text:
    Yates v. State use Miller County.
    4-2781
    Opinion delivered December 12, 1932.

      Shaver, Shaver and Williams, for appellant.

      Millard Alford, Will Steel and James D. Mead, for appellee.
   Kirby, J.,

(after stating the facts). Appellant insists that the chancery court was without jurisdiction to surcharge and falsify the reports and accounts of the collector already approved by the judge of the Miller •Circuit Court, which action, it is insisted, was conclusive and res judicata. The chancery court was not reviewing the decisión of the circuit court in determining the matter submitted by the pleadings herein, but only exercising its ancient inherent jurisdiction to set aside and falsify accounts for fraud or mistake. The chancery court has not been deprived of such jurisdiction, if it could be done, and the court had jurisdiction of the action as established by our decisions:

“Original jurisdiction of equity to correct mistakes was not divested by the statute granting to the county court the power to readjust the settlements of the collector at any time "within two years.” Big Gum Drainage District v. Crews, 158 Ark. 566, 250 S. W. 865. See also Gladys v. Lovewell, 95 Ark. 618, 130 S. W. 579. Chancery has jurisdiction, as is apparent from these and other Arkansas casesj not only to correct mistakes, hut also to correct fraud in settlements of county officers. In Sims v. Craig, 171 Ark. 492, 286 S. W. 867, chancery was held to be the proper forum for the surcharging of settlements, the court holding that unintentional error and mistakes as well as fraud might be corrected within two years (under the statute) by the county court, and thereafter (but not exceeding 5 years) by the chancery court. See also Marable v. State, 175 Ark. 589, 2 S. W. (2d) 690; Marshall v. Holland, 168 Ark. 449, 270 S. W. 609. In Johnson County v. Bost, 139 Ark. 35, 213 S. W. 388, in a case where the county court had allowed as credits certain items which were claimed to have been fraudulent and illegal, it was insisted that the chancery court was without jurisdiction and its judgment was sought to be avoided because no sufficient showing of fraud had been made, but this court said: “There is however a modification of that rule with respect to the judgments of county courts in the allowance of claims against the county, and in the recent case of Monroe County v. Brown, 118 Ark. 524, 177 S. W. 40, we stated the law concerning the force and effect of judgments of county courts and the power to set them aside as follows: ‘The statute is not construed to mean that the county court is authorized to review former judgments of the court for mere errors in the allowance of claims, but they are authorized to reject claims [warrants] which have been illegally or fraudulently issued. In other words, where the claim against the county was one which, under any evidence which might have been adduced, could not have been a valid claim against the county, or where the judgment of allowance was obtained by fraud, it may be set aside and warrants issued pursuant thereto canceled.” There is nothing in the statute (§§ 4637-4642 of the Digest) giving final and conclusive effect to the action of the circuit judge in approving such statements of expenses by the officials nor depriving the chancery court of jurisdiction to surcharge and falsify same. Applying the analogous rule of decisions to the action of the circuit judge herein which prevails relative to the judgments of county courts on settlements by county officers, it is apparent that there is no rule of decisions or statute concluding either the county or the State, by the mere approval of the circuit judge, from proceeding in chancery to surcharge and falsify the accounts and settlements of such officers for fraud, mistake, etc. Sims v. Craig, supra.

The approval of the account or report by such circuit judge is rather a ministerial than a judicial act, and his determination of such matters is not res Judicata, nor is this proceeding an attempt to review the decision of a court of equal and coordinate jurisdiction.

The chancellor held that a fraud had been perpetrated upon the circuit judge in obtaining his approval of two items of the accounts or reports, one for $1,000 in 1929 report and one for $300 in the 1930 report, claimed to he paid by the appellant to his wife for services in the collector’s office. It is not claimed that Mrs. Yates had acted as a deputv, and there is no substantial proof tending to show she ever performed any work or service in the office of value to the countv. The testimonv is to the contrary. It appears that her work consisted in addins- up the amounts shown on the tax receipts issued bv the collector day bv dav in their home in the evening- and taking the ba.uk book and carrving fhe funds collected bv him during the dav to the bank. The testimony indicated that she did not work in the office and visited it rarelv. and never for the transaction of anv business. The charging of the amount paid to her in the report and asking approval thereof was a representation bv the officer, of course, that his wife had done work for the couutv during- the two years a,nd earned the monev which was a proper charare aa’ainst the countv. The Constitution provides (article 19. i 23) : “No officer of this State, uor of anv eountv. citv or town, shall receive, directlv or indirectlv. for salarv. fees and perauisites more than five thousand dollars net profits per annum in par funds, and anv and all sums in excess of this amount shall be naid into the State, countv, city or town treamrv as shall hereafter be directed by appropriate legislation.”

In Nixon v. Allen, 150 Ark. 244, 7 S. W. 35, it was held that a statute creating a board to fix salaries of county officials and the number of their clerks and employees was invalid, this court saying:

“The power to fix the salaries and fees of all officers in the State, and the number of their clerks and employees and their salaries, is a function which, within the limits of the Constitution, is lodged in the supreme law-making power of the State — the Legislature. Cain v. Woodruff County, 89 Ark. 456, [117 S. W. 768]; Humphry v. Sadler, 40 Ark. 100; Throop on Public Officers, § 500. The General Assembly cannot delegate this legislative power to any individual, officer or board.”

It is not contended that the wife of the collector, to whom the money was paid, was the deputy or authorized employee of the collector, and there was no such showing made that the work performed by her could not have been as well done ¡by the collector whose duty it was to do it, or his deputies, as would render the expense lawful which the collector represented it to be in making the claim for the credit for expenses of the administration of the office.

On the cross-appeal, the court erred in refusing to surcharge the 1929 settlement with the following items:

1929, Report, to David Elkins.....$250
1929 Report, to J. "W. Stuckey.... 250
1929 Report, to traveling expenses in making the rounds of the county with tax-books..... 500

and in the 1930 report with:

1930 Report, to David Elkins.$300

The law requires the collector to make the tour of the county with the tax books for the purpose of collecting the taxes in the different precincts, and nowhere indicates the payment of his necessary traveling expenses. No place visited by him for the collection of taxes was more than 40 miles distant from his office in the city, and only one that far, and could have been reached under modern methods of travel and the business of collection of taxes transacted with the return of the officers to the office in the same day. The expenses would necessarily not have been great, and it was the intention to permit or require the officials to pay some of their own personal expenses necessarily incurred in the performance of the duties, for which a salary of the net amount of $5,000 is provided by the Constitution. If an official desired to conserve time, he might make such tour in an airplane either purchased or hired for the purpose, but it could hardly be expected that he should charge the expense thereof as a necessary one of administration for which the county could be required to pay in addition to the $5,000 allowed as a salary for such collector. In other words, the Constitution permits only an allowance of $5,000 net salary to him per annum for the discharge of all his duties of the office, and expenditures for extra, unusal or emergency services to be paid out of the excess of fees over the $5,000 must ¡be shown to be lawful before any such allowance can be made; otherwise it must be done at his own expense. Crittenden County v. Crump, 25 Ark. 235; Cain v. Woodruff County, 89 Ark. 456, 117 S. W. 768. And the necessary deputies and employees for assisting him in the discharge of the duties of the office must ¡be authorized to be employees by law before they can be paid out of the excess fees collected over the amount of salary he is entitled to retain under the Constitution, $5,000, which otherwise must be paid into the county treasury in accordance with the law.

It follows from what has been said that the decree will be affirmed on the appeal, and reversed on the cross-appeal, and remanded with directions to enter a decree in accordance with this opinion.

Butler, J., dissents.


source: Caselaw Access Project

author: Kirby, J.,

license: Public Domain

text:
    Helton v. Sovereign Camp of Woodmen of the World.
    4-2773
    Opinion delivered December 19, 1932.

      G. E. Snuggs, for appellant.

      H. M. Jacoway, Cooper Jacoway and Lee Miles, for appellee.
   Kirby, J.,

(after stating the facts). Appellant insists that insured had complied with all the conditions of the contract, had reached the age of 70 years and was entitled to a paid-up certificate for the amount of the contract of insurance, had a vested interest therein which could not be changed by any new bylaws or assessments; and that any agreement for the paid-up certificate for a less amount was without consideration and void, and that the court erred in its finding'and judgment that the benefit certificate issued to Helton, No. 17401, Ark., upon which this suit was instituted, had been surrendered by the insured during his lifetime, and that there was no liability thereunder.

Said benefit certificate No. 1740, Ark., contains these provisions: “Payments to cease after 20 years,” and “His agreement to pay all assessments and dues that may be levied during the time he shall remain a member of the Woodmen of the World.” The first clause “Payments to cease after 20 years” is a marginal notation placed on the policy before its execution and delivery, while the latter is a general provision appearing in the body of the certificate by reference and doubtless appearing in every type of certificate issued to members. Provision is made for the issuance of a paid-up certificate also, and the testimony shows and the court found that a paid-up certificate was issued to the insured upon his request, and, although it was for a smaller amount than the original certificate and for a less amount than appellant now insists was due thereunder, such certificate was issued and delivered to the insured during his lifetime and accepted by him, and there was no fraud shown or alleged in its procurement. The member was doubtless liable under the provisions of the policy above set out to pay all assessments and dues during the time he remained a member of the Woodmen of the World, and his acceptance of the paid-up certificate in settlement of his rights under the original certificate cannot be said to have been made without consideration, since he could have been required to pay assessments or dues' duly levied so long.as he remained a member of the order under the provision of the policy, regardless of the notation “payments to cease after 20 years,” which doubtless "was limited to the regular annual or monthly payments required for keeping the insurance in force. The regular assessments and dues had no relation to any others that might be properly levied under the constitution and bylaws during the time he remained a member.

Appellant did not recover or. show any greater amount to be due him than the amount for which in its answer the appellee offered to confess judgment, and the court did not err, having found only that amount to be due, in rendering judgment therefor and for the costs as the law provides.

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


author: McIíaNey, J.

text:
    Arrington v. Ladd.
    4-2921
    Opinion delivered December 19, 1932.

      W. J. Morrow, J. J. Montgomery and Williams & Williams, for appellant.

      Paul McKennon, Reynolds & Mase and Hays & Smallwood, for appellee.
   McIíaNey, J.

Appellant, appellee, and D. B. Bartlett were rival candidates for sheriff of Johnson County, Arkansas, in the Democratic primary election held August 9, 1932. According to the official returns made by the judges and clerks to the county central committee, appellee received 1,247 votes, appellant 1,000 votes and Bartlett 387 votes, which gave appellee 247 votes plurality, and a certificate of nomination was thereafter issued to him as to the Democratic nominee for sheriff.

Within the time prescribed by law appellant instituted this action to contest the nomination of appellee, alleging that more than 900 illegal votes were cast for appellee and against appellant, that such votes were illegal because not on the printed list of electors, were not legally and properly assessed, and sundry other grounds of illegality. Appellee and Bartlett in due time answered, and the issues were joined. Thereafter on September 22, 1932, the parties to this appeal agreed and stipulated there were 513 votes cast in the election, naming the voters, that were illegal because their names did not appear on the certified printed list of electors of the county. From that date ,to September 30, the court heard testimony as to other illegal votes cast, at which time court was adjourned to October 13, to hold an intervening regular term of court in Conway County. On October 13, the court found from the testimony that there were 239 other illegal votes cast in said election, which made a total of 752 illegal votes cast. It was then agreed that each side should select a judge or referee and a clerk, and that the court appoint the third judge or referee, and that this committee should examine the ballots so held and agreed to be illegal, ascertain for whom they had voted for sheriff, and report their findings to the court. The court would then deduct the number of illegal votes each had received from the total of each as shown by the election officials, and declare the result accordingly. Objection was made by appellant to the judge or referee appointed by the court, so the court sat in with the committee as the third man. Thereupon this committee, including the trial judge, began to make an examination and tabulation of the ballots agreed and adjudged to be illegal, and shortly thereafter it was discovered by the judge that said ballots, or a large number of them, showed that they had been changed from a vote for appellant to a vote for appellee. As soon as appel-lee learned of this discovery, he filed a motion attacking the integrity of the ballots and seeking to stop the count. Proof was then taken on this motion by both sides, referred to hereinafter, and later all the ballots were counted, both legal and illegal, with the result that many changes were found to have been made in the ballots. In sustaining this motion the court found: “That the ballots have lost their integrity, and, there could be no counting or recounting of the ballots because of the destruction of their integrity, that the election returns are not impeached by the testimony, and that all votes stand as cast and counted by the election officials, and the contest should be dismissed.” Judgment was accordingly entered, from which is this appeal.

Appellant argues eight propositions for a reversal of the case. We find it necessary to discuss only the sixth, as the principal one, and the fourth, seventh and eighth as incidental thereto. The others pass out because of the disposition we make of the case.

The principal question is, did the court err in sustaining the appellee’s motion attacking the integrity of the bállots and in dismissing* the contest? In answering this question in the negative, we are not unmindful of the unpleasant taste left in the mouth, so to speak, and of the unsatisfactory result, with 752 illegal votes out of a total of 2,63'4 votes cast for sheriff. Had the ballots remained inviolate, as the law and common honesty and decency require, then the result might have been changed by casting out the illegal ballots. But if, as the court has found, the ballots or a goodly number of them have been altered, changed, erased, and remarked so as to show they were cast for a candidate other than the one for whom the voter cast it, and this is pursued to such an extent that the court is unable to recount them as originally cast, then of necessity their integrity has been destroyed. This is exactly what the trial court has found.

In determining this question we are bound by the settled rule of this court that the findings of fact by a circuit court sitting as a jury are as conclusive on this court as the verdict of a jury, and the rule is no different in election contest cases. Williams v. Buchanan, 86 Ark. 259, 110 S. W. 1024. The decisions are too numerous to mention that the verdict of a jury will not he disturbed unless there is no substantial evidence to support it, when viewed in the light most favorable to the verdict.

Is the court’s finding supported by substantial evidence? When the committee, including the judge, discovered that the illegal ballots had been changed, the motion to dismiss the contest was filed and contestee brought in '28 witnesses, from several of the townships, who had voted illegal ballots, and shown to have been changed from a ballot for appellant to one for appellee. These witnesses testified that they had voted for appellant. Also 8 other witnesses refused to testify for whom they voted, but their ballots showed a change from appellant to appellee. There was other evidence of a similar naturé. The court, not being satisfied, directed the count by the committee to proceed, a third judge being agreed to and all the votes in the county were examined, both legal and illegal. It was found that 111 legal votes had been changed from a vote for appellee to one for appellant, and approximately 70 illegal votes, originally for appellant, now show to be for appellee. In one township the first 40 votes cast were not numbered by the judges of election, but when examined by the committee all were found to be numbered, and other irregularities were found in this same box, as disclosed by the testimony of the judges of election, which occurred after they had delivered it to the central committee. We think this was sufficient to support the court’s finding that the integrity of the ballots had been destroyed, and that they no longer furnished satisfactory evidence of the result. Without knowing exactly how the votes were cast, the court could not accurately determine the result. That a large number of the ballots have been changed, there can be no doubt as the erasures are plainly visible without the aid of a magnifying glass.

But appellant says the testimony of the voters that they had voted differently from that shown by their ballots was inadmissible and incompetent, because (1) parol evidence cannot be introduced to contradict the ballot where the ballot has not been lost or destroyed, and (2) that the ballot, being in evidence, is the best evidence as to how the elector voted. Condren v. Gibbs, 94 Ark. 478, 127 S. W. 731, is cited to support the contention. In that case the court said: “A voter cannot be allowed to testify that he voted for one person when he admits he cast his ballot, which has not since been changed, showing that he voted for another person. This rule is founded upon the principle that the ballot is a writing, and so cannot be contradicted by parol evidence. But, like other writings, it may be shown that the ballot has been changed since it was cast or that another or different ballot has been put in its place.”

But here the ballots of the witnesses had already been examined, and showed they had been changed, and the court did not err in permitting the witnesses to testify that they had voted for appellant whereas the ballots as changed showed they voted for appellee. It is true that the ballots were not shown to the witnesses, nor were they asked to identify them. It would be difficult if not impossible for a witness to identify a ballot not signed by him. The subject of the inquiry was the integrity of the ballot, and since the ballots themselves showed on their face that they had been changed, it was quite proper to admit testimony as to how they had actually voted. Nor does the holding in the case of Cain v. Carl Lee, 169 Ark. 887, 277 S. W. 551, militate against this holding.

Again it is urged that the integrity of the ballots in eight townships was not destroyed because no changes were shown to have been made of the ballots in said townships, and in them appellant received 131 votes, ap-pellee 94 votes and Bartlett 29 votes, giving appellant a plurality of 37, and that he should be declared the nominee on this account. We cannot agree, and in this respect the principle announced in Tucker v. Meroney, 182 Ark. 681, 32 S. W. (2d) 631, governs here. There were 24 voting precincts in 22 townships, and to so do would disfranchise the voters in the other townships without fault on their part or of the election officials.

Nor do we think the court erred in refusing to call in all the voters in the county to testify as to how they had voted. The law does not require the court to hold an election, but a contest, and if it develops that there is no legal basis on which the court may determine the contest, it must fail. Compare Brown v. Nisler, 179 Ark. 178, 15 S. W. (2d) 314.

The court found that, because of the many changes, there was no safe or certain way he could determine the result. In this we think the court was correct. Even though the. voters whose ballots had been changed had been called to testify as to how they voted, still the result would be in doubt, as the evidence shows 95 ballots voting against all candidates. It would have been a simple matter for the thief who had unlawful access to the ballots to have marked out the name of the candidate for whom the voter had cast his ballot so as to show a vote against all three. Or again if the voter had failed to mark out any name but left them all on, it would be easy to mark or scratch off two and show a vote for the third, and in either case no one could detect a change. No erasure would appear. We agree that the result could not be determined. This finding is supported by very substantial evidence, and the judgment must be affirmed.

Smith, J., (dissenting). The practical effect of the majority opinion is that an election may not be contested where the 'ballots and the returns thereof have been mutilated to an extent sufficient to destroy the presumption of verity which would otherwise be indulged. The cases cited do not sustain that conclusion, and I think no such case can be found.

On the contrary, as we said in the case of Taaffe v. Sanderson, 173 Ark. 970, 294 S. W. 74: “The real object of the courts in all election contest cases is to determine ■whether the contestant or the respondent has received the highest number of legal votes. This should be the guiding star, like the star of Bethlehem to the wise men of old.” Tet the majority opinion makes it not only possible to defeat this real object, but makes its defeat certain where some election thief destroys or mutilates the ballots by alterations, erasures, etc., so that the court is unable to recount them as originally cast. The majority appear to decide that if this has happened there can be no contest.

This rule might have some justification if it were ¿applied to a contestant who himself, or whose adherents, had mutilated the ballots; but the rule is not thus limited. There was no finding, in fact, no showing, as to who had mutilated the ballots. We do not know whether this was the work of adherents of the contestant or of those of the contestee. The majority treat this as immaterial.

It ought not to be the law that fraudulent elections may not be contested provided the integrity of the ballots has been destroyed by mutilation or alteration. If this be the law, then one who was not the actual nominee may defeat a contest of his nomination by the added wrong of mutilating the ballots or having that additional wrong perpetrated; No previous holding of this court leads to a decision so unfair or so unfortunate.

The majority say the court did not err in refusing to call in all the voters in the county to testify how they had voted for the reason that the law does not require the court to hold an election; and it is also said that if it develops that there is no legal basis on which the court may determine a contest it must fail.

The court cannot be required to hold another election; but the court may, and should, determine who received a majority of the legal votes in the election which had been held and was being contested, and the right of a contestant to have this fact judicially determined ought not to be defeated by an act of desperation.

It appears that the integrity of the ballots in eight townships had not been destroyed; bnt, if we had the extreme case of an election in which all the ballots had been stolen or their integrity destroyed, yet the right to contest the election wonld remain. There would, even in this extreme ease, be a basis for a contest; that basis being for the court to hear the electors, and all of them, if necessary, or such of them as either party wish to have heard, testify, not how they would now vote, but how they had then voted.

I am authorized to say that Mr. Justice Kirby concurs in the views here expressed.


text:
    Home Life Insurance Company v. Taylor.
    4-2797
    Opinion delivered January 9, 1933.

      Busbee, Pugh <§> Harrison, for appellant.

      Robinson, House & Moses and Bridges, McGaughy & Bridges, for appellee.
   Kirby, J.,

(after stating the facts). It is undisputed that this writing specifying the purpose for which the notes were delivered to and received by the bank was duly executed, but appellees insist that other terms were agreed upon at the time of such delivery, not shown in the receipt, authorizing the bank to substitute other paper or notes for the ones specified therein at its own option.

Parol testimony was admitted, over the objection of appellant, to show such fact, and it is insisted that the court erred in allowing parol testimony adduced to contradict, vary or add to the terms of the contract or writing. This contention must be sustained.

Although the writing is a receipt for the notes specified therein, the purpose for which the notes were received and held by the bank is also set ont therein as for collection, and there is nothing ambiguous about the instrument. It is a contract for the service to be performed as fully and completely as though it had been written out, and it is no less subject, so far as the purpose therein specified for collecting the notes is concerned, to the parol evidence rule than if the word “receipt” had not appeared therein, so far as it operates as a contract; there being no allegations of fraud or mistake in its procurement. When the bank acknowledged it received the notes for collection, such acknowledgment constituted a contract assuming all the obligations of a collecting agent as fully as if such obligations had been set out in detail, and the rule is that, where an instrument is both a receipt and a contract, as in this case, its terms cannot be varied by parol testimony. Second National Bank of Baltimore v. Bank of Alma, 99 Ark. 386, 138 S. W. 472; Cleveland-McLeod Lbr. Co. v. McLeod, 96 Ark. 405, 131 S. W. 878; Darragh Company v. Goodman, 124 Ark. 532, 187 S. W. 673; Huckins Hotel Co. v. Smith, 151 Ark. 167, 235 S. W. 787; Lister v. First National Bank, 181 Ark. 140, 25 S. W. (2d) 26, 10 R. C. L. 1926.

The execution of the receipt of the notes for collection by the bank through one of its vice presidents, not the official who testified about the agreement to change it, was not denied, and, although this official did testify that such an agreement was made, his statement being denied by the agent of the insurance company, this could not prove any such agreement as against the written terms of the contract contrary thereto. This official testified that he made the substitution of these notes with the knowledge and consent of the agent of the insurance company, and put the substituted notes in a separate envelope to be held by him for delivery to the company, depositing the notes for collection. This statement was contradicted by both the agent, whom he indicated had knowledge of the fact, and he, himself, in his own testimony admitted that he had never talked to the agent, Gulley, of the insurance company about the matter. In explaining his statement to strengthen it concerning the agreement for the substitution of the notes, he said that Gulley, the insurance company’s representative, agreed to it because he thought the list showed too much of the paper of Banks, the president, held by the insurance company, and that it did not look well, but he further stated that the paper that he selected for the substitution was the very kind of paper the holding of which Gulley thought might be embarrassing to the company. He did not claim to have notified the owners of the notes deposited for collection that there was any agreement for substitution of other notes, or that any attempt had been made to substitute such other notes in accordance therewith, nor did he transfer or indorse any of the claimed substituted paper to the Home Life Insurance Company, owner of the paper deposited for collection. Under the circumstances, his testimony was not entitled to any great weight, being so contradictory, and his unwarranted action in attempting to make such substitution, if it had been successful, could only have resulted in benefiting the bank, whose agent he was.

The chancellor’s finding that the agreement was made by Gulley for the insurance company for the substitution of other securities instead of the ones deposited for collection for the insurance company was contrary to the preponderance of the testimony; the parol evidence, as already said, was inadmissible to contradict the contract, and said testimony was not sufficient, if true, to have authorized the collecting agent, the bank, to take anything else in payment for the notes deposited for collection but money (Darragh Co. v. Goodwin, supra), and the burden devolved upon the bank to show that it had the right to make such substitution and the collection of the notes in other than money, and it has failed to discharge this burden, and the court erred in holding otherwise.

The court correctly held that the interveners should recover from appellees the sum of $7,326.74, an amount collected on some of the notes deposited for collection, and that same was a prior claim against the bank.

It should have held also that all the money collected and realized from the collection of the notes deposited for collection was held in trust and should he paid to inter-vener as a prior claim, and directed the Bank Commissioner to surrender to the appellant company the remainder of the notes still in his possession originally delivered to the hank for collection.

The decree is accordingly reversed, and the cause remanded with directions to enter judgment for the full amount of the collections made on said notes deposited for collection as a prior claim, and direct the return of any of such original list of notes yet in the Bank Commissioner’s possession to the interveners. It is so ordered.


author: Mehaeey, J.

text:
    Southern Coal Company v. McWilliams Company, Inc.
    4-2799
    Opinion delivered January 9, 1933.

      Armstrong, McCadden & Allen and Coleman & Rid-dick, for appellant.

      George E. Pike and Wm. M. Hall, for appellee.
   Mehaeey, J.

In October, 1928, appellee, McWilliams Company, Inc., entered into a contract with the receivers of the Farrelly Lake Levee District of Arkansas and Jefferson counties, an improvement district organized under special act of the Legislature, by the terms of which contract the McWilliams Company, Inc., undertook and became obligated to construct certain parts of the improvement which the levee district was authorized by law to construct, and to furnish, all material and labor necessary therefor.

To secure the faithful performance of its contract, the McWilliams Company, Inc., as it was required by said contract to do, executed and delivered its construction bond, dated October 20, 1928, and executed by the appel-lee, United States Fidelity & Guaranty Company as surety.

The bond was in the sum of $50,000, and conditioned upon full performance by McWilliams Company, Inc., of the obligation contained in the construction contract.

The Southern Coal Company, the appellant, sold and delivered to McWilliams, at the place where said work was performed in Arkansas County, coal for the agreed price of $1,465.92. All of said coal was actually used by McWilliams Company, Inc., in the operation of steam shovels and dredges with which the McWilliams Company, Inc., performed the actual construction work on the improvement being done by the levee district.

The McWilliams Company, Inc., refused to pay, and the appellant brought suit in the Arkansas Circuit Court against the McWilliams Company, Inc., and the U. S. Fidelity & Guaranty Company.

The McWilliams Company, Inc., filed answer, admitting the truth of the allegations in the complaint. The surety company filed a demurrer, alleging that the appellant had no right to sue on the bond, and that the complaint on its face showed that the material furnished was coal, and that this was not material, within the meaning of law and the bond.required for the performance of public contracts for labor and material.

The appellee now concedes that the bond was given pursuant to and in compliance with §§ 6913 and 6914 of Crawford & Moses’ Digest, and that appellant had a right to sue upon the bond. The only question therefore for our consideration and determination is, whether coal is material furnished within the meaning of statute and bond.

The authorities on this question are in conflict. The United States Supreme Court and the Supreme Courts of a number of States have held that coal and fuel furnished as this was is within the law and the bond, and entitle the person furnishing coal to a lien and to an action on the bond of the contractor.

A majority of this court, with which the writer does not agree, is of the opinion that the case should be affirmed, and that it is controlled by the former decisions of this court.

In the case of Pierce Oil Corporation v. Parker, 168 Ark. 400, 271 S. W. 24, the court reviewed the authorities, calling attention to the conflict, and we do not think it necessary to again review the authorities, or discuss the reasons given therein.

In the case referred to, the court said: “Having regard then for the well-defined and established meaning of a similar statute, we think that the fair meaning of the language used in the statute under consideration is only to give persons a lien who supply material directly used in the prosecution of the work, or material substantially consumed in the prosecution of the work, and are practically useless after such use.

“Therefore, we do not think that oil or other fuels used in operating motor trucks engaged in hauling stone for the construction of an improved highway can fairly and justly be said to be used in the prosecution of the work. As above stated, oil so used is only incidental to the operation of the motor trucks, and can be no more considered materials used in prosecution of the work than the motor trucks themselves, or the repairs on them.” Heltzel Steel Form & Iron Co. v. Fidelity Deposit Co. of Md., 168 Ark. 728, 271 S. W. 325; So. Surety Co. v. Simon, 172 Ark. 924, 290 S. W. 960.

In the last case referred to, we said: “We think the declaration was one upon the bond, and that no liability existed against appellant thereon for two reasons: First, the claim for supplying coal was not within the protection of the bond; second, the suit was barred by failure to bring it within six months after the improvement was completed.”

It was again held by this court that the surety on the contractor’s bond was liable only for the value of such material as actually entered into the construction of the road, and that it is not liable for the value of feed furnished the stock which was used in the work on the road. . Goode v. Ætna Casualty & Surety Co., 178 Ark. 451, 13 S. W. (2d) 6.

A majority of the court is of the opinion that the cases decided by this court and cited herein are decisive of this case, and it is unnecessary to discuss the cases decided by other courts and cited by learned counsel.

The judgment of the circuit court is affirmed.


text:
    Ragland v. Snotzmeier.
    4-2802
    Opinion delivered January 9, 1933.

      M. F. Elms and W. A. Leach, for appellant.

      A. G. Meehan and John W. Moncrief, for appellee.
   Mehaeey, J.

The appellant, about three o’clock a. m. on the 26th of August, 1931, left Stuttgart, Arkansas, in an automobile for St. Louis, Missouri. The appellant was the driver of the car, and the appellees were his invited guests.

H. A. Hoover occupied the rear seat, and William Snotzmeier rode in front with the driver.

Between Brinkley and Wheatley, about 50 miles from Stuttgart, in attempting to pass a truck parked on the side of the highway, the car in which appellant and appel-lees were riding was turned over, injuring the parties in the car.

From a point about five miles west of Brinkley, to the place of the accident and beyond, is a concrete surfaced road, and from Brinkley to the place of the accident the road is straight. The accident occurred about four o’clock in the morning.

Each of the appellees filed separate suits against the appellant, seeking to recover damages for the injuries sustained. The cases were consolidated and tried as one case.

The appellees alleged that appellant was driving at a high rate of speed, and that this excessive rate of speed continued for approximately four miles beyond Brinkley; that, while continuing this high rate of speed, appellant undertook to pass another vehicle on the road, but, on account of the rate of speed at which he was traveling, or on account of the careless and negligent manner in which he was driving, appellant’s car struck against the car which appellant tried to pass. It was also alleged that all of the occupants of the car were made unconscious as a result of the accident, and that appellant’s car was traveling at such an excessive speed, and turned over with such force, that it was practically destroyed. The injuries received by appellees were described in their complaints, and it was alleged that the appellees suffered great pain, and would continue to suffer. Hoover prayed judgment for $4,736 and Snotzmeier for $10,000.95.

There is very little conflict in the evidence. The appellant himself did not testify.

The trial resulted in a verdict of $2,500 for Hoover, and $5,000 for Snotzmeier, and judgment was entered accordingly. Appellant filed a motion for a new trial, which was overruled, exceptions saved, and the case is here on appeal.

The undisputed evidence shows that appellant was driving his car at a very rapid rate of speed at the time and some time prior to the time of the accident.

It is not seriously contended that appellant was not guilty of negligence, but the appellant earnestly insists that the appellees were guilty of contributory negligence, and therefore not entitled to recover. He calls attention first to the case of Carter v. Brown, 136 Ark. 23, 206 S. W. 71. Appellant quotes from that case as follows: “It is the duty of the guest to exercise ordinary care for his or her safety; and a failure to exercise such care, which contributes to the injury or might have resulted in avoiding* the danger and resultant injury, will constitute contributory negligence.” The court, however, also said: “It was also an issue for the jury as to whether the appellant was guilty of contributory negligence. The court erred in not submitting these issues to the jury.”

Negligence and contributory negligence are questions of fact to be submitted to and determined by tbe jury, where there is any evidence tending to show negligence or contributory negligence. The question of the contributory negligence of the appellees was submitted to the jury at the request of the appellant.

Negligence is the failure to exercise such care as a person of ordinary prudence would exercise under the circumstances, and whether one has exercised such care is a question for the jury.

Appellant calls attention to many authorities in support of his contention that it is the duty of an invited guest to exercise ordinary care to protect himself from injury, to caution the driver of the danger, protest against it, and to do what a reasonable, prudent person would do under the circumstances for his own safety. If he fails to exercise such care, and his failure contributes in any degree to produce the injury, he cannot recover. This court has many times announced this doctrine, and it is supported by the great weight of authority.

In determining the question of contributory negligence, it is proper to consider all the circumstances and evidence in the case, the condition of the road, appellees ’ knowledge of the ability and fitness of the driver, the speed of the car, the character and cause of the accident, and all the circumstances in the case.

Mr. Conrey testified that the car had turned over two or three times, and, after it turned over the last time, had skidded for some distance. The car was almost demolished. The wrecked car had apparently “sides wiped” the truck; had run up on the pavement and turned over about 120 feet beyond the truck. The car was badly wrecked, and witness testified that he had to practically rebuild it.

¥m. Snotzmeier testified that he told the driver he was going too fast, and the driver told him not to worry, that he would watch out. Snotzmeier then testified that he dozed off to sleep, and the next thing he knew he was in the hospital. Snotzmeier was riding in the front seat with the driver.

. Hoover testified that the car was being driven at a high rate of speed, ahont 60 miles an honr. He heard Snotzmeier tell Ragland not to he in snch a hnrry, or something of the sort, and Ragland said that he wonld watch ont and he careful.

Statements made hy both Snotzmeier and Hoover were introduced in evidence. It will he seen from the evidence that the road was a concrete surface, straight, and the accident occurred about four o’clock in the morning, when there was very little travel. Snotzmeier testified that he cautioned the driver, and the driver said that he would be careful, and watch out. The question therefore of contributory negligence of appellees was for the jury..

“Unless the facts are manifest, and the inference to be drawn therefrom clear beyond peradventure, the question whether the guest of an automobile driver, having no control over him, was negligent in failing to appreciate the danger in crossing railroad tracks, or to act in relation thereto, must be submitted to the jury.” 2 Blashfield on Automobiles, 1133.

So here the question of whether the guests were negligent was a question for the jury. Negligence is never presumed, but must be proved, and when Snotzmeier cautioned the driver, and when the driver said he would watch out an<f be careful, the guests had a right to assume that he would do this. They had a right to take into consideration the character of the road, the time of the morning, their knowledge of the driver’s ability; and, considering all these facts and circumstances, it was a question of fact whether the appellees acted at the time as men of ordinary prudence would have acted under the circumstances, and, if they did, they were not guilty of negligence.

There would have been no reason at all for Hoover to speak to the driver, when he heard Snotzmeier speak to him, and heard his reply. If several guests are riding in a ear, it would be unnecessary for all of them to caution tlie driver, if any,one of them cautioned him, and the others heard it. In other words, guests in an automo.-bile are required to exercise just such care as a person of ordinary prudence would exercise under the circumstances.

“The question whether a guest or passenger in a motor vehicle exercised due care for his own safety is usually a question for the jury under all the evidence, as whether an automobile driver and his guests were negligent in attempting to cross before defendant’s approaching motor truck, 75 or 100 feet away, or where plaintiff failed to act as a person of ordinary prudence would have acted under the circumstances, or, as the rule is sometimes expressed, he is bound to look out for his own safety as far as practical.” 2 Blashfield on Automobiles, 109.

“The fact that a passenger in an automobile was sleeping before and at the time of being injured in an accident caused by the negligence of the driver does not necessarily show negligence on his part. ’ ’ '2 Blashfield on Automobiles, 1089.

The Connecticut court said: “The trial court submitted to the jury the question whether, in view of the circumstances preceding and surrounding the accident, the fact that the defendant momentarily fell asleep constituted negligence on his part. There is surprisingly little authoritative discussion in decisions or text books as to the relation of sleep to the doctrines of negligence, although in a number of cases it seems to have been assumed that it constitutes contributory negligence for one in a position of peril to become incapacitated by sleep from protecting himself from harm. * # * In any ordinary case one cannot go to sleep while driving an automobile without having relaxed the vigilance which the law requires without having been negligent. It lies within his own control to keep awake or cease from driving, and so the mere fact of his going to sleep while driving is a proper basis for an inference of negligence sufficient to make out a prima facie case, and sufficient for a recovery, if no circumstances tending to excuse or justify bis conduct are proved. If snob circumstances are claimed to bave been proved, it then becomes a question of fact whether or not the driver was negligent; and in determining that issue all the relevant circumstances are to be considered, including the fact that ordinarily sleep does not come upon one without warning of its approach. The trial court was right in leaving the issue to the jury as one of fact.” Bushnell v. Bushnell, 103 Conn. 583, 131 Atl. 432. 44 A. L. R. 785.

Appellant cites the case of Sheehan v. Coffey, 205 App. Div. 388, 200 N. Y. S. 55. The court in that case, however, set aside the verdict because it was against the weight of the evidence. This court does not pass on the weight of evidence, but, if there is any substantial evidence to sustain the verdict, it cannot be disturbed by this court, although we might believe that it was against the weight of the evidence

It is next contended by the appellant that the verdict of the jury is contrary to the law and the evidence. It is contended that the verdict is contrary to instruction No. 5, which tells the jury in substance that, if Hoover was riding in the automobile which was traveling at a high rate of speed for a sufficient distance for him to become aware of it, and he made no protest, he was guilty of contributory negligence, and could not recover.

We have already said that the request of Snotzmeier made in Hoover’s presence made it unnecessary for him to caution the driver. Besides that, under instruction No. 5, the jury could have found that Hoover was not aware of the fact that the -automobile was being driven at a dangerous rate of speed.

This instruction was immediately followed by instruction No. 6 with reference to Snotzmeier’s right to recover, and both these instructions were given at the request of the appellant.

The appellant cites the case of Oppenheim v. Barkin, 262 Mass. 281, 159 N. E. 628, 61 A. L. R. 1228. In that case the evidence showed that the driver had gone to sleep, and the court said: “If the plaintiff saw that the defendant was asleep, or if he were awake and the plaintiff saw him turning away from the line of travel across the highway to the left, it could have been found to he the plaintiff’s duty to arouse the defendant or warn him of the approaching danger, or for the plaintiff to take some precaution for his own safety. ’ ’ The above case is annotated on page 1252, where a great many cases are collected, among others some Arkansas cases.

It is next contended that the instructions given on the measure of damages were erroneous. Special objection was made to that part of the instruction which submitted to the jury, as an element of damages, the alleged pecuniary loss on account of diminished earning capacity. Appellant contends there was no evidence upon which to base this instruction.

Snotzmeier was a farmer, and Hoover an expert machinist. There is ample evidence on which to base the instruction, both as to Hoover and Snotzmeier. The evidence shows that Snotzmeier was very severely injured, and that his earning capacity decreased. Both the ap-pellees were severely injured, and there is evidenec to show that the earning capacity of each was decreased. The evidence showed the injury, the character of work that each performed, and from that the jury could estimate as well as any one else whether or not there was a decrease in the earning capacity, and, if so, how much.

It is next contended that the verdicts are excessive. The evidence shows that each appellee was severely injured, and also that the injuries are permanent, and are such injuries as will not only decrease their earning power, but cause them pain and suffering.

Appellant also contends that some of the instructions are erroneous, but he asked, and the court gave, practically the same instructions that he now objects to. We think the instructions, when considered together as a whole, correctly state the law to the jury.

We find no error, and the judgments are affirmed.


author: Per Curiam.

text:
    Parrish v. Nelson.
    4-2957
    Opinion delivered January 9, 1933.

      I. M. Greer, A. B. Caplinger and June P. Wooten, for appellant.

      Boy Nelson, J. J. Mardis and W. Leon Smith, for appellee.
   Per Curiam.

This is a proceeding contesting the nomination of appellant for the office of State Senator. The case was tried in the circuit court, judgment rendered, and an appeal prosecuted to this court.

The appellant seeks to supersede the judgment of the circuit court until the case can he heard here on its merits.

This is not a contest for the office of State Senator, and is not a proceeding to contest the election of a State Senator, but it is a proceeding to contest the nomination in the Democratic primary.

This court would have no jurisdiction to try a contest for the office of State Senator, nor to determine who is elected to the Senate.

Section 11 of article 5 of the Constitution provides: “Each House shall appoint its own officers, and shall be the sole judge of the qualifications, returns, and elections of its own members.”

It will therefore be seen that under the Constitution the Senate is the sole judge of the election of its members. What we are to determine, and what we have a right to determine, is whether the appellant or appellee was entitled to the nomination.

If we determine that the appellee was entitled to the nomination, nnder the law the judgment operates as an ouster from office. This does not mean however that we decide who was elected, but it means only that we hold that the election is void.

The statute provides that when the judgment operates as an ouster, there will he a vacancy which must he filled according to law.

The Senate alone can determine who has been elected, and who may sit as a member of the Senate.

A supersedeas could therefore serve no purpose because we do not and cannot decide who is entitled to the office of State Senator. We simply decide the contest for the nomination, and, under the law, if a person is given a certificate of nomination, his name placed on the ticket, and he is elected, we have the jurisdiction to decide whether he was or was not entitled to the nomination, and if the court decides that he was not, and there has already been an election, the judgment of the court operates as an ouster. That is, it decides that his election was void because of a violation of the Primary Election Law.

Whether we issue a supersedeas or deny it, we cannot say who shall serve in the Senate, but the Senate itself is the sole judge of the election and qualification of its members.

The Senate may seat either the contestant or the contestee, or it may decline to seat either until the case is tried, but in no event could the court’s order deter- • mine who is entitled to the office of State Senator.

A supersedeas would be useless, and it is therefore denied.


author: 'Smith, J.

text:
    Endicott-Johnson Corporation v. Davis.
    4-2795
    Opinion delivered January 16, 1933.

      Clinton B. Barry, for appellant.

      J. D, Benson, J. P. Clayton and Evans S Evans, for appellee.
   'Smith, J.

Appellant recovered a judgment in the Franklin Circuit Court, Ozark District, against A. H. Metcalf in the sum of $549.46, upon which an execution was issued in due form on October 10, 1925. The execution was delivered by the clerk to the attorney for the judgment creditor, who, on the same day, sent it by registered mail to S. J. Davis, then the sheriff of the county, accompanied by a letter directing him to serve and return the execution according to law. A postal money order .for $1.60 was inclosed in this letter to cover the sheriff’s fees.

The sheriff returned the execution to the attorney who sent it to him in a letter dated October 17,1925, reading as follows:

“Replying to your letter of October 10th, covering! execution against A. H. Metcalf, you failed to send indemnifying bond which we require on all executions. If you will send bond with a list of the property that is not mortgaged, we will be glad to serve the execution for yon; otherwise we cannot.

“Very truly yours,

“Sebern J. Davis, Sheriff,

“By J. C. Mainard, D. S.”

In a letter dated October 31, 1925, the attorney replied to the sheriff’s letter as follows:

“In re Endicott-Johnson Corp. vs. A. H. Metcalf.

“I am in receipt of your letter dated October 17, 1925, returning to me execution which I sent to you for service in the above case, with the postoffice money order for $1.60 sent you to cover your fees. I am holding the execution and money order subject to your order, and you will please bear in mind that the Endicott-Johnson Corporation, judgment plaintiff in this execution, does not acquiesce in your refusal to perform your duties in connection therewith, in accordance with the law. ’ ’

No further correspondence passed between the parties, and this suit was brought against the sheriff and the sureties on his official bond under the provisions of § 4360, Crawford & Moses’ Digest, to recover the amount of the judgment for the alleged failure and refusal to levy and make return of the execution.

The cause was submitted to the jury, under instructions, of which no complaint is made, except that it is insisted that the jury should have been directed to return a verdict in favor of the plaintiff, the judgment creditor. The verdict of the jury, however, was in favor of the defendants, and from the judgment pronounced thereon is this appeal.

The letter from the sheriff, signed by his chief deputy, assigns, as a reason for not levying the execution, the failure of the plaintiff “to send indemnifying bond which we require on all executions,” which was not a sufficient excuse. It was definitely decided, in the case of Mayfield Woolen Mills v. Lewis, 89 Ark. 488, 117 S. W. 558, that a sheriff may not demand an indemnifying bond in all cases before levying an execution, but that, on the contrary, he may make this demand only when, acting* in good faith, he doubts that property is subject to execution which appears to be so. In the case of Mayfield Woolen Mills v. Lewis, supra, it was said: “We are therefore of the opinion that, under the provisions of the above sections (42i87 and 4288, Crawford & Moses,’ Dig’est), the doubt as to whether the property is subject to execution arises when the officer acts in g-ood faith and a claim is actually made relative to the property or such circumstances exist as might well justify a prudent person in apprehending litigation relative thereto; and in such cases the officer has the right to demand an indemnifying bond. And the officer in whose hands an execution has been placed cannot arbitrarily demand an indemnifying bond.”

Testimony was offered to the effect that Metcalf, the judgment debtor, was in the actual and open possession of a stock of goods, located in a building fronting the courthouse square, of which fact the sheriff was advised, yet the sheriff made no attempt to levy upon this stock of goods, although same was unincumbered.

It appears from the testimony that Metcalf was in failing circumstances, and was operating on capital largely borrowed from a local bank, but had given the bank no mortgage. He first bought a half interest in the stock of goods, and later bought the other half, for which he paid $2,000. In this connection he borrowed $3,500 from a local bank, and owed about $6,000 when he went into bankruptcy in February or March, 1926. Numerous suits were brought against Metcalf in 1925, and a number of judgments were recovered against him, but these were for small amounts in a court of a justice of the peace. The testimony of the deputy sheriff indicates that these judgments were collected by the sheriff from the cashier of the bank.

The sheriff was dead at the time of the trial from which this appeal comes, but his chief deputy testified that he and the sheriff — his principal — made inquiry about the judgment defendant, and that the result of their investigation was that the financial condition of Metcalf was such that they were afraid to levy the execution without an indemnifying' bond. The sheriff discussed this execution with the cashier of the bank, and reported the result of his investigation to his deputy who had the execution in hand, but, upon objection of plaintiff’s counsel, the court refused to permit the deputy sheriff to state what this report was as to Metcalf’s financial condition. Metcalf owned an automobile which was mortgaged; and so were the store fixtures, and so also was Metcalf’s home, and the deputy sheriff, who wrote the letter, set out above, returning the execution, testified that it was his impression at the time the letter was written that Metcalf had no property subject to execution. The money order was never returned to the sheriff’s office, nor was any property pointed out to the sheriff, or his deputy, which was subject to execution. The deputy admitted that he knew of the stock of goods, but he was not permitted to testify as to his conversation with his principal about it. On the cross-examination of the deputy sheriff, he was asked: “Q. You say you found no property to levy the execution on?” and he answered: “A. No, sir; what stock he did have, the shelves were filled with empty boxes, and that stock was about all the property he had.”

It is true, as has been said, that there was no mortgage on the stock of goods; and it is true also, as was said in the case of Coffman v. Citizens’ Loan & Inv. Co., 172 Ark. 889, 290 S. W. 961, that goods and chattels exposed daily for indiscriminate sale to the general public, at the place of business of the owner, and over which the dealer or merchant is permitted to exercise dominion, cannot be made the subject of a valid chattel mortgage. But the testimony, in its entirety, presents the issue of fact whether the sheriff acted in good faith in demanding an indemnifying bond. No specific request was made that the execution be levied upon the stock of goods, nor was the sheriff advised that it was subject to execution and was unincumbered, and the testimony supports the finding by the jury that there had been no palpable dereliction of duty on the part of the sheriff.

Upon the second appeal in the case of Mayfield Woolen Mills v. Lewis, 97 Ark. 149, 133 S. W. 590, it was said: 'The statute in question is highly penal, and the party invoking it must bring himself within both the letter and spirit of it.’ Craig v. Smith, 74 Ark. 364, 85 S. W. 1124. It 'was not enacted as a substitute for an ordinary action to recover the amount due, but was to reach palpable derelictions on the part of the officer. ’ Williams v. State, 65 Ark. 159, 46 S. W. 186. 'Its terms should not be extended to cases not within its plain meaning. ’ Mayfield Woolen Mills v. Lewis, 89 Ark. 488, 117 S. W. 558, citing Hawkins v. Taylor, 56 Ark. 45, 19 S. W. 105; Moore v. Rooks, 71 Ark. 562, 76 S. W. 548.”

The verdict of the jury is not without testimony to support it,, and it is therefore affirmed.


author: Smith, J.

text:
    Huffman v. Henderson Company.
    4-2775
    Opinion delivered January 16, 1933.

      Coulter & Coulter, for appellant.

      J. K. Mahony, TI. S. Yocum, W. T. Sage and J. N. Saye, for appellee.
   Smith, J.

The north half of the northwest quarter of the northeast quarter of section 8, township 18 south, range 15 west, in Union County, Arkansas, was sold in June, T925, for the nonpayment of the taxes assessed against it for the year 1924. Prior to the assessment of the land for the 1924 taxes, there had been a severance of both the timber and the mineral rights, -which latter had not been separately assessed, and the validity of the tax sale for any purpose was attacked on that account.

The owners of the separate interests in the land joined in a suit to cancel the tax sale and deed thereunder, and, from a decree awarding that relief, an appeal was prosecuted to this court. Upon the' submission of the ease in this court, it was held that, where there had been a severance of the timber or the mineral rights by duly recorded deed, it was necessary for the timber or mineral rights to be assessed separately and apart from the surface of the land, and that where this was not done the assessment applied only to the surface, and a sale for the taxes so assessed did not operate to convey the timber or the minerals. Huffman v. Henderson Co., 184 Ark. 278, 42 S. W. (2d) 221.

After the rendition of this opinion, a petition was filed in the court from which the appeal had come for a writ of possession to place the present owners of the tax title in possession, and from a decree refusing to award that relief is the present appeal.

The testimony heard at the trial from which this appeal comes developed the following facts, as we find them to be: The Henderson Company, hereinafter referred to as the company, an Oklahoma corporation authorized to do business in this State, has extensive interests, in the State in the operation of which the twenty-acre tract of land above-described plays an important part. Oil has been produced from this land since 1921, and in 1922 appellee constructed an extensive casing-head gas plant thereon, which has been, and is now used in the manufacture of gasoline from the production from said land and other lands in Union County. The company also built upon the land an office and a residence for the use of its managing officer in this State.

In 1923 J. 0. Huffman, who was then employed by the company in another State, was transferred to this State, and occupied, with his family, the residence above referred to as the general superintendent and the highest representative in authority of the company in the State. It was a part of Huffman’s duties as general agent to assess the company’s holdings in this State, and to pay the taxes thereon by drawing drafts upon the company at its home office. It was Huffman’s duty to have assessed and paid the taxes for the year 1924, and for which the land sold in 1925.

Huffman did not discover that this very valuable twenty-acre tract of land had been sold -for taxes until July or August, 1930, and he then notified the home office of the company of that fact. He was advised by the company to take the matter up with the company’s local attorneys in this State, and to take such action as was necessary to clear the company’s title. He consulted the attorneys, who asked that an abstract of the title be brought down to date, and this was done. Several conferences were held between the attorneys and Huffman with a view of obtaining a deed to the company from the tax purchaser, and Huffman was entrusted with these negotiations. The original tax purchaser had died, but Huffman interviewed one of the heirs of the purchaser, who represented himself and the other heirs, and they offered to accept $2,500, and Huffman submitted a counter-proposition of $500. Huffman was advised by the company’s attorneys that it was not necessary to bring suit, as the company was in possession and would acquire the tax purchaser’s title by possession if no action was taken by the heirs of the tax purchaser before the statute of limitations had run.

While these negotiations were pending the company decided to dispense with Huffman’s services, and on September 30th wrote him to that effect. This letter advised Huffman, however, that his resignation would not be effective until November 30th, and that his salary of $450' per month would be continued until that time. He was asked to turn over all records and company property to his successor, and this he did on .October 1, 1930. On October 2, Huffman employed an attorney to buy the land. On the following day a deed was made to this attorney for a consideration of $1,000 cash in hand paid. Huffman’s wife furnished the thousand dollars, and the attorney later deeded to her an undivided half interest, retaining title to the other half interest for his services.

The court below decreed that the attorney and Mrs. Huffman had acquired title to the land in trust for the company, and directed that a conveyance of the land he made to the company upon payment of the purchase price, and this appeal is from that decree.

The instructions given Huffman by the company to recover the property for it were never withdrawn, yet he never advised the company that a quitclaim deed could be obtained for only $500 more than the company had offered. To the contrary, on the day after he was discharged, and while still in the pay of the company, he arranged to buy this land for $1,500 less than the sum for which he had reported to the company that it could be purchased.

Opposing counsel have cited many cases declaring the duty of an agent to his principal, a number of these being decisions of this court. We do not review these cases, as the law of the subject is well settled. The third headnote to the case of Kelly v. Keith, 77 Ark. 31, 90 S. W. 150, declares the law applicable to this case, and reads as follows: “Where an agent undertook to purchase land for her principal for $300, and found that it could not be purchased for less than $350, which she paid without notifying her principal or giving him an opportunity either to accept or to reject the land at that price, she will be held, at his election, to have purchased for him in performance of her agreement.”

Section 206 of Perry on Trusts and Trustees, vol. 1 (7th ed.), appearing in the chapter on constructive trusts, deals with the conditions under which an agent, attempting to act for himself, is yet held to be a trustee for his principal, and this statement of law there appearing is peculiarly applicable to the facts of this case: “An agent cannot take advantage of his own negligence; as where one allowed his principal’s property to be sold for taxes and bought it himself, he was held as a trustee, although the relation of principal and agent had ceased.”

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


author: Humphreys, J.

text:
    Rhode Island Insurance Company v. Boatright.
    4-2806
    Opinion delivered January 16, 1933.

      Cravens & Cravens, for appellant.

      Duty & Duty and Bernal Seamster, for appellee.
   Humphreys, J.

This suit was brought in the circuit court of Benton County to recover damages for an alleged libel contained in an answer of appellant herein filed by him in a suit brought in the chancery court of said county by Rogers Sewer District No. 8 to collect assessments from M. D. Boatright upon his lands embraced within the district, in which suit appellant herein was made a party as an equitable garnishee, alleging it owed M. D. Boatright a certain amount under a fire insurance policy issued by it to him. In that suit appellant herein filed an answer in which it denied liability under the policy on the ground that M. D. Boatright had destroyed the house protected by the policy by setting fire thereto. This charge of arson was made the basis of the instant suit.

A demurrer was filed to the complaint on the ground that the charge of arson in appellant’s answer in the Rogers Sewer District No. 8 case was a judicial pleading and privileged.

The demurrer was overruled, over the objection and exception of appellant.

Appellant elected to stand upon its demurrer; whereupon the court rendered a judgment for $1,000 in favor of appellee in response to the verdict of the jury impaneled to assess the damages, from which is this appeal.

Appellant contends for a reversal of the judgment under the rule announced and the application thereof in the case of Mauney v. Miller, 142 Ark. 500, 219 S. W. 1032. The rule is as follows:

‘ ‘ There are two classes of privileged communications recognized in the law governing the publication of alleged libelous matter: One of these classes constitutes an absolute privilege, and the other a qualified privilege, and, according to the great weight of authority, pertinent and relevant statements in pleadings in judicial proceedings are held to be within the first class mentioned and are absolutely privileged. * * * The test as to absolute privilege is relevancy and pertinency to the issue involved, regardless of the truth of the statements or the existence of actual malice. ’ ’

The application of the rule to the facts in that case is as follows:

“The complaint in the present case discloses the relevancy and pertinency of the alleged libelous statements. The purpose of the original action was to cancel a lease on account of a breach or breaches of. the contract alleged to have been committed by appellee. In the answer appel-lee, as the defendant in that action, denied the breach of the contract on his part and alleged that the delay in the performance of the contract had been caused by acts of appellant, among other things, the burning of the plant erected for the purpose of washing of diamond-bearing dirt. The allegations of the answer, including allegations now under consideration, presented issues, in defense to that action, and were pertinent and relevant to the issues involved. The alleged statement was therefore absolutely privileged, and the court was correct in sustaining the demurrer to the complaint.”

Appellee admits the correctness of the rule, hut denies its applicability herein, for the alleged reason that the libel set out in the answer of appellant to the suit brought by Rogers Sewer District No. 8 was not pertinent to the issues therein. The argument is made that under §§ 5674 and 5678 of Crawford & Moses’ Digest, the proceeding to enforce the collection of assessments in improvement districts such as Rogers Sewer District No. 8 is by condemnation and sale of the delinquent property and not by personal judgment against the property owner, and that, since M. D. Boatright was not liable personally to the sewer district, there could be no liability against appellant as garnishee of the amount it owed Boatright under the fire insurance policy. It may be true that appellant could have made such defense in that action for Boatright as well as itself, but it was not compulsory for it to do so when M. D. Boatright, appellee herein, was made a defendant and properly served in that action. It was Boatright’s duty to make such defense for himself, and, having failed to do so, he cannot have damages against appellant because it interposed other defenses it had against the attempted collection of the fire insurance policy, in order that the proceeds thereof might be subjected to the payment of the assessments.

Relative to the duties of a garnishee in situations like this, the rules announced in 28 C. J., p. 277, are as follows:

“Where defendant is personally in court, the garnishee is not required to question the jurisdictional legality of the proceedings or their regularity as to defendant, but where defendant is not personally before the court, the garnishee is required to examine and know that the court has jurisdiction of the subject of the action and to interpose in behalf of the defendant defenses of which he is cognizant, and which he is able to make.”

“But while the garnishee may plead all defenses which may be necessary for the protection of his own interest, he is not ordinarily permitted to set np matters which concern defendant only, with regard to the validity of the proceedings, or the claim asserted by plaintiff.” (P. 274.)

The liability and extent thereof by appellant herein on the policy of fire insurance issued by it to M. D. Boat-right, appellee herein, was drawn in question in the suit of Rogers Sewer District No. 8 v. M. D. Boatright, as defendant, and appellant herein as garnishee, and on that account, appellant was privileged to plead as pertinent to the issue in that case its defense of arson against the payment of the policy.

On account of the error indicated, the judgment is reversed, and the cause is remanded with directions to the trial court to sustain the demurrer to the complaint.


text:
    International Shoe Company v. King.
    4-2811
    Opinion delivered January 16, 1933.

      Silas W. Rogers, for appellant.

      Streett S Streett, for appellee.
   Humphreys, J.

This suit was brought by appellant against appellee in the second division of the circuit court of Ouachita County to recover $1,784.99 for Red Goose shoes .sold and shipped to appellee by appellant.

The defense interposed to the action was that appellant breached its contract with appellee by allowing the business firm of West Brothers in Camden, Arkansas, to advertise the same line of shoes in violation of an agreement that appellant should sell no one else, nor permit any one else to advertise the line of shoes known as the Red Goose shoe in Camden except appellee, and that when appellant thus breached the exclusive contract, appellee repacked and shipped back to appellant all the shoes not disposed of, in the total invoice sum of $1,517.19, for which amount he was and is entitled to credit, leaving a balance due on account of $267.80, which was tendered to appellant in full settlement. The cause was submitted upon the pleadings, testimony adduced by the respective parties, and instructions of the court, resulting in a judgment against appellee for $267.80 and interest, from which is this appeal.

There is no dispute in the testimony about the value of the goods shipped or returned, or that appellant’s agent made the exclusive contract and that same was breached. The only issue in the case was whether appellant’s agent had the authority to enter into the exclusive contract with appellee before the goods were sold and shipped. This issue was submitted t#the jury by the court, over the objection of appellant, and a reversal of the judgment is sought upon the alleged ground that no substantial evidence was introduced in the case tending to show that appellant’s agent had such authority. After the exclusive contract was breached by appellant, a correspondence ensued between appellant and appellee, in which the authority of appellant’s agent to make exclusive contracts was admitted by appellant, but in which it took the position that its agent did not inform it that such a contract had been made by him with appellee, and that he made, the contract in ignorance of the existence of the contract between it and West Brothers in Camden for the purchase and advertisement of the same line' of shoes. It also contended in the correspondence that the contract was not made by its agent with appellee until the 21st day of August, 1930, and that it was not bound under the contract to take the shoes hack that were sold and purchased before that date. Three witnesses, on behalf of appellee, testified that the exclusive contract was made before any goods were purchased from appellant by appellee. On account of this dispute in the evidence, it was proper to submit the issue of whether the agent had authority to make the exclusive contract before the goods in question were sold and shipped by appellant to appellee.

Appellant also contends for a reversal of the judgment because the court, refused to give its requested instructions Nos. 2 and 4, relative to the authority of an agent. The court gave an instruction fully covering the issue of authority of the agent to make the contract, so did not err in refusing appellant’s requested instructions Nos. 2 and 4.

Appellant also contends for a reversal of the judgment because, even though the contract was made with authority, it was not mutual, and therefore not binding on appellant. The argument is made that the contract did not attempt to bind appellee to buy shoes in any definite quantities for any definite length of time, and to buy them exclusively from appellant. Appellant requested two instructions, Nos. 5 and 6, on mutuality of contracts, which the court refused to give. The doctrine of mutuality of contracts is not applicable, in so far as same have been executed or operated under. El Dorado Ice & Planing Mill Co. v. Kinard, 96 Ark. 184, 131 S. W. 460; Weil v. Chicago Pneumatic Tool Company, 138 Ark. 534, 212 S. W. 313. It was not error to refuse instructions touching the question of the necessity of mutuality of contracts, same not being applicable to executed contracts.

Appellant also contends that the trial court erred in rendering a .judgment against it for all costs. We are unable to find in tbe record where tbe costs were adjudged against appellant, and appellee concedes that be is liable for tbe costs in the case under tbe judgment rendered.

No error appearing, tbe judgment is affirmed.


author: Mehappy, J.

text:
    Stipsky v. Drotar.
    4-2814
    Opinion delivered January 16, 1933.

      A. G. Meehan and John W. Moncrief, for appellant.

      J. F. Holtsendorf, for appellee.
   Mehappy, J.

The appellee, Mike Drotar, brought suit in tbe Prairie Circuit Court against Metbo Tucek, Jan Kajs and Joseph Stipsky. He alleged that be leased and rented to tbe defendants, for tbe year 1929, certain lands, which be described, for tbe sum of $300; that tbe appellants agreed to pay tbe sum of $300 on January 1, 1930. He alleged that $45 bad been paid on tbe contract, and that there was a balance due of $255 and interest. Tbe following is tbe contract sued on:

“'Be it remembered that on this date, February 19, 1929, it is agreed between Mike Drotar and Metbo Tucek, tbe first party agrees to rent all tbe land be owns in section 6 and section 1 in township one (1) south, range 6 west, for tbe sum of $300 for tbe year 1929.

“The second party agrees to pay the first party the sum of $300 on January 1,1930.

“(Signed) Mike Drotar.

“(Signed) Metho Tucek.

“ Jan Kajs

“Joseph Stipsky.”

A demurrer was filed to the complaint, which stated that the complaint did not state facts sufficient to constitute a cause of action.

The court overruled the demurrer, and appellants, Jan Kajs and Joseph Stipsky, filed their separate answer, in which they denied that they entered into any agreement with Drotar, and denied that any contract was executed under which they obligated themselves to pay $300 or any other sum. They also denied that they had paid anything on the account.

Metho Tucek did not make any defense.

There was a .jury trial and a verdict and judgment for $255, with no interest to date of judgment. Motion for a new trial was filed, overruled, and exceptions saved, and the case is here on appeal.

The appellee testified that on February 19 he entered-into a contract in writing with the defendants, Tucek, Stipsky and Kajs, agreeing to rent all of his land in sections 1 and 6 for the year 1929 for $300; that he entered into a written contract; that the signatures at the bottom of the contract were the signatures of defendants.

There were 238 acres in the tract of land leased; that Tucek came over to appellee’s place with Kajs before the contract was made, and Tucek wanted to rent the land. He did not know Tucek before this visit, and Tucek was accompanied by Kajs; that he had received $45 of the rent, and the balance due was $255. Kajs and Stipsky have never paid anything. He received no note evidencing the rent. He received three notes for the sale of some farm machinery sold to Tucek, and these notes were signed as sureties or indorsers by Kajs and Stipsky.

He was not present when the contract was signed by Kajs and Stipsky. He wonld not have let Tucek have the farm unless they would stand for it. They knew they were to pay. The contract was written by Genlisky and his daughter at the request of witness. Witness told them what to put in the contract. He does not know what Tucek said to Kajs and Stipsky to get them to sign the contract. He told Kajs if he would sign the contract he would give Tucek the place. Kajs agreed to stand good for it, and Stipsky also agreed to this.

The contract was then introduced in evidence. Kajs and Stipsky gave witness the contract and signed their names to it, and he knew it was all right. Witness had the contract made up and Tucek took it, got it signed, and brought it back. He told Ka.js that he would not let Tucek have the land unless he stood for it.

Jan Kajs testified that he signed three notes to help Tucek buy some machinery from Drotar, but these notes only covered the purchase price of the machinery; that he signed the contract only as a witness; did not sign it as security; he never promised Drotar that he would pay the rent.

Drotar asked him for the rent after the contract was signed. • He told Drotar before the contract was signed that he would not stand good for the rent. He took Tucek over to see Drotar, and introduced them, but the land was not rented at that time. Drotar did not say anything to him about standing good for the rent. He said nothing about either Kajs or Stipsky signing the contract to secure the payment of the rent. He did not tell Drotar that he would guarantee the payment of the rent, and he only signed it as a witness.

Joseph Stipsky testified substantially the same as Kajs. Both of them testified that they did not sign the contract with the intention of being bound by it, but signed it as witnesses.

Appellant urges a reversal, first, on the ground that the verdict is contrary to the evidence. The contract itself is ambiguous. The parties to this suit are all Slo-yaks. The appellee speaks English, and testified, bnt it is apparent from his testimony, and the language used by him, that he understands very little about the English language. The appellants do not speak English at all, and their testimony was given through an interpreter.

Tucek desired to rent the land from appellee. He was a stranger, and appellee testified very positively that he would not rent him the land without appellants signing the contract, and the proof is undisputed that Kajs went to see the appellee with Tucek.

The contract was signed by appellants on the left-hand side of the paper. There is nothing on it to show that they signed as witnesses, and it made no difference where appellants signed the contract if it was their intention to sign the contract, not as witnesses, but for the purpose of being bound by the contract.

“It is not necessary that the signature of a party to a contract should appear at the end thereof. If his name is written by him in any part of the contract, or at the top, or at the right or left hand, with the intention to sign, or for the purpose of authenticating the instrument it is sufficient to bind him, unless subscription is required by law.” 13 C. J. 306; Gray v. Brewer, 177 Ark. 486, 9 S. W. (2d) 81.

The question here is whether they signed the instrument as witnesses, or signed it with the intention of being bound, and, the contract itself being ambiguous, this was a question of fact to be determined by the jury.

None of the parties, as we have said, knew enough English to know how to write a contract, or to understand it when it was written in English.

The court instructed the jury as follows: Instruction No. 1. “The plaintiff brings this suit against these defendants, Kajs and Stipsky, upon what he contends is a contract entered into between himself and one Metho Tucek. Tucek admits his liability upon the contract, but the plaintiff contends that these two other defendants signed this instrument of writing with the understanding that they were to guarantee the payment under the contract, whatever that amount is. Kajs and Stipsky deny this fact, hut admit that they, signed it, hut only signed it as witnesses, ‘and that they did not intend by their acts to make .themselves liable thereon, but merely signed it as a witness. That presents a question of fact for the jury to determine whether or not they obligated themselves upon the contract when they signed it, in order to get Tucek the place. If you believe they did that, then your verdict will be for the plaintiff, but, on the other hand, if you believe that they only signed the contract as a witness, then they would not be liable on the contract, and your verdict will be for the defendants, Kajs and Stipsky. If you find for the plaintiff, the form of your verdict should be, we, the jury, find for the plaintiff in the sum of $. If you find for the defendants, Kajs and Stipsky, the form of your verdict should be, we, the jury, find for the defendants. If nine of you gentlemen agree upon a verdict, the nine agreeing will sign their names thereto, but if all agree, you will only sign it by one of your body as foreman. Whatever your verdict is, return same into open court.”

Instruction No. 2. “The plaintiff must prove the material allegations set up in his complaint by a preponderance of the testimony. A preponderance of the testimony doesn’t necessarily mean the greater number of witnesses who might testify in the case, but it does mean upon whom the burden rests is required to offer competent testimony which outweighs, overbalances or preponderates in his favor.”

There is some conflict of authority as to the liability of one signing a contract in which he is not named, but, under the circumstances in this case, we think it was simply a question of the intention of the parties, and this was properly submitted to the jury, and its verdict will not be disturbed by this court.

It is next contended by the appellants that they were guarantors, and that it was void under the statute of frauds. We think the evidence is sufficient to justify the jury in finding that this was a contract signed by the appellants, and was binding on them. The jury might bave found that they signed it as witnesses, and that finding would have been sustained by substantial evidence. The question was purely one of fact, and the verdict of the jury is supported by substantial evidence.

Finding no error, the judgment is affirmed.


author: McHaNey, J.

text:
    Missouri Pacific Railroad Company v. Lane.
    4-2791
    Opinion delivered January 16, 1933.

      R. E. Wiley and E. W. Moorhead, for. appellant.

      Tom J. Terral and Gaughan, Sifford, Godwin & Gaughan, for appellee.
   McHaNey, J.

Appellee sued appellant for personal injuries sustained by him while in its employ, under the Federal Employers’ Liability Act, and recovered judgment against it in the sum of $5,000.

At the conclusion of the testimony appellant requested the court to direct a verdict in its favor, which was refused, and this assignment of error is now urged for a reversal of the case on two grounds; first, that the undisputed evidence shows that appellee assumed the risk; and, second, that it also shows appellee was not engaged in interstate commerce at the time of the injury, and that therefore the Federal law has no application in this suit.

We assume, for the purpose of this opinion, that appellee was engaged in interstate commerce, and it becomes unnecessary to decide whether he was or not, because of the disposition we make of the other assignment.

The facts, briefly stated, are as follows: Appellee was in the employ of appellant as a stationary engineer at McG-ehee, Arkansas. He operated a stationary engine used to pump water into water tanks and crude oil into oil tanks, to be used in the operation of locomotive engines in both State and interstate commerce. It was a part of bis duty to unload crude oil which was shipped into Mc-Gehee in tank cars. When a shipment of oil was received for unloading, the switching crew would spot the car so it could he unloaded into the underground tank by gravity. When the car was spotted over this underground tank, it was appellee’s duty to go on top of the tank car, unscrew the cap in the top of the dome, open the valves, and the oil would then run out by gravity into the underground tank, from which it would he pumped out by him into the storage tank. As above stated, such oil was used to operate locomotives on the road, as well as the stationary engines and the power plant in the shops. Appellee had been engaged in the same work for appellant for about four years. About 2:30 in the afternoon of February 1, 1931, while engaged in unloading a tank car of crude oil which had been shipped from El Dorado, Arkansas, through Louisiana, to McGehee, and which had been spotted over the underground tank, he was injured in the right knee by slipping in a small quantity of crude oil on top of the tank car, striking his knee against one of the pointed rivets in the tank car. The tank car was constructed with a ladder at each end, on both sides, ivith a walkway on both sides of the car at or near the bottom of the tank. At the middle of the tank another ladder goes up to the top of the car on either side with a platform constructed at or near the bottom of the dome which extends up about three feet from the top of the car. Appellee climbed up to the platform for the purpose of unscrewing the cap to the dome and opening the valve in the bottom of the car. He says that the cap had been put in crooked, or that the threads had become crossed, and did not readily come loose; that he then stepped out on top of the tánk from the platform on which he had been standing, and that he stepped into a small amount of oil on top of the car, which caused his foot to slip and him to fall, receiving a severe and painful injury to his right knee. He says he did not notice the oil until he slipped, and that he supposed that if he had looked down where he put his foot he might have seen it; that oil tank cars usually have oil spilled on top of them.

This is substantially the evidence in the case as given by appellee himself. There were .no eyewitnesses other than himself. Under these facts, we are of the opinion that appellee assumed the risk as a matter of law, and that the court should have directed a verdict in appellant’s favor at its request. Appellee had been engaged in this same character of work for about four years. He had unloaded many tank cars of oil. He knew that all or nearly all such cars have oil spilled on them. He knew that it was dangerous to step in oil on the rounded surface of a tank car, and that his foot might slip and cause him to fall. He was unloading this car in broad open daylight, and the only excuse he gives for not seeing the oil and thereby avoiding it is that he did not look. Had he looked, he would have seen the oil, as it was plainly visible on the top of the car. The law, under such circumstances, is well settled. In the recent case of Mississippi Valley Power Co. v. Hubbard, 181 Ark. 487, 26 S. W. (2d) 118, we said: “It is true employees do not ordinarily assume risks created by the negligent act of the master, and that he has a right to require of the master to provide suitable appliances and a safe place in which to do his work, and-to do such is the clear duty of the master. St. L., I. M. & S. R. Co. v. Touhey, 67 Ark. 209, 54 S. W. 577, 77 Am. St. Rep. 109 ; Pettus & Buford v. Kerr, 87 Ark. 396, 112 S. W. 886; St. L., I. M. & S. R. Co. v. Holmes, 88 Ark. 181, 114 S. W. 221. But it is equally true that, where the danger arising from the negligent conduct of the master is so apparent and obvious in its nature as to be at once discoverable to one of ordinary intelligence, an employee, by voluntarily undertaking to perforin Ms work in snob, a situation, assumes the hazards which exempts the employer from liability on account of injury to the employee. Wisconsin & Ark. Lbr. Co. v. Allison, 171 Ark. 983, 287 S. W. 197; Ward Furniture Co. v. Weigand, 173 Ark. 762, 293 S. W. 1002.” Other recent cases on the subject are Howell v. Harvill, 185 Ark. 977, 50 S. W. (2d) 597, and Koss Construction Co. v. Vanderberg, 185 Ark. 316, 47 S. W. (2d) 41.

No one knew how the oil happened to be on the top of the tank, whether it had sloshed out of the tank car through the dome, or whether it had been spilt there by the oil company, from whom it was purchased, in loading it, but this can make no difference. The undisputed proof shows that it was quite the usual thing for oil to be on top of such cars, to the knowledge of appellee, and he could not blindly step therein under the circumstances of this case without assuming the risk of so doing.

The judgment will be reversed, and the cause dismissed.