift from Emil Henkel to his mother. A gift of real estate to take effect in the future will not be enforced. 82 Ark. 33.
    Before a parol gift of land will be enforced possession must be taken by the donee in pursuance of the gift. 53 Am. Dec. 538. Not only so, but the donee m,ust make permanent and valuable improvements. 82 Ark. 33; 25 R. C. L. 279, § 81; 20 Cyc. 1201; 32 Ark. 97; 30 Am. Dec. 269.

      R. M. Hutchins and Coleman! Robinson £ House, for appellee.
    1. The minor heirs have not suffered for want of a defense. No judgment was rendered until after a vigorous and jealous defense by their guardian, and after service of summons upon them. The court specifically found that they had been served with summons and defended as required by law. That finding is conclusive.
    2. The evidence establishes a valid parol gift 'by Emil Henlcel of his interest in the land to his mother. In the absence of fraud, duress or undue influence, a gift inter vivos, when perfected, operates as complete transfer of the subject-matter thereof from the donor to the donee. The title thereby acquired by the donee is as good between the parties and those claiming under them as a title acquired by deed or purchase. 20 Cyc. 1216; 85 S. W. (Ark.) 244. The evidence of the parol gifts is sufficient. 20 Cyc. 1222, 1226; 132 S. W. 937; 74 Ark. 484; 96 Id. 609; 1 Id. 83; 60 Id. 169; 105 Id. 116.
    The burden is on-appellants to show that the gift was Was not free and voluntary, and intended to be irrevocable. 29 Cyc. 1658-1662. Emil Henkel’s debt to his mother was one reason and consideration for the gift. But there was not only the money consideration moving between the parties, but also personal services and a son’s gratitude for care and kindness on the part of the mother. 115 Ark. 155; 5 Pomeroy; Equity, 5012, par. 2243; 55 Ark. 587. £>ee also 50 Ark. 345; 10 Id. 224. As to what constitutes delivery of possession in cases of parol gifts, see 11 Ark. 266; 20 Cyc. 1199. On the question of improvements, see 56 Tex. 361; 70 Id. 18; 6 S. W. 818; 20 Cyc. 1224-1226. We may look to Emil Henkel’s conduct as well as to improvements, as to the probability of there having been a gift. 2 C. J. 150.
    3. Possession of land by a donee under a parol gift, accompanied by a claim of right, is adverse against the donor, and, if continued without interruption for the statutory period, matures into a good title, protected by the statute of limitations. 2 C. J. 150; Id. 151; 117 Ky. 47; 25 Id. 1186; 77 S. W. 397; 158 Ky. 639; 166 S. W. 225; 50 Ark. 345.
    4. The mother’s warranty deed to appellee was color of title, and notice of such fact to the father was a complete ouster, and at the expiration of seven years a perfect title vested in appellee. 62 Ark. 313; 50 Id. 345; 133 Id. 599; 96 Id. 609; 102 Id. 611.
   Humphreys, J.

This suit was instituted in the Woodruff Chancery Court, Northern District, by appellee, Herman F. Henkle, against appellants, George Bostleman, Gussie Meinah, Eckhardt Bostleman, and Howard and Marvin Vaughan, minors, for the purpose of confirming title in appellee to about 2,532 acres of land in said district and county. Summons was issued upon the petition on the 18th day of May, 1920, and on the same date, and prior to the service upon the minors, Marvin and Howard Vaughan, the clerk of the court appointed August Bostleman guardian ad litem, to defend for said minors. Return was not made upon the summons until May 29, 1920. On July 6th thereafter August Bostleman, guardian, who had been appointed by the clerk for the Vaughan children, filed an answer denying all the material allegations of the petition. No substantive steps had been taken in the case prior to the time the answer of said guardian was filed. In the petition for confirmation appellee deraigned title to said real estate through mesne conveyances from the State. In deraigning the title it was alleged that appellee acquired an undivided interest in said real estate in 1911 by warranty deed from his mother,- Caroline Henkle, who had acquired the title thereto from her son, Emil Henkle, by parol gift. The pleadings, as finally made up, presented two issues, the first being whether Caroline Henkle, the mother of appellee, acquired an undivided one-half interest in said real estate from her son, Emil Henkle, in 1908, or thereabouts, and the second being whether appellee had acquired title to said real estate by seven years’ adverse possession. The evidence shows that in 1903 appellee, Herman Henkle, and Emil Henkle became the joint owners of the lands in question. The weight of the evidence shows that Johann Henkle, the father of Herman Henkle, advanced $5,000 to Emil with which to purchase his interest therein. In 1908 Emil Henkle, a single man, died intestate, leaving surviving him his father, Johann Henkle, his mother, Caroline Henkle, his brother, Herman Henkle, his sister, Mrs. Emelia Schwartz, his sister, Mrs. Emma Crissman, and the heirs of a deceased sister, Augusta Bostleman Vaughan. Mrs. Caroline Henkle died in the year 1912, and Johann Henkle died in the year 1913. Prior to the death of Mrs. Caroline Henkle, she conveyed an undivided one-half interest in said real estate to appellee. The evidence is in conflict as to whether she acquired the title to an undivided one-half interest therein from her son, Emil Henkle, in the year 1908. After a careful analysis of all the evidence we have concluded that the weight thereof shows that Emil Henkle, who was in poor health and indebted to his mother in a large sum, to-wit: $2,000, and perhaps as much as $5,000, made an oral transfer to her of his undivided one-half interest in said property in full payment of said obligation. They were living together at the time and continued to reside together upon the property thereafter until the death of Emil Henkle, but the weight of the evidence shows that he surrendered dominion over the property to her, and that she after-wards paid the taxes thereon and otherwise exercised ownership over it. The witnesses, in detailing the transaction, referred to it as a gift. While the weight of the evidence is sufficient to uphold the transaction as a completed gift for defensive purposes, it is lacking in some necessary essentials to uphold it as a gift for affirmative purposes. The evidence fails to show that Mrs. Caroline Henkle made any valuable improvements upon the property after acquiring it. Equity will not enforce a parol gift, of land unless followed by possession and valuable improvements made by the donee. Young v. Crawford, 82 Ark. 33. This suit is for the purpose of enforcing the oral transfer of Emil Henkle’s undivided interest in said lands to his mother against the heirs of Emil Henkle. Appellee requested affirmative relief; against them. While the evidence is insufficient to uphold the transfer as an enforceable gift, we think, as seated above, that it is sufficient to uphold the transaction as a completed oral sale. The forgiveness of the debt existing between the mother and son furnished the consideration, and the surrender of dominion over the property by Emil Henkle to his mother was sufficient part performance to obviate the statute of frauds.

We deem it unnecessary to refer to or discuss the evidence responsive to the issue of whether appellee acquired title to said real estate by adverse possession, as we have reached the conclusion, upon consideration of the evidence in the case, that Mrs. Caroline Henkle acquired title to an undivided one-half interest in said real estate from her son, Emil Henkle. The facts are amply sufficient to uphold the finding of the chancellor upon that theory.

Appellants insist, however, that the case must be reversed as to the minors because the clerk appointed a guardian ad Utem for them before service was had upon them. The evidence shows that the guardian ad litem appointed by the clerk filed an answer denying all the material allegations in appellee’s bill after service was had upon them and 'before any substantive steps had been taken in the progress of the ease. The purpose of the appointment of a guardian is to have a real defense made for minors throughout the trial of the case, and the statute requiring the appointment of the guardian to be made after service was met in the acceptance of the answer by the court, tendered and filed by the guardian after service had been had upon the minors. Courts of equity look to substance, not to form. The minors in the instant case had their day in court. The defense made for them was real at every material step in the progress of the trial.

No error appearing, the decree.is affirmed.


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    Pullman Company v. Walton.
    Opinion delivered April 3, 1922.
    1. Carriers — failure to furnish accommodations — waiver.— Where passengers were refused, admission to a sleeping car after they had purchased tickets entitling them to such accommodations, the carrier was not absolved from liability by the fact that the passengers subsequently surrendered their tickets and accepted a return of their money.
    2. Carriers — failure to furnish accommodations — liability.— Where a Pullman passenger, on being refused admission to a car which his ticket called for, gave his tickets to a station porter with instructions to return to the ticket office and ascertain whether another berth could be had, the porter was not the passenger’s agent, and information given him by the ticket agent as to berth vacancies in the designated car, not being communicated to the passenger, was not binding on the latter.
    3. Damages — duty to mitigate. — Where a passenger who was desperately ill was refused admission to the sleeping car which his ticket called for, he was not required to suspend his journey by stopping over for a later train in order to mitigate damages resulting from the carrier’s breach of contract.
    4. Carriers--damages not excessive when.- — Where a sick passenger was refused a berth in a sleeping car, in violation of the carrier’s contract, and his sufferings were much augmented by failure to secure a comfortable bed during a 15-hour journey, a verdict of $1,000 for the added suffering was not excessive.
    5. Carriers — refusal to furnish berth — excessive damages. — A verdict of $250 in favor of a brother and a similar verdict in favor of a wife accompanying a sick man for refusal of a carrier to furnish berths conformably to their tickets for a 15-hour journey, held excessive, and should be reduced to $25.
    Appeal from Johnson Circuit Court; A. B. Priddy, Judge;
    modified.

      Reid, Gray, Burrow é McDonnell, for appellant.
    Appellees surrendered tlieir .tickets and received back tbeir money. There was no objection, and no right of recovery under tbe circumstances.
    If any cause of action in favor of appellees existed, it was based upon the negligence of the ticket agent, and not upon that the conductor. 65 S. W. 437; 65 Ark. 177. Misinformation given by one agent of a railroad where corrected by another agent before a party starts upon his journey cannot be made the basis of a cause of action. R. C. L. sec. 578, p. 1134; see also secs. 756 and 757. The regulation of the company under which the conductor denied appellees the right to berths upon their erroneous tickets is reasonable and for the benefit of both the passenger and the company. 306 Ark. 544; 94 Ark. 153; 98 Ark. 418; 106 Ark. 269.
    Appellees were guilty of contributory negligence in proceeding on their journey without proper accommodations which they might have secured on another train. 102 Ark. 246; 305 U. S. 224; 101 Ark. 94. The refusal to admit appellees to the sleeping car was not the proximate cause of the injury. 76 N. E. 237.
    The verdicts were excessive. Only nominal damages should have been allowed. 99 Ark. 420; 138 Mo. App. 238; 119 S. W. 1072.
    Plaintiff’s instruction No. 3. was erroneous because it allowed recovery for “wounded feelings,” which cause of action did not survive the death of Jesse Walton. 41 Ark. 295. Nor was this a basis for damages to the surviving appellees. 65 Ark. 377; 88 Ark. 282; 300 Ark. 356.

      Heartsill Rag on and Jesse Reynolds, for appellees.
    The surrender of the tickets did not deprive appellees of their cause of action.
    The sale of the tickets by the agent to the appellee constituted a, contract, which was breached by the refusal of the conductor to furnish the sleeping accommodations, and entitled appellees to recover damages. 10 C. J. sec. 1530, p. 1169; 5 R. C. L. 754, p. 125; 28 S. W. 721; 32 Misc. (N. Y.) 243.
    The verdicts were not excessive. 120 Ark. 54; 28 S. W. 719; 54 S. W. 624.
    Appellees were entitled to recover for “anxiety” and “humiliation”, as set forth in instruction 9 about which appellant complains. 65 Ark. 177; 88 Ark. 282 ; 47 Ark. 505; 98 Ark. 418. Appellant should have specifically objected to these elements of damage being in eorporated in the instruction, instead of contenting himself with a general objection. 116 Ark. 179; 98 Ark. 555; 87 Ark. 396; 118 Ark. 72.
   McCulloch, C. J.

This appeal involves three actions, instituted separately against appellant by appellees and later consolidated, to recover damages alleged to have resulted from failure to furnish sleeping car berths on a car operated from Kansas City, Missouri, to Clarksville, Arkansas. One of the actions was instituted by appellee Lee Walton in his own individual right; another was instituted by Lee Walton as administrator of the estate of Jesse Walton, deceased; and ihe third action was instituted by Nora Walton. Nora Walton was the wife of Jesse Walton, now deceased, and Lee Walton was a brother of the deceased. All of them lived near Clarksville, Arkansas, and Jesse Walton fell into ill health and had to go to a point in Colorado. He was afflicted with tuberculosis and gradually grew worse. So in April, 1920, when it was determined that he could not recover his health, deceased called upon his brother, Lee Walton, to come to Colorado and take him back to his home at Clarksville.

In compliance with his brother’s request, Lee Walton went to Colorado, and the party started back on the journey to Clarksville. Deceased was unable to travel alone and had to be carried about on a cot between trains, and while traveling on the car had to be carried back and forth to the toilet. He was then in a very low state of health, and died in about a month after returning home.

He was carried in a baggage car as far as Pueblo, Colorado, and there sleeping car accommodations were obtained form Pueblo to Kansas City, and a reservation was secured by wire from Kansas City to Clarksville over the Missouri Pacific Railroad.

■ The party reached Kansas City about 8 o’clock in the evening, and Lee Walton went to the Pullman ticket window in the station to purchase tickets for the berths designated in the reservation which had been previously obtained. The reservation called for lower berths 7 and 8 in car 9, but when Walton made application for the tickets he was told by the agent that car 9 would not go out on the train that night, but that car 8 would go out, and the agent sold Walton lower berths numbers 4 and 5 in car 8, Walton consenting to that change in the designation of the berths.

The train was to leave at 10 o’clock that .night, and the Walton party applied at the entrance of the Pullman car for admittance, but the conductor refused to admit them on the ground that the berths for which their tickets called had already been sold and occupied.

There is conflict in the testimony about the way the tickets read, but it is undisputed that there was a discrepancy in the designation of the berths, and that the conductor refused to admit the party into the car for the purpose of occupying the berths designated.

There is also a conflict in certain other features of the testimony as to what occurred after the Walton party appeared at the Pullman car. Lee Walton testified that when the conductor refused to admit him he stated that all of the berths in the car had been taken. He states that he then asked the conductor to furnish them at least one berth for his sick brother, but the conductor told him that every berth in the car had been taken, and that no accommodations could be furnished. He states that it was nearly time for the train to start, and he gave the tickets to a station porter with instructions to return the tickets to the ticket office in the station and to ascertain whether or not another berth could be obtained; that just before the train left the porter returned and handed him back his money for the tickets. He testified that it was so near the time for the train to leave that he was afraid to return to the ticket office himself, and that the Pullman conductor notified him that the train was about to leave.

The conductor testified that he refused to admit Walton to the car for the reason that his ticket called for berths in car number 9 when there was no such car to go out on the train. He testified that when this occurred it was thirty minutes before time for the departure of the train, and that he told Walton to go hack to the ticket office and get his berth tickets changed; that he saw no more of Walton and that no further request was made of him.

As the result of failure to get into the sleeping car, the Walton party went into the day coach — a chair car— and rode there from Kansas City to Clarksville. The schedule time for the trip was fifteen hours, but the train was three hours late when it arrived a,t Clarksville. The whole of the night was taken up in the ride from Kansas City to Coffeyville, the remainder of the trip being in the day time.

The testimony shows that Jesse Walton was very feeble at the time and was absolutely helpless. His brother made a resting place for him out of two seats with suit cases and 'boxes in between, but he was very uncomfortable all night and got little, if any, rest. The next day his temperature was considerably higher, and the evidence is that he suffered great inconvenience, discomfort and pain in failing to get a berth to sleep in. He had to be carried to the toilet several times during the night, and also suffered from being near the door, which was opened and slammed at stations when passengers were going in and out.

The jury awarded damages to the estate of Jesse Walton in the sum of $1,000, and awarded damages to each of the other appellees in their individual capacities in the sum of $250.

The conflicts in the testimony have been settled by the verdict of the jury, and the evidence was sufficient to warrant a finding in favor of appellees for the recovery of damages.

There is no question involved of the right of the sleeping car company to require the purchase and exhibition of tickets and to promulgate and enforce rules with respect to the operation of its cars. This does not, however, absolve the company from liability for negligence of its servants in refusing to furnish accommodations in accordance with tickets purchased by patrons, and the company was not absolved from liability in this instance by the fact that the holders of the tickets surrendered them and accepted the price of the tickets in return. This is true for the reason that appellee had then been deprived of the use of the tickets by the refusal of the conductor to admit them to the car. In other words, it was not a voluntary surrender of the tickets in the sense that there was a cancellation or rescission of the contract, the terms of which had already been broken by the company’s servant in refusing to admit the passengers into the car. All the passengers could do then was to surrender the tickets and accept return of the money, and the acceptance of the money did not waive the wrong or negligence of the servants in failing to comply with the contract.

The ticket agent at Kansas City who sold the Pullman tickets to Lee Walton testified that when the station porter came back to the office with the tickets he informed the porter of the mistake and told him to report to Walton that upper berth numbers 4 and 5 were unoccupied and that he could obtain them from the conductor on the train when the diagram was sent down. It is insisted that Walton was bound by this information imparted to the porter, even though it was not communicated to him. The testimony of Walton is that no such information was communicated to him, but that, on the contrary, he asked the conductor of the Pullman car to give him at least one berth if the opportunity to obtain one arose. He was not bound by the statement of the ticket agent to the porter, for the porter was merely a messenger and not the agent of Walton except for the purpose of surrendering the tickets and receiving the money in return.

It is also insisted that the members of the Walton party were guilty of negligence in not remaining in Kansas City that night after they had failed to obtain sleeping car accommodations, instead of proceeding' on their journey in the day coach. Learned counsel for appellant insist upon the rule often announced in decisions of this court that it is the duty of a person to exercise reasonable exertion and care to mitigate damages resulting from negligence or breach of contract of another. Western Union Telegraph Co. v. Ivy, 102 Ark. 246. The principle, of course, is sound, but it has no application to the facts of this case. One of the travelers, Jesse Walton, was desperately ill, and the party were not compelled to temporarily suspend the journey because they could not obtain Pullman accommodations. The inconvenience of remaining in Kansas City was sufficient to justify them in failing to suspend the journey, notwithstanding their inability to secure sleeping car accommodations. It would be unreasonable to impose the duty on travelers, situated as these people were, of suspending their journey and remaining over-night at a point short of their destination.

Finally, it is insisted that the award of damages in the verdict is excessive. We cannot say that the verdict in favor of the estate of Jesse Walton, deceased, is excessive. There is, as we have often said, no exact rule whereby damages may be measured for personal pain and discomfort. If we were called upon to assess the damages, we perhaps would not allow as much as the jury has allowed in this instance, but we cannot say that the award is excessive. The man was very sick, and according to the evidence his suffering was very considerably augmented by his failure to secure a comfortable bed during the journey from Kansas City to his old home. This added suffering, inconvenience and discomfort covered a period of eighteen hours, and we cannot say that the award of $1,000 as compensation for the suffering and discomfort during that period is excessive.

•The other two verdicts are, we think, clearly excessive. The situation of the two appellees was distressing. They were bringing home their husband and brother and were doubtless laboring under great physical and mental strain. They would have obtained but little rest, even if they had secured a berth in the Pullman car, and they are merely damaged to the extent of the inconvenience of sitting up during the night instead of lying down on a bed during the intervals that they could have spared from attention to the wants of the invalid. Of course, they cannot be permitted to recover for the mental anxiety suffered on account of the situation and condition of the invalid. Théír recovery must be confined to the injury imposed by depriving them of a place to rest. We think that, under the circumstances, they are entitled to recover little more than nominal damages. A recovery of $25 for each of them is all that should be sustained, and the judgment in their favor will be modified by reducing the recovery to that amount.

The judgment in favor of Lee Walton as administrator will be affirmed.

It is so ordered.


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    Barnett v. Mays.
    Opinion delivered April 3, 1922.
    1. Municipal corporations — passage of ordinances — publication. — Crawford & Moses’ Dig., § 7502, requiring that “ordinances of a general or permanent nature” be read on three different days before passage, and § 7499, requiring that such ordinances be published, have no application to an ordinance entering into a special contract, such as an electric light franchise.
    2. Good will — agreement not to furnish electricity. — A vendor of an electric light plant who agreed not to re-enter the business of furnishing electricity or to interfere with the operation of the plant by the vendee, may generate electricity for his own use and transmit it over the premises of others by permission, but cannot furnish electricity to others nor interfere with the vendee’s operation of the plant, even by the erection of poles over the premises of owners who may be willing to grant him the privilege.
    3. Electricity — use of streets and alleys for transmission.— One generating electricity for his own purpose cannot, without permission of the city, transmit it across streets and alleys to another plant owned by him.
    4. Electricity — right to use streets for transmission. — The fact that certain streets and alleys in a city used by the owners of an electric generating plant for transmission of electricity to another plant owned by him were closed and used as storage places by private interests was ho defense to an action by the city to enjoin such use; as the city could open them at any time.
    Appeal from Searcy Chancery Court; Ben F. Mc-Mahan, Chancellor;
    reversed.

      8. W. Woods, for appellants.
    The contract entered into between Barnett and the city of Leslie- was valid and binding. 100 Ark. 496; 20 L. R. A. 821; 9 R. C. L. 1186 ;• 118 Ark. 166; 80 Ark. 108.

      W. F. Reeves, for appellee.
    The ordinance granting the franchise to Barnett was not legally passed. C. & M. Digest, § 7502.
   McCulloch, C. J.

Appellee, Ed Mays, doing business individually under the style of Mays Manufacturing Company, owned an electric light plant in the city of Leslie and operated the same under a franchise granted by the city council for the purpose of furnishing electric light to the inhabitants of the city. In the operation of the plant he generated electricity by machinery used in a mill plant which he owned. Appellee sold the electric light plant to appellant, A. L. Barnett, by bill of sale executed July 23, 1920, but this sale did not include the dynamo and other machinery in the mill plant where the electricity was generated. In fact, appellee did not at that time own the dynamo in use.

According to the testimony adduced in the present litigation, it is clear that the terms of the sale by appellee to appellant Barnett contemplated that appellee would not re-enter the business of furnishing electric lights or interfering in any way with the operation of the plant sold to Barnett. At the time this sale was consummated, appellee had surrendered his franchise to the Corporation Commission, and appellant Barnett had obtained from the city council a new franchise. Barnett had likewise obtained a permit from the Corporation Commission. Barnett proceeded to perfect his plant by installing the necessary machinery and making other preparations.

This action was instituted by appellant Barnett, the city of Leslie joining therein, to restrain appellee from attempting to furnish electricity to inhabitants of the city and from using the streets and alleys over and along which to string wires, and from otherwise interfering with Barnett’s operation of the electric light plant under the new franchise granted to him.

Appellee, in his answer, denied all the allegations with respect to his attempt to furnish electricity to other parties, or the use of the streets and alleys- of the city, but alleged that he owned two mill plants, one inside the corporate limits of the city and the other just outside, and that all he was doing was to generate electricity at one of the plants for use in his business at both plants and to transmit the same over wires erected along the right-of-way of the railroad.

The issues were tried before the court, and there was a decree dismissing the complaint for want of equity.

It is, as before stated, clear that appellee should not engage in furnishing electric light to the public. There is no contention in the brief here on the part of appellee that he reserved the right to continue in the business of furnishing electricity. On the contrary, he claims that he has made no such attempt, and is only engaged in generating electricity for his own use in the manufacturing plants which he operates, and that he has not used the streets and alleys, -but is merely operating a wire erected along the right-of-way of the railroad, having obtained a permit from the railroad company to do so. Appellee does, however, dispute the right of appellants to maintain this action on the ground that the franchise granted by the city to Barnett is void because the ordinance granting same was not enacted in the mode prescribed by statute in that it was not read on three different days as required by statute. Crawford & Moses’ Digest, § 7502. The statute referred to only requires that the procedure mentioned must be observed in the passage of “by-laws and ordinances of a general or permanent nature,” and does not apply to an ordinance or resolution entering into a special contract. Batesville v. Ball, 100 Ark. 496.

It is also contended that the ordinance is void because it was not published, but the statute in regard to publication of municipal ordinances is limited in its application to ordinances of a general and permanent nature. Crawford & Moses’ Digest, § 7499.

We need not pursue any inquiry at this time whether the authority to grant such a franchise was taken awav from the city council and conferred upon the Corporation Commission by the act creating the latter Commission (Crawford & Moses’ Digest § 1653), for appellant Barnett held a franchise, not only from the city council, but from the Corporation Commission itself.

The only remaining question is whether or not appellee was violating his contract of sale to Barnett, or was attempting, without authority, to use the streets and alleys of the city for the purpose of transmitting electric current from one of his plants where it was generated to the other plant which he was operating.

The evidence not only establishes the fact that appellee was operating his wires over and across the streets, but there is also evidence tending to show that he was furnishing electric lights to others.

Appellee had the right, of course, to generate electricity for his own use and to transmit it from one place to another over his own premises, or over the premises of others from whom he might obtain a permit, for his own use at such other place. He has no right, however, to cross the streets and alleys of the city, nor to furnish electricity to other persons by transmitting it even over his own premises. He had no authority to use the streets and alleys for such purposes, and he is barred 'by his contract of sale to Barnett from furnishing electricity to other persons, regardless of how and under what circumstances it may be transmitted.

There is evidence also tending to show that appellee’s erection of new lines along the right-of-way constitutes an interference with appellant in the operation of his lines, and this appellee is barred from doing by his contract. He cannot in any way interfere with the operation by appellant of the electric light plant, even by the erection of poles over the premises of owners who may be willing to grant him the privilege. Even though he can obtain the privilege of erecting the wires from the railroad company or private owners, he cannot use such privilege, if it constitutes an interference with appellant’s operation of his plant.

Appellee attempts to escape the charge of using the streets and alleys by showing that some of the streets alleged to be used have been dosed up and used as storage places by appellant Barnett.and certain other manufacturing interests. The fact that the streets are temporarily closed does not deprive the city of authority over them, for the city has a right to open them at any time, and appellee has no right to use the streets over which to carry his electric light wires, even though the streets are temporarily closed.

We are of the opinion, therefore,' that the- court erred in dismissing the complaint, for the proof shows that appellants were entitled to relief.

The decree is therefore reversed, and the cause remanded with directions to enter a decree enjoining appellee from using the streets and alleys of the city for the purpose of stringing wires and from interfering in any way with appellant Barnett in the operation of his electric light plant, and also enjoining appellee from furnishing electricity to any other consumer.