author: Hart, J.,

text:
    Big Gum Drainage District v. Crews.
    Opinion delivered May 7, 1923.
    1. Equity — jurisdiction to correct mistakes. — The original jurisdiction of equity to correct mistakes was not divested by the statute granting to the county courts the power to readjust the -settlements of the county collector at iany -time within two years (Crawford & Moses’ Dig., § 10125).
    2. Equity — bill to correct mistakes in collector’s settlement —limitation.—A bill in equity to correct mistakes in a collector’s settlement was net barred in two years, Crawford & Moses! Dig., § 10165, having no application.
    Appeal from Clay Chancery Court, Eastern District; Archer Wheatley, Chancellor;
    reversed.
    STATEMENT OE FACTS.
    The Big Gum Drainage District brought this suit in equity against Geo. R. Crews to recover $217.15, which it is alleged that he, as sheriff and collector of Clay County, Ark., collected as drainage taxes, and by mistake failed to account to the -district therefor.
    The defendant denied the allegations of the complaint, and also pleaded that the claim is barred* by the statute of limitations because more than two years elapsed from the time of the settlement of the collector with the county court and the bringing of -this suit.
    It appears from the record that the Big Gum Drainage District was duly organized under the laws of the State in 1915, and that -the sheriff and collector -of Clay County in 1917 collected the drainage assessments for the year 1916. In his -settlement with the county court Geo. R. Crews, as Collector, failed to account for the amount of drainage taxes collected in Clay County shown and extended on one page of his settlement. The recapitulation of his settlement with the county court shows that page 10 was left out entirely, and that the amount' of drainage taxes collected by him, as shown by that page, amounted to $217.15. This fact is clearly established by several witnesses, and is practically undisputed. The deputy collector for Mr. Crews admitted to one of the directors of the drainage district that he knew of the mistake, and that he .would take care of it in his next settlement with the county court. Crews failed to correct the mistake in his next settlement with the county court, and more than two years elapsed between the date of the approval of his settlement and the institution of the present suit.
    The finding and decree of the chancery court were in favor of the defendant, Crews, and the plaintiff, Big Gum Drainage District, has duly prosecuted an appeal to this court.

      G. 0. Raley and F. G. Taylor, for appellant.
    The collector is required to pay the taxes collected for drainage district to the county treasurer at the same time he pays the county funds. Secs. 3618, 10123, 10128, 10129, 10086. Settlement of collector with county court for assessment collected for drainage districts not governed by laws relating to collection of revenues. Secs. 10123, 3618, C. & M. Digest; 59 Ark. 513; 87 Ark. 8; 25 Cyc. 1164, and note 26. Appellee was often notified of the mistake and shortage, repeatedly promised to make settlement thereof, and did not deny that a mistake was made or repudiate the claim until a few days before suit was commenced. The statute of limitations did not begin to run until the trust was repudiated, and appellee was estopped from pleading the statute. 130 Ark. 402; 134 Ark. 251. The account rendered appellee, after approval of his settlement and his agreement to pay, became an account stated. 47 Ark. 541.

      Costen & Harrison, for appellee.
    The settlement of the collector for the drainage taxes collected was duly made and approved by the county court, and any error committed or mistake made can not be required corrected but within two years from the date of settlement. Secs. 3618, 10123, 10125, 10128 10129, 10165, Crawford & Moses’ Digest; 116 Ark. 354. The judgment of the county court confirming the settlement is conclusive of its correctness, and the chancery court could not open or vacate said judgment except for fraud. 49 Ark. 311; 101 Ark. 358.
   Hart, J.,

(after stating the facts). The decision of the chancery court was wrong, because this is an independent suit in chancery, ancl was not a statutory proceeding. Under § 10125 of Crawford & Moses’ Digest it was the duty of the county court to examine the settlement of the county clerk with the collector, and to approve the same, if found correct.

Sec-. 101.65 of Crawford & Moses’ Digest provides that, whenever any error's shall be discovered in the settlement of any county officer made with the county court, it shall be the duty of the court, at any time within two years from the date of such settlement, to reconsider and adjust the same.

Geo. R. Crews, as collector of Clay County, duly made a settlement with the county court for the drainage taxes collected by him in 1917, and his settlement was approved by the -county court. More than two years elapsed after the approval of.-the settlement.before the present suit was instituted. Hence it is sought to- uphold the decree of the court below, notwithstanding the fact that the record "clearly shows- that the amount sued for in the present suit was left -out of the settlement of the collector with the county court by mistake.

The present suit, however, is not a proceeding in the county court to reopen the settlement of the collector and to adjust the same under the statute. It is a proceeding in equity," independent of the statute, to recover the amount of drainage taxes collected by Crews and which he, by mistake, failed to -account for!

A court of equity always had original jurisdiction to correct mistakes where the,mistake iss established by competent .and satisfactory proof. State v. Turner, 49 Ark. 311.

. 'The origm^l;;juds'dipttdn;.of. equity to. correct ..mistakes “was;, not divested by ■ the statute granting to .'the -county court the power to readjust the settlements of the county collector at any time within two years. Gladish v. Lovewell, 95 Ark. 618, and German National Bank v. Moore, 116 Ark. 490.

As we have already seen, the record clearly shows that the collector, by mistake, omitted one page of the drainage taxes collected by him in 1917 for the year 1916, and failed to account to the drainage district therefor. This amounted to $217.15. There are two other small items which he failed to account for in the same settlement.

It follows that the chancery court erred in not granting the relief prayed for in the complaint, and for that error the decree will be reversed, and, inasmuch as the case has been fully developed, the chancellor will be directed to grant the relief prayed for in the complaint.

It is so ordered.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Blytheville, Leachville & Arkansas Southern Railway Company v. Gessell.
    Opinion delivered May 7, 1923.
    1. Railroads — lookout statute — duty op train operatives.— While the lookout statute (Crawford & Moses’ Dig., § 8568) imposes upon a railroad company the duty of keeping a constant' lookout and makes the failure to keep this lookout the proximate cause of such injuries as could have ■ 'been .averted if the lookout had been kept, the train operatives have a right to assume that a traveler or pedestrian approaching .a railroad track will act prudently, and their duty to take precautions begins only when it becomes apparent that the traveler at the crossing will not do so.
    2. Railroads — lookout statute — instruction.—An instruction which makes it the duty of train operatives to take precautions upon discovery of the presence of persons near the track, instead of upon discovery of their peril, .is reversible error where specific objection is taken.
    Appeal from Mississippi Circuit Court, Chickasawba District; W. W. Bandy, Judge;
    reversed.

      Little, Buck & Lasley, for appellant.
    Assuming that the court will follow the harsh construction of the lookout statute made in 108 Ark. 326, it is still insisted that there was no testimony showing ■that appellee’s peril could have been discovered, had the lookout been kept, in time to have prevented the injury, and the court should have directed a verdict for appellant. Appellee’s .contributory negligence barred him from recovering for appellant’s failure to give crossing signals. 97 Ark. 410; 90 Ark. .21; 149 U. S. 43; 61 Ark. 549; 76 Ark. 231. Both instructions given by the court are erroneous.

      Costen & Harrison, for appellee.
    The facts in this case are stronger than those in St. L. <B S. F. By. Co. v. Champion, 108 Ark. 326, where the lookout statute was correctly construed. As to the question of contributory negligence on the part of ap: pellee, the facts here are strikingly like those of 138 Ark. 589. See also 115 N. E. 753; 125 N. E. 793; 262 Pa. 421; 105 Atl. 636; 173 Pac. 1117. Instruction numbered one was not subject to objections made thereto nor erroneously given. A very similar instruction was approved in 102 Ark. 386; 107 Ark. 431; 105 Ark. 294. Appellant might have been entitled to an instruction more specifically presenting its view, but asked none. Ill Ark. 229; 102 Ark. 322; 78 Ark. 55. Instruction number 2 was given at appellant’s request.
   Smith, J.

Appellee recovered judgment for damages to compensate an injury done to an automobile truck by being struck by one of appellant railroad company’s. locomotives. The collision occurred near the city of Blytheville about three o’clo'ok in the afternoon of December 31, 1921.

It was alleged, and there was testimony from which the jury could have found, that no signal was given and no lookout was kept as the engine approached the crossing. . It was also alleged that the engine was operated at a dangerous and excessive rate of speed, but the witnesses who testified on this subject stated the engine w'as running seven, eight or nine miles an hour. ■ •

Appellee testified that, when he got within about fifty yards of the crossing, he .shoved the clutch into neutral, and then looked to the right and then to the left to see if a train was coming. He saw some empty box-cars on a sidetrack, but no train, and then turned his attention to driving his ear aloross the track. He also testified that he applied his 'brake as he approached the crossing.

The undisputed testimony shows that, notwithstanding the cars on the sidetrack, appellee had a clear view of the track before driving on it for a distance of a hundred to one hundred and fifty yards in the direction from which the engine approached.

N'O testimony was offered on behalf of the railroad company, except that developed in the cross-examination of appellee and his witnesses, and the jury no doubt found that the engineer on the locomotive did not keep a lookout nor give signals, and that the driver of the truck was guilty of contributory negligence. After striking the truck the engine ran only four or five car-lengths.

It is apparent from the instructions given that appellee predicated his right to recover Upon the amended lookout statute appearing as § 8568, 0. & M. Digest. This statute has been construed as imposing upon the railroad company the duty of keeping a constant lookout, and makes the failure to keep this lookout the proximate cause of such injuries as could and would have been averted had the lookout been kept, if the employees in charge of the train could have discovered the peril of the person injured by keeping such lookout, in time to liave prevented the injury, by the exercise of reasonable care after the discovery of such peril, notwithstanding the contributory negligence of the person injured. St. L. & S. F. R. Co. v. Champion, 108 Ark. 326; St. L. S. W. R. Co. v. Murphy, 125 Ark. 507; C. R. I. & P. Ry. Co. v. Scott, 123 Ark. 94.

■' The court gave, at appellee’s request, an instruction •numbered 1, reading as follows: “You are instructed that it was the duty of the defendant, of the employees of the defendant, its employees in charge of the engine and train in question, to keep a constant lookout for persons or property on or near its track, and in this casé, if you find from a preponderance of the evidence that the engine of defendant, while being operated by defendant, on its track, at the time and place claimed by plaintiff, struck plaintiff’s truck, that said truck, as a direct and proximate result of the striking of said truck by said engine, was damaged, and you find from the evidence that the defendant or its employees failed to keep a constant lookout for persons or property on or near its track, and further find that, if such lookout had been kept, the employees of defendant could have discovered the truck in time to have prevented the engine striking the same, if you in fact find the engine struck the truck, and have prevented the injury complained of, your verdict should be for the plaintiff, and this notwithstanding the fact that plaintiff himself was guilty of carelessness or negligence in the driving or management of the truck which contributed to the injury. ’ ’

To this instruction the specific objection was made that the statute did not apply until both the presence and the peril of the truck was discovered, or could have been.

In our opinion, the instruction .should have been modified to conform to this objection. The operatives of trains have the right to assume that a traveler or a pedestrian approaching a railroad track will act in response to the dictates of ordinary prudence and the instinct of self-preservation, and will, in fact, stop before placing himself in peril, and the duty of the railroad employees to take precautions 'begins only when it becomes apparent that the traveler at a crossing will not do so.

The statute referred to imposes upon the railroad the duty to maintain a constant lookout, and charges it with'the responsibility of having seen what would-have been, seen, had this lookout- been kept, and'imposes upon the currier the degree'of care it should have exercised had the lookout been kept and the traveler’s peril thereby observed; and if, by keeping this lookout, the railroad company could and would have discovered the traveler’s peril in time to avert the injury, it is liable if it rails to do so, notwithstanding the fact that the traveler's contributory negligence placed him in peril. But it does no more than this. The.duty of the railroad to take precautions begins when it discovers, or should have discovered, the peril of the traveler. So here the railroad company should have kept the lookout, and is chargeable with such knowledge as it would have had had the lookout been kept; but if the lookout had, in fact, been kept and appellee’s presence near the track discovered, this would have imposed no duty on the railroad to stop1 the engine or to take other precautions until the peril of the traveler was discovered. In other words, the instruction as given does not distinguish between the presence of the truck and the peril of the truck, and this should have been done when the specific objection to the instruction was made, and the failure to so modify the instruction was error. No other error appears.

Judgment reversed, and cause remanded.


author: Humphreys, J.

text:
    Rainwater v. Emberton.
    Opinion delivered May 7, 1923.
    1. Husband and wipe — alienation of wife’s affections_evidence. — Evidence in an action for alienating the affections of plaintiff’s wife, tending to show that defendant invaded plain- . .tiff’s home and seduced his wife, thereby depriving him of the aid, comfort and happiness which he had previously enjoyed, held to sustain a verdict for plaintiff.
    2. Husband and wife — alienation of wife’s affections — instructions. — In an action for alienating a wife’s affections, instructions held to properly submit' to the jury the issue as to whether -plaintiff had the. love or affection of his wife at the time de7 fendant made her acquaintance.
    3, Husband and wife — alienation of wife’s affections — complaint. — Where a complaint for alienating the affections of plaintiff’s wife alleged their happy relations, and that defendant, through continued attentions, won her affections and seduced her, depriving plaintiff of her comfort, society and assistance, a motion to make the complaint more specific by setting out the inducements offered and means and methods adopted by defendant to win and retain her affections was properly overruled.
    4. Appeal and error — harmless error. — Refusal to require the plaintiff to make his complaint more specific was not prejudicial where defendant does not show that he was prevented from introducing any evidence which he could or would have produced if the allegations had been more specific.
    Appeal from Crawford Circuit Court; James Cochran, Judge;
    affirmed.

      Chew £ Ford, for appellant.
    No testimony to support allegations of complaint as to appellant’s seducing and debauching wife of appellee. "Seduce” defined, Anderson’s Dictionary, 932; 10 S. W. 841; 55 Atl. 1021; 76 Conn. 135; 100 Am. St. Rep. Instruction number 5 was therefore erroneous. Court erred also in giving instructions numbered 1, 2, and especially 3, all of which erroneously assume that appellee’s wife had affection for him. The court should have required the complaint made more definite and specific.

      C. M. Wofford and JohnD. Arbuchle, for appellee.
    Word "debauch” does not appear in amended complaint, and the words "seduce” and "debauch” are distinguished in meaning in the authorities. Words & Phrases, 6389, 6390; 10 S. W. 841. Instruction number 5 was favorable to appellant. 79 S. E. 872. The testimony was amply sufficient to warrant said instruction and to support the verdict of the jury. 106 N. C. 790.
   Humphreys, J.

Appellee, W- Gr. Emberton, brought suit against appellant, H. H. Rainwater, in the circuit court of Crawford County to recover damages in the sum of $10,000 for alienating the affections of his wife, May Emberton. It was alleged, in substance, that appellee and his wife were lawfully married on December 23, 1905, and lived happily as husband and wife until Februaiy 5, 1920; that at said time appellant became acquainted’with appellee’s wife, began to'clandestinely meet her, and through continued attentions Avon her affections and seduced her, thereby depriving him of her comfort, society, and assistance.

A motion was filed by appellant to require appellee to make the complaint m-ore definite and certain by setting -out the inducements offered and means and methods adopted by appellant to win and retain the affections of appellee’s wife. Over the objection and exception of appellant the motion was overruled, whereupon, reserving the exception, appellant filed an answer denying the material allegations of the complaint, and alleging that appellee himself, through neglect and mistreatment, lost the affections of his Avife.'

The cause was submitted to the jury upon the pleadings and testimony adduced, which resulted in a A^er-dict and judgment of $5,000 against appellant, from Avhich is this appeal.

Appellant’s first insistence for reversal is that the ATerdict and judgment are unsupported by any substantial evidence. It is suggested that there is no testimony in the record tending to show that appellant and appellee’s wife met clandestinely, that appellant acquired an improper influence over her, alienated her affections from her husband, and seduced her. The testimony introduced by appellant showed that appellee and his wife lived together very happily for fourteen or fifteen years following their marriage, during which time five children Avere born to them; that in the year 1919 they moved upon appellant’s farm, where they resided as his tenants until November, 1920; that appellant extended courtesies and favors to appellee’s Avife which became noticeable ¡and aroused the suspicion of appellee; that he made frequent visits to the home of appellee during his absence, and on a certain occasion in March, 1920, was discovered by .appellee, who came to tlie house from the field unexpectedly, in the chimney corner, and when asked 'by appellee what he was doing there, said lie was not doing anything; that appellee requested him to go away, whereupon he threatened to put .appellee off of the place and not let him make a crop; that during the conversation appellee informed appellant that about two weeks before that time he had gotten $50 from his wife Which appellant had slipped to her; that appellant charged him with stealing it, and threatened him with the penitentiary; that appellant told Mrs. Maggie Mc-Annally, the mother of Mrs. Emberton, that he loved Mrs. Emberton better than the whole world, and asked her for a picture of her daughter so that he could have it enlarged; that Jim Key saw appellant hugging Mrs. Emberton; that feeling between appellee and appellant became tense, and early in April appellee went to Sallisaw, Oklahoma., where he worked until November, at-which time he moved his family on to a farm about three miles from Sallisaw; that before moving his family he visited them six or seven times, but remained only a short time, because appellant sent him a note during one of his visits to leave at once; that appellee’s wife was not satisfied in Oklahoma; that in January, 1921, appellant made a visit to the neighborhood in which they were living, and later sent two men in company with the father of Mrs. Emberton to move her back to Arkansas; that she and the children returned and took up their abode on appellant’s farm, where they continued to reside, against the wishes and over the protest of appellee; that appellee visited his family in February and March, 1921, but Mrs: Emberton manifested no interest in him, and ordered him to leave; that on one of these visits appellee found appellant in the house where his family resided; that in May; 1921, .appellee returned,"and,-upon meeting appellant, engaged in a shooting - affray with him; that Mrs. TJ. H. Rainwater had not been living with appellant for more than a year when this suit was tried in the lower court.

While the testimony detailed above was contradicted, it was sufficient, if believed by the jury, to sustain the verdict returned by it and the judgment rendered in accordance therewith. Seduction can seldom be proved by direct evidence, and may be proved by circumstances, if sufficient upon which to base a reasonable inference of guilt.

Appellant’s next insistence for reversal is that the court erred in giving instruction No. 5, which is as follows:

“You are further instructed that,- if you find from a preponderance of the testimony that plaintiff -and May Emberton were husband and wife, at the times mentioned in the complaint and lived happily together as such in the manner and at the times as -alleged in plaintiff’s complaint, and you further find that defendant, in the manner alleged in plaintiff’s complaint, seduced and debauched the said May Emberton, the wife of plaintiff, in the manner alleged in plaintiff’s complaint, you will find for the plaintiff.”

The instruction is assailed upon two grounds: first, that it is without support in the evidence, -and second, that it assumes appellee had the love .and affection of his wife.

(1). The resume given above of the testimony introduced Iw appellee was sufficient upon which to base the instruction. It tended to show that appellant in-vaded the home of appellee and seduced his wife, thereby depriving him of - the aid, comfort, and happiness which he had previously enjoyed, and to which he was entitled under the holy bonds of matrimony.

(2). The instruction does not assume-that appellee had the love and affection of his wife at the time appellant made her acnuaintance. On the contrary, the instruction submitted that very issue to the jury. The right' of appellee to recover was predicated upon the finding, among other things, that .appellee and his wife, May Emberton, had theretofore lived happily as- 'husband and wife.

Appellant’s next insistence for reversal is that the instructions given by the court on the motion of appellee, and on its own motion, assumed the fact that appellee had the love and affection of his wife before appellant became acquainted with her. We have read the instructions carefully and find no conflict between those given by the court on its own. motion and at the request of appellee, and instruction No. 3, given by the court .at the request of appellant. Instruction No. 3 is as follows:

“You are instructed that if you believe from the evidence that if the affections of May Emberton, plaintiff’s wife, were alienated either by Emberton himself, or his conduct, or by any other act, except the wrongful acts of the defendant, then your verdict will be for the defendant.”

When all the instructions are read together, it is quite clear that the issue of whether appellee had the affection of his wife when appellant became acquainted with her was submitted to the jury for determination, and not assumed as a fact by the court.

Appellant’s last insistence for reversal is that the court erred in overruling his motion to require appellee to make the complaint more specific. In the first place, w.e think the complaint was specific enough to apprise appellant of the general trend of evidence necessary to defend against the charge, and in the next place it is not pointed out, nor are we able to see, wherein appellant was prejudiced on account of indefiniteness or uncertainty in the allegations of the complaint. No showing is made that appellant was prevented from introducing any evidence which he could or would have produced had the allegations been more specific in any particular.

No error appearing, the judgment is affirmed.


text:
    Fryer v. Mabin.
    Opinion delivered May 7, 1923.
    1. Frauds, statute op — oral contract of sale op land. — An oral contract of sale of land is not binding upon the vendor’s heir.
    2. Frauds, statute op — parol sale op land — payment.—Payment of the purchase money in a parol sale of land is not such part performance as will take the case out of the statute of frauds.
    Appeal from Conway Chancery Court; W. E. Atkinson, Chancellor;
    affirmed.

      Gordon & Combs, for appellant.
    Appellant was entitled to specific performance of the contract to convey, and his having performed, his part of the contract by paying all the purchase price took the case out of the statute of frauds.

      Strait S Strait, for appellee.
    There was no contract proved that would entitle appellant to specific performance, even of it could be established by parol testimony. Appellant had no possession and proved no part performance of the contract that would take the case out of the statute of frauds. 136 Ark. 326.
   Humphreys, J.

Appellee instituted this suit against appellant in the chancery court of Conway County to quiet his title and recover possession of the following, described land in said county, State of Arkansas, to-wit: The southeast quarter (%) of the southwest quarter (14) of section 14, township 6 north, range 15 west. It is alleged that appellee owned said real estate by inheritance from his mother, Louisa Mabin. The bill also contained a prayer for an accounting of rents and profits.

Appellant filed an answer denying appellee’s ownership of said land or his right to an accounting for rents and profits, and a cross bill alleging ownership thereof in himself under a verbal sale and purchase from appellee’s mother. The cross bill contained a prayer for specific performance of the oral contract.

The cause was submitted to the court upon the pleadings and testimony, which resulted in a decree dismissing appellant’s bill for specific performance and, quieting appellee’s title and right of possession of said land, and balancing the rents against improvements and taxes, from which an appeal has been duly prosecuted to this court.

The record reflects that appellee’s mother, Louisa Mabin, and her brother, John Henderson, inherited the' east one-half (y2) of the southwest quarter (%) of said section, township, and range from their father, and, according to the weight of the evidence, that it was, by mutual agreement, partitioned between them, the north forty to John Henderson and the south forty to Louisa Mabin; that, in keeping with the agreement, each went into possession of his portion, and Louisa Mabin established her homestead upon said south forty; that she, her husband and child, who was born upon said land, resided thereon until her death, and that her husband and child, together with his grandmother, resided thereon for a number of years thereafter; that in the year 1907 appellant purchased an undivided one-half interest in said 80-acre tract from Moose, Reid & Strait, a firm of lawyers, who had obtained their undivided interest therein for defending John Henderson upon a criminal charge preferred against him; that, at the time appellant purchased the John Henderson interest, he entered into an oral agreement with Louisa Mabin to purchase her interest in said real estate in settlement of a past due account of $433.55, which her husband owed appellant; that the understanding was that Clarence Ma-bin, her husband, should rent the south forty and Lem Mabin the north forty, and that when the rents equaled the canceled indebtedness and purchase money paid for the Henderson interest, appellant would deed the whole 80-acre tract to Louisa Mabin; that in a day nr so after making the oral agreement Louisa Mabin died, while residing on -the south forty, in her home, without having-conveyed her interest in said real estate to appellant.

Appellant insists that the court erred in denying specific performance of the oral contract. It is argued that the oral contract was lifted out of the statute of frauds by part performance. Even if canceling off the preexisting indebtedness can be regarded as a payment of the purchase money, which we do not decide, that fact would not satisfy the statute of frauds. Starrett v. Dickson, 136 Ark. 326. The undisputed evidence reflects that Louisa Mabin was residing upon the south forty as her home .at the time the oral contract was entered into, and that she died before any actual change in possession had been made under the alleged contract. The oral contract for the sale of the land was not binding upon Louisa Mabin at the time of her death, and cannot be enforced against appellee, her heir.

No error appearing, the decree is affirmed.


author: McCulloch, C. J.

text:
    Delinquent Lands v. Cache River Drainage District No. 1 and Delinquent Lands v. Swan Pond Drainage District No. 1.
    Opinion delivered May 14, 1923.
    Drains — delinquent assessments' — 'Interest on deferred installments. — Crawford & Moses’ Dig., § 3590, authorizing the county court, at the time of its confirmation of a ditch assessment, or within 60 days thereafter, to fix the amount of interest on installments, means that the court shall fix the rate of interest on deferred as well as delinquent installments charged on the lands benefited.
    Appeal from Greene Chancery Court; Archer Wheatley, Chancellor;
    affirmed.

      Fuhr & Futrell, for appellants.
    Interest due on bonds for construction of drainage ditch is part of cost of construction. 55 Ark. 148; 122 Ark. 291. There can be no tax in excess of amount of benefits. , 86 Ark. 1; 1 Page So.Jones on Assessments 721. County court without authority to fix rate of interest ■on deferred assessments, although, it has power to fix interest on delinquent assessments. Sees. 35, 90, C. & M. Digest; also §§3588, 3589; 99 Ark. 349; §3592, C. & M. Digest, shows this to be true. The legislative interest is clearly expressed as to this matter in §§ 3643, 3644, C. & M. Digest. The court liad no authority to fix interest on any assessments but within sixty days after confirmation thereof, and the orders, not having been made in time, are void. The decree should be reversed, with directions to enter a'decree for appellants.

      Jeff Bratton, for appellees.
    The same order that confirmed the assessments fixed the interest, as could be properly done, and interest can be collected on deferred assessments. Secs. 3589, 3590, 3591, C. & M. Digest; also §3606; 99 Ark. 348. Appellants misconstrue opinion in Oliver v. Whittaker, 122 Ark. 291, which supports our position. Appellants have been paying interest since 1909 on bonds of district, and principal and interest since 1918, and are now estopped from making complaint. 25 R. C. L. 179-182'. Sec. 3593, C. & M. Digest, has no application to these cases. Interest fixed in order confirming assessments. 151 Ark. 484; Pierce v. Drainage Dist., 155 Ark. 89. The decree is correct land should be affirmed. ■
   McCulloch, C. J.

These two appeals are from decrees in suits to enforce the payment of delinquent assessments on lands situated in drainage districts. The appeals involve precisely the same questions, and have been consolidated and heard together in this court.

Each of the districts is located in Greene County, and was created by orders of the county court, pursuant to the authority of the general statutes on that subject. Crawford & Moses’ Digest, sec. 3569 et seq. The question involved in each of the cases is whether or not interest can be collected on deferred installments of assessments. Serial bonds bearing interest were issued •by each district, payable in installments from ten to twenty years after date, and the district collected interest only on the assessments up to the time the first of the bonds matured. These suits are to collect "installments of the assessments and annual interest thereon.

The principal contention in the case is that the statute does not authorize the collection of interest on deferred installments of the benefits.

The statute provides that, after the organization of the district, viewers shall be appointed, who shall estimate the benefits to lands in the district, and the damages (Crawford & Moses’ Digest, § 3579), and report the same to the county court, and that there shall be a hearing by the court as to the correctness of the assessments, and the right of appeal to the circuit court. There is a provision in the statute for letting the contract for' constructing the drains and for the issuance of interest-bearing bonds, or, in lieu thereof, interest-bearing warrants in denominations in convenient amounts so that such warrants may be used in paying assessments.

Section 3589, Crawford & Moses’ Digest, provides as follows: “When the working sections of the improvement are let as hereinbefore provided, and the costs of location and of construction, widening, deepening- or enlarging, and all compensation and damages shall be ascertained, the. county court shall meet and determine at what time and in what number of assessments they will require the same to be paid, and order that the assessment or reassessment, as confirmed by them, be placed on the -taxbook against the lot of land assessed or reassessed.”

Section 3590 reads, in part, as follows: “The said assessment shall be entered by the county clerk in a special book, to be known as the ditch assessment book, which shall be provided by him,- at the expense of the county, and said assessment and such interest thereon, not exceeding six per cent, per annum, as mhy be fixed by the court, at the time of its confirmation of the assessment, or within sixty days thereafter, and all costs of .collecting delinquent assessments, or any installments thereof, or the interest due for any year or years, including an attorney fee of ten per cent, on the amount of such assessment, installment, or interest thereof sued for, shall constitute a first and a paramount lien upon the lands assessed, and shall he collected in the same manner that the taxes are collected, and the collector shall bring suit for all delinquent assessments, or installments thereof, interest thereon, or any interest that may be due upon any bonds of any drainage district, and said fee, within sixty days after an assessment or installment thereof or interest on bonds shall become delinquent.”

The portion of the statute just quoted authorized the county court “at the time of its confirmation of the assessment, or within sixty days thereafter, ’ ’ to order the payment of interest on deferred installments. This section, when read in connection with the preceding one, shows that it was the intention of the lawmakers to authorize the county court to determine ‘ at what time and in what number of assessments” the amount of the benefits shall be paid, and what amount of interest, if any, shall be paid, not exceeding six per cent, per annum. Such is the construction placed upon the statute in Benjamin Land & Timber Syndicate v. Bradher, 99 Ark. 348.

Learned .counsel urge that the reference in section 3590 to interest means interest on delinquent installments, but we cannot agree with' that contention. The statute clearly refers to interest on deferred installments, and also interest on delinquent installments. This section undertakes to prescribe what shall constitute a lien from the date of the confirmation of the assessments on lands in the district, and it clearly authorizes the imposition of an interest charge on deferred payments. It was within the power of the Legislature to provide for such exaction of interest on deferred payments. Oliver v. Whittaker, 122 Ark. 291. Provision is made in another section of the statute (Crawford & Moses’ Digest, § 3607) for payment in advance, or in the beginning, of all the assessments, and there is thus afforded an opportunity for the taxpayer to escape the payment of interest, for the statute provides that, when the assessments are thus paid, an indorsement shall be made on the assessment list showing payment in full, and that these assessments shall not be entered on the books of the clerk for future installments. This section' tends to make it plainer that, in the section hereinbefore quoted, authority was intended to be conferred on the county court to iinpose interest on deferred installments. This interpretation of the statute does not conflict with the contention of counsel that interest on the bonds was to be treated as a part of the cost of construction. But, even so treating the interest on the bonds, it was within the power of the lawmakers to authorize the payment of interest on deferred installments of assessments.

It is further contended that interest cannot be collected for the reason that the county court did not make the order at the time of the confirmation of the assessments, or within sixty days thereafter. The order, which appears in the present record, recites the confirmation of the assessments at that tim.6, and the division of the assessments into installments- with interest at six per cent, payable on the deferred installments.

Our conclusion therefore is that the chancery court was correct in deciding that the payment of interest had been properly imposed by the county court and was collectible, so the decree is affirmed.


author: McCulloch;, C. J. Smith, J.,

text:
    Holcombe v. Kennedy.
    Opinion delivered May 14, 1923.
    1. Highways — compensation of commissioners. — Acts 1919, No. 628, creating Howard-Sevier Road Improvement District No. 1, section 4, provides: “Each of the commissioners shall receive a compensation of $5 per day for each day devoted to the work. Held, that section 4 refers solely to duties and' attendance upon hoard meetings, so that the commissioners are not entitled to compensation where they act as members of committees or personally and individually in acting for the board in inspecting work or assisting in carrying on the work; the commissioners being prohibited from entering into contracts for payment to themselves of compensation.
    2. Highways — expenses of commissioners. — Commissioners of a road improvement district are not entitled to reimbursement for expenses incurred in attending board meetings, but are entitled to reimbursement for such expenses as are incurred in the performance of duties authorized by the board.
    3.. Highways — road improvement district — commissions of treasurer. — 'Acts 1919, No. 628, § 13, provides that the treasurer of .the road improvement district “shall be allowed a commission not exceeding one-balf per centum upon all sums lawfully paid out,” and that the commission shall require him to deposit the funds of the district in a solvent bank, “and the treasurer shall be entitled to no commission thereon.” Held that the treasurer is entitled to commissions on all sums actually paid out on warrants, but not to commissions on the funds deposited and not paid out on warrants.
    Appeal from Howard Chancery Court; James. D. Shaver, Chancellor;
    reversed in part.

      J. G. Sain and Coleman, Robmson <3 House, for appellant,
    The court erred in not 'allowing the commissioners •not only the per diem for attending board meetings, and expenses, but also for attendance and 'service on committees and for time served by each separately in looking after the work along the route of the road. Secs. 4, 5 and 6, 'special act 628, Acts 1919; 149 Ark. 476. Holcombe was entitled to allowance of his claim as commissioner and also fees and commissions as treasurer. Secs. 4,13, act 628.

      W. P. Feazel, for appellees.
    The commissioners were not' entitled to allowance of claims for more - than per diem and expenses for attendance of board meetings. Sec. 4, special act 628, Acts 1919; 127 Ark. 1; 146 Ark. 601; Perry On Trusts, § 911; 29 Ark. 592. Holcombe' was prohibited from •taking fees or commissions as treasurer of the district after the selection of the depository. Sec. 13, special act 628.

      J. G. Sain and Coleman, Robinson & House, in reply.
    With reference .to the Jones-Corbell account, the service and charge does not fall within the rule .or statute in 146 Ark. 601, and should be paid for within rule of 149 Ark. 476.
   McCulloch;, C. J.

Appellants are the commissioners of a road improvement district created by special statute (act No. 628, session of 1919) designated as HowardSevier No ad Improvement District No. 1, and appellees, who were the owners of real property in said district, instituted this action against them in the chancery court of Howard County attacking the validity o.f the assessments in said district, and also seeking to compel the commissioners to repay into the treasury of the districts sums of money illegally drawn out as compensation for services and payment of their own expenses. Upon hearing the cause, the court dismissed that part of the complaint attacking the assessments, but sustained the contention of appellees with respect to illegal-withdrawal of the funds of the district by the commissioners, and referred the matter to a master for a statement of the account of each of the commissioners; Testimony was taken before the master, and a report was made, which the court confirmed, and each of the commissioners has prosecuted an appeal to this court.

Each of the commissioners furnished an itemized account of payments made to them, -respectively, for per diem of $5 allowed by the statute, and for expenses incurred. The aggregate amount -of each of the itemized accounts was as follows:

Total account of Commissioner J. W. Holcombe $2,074.55'

Total account of Commissioner J. H. Jones............ 2,004.33

Total account of Commissioner Otho Corbell......... 3,267.00.

Total account of Commissioner E. A. Fawcett...... 1,544.84

The account of another one of the commissioners,J. L. Stinson, was found to be correct by the master, with the exception of a very small error in addition, and no question is raised here about the decree with respect to that account.

These accounts embrace items of $5 per day for a+ tending meetings of the commission and meetings of committees, and also for time served by the commissioners separately in looking after the work along the route of the road.

The testimony shows that the board of commissioners divided itself into committees, and that there were many committee meetings, and several of the commissioners devoted considerable time to inspecting the work and looking after the purchase of right-of-way. The accounts of the several commissioners contained items all the way from 130 to over 300 days of service during a period of about two years during which the operation of the construction of the road was being conducted. There were expenses for horse hire and automobiles, hotel bills, meals, and hire of drivers, and there is an item of expense of railroad fare to Little Rock. Other items are unnecessary to mention.

Commissioner Holcombe was treasurer of the board, and his account also' contained commissions on payments of money.

The master made á finding allowing each of the commissioners $5 per day for one hundred board meetings,' and thirty days for looking after the right-of-way. He also allowed expenses of trips to Little Rock, Texarkana and DeQueen, and also per diem covering the period of these trips. The master allowed each of the commissioners a total sum of $805, except Commissioner Holcombe, who was allowed $948, which included commissions as treasurer, $143.28. The item of treasurer’s commission in the account of Commissioner Holcombe will be treated separately.

The contention of each of the appellants is that, under the statute creating the district and fixing the fees of the district, they were entitled to a per diem of $5 for each day they were attending board meetings or committee meetings, or while doing work directed by the whole commmission, and that they were entitled to all expenses incurred while doing so. The court allowed per diem compensation on this basis, in accordance with the contention of appellants, but the full amounts claimed by appellants were not allowed, nor was there an allowance of the full amount of the expenses claimed.

We might content ourselves by saying that, so far as concerns the amount of the allowance, we cannot say that the findings of the master and chancellor are against the preponderance of the evidence, but we deem it proper to go further and say that the allowances by the master and by the court were more liberal than the commissioners were entitled to. The statute contains the following provision with reference to the compensation of the commissioners, in section 4: “Each of the commissioners shall receive a compensation of $5 per day for each day devoted to the work;” Now, the majority of the judges are of the opinion that this refers solely to duties and attendance upon board meetings, for the commissioners have no individual authority under the statute, and only act in that capacity while in attendance upon the board. In the discharge of duties as members of committees, or personally and individually in acting for the board in inspecting work or assisting in carrying on the work, they exercise only such authority as is delegated to them by the board as a whole, and, when acting in those capacities, they are o'nlv employed as servants of the board of commissioners, therefore they are not entitled to compensation under the statute. If they are entitled to any compensation at all for services performed otherwise than at board meetings,- it must result frpm a valid contract made between the commissioners individually and the board as a whole, and, under the principles announced by this court in several eases, the commissioners are prohibited from entering into contracts for their own benefit for the payment to themselves of compensation. They can only pay such compensation as is expressly ah lowed to them by law. Tallman v. Lewis, 124 Ark. 6; Hill v. Cruce, 146 Ark. 61; Gould v. Toland, 149 Ark. 476. Mr. Justice Smith does not agree to this conclusion.

We decided in Gould v. Toland, supra, that the commissioners were not entitled to reimbursement for expenses incurred in attending board meetings, but are entitled to reimbursement for such expenses as are incurred in the performance of duties authorized by the board. The distinction is thus made between the payment of compensation to the members individually and the payment of expenses, the former being prohibited by public policy, and the latter not falling within the range of that ban.

We find that the only error of the court in the allowance to the commissioners with respect to compensation and expenses was more favorable than the commissioners were entitled to, but no appeal has been presented by the appellees from the decree.

This brings us to a discussion of the court’s decree with respect to the allowance made to Commissioner Holcombe for fees as treasurer.

The statute provides (§ 4) that the commissioners shall organize by the election of a chairman, and also by the election of a secretary and treasurer, and that the treasurer shall be required to give bond in such sums as the commissioners find necessary. Section 13 of the statute reads as follows:

“The treasurer shall pay out no'money, save upon the order of the board, and upon a warrant signed by the chairman and countersigned by the secretary thereof. He shall be allowed a commission not exceeding one-half per centum upon all sums lawfully paid out, to be fixed by the board. Every warrant shall state upon its face to' whom, the amount, and the purpose for which it is issued. All warrants shall be dated, and shall be numbered consecutively in a record to be kept -by the board, of the number and the amount of each; .and no warrant shall be paid unless there is in the ■ treasury funds enough to pay all outstanding warrants bearing a lower number. No warrant shall be increased by reason of any depreciation in the market value thereof, nor shall any contract or warrant be made payable, or paid, in anything but currency. The commission shall require the treasurer to deposit the funds of the district in a solvent bank, which will pay interest at the rate of not less than three per-cent on daily balances, and shall give a bond with sufficient securities, conditioned that said bank shall properly pay all checks on said deposits when due; but no such order shall be effective unless in writing and entered on the minutes of the board before said funds are deposited in the bank. When such bank depository has been created, all funds shall be paid to it, and the treasurer shall be entitled to no commission thereon.”

The court decided that the treasurer -was not entitled to commissions on money which was paid out after having been deposited in accordance with the terms of the statute, and that the treasurer was only entitled to commissions on amounts actually paid out by him as treasurer without the funds having gone through the depository.

The majority of this court has reached the conclusion that the trial court erred in this interpretation of the statute. The provision therein is that the treasurer shall be allowed a commission “upon all sums lawfully paid out. ’ ’ This can only be interpreted to mean that the commission should be allowed on moneys finally paid out, and not until so paid out. The concluding provision in section 13 is only intended to prevent the allowance of a commission merely upon the deposit of the funds, but this does not affect the right of the treasurer, under the other part of the statute, to receive a commission: on the funds actually paid out on warrants. The statute contemplates that the treasurer should perform substantial service in receiving the moneys and paying the same over to the depository, and the warrants were drawn on him and not on the depository. ' He had to pay the warrants out of money actually on deposit, and keep an account thereof, and the statute intended compensation to be provided for this service, even though the funds were placed on deposit. The latter part of section 13 was merely intended as cautionary, so as to negative any interpretation of the statute whereby a commission would be allowed merely upon -a payment over to the depository. Mr. Justice Hart does not agree to this.

The decree of the chancery court is therefore affirmed as to all the appellants except Holcombe, and the decree is also affirmed as to his account with the exception of the item relating to commissions as treasurer, but as to that .item the decree is reversed and the cause remanded, with directions to allow Commissioner Holcombe credit for commissions as claimed in his account. It is so ordered.

Smith, J.,

(dissenting). The act creating this district named two commissioners for Howard County and three from Sevier, and intrusted to them the construction of the proposed improvement.

The commissioners organized, and, to facilitate their work, appointed certain committees consisting* of three .members each; and these commissioners are now asking an allowance of per. diem as commissioners for services on the committees of the board.

I see no objection to the board delegating certain administrative duties to committees composed of board members, and compensating* the members, because this involves no element of contract. The law fixes their compensation, and they do not ask any sum in excess of that fixed by the law.

The oases of Tallman v. Lewis, 124 Ark. 6, and Hill v. Cruce, 146 Ark. 61, in my opinion, have no application here. There the commissioners were serving not as commissioners but as' employees. In both' those cases the commissioner had, as a member of the board of commissioners, contracted with himself as. an employee. There was necessarily involved in those cases negotiations fixing the terms of the employment and the compensation therefor, and the services rendered and charged for were not those of a commissioner, but the services of an agent or employee — services of a character which one did not have to be a commissioner to perform.

But there was no contract of any character. There was a mere parceling out of the duties of the commissioners among the members thereof as committees of the board, and the services they rendered and charged for were those of commissioners serving as members, of the committees of the board, and their compensation was not that fixed by themselves but that fixed by the law.

Of course, if this was a mere method of evading the law, a different question would be presented, for the commissioners could not, by mere subterfuge, give themselves employment by the board. But this Is not the question we have here. The commissioners here seek only to recover the per diem fixed by la.w for services as members of committees of the board of commissioners, and I see no reason why the board should be denied the right to refer to committees of the board such duties as could be appropriately discharged .biy committees, rather than by the full board, and I therefore respectfully dissent from that part of the opinion.


author: Wood, J.

text:
    Tilghman v. Russell.
    Opinion delivered May 7, 1923.
    'Certiorari — not substitute for appeal. — As certiorari cannot be - used as a substitute for appeal except in instances -where the - right of appeal has been unavoidably lost through, no- fault of the petitioner, the writ is not .available where the, right of appeal was lost through the petitioner’s neglect to pray an appeal from a judgment of the probate court during term time within 12 months after such judgment .was rendered, as required by Crawford & Moses’ Dig., §§ 2258 and 10512.
    Appeal from White Circuit Court; J. M. Jackson, Judge;
    affirmed.

      W. C. Adamson, for appellant.
    Appellant took all necessary steps to perfect his appeal from the order of the probate court within the year allowed, and the fact that the court was not thereafter in session before the year expired caused the loss of the right to appeal without fault on his part, and entitled him to relief by certiorari. Sec. 35, art. 7, Const.; § 2258, C. & M. Digest; Berkley v. Cunningham, 121 Ark. 459; Burgett v. Apperson, 52 Ark. 213; Hall v. Bledsoe, 126 Ark. 125; 5 R. C. L. 260. The testimony was not legally sufficient to sustain the findings of the court. No testimony to show letter was intended to operate as a will. 1 Alexander on Wills, 51; Arendt v. Arendt, 80 Ark. 204. Probate court'was without jurisdiction of the subject-matter, and its order was void. Noble v. Union River Logging Co., 147 IT. S. 165. And certiorari was the proper remedy. Burgett v. Apperson, 52 Ark. 213; Black v. Brinkley, 54 Ark. 375; Lyons v. Green, 68 Ark. 205; Hall v. Bledsoe, 126 Ark. 125. The demurrer should have been overruled. Sallee v. Bunk of Corning, 122 Ark. 508; Dickerson v. Hamby, 96 Ark. 166.

      Culbert L. Pierce and Bmmdidge <& Neelly, for appellee.
    The demurrer was properly sustained. Appellant lost his right of appeal through his own fault, and is not entitled to the certiorari. In re Bar stow, 54 Ark. 551; Sturgeon v. Harold, 18 How. IT. S. 40; Ex parte Phillips, 80 Ark. 200; Burgett v. Apperson; 52 Ark. 220; Berkley v. Cunningham, 121 Ark. 459. • Andrew Hays Tilghman was a'soldier and unmarried, and had the capacity and- right to make a will. ' Sec. 10493, C. & M. Digest, also § 10498; 28 R. C. L.' 159. The letter constituted the will. Note in re Limond. Ann. Cas. 1916-A,. 479; 1 Schouler on Wills, 453, 458; 67 A. S. R. 577; In re Hickey’s Estate, 184 N. Y. Supp. 399. *

      W. C. Adamson, in reply.
    Affidavit for appeal was filed within the year. Peay v. Pulaski County, 103 Ark. 601; Mass. Bond & Inv. Co. y. Home L. & A. Co., 119 Ark. 110.
   Wood, J.

This is an appeal from, a judgment sustaining the demurrer to a petition for writ of- certiorari. The petition alleged, in substance, that appellant is the father and next of kin of one Andrew Hays Tilghman, hereafter called Tilghman; that his son was a soldier in the United States army and was 'killed on the battlefields of France on the 18th of July, 1918; that he died intestate; that he had not married, and that his mother died before his death; that at different times and some months prior to his death he applied for war risk insurance and obtained two policies in the sum of $5,000 each, made payable to his estate; that after the death of Tilghman the appellee, who was no relation whatever to the deceased, made application to the proper authorities at Washington representing that he was the beneficiary named in the first policy of insurance and demanding that same be paid to him; that while said application was pending, more than two years after the death of the' deceased, to-wit, on Dec. 10, 1920, the appellee, without notice to the appellant, applied for letters of administration upon the estate of Tilghman, and represented in his application that appellant, who was the father of Tilghman, was dead, and offered for probate a letter 'alleged to have been written to appellee by Tilghman as his last will and testament; that on December 13th appellee filed certain affidavits for the purpose of proving the letter as the last will of Tilghman; that on the same day the probate court of White County admitted the letter to probate, and on January 6, 1921, issued letters of administration to appellee; that the appellee gave no notice to the appellant of his intention to probate the letter of Tilghman as a wiil, and no notice that the letter had been filed for probate; that the letter was probated in common form; that appellant discovered that appellee carefully concealed from the appellant, after discovering the latter’s address, all information in regard to the probation of the letter as Tilghman’s will; that on the 16th of August, 1921, appellee filed in the chancery court a petition to establish a lost letter as a second last will of Tilghman, in order that he might procure the proceeds of an insurance policy issued on the life of Tilghman, in which the appellee was the beneficiary; that, in order to have the last letter established as a will by the chancery court, it was necessary to make appellant a defendant in the action and to have an attorney ad litem appointed for the appellant, who was a resident of New Jersey; that the attorney ad litem was duly appointed, and advised the appellant of the pendency of the action about the 28th of August, 1921; that appellant tried to employ the attorney ad litem to represent him in the chancery action, and said attorney at first agreed to represent him, but thereafter declined to do so; that appellant then employed the firm of Pace & Davis, which firm, after the expiration of a. considerable time, advised the appellant that they could not represent him; that therefore appellant requested a friend of his in Little Rock to employ counsel for him; that this friend promptly prepared the necessary affidavits and bond for an appeal from the order of the probate court probating the letter as a will and immediately filed the same in the office of the clerk of the probate court o"f White County; that, after procuring the order granting the appeal, the transcript was lodged in the office of the clerk'of the circuit court of White County on the 13th day of December, 1921; that the appellee filed a motion to dismiss said appeal, which was granted by the circuit court on the ground that the order allowing the appeal was made by the probate judge in vacation; that the probate court was not in session when the order granting the appeal was made and had not been in sessioii since Nov. 24, 1921, although, the appellant understood that such court was in session, and did not know to the contrary until the motion was. filed in the circuit court to dismiss the appeal; that appellant therefore lost his right of appeal through no fault of his own. The appellant then set up that the order of the probate court admitting the letter to probate as a will was erroneous for various reasons, which he set forth in detail. The prayer of the petition was that a writ of certiorari be issued directed to the probate court of White County to bring up and quash the order of said court admitting the letter to probate.

Attached to the complaint and made exhibits thereto were the original letter and the petition for probate of same in the probate court, and the affidavits to identify and prove the same as the letter of Tilghman, and the order of the court admitting the letter to probate; also the order of the circuit court dismissing the appeal of the appellant, which recites that the appeal was granted, 'by the probate judge in vacation, and that on this account the circuit court was without jurisdiction.

The appellee demurred to the petition on the following grounds: 1. That it does not allege facts sufficient to constitute a cause, of action. 2. That the defendant has had, and now has, the right to appeal, unless the same has been lost through his own neglect or error.

The court sustained the demurrer and dismissed the appellant’s petition. The appellant duly excepted, stood on his petition, and appeals from the judgment of the court dismissing the same.

The judgment of the circuit court is correct. The facts set up in the appellant’s petition do not show that appellant lost his right of appeal from the judgment of the probate court admitting the alleged letter as the last will and testament, through .any unavoidable casualty. The facts set up in the petition speak for themselves, and it is unnecessary to argue the same. It suffices to say they are wholly insufficient to show that appellant’s appeal was unavoidably lost. The appellant did not use the diligence which the law requires to perfect his appeal, and the trial court was right in so holding. Certiorari cannot be used as a substitute for appeal except in instances where the right of appeal has been unavoidably lost through no fault of the petitioner. Burgett v. Apperson, 52 Ark. 220; In re Phillips, 80 Ark. 200; Pruitt v. International Order of Twelve, etc., ante p. 437. See also In re Barstow, 54. Ark. 551.

The judgment is affirmed.


text:
    New York Hotel Company v. Palmer.
    Ouinion delivered May 14, 1923.
    1. Innkeeper — liability of bath-house keeper for loss of ptoperty. — Crawford & Moses’ Dig-., § 5564, providing, in substance, that a hotel keeper who constantly maintains a metal -safe or suitable vault f-or the custody of money, jewelry and other valuable articles for the use of guests, and who keeps suitable locks or bolts on the doors of sleeping rooms, shall not be liable for such valuables unless delivered to the hotel keeper for safekeeping in the 'safe or vault, nor in -any event shall be required to accept for safekeeping property in excess of $300 in value, held not applicable to a -bathroom operated under the same r-oof but apart from the hotel, where the keeper furnished lockers to bathers for their valuables.
    2. Negligence — sufficiency of evidence. — In an action by a patron against the keeper of a bath-house for negligence in failing to exercise proper care to prevent loss of -his valuables after notice of loss of his key, where it was purely a matter of speculation whether the defendant was notified of the loss of the key in time to have prevented the -theft of his valuables' from the locker, a verdict for the -plaintiff will ibe -set aside.
    3. Negligence — -burden of proof. — In an action against a hotel company by a guest for loss of'money from a locker in a bath house run in connection with the hotel, the burden of proving negligence on defendant’s part rested on plaintiff.
    Appeal from G-arland Circuit Court; Scott Wood, Judge;

    reversed.

      Martin, Wootton & Martin, for appellant.
    . The verdict is not supported by the testimony. 70 Ark. 385; 70 Ark.' 608; 96 S. W. 353; 82 Ark. 372; 118 Ark. 349; 123 Ark. 447. No negligence of appellant was shown. It was only a gratuitous bailee. 11 Ark. 189; 52 Ark. 364; 144 Ark. 146. If bailment was for mutual benefit, appellant would have been bound only to the use of ordinary care. 136 Ark. 503; 61 Ark. 302; Bertig v. Norman, 101 Ark. 75. The rule of 60 Ark. 62 is not applicable to the facts of the case. Hotel keeper’s liability limited by statute, and the court erred in refusing appellant’s requested instructions Nos. 3, 4 and 12. Secs. 5564, 5565 and 5567, Crawford & Moses’ Digest. This statute was passed to change the rule of the common law which held an innkeeper liable as an insurer of his guest’s property. 103 Ark. 593, 42 L. E. A. (N. S.) 122. Innkeeper defined. Hale on Bailments & Carriers, 254; 2 Parsons on Contracts, 157; Bishop’s Noncontract Law, sec. 1165; 16 Am. & Eng. Enc. Law, 508; 33 N. H. 553; 4 Hump. (Tenn.) 179; 14 Johns (N. Y.) 175; 91 Me. 274, 40 L. E. A. 491; 6 L. E. A. (N. S.) 828; 136 Ark. 503. .

      G. Floyd Huff, for appellant.
    The verdict is amply supported by the evidence, and cases cited by appellant not applicable herein. Secs. 5559-5573, C. & M. Digest, have no application to keepers of bath-houses, and no error was committed in refusing instructions.
   McCulloch, C. J.

Appellant is a corporation, which owns and operates the Eastman Hotel in the city of Hot Springs, and it also operates, in connection with the hotel and under the same roof, a public bath-house.for the use of the patrons of the hotel. Appellee was a guest, at the Eastman Hotel in February, 1921, and patronized the bath-house, .and claims that he deposited in a lock-box in the bath-house the sum of $427 in currency, together with other valuable articles, and that the money was taken from the lock-box by some one other than himself while he was taking his bath. He instituted this action against appellant to recover for the loss of the money, and charges negligence on the part of those in the management of the bath-house.

There are conflicts in the testimony upon some of the material points, but in many respects there - is no conflict.

There is a contention here that the evidence does not support the verdict, and in testing the sufficiency of the evidence we must resolve all conflicts in favor of appellee’s side, and view the testimony in the light most favorable to appellee.

The Eastman Hotel is a large establishment, and, as before stated, there is a bath-room maintained under the same roof for the benefit of the guests. It is a public bath-room, and additional charges are made by the management for the bathing privilege, but the management does not cater to outside business other than guests of the hotel. The bath-house is under the general con■trol of the manager of the hotel, but it is under the immediate control and management of a lady manager, Mrs. James. Guests at the hotel apply at the desk of Mrs. James in the bath-house for bath tickets, either single, or for what is known as a “season,” which is twenty-one baths. After a guest has purchased his bath-ticket, the ticket is placed in a rack, along with others, and when a guest comes for his first bath he gives his ticket to the manager, and she takes the ticket ■ and punches the ticket, indicating one of the baths being taken, and then gives the guest a check, to be handed to the attendant when he enters the bath-room. The check is taken up-by the attendant, and used in his set'tlémerit with the management for.his services, as it indicates the number of patrons he has attended at bath. "This is" the procedure every time a guest goes into bath.

' The testimony shows that in the busy season, as the condition existed when appellee was a guest, usually five or six-hundred people bathe there every day. •

The management maintained in the bath-house a lot of lock-boxes for patrons to use in taking care of valuables while bathing. These boxes are constructed' of steel, and each lias two keys — one, the original, which . is left in the lock, except while in the possession of the patron, and the other, the duplicate, is kept in the safe in the hotel office. These duplicates are only taken out of the safe in case of loss of an original. Each box has a separate key, and no box can be unlocked except 'by the particular ke}'- furnished fo£ it. The method pursued was for the guest, when he was ready to go into the bath-room, to go to this line of boxes and take possession of any one where the door was open and the key in the lock. He deposited his valuables, locked the door, and took the key. There was in vogue the following method for a bather to keep the key on his person: A heavy rubber band was used, and it was looped through-, the eye or hole in the key, and, after the loop had been drawn tightly, the band was placed over the bather’s wrist. When property put on the wrist, the key could not become detached without breaking the band. These bands were carefully examined daily by the lady manager, Mrs. James, for the purpose of seeing that they were intact and would not break so as to lose a key.

On the occasion in question appellee had arranged witli an acquaintance, who was also a guest in the hotel, that they would go to bath together, and that their wives should also go to bath in company with each other. Appellee undressed in his room, and, not being informed about .the use of the lock-boxes, he secreted his money and other valuables in some place about his room, but when his friend, Mr. Fish, came by and rapped on his door, and as they were about to depart for the bath-' room, Fish reminded him that there were lock-boxes provided, and lie got his valuables, and the two went to the bath-house together. The two ladies had, before that time, proceeded to the ladies’ bath-rooms.

Appellee had, in addition to his money ($427) two watches, his own and his wife’s, both being very valuable. The testimony showed that the two watches were. worth about $1,000. They went to the manager’s desk in the bath-room, as usual, and obtained bath-tickets, and then took possession of lock-boxes for the purpose of depositing their valuables. Appellee selected box number 3, finding the key in the door, and Pish took the adjoining box. Appellee walked from there and entered the bathing department at the door of the cooling room, where he was meé by a bath attendant who was to serve him during his course of baths, and was led through this cooling room to the bath-room and conducted to a bathtub. While he was taking off his bathrobe and undergarments, he discovered that the key was gone. He testified that the key was on the band when lie put the band on his wrist, and that when the loss of the key was discovered the band was intact on his wrist. He made mention'of his loss to his attendant, a negro named Gill, and told him to report it at the office, and proceeded to get into the bathtub. Gill went off, and came back in a little while and informed appellee that he had notified the manager at the office of the loss of the key.

Appellee was asked how long it was from the time he put the rubber band with the key attached on his wrist at the place where the lock-boxes were situated until he discovered the loss of the key at the bathtub, and he said it was just long enough time for him to walk to the door of. the cooling room and through that room to the bath-room and thence to the tub, which he thought was about a minute. Appellee stated, in his examination in chief, that he told Gill the number of his lock-box key at the time he told him about its loss, but Gill denied this, and stated that appellee did not remember the number of his key, and inquired of Pish, who was occupying a tub a short distance away. Appellee was subsequently recalled to the stand and asked again the direct question whether he had stated to Gill what the number of his key was, and his reply was as follows: “I don’t recall-what I.said to him, except that I had lost my key, and if he asked me what the number of my box was, I certainly told 1dm the number of the box.”

Appellee proceeded with his bath and the cooling process which followed, and, after having finished the process, in about an hour, he went to the office and inquired of Mrs. James whether or not his-key had been found. He elicited the information that the key had not been found, and, at his request, Mrs. James went over to the hotel office and secured the duplicate key and they opened the box together, and there was no money in it. Mrs. James testified that she was present and unlocked the box and saw him take out the contents, and that the watches were there, and perhaps some other valuables, but no money. Neither Mrs. James nor any one else connected with the bath-house saw appellee put the money in the box, but he testified that he put the money in there, and Mr. Pish also testified that he saw appellee put the money in the box. There was testimony to the effect that there were two keys lost on this occasion, but the other key was found by the bather who lost it.

Mrs. James testified that another attendant, named Colonel, reported that a gentleman had lost his key to lock-box number 7. She testified that Gill did not give her the number of the lost key which he reported, but merely reported that “the gentleman had lost his key,” and she supposed that only one key had been lost, the same reported by Gill and Colonel. She testified that, after receiving notice of the loss of what she supposed to be one key, the one to lock-box number 7, she kept a lookout and saw from her desk a gentleman come from the bath-room and go to lock-box number 7 and open it, and she called out to him and stated that she understood that he had lost his key, and he replied that he had lost it but afterwards found it in his pants pocket. She stated that she thought that was the only key that had been .lost, and supposed that the incident was thereby closed, until appellee came from the bath-room and reported that his key had also been lost. She stated that appellee- did not know what liis number was, but it was determined by the fact that Fish’s box was next to it. The key which appellee claims to have lost has never been ■found, so far as is disclosed by the testimony in the case.

It is undisputed that this method of affording protection to patrons of the bath-house in preserving their valuables and in providing a method for them to keep the keys on their persons has been in vogue a great many years at all the bath-houses in Hot Springs, and has been approved b}r the superintendent of the Government Reservation. It is undisputed that this is an adequate system, and that it affords ample protection to the patrons of bath-houses. There is no charge made that the system was inadequate, and it is very clear that a guest could not suffer loss of valuables if he or she execised ordinary care in locking the box and keeping the key. Mr. Chester, the manager of the hotel, testified that he had been using that system at the Arlington Hotel for thirty-nine years and had never before had an instance •of a lock-box key being lost off the band to which it was attached.

The sole ground of appellee’s charge of negligence, ' on which he bases his right to recover, is that the manager of the bath-house failed to exercise care, after receiving notice of the loss of the key, to prevent the finder of the key from taking thé valuables out of the box. The theory of appellee is that the key was lost when he put the band on his wrist, and that some time thereafter the ke}'' w-as found by another person, and the box was opened and the money taken therefrom. This is the only theory upon which there could be a recovery, for,' as before stated, there was no negligence in devising ■ the lock-boxes and the system of preserving the valuables. If the key was lost by appellee, as he claims, the loss necessarily resulted from his own negligence, for, i.f h.e had put the band on his wrist in the ordinary way, as intended, the key could not have been lost without the'rubber band breaking and dropping’ from his wrist. In other words, if the key was not lost and the loss'feported to the management, there could be no liability on the part of appellant, but if the key was lost, as claimed by appellee, even through his own negligence, if its loss was reported to the management, and the valuables were thereafter taken from the lock-box by the finder of the key, by reason of negligence of the management in failing to exercise proper care to prevent it, there would be liability.

It is contended, in the first place, as grounds for reversal, that the liability of appellant is restricted by the statute which was enacted by the General Assembly of 1913 for the purpose of regulating the liability" of hotel-keepers. Crawford & Moses’ Digest, § 5564 et seq. This statute provides, in substance, that a hotel-keeper who constantly maintains a metal safe or suitable vault for the custody of money, jewelry and other valuable articles for the use of guests, and who keeps suitable locks or bolts on the doors of sleeping-rooms, shall not be liable for such valuables unless delivered to the hotel-keeper for safekeeping in the safe or vault, and that in no event shall a hotel-keeper be required to accept for safekeeping property in excess of $300 in value. There are other requirements restricting this liability which it is unnecessary to mention. The contention of counsel for appellant is that the bath-house was maintained merely as an incident to the hotel, and that appellant’s liability in the operation of the bath-house is controlled by the statute referred to above. Authoi’ities are cited in the brief which tend to establish the rule that an innkeeper may be held liable as such for the loss of valuables of guests while bathing or while in the bath-room, but we do not think that these cases are applicable to the present one. It is true that the proof shows that appellant operated this bath-house for the benefit of its guests, and it was under the same roof as the hotel, but it was operated as a bath-house and not as a hotel, and other and distinct methods were provided for the keeping of valuables.

Liability is not sought to be established in this case upon any statutory or common-law duty resting upon appellant, either as a hotel-keeper or as a bath-house keeper, but, as before stated, the liability, if it exists at all, must rest upon appellant, not as a bailee or depository who has failed to account for the articles, but upon its alleged negligence in failing to exercise proper care to prevent loss after notice had been given of the loss of the key. It is not contended, and cannot be contended, that appellant had not discharged its full duty to patrons of the bath-house in furnishing adequate facilities for the preservation of valuable articles while a patron is in the bath, and, unless there is sufficient evidence to show that there was negligence on the part of the -manager, after being notified of the loss of the key, and that the loss of the valuables resulted from that negligence, there is no liability. .

So we conclude that the contention of counsel for appellant that error was committed in refusing to give requested instructions concerning the effect of the statute regulating the liability of innkeepers, is not tenable, and that there was no error committed by the- court in this respect.

It is not contended that there are any other errors in the charge to the jury, and the only other ground urged for reversal is that the evidence is not sufficient to support the verdict. We have reached the conclusion, after careful consideration of the testimony in the case, that counsel for appellant is correct in the insistence that the verdict is not supported by the evidence. We accept the testimony in its strongest light most favorable to appellee, and, testing it in that light, we think .it does not show that appellant was negligent, or, at least, that the loss of the valuables resulted from such negligence.

It is somewhat difficult to understand just how the key could have been lost from the.rubber band which was placed around appellee’s wrist as soon as he had locked the box. He states in his testimony a theory furnishing an explanation, which doubtless the jury accepted in reaching the conclusion that appellee in fact lost the key from the rubber band. Appellee does not undertake to say that the key was lost in that way, but he explained it as a probability, and as the only means by which the key could have been lost. In the presence of the jury he took a rubber band and illustrated how the key was attached by showing that the band was thrust through the hole in the handle of the key and then looped, and the loop drawn tight. He thus explained that it was possible for the loop, instead of being drawn tight, to have been loose, and that in thrusting his hand through the band he thrust it through the loop instead of through the other end of the band, and that when the band tightened around his wrist the loop end necessarily came loose, and the key was released and dropped to the floor. He says that in that event the key must have dropped to the floor just as soon as he put the band on his wrist, and while he was standing at the place where he had locked the box. This explanation is not altogether lacking in plausibility, and we think that it made a question for the jury to determine whether or not in fact the appellee lost the key from the rubber band. If it was not lost in that way, it was not lost a.t all, but must have been intentionally detached from the band. The jury evidently found, and the evidence justifies the finding, that the key was lost in the manner described. The loss of the key this way necessarily resulted, as we have already shown, from negligence of appellee in putting the rubber band around his wrist. It was a simple device, and he could see that, in order to retain the key on the band, it was necessary that the loop should be drawn tight and his hand thrust through the other end of the band, and not through the loosened loop. He must have known, in other words, that if he failed to tighten the loop the key would drop off, and he was negligent in not attaching it. correctly, so as to retain the key. If he had done so, all the witnesses agree that there was no possible way. for the key to have gotten.off the band without the band being broken, and it is also undisputed that, when the loss of the key was discovered, the band was intact around appellee’s wrist. Now, if, as the jury necessarily found, the key Was lost'through the negligence of appellee in placing the band around his wrist while he stood at the lock-box, it devolved upon him, in order to establish liability of appellant,-to show that the money was taken from the box after notice was given at the manager’s office, and that this resulted through the negligence of the manager in failing to take proper steps to prevent appellee’s box being robbed.after this notice had been given. Appellee claims, in his testimony, that only about a minute elapsed before he discovered the loss of the key, and that lie at once notified the attendant, Gill, and sent .him off to the office to warn the manager. (The attendant, Gill, was introduced as a witness, and he testified that, as soon as appellee told him about the loss of the key, he walked back through the cooling room, telling the other attendants that “the gentleman has lost his key,” and went to the office and notified the manager. Gill testified that it was several minutes from the time that appellee left the lock-boxes to the time that he (witness) reached the office and notified the manager of the loss of the key. Appellee, in his final testimony, does not claim to remember that he told the attendant, Gill, the .number of the box, and Gill swears positively that appellee did not tell him the number of the box, but merely told him that he had lost the key.

Now, if the key was lost at all, the loss occurred, as appellee, says, at the location of the boxes, and it is not improbable, if such is the case, that some one picked up the key immediately after it dropped to the floor. The undisputed testimony is that five or six hundred people were bathing there daily and that the patrons of the bath-house were constantly coming and going. It is not improbable that the money was taken from the box in a very short space of time, possibly not exceeding a minute or two, after the key was dropped to the floor. It devolved upon appellee to show that the money was lost after notice was received at the office by Mrs. James, and it was purely a matter of speculation as to when the money was taken from the box. The jury had no right to speculate upon this important feature of the case, as the verdict must at least rest upon reasonable inferences of fact and not upon mere conjecture.

Appellant, having furnished its patrons adequate provision for the care of valuables, before it can be held liable it ought to be shown by something more than mere conjecture that the valuables were lost after the duty was put upon it, by notice of the loss of the key, to exercise special care to prevent the finder of the key from wrongfully taking the valuables out. of the box. We are of the opinion that, in this respect, the evidence lacks definiteness and certainty sufficient to warrant a finding that the 1oí=ss resulted from negligence of the management of the bath-house.

It is to some extent a matter of speculation as to the precise length of time which elapsed between the loss of the key- and the report of it to the office. Appellee states that it was about a minute, and that it was necessarily a matter of opinion largely, for he did not have in mind the loss of the key as he passed along to the bathing departments, that is, into the cooling room, and it might have taken more time than he says. But, at any rate, it is reasonably certain that at least two minutes elapsed before the time the key was lost and the time it was reported to the office, and there is nothing to show that the loss occurred after that time and not before. In no phase of this case does the burden of proof rest upon appellant, but, on the other hand, it rests upon -appellee to make out his case of negligence and loss resulting from such negligence. If there is any failure of proof, the effect of such failure must fall upon the party who must produce it.

The judgment is therefore reversed, 'and, since the case has been fully developed, judgment absolute will be entered here in favor of appellant.