author: Meitaeey, J.

text:
    St. Paul Fire & Marine Insurance Company v. Green.
    Opinion delivered June 23, 1930.

      George A. McConnell, for appellant.

      James G. Coston and J. T. Goston, for appellees.
   Meitaeey, J.

The appellee, B. H. Green, filed suit against the appellant to recover on a fire insurance policy in the sum of $2,500, with loss payable clause to appellee, Denton, for the- loss by fire of a three-story brick building' situated in Osceola, Arkansas. It was alleged that the building was destroyed by fire about May 19, 1929; that the defendant admitted liability to the extent of 80 per cent, of the face of the policy, but denied liability for further amount. Proof of loss was made, showing- the origin of the fire and the extent of appellee’s interest in the property, as well as the cash value of the building. The amount of appellee’s loss was stated and also other insurance covering tire same px-operty. Appellant answered, denying that the huilding was destroyed by fire, alleging that it was only partly destroyed, and that the damage immediately after the fire was capable of being repaired for a sum much less than the amount of insurance carried on said building. The answer also alleged that the policy .sued on i-equired the appellee to protect said building* from depreciation and damage after the fire, and that appellant was not liable for any damages which accrued since the building was damaged by the fire. The total amount of insurance on the building was $1G,000. That the appellant was not liable for a greater proportion than 80 per cent., that the contribution clause had not been complied with by the insured in that he failed to carry insurance in an amount equal to 80 per cent, of the value of the building, and that appellant is liable only for its proportion of the insurance determined by the application of said 80 per cent, contribution clause; denied that the damage was $35,000, and prayed that its liability be determined in accordance with the contract of insurance sued on.

The appellee, B. H. Green, testified that he was the owner of the three-story building* which was destroyed by fire about May 19, 3.929; that shortly after the fire he prepared a proof of loss and furnished it to the company, a copy of which was attached to the complaint. The proof of loss stated that the damage to the building was $35,000; the amount was an estimate made by other parties, appellee had a contractor to examine the building, and he agreed to repair it for $20,000. Appellee carried $16,000 insurance on the building*.

J. B. Bunn testified that he was manager of the Osceola Lumber Company, which is engaged in selling building material and in building houses; witness had been in the business ten years and was familiar with the value of building materials; bad examined tbe damaged building, and, if his company took a contract to restore it, it would tear it down to tbe ground; tbe walls are not in a condition to put another story on without tearing them down and using the material over; would not tear them down for them; had never torn down an entire ■building in Osceola; the wall in front has got a number of cracks in it, but does not remember whether there are cracks in the side wall or not. The estimate witness made was in October, and the fire had occurred in May; had seen the building every day since the fire; does not think, if they had begun to reconstruct the building the next day, they could have used the old building.

Jake Counts, a witness, testified that he does general contracting’ and handling of retail lumber; had examined the building in question; thought possibly the east wall could be used to a good advantage, but would advise tearing down the qther walls; the building would be damaged between the time of the fire in May and the time witness inspected it.

Claude Thompson testified that he was engaged in contracting and building, and has been for 25 years; was through the building in question a day or two after the fire; would not consider it wise to use the remnant of the building; does not think it would be safe; some brick in the building could be used, but they would have to be cleaned, and it would cost from one-half to one cent to clean them; thinks the east wall might have been used.

Wasson Pruitt testified that he was fire chief in Osceola and was at the fire which destroyed the building; it was a hot fire and hard to handle; something like 100,000 gallons of water was pumped into the building while it was hot; the next day the water was dripping, and there were from two to six inches of water on the first floor.

R. A. Cartwright testified that it would cost more to raze the building and clean the bricks than they were worth.

Witness Counts was recalled, and said that he did not think the brick part of the building’ had deteriorated since the fire; when you turn water on a brick wall, it causes the brick to crack and scale.

Witness Bunn was recalled and testified that when you put water on brick or any other clay product when it is hot, it will crack. The water was played all over the building and they tried to break out every window glass in it. There was a composition roof on the building, and it makes the best kind of fir© there is.

James E. Fairies, a witness for appellant, testified that he lived in Memphis, was a general contractor, and had engaged in that business, for 30 years. He estimated the amount it would take to repair the building at $12,498.56; his estimate contemplated taking off the top floor brick work, ceiling joists, roof joists and burned joists on the second floor, replacing the flooring, etc.; made a -careful inspection of the condition of the building; the walls were all right below the third floor; there was no fire below th© top floor of the building; the third floor would have had to be rebuilt entirely with new brick; witness was employed by Overstreet, the fire adjuster, to make the estimate and was paid for his work by the insurance company. Witness estimated the building was damaged not over one-third, and that it had been damaged between the time of the fire and the time when he made his estimate.

Q. M. Baxter testified that he lived in Blytheville, and was employed by the East Arkansas Lumber Company, engaged in the retail lumber business; that he had been in business 19 years and had -made estimates, executed contracts and repaired buildings; was called on by the insurance adjuster to make the estimate-; his estimate for repairing the building was $15,747.50. The estimate included the removal of the third story, replacing with new brick and new roof. Witness found on examination of the walls that there was some repair necessary on the front wall and the west wall, that the rest of them could be used as they were. The building was damaged about one-third. The work done according to his estimate would have made a better building than it was before the fire; was employed by the insurance company to make the estimate.

J. B. Ballew testified that he was called by the insurance company to make an estimate and inspect the building on October 1; was a general contractor and had been engaged in the business at Jonesboro and all through the country, about 25 years; had made a careful inspection of the building to see whether it was a total loss. Estimate contemplated building third story new; estimated that the building was damaged about 35 per cent, to 40 per cent.; that a great deal of the damage had been done to the building between the time of the fire and the time he made the estimate; had had experience in repairing damaged buildings; the amount of his estimate was $12,507.15.

Eric Rog'ers testified that he engaged in the general insurance and bonding business, and that his company would make a bond for Ballew and guarantee that he would carry out the estimate he made for restoring and repairing the building.

I. C. Sparks testified that he was general representative of the insurance company; that the policy was written for $2,500 that the total insurance carried on the building was $16,000; that the insurance was written at the rate of $1.77 less $0.25 per $100. The regular rate was $1.77; the reduction was given due to the assured’s desire to have the insurance written subject to 80 per cent, contribution clause.

B. H. Green was called in rebuttal and testified that the insurance company did not offer to restore his building at the figures given by witnesses for defendant. The building was 25 or 26 years old.

W. E. Overstreet was recalled by appellant, introducing a copy of the proof of loss which showed that the building- was worth $35,000 and could be repaired for something over $20,000. "Witness then read the clause from the policy.

The case was' tried before a jury and a verdict rendered for the appellees for the amount sued for, with interest at 6 per cent, per annum from September 10, 1929. The appellee thereupon called S. R,. Simpson, a lawyer of standing- and experience, who testified that he thoug-ht $600 or $700 would be a fair fee in the case. Judgment was entered for the amount of the verdict, 12 per cent, damages and $600 attorney’s fees. The case is here on appeal.

Appellant contends that the attorney’s fee allowed by the trial court is excessive. The suit was for approximately $2,500, and the court allowed an attorney’s fee of $600. While the amount sued for was $2,500, the appellant did not contest appellee’s right to recover, but contended that there was not a total loss, and that appellant was only liable under the 80' per cent, contribution clause of the contract. The contention of the appellee is that, if the judgment is supported by any substantial evidence, it will not be disturbed by this court. The ap-pellee introduced S. R. Simpson, a lawyer of standing and who had been engaged in the practice for 42 years, and he testified that he thought $600 or $700 would be a fair fee. The general rule is that, if there is any substantial evidence to sustain the verdict of a jury, it will not be disturbed by this court. The reason for this rule is that the jurors are the judges of the credibility of the witnesses and the weight to be given their testimony. When the findings of fact are by the judge sitting- as a jury, the same rule applies. This rule, however, has never been followed in cases where the value of an attorney’s services was involved.

In a recent case we said: “In Sain v. Bogle, 122 Ark. 14, it was held, in determining what is reasonable fee for an attorney, ‘it is competent to consider the amount and character of the services rendered, the labor, time and trouble involved, the nature and importance of the litigation or business in which the services are rendered, the amount or value of the property involved in the employment, the skill or experience called for in the performance of the services, and the professional character and standing- of the attorneys’.” Shackleford v. Ark. Baptist College, ante p. 363; Valley Oil Co. v. Ready, 131 Ark. 531; Bayou Meto Drain. Dist. v. Chapline, 143 Ark. 446. Opinion evidence of expert witnesses as to the value of an attorney’s services is not conclusive. 2 R. C. L. 1061; 6 C. J. 762; Collum v. Mock, 21 La. Ann. 687; Randolph v. Carroll, 27 La. Ann. 467; Baldwin v. Carleton, 15 La. Ann. 252.

We are of opinion, after a review of all the evidence, including the nature of the litigation, the amount in controversy, the labor, time and trouble involved, that $300 is a fair compensation.

It is next contended by the appellant that there was not a total loss. The building was a three-story brick building, and the third story was entirely destroyed. The walls of the first and second stories were standing after the -fire. There was a conflict in the evidence as to whether the building- could-be repaired. J. B. Bunn testified that the walls were not in position to put another story on without tearing them down and using the material over, and that he would not tear them down for them. He said the wall in front had a number of cracks in it. This witness said he had seen the building every day since the fire, and he did not think, if they had begun to reconstruct the building the next day, that they could have used that old building. Other witnesses of appellee testified to substantially the same facts. There being a conflict in the evidence as to whether the part of the building left standing could have been utilized, it was a question for the jury. If the material that was not destroyed could not be utilized, the building was a total loss within the meaning of the policy. “The cases all agree that the insurance of a building is upon the building, and not on the materials which compose it, and that the total destruction of a building within the meaning of an insurance policy means its complete destruction as a building, but not necessarily the absolute extinction of all its materials, or even that no part of it can be left standing. But just the extent to which a building must be destroyed in order to be a total loss is a question on which the courts are divided. Some courts hold that if the building* loses its identity and specific character by fire, although a large part of the materials or component parts are left standing, it is a ‘total destruction’ within the meaning of the policy. Other courts take the position that there cannot be a total loss so long as the remnant of the structure standing is reasonably adapted for use as a basis upon which to restore the building to the condition in which it was before the fire; and that whether it is so adapted depends upon the question whether a reasonably prudent owner, uninsured, desiring such a structure as the one in question was before the fire, would in proceeding to restore it to its original condition utilize such remnant as such basis. Under the latter view the remnant must have formed a substantial part of the building.’-’ 14 R. C. L., p. 1302.

If a building is destroyed, as a building, so that the walls, although remaining, are in such a condition that they will have to be torn down, there is a total loss. Williams v. Hartford Ins. Co., 54 Cal. 442; Oshkosh Packing & Provision Co. v. Mercantile Ins. Co., 31 Fed. 200; Penn. Fire Ins. Co. v. Drackett, 57 N. E. 962; Teter v. Franklin Fire Ins. Co., 82 S. E. 40; German Ins. Co. v. Eddy, 54 N. W. 856; Seyk v. Millers’ Nat. Ins. Co., 41 N. W. 443; Roquette v. Farmers’ Ins. Co., 191 N. W. 772; Lowry v. Fidelity-Phoenix Fire Ins. Co., 272 S. W. 79; Fire Association v. Strayhorn, 211 S. W. 447; Ins. Co. v. Heckman, 67 Pac. 879.

The court gave the jury the following instruction:

4. As to what a total loss is, it becomes necessary for the court to give you some information, and on that point you are instructed: If you find from a pre-ponder-anee of the evidence in the case that the building was burned, and that it was so far destroyed that no substantial part or portion of it remains in place capable of being utilized to advantage in restoring the building in the condition in which it was before the fire, then it is a total loss. On the other hand, there can be no total loss if the remnant of the structure standing is reasonably adapted-for use as a basis upon which to restore the building to the condition in which it was before the fire, and whether or not the remnant of the building is adapted to use as a basis to restore the burned building to its condition before the fire depends on the question whether a reasonably prudent owner, uninsured, desiring such a structure as the building-was before the injury, in proceeding to restore the building to its original condition, would utilize the remnant. ’ ’

This was a correct instruction as to what constitutes a total loss. The jury having found that there was a total loss, it becomes unnecessary to discuss co-insurance and percentage clauses. Section 6147 of C. & M. Digest reads as follows: “A fire insurance policy, in case of total loss by fire of the property insured, shall be held and considered a liquidated demand against the company taking such risk, for the full amount upon which the company charges, collects or receives a premium; provided the provisions of this article shall not apply to personal property.” Farmers’ Home Mutual Fire Assn. v. McAlister, 171 Ark. 574.

Appellant insists that the court erred in permitting witness Counts to testify with reference to the condition of the building at the time of the trial, and to testify that the building would have to be torn down. This witness testified that he saw it a few days after the fire, and that he did not think the building had deteriorated any since the fire. He also testified that the walls would have to be torn down. This testimony was competent. Appellant introduced evidence as to the condition of the building*, and that the walls would not have to be torn down. The question was whether there was a total loss, and each party had a right to introduce testimony tending to show whether the walls could or could not be utilized. If they could be utilized, there was not a total loss; if they could not be utilized and would have to be torn down, there was a total loss. The court did not err in permitting witness Cartwright to testify as to the cost of removing and cleaning the brick. Most courts hold that where there is a total loss of the building but not of the materials, it is proper to show the value of the materials because, if the insurance company pays for a total loss, it is entitled to the value of the materials that are not destroyed. It was therefore proper to show that the cost of removing and cleaning the brick would be as much as they would be worth. Appellant insists that witness Ballew should have been permitted to testify that the building was not a total loss. We do not agree with appellant in this contention. The question to be determined was whether it was a total loss. This was a question of fact for the jury, and it depended in this case on whether the walls could be utilized. This witness was permitted to testify and did testify to the facts, and it was not proper for him to give his opinion as to whether it was a total loss. The court properly instructed the jury, and there was substantial evidence to sustain the verdict.

The attorney’s fee will be reduced to $300, and the judgment affirmed.


source: Caselaw Access Project

author: M cHaney, J.

license: Public Domain

text:
    Robbins v. Robbins.
    Opinion delivered June 23, 1930.

      Louis J. Moore and G. B. Andrews, for appellant.
   M cHaney, J.

Appellant, Lula May Robbins, sued appellees alleging- in her complaint that she is the lawful wife of William Harrison Bobbins who was, at the time of their marriage, the owner of an undivided one-half interest in certain real estate in the.city of Hot Springs; that her husband acquired title thereto by conveyance from A. L. Rowan to her husband and his then wife, the appellee Lois Robbins; that in October, 1929, said W. H. Robbins and appellee Lois Robbins conveyed said real estate to appellee Dozier as trustee for Lois Robbins, who agreed to convey to Lois and had done so; that, as the wife of W. H. Robbins, she was entitled to a dower interest therein of one-third oif his one-half interest, for which she prayed judgment.

The court sustained a demurrer to this complaint, dismissed same for want of equity, and the case is here on appeal.

The demurrer was properly sustained. The complaint failed to state a canse of action. Appellant’s right of dower is inchoate. Dower does not ripen into- an estate or an interest therein until the death of the husband. Whether appellant has a possibility of dower in the real property owned by her husband and a former wife, who is still living, as an estate by the entirety, -we do not discuss. It is sufficient to say that her right of dower therein, if any, has not accrued, and the complaint, therefore, failed to state a cause of action.

Decree affirmed.


author: McHaNey, J.

text:
    Whitaker Manufacturing Company v. Barber.
    Opinion delivered June 23, 1930.

      Carmichael & Hendricks, for appellant.

      June P. Wooten, for appellee.
   McHaNey, J.

In 1927, appellant sold goods to the Turner-Shannon Company of Little Rook, and on January 1, 1928, the latter was indebted to appellant in the sum of $4,724.27. On January 12, 1928, the Turner-Shannon Company made an assignment to appellee, for the benefit of creditors, who filed same in the Pulaski Chancery Court and invited creditors to present their claims. Appellant filed an intervention, to which was attached an itemized account describing’ the property it had sold the assignor and which it could identify, and claimed the right to retake the property it could identify as having been purchased from it through fraud. It identified $2,308.28 worth of its property in the .hands of the assignee at invoice prices. The court ordered all the assets in the hands of the assignee sold, that claimed by appellant to be sold separately. Although appellant objected to the sale of its property, it did not appeal and must be held to have consented thereto. This property claimed by it sold for $1,000. On a trial the chancery court held appellant was entitled to this $1,000, but the assignee appealed to this court. The decree was affirmed. Barber v. Whitaker Mfg. Co., 180 Ark. 183. Appellant was paid the $1,000. It thereafter filed a second intervention claiming interest on this $1,000 from the date of the decree to the time of payment, and also claiming the right to be a g’eneral creditor for the balance of its account, less $1,000, in the sum of $3,724.27. Appellee answered, denying, (1), appellant’s right to interest on the ground that the fund was a trust fund, held in court in lieu of the property, and (2), alleging that appellant had been awarded all the goods demanded and identified by it under its first intervention, and was not entitled to have a claim ifor the difference between the sum realized and the whole bill. The court overruled appellant’s demurrer to appellee’s answer. Appellant declined to plead further, and its intervention was dismissed for want of equity. Hence this appeal.

We are of the opinion that the trial court correctly held that appellee’s answer stated a good defense to appellant’s demand for interest. The goods claimed by appellant and identified by it in the sum of $2,308.23 were sold by order of court for $1,000. Appellant had the opportunity of bidding more for the goods, but it failed to do so.. The money for which the goods were sold therefore took the place of the goods and became a fund in court, title to which was litigated to a final determination in this court to be the property of appellant. If the goods had not been sold and had been kept intact, and finally awarded to appellant, certainly it would not have been entitled to interest on the judgment for the property. Since it elected to permit the property to be converted into money, and to litigate the title to the money, it necessarily follows that appellant is not entitled to collect interest on the money.

As to the second proposition, however, that appellant is entitled to file a claim for the balance due it and become a general creditor entitled to participate in the distribution of the fund in the hands of the assignee, we are of the opinion that the court erred in overruling the demurrer of appellant to the answer of appellee. The amount of its claim, however, should be the difference between the invoice price of the goods identified by it, $2,308.23, and the whole amount of its bill, $4,724.27, or $2,416.04. Appellant contends that it should become a general creditor for the sum of $3,724.27, instead of the sum heretofore stated for the reason that it realized only $1,000 for the goods it identified and which were sold for said sum, but we cannot agree with appellant in this regard. It permitted its goods of the value -of $2,308.23 to be sold for $1,000 when it might have required the delivery of the goods or might have bid them up at the sale to the invoice price without loss to itself. Having elected to permit the goods to be sold, the whole amount of its bill must be credited with the amount of the invoice price as hereinbefore stated.

It appears to be the general rule, supported by courts of last resort and text winters throughout the country, that where, as here, goods are sold on account of fraudulent representation of the buyer as to his solvency, the seller may, when he discovers the fraud which induced the sale, rescind the contract of sale, repossess such of his property so obtained as he may be able to find and identify in the possession of the buyer, and also maintain an action against the buyer for the value of the goods not found. In 24 R. C. L., § 616, p. 330, it is said: “It has been held, and it seems properly, that if the buyer has resold the goods or a part thereof, the seller, after recovering those which he can reach, may waive the tort as to the balance and maintain assumpsit for the proceeds, on the implied promise to pay for property wrongfully appropriated.”

To support this statement of the law the cases of Silvey v. Tift, 123 Ga. 804, 51 S. E. 748, and Sleeper v. Davis, 68 N. H. 59, 6 Atl. 201, are cited and support the statement above quoted.

Appellee contends however that appellant is estop-ped from claiming the difference between the value of' the goods found and its whole bill on the theory that in its first intervention it attached an itemized list of such goods thereto which it said it could identify of the full value of its bill, and that, since such of the goods as were identified were sold and the proceeds turned over to appellant, it ought not to be permitted to file a claim for the balance. We do,not agree with appellee. Appellant could have identified all of its goods if they had been on hand and in the possession of the assignee. Only goods of the value of $2,308.23 were on hand to be identified, the presumption being the remainder had been disposed of. Had all the goods been on hand, and sold by order of court, then appellant’s claim would have been satisfied in full by delivering to it the purchase price of all its goods. We do not feel constrained to follow the opinion of the court in Farwell v. Myers, 59 Mich. 179, where the majority held contrary to the views herein expressed. We think the dissenting opinion in that case and the views herein expressed more clearly mete out exact justice.

The decree will therefore be affirmed as to the claim for interest, but in all other respects it is reversed and remanded with directions to allow the claim in the amount herein stated.


author: 'Butler, J.

text:
    Laflin v. Interstate Construction Company.
    Opinion delivered June 23, 1930.

      W. N. Martin and Alley é Olney, for appellant.

      Minor Pipkin, Daily ■& Woods and C. W. Knott, for appellee.
   'Butler, J.

The appellant brought suit in the Polk Circuit Court for alleged damages for trespass of land owned by her. The case was submitted to a jury under proper instructions and on conflicting testimony. From a verdict and judgment adverse to her, appellant has prosecuted this appeal on the .ground that the court should have, directed a verdict in her favor under the undisputed facts in the case, because under any view of the testimony, she would be entitled to nominal damages.

It is well settled that in the absence of a showing of actual damages a judgment will not be reversed and remanded because of a technical evasion of some right whidh would result in the assessment of nominal damages.

The proof is undisputed that the appellant was the owner of the land over which the highway was built, and that a small house was occupied for a time as a blacksmith shop by the persons building the highway. There is testimony on behalf of the appellant tending to show that the house was damaged by the appellee in the construction operations and her husband, who testified as her agent, testified that the damage amounted to as much as $600. There was also some testimony to the effect that some rock had been piled on appellant’s land and brush and stumps taken from the right-of-way and burned, the fire from which spread to, and damaged some young timber; also, that a quantity of rock was taken from the appellant’s land and used in the construction of the highway and forest roads cut through her timber for the purpose of moving rock from her lands; that a stone crushing equipment was installed upon said land without appellant’s consent and was operated thereon and a quantity of broken rock left near the place where it was situated, but it was not shown in what particular or to what extent the appellant’s land was damaged by the alleged unauthorized acts of appellee.

The testimony of the appellee tended to show that the stone crushing’ outfit was situated on a public road which ran through the land of the appellant, and that the rock used was taken from said road and the residue left from the operation of the crusher amounted to only a small quantity, and this also was on the said road; that all the stumps, timber and brush removed in the construction of the highway were placed on the edge of the right-of-way and there burned at a time designated bjr the Federal officials in eharg'e of the preservation of the nearby forests; that no stone was piled on the appellant’s land but only small quantities were piled on the right-of-way; that no timber was destroyed by fire or otherwise, and that the house used for a time to shelter a forge was an old dilapidated structure having no value and that it was not damaged by any act of the appellee, or his employees.

All of the claims for actual damage were disputed, and this question having been submitted to the jury under proper instructions, their verdict is conclusive here, as they are the sole judges of the credibility of the witnesses and the weight to be accorded their testimony. Under the settled rule the verdict of the jury will not be disturbed in such a state of case. But there is no dispute that there was an unauthorized occupation of appellant’s property, and, while there will be no remand for a new trial, under the authority of Crutcher v. Choctaw, O. & G. R. R. Co., 74 Ark. 358, 85 S. W. 770, the judgment will be reversed and judgment entered here for appellant for all the costs, including that of this appeal. It is so ordered.


author: Butler, J.

text:
    Shaver v. Nash.
    Opinion delivered June 23, 1930.

      Shaver, Shaver & Williams, for appellant.

      King, Mahaffey, Wheeler é Bryson, for appellees.
   Butler, J.

On May 27, 1927, suit was begun in the Miller County Chancery Court by Mrs. Myrtle E. Nash and Vernon J. Bush, respondents herein, against Phyllis Ernestine Gill (also called Phillis Ernestine Nash), a minor, the petitioner herein. The object and purpose of this suit was to annul and set aside a certain adoption proceeding, wherein and whereby said minor had, on the 15th day of January, 1915, under the laws of Texas, been adopted by Mannie J. Nash, and the said Myrtle E. Nash. It was alleged in said complaint that Myrtle E. Nash was the widow of Malmie J. Nash, deceased, who theretofore were married .September, 1900, and lived together in the marital relation until the death of Mannie J. Nash, August 25, 1921. That on the 6th day of October, 1908, Mannie J. Nash executed his last will and testament, -bequeathing all his property to the said MArrtle E. Nash except a few small devises to near relatives. There was no issue, the result of said marriage, and no adoption other than the adoption of January 15, 1915. Answer to said complaint was filed by James D. Shaver, as guardian acl litem for the minor, in which a specific denial was made to each allegation, and, in addition to said denials, it was alleged that said adoption was valid, legal, and binding, and that plaintiffs were estopped to deny its validity, or to contradict or change the statements therein contained. On September 20, 1927, a trial of said cause was had, and decree rendered wherein the court found said adoption proceedings to be valid and in conformity to the laws of Texas. Notwithstanding, the court found said adoption to be in conformity to the laws of Texas, the court by said decree set aside and annulled said adoption and decreed and quieted the title to said property in Mrs. Myrtle E. Nash and Vernon J. Bush, to the exclusion of any and all rights and claim thereto of the said minor.

The respective contentions of the parties to this suit are stated in brief of the petitioner as follows: “Petitioner contends that the minor’s status and rights by virtue of her adoption are the same as if she were a child of the 'blood of the adopter, and that her right to the property is not cut off or affected by the will. Respondents contend that the status and rights of the minor are in no sense those of a child, but that she possesses only the status and rights of a limited or qualified heir, and that such rights are completely cut off by the will. ’ ’

We are of the opinion that the chancellor was correct in the conclusion reached. The proceedings in Texas did not in any respect comply with our adoption statute, chapter 2, §§ 252-256, inclusive, Crawford & Moses’ Digest. This statute provides that an adoption shall be by court proceeding begun by the filing of the petition in the probate court stating the name of the petitioner, that of the child sought to be adopted, its age, whether it has any property, whether the child has either father or mother living, and, if so, their residence. The consent of the parent is required, which consent must be given in open court except where it is shown by competent testimony that the residence of the parent is unknown. It is also provided that a formal order shall be made and entered of record reciting all of the necessary jurisdictional facts, which order shall declare the child adopted, and thereupon the adoptive parent shall occupy the same position towards such child as if he were the natural parent and be liable and responsible as such, and the child shall receive all the rights and interests in the estate of the parent by adoption that such child would have if it had been the natural heir of the adoptive parent.

By articles. 42 and 43 of the Revised Civil Statutes of Texas a mode of adoption is prescribed which was followed by the respondents in the instant case. Article 42 provides as follows: “Any person wishing to adopt another as his legal heir shall file in the office of the county clerk of the county in which he resides a written statement signed by him and duly authenticated or acknowledged as deeds are required to be, reciting in substance that he adopts the person named therein as his legal heir, and the same shall be admitted to record in said office.” Article 43 is as follows: “When such statement is so recorded, it shall entitle any child so adopted to all the rights and privileges, both in law and equity, of a legal heir of the adoptive parent, as a child has by law against lawful parents. If the adoptive parent has at the time of such adoption, or shall thereafter have, a child begotten in lawful wedlock, such adopted heir shall in no case inherit more than one-fourth of the estate of the adoptive parent. ’ ’

A comparison of the Arkansas and Texas statutes disclos'es their essential dissimilarity, and it is apparent that the rights conferred on the child and the liabilities assumed by the adoptive parent are different. It is also clear that under the statutes of this State there was no adoption (O’Connor v. Patton, 171 Ark. 63; Minetree v. Minetree, ante p. 111), and whatever rights were conferred on the petitioner are only such as accrued by virtue of the Texas statute, and we must adopt the construction placed thereon by the courts of that State.

■Section 10,506, Crawford & Moses’ Digest, provides that “whenever a testator shall have a child born after the making of his will, * * * and shall die, leaving such child, * * * in any .settlement, and neither provided for nor in any way mentioned in his will, every such child shall succeed to the same portion of his father’s estate * * * as would have descended or been distributed to such child if the father had died intestate # # * J ?

Section 10,507. Id. provides: “When any person shall make his last will and testament, and omit to mention the name of a child, if living, * * * every such person, so far as regards sucli child, shall be deemed to have died intestate, * * V’

There is a similar statute in the State of Texas the same being article 8292 of the Revised Statutes of that State, providing that “if a testator have a child, or children, both at the time of making his last will and testament, shall at his death, leave a child or children born after the making of such last will and testament, the child or children so after born and pretermitted shall, unless provided for by settlement, succeed to the same portion of the father’s estate as they would have been entitled to if the father had died intestate; * *

The Supreme Court of Texas, in the case of Bell v. Thomsen, 273 S. W. 1109, in construing and interpreting articles 42 and 43, supra, after citing and reviewing a number of cases, said: “It is settled that the effect of adoption under these statutes was not to invest the adopted person with any contractual or property right, nor to induct him into the family of his adopter, but was solely to make him a legal heir for the purpose of inheritance, subject to being pretermitted by will, and, in the absence of the latter, entitled to priority, if he were alive at the death of the adopter, to persons in any remoter rank of descent. ’ ’

Respondents have cited a number of other cases of the Texas courts to the same effect as the holding in the Bell case, supra, which we think it unnecessary to discuss.

Under the adoption statute of Arkansas an adopted child not only becomes an heir, but its surviving parents solemnly renounce parenthood, which vests all its attendant liabilities on the parent by adoption. The adopted child ceases to be a member of the family of its natural parents and becomes a member of the family of the adoptive parent who has the custody and control of it, and it becomes, not merely the heir, but the child, bom such by the will of the adoptive parent. The status of a person adopted under the Texas statute cited above as construed by the courts of that State is not that of child; lio retains all Ms rights to the protection, and to the estate oif his natural parent, who does not surrender any of his rights with respect to the child, for, as is said in Harle v. Harle, 204 S. W. 317, citing with approval the case of Eckford v. Knox, 67 Tex. 200: “Adoption under our statute does not constitute the adopted person a member of the family of the adopter and does not confer the privileges or impose the duties which arise from the relation of parent and child.” In contending that the petitioner inherits, notwithstanding the will of the respondents, counsel for the petitioner states that, because a limited or qualified adoption is unknown to the laws of this State, a contrary view wuuld be in contravention of public policy, because “the unqualified terms of our adoption statute make the adopted child the same as the child of the blood and clothes it with all the rights of inheritance accorded to the child of the blood.” A sufficient answer to this has already been made. The child was not adopted under the terms of our statute, nor of a similar statute, and as is said in O’Connor v. Patton, supra, “the right of inheritance as such is conferred in our State upon a stranger in blood only by pursuing the special statutory proceeding for adoption.”

It follows from what we have said that the decree of the chancery court was correct, and, treating the proceedings had as proper, the prayer of the petitioner will be denied.


author: Hart, C. J.

text:
    Lincoln v. McGehee Hotel Company, Inc.
    Opinion delivered June 30, 1930.

      Carmichael <& Hendricks, for appellant.

      Bose, Hemingway, Cantrell <£> Loughborough, for appellee.
   Hart, C. J.

Appellant brought this suit in equity against the appellee to enjoin it from erecting two smokestacks which will be attached to a fourteen-story building across a street upon which abuts the building of the appellant. The record, shows that the appellant and the appellee are the owners of lots in block 79 of the city of Little Bock. Appellant owns lots 1, 2 and 3 on the north side of what is called Bridge 'Street, extending east and west through said block, and has a four-story building which faces Main Street on the east and Bridge Street on the south. Appellee is building a fourteen-story concrete hotel on lot 12 which faces Bridge Street on the north, and Main Street on the east. Bridge Street is twenty feet five inches from the wall of appellant’s building on the north to the wall of the proposed building of the appellee on the south side of Bridge Street. The city council gave the appellee permission to erect two smokestacks, respectively forty-four and forty inches in diameter, which are to be placed on a bracket or shelf eighteen feet above the surface of Bridge Street. The bracket upon, which the smokestacks will rest is entirely above the traffic of the street, and will not interfere with it. The smokestacks will be riveted into the hotel building and will be as solid as the wall of the hotel. Bridge Street was dedicated in the year 1839 and the dedication recites that the abutting property owners retain a fee in the alley or street subject to the use of the public.

Other facts will he stated or referred to in the opinion.

The complaint was dismissed for want of equity, and the case is here on appeal.

Counsel for the appellant base the right to injunctive relief on the ground that the act complained of constituted a permanent encroachment upon Bridge Street and thereby became a public nuisance which the appellant, as abutting owner of real property, was entitled to abate because he was specially injured. Ruffner v. Phelps, 65 Ark. 410; Sander v. Blytheville, 164 Ark. 434.

At the outset it may be well to define the rights of all parties concerned. Subject to the easement of the public in a street to enjoy and use as a highway, the fee therein belongs to the owners of the adjacent lots. Packet Co. v. Sorrels, 50 Ark. 466; Hoxie v. Gibson, 150 Ark. 432; Dent v. Bowers, 166 Ark. 414. Tinder § 7607 of Crawford & Moses’ Digest the city council has the care, supervision, and control of all the public streets and alleys within the city, and it is made the duty of the council to cause the same to be kept open and in repair and free from nuisance. Tinder the principles of law decided in these cases and many more which might be cited, abutting owners of real property have a right to enjoin the council from permitting or any one from making any permanent encroachments on the streets of the city on the ground that such encroachments constitute a public nuisance, and the abutting owners are entitled to injunctive relief where they allege and prove special injury. In the application of these well settled principles of law, this court has repeatedly held that the erection of permanent structures, or the act of closing in part or in whole any public street or alley, entitles the abutting owners of real property to abate the same by injunction. Davies v. Epstein, 77 Ark. 221, 227; Simon v. Pemberton, 112 Ark. 202; Osceola v. Haynie, 147 Ark. 290; Brewer v. Mo. Pac. R. R. Co., 161 Ark. 528; Langford v. Griffin, 179 Ark. 577. The reason for granting injunctive relief in each case is that the abutting property owners has been deprived of egress and ingress to and from his property, and that this constitutes a special injury to his property which differs in kind from that suffered by his neighbors. In the case at bar no special injury of this kind is shown. The smokestacks are placed on a bracket above the street, so that the ingress and egress to the property of the appellant is not in any wise affected. The smokestacks are securely fastened to the wall of the building, so that, according to the evidence introduced, they are a part of the building itself and will stand as long as the walls of the building stand.

The evidence for the appellee also shows that there will be a shadow cast by the wall of the building which is to be erected by the appellee over the building of the appellant, so that the light entering the building of appellant will not be affected by the erection of the smokestacks. In other words, the testimony shows that the shadow cast by the building would affect the light entering the appellant’s building just as much without the smokestacks as -with them. It is also contended by counsel for the appellant that his right to the air entering his building will be affected by the erection of the smokestacks in the alley. We do not think the proof on this phase of the case is sufficient to entitle the appellant to injunctive relief. It is a matter of common knowledge that houses are built close together in cities, and the slight interference with the air entering appellant’s building will be merely an incident to city life, and, according to the proof, will not be of sufficient disturbance to his rights to entitle him to the injunctive relief prayed for,

The decree is therefore affirmed.


author: Humphreys, J.

text:
    McKim v. Highway Iron Products Company.
    Opinion delivered June 30, 1930.

      R. W. Robins and Opie Rogers, for appellant.

      J. C. & Wm. J. Clark, for appellee.
   Humphreys, J.

Appellant brought this suit in the nature of an equitable garnishment against appellees in the chancery court of Faulkner County making a judgment he obtained in the year 1925 in the circuit court of Van Burén County against the Highway Iron Products Company the basis of the action to impound the amount of $1,530 due from Faulkner County to said Highway Iron Products Company for bridge material, and to have same applied toward the payment of his judgment. It was alleged that the Highway Iron Products Company was a foreign corporation, and had no property in Arkansas out of which to collect his judgment except the claim Faulkner County owed it. Appellant prayed that W. M. Harper, county judge, and A. H. Burkitt, county clerk, be enjoined from issuing a warrant for said claim to the Highway Iron Products Company, and that the proceeds thereof be impounded and applied to the payment of his judgment.

The Highway Iron Products Company made no defense of any kind, but Isaac Weil and Albraham Weil, partners doing business as Weil Brothers, filed an intervention claiming an assignment of the claim from the Highway Iron Products Company to them before appellant impounded the proceeds thereof, in part payment of a debt which it owed them.

The issues joined as to whether there was a bona fide assignment of the claim -by the Highway Iron Products -Company to- the interveners, and whether -the transfer thereof met the requirements of the law, were submitted to the court upon the testimony adduced which resulted in a decree dismissing appellant’s complaint for the want of equity, from which is this appeal.

The trial court found that the Highway Iron Products Company assigned its claim against Faulkner County for the bridge material to the interveners on July 6, 1928, in part payment of a mortgage which it owed them, and, after a very careful reading of the testimony, we are unable to say that the finding for them was contrary to a clear preponderance of the evidence. This disposes of the first issue.

■ This brings us to a consideration and determination of the issue of whether the assignment was valid as against appellant. The assignment of the claim was in the form of an indorsement upon the invoice of the bridge material, and recited that for value received the same was assigned to Weil Brothers erf Fort Wayne1, Indiana; the indorsement being signed by C. Y. Joseph, president of the Highway Iron Products Company. The claim against the county had been filed by the Highway Iron Products Company before it was assigned to the inter-vener. The filing of the claim against the county was the commencement of an action thereon. It was said b3r this court in the case of Jefferson County v. Philpot, 66 Ark. 243, that: ‘ ‘ The filing of a demand against a county and presenting it to the county court is therefore, according to the various definitions given, the institution of a suit or action, no other pleading or proceeding for that purpose being required.”

Appellant contends that the assignment of the claim did not meet the requirements of § 6303 of Crawford & Moses ’ Digest, and, on account of a failure to do so, was not a valid transfer of a pending action, so as to prevent him from impounding tlie proceeds of tlie claim and having same applied to the payment of his judgment. The statute invoked by him is as follows:

££§ 6303. The sale of a judgment or any part thereof of any court olf record within this State, or the sale of any cause of action, or interest therein after suit, has been filed thereon, shall be evidenced by a written transfer, which, when acknowledged in the manner and form required by law, may be filed with the papers of such suit, and, when thus filed by the clerk, it shall be his duty to make a minute of said transfer on the margin of the record of the court where such judgment of said could is recorded, or if the judgment be not rendered when said transfer is filed, the clerk shall make a minute of such transfer on the docket of the court where the suit is entered, giving briefly the substance thereof, for which servr ices he shall be entitled to a fee of twenty-five cents, to be paid by the party applying therefor; and this act shall apply to any and all judgments, suits, claims and causes of action, whether assignable in law and equity or not. When said transfer is duly acknowledged, filed and noted as aforesaid, the same shall be full notice and valid and binding upon all persons subsequently dealing with reference to said cause of action or judgment, whether they have actual knowledge of such transfer or not.”

The statute is in derogation ctf the common law, and a strict compliance therewith is necessary in order_ to obtain protection against persons subsequently dealing with reference to a cause of action. The interveners did not attempt to comply with the statute, but their failure to do so did not render the assignment invalid, so far as appellant is concerned. The assignment was valid as between the parties thereto, and appellant, being a gar-nisher, occupied the position of his debtor, the Highway Iron Products Company, who was the assignor of the cause of action. As he was not a purchaser of the claim of the cause of action for value, he must be regarded and treated as a party to the assignment, and did not take the debt as against the interveners, who were prior assignees thereof for value. Market National Bank of Cincinnati v. Raspberry, 34 Okla. 243.

No error appearing, the decree is affirmed.


author: Kirby, J.

text:
    Wright v. Badders.
    Opinion delivered June 30, 1930.

      Miller $ Yingling, for appellant.
   Kirby, J.

Certain residents of Cleburne County presented a petition pursuant to the provisions of act 193 of 1929 to the county court asking" that certain territory described therein be annexed to and made a part of the existing stock law district in that county, and, upon the order being made, appellees asked to be made parties and filed an affidavit and prayed an appeal to the circuit court, where, upon the trial by the court upon an agreed statement of facts, it was held that the county court was without. jurisdiction to grant the petition for annexation of the territory to the stock law district, and reversed and set aside the judgment and dismissed the petition, from which judgment comes this appeal.

The petition was filed pursuant to the provisions of act 193 of 1929 correctly describing the territory in Piney township, which is contiguous to and adjoining Cadron, Clayton and Heber townships of Cleburne County, the petitioners constituting a majority of the qualified electors residing in the described territory. Before the filing of the petition the townships of Cadron, Clayton and Heber had been created into a stock law district in conformity with the statute (§'§ 321-332, 0. & M. Digest, and amendments thereto), and neither Cadron, Clayton or Heber township was created into or incorporated into a stock law district by virtue of any special act of the Legislature and the majority of the area of Cleburne County had not been created or incorporated into a stock law district or districts under the general statutes or any special act of the General Assembly and no part of said county had been incorporated into stock law districts in any other manner than as provided in said statutes (§§ 321-332, O. & M. Digest, -and the statutes amendatory thereof).

Appellants insist that the court erred in its construetion of the statute in holding the county court was without authority to make the order of annexation. .It is not contended that any of the districts to vdiich the territory was sought to be annexed was created by a special act of the Legislature, and it was conceded that all were created by order of the county court under the provisions of the statutes (said 321-331, 'C. & M. Digest).

Act 205 of 1927 amends § 321, C. & M. Digest, and the act No. 427 of the Legislature of 1921, providing that, when 10 per cent, of the qualified electors of any county in the State shall petition the county court for the privilege of voting on the question of restraining stock from running’ at large 'within the county, such court shall make an order for such election to be held, and, if a majority vote for restraining said stock, notice shall be given of such results by publication, etc. This statute takes the place of said acts and is re-enacted, leaving no pari of the old statute, not so re-enacted, effective. Section 23, art. 5, Constitution of 1874.

As so re-enacted and amended, the statute leaves the county court without authority to order an election for the organization of any part less than the whole territory of the county into a stock law district for restraining animals from running' at large within the county.

Said act 193 of 1929 does not purport to be an amendment o'f any other statute, and provides that in counties where a majority of the area of the county has been incorporated into a stock law district, “or where no portion of the county has been created into a stock law district by an act of the Legislature heretofore, * * * and such legislative act provides that other townships may become attached to and made a part of such stock law district by a majority petition of qualified electors of their respective townships to the county judge, who shall declare such township or townships added to the original territory described in such legislative act.” This act provides the procedure .for organization of the territory in any county where stock law districts have been created by special acts of the Legislature by order of the county court, said territory so added under the provisions thereof becoming a part of the original stock law district of the county and subject to all the provisions and penalties of the original act as though fully described therein. It does not authorize the county court to annex any territory to an existing stock law district, except where a majority of the area of such county has been created into a stock law district or where any portion of a county has been created into a stock law district by an act of the Legislature and such territory, when annexed to the original district by order of the county court under the procedure prescribed, becomes a part of the original district subject to all the provisions and penalties of the act creating it, etc.

It is not claimed that any of the territory of the county to which the lands described in the petition were sought to be annexed bad been created into or constituted a stock law district by a special act of tbe Legislature, and it was conceded that such was not the case. The said statute (act 193 of 1929) does not authorize the county judge to annex any territory to a stock law district not created by a special act of the Legislature, as already said, and the judgment of the circuit court so holding correctly construed the law, and its judgment must be affirmed. It is so ordered.


author: Kirby, J.,

text:
    Wilbon v. Washington Fidelity National Insurance Company.
    Opinion delivered June 30, 1930.

      TV. G. Dinning, for appellant.

      Bremer $ Gracraft, for appellee.
   Kirby, J.,

(after stating the facts). Appellant insists that the court erred in giving each of said instructions directing the jury that, if they found from a preponderance of the testimony that the assured had had heart trouble in December, preceding the application for insurance, and this was known either to the assured or the beneficiary, and was not disclosed to the defendant before the policy was issued, to find for the defendant. The provision in the policy relative to answers in the application being representations and not warranties is like those held to be representations in the cases of Old Colony Life Insurance Co. v. Julian, 175 Ark. 359, and Bankers’ Reserve Life Ins. Co. v. Crowley, 171 Ark. 135. In the latter case it was said: "The questions propounded in the application as set out above call for answers 'founded on the knowledge and belief of the applicant, and a misrepresentation or omission will not avoid the policy unless willfully and knowingly made with an intent to deceive. ’ ’ It is true the application appears to be signed by Percy L. Wilbon, but it is also signed by the father, appellant, with the statement required because of the applicant being under 15 years of age. There is no testimony tending to show that the under 10-year-old insured answered the questions in the application, except in the statements in the certificate thereto appearing to have been signed by him, and, if he had clone so, being a minor of such tender age, he could not be expected to know whether the representations were correct and true, and certainly could not be held in making any misrepresentations to have made them wrongfully ancl knowingly with an intent to deceive such as would have avoided the policy. All of said instructions, therefore, telling the .jury that if they found that the insured or the beneficiary knew that the insured had had heart trouble preceding the application for insurance and did not disclose the fact to the insurer before the policy was issued, and if either the assured or the beneficiary answered “No” to the inquiry if the assured had ever had heart trouble and either of them knew that he had had heart trouble, and if they found that either the assured or the beneficiary stated to the agent of the insuring company in answer to a question asked that the assured had never had heart trouble, “with the intent to deceive the company, etc.,” they should find for the defendant, were incorrect and erroneous on that account and inherently wrong and necessarily call for a reversal of the case.

Since the beneficiary was not only required to consent to the application for insurance for his minor son, but to certify that the answers made to the questions in the application were complete and true in every particular, he was bound by such statements and representations to the same extent only, if they proved to be false, as if lie liad made such representations upon an application for insurance upon his own life wrongfully and with an intent to deceive and not otherwise. The court therefore erred in giving each of the said instructions ■permitting the insurer to avoid liability on its policy if they found such misrepresentations had 'been knowingly made with the intent to deceive either by the insured or the beneficiary^

For this error the judgment must be reversed and the cause remanded for a new trial. It is so ordered.


author: Mehajtey, J.

text:
    Norton v. Burnett.
    Opinion delivered June 30, 1930.
    ■ Sheffield d Coates and Lee d Moore, for appellant.

      A. M. Bradford and W. G. Dinning, for appellee.
   Mehajtey, J.

The appellee, Evelyn Burnett, begun this suit in the Phillips Circuit -Court against appellant, E. F. Norton, for damages claimed to have been caused by the issuance and service of a search warrant. The appell&e was engaged in going from house to house and taking orders for women’s ready-to-wear apparel. On September Ii8, 1929, she went to the house of appellant to deliver some goods which had been purchased from her. After appellee had been at appellant’s house, it was reported to appellant that certain jewelry was missing. He inquired who had been in and around the house, and was advised that no one except appellee had been in the house. He ascertained all the facts he could, made an examination, and then called upon Mr. B,. L. George, the constable of the township in which the town of Marvel, appellant’s home, is located. George had been constable a number of years. Appellant informed George of the facts, and George suggested that they procure a search warrant. The next morning they called upon Walter Moore, a justice of the peace at Poplar Grove, near Marvel, and George informed Mr. Moore of their business and asked for a search warrant. Moore stated that he would not issue a search warrant, and informed the appellant that he knew appellee had not taken the jewelry. Appellee was at that time stopping at the home of Moore. George then called up the sheriff’s office at Helena, and deputy sheriff Hicks came to Marvel with a blank affidavit and a. blank search warrant, purporting to have been issued by the municipal judge at Helena. The appellant signed the affidavit and put in the name of appel-lee; the search warrant was filled out by the deputy sheriff, and the parties, appellant, George and Hicks, went to Moore’s home, but the appellee was not in the house at the time. The deputy searched her traveling-bag and some (baggage. Appellee then came in, and Mrs. Moore told her that Hicks had a search warrant. Hicks then examined appellee’s pocket book and car and asked Mrs. Moore to search her person, which she did. There were present Mr. and Mrs. Moore, the appellee and her sister, George and Hicks. The next day appellee went to- Helena to consult with an attorney, and within a few days thereafter brought suit against appellant. There was a trial by jury, a verdict and judgment for $500 and, to reverse said judgment, this appeal is prosecuted.

The appellant urges that the case should be reversed because the court refused to direct a verdict in his favor. He urges that the evidence is insufficient to support the verdict. It is said that the only act on the part of Dr. Norton, the appellant, was that he signed a blank affidavit which did not include even the name of appellee, was not sworn to, and that he signed it at the request of the deputy sheriff. He did this, however, after he had been told by Mr. Moore-, a justice of the peace, that he knew the appellee and knew she was not guilty, and gave the appellant the names of a number of witnesses who knew the appellee, and after Moore himself had refused to issue the search warrant, but it is said by appellant that there is no evidence which would indicate malice on the, part of appellant, and he quotes from and relies on the case of L. B. Price Mercantile Co. v. Cuilla, 100 Ark. 316, as follows: "To maintain -an action for malicious prosecution, it must appear that there was not probable cause for the prosecution, and also that the parties were actuated by analice in instituting the prosecution. There must be both want of probable cause and malice. If the law imputed malice from want of probable cause, then there would be no distinct requirement of malice, but want of probable cause would be the sole element necessary. ’ ’ But immediately following the paragraph quoted by appellant is the following: "It is often said the jury may infer malice from want of probable cause. They may do so under certain circumstances, but not in all cases. Malice is in no case a legal presumption 'from the want of probable cause, it being for the jury to find from the facts proved, where there was no probable cause, whether there was malice or not.”

The court gave to the jury at appellant’s request, the following instructions:

"No. 2. You are instructed that the question of the guilt or innocence of the plaintiff, Evelyn Burnett, of having stolen the jewelry mentioned in the complaint is not involved in this case. Although you may believe she is absolutely innocent, still, if the defendant had no malice against her in instigating the prosecution, your verdict will be for the defendant.
“No. 4. You are instructed that the burden of proof is upon the plaintiff to show that- the defendant induced the prosecution in this case without probable cause and with malice toward the plaintiff; and if you find that there was probable cause, or that there was no malice your verdict will be for the defendant.
“No. 9. The jury are instructed that mere dislike or ill will toward any one by another does not constitute malice in the legal sense. There must be some act done by the defendant with intent to injure the plaintiff, and such act must be wrongful, and the defendant must have • been actuated at the time by an improper and sinister motive, and the act complained of must have been committed by the defendant without probable cause, legal justification or excuse.
“No. 11. You are instructed that malice is in mo case a legal presumption from the want of probable cause, it being for the jury to find from the facts proved where there was no probable cause whether there was malice or not; and before the plaintiff can recover in this case she must establish by a preponderance of the evidence the want of probable cause,- and that the defendant was actuated by malice in the institution of the search warrant. If she fails to do either of these, then your verdict must be for the defendant.”

It therefore appears that the jury were properly instructed at appellant’s request as to malice. The faets\ are that, besides appellant’s wife, there were two- othey women at his house at the time appellee was charged with taking the jewelry. Besides these persons, there was a negro there, although appellant’s witnesses say he did not come into the house, but the undisputed proof shows that all these persons were present, that appellee was in the room alone but for a few moments, and that appellant was told by justice of the peace Moore, who refused to issue the warrant, that appellee would not steal anything from him or anybody else, and after he was in possession of all these facts he consented to the deputy sheriff telephoning to Helena for a blank affidavit and blank search warrant, then signed the affidavit, obtained appellee’s name, and inserted it in the affidavit and warrant.

In the next case referred to, that of Dare v. Harper, 101 Ark. 137, the court said the instructions were in direct conflict, and the correct instructions did not remedy the error and render it harmless.

In the next case referred to, Kable v. Carey, 135 Ark. 137, the court reversed the case because of an instruction which contained the following: “'Malice, as used here, means any unlawful or improper motive, so that if you find from the evidence that the defendants prosecuted the plaintiff not in good faith and for the purpose of vindicating the law and punishing the crime, but on account of some improper or unlawful motive, then you are instructed that the plaintiff has made out a cause of action in this respect. 'Malice as here used may be inferred from the want of probable cause — that is to say, if the defendants prosecuted the plaintiff without any reasonable or probable cause therefor, you would be justified in concluding that they- did it maliciously.” The case was reversed because of the giving of the above instruction, but in the instant case they were repeatedly told that the appellee must prove malice.

_ The appellant urges that instruction No. 1 given at ^request nf appellee was misleading and improperly worded and urges the same objection to instruction No. 2 given at request of appellee. These instructions correctly stated the law, but if appellant had thought they were improperly worded he should have made specific objection ; unless an instruction is inherently wrong, a general objection is insufficient.

He next complains at the court’s refusal to give instruction No. 6 requested by him. This instruction deals with' probable cause, and the jury -were fully and correctly instructed as to want of probable cause.

In the case of Hardin v. Hight, 106 Ark. 190, the court said, in a case very similar to this: “The question was very fairly submitted to the jury upon proper instructions and their decision is conclusive upon the point that there was lack <of probable cause for the institution of the proceeding. A search warrant is one of the agencies provided by law for the detection and punishment of crime and for the recovery otf stolen property. Our Constitution guarantees the right to the people of the .State to be secure in their persons, houses, papers and effects against unreasonable search. * * * Certainly, the putting in motion of such an agency maliciously and without probable cause is as much calculated to injure the feelings and reputation of the person against whom it is directed as if the further direction for his arrest in case the property sought should be found in his possession were contained therein.”

In Williams v. Orblitt, 131 Ark. 408, this court said: “Upon the subject of malice, it may be said that, while there was no affirmative showing of malice, its existence may be inferred if there was a lack of probable cause. These questions should have been submitted to the jury, and for the error of the court in not so doing the .judgment is reversed, and the cause remanded for a new trial. ’ ’

The question of lack of probable cause and the question of malice were both submitted to the jury under proper instructions and the jury found against appellant. The question here is whether there was any substantial evidence to sustain the verdict. We do not pass on the credibility of the witnesses nor the weight to be given to their testimony. There was ample evidence to submit these questions to the jury, and the jury’s finding is conclusive here.

The judgment is affirmed.


author: McHanev, J.

text:
    Scott v. State.
    Opinion delivered June 30, 1930.

      Nat Hughes, Roy Dunn and Hardin & Barton, for appellant.

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

This appeal comes from a judgment of conviction of appellant on an indictment charging embezzlement of trust funds, the property of D. B. Castle-berry, in the sum of $769.49, alleged to have been embezzled on December 31, 1925, but which was not discovered until September 17, 1929.

Appellant was circuit clerk of Logan County from January 1, 1921, to December 31, 1924. He was succeeded in office by the late Ernest Ervin, who died before the expiration of his term. In 1921, an old gentleman by the name of Dr. Fountain died testate. His will named Mr. Castleberry as executor, and made this provision relative to his property: “I direct my said executor to sell all my personal property of every kind and the homestead in which I now live and draw all the money I have in the Citizens’ Bank at Booneville, Arkansas, or any other place, put it all together and deposit in the circuit clerk’s office in the city of Booneville, Arkansas, there to be loaned out bj the said circuit clerk to the best advantage. Provided further that said clerk draw from said fund each year a sufficient sum to keep my family’s graves cleaned and cared for and whatever part he might think was right for me to p:ay in cleaning and caring for the entire graveyard. ”

The executor complied with this provision of the will by depositing said sum of money with appellant as circuit clerk on April 27, 1921. It is charged that he embezzled this money. The indictment was returned January 22, 1930.

Appellant demurred to the indictment on the ground that it showed on its face that it was barred by the statute of limitations, but the court overruled the demurrer. This is the first assignment of error argued, and, if it be well taken, it becomes unnecessary to discuss other assignments.

It is conceded that the action is barred but for the provisions of act 20'2, Acts 1923, p. 176, which amends § 2886, C. & M. Digest, so as to read as follows: “No person shall be prosecuted, tried and punished for any other felony unless an indictment be found within three years after the commission of the offense; provided, that in cases of embezzlement of funds by an administrator, guardian or curator the limitation shall not begin to run until an accounting has been had and such administrator, guardian or curator has been ordered by a court of competent jurisdiction to pay over the funds and in other cases of embezzlement of trust funds the limitation shall not begin to run until the defalcation is discovered.” The proviso in the above act is the change made in the old statute. The case was tried on the theory that the last clause in the proviso was applicable; and, since the actual discovery of the defalcation was not made until within the period of three years, the statute did not begin to run until that time, and the cause of action was not barred. Appellant contends that the fund was not a trust fund within the meaning of the statute, and that appellant was a mere gratuitous bailee of the fund and not a trustee. Certainly he was not a trustee of an express trust. United States Fidelity & Guaranty Co. v. Smith, 103 Ark. 145; Arnold v. Stephens, 173 Ark. 205. But whether the funds were trust funds, whether appellant was a trustee or bailee, we are of the opinion that the statute of limitations began to run January 1, 1925, when his successor took office, ¡and that the cause of action was barred three years thereafter. The will provided that the fund be deposited in the “circuit clerk’s office in the city of Booneville, Arkansas.” Appellant happened to be the circuit clerk at the time. It was not to be deposited with appellant as an individual, but with the circuit clerk. He held the fund as clerk, and when he went out of office, it immediately became his duty to account to and settle with his successor in office as clerk. If he Sailed to do so, it became immediately discoverable that he had not done so, and any person interested could have known the facts by simply inquiring- of the clerk. Incumbents in the clerk’s office come and g’o, but the office of circuit clerk, like Tennyson’s brook, goes on forever. Apparently, no person made inquiry until after the death of Mr. Ervin, and then not until September 1, 19291, more than four years after appellant had ceased to be the clerk. Suppose no inquiry had been made for ten or even twenty years, could it reasonably be contended that the statute did not begin to run until inquiry was made? We think not.

The judgment will be reversed, and the cause remanded with directions to sustain the demurrer, as the indictment shows on its face it is barred.


author: Smith, J.

text:
    Stewart v. California Grape Juice Corporation.
    Opinion delivered July 14, 1930.

      Curtis E. Garner, for appellant.

      Isaac Biff and 8am M. Wassell, for appellee.
   Smith, J.

This is an appeal from an order of the Pulaski Circuit Court setting aside a judgment which appellant has recovered against appellees, the order being made some months after the expiration of the term at ■which the judgment was rendered. It was alleged in the complaint upon which the order was made that the judgment had been rendered without service of process, and that a valid defense existed against the cause of action sued upon.

It was answered, on the other hand, that the cause of action sued on was meritorious, and no valid defense existed, and that before the rendition of the judgment appellee (the judgment defendant) had actual knowledge of the pendency 'Off' the suit and had in fact been served with process.

The original complaints alleged that appellee was a foreign corporation, doing business in this State, and that service had been properly had by delivering’ a copy of the summons to the Auditor of State, and that the summons so served had been sent and delivered by registered mail at appellee’s home office by the Auditor of State. It was also insisted that service of summons was had on Ed Skinner as agent for service of appellee, Skinner being the agent with whom the contract was negotiated upon which the cause of action was based.

In this respect the instant case is unlike that of the Order of Railway Conductors of America v. Bandy, 177 Ark. 694. In that case there was an entire absence of service, and it was apparent, from the face of the record, that no service could lie acquired. It affirmatively appeared in that case thiat the defendant insurance order had not domesticated itself, and there was no attempt to acquire jurisdiction by seizing any of its property in this State. We therefore held that, as no .jurisdiction had been acquired, or could be, a writ of prohibition should be awarded, and the writ was granted.

Here it was alleged that the foreign corporation had been doing business of an intrastate character in this State, and that its agent who negotiated the contract out of which the litigation arose had been served as such. Fort Smith Lumber Co. v. Shackleford, 115 Ark. 272.

A prima facie case was therefore made that service had been secured on the corporation before the rendition of the judgment. It is not to be assumed that the trial court rendered judgment upon the mere showing that the defendant was apprised of the nature and pendency of the suit, and no such allegation is made. That should not have been done, and there is nothing in the record to indicate that it was done.

On the contrary, service had been apparently had on the person designated for that purpose. There was an allegation that the defendant corporation was doing business in the State, and, if this was true, and the corporation had not, in fact, designated an agent upon whom service of process might be had, then service could have been had upon the Auditor of State under § 1 of the Acts of 1927, page 707, and the return of the sheriff shows that such service was had. The statute referred to makes it the duty of the Auditor of State, “immediately upon receiving any such summons, or other process, to transmit the same to the foreign corporation so sued, by registered mail, at its home office, or other place where service of process upon such foreign corporation may be had. ’ ’ At the trial from which this appeal comes the showing was made that the copy of the summons served upon the Auditor of State was sent by registered letter to the above corporation at its office in St. Louis, and there delivered, and the usual registry receipt returned. The defendant corporation therefore not only had actual knowledge of the pendency of the suit, but knew the prima facie showing-, which could and probaibly would be made, and which was later made, that summons had been served in the manner provided by law, to-wit, upon the Auditor of State under the allegation that the corporation had been doing business in this State.

We do not pass upon the sufficiency of the testimony to sustain the service in either manner stated, for the reason that appellee admits that it was advised of the pendency of the action and knew that a prima facie showing of service would be made, but, thinking the service insufficient, ignored it, and it is not contended that the information was not obtained in ample time for appellee to have made defense, had it been thought necessary to do so.

Appellee’s president denied the receipt of the registered letter from the Auditor of State, but admitted the receipt of a letter from the attorney for appellant, enclosing a copy of the summons, before the rendition of the judgment. However, the testimony clearly establishes the receipt of the registered letter.

In the case of State v. Hill, 50 Ark. 458, 8 S. W. 401, Cockrill, C. J., said: “One who is aggrieved by a judgment rendered in his absence must show, not only that he was not summoned, but also that he did not know of the proceeding in time to make defense, in order to get relief in equity,” and upon the authority of this case it has since been consistently held by this court that, if one knows he has been sued upon a cause of action in ample time to interpose his defense, yet fails and refuses so to do, he will not be permitted to reopen the case to interpose a defense which he could and should have made before the judgment was rendered. The reason for the rule is that if one wishes to invoke the jurisdiction of the court at all, he should do so seasonably, and not wait until the court had pronounced a judgment which would not have been rendered had the showing been made that no service had in fact been obtained. Woods v. Quarles, 178 Ark. 1158, 13 S. W. (2d) 617; Karnes v. Ramey, 172 Ark. 125, 287 S. W. 743; First Nat. Bank of Manchester v. Turner, 169 Ark. 393, 275 S. W. 703; First National Bank v. Dalsheimer, 157 Ark. 464, 248 S. W. 575; Fore v. Chenault, 168 Ark. 747; C. A. Blanton Co. v. First Nat. Bank, 175 Ark. 1107; Lambie v. W. T. Rawleigh Co., 178 Ark. 1030; Moore v. Price, 101 Ark. 142.

The case of Hunton v. Euper, 63 Ark. 323, 38 S. W. 517, was a proceeding under subdivision 7 of § 4197, Sandels & Hill’s Digest (now § 6290, Crawford & Moses’ Digest) which provides that a judgment may be vacated by the court in which it was rendered after the expiration of the term at which, it was rendered. ‘‘Seventh: For unavoidable casualty or misfortune preventing the party from appearing or defending,” and it was there held that the rendition of a judgment without service of process was an unavoidable casualty or misfortune within the meaning of this statute, and the judgment was vacated for want of service, but it was not shown in that case that the judgment defendant had actual knowledge of the suit.

Here it is shown that the judgment defendant was apprised of the pendency of this suit in ample time to have made the defense which it now seeks to interpose, but it did not do so, and, having suffered judgment to go by default, it will not now be permitted to make the defense which could and should have been made before the judgment was rendered.'

The judgment of the circuit court setting aside the default judgment will be reversed, and the cause will be-remanded with directions to vacate the judgment here appealed from, thus leaving the default judgment in full force and effect.

Kirby, J., dissents.