author: Smith J.

text:
    Cotton Plant Lumber Company v. Ash Grove Baptist Church.
    Opinion delivered July 3, 1922.
    Sales — attachment.—Where a lumber company furnished materials to a contractor who was constructing a building on a lot for a church on the credit of the contractor, not of the church, the lumber company could not have lumber belonging to the church seized under attachment against the contractor, though most if not all of the lumber had been bought by the contractor from the lumber company.
    Appeal from Woodruff Circuit Court, Southern District; J. M. Jackson, Judge;
    affirmed.

      Jonas F. Dyson, for appellant.
    Under the merchandise lien law, where materials are furnished a contractor to be used in the construction of a building, the presumption will be that the materials were furnished on the credit of the building and its owners, and such presumption will become conclusive unless rebutted by evidence showing that they were furnished on the personal credit of the contractor. 99 Ark. 293.
    The court erred in directihg a verdict for the appellees. 119 Ark. 291.

      Mathis & Trice, for appellees.
    A stranger’s property is not subject to attachment. 15 Ark. 459; 45 Ark. 112.
    The case of Pratt v. Nakdimen, 99 Ark. 293, is not in point. In that instance the court passed upon the right of a vendor of building materials to attach materials which had been furnished a contractor at a building site, but which at the time of the levy had not been incorporated in the building and the title to which had not been transferred to the owner of the building.
   Smith J.

Appellants, plaintiffs below, sued G. H. Bell for lumber and building material furnished him between May 10 and May 20, 1920, as set forth in an itemized statement which was made exhibit “A” to the complaint, which was filed on May 5, 1921. It was alleged that the Ash Grove Baptist Church owns the lots upon which said material is located, and that a portion thereof had been used in the construction of the foundation of the church house which Bell had erected on said lots; and it was further alleged “that the said Geo. H. Bell holds legal title to a good portion of the material now lying on the lots owned by said Ash Grove Baptist Church, being lot-in block-, in Carter’s subdivision of the town of Cotton Plant, Arkansas.” It was alleged that Bell had become a nonresident of the State, and a general attachment issued, which was levied on the lumber piled in the church yard. There was no prayer for a lien on the church .building for the material alleged to have been used in its construction.

Bell filed no answer and made no defense, and has not appealed from the judgment rendered against him; but the trustees for the church filed' an intervention in which they claimed the attached lumber. At the conclusion of all the testimony the court directed a verdict in favor of the intervener, and this appeal is from that judgment.

Plaintiff’s manager testified that he sold Bell a bill of lumber and gravel amounting to $697.04, and that a payment of $184.50 had been made. That he had his dealing's with Bell, and that the church was not known in the transaction, and he did not look to the church for payment; did not know what became of the material; and did not know whether any of the material on the church lot was a part of the material plaintiffs had sold Bell.

One of the trustees of the church, who was a member of the building committee, testified that the church had contracted with Bell to erect the building for the sum of $10,800, and the contract, which was in writing, provided that Bell should furnish the materials needed in the construction of the building, and that he should be paid for the materials as they were furnished. The testimony established the fact that the plaintiffs sold to Bell, upon Bell’s credit, and it is also established the fact that under the building contract between Bell and the church the material became the property of the church when it was placed on the church lot. In other words, the plaintiffs sold to Bell, and Bell sold to the church. The building contract provided for an initial payment to Bell of $2,-500, with which Bell should'buy materials.

It does not affirmatively appear what part of the material, if any, bought by Bell from plaintiffs'was attached, but it does appear that most, if not all of the material attached, had not been bought from plaintiffs by Bell.

Appellants cite the case of Pratt v. Nakdimen, 99 Ark. 293, and quotes as controlling here the following statement of the law from that case: “Under the mechanics’ lien law, where materials are furnished a contractor to be used in the .construction of a building, the presumption will be that the matérials were furnished on the credit of the building and its owner, and such presumption „ will become conclusive unless rebutted by evidence showing that they were furnished on the personal credit of the contractor.”

As has been said, this is not a proceeding under the mechanics’ lien law. It is not shown what part, if any, of the materials sued for went into the building, or was found on the church lot, and it does appear that the material was sold on the credit of Bell, and not that of the church.

The verdict was therefore properly directed in favor of the intervener, and the judgment thereon is affirmed.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Howard v. State.
    Opinion delivered July 3, 1922.
    1. Agriculture — authority of plant board to promulgate rules.— Under Crawford & Moses’ Dig., §§ 8024-8041, the State Plant Board was authorized to adopt and promulgate a rule requiring cedar trees infected with rust within a certain distance of an orchard to he cut down, and one disobeying such an order is guilty of a misdemeanor.
    2. Agriculture — indictment for failure to cut down infected tree. — An indictment charging defendant with failing, after proper notice, to cut down a cedar tree infected with rust on his premises within one and one-half miles of an orchard, contrary to rule No. 51 adopted and promulgated by the State Plant Board, sufficiently informed defendant of the specific offense with which he was charged, under Crawford & Moses’ Dig., §§ 8024-8041.
    3. Criminal law- — state plant board — judicial notice. — The State Plant Board and its personnel were provided for by § 8026 of Crawford & Moses’ Dig., § 8026, and therefore judicial notice will be taken of its existence and of its personnel.
    4. Criminal law- — evidence.—In a prosecution for failing to cut down a cedar tree infected with rust, prohibited by rule No. 51 of the State Plant Board, after being notified by B. that the tree was infected, testimony of B. that he was chief inspector of the State Plant Board was substantial evidence from which the jury were warranted in so finding.
    5. Agriculture — rule of plant board proved how. — In a prosecution for refusing to cut down a cedar tree infected with rust, in violation of rule No. 51, adopted and promulgated by the State Plant Board under Crawford & Moses’ Dig., §§ 8024-8041, the fact of adoption and promulgation of such rule could be shown by the record of the minutes kept by the board and by evidence showing publication of a notice in various newspapers.
    6. Constitutional law — usurpation of legislative functions.— Rule 51 of the State Plant Board, prohibiting the maintenance of cedar trees infected with cedar rust, promulgated under Crawford & Moses’ Dig., §§ 8024-8041, is not a law but a method adopted by the board for carrying the law into effect, and is not void as an attempt to usurp legislative functions.
    7. Constitutional law — validity of rule of plant board. — The rule of the State Plant Board prohibiting the maintenance of cedar trees infected with cedar rust was not ineffective because no penalty was fixed by such rule; the Legislature having fixed the penalty (Crawford & Moses’ Dig., § 8037).

      8. Agriculture — validity op rule op plant board. — Rule 51 promulgated by the' State Plant Board, prohibiting maintenance of cedar trees infected with cedar rust, is not void as not being within the police power of the State.
    9. Constitutional law — police power. — The State in the exercise of its police power is not restricted to matters of health, morals and municipal government, as all property within the State is held on the implied condition that it shall not be injurious to the equal right of others to the use and benefit of their own property.
    10. Agriculture — discretion op plant board. — A rule of the State Plant Board requiring cedar trees infected with rust to be cut down was not unreasonable because there were other methods of preventing or eradicating cedar rust, as the selection of a remedy is necessarily left to the board.
    Appeal from Benton Circuit Court; W. A. Dickson, Judge;
    affirmed.

      Bice & Bice, for appellants.

      J. S. XJtley, Attorney General, Elbert Godwin and W. T. Eammock, Assistants, for appellee.
   Humphreys, J.

Appellant was indicted, tried and convicted in the Benton County Circuit Court, for refusing to cut down a cedar tree on his premises, in Decatur Township, in said county, located within one and one-half miles of an apple orchard, which cedar tree was infected with cedar rust, lawfully prohibited by the provisions of rule No. 51, adopted and promulgated by the Arkansas StatéTPlant Board, after being lawfully notified by George G. Becker, chief inspector for said board, ^that the cedar tree was infected with cedar rust. It is made a misdemeanor, by the law, to disobey the rules promulgated by said board. Appellant was fined one dollar. From the judgment of conviction, appellant has duly prosecuted an appeal to this court.

Appellant’s first insistence for reversal is that the indictment does not charge him with a public offense, but charges him only with a violation of a rule adopted and promulgated by the Arkansas State Plant Board. The indictment charges him with failing to cut down, after, proper notice, a cedar tree, infected with rust, on his premises within one and one-half miles of an orchard in Decatur Township in Benton County, against the peace and dignity of the State of Arkansas, contrary to rule No. 51, adopted and promulgated by the Arkansas State Plant Board. The board was created and authorized to adopt and promulgate the rule in question, and. a penalty fixed for a violation thereof, by the laws of this State. Secs. i8024 to 8041 inclusive, Crawford & Moses’ Digest. The indictment charged a public offense in charging a violation of said rule, the adoption and promulgation of the rule having been authorized by statute. The language of the indictment sufficiently informed appellant of the specific offense with which he was charged. Rider v. State, 126 Ark. 501; Cazort v. State, 130 Ark. 453; Palmer v. State, 137 Ark. 160.

Appellant’s next insistence for reversal is that the record does not show the existence of the State Plant Board or its personnel. The board and its personnel was provided for by section 8026 of Crawford & Moses’ Digest. Judicial notice will, therefore, be taken of its existence and personnel. Williams v. State, 37 Ark. 463; McCamey v. Wright, 96 Ark. 477.

Appellant’s next insistence for reversal is that the official capacity of George G. Becker was not established. Becker himself testified that he was chief inspector of the State Plant Board. This was substantial evidence from which the jury were warranted in so finding.

Appellant’s next insistence for reversal is that the record fails to show that rule 51 was'adopted or promulgated. The record of the minutes, kept by the State Plant Board, were introduced, which showed the adoption and order promulgating the rule and extending it so as to include Decatur Township. The promulgation of the order consisted in the publication of a notice in various papers of Benton County, setting forth the substance of the rule and declaring that the dissemination of cedar rust shall be prevented in certain territory, including specifically Decatur Township in Benton County.

Appellant’s next insistence for reversal is that-Ahe rule is a law and that the Legislature had no authority to delegate its lawmaking power. The rule is as follows: “The maintenance of cedar trees infected with cedar rust on any premises located within one and one-half' miles of an apple orchard, is hereby prohibited in all territory declared in the public notices of the Board to be territory in which the dissemination of cedar rust should be prevented.” The Arkansas Plant Act of 1917, makes plant insects, pests, and diseases, andevery plant and plant product infested or infected therewith, a public jauisance and authorizes the Board, by ascertainment of'fhe fact, through inspection or otherwise, to control, eradicate, and prevent the dissemination of the pests and diseases by treatment, cutting and destruction of plants and plant products infected or infested therewith. Sections 8027 and 8029 of Crawford & Moses’ Digest. It will be observed that the law, making infected plants a nuisance; was enacted by the Legislature and that the power delegated to the Board . was the enforcement thereof in infected districts. The rule is not, therefore, a law, but a method adopted by the Board for carrying the law into effect. Bule 51 is not void as an attempt to usurp Legislative functions but is a valid exercise of authority conferred, to enforce a law. Cazort v. State, 131 Ark. 391.

Appellant’s next insistence for reversal is that rule 51 is of no effect because the Board fixed no penalty for a violation thereof. The Legislature could not delegate such authority to the Board. Davis v. State, 126 Ark. 260. The Legislature exercised that function -by fixing the penalty itself. Sec. 8038, Crawford & Moses’ Digest.

Appellant’s last insistence for reversal is that the rule is void as being unreasonable for two reasons; first, that no question of health, morals, or municipal government is involved, and for that reason the subject-matter is not within the police power of the State; second, that other methods than cutting trees are in use for preventing Or eradicating cedar rust.

(1) The State, in the exercise of its police power, is not restricted to matters of health, morals, and municipal government. Any property may be used so as to bring it within the operation of the police power. The rule is correctly stated as follows in 6 R. C. L. at p. 193: “All the property within the jurisdiction of a State, however unqualified may be the title of the owner, is held on the implied condition or obligation that it shall not be injurious to the equal right of others to the use and benefit of their own property.’’

(2) The purpose of the plant act is to prevent and eradicate diseases which destroy plant life, and especially fruit-bearing plants.

The.election as between remedies must necessarily be left to the board who investigate the matter along scientific lines and base the rules and regulations, more or less, on scientific knowledge. This court committed itself to the doctrine that the efficacy of the remedy was not a question for the courts in the interpretation of the cattle-tick eradication statutes. Boyer v. State, 141 Ark. 84.

No error appearing in the record, the judgment is affirmed.


text:
    Carroll County v. Reeves Construction Company.
    Opinion delivered July 3, 1922.
    1. Bridges — defective, contract — curative statute. — Failure of the commissioners of Carroll County to comply with statutory requirements in awarding contracts for materials and the construction of bridges was remedied by Acts 1921, No. 187, passed to cure irregularities, informalities and illegalities in the letting of such contracts.
    2. Statutes — proof of private acts. — Private acts are not required to be proved exclusively by the printed statute books; Crawford & Moses Dig., § 4115, providing that such books shall be evidence, but not making such method exclusive.
    3. ' EvídENce — judicial notice. — Acts 1921, No. 187,' curing legal defects in the letting of certain contracts" by .county commissioners, although a private act, need not be proved, as the courts take judicial notice of-all statutes of the State.
    4. Bridges — validity of contract for building. — Under the constitutional requirement that contracts for building bridges shall be awarded to the lowest bidder, thereby implying competitive bidding after reasonable notice, contracts awarded separately for construction and for materials to the lowest bidder as to each after proper notice and based upon identical specifications were valid.
    5. Counties — validity of warrants. — As the quorum court, so-called, is not a court having judicial duties, but merely has the duties of levying taxes and making appropriations, its opening and adjourning orders are treated as those of the county court, and county warrants allowed while the quorum court was in session are not subject to the objection of invalidity because issued when the county court was not in session.
    6. Evidence — parol evidence of sessions of county court. — Sessions of the county court may be proved by parol.
    Appeal from, Carroll Circuit Court, Eastern District; W. A. Dickson, Judge;
    affirmed.

      Geo. J.. Crump and Chas. D. James, for appellant.
    The contracts were not let in conformity with sec. 16 art. 19 Const, or see. 827 C. & M. Digest. The contracts let were not the same as were advertised for in the notices and bids requested. The contracts for labor and material were separate, and not in accordance with the advertisements, and created no liability on the part of the county. 54 Ark. 645; 11 Minn. 174.
    The curative act relied on was a special act and not proven in the manner required by sec. 4115,. C. $¿, M. .Digest. .
    The warrants are void and were properly canceled because ordered issued at a time when the county court was not in session. The orders .opening and adjourning court on the day in question were orders referring to quorum court and not the county court. The order could not be made for the issuance of the warrants by the quorum court. The county court failed to convene on the day to which adjourned, and the term lapsed. See 138 Ark. 221 and 134 Ark. 447.

      C. A. Fuller and F. O. Butt, for appellees; J. V. Walker and W. N. Ivie, of counsel.
    There is no constitutional provision as to form of notice, and the only requirement is that the contract be let to the lowest bidder. This was done. Sec. 827, C. & M. Digest, was strictly complied with.
    The fact that the court was in session could be established by parol evidence, in the absence of such showing by the court’s own record. 68 Ark. 340; 138 Ark. 221. No judicial functions are conferred upon the quorum court, and the opening and closing orders as written up by the clerk, referring to that court, must be treated as referring to the county court.
    Assuming an irregularity in the contract and the issuance of the warrants, the defect was cured by a special statute. This court will take judicial notice of such special statutes, without the necessity of proving them. 134 Ark. 121; 107 Ark. 292; 23 Ark. 387; 36 Ark. 196.
   Humphreys, J.

This is an appeal from judgments rendered in the circuit court of Carroll County, Eastern District, in favor of each of the appellees against appellant, for claims severally filed against appellant by each, growing out of the construction of two bridges in said district. The nature of the claim of each is briefly set out in appellant’s statement of the case as follows: “The Reeves Construction Company filed its claim against Carroll County in the county court of said county for the sum of $20,190.91, for the construction of two bridges in Carroll County, one over Long Creek and the other over Kings River. The court disallowed this claim.

“The Alexander Engineering Company filed its claim against Carroll County, in the county court of said county, for the sum of $862.60, for services as engineers in the estimates and construction of said bridges. The court disallowed this claim.

“The First National Bank of Eureka Springs, Arkansas, filed $8,000 in county warrants for cancellation and' reissue, under an order calling in the outstanding county warrants, for that purpose. The same being warrants issued for the steel used in the construction of the bridges above referred to. The county court refused to reissue said warrants, but canceled the same as illegal and issued without authority of law, on the ground that the county court was not in session at the time, the order for their issue was made.

“The People’s Bank of Berryville, Arkansas, filed $2,662.09 county warrants with the county court of Carroll County for classification and reissue under an order of the county court calling in the county warrants for that purpose; they were warrants that had been issued for steel used in the construction of the bridges above referred to. The county court canceled said warrants, but refused to re-issue them holding them to be-illegal and void and not issued by order of the county court.

All of the cases were appealed to the circuit court, Eastern District of Carroll County, Arkansas, and by consent were all consolidated and tried before the court, sitting as a jury.

Appellant contends for a reversal of all the judgments upon the ground that the contracts for the materials and construction of the bridges were awarded contray to sec. 16, art. 19, Constitution of the State of Arkansas, 1874; and sec. 827, Crawford & Moses’ Digest; and for a reversal of the judgments in favor of the two banks upon the additional ground that the county court was not in session at the time the warrants held by them were allowed. The section of the Constitution referred to requires that contracts for erecting or repairing bridges, or for materials therefor, be let to the lowest responsible bidder under regulations which may be provided by law. The section of the statute referred to provides for the character of notice and other regulations in letting contracts for building bridges in the county.

The validity of the contracts is first assailed because the commissioners did not fully comply with the statutory requirements in awarding them. It is unnecessary to set out and discuss the alleged irregulatrities in letting the contracts, 'because, if any existed on account of a failure to comply with statutory regulations, they were validated by act 187 of the General Assembly of 19*21, the passage of which was for the purpose of curing all irregularities, informalities, and illegalities that may have occurred in letting these particular contracts. Appellant contends, however, that the curative act is a private act and must have been proved in the manner required by sec. 411, Crawford & Moses ’ Digest. This is a method by which private acts may be proved, but the statutute does not make it the exclusive one. It is unnecessary to prove the statutes of the State. Courts take judicial notice of them. Sloan v. Lawrence County, 134 Ark. 121.

The validity of the contracts is next assailed because it is claimed they were not awarded to the lowest bidders. The constitutional requirement, that contracts for building bridges shall be awarded to the lowest bidder, necessarily implies competitive bidding, after reasonable notice. The three essential exactions of the Constitution in letting bridge contracts are, in the language of Mr. Justice Hemingway, in the case of Fones Hardware Co. v. Erb, 57 Ark. 645: “An offering to the public, an opportunity for competition, and a basis for an exact comparison of bids.” The facts in the instant case show a full compliance with the three vital principles thus enunciated. The public was given reasonable notice. There was competitive bidding upon identically the same plans and specifications, so there was an exact basis for the comparison of bids. The competitive bidders upon the whole work itemized their bids in such way that the cost of construction was separated from the cost of materials. The commissioners awarded the contract for construction to the lowest bidder on the work, and the contract for materials to the lowest bidder on materials. In this way the lowest bids possible were obtained, and the contracts let to the lowest bidders upon the whole contract. The bidders acquiesced in, and the county profited by, the arrangement.

The validity of the warrants is assailed because allowed on a day, it is claimed, the county court was not in session. The warrants were allowed on November 6, 1920. The record reveals that on October 22, 1920, county court was in session and adjourned to October 27, 1920. The adjourning order was signed by Boy Thompson, judge; that on October 27, 1920, quorum court convened and adjourned to October 28, 1920; that on October 28, 1920, quorum court convened and adjourned; that, immediately thereafter, the orders allowing the warrants were made, other business attended to and the court adjourned to January-1, 1921; that the adjourning order was signed by Boy Thmopson, judge; that Boy Thompson was present and participating in the quorum court proceedings each day it was in session as evidenced by the opening and adjourning orders signed by him as judge. In addition to this, Boy Thompson, county judge, and J. E. Gregson, county clerk, testified that the county court was in session on the 27th and 28th days of October, 1920, and November 6, 1920, the latter day being the day on which the warrants were allowed. The quorum court is not a constitutional court. No judicial duties are conferred by the Constitution on the body of justices of the peace who sit with the county judge as a quorum court. The duties conferred are to levy the taxes and make appropriations, both of which are ministerial. Quorum court is, therefore, a misnomer. The opening and adjourning orders should therefore be treated as the opening and adjourning orders of the county court. Again, we think sessions of the county court may be shown by parol testimony. The .evidence in the instant case sufficiently established that fact.

The several judgments are affirmed.


author: McCulloch, C. J.

text:
    Satterfield v. Looper.
    Opinion delivered July 10, 1922.
    1. Compromise and settlement — sufficiency of evidence. — In an action by a landlord to recover from the sublessee a portion of the rent owing from the original lessee for the land occupied by the sublessee, evidence held to sustain finding that the landlord accepted a portion of the crops grown on the premises in satisfaction of the sublessee’s portion of the rent.
    2. Compromise and settlement — consideration.—Delivery to the landlord by the sublessee of a portion of the crop grown on the land occupied by the sublessee was sufficient consideration for the landlord’s agreement to accept the crops in full satisfaction of the rent due to him by the sublessee.
    3. Appeal and error — assignment of error — motion for new trial. — A contention of error in giving an instruction does not require a reversal where the motion for new trial did not contain an assignment of error on that ground, although the instruction was objected to.
    Appeal from Yell Circuit Court, Danville District; A. B. Priddy, Judge;
    affirmed.

      John M. Parker, for appellant.
   McCulloch, C. J.

Appellant owned a farm containing 154 acres of land in cultivation, and he rented it to one Haney for the year 1920, the rent to be payable in money at a certain price per acre. Haney sub-rented fifty-five acres of the land to appellee under a contract whereby appellee agreed to pay, as rent, certain shares of the corn and cotton. Haney failed to pay the rent to appellant, who instituted this action against appellee to recover the proportionate part of the rent due on the land sub-rented to appellee, according to the terms of the contract between appellant and Haney.

The defense made by appellee in the trial below was that, after the cron had become matured and a small portion of it gathered, appellant entered into a contract with him to accept all of the ungathered portion of the com and cotton in satisfaction of appellee’s liability for rent, and that pursuant to that agreement he delivered the ungathered crop to appellant. This issue was tried out before the jury upon conflicting testimony, and the jury returned a verdict in favor of appellee.

The court, in its charge to the jury, narrowed the issues down to the sole question concerning the alleged settlement between the parties by delivery of the ungathered portion of the crop.

It is contended, first, by appellant that there was no testimony to support the verdict on that issue, but we think there was testimony which was legally sufficient to support the verdict. It is true there are sharp conflicts in the testimony on this issue, but the verdict of the jury settled that conflict in favor of appellee’s contention. Appellee testified positively that after a portion of the erop had been gathered he offered to turn over the balance of the crop — all the corn and cotton left in the field — to appellant in satisfaction of the rent, and that appellant accepted the proposition and agreed to have the crop gathered. His statement was that appellant first agreed to accept, as his rent, a share of the crop in accordance with appellee’s contract with Haney, and that he (appellee) sold the crop to one George with the understanding that the latter was to comply with the agreement, but that about a week later George turned the crop back to him, and that he then turned it over to appellant, who agreed to accept it in satisfaction of the rent. Appellant denies this, but it was a question for the jury to determine. There was another witness who corroborated appellee by testifying that appellant tried to hire him to pick appellee’s cotton.

It is next contended that there was no consideration for this agreement, and that, even if it was made, it did ■ not operate as a satisfaction of appellant’s claim for rent. This contention is not sound, for the reason that there was- no contractual relation between appellant and appellee; appellee was merely liable for the rent by virtue of the statute, which provides that in ease of sub-renting of lands the occupant shall be responsible for the rent of such part of the lands as are cultivated or occupied by him. Crawford & Moses’ Digest, § 6982. There fore the 'contract of settlement by delivery of the crop constituted a new undertaking on sufficient consideration for the settlement of the liability. The consideration was the delivery of the crops, and the evidence was sufficient to .show that there was such a delivery.

Finally, it is contended that the court erred in giving an instruction on the subject of burden of proof, but the motion for a new trial does not contain an assignment of error on that ground. The instruction was objected to when given, but the exception was not preserved by proper assignment in the motion for a new trial.

Judgment affirmed.


text:
    McGehee v. Road Improvement District No. 2.
    Opinion delivered July 10, 1922.
    Highways — abandonment of plans — effect on pending appeal.— Where, under Road Laws 1919, No. 202, establishing a road improvement district, the county court approved the commissioners’ plans over the protest of a property owner, who appealed, and subsequently those plans were abandoned, and new plans were filed and approved without objection, the property owner could not object to the new plans on his appeal.
    Appeal.from Desha Circuit Court; W. B. Sorrels, Judge;
    affirmed.

      Abner McGehee, for appellant.

      Coleman, Robinson & House, for appellee.
   McCulloch, C. J.

Road Improvement District No. 2 of Desha County was created by act No. 202 of the General Assembly of 1919 for the purpose of improving certain roads in Desha County, the roads being designated numerically, and subdistricts, or sections, being created for the purpose of improving each of the roads. The commissioners filed plans with the county court for the improvements in accordance with the directions of the statute, and appellant, who is the owner of real property in the district, appeared before that court for the purpose of protesting against the approval of the plans with respect to section No. 5. There was a hearing before the county court and the plans were approved, and appellant prosecuted an appeal to the circuit court.

The order of approval was entered by the county court on February 26,1920, but the General Assembly, at the extraordinary session in February, 1920, enacted a special statute, which was approved February 20, 1920, amending the former statute with regard to section or subdistrict No. 5, and the order of the county court was not in conformity with the amendatory statute. While the matter was pending in the circuit court on the appeal of this appellant, the county court and the commissioners took cognizance of the change in the law, and the commissioners abandoned the former plans which had been approved by the county court and filed new plans in, regard to the road in section 5. The county court approved these plans, and there was no appeal prosecuted from the order of approval. Thereafter, the circuit court heard the cause upon the appeal and decided that the plans then before that court had been abandoned, and for that reason the litigation inaugurated on appellant’s protest was at an end.

The court was correct in this conclusion for the reason that the plans about which the controversy arose in the county court had been abandoned, and there was nothing to litigate concerning those plans. If appellant had any objection to the adoption of the new plans, his remedy was to appear in the county court and make his objection there. He seeks now to make objection to the approval of the new plans, but he cannot do so in this proceeding.

Affirmed.


text:
    Hoehler v. W. B. Worthen Co.
    Opinion delivered July 3, 1922.
    Highways — priority of bonds issued in installments. — Though bonds issued under authority of a special statute creating a certain road improvement district (Acts 1909, p. 1151), were issued and sold in two successive allotments, all the bonds issued were within the authority conferred, and amounted to a single issue, and no priority was created in favor of the holders of the allotment just issued, and the funds in the hands of a receiver appointed on default in judgment under the statute should be distributed pro rata on all matured bonds.
    Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor;
    affirmed.

      Alfred E. 'Burr and George E. Burr, for appellants.
    1. Special act 402 contemplates and authorizes but a single issue of bonds. The first bonds issued are valid and the second issue of bonds is invalid as against appellants, because unauthorized. This is the legislative intent as plainly appears upon the face of the act itself. See §§ 10, 12, 13, 15, 16, 18, 19, 21 of the act.
    It cannot be doubted that the Legislature intended that the commissioners should borrow the entire amount of money required to construct the whole improvement in a single bond issue. This intention is made clearer by the provision in section 16, supra, that ‘ ‘ all uncollected assessments are pledged for the repayment of such loan, and that negotiable bonds may be executed and issued therefor;” by the provision in section 18 that “for the payment of both principal and interest of the bonds to be issued under the provisions of this act, the entire revenues of the district arising from any and all sources, and all real estate subject to taxation in the district, is by this act pledged,” and by the provision in section 19 that ‘‘all bonds issued under this act shall be secured by a lien on all lands and real property in the district..” The bonds issued on October 1, 1914, in compliance with all requirements of the act, became the first valid and subsisting obligations of the district, and a first lien on all of its resources, not only because of tbe 'above pledges but also because tbe second bonds had not then been issued.
    The fundamental rule in construing statutes is to ascertain and give effect to the legislative intent. 117 Ark. 606; 86 Id. 368, 385; 36 Cyc. 1106. Every part must be construed together. 102 Ark. 205; 11 Id. 44; 22 Id. 369. It must be considered as a whole. 115 Ark. 194; 116 Ark. 538. Each word and phrase should be given effect. 99 Ark. 149.
    2. The construction contended for by appellee involves the act in contradictory and impossible provisions. Section 16 of the act pledges all uncollected assessments for the payment of the first bonds, and, likewise, section 18 pledges the entire revenues of the district and all real estate for the payment of the first bonds, and these pledges were fulfilled from October 1, 1914, to May 10, 1915. If all uncollected assessments and the entire revenues and all real estate in the district, in truth and in fact be pledged by this act to the payment of the second bonds, the original pledge for the payment of the first bonds is destroyed, leaves the first bonds unsecured and the second bonds with all the security.
    Appellee’s contention is also inequitable and unreasonable. The first bonds met the original requirements of the district. The money was advanced upon the solemn pledges both of the district and of the act itself that the loan was secured by first lien on all the resources of the district and had undisputed priority of payment, and that the district would not thereafter do or suffer any act to be done that would impair or defeat such securities or priority. To give subsequent bonds equal priority in securities absolutely pledged for the first bonds eight months before the later bonds were issued would work an inequitable loss and hardship upon the first bondholders. Even if the equities were equal, the maxim “Qui prior est tern-pore potior est jure” should prevail in appellant’s favor. 89 Ark. 378; 22 Id. 369; 104 Id.
      583; 91 Id. 5; 35 Id. 56, 61; 10 Id. 516, 524; 130 N. E. 827; 129 N. E. 500; 105' S. E. 7; 185 N. Y. S. 267; 229 N. Y. 277. The construction contended for by appellee would impair, divert and destroy vested rights of the appellants. 203 Ala. 401.

      James B. McDonough, for appellee.
    1. If it is the law that the second issue of bonds has a prior right, then the purchasers of the first issue bought with knowledge that the prior right existed, and the purchasers- of the second bonds bought with the understanding that they had the superior right. The statute itself does not in words attempt to create any priority between the two issues. The district was authorized to issue bonds up to $31,000, and the second issue is not máde inferior to the first in any way. We think, however, that the second issue is prior in equity and in law to the first issue. It is a lien (the assessment of benefits), fixed by law, — not a contract lien. In all liens such as taxes and assessments created by law, the later lien is superior. 182 Pac. 422; 191 Pac. 954; 20 Cyc. 1202; 175 S. W. 972; 120 Minn. 172.
    2. If the foregoing contention is not correct, then we contend that there is no priority, as in the statute authorizing the issuing of the bonds there is no priority. The only limit fixed by the Legislature as to the amount of bonds to be issued was the 30 per cent, of the value of the property referred to in the act. There is, in reality, no “first” and “second” bonds in the sense employed by appellants. The purchaser of the bonds dated October 1, 1914, knew that bonds were authorized up to $31,000. All the provisions óf the act, including sections 16, 18 and 191 pledged all the revenues for the issue of bonds dated May 1, 1915.
    If appellants are right in saying that the concluding portion of section 19 with reference to default in payment and proceedings upon the appointment of a receiver is a mere distribution clause and does not establish any equality among the bonds, then the junior bonds must be paid first, its past due interest and its past due bonds. If there is anything left after these bonds are paid, then the appellants’ past due bond must be construed. If this is not the true construction of the act, then-it means that all past due bonds must be paid pro rata. If the Legislature, knowing the rule as to priority between senior and junior bonds, had intended to apply a different rule, it would have expressed that intention in the act; hence it either intended that all past-due bonds should be paid pro rata, or that the rule of law on the subject as to priority of the junior bonds should be applied.
    3. Upon the findings of the court in the motion and upon the presumptions arising on the record, appellee is entitled to a decree ordering its past-due bonds and coupons to be paid first.
    Appellants introduced no testimony tending to show that they have any superior right or lien. The decree, therefore, against them on that point will be presumed to be correct. 141 Ark. 369; 146 Id. 232; 129 Id. 193; 139 Id. 408; 144 Id. 436.
    • 4. This court has already upheld the validity of this statute. 112 Ark. 101. See also 92 Ark. 93; 102 Id. 553; 146 Id.-417.

      N. F. Lamb and Chas. D. Frierson, representing certain drainage district bondholders, filed a brief as amid curiae, contending, in substance that priority in time gives priority in right among successive special assessment liens. 12 Wheat. 177; 6 L. ed. 592; 101 U. S. 837; 25 L. ed. 1081; 17 R. C. L., Liens, § 19, p. 610; 25 Cyc. 678; 2 Pom. Eq. Jur. 4th Ed. §§ 678-679. Counsel discuss the statutory provisions in chap. 109 C. & M. Digest, and cite further in support of the foregoing contention, 79 N. W. 77; 27 Pae. 52 ; 67 Pa. St. 345; 129 S. W. 1031; 83 So. 170; 2 Black 448; 67 U. S. 448; 17 L. ed. 327; 67 S. E.-294; 88 Pac. 722; 10 L. R. A. (N. S.) 110; 198 Fed. 557; 117 U. S. 657; 29 L. ed. 1026. Intention to establish priority of special assessments over other liens and of special assessments as between successive issues thereof may be gathered from the whole act, even though not expressly declared. 25 R. C. L. 188-189. See notes to 30 L. R. A. (N. S.) 767; 35 L. R. A. 372; Ann. Cases 1913-0, p. 1210.

      Cockrill & Armistead and Charles Claflin Allen Jr., representing certain nonresident levee district bondholders, filed a brief as amici curiae.

    Appellants’ bonds contain a contractual pledge of a first lien, in apt and emphatic language, viz: “For the faithful performance of all covenants, recitals and stipulations herein contained, for the proper application of the proceeds of the tax assessment of benefits heretofore or hereafter levied, and for the faithful performance in due time and manner of every official act required and necessary for the prompt payment of the principal and interest of this bond as the same shall mature, the full faith, credit and resources of said road district are hereby irrevocably pledged.” These bonds were then, necessarily, first mortgage bonds. The second bonds and pledge were executed seven months, and the pledge filed for record nearly three years, after the first, and recited the previous bond issue. Identical formal proceedings were had by the commissioners prior to the issuance both of the first and second bonds, authorizing the issuance of the bonds and pledge and levying an assessment of benefits, the only difference being a recital and recognition in the second proceedings, bonds and pledge of the first series of bonds. The recitals of the bonds make out a prima facie case of the truthfulness of the facts recited. 28 Cyc. 1627; 80 Ark. 462. The district thus issued a series of first bonds which became, by virtue of the act under which the district was formed, a first lien on the property and revenues of the district. This being true, no action of the district could subordinate the first lien of those bonds. 2 Black (U. $.) 448.
   McCulloch, C. J.

Road Improvement District No. 5 of Pulaski County was formed under a special statute (Acts 1909, p. 1151) for the purpose of improving a certain road. The statute authorized a levy of special taxes on assessed benefits for the purpose of paying for the improvement, and also authorized the commissioners to “borrow money no.t exceeding the estimated cost of the work, at a rate of interest not exceeding ten per centum per annum,” and to issue negotiable bonds for the discharge of liabilities created under the contract for constructing the improvement. The cost of the construction of the improvement and the creation of liabilities of the district therefor were limited by the statute to thirty per centum of the total assessed value of the real property in the district.

The statute contains the following provisions with reference to pledging the revenues of the district for the payment of the bonds:

‘ Section 18. That, for the payment of both principal and interest of the bonds to be issued under the provisions of this act, the entire revenues of the district, arising from any and all sources, and all real estate subject to taxation in the district is by this act pledged, and the board of directors are hereby required to set aside annually from the first revenues collected from any source whatever a sufficient amount to secure and pay the interest on said bonds, and said board shall also make due provisions for the payment of the principal thereof as the same shall become due. .
“Section 19. All bonds issued under this act shall be secured by a lien on all lands and real property in the district, and the board of directors shall annually cause the assessment to be made and the tax levied and collected under the provisions of this act, so long as it may be necessary to pay any bonds issued or obligations contracted under its authority; and the making of said as sessment or levy may be enforced by mandamus. If any bond or any interest coupon-of any bond issued by said board is not paid within thirty days after its maturity, it shall be the duty of the chancery court of the proper county, on the application of any holder of such bond or interest coupon so overdue, to appoint a receiver to collect the assessment aforesaid, and an assessor who shall make an assessment of said property; and the proceeds of such assessment and collection shall be applied, after the payment of the costs, first to the overdue interest, and then to the payment pro rata of all bonds issued by the said board which are then due and payable; and the said receiver may be directed by suit to foreclose the lien of said assessment on said property, and any suit so brought by the receiver shall be conducted in all matters as a suit by the directors, as hereinbefore provided, and with like effect, and the decrees and deeds therein shall have the same presumptions in their favor; provided, however, that when all such sums have been paid the receiver shall be discharged and the affairs of the district conducted by the board of directors as hereinbefore provided. ’ ’

It is further provided in the statute that, on default in the payment of any matured bond or bonds, a receiver may be appointed for the purpose of collecting the assessments until a sufficient sum is realized to pay the matured bonds.

The assessed value of the property in the district is shown in the present litigation to be the sum of $104,-985, therefore the statutory limit upon the amount of the bond- issue restricts the issuance of bonds to the sum of $31,495.50. There was a total issue of bonds in the sum of $28,500, and upon default in the payment of some of the bonds and interest, a receiver was appointed, pursuant to the terms of the statute, and a fund was collected by him, and the distribution of that fund.is the point at issue in the present litigation.

All of the bonds were issued and sold for the purpose of paying for the construction of the improvement, but all the bonds were not sold at the same time. Bonds aggregating the sum of $20,000 were issued and sold on October 1,1914, and these bonds are owned by appellant; the remainder of the bonds, aggregating $8,500, were issued and sold on May 1,1915, and are owned by appellee. The respective holders of the bonds are each claiming priority, and the question involved in the case is whether or not the fund in the hands of the receiver is to be distributed pro rata, or whether either of the parties is entitled to priority.

The chancellor decreed that all of the accrued interest should first be paid in full, and that the remainder of the fund should then be distributed pro rata upon all of the matured bonds held by the parties.

It is not shown that the funds now in the hands of the receiver constitute the last collection' that can be made of taxes, nor is it shown that taxes to be collected in the future will be insufficient to pay off the bonds in full. In other words, the controversy narrows down to the question of priority in the distribution of the particular funds now in the hands of the receiver.

It will also be noted that there was no excess of authority in the issuance of the bonds, for the total amount issued at both of the times mentioned was below the aggregate amount authorized by the statute.

It is contended by counsel for appellants that the case presents an instance of successive bond issues under a statute which provides that the revenue shall be pledged to the payment of the bonds, and that this necessarily creates priority in favor of the holders of the first of such successive issues of bonds. Counsel for appellees contends, on the other hand, that, if the court was not correct in the decision that there was no priority between the different bondholders, and, if there was any right of priority at all between them, the preference is in favor of the holders of the last issue of bonds.

We think that counsel on each side are mistaken in assuming that there were successive bond issues within the meaning of the statute. There was, in legal contemplation, only one issue of bonds,'though the total amount issued was in two allotments, made at different times. The statute provides that all bonds issued thereunder “shall be secured by a lien on all lands and real property in the district,” and it makes no mention of any priority. The power to issue bonds is, however, limited to the sole purpose of raising money for constructing the improvement. It must be, and is, conceded that it is the statute itself which creates the lien upon the revenues of the district, and not the writings which evidence the obligations. The fact therefore that the bonds themselves contain a stipulation that the revenues of the district were pledged to the discharge of the obligation adds nothing to the rights of the parties, and, since the statute creates the lien, it can only be interpreted to mean that the lien is created, without priority, in favor of all the bonds issued for the purpose named. The fact that they were issued successively in point of time does not alter the relative rights of the bondholders, for each of the holder’s derives his right to a lien from the statute itself. The pledge of the revenues declared by the statute may be likened in some respects to a mortage executed to secure numerous debts maturing at different times, and this court has held that under such a security there is no priority between holders of the different debts on account of priority in point of time of the assignment to separate parties of the different obligations. Penzel v. Brookmire, 51 Ark. 105. In that case the debtor executed a. series of notes and a mortgage to secure all of them, and the mortgagee transferred the notes to different parties, and a controversy arose as to the priority under the successive assignments. Judge Battue, in delivering the opinion of the court, called attention to conflict in the authorities, which he divided into three classes: one holding that the notes should be paid in the order of their assignment; another class holding that the notes should take precedence in the order of maturity, and the third class holding that the proceeds of the sale of the mortgaged property should be applied pro rata in part payment of the several notes, irrespective of dates of maturity or assignment. The court approved the view taken by the class of authorities cited last, and in disposing of the question it was said:

‘ ‘ The comparison of a mortgage given to secure several notes to successive mortgages given to secure each of them does not support the doctrine it is made to prove. To make the case analogous, the mortgages to secure each note must bear the same date, and be executed, delivered and filed for record, and recorded, at the same time, and the property mortgaged must be the same. In the latter case the mortgages would be concurrent; neither one would have preference over the others, and all would have equal claims to be paid ratably out of the property mortgaged. If one should be transferred to a third party, it would not thereby become paramount to the others, but all would stand on an equality. Hence the comparison does not sustain the doctrine that the notes, while in the hands of different persons, are entitled to priority of payment according to the order in which they mature. We do not think that either of the doctrines laid down by the two classes of decisions first mentioned is sustained by reason or equity. The notes are secured by one mortgage executed for the equal benefit of all. ***** There can be no priority of rights in favor of one against the others, as the mortgage is one.”

The facts of that case are, of course, different from the facts in the present case, but the principle is the same, for we hold that the statute creates the lien, and only one lien, and that for the security of all the bonds issued under that particular authority — not part of them, but all of them. The decision is limited to the particular facts of this case, and reaches no further. We have no case of successive bond issues in the sense that bonds were issued at different times under different authority, nor have we a case of overlapping districts where there is a question of priority in assessment liens. We reiterate that in this case all of the bonds issued were within the single authority conferred, and we hold that they are tantamount to a single issue, even though actually successive in point of time.

The question is one of first impression in this State. Indeed, it seems not to have been decided elsewhere, so far as we are able to discover. Counsel for the respective parties, as well as the other interested counsel who have filed briefs as amici curiae, have not brought to our attention a single case in point on the question involved in this particular controversy. The only case which might appear to be in point is First National Bank v. Terry, Briggs & Co., 203 Ala. 401, and an analysis of the decision will show that it has very little bearing on the particular point involved in the present case. In that case there was a levy by the county of special taxes pursuant to authority of the 'Constitution to raise a fund annually to pay for the construction, by the county, of certain local improvements, and where there were several contracts let during the same year for different improvements it was decided that the contractors were entitled to priority in point of time for the payment of the amount due out of the funds levied for that purpose. It could only have been held, and was held, to be a case of successive contracts for payment out of the same fund, and of course, when the funds were insufficient, they necessarily must be applied on the 'first obligations contracted, pursuant to the Constitution and the statute. We have no such case here, for the bonds in the present case were all issued, not only under the same authority, but for the same purpose.

The other cases cited by counsel are not in point, for they all relate either to the question of priority of liens of the assessments of different taxing districts, as in the California, Missouri and Iowa cases cited; or to the question of priority where there has been creation of obligations in excess of the authority granted by law, as in the Federal cases cited; or to the question of priority of special assessment liens over other securities, such as antecedent mortgages.

Our conclusion is therefore, after interpreting our statute to confer a single lien for the whole bond issue, there is no priority of the holders of bonds issued at different times, and that the chancellor was correct in his conclusion to that effect. Under this view of the statute, where there is authority for the issuance of bonds up to a certain amount for a given purpose, the purchasers of the bonds first delivered must take notice of the fact that there may be other bonds issued for the same purpose, standing úpon an equality with those then issued; and subsequent purchasers of bonds must take notice that there may have been prior deliveries of bonds under the same authority.

The decree of the chancery court is therefore affirmed.


author: Wood, J.

text:
    Arkansas Short Leaf Lumber Company v. Wilkinson.
    Opinion delivered July 3, 1922.
    1. Master and servant — assumed risk. — In an action for injuries to a ripsaw operator in a sawmill, sustained when a splinter struck him in the eye, in which there was evidence that the lumber fed into the ripsaw was supposed to be clear of knots and splinters, the questions of assumed risk and contributory negligence and of the master’s negligence were for the jury.
    2. Depositions — refusal to quash. — Refusal to quash depositions on the ground that during the taking of the deposition and while counsel for defendant was cross-examining a witness for plaintiff, the notary permitted counsel for plaintiff to confer with the witness was not error.
    3. Trial — improper argument — instruction.—In an action for injuries to a ripsaw operator, an instruction charging the jury not to consider “the argument of either counsel that is not borne out by the record, but you will consider the testimony as given you by the witnesses only, disregarding anything that is not in the record,” held sufficient to remove any prejudice that might be' produced by remarks of counsel in argument that rules of the American Hardwood Manufacturers’ Association might show that it was the duty of the passer to inspect the lumber.

      4. Appeal and error — harmless error. — In an action for injuries to a ripsaw operator, the action of the court in permitting witnesses to testify that they belonged to the American Hardwood Association held not prejudicial.
    5. Damages- — amount op verdict. — A verdict for $5,750 given to plaintiff, who was 45 years old and was earning $3.75 per day with the prospect of increased wages at the time of the accident, for the loss of an eye, which reduced his earning capacity, and for injury to his health caused by the accident, held not excessive.
    6. Damages — physical injury — elements op recovery. — An employee who lost an eye as result of the employer’s negligence could recover damages for physical suffering and inconvenience and for humiliation and mental anguish caused by disfigurement.
    Appeal from Grant Circuit Court; W. H. Evans, Judge;
    affirmed.

      Mike Danaher and Palmer Danaher, for appellant.

      T. N. Nall and Rowell & Alexander, for appellee.
   Wood, J.

The appellee was an employee of the appellant in the capacity of rip-sawyer. He was working at appellant’s sawmill on the second floor. The lumber he sawed came from the first floor on moving endless chains, and when it reached the second floor a negro employee, called the passer, or puller, took the boards from the chains and placed them on the table beside the appellee, to be handled by the appellee and pushed by him through the rip-saw. The appellee was passing one of the boards through the rip-saw when a splinter flew out and struck him in the eye, severely injuring him. The appellee instituted this action for damages, alleging that it was the duty of the lumber passer to inspect the boards before placing them on the table for his use; that the passer negligently failed to discharge this duty, and on account of such negligence the injury occurred.

The appellant defended on the ground that the appellee assumed the risk and was guilty of contributory negligence. The appellee testified substantially as follows: He was feeding the ripsaw No. 3, cutting clear lumber free of knots and splinters. It was supposed to be the clearest and best lumber that comes through. The lumber starts down stairs and comes up stairs on endless chains. The clearest lumber and the rough lumber together. The No. 1 ripsaw man upstairs takes the first rough lumber and it goes on to No. 2 ripsaw, and the passer takes the next — takes what he can use off. It was coming so fast he could not get all of it off, and some of the rough lumber came down the chain to No. 3. There was a man supposed to throw the lumber back to No. 1 and No. 2 ripsaws, if not good, and the best lumber was supposed to come to plaintiff’s table free from knots and splinters. Before putting it on appellee’s table the passer had the duty of inspecting the lumber and throwing back the rough lumber, and putting the best lumber on appellee’s table in order to make a better class of lumber. Under the rush they had, appellee did not have time to make a better class of •lumber and protect himself from splinters, and the ■foreman instructed him to run the lumber through the machine as fast as it would go — to butt the ends together and keep them going through with the ends together, and the passer would inspect it. Under the orders of the superintendent at that time in the rush it was not appellee’s duty to insect the lumber for knot's and splinters. The price of lumber was going down. The appellant had a rush order they wanted right away. The appellee stated: “If a piece of lumber got by inspectors No. 1 and 2, and came to inspector No.' 3, it was his duty to pass it back to No. 1 and 2, and to place on plaintiff’s table the lumber that was clear of knots and splinters. That lumber was put • there for the purpose of making a better class of lumber, and under the rush, to protect plaintiff from - knots and splinters.” Again he says: “They (appellant) had speeded the saws up to where they would'cut the lumber faster,- and that was the reason Mr. Walker had given instructions to me to butt the ends of the- lumber tog-ether, so as to keep the lumber in the machine, keep it going all the time. They speeded the saws up a day or so before that. I think they were going around 2,600 revolutions. They speeded them up because they wanted more lumber cut, and more work out of the machine. A careful inspection would have detected that splinter in that board. I did not have time to inspect that board before I put it in the machine and keep the boards butted end to end, as I have been instructed to do. * * * If the inspector does his duty, there is no danger from knots and splinters. * * * * Under the superintendent’s'direction, appellee had nothing Lo do with the lumber at all except put it up against the saw. He did not have to look at it at all, and did not have time.”

On cross-examination appellee stated, among other things: They were supposed to put into ripsaw No. 3 boards absolutely free from knots and splinters, and if that had been done his eye would not have been hurt. He knew the very best grade did not come to the flooring mill, but he knew the best grade of flooring was made out of a good grade of lumber, free from knots and splinters. The lumber that came through there generally was simply the best that came to the flooring mill. What went through there was supposed to be the best that they cut into oak flooring. If the best that comes to the flooring mill had some knots and splinters, they would be bound to be thrown out at times.

The testimony on behalf of the appellant was to the effect that the best grade of' hardwood lumber is' called “first ahd second”, the next best “No. 1 common”, the next “No.'2 common”, and the next “No. 3 common. ” A board belonging in the ‘1 first and second” grade could have from one to five standard defects— that is, a board might have as much as a six-inch split and five knots not exceeding one and a quarter inches in diameter, or other defects. A standard defect, five of which are permissible even in' a board of that best grade, is a knot one and a quarter inches in di'ameter, or its equivalent in extent of damage. The testimony of the witnesses for the appellant was that the best grade of hardwood lumber was never sent into-' the flooring factory. The appellee himself testified in regard to this as follows: “I know the very best grade don’t come to the flooring mill, but I also know that the best grade of flooring is made out of a good grade of lumber, free from knots and splinters.” The appellee was asked this question: “Q. In other words, lumber is run through the flooring mill to take out the knots, and that is the reason it is cut into short lengths? A. Yes, sir; but there is different kinds of lumber that goes through these different machines. Only the very best of it was supposed to go through ripsaw No. 3.”

1. This is the second appeal in this case. The ease on first appeal is reported in 149 Ark. 270. The facts on the last trial were substantially the same as on the first trial, except the testimony of the appellee -above set forth and the testimony of the witnesses for the appellant as to the kind of lumber that appellee was to put through the ripsaw.

The appellant contends that the above testimony shows that the appellee knew that nothing but boards having defects therein went into the flooring mill and into the machine that he was operating, and that therefore appellee knew of the danger to which he was necessarily exposed in passing the boards to the ripsaw having defects therein, and consequently assumed the risk of the injury which he received as one of the dangers incident to his employment. But it occurs to us, from the above testimony, that it was an issue of fact for the jury to determine whether or not the appellee assumed the risk.

2. On the first appeal the judgment was reversed because of errors in the instructions of the court. We find from an examination of the instructions given by the trial court at the last trial that the court eliminated the errors pointed out in the former trial, and its instructions on the last trial were in conformity with the law as declared by the opinion of this court on the first appeal. In other words, the instructions of the trial court at the last trial on the issues of negligence, contributory negligence, and assumed risk are free from error. Under the evidence these were issues for the jury. We find no reversible error in the instructions on the measure of damages and in regard to comparative negligence.

3. Learned counsel for appellant complains that counsel for the appellee were permitted repeatedly to ask the appellee and other witnesses leading questions and to make a number of derogatory remarks as to the manner in which the defendant was conducting its case, and was permitted to examine appellee and other witnesses on re-direct examination as to matters fully covered in their direct examination.

Upon examination of the record we find that counsel for both appellee and appellant frequently asked questions that were leading in character and therefore improper, but we do not discover that the errors complained of in this respect were of such substantial character as to call for a reversal of the judgment.

4. - Counsel for appellant contends that the court erred in not suppressing the deposition of one of the witnesses for the appellee because, during the taking of the deposition, while counsel for the appellant was endeavoring to cross-examine him, the notary before whom the deposition was being taken permitted counsel for appellee to confer with the witness. The court did not err in refusing to quash the deposition on this ground.

5. The appellant complains because the trial court permitted the appellee to ask certain witnesses whether they belonged to the American Hardwood Manufacturers’ Association, and in permitting counsel for the appellee, to say in his argument that the rules-of such association might show that it was the duty of the passer to inspect the lumber. In response to appellant’s objection to-these remarks and the testimony, the court instructed the jury that ‘ ‘ they must not consider the argument of either counsel that is not borne out by the record, but you will consider the testimony as given you by the witnesses only, disregarding anything that is not in the record.” Counsel for the appellee, in his argument before the jury, contended that the remarks to which the appellant objected were made in answer to something that had been said by counsel for the appellant. In the colloquy that took place between the counsel for the respective parties, during the alleged improper argument of appellee’s counsel, and in response to the frequent objections made to such remarks, the court told the jury that they would not consider any remarks that were not borne out by the evidence in the record, and, after the argument was concluded, gave the instruction as above indicated. We are convinced that the instruction of the court to disregard all improper remarks of counsel that were not responsive to the evidence adduced was sufficient to remove any prejudice that the remarks might otherwise have produced in the minds of the jury. Hall v. Jones, 129 Ark. 18-25. There was no prejudicial error in permitting the witnesses to testify that they belonged to the American Hardwood Association.

6. Appellant contends that the verdict and judgment for $5,750 was excessive. It could serve no useful purpose to set out and discuss in detail the testimony bearing on this issue. Appellee, by reason of the injury, has lost the sight of his left eye. He was forty-five years of age, and at the time of his injury was earning $3.75 per day, with the prospect of an increase in wages. The loss of an eye has reduced his earning capacity, and his testimony shows that he suffered great physical pain from the time of his injury until his vision became entirely destroyed in that eye. Since that time he has not suffered so much, but does suffer at times. Before the injury his health was good, but it is .not as good now as before. The -loss of his eye has disfigured him. Appellee stated that, aside from the physical suffering and inconvenience, he has ¡been humiliated by this disfigurement to his person. The jury and the trial court had the opportunity to observe the extent of such disfigurement, and the jury had the right to take into consideration the mental anguish endured by the appellee on account of his injury. All of the above were proper elements to be considered by the jury in estimating the damages which had accrued to appellee because of the injury he had sustained. These were all taken into account and reduced to a present value in the aggregate sum of $5,750. It occurs to us that when this amount is paid to the appellee it will not afford him more than a reasonable pecuniary compensation for the injury he has sustained. The verdict and judgment are therefore not excessive.

Other errors are assigned, and we have considered them and find that they are not prejudicial to the rights of appellant and not of sufficient importance as a precedent to call for further comment. The record presents no reversible errors, and the judgment is therefore affirmed.


author: Hart, J.

text:
    Honea v. King.
    Opinion delivered July 3, 1922.
    1. Libel and slander — construction op article. — In ascertaining the meaning of written words to determine whether they are libelous, the entire article must be construed.
    2. Libel and slander — construction op article. — In ascertaining the meaning of written words to determine whether they are libelous, the words are to be taken in their plain and natural meaning.
    3. Libel and slander — publication not libelous. — An article signed by defendant stating that plaintiffs and defendant belonged to a partnership, that they had differences about the manner in which the business should be carried on and as to their rights under certain contracts, that defendant had not done well in investing in such business, that he received only a part of what his profits should have been, that plaintiffs had shown bad management in making and collecting debts oí the firm, but not alleging or imputing dishonesty or misconduct to the plaintiffs, held not libelous per se.

    Appeal from White Circuit Court; J. M. Jachson, Judge;
    affirmed.
    STATEMENT OE EACTS.
    B. F. Honea and A. L. Honea instituted this action against E. M. King to recover damages for an alleged libel publised in the McRae Progress, a newspaper of general circulation in White County, Ark.
    The complaint alleges that the plaintiffs and the defendant were members of the same business partnership and that the publication in question grew out of their partnership transactions and impeached the business'integrity of the plaintiffs.
    The complaint sets out in full the alleged false publication and it is as follows:
    As long as the Honea Mercantile Company has gone into print.and thereby leading the readers of the paper to believe that E. M. King has not only spread a false report but has received from them a square deal, all that he was entitled to as per terms of company partnership, under which said firm was organized, and also the personal word of B. F. Honea, I desire to make a true statement of the whole matter. The terms of the guarantee at the time of organizing was that each stockholder should receive the amount of dividends earned according to money invested, and at any time any member should become objectionable to sthe firm that he would withdraw his capital and accept as payment what it has earned while being used, and at any time any member was not satisfied with the firm, that the firm was to return to him the amount put in, with all earnings while invested in business, and- that is the way both Mr. Joe Rechtin and Mr. Jackson went out of the firm. Now, in addition to the terms of the partnership, Mr. B. F. Honea. gave'me his personal guarantee, his word, before I consented -to become a partner, and numerous times afterward, that at any time I wanted my money he would see that I got it, with all the accumulated dividends from the time I became a member of the firm. Now, did he do so? Not on your life. But instead, after I had found that he had opened up a store in competition to.the firm’s business, talcing over the entire feed business of the firm, also any other goods out of the grocer line that he wanted of the firm’s store and was selling it and placing the proceeds to his private account in the bank, I went to him for him to make his word good. Did he do so? Not by any means, but said instead, ‘No, I want to sell out, too.’
    “Now the Honea Mercantile Company has jumped into print to make it appear that E. M. King has done well on his $3,000 investment, and that I should be entirely satisfied. They state very explicitly, which is correct, what I got out of the business, but failed to state that they had set aside the earnings on my stock, $926.50 up to the first of January, 1921, that I did not get. Neither did I get anything for the use of $4,926.50 from the first day of January, 1921, to June 10, 1921, and $3,926.50 until June 30, 1921, except my account as mentioned in their article which was $197.27. Now, about the 1st of February, 1920, I was informed that the business had earned a dividend of $4,000, and that my part was $1,471, but on account of sickness, before I could get my part, it had been put back into the business by B. F. Honea, manager, but the best I — (the rest of this sentence blotted out in paper, as shown by copy of paper attached to complaint).
    “I was informed by Albert Honea that, .after the $1,117.78 dividend had been declared to my part, there could not possibly be any more losses.
    “Now, after deducting $662.28 account I had a ballance for the year 1920 of $455.54, making a total of my investment from September 6, 1919, to January 1, 1921, $2,588.78, what I received for this amount was $1,662.28, instead of $2,588.78. Now E. M. King would be perfectly satisfied with what he had gotten out of this business if the people from whom has been exacted this, amount of $926.50 had been reimbursed by the Honea Mercantile Company, together with what the money had earned from January 1, 1921, to June 30, 1921, had it or could get it, but as it is in the hands of Albert and B. F. Honea I am not especially pleased with the way it was obtained by them.
    “On June 10th I called for my dividend, which was in their hands as herein described, and after some'hesitation and excuses by Albert Honea on account of poor collections, etc., I was finally given a check for $1,000, with a promise of the other as soon as sufficient collections were made, and I inquired three or four times about the collections between the 10th and 13th of June, and very little or nothing had been done, when really and truly there had been, according to B. F. Honea’s statement on June 30, $12,000 had been collected. Yet it was impossible to pay over to me $1,926.50, then past due, some of it for over a year. Now, I wish to state and am willing to make oath to same, that a day or two after I had given Albert Honea and Allie Harrison to understand I knew how the feed business had gone, B. F. Honea came to me and stated that Allie Harrison had told him what I said about the feed business, and told me positively that the feed business was just as it had always been; that he had borrowed $1,000 and that was about all the firm owed. This was about three or four days before I closed out to them, and I knew positively at the time that he had not only taken the feed business out of the firm, so far as I could be benefited by it, but had turned it over to Bob Bailey, with instructions to keep the proceeds separate from that of the other business, long before he bought out the feed store, and I knew then that, he was not only selling feed, but any other articles he wanted out of the firm’s store and having the proceeds placed to his private credit in the bank. What right had he to take any line of merchandise out of our business. without the consent of all concerned,. and. start, a. competitive business of Ms own to be fed from the company’s store? He usurped the rights of all profits from the feed business, one of the best, if not the best, in the business.
    “What was this done for? Can you, gentle reader, imagine? Why didn’t his son, who was a partner and bookkeeper, as well as clerk, object? Certainly he knew what was going on, although when I ask him how the feed business was handled, he said he did not know, ‘that when anything was charged he charged it’. That was all I could get out of him. Poor satisfaction for me, a partner.
    “•‘B. F. Honea’s Personal Word.
    “ ‘B. F. Honea came to me some time in July or August, 1919, and stated to me that he wanted to put out J. T. Lyon, and that he did not have sufficient funds to do so and stock it up as it should be, stating that he wanted to do a general dry goods, grocer, and feed business, and that he was agent for the Cunningham Commission Company, for all points in White County, except Searcy, and got $7.50 per car on all feed sold in the county, except Searcy, and that he would put the feed business into the firm, which was done, and so remained until taken out as herein stated. I told Mr. Honea that I was no business man, but had explicit confidence in his honesty and qualifications, and would put in $3,000 by the time he needed it, but I assured him that he was the only merchant that I knew of that I would go into copartnership with, and that I depended wholly upon him to see that I got a square deal, and that confidence was not shaken until after he attempted to put off two land notes on me that represented $1,500, with only about $900 to secure their payment, for my 1919 and 1920 dividends amounting to $1,926.50.
    “ ‘He gave me his word that he would see that I got back every dollar that I put in with all that it earned in dividends. Now what about this $926.50 that was set aside by the managers and these earnings on the capital from January 1, 1912, to June 30, 1921, was it earned or taken from the patrons of this business? I did not get, they said it was mine.
    “ ‘Their only excuses offered for the foregoing methods employed was bad accounts, reduction in prices, and poor collections.
    “ ‘Remember, there can be no dividends declared as long as there are losses; also, from the best information obtainable, other merchants in McRae were very successful in making collections from their customers during the berry season.
    “ ‘Also but little losses have occurred from reduction in prices since January 1, 1921. These excuses reflect heavily upon the customers of Honea Mercantile Company, if they are correct.
    “ ‘I stated repreatedly to B. F. Honea that I was perfectly willing to stand any losses that might occur in my portion of the business.
    “ ‘But Albert preferred to put me out, and sent Alley Harrison to make these wants known, but not until after I had began to dig around too close to the feed store proposition. : I i1 • j'i
    “ ‘I made them a proposition which I thought that any man who wanted to deal fairly would accept, but it was turned down. The $926.50 was not included, which Albert Honea had held up on the 10th on account of poor collections, as he stated, when there had been $12.00 collected. If B. F. Honea states the truth.
    ‘ ‘ ‘ Then B. F. Honea came to me and said that he had offered to take for his interest one thousand dollars, his living and the money he put in the business. That was enough to satisfy me, that if there was an offer made for my interest that what he had stated would be just what they proposed to allow me. I told Mr. Tucker and my son two days before their offer was made precisely what it proved to be.

      “ ‘I knew every inch of the ground I stood on. I knew I had to lose the $936.50 dividends or run a great risk of losing the whole thing.

      “ ‘I had been notified by B. F. Honea that on the first day of July the books would be closed and cash business would be done in the future.
    “ ‘I knew what had been done with the feed business and what could be done with the cash business. I had no right to expect that the same methods would not be employed in both cases, so I sold to Albert Honea, at a loss, according to their own figures, of $926.50, and the earnings on my money as.heretofore described.
    “ ‘I recognize that this is a pointed statement, but I back every word I have written as true.
    “E. M. King.”
    The defendant filed a demurrer to the complaint, which was sustained by the court. The plaintiffs declined to plead further, and upon their complaint being dismissed, they have duly prosecuted an appeal to this court.

      Gregory & Holtsendorff, for appellant.
    The article published by appellee is libelous per se. 25 Cyc. 256, 262, 337, 341; American Annotated Cases 1913-B, p. 253; 20 A. & E. Am. Cases, p. 717; 95 Ark. 199.
    Even though the article was not libelous per se, the complaint states a cause of action by alleging special damages, and a demurrer should not have' been sustained.

      Brundidge & Neelly, for appellee.
    ' The article published by appellee was an endeavor to vindicate himself, and published in good faith for the purpose of repelling a charge, and was privileged. 17 R. C. L. 364; 72 Ark. 425; 18 A. & E. Enc. Law, 1033.
    The only possible way for the article to be considered libelous would be by innuendo, and the complaint does not charge that: The words must be given their ordinary and natural meaning. 11 L. R. A. 668.
   Hart, J.

(after stating the facts). Counsel for the plaintiffs rely upon the case of Murray v. Galbraith, reported in 86 Ark. 50, and in 95 Ark. 199.

We do not think that case applies. There the publication in express words charged the commissioners of an improvement district with an overcharge of $7,000 in the purchase of gravel, and stated that the improvement district was not the only páving district formed in Pine Bluff that was boodled.

In ascertaining the meaning of written words to determine whether or not they are libelous, the entire article must be construed. The general rule is also that the words are to be taken in their plain and natural meaning and to be understood by courts and juries as other people would understand them, and according to the sense in which they appear to have been used and the ideas they are adapted to convey to those who read them. Skaggs v. Johnson, 105 Ark. 254. Hence it was necessary to set out the whole of the published article, although it is very long and is rambling in character.

By giving to the words used in the published article their most natural and obvious meaning and by giving to them that meaning which would most naturally be ascribed-thereto by those who would read the articles, we do not think the publication is libelous per se. ■ The natural and ordinary construction that would be placed upon the article would be that the plaintiffs and defendant had belonged to the same business firm and had had differences about the way the business should be carried on and as to their rights under certain contracts with each other. The article does not impute dishonesty to the plaintiffs nor does it accuse them of any misconduct in the business that would tend to impeach their integrity or veracity. The article sets forth somewhat in detail the differences between the plaintiffs and the defendant, and it is rather argumentative in character. The publication • seems to have been an effort on the part of the defendant to state the various transactions had between himself and the plaintiffs and to show that he was right in the whole matter.

He does state specifically that he had not done well in investing in the business with the plaintiffs, but he does not accuse them of any actual dishonesty. He does state what his amount of the profits in the business should have been and that he was only paid a part of this amount. He states he was given a check for $1,000 with the promise to pay more as soon as sufficient collections could be made. He made several efforts to learn about the collections and they told him that they had been unable to collect the debts.

King also questioned the right of the plaintiffs to establish a feed business and take that line of business out of the partnership; but he does not accuse the plaintiffs of any actual fraud or dishonesty in that respect. It is true that the defendant, King, also stated in the article that the plaintiffs had attempted to put off land notes on him that represented $1,500 with only about $900 to secure their payment. He does not charge them, however, with fraud or dishonesty in this respect. The notes may have been good without any security at all.

The article does charge the plaintiffs with bad management, especially in the making and collecting of the debts of the concern; but there is no imputation of dishonesty or misconduct in the business charged against the plaintiffs. The publication cannot be construed to accuse the plaintiffs of doing anything in connection with the business that they did not have a legal right to do under the contract as construed by them. There are no facts alleged to connect the publication with any transaction by which the court could say that the publication is libelous per se.

We must therefore conclude that the complaint does not state a cause of action, and that the trial court committed no error in sustaining the demurrer to the complaint.

The judgment will therefore be affirmed.