author: ■Smith, J.

text:
    St. Louis-San Francisco Railway Company v. Smith.
    Opinion delivered October 6, 1930.

      E. T. Miller and King, Mahajfey, Wheeler <& Bryson, for appellant.

      Sizer $ Gardner and John E. Harris, for appellee.
   ■Smith, J.

This is a suit brought under the Federal Employers ’ Liability Act, to recover damages for the alleged negligent killing of appellee’s intestate. In the opinion on the former appeal, reported in 179 Ark. 1015, a narration of the facts will be found, with a statement of the law governing the case, and no useful purpose would be served by a review of either the law or the evidence, and only such portions of the testimony will be reviewed as are necessary to determine the questions raised on this appeal which were not decided on the first appeal.

It was there adjudged that the verdict and the judgment thereon were without substantial testimony to support them, and that decision is, of course, the law of this case; and the judgment recovered on the remand of the cause must be reversed unless additional substantial testimony was offered which did not appear in the first trial tending to show liability.

The suit was prosecuted upon the theory that deceased and W. O. Rhodes, who were both brakemen employed in the operation of one of appellant’s freight trains, were about to make a “kick switch.’’ The portion of the train, then in motion consisted of an engine, three cars and a caiboose, and both deceased and Bhodes were riding on the oabodse preparatory to making the kick, and deceased went from one end of the caboose to the other to uncouple it from the engine and the three cars, under the orders of the conductor in charge of the train, and, while so engaged, Bhodes, while standing on the steps of the caboose at the opposite end from deceased on the engineer ’s side, negligently, and without seeing deceased, and without giving him warning that he was about to do so, gave the engineer the kick signal, which resulted in the engineer kicking the caboose, and that this unexpected acceleration of the movement of the train caused deceased to lose his balance and fall between the caboose and the cars from which the caboose had been uncoupled, and to fall on and across the track, and before he could rescue himself from this perilous position he was run over and killed by the cars which were following the caboose.

The train was being pushed by the engine, with the caboose in front, and the testimony shows that the kick switch was made by accelerating the movement of the train, uncoupling- the caiboose from the portion of the train following- it, and then stopping- the engine, or reducing its. speed, so that the uncoupled caboose, of its own momentum, would run at a faster speed than the remainder of the train, and would thus' run to the point where it was desired to stop it, and that the caiboose would be stopped by another brakeman by means of the hand brake on the caboose.

The testimony shows that it was the duty of deceased to give the kick signal, pursuant to which the speed of the train would be accelerated and also to give the stop signal, which was the direction to the engineer to slow or stop the engine. This was true because deceased only was in position to know when the caboose had been uncoupled.

The testimony upon this question is not substantially different from that on the former appeal, which we held to be insufficient to show that there had 'been any negligence on the part of any other employee in making the kick switch or, if so, that this negligence had been the proximate .cause of the .injury, the plaintiff being unaided by any presumption of negligence in cases arising under the Federal statute under the authority of which the case was prosecuted.

The engineer testified at the trial from which this appeal comes that two brakemen (deceased and Rhodes) were engaged in giving the kick signal, and that he received this signal from both at about the same time, and that he obeyed the signal in the usual and ordinary manner, and that he gave the same testimony on the former trial. Both the engineer and Rhodes testified that there was no violent or unusual or unexpected movement of the train, and it is certain that deceased knew the movement of the train about to be made, for he performed the indispensable service of uncoupling the caboose, without which action the kick switch could net have been made, and iff deceased gave the signal for the kick switch it is immaterial that Rhodes also gave it at the same time. But, however this may be, there is no more testimony in the present record than there was in the former one that this was the proximate cause of deceased’s death, and this question is concluded by that decision.

It is insisted, however, that the present record presents the question of discovered peril, which was absent in the former record. In reply to this insistence, it may be said that the pleadings allege no such cause of action, and no instruction submitted that issue to the jury. Moreover, the testimony did not warrant the submission of that issue to the jury.

The undisputed testimony shows that all persons concerned understood perfectly the movement of the train which the conductor had ordered, what its purpose was, and how it was to be accomplished. It was deceased’s duty, after ordering the speed of the train to be accelerated by giving the kick signal, and after unooupling the caboose from the remainder of the train, to throw the switch to the side track, to open that track for the oars from which the caboose had been uncoupled to enter the side track, and it was necessary for him to go to the switch stand to discharge that duty. He could have done this iby leaving the caboose after uncoupling it and walking to the switch, qr he could have ridden the caboose until it had reached a point on the main track opposite the switch, and then have stepped off. It was largely because the testimony was silent on this question that we held on the former appeal that there was no sufficient showing, unaided by any presumption, that the negligence of Bhodes, if any, was the proximate cause of deceased’s death. The present record is equally silent. It is undisputed that all the employees knew that when the kick signal was given the speed of the train would b.e accelerated. This was the purpose of the signal, and that this speed would be continued until, in the judgment of 'the brakeman ordering the kick, sufficient momentum had been attained to carry the caboose to the place desired on the track where it was then running. When, this had been done, a stop signal would be given, which would direct the engineer to slow down or stop the engine. It was the duty of deceased to give this stop signal, and he never gave it. It was therefore not the duty of the engineer to stop the engine or slow down its movement in the absence of a stop signal, unless he had discovered that, from some cause — any cause — deceased was in a position of peril. It is not insisted that the engineer saw the deceased in a position of peril. The insistence is that the light made by the lantern which deceased carried (the time was between two and three a. m.) disappeared from the view of the engineer, and that this was itself, a signal for an emergency stop', and that if a stop of that kind had been made, deceased might not have been run down by the cars which were following the caboose at a slower speed. Without stopping to determine whether it would ordinarily have been the duty of the engineer to make an emergency stop upon the disappearance of deceased’s light, in view of the fact that the signal light of Rhodes had not disappeared from the view off the engineer, it may he said that the engineer stopped the train promptly when he received the stop signal from Rhodes, but deceased had then been run over by the trucks of the first car following after the caboose and those on the front end of the second one. Rhodes testified that he gave the stop signal because deceased had not done so, and that it was necessary to give this signal to perfect the kick, but that he did not then know where deceased was or what had become of him. The speed of the train was never more than ten or twelve miles an hour, and the engineer did not run more than two-car lengths between the time the first signal to make the kick was given and the time when Rhodes gave the stop signal. Between the giving of these signals deceased was killed, and the testimony does not show that the engineer knew, or had any reason to believe, that deceased was in peril during that interval. It is true his light had disappeared from the engineer’s view, but that of Rhodes had not. The engineer knew it was the deceased’s duty to throw the switch, and if he had got off the caboose for that purpose after giving the kick signal the light might then have disappeared from the engineer’s vision.

There was testimony to the effect that the ballast between the rails had been roughed up for a short distance near the place where deceased’s body was found, but if it be assumed that this was done by deceased’s body it was not shown how he got there, and he could not have been seen by the engineer because of the presence of the cars between the caboose and the engine.

There was, therefore, no issue of discovered peril in the case, even though that cause of action had been alleged — and it was not — nor was it, as we have said, submitted to the jury.

There appears, therefore, to be no additional substantial testimony not offered at the first trial, and, as we have held that it was not sufficient to carry the case to the jury, and as it further appears that the case has now been fully developed, the judgment will be reversed and the cause dismissed.

Humphreys, J., dissents.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Hawkins v. Faubel.
    Opinion delivered October 6, 1930.

      L. P. Biggs, O. M. Young, Beaumont & Beaumont, Floyd Sharp, John A. Vick and Hogue <d> Burney, for appellant.

      H. M. Jacoway and Lee Miles, for appellee.
   Smith, J.

L. M. Hawkins, doing business as the Hawkins Lumber Company, brought this suit to enforce a materialman’s lien against certain property in the city of Little Bock owned by appellee John Faubel, and certain other persons filed interventions in that suit in which they sought to enforce liens upon the same property as mechanics or materialmen.

The facts out of which the litigation arose, as we find them to be — land there is but little conflict in the testimony — are as follows: John Faubel owned a vacant building in the city of Little Bock. Neal Brasher and H. V. Bennett, who had organized a corporation known as the Mid-South Finance & Investment Company, desired to open what they called a night club, and had caused plans adapted to this business to be prepared by an architect. Aj lease contract was made for the Faulbel property, beginning July 1, 1929, and extending for five years, at the rental of $250 per month, to be paid monthly in advance, and it was found necessary to alter the architect’s plans to adjust them to the Faulbel property. A brother of Faubel, who represented him in the negotiations leading up to the execution of the lease, testified that Bennett represented to him that certain alterations and repairs would be required to adapt the building to the use proposed, and that the Mid-Houth Finance & Investment Company, hereinafter referred to as the company, had $18,000 in cash to be used for that purpose and to launch and establish the business upon which the company proposed to. enter.

A written contract of lease was executed, which contained the following clause: “Lessee agrees to place said premises in a good state of repair and to overhaul the same at a cost including equipment of not less than twelve thousand dollars ($12,000), the same to be done in keeping and according to plans furnished by Ray Burks, ’ ’ (the architect).

Faubel’s brother did not inquire what part of the $12,000 would be expended for repairs, as distinguished from club equipment, and the purpose of the clause was to consent to the repairs being made.

None of the mechanics or materialmen had any communication with Faubel, the owner, or with his brother, and all the work was completed and all the materials furnished not later than October 20, 1929', and the lease was not placed of record until October 29, 1929.

The court below held that no right to a lien was shown against Faubel’s interest in the property, but that the plaintiff and the interveners were entitled to a lien against the leasehold estate of the company, and, after rendering judgment against the company for the amounts of the respective demands, it was ordered that the companv’s leasehold interest he foreclosed and sold if those demands were not paid within the time there limited, and the lien claimants have appealed, and in their brief they state the issue to be whether they are entitled to liens upon the fee interest of Faubel under the lease from him to the company.

It is insisted that the right to have these liens declared is established by the opinions of this court in the cases of Whitcomb v. Gans, 90 Ark. 469, 119 S. W. 676, and Wildwood Amusement Company v. Stout Lbr. Co., 178 Ark. 977, 12 S. W. (2d) 911.

We do not think so. In the Gans case the lease provided “said Mrs. Dunldin (the lessee) will make improvements and repairs on the premises costing not less than four hundred ($400) dollars, for which the said Mrs. Gans (the lessor) agrees to reimburse the said Mrs. Dunldin by allowance in rent at the rate of forty ($40) dollars per month for the first ten months of this agreement. ’ ’

In construing this contract the court there said: “It will be observed that appellee (Gans) did not merely consent for Mrs. Dunldin to make improvements at her oiwn expense and for her own enjoyment, but bound Mrs. Dunldin by the contract to make improvements to cost at least $400', and obligated herself to pay for same by crediting' that amount on the rent. In other words, Mrs. Dunldin was to make the improvements and advance the money to pay for same, but was tu be reimbursed out of the rents.”

Under the contract as thus construed the court held that a lien existed for the value of the improvements made. But it was also there said: “We need not go so far as to hold that a lessor may make his property subject to lien merely by consenting for the lessee to make improvements. ’ ’

The question there reserved is the very question now presented for decision.

The case of Wildwood Amusement Co. v. Stout Lbr. Co., supra, did not decide the question reserved in the case of Whitcomb v. Cans. In the Wildwood Amusement Company case the facts were that the amusement company had acquired a lease by assignment, which it contracted to> sell to' Stell & Chapman. The contract of sale obligated the purchasers to erect a dancing pavilion, and to make certain expenditures for other purposes. It was there said: “The title to the whole property was retained in appellant, including all improvements to be erected on the lease by Stell & Chapman, the effect of which was to constitute Stell & Chapman, the agents of the Wildwood Amusement Company for this purpose, as it required them to make these improvements to their property, and which was to remain their property until all the purchase money notes had been paid in full. Under these conditions we think it would have been no different had the Wildwood Amusement Company itself erected these improvements before the sale and required the purchasers to pay therefor in the contract of sale.This court has held that, where property is leased under a contract 'with the lessee to make certain improvements, to be paid by the lessor, the property itself is subject to the lien for materials furnished,” (Citing Whitcomb v. Cans, supra, and other Arkansas cases).

Respective counsel have cited and reviewed a number of cases from other jurisdictions, under the apparent authority of some of which the appellant lien claimants would be entitled to a lien, while other cases cited are to the contrary effect. We do not review or attempt to distinguish these cases, as all of them turn upon the construction of the various statutes under which the liens were claimed.

After reviewing1 a number of these cases counsel for appellants say that “we agree that in this State the lien is effective only when the contract is made with the owner, or his agent, mentioned in § 6096, C. & M. Digest,” the statute under which the right to a lien is claimed.

We think counsel are correct in this admission, and that it is decisive of this case. There was no contract between the lien claimants and Faulbel, or his agent, whereby the demands here sued for were incurred. Faubel’-s brother testified that he made no inquiry as to the part of the $12,000 which would be expended for repairs, or the ¡part to be expended for clulb equipment, and the lease is silent on this subject. Its provisions left the lessees free to distribute the expenditures between the two items as they pleased, if,- indeed, they made the expenditures at all, and there was no provision that even the portion spent for repairs should be repaid by deductions from the rent, as was made in the case of Whitcomb v. Gans, supra. Faulbel’s brother testified that the repairs themselves contemplated by the architect’s plans served only to adapt the building to the peculiar use which the company intended to make of it, and that when the company defaulted in the payment of the rent, as it did do, a considerable expenditure would have been necessary to restore the building so as to adapt it to ordinary uses.

We now decide the question reserved-in the case of Whitcomb v. Gans, supra, and we hold that the lessor does not make his property subject to lien merely by consenting for the lessee to- make improvements. This view accords with the reasons upon which the decisions were based in the following cases: Langston v. Matthews & Lawton, 117 Ark. 628, 173 S. W. 397 ; Daly v. Arkadelphia Milling Co., 126 Ark. 305, 189 S. W. 1053 ; Davis v. Osceola Lbr. Co., 168 Ark. 584, 270 S. W. 960 ; Fine v. Dyke Bros., 175 Ark. 572, 300 S. W. 375, 58 A. L. R. 907 ; Morrilton Lbr. Co. v. Groom, 176 Ark. 520, 3 S. W. (2d) 293. This view also accords with the general rule where there is no statute making the owner liable who merely consents that the improvement shall be made: Sections 1277,1278 and 1280, Jones on Liens (3d ed.); Morrow v. Merritt, 16 Utah 412, 52 Pac. 667 ; Schrage v. Miller, 44 Nev. 818, 62 N. W. 1091 ; Knapp v. Brown, 45 N. Y. 207.

The decree of the court below is correct, and it is therefore affirmed.


author: Humphreys, J.

text:
    Nicholas v. State.
    Opinion delivered October 6, 1930.

      Robert L. Rogers, for appellant.

      Hal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   Humphreys, J.

Appellant was indicted in the circuit court of Pulaski County for the crime of murder in the first deg'ree for killing- Fred Gembler on February 28, 1930, in said county, and, upon a trial of the cause, was convicted of the crime' of voluntary manslaughter and was adjudged to serve a term of three years in the State Penitentiary as a punishment therefor, from which judgment an appeal has been duly prosecuted to this court.

Appellant’s first assignment of error in the trial of the cause is that the prosecuting attorney was allowed, on cross-examination of his character witness, to interrogate concerning’ certain reprehensible acts of appellant. The cross-interrogatories, had they been answered in the affirmative, would have shown that appellant was violent, quarrelsome and overbearing, instead of peaceable and law-abiding, as testified to by the character witnesses. The effect of affirmative answers would have been to reflect on the credibility of the character witnesses, and they were admissible for that purpose under the rule of evidence announced in the case of Woodard v. State, 143 Ark. 404, 226 S. W. 124, and reiterated in the case of Bridges v. State, 176 Ark. 760, 4 S. W. (2d) 12. In the instant case, however, the cross-interrogatories were answered in the negative, and, had the questions been improper, the negative answers would necessarily have eliminated any prejudice to appellant. There is nothing in the record to show that the cross questions were propounded by the prosecuting attorney to cast reflections by innuendo upon appellant. So far as the record shows,.the questions were asked by him in perfect good faith.

Appellant’s next assignment of error is that the prosecuting attorney was allowed to introduce as an exhibit to the .jury a picture of the deceased taken immediately after his death, and before his removal from the scene'of the tragedy. It is argued that, because this picture showed the awful gun shot wound in all its gruesomeness inflicted upon the deceased by appellant, it tended to arouse the passions of the jury, and thereby prevent a fair and impartial trial. The picture was nothing more than a description of the fatal wounds received by deceased at the hands of appellant. The character of the wound inflicted upon deceased by one charged with his murder is always admissible in evidence, and we know of no rule limiting- the description thereof to word of month. No authority is cited by appellant in support of his contention that the character of the wound may not be shown by a genuine photog-raph. We do not think the most accurate method of reflecting a truth should be eliminated, but, .just to the contrary, such a method should be approved and accepted.

Appellant’s next assignment of error is that the prosecuting attorney was permitted, over his objection, to ask certain witnesses of appellant whether they talked to appellant’s lawyer and how often they had done so. These questions were propounded to witnesses, Sammons and Simons, and appellant argues that the purpose of asking them was to impress upon the jury that some “deep laid plot” was in process of creation, without evidence to support it. There is nothing in the record reflecting such a purpose, and we think a more reasonable inference would be that the questions were asked to ascertain whether witnesses were interested in the acquittal of appellant. A witness’ testimony is frequently weighed in the light of his interest in a case and properly so. This would be one way of ascertaining whether a witness is disinterested or whether specially interested. We do not think any prejudice resulted to appellant on account of the questions propounded to these witnesses.

Appellant’s last assignment of error is that the court erred in refusing to give his requested instructions num-. bered 4, 5 and 6.

Requested instruction No. 4 related to the law of self-defense which was fully covered by the instructions given by the court.

Requested instruction No. 5 related to the manner of weighing the testimony of appellant himself. It was not error to refuse to give the instruction. The better practice is “to allow him to .take his place along with all other witnesses under the general charge relative to the credibility and weight to be attached to their testimony. ’ ’ Smith v. State, 172 Ark. 156, 287 S. W. 1026.

Requested instruction number 6 related to the difference in the size and strength of the deceased and appellant, as tending to show that there was reasonable cause for fear or injury on appellant’s part. Although evidence relative to the difference in their size and strength was properly admitted, the rule is that, although the jury may consider these facts for such purpose, it is not proper for the court to instruct that they must consider such disparity. "Wharton on Homicide, 3d ed. p. 449.

No error appearing, the judgment is affirmed.


author: Kirby, J.,

text:
    St. Louis-San Francisco Railway Company v. Crick.
    Opinion delivered October 6, 1930.
   Kirby, J.,

(after stating the facts). Two errors are assigned for reversal of the judgment, first, for want of proper parties, it being insisted that the mother of the deceased, appellee, was not properly appointed administratrix and not entitled to bring suit; and that the testimony was insufficient to support the verdict.

The statute provides to whom letters of administration may be granted for the survival of causes of action for damages caused by the wrongful act, neglect or default of another, and that such actions shall be brought in the name of the personal representative of such deceased person; such personal representative or administrator being entitled to recover all damages resulting from the wrongful death of the deceased both for the benefit of his estate and the next of kin. Secs. 7-11 and 1074-75, C. & M. Digest ; Southwestern Gas & Electric Co. v. Godfrey, 178 Ark. 103, 10 S. W. (2d) 894.

Neither is there any merit in the contention that the testimony is insufficient to support the verdict. In St. L. I. M. & S. R. Co. v. Gibson, 107 Ark. 431, 155 S. W. 510, this court, in construing* the lookout statute, § 8568, O. & M. Digest, relative to injuries to persons, upon which this suit1 is based, referred to the decision in Central Ry. Co. v. Lindley, 105 Ark. 294, 151 S. W. 246, construing the same statute relative to the duty to keep a lookout for property upon tracks, said: “We think the construction there placed upon the act applies to persons alike, and that the railroad company now owes the .same duty to keep a lookout to avoid injuring the trespasser upon its tracks, and that, upon proof of injury to such person by the operation of its trains under such circumstances as to raise a reasonable inference that the dang’er mi-g’ht have been discovered and the injury avoided if a lookout had been kept, a prima facie case is made, and the burden of proof then devolves upon the railroad company to show that a proper lookout was kept as required by the statute, and that it used ordinary care to prevent the injury to the person after his discovery in a perilous position in order to escape liability for such injury.” See also C. R. I. & P. Ry. Co. v. Bryant, 110 Ark. 444, 162 S. W. 51 ; Ib. v. Gunn, 112 Ark. 401, 166 S. W. 568, Ann. Cas. 1916E, 648 ; Ft. Smith L. & T. Co. v. Phillips, 136 Ark. 310, 266 S. W. 453 ; Kelly v. DeQueen & Eastern Ry. Co., 174 Ark. 1000, 298 S. W. 347.

It is tine that no eyewitness testified about the injury to the deceased, the railroad company not introducing any testimony of the operatives of its train, but Ihe testimony adduced shows that the body of deceased was found upon the right-of-way and within a few feet of the track of appellant with the skull crushed in such a manner as would have been the result had he have been struck by certain parts of the engine (the cylinder head or the “monkey motion” outside the drivers) of the train, and his .shoulder likewise broken and crushed with black oil smeared upon the hair and the clothing’ on the shoulder, the kind of oil used in the operation of the engines of appellant, which would have brushed off the machinery when it had come in contact with the body of deceased. The jury could have found from these facts established, and the reasonable and probable inference therefrom, that the deceased was struck and killed by the train.

The testimony also discloses that the trains passing along this straight track were equipped with powerful headlights which would have enabled the operatives to see the deceased on or near the track for 1,500 feet had a lookout been kept, and that the train could have been stopped within 500 feet operating at the speed it was traveling under the “slow orders,” in ample time to prevent the striking and killing of deceased. Proof of the injury under such circumstances as to raise a reasonable inference that the danger might have been discovered and the injury avoided, if a proper lookout had been kept and reasonable care exercised after the discovery of the peril to prevent the injury, made a prima facie case of liability devolving the burden upon the railroad company to show that a proper lookout was kept as required by the statute. This burden was in no wise attempted to be discharged, and the prima facie case warranted the jury in finding its verdict, the testimony being sufficient to support it. Mo. Pac. Rd. Co. v. Green, 172 Ark. 423, 288 S. W. 908 ; St. L. I. M. & S. R. Co. v. Hempfling, 107 Ark. 476, 156 S. W. 171 ; Ft. Smith L. & T. Co. v. Phillips, supra.

We find no error in the record, and the judgment is accordingly affirmed.


author: Kirby, J.

text:
    Murphey v. Carter.
    Opinion delivered October 6, 1930.

      June P. Wooten, for appellant.

      Bogle & Sharp, for appellee.
   Kirby, J.

This appeal is from a judgment for damages for breach of covenant of warranty in a deed conveying certain lands.

L. Gr. Murphey conveyed 314 acres of land by warranty deed in Monroe County, Arkansas, to T. C. and A. C. Carter, which had been conveyed to him on January 11, 1904, by a deed from Mrs. Emma Smith, widow of the late W. W. Smith one time member of the Supreme Court of this State. He had been the owner of all the lands except an SO^-acre tract, the east half southwest quarter, section 18, township 4 north, range 2 west, which belonged exclusively to Mrs. Smith, and had never been alienated by her prior to the conveyance to Murphey. Litigation arose about the lands between the Carters, Murphey’s grantees, and Albert J. 'Carter, Jr., who claimed to own an undivided interest therein, Murphey not being a party thereto, in which on appeal it was held by this court that Albert J. Carter was the owner of a three-eighths interest in the lands subject to a life estate of L. Gr. Murphey. For a full statement of the case see Carter v. Carter 129 Ark. 7, and additional opinion page 573, 195 S. W. 10, 1184.

L. Gr. Murphey, of whose estate appellant is executor, died March iS, 1929. Thereupon Albert J. Carter brought suit for partition of the lands according to the respective interests of the parties. Appellees admitted three-eighths interest held by Albert J. Carter in all the lands except the 80-acre tract above mentioned, and filed a cross-complaint against appellant executor for judgment because of the failure of title to the three-eighths of the lands conveyed by L. Gr. Murphey. The Carters, Murphey’s grantees, settled this suit by purchasing Albert J. Carter’s interest, paying him $4,500 for his three-eighths interest in the lands. They then brought this suit against the executor of L. Gr. Murphey for the recovery of said amount as damages for breach of his covenant of warranty, and from a judgment in their favor the executor has appealed.

The case was heard on an agreed statement of facts inciting that the decree entered by the chancery court upon the mandate from the Supreme Court in said case wrongfully adjudged Albert J. Carter to have three-eighths interest in the aforesaid 80 acres of land which had been separately owned by the widow of Judge Smith, who conveyed to L. G. Murphey. That his grantees, Carter and Carter, held uninterrupted possession of all the lands granted until the bringing- of this last suit after the death of L. G. Murphey, the life tenant. Albert J. Carter had no title or interest in the said 80-acre tract except because of the decree in the chancery court upon the mandate from the Supreme Court. The executor denied there was any breach of the covenant of warranty in L. G. Murphey’s deed as to the title to the said 80-aore tract of land, and insists that he was entitled to have the value of the life estate, held for 24 years under Murphey’s deed, deducted from the value of the fee warranted in estimating- the measure of damages for the breach of warranty in the deed to appellees for failure of title to the three-eighths interest.

Appellant insists that there was no breach of L. G. Murphey’s warranty to the 80-acre tract of land, which had been the separate property of Mrs. Emma Smith and duly conveyed to him by warranty deed; that the adverse title of Albert J. Carter was subject to the life estate of L. G. Murphey, and that the appellees, having enjoyed the life estate under a conveyance of the fee for a period of '24 years and 4 months and the value thereof exceeding the purchase, price, interest and taxes, were not entitled to recover damages; and that appellees by instituting the suit against Carter requiring him to assert a paramount title, thus inviting an eviction, were thus estopped from claiming- a breach of warranty.

The undisputed testimony shows that L. G. Murphey, of whose estate appellant is executor, owned the said 80-acre tract of land in fee at the time he conveyed the same to appellees under covenant of -warranty with the other lands conveyed; that he was not a party to the suit between Carters, appellees, Ms grantees, and Albert J. Carter, who recovered a three-eighths interest in the lands in the Smith estate according to a decree entered 'by the chancery court upon a mandate from the Supreme 'Court in the said case of Carter v. Carter. Appellees were therefore not entitled to recover the proportionate part of the money paid out to acquire the adverse title to this particular 80 acres. The title thereto was good when conveyed by his warranty deed, and failed, if at all, through no- fault of his, 'but by the wrongful adjudication of the court in a suit to which he was not a party. If the grantor Murphey was without title to the said 80-acre tract of land when his conveyance was made, appellees, his grantees, could have purchased the outstanding title without waiting to be disturbed in their possession, and recovered of the grantor the reasonable price which they fairly and necessarily paid for same, it being incumbent upon them to prove not only the amount paid, but that such payment was the reasonable value of the interest acquired. Pate v. Mitchell, 23 Ark. 591, 79 Am. Dec. 114 ; Farrell Lbr. Co. v. Dishong, 65 Ark. 103, 44 S. W. 1036.

They held and enjoyed undisturbed possession of all the lands conveyed them by Murphey until the bringing by them of this last suit against Albert J. Carter, Jr., to quiet their title thereto. They then purchased his interest, after enjoying the full use and possession of all the lands during the lifetime of their grantor under his deed, and, since there was .only a partial breach of warranty, the grantor being seized of and having conveyed an estate for life, the value of the life estate should have been deducted from the value of the fee, and the amount necessarily paid for purchasing the outstanding title in estimating the. damages for a breach of warranty. 7 E. C. L., § 87, page 1170 ; Curtis v. Brannon, 98 Tenn. 153, 38 W. 1073 ; note Aiken v. McDonald (S. C.) 49 Am. St. Rep. 817 ; Campbell v. Ry. Co., 160 Tenn. 477, 26 S. W. (2d) 141 ; Dallas Compress Co. v. Leopold, 205 Ala. 562, 88 So. 681 ; 2 Tiffany on Real Property, § 455, page 1707.

It follows that the court erred in not allowing- a deduction from the amount paid by the grantees for tbe outstanding title of tbe proportionate amount paid for tbe said 80-aere tract, tbe title to which failed because of tbe clerical misprision in the entry of tbe decrees of tbe court in a suit against appellees, bis grantees, to which he was not a party, and also, in not allowing tbe deduction from said amount paid tbe value of the life estate actually conveyed by tbe warranty deed of said L. Gr. Murphey, appellees’ grantor,

Tbe judgment is accordingly reversed, and the cause remanded for further proceedings according to the principles of equity and not inconsistent with this opinion.


author: Mehaeey, J. Smith, J.,

text:
    Ramey v. Pyles.
    Opinion delivered October 6, 1930.

      Frank C. Douglas, for appellant.

      Holland S Barham, for appellee.
   Mehaeey, J.

The appellant began this suit in the Mississippi Chancery 'Court on a note and mortgage, alleging that on the 18th day of February, 1922, Will Pyles was indebted to him in the sum of $4,232, evidenced by promissory note of that date, payable three years after date with interest at 10 per cent, per annum, and, when said interest is not paid at maturity, to become part of the principal and bear like interest; that, to secure the prompt payment of said indebtedness at maturity,'the defendant executed a certain deed of trust conveying to B. A. Lynch, as trustee for plaintiff, the following lands: lots 8 and 9, block 15, Chickasawba Addition to the town of Blytheville, Arkansas. It was alleged that the deed was duly acknowledged and filed for record, and is now of record in Mississippi County. That defendants, Will Pyles and Ada Pyles, have failed to pay, and that there is now due the sum of $4,432 with interest; that the defendant had refused to pay, and the plaintiff had a right to foreclose said property and have the same sold for the satisfaction of the indebtedness.

The defendants, Will Pyles and Ada Pyles, answered admitting that Will Pyles executed the note and deed of trust, but denied that they were indebted to plaintiff in any sum whatever. They alleged that the note and mortgage were procured by fraud of plaintiff; that the property described in the complaint constitutes their homestead; that Ada Pyles did not sign the deed of trust or note, and that it is void for that reason. They asked that the complaint be dismissed.

Ramey testified as to the indebtedness and the execution of the note and mortgage and the following is an agreed statement of facts: “That on the'18th day of February, 1922, Will Pyles was indebted to Charles Ramey in the sum of $4,232; that on said date a note and deed of trust was executed by Will Pyles on lots 8 and 9, block 15, Chickasawba Addition to the town of Blythe-ville, Arkansas, to Charles Ramey; that lots 8 and 9, block 15, of the Chickasawba Addition to the town of Blytheville, Arkansas, was on and before the said 18th day of February, 1922, and still is, the homestead of Will Pyles and Ada Pyles; that Ada Pyles is the wife of Will Pyles; that on said date the deed of trust was signed by Will Pyles, was taken to Ada Pyles for her signature, and the said Ada Pyles refused to sign said note and deed of trust.”

There was a judgment against Will Pyles on the noté for the amount sued for, and the court held that the deed of trust created no Men on the property and the petition to foreclose was dismissed for want of equity, and that the plaintiff have only personal judgment against Will Pyles.

To reverse that part of decree holding deed of trust void and dismissing the complaint as to the deed of trust, Ramey prosecutes this appeal.

The statute, with reference to conveyance or mortgage of homestead, is as follows: “No conveyance, mortgage or other instrument affecting the homestead of any married man shall be of any validity except for taxes, laborers’ and mechanics’ liens and the purchase money, unless his wife joins in the execution of such instrument and acknowledges the same.” C. & M. Digest, § 5542. This note and mortgage were executed by Will Pyles in 1922. In 1923 a curative act was passed by the Legislature which reads as follows: “That all deeds, conveyances, instruments of writing affecting or purporting'to affect the title to real estate situated in this State, which have been recorded and which have been heretofore executed, and which may hereafter be recorded, and which are defective or ineffectual by reason of section 1 of an act entitled, ‘An act to render more effectual the constitutional exemption of homesteads,’ approved March 18, 1887, be and the same and the record thereof are hereby declared as valid and effectual as though, said act had never been passed.”

It is the contention of appellant that this act of 1923 cures the defect in the execution, or rather makes effectual the deed of trust as though, the act of 1887 had never been passed. Numbers of decisions of this court are cited and relied on by appellant to sustain this contention. We do not, however, agree with this contention of the appellant. It is agreed in this case not only that the wife did not sign or acknowledge the mortgage, 'but that she absolutely refused to do so. We said in a recent case: “A curative statute is only intended to cure defects in the execution of a mortgage, and cannot in the very nature of things render valid an act which was absolutely void in the beginning. In short, if a party had never signed a mortgage or deed and it should be held that a curative act which had been passed afterwards could have the effect of making the mortgage or deed effective as far as the person who did not sign it is concerned, this would necessarily have the effect of depriving such person of his property without due process of law. * * * The right which a curative statute or healing act takes away in such case is the right in the party to avoid his contract. Such legislative acts are sustainable only because they are supposed not to operate upon the deed or contract by changing (it but upon the mode of proof.” Hall v. Mitchell, 175 Ark. 641, 1 S. W. (2d) 59.

In a more recent case this court Quoted with approval from the Hall case the following: “A curative statute is onlv intended to cure defects in'the execution of a mortgaa’e. and cannot in the very nature of things render valid an act whPh was absolutely void in the beginning. * * * The curative act in Question did not purport to cure anything’ except the defective instruments and does not purport to' render valid and effectual an act which had never been done.” Simpson v. Teftler, 176 Ark. 1093, 5 S. W. (2d) 350.

The above cases are the latest cases decided by this court on the Question involved here. The authorities were reviewed in the case, of Hall v. Mitchell, supra, and it is not necessary to again call attention to them.

It will be observed that the law at the time this mortgage was executed provided that it should not be of any validity. If it was not of any validity, it was a mere nullity. The proper execution of a note and mortgage constitutes a contract, hut if it has no validity it is not a contract and one principle of law which is thoroughly settled, is that neither the Legislature nor the courts can make contracts for parties where they have made none. In this case the wife refused to sign the mortgage, then, under the statute existing at that time, the mortgage had no validity, it was void, no contract was made, and since the parties had made no contract, the Legislature and court are without authority to make one for them.

“A contract which the law denounces as void is necessarily no contract whatever, and the acts of the parties, in an effort to create one in no wise brought about a change of their legal status. The parties and the subject-matter of the contract remain in all particulars just as they did before any act was performed in relation thereto. Of course, an action cannot be maintained for damages for the breach of a void contract. A void contract is a mere nullity. It is obligatory on neither party. It requires no disaffirmance to avoid it, and cannot be validated by ratification. A contract wholly void is void as to everybody whose rights would be affected by it if valid.” 6 R. C. L. 591.

Curative statutes, as this court has said, are intended to cure defects or irregularities. There would be some reason to hold that a curative act made valid a mortgage of the homestead where parties intended to execute the mortgage properly, where their minds met and the contract was really entered into or agreed to and there was some defect or failure in the proper execution of it, but certainly no one will contend that, the Legislature or the court can make a binding contract for the parties where they themselves have made none. No mortgagee can be injured by this because he is bound to know that a mortgage on a homestead without the wife joining the deed is of no validity, and when he takes his mortgage he either knows or can know whether the property described in the mortgage or deed of trust is the homestead. In the instant case the wife refused to sign the deed of trust and the mortgagee' knew it, he therefore knew at the time of the transaction that the deed of trust was without any validity. The decree of the chancery court is correct, and therefore affirmed.

Smith, MoHaney and Butler, JJ., dissent.

Smith, J.,

(dissenting). The chancellor did refuse to enter a decree foreclosing the deed of trust, but in a written opinion he stated that he had denied this relief upon the authority of the case of Hall v. Mitchell, 175 Ark. 641, 1 S. W. (2d) 59, which appeared to foe in conflict with the previous decisions of this court, but that he had followed the Hall case notwithstanding that fact, as it was the last declaration of the court on the subject.

An examination of our cases will confirm the justice of the chancellor’s criticism, and it would appear, therefore, not improper to inquire what rule has been adopted in this State in regard to the validity of curative acts.

The case of Sanders v. Flenniken, 172 Ark. 454, 289 S. W. 485, announces the rule which had always been consistently followed prior to the opinion in the case of Hall v. Mitchell. The Mitchell. case cited the Sanders case, and there is no intimation of any intention to overrule it or to impair its authority. There was an attempt to distinguish the two cases, but a careful reading of both will disclose the fact that they are not distinguishable.

In the original opinion in the Hall case we said: “In short, if a party had never signed a mortgage or deed, and it should be held that a curative act was passed after-wards could have the effect of making the mortgage or deed effective, as far as the person who did not sign it is concerned, this would necessarily have the effect of depriving such person of his property without due process of law.”

This is sound law. A curative act could not operate to divest the wife of any interest which she owned in the land and did not attempt to convey, hut this is not the purpose of the curative act of 1923. Its purpose is to make valid the husband’s conveyance of his own interest.

The opinion on rehearing in the Hall case shows clearly that there was no intention to overrule the Sanders case or to impair its authority, for in the opinion on rehearing we said: “'Counsel for appellant earnestly insist that in our original opinion we misinterpreted the effect of the decision in Sanders v. Flenniken, 172 Ark. 454, 289 S. W. 485, and that our decision in this case is opposed to the principles therein decided. We do not think so.”

Further along in the opinion on rehearing it was said: “In the Sanders case the grantors in the deed signed it, and intended to be bound by their1 act in doing so. Hence it is said the curative act applied in so far as their rights were concerned. There is a wide difference, however, between that case and the present one.”

It is just here that we were confused, and I think we should say so candidly and adhere to the Sanders case, as we said we had done, for there is no difference in the two cases in the manner of the execution of the deeds of trust. The opinion in the Sanders case recites that: “It is alleged in the complaint that the wives of the two mortgagors, Biley Sanders and Neil Sanders, did not join in the execution of the deed of trust; that the property was, at the time of the execution of the deed, the homestead of the mortgagors, and that the conveyance was absolutely void by reason of the failure of the wives to join therein,” and a demurrer was sustained to the complaint containing these allegations. There was, therefore, a failure of the wives in both the Hall and Sanders cases to sign the mortgages, and yet the curative act of 1923 was held applicable in one case, but not the other. One case or the other must be wrong'. Which is right?

The majority say we reaffirmed the doctrine of the Hall case in the later case of Simpson v. Teftler, 176 Ark. 1098, 5 S. W. (2d) 350, and therefore the Hall case was properly followed by the chancellor. This cannot be true unless we intend to overrule the earlier cases which are in conflict with the Hall ease, and there is no suggestion in the majority opinion in the instant case that we have done so or intend these last two cases to have that effect.

Certainly the case of Simpson v. Teftler, stvpra, does not have that effect. There was no question of homestead involved in that case. The curative act there held ineffective attempted to validate certain elections relating to local stock laws, and the curative act was held invalid for the reason that the elections there attempted to be validated were void, because of the lack of power to hold them. But there is no question of lack of power here. There was no lack of power on the part of Pyles to execute the mortgage or deed of trust, as will be later shown, if indeed, any discussion of that subject is necessary. That question might just as well be disposed of at this time.

In the case of Klenk v. Noble, 37 Ark. 298, it was held (to quote a headnote) that “a wife has no interest in the homestead during her husband’s life, nor vested right to a future interest, and her concurrence in its alienation is not necessary.” And in the case of Bank of Harrison v. Gibson, 60 Ark. 269, 30 S. W. 39, it was said: “'Construing the mortgage, then, as if the act of March 18, 1887, had never been passed, we have only to inquire if it would have been valid as a conveyance of the husband’s lands before the passage of that act, and the inquiry can have but one result, and that is that" the mortgage is good, that is to say between the parties to it.”

But for the act of 1887, which appears as § 5542, C. & M. Digest, there would be no question about the right . of the husband to convey his interest in lands which constituted his homestead, although the wife did not join in the conveyance to convey her own interest.

There was, prior to the passage of the act of 1887, no necessity for the wife to join the husband in the conveyance of his interest in lands constituting his homestead to give validity to that instrument, so far as it affected him. Had there been, there was no occasion or necessity for passing the act of 1887. The act imposed a requirement which did not previously exist.

When this case is stripped of its superfluities, the question which remains is just this: What is the effect of the curative act of 1923 on the mortgage of Pyles’ interest in his homestead, in the execution of which his wife did not join? In this connection, let it be remembered that the act now under consideration (act No. 80, General Acts 1923, page 43) is the identical act involved in the case of Sanders v. Flenniken, supra, where it was held to have cured the defective mortgages executed by Riley and Neil Sanders of their homestead, in the execution of which their wives did not join.

Many healing statutes or curative acts have been passed in this and in all the other States, and they have not been limited to defective conveyances of land, but have been upheld in a great variety of other cases. The validity of many conveyances, marriages, tax assessments, judicial proceedings, bond issues, and other matters (See pages 1092 to 1097 of the chapter on Constitutional Law, 12 C. J.) have ¡been established by curative acts, and the principle upon which such legislation may be 'based is well established by many decisions of this and all other courts.

The right of the General Assembly to pass legislation similar to the act of 1923 was established long before the anactment of that statute.

The concluding note of the annotater of the case of Thompson v. Randle, 45 A. L. R., pages 388-436, reads as follows: ‘ ‘ The invalidity of -a mortgage or conveyance of the homestead exemption executed by the husband alone may be cured by a subsequent act of the Legislature, no third person having acquired a vested interest in the land prior to such enactment,” and a number of Arkansas cases are cited in support of that statement of the law, to a few of which specific reference will be later made, and no case was cited holding to the contrary.

The Legislator who wrote the act of 1923 must have had before him act 172 of the Acts of 1898, page 303, and which earlier act was upheld as valid legislation in every case which came to this court to which it was applicable. In several of these cases the wife had not signed the conveyance at all.

The General Assembly, at its 1899 session, saw fit to amend the act of 1893 by an act passed March 13, 1899 (Acts 1899, page 107), which appears as § 785, Kirby’s Digest. This act contained the proviso that it should not validate any deed, mortgage or other instrument which the wife had not signed, nor should it validate any instrument then in litigation. The act of 1899, like the former legislation, was upheld, but in no case was it contended or held that the General Assembly might cure defects arising- under the act of 1887 when the wife had defectively executed a conveyance but not in those which she had not signed at all. The whole subject was treated as being within the control and discretion of the General Assembly. For subsequent legislation on this subject see § 1565, <3. & M. Digest.

The majority say, in effect, that the Legislature may pass a valid curative act to heal a defective execution of a deed or performance of an act required by previous legislation, but cannot do so when there was no attempt to comply with the law, and that, if we should so hold, the effect of that holding would be to make a contract for the parties which they did not themselves make.

I dissent from this view also. It is to be borne in mind that this is an attempt to foreclose a deed of trust, and the litigation is between the parties to that instrument. The rights of no third persons have intervened. Pyles owed money to Ramey and gave as security for its repayment the deed of trust here sought to (be foreclosed. Certainly the parties, and not the law, made that contract, and the question for decision is not whether the law can make 'a contract for the parties, but is, rather, whether the contract which they made can be enforced, or, in other words, did the curative act of 1923 make en-forcible a contract which could not be enforced while the act of 1887 was applicable to it?

In distinguishing between the validity of curative acts relating to conveyances of the homestead, and in upholding those acts where there was a defective attempt to comply with the act of 1887, and in refusing to apply the curative act where no attempt at compliance was made, the majority have departed from the test laid down by Judge Cooley, which has been so often approved by this court as to become a fixed rule of property. In his work on Constitutional Limitations (7th ed.) page 531, Judge Cooley said: “'The rule applicable to cases of this description is substantially the following: If the thing wanting, or which failed to be done, and which constitutes the defect in the proceedings, is something the necessity for which the Legislature might have dispensed with by prior statute, then it is not beyond the power of the Legislature to dispense with it by subsequent statute. And if the irregularity consists in doing some act, or in the mode or manner of doing some act, which the Legislature might have made immaterial by prior law, it is equally competent to make the same immaterial by subse,quent law.”

Certainly the General Assembly might repeal or suspend the act of 1887. It might suspend a requirement which it had imposed. It might undo what it had done. If the Legislature could impose the requirement contained in the act of 1887, might it not later dispense with that requirement?

At pages 538 et seq. of the same work Judge Cooley said: “Other cases go much; farther than this, and hold that, although the deed was originally ineffectual for the purpose of conveying the title, the healing statute may accomplish the intent of the parties by giving it effect.. At first sight these cases may seem to go beyond the mere confirmation of a contract, and to be at least technically objectionable, as depriving 'a party of property without an opportunity for trial, inasmuch as they proceed upon the assumption that the title still remained in the grantor, and that the healing act was required for the purpose of divesting him of it, and passing it over to the grantee. Apparently, therefore, there would seem to be some force to the objection that such a statute deprives a party of vested rights. But the objection is more specious than sound. If all that is wanting to a valid contract or conveyance is the observance of some legal formality, the party may have a legal right to avoid it; but this right is coupled with no equity, even though the case be such that no remedy could be afforded the other party in the courts. The right which the healing act takes away in such a case is the right in the party to avoid his contract, — a naked legal right which it is usually unjust to insist upon, and which no constitutional provision has ever designed to protect. As the point is put by Chief Justice Panker of Massachusetts (Foster v. Essex Bank, 16 Mass. 245), a party cannot have a vested right to do wrong; or, as stated by the Supreme Court of New Jersey, ‘Laws curing defects which would otherwise operate to frustrate what must be presumed to be the desire of the party affected, cannot be considered as taking away vested rights. Courts do not regard rights as vested contrary to the justice and equity of the case. ’ ’ ’

But for the case of Hall v. Mitchell, supra, the law would appear to be well settled. That .case did not overrule the Sanders case, which applied the curative act of 1923 to a conveyance of the homestead in which the wives did not join.

In the case of Sidway v. Lawson, 58 Ark. 117, 23 S. W. 648, Justice Battle states the issue involved in that case as follows: “Appellees contend that it” (the mortgage of the homestead) “was not executed in accordance with .the requirements of the act entitled ‘An act to render more effectual the constitutional exemption of homestead/ approved March 18,1887, because the wife did not ‘join in the execution’ of the same, and is, therefore, void: and appellants insists that if the contention of appellees be correct, it was validated by the act entitled ‘ An act to cure defective conveyances, acknowledgments,’ approved April 13, 1893.”

After holding that the curative act of 1803 rendered the conveyance valid, and after quoting and approving the test of the validity of curative statutes announced by Judge Cooley hereinabove quoted, Judge Battle further said: “If defective, it was because the wife did not join in its execution according to the act of March 18, 1887. That act made every instrument affecting the homestead of the husband invalid if the wife failed to join in its execution and acknowledge the same. It vested no additional interest in the wife. The husband could abandon the homestead, and it would become liable to his debts, notwithstanding the act of March 18, 1887. Pipkin v. Williams, 57 Ark. 242, 21 S. W. 433. The Legislature undertook to create no interest or estate by the act, but to prescribe the manner in which instruments affecting the homestead of a married man should be executed and acknowledged; at the same time recognizing the homestead as the husband’s, and not the wife’s, nor as the joint property of the husband and wife,” he concluded the discussion of the validity of the mortgage rendered so by the act of 1893 by saying: “It is now a valid mortgage. ’ ’

The case of Beavers v. Myar, 68 Ark. 333, 58 S. W. 40, was one in which the wife did not join in a conveyance of the homestead, executed prior to the curative act of 1893, and it was insisted that the amended curative act of 1899, repealing the act of 1893, had the effect of again rendering the conveyance invalid, but the court held (to quote tlie syllabus): “Rights vested under aet of April 13, 1893, curing execution or acknowledgment of conveyances of homesteads by married men which were defective under act of March 18,1887, were not divested by act of April 19,1899, repealing the act of 1893.”

The case of Hanson v. Brown, 139 Ark. 60, 213 S. W. 12, was one in which the opinion recites that Hanson executed a deed of trust and that: “His wife did not join with him in the execution of this deed of trust,” yet it was held that: ‘ ‘ The Legisláture of 1893 passed an act to cure defective conveyances and acknowledgments which were defective or ineffectual by reason of not having complied with the act of March 18, 1887, above referred to. See Acts of 1893, p. 303. This act has the effect to' validate the deed of trust from A. J. Hanson to J. T. Waller to secure an indebtedness to J. M. Waller.” This statement of the law was regarded as so well established that no cases were cited to support it.

The case of Alkire Grocery Co. v. Jackson, 66 Ark. 455, 51 S. W. 459, was also one in which the wife did not join in the execution of a conveyance of the homestead, yet it was held that the curative aet there applied cured this omission. But the cases are too numerous to review them all.

These and other cases are to the effect that the applicable curative act applies alike to conveyances which were executed by the wife defectively and to those which she did not attempt to execute at all, the point in all of them being that it is within the power and discretion of the General Assembly to suspend the operation of the act of 1887 entirely, or to do so only in certain cases, as was done by the act of 1899. The curative acts were all held valid because they were an exercise of the power of the General Assembly to suspend a statute requiring a particular execution of the conveyances which would not otherwise have been necessary to make those conveyances valid.

If the Sanders and similar cases, none of which have been expressly overruled, are to be followed, rather than the Hall ease, which did not overrule them, a decree should have been entered ordering the foreclosure of Pyles’ interest in the homestead. This would not make a contract for him; it would merely enforce a contract which he himself made.

For these reasons I dissent from the opinion and judgment of the court; and I am authorized to say that Justices McHaney and Butler concur in the views here expressed.


author: Mbhappy, J.

text:
    Murphy v. Cupp.
    Opinion delivered October 6, 1930.

      G. H. Moses, W. R. Dbnham and W. G. Rodgers, for appellant.

      Feazel $ Steel, for appellee.
   Mbhappy, J.

This suit was begun by A. B. Cupp and others against the First Baptist Church of Nashville, Arkansas, and Pat Murphy, its pastor, to restrain them from erecting a church tabernacle on lots 13, 14 and 15 in 'block 126, Nashville, Arkansas. There was a city ordinance of the city of Nashville Arkansas, reading as follows:

“Be it ordained by the council of the city of Nashville, Arkansas:

“Section I. That it being deemed in the interest of the public safety, health and morals of the city and for the protection of said city that all buildings of whatsoever character to be hereafter erected in said city and any and all alterations of buildings now or hereafter erected by any person or corporation, shall be bruit, altered or changed subject to and only when approved by the city council of said city of Nashville.
“Section II. Any owner or person erecting any buildings or making any alterations or additions to any buildings now or hereafter erected shall, before proceeding with such building, addition, alteration or change of plans of work, apply to the recorder or city clerk for a written permit to erect, alter or change any structure, regardless of material of which such building is composed; provided that any changes or alterations costing less than $100 may be made without such permit.”

The balance of the ordinance merely provides for the arrest and' punishment of persons violating its provisions.

It was alleged that the appellees had long been residents of Nashville and owned their homes on the west and south side of block 126; that the Baptist Church owned and occupied a large and commodious church building in said block facing east on Main Street; that, excepting this church, all the buildings are used exclusively for residential purposes. liiat appellees have built expensive homes in said block with a view to securing comfort and quiet therein. That the Baptist Church and its pastor, Pat Murphy, have purchased lots 13, 14 and 15 in said block with the avowed purpose of erecting thereon an open tabernacle in close proximity to appellees’ residences. That the building material is already on said lots. The tabernacle is to be 120 feet long and 70 feet wide with composition roof, set upon upright posts at intervals around the structure to support thereof. About 20 feet off the west end is to be used as a rostrum and will be boxed. The balance of said structure will be with open woven wire except from the ground to about three feet up will be wainscoting. It was alleged that the erection and operation of said tabernacle would materially interfere with the enjoyment by appellees of their homes; that they would be greatly annoyed and harassed by continuous and successive loud noises during the holding of meetings; that said noises are necessarily incidental to conducting meetings in an open tabernacle in such close proximity to their homes; that there is no parking” space around the tabernacle except the public streets surrounding the block; that a great many people will necessarily congregate at all of said public meetings, and that the stopping and starting of oars on said streets mil create loud and disturbing noises which will disturb the comfort and rest of appellees and their families, and will greatly depreciate the value of their property as homes and will render the occupation of them uncomfortable and the loud talking and speaking and singing, which are necessarily incidental to the holding of said meetings in the tabernacle, will disturb their comfort and quiet to such an extent as to be a nuisance and will cause irreparable damage to appellees in the enjoyment of their homes and in reducing the value of their property; that there is no necessity for the tabernacle at the place where it is to be built, for religious purposes, because the appellants already own a largTe and commodious church house; that it is unnecessary to erect the structure in ■ the locality close to appellees ’ homes because there are ample and more isolated places in Nashville where the tabernacle might -be built. That appellees have endeavored to persuade appellants to select a more isolated location, but they have refused all overtures in that direction; that appellants applied to the city council for permit to build the tabernacle, and that the city council refused the application; that, regardless of this, the appellants were going ahead with the construction of the building. It was further alleged that the appellees had no adequate remedy at law.

Appellants filed answer in which they admitted that they had the building described by appellees under contemplation for religious purposes, but they denied each of the statements of appellees; denied that the structure was to be used for all sorts of public speakings, concerts, shows and entertainments, but alleged that it was to be used only for religious purposes and perhaps a few public functions such as school exercises and other purposes of a dignified educational and social nature. They also said it was not to be used for any entertainments which are not had in other churches of the city, and under no circumstances was it to be used for any kind of exercises or entertainment which any reasonable person could take exceptions to; that it would not be used for other than strictly religious purposes more than two or three times a year, and then usually in the daytime; that they do not tolerate any entertainments or exercises which would not be tolerated by other churches of the city, and that they will not permit any kind of exercises or meetings except such as are dignified, moral and useful; that the object of the structure and contemplated services therein is to further improve the morals and religion of the people of the locality, just as this object is maintained by other churches in Nashville. They denied that they would materially injure appellees in any way. They alleged that the building was neither erected nor occupied and no services of any kind or use thereof had been had, and that the appellees could not in any event be entitled to any relief until the building had been occupied and used for some purpose which the law condemns as a nuisance. The Baptist Church is about a block from the Methodist and Christian churches and all of these churches are in the ■ residence section of the city. There was a decree restraining and enjoining appellants from proceeding with the construction of the tabernacle. This appeal is prosecuted to reverse the decree of the chancery court.

The character of the building, its location and dimensions aré not in dispute. In fact, there is no claim that the building itself will be a nuisance, but the controversy is as to whether the use of it, as contended by appellees will be a nuisance by decreasing the value of appellees’ property or by the annoyance and inconvenience caused by automobiles, loud preaching and singing and disturbances of this kind. A number of witnesses for appellees testified that the tabernacle would practically ruin their homes or would decrease the value of their homes very considerably.

J. S. Hopkins, a witness for appellees, testified that the tabernacle being built would decrease the value of the Cupp, Hutchinson, 'Crutchfield and Rector property; that it would be very unpleasant for appellees during meeting hours. He is the family physician of appellees, and testified that in case of sickness it would be very bad on some of them; that some of them were of a very nervous temperament. He thought it would decrease the value of the Crutchfield home 50 per cent. Did not think he could put up with the continuous fuss and nuisance they would have there during meetings, that the stopping and starting and honking of horns of automobiles used in attending the services of the tabernacle would be annoying. He testified also, however, that the starting and stopping of cars is-incidental to every church in town, and that an automobile would make as much fuss starting and stopping in front of a brick church as it would in front of a tabernacle.

T. A. Hutchinson, one of appellees, owns a home nearly west of the Baptist Church. The Rector estate has property right up against the tabernacle, suitable for residential property. Witness’ home is 75 or 80 feet from the tabernacle, and the Crutchfield home is 20 or 25 feet from the tabernacle. Witness’ home cost $10,000 five years ago. The Baptist Church is a nice, brick 'building and probably seats more people than any church in town; endeavored to get Murphy, the pastor, to build the tabernacle elsewhere, but he would not do it; attended the meeting of council when Murphy asked for permit to build the tabernacle, and Murphy at the time told the kind of entertainment the Baptist Church would indorse, anything which was moral; he mentioned a good many things they would use the building for. Witness objected to the construction of the 'building because there is more noise and confusion around a tabernacle than around a church. People do not reverence a tabernacle like they do a church, and the noise carries much further in the open air than in a church. The tabernacle would destroy the Crutchfield property. Witness testified that four years ago there was a meeting held there between the Baptist Church and Cupp’s residence where they preached two or three weeks, had music and out-of-door services; knows nothing about what the Baptist Church is going to have in the tabernacle except what Mr. Murphy said; understood they would sometime have 3 o’clock services when witness wanted to sleep. The loud noises he complained of referred to the styles of entertainment which Mr. Murphy said the tabernacle would be used for.

J. R. Hill, a real estate dealer, testified that the Cupp house cost $12,500 and was built in 1910. That he was familiar with land values in Nashville, and thought the construction of the tabernacle would impair the value of the property of appellees; thought it would impair the value of the Hutchinson property 50 per cent, and the Cupp property 33 1/3 per cent, and would almost destroy the value of the Rector estate; thought the contemplated use of the tabernacle would be very annoying, but he did not know what the Baptist congregation expected to use 'the tabernacle for.

A. B. Cupp, E. L. Crutchfield, W. A. Beauchamp, D. A. Hutchinson, W. W. Wilson, Barney Thompson and J. W. Bishop all testified to substantially the same facts with reference to the noises and damage as witness T. A. Hutchinson.

A number of witnesses testified for appellants that there would be no damage to the property or to the persons by reason of the building and use of the tabernacle. The evidence also showed that Crutchfield offered to sell a portion of his property to the Baptist Church for the purpose of .erecting a tabernacle which would have been closer to him than the one now building, and did not say anything about any objection or annoyance. The evidence showed that the appellants applied to the city council of Nashville for a permit, and that this permit was denied. It is unnecessary to set out the testimony of all the witnesses. The appellees’ witnesses testified to the noise, and that this would annoy the appellees in their homes and would decrease the value of the property. The witnesses for appellants testified that there would be no annoyance to the appellees and no decrease in the value of the property by reason of the building of the tabernacle.

Appellee’s first contention is that the ordinance is valid, and that the action of the city council in denying the permit ought to be sustained. In other words, the injunction ought to be granted if the council under a valid ordinance did not give a. permit to erect the building.

We think it wholly immaterial in this case whether the ordinance is valid or not, because, if valid, the mere refusal of a permit to erect the building by the city council would not enable private parties to maintain a suit to prevent its erection. It is generally held that a person violating a city ordinance or a State statute cannot be restrained from doing so by the courts, although the ordinance or statute might be valid. If it constitutes a. crime as this ordinance does, then the city could prosecute if the ordinance was valid and punish the person who violated it. The city itself, however, could not maintain a suit for injunction merely for violating an ordinance, but they could only do so provided the erection of the building or its use constituted a nuisance.

“The mere fact that the structures are or will be erected and maintained without the required statutory license does not make them outlaws, to be lawfully assailed and destroyed by any one, or abated at the private suit of any person. Indeed the statute does not declare them to be a nuisance in law. An equity court will not, at the suit of a private party restrain the erection of a building not in fact a nuisance, merely because its erection is forbidden by statute or ordinance.” Whitmore v. Brown, 102 Me. 47, 65 Atl. 516 ; 120 A. S. R. 454 ; Heffner v. N. Y. Taxicab Co., 130 N. Y. S. 710.
“But the mere fact that the proposed-act of the defendants is in violation of the ordinances will not enable the plaintiffs to sustain their bill. A bill in equity cannot ordinarily be sustained for the mere violation of a municipal ordinance. The threatened act o'f violence must amount to a nuisance if done.” Houlton v. Titcomb, 102 Me. 272, 66 Atl. 733, 10 L. R. A. (N. S.) 580 ; Berger v. Smith, 160 N. C. 205, 75 S. E. 1098.

If the structure or the use of it is a nuisance under the law, then a court of equity would have a right to restrain the parties whether the acts were violations of ordinances or statutes or not, and such suit could be maintained by a private person where his property rights were invaded and where the use to which the building was to be put would so interfere with the rights of others by reason of the noise as to constitute’a nuisance, or if the acts complained of decreased the value of the property or materially affected the comfort and convenience of the parties, but simply (because it is illegal or a violation of an ordinance or statute does not justify a court of equity in issuing’ a restraining’ order.

This court has said: “'Something more than the threatened commission of an offense against the law of the land is necessary to call into exercise the injunctive powers of the court. There must be some interference, actual or threatened, ¡with property rights of a pecuniary nature; but when such interferences appear, the jurisdiction of a court of equity arises, and it is not destroyed by the fact that they were accompanied by or are themselves violators of the criminal law.” State v. Vaugham, 81 Ark. 117, 981 S. W. 685, 7 L. R. A. N. S. 899, 118 Am. St. 29, 11 Ann. Cas. 277. So, if the erection and maintenance of a building are, or its use constituted, a nuisance, then it would be wholly immaterial whether the acts were in violation of law or not, so far as a suit by private persons is concerned.

The case of Bickley v. Morgan Utilities Company, Inc., 173 Ark. 1038, 294 S. W. 38, is relied on as supporting the decree in this case. The undisputed testimony in the case referred to showed that the defendants in that case were operating or intending to operate an ice factory. The building there was a 'business building, the manufacture of ice was the business to be engaged in, and the ice factory was located in a strictly residential district, and the evidence in that case also showed that the brick wall of the ice plant was within six feet of the bedroom window of one of the parties and that they left a big window on the side next to his property. There are many facts in the Bickley case which distinguish it from this case. We said in that case: “No definite rule can be given to govern all cases, but each case must depend on the particular circumstances which characterize it, and it is proper to consider the nature of the business, the kind of annoyance, the location, the surroundings, and all the attending circumstances. ’ ’ The law of nuisance is discussed at length in that case, and numbers of authorities reviewed, and it would serve no useful purpose to review them here. ‘ ‘The maxim, ‘Use your own property so as not to injure another,’ is peculiarly applicable in nuisance cases. If one does an act in itself lawful, which yet being done in that place necessarily tends to the damage of another’s property, it is a nuisance, for it is incumbent upon him to find some other place to do that act where it will be less offensive. * * * That is a nuisance which annoys and disturbs one in possession of Ms property rendering its ordinary use or occupation physically uncomfortable for him. For such annoyance and discomfort the courts of law will afford redress by giving damages against the wrongdoer, and when the causes of annoyance and discomfort are continuous, courts of equity will interfere and restrain the nuisance.” Yates v. Mo. Pac. Rd. Co., 168 Ark. 170, 269 S. W. 353, 38 A. L. R. 1434 ; Bickley v. Morgan Utilities Co., Inc., 173 Ark. 1038, 294 S. W. 38.

There are many annoyances in the very nature of things which will not be restrained. The evidence in this case shows without dispute that the tabernacle, when built, will be occupied a very short part of the time, that nothing will be done except those things tolerated by all the churches. Certainly there can be nothing in the noise of automobiles, because the undisputed evidence shows that the entire parking space about where the tabernacle is located is used all the time now, and, as one of the witnesses said, the noises made by the automobiles will not be any greater in stopping and starting at the tabernacle than they will at the church or elsewhere.

The "West Virginia court, after discussing the common law of nuisance and remedies at law, and stating that every one had a right to use his own property and do with it as he pleased, stated that his neighbor has the same right over his own property, and that from this results the rule that it is the duty of one to so use his own property as not to injure another, and the court said: “But this duty must be taken with qualifications, for in the nature of things and of society it is not reasonable that every annoyance should constitute an injury such as the law will remove or prevent. One may therefore make a reasonable use of his right though it may create some annoyance or inconvenience to his neighbor.” Powell v. Bentley, 34 W. Va. 804, 12 S. E. 1087, 12 L. R. A. 53.

In 'discussing the question of nuisance and of a livery stable constituting a nuisance, the Maryland court said: “It is true that a stable in a town is not like a slaughter house or a sty, necessarily and prima facie a nuisance. There must be places in town for keeping horses of people living in them or resorting thither; and if they do not annoy others they are both harmless and useful erections. But, on the contrary, if they are so built or kept or so used as to destroy the comfort of persons owning and occupying adjoining premises and impair their value as places of habitation, stables ■ thereby become nuisances. It cannot be denied that a livery stable in a town adjacent to buildings occupied as private residences is under any circumstances a matter of some inconvenience and annoyance; and must more or less affect the comfort of the occupants as well as diminish the value of the property for the purpose of habitation. But this is equally true of various other erections that might be mentioned which are indispensable and which do and must exist in all towns.” Bank v. Manyon, 87 Md. 68, 39 S. W. 90.

There may be some inconvenience and annoyance about a church or tabernacle in a city or town, and, if so, they would of course more or less on occasions affect the comfort of the occupants and might diminish the value of the property as residence, but certainly all will agree that church buildings and churches are indispensable in cities and towns and they are usually, if not always, in the residence districts. Factories are usually, if not always, built in the business districts. Churches are built usually in the residential districts, and the evidence in this case does not show that there will be any very great annoyance. It is urged that the noise made by automobiles will be very annoying, and that this will decrease the value of the property for residences. But the witness who testified to this admitted that near the place where the tabernacle is to be built, the parking space is already filled with automobiles; they doubtless make all the noise and cause all the inconvenience now that they will when the tabernacle is in use, so that inconvenience from the noise of automobiles is not shown to be any greater than it would 'be without the tabernacle. It is contended, however, that the loud preaching and loud singing will annoy the people. This might be some annoyance occasionally, but since the preaching and singing would be as loud in the church building as in the tabernacle building, we do not think this noise would increase the inconvenience of the persons living close to the tabernacle. It is true noises in the open air might •be heard somewhat further, but the services to be held in the tabernacle will usually be in the summer, especially the preaching and singing complained about, and in the summer time the windows of the church are all open and the singing and preaching can be heard anyway. Besides that, we think that churches and tabernacles like the one proposed to be constructed here, should be constructed, occupied and used, even if at the time of their use there is some inconvenience and annoyance. It is wholly different from an ice factory or any other factory. Every one knows that the churches are (built in cities and towns near residences, and they know that there may be some inconvenience and annoyance by the use of them,. The witnesses for appellees testified that they did not know anything about what use will be made of the structure when completed except what Mr. Murphy said, and. according to his testimony there will be no very great inconvenience, but this suit is to restrain the erection of the building, and no one claims that the building itself would be a nuisance or would damage their property or inconvenience them, therefore, if the noise and inconvenience will be such as to annoy the people, that use of the tabernacle might be restrained but certainly not the erection of the building. In other words, if the tabernacle was used for entertainments and shows and things which would be immoral and annoy the inhabitants or decrease the value of their property, this use of it might become a nuisance, and, if it does it may then be restrained, but there is no evidence in this case that anything of that kind will be done except the witnesses testified that they understood from Mr. Murphy that they would have basket ball games and other entertainments of that kind, but the evidence shows that they do not contemplate anything of the kind.

“Where the claim to relief is based upon the use which is to be made of a lawful erection, the court will ordinarily refuse to enjoin the construction or completion of the erection but in such case the defendant, if he proceeds, does so at his peril and is liable to an injunction or an action of damages if such use results in a nuisance. If a building of itself will be a nuisance, its erection may of course be enjoined.” 21 Oyc. 708.

There is in this case, as we have said, no claim that the building itself will be a nuisance, but it is the use of the building complained about.

The rule is well settled that no injunction will be issued in advance of the structure unless it be certain that the same will constitute a nuisance. The Texas court said: “That a church is not a nuisance per se would seem to be a self-evident proposition. For that reason the trial court did not err in denying the temporary writ. * * * a church building is as lawful as any other structure. It is not only lawful but essential to our Christian -.civilization, and will be given the same protection of the law as is afforded the residence for the family or the place for exercising the pursuit of one’s lawful business. It is not, however, above the law. Like any other edifice or structure, however lawful in purpose and use ordinarily, it may become unlawful. The place of its location and the time and manner of .its use may be such under the circumstances as to constitute that interference with the rights of others as to become in law a nuisance abatable as such. Whether such a condition has arisen is of course a question of fact, triable as any other fact where witnesses may be heard and a verdict had. We are not "called upon to express any views as to the applicability of the common law of nuisances to a case like this. The principles themselves are as virile as ever, but their application in a given case are necessarily affected by our changed conditions due to a complex and advanced civilization. That use which will be enjoined as a nuisance is not every hurt which is inflicted upon another, but must be an unreasonable one under all the circumstances.” Waggoner v. Floral Heights Baptist Church, 116 Texas 187, 288 S. W. 129 ; Spencer Chapel M. E. Church v. Brogan, 104 Okla. 123, 231 Pac. R. 1074.

It is common knowledge that we have community buildings all over the State, buildings near residences where educational and social gatherings are had, and there is necessarily some annoyance and inconvenience from the use of these buildings. As we have already said, churches in cities and towns are indispensable. Very few people, if any at all, would be willing to have them put outside of the residential districts in cities and towns, and the annoyance and inconvenience from living close to a church where services are had is not such as to entitle one to an injunction unless, after the erection of the building, the use of it is such as to become a nuisance.

“The erection of a building to be used for a certain business will not be restrained on the ground of anticipating nuisance therefrom where it is not necessarily a nuisance but may become one under some circumstances. The anticipated injury being contingent and possible only, the court will refrain from interfering. ” Joyce on Nuisances, p. 226. Noise, in order to entitle one to an injunction, must be such as to produce a substantial injury, and the annoyance must be such as to injure or annoy a normal person. Of course, it may 'be a nuisance merely by decreasing the value of the property, but, from the evidence in this case it appears that all the annoyance and injury is anticipated and may never occur.

We have reached the conclusion that the evidence is insufficient to entitle appellees to an injunction, and the decree is therefore reversed, and the cause remanded with directions to dismiss the complaint.


author: McHaney, J.

text:
    Deffenbaugh v. Roden.
    Opinion delivered October 6, 1930.

      Partain Agee, for appellant.

      D. H. Howell, for appellee.
   McHaney, J.

On December ?, 1928, O. C. and Ida Deffenbaugh, husband and wife, were murdered in Crawford County, Arkansas. By this murder their two little children, Clifford Lynn, aged three, and Mary Virginia, aged fifteen months, were made orphans. Thereafter, on December 21,1928, the appellant, a paternal aunt of said children and the appellee, the maternal grandmother of said children, filed separate petitions in proper form and duly verified in the probate court of Crawford County, the residence of said children, for their adoption. The probate court, on the same day, heard both petitions separately, made and entered an order granting the petition of appellant for the adoption of said children, and made and entered a separate order denying the petition of the appellee for their adoption. Thereafter, on April 23, 1929, appellee filed with the clerk of the probate court an affidavit for an appeal from the order of the court granting the petition of appellant for the adoption of said children, which was presented to the court and an order made granting the appeal; and on the same day appellee filed a separate affidavit for appeal from the order of the court denying her petition for adoption, which was presented to the court and an appeal was granted to the circuit court.

Appellant appeared in the circuit court at the November term, 1929, and moved to dismiss the appeal from the order of the court adopting said children to her on the ground, as stated in the motion, that appellee “is not entitled to maintain same and has no interest in the subject-matter that would give her a right to take said appeal, and she is not a proper party to appeal said cause. ’ ’ The court overruled said' motion to dismiss, consolidated both appeals and entered upon a trial of the case. The matter was submitted to a jury over appellant’s objections and exceptions. There was a verdict and judgment for appellee; from which this appeal is prosecuted.

We are of the opinion that the court erred in not dismissing the appeal from the order of adoption in favor of appellant for the reasons stated in the motion. Appellant filed a petition for the adoption of the children, which was in proper form, and a proper order was made granting the petition. Appellee was not a party to this proceeding. She had an independent petition of her own for the adoption of the children, which was denied. She had no vested interest in, or right to, the adoption of them to herself. Of course, it was the duty of the probate court to determine whether the appellant was a proper person to have the custody, care and control of said children, and we presume that it did so. We have carefully examined the evidence that was introduced on the trial of the case in the circuit court, and have reached the conclusion that perhaps the probate court, in making the order of adoption it did make, acted wisely and to the. best interests of the children, although there is no great difference in the financial standing of the parties, or the moral and intellectual surroundings. Appellee, not being a party to the petition filed by appellant and the proceedings had thereon in the probate court, did not make herself a party by appealing from the order of adoption in her own name. Not being a party and not having the right to appeal in her own name from such order the case should have been dismissed in the circuit court on motion of appellant.

For the error indicated, the judgment will be reversed, and the cause dismissed.