author: Wood, J.

text:
    Ford v. Moody.
    Opinion delivered November 2, 1925.
    Escrows — performance of condition. — When a deed is delivered merely as an escrow, to take effect upon the performance of some condition by the grantee in the future, no title passes until the condition has been performed, and it is immaterial that the grantee obtains possession of the instrument before the condition is performed.
    Appeal from Union Chancery Court, First Division; J. Y. Stevens, Chancellor;
    reversed.

      B. M. Hutchins, Jordan Sellers, and Murphy, McHaney £ Dunaway, for appellant.

      Mahony, Yocwm £ Saye a,nd.Marsh £ Marlin, for appellees.
   Wood, J.

On the 6th day of March, 1922, J. C. Moody and his wife, A. E. Moody, entered into what is denominated an “escrow agreement” with A. L. Ford, by the terms of which Moody and his wife agreed to sell to Ford commercial oil and gas leases on the north five-eighths of the NEÜ4 of the NW% of section 20, and the NW^A of the SW14 of section 17, township 17 south, range 14 west, in Union County, Arkansas, for a consideration of $4,500. Ford was to place his check in escrow in the First National Bank of Ei Dlorado, Arkansas, in the sum of $500, and the Moodys were to place also in the bank an assignment of the lease held by them in the above lands. Ford was to have five days in which to examine the title, and, if he found any defects therein, the. Moodys were to have five" days in which to cure the same, and, if they did not cure the same within that time, Ford was to -have five additional days, if he desired, in which to cure any defects in the title. 'The Moodys were to deliver an abstract to Ford showing title of record to the property. The bank was made the escrow agent for all parties, and it was authorized to hold Ford’s check for $500,and, in the event title was approved by him, upon the presentation of his check for an additional four thousand dollars, the bank was to deliver the lease and assignment of the lease to Ford and to deliver his checks to the Moodys. If the title was not approved by Ford, then the bank was to return the check for $500' to Ford and tihe leases to the Moodys. The agreement further provided that, if Ford accepted the title and failed to pay the additional $4,000, the bank was authorized to deliver Ford’s cheek for $500 to the Moodys as a forfeit for his failure to comply with the contract. Accompanying the agreement was au, oil and gas lease executed by Moody and wife to Ford for a consideration named therein of $3,000 covering the NW% of the SW% of section 17, T. 17 S., R. 14 W. Also accompanying the escrow agreement was an assignment executed by the Moodys to Ford of an original oil 'and gas lease which had been executed to J. C. Moody by Mary L. Murphy and her husband F. J. Murphy. The land embraced in this lease was described as the north five-eighths of the NEiUt of the NW!4 containing 25 acres more or less in Union County, Arkansas, but omitting to give the township and range. The assignment refers however to the page of the record in the recorder ’s office on which the original lease is recorded. The consideration named in this assignment was $1,500. The original lease and the assignment were executed in duplicate, and these duplicates were duly acknowledged. On the 7th of March, 1922, Ford had these duplicates recorded. On the 13th of March, 1922, Ford executed a release of the assignment by the Moodys assigning to him their interest in the lands 'contained in the Murphy lease, and on March. 16, 1922, he executed a release of the oil and gas lease which the Moodys had executed to him. . In the meantime Ford had taken down his $500' check and had directed the bank to surrender the assignment and original lease to the Moodys. The Moodys recorded the same and proceeded to dispose of the lands mentioned therein to other parties who developed the lands, discovering oil and gas in large quantities.

This action was instituted on the 16th day of February, 1923, by Ford against the Moodys, and various parties claiming under them, to cancel the releases executed by Ford to theMoodys on the 13th and 16th of March and the subsequent conveyances under which the various parties claim an interest in the lands mentioned by mesne conveyances from the Moodys. Ford set up in his complaint the escrow agreement, and alleged that, at the time of this agreement and at the time of the execution by him -of the releases above mentioned, he was a minor under the age of twenty-one years, and that he was still under that age, but that his disabilities had been removed; that the releases were executed by bim on the 13th and 16th of March, 1922, under duress consisting of threats of personal violence and injury on the part of J. C. Moody 'and of his attorney, 'and actual personal violence on the part of Moody’s attorney. He alleged that the releases on that account were void, as well'as on account of the fact that he was a minor at the time of their execution. He set' up and made exhibits to his complaint these instruments and also the various instruments under which the parties were claiming an interest in the lands through the Moodys. ’ He tendered in court the sum of $4,500, the purchase price he agreed to pay the Moodys under the escrow agreement, and prayed that the releases and the mesne conveyances under which the parties deraigned title from the Moodys be cancelled, and that a master be appointed to state an account of the oil that had been produced on the lands described and that he have judgment therefor and for general relief.

Separate answers were filed, and it was admitted in the answers that the escrow agreement was executed and delivered as alleged in the complaint, and that the lease and the assignments were executed by the Moodys and deposited in the baulk as alleged. The execution of the releases by Ford to the Moodys was also admitted, but it was denied that these releases were procured through duress and fraud. On the contrary, it was alleged that these releases were voluntary upon the part of Ford. It was denied that the Moodys failed to furnish an abstract as alleged, but they averred that they did furnish such abstract of title within the time provided, and alleged that Ford violated the contract by having the instruments, executed to him by the Moodys, recorded contrary to the escrow agreement. It was alleged that the Moodys discovered that the $500 check deposited with the bank under the escrow agreement was worthless, and that, after this discovery, they offered to carry out the agreement if Ford would deposit funds in the bank in lieu of his worthless check; that this offer was made after the time allowed by the escrow agreement for an examination cf the title by the Moodys had expired. The answers alleged that Ford refused to make his check good by depositing any funds in the bank for the payment thereof, and that he requested the cashier of the bank holding the escrow agreement to deliver the same to the Moodys and to return to him his check, which was done, and that 'he thereupon announced that the trade was rescinded; that the escrow agreement and original papers attached thereto were returned to the Moodys. The answer set up that Ford had executed to one J. B. Bright an assignment of a part of the lands covered by the escrow agreement, and that they had caused his arrest on account thereof for false pretenses and fraud, and that,in order to tavoid the consequences of criminal prosecution for this charge, he voluntarily withdrew the assignment to Bright and executed the releases to the Moodys. The nnswbr denied that the ¡releases were obtained by any threats, or any personal violence on the part of the Moodys or their attorney towards Ford. It was admitted that their attorney had a personal difficulty with Ford, but they alleged that it was provoked by Ford’s own insolent conduct toward the attorney. They admitted that, after the execution of these releases from Ford, they executed conveyances of the property mentioned therein to other parties, and alleged that the same had been by such parties developed from wild-cat territory to productive property worth some $200,000. The answers denied that Ford was a minor at the time the escrow agreement was entered into and at the time the releases were executed, and alleged that the allegations of his complaint that he was a minor and his tender of the original purchase price of the property were only for the purpose of taking an unconscionable advantage ' of the defendants. The other parties set up the defense of innocent purchasers for value. The prayer of the answers was that the complaint 'be dismissed for want of equity, and that exhibits “C” and “D” attached to the complaint be cancelled.

The chancellor found that the escrow agreement was valid, and that Ford was prevented from performing his contract thereunder and was compelled by duress and fraud on the part of the Moodys and their agents to execute the releases which he here seeks to cancel; that he was a minor and had disaffirmed, within the time prescribed by law, the surrender of his rights under the escrow agreement and the execution of the releases. The court found that these releases by Ford were void, not only as to the Moodys, but as to all persons holding under them, and proceeded thereupon ito cancel the releases and all the conveyances executed by the Moodys to other parties and divested title out of them and quieted and confirmed title in Ford. The court further found that Ford was entitled to the -oil that had been produced from the properties less the expense of producing same and appointed a master to state 'an account with directions to report his findings to the court for confirmation and approval.

The defendants appeal from ithe decree as it affects them, and the plaintiff Ford prayed an appeal from so much of the decree as adjudged that the defendants were entitled to credit for the amount they had expended in the development of the property.

There was testimony to warrant the court in finding that Ford was a minor at the time the escrow agreement was entered into and the instruments referred to therein were executed, and likewise that he was an infant at the time the releases were executed to the Moodys. But the court nevertheless erred in quieting and confirming title in Ford to the lands in controversy. If Ford has any right to the property in controversy, it must be by virtue of the escrow agreement. This is recognized by him in his complaint in which he sets up the escrow agreement as the contract under and through which he claims by virtue of an alleged breach of same by the Moodys. After setting up the escrow agreement, Ford alleged “that plaintiff fully complied with said contract, but that defendants, J. C. and A. E. M,oody, declined and refused to comply with their part of said contract. ’ ’ Ford testified that, after the leases had been signed by the Moodys and turned over to him and the agreement signed and the money put up by check in the bank as escrow agent, he met J. !C. Moody and his son Virgil, on the street late that afternoon, and they told him they had been offered more money for the leases and were going to sell them, and he filed the lease for record in order to protect himself and to keep the Moodys from selling. This testimony is positively contradicted by Moody and his son. But it is wholly'immaterial whether it be true or false, for rat most it constituted a mere assertion or threat on their part to the effect that they did not intend to be bound by the escrow agreement. This was not a breach of the escrow agreement on the part of the Moodys, but, if it were, it would not vest any title to the lands in controversy in Ford and give him the right to have spread of record the instruments which had been executed in duplicate by the Moodys. Under the escrow agreement the instruments executed by the Moodys could only be delivered to Ford by the 'bank, the escrow agent, and upon compliance by Ford with the terms of the escrow agreement.

The undisputed testimony shows that, at the time Ford had the instruments recorded, the escrow agreement was still in force, and he had not complied with its terms. Therefore, there was no delivery to him of the instruments, and without a delivery of the instruments no right or title in the property conveyed therein passed to Ford. His act in having the instruments recorded while the escrow agreement was in\ force was a plain violation of the terms of that agreement, because, although it gave him no real title to the lands in controversy, it operated to becloud the title of the Moodys.

Learned counsel for Ford contend that the delivery of the escrow agreement and the instruments accompanying it to Ford -was in fact a deliverv to him of the oil and gas lease, inasmuch as the oil and gas lease and the assignment of the oil and gas lease on their face contain no conditions; that, such being the case, these instruments, thus delivered to him, "vested in Ford, the grantee, a title bevond the power of the grantors to recall or challensr. This contention is unsound, and the argument predicated thereon is bottomed wholly upon a false premise, namely, that the instruments executed by the Moodys and attached to the escrow agreement were delivered to Ford, the grantee.

• It is well settled by the authorities, our own among them, that a deed, absolute on its face, cannot be delivered to the grantee in escrow. Campbell v. Jones, 52 Ark. 493; Wipfler v. Wipfler, 16 L. R. A. 941, and numerous cases cited in note to that case. "Counsel for Ford cite and rely upon these authorities, but thev have no application whatever to the facts of this record, for the reason that there was no delivery of the instruments to Ford. On the contrary, Ford was simply the intermediary or channel through -which the escrow 'agreement and the instruments executed thereunder and connected therewith were to be delivered to the bank as the escrow -agent. As such agent it was to deliver the instruments according to the terms of the escrow agreement, and not otherwise. The. fallacy of counsel’s 'Contention is in assuming that there was a delivery to Ford, the grantee, whereas the uncontroverted testimony shows that these papers, after their execution by the Moodys, were left by them with Ford, the express understanding being that he was to deposit the same with the bank as the escrow agent, to hold the same for the respective parties to the escrow agreement until the terms thereof were performed by them. Such was the effect of the testimony of J. C. Moody. Ford himself testified concerning this as follows: “I signed the escrow agreement in evidence here with J. C. Moody. J. C. Moody and I went to the bank together and put it in the bank. I had the lease in duplicate and recorded the duplicate to protect myself and to keep them from selling it over me.’’ Under this testimony, therefore, it is a misapprehension both of law and fact to say that there was a delivery to Ford of the instruments under which he claims.

In Maxwell v. Maxwell, 98 Ark. 466, we held that, “there is no delivery unless what is said and done by the grantee and grantor manifests their intention that the deed shall at once become operative to pass the title to the land conveyed, and that the grantor shall lose dominion over the deed.’’ See other cases there cited and also Brown v. Allbright, 110 Ark. 394; Bray v. Bray, 132 Ark. 438.

In Bondurant v. Enis, 152 Ark. 372, at page 376 we quoted from 143 Mass. 516, as follows: “When a deed is delivered merely as an' escrow, to take.effect upon the performance of some condition by the grantee in the future, no title passes until the condition has been performed. The transaction is incomplete. It is not the grantor’s deed until the second delivery. Even if the grantee obtains possession of it before the condition has been performed, yet it is not the grantor’s deed, and he may avoid it by pleading non est factum.” 158 Ill. 567, and other cases cited in note to Wipfler v. Wipfler, 16 L. R. A. (N. S.) at page 944.

It is clear from the undisputed testimony that the instruments under which Ford claims title were never delivered to him, and his placing the instruments or a duplicate thereof on record before the same were delivered to him, whether he so intended it or not, was a legal fraud upon the rights of the Moodys. It vested no right or title whatever in Ford. Our con elusion therefore is that, upon the undisputed facts and the law applicable thereto, Ford acquired no title to the lands in controversy. 'Such being our conclusion', the other questions so elaborately argued in the briefs of counsel pass out. Hence we do not discuss them. The decree of the chancery court is reversed, and the cause is remanded with directions to dismiss the complaint of Ford for want of equity and to enter a 'decree cancelling Exhibits “C” and “D” to such complaint and quieting title to the lands in controversy in the Moodys and those who claim under them.


source: Caselaw Access Project

author: Hart, J.,

license: Public Domain

text:
    T. J. Moss Tie Company v. Miller.
    Opinion delivered November 2, 1925.
    1. Courts — amendment of judgment. — Courts of record have complete control over their judgments and decrees during their respective terms, and when for good cause a judgment is revised or modified, the record stands precisely as if no such mistaken or erroneous judgment had ever been rendered.
    2. Courts — amendment of record. — While the circuit court had control of its judgment during the term, it could only revise or set it aside for good cause shown, and where plaintiffs dismissed its cause of action as to one of two defendants in the circuit court, on appeal from a justice’s court, it was error, after the judgment of dismissal, to render judgment on the appeal bond against such defendant, as if he were surety for the other defendant.

      3. Dismissal and nonsuit — prejudice.—The dismissal of a suit before submission on the merits ¡must, in the absence of proof to the contrary, be presumed to have been without prejudice.
    4. Liens — purchase subject to. — One who purchases personal property with knowledge that it is subject to a laborer’s lien takes in subordination thereto.
    Appeal from St. Franois Circuit Court; E. D. Robertson, Judge;
    reversed as to T. J. Moss Tie Co., affirmed as to United States Fidelity & Guaranty Co.
    STATEMENT OE PACTS.
    S. A. Miller, J. H. Sheehan and L. E. Raines instituted separate actions before a justice of the peace against E. A. Bryant to assert a laborer’s lien on certain railroad ties alleged to have been made by each plaintiff for the defendant.
    An amended complaint was filed in which it was alleged that the T. J. Moss Tie Company had purchased the ties which were attached by the plaintiff's in the action, with notice of the lien of the plaintiffs.
    The said T. J. Moss Tie Company was duly served with process and became a defendant in each action. Judgment was rendered in favor of each plaintiff against said defendants.
    An affidavit for appeal was filed in each case by B. A. Bryant and the T. J. Moss Tie Company. A bond for appeal was given in each case which reads as follows:
    “We, the undersigned, E. A. Bryant and T. J. Moss Tie Company as principals and United States Fidelity & Guaranty Company, of Baltimore, Maryland, as surety acknowledge ourselves jointly and severally held and bound unto <S. A. Miller in the sum of $175, but on condition:
    “That if the defendants shall prosecute their appeal with due diligence to a decision, and if on appeal the judgment of the justice be affirmed, or if on trial anew ini the circuit court judgment be given against the said defendants, then they shall pay such judgment, and, if the appeal be dismissed, they shall pay the judgment of the justice together with the costs of the appeal; then and in that event this obligation-shall .he null and void, but otherwise to be and remain in full -force and effect. This 5th day of February, 1924. ’ ’
    The -bond was signed by E. A. Bryant, T. J. Moss Tie Company, and the United States Fidelity & Guaranty Company.
    . In the circuit, court the plaintiff in each case voluntarily dismissed his cause of action against the.T. J. Moss Tie Company. Judgment was entered in .favor of the plaintiff in each case against E. Á. Bryant and the United States Fidelity & Guaranty Company. At the same term of the court, the judgment in each case was set aside, and the circuit court found that the plaintiffs in each case was entitled to judgment against E. A. Bryant in the sum sued for, and that the United States Fidelity & Guaranty Company and T. J. Moss Tie Company were bound as sureties on the appeal bond according to its terms.
    It was therefore by the . court considered and adjudged that the plaintiff in each case have and recover of E. A. Bryant and T. J. Moss Tie Company and the United 'States Fidelity & Guaranty Company, as sureties on his appeal bond, the sum sued for.
    From the judgment rendered an appeal to this court in each case has been taken by the T. J. Moss Tie Company and the United States Fidelity & Guaranty Company. 'Separate transcripts were filed in this court; but by agreement of counsel it has been ordered that the three appeals be consolidated.

      G. W. Norton (for Moss 'Tie Co.), Mann & Mann (for U. S. F. & G. Co,), for appellants.

      8. 8. Margraves and Jno. M. Prewett, for appellee.
   Hart, J.,

(after stating the facts). It is the settled public policy of this State that during their respective terms courts of record have complete control over their judgments and decrees, and may review and correct any mistakes or errors into which they may have fallen during the term'. When for good -cause shown-the judgment is reversed or modified, the record- stands precisely as if no such mistaken or erroneous judgment had ever been entered. Underwood v. Sledge, 27 Ark. 295; Hawkeye Tire & Rubber Co. v. McFarlin, 146 Ark. 491, and eases cited; and Dawson v. Mays, 159 Ark. 331.

It does not follow, however, that the court had a right ‘ to set aside its original judgment 'and render a new .judgment against the T. J. Moss Tie Company. The plaintiffs sued E. A. Bryant to assert a laborers’ lien on certain ties which they had made for him. T. J. Moss Tie Company was made a defendant to the action on the ground that it had purchased the ties from Bryant with notice of their liens. Judgment was rendered against both defendants in the justice’s court. An appeal bond was -duly executed by them with the United States Fidelity & Guaranty Company as surety. In the circuit court the plaintiffs elected to dismiss their cause of action against the T. J. Moss Tie Company and to take judgment against E. A. Bryant and the United States Fidelity & Guaranty Company as the surety on his appeal bond. This they had the legal right to do. Under our statute in all cases of appeal from a justice of the peace, if the judgment of the justice be affirmed, or if, on a trial anew in the circuit court, .the judgment be against the appellant, such judgment shall be rendered against him and the surety on his appeal bond. Crawford & Moses’ Digest, § 6531.

While the circuit court had control of its judgment during the term, it could only revise or set it aside for good cause shown. The court set aside. its original judgment because it believed that the T. J. Moss Tie Company was a surety on the .appeal bond of E. A. Bryant, and that it was its duty, under the provisions of the statute just referred to, to render judgment against it as a surety on the appeal bond.

The circuit court was of the opinion that under the terms of the appeal bond the T. J. M.oss Tie Company was a surety on it. We do not agree with the circuit court in this conclusion. It seems to us that Bryant and the T. J. Mose Tie Company were principals in the bond, and that the United 'States Fidelity & Guaranty Company alone was tlie surety. The plaintiffs, having elected to voluntarily dismiss their cause of action against the T. J. Moss Tie Company, could not, after the judgment of dismissal, have that judgment set aside without a proper showing. No such showing was made as to the T. J. Moss Tie Company, and it follows that the court erred in setting aside the dismissal as to it and allowing a reinstatement of the cause of action against it.

It follows that the judgment must be reversed as to. the T. J. Moss Tie Company with directions to the court to dismiss the cause of action against it.

It is claimed by counsel for the United States Fidelity & G-uaranty Company that, if the court erred in setting aside the judgment of dismissal as to the T. J. Moss ■ Tie Company, it necessarily results in a reversal of the judgment as to it. Tihey invoke the well known rule that a surety is released by discharge of his principal. They claim' that the T. J. Moss Tie Company was released from all liability in the action by the voluntary dismissal by the plaintiffs of their suit against . it; and that this released the surety company as its surety.

The original judgment recites that the plaintiff by his attorney dismisses the cause of action as to the T. J. Moss Tie Company. This recital is contained in the original judgment in the circuit court in each case. There is nothing whatever im the record to indicate that it was intended that the dismissal should be with prejudice.

Under our statute the dismissal of a suit before submission on its merits must, in the absence of proof to the contrary, be presumed to have been without prejudice to the right to renew it. Jones v. Graham, 36 Ark. 383.

. The record shows that the plaintiffs had separate • claims of liability against Bryant and the T. J. Moss Tie Company. They had an account against Bryant for making ties for him and were asserting: a laborers’ lien on the ties under the statute. The T. J. Moss Tie Company had purchased the ties from Bryant with knowledge of the lien of the plaintiffs. Under this state of facts, judgment was properly rendered against each of the defendants.

It is true that they joined in one appeal bond; but this they had a right to do under the statute. The United States Fidelity & Guaranty Company became the surety of each of the principals and by the conditions of the bond, which was in the language of the statute, became liable to pay whatever judgment was rendered in the circuit court against either of the defendants. Bryant had no defense to the action of the plaintiffs, and, under the section of the statute referred to, the court properly rendered judgment in each case in favor of the plaintiffs against Bryant and the United 'States Fidelity & Guaranty Company, the surety on his appeal 'bond. The fact that the plaintiffs dismissed their cause of action against the T. J. Moss Tie Company did mot in any manner affect the liability of the surety company on the appeal bond of Bryant.

It follows that the judgment as to the United States Fidelity & Guaranty Company must be affirmed.


text:
    Edgin v. Talley.
    Opinion delivered November 2, 1925.
    1. Arrest — right to use force. — In making an arrest or preventing the escape of one charged with a misdemeanor, an officer may exert .such physical force as is necessary on the one hand to effect the arrest by overcoming the resistance he encounters or on the other hand to subdue th.e efforts of the prisoner to escape; but he cannot in either case take the life of the accused or even inflict upon him a great bodily harm, except to save his own life or prevent a like harm to himself.
    2. Offices and officers — liability for acts of deputy. — Both at common law and by statute a sheriff is liable for an unlawful assault made by his deputy, while in the discharge of his official duty.
    3. Arrest — necessity of warrant. — A misdemeanor must have been actually committed to justify an arrest without a warrant, and the officer must determine at his peril whether an offense has been committed or not.
    4. Assault and battery — liability for damages. — Where an officer, in good faith believing that plaintiff had committed a misdemeanor after ordering him to stop, shot at his tire casings to prevent him from escaping arrest, and thereby injured his automobile, but inflicted no personal injury on plaintiff, the officer is not liable for the damages to the automobile.
    5. Assault and battery — liability for damages. — Where a deputy sheriff, believing that the driver of an automobile was drunk, in order to prevent him from escaping arrest, shot at his tire casings and injured a person riding in the car, the sheriff, as well as the deputy, is responsible for the damages to such person.
    Appeal from Franklin Circuit Court, Ozark District; James Cochran, Judge;
    reversed in part.
    STATEMENT BY THE COURT.
    George Edgin and Goldia Floyd, minors, by next friend, instituted separate actions at law against Claud Talley and C. G. Harman to recover damages for am assault.
    George Edgin was a witness for himself. According to his testimony he was twenty years of age and had lived at Ozark, Franklin County, Ark., nearly all of his life. On the Sunday in question he had driven in his automobile from Altus to Ozark with Goldia Floyd and some other companions for the purpose of attending a singing convention. After attending the singing convention at the court house, they drove on up town to a filling station at a moderate rate of speed, something like eight or ten miles an hour. George Edgin heard some one call for some one to stop, but did not pay any attention to it. There were a large number of people on the public square, and he was not impressed that any one was calling to him. The first he knew a bullet came, through' the car, hitting the wind shield and it commenced falling out. The bullet went between George Edgin and Goldia Floyd. Two shots were fired, but just one of them went through the car. The witness then immediately stopped the car, but did not know who did the 'shooting until Claud Talley came down to the car. Talley then arrested the witness' and carried him to jail. He refused to let him make 'bond, but locked him up in the jail and kept him there something over an hour. No warrant of any kind was served on the witness. No charge was afterwards preferred against him. Tihe witness offered no resistance whatever and was not undertaking to assault or injure Talley in any way at the time. He knew that Talley was an officer, but did not know that he or any other officer wanted him for any purpose.
    Other witnesses testified in behalf of appellant, George Edgin, and corroborated his testimony.
    George Edgin testified that he was not drinking or drunk at the time he was arrested and several witnesses corroborated his testimony in this respect.
    Goldia Floyd was a witness for herself. According to her testimony, she was seventeen years of age and lived at Dyer, Ark. She was in Ozark on the Sunday in question, and was riding on the same seat in the car with George Edgin. She did not hear any one say ‘ ‘ Stop, ’ ’ or anything of that Idnd. There were two shots fired. One of, the shots went through the car, and the bullet went through her hair on the left side and burned it. The bullet also struck the wind shield and broke the glass in it. The glass from the wind shield struck her and caused an injury to her leg. S'he was confined to her bed about two weeks as the result of her injuries, and it was a month before she was 'able to take up her studies at school. She was rendered very nervous by her injuries, and this condition continued about two weeks.
    The physician who attended her' described her injuries. He found one place just above her knee pretty badly cut and one cut below her knee. She was very nervous,- and her nervous shock was caused from some injury.
    According to the testimony of Claud Talley, one of the defendants, he lived in Ozark and had been deputy sheriff and .jailer of F'ranklin County for thirty-eight months before the Sunday in question. He was still deputy sheriff at that time, and as such received information that George Edgin and others were drunk on the public road towards Altus. Shortly after this information was received, Talley saw George Edgin driving a car along the streets of Ozark. He said, “Hold on, George, I want to see you.” He then called to Ered Wilson to have George stop the car. Fred put his head in the car and said something to George. Talley then called to George Edgin again to stop, and, upon his failing to do so, he fired 'his pistol at the casing’ on the car. He fired two shots at the car, and the next thing he heard was a woman screaming, and then the car stopped. C. G. Harmon, the sheriff, was there taking George Edgin out of the car when he reached him. There were two girls in the car, but he did not know it until after he fired the two 'shots. The sheriff turned George Edgin over to Talley, who took him to jail and kept him1 there for a while. Talley did not shoot at Edgin, but shot at the tires of the car to cause him to stop it. The buffet that went through the car struck something first. The purpose and intention of Talley in firing the shots was to disable the car and cause it to stop.
    Other witnesses corroborated Talley in his testimony both as to the shooting and as to the drunkenness of George Edgin.
    According to the testimony of C. G. Harman, he had been sheriff of Franklin. County for three years at the time of the" shooting. Just previous to the shooting, Talley and Harman had been down oh the river looking for some law violators. Harman received information that George Edgin and others were drunk, and were likely to hurt some one. When Harman got back to Ozark, and just after he separated from Talley, he heard some one say, “Halt” or “Stop.” He heard this two or three times and then heard a gun shoot. When he looked around, he saw some one coming down the street in a car and ran out in front of it. Just about that time he heard the second shot. Then he heard some girl scream1 and ran to the car and jerked its door open. By that time the crowd had gathered, and Talley walked up to the car. Harman put George Edgini under arrest for drunkenness and directed Talley to carry him to jail, and when he was sober enough to turn him out.
    On cross-examination, Harman testified that he guessed that he directed Talley to arrest Edgin if he came to town on the day in question. George Edgin was drunk at the time he was arrested and was not able to take care of himself. Talley was directed to take George Edgin home as soon as lie was sober enough. Harman - also stated that he never directed his deputies to shoot at anything except the casings of a car to stop it.
    • The cases were consolidated for the purpose of trial, and in each case the jury returned a verdict in favor of appellees. The case is here on appeal.

      Benson & Benson and Dave Partain, for appellants.

      G. G. Garter and Evans & Evoais, for appellee.
   Hart, J.,

(after stating the facts). In the case of Thomas v. Kinkead, 55 Ark. 502, Judge Mansfield made a thorough examination of the principles of law governing cases of this sort in an action wherein a constable was sued for damages for the unjustifiable shooting and killing by his deputy of a person charged with the commission of a misdemeanor to prevent his escape after being arrested. The court reversed a verdict for the defendant because of the charge of the trial court that the defendant had a right to shoot deceased if it was necessary to prevent his escape. It was said that the force which an officer may lawfully use to prevent the escape of one arrested for a misdemeanor is no greater than such as might have been rightfully employed to effect his arrest. The officer cannot in either case take the life of the accused or inflict great bodily harm except to save his own life or prevent a like injury to himself.

The learned justice concluded his review of the authorities and a statement of the rule of the common law as follows:

“We can see no principle of reason or justice on which such a distinction can rest, and we therefore hold that the force or violence which an officer may lawfully use to prevent the escape of a person arrested for a misdemeanor is no greater than such as might have been rightfully employed to effect his arrest. In making the arrest or preventing the escape, the officer may exert such physical force as is necessary on the one hand to effect the arrest by overcoming the resistance he encounters, or on t'he other to subdue the efforts of the prisoner to escape; but he cannot in either case take the life of the accused, or even inflict upon him a great bodily harm, except to save his own life or to prevent a like harm to himself. ’ ’ 'See also case note to 3 A. L. R. at p. 1173.

The general rule is that for all civil purposes the acts of a deputy sheriff or constable are those of -his principal. Hence a sheriff or constable is liable for the act, default, tort, or other misconduct done or committed by his deputy, colore officii. Moores v. Winter, 67 Ark. 189; Frizzell v. Duffer, 58 Ark. 612; 35 Cyc. 1618, and 24 R. C. L. p. 982, § 75.

It will be noted that this rule was recognized and followed in Thomas v. Kinkead, 55 Ark. 502, although the rule itself was mot announced or commented on.

Again in State v. Newton, 33 Ark. 276, the court held that the State Treasurer and his bondsmen are liable for the official conduct of his deputies.

Then too § 9152 of Crawford & Moses’ Digest provides that each sheriff may appoint one or more deputies, for whose official conduct he shall be responsible. Thus it will he seen that a sheriff is liable, both under the common law and under our statute, for an unlawful assault made by his deputy while in the discharge of his official duty. Under our statute, it is made a misdemeanor to drive any automobile over any of the streets of any city or town or any public highway in the State while in an intoxicated condition. General Acts of Arkansas 1923, p. 200.

Section 2904 of Crawford & Moses’ Digest provides that a peace officer may make arrests without a warrant where a public offense is committed in his presence.

In Coen v. Presby, 14 Gray (Mass.) 65, it was held that reasonable canse to believe a person to be intoxicated is sufficient to ■ excuse an arrest without a warrant. In discussing the principle in Ballard v. State, 43 Ohio St. 340, 1 N. E. 76, the court said that good faith, an honest belief, based upon reliable information, which proves to be true, is all the law requires. In that case the person was arrested for carrying concealed weapons. Thus it will be seen that a misdemeanor must have been actually committed to justify am arrest without a warrant, and the officer must determine at his peril whether an offense has been committed or not.

It was the theory of the appellant, George Edgin, that he was not drunk at the time he was arrested, and evidence was introduced by him to that effect. On the other hand, appellees testified that they had been informed that he was drunk and likely to hurt someone, and that they arrested him on this account. The deputy sheriff denied that he fired at Edgin, and says that the pistol shots were fired by him only to intimidate and cause George Edgin to surrender, who, he had been informed, was driving an automobile in a drunken condition on the public highway. The pistol shots were mot fired at George Edgin, and neither of them struck him or caused him any physical injury.

If the jury believed the testimony of the deputy sheriff (and by its verdict it has so found) that the shots fired by him were only to accomplish the arrest' of Geo. Edgin, it can not in law be considered an assault .and battery for which the officer can be punished. Mesmer v. Commonwealth, 26 Gratt. (Va.) p. 976.

The deputy sheriff], having been informed that George Edgin was driving an automobile in a drunken condition along the highway, had the right under the law to arrest him, if he was drunk when found by the deputy sheriff.

The jury was fully and fairly instructed in accordance with the principles of law above announced, and the respective theories of appellant, George Edgin, and appellees, were submitted to the jury in appropriate instructions. The jury having by its verdict found the facts in favor of appellee, appellant, George Edgin, is in no attitude to complain. It cannot be said that he is entitled to recover for the injury to his automobile as the result of the shots fired Iby the deputy sheriff. Although he might have believed that he was being illegally arrested, it was his duty to have submitted to the officers. Coats v. State, 101 Ark. 51.

George Edgin lived in Ozark, and knew that Talley was a deputy sheriff. It is true that he says that he did not hear Talley order him to stop; but here again the evidence is conflicting, and the jury under proper instructions found in favor of appellees on this point. According to the testimony of the deputy sheriff, Edgin must have known that he was being ordered by him to stop. Talley says that he called to him to stop several times, and that one of the persons in the car leaned over and whispered something to George Edgin. Other people further away from Talley than Edgin and his companions heard Talley call to them to stop. Hence the jury might have inferred that Edgin he'ard Talley tell him to stop, and that he drove on, knowing Talley to be an officer, for the purpose of escaping arrest.

The jury might also have found that George Edgin was drunk at the time. According to the testimony of Talley he did not shoot at Edgin, but only shot for the purpose of stopping his car, so that he might arrest him for being drunk in violation of law. Under these circumstances there would be no civil liability on the part o,f appellees for the injury done to the automobile of George Edgin.

Again it is insisted by counsel for appellant, George Edgin, that the judgment should be reversed because the court allowed Mrs. Harman, the wife of the sheriff, to state that she had received word at the jail that George Edgin was drunk and might kill some one; and that she communicated this statement to her husband and Talley.

According to the testimony of both Harman and Talley; they intended to arrest George Edgin because of receiving this information. The important fact was that they had received the , information from an authentic source, and the fact that the wife of one of the appellees was the source of information cuts no figure in the case at all. The case stands in no different attitude than it would if Harmon and Talley had stated that they had received information from a reliable source that George Edgin was driving an automobile along the public highway in a drunken condition. As we have already seen, under our statute it is the duty of peace officers who shall see or have knowledge of any person being drunk upon any public highway or street in this State to arrest such person. So, if the deputy sheriff had received knowledge from any authentic source that George Edgin was drunk upon the highway or streets of the city, it would be Ms duty under the statute to arrest Edgin when found, if Edgin was still drunk, since 'drunkenness is a continuing offense and would be committed in the presence of the officer under such circumstances. Therefore, we hold that this assignment of error was not well taken.

The result of our views is that no prejudicial error was committed by the court in the trial of the case of George Edgin, and the judgment in his case must therefore be affirmed.

The case of G'oldia Floyd however stands on a different footing. The evidence discloses that one of the pistol shots went through her hair and burned it. The bullet then passed through the wind shield of the automobile, breaking it, and thereby causing the giass to violently strike her leg and cut it. She was compelled to remain in bed for two weeks as the result of her injuries, and it was a month before she had sufficiently recovered from her injuries to attend school.

The undisputed evidence shows that she received severe physical injuries as a result of a pistol shot at the hands of Talley, and, under the principles of law above announced, Ms firing the pistol under the circumstances and thereby injuring Goldia Floyd in her person was a reckless and’ careless act which rendered him and his principal civilly liable in damages.

The duty of Talley to arrest George Edgin for driving an automobile along the streets while drunk, which was a misdemeanor, did not justify the use of. firearms, and firing !lfis pistol under the circumstances as shown by his own testimony rendered him liable for the physical injury to Goldia Floyd. While Talley had th'e right to carry loaded firearms in the discharge of his official duties, he had no right to use them , in a negligent and careless maimer, and he is liable for the unjustifiable discharge of his pistol to check the flight of George Edgin, who had only committed a misdemeanor. The undisputed evidence shows that Edgin was at most only attempting to escape, and Talley was not justified in shooting at him, even as a ruse to prevent his further flight.

It follows that the judgment against Goldia Floyd will be reversed, and the cause will be remanded for a new trial.

Wood, J., dissents on the ground that in his opinion the judgment should be affirmed as against Goldia Floyd also..


author: McCulloch, C. J. McCulloch, C. J.,

text:
    Gregg v. Road Improvement District No. 2.
    Opinion delivered October 12, 1925.
    1. Judgment — res judicata.. — The decision of issues involved in a former proceeding to annex lands to a road improvement district is not res judicata as to the same issues involved in an independent proceeding between parties other than those who were parties to the former suit, where the former judgment did not determine the rights involved in the later case.
    2. Courts — stare decisis. — Even though a former decision may not be res judicata in a subsequent independent proceeding, it may be binding under the rule of stare decisis.

    3. . Highways — organization of improvement district — collateral attack. — In proceedings to annex benefited territory to an organized improvement district, the original organization of the district is not subject to collateral attack for mere errors or irregulariities, but it may be attacked on account of jurisdictional defects appearing on the face of the proceedings.
    4. Highways — improvement district — notice of petition. — The requirement in Crawford & Moses’ Dig. § 5427, that notice of the hearing of a 'petition to organize a highway improvement district shall toe published for two consecutive insertions in a newspaper having a general weekly circulation in the county is jurisdictional, and the notice must accurately describe the lands to be included in the formation of the district.
    5. Highways — improvement district — notice of petition. — Under Crawford & Moses’ Dig., § 5427, requiring- publication of a notice of filing of a petition to organize a road improvement district in a single newspaper, the fact that such notice was published in two newspapers, one of which correctly described the lands to be included, while the other did not properly describe them, does not render the proceeding void on collateral attack.
    6. Highways — improvement district — variance in description of road. — Under Crawford & Moses’ Dig., § 5399, requiring the preliminary surveys or plats for a proposed road improvement to indicate plainly the boundaries of the proposed district and to show the roads which it is intended to construct and improve “as nearly as practicable,” held that a variance between the plat filed by the property owners and the preliminary survey prepared by the Highway Commissioner, in describing the roads intended to be improved, does not render the proceedings void on collateral attack.
    7. Courts — holding county and probate courts on same day.— An order organizing a road improvement district made on an adjourned day is not void because the same judge presided at an adjourned term of the probate court on the same day.
    8. Highways — improvement district — vacancy in commissioner’s office. — Crawford & Moses’ Dig., § 5406, authorizing the county court to fill a vacancy in the office of a commissioner of a road improvement district, refers to any vacancy which may legally occur, and not merely to a vacancy caused by the failure of a commissioner to qualify.
    9. Highways — improvement district — filling vacancy in assessor’s office. — Crawford & Moses’ Dig., § 5420, authorizing- the county court to appoint assessors for road improvement districts and to fill vacancies, authorizes the court to fill vacancies caused by resignation as well as by failure of an assessor to qualify.
    10. Highways — improvement district— validity of assessment.— As assessment in a road improvement district by assessors duly appointed is not void in collateral attack because they took the oath of office before an officer not authorized to administer such oaths.

      11. Highways — improvement district — omission of benefited tract. — In a proceeding' to organize a road improvement district, failure to include therein a quarter section, for which the proposed road formed a boundary line between such tract and another which was included in the district, while error, did not invalidate the organization of the district, especially where such quarter section was a portion of territory sought to be annexed in subsequent proceedings.
    12. Pleading — effect o.f demurring. — On demurrer to pleadings, the facts alleged are treated as being true for the purpose of testing the sufficiency of the demurrer.
    13. Highways — improvement district — demurrer reaching back.— In a proceeding to annex territory to a road improvement district, a demurrer to the allegations in the affidavit for appeal from the county to the circuit court reaches back to the record in the case, including the petitions, plats, and order of the county court establishing the district, and the court might, in testing the sufficiency of the demurrer, consider such allegations in connection with the whole record.
    Appeal from Jackson Circuit Court; Dene H. Coleman, Judge;
    affirmed.
    Boyce, Stayton é Mack, for appellant.

      Gustave J ones and C. M. Erwin, for appellee.
   McCulloch, C. J.

Tikis is a proceeding instituted in tke county court of Jackson County to annex property to a road improvement district pursuant to statute. Crawford & Moses’ Digest, §§ 5399, 5426. Appellants are owners of some of tke real property sought to be annexed, and they protested against the annexation and against the assessment of benefits and took an appeal to the circuit court, where the cause was heard and final judgment rendered approving the assessment of benefits and authorizing the annexation of the property in accordance with the prayer of the commissioners of the district. There was formerly another proceeding to annex the same property, with the exception of one tract, and on appeal to this court it was decided that the judgment annexing the property was erroneous on account of the omission of a certain benefited tract of land. Slanders v. Wilmans, 160 Ark. 133. Reference is made to the opinion in the former case for a detail of the issues involved. After the remand of the cause, the commissioners of the district instituted a new proceeding correcting’ the error in the former proceeding’ by including the omitted tract which was found to be necessarily benefited, and appellants in their remonstrance have raised all of the questions that were decided against the remonstrants on the former appeal, and they have also raised other objections to the validity of the proceedings.

Appellees contend that the judgment of this court on the former appeal constituted an adjudication of all the issues involved, and that that judgment is a bar to a readjndieation of those issues. We are of the opinion that the doctrine of res judicata does not apply, for the reason that this is an independent proceeding between parties other than those who were parties to the former appeal, and that they are not bound by the former judgment as an adjudication of their rights. Counsel for appellees rely on the recent case of Howard-Sevier Rd. Imp. Dist. v. Hunt, 166 Ark. 62, as decisive of this question in favor of appellees, but we do not regard that case as reaching to the question of res judicata in the present case. The judgment of this court on the former appeal was a reversal and setting aside of the judgment rendered below for the annexation of the territory involved, and the result was to nullify the annexation proceedings. The present proceedings were instituted independently, and the judgment in the former proceedings did not constitute an adjudication of the rights involved in the present case. The decision on the former appeal did not become the law of the case, so as to prevent a further adjudication, for the same reason that the present case is a different one from the former. The nrinciples of law announced in the former opinion come, however, within the doctrine of stare decisis. It is within the power of the court to overrule that decision, but after consideration the majority of this court adhere to that decision and decline to overrule it. It is unnecessary to restate all of the points there decided, for the opinion shows for itself.

It becomes necessary, however, to discuss the additional grounds of attack upon the validity of the proceedings and the correctness of the judgment of the circuit court.

All of the additional grounds, except the question of the correctness of the assessment, relate to the validity of the original proceedings establishing the district. In the former opinion we said: “In the proceedings adding additional territory found to be benefited by the improvement, the question of the validity of the original organization only arises collaterally, and the validity of the district cannot be challenged on account of mere errors and irregularities in the original organization. If, however, the organization is void on account of jurisdictional defects — in other words, if the lack of jurisdiction appears on the face of the proceedings — the question could 'be raised collaterally.” That .statement of the law is adhered to now, and the inquiry here is whether or not there were defects in the original organization on the face of the proceedings which render the same void.

The statute (Crawford & Moses’ Digest, § 5427) provides that notice of the hearing -of a petitioDi to organize a district shall be published for two consecutive insertions in a newspaper having a general weekly circulation in the county. We have held that the publication of notice is jurisdictional, and that it must accurately describe the lands to be included in the formation of the district.- Norton v. Bacon, 113 Ark. 566; McRaven v. Clancy, 115 Ark. 163; Paschal v. Swepston, 120 Ark. 230. It appears from the record filed in the original proceeding organizing the district that there were- two publications in newspapers having general circulation in the county, one of which publications correctly described the lands, but in the other notice there was an erroneous omission of certain tracts. It is contended by counsel for' appellants that, though the statute only requires publication in one newspaper, if there is in fact publication in more than one, and an error occurs in either of the publications, it is fatal to the organization. We do not agree with counsel in this contention, for, if either publication is correct and is made in accordance with the terms of the statute, it constitutes, technically, a compliance with the statute, and the occurrence of an error in an additional publication does not render the proceedings void. The correct publication constitutes constructive notice, and its conclusive effect is not lessened by the fact that an error is made in an additional notice. The fact that there was an omission of lands from the additional notice would at most constitute an error in the proceedings which would not affect the validity thereof on collateral attack.

It is next contended that the original proceedings were void because of a material variance with respect to the description of the route of the road to be improved betweeu the preliminary surveys, plans and specifica- ■ tions filed -with the county court and the description in the petition and plats accompanying the same which were designed by the property owners. The remonstrance of appellants sets forth the facts which constitute the variance. There was a demurrer sustained to that paragraph of the remonstrance.

The general statute authorizing* the organization of road districts (Crawford & Moses’ Digest, § 5399 et seq.) provides that a majority of the owners of land in value, acreage or numbers within a proposed improvement district may petition the county court to establish a district to embrace a certain region which it is intended shall be embraced within the boundaries of the district and file a plat'with the petition, “upon which the boundaries of the proposed district shall be plainly indicated, showing the roads which it is intended to construct and improve as nearly as practicable. ’ ’ Notice shall be given, etc.,, of the hearing on the petition, and, upon application of ten property owners, or of the county .judge, the State Highway Commissioner shall prepare preliminary plans and specifications and also prepare petitions to be presented to property owners. We construed this provision of the statute in Lamberson v. Collins, 123 Ark. 205, and decided that compliance with all of the provisions referred to was jurisdictional. It will be observed, however, from a consideration of the two sections .of the statute containing those provisions (Crawford & Moses’ Digest, §§ 5399, 5400) that the first section requires the preliminary surveys to state accurately the boundaries of the district, but only requires a description of the road “as nearly as practicable.” In § 5400, supra, the State Highway Commissioner is required to furnish plans and specifications and prepare the petitions. Now, the allegation in the remonstrance is that there is a variance between the route of the road described in the original preliminary plans and specifications presented by property owners and the route described in the plans which accompanied the petition, that is to say, those prepared by the State Highway Commissioner. According to the allegations of the remonstrants, the order of the court establishing the district described the road in conformity with the petition of the property owners and the preliminary plans which accompanied the same. It is not essential under the statute for the route of the road to be described with exactness, but only “as nearly as practicable,” and this necessarily implies that the county court in approving the plans and 'creating the district can vary the route in accordance with the petition of the property owners and the plans and specifications furnished by the State Highway Commissioner. The variance shown in the statements of the remonstrants does not relate to the termini of the road, but only to one of the links in the route. ,We are of the opinion that the variance did not render the proceedings void on collateral attack.

The contention is made that the organization is void for the reason that, according to the records of the county court presented in the present proceeding, the court was not legally in session at the time the order was made organizing the district on June 22, 1917. This contention; is based on a showing that the order was.made on an adjourned day, the court having adjourned over to another date, and that the probate court by previous adjournment was in ¡session on the same day, which caused ¡a lapse of the term of the county court. Counsel for appellants invoke the rule that the law, takes no cognizance of parts of days, and that two courts cannot be held by the same judge on the same date. Counsel rely upon decisions of this court with respect to sessions of the circuit court in different counties. Central Coal & Coke Co. v. Graham, 129 Ark. 550. We do not think that this rule applies to sessions of the county court ¡and probate court, which are presided over by the same judge ¡and at the same place. It would be extremely technical to hold that, because of the fiction of the law that parts of days are not recognized in dealing with sessions of courts, judgments of a county court and a probate court are void because sessions were held on the same day. Now, this might be true if the sessions of both courts were attempted to be held on the day fixed by the statute 'for the commencement of the term of one of those courts, but there is no reason for applying the rule where both courts are adjourned over to a given date. It is not physically impossible for the judge to hold sessions of both courts on the same day, and it is not beyond the power of either of those courts to adjourn to a day to which there has been an adjournment by the other court. If it becomes impossible to hold one of the courts on that day by reason ¡of congestion of business in the other court, the judge may permit the term to lapse by failure to open ¡court according to adjournment, but the judgments of those courts are not void merely because both of them are held ¡on the same adjourned day.

There is a contention that the annexation proceedings are void because at the time thereof one of the acting commissioners was not legally appointed, ini that he was appointed by the county court upon the resignation of his predecessor. The contention is that under the statute there was no authority in the county court to appoint a 'commissioner to fill a vacancy caused by death or resignation, and that the .only authority vested in the county court is to make an appointment where there has been a failure of one of the commissioners to qualify. The statute (Crawford & Moses’ Digest, §§ 5405, 5406) provides that upon the organization of the district the county court shall appoint three persons, owners of real property in the district, to act as commissioners, who shall duly qualify by taking the oath of office required by the Constitution, and that, if 'any member of the board of commissioners fails or refuses to take the oath of office within thirty days after being notified, of his appointment, he shall be considered to have declined to serve and the vacancy may be filled by order of the county court. There is no other express provision in the statute with respect to filling vacancies, hence the argument is made that the county court is without authority to make an appointment to fill any vacancy which occurs otherwise than by reason of the failure of one of the original commissioners to qualify. In other words, it is contended that there is no authority to fill a vacancy caused by death or resignation. It is not presumed that the lawmakers intended to leave a hiatus in the statute with regard to filling vacancies. While the statute contemplates a continuous holding of office by the original commissioners without authority on the part of the county court to remove (Taylor v. Wallace, 143 Ark. 67), there must be found somewhere authority to fill vacancies which occur by death or resignation. The provision just referred to evinces a declared intention to vest in the county court the power to fill vacancies, though there is no power of removal. The words, “and the vacancy filled by the county court at its next regular, special, or adjourned term,” manifestly refer to any vacancy which may legally occur, and not merely to a vacancy caused by the failure of a commissioner to qualify.

There is a further contention that the assessment of benefits on the property sought to be annexed is void because of the alleged disqualification of some of the assessors. The statute (Crawford & Moses’ Digest, §§ 5419, 5420) provides that the county court shall appoint the assessors, who shall take the oath prescribed in the Constitution, and that, upon the failure of an appointee to qualify within thirty days, he shall be deemed to have declined to serve, and the vacancy shall be filled by appointment by the county court of some other person. The statute also confers authority on the county court to remove assessors for good -cause shown. It is contended, the same as with respect to the appointment of commissioners, that the court had no authority to appoint in the case of a resignation, but only in case of the failure of an assessor to .qualify. This contention is unsound for the same reason that we have given in reply to the contention in regard to the appointment of commissioners.

It is -also urged that the assessors took the oath before a notary public, an officer who possesses no statutory authority to administer official oaths, and that the whole of the assessment is void for that reason. We do not stop to .analyze the statute for the purpose of determining whether or not an official oath may be made before a notary public,- for we are of the -opinion that a failure to take the prescribed • oath before the proper officer affords no- grounds for nullifying the assessment. Moore v. Jacks, 43 Ark. 243. The decision cited above referred to assessments for general purposes made by the county assessor, but the same reason applies to assessments made by a board of- assessors acting de facto in the assessment of benefits which are subsequently approved in accordance with the terms of the statute. The legal qualifications of the assessors cannot be called in question collaterally -so as to invalidate the assessment.

Nothing remains but to determine the correctness of the court’s ruling with respect to the fairness -and equality of the assessments of benefits. This is purely a question of fact presented upon conflicting testimony, and we find no reason for disturbing the finding of the court on that issue. It would serve no useful purpose to set out the testimony in detail. It is sufficient to say that the finding is supported by the evidence.

The judgment of the circuit court is therefore affirmed.

Hart, J., dissents.

McCulloch, C. J.,

(on rehearing). Counsel for appellant urge for consideration a point thought to have been overlooked by the court, namely, that the original organization of the district is void for the reason that one-fourth of a mile of the road authorized to be constructed lies entirely outside of the district.

The allegation in section “B” of the first clause of the remonstrance in the affidavit for appeal from the county court contains a statement that one-fourth of a mile of the road lies wholly in the southwest quarter of section one, township eleven north, range three west, and that that tract was not included within the boundaries of the district. The plats in the record show that this charge is not well founded, but that the road, instead of running through the quarter-section mentioned above, is on the boundary line between that tract and another tract on the south, which is included in the district. It is true that the southwest quarter of section 1 was not in the boundaries of the original district, but it is a portion of the territory now sought to be annexed. It constituted an error in the original proceeding not to include that tract of land, but its omission was not such a defect as would render the organization void on the face of the proceedings. Hill v. Echols, 140 Ark. 474. The purpose of the statute in authorizing the annexation of territory found to be benefited was to give an opportunity to correct just such errors as may subsequently develop and which do not, on collateral attack, render the organization void.

This question was raised by demurrer to the remonstrance, and the rule is that on demurrer to pleadings the facts are treated as being true for the purpose of testing the sufficiency of the demurrer. This, however, is a special proceeding, and the allegation in the remonstrance comes as a part of the designation or assignment of the grounds of appeal, as provided by statute. Crawford & Moses’ Digest, § 5403. This.statute provides that an owner of real property may appeal from the judgment of the county court establishing the district and shall file an affidavit for appeal, stating in said affidavit the special matter upon which said appeal is taken. ’ ’ The demurrer to the specification in the affidavit reaches back to the record in the case, including the petitions and the plats and the order of the county court establishing the district, and the court has the right, in testing the sufficiency of the demurrer, to consider the allegations in connection with the whole record. We think that the court was correct in deciding that the charge that a part of the road to be constructed lies outside of the district is not sustained by the record.

Counsel reargue some of the questions decided in the original opinion, but we adhere to the conclusions that there was no error in the proceedings, and that the judgment should be affirmed.


text:
    St. Louis Southwestern Railway Company v. Ellis.
    Opinion delivered October 19, 1925.
    1. Railroads — -notice to construct cattle guards — jury question —-Evidence held to raise question for the jury whether notice to -a railroad to construct cattle guards, as required by Crawford & Moses’ Dig., §§ 8478-9, had been given.
    2. Appeal and error — question not raised below. — Objection that plaintiffs as share-croppers were not entitled to sue for damages' to their crop cannot be raised on a-ppeal where it was not raised in the court below.
    3. Damages — destruction op crop — instruction.—A requested instruction that the measure of damages for destruction of a crop is the actual value of the crop destroyed with interest, such value to be estimated in view of all the circumstances existing at the time, 'as well as any time before trial, favoring or rendering doubtful the conclusion that it would attain a more valuable condition, and all the hazard -and expense incident to the process of ■the supposed growth or appreciation, held correct.
    4. Damages — destruction of crop — instruction.—In an action for destruction of a crop it was error to instruct the jury that the measure of damages is the difference between the value of the crop before and after the injury.
    5. Trial — instruction—specific objection. — A request for a correct instruction is tantamount to a specific objection to an erroneous instruction given by the court.
    Appeal from Pulaski Circuit Court, Second Division; Richard M. Mann, Judge;
    reversed.
    J. R. Turney, A. H. Kiskaddon, W. T. Wooldridge and Chas. Jacobson, for appellant.

      8am T. Poe, Tom Poe, and Louis Tarlowski, for appellee.
   Wood, J.

J. H. Lewis, in the year 1922, rented 132 acres of land on what is known as the Martin place, belonging to the Urquhart estate. He turned over twenty acres to Calvin Johnson, twenty-five acres to Charlie Scott, tw'enty acres to Jim Ellis, and twenty acres to Nathan Lewis. J. H. Lewis was to furnish these parties the land and the mules, and they were to raise the crop and give him one-half of what they made and they were to take the other half. The Martin place was situated within Fencing District No. 8 of Pulaski County which was formed in 1921. The district begins at the Arkansas River and runs north to the Iron Mountain fence, which .served as its north and west boundary. The eastern city limits of North Little Rock was the eastern boundary. The Southwestern Railway Company, known as the Cotton Belt, went through the fencing district and through the Martin place. Prior to the creation of the fencing district the railroad company had erected cattle-guards to protect the lands where it entered the Martin place from stock invasion. About the latter part of July, 1922, the cattle-guards were removed because they were in a defective condition and endangered the operation of trains. When the fencing district was created, the eastern limits of North Little Rock was to be taken care of by a city ordinance prohibiting stock from running at large, but the city council failed to take care of that end of the district. The district’s fence was not completed around the western boundary because the county judge would not permit the erection of gates across the road. Immediately after the cattle-guards were removed the cattle began destroying crops of Ellis, Scott, Johnson and Nathan Lewis. J. H. Lewis, who had farmed the lands to these parties, complained to W. H. Miller, the agent <of the Urquhart estate, from whom he had obtained his lease, and Miller notified the Cotton Belt people within a few days thereafter. Miller carried on quite a bit of correspondence with the Cotton Belt people, and they finally replaced the cattle-guards, in the spring of the following year, 1923. Miller wrote Wooldridge, the attorney of the railway company, and also its superintendent at Pine Bluff. Miller did not recall the date that he first wrote, but his recollection was that he notified the railway company soon after J. H. Lewis reported the matter to him,.

Separate actions were instituted by Ellis, Scott, Johnson, and Nathan Lewis against the St. Louis Southwestern Railway Company. The complaints alleged in substance that the tracks of the defendant passed through the lands they farmed in 1922, around which they had a cattleproof fence, and that in July, 1922, after the crops were practically matured, the defendant in violation of the statute removed the stock-guards and did not install them again during the crop season; that by such act they had been seriously damaged. Each set forth a bill of particulars specifying the damage to their respective crops. The defendant answered denying specifically the material allegations of the complaints and set up in defense that the stock-guards were within the territory created by the fencing district; that, after the fencing district had constructed the fence, the cattle were prohibited from running at large within the district, and there was no longer any reason for maintaining the stock-guards in the district. The cases were consolidated for trial. The trial resulted in verdicts and judgments in favor of the respective plaintiffs, from which is this appeal.

The appellant contends that the court erred in refusing to give a peremptory instruction to the jury to return a verdict in its favor because the complaints did not allege, nor was there any proof to show, that a written notice was given to the appellant, as required by §§ 8478 and 8479 of C. & M. Digest. These sections of the statute provide in substance that it shall be the duty of railroad companies to construct and maintain suitable and safe stock-guards upon receiving ten days’ notice in writing from the owner or agent of lands through which the railroad passes, or by any person aggrieved, or his agent, the notice to be served upon the station agent or upon any person upon whom service may be had in the employ of the railroad company, or any officer thereof, and that proof that such written notice was delivered as required shall be sufficient. For a failure to comply with the requirements of the statute, the railroad companies are made liable to the person or persons aggrieved for actual damages and a penalty to be covered by civil action.

Conceding without deciding that the notice required by the above statute was a condition precedent to the recovery by the appellees, we are convinced that under the testimony it was an issue for the .jury to determine whether the above statute had been complied with. While the complaints do not allege that notice was given by the appellees as required by statute, testimony was directed to that issue, as shown by the testimony of Miller already set forth above. In addition to the testimony of Miller the appellant adduced a letter of Miller to the superintendent of the railway company at Pine Bluff dated December 11, 1922, and the testimony for the appellant was to the effect that this was the only notice that the company had received from Miller. But the testimony of Miller as above stated, was to the effect that his recollection was that he notified the Cotton Belt people soon after J. H. Lewis first came to him with the report that the cattle-guards had been removed. lie further states that the letters written to the attorney and superintendent of the railway company referred to in the evidence were not the only correspondence; that his recollection was that he “did receive some- reply, and then the thing dragged on, and they never put the cattle-guards down until the next year.’'’

The court instructed the jury on this issue in effect that notice to the superintendent of the railway company was sufficient, and, if they found that written notice was served on the superintendent of the railway company, they should find for the appellees, if they were damaged after such notice. The issue as to whether notice as required by the statute was given the appellant was thus submitted to the jury under a correct instruction, and the testimony of Miller tended to prove that such notice by letter was given to, and received by,, the appellant. The testimony was therefore sufficient to sustain the verdict on that issue.

The appellant contends that the undisputed testimony shows that the appellees were share-croppers, and as such they did not have such interest in the crops injured as to enable them to maintain this action. But here again we find it unnecessary to decide whether the appellees, under the testimony, were technically sharecroppers, for appellant did not raise that issue'in the court below, and he is therefore not in an attitude to raise it here for the first time. After the testimony was all adduced, the appellant did not move the court to dismiss the action of the appellees on the ground that they were not proper parties to maintain the action, nor did it ask an instruction submitting the issue to the jury as to whether the appellees were share-croppers, and, if so, declaring that they were not entitled to maintain the action. On the 'contrary, the appellant, by its prayer for instruction No. 3, asked the court to instruct the jury that “these suits are by share-croppers alone, and if you find from the evidence that their crops were injured and you fix the amount of the injury according to the measure of damages given in these instructions, you will find for each plaintiff in a sum equal to one-half of said amount, that being their interest in said crop.” Assuming this attitude at the trial after all the testimony was adduced, the appellant must be held to have waived any objection it had to the legal capacity of the appellees to bring and maintain their actions. After stating before the trial court that the appellees had the capacity to sue as appellant did by its prayer for instruction No. 3, appellant will not be allowed to assume an inconsistent attitude here and to obtain a reversal of the judgment on a ground not brought to the attention of the trial court.

The appellant, in its prayer for instruction No. 4, asked the court to instruct the jury as follows: “If you find for the plaintiff in this case, you will assess his damages at the actual value of the crops destroyed, with interest thereon from the date of the injury at the rate of six per cent, per annum. In arriving at this amount you may estimate from all the testimony in the case the value of the crops at the time of destruction in view of all the circumstances existing at the time as well as any time before the trial, favoring or rendering doubtful the conclusion that it would attain to a more valuable condition, and all the hazard and expense incident to the process of the supposed growth or appreciation.” Appellant’s prayer for instruction No. 5 was of similar purport. The court refused these prayers, but gave to the jury the following instruction: “If you find for the plaintiff, you can only find for plaintiff in such damages as he sustained after -the written notice was served on the superintendent, if you find that such notice was served; that is, if you find damages were sustained after such notice. Now, gentlemen, if you find for the plaintiffs, the amount you' 'should find for each plaintiff would be the difference in the value of his crop before and after the injury, if you find from the testimony there was an injury. So, in arriving at the amount of the damage each of the plaintiffs have sustained, you will take into consideration the value of the crop before the damage, if you find there was damage, and the value of the crop after the damage — that is, the difference between the value of the crop before and after, the fair cash market value in each case that you find to be the difference. ’ ’

The case of Railway Company v. Yarborough, 56 Ark. 581, was an action for the destruction of growing crops. We there said at page 619: “The court’s charge properly limited the damages recoverable by the plaintiff to the actual value of the crops destroyed, with interest thereon from the date of the injury at the rate of six per cent, per annum. * * * And the method proper to be observed in ascertaining their value at that time cannot be better stated than by quoting the language used by Mr. Sutherland in treating of the measure of damages applicable to the class of cases to which this belongs: ‘The jury,’ he says, ‘may estimate with the aid of testimony, the value of the crop at the time of its destruction, in view of all the circumstances existing at that time, as well as at any time before the trial, favoring or rendering doubtful the conclusion that it would attain to a more valuable condition, and all the hazards and expenses incident to the process of supposed growth or appreciation.’ ”

Railway Company v. Lyman, 57 Ark. 512, was likewise an action for the destruction of growing crops. In that case, over the general objection of the railway company, the court gave the following instruction: -“If the jury find for the plaintiff, the measure of damages will be the actual cash value of the crops destroyed at the time of the destruction, if the jury find any such to have been proven at the time of the destruction, with interest thereon at the rate of six per cent, per annum from the date of such destruction.” Passing on the objection to the instruction, we said that the rule of damages which that instruction states was approved in Railway Company v. Yarborough, 56 Ark. 612.

In St. Louis, I. M. & S. Ry. Co. v. Hoshall, 82 Ark. 387, a general objection was made to an instruction which reads as follows: “If you find the defendant liable, the measure of damages to the crops is the value of the difference between what was produced and what would have been produced had the water not caused the injury, less the difference between the cost of producing and .gathering what was produced and the cost of producing and gathering an average crop, as you may find from the testimony. ’ ’ In passing upon the objection to the instruction, after quoting and approving the language as set forth above from the opinion in Railway Co. v. Yarborough, supra, we said, at page 391: ‘ ‘ The first paragraph of the instruction above does not follow this rule, but it was not so far variant as to be prejudicial error, in the absence of a specific objection or a request for an instruction to meet the views of ■counsel, and in the form approved by this court. # * While the paragraph under review did not lay down the correct rule for the measure of the damage, it did contain proper elements for the consideration of the jury, in; connection with other facts, in determining what the value of the crop was at the time of its destruction. Counsel should have asked for a more specific direction as to how the damage should be measured, if they so desired. ’ ’

In the case at 'bar counsel for appellant, in addition to the general objection to the instruction as given by the court on the measure of damages, asked an instruction in the precise language approved by this court as the correct rule for ascertaining the damage or actual cash value of the growing crop at the time of its destruction. The court erred in not giving the appellant’s prayer for instruction No. 4, for this instruction was correct in itself, and it was tantamount to a specific objection pointing out that the court had failed, in the instruction given on its own motion as to the measure of damages, to lav down a correct rule, indeed, any rule, for the ascertainment of the value of the crop destroyed. Tn the absence of a correct instruction and proper guide for the jury in ascertaining the measure of the damages to the appellees in the destruction, or partial destruction, of their growing crops, it cannot be said that the appellant was not prejudiced by the jury’s verdict, for it is impossible to determine whether the jury, in fixing the amount of damages, were governed by the proper rule. For the error in refusing to give appellant’s prayer for instruction No. 4, the judgment is reversed, and the cause remanded for a new trial.


author: Humphreys, J.

text:
    Fort Smith Light & Traction Company v. Board of Improvement of Paving District No. 16.
    Opinion delivered October 19, 1925.
    1. Statutes — local act — presumption op notice. — Though Acts 1923, No. 680, was introduced as a general bill and was later converted into a local1 bill by amendment, it will not be presumed that the notice of intention to apply for the act required by Const., art. 5, § 26, was not given.
    2. Constitutional law — arbitrary classification. — Acts 1923, No. 680, providing for paving of streets between the rails of defendant' company, held not to violate Federal or State Constitution as being an arbitrary classification of one company, where there was only one street car company in that locality.
    ¿5. Constitutional law — impairment of obligation of contract.— Where defendant street car company surrendered its charter and operated under an indeterminate permit from the State, under Acts 1919, No. 571, held that Acts 1923, No. 680, imposing the duty of paving the streets between defendant’s rails did not impair the obligation of any contract between defendant and the State.
    4. Statutes — special act conferring corporate power. — Const., art. 12, § 2, providing that the General Assembly shall pass no special act conferring corporate power on corporations, except in certain cases, does not prohibit an act imposing a burden on a corporation.
    5. ■ Constitutional law — power to alter charters. — Acts 1923, No. 680, imposing on street car company the duty of paving between rails, held not to impose an unjust burden on such company and not to be void as imposed in ¡bad faith or through oppression.
    Appeal from Sebastian Circuit Court, Fort Smith District; John E. Tatum, Judge;
    affirmed.

      Hill $ Fitzhugh and R. M. Campbell, for appellant.

      G. L. Grant, George W. Dodcl and Daily & Woods, for appellee.
   Humphreys, J.

This suit was instituted by .appellee against appellant in the Fort 'Smith District of Sebastian County under authority of Act No. 680 of the acts of 1923, to recover $11,272.97 for paving that portion of certain streets occupied by appellant’s street railway. The act, as originally introduced, was general in its nature, applying to all street railways of a certain class in the State, but, as finally passed, was a local act, aimed at the street railway system being operated in the Ft. Smith District of Sebastian; County, and in a part of Crawford County. The act, as passed, imposed the duty on appellant company, and under certain conditions and upon notice, to pave the streets between its rails and to the end of its ties; and, upon failure to do' so, permitted the improvement district in which the tracks were laid to pave the spaces between the rails and to the ends of the ties at the expense of the street railway company. Appellee complied with all the provisions of said act. Appellant refused to comply with the notice and to do the paving’. Appellee then paved that portion occupied by the street railway of appellant at a cost of $11,272.97.

The causé was submitted to the court, sitting as a jury, upon the pleadings and testimony, from which the court made the following finding: “That the expenditure so made by the plaintiff (appellee) was justified and necessary under the facts; that the condition of the pavement between the rails and to the end of the ties of the tracks of the defendant (appellant) on said three streets was such that it was necessary and proper for the plaintiff to do said work and to expend said sums of money.”

Appellant’s main •'defense to the action was the alleged invalidity of act (No. 680 of the Acts of 1923, which was made the basis of the suit. Appellant attacked the constitutionality of the act upon the grounds: first, that notice of the intention to apply for the act was not given in the locality to be affected thirty days prior to the introduction of the bill into the General Assembly as required by article 5, § 26, of the Constitution of Arkansas ; second, that the act offends against the Fourteenth Amendment to the Federal Constitution and the State Constitution in being an arbitrary .classification in operating on one company .alone, while another company in the same classification is exempted from its terms; and third, that the act was in violation of the Federal and State Constitutions prohibiting the impairment of the obligations of contracts.

The act in question was a local bill passed .at a regular .session of the Legislature. It is true that it was introduced as a general bill and by amendment converted into a local bill, but this does not prove that notice was not given in apt time that .application would be made for the local bill. Many general bills are converted by amendment into local bills before passage, -and the presumption must be indulged that proper notice was given under the rule announced in Caraway v. State, 143 Ark. 48. The rule is that where opportunity existed for giving the notice it must be'presumed that it was given.

The act does not offend against the clause of the Constitution inhibiting discrimination between parties similarly situated, because there is only one street railway in that particular locality. There is no other street car line in that particular locality to be classified; so the doctrine of classification has no application.

Prior to the passage of act No. 571 of the Acts of the General Assembly of 1919, appellant operated its street railway system under charters from the cities of Fort Smith and Van Burén, which were of a contractual nature, made subject, however, to art. 12, § 6, in our State Constitution. Camden v. Arkansas Light & Power Co., 145 Ark. 205. Under the provisions of said act 571 of 1919, appellant surrendered its charter rights and accepted an indeterminate permit from the State to operate its street railway system and is still operating its system under said permit. Learned counsel for appellant now contend that appellant exchanged its privileges and burdens under its original franchises of the cities for its indeterminate permit to do business, and that the State could not thereafter impose any of the original burdens contained in the franchises upon it without impairing the obligation of its contract with the State, and that act No. 680 of 1923, which imposes the duty of paving the streets between its rails and to the ends of its ties, is void because repugnant to the 'clauses of the Federal ,and iState Constitutions, prohibiting the impairment of contracts. We cannot agree with counsel in this position. The indeterminate permit was granted just as the original franchises, subject to art. 12, § 6, of our Constitution, which is as follows:

“The General Assembly shall have the power to alter, revoke and annul ¡any charter of incorporation now existing and revocable at the adoption of this Constitution or any that may be hereafter created, whenever, in their opinion, it may be injurious to the citizens of the State, in such manner, however, that no injustice shall be done to the corporation.”

A statute of Connecticut similar to act No. 680, Acts of 1923, was upheld as being within the reserved powers of the State to amend charters which had theretofore been issued to corporations to do business therein. Fair Haven & W. R. Co. v. New Haven, 75 Conn. 442, affirmed by the Supreme Court of the United States in Fair Haven & Westville Rd. Co. v. City of New Haven, 203 U. S. 379. Learned counsel for appellant contend, however, that, because “corporations may be formed under general law, which law may, from time to time be altered or repealed” (§ 6, article 12, of the Constitution); and because “the General Assembly shall pass no special act conferring corporate powers,” except in certain cases (§ 2, article 12, of the Constitution), the General Assembly cannot amend charters by special or local act. The inhibition is that the General Assembly cannot confer corporate powers by special ¡act. The act in question did not attempt to confer corporate powers upon appellant, but to impose a burden within the reserved powers of the State upon it. The Constitution does not prohibit this from being done. Of course, the reserved power of the State to alter, revoke or annul charters issued to corporations has its limitations. It was said in the case of Davis, State Bank Commr., v. Moore, 130 Ark. 135, “That provisions of the Constitution has been construed by this court to empower the lawmakers of the State to amend or revoke charters granted to corporations, without any restriction except that ‘no injustice shall be done to the corporators.’ ” In discussing the exercise of this reserved power, other courts have said that alterations in the charters must be reasonable; that they must be made in good faith; that they must be consistent with the scope and object of the act of incorporation, and that such 'burdens must not be imposed through oppression or wrong. [We have examined the record carefully, and do not think that the burdens imposed by said act No. 680, Acts of 1923, are unreasonable, or that they were imposed in bad faith, or through oppression and wrong. The burden laid by this act was just such a burden as the franchises imposed under which appellant operated and with which it had complied before it surrendered them and accepted the indeterminate permit. The proof revealed that some of the street railways operated in the State are compelled to pave the streets between their tracks and to the ends of their ties when the streets in which they operate hre required to be paved. ' It appears that the work was done in an economical manner. The old foundation between the tracks on Garrison Avenue was utilized. There is evidence tending to show that the condition of the pavement between the tracks needed rebuilding’. The evidence is sufficient to support the findings of the court.

No error appearing’, the judgment is affirmed.