text:
    Morgan Utilities, Inc., v. Perry County.
    Opinion delivered March 30, 1931.

      Buzbee, Pugh <(& UaA'rison, for appellant.

      Dean, Moore Brazil, for appellee.
   Butler, J.

This suit was instituted by the appellee, Perry County, in the chancery court of said county. The complaint alleged that B. R. Morgan, Gr. B. Colvin, and certain others, were indebted to it by reason of a judgment which it had previously recovered in the circuit court of said county, and that it had exhausted its remedies at law to enforce the same without effect, the executions issued from said court and directed to the sheriffs of Perry and Pulaski counties having- been returned nulla bona; that, although the said sheriffs had failed to discover any assets of S. P. Morg-an, upon which levy might be made, he was in fact the owner of valuable properties, and that he and the defendants, M. B. Morgan, Morgan Utilities, Inc., and other defendants named in the complaint, had conspired together to conceal the assets of the said S. R. Morgan by the incorporation of the defendant Morgan Utilities, Inc., together with a number of other corporations, the capital stock of which was issued to various persons* and that the assets belonging- to S. R. Morgan were held by the said corporations and M. B. Morgan; that M. B. Morgan and the defendant, Morgan Utilities, Inc., and other named corporations and individuals all of whom were made parties defendant with S. R. Morgan were merely the employees and creatures of S. R. Morgan and the assets held in their names were in fact the property of S. R. Morgan, and on information charged that in reality title to all of the assets was then in the name of S. R. Morgan by deeds and assignments in his possession, but which he, with the aid of the other named defendants, fraudulently corn cealed, so ihat the title appeared to be in M. B. Morgan and the other named defendants. The prayer of the complaint was for an injunction restraining S. R. Morgan and his codefendants from disposing of their properties and for production before a master to be appointed by the court of all books and other records belonging to the defendants to be used in the examination of witnesses produced by plaintiff before said master, and for a discovery by S. R. Morgan and his codefendants of conveyances and other transfers unrecorded and in his possession, conveying- to him and to other persons for his use the properties held in the name of the various named defendants, and to require the said defendants to disclose what conveyances that may have been executed in favor of S. R. Morgan or others for his use, and upon final hearing that the court find and declare the rights of defendants and each of them in regard to the properties and assets in the hands of the various defendants to the end that such properties as are in fact assets of the said S. R. Morgan be used in liquidation of plaintiff’s .judgment under such orders as the court might deem proper.

¡Summons was duly issued and served on G. B. Colvin, a resident of Perry County, and upon the defendants, S. R. Morgan, M. B. Morgan, Morgan Utilities, Inc., and the other named defendants in Pulaski County of which county they were, and are, residents. Thereafter, M. B. Morgan and Morgan Utilities, Inc., appeared specially and moved to quash service of summons because suit was brought in Perry County and service was had on them in Pulaski County, and for the further reason that there was no joint liability of G. B. ¡Colvin and them in the suit instituted. This motion was overruled over the objection and exception of M. B. Morgan and Morgan Utilities, Inc. There was no other plea filed by these or any of the other defendants. The court rendered a decree reciting that the case was submitted upon the complaint of plaintiff and the amendment filed thereto, the return of the sheriff showing service of process upon the several defendants, and oral testimony adduced before the court which, among other things, found that “all assets and properties of every kind and description purporting to be that of the defendants S. R. Morgan & Co., Morgan Utilities, Inc., and M. B. Morgan are in fact the property of the defendant S. R. Morgan and the stock in defendant corporations or a material part thereof is carried in the name of M. B. Morgan and others for the purpose of concealing the assets of ¡S. R. Morgan and for the purpose of defrauding plaintiff and to defeat the collection of its judgment debt.” The decree, after appointing a receiver to take charge of the assets upon his giving certain bond to be approved by the clerk of Perry County, concludes as follows: “It is further considered, ordered and adjudged that any and all properties and assets of every kind and description of said defendants, S. R. Morgan & Co., Morgan Utilities, Inc., Middle-South Utilities 'Co., and M. B. Morgan are in reality the assets and properties of the defendant S. R. Morgan, and as such assets and properties are hereby declared to be subject to execution or other process of law for plaintiff’s judgment, and the clerk of this court is hereby directed to issue execution against said properties upon application of plaintiff for the sale of same or so much thereof as is necessary to satisfy plaintiff’s judgment, together with the costs of this action, in the way and manner now prescribed by law.”

Prom this decree the appellant sought and was granted an appeal to this court and here insists, first, that the motion to quash should have been sustained, second, that the court acquired no jurisdiction of appellant, and third, that the complaint is not sufficient to constitute a cause of action against the appellant. The appellee has filed a motion to dismiss the appeal for failure to comply with rule 9 of this court. We have examined the transcript in connection with the abstract filed by the appellants and find that the same is sufficiently comprehensive to enable us to understand the issues involved and therefore that the appellee’s motion is without merit. We will first consider the last ground urged by the appellants for reversal.

It is clear that the intention of the pleader was to state a cause of action for discovery under § 4366 of Crawford & Moses ’ Digest. It contains a distinct statement of the nature of the claim sought to be enforced and alleged that it had exhausted its remedies at law to enforce the same and that the assets of S. R. Morgan were fraudulently concealed in the name of the appellants for the purpose of hindering the appellee in the collection of its debt, the prayer being for a discovery of the assets and that they be subjected, or so much thereof as necessary, to the payment of appellee’s judgment. This constituted a cause of action under the section supra. Robinson v. Citizens’ Bank, 135 Ark. 308, 204 S. W. 615.

2. The first and second grounds urged for reversal will be considered together and are the main questions in the case. Sections 84-95, both inclusive, of the Civil Code, now §§ 1164-1174, both inclusive, of Crawford & Moses' Digest and § 484 of the Civil Code, now § 1175 of the Digest, make provision for the venue in certain.named actions; and § 1176 of the Digest provides that “every other action may be brought in the county in which the defendant, or one of several defendants, resides or is summoned.55 All of the actions in these sections refer to ordinary adversary suits by which some primary right of the plaintiff is to be ascertained or liability of the defendant declared. This is not, however, the purpose of § 4366, for there no primary right on the one hand or liability on the other is the end to be gained, but merely a remedy ancillary to, and in aid of, the'right already established and the liability found evidenced by the judgment previously obtained. Honore v. Colmesnil, 4 Dana (Ky.) 291; McDormant v. Lou. Cinn. Ry. Co., 11 Bush. (Ky.) 386; Parks v. Jellicoe, 136 Ky. 622, 124 S. W. 868. Hence the sections relating to the venue of actions above named have no application to the action at bar.

Prom the allegations of the complaint in the instant case and the relief therein prayed, it is clear, as maintained by the appellee, that the proceeding is brought, under the provisions of § 4366, supra. This section was lifted out of the Civil Code of 1854 of the State of Kentucky and was § 474 of that Code. That section, as §4366 of the Digest, provides :

“After an execution of fieri facias, directed to the county in which the judgment was rendered, or to the county of the defendant’s residence, is returned by the proper officer, either as to the whole or part thereof, in substance, no property found to satisfy the same, the plaintiff in the execution may institute an action, by equitable proceedings, in the court from which the execution issued, or in the court of any county in which the defendant resides or is summoned, for the discovery of any money,- chose in action, equitable or legal interest, and all other property to which the defendant is entitled, and for subjecting the same to the satisfaction of the judgment; and in such actions persons indebted to the defendant in the execution, or holding the money or property in which he has an interest, or holding the evidences or securities for the same, may be also made defendants.”

It is the contention of the appellant that under the facts in the instant case this statute does not govern, for the reason that this suit was brought in the chancery court of Perry County, whereas the judgment' sought to be enforced by it and the execution issued thereon were rendered and issued out of the circuit court of Perry County, and that, as appellants were not residents of, or summoned in, Perry County, the court acquired no jurisdiction. If the phrase, “in the court from which the execution issued,” is to be considered as standing alone and literally interpreted, there would be much force in the view taken by the appellant. But such is not the correct rule of construction. The entire section, as related to other sections of the Code of which it is a part, must be considered as a whole, and, as thus interpreted, take into consideration the nature and constitution of the court with which the statute deals. When this section is thus considered, and as construed by the court of the State from which it was taken, which decisions are binding on us, it is clear that the court referred to is the circuit court as then constituted both in Kentucky and in Arkansas. It was a court of dual jurisdiction, the judge presiding in one division or “on the law side” as a .judge of a superior court of common law, and also sitting in chancery as judge of a court of equity, maintaining two dockets and records, the one for actions at law and the other for suits in chancery: in reality, two ■ courts of separate and independent jurisdiction presided over by the same judge. It is not to be doubted that, as constituted at the time of the adoption of the Code, of which, as we have seen, § 4366, supra, is a part, where a judgment at law had been obtained and execution thereon issued from the law side, to maintain the action contemplated by the statute, the proceedings must have been instituted in chancery, for it was provided: ‘ ‘ The plaintiff in execution may institute an action by equitable proceedings,” which is in the nature of a creditor’s bill “for the discovery of any money, chose in action, equitable or legal interest, and all other property to which the defendant is entitled. ’ ’ Therefore, the provision that the action might be brought “in the court from which the execution issued” could not be taken in its literal sense and meant, and could only mean, that branch of the court having equity jurisdiction, to-Avit, the chancery court whose presiding officer was the same individual sitting in chancery as the one presiding in the superior commonIuav court. To interpret the statute any other way would be to render it impotent. Honore v. Colmesnil, supra; McDormant v. Sou. Cin. Ry. Co., supra; Jones v. Jeffress, 11 Bush. (Ky.) 636; Parks v. Jellicoe, supra; Robinson v. Citizens’ Bank, supra; N. M. Uri & Co. v. McCroskey, 135 Ark. 537, 205 S. W. 976.

The circuit court of Perry County continued with its dual jurisdiction until 1903 when, by act No. 166 of the General Assembly then in session, the jurisdiction was divided by the creation of a separate court of chancery. It is therefore argued that, because of this, “AvhateA^er may have been the rule with respect to legal and transitory actions prior to legislative changes, there can be no question now that an action like the one in the case at bar is of a transitory nature,” and that “if the judgment creditor should seek to bring an independent action against the execution defendant in some other court of competent jurisdiction, to enforce any remedies he may have against the execution of the defendant he cannot proceed ag’ainst him unless the execution defendant voluntarily submits himself to the .jurisdiction of the court in which the action is commenced or is brought into court by proper process. If the action is transitory in nature, it must appear that he has been properly summoned in the county in which the action is brought.” What we have already said suggests the answer to this contention: First, that this is not an ordinary adversary suit, but an action by equitable proceeding in aid of the enforcement of a right already adjudicated and found to exist; and, second, that the legislative change in no wise affected the constitution of the court or its jurisdiction except as to its presiding officer. So, it is obvious that whatever powers the circuit court on its chancery side had under § 4366, supra, that authority has devolved on the chancery court as now constituted, and to carry out the purposes of the statute it must be considered as a component part of the court from which the execution issued, for thus it was when the statute was enacted and no legislation since that time has indicated any disposition on the part of the Legislature to alter the force and effect of that law.

This court, in Robinson v. Citizens’ Bank, supra, has recognized the present validity of § 4366 of Crawford & Moses’ Digest, then § 3308 of Kirby’s Digest. In that case Bobinson, having obtained judgment in the circuit court of Johnson County against one Stewart, instituted an action in the chancery court of that county against Stewart and appellee Citizens’ Bank, a domestic corporation with its domicile in Madison County in which county it was served with process, to cancel a mortgage executed by Stewart to the appellant on lands owned by Stewart in Johnson County. He alleged that the Citizens’ Bank, which was made a party defendant, held a mortgage on the lands of Stewart which had been paid, but that the bank was still holding the security to prevent the plaintiff from collecting his judgment, and prayed for cancellation as an impediment against the subjection of the real estate described therein to the satisfaction of appellant’s judgment. The court held that the allegations of the complaint set. forth an action for discovery of the property to be subjected to the mortgagor, and that it was properly brought and a decree correctly entered in conformity with the prayer.

So also in the case of N. M. Uri & Co. v. McCroskey, supra, the court recognized this statute; saying: “It is true, under § 3308 of Kirby’s Digest that a- judgment creditor may establish a lien upon the property of an apparently insolvent judgment debtor in the hands of a third party by instituting equitable proceedings to subject the property to the payment of his claim, which lien shall exist from the service of the summons.”

It is our conclusion, therefore, that the chancery court of Perry County had jurisdiction; that it properly overruled the defendant’s motion to quash, and that its decree should be affirmed. It is so ordered.

Mr. Justice Kirby dissents.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    American Company of Arkansas v. Wheeler.
    Opinion delivered March 30, 1931.

      H. G. Wade, for appellant.

      McMillen Scott, for appellee.
   Per Curiam.

City of New York Insurance Company and Rhode Island Insurance Company have filed a petition in this court against the American Company of Arkansas requiring it to appear and show cause why it should not be punished for contempt of court in causing executions to issue upon certain garnishment judgments of the Ouachita Circuit Court against said insurance companies.

The facts upon which the petition is based may be briefly stated as follows: On June 14,1929, City of New York Insurance Company and Rhode Island Insurance Company filed a bill of interpleader in the Ouachita Chancery Court and deposited the sum of $618.75 in the registry of the court to be distributed to the American Company of Arkansas and other defendants who might be entitled to receive the same on certain insurance policies. They also asked that the defendants in the equity suit be restrained from proceeding any further on certain garnishments in the Ouachita Circuit Court. In the chancery court it was adjudged that the American Company of Arkansas have and recover of the Rhode Island Insurance Company the sum of $618.75 and against the City of New York Insurance Company the sum of $79.40. The decree further recited that the Rhode Island Insurance Company, as garnishee, was indebted to W. F. Conine in the sum of $618.25, and that the garnishee, City of New York Insurance Company, was indebted to him in the same amount. Upon appeal to this court, which is reported under the style of American Company of Arkansas v. Wheeler, 181 Ark. 444, 26 S. W. (2d) 115, it was held that the decree should be reversed and the cause remanded with directions to the chancery court to order the amount of its judgment and interests paid out of the funds deposited in the registry of the court by the insurance companies. Because no appeal has been prosecuted by any of the defendants except appellant, it was held that the decree in other respects should be affirmed. In other words, the court said that the remainder of the fund deposited in the registry of the court, after satisfying the claim of appellant, should be disbursed by the chancery court in accordance with its former decree. A mandate was duly issued by the clerk of this court. It is the duty of a chancellor to enter a decree in accordance with the directions of the Supreme Court, but the lower court may inquire into new matter which has never been adjudicated and which does not conflict with the mandate. Hopson v. Frierson, 106 Ark. 292, 152 S. W. 1008. The decision of the Supreme Court became the law of the case, and decided all of the issues presented. The directions of the court were specific, and its holding was to the effect that the petitioners herein were only liable to the American Company of Arkansas for the fund deposited in the registry of the court. Hence it could no longer issue any executions on the judgments against the petitioners herein in the garnishment proceedings in the circuit court. In short, the court held that the American Company of Arkansas should be paid out of the proceeds deposited in the registry of the chancery court by the petitioners herein, and this was, in effect, to hold that the payment out of that fund satisfied the judgments obtained in the circuit court on the garnishment proceedings. As we have already seen, our holding on that appeal became the law of the case, and the issue could no longer be litigated by the parties.

The petition for citation for contempt, however, will be denied because the court -has no jurisdiction. The remand of the case by this court and the filing of the mandate with the clerk of the lower court within the time prescribed by statute gave the lower court jurisdiction of the ease again, and this court no longer has jurisdiction. Bowman v. State, 93 Ark. 168, 129 S. W. 80, and cases cited; and Bertig Bros. v. Independent Gin Co., 147 Ark. 581, 228 S. W. 392. It follows that the petition for citation for contempt must be denied because this court has no longer any jurisdiction in the case.


author: Hart, C. J.,

text:
    Kory v. Less.
    Opinion delivered April 6, 1931.

      W. E. Beloate and W. E. Beloate, Jr., for appellant.

      E. II. Tharp, W. P. Smith and O. G. Blackford, for appellee.
   Hart, C. J.,

(after stating the facts). It is well settled here as elsewhere that every court of record has control over its own judgments and decrees, and has power, as well after the term is ended as while it lasts, to correct clerical mistakes and to cause them to speak the truth. The reason is that the entry in the record should correspond with the judgment or decree which was actually rendered, and the court has the power, and it is its duty, even at a subsequent term, to make such changes in the entry as will make it conform to the truth. Of course, under the guise of an amendment, there is no authority to correct a judicial mistake, but the authority of the court to amend its record in whatever way may be necessary to make the record speak the truth, whenever the ends of justice require such amendment, has been recognized from the beginning of this court, notwithstanding the lapse of the term. The authority of the court is to amend its record so as to make it speak the truth, but not to make it speak what it did not speak but ought to have spoken. King & Houston v. State Bank, 9 Ark. 185, 47 Am. Dec. 739; Arrington v. Conrey, 17 Ark. 100; Bobo v. State, 40 Ark. 224; Ward v. Magness, 75 Ark. 12, 86 S. W. 822; Liddell v. Bodenheimer, 78 Ark. 364, 95 S. W. 475, 115 Am. St. Rep. 42; St. Louis & N. A. Rd. Co. v. Bratton, 93 Ark. 234, 124 S. W. 752, and cases cited; Melton v. St. L. I. M. & S. Ry. Co., 99 Ark. 433, 139 S. W. 289; United Drug Co. v. Bedell, 164 Ark. 527, 262 S. W. 316, and cases cited; and Evans v. United States Anthracite Coal Co., 180 Ark. 578, 21 S. W. (2d) 952, and cases cited.

Whenever the question has arisen, the court has held that mere lapse of time, where the rights of third persons have not intervened, does not render it inequitable to amend the decree. In Liddell v. Bodenheimer, 78 Ark. 364, 95 S. W. 475, 115 Am. St. Rep. 42, it was held that there is no limitation within which an order omitted from the record may be recorded. Again, in Melton v. St. L. I. M. & S. Ry. Co., 99 Ark. 433, 139 S. W. 289, it was held that when the record of a judgment is amended by the court by a mmc pro tunc order, the amendment related back to the time when the original entry was made, and, except as to the right of innocent third parties, the effect is the same as if it had been entered upon the date when it was actually made. See also Foohs v. Bilby, 95 Ark. 302, 129 S. W. 1104.

In a case-note to 10 A. L. R. at page 568, it is said that the view now generally accepted is that all merely clerical errors or misprisions in judgments or decrees may and should be corrected by the court which rendered or made them in proper proceedings upon adequate evidence by appropriate mmc pro tuna amendments, notwithstanding the lapse of the term and at later and subsequent ones. Many eases from courts of last resort are cited in support of the rule.

This court is also committed to the rule that parol or other satisfactory evidence is sufficient to authorize a mmo pro tunc order or judgment. All that is necessary is that the evidence should be satisfactory, clear and convincing. Bobo v. State, 40 Ark. 224; Ward v. Magness, 75 Ark. 12, 86 S. W. 822; Liddell v. Bodenheimer, 78 Ark. 364, 95 S. W. 475, 115 Am. St. Rep. 42; Goddard v. State, 78 Ark. 226, 95 S. W. 476; Bowman v. State, 93 Ark. 168, 129 S. W. 80; Sutton v. State, 163 Ark. 562, 260 S. W. 409; and note to 67 L. R. A. at 848.

Other cases adhering to the doctrine that courts of record have the power to amend mmc pro tunc their own judgments and decrees at subsequent terms to make them speak the truth and to correct clerical mistakes upon any clear, competent, and convincing evidence in point, either in or out of the record, and whether documentary or oral, official or unofficial, may be found in a case-note to 10 A. L. R. 641. Among* the cases cited is Murphy v. Stewart, 2 How. (U. S.) 263.

In the case at bar, appellant alleges that the land allotted as dower to appellant was erroneously described in the decree. Treating the entry as a mistake of the clerk, as it should be treated, the case falls within the principles above announced that whatever limitation there may be upon the power of the court after the term of court to correct its judicial errors, there is nothing in the way of correcting clerical mistakes or misprisions so that the judgment may conform to what the court intended it should do. It has been well said that if courts did not have this power, they would be very inefficient agencies for the administration of justice. McClure v. Bruck, 43 Minn. 305, 45 N. W. 438.

The demurrer of appellant admits that the erroneous description of the land was not in accordance with the decree allotting dower to appellant. Hence there is nothing requiring proof to be made as a prerequisite of the rights of appellees to have the judgment amended so as to speak the truth. McNeese v. Raines, 182 Ark. 109, 34 S. W. (2d) 225. There is no suggestion in the record that appellant or any third person will, he injured by making the correction.. On the contrary, the complaint alleges the facts to be that the person holding the land as tenant in common with appellees recognizes that the description in the original decree is a mistake, and that it should be corrected. There is nothing to show that appellant, relying on the original decree as written, has placed herself in-such a position that, to correct the mistake, will operate to defraud her. Therefore, the chancery court rightly corrected its original decree so that the entry may contain a correct description of the land which was assigned to appellant as dower, as described in the complaint, and that the entry may conform to what the chancery court intended in the original decree. It follows that the decree will be affirmed.


author: Humphreys, J.

text:
    American Railway Express Company v. Cole.
    Opinion delivered April 6, 1931.

      Warner & Warner, for appellant.

      D. II. Howell, for appellee.
   Humphreys, J.

Appellee brought this suit against appellant in the circuit court of Crawford County to recover damages to a car of strawberries in transit, shipped from Alma, Arkansas, to Youngstown, Ohio, through the alleged negligence of appellant in delay, failure to furnish a properly constructed and equipped refrigeration car, and failure to properly ice the car en route.

Appellant filed an answer denying each specific- allegation of negligence and interposed the further defense that the damage to the berries resulted from field diseases inherent in the berries.

The cause was submitted to a jury upon the pleadings, testimony and instructions of the court, resulting in a verdict and consequent judgment of $500, from which is this appeal.

According to the undisputed testimony, the consignee, Bloom-Rosenblum-Klien Company, paid appellee one-half of the loss under agreement that if he recovered damages from appellant on his claim, he would pay the amount back to it; whereupon the consignee orally authorized appellee to sue appellant in his own name for the entire claim. Appellant thereupon moved the court to instruct the jury that in no event was appellee entitled to recover more than one-half of the actual damage, which motion was overruled over his objection and exception. Appellant contends that the court erred in allowing appellee to maintain the suit for the entire claim in his own name. The contract of shipment was made with appellee,' and the bill of lading was issued to him. The consignee could not have maintained a suit against appellant for any part of the damages under its oral contract with appellee, for there was no privity of contract between the consignee and appellant. The suit, in effect, is a suit for damages on account of a breach of the contract. This court said in the case of Cantwell v. Pacific Express Co., 58 Ark. 487, 25 S. W. 503, that (syllabus No. 1): “A person in whose name a bill of lading is taken for the benefit of himself and others may sue the carrier for breach of the contract of carriage.” This ruling was reaffirmed in the case of Johnson v. Ankrum, 131 Ark. 557, 199 S. W. 897. Appellant contends for a reversal of the judgment on the ground that the evidence introduced by appellee does not tend to show any negligence on its part. We canuot concur in this view. The testimony introduced by appellee shows that at the hour the berries were shipped on May 12, they were in good, merchantable condition, and, according to official inspection, were within tolerance of the United States No. 1 grade, and that they were loaded in a pre-cooled express refrigerator car; that on the morning of the 14th, two days thereafter, when they arrived in Cleveland, Ohio, the berries were in a deteriorated condition; that berries in the condition of these at the time of shipment, loaded in like manner, carried under correct refrigeration, and handled properly, would stand up five or six days; that the deterioration in the opinion of experts was caused by poor refrigeration and defective equipment; that, on accouut of their damaged condition, it was necessary to divert the car to Youngstown, Ohio, for sale, where they were disposed of at a sum below the contract price. Appellant argues that negligence was not shown because the witnesses of appellee who attributed the damage to poor' refrigeration and defective equipment admitted that they had no technical knowledge of refrigeration or refrigerating cars. This argument is not sound, as the opinion of the witnesses was based upon long experience as shippers and not upon technical knowledge relative to refrigeration and refrigerating cars. They testified that, from long experience as shippers of perishable goods in. refrigerating cars properly iced, they knew how long such commodities should keep in properly equipped cars sufficiently iced and handled with reasonable care.

Appellant also argues that because its expert witnesses attributed the deterioration of the berries to field diseases, their testimony should and must be conclusive of the .issue. Their testimony is contradictory to that adduced by appellee, but this does not necessarily settle that issue. The settlement of the question was for the jury, because it is within the exclusive province of juries to settle disputed questions of fact. There is ample evidence of a substantial nature to show that the damage to the berries resulted either from improper equipment or from a failure to ice the car as it should have. been.

Appellant also contends for a reversal of the judgment because the court gave certain instructions at the request of appellee making it liable as an insurer for the damage to the berries. Several of the instructions so declared, and for that reason were erroneous, as the action was based upon specific allegations of negligence, and not on appellant’s common-law liability as an insurer. Railway Co. v. Robson, 176 Ark. 182, 2 S. W. (2d) 3. Appellees argue that these instructions were cured by subsequent instructions limiting appellant’s duty to ordinary care. The result of giving the instructions referred to was to create an irreconcilable conflict in the instructions and leave the jury without any proper or consistent guide.

Appellant also contends for a reversal of the judgment because the trial court incorrectly instructed the jury on the measure of damages. Appellant is correct in this contention. The true measure of damages was the difference between the contract price and the market price in their deteriorated condition at the time sold, and not the difference between the sale price and the market price had they been delivered in good condition.

On account of the errors indicated, the judgment is reversed, and the cause is remanded for a new trial.


author: Kirby, J.,

text:
    Baughman v. Overton.
    Opinion delivered April 6, 1931.

      Claude F. Cooper, Neil Reed and T. J. Crowder, for appellant.

      Cecil Shane, for appellee.
   Kirby, J.,

(after stating the facts). There is no merit in appellant’s contention that the court erred in not sustaining his plea of res judicata, the suit for injunction against appellant to prevent his interfering with the gathering of the crop by appellee, although testimony therein was heard, was dismissed “without prejudice.” The court had the power to make such disposition of the case and order therein, and, having done so, the judgment was not res judicata. Gosnell Special School District v. Baggett, 172 Ark. 681, 290 S. W. 577; Carpenter v. Dressler, 76 Ark. 400, 89 S. W. 89; Moss Tie Co. v. Miller, 169 Ark. 657, 276 S. W. 586; Mutual Benefit Health & Accident Assn. v. Tilley, 174 Ark. 932, 298 S. W. 215; and § 1261, C. & M. Digest.

The majority is of opinion, however, that the court erred in not holding that it was without jurisdiction in the second case, because of the splitting of appellee’s cause of action, the first suit being for the full amount of the jurisdiction of the justice of the peace. There is no doubt but that appellee was entitled to the value of his share of the crop produced by his labor less the amount due by bim to the owner of the land, and to a lien therefor on the crop produced. The first suit was for $300 on this cause of action, the full amount of which the justice court had jurisdiction, and, although a litigant can bring suit in the justice court on a cause of action and a claim amounting to more than $300, by doing so and recovering thereon he waives or surrenders all right to recovery of any amount, thereon beyond the jurisdiction of the justice court.

The fact that appellee knew of only a certain portion of the crop having been sold at the time the first suit was brought, his share of the value thereof amounting to $300, for which amount suit was brought, would not permit him later to bring suit for the value of his share of other portions of the crop subsequently discovered to have been disposed of by the owner or landlord, since it would be a splitting of his cause of action, he being entitled to the whole amount of the value of his share of the entire crop, which could constitute but a single cause of action. This is not a case of a new cause of action allowed to be maintained upon the same contract or transaction whenever,' after the first action brought, a new cause of action has arisen therefrom as provided in the statute. Section 1083, Crawford & Moses’ Digest.

The court had the right to remand or send back the ease first appealed for proper service on appellant and his guardian, and, since it was brought for the full amount of the jurisdiction of the justice court on the single cause of action, the testimony having shown that the laborer was entitled to recover that amount, the value of his share of the crop being greater than the amount sued for, it could not then render judgment in the second case for $50 more than such amount, even though it was shown that appellee was entitled thereto, had it not been beyond the jurisdiction of the justice court under the circumstances.

The judgment of the circuit court for $50 in the second suit is therefore reversed, and the cause must be dismissed, said court having acquired no jurisdiction to hear the cause which was beyond the jurisdiction of the justice court wherein it originated. Otherwise the judgment of the circuit court is affirmed.


author: Mehaffy, J.

text:
    Southwestern Gas & Electric Company v. Murdock.
    Opinion delivered April 6, 1931.

      Evcms <$> Evans and Arnold <& Arnold, for appellant.

      Roy Dunn and John P. Roberts, for appellee.
   Mehaffy, J.

The appellee brought suit in the Logan Circuit Court alleging that on November 10, 1929, while he was in the exercise of due care and was working upon an automobile belonging to Dr. A. R. Hedrick in appellee’s garage in Booneville, Arkansas, he received an electric shock, throwing him against the automobile, burning his body, injuring his back and spine, and otherwise injuring him. The negligence alleged is that the appellant neglected and refused to construct the transformers, distributors, and wiring of its electric system so that the wires coming- into appellee’s garage, instead of carrying 110 voltage, carried more than 350.

Appellant answered, denying all the material allegations in the complaint, and pleaded contributory negligence. There was a verdict and judgment in favor of appellee for $2,000. The case is here on appeal.

Appellant contends first, that the court erred in giving instruction No. 5, because it did not take into consideration the defense of contributory negligence. After a careful examination of the record, we have reached the conclusion that there is no evidence tending to show that appellee was guilty of contributory negligence, and there was therefore no error in giving the above instruction.

It is next contended by the appellant that Murdock was not entitled to recover on account of his own negligence. Contributory negligence, if shown by the evidence, would be a complete bar to appellee’s right to recover. Appellant cites numerous cases to support its contention that appellee cannot recover if he was guilty of any negligence. It is unnecessary to discuss these authorities, but sufficient to say that this court has many times held in actions of this character that, if the injured party was guilty of negligence which in any way contributed to his injury, so that but for his contributory negligence the injury would not have happened, he cannot recover.

The only evidence in the record which appellant claims tends to show contributory negligence is the evidence of three witnesses, Roy Cannon, John Adney, and the appellee. There is no evidence in the record tending to show that either Cannon or Adney ever said anything to appellee about the conditions they testified about or that he knew anything about them. Plaintiff’s own evidence shows, and this is undisputed, that he had received shocks many times in using the wire when it contained 110 volts. There is nothing in the testimony to show that he either knew of or appreciated any danger. He knew that if there were 110 volts it would sometimes shock one, but also knew that it was not dangerous.

It was the duty of the appellant to furnish proper and safe appliances, and the appellee had a right to assume that appellant had done this, and he was-not guilty of negligence contributing to his injury unless he knew, or by the exercise of ordinary care could have known, that the appellant had not performed its duty, and the evidence does not show that he knew this. There is no evidence in the record tending to show that he knew of or appreciated the danger. He testified that he talked to the parties after this injury, but there is no evidence that he received any shock prior to the one he complains of in this suit that would indicate there was any danger.

Appellant argues, however, that the lights would burn out and the machinery run faster. Witness testified that about four lights burned out in twenty-four hours, but it was entirely reasonable for him to think this was caused by defective globes or some cause other than a greater voltage than should have been used.

If the appellee did what a man of ordinary prudence would have done under the circumstances, he was not guilty of negligence. Extraordinary care is not required nor is the utmost possible caution. The duty imposed on appellee was to exercise ordinary care, but there was no duty to possess knowledge or skill so as to know there was danger because the lights burned out or because the machinery ran faster. Even if the injured party’s act contributed to the injury, this would not bar recovery unless his act was negligent. It is not the contributory act that bars recovery, but contributory negligence. 45 C. J. 945; Indiana Union Tract Co. v. Long, 176 Inch 532, 96 N. E. 604.

The rule is that to determine the question whether an injured person was guilty of negligence is whether he exercised such care as a reasonably prudent person would exercise under the circumstances. He is not required to have any expert knowledge, and .the appellee in this case did not have expert knowledge, and whether his acts are negligent or not cannot be determined by ascertaining what one with expert or scientific knowledge would do under the circumstances. Morrison v. Lee, 16 N. D. 377, 113 N. W. 1025, 13 L. R. A. (N. S.) 650.

It has been said: ‘ ‘ The prudent man is not the man who never forgets, who is never guilty of inattention, who never fails to think of any possible danger — that is the perfect the infallible man.” Britch v. Sheldon, 94 Vt. 235, 110 Atl. 7.

In determining whether an injured party was guilty of contributory negligence we simply inquire whether a person of ordinary prudence, without expert knowledge, would have acted as the injured party did. 20 C. J. 372; Mo. & No. Ark. R. R. Co. v. Clayton, 97 Ark. 347, 133 S. W. 1124.

Appellant next contends that the verdict was excessive. After a careful consideration of the evidence we are of the opinion that the verdict was not excessive.

It is next contended by appellant that there is no evidence of negligence on its part. The evidence not only shows, but it is a matter of common knowledge, that a wire carrying 110 volts is not sufficient to shook and injure one as appellee in this case was injured. There is no dispute about the fact that the wire should have carried only 110 volts, and that that would not have caused the injury complained of.

It appears from the evidence that the appellant had been doing some construction work, and that in doing this the wires were in some way charged with a greater voltage than was proper. It was the duty of the appellant to protect appellee from injury while constructing its wires, and, if there were any danger, to warn him.

The judgment is affirmed.

Mr. Justice Smith dissents.


text:
    Mosley v. Raines.
    Opinion delivered April 6, 1931.

      Richardson S Richardson, for appellant.

      W. P. Smith and O. C. Blackford, for appellee.
   Mehaffy, J.

The appellee was engaged in the construction of a new warehouse or express building at Hoxie, Arkansas, for the American Railway Express Company. The appellant was one of the employees of Raines, the contractor. On the 12th day of May, 1930, while the employees were engaged in doing excavation work at the place where the defendant was to erect the warehouse, appellant was injured, and he brings this suit to recover damages for said injury.

The employees had excavated a place about three feet wide, four feet deep, and the length of the building site. There was a concrete slab about three feet high and about eight inches thick extending out into the excavated place. This slab had to be broken off and removed. The appellant and four other employees were directed to get into the excavated place and break the concrete slab with a piece of railway rail which was about nine feet long and very heavy. They undertook to break the slab by punching against it with the end of the rail. While the plaintiff was in the excavated place assisting in breaking the slab, it broke, fell toward plaintiff and the other employees, and plaintiff, attempting to get out of the way of the slab as it fell, jumped back and struck an iron crowbar which had been put across the ditch behind appellant. The appellant did not know the bar had been put across the ditch, and it prevented him from getting out of the way of the concrete slab as it fell, and the slab fell on his leg and foot and injured him. The appellant alleged that the appellee was negligent in failing to furnish.a safe tool and appliance with which to perform the work, and also that appellee was negligent in putting the crowbar where it was, thereby preventing appellant’s escape from the falling concrete. The appellant also alleged that Hamilton, who it was alleged placed the bar across the ditch, was a vice-principal, .and failed to warn appellant of the danger caused by the bar being there.

The appellee answered, denying all the material allegations of the complaint, and alleged that appellant was guilty of contributory negligence, and that he assumed the risk.

Appellant testified, in substance, that they had excavated a ditch for the foundation of the building, which ditch was about three feet wide and shoulder deep; that the concrete ran all the way in the ditch on one side, and that they had taken all of it out except about two and a half or three feet, which was sticking out into the ditch which had to be broken off; the slab w;as about 3% feet tall and eight inches thick; that Hamilton, who was the foreman and in charge of the work, told employees to get into the ditch and break the concrete; that appellant and four other employees went into the ditch under Hamilton’s orders to break the slab; they had a regular railroad rail about 9 or 10 feet long with which to break the’ slab, and they broke it by jabbing the end of the rail against the slab; that Hamilton told them to do this. Some of the workmen were on one side of the rail and some on the other .side. Appellant was nearest the slab.. When they started to break the slab, there was nothing to prevent his jumping back; that he knew there was nothing behind him because he had just walked through the ditch. They used the rail by catching hold on it and swinging it, and punching against the slab with the end of it; that] when the slab broke, it fell over toward him, and he jumped backward in ordér to get out of the way of it, and, as he jumped back, he struck the crowbar which had been placed across the ditch, and, if, this crowbar had not been there, he would have gotten out of the way by jumping back. He did not know who put the crowbar there and did not know it was there. When the concrete broke it fell on his foot and leg and injured him. This was not the first time that he had used a rail, but it was the first time he had used it in that way. The bar was about 3% feet behind him, and he was facing- the slab. ■ There was nothing- to prevent his seeing it if he had been looking, but he was watching the slab. He did not think there was any danger in punching the slab, and thought if it broke he could get out of the way; he did not think the slab would fall, but thought that they would crack it up and take the crowbars and pry it loose, but it broke all at once and fell oii him. The crowbar was not on the ground but was in the ditch. There was a caved-offi place on one side of the ditch, and the end of the crowbar was lying in that place and the other end jabbed into the wall.

William McNees, another employee, testified to substantially the same facts as the appellant, except he testified that the crowbar was across the ditch before they started to work, and that Mosley was between the crowbar and the concrete when it broke. This -witness also testified that the crowbar was to hold the rail up, and that they all knew it was there, but Mosley, being in front, may not have known. All the employees were jammed up against one another. He knew of nothing to keep Mosley from seeing the bar; that when Hamilton handed the bar down he told them what to do with it, but he did not know whether Mosley heard him or not; the employees put the crowbar in first and the steel rail on top of it.

T. L. Mosley, son of appellant, testified to substantially the same facts as appellant except that he said the crowbar was put in after the appellant started breaking the concrete; that it was placed there by Jack Hamilton, the foreman; that the rail did not rest on the crowbar.

At the close of the testimony the court directed a verdict in favor of appellee, and judgment was entered accordingly. This appeal is prosecuted to reverse said judgment.

In testing the correctness of the verdict which was directed to be returned in favor of appellee, we must give the testimony its strongest probative force in favor of the appellant in determining whether or not there was any negligence shown by the evidence. If there was any substantial evidence tending to show negligence on the part of the appellee resulting in injury to appellant, it would be the duty of the trial court to submit the question of negligence to the jury. It is the province of the jury to pass upon the credibility of witnesses and the weight to be given to their testimony. McLeod v. Des Arc Oil Mill Co., 131 Ark. 594, 190 S. W. 932; Sou. Gro. Co. v. Bush, 131 Ark. 153, 198 S. W. 136; Vaughan v. Hinkle, 131 Ark. 197, 198 S. W. 105; Bennett v. Buckeye Cotton Oil Co., 132 Ark. 381, 200 S. W. 993; Beach v. Eureka Traction Co., 135 Ark. 542, 203 S. W. 834; Kirby v. Wooten, 132 Ark. 441, 201 S. W. 115; Scott v. Robertson, 145 Ark. 408, 224 S. W. 746; Brotherhood of R. R. Trainmen v. Merideth, 146 Ark. 140, 225 S. W. 337; Ark. Mining Co. v. Eaton, 172 Ark. 323, 288 S. W. 399.

The master owes the servant the duty to exercise reasonable care in furnishing a safe place to work and safe tools and appliances. Appellant, however, concedes that he cannot recover on the theory that appellee failed to furnish safe tools and appliances, but he contends that the master was negligent solely on the ground that the foreman placed or caused to be placed a short distance behind appellant while he was in a ditch only about three feet wide and approximately six feet deep, a crowbar across the ditch in such a manner as to block and prevent appellant’s escape from the concrete after being broken, which was certain to fall toward him, and that the master therefore failed to furnish him a safe place to work.

The master is not only bound to exercise reasonable care to furnish a safe place to work, but the servant has a right to assume that the master has performed his duty. It is, however, also thoroughly established by the decisions of this court that the master is presumed to have performed his duty, and the servant cannot recover for an injury unless he shows that the master was guilty of negligence and that the negligence of the master caused Ms injury. The master is liable for the consequences of Ms negligence, but he is not an insurer of the employee’s safety.

As we have said, the only negligence relied on is placing a crowbar across the ditch. The appellant himself testified that he did not know who put the crowbar there. Therefore his testimony fails to show any negligence on the part of the master.

"William McNees, a witness for the appellant, testified that Hamilton, the foreman, handed the crowbar down from the bank, and that it was placed in a jog on one wall and rested on the other wall, but he testified very positively that it was placed there before they started breaking the concrete, and he did not know whether Mosley knew it or not, but there was nothing to keep Mosley from seeing it. This witness testified that the crowbar was put there for the steel rail that they were using to rest on. The steel rail was a railroad rail 9 or 10 feet long and very heavy. There is nothing therefore in McNees’ testimony tending to show any negligence on the part of the foreman.

T. L. Mosley, a son of the appellant, testified that, when they got in the ditch, the rail was lying on the bank, and that the crowbar was put across the ditch by Hamilton, the foreman, when they were in the ditch. He said they were down there hammering on the concrete, and the crowbar was put in while they were hammering, and that the rail did not rest on the crowbar. It therefore appears that T. L. Mosley, son of the appellant, is the only witness who testified that Hamilton put the crowbar in the ditch after the employees got into the-ditch and began to hammer on the concrete.

If Hamilton did what young Mosley says he did, was he guilty of negligence? Negligence is the doing of something that a man of ordinary prudence would not do under the same circumstances or the failure to do something which a man of -ordinary prudence would have done under the circumstances.

There were four laborers in the ditch besides the appellant. None of them, however, testified except McNess and young Mosley. They saiv the crQwbar there, and made no complaint about it, and evidently did not think there was any dang'er from it. If young’ Mosley had thought there was any danger, he certainly would have notified his father. It was put there, according to McNees’ testimony, who was called by the plaintiff, for the purpose of holding the rail or letting the rail rest on it, and the appellant himself testifies that he did not think there was any danger in punching at the slab, and thought if it broke he could get out of the way, but he also said that they had been working there 4 or 5 days and that he thought that they might do like they had been doing. They had broken and removed all of the concrete except this one piece, and in breaking it, according to appellant’s testimony, it would crack up, and they would then take the crowbars and pry it loose so that they could handle it. He said the crowbar was in the ditch about three feet high.

Witness knew as much about how to break and remove the concrete as anybody; there was nothing there that he could not see, and, while there was an unfortunate accident, we do not think the evidence shows any negligence.

It is not sufficient for a servant to show that he was injured and that the injury resulted from failure to furnish a safe place to work or defect in machinery, but he must go further and establish the fact that the injury happened because the master did not exercise proper care in the premises. Bryant Lumber Co. v. Stastney, 87 Ark. 321, 112 S. W. 740; St. L. I. M. & S. R. Co. v. Gaines, 46 Ark. 555; Graysonia-Nashville Lbr. Co. v. Whitesell, 100 Ark. 422, 140 S. W. 592; K. C. Sou. Ry. Co. v. Cook, 100 Ark. 467, 140 S. W. 579; Wheeler v. Ellis, ante p. 133; Rice & Holiman v. Henderson, ante p. 355.

There is no evidence in this case tending to show that the master was guilty of negligence.

The judgment is affirmed.

Mr. Justice Kirby dissents.


author: McHaney, J.

text:
    Alaska Lumber Company v. Spurlin.
    Opinion delivered April 6, 1931.

      8. Hubert Mayes and Busbee, Pugh $ Harrison, for appellant.

      J. H. Lookadoo, for appellee. ■
   McHaney, J.

Appellee received painful and permanent injuries while in the employ of appellant, for which he sued and recovered judgment for $2,500, under the following state of facts: Appellant operates a sawmill in Clark County. Appellee and others, including one Dickson, were skidding logs out of the woods to the roadway, where they were loaded on trucks and hauled to the mill. This was accomplished by appellee and the others with teams of mules hitched to a log- by means of tongs or grab hooks and dragging them to the desired loading place. Appellee, who was driving one team and said Dickson another, had just hooked onto a log when Dickson’s team, located from 30 to 50 yards distant, through the woods, (neither being able to see the other and not aware of their proximity) became unruly, ran astride a bush or sapling, which angered him, causing him to speak to his team in a loud and unusual tone of voice to “get out of there” and to slash them. It is alleged and testified to by appellee that this loud and unusual tone of voice and slashing or whipping of Dickson, caused his (appellee’s) team to break away, jerked the log to which he had hitched against another small log near it which knocked the end of the latter log against his leg, breaking both bones.

Appellant assigns and relies upon only one alleged error of the trial court — refusal to direct a verdict in its favor at its request. This assignment of error must be sustained. A mide is a domestic animal which has been said to be “without pride of ancestry or hope of posterity.” Although faithful beasts of burden, when properly trained, as the proof shows these to be, whether under the saddle or in the harness, yet all persons who have had experience with them are familiar with their contrary and perverse nature and disposition at times. It is said that Balaam., Joseph and the Christ had occasion to use them in ancient times. It is a matter of common knowledge that mules will occasionally take a notion to walk or run away, and, although they may do some damage, they rarely hurt themselves. Speaking of the perverse nature of mules relative to their lacking habits, the Court of Appeals of Kentucky, in Consolidative Coal Co. v. Pratt, 169 Ky. 494, 184 S. W. 369, said: “The kicking propensity of the mule is a matter of common knowledge and has been the subject of comment from the earliest time. It is almost as universally recognized as the fact that a duck will swim or a cat will scratch. However, a duck cannot indulge his propensity without water, and, ordinarily, a cat will not scratch unless irritated or attacked. But the mule requires no particular setting- for the exercise of his high prerogative.”

In this case there is no allegation or proof that the master, appellant, furnished appellee a vicious or unruly team. The proof is to the contrary, that the team was tractable. Assuming* for the sake of argument, that Dickson spoke to his mules in a loud tone of voice and whipped them when they became unruly, yet the fact is, he was 30 to 50 yards from appellee, could not see him, and did not know he was there and did not know he was hurt until he saw others taking him out. He therefore could not have anticipated that his actions were likely to cause any damage to another, and neither could the master. As said by this court in Wisconsin & Arkansas Lumber Co. v. Scott, 153 Ark. 65, 230 S. W. 391: “To constitute actionable negligence, there must be negligence and injury resulting as the proximate cause of it. Proximate cause has been defined as a cause from which a person of ordinary experience and sagacity could foresee that the result might probably ensue. ” In Daugherty v. Southern Cotton Oil Co., 138 Ark. 329, 211 S. W. 278, 4 A. L. R. 1431, it was held that the company was not liable for the blowing- of a whistle about 40 feet from the street, causing a horse to run away and do damage to the plaintiff because “the whistle was blown in the ordinary way for a useful purpose in the conduct of appellee’s business.” In this case Dickson spoke in an unusually loud tone of voice, having become angry at the team for getting astride a bush, and si ruck them with a whip or switch, but for a useful purpose in the conduct of appellant’s business.

Appellee cites the case of Mississippi River Fuel Corp. v. Morris, ante p. 207, but that case is not in point. There the whipping of the team was the immediate cause of the injury. Here Dickson’s team caused no damage to appellee by being slashed. It was appellee’s own team that did the damage and was the immediate or proximate cause thereof.

The result is that appellant was not guilty of any actionable negligence, and the court should have directed a verdict at its request.

Reversed and dismissed.


author: Butler, J.

text:
    Williamson & Williams v. Cates.
    Opinion delivered April 6, 1931.

      Bichee, Puc/h d? Harrison, for appellant.

      W. A. Bates and Sam T. <& Tom Poe, and Donald Poe, for appellee.
   Butler, J.

The appellee sustained an injury to one of his eyes while in the employ of Williamson & Williams, a partnership, which destroyed the sight in one eye and seriously impaired that of the other. He brought suit to recover damages on the theory that the injury was the proximate result of the negligence of his employers in failing to furnish safe tools with which to perform his work, in failing to warn him of unexpected and dangerous acts on the part of a vice-principal, which acts resulted in the injury; and in failing to protect him -while he was engaged in his work, and in failing to furnish a safe place in which to perform such work.

At the conclusion of the introduction of the testimony, the appellants moved the court to peremptorily instruct the jury to return a verdict in their favor. This the court* refused to do and submitted the case to the jury on instructions which are conceded to be correct if the peremptory instruction was properly refused. The jury found in favor of the appellee in a sum which is also conceded not to have been excessive.

The only question raised on this appeal is as to whether or not the appellants were entitled to a peremptory instruction directing the jury to find a verdict in their favor. The evidence introduced on the part of the appellee tended to establish the following- state of case:

Appellants were a partnership, engaged in the construction of a bridge across Fourehe River in Scott County, Arkansas, with Roy Benson as- the foreman in charge of the work. Appellee is a farmer and also a carpenter, farming being his principal occupation and carpenter -work the business he follows in the intervals between the crop seasons. Some few days before the appellee’s injury, he was employed by Benson to assist in the construction of the bridge across Fourehe River. A day or two later Benson employed one John Mitchell, who was given charge of the workmen in a gravel pit and as to these employees acted as a subforeman under Benson. On the day before the occurrence out of which this litigation arose, Benson accompanied by Mitchell located the site of a road from the gravel pit to the bridge. The road was designed as a way over which to transport gravel from the pit to the bridge, the two being separated by a short distance. The route selected was where an old road ran in which a number of bushes had grown up. Benson directed Mitchell to cut out these bushes close to the ground, and, on the morning* of the appellee’s injury, told the appellee to go with Mitchell and help him cut the bushes. Mitchell took one John Redding and the appellee and began cutting on one side of a clump of bushes. They had two new axes, both of which had been used only about two hours in the gravel pit, but which were dull. Two of the three workmen would use the axes and the third would move the bushes as they were cut. They would exchange work sb that each would cut for a while. Among the bushes to be cut were about fifteen black locust sprouts from one inch in diameter to as large as a man’s arm. Just before the injury to the appellee, Redding had been sent by Mitchell to the tool box for some purpose, and during’ his absence the appellee ivas cutting down a thorn bush on one side of the road and Mitchell was cutting toward the other side a few feet away. One of the bushes cut fell so that one of its thorns penetrated appellee’s eye.

The evidence, viewed in the light most favorable to the appellee, tends to show that the bush or limb which caused the injury was cut by Mitchell and fell toward the appellee while he was engaged in his work. At the time they were preparing to cut the bushes the appellee called Mitchell’s attention to the fact that the axes were dull, and suggested that they be sharpened and asked Mitchell if he had a file. Mitchell replied that there were some files in his car, but that they didn’t have time to get them.

From this evidence it is apparent that appellee’s allegation of negligence in failing to furnish a safe place in, and tools with, which to work cannot be sustained. The appellee is a farmer, and Mitchell had also worked as a farmer, and such work as they were then engaged in was that of the usual and customary farm life, such as required no skill or experience; the place where the work was to be performed had no latent dangers connected with it, and the danger, if any, was as apparent to the appellee as to any one else. In fact, we fail to see where there was any danger except those unforeseen and unusual perils to which we are subjected at all times and places. The axes were simple tools such as men engaged in appellee’s occupation are accustomed to use from boyhood, and the fact that they were dull could in no wise contribute to the happening of the injury, for that was occasioned by the falling of a brush, and the mere fact that it was severed with a dull axe instead of a sharp one could make no difference. As we have seen, appellee must have had knowledge of the use and construction of the axes, as he appears to have been a man of ordinary intelligence. Therefore, there was no duty resting upon the appellants to exercise ordinary care in the selection of the axes, for they were simple tools in ordinary use. Railway Co. v. Kelton, 55 Ark. 483, 18 S. W. 933; Mark ham v. Three States Lumber Co., 88 Ark. 29, 113 S. W. 357; Fordyce Lumber Co. v. Lynn, 108 Ark. 377, 158 S. W. 501, 47 L. R. A. (N. S.) 270; Royal v. White Oil Corporation, 160 Ark. 467, 254 S. W. 819.

If there is any negligence in this cáse, it was that of John Mitchell while engaged in cutting the bushes in question for which appellee insists that the appellants are responsible on the theory that Mitchell was for the time being the foreman of appellants under whose direction he was working and for whose negligence the appellants are liable. In support of this contention, the appellee argues that the directions were given to him by Benson to report to Mitchell for work, and that, while engaged in the performance of such work, Mitchell was his boss. The most that the evidence shows as to the orders and directions given by Mitchell to the appellee is that Mitchell showed him the place at which he was to work and the character of work to be done, namely, to cut down bushes in an old roadway. Mitchell did not show the appellee how to cut them, for appellee knew this as well as Mitchell himself; nor does the evidence show that the injury occurred because of any direction given on the part of Mitchell as to how appellee should perform his work. Therefore, the injury was not the result of the failure of any duty on the part of Mitchell as the representative of the appellants. The negligence, if any, was the failure of Mitchell to use ordinary care in the performance of work of the same nature as that in which the appellee was at the same time engaged, the execution of which was for a common purpose, i. e., the clearing of the road. In the prosecution of this work Mitchell was but the fellow-servant of appellee.

The facts of the cases cited by the appellee to support his contention that there ivas a failure of duty on the part of appellants in failing to furnish him safe tools with which, and a safe place in which, to do his work are entirely dissimilar from the facts of the instant case and have no application for the reason that there is no negligence shown except perhaps that of the fellow-servant. Such being the ease, the injury to the appellee was one for which the appellants are not liable. Graham v. Thrall, 95 Ark. 560, 129 S. W. 532; Ry. Co. v. Torrey, 58 Ark. 217, 24 S. W. 244; Walsh v. Eubanks, ante p. 34, 34 S. W. (2d) p. 762.

The court erred in its refusal to grant appellants’ prayer for a peremptory instruction. The case is therefore reversed, and the cause dismissed.


text:
    Camden Gas Corporation v. Camden.
    Opinion delivered April 6, 1931.

      Robinson, House $ Moses, for appellant.

      Haynie, Parks <S¡ Westfall and Gaughan, Sifford, Godwin & Gaughan, for appellee.
   Per Curiam.

It has always been the practice of this court to permit the parties, at any time before final decision, to supply omitted portions of the record which have not been brought up on appeal and which are essential to the correct decision of the case. It has also become the established rule of the court, where it has acquired jurisdiction of the case on appeal by the filing of a certified copy of the judgment or decree in the case within the time prescribed by statute, to allow appellant to perfect the record within a reasonable time.

We do not think that § 2 of act 327 of the Acts of 1923, providing that an appeal may be taken from the decision of the circuit court in cases like this, but that the transcript must be lodged with the clerk of the Supreme Court within sixty days from the date of final judgment, has the effect to change the rule heretofore adopted. The court has uniformly held that the statutory time for appealing is jurisdictional. Sample v. Manning, 168 Ark. 122, 269 S. W. 55, and cases cited; Caudle v. Turner, 179 Ark. 337, 15 S. W. (2d) 978; and Bank of El Paso v. Neal, 181 Ark. 788, 27 S. W. (2d) 1024.

The transcript is nothing but a certified copy of the record in the court below, and we still adhere to our established rule that an imperfect record may be supplied after the expiration of the statutory period where it is done within a reasonable time. Bell v. Rice, ante p. 105. The statute under consideration does not provide that a perfect transcript or record must be lodged with the clerk of this court within 60 days.

When we consider the size of the record, together with the time asked to perfect the record and the other circumstances surrounding the appeal, as shown by the orders heretofore made by the court, wo do not think an unreasonable time has been taken in perfecting the transcript ; and the motion to dismiss the appeal or affirm the judgment on that account will be overruled.


author: Smith, J. Mehaffy, J.,

text:
    McGill v. Miller.
    Opinion delivered April 6, 1931.

      Atkins & Stewart, for appellant McGill; Cockrill .& Armistead, for appellant Gazette Publishing Co.

      King $ Whatley and McKay ■<& Smith, for appellee.
   Smith, J.

In March, 1930, a cause was tried in the Lafayette Circuit Court, wherein the administrator of the estate of J. W. Miller sought to recover upon a policy of insurance which had been issued to his intestate. The controlling question in the case was the one of fact whether the insured had committed suicide. -The insurance company, in support of its plea that the insured had died by his own. hand, offered testimony tending to. show the involved condition of the insured’s affairs as sheriff of the county and his depression on that account. Certain letters were read in evidence which the deceased wrote immediately before Ms death which were addressed to a woman under the name of Miss Trussell. Portions of these letters are set out in the opinion of this court rendered upon the appeal from the judgment of the trial court in that case. Home Life Ins. Co. v. Miller, 182 Ark. 901, 33 S. W. (2d) 1102.

In one of these letters addressed to Miss Trussell the writer accused two citizens of the county of dishonest conduct towards him, and he charged his daughter Georgia with lack of concern and sympathy for his distress. These letters were read in evidence at the trial, a report of which was sent to the Arkansas Gazette at Little Rock by S. D. McGill, its local correspondent. In the report of the trial as it appeared in the Gazette, it was recited that Miller, the insured, had charged the two men above referred to and his daughter Georgia with having robbed him. The letters contained no such charge as to his daughter, and the testimony leaves in doubt the question whether the mistake was made by McGill in his report of the trial or by the “rewrite editor” in the Gazette office.

The article contaimng the false charge that Miller had accused his daughter of robbing him was published in the Gazette on March 26, 1930, and on June 25 thereafter this suit was filed in the Lafayette Circuit Court to recover damages, both compensatory and punitive. The Gazette and McGill, its correspondent, were both made parties defendant to this suit. On July 23, 1930, a news item was published on the first page of the Gazette in which the error in the article of March 26 was pointed out and regret expressed for its publication.

After filing the complaint summons was served on the Gazette in Little Rock, Pulaski County, the county of its domicile, and a return was made by the sheriff of Lafayette County upon the summons to McGill which recited that it had been served “by delivering a true copy of same to Mrs. S. D. McGill at the usual place of abode of the within named S. D. MoGill — she being a member of his household and above 16 years of age.”

Motions to quash the service were filed hy both the Gazette and McGill, the point being raised in each motion that MeGill was not a resident of Lafayette County, and, inasmuch as the Gazette had its domicile in Pulaski County, there was no authority to maintain the suit in Lafayette County.

Upon the hearing of these motions McGill testified as follows. He had resided in Lafayette County until the latter part of March, 1930, at which time he removed to Little Eock, where he had since resided and had been living for about three months before the institution of the suit. He had obtained permanent employment in Little Eock, and expected to continue to make that city his home. Prior to his removal to Little Eock he had resided in Lafayette County since 1902, and he served as a member of the jury at the March term of the court. He owned a home in Lafayette County, where his wife still resided, but the home in that county was for sale, and his wife was only living there until the house could be sold. He left Lafayette County with the intention of making Little Eock his permanent home in March, and was living in Little Eock when the copy of the summons was served on his wife in June, and his residence in Little Eock had continued to the time of the trial in August, 1930. McGill further testified in the most unequivocal manner that when he left Lafayette County it was with the intention of becoming a resident of Pulaski County, and that intention had been carried into effect, although his wife and youngest child were still living in Lafayette County and would continue to do so until his home there was sold.

MeGill admitted that after his removal from Lafayette County he had paid the taxes assessed against him in that county before his removal, but this, of course, was a proper thing for him to do, even though there had been no question about the change of his residence. He also stated that, if he had been in Lafayette County at the time of the election, he would have voted there, but he was not in that county when the election was held, and he did not vote there, but did vote at the election in Pulaski County. He did not vote for any candidate for county offices, but in that.connection stated he had been in the county for only six months.

The court overruled the motions to quash the service, and the case of DuVal v. Johnson, 39 Ark. 182, is relied upon to sustain that ruling. That was a case of substituted service, the summons having been served at the usual place of abode upon the wife of a defendant who had left the State. It was there said that it would be difficult to formulate distinct definitions of “residence” and “usual place of abode,” and that one temporarily absent from his residence or usual place of abode might be served by leaving a copy of the summons with some member of his family of sufficient legal age living at the residence or usual place of abode of the resident who was temporarily absent. The facts in that case were that the summons was served in 1856, and a judgment was rendered thereon in 1861, and the proceeding to vacate the judgment was not instituted until 1875. It is recited in the opinion that the judgment defendant went to California in 1854, and had returned in 1857, “without any intention whatever to change his residence.” The defendant in that case never questioned the sufficiency of the service, and it was raised by his children after his death.

We are, therefore, of the opinion that the DuVal case, supra, is not controlling here, for the court there stated the fact to be that the defendant left this State without any intention of changing his residence, and service upon a member of his family at his usual place of abode was therefore in conformity with the statute of this State.

Here, however, the facts which we have recited are undisputed, there being no testimony whatever upon this question except that of McGill, and the conclusion to be deduced therefrom is one of law, and we are therefore not bound by the finding of the trial court that the service was sufficient. The sufficiency of testimony to support even the verdict of a jury, where the testimony is undispitted, is a question of law for the court. Catlett v. Ry., 57 Ark. 461, 21 S. W. 1062; Pine Bluff Heading Co. v. Bock, 163 Ark. 237, 259 S. W. 408.

The law of this feature of the case is well settled, and is to the following effect. One’s usual place of abode, in its ordinary acceptation and in the sense used by the statute, means the place where a person lives or has his home, that is, his fixed permanent home; the place to which he has — whenever he is absent — the intention of returning.

At § 6 of the chapter on Domicile in 9 R. C. L., p. 542, it is said: £ £ The general rule is that domicile is changed from one place to another, or one State to another, only by the abandonment by a person of his first place of domicile with the intention not to return, and by taking up his residence in another place with the intention of permanently residing in that place. In other words, to effect a change of residence or domicile, there must be an actual abandonment of the first domicile, coupled with an intention not to return to it, and there must be a new domicile acquired by actual residence in another place or jurisdiction, with the intention of making the last acquired residence a permanent home; and the acts of the person must correspond with such purpose.”

Applying these principles to the undisputed testimony in. this case, we are of the opinion that MoGill was a resident of Pulaski County, and not of Lafayette County, at the time of the service upon his wife in the latter county, and that such service upon him was therefore insufficient, and, this being true, it necessarily follows that the service upon the Gazette in Pulaski County was insufficient to require it to appear and answer in the Lafayette Circuit Court.

McGill testified that he left Lafayette County three months before the institution of this suit, and that he removed to Pulaski County, where he had obtained permanent employment, with the intention of residing there permanently, and that he was attempting to sell his former home in Lafayette County, and intended to remove Ms family to Pulasld County as soon as a sale was effected, and in the meantime he had established a place of abode at an address which he stated in Little Rock.

It must be remembered that a man has the absolute and unqualified right to change his place of abode when he pleases, for any reason which prompts him so to do, and that he does change his place of abode when he removes from one place, with the intention of abandoning it as his place of abode, to another place, where he expects to abide, without having the intention of returning to the place from which he removed.

In the case of Smith v. Union County, 178 Ark. 540, 11 S. W. (2d) 455, it Avas held that the personal property of an attorney Avho was residing in Union County and practicing law there should be assessed for taxation in that county, rather than in another county Avhere he also had a Mav office and a residence which he called his home. In so holding we said: “Residence, as used in § 9890, Crawford & Moses’ Digest” [which section provides that every person ‘shall list the real property of which he is the owner, situated in the county in which he resides, the personal property of which he is the owner, * * *, whether in or out of said county or State,’] means the place of actual abode, and not an established domicile or home to which one expects to return and occupy at some future time. ’ ’

We conclude therefore that the eircíuát oourt of Lafayette County did not acquire jurisdiction of this cause of action, and that the service should be quashed and the cause of action dismissed, and. it is so ordered. Fidelity Mutual Life Ins. Co. v. Price, 180 Ark. 214, 20 S. W. (2d) 874.

Hart, C. J., Mehaeey and 'Butler, JJ., concur in reversal, but dissent from judgment of dismissal.

Mehaffy, J.,

(dissenting). Mr. Chief Justice Hart, Mr. Justice Butler and the writer agree that the rase should be reversed and remanded for the error of the trial court in refusing to admit certain testimony, but we do not agree with the majority in holding that the ease should be dismissed. Mr. McGill testified that he had moved to Little Rock the latter part of March, 1930, hut he also testified that he owned his home in Lafayette County and that he had lived in Lafayette County for about 28 years; that his family was still living in the home in Lafayette County not only at the time of the service of the summons but also at the time of the trial. He also testified that his family continued to live in Lewisville, Lafayette County, until he could sell his home.

According to his testimony, he did not intend to move his family to Little Rook until he could sell his home. He served on the jury in Lafayette County in March, 1930. He testified at the time he was taken on the jury that he was a citizen of Lafayette County. He testified that he had decided in the early part of the year to move to Little Rock. If he had contemplated moving away from a home where he had lived for 28 years, is it not reasonable and probable that some member of the jury with whom he served ivould have known about it and would have been called to testify?

So far as the evidence shows none of his neighbors nor any other person ever heard of his intention to move. There is no evidence that he ever told any one. There'is no evidence that he offered his home for sale or that he advertised it for sale or that he arranged with or spoke to any real estate agent or other person to try to sell his home.

He says he voted in Pulaski County after he came to Little Rock, but he voted for State officers only. He did not vote for county officers. He testified that, if he had been in Lafayette County, he would have voted there. I think his vote in Pulaski County may be explained by saying that many citizens think they have a right to vote for the State officers anywhere they may be in the State.

The majority opinion states that he testified that he had not lived in Pulaski County six months when he voted there. He did not state this, however, as an explanation of why lie voted for State officers only. He had said nothing about this, but the appellant’s attorney asked him after he had testified that he voted for State officers in Pulaski County and would have voted in Lafayette County if he had been there: “If he had lived in Pulaski County six months when he voted?” And he said “No”; but he was not asked if that was the reason he voted for State officers only. No one testified on this question but appellant McGill.

The only question is the intention and g*ood faith of McGill. We recently said: “According' to the testimony introduced by appellant, which must be regarded as disputed on account of the interest of the witnesses testifying in the result,, and on account of the contradictory circumstances, etc.” Walker v. Eller, 178 Ark. 183, 10 S. W. (2d) 14.

“It may be said to be a general rule that where ar unimpeached witness testifies distinctly and positively to a fact and is not contradicted, and there is no circumstance shown from which an inference against the fact testified to by the witness can be drawn, the fact may be taken as established, and a verdict directed based on such evidence. But this rule is subject to many exceptions, and where the witness is interested in the result of the suit or facts are shown that might bias his testimony, or from which an inference may be.drawn unfavorable to his testimony or against the facts testified to by him, then the case should go to the jury.” Skillern v. Baker, 82 Ark. 86, 100 S. W. 764; Oyler v. Simple, 163 Ark. 620, 260 S. W. 744; American Ry. Express Co. v. H. Rouw Co., 174 Ark. 6, 294 S. W. 416; Nelson v. Mo. Pac. R. Co., 172 Ark. 1053, 291 S. W. 66; Gilson Oil Co. v. Sherry, 172 Ark. 947, 291 S. W. 66; Poinsett Lumber Mfg. Co. v. Traxler, 118 Ark. 128, 125 S. W. 522; Paragould & M. Rd. Co. v. Smith, 93 Ark. 224, 124 S. W. 776; St. L. Sw. Ry. Co. v. Trotter, 89 Ark. 273, 116 S. W. 227; Hankinson Lynn Gas, etc., Co., 175 Mass. 271, 56 S. W. 604; Bank of British North America v. Delafield, 81 N. Y. 410, 27 N. E. 797.

“A well connected train of circumstances is as cogent of the existence of a fact as any array of direct evidence, and frequently outweighs opposing direct testimony.” 23 C. J., p. 48.'

There is of course no dispute about McGill being interested in the result of the suit. He was a defendant and was sued for $35,000 damages. Authorities above hold that, if he was interested in the result of the suit, his testimony must be regarded as disputed, that it is a question of fact for the jury. Not only was Mr. McGill interested, but the circumstances at least tend to show that he had not abandoned his home in Lewisville. Before the statute permitting parties to suits to testify, the intention and good faith of a party could only be proved by circumstances. Since the enactment of the statute the party may testify as to his intention, but his testimony is regarded as disputed. That is, it is a question of fact for the jury. In the very nature of things it is impossible to contradict by direct testimony the statement of a witness as to his intention or good faith. The testimony of an interested party as to his intention or good faith, although uncontradicted, is not conclusive, and, if inconsistent with his conduct, may be rejected. 10 R. C. L. 1107; Shepherd v. Morgan, 108 N. Y. S. 379.

The majority opinion says that the case of DuVal v. Johnson, 39 Ark. 182, is not controlling here “for the court there stated the fact to be that the defendant left this State without any intention of changing his residence.” Johnson went to California in April, 1854, and returned in August, 1857. He was gone more than three years. The summons in that case was served at his residence in Sebastian County, Arkansas. It is true that the court said that defendant left this State without any intention of changing his residence, but it also said: “There might perhaps be something serious in this objection, if he had taken his whole family away, and closed the house, or rented it to a neighbor, and the notice had been affixed to the door or otherwise left there.”

If Mr. McGill had taken his family with him to Little Rock and advertised his home for sale, or placed a “For Sale” sign on the house and had conducted himself in such a manner that the fact of his intention to change his residence would have been known to his neighbors, we would have a very different question. It would still, however, be a question of fact.

The opinion of the majority says that whether McGill had changed his residence is a question of law, and for that reason this court is not bound by the trial court’s decision. It may lie conceded that, if it is a question of law and not a question of fact, we would not be bound by the decision of the trial court. I think the declaration of the majority is in direct conflict with every former decision of this court on this question. In the limited time I have had I have been unable to find any decision of this court that supports the declaration of the majority that this is a question of law, and none are cited in the opinion. The majority opinion cites 9 R. C. L. 542 on the question of intent to change domicile. In the same volume, pag’e 556, the question of evidence is discussed. • It is there said: “The determination of domicile, it has been said, is usually a mixed question of law and fact, while the question as to residence is one of fact alone.” 9 R. C. L. 557.

In the case of DuVal v. Johnson, supra, the court held that residence and usual place of abode meant the same thing. Therefore the question of one’s usual place of abode is a question of fact alone. If it is a question of fact, and I think, under all authorities including our own decisions, it is, then the finding of the trial judge is conclusive.

There is an unbroken line of decisions of the court-to the effect that the testimony of a party to a suit is not to be considered as uneontradicted and also that the finding of the trial judge on questions of fact is as conclusive as the finding of a jury. The following are a few of the cases so holding: Vinson v. Wooten, 163 Ark. 170, 259 S. W. 366; Creasey Grocery Corp. v. So. Mercantile Co., 169 Ark. 1046, 277 S. W. 513; Staggs v. Joseph, 158 Ark. 133, 249 S. W. 566; St. L. S. W. Ry. Co. v. Mulkey, 100 Ark. 71, 139 S. W. 643, Ann. Cas. 1913C, 1339; Little River Co. v. Buron, 165 Ark. 335, 265 S. W. 61; Cody v. Pack, 135 Ark. 445, 205 S. W. 819; Matthews v. Clay County, 125 Ark. 136, 188 S. W. 564; Jones v. Glidewell, 53 Ark. 161, 13 S. W. 723, 7 L. R. A. 831; Schuman v. Sanderson, 73 Ark. 187, 83 S. W. 940. There are many other decisions of this court to the same effect, and I know of none to the contrary. It is not a question of what we believe or what we would find. The finding of the trial judge is conclusive here.

The trial judge sees the witness, observes the demeanor of the witness on the stand, his willingness or unwillingness to testify, and has many opportunities to judge the credibility of the witness that this court does not have. The trial judge must take all these things into consideration, as well as the interest of the witness in the result of the lawsuit, in passing upon the credibility of the witness and the weight to be given to his testimony.

I think we are bound by the finding of the trial judge, and that the case should be remanded for a new trial.

Mr. Chief Justice Hart and Mr. Justice Butler agree with me in the conclusions herein reached.


author: Per Curiam. Per Curiam.

text:
    American Insurance Company of Newark, New Jersey, v. Dutton.
    Opinion delivered March 30, 1931.

      Beloit Taylor, for appellant.

      B. G. Waldron and Cole & Poindexter, for appellee.
   Per Curiam.

Counsel for appellee move to dismiss the appeal or to affirm the judgment of the circuit court because the court adjourned without passing on the motion for a new trial and there is no error apparent on the face of the record.

The record shows that the court adjourned for the term without acting on the motion for a new trial. When an appeal is taken from a judgment and the trial court adjourns without acting upon and overruling the motion for new trial, nothing is brought before the court for review except the pleadings, verdict and judgment; and if the pleadings and verdict authorized the judgment rendered, it will be affirmed without regard to the rulings of the court at the trial further than they appear in the judgment. Young v. King, 33 Ark. 745; Kearney v. Moose, 37 Ark. 37; and Scroggins v. Hammett Grocer Co., 66 Ark. 183, 49 S. W. 820.

This was a suit on an insurance policy for $1,200, and there was a verdict and judgment against appellant for that amount. The court also allowed appellee an attorney’s fee of $200, and there is nothing in the record to show that this amount was excessive. Security Insurance Company of New Haven v. Smith, ante p. 254; and Union Central Life Ins. Co. v. Mendenhall, ante p. 25.

It follows that the judgment must be affirmed.

OPINION ON REHEARING.

Per Curiam.

Counsel for appellant in its motion for a rehearing claims that the court did not take into consideration a clause of the insurance policy which is set out in tlxe brief on the motion on rehearing. We do not deem it necessary to set out this provision of the policy, for, under our settled rules of practice, we cannot consider it. It is true that the policy was made an exhibit to the complaint, but this court has uniformly held that in actions at law exhibits to the complaint can only be used as explanatory of the allegations of the complaint and not for the purpose of contradicting them. Abbott v. Rowan, 33 Ark. 593; Bouldin v. Jennings, 92 Ark. 299, 122 S. W. 639; Louisiana Northwest Rd. Co. v. McMorrella, 170 Ark. 291, 282 S. W. 6; and Lester v. Thomas, 171 Ark. 351, 295 S. W. 717.

The complaint in the present case contains a specific allegation that the defendant delivered to plaintiff its insurance policy in the sum of $1,200, wherein said defendant agreed to indemnify plaintiff against loss by fire for a period of five years from the date of the policy on a dwelling house and household goods; that the dwelling house and household goods of the value of $1,200 were totally destroyed by fire. Judgment is asked by plaintiff against the defendant in the sum of $1,200, for the statutory penalty and for attorney’s fee. The judgment rendered does not contain any recitation of the facts upon which it is based. There was a verdict in favor of the plaintiff against the defendant in the sum of $1,200. Judgment was rendered in favor of plaintiff against the defendant for the sum of $1,200 with costs. The judgment then contains the following recital: “and, it appearing that the failure and refusal of the defendant to pay the amount due on said policy was vexatious and inexcusable, it is further ordered that in addition to the above $1,200, defendant pay a penalty of 12 per cent, and an attorney fee to the plaintiff in the sum of $200, etc.”

As pointed out in our original opinion, on account of the failure of the plaintiff to have the court rule on its motion for a new trial, we can only consider errors apparent from the face of the record and the judgment itself. We find no error on the face of the record in the application of the settled rule of law governing cases of this kind, as pointed out in our original opinion and in this additional opinion. Therefore, the motion must be denied.


text:
    Taylor v. Whaley.
    Opinion delivered April 6, 1931.

      8. M. Casey, J. Pcml Ward and Shields M. Goodlwin, for appellant.

      Coleman & Reeder and W. K. Ruddell, for appellee.

      W. 8. Atkins and Lemley $ Lemley, and Carrigan & Monroe, amici curiae.

   Humphreys, J.

Appellees instituted this suit against the Citizens’ Bank & Trust Company of Batesville as the real party defendant, and the North Arkansas Bank of Batesville and the Home Accident Insurance Company of Little Rock as nominal parties defendant, to recover from said Citizens’ Bank & Trust Company $28,906.18, alleging that said sum was funds belonging to Independence County and held by said bank under an unlawful and fraudulent agreement between the two banks, whereby, at the biennial letting of the county funds in conformity to the county depository laws by the county court, they conspired together to submit only one bid and obtain the use of the public funds at a reduced rate of interest on daily balances in the name of the North Arkansas Bank and then divide the funds. It also alleged that the Nortlj. Arkansas Bank and its bondsmen, the Home Accident Insurance Company, had become insolvent, but that the Arkansas Bank & Trust Company, by virtue of said unlawful conspiracy, had in its possession said sum belonging to said county and its political subdivisions, for which amount appellees prayed judgment against said bank.

The Citizens ’ Bank & Trust Company filed a separate answer admitting that it had $28,906.18 deposited in the name of the North Arkansas Bank, the designated county depository, but denying that it received or held same by virtue of an unlawful agreement between it and the North Arkansas Bank to stifle or freeze competitive bidding at the biennial letting of the county funds in conformity to county depository laws, and, in order to protect itself, paid said amount into the court registry for proper disbursement under order of the court.

Appellant herein, Bank Commissioner in charge of the assets of the defunct North Arkansas Bank, filed an intervention, by permission of the court, denying the alleged conspiracy of the two banks to obtain the use of the county money at a reduced rate of interest by chilling the bidding at the letting and denying appellees ’ claim to the preference, even though such conspiracy existed.

The case was submitted to the court upon the pleadings and testimony adduced by the respective parties, which resulted in a finding and decree against appellant, from which is this appeal.

The trial court found that the funds in question had been wrongfully and unlawfully let to the North Arkansas Bank through a conspiracy between the two banks in bidding for said funds and by it wrongfully and unlawfully left in the Citizens’ Bank & Trust Company, and, based upon said finding, adjudged that the funds never became assets of the North Arkansas Bank. This adjudication was contrary to the rule announced by this court in the case of Talley v. State, 121 Ark. 4, 180 S. W. 330, and reiterated in the cases of School District v. Massie, 170 Ark. 222, 279 S. W. 993, and Rainwater v. Davis, 172 Ark. 538, 289 & S. W. 471, to the effect that a deposit of public funds in an incorporated bank constitutes a general deposit as well as tbe relationship of debtor and creditor between the bank and the beneficial depositor, ■but that, in ease such funds are acquired by the bank unlawfully and wrongfully, the beneficial depositor would be entitled to recover same in preference to g’eneral creditors of the bank. This rule of preference, however, was abrogated by act 107 of the Acts of the General Assembly of 1927, providing for the distribution of the entire assets of an insolvent State bank, in which act all claimants are classified either as secured, prior, or general creditors. The act provides that the beneficiary of an express trust in writing, signed by the bank, as distinguished from a constructive trust, a resulting trust, or a trust ex maleficio, shall have preference of trust funds over general creditors. The act also contains the following provision:

“All creditors not in this section hereinbefore classed as secured or prior creditors of said bank, including the State of Arkansas and any of its subdivisions, shall be general creditors thereof.”

The plain letter of the statute, therefore, precludes the State and its subdivisions from claiming any of the assets of a defunct bank as a trust fund except when they are beneficiaries of an express trust evidenced by writing and signed by the bank.

Under our construction of act 107 of the Acts of the General Assembly of 1927, it is unnecessary for us to decide in the instant case whether the funds in question were lawfully or unlawfully deposited in the North Arkansas Bank and by it lawfully or unlawfully deposited in the Citizens’ Bank & Trust Company. The county and its subdivisions do not claim said funds by virtue of a written express trust signed by the bank.

For the reasons indicated, the decree is reversed, and the cause remanded with directions to adjudge the funds to appellant.

Mehaffy, J., dissents.