text:
    Bankers’ Fire Insurance Company v. Williams.
    Opinion delivered April 23, 1928.
    1. Insurance — action against foreign fire insurance company— venue. — Under Crawford & Moses’ Dig. § 6150, an action on a fire insurance policy may be brought against a foreign insurance company in a county where the loss occurs.
    2. Continuance — want of diligence. — It was not an abuse of discretion to overrule a motion for continuance on the ground that defendant insurance company’s attorney did not have the policy sued on or a copy thereof, where the case was not called for trial until two months after service of summons, and no effort was shown to get the policy or a copy thereof from the plaintiff or from the home office, if the general ag-ent could not furnish • the policy as alleged, since defendant knew when suit was brought that it must answer before noon of the first day of the court’s session after summons had been served 20 days, under Crawford & Moses’ Dig., § 1208.
    3. Continuance — discretion of Court. — Continuance in civil cases is within the trial court’s sound discretion, and its action in granting or overruling a motion therefor cannot be disturbed, in the absence of an abuse of discretion, to appellant’s injury.
    4. Insurance — unconditional ownership clause — burden of proof. — The burden was on an insurer, claiming violation of the sole and unconditional ownership clause in a policy of fire insurance, to show that the land on ‘which plaintiff was living and paying taxes had not been redeemed from tax sale, and that the time for redemption had expired.
    5. Insurance — unconditional ownership clause — waiver.—Where an insurance agent knew at the time of writing a fire insurance policy that insured’s interest in the insured property was not sole and unconditional, as where insured told him that the record owner was going to make a deed to insured, which was after-wards done, the provision as to unconditional ownership in the policy was waived.
    6. Insurance — unconditional ownership — lien of improvement assessment. — The lien of assessment for improvement benefits does not keep one from being the sole and unconditional owner of property within the provision of a fire insurance policy.
    7. Insurance — sufficiency of ownership. — In an action on a fire insurance policy, an instruction that if the land on which the property was located was forfeited for nonpayment of taxes and the legal title thereto was in the State, plaintiff still had a right to redeem, and that this was sufficient compliance with the sole and unconditional ownership clause of the policy, held not error,
    8. • Taxation — redemption from tax forfeiture — presumption.— Where plaintiff was in possession of land which had been forfeited for taxes and was paying taxes thereon, it will be presumed that he had redeemed it.
    9. Insurance — concealment of tax forfeituIrb. — Insured not guilty of concealment and misrepresentation of material facts concerning the insured property in not disclosing that the property had been forfeited for taxes and the pendency of suits for, and the chancery court decrees ordering sale thereof for nonpayment of benefit assessments, in the absence of showing that it was not redeemed.
    10. Insurance — iron safe clause — waiver.—Where an insurance agent inspects the property, and knows that insured does not have an iron safe and knows the manner in which he keeps his accounts and records, insurer waives the provisions in policy that insured keep account of sales, record of his business, and an iron safe.
    11. Insurance — unconditional ownership clause — instruction.— . In an action on a fire insurance policy, defendant’s requested instructions to find for defendant if the jury found that insured’s daughter had the legal title to the land on which insured building was located was properly modified by adding the words “unless you find that defendant waived said provisions in said policy.”
    12. Appeal and error — conclusiveness of jury’s finding. — Questions of fact decided by the jury are conclusive on appeal if supported by substantial evidence.
    13. Insurance — jury question. — Whether insured burned his own property, held for the jury on conflicting evidence in an action on a fire insurance policy.
    14. Appeal and error — conclusiveness of jury’s finding. — The Supreme Court does not pass on the credibility of the witnesses on a trial at law, or the weight of their testimony.
    15. Witnesses — incompetency of statement of plaintiff’s wife.— Since, under Crawford & Moses’ Dig., § 4146, a wife is incompetent to testify for or against her husband, it was incompetent in an action on a fire insurance policy to permit defendant’s witness to testify that he did not swear it was insured whom he saw set fire to a building because insured’s wife had asked him if he was going to swear to such fact, and sat on the front seat in the court with a pistol in a paper bag; since, the wife being incompetent as a witness, it was improper to introduce testimony as to her statements.
    16. Appeal and error — invited error. — A party first introducing incompetent evidence cannot complain of the admission of similar evidence by the adverse party as to the same matter.
    17. Appeal and error — harmless testimony. — Where an insured’s wife testified as to matters not in strict rebuttal of incompetent testimony introduced by the insurer, this was not prejudicial error where the court instructed the jury that she could testify only with reference to testimony of defendant’s witness as to threats by her and that her testimony could not be considered on the question whether plaintiff was entitled to recover, but only on the question whether such threats were made.
    18. Insurance — allowance of attorney’s fee. — Allowance of $350 attorney’s fee to plaintiff recovering judgment for $2,200 in an action on a fire insurance policy held not excessive.
    Appeal, from Lawrence Circuit Court, Eastern District; S. M. Bone, Judge;
    affirmed.

      G. M. Gibson, for appellant.

      Coleman & Reeder, for appellee.
   Mehaffy, J.

On the 5th day of November, 1925, the appellant issued a policy insuring F. E. Williams against loss by fire on a one-story building and on stock of merchandise, store and office fixtures and furniture. The insurance on the house was $1,000, on the fixtures and furniture, etc., $1,000, and on the stock of merchandise $200. On the 4th day of December the building and contents were destroyed by fire. The appellee, plaintiff below, brings this suit to collect the insurance.

Defendant filed motion for continuance, which was overruled, and it then filed answer, exhibiting a copy of its policy with the answer. And in its answer it not only denied the allegations of the complaint, but alleged violation of the terms and provisions of the policy in several instances. Attention will be'called to these and to the testimony in the opinion.

The appellant first insists that the case should be reversed because the court refused to sustain its motion to dismiss. The motion stated that the defendant was a foreign corporation, and that it designated the Insurance Commissioner of the State of Arkansas as its agent for service, and that it had no agent in Lawrence County. That suit was brought in Lawrence County, and, under the laws of the State of Arkansas, a suit against a domestic corporation may be brought, in the county in which it is situated or has its principal office or place of business, or in which its chief officer resides, except insurance companies, the action may be brought in the county in which there is an agency of the 'company, where it arises out of a transaction of such agency.

It is alleged in the motion that § 1174 of Crawford & Moses’ Dig’est provides that an action against a foreign corporation may be brought in any county in which there may be property of or debts owing to the agency, and that this section is in conflict with the Constitution of the United States.

It is argued by appellant that this section of the statute is void under the authority of Power Manufacturing Co. v. Saunders, 274 U. S. 490, 47 S. Ct. 678, 71 L. ed. 1165, decided by the United States Supreme Court May 31, 1927. The appellant evidently overlooked § 6150 of Crawford & Moses’ Digest, which provides: “When loss shall occur by fire, lightning or tornado in the burning, damag’e or destruction of property on which there is a policy of insurance, * * *” one having’ a policy “may maintain an action against the insurance company taking the risk in the county where the loss occurs.” This section applies to both foreign and domestic insurance companies, and the court therefore did not err in overruling appellant’s motion to dismiss.

Appellant next insists that the case. should be reversed because its motion for a continuance was overruled. The suit was filed and summons served on April 20,1927. The case was not called for trial until June 16, 1927. The defendant knew when it was served with summons, when the court would-be in session, and § 1208 of Crawford & Moses’ Digest provides: “The defense to any complaint or cross-complaint must be filed before noon of the first day the court meets in regular or adjourned session after service, where the summons has been served 20 days in any county in the State.”

The defendant therefore knew when the suit was filed that it would have to answer before noon of the first day that the court was in session. It could have ascertained immediately whether it had a copy of the policy, and could have made preparations to try the case.

Appellant, however, cites and relies on North American Union v. Oliphant, 141 Ark. 346, 217 S. W. 1, and states that that lays down the rule relative to continuance in cases similar to the instant case. In that case the court said: “The ground upon which the insistence is based is that appellee changed the theory of his case at the commencement of the trial, to the surprise and prejudice of appellant.” The court then called attention to the correspondence between the parties, and continued:

“With this information in hand, appellant was not warranted in assuming that only such letters as were written by appellant itself would be relied upon to establish the contract. The whole correspondence was submitted by appellant as establishing the contract pleaded and relied upon for recovery. With this information in advance, neither surprise nor prejudice resulted to appellant in denying its request for a continuance. ’ ’

It next calls attention to State Life Ins. Co. v. Ford, 101 Ark. 513, 142 S. W. 863. In this case the motion for continuance stated that certain proof could be made by an absent witness, and that defendant had used its best effort to reach the witness, that it might take her deposition, but was never able to communicate with her; that, if the case was continued, it could locate her and take her deposition. The motion also stated that the plaintiff failed to file either the original policy or a copy of it with her complaint, and, for that reason, he could not prepare a defense to the action. And the court held that the lower court did not abuse its discretion in overruling defendant’s motion for a continuance.

In the instant case, appellant does not show any ' effort to get the policy or a copy of it. If he had been unable to get a copy from the home office, and the plaintiff had refused to let it have the policy so that it could make whatever preparations it thought proper, and then had shown that, by reason of this, it was unable to prepare its defense and had been deprived of the right to interpose or make any defense, the trial court would probably have granted its motion. But it does not claim that it made any effort to get the policy from the plaintiff, and does not show in any way that it was prejudiced.

In the instant case the motion stated that the attorney for the defendant had never seen the policy nor a copy of it prior to the day before trial. And that the general agency through which the policy was written, on account of a loss of a portion of its office files, was unable to furnish the defendant’s attorney with a copy. But he does not show that he might not have got a copy from the office of the company, and does not show that he made any effort to get it from the plaintiff.

A continuance in a civil ease is within the sound discretion of the trial court, and the action of the court in granting or overruling a motion for continuance will not be disturbed unless it has abused its discretion to the defendant’s injury. And in this case the court did not abuse its discretion. Holub v. State, 130 Ark. 245, 197 S. W. 277; Sease v. State, 155 Ark. 130, 244 S. W. 450.

Appellant next insists that the case should be reversed because the court refused to grant instruction No. 1 requested by the defendant. It first argues that there was a violation of the sole and unconditional ownership clause of the policy. 'The proof shows that the land had been sold for taxes and that the time for redemption had expired. At any rate, this is the contention of appellant. But appellant did not offer to show that the land had not been redeemed, and, since the plaintiff was at the time living on the land and paying taxes, the burden was upon the defendant to show that the land had not been redeemed.

This court has said: “The State could only act through her taxing officers. These officers, the clerk, assessor and collector, had no authority to place or keep these lands on the tax records for the assessment, levy and collection of taxes, unless they had been redeemed from the State, as required by the statute. While there is no proof in the record that the lands had been redeemed, yet, under the above undisputed facts, it will be presumed that the lands had been redeemed. ’ ’ Wallace v. Hill, 135 Ark. 353, 205 S. W. 699.

It is also contended that this clause as to unconditional and sole ownership was violated because the plaintiff did not have the deed to- the property at the time the insurance policy was issued. But the plaintiff testified that he was the true owner of the land, the sole and unconditional owner, but that the record title was in his daughter, but that she was going to make him a deed. He testified that he told this to the agent, and the agent said he would write the insurance with the understanding that plaintiff get the title transferred to him. The insurance agent said he was going to Memphis next day, and would try to see plaintiff’s daughter and get her to fix the deed. He did not get to see her, hut came back and told plaintiff he had better mail the deed to her. Plaintiff did this, and the deed was executed.

This proof is undisputed, and the deed was in fact executed and delivered within a week. It appears therefore that, so far as this defect is concerned, the insurance agent who wrote the policy knew all about it, and when an insurance agent who writes a policy knows, at the time that the policy is written, that the insured’s interest was not sole and unconditional, that provision of the policy is waived. See National Fire Ins. Co. v. Kent, 163 Ark. 7, 259 S. W. 370.

So far as the improvement taxes are concerned, there is nothing in the proof that shows violation of the sole and unconditional ownership clause of the policy. If the lien of assessments for benefits kept one from being the .sole and unconditional owner of his property, then no person who lives within the bounds of an improvement district would be the sole and unconditional owner of his property.

Appellant next insists that its instruction No. 3 and its instruction No. 4 should have been given. What we have already said answers the objection to the court’s refusing to give instructions Nos. 3 and 4, requested by defendant.

The court’s giving instruction 2 at the request of the plaintiff was not error. It simply told the jury that, if the land was forfeited for the nonpayment of taxes and certified to the State, and that a legal title was in the State, plaintiff still had the right to redeem, and that this was a sufficient compliance with the policy. The burden would not be on the plaintiff to show that he had a right to redeem if he was in possession, paying taxes. There would be a presumption that he had redeemed. The officers would have nO' right to put the land on the taxbooks and to levy and collect taxes from the plaintiff unless he had redeemed or had the right to redeem.

Appellant next insists that the case should be reversed because the plaintiff was guilty of concealment and misrepresentation of material facts and circumstances concerning’ the insurance and the subject thereof. Appellant says that the uncontradicted and admitted testimony is that, at the time the policy was issued, the land had forfeited for taxes to the State of Arkansas and had not been redeemed within the two-year period, and that the State owned this property. The testimony does -show that the land had forfeited, but it does not show whether it had been redeemed. Plaintiff’s daughter made a deed to him after the policy of insurance was written and delivered. The plaintiff was in possession, paying taxes. There is no proof that the daughter did not redeem the land. 'The presumption is that it was redeemed. The fact that the land had been ordered sold, as stated by appellant, under certain decrees of the chancery court, did not violate any of the provisions of the policy. There is no evidence that the plaintiff concealed or misrepresented any material fact or circumstance. The suits that were brought in the chancery court were suits in rem, and no notice, so far as the record shows, was served on the plaintiff. Moreover, if the suits had been pending in court and plaintiff had been served, this would not be any violation of any of the terms of the policy, because the plaintiff had the right at any time to pay the assessments, and, if it had been sold, he had a right to redeem it, and there was therefore no violation in this of the sole and unconditional ownership clause, and, so far as this record shows, there was no misrepresentation or concealment.

It is next insisted that the plaintiff violated the record warranty clause of the policy. It is alleged that the violation was caused- by plaintiff’s failure to taire an inventory and to keep an account of sales and record of his business, and that he had no iron safe.

It has been repeatedly held by this court that, where the insurance agent inspects the property himself, knows ■that the plaintiff does' not have an iron safe, and knows the manner in which he keeps his accounts and records, and knows all the facts that the proof in this case shows the insurance agent knew, the company waives these provisions in the policy. The provision in the policy required the plaintiff, if he had no inventory on hand, to make one within 30 days.

There is a, conflict in the testimony as to what occurred between the adjuster and the plaintiff, but this was a question of fact properly submitted to the jury, and their finding is conclusive here.

Appellant next insists that the court erred in modifying the instructions by adding the following: “unless you find that defendant waived said provisions in said policy.”

Defendant’s requested instructions were erroneous without the clause being added. Each of them enumerated certain things, telling the jury, if they found these to be the facts, they would find for the defendant, leaving out entirely the question of waiver. For instance, the undisputed proof shows that the agent knew that the daughter had the legal title, but was intending to make a deed to the assured, yet these instructions say that, if the jury find those facts, they will find for the defendant. Of course this was erroneous; but it was proper to tell them, if they found these facts to be true they would find for the defendant, unless they found that the defendant waived this provision. And this is true of each instruction which is modified by adding the words, “unless you find that the defendant waived said provisions of the policy.”

It is unnecessary to set out the instructions. When considered as a whole the instructions fairly submitted all the issues to the jury, and all questions of fact decided by the jury are conclusive on this court if there is substantial evidence to sustain the jury’s finding.

It is next contended that the case should be reversed because it is alleged the fire was caused by the act or procurement of the plaintiff. It is' true Reed’s testimony was to the effect that Williams started the fire and burned His own property. This testimony is contradicted by Williams, and a number of other .witnesses testified to facts which are in conflict with Reed’s testimony. Reed’s testimony was to the effect that Williams poured gasoline or something on the stove and stovepipe and set it on fire. Two or three witnesses swear that the fire started several feet from the stove. Reed also testifies that he saw the fire, and had seen Williams pouring something on the stove or pipe, and testified that it looked like there was some paper set on fire in the stove, and the place flamed up. Reed went home after seeing this, .stating that he thought Williams wanted to burn it, and it was none of witness’ business. He went home and lay down op the bed, but did not go to sleep, and he was at home when his own store caught fire. It therefore appears that the evidence is conflicting on the question of the origin of the fire, and this court does not pass on the credibility of the witnesses where there has been a trial at law, nor the weight to be given to their testimony, the rule being that if there is substantial evidence to sustain the verdict it will not be disturbed.

It is next contended by appellant that the case should be reversed because the court erred in permitting Mrs. Williams, the wife of the plaintiff, to testify on his behalf.

Section 4146 of Crawford & Moses ’ Digest makes the husband and wife incompetent as witnesses for or against each other, and appellant contends that this statute is violated by the court’s permitting Mrs. Williams to testify.

Appellant’s witness, Reed, had testified that he had seen some one set fire.to the building and had seen some one in the building, but did not know whether it was Williams or not. The testimony was closed, and the ease went over until the following- morning, and appellant’s attorney then asked permission to put Reed back on the stand, and this permission was granted, and Reed testified that it was Williams that he saw in the store, and the reason he did not tell it when he was on the stand before was that Mrs. Williams, just before he went on the stand, had asked him if he was going to swear that Williams burned his building, and when he told her he was, she asked him if he meant it, and he told her he did. She went downstairs, and came back with a pistol in a paper bag, and came in and sat on the front seat, and that is the reason witness .did not tell the truth about seeing Williams. This action on the part of the appellant was a violation of the statute that he now invokes. If the wife was incompetent to testify, it was just as much a violation of the statute to have some witness to testify to what she said as it wouid be to put her on the stand and let her testify herself. The statute prohibits the testifying- by husband or wife for or against each other, and the appellant should not have offered proof of any declarations or statements of Mrs. Williams. If the law permitted evidence of this character, one could do indirectly what the statute prohibits doing directly. Then it would be manifestly unfair to permit one party to prove statements of the wife and then prohibit her from denying- the alleged statements.

“It frequently happens that evidence which might be inadmissible under strict rules is nevertheless introduced into the case through inadvertence or otherwise, under which circumstances it is held that the adverse party is entitled to introduce evidence on the same matters lest he be prejudiced, the rule being that the party who first introduces evidence which is irrelevant to the issues cannot assign error on the admission of evidence from the adverse party relating to the same matter. So, where a part of a conversation, declaration, document, or series of documents, book accounts, letter or correspondence, or transaction, is shown in evidence by one party, the other party may, for purposes of explanation, show the remainder, or so much thereof as is necessary to a complete understanding of the part already shown, even though the result is to let in self-serving declarations.” 22 C. J. 196.

“The transaction with .Arnold concerning the payment for his services was collateral, and had no place in the case, as it had no hearing upon the issue as to what amount appellee had agreed to pay appellants to defend him. But appellants are not in a position to complain of the introduction of this question into the case, as they brought it forward and introduced the first testimony concerning it. * * * However, if it was prejudicial, appellants are in no attitude to complain, because they had first drawn out the testimony concerning the payment of this money and the circumstances under which it was paid, and appellee was entitled to have the whole of the transaction given to the jury after a part of it had gone in.” St. L. I. M. & S. R. Co. v. Walsh, 86 Ark, 145, 109 S. W. 1164.

“The defendant is not in a situation to complain that the court admitted evidence to prove that its trains were not stopped at Coal Hill on former occasions. Witnesses for the defense testified that the train stopped on the day of the injury long enough to permit all passengers to alight. To sustain their statement, they testified that the rules of the company required a stop of several minutes, and that it was always made. If the evidence was incompetent, the defendant first introduced it, and cannot complain that the court permitted plaintiff to rebut it.” Ry. Co. v. Tankersley, 54 Ark. 25, 14 S. W. 1099.

In the instant ease the appellant is in no position to complain, after having introduced witnesses to testify as to statements made by the wife of plaintiff which were incompetent, and the court did not err in permitting the plaintiff to introduce Mrs. Williams in rebuttal of such testimony.

.Appellant complains, however, because Mrs. Williams made other statements and undertook to give testimony that was not in strict rebuttal of the incompetent testimony introduced by appellant. The court had already instructed the jury that Mrs. Williams could •not testify except with reference to Reed’s testimony as to her threats. The court had told the jury that the testimony would be confined to the question of threats, as to whether or not Mrs. Williams made the threats as testified to by the witness, and that the testimony could not be considered by the jury as testimony in this case as to whether or not plaintiff was entitled to recover on insurance policy, but would be considered only' for the purpose of what light it might shed on the question as to whether or not any threats were made to the witness Reed, who has just testified.

After the testimony the court said:

“Gentlemen of the jury, I again instruct you that the testimony of this witness must not be considered by you as testimony bearing on the merits of this case as to whether or not the plaintiff Williams is entitled to a recovery, but you will consider it only on the point relative to threats made by the witness against Reed, if any.”

It is next contended by the appellant that the case should be reversed because the court erred in permitting certain testimony, over the objection of the defendant, and in excluding certain testimony over the objection of the defendant. .The testimony complained about, however, could not be prejudicial. We have already said that the chancery suits with reference to benefit assessments would not be a violation of any of the provisions of the policy. It did not violate the sole and unconditional ownership clause, and, as long as plaintiff had a right to redeem, he was the sole and unconditional owner. And as we have already stated, as to the tax forfeitures and sales, the plaintiff, being in possession and paying taxes, raises a presumption that it had been redeemed from the State.

The instructions, as we have already said, properly submitted the case to the jury, and it would be useless to set out all the instructions requested in the case.

Appellant finally contends that the attorney’s fee allowed by the court was excessive, and that it should be reduced so as not to exceed 10 per cent, of the judgment. The court allowed attorney’s fee. of $350', and we cannot say that that is excessive.

Finding no prejudicial error, the case is affirmed.

Hr. Justice Kirby dissents.


source: Caselaw Access Project

author: Mfhaffy, J.

license: Public Domain

text:
    Thompson v. State.
    Opinion delivered April 23, 1928.

      Shaver, Shaver & Williams, for appellant.

      H. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Mfhaffy, J.

The appellant was indicted by the grand jury of Little River County. The first count in the indictment charges him with ¡burglary and the second count charges him with grand larceny. He was convicted of burglary, and his punishment fixed at two years in the penitentiary. He was acquitted of the crime of grand larceny.

The appellant filed motion in arrest of judgment, which was overruled, exceptions saved, and he also filed a motion for a new trial, which was overruled, and exceptions saved; and he prosecutes this appeal to reverse said judgment.

George Byers testified that he lives at Wilton, in Little Biver County, and runs a store and restaurant. That his store was burglarized between the first and fifteenth of September, 1927; about $15 in money was taken from the cash drawer. He saw the money in the cash drawer last, before he left the house, about 7 o’clock in the morning, that being the morning that the store was burglarized. Hessie Lyons was in the store when he last saw the money. She had come in to buy some articles, and, going out, made mention of the money. She was in there about 15 or 20 minutes. Witness left the store, locking it, and went over to a lady’s house, and was gone about one hour. When he got back there was no money in the store. The store is in a building about 50 feet long, and there is a door at each end, and one in the west corner. In the west corner is a little vestibule, about 8 feet square, covered over, and a hole in the top, about '24 inches. The hole was covered over, all but one edge, with plank. Witness did not notice about the hole until after the sheriff brought David back. The doors were locked.

On cross-examination he testified that the hole was about five feet above the floor. • That he went to the store about 6 o’clock that morning, and when he left the store there was about $15 in the cash drawer. There was a $5 bill, and $10 more in silver. Does not remember whether he left it in there all night or not, but knows it was there in the morning. The Lyons woman was around behind the counter, waiting on herself. After she left that morning witness went to see a lady about an hour. Her name was Louis. Witness is 73 or 75 years old. He is not sure about how much he had there, but he was gone about an hour, and when he came back he did not have any money in the cash drawer. The doors were locked like witness left them, and the hole was just like it was when he left. It was about 7 o’clock in the morning when the Lyons woman was in the store, and old man Lihu was sitting on the store steps when witness came back. Witness called officers that morning, and they arrested David Still and defendant. Witness was convicted in Little Liver County and sent to the penitentiary for one year for making mash.

On redirect examination witness stated that there was a rock that stayed in the vestibule, and had been there so long that it had made a sign where it had been. It had been turned up over there, and was lying on its end, and, after it had been placed on its end, it would have been possible for a man of the defendant’s height to reach the hole. The rock had been moved. Witness does not remember the amount of the money, but knows it was over $10. He had never been convicted of anything except making mash. Did not see W. L. Hughes, weighing about 175 pounds, trying to crawl through this' hole, and could not get through it. The money was gone, and that was the only hole witness could find. The store is in a hall, on a public road.

Hessie Lyons testified that she lived in Wilton, and is acquainted with 'George Byers, who runs a little store. That she was in his store about 6 o’clock the morning that it is alleged the store was burglarized. George 'Byers was in the store. He told witness to wait on herself, which she did. She saw the money in there, but did not know how much. Saw a bill and some silver, but did not know whether it was a $1 bill or a $20 bill. The drawer was open as witness went by, and Byers was in there while witness was. He was right by the cash drawer. Witness did not .see David Still that morning when she was there, nor Lemous Thompson.

David Still testified that he lives at Wilton, and is acquainted with George Byers. Knows where the store is located, and knows the defendant. Remembers the time the store was alleged to have been burglarized, and that morning, about 7 o ’clock, he saw the defendant. Saw him coming out of the hall. Witness was coming around from the barber shop, and got about middle ways of the hall, and heard somebody call him. He looked back, and thought it was old man Byers. When he got to the side door he saw Lemous coming out of the hall. He 'was slipping down the side of the wall from the top there. Some planks were lying across the loft. .About half of him was out of the hole when witness saw him. He didn’t say anything to witness then. Witness told him, ‘ ‘ There comes Mr. Byers, coming across the road, ’ ’ and he slipped in the corner. Witness went back to Mr. Cook’s in about ten minutes, and about five or ten minutes later Lemous came to the house. He beat witness over there. Witness did not have any conversation with him after he got to the house, but at the store somebody called him, and it was Lemous.

The vestibule is four feet from the corner. You go into the vestibule from the outside, and the hole is in the top of it. Lemous and witness make ties together. They were fixing to go to work together that morning. Both of them were arrested. Witness had known George Byers all of his life. He testified that he did not tell Bob Gantt that he did not .see Lemous Thompson coming out of the hole in the building. Lemous and witness had been making ties together about two weeks, but had worked together before that time. They lived close together, and. ran around together. Does not know how big the hole is in the building, but knows it is there, and saw defendant coming out of it. The first person witness told about this was his father and Mr. Sanderson, two days after he had been arrested. He was kept in jail four days. Witness did not have any money on him when arrested, and Lemous had a dime. The arrest was about 40 minutes after the burglary. Witness told Mr. Gantt that he saw Lemous coming out of the hole.

Francis Young testified that he knew Lemous Thompson. Remembers the day the store was said to be burglarized. Lives across the street, and from his home you cannot see the vestibule, and fie did not see Lemous Thompson coming out of there that morning. Saw him coming from that way. He was leaving the corner, going north, coming from the south. The door is in the west part. That was about 7 o’clock, or a little after. Witness lives northeast of the hall, and he saw Lemous coming from the south from the hall. Saw Henry Lihu that morning, sitting on the steps, about 7 o ’clock. Saw Lemous Thompson about'7 o’clock, and saw Mr. Byers about 7 o’clock.

Nancy Cook testified that she lived in Wilton, ’just across the street from George Byers. Knows the defendant; he came to her house the day the store was said to have been entered. It was about 7 o ’clock in the morning. He stayed about 25 or 30 minutes, and then went on home. David Still and Lemous Thompson came to witness’ house together. They stayed about 25 or 30 minutes, and were not there when arrested.

J. G. ■Sanderson testified that he was sheriff of Little River County; called to make an investigation when it was alleged George Byers’ store had been burglarized. He examined the place on the side entrance to the building. The entrance was about as wide as from the railing to the wall. It was ceiled overhead, just plank placed across overhead, and that closed up the vestibule from the store. The ends of two or three planks were pushed loose or pushed aside. Does not know the size of the hole, but has had some experience with openings in the walls where people have gone through, and it is his opinion that a man the size of the defendant could have gone through that hole. The opening was about as high as the top of the window, and vestibule is planked over the top. After getting through the hole they can drop into the store. The ends of a plank or two were loose. The planks are about 1x6. If two of them were loose, one could go- through them. There were indications that the rock had been moved from one place over to the hole. The highest end was up. Standing on that, a man the size of the defendant could have reached the hole.

Lemous Thompson, the defendant, testified that he knew Byers, and that he never broke into the store. Knows David Still, and remembers the time the store is alleged to have been burglarized. Lives just below David Still’s house with his father. He was making ties for Lee Duckett, and was working with David Still., The morning of the burglary defendant got up about 5:30 and went over to David Still’s house, and Still and witness were going around the front of the store, and an old gentleman was out there and asked where Mr. Byers was. The old gentleman’s name was Lihu. Witness and Still went over to Cook’s house. Witness was arrested that morning. He and defendant were standing by old man Byers’ hall. They had been together all morning. They were brought down and put in jail together, and bound over to the grand jury together. Witness had a dime when he was arrested. He did not talk to witness in jail, and has had nothing to do with him since this trouble. Defendant did not go into the vestibule of the store and crawl in the building and get $10 or $15 out of the cash drawer. It was not quite 7 o’oclock when Still and witness started across the hall. Witness had breakfast at home. His father was at home when he got there. He went over to Still’s house. David Still went back of the hall somewhere, and defendant stood out there and talked to the old man. They then went over to Nancy Cook’s house. Witness testified that he did not break into the store, and did not call David Still. Did not get any money out of the store, but was fined for shooting craps before this. He did not have any money to hide at Nancy Cook’s house, and didn’t use any of that money to pay Ms fine. He worked and paid Ms fine. Before the burglary occurred 'he had paid his fine. His fine was $24.15, and he paid $15.15, and they pnt him in jail for the other $10, and he paid it. He did not get any of tMs money ont of the store. It was paid before then. Did not leave Cook’s bonse to go borne, but went over to the ball. Was at Nancy Cook’s bouse when Byers called David over there, and then they called the defendant. David was asked, in bis presence, if be knew anything about the burglary, and be told him that be didn’t know anytMng about it. He did not tell him that be saw defendant coming out of the hole. Mr. Sanderson asked if they came up there, and he said be didn’t know anything about it.

Bob G-antt testified that he knows the defendant; is constable at Wilton; knows David Still, and remembers the time when the store was burglarized. David Still was riding with him in a wagon one morning after the burglary, and told witness that be did not see Lemous Thompson coming out of the building, or coming out of the bole in that building the morning the store was burglarized. He also told witness that be did not see him coming in the store or coming out. Witness asked Still bow much money be got out of there, and be said they did not get any. Witness asked him if Lemous got enough to pay his fine, and he said no. He said that neither of them got any money. Witness then said they bad better be rustling some money to pay their fines or they would have to go to jail. Still said that be did not go in there, and be knew Lemous did not.

Robert Thompson testified that be is the father of defendant. That he is working on the right-of-way. He remembers the morning that the store was robbed, and that his boy was home all night and had breakfast at home that morning’. He ate his breakfast, took Ms dinner-bucket and put it on the table, and witness saw him g’oing in David Still’s house. That is about 30 or 40 steps from where witness lives. That was about 7 o ’clock. "Witness has never talked to David 'Still about this since the boys were arrested.

Henry Lihn testified that he lives at Wilton; knows Mr. Byers, and knows Thompson and Still. He knows David’s father, and remembers the time when the store was supposed to have been robbed. He was in there one night, and heard Mr. Byers and David’s father talking’. Did not know at that time that both David and Lemous were bound over to the grand jury.

Jim Sanderson, recalled, testified that he went to Wilton the morning'the store is alleged to have been robbed, and arrested David'Still and Lemous Thompson. David Still denied knowing anything about seeing anybody come or go in the building.

David 'Still, recalled, testified that he denied to Mr. Sanderson, when they were arrested, that he knew anything about the supposed burglary, but he later told him, in the presence of Mr. Finley, that he did know who was coming out of there.

' Appellant insists, first, that- the indictment in this case is drawn under § 2435 of Crawford & Moses’ Digest, which section applies to the crimes of burglary and grand larceny where the two crimes are committed together. He insists that this section has never been repealed, and that it was necessary to charge that the crime was committed in the night time.

Section 2435 was the act providing for the punishment of burglary and grand larceny when committed together, as amended in December, 1874. Until act No. 67 of the Acts of 1921 was passed, burglary was committed only when the building was entered in the night time, but the statute now reads: ‘ ‘ The crime of burglary shall be defined as follows: ‘Burglary is the unlawful entering a house, tenement, railway car or other building, boat, vessel or water-craft, with the intent to commit a felony.’ ” Section 2, act 67, 1921.

When one enters a building of the character described, with the intent to commit a felony, he commits the crime of burglary, whether the entry was in the night time or not.

Section 3, act 67, provides: “Whoever shall be convicted of burglary shall be imprisoned in the penitentiary for a period of not less than two nor more than seven years. ’ ’

Section 3016 of Crawford & Moses’ Digest provides, among other things, that the offenses of burglary and grand larceny may be charged in one indictment. And this statute was passed a long while after § 2435 was enacted..

Section 2435 simply provided that, when one committed burglary, that is, entered the house with the intent to commit a felony, and then and there committed a felony, he should be guilty of burglary and also of the felony that he committed. That part of the section which mentions the entry “in the night time” is in conflict with the subsequent statutes defining burglary, and is repealed by necessary implication. Burglary is committed now by entering a house or building, the kind described in the statute, with the intent to commit a felony. And the time of the unlawful entry is immaterial.

The charge in this indictment of burglary is a sufficient charge under our statute, and the question of whether one could be convicted of both burglary and grand larceny is immaterial in this particular case, because the defendant was acquitted of the charge of grand larceny.

Again, the statute referred to by appellant provides that, if the entry is with the intent to commit a felony or larceny, one is guilty of burglary. Under the present statute the word “larceny” is omitted, and if one enters the building with the intent to commit any felony he is guilty of burglary. But the entry must be with the intent to commit some felony. It is charged in this indictment that he entered with the intent to commit grand larceny, which is, under the statute, a felony. But, under § 3016 of Crawford & Moses’ Digest, the offense of burglary and grand larceny may be charged in the same indictment.

The requisites of a good indictment are: “The indictment must he direct and certain as regards: First, the party charged; second, the offense charged; third, the county in which the offense was committed; fourth, the particular circumstances of the offense charged, where they are necessary to constitute a complete offense.” C. & M. Digest, § 3012.

The indictment in the present case meets the requirements of the statute, and therefore is a g-ood indictment, charging burglary as it is now defined, and also charging’ grand larceny in the same indictment. The first count in the indictment does not charge that defendant did steal, take and carry away $15 in money, but it charges that he unlawfully entered with the felonious intent to steal, take and carry away.

It is next insisted by appellant that the verdicts are inconsistent, and that the court erred in rendering judgments thereon. The verdicts are not inconsistent, for the reason that one might enter a building with the intent to commit a felony, and the crime of burglary would .be complete, although-he might not commit any felony. He might enter for the purpose of stealing money and be unable to find the money, nr might fail to commit the felony intended for any other reason. Still, if he entered with the intention of committing grand larceny or any felony, the crime of burglary would be complete. He could therefore be guilty of burglary and not be guilty of grand larceny or of any other felony. The crime of burglary is complete when he enters the building with the intent to commit a felony, and it is wholly immaterial whether he actually commits the felony.

The appellant is in error in stating that the grand larceny, set out 'in count one of the indictment, is identical with the description in count two. The difference is that in count one it is alleged that he entered the building with the intent to commit larceny. The reading of the indictment is, “with felonious intent to commit a known felony, to-wit, grand larceny, unlawfully, willfully and feloniously to steal, take and carry away,” etc. And the oharg-e in the second count is that he unlawfully, willfully and feloniously did steal, take and carry away.

Appellant calls attention to the case of Starchman v. State, 62 Ark. 542, 36 S. W. 940. ' In that case the court said: “But, having made allegations descriptive of the property and of the offense, there must, in order to convict, 'be some proof tending to support them.” The court goes on to say in that case that the evidence to support the allegation that the breaking and entering took place in the night time was very weak. So the proof may be weak in this case in showing that the intention was to steal money. It was only necessary to charge that appellant entered the house with the intent to commit a felony. But the question of whether he entered to steal the money or personal property of the owner of a store was a question of fact to be submitted to the jury.

Appellant calls attention also to the ease of Value v. State, 84 Ark. 286, 105 S. W. 361, 13 Ann. Cas. 308. In that ease it is held that it was unnecessary to set forth the particular description of the money. But, having alleged the kind of money, it was necessary to prove it.

The next case referred to by appellant is that of Carleton v. State, 129 Ark. 363, 196 S. W. 124, and it holds that, when a particular kind of intoxicating spirits is alleged, it becomes descriptive of the offense and must be proved.

It is not necessary, as .contended by appellant, that the State show, not only that the defendant entered the building, but that he did steal, take and carry' away $15 gold, silver and paper money, before he could be convicted of burglary. The State did not charge, in the first count in the indictment, that he did steal, but it simply charged that he entered for the purpose or with the intent to steal. The charge of burglary met the requirements of the statute, and it was not necessary to prove that he stole or that he committed larceny, but necessary only to show that he entered with the intent to commit a felony.

Appellant next insists that instruction No. 3 was erroneous, and should not have been given. It is as follows: “Before you can convict the defendant of burglary, you must find from the evidence, beyond a reasonable doubt, that the defendant entered a house or building, as alleged in the indictment, with the intent to commit larceny of personal property of a greater value than $10.”

The jury could not have been misled by this. All the personal property mentioned was the money. There was no contention that anything else had been stolen or that there was any intention to steal anything but the money. The proof shows that, when the owner of the store left, the money, about $15, was in the store, and when he returned it was gone. The ¡crime of burglary is committed when one enters the building with the intent to commit a felony, and it was only necessary to charge that, and to state that he entered to commit a felony, to-wit, grand larceny. And whether it was necessary for the proof to show that the felony intended to be committed was to steal the money is immaterial in this case, because there was no evidence and no suggestion that there was any intention to steal anything but the $15, and the jury therefore could not have speculated about what he entered for. The proof showed that appellant entered the building, and it also showed that the money was gone, and they were therefore justified, possibly not in reaching the conclusion that appellant stole the money, but certainly in reaching the conclusion that he entered with the intention of stealing it.

Defendant complains that the court erred in its refusal to give its instruction number 11, requested by him. This instruction was fully covered, but this instruction, requested by appellant himself, states that the State must prove that he broke into and entered the house with the intent and for the purpose of stealing-property of George Byers to the amount of more than $10. So it appears that both parties, the State and the appellant, took the same vi'ew of this matter, that is, that the instruction which, told the jury that the State must prove that he entered with the intention of stealing personal property of the value of more than $10 was a correct statement of the law to- the jury. Evidently they thoug’ht it was correct, because it would not be grand larceny unless the value was more than $10. It would make no difference whether it was money or. other personal property.

The instructions as a whole fully and fairly stated the law to the jury, and the evidence is sufficient to justify the verdict. The case is therefore affirmed.


author: McHaNey, J.

text:
    Baker v. State.
    Opinion delivered April 23, 1928.

      G. G. Garter and Dave Partadn, for appellant.

      II. W. Applegate, Attorney G-eneral, and John L. Carter, Assistant, for appellee.
   McHaNey, J.

This is a petition for a writ of cer-tiorari to tire Franklin Circuit Court, Ozark District, praying’ that the judgment of conviction ag'ainst appellant upon a charge of contempt be certified up to this court and quashed. Copy of the proceedings in the circuit court has been filed with the petition.

Appellant had been charged with and convicted of unlawfully possessing liquor, for which he had paid a fine. He was taken before the grand jury to be examined regarding his knowledge of violations of the liquor laws, and was there asked the following questions: “1. State to whom the liquor belonged which was found in your store, and for which you paid a fine for possessing. State who brought the liquor into your store.” Appellant refused to answer such questions, and was taken before the court, and admonished by the court that he should answer same. He was thereupon taken before the grand jury again, but was advised by his attorney that he did not have to answer them, because in violation of his constitutional rights. He refused to answ.er the questions to the grand jury the second time, for the reason that he had been advised by his counsel that he was not required to do so, in that his answers would tend to incriminate himself. He was then again taken before the court, and admonished by the court that he would be required to answer the questions. Whereupon he told the court that he was acting under the advice of his counsel, and that he would decline to answer such questions. The court then ordered him incarcerated in the jail until he agreed to go before the grand jury and answer such questions. He was placed in jail, where he remained five days, and, on the morning before the grand jury adjourned, he was again brought into court by the sheriff, where the court propounded the same questions to appellant, and he was again advised in open court by his counsel not to answer said questions. The attorney notified the court that he had so advised him, whereupon the court sentenced him to seven months imprisonment in the Franklin Connty jail, and entered a judgment to this effect.

We are asked to quash this judgment on the ground that the court was without authority, under the law, to require the defendant to answer such questions so propounded to him; hut that, if he he mistaken in this fact, still the appellant is not guilty of contempt of court, in that he did not intend to he, but was acting solely upon the advice of counsel in refusing to answer such questions, whose advice he thought to he correct, and upon which he thought he could rely.

■Section 6178, C. & M. Digest, reads as follows: “No person shall he excused from testifying before the grand jury or on the trial in any prosecution for any violation of this act; hut no disclosure or discovery made hy such person is to be used against him in any criminal or penal prosecution for or on behalf of the matters disclosed.”

In State v. Roberts, 148 Ark. 328, 230 S. W. 15, we said:

“Under our statutes the grand jury has general inquisitorial powers, without being confined to any particular matters submitted for investigation, and, according to the allegations of the complaint (indictment) in this case, the grand jury was pursuing' such investigations in propounding the inquiry to the defendant. The question propounded might or might not have elicited information incriminating the defendant himself. But he could not refuse to answer on that ground, for the reason that the statute protects him from the use of his own testimony in the prosecution of a charge against himself.”

The above language was cited with approval in Warren v. State, 153 Ark. 497, 241 S. W. 15, and referring to the statute now under consideration, 6178, this court said:

“Under the above statute, the appellant could not refuse to answer questions concerning the violation of the liquor law during the year 1921, giving' as his reason for such refusal that the answers to the questions propounded to him would show that he himself had violated the liquor law during that year. The statute above quoted gives him complete immunity from prosecution for any offenses in violation of the liquor law which his own testimony might disclose.”

It will be noted that the language of the above section is “but no disclosure or discovery made by such person is to be used against him in any criminal or penal prosecution for or on behalf of the matters disclosed.” In this respect it differs from § 3122 of the Digest, where it is provided that, if two or more persons are jointly or otherwise concerned in the commission of any crime or misdemeanor, either may be sworn and required to testify thereto, “but the testimony given by such witness shall in no instance be used against him in any criminal prosecution for the same offense.”

Section 8 of article 2- of the Constitution- provides: “Nor shall any person be compelled in a criminal case to be a witness against himself”; but, as is plainly manifest from the language of the section of the Digest now under, consideration, appellant’s rights were not invaded under this clause of the Constitution, as he was not being compelled to be a witness against himself. He was being examined before the grand jury concerning his knowledge of liquor law violations generally, and the mere fact that, in the course of such inquiry, he might give testimony which might, but for the statute, form the basis of an indictment against 'him, still his answers might disclose the guilt of others, and the grand jury was well within its rights in asking the questions, and the court was correct in requiring him to answer them. Lockett v. State, 145 .Ark. 415, 224 S. W. 952. See also Poindexter v. State, 109 Ark. 179, 159 S. W. 197, 46 L. R. A. (N. S.) 517. But any disclosures made by the witness or discoveries by the grand jury cannot be used against him on any charge growing out of or by reason of such testimony.

Having properly convicted appellant on the charge o,f contempt of court, there still remains the question of punishment to be determined. As we have already stated, the court sentenced him to seven months in jail. We cannot tell from the transcript the exact date his punishment .began, but it was some time in February. In the Poindexter ease, supra, this court said: “We are of the opinion that justice will be done and the dignity and authority of the court vindicated when the fine imposed is paid, without the jail sentence, of which petitioner should be relieved.” In the Lockett case, supra, the lower court found Lockett to be guilty of contempt, and fined him $1,000 and sentenced him to jail for six months. This court cut the fine down to $250 and the jail sentence to thirty days, because of some mitigating circumstances that appeared to this court to justify it. We think there are some here. Appellant refused to answer the questions involved because he was advised by counsel learned in the law that he was not required to do so. His counsel honestly so advised him. The fact that he was mistaken in this advice, and that appellant relied on this erroneous advice, is a sufficient mitigating circumstance to justify us in reducing the punishment, and a sentence of 60 days, under the ■circumstances, would have been amply sufficient to uphold the dignity and respect of the court.

The sentence against him will therefore be modified in this respect by reducing the punishment to sixty days from the date of his incarceration in jail. Otherwise the judgment is affirmed.


author: MgHaNEY, J.

text:
    Smith Trading Company v. Parker.
    Opinion delivered April 23, 1928.

      White & White, for appellant.

      Cochran & Arnett, for appellee.
   MgHaNEY, J.

Appellee brought this action against appellant to recover $134.75, balance due on a note secured by chattel mortgage on five bales of cotton given him by one Simmons. It appears that two bales of the cotton covered by the mortgage were sold to appellant, and three bales were sold to one Crenshaw. Separate suits were brought against both purchasers, consolidated, and recovery had against appellant in the sum of $67, and a similar verdict and judgment against Crenshaw.

This appeal challenges the sufficiency of the evidence to sustain the verdict and judgment and instructions Nos. 1 and 2 given by the court. It is not disputed that appellee had a mortgage on the five bales of cotton in question, and it is not disputed that appellant purchased two bales of this cotton at a time when this mortgage was of record. It further appears that the appel-lee foreclosed his mortgage against Simmons on the remainder of the personal property covered by the mortgage, and applied the proceeds of the sale thereof to the payment of the $500 note which it secured, leaving a balance of $134 due thereon. It is contended by appellant, however, that Simmons gave appellee a mortgage for $'200 on certain real estate in satisfaction of the balance due on this $500. Appellee admits that he took a $200 second mortgage on real estate, but that it was not in satisfaction of his indebtedness to him, but merely as additional collateral for the loan already in existence. Appellant also contends that appellee had given Simmons permission to sell the cotton. These questions were wholly within the province of the jury, and were sub-nutted to it by the court under the instructions complained of.

.A careful examination of the testimony convinces us that the case was properly submitted to the jury under the two instructions complained of, and that there was a question for the jury. We have examined the instructions, and find them to be correct statements of the law. Moreover, according* to appellant’s abstract and brief, it made no objection to either instruction. Counsel for appellant has apparently raised objections to the instructions for the first time in the motion for a new trial, in this language: “That the court erred and committed separate and several errors in giving each instruction of its own motion.”

No objections having been made to the instructions when given, and no exceptions saved, the above general assignment of error cannot be relied upon for a reversal of the case. We find no error, and the judgment is affirmed.


author: Smith, J.

text:
    Louisiana & Northwest Railroad Company v. McMorella.
    Opinion delivered April 23, 1928.

      Henry Stevens, for appellant.

      McKay & Smith, for appellee.
   Smith, J.

E. R. Bernstein, as receiver of the Louisiana & Northwest Railroad Company, brought this suit in ejectment to recover the possession of the south half of the northeast quarter and the southeast quarter oif the southwest quarter of section 21, township 19 south, range 20 west, from Miss Bettie McMorella, and alleged title to the lands sued for under a deed from her to the plaintiff as receiver, dated February 15, 1921.

The defendant filed an answer, in which she admitted that, in conjunction with Gr. W. Hunter, she had executed a deed dated February 15, 1921, to the plaintiff, as receiver, which described the lands sued for, but she alleged that this deed had been executed as a result óf a mutual mistake in so far as the deed included the lands above described, as it was the purpose and intention of the parties, in the execution of this instrument, for the grantors therein to convey to the receiver of the railroad company only such lands as the grantors had title to as trustees for the use of the railroad company, and that the lands above described were not railroad lands, but were the individual lands of defendant, and had been included in the deed by mutual mistake. Other pleadings were filed by the parties which, amplified and denied these allegations.

Later the defendant filed an amendment to her answer, in which she alleged that, in 1922, she purchased the lands sued for at a sale for the 1921 taxes, and received tax deeds therefor after the expiration of the period of redemption. In a reply to this amended answer, the tax sale was alleged to be invalid for various reasons assigned, and the invalidity of the tax sale appears to be conceded.

Something of the history of the relationship between the defendant and the railroad company is set out in the opinion in the case of Louisiana, & N. W. R. R. Co. v. MoMorella, 170 Ark. 921, 282 S. W. 6; and it was'shown in the record now before us that the defendant had been employed as manager for a colony of Bulgarians which the railroad company had established, and, in this connection, both defendant and Gr. W. Hunter, her co-grantor in the deed upon which this suit is based, had acquired title, in their respective names, to certain lands- which they, in fact, held as trustees for the use of the railroad company. Gr. W. Hunter had been appointed receiver by the United States District Court at Shreveport, Louisiana, of the railroad company, and, after serving in that capacity for some time, had been succeeded by the plaintiff, E. R. Bernstein. This receivership was later settled and the receiver was discharged, and thereafter the railroad company continued the prosecution of this suit in its own name for its own use and benefit.

The title to the lands here in litigation was derived originally fronrone W. D. Wingfield, who made contracts to convey lands to various members of the 'Bulgarian colony. One of these contracts was to convey the lands here in litigation-to Oeorge Petcoff, who entered into the possession of the lands and made certain improvements thereon, but did not complete his payments.

On June 10,1917, Wingfield executed a deed to Gr. W. Hunter, which was apparently a conveyance to Hunter individually, but the testimony shows that the convey-anee was in fact to Hunter as trustee. This deed described the lands here sued for and other lands, all of which were, no doubt, intended to he used in connection with the development of the Bulgarian colony. But this deed expressly recited the existence of an outstanding undischarged agreement on the part of Wingfield to convey the lands here in litigation to George Petcoff upon the payment of certain notes, which were there particularly described, executed by Petcoff to Wingfield’s order. Similar contracts to convey other lands described in this deed were also there referred to, and the deed contained this paragraph:

“I have entered into contracts of sale for this land with the above-named parties with the terms of which said George W. Hunter is familiar; and this conveyance and warranty of title are subject to the claims of the said several parties; and, for and in consideration of this conveyance and the transfer of notes hereinbefore made, George W. Hunter agrees to carry out my contracts of sale of said lands with the above named parties when they pay off and satisfy the above mentioned claims which I am today transferring to said Hunter.”

Defendant testified that, for value, she acquired Pet-coff’s interest under his contract with Wingfield, referred to in the deed from Wingfield to Hunter, and, as an evidence of that fact, exhibited a deed, which had been duly recorded, from Petcoff and wife to her, dated March 12, 1919. She also testified that she discharged the payments due by Petcoff under his contract with Wingfield, which entitled her to a deed from Hunter, and, as. an evidence of that fact, she exhibited a deed, duly recorded, from Hunter to her, dated March 14, 1919.

Defendant paid the taxes in her own name for the years 1918, 1919 and 1920, but failed to pay the taxes for the year 1921, and purchased the lands at the sale for the taxes of that year in 1922, and in 1924 received the clerk’s tax deeds hereinbefore referred to.

The deeds from Wingfield to Hunter, and from Pet-coff to defendant, and from Hunter to defendant, above referred to, apparently placed the legal title to the lands in defendant, and she was the apparent holder of the legal title thereto when, on February 15, 1921, she and-Hunter executed the deed upon which this suit is based to Bernstein as receiver.

Defendant testified that she was not familiar with any of the lands by their legal descriptions, and knew each tract by the name of the Bulgarian who occupied it, and in this manner knew the lands in litigation as the Petcoff lands, but did not otherwise know their description. Her relation with the colony had terminated, and she knew that the receiver was. making a final settlement in the Federal court of his administration of the railroad company’s affairs, and her purpose in executing the deed to the receiver was to divest herself of all interest in any of the colony lands. Other lands were included in this deed in addition to the lands here in litigation. This deed contained the following recitals:

“The aforesaid lands, were purchased by the said George W. Hunter in his capacity as receiver of the Louisiana & Northwest Railroad Company and with the funds of the said receivership, and the same were transferred by him to the said Miss Elizabeth McMorella for the purpose of conducting a -colony thereon in connection with and for the benefit of the said Louisiana & Northwest Railroad -Company. In acquiring and transferring said lands, as hereinabove set forth, the said George W. Hunter and the said Miss Elizabeth McMorella acted as agents and representatives of the said Louisiana & Northwest Railroad Company, and it was understood and agreed between them that the title to said lands, would be héld in trust by each and'both of them for the aforesaid receivership. The said George W. Hunter and the said Miss Elizabeth McMorella declare that they have no right, title or interest, personally and individually, in and to said lands, and that, by reason of the facts aforesaid and on account of the resignation of the said George W. Hunter as receiver of the said Louisiana & Northwest Railroad Company, and the appointment of the said Ernest R. Bernstein as receiver aforesaid, they do hereby bargain, sell, transfer, convey and'deliver the aforesaid •lands to the said Ernest R. Bernstein, receiver.”

Defendant testified that she did not understand that she was conveying any lands, owned by her individually, and she executed the deed under the misapprehension that the recitals above quoted were true, and that she was conveying only the trust or colony lands. She remained in the possession, of the lands sued for, and continued to clear and improve them.

The court held, on the final submission of the cause, that the deed from Hunter and defendant to Bernstein erroneously included the lands here in litigation, and reformed the deed so as to exclude those lands, and quieted the title of the defendant thereto as against the plaintiff railroad company.

Several questions are argued in the able briefs of respective counsel which we find unnecessary to consider or decide; but we think the testimony, in its entirety, supports the finding and decree of the court below.

It is conceded that, before relief by way of the reformation of the deed can be granted, the testimony must show clearly and conclusively that a mutual mistake was made in the execution of the deed; and we think the testimony measures, up to this standard. There appears to be no question that defendant had acquired and that she held the legal title to the lands at the time she- joined Hunter in the execution of the deed to the receiver, and it appears equally clear that she intended to convey to the receiver only the trust or colony lands. Indeed, it is not contended that she intended to convoy any other. It is insisted, however, that the lands here in litigation were, in fact, colony lands or railroad lands, and had become such under a deed from defendant to G. W. Hunter, executed May 12, 1919, and that the consideration for the conveyance from defendant to Hunter, receiver, was the discharge in part of a note for $28,000 which she had executed to. the order of G. W. Hunter as receiver. It is also insisted that Bernstein, as successor of Hunter as receiver, reported tírese lands as a part of the assets which he turned over to the railroad company upon the discharge of the receivership, and received credit therefor, and that defendant is estopped to question the title of the railroad company thereto.

In support of these contentions the deposition of Robert A. Hunter is relied upon. This witness 'became the attorney for Bernstein after the latter had been appointed as. receiver in succession to G. W. Hunter. In a most candid statement this witness detailed the circumstances under which he prepared for execution the deed from G. W. Hunter and defendant to Bernstein as receiver. He stated that he found in the files “uncer-tified copies purporting to be copies of deed executed” by defendant to Hunter. There was, however, no proof of the execution of any such deed. Assuming-, as. he naturally did, that the lands there described were colony or railroad lands, and desiring to have conveyed to Bernstein, as receiver, all these lands, the lands described in the uncertified copy of the deed were included in the deed which he prepared. This testimony is not sufficient to prove the existence and execution of a deed from defendant to G. W. Hunter.

In response to one of the interrogatories, Robert A. Hunter made an exhibit to his deposition a copy of a note from defendant to G. W. Hunter for $-2'8,000 which was found in the files. Indorsed on the back of the copy of the $28,000 note were credits aggregating $36,9)91.87, and among these credits was the item: “Petcoff land, $3,809.22.” No witness, however, furnished any explanation as to how or when defendant had been given' credit for this item, or as to why payments of approximately $37,000 had been made on a $28,000 note.

We conclude therefore that the testimony did not show that defendant had received the value of the lands by a credit therefor given her on the note which she had executed to the order of G. W. Hunter as receiver. Miss McMorella testified that she had not seen this copy of the note with the credits thereon prior to the time the same was exhibited to ber when ber deposition was taken, and that sbe had not at any time been given credit in a settlement of ber accounts with the railroad company for the value of the Petcoff lands.

It is insisted that, as the testimony shows that the railroad company was reorganized, and its stock acquired by new stockholders, who purchased the stock upon the assumption that the lands in litigation were a part of the assets of the railroad company, defendant is now estopped from asserting that the railroad company does not own the lands. In answer to this contention it may he said, first, that defendant was not a party to the suit wherein the receivership was. pending, and she testified that she knew nothing about any reports which Gr. W. Hunter, as receiver, had filed; and secondly, it appears that the receivership of Bernstein was pending when this suit was begun, for Bernstein, as receiver, was the party plaintiff. Purchasers of the railroad stock, upon the discharge of Bernstein as receiver, must therefore have known that the title to the lands was in litigation and that the railroad’s ownership of the lands was dependent upon the outcome of that litigation.

It is insisted that the relief prayed should not have been granted, for the reason that Gr. W. Hunter was not made a party to the suit. We think, however, that he was not an essential party to the suit. The testimony, in its entirety, shows that he had no interest in the lands here involved, and that he was a party to the deed in which it was conveyed for the purpose only of conveying other lands therein described in which he did have an interest. Granting* or refusing- the relief prayed in the cross-complaint could not affect any interest claimed by him, as he had no interest.

It is finally insisted that the claim of title to the lands ' under the tax deeds is inconsistent with the claim of defendant to the original title to the lands, and that the amended answer setting up these tax deeds should be treated as a substituted answer. But we think this was not the purpose or the effect of the amended answer. It was filed as an amended answer, and not as a substituted answer. Defendant bad paid the taxes for 1918, 1919 and 1920 in her own name, and this litigation was begun by filing the original complaint January 24,1922. Defendant did not pay the taxes falling due that year-, but allowed the lands to sell, and became the purchaser at the sale in June, 1922, thereafter. If she then owned the lands, her purchase at the sale was a mere .redemption (Roberts v. Miller, 173 Ark. 38, 29 S. W. 814; Inman v. Quirey, 128 Ark. 605, 194 S. W. 858); but certainly this purchase did not divest her of any title which she otherwise had, or prevent her from asserting that title when sued for the possession of the lands.

We conclude therefore that the court below was warranted in finding that the deed upon which this suit is based was executed as the result of a mutual mistake, and that its reformation to the extent of excluding the lands sued for was properly ordered, and that decree is affirmed.


author: Kirby, J.,

text:
    Foster-Thompson Lumber Company v. Brigham.
    Opinion delivered April 23, 1928.

      McKay & Smith, for appellant.

      Wade Kitchens, for appellee.
   Kirby, J.,

(after stating the facts). Appellant urges that the decree should he reversed, not being supported by the evidence, and this contention must be sustained.

The undisputed testimony shows the clause, “$50 per year for extension until cut,” was not in the draft of the timber deed to Drake and Harper, under which Brigham claims, when prepared for execution, and one of the grantees testified he wrote it in at the direction of the grantor, Atkins, before it was signed by him. Atkins denied,- however, that there was any such agreement, and that the deed when executed by him contained said clause. It was a material change in the terms of the instrument, and, the alteration appearing on the face of it, the burden of explaining such alteration was on the party claiming under the instrument. This burden could not be discharged by the testimony alone of one o'f the members of the partnership grantee, that the alteration was interlined by him at the suggestion of the grantor before signature, when the grantor denied not only that any .such agreement was made but also stated that the instrument did not contain the interlined clause when it was executed by. him. Neither the scrivener who prepared the deed for execution nor the officer who. took the acknowledgment thereto testified in the case. The grantor, immediately upon the expiration of the time allowed for removal of the timber in the original deed, made a new conveyance of it to the appellant company, such action being consistent with his statement that the alteration in the deed was unauthorized by him, and the preponderance of the testimony did not support the claim of a tender having-been made of the amount necessary to extend the term for another year for removal of the timber, as provided in the interlined alteration.

The chancellor’s findings to the contrary are clearly against the preponderance of the testimony, and the decree will be reversed, and the canse remanded with directions to make permanent the temporary injunction granted. It is so ordered.


author: Hart, C. J.,

text:
    Mansfield Lumber Company v. Gravette.
    Opinion delivered April 30, 1928.

      Dobbs & Young, for appellant.

      Rice & Dickson, for appellee.
   Hart, C. J.,

(after stating the facts). It is earnestly insisted by counsel for appellant that Mrs. A. L. Beason had an equitable interest in the lots -described in the complaint, and that it had a lien for materials furnished • by it, under the provisions of § 6906 et seq. of Crawford & Mo-ses’ Digest. We cannot agree with counsel in this contention. It is true that M'iss Gravette executed a deed to Mrs. Beason to the lots in question, but the deed was placed in escrow with the First National Bank of Gravette, to be turned over to the -grantee in the deed when the payments of purchase money were made; but, in case the payments of the purchase money were not made as expressed in the deed, the deed was to be returned to the grantor, and become inoperative. When a deed is delivered merely as an escrow to take effect upon the performance of some condition by the grantee in the future, no title passes until the condition has been performed. Bondurant v. Enis, 152 Ark. 372, 238 S. W. 48; and Ford v. Moody, 169 Ark. 649, 276 S. W. 595.

A deed to real estate deposited with a third person, to he delivered to the grantee on the payment of notes executed by the grantee in consideration of the conveyance, operates as an escrow; and the conveyance thereof by the grantee, or sale under execution against him prior to the delivery of the deed, is inoperative. Ober, Attawater & Co. v. Pendleton, 30 Ark. 61.

It is claimed, however, by counsel for appellant that parol evidence cannot be introduced to show that the deed was on the condition above expressed. Parol evidence tending to show that it was understood that the deed was to be redelivered to the grantor upon the nonperformance of the condition by the grantee does not violate the rule that parol evidence cannot be introduced to defeat the deed. The parol evidence does not have the effect of ingrafting a condition on the deed, but merely shows that the deed was never to become operative unless the purchase price was paid. It was placed in the hands of a third party, subject to recall toy the grantor if the purchase price was not paid according to the tenor or effect of the deed. The grantee never finished paying for the lots. It is true that the grantee made an initial payment, but, according to the testimony of the grantor, the accrued rentals and the damage to the property while in possession of the grantee amounted to more than the initial payment. However, if we are correct in holding that the deed was placed in escrow upon the condition that it did not become operative until the balance of the purchase price was paid, the grantee acquired no interest of any land in the property, because she did not pay any of the balance of the purchase price, and her rights under the contract became forfeited for failure to make such payments. It is true that the grantee was in possession of the lots at the time the improvements were made, but the general rule is that there must be some element of title besides mere possession to bring the materialman within the provisions of our statute.

It is true that a contract in writing was entered into between the parties on the 28th day of February, 1926, and that its terms were changed when the deed was executed and placed in escrow on March 9, 1926; but it is well settled in this State that parties to a written contract may, subsequent to its execution, modify it by a parol agreement. Cook v. Cane, 163 Ark. 407, 260 S. W. 49. And, since a written contract may be changed or modified by a subsequent parol agreement, it was entirely competent for the parties to agree verbally to a modified or substituted performance. Malley v. Quinn, 132 Minn. 254, 156 N. W. 263.

It follows that the decree must be affirmed.


text:
    Mays v. Ritchie Grocer Company.
    Opinion delivered April 30, 1928.

      T. W. Hardy and J. P. Machen, for appellant.

      T. J. Gaughcm, J. T. Sifford, J. E. Gcmghcm and E. E. Godwin, for appellee.
   Hart, C. J.,

(after stating the facts). The main ground relied upon for a reversal of the judgment is that the court erred in giving an instruction asked by the defendant, which reads as follows:

“You are instructed that the fact that defendant’s driver permitted the motor truck to continue to run while he was delivering packages or merchandise in the store cannot be considered by you as an element of negligence that will entitle plaintiff to recover damages from the defendant. ’ ’

Under % 7425 of Crawford & Moses’ Digest it is made unlawful to leave a motor vehicle without an attendant, upon any public highway, without shutting off entirely the ¡motor, engines or engine. The section provides that any person violating this provision shall be fined in any sum not exceeding $25.

We are of the opinion that the court erred in giving the instruction above set forth. The general rule in this State is that, in an action for personal injuries, while the failure of a defendant to perform a duty imposed upon him by statute is evidence of negligence on his part, nevertheless such negligent conduct, in the absence of evidence showing it to have been the proximate cause of the injury complained of, furnishes no legal ground of complaint. Bain v. Fort Smith Light & Traction Co., 116 Ark. 125, 172 S. W. 843, L. R. A. 1915B, 1021; Ward v. Fort Smith Light & Traction Co., 123 Ark. 548, 185 S. W. 1085; and Temple v. Walker, 127 Ark. 279, 192 S. W. 200.

It is also the general rule in this State that, in order to warrant a finding that negligence is the proximate cause of an injury, it must appear that the injury was the actual and probable consequence of the negligence, and that it ought to have been foreseen in the light of the attending circumstances. Meeks v. Graysonia, Nashville & Ashdown Rd. Co., 168 Ark. 966, 272 S. W. 360.

This court has also held that, to warrant a finding that negligence was the proximate cause of the injury, it is not necessary that the particular injury complained of should have been foreseen. If the act or omission is one which the party ought, in the exercise of ordinary care, to have anticipated as likely to result in the injury of others, it is liable for an injury proximately resulting therefrom, though it might not have foreseen the particular injury which did occur. Standard Pipe Line Co., Inc., v. Dillon, 174 Ark. 708, 296 S. W. 52. In that case it was also held that whether defendant’s negligence was the proximate cause of the injury sued for is ordinarily a question to be determined by the jury.

In the application of these well-settled principles of law, we think that the court erred in telling the jury as a matter of law that the fact that the defendant’s driver permitted the engine of the motor truck to run while he was delivering groceries could not be considered as an element of negligence entitling the plaintiff to recover damages from the defendant. This was one of the facts in the case which the jury had a right to consider, along with the other facts and circumstances in the case, in determining the negligence or non-negligence of the defendant. The instruction as given tended to confuse and mislead the jury by withdrawing from their consideration a material fact in the ease. Under the evidence introduced, the jury had a right to consider the fact that the defendant’s driver left the engine of his motor truck running while he was delivering groceries, in determining whether the defendant was guilty of negligence in starting the motor truck without finding that the child was in front of it. We do not mean to say that the leaving of the engine of the motor truck running in violation of the statute constituted negligence per se, under the circumstances, 'but this was a fact to be considered by the jury along with the other facts and circumstances in determining whether the conduct of the defendant’s driver in not seeing the child before starting the truck was negligent.

Therefore the judgment will be reversed, and the cause will be remanded for a new trial.


text:
    Whitener v. Purifoy.
    Opinion delivered April 30, 1928.

      J. T. Richardson, for appellant.

      John L. McClellan, for appellee.
   Smith, J.

Appellee obtained a decree in the court below enforcing a mechanic’s lien against a building owned by appellant and the acre of land upon which the building stands. For the reversal of this decree it is insisted that the lien claimant did not, within ninety days after the building material had been furnished, file with the circuit clerk, as required by § 6922, C. & M. Digest, “a just and true account of the demand due or owing to him, * * * and containing a correct description of the property to be charged with said lien, verified by affidavit. ’ ’

The affidavit was dated and filed December 28, 1925, and the account, which was verified, showed that one brick-trowel had been furnished under date of 10-1-15, and that six sheets iron roofing had been furnished under date of 10-20-25. Plaintiff had previously furnished a bill for material under a date more than ninety days prior to the date of the affidavit, but the two items above-mentioned were furnished within the ninety days, and, as these items were a part of the material furnished, the affidavit filed sufficed to bring the entire demand within the provisions of the statute, as it has been many times held that the affidavit is filed within the time required by law if it is filed within ninety days of the date of the last item on the account.

In the case of Ferguson Lbr. Co. v. Scriber, 162 Ark. 349, 258 S. W. 353, all the items of the account had been furnished more than ninety days before the filing of the statutory affidavit, except some cement, which was furnished to put around a leaking flue. We held that, as the cement had been furnished within the ninety days, the affidavit was filed in apt time. In so holding we said: /‘The statute contemplates that the items will bear different dates; in other words, that there will be items of debit and credit, and the requirement of the statute is that, within ninety days of the date of the last item debited, the account shall be filed” (Citing cases).

The affidavit described the house into which the materials went as being in the southwest quarter of the northwest quarter section 3, township 8 south, range 15 west, and the southeast quarter of the northeast quarter section 4, township 8 south, range 15' west, in Dallas County, Arkansas, and the identical description was employed in the original complaint, but, before the final submission of the cause, the complaint was amended to describe, by metes and bounds, the acre of land upon which the house was located and against which the lien was claimed.

The two 40-acre tracts of lands described in the affidavit and the original complaint, although in different sections, are adjacent, and together comprise defendant’s farm. The amendment to the complaint shows the location of the house on the southwest quarter of the northwest quarter section 3, township 8 south, range 15 west, but, as there is only one dwelling-house on the land, there can be no uncertainty as to the house upon which the lien is claimed.

Appellant cites and relies upon the case of Arkmo Lbr. Co. v. Cantrell, 159 Ark. 445, 252 S. W. 901, as sustaining his contention that the affidavit is not sufficiently definite in its description of the property to be charged with the lien to comply with the statute defining the practice for the enforcement of the lien. In that case materials had been furnished which had ¡been used in the repair of several of a large number of house's on a plantation consisting of 1,380 acres, and the affidavit mentioned the 1,380-acre tract as a description of the property to be charged with said lien, and it was the opinion of the majority that the description employed was too indefinite. However, the writer of that opinion was of the contrary opinion, and quoted the statement of the law appearing in 27 Cyc. 159 as expressing his view and as sustaining the lien claimant’s contention. The statement of the law quoted in that opinion from 27 Cyc. 159 reappears as § 266 of the chapter on 'Mechanics’ Liens in 40 C. J. 222, in substantially the same language, which is as follows:

“As a general rule, the fact that the claim or statement described more land than subject to the lien does not defeat the lien as to the land properly subject thereto, if there is no fraudulent intent and no one is injured thereby. Some courts hold that, where the tract on which the improvement is erected is of greater area than the statute allows to be subjected to the lien, a claim or statement describing the entire tract, without • specifically describing a portion thereof which is of the permitted area, is sufficient, as in such case it is for the court to decide what portion of the land is to be subjected to the lien; but other courts hold that, under such eircurn-stances, the claim or statement must describe the portion of the tract upon which the lien is to he enforced.”

In the note to the text quoted, where numerous cases are cited as supporting what is said to be the majority rule, the Arkmo Lumber Company case, supra, is cited as among’ the minority following the requirement of a definite description as. a prerequisite to the adjudication of a lien. The majority, however, did not disapprove the rule as stated in 27 Cyc., but were of the opinion that the description there employed was so indefinite and uncertain, under the facts there stated, as not to come within the rule there announced. Speaking for the majority in the Arkmo Lumber Company case the writer there said:

“The majority does not mean to say that either the acre of land on which the lien is sought, or the building thereon, must necessarily be described in any particular form. All that is essential is that the acre of land or the building be designated in such language as will afford information concerning the situation of the property to be charged with the lien. Of course, if the building be described so as to properly designate its location, this is sufficient, for the statute itself fixes the quantity of land to be charged. ’ ’

The leading case holding that the affidavit for the lien must correctly and accurately describe the particular land upon which the lien is claimed is that of Ransom v. Sheehan, 78 Mo. 668, which case was cited, among others, in our Arkmo Lumber Company case supra. It was there held by the Supreme Court of Missouri that the affidavit for the lien was insufficient in that case, because it was “impractical, if not impossible, to determine from it the acre of ground to be impressed with the intended lien.” But it was said in the case of Powers & Boyd Cornice, etc., Co. v. Muir, 146 Mo. App. 36, 123 S. W. 490, that this case has practically lost its force as a controlling decision by the criticisms to which it was subjected by later decisions of the Supreme 'Court of Missouri and by other courts which had refused to follow it, and, as was there said, “* * * the life of the Ransom-Sheehan case is. practically destroyed, and what Judge Bond (in 172 Mo. 588, 73 S. W. 137) calls the ‘point in decision’ is so limited as hardly likely to apply to any other case — certainly not to the ease at bar.”

In the case of Ferguson Lbr. Co. v. Scriber, supra, the attempt to describe with exact certainty the portion of a block in a city npon which a barn was located, in the repair of which the plaintiff’s materials had been used, resulted in the description in the affidavit of a portion of the block which was in fact vacant, but we held the affidavit to be sufficient, notwithstanding that fact, and in so holding we said:

“The description of the land here employed was inaccurate, but it was not misleading. Its defect was that, in attempting to describe the land with exact but unnecessary particularity, a mistake was made, but no one could be, or was, misled by it. The barn was a large structure, and was the only building on the lot, and no one could have believed that the materialman was claiming a lien on the part of the lot only on which there was no building of any kind into the construction of which his material had gone, and was claiming no lien on the land on which the building itself stood.”

So here we think no one could be misled as to the building upon which the lien was claimed, and before the trial the complaint was so amended by furnishing the exact description that a decree could be and was rendered against the acre of land upon which the building stood.

We conclude therefore that the affidavit was sufficient, and, as it was made within the time required by the statute, the decree of the court below must be affirmed, and it is so ordered.