author: Kirby, J.,

text:
    Dillard & Coffin Company v. Chapman.
    4-3253
    Opinion delivered December 18, 1933.

      Hughes & Davis, for appellant.

      W. B. Scott, for appellee.
   Kirby, J.,

(after stating the facts). There was no error committed in refusing to give the requested instruction No. 1 for appellant, as there was no testimony warranting the submission of the question of a guarantee to the jury, and the court properly stated in instruction No. 4, given on its own motion, “There is no question of guarantee in this lawsuit.”

The whole question is one of fact as to the contract or agreement about the sale of the cotton when it was delivered by the appellees to the appellant; and the jury was warranted in finding that appellant was instructed that it might hold the cotton for a rise, but, if the price should go down, they must sell it while the price was still high enough to realize the amount of money which had been advanced thereon by the cotton factors; and, also, that they violated their instructions, and did not make the disposition of the cotton as directed, and were not entitled to recover any further sum for loss in the sale of the cotton than the sum already advanced, and for which they were instructed to sell.

The jury was properly instructed, and the verdict is amply supported by the evidence.

The judgment is affirmed.

Smith and Butler, JJ., dissent.


source: Caselaw Access Project

author: Mehaffy, J.

license: Public Domain

text:
    Missouri Pacific Railroad Company v. S. L. Robinson & Company.
    4-3256
    Opinion delivered December 18, 1933.

      Thos. B. Pryor and W. L. Curtis, for appellant.

      Partain & Agee and Ralph W. Robinson, for appellee.
   Mehaffy, J.

The appellee brought suit in the Crawford Circuit Court for $260.94 for delay in transporting and delivering a car of strawberry crates fom Paducah, Kentucky, to Yan Burén, Arkansas. It was alleged that the car of strawberry crates, including 4,000 extra quarts, was ordered on April 29,1932, and that the Paducah Box & Basket Company loaded said crates and received from the Chicago, Burlington & Quincy Railroad Company at Paducah, Kentucky, on the 30th day of April, 1932, a bill of lading; that said car of crates was thereafter shipped and handled Over the lines of the Chicago, Burlington & Quincy Railroad Company and the Missouri Pacific Railroad Company; that, at the time the car was ordered, appellees were engaged in handling and the sale of strawberry crates, and the strawberry season, which was short, was on in Van Burén and vicinity; that said crates were ordered for immediate use and resale, and were needed and required by appellee for that purpose; that, if said car had been handled and transported without delay, it would have, in the ordinary course of transportation, arrived and been delivered to appellee in the city of Van Burén, Arkansas, on May 3d, but that it did not arrive in said city of Van Burén until 5 p. m. on May 5th; that, by reason of the delay in transporting and deliver-ing said car by appellant and its connecting carrier, appellee was deprived of having said strawberry crates on hand for retail sale to its customers, who were demanding same, and, by reason of the delay, appellee lost the sale during said season of the amount of one carload of crates, which, if they had had, as they would, had they been delivered to them promptly in the ordinary course of transportation, they would have sold to their trade at a net profit of $260.94; that appellee had customers for the purchase and taking up of said crates, at the profit above mentioned, and, by reason of the failure to deliver the car, appellee was compelled to buy its crates from other dealers, and, as a direct result of the failure to deliver said crates within the time, it lost said profit, and the sale of that amount of crates; that, within the time provided in the bill of lading, appellee filed claim with the appellant for damages in the amount above named, which claim was by the appellant denied.

The appellant filed answer, in which it denied all the material allegations in the complaint.

The evidence shows that appellee ordered the car, which it is alleged was delayed for two days, from the Chicago, Burlington & Quincy Railroad Company, at Paducah, Kentucky. Appellee had ordered from the Paducah Box & Basket Company four or five cars of strawberry crates, to be shipped, as ordered by appellee, from time to time during the strawberry season. When it ordered the first car of crates, it came from Paducah to Van Burén in three days. Knowing the time that was required to transport the crates from Paducah to Van Burén, appellee, when it began to run low on crates, ordered another car to arrive in time to sell — by the time all of the crates in the first car were gone-, that is, they ordered it four days before they would be out of crates. The same day it ordered this car shipped, it notified the agent of the appellant at Van Burén of the order, and had him start tracing the car, so that it would not be delayed. Appellee sold the last of the first car of crates, the night before the day that the car should have arrived. If the crates had come in three days, as the first car did, appellee would have had crates to supply their trade for the next two days, but the car was delayed for two days, and appellees were out of crates. Instead of getting there in three days, it took the car in question five days to come from Paducah to Van Burén.

Appellee had ordered another car to be shipped to it, intending for it to arrive at the time it sold the crates in the car that was delayed, but, this car being delayed, the appellee canceled the order for the next car. If the car had arrived on time, appellee would have- sold the crates at a net profit of $'260.94. "When the car did arrive, appellee sold the crates at a net profit of $260.94. There is therefore no damage claimed because of a loss on this particular car, but the damage is claimed because the negligent delay in shipping this car left the appellee without crates to sell for two days, thereby losing the profit it claims they would have made. It bought crates elsewhere, nearer home, but the record does not show where, and does not show at what time they bought them. This, however, is immaterial, since the only claim for damages is for loss of profits that appellee would have made during the two days they were out of crates.

Usually, the measure of damages for delay in shipment is the difference in the price of the freight when it should have arrived and the price at the time it actually did arrive. But the claim here is not that it sold the car when it finally came for a lower price and were thereby damaged, because the evidence of appellee itself shows that they received the same price they would have received, if the car had not been delayed.

Appellees do not claim that they had already made a contract for the sale of the crates, but they claim that, if they had received them, they would have sold them at the profit named. Appellee contends that there is no element of special damages, but the damages complained of are as real and actual, and the result of the contract, as any damages could be.

A statement of the law in 10 C. J. 72 is as follows: “In accordance with well-settled principles, only such damages as are in the contemplation of the parties when they make their contract, and which result as a breach of it, are properly recoverable. Hence the fact that the shipper, at the time he made the contract with the carrier, informed its agent that he wished to make contracts with third persons for the sale of the goods to them, and the further fact that he did make such contract afterward, do not entitle a recovery from the carrier of profits which would have been made but for the breach of the contract of carriage.”

In this case, there is no evidence tending to show either that appellee had already made contracts to sell the crates, or that it gave any notice to the carrier, at the time of the shipment, of the fact that the crates were desired for immediate sale, or that there would be any special damages because of delay. There is no claim that any notice of special damages was given. Such notice must be given in order to recover special damages, or the evidence must show that the carrier had knowledge of the special circumstances, and this notice or knowledge must be at, or before, the shipment is made.

The measure of damages for negligent delay in the transportation of freight by a carrier is the difference between the value of the freight at the time it was delivered and its value at the time it should have been delivered, unless the carrier had notice that special damages would result from a failure to deliver in time. Chicago, R. I. & P. Ry. Co. v. Newhouse Mill & Lbr. Co., 90 Ark. 452, 119 S. W. 646.

Of course, if the carrier had knowledge that the crates were ordered for immediate resale, knew the purpose for which they were bought and shipped, knew that the sale was for a special purpose; in other words, if the carrier knew the facts about the necessity to have the crates for immediate resale, and knew that the strawberry season was a very short one, it wonld have been bound by this knowledge, but these facts would have to be shown by the evidence.

This court said: “Appellant had notice of the day of sale, and of all the circumstances in detail, as to why the sale was planned and fixed for that day. Appellant, according to the evidence of appellee, had notice of all of this, and made its contract with full knowledge that it was necessary to get the cattle from Brady for the sale on that day, if appellee was to secure the benefit of that sale. Appellant had no right to assume that the sale would continue from day to day, or would be as profitable to appellee if made on some other day. * * * Having notice of the special damage that would result to appellee if he failed to get his cattle to that auction sale, and having contracted with appellee after such notice to deliver them for that sale, appellee cannot be heard to say that the damages that appellee sustained by reason of the loss of that particular sale were not in contemplation of the parties to the contract” Chicago, R. I. & P. Ry. Co. v. Miles, 92 Ark. 573, 123 S. W. 775, 124 S. W. 1043; Chicago, R. I. & P. Ry. Co. v. Thomas, 118 Ark. 406, 176 S. W. 681.

This court recently said: “It has long been the rule in this State that special damages are not recoverable for breach of contract, in the absence of notice to the party in default that more than ordinary damages will be sustained in the event of failure to perform, nor unless such knowledge ‘be brought home to the party sought to be charged under such circumstances that he must know that the party he contracts with reasonably believes that he accepts the contract with the special condition attached to it’.” S. W. Bell Tel. Co. v. Carter, 181 Ark. 209, 25 S. W. (2d) 448. See also Chicago, R. I. & P. Ry. Co. v. Thomas, 118 Ark. 406, 176 S. W. 681; Chicago, R. I. & P. Ry. Co. v. Newhouse Mill & Lbr. Co., supra. If the appellant knew all the facts, it would, of course, not be necessary.to inform it as to facts'it already knew.

“Generally a person can be said to have notice of a fact only when it is actually communicated to him in such a way that his mind could, and did, take cognizance of it. And, of course, when a person knows of a thing’, he has notice thereof, as no one needs notice of what he already knows. While extra judicial proceedings, or proceedings without jurisdiction, do not operate as constructive notice, yet express notice obtained from such proceedings operates the same as notice obtained in any other manner.” St. Louis-San Francisco R. Co. v. State, 179 Ark. 1128, 20 S. W. (2d) 878.

There is no evidence that the appellant had knowledge of all the facts necessary to make it liable in special damages. Even if it knew that the strawberry season was short, there is no evidence that it knew that appellee wanted the crates for resale, or that it had made contracts for resale, or that it had customers who would buy the crates.

Appellee requested, and the court gave to the jury, the following instruction: “You are instructed that the railroad company is held to know facts familiar to ordinary people, and that, when a shipment of merchandise is placed in its hand and care, which merchandise has only a seasonable use, it is held by the law to reasonable care in knowing the time in which same is to be and can be used. ’ ’

Under the facts in this case, this instruction should not have been given. There is no evidence that either ordinary people, or the appellant, knew that the crates were ordered for resale, or that appellee had customers who would repurchase them.

If the appellant had knowledge of the facts necessary to make it liable for special damages, it may be shown in evidence. If it did not have this knowledge, and no notice was given, then special damages cannot be recovered.

It follows from what we have said that the judgment must be reversed, and the cause remanded for a new trial.

McHaney, J., Mr. Justice Smith, Mr. Justice Butler and I .concur in the judgment of reversal, but think the cause should be dismissed. No notice of special damages was given, as held by the majority, and no showing was made that the crates could not have been obtained elsewhere. Also, the damages claimed are purely speculative.


text:
    Stringer v. Conway County Bridge District.
    4-3270
    Opinion delivered December 18, 1933.

      Edward Gordon, for appellant.

      E. A. Williams, for appellee.
   Mehaffy, J.

The appellee filed, in the Conway Chancery Court, a complaint against delinquent lands, alleging that the Conway County Bridge District was duly organized, and the assessment of benefits was duly made and extended against the real estate and lands within the district, and annual tax levied thereon, for the purpose of paying and retiring the bonds and other indebtedness incurred in the construction and completion of said improvement. It is alleged that the lands described were duly assessed for taxes for the years 1925 to 1930, inclusive, and that the assessments are past-due and unpaid, and that the bridge district, appellee, is entitled to recover the taxes, tog-ether with the 25 per cent, penalty, interest, and cost and reasonable attorney’s fee, all of which constitute a valid, subsisting lien upon said lands, lying and being situated in the county of Conway, State of Arkansas. Then follows a description of the lands, and prayer for taxes, interest and cost; that the lien of the said district be declared, decreed and enforced, and that the lands be sold as provided by law for the payment of said taxes, interest, penalty, attorney’s fee, and cost and all other proper and equitable relief. Summons was issued and published as required by law.

The appellant, W. H. Stringer, filed intervention, answer, and plea of res judicata. In his plea, appellant claimed to be the owner and in possession of certain lots, describing' them, and alleging that he had purchased the property from the State of Arkansas under the provisions of act 296 of the Acts of 1929. Appellant further alleged that on March 23, 1933, the chancery court of Conway County entered a decree confirming the title in the State, in and to the lands purchased by the intervener, and vesting the absolute title in the intervener, free from any liens or claims by the Conway County Bridge District. A copy of said decree was attached to, and exhibited with, the intervention, and made part thereof. The appellant pleaded this decree as a complete bar to appellees’ right to judgment against the property owned by the intervener.

The appellees filed a reply to the answer and plea of res judicata of appellant, stating numerous reasons why the sale to the State was illegal. Appellant demurred to the reply, and asked that his title to the property described be quieted and confirmed. The chancery court dismissed, for want of equity, the pleas filed by appellant, and overruled his demurrer, and dismissed appellant’s petition, and granted the relief prayed for by the appellees, and sustained the lien.

It is the contention of the appellant that when he received a deed from the State, it was free from all liens of improvement district assessments.

When lands are forfeited to the State for nonpayment of taxes, and confirmation is had under act 296 of 1929, all irregularities and informalities connected with the forfeiture and sale for taxes are cured, and in all cases where the State had the power to sell, the title may be confirmed in the State. If the State did not have the power to sell for taxes, then, of course, the sale would be absolutely void, and a confirmation would be void. If taxes on a tract of land had already been paid, the sale would be void, or if the property was not subject to taxation; but in all cases where the State has power to sell, and a decree has been entered in accordance with the provisions of act 296 of 1929, although the sale may be void for irregularities and informalities, all persons are barred by the decree of confirmation, and cannot thereafter take advantage of any informality or irregularity.

The decree, however, does not relieve a purchaser from the State of payment of assessments, because the sale to the State does not extinguish the lien, it merely suspends the lien while the title is in the State.

This court, in referring to the act of March 27, 19'25, said that the statute, of course, had no application to the present litigation, but that § 5433 of Crawford & Moses’ Digest was equally potential in continuing the lien of the improvement district, and in preventing its extinguishment by a sale for general taxes. The court further said: “The words, ‘all demands, executions, incumbrances or liens whatsoever created,’ have no reference to the State’s paramount lien for taxes. But the words which follow unmistakably carry the meaning that the special taxes of the improvement district shall continue until fully paid, and are not extinguished. Of course, the forfeiture to the State of lands for general taxes necessarily suspends the enforcement of the special tax lien, as long as the title remains in the State, but, as the lien, under the terms of the statute, is not extinguished, and continues until the special taxes are paid, the same can be enforced when the land goes back into private ownership.” Turley v. St. Francis County Rd. Imp. Dist. No. 4, 171 Ark. 939, 287 S. W. 196.

Act 71 of the Acts of 1917, creating the Conway County Bridge District, expressly provides that the assessments shall be a lien against all real estate in said district from the date of said resolution, and entitled to preference over all judgments, executions, incumbrances, or other liens whatever, and shall continue until such assessment, with any penalty and cost which may accrue thereon, shall be paid.

There is nothing- in act 296 of the Acts of 1929 that changes this rule announced by this court, or repeals or modifies the law creating the lien. It is true that § 8 of act 296 provides that the improvement district may be made a party, and, if it wishes to do so, it may pay the taxes, penalty and cost, and be subrogated to State’s lien for the amount so paid, and said improvement district may include the amount due the district for taxes, and have the right to foreclose for such amount, as though the same had been assessed against such lands in favor of the improvement district.

Section 9 of the act provides that the decree of confirmation shall operate as a complete bar against any and all persons who may thereafter claim said land in consequence of any informality or illegality in the proceedings, and the. title to land shall be considered as confirmed and complete in the State forever. There is, however, no intimation in the act that improvement district taxes shall be extinguished.

We again held that forfeiture to the State of lands for general taxes necessarily suspends the enforcement of the special tax lien, as long as the title remains in the State, but, as the lien under the terms of the-statute is not extinguished, and continues until the special taxes are paid, the same can be enforced when the land goes back to private ownership. Hopper v. Chandler, 183 Ark. 469, 36 S. W. (2d) 398.

We have repeatedly held that forfeitures to the State for general taxes suspends the enforcement of the lien for improvement district taxes, but it does not extinguish the lien. Therefore, when the appellant purchased the land in question from the State, the lien for bridge improvement districts attached, and, unless the assessments were paid, the lands could be sold to enforce the lien. There is nothing in act 296, supra, that changes the law on this subject.

The failure of the clerk to post the delinquent list was an irregularity which was cured by the confirmation under act 296; and while the enforcement of the lien for improvement taxes was suspended while the title was in the -State, no penalties attached during this time.

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


author: McHaney, J.

text:
    Watson v. Trotter.
    4-3257
    Opinion delivered December 18, 1933.
    J. D. Benson and G. C. Carter, for appellant.

      Cochran, Arnett & Woolsey, for appellee.
   McHaney, J.

On May 20, 1933, the. annual school election was held in School District No. 20, Ozark District, Franklin County, for the purpose of electing three directors, for the one, two and three-year terms. There were six candidates, two being rival candidates for the one-year, two for the two-year and two for the three-year terms. Their names were placed on the blackboard in the school house where, the election was held, showing them to be candidates for directorships for the respective terms of one, two and three years, and all the electors voting were so advised, but in casting their ballots, the voters failed to designate thereon the term of office of the candidate for whom they voted. The election officials made and certified the returns of the election to the county court, as follows: For Cartwright and Crowell, candidates for the one-year term., 14 votes each; for Powell and Kiddle, candidates for the two-year term, 13 and 18 votes respectively; for Trotter and Alston, candidates for the three-year term, 15 votes each. Upon the returns so made and canvassed, the county court found that Biddle was elected for the two-year term, and that for the one and three-year terms, no person had been elected, and he thereupon (June 8, 1933) made an order calling a special' election in said district to elect two directors, for the one and three-year terms, to be held July 5, 1933, and, on the same date, caused a notice of such election to be published in a newspaper published in said county and district. The order was not filed with the county clerk until June 23, 1933.

On June 20, 1933, this action was instituted in the circuit court against the county judge, and others, for certiorari to bring up the record from the county court, for a writ of prohibition against the latter to prevent the holding of the special election, and to enjoin its being held. The circuit court granted the relief prayed, and this appeal followed.

We think the circuit court was without jurisdiction to hear and determine the matter complained of, and in this respect the case is ruled by the decision of this court in the recent case of Shimek v. Janesko, ante p. 418, and in some other respects by the case of Watson v. Gatiis, ante p. 376.

The duties formerty devolving upon county boards of education are now transferred to the county courts. Section 3, act 26 of 1933, and § 2, act 247 of 3933. The returns of this election were made to the county court, who canvassed same and made the finding hereinbefore set out. There was no contest instituted before the court. It may be well to repeat in this connection what we said in the Grattis case, supra: “The law does not require that the ballots used in a school election be printed, but it does require that they be either printed or written, There is no such thing as voting orally or conditionally. Section 3 of article 3 of the ‘Constitution requires that, ‘All elections by the people shall be by ballot,’ and the ballot itself must express the elector’s will. The elector himself would not be permitted to testify that, having failed to vote specifically for any candidate for any particular term, he nevertheless intended that his ballot should express his assent that when his ballot had been counted it should be treated as having been cast for the highest candidate for the longest term,” etc. This election was therefore invalid under the holding in this case. The county court ascertained from the returns made that neither of the candidates for the one and three-year terms was elected.

We are also of the opinion that the county court had the power, and properly exercised it, to call a special election. Section 78 of act 169 of 1931, so provides. It reads as follows: “Special elections shall be held in school districts when called by the county board of education (now county court), and shall be held by the same officials at the same polling places, and the return shall be made, canvassed and published in the same manner as is provided by law for annual school elections in such district. At such special elections shall be submitted any question that needs to be, or may be, submitted to the electors of the school district.”

Section 93 of the same act provides that, “Vacancies on the board of directors shall be filled by the remaining directors;” and it is argued by appellees that this method is exclusive, and shows that the election of directors is not one of the purposes of a special election provided for in § 78. We cannot agree with this argument. Section 93 first provides for six directors for each school district, who shall each serve for three years, or until his successor is elected and qualified. It then provides that vacancies may be filled by the remaining directors. This provision was made for vacancies caused by death, resignation or removal from the district, and not for vacancies caused by a failure of any candidate to receive the highest number of votes for the term for which he was a candidate at any annual school election. We do not think the lawmakers intended, in case of a tie vote, as is the situation here, that the candidate who was elected could appoint the other two. Moreover § 93 was repealed by § 3, Acts 1933, p. 156. Section 78 is broad enough to cover special elections for school directors, and we hold the county court had the power to call the election in this case, and properly did so, because no candidate for the one or three-vear terms was elected at the regular election.

The judgment will be reversed, and the cause dismissed.


author: Butler, J.

text:
    Home Insurance Company v. Boyce.
    4-3258
    Opinion delivered December 18, 1933.

      W. K. Ruddell, for appellant.

      D. L. King and Gus Causbie, for appellee.
   Butler, J.

E. A. Boyce, the appellee, began to work for the appellant company as its agent about the year 1921. The business of the appellant was writing fire insurance, and the appellee represented it in several counties. On the 25th day of October, 1929, the appellant required the appellee to give bond, upon which the other appellees in this case became sureties. Boyce continued as the agent of the appellant until November 8, 1930, when he entered into a contract with Cuthbert Pickren, by which Pickren took over his business as insurance agent, and became obligated to perform services as such for the appellant on the same terms and conditions as Boyce had previously worked, and by which contract Boyce was relieved from all liability under policies which had been written after the date of his contract with Pickreri.

It is conceded that this contract was made with the assent of the appellant, and that from then on the liability of the sureties on the bond of Boyce was terminated. The appellant brought this suit on November 20, 1931, alleging that Boyce was due it, under the terms of his contract, the sum of $2,100, and that the sureties on his bond were liable therefor in the sum of $1,000, that being the amount named in the bond for which they might be liable because of the default of Boyce. It alleged that the account was complicated, running over a period of years, and prayed that a master be appointed to state the account, and that it have judgment against Boyce in the sum alleged to be due, and judgment against the bondsmen in the sum of $1,000. 'A master was appointed, testimony was taken, and an account was stated by the master in which he found that there was due the appellant from Boyce the sum of $1,063.80, of which amount the bondsmen were liable in the sum of $70.36, on the theory that the bond was only liable for sums collected by the agent on policies issued after its date.

The court approved the finding of fact of. the master, and his conclusions of law, and, among other things, decreed that “the bond is not liable for any policies written before the bond was given, although the notes matured and were not paid until after bond was given, and the agent became liable by reason of the notes maturing and not being paid after the bond was written.”

It is our opinion that the question presented is whether or not. the declaration of law above quoted is correct. It is well settled that bonds must be construed like any other contract, and the liability of the sureties is to be determined from thedanguage of the bond alone, where the same is not ambiguous. The obligation of the bond pertinent to the question involved is, that the principal “shall duly and properly account for, and pay over to the said company, all premiums, premium notes and proceeds of such notes coming into Ms or their hands on or for policies of insurance, and shall pay back to the said company the commission and fees advanced to him, or them, by the said company on all notes which are not paid at maturity; and shall also refund to the said company the unearned commissions on the premiums returned under cancelled policies; and all moneys of the company which may at any time come into his or their hands, or pass under his or their control, from any source whatsoever.”

It will be observed that the liability is predicated, not upon the date when any given policy might have been written, but upon the fact that the principal should account to the company for moneys coming into his hands due the company at the time they were received, or for commissions and fees advanced on notes where the same were not paid at maturity, and for unearned commissions on premiums returned where policies had been cancelled. We are of the opinion, therefore, that the court erroneously construed the bond, and that the liability of the sureties depends on whether or not the money due the company came into the hands of the agent, or fees advanced on notes were due to be returned because the notes were not paid at maturity, and unearned commissions were due to be refunded on can-celled policies within the time between the execution of the bond and the date the sureties were relieved from any further liability by reason of the contract made with Pickren, without respect to the date of the policies, as it would be immaterial whether they were issued before or after the date of the execution of the bond.

The judgment of the trial court will therefore be reversed, and the cause remanded with directions to ascertain what notes, if any, came into the hands of the agent within the dates last above mentioned, and it is decreed that such as are still within his hands, if any, be delivered to the appellant company; also, to ascertain what commissions and fees the company advanced to appellee within said dates on notes which were not paid; also, the amount of the unearned commissions on premiums, if any, returned to policyholders by reason of cancellation of policies, and such other moneys as may be found to have come into the hands of the principal belonging to the appellant company during the life of the bond; and to render judgment against the. principal and the sureties for such of said items as have not been paid by the principal, the liability of the sureties in no event to be more than the amount stipulated in the bond.


text:
    Standard Pipe Line Company v. Burnett.
    4-3245
    Opinion delivered December 18, 1933.

      T. M. Milling and Gaughan, Sifford, Godwin & Gaughan, for appellant.

      T. P. Oliver and McNalley & Sellers, for appellee.
   Butler, J.

The appellant is a corporation organized under the. laws of the State of Louisiana. The appellee is a resident of the State of Arkansas, and the alleged injury out of which this litigation arose was sustained in Union County, Arkansas, on the 19th day of May, 1930.

The appellee alleged in substance that he was in the employ of the. appellant company on the 19th day of May, 1930, and on that day was directed by his foreman to go into an oil pumping station of the appellant to assist in cleaning the same; that the station had been flooded by overflow waters which brought and deposited within the station, acids, caustics and other poisonous substances; that appellee was inexperienced and unaware of any danger to be apprehended from the fluids in the pumping station coming in contact with his body, anal that he was assured by the. foreman, when he inquired if it was necessary to use boots, that there was no danger in removing the water and slush from the basement of the pumping station, whereas appellant knew, or in the exercise of ordinary care ought to have known, that the water and the sediment was dangerous, and would result harmfully to those working therein unless their bodies were protected, and that appellant was negligent in directing appellee to work therein without affording him some means by which he might be protected from the deleterious fluids; that, because of his working in the pumping station in removing the accumulated water and deposits, the same came in contact with his skin, and that he contracted oil poisoning on his hands and arm,s, totally and permanently disabling him, to recover damages for which his suit was instituted.

The defense tendered by the answer was a general denial of the allegations of the complaint, and the affirmative defenses of assumed risk and contributory negligence. As a further defense, it was alleged that the appellee had entered into a written contract with the appellant, whereby it was agreed that, in the event of any injury occurring during the course of his employment, compensation should be made under the provisions of the Workmen’s Compensation'Act of the State of Louisiana. This contract was pleaded as a complete defense to the action, to which a special demurrer was interposed, and sustained over the objections of appellant. From a verdict and judgment in favor of the appellee, the appellant has appealed.

I.

It is insisted that the court erred in refusing to direct a verdict in favor of the appellant; first, because the evidence, viewed in its most favorable light, does not warrant the submission of the case to the jury, as there was no evidence showing negligence on the part of the appellant, or that the water coming in contact with appellee’s body while he was engaged in cleaning out the pumping station was the proximate cause of the injury alleged to have been sustained, and that he was aware of whatever danger existed, and was able to judge the probable consequences, as well as his foreman.

The evidence relating to the negligence of the appellant complained of, and as to whether or not, if established, it was the cause of the injury, is in conflict. Without discussing this evidence in detail, suffice it to say that viewed in its most favorable light it tended to establish the fact that, before the date of the alleged injury, the appellee was a healthy man, and had never had any disease of the skin; that he had been in the employ of oil companies for a number of years engaged in doing general work in the oil fields, which included that of fitting pipes and carpenter work, but that he had never had occasion to work where the conditions were similar to those 'which existed at the pumping station on the date of his injury, and that he did not know that chemicals from refining plants were likely to pollute the water within the pumping station. There was evidence also to the effect that the appellant’s foreman knew of refining plants situated a short distance above this pumping station, and that ordinarily the waste from the same would drain through a depression, but that he also knew that about the time of the injury complained of there had been a good deal of complaint of oil poisoning, and that the waters from the depression through which the waste would usually flow spread out over the territory nearby, and over the pumping station; that the appellee was directed to work in the station and to bale out the accumulation of water and sediment therein, and was assured there was no danger in doing this; that he was engaged in this work for perhaps two days; that within a short time after completing this work his hand and arm began to itch 'and burn, and in about two or three weeks broke out in small pustules, the infection continuing to spread and increase in intensity until it became such that he made complaint, and was directed to go to a physician who diagnosed his trouble as oil poisoning.

It was also in proof that some persons were not as susceptible to oil poisoning as others, and that one part of a person’s skin would be more susceptible to oil poisoning than another part, and that the condition from which the appellee suffered would be produced by contact with caustic chemicals coming from refining stations. Several employees of the appellant, who worked in the station with the appellee, also contracted oil poisoning, while others did not. There is no evidence to show that, between the time of the baling operations and the discovery of the irritation on the hand and arm of the appellee, he worked at any place where he would have been likely to contract oil poisoning, but that for a time after the date of his alleged injury he worked around the station doing odd jobs, such as cutting grass, fitting pipes, etc., from which there was nothing likely to create the condition to his skin. This evidence is legally sufficient to sustain the verdict of the jury, both on the question of negligence on the part of the appellant, and the lack of contributory negligence of the appellee, and warrants the submission to the jury of the question of assumption- of risk.

We recognize, and adhere to the rule announced in Railway Co. v. Henderson, 57 Ark. 402, 21 S. W. 578, and in Biddle v. Jacobs, 116 Ark. 82, 172 S. W. 258, that where evidence tends equally to sustan two inconsistent propositions, a verdict in favor of the party bound to maintain one of them against the other is necessarily wrong, and that verdicts cannot be predicated upon conjecture, but that the causal connection between the alleged cause, and the injury said to arise therefrom, must be proved by evidence, and not left to mere speculation. We are of the opinion that these doctrines are not applicable in the instant case, for, while there- is no direct proof of the cause of the injury, the evidence establishes circumstances from which these facts may be inferred.

II.

1. To the defense that appellee was precluded from a recovery because of the contract entered into between him and the appellant -by which any injury was to be compensated in the manner and in the amounts fixed by the Workmen’s Compensation Act of Louisiana, the appellee interposed a special demurrer which was sustained hy the court. This ruling, it is strongly insisted, was erroneous on the theory that the contract was a voluntary mutual agreement, fair in its provisions, and which in no way attempted to limit the liability for the injury, and therefore was not against the policy of this State as expressed by the Constitution and § 7147 of Crawford & Moses’ Digest, and that to construe the statute last cited as prohibiting the appellant from making a contract of the nature pleaded would be unconstitutional as denying it equal protection of the law, and that it denies freedom of contract and conflicts with the due process of law clause of the Fourteenth Amendment to the Constitution of the United States.

This argument is advanced because § 7147, supra, limits its application to corporations, except those engaged in interstate commerce, and does not apply to individuals or partnerships. To sustain its contention, the appellant cites Chicago, etc., Ry. Co. v. State, 86 Art. 412, 111 S. W. 456, and Prudential Insurance Co. v. Cheek, 259 U. S. 530, but those cases recognize the fundamental difference between natural and artificial persons and that those provisions in our own Constitution and the Constitution of the United States, by which laws are forbidden denying any person equal protection, or which do not secure equal privileges and immunities, do not relate to corporations, because these do not exist naturally, but are the creatures of law, possessing only such powers as are granted them, and making only such contracts as they are authorized to enter into, and that wherever an act is general and uniform in its operation upon all persons coming within the class to which it applies, it does not come within the prohibition of the Constitution. We have many times upheld the validity of acts relating to corporations, limiting their rights beyond those of natural persons for the reason that a citizen or natural person has the inherent right, independent of any legislation, to contract, while the corporation is clothed only with such power as may be given it by the legislative will, and this may be altered, revoked, or annulled at the pleasure of the Legislature, and terms prescribed under which they may conduct their business, the only limitation upon its power being that it may not interfere with any vested right of the corporation or its incorporators, or violate any fundamental principle of natural justice. On this principle, the Supreme Court of the United States and this court have often upheld the validity, of such legislation. Little Rock & Ft. Smith Rd. v. Eubanks, 48 Ark. 460, 3 S. W. 808; Leep v. Ry. Co., 58 Ark. 407, 25 S. W. 75, 23 L. R. A. 264, 41 Am. St. Rep. 109; McKee v. American Trust Co., 166 Ark. 480, 266 S. W. 293; Pru dential Ins. Co. v. Cheek, 259 N. S. 530, 42 S. Ct. 516, 66 L. Ed. 1044.

2. We next consider the question as to whether or not the contract relied upon is against the public policy of this State and whether for that reason it is. or is not void. As a part of the preamble to the contract the fol-. lowing language is employed: ‘ ‘ Employee wishes to be employed by employer, for service in the State of Arkansas as laborer at the rate of 56½ cents per hour, and to continue in said employment as long as is mutually agreeable. Employer consents to engage employee under the terms, conditions and stipulations hereinafter set out.”

Section 1 of the preamble recites that the appellant is a Louisiana corporation with its domicile in that State, and that it maintains offices in certain cities situated therein, at one of which the appellee was engaged for services in the State of Arkansas.

Section 2 recites that the corporation is subject in the State of Louisiana to the operation of an act of the General Assembly of that State known as the Workmen’s Compensation Act.

Section 3 recites that the corporation has secured permission to do business in Arkansas and voluntarily extends to its employees therein all of the rights and benefits of the Louisiana law.

Section 4 recites that the corporation gives and has given injured employees in Arkansas necessary medical and hospital treatment and has paid the employees compensation in accordance with the terms of the Louisiana law regardless of the question of negligence, or the legal defenses the corporation might have had. By § 5 the corporation says it has paid compensation to injured employees when there was no legal liability under the laws of the State of Arkansas.

"Section 7 recognizes that, while extending the benefits of the Louisiana law to its employees in Arkansas, the corporation is liable under the laws of Arkansas to employees injured by the negligence of the agents and employees of the corporation.

Section 8 states that when an employee is injured through negligence of the corporation, in many instances such employee brought suit in the courts of Arkansas for amounts in excess of the amounts allowed by the Louisiana law.

Section 9 states that when the employees were injured through their own fault, they accepted compensation under the Louisiana act.

Section 10 complains that the corporation pays its employees under the Louisiana act when injured through their own fault, yet when injured as a result of its negligence the employees bring suit in Arkansas.

Section 11 concludes that the corporation is paying all injured employees and is not deriving the benefit under the Louisiana act, and § 12 argues that this is unfair.

Section 13 is as follows: ‘ ‘ That the employee herein named has been offered the option of working for the Standard Oil Company of Louisiana under the terms, conditions and stipulations of the. Louisiana Workmen’s Compensation Act, which act requires the payment of certain fixed amounts regardless of legal liability for negligence, and the payment of doctor’s bills and hospital fees, up to a stipulated amount; or of working under the laws of the State, of Arkansas, which do not require the payment of any damages or the furnishing of medical or hospital services, except in cases of negligence on the part of the employer, and said employee does now voluntarily elect to work for the said Standard Oil Company of Louisiana under the terms, conditions and stipulations of the Louisiana Workmen’s Compensation Act, a copy of which is attached hereto and made a part hereof.”

Section 14 provides “that in the State of Arkansas no Workmen’s Compensation Law is in effect, and the employer is not liable to the employee for injuries sustained by the employee while engaged in his employment, except on account of negligence on the part of the employer, its agents or employees, and that the defenses of contributory negligence, assumed risk, with other defenses, when applicable, may be pleaded by the employer to defeat the claim of the employee for such injuries.”

The contract then provides that, in consideration of the things mentioned in the sections noted, and for the mutual benefit accruing to the respective parties, it is agreed “that, should the employee, while in the service of the employer, receive an injury or injuries, compensation therefor shall only be claimed by the employee, and recognized and paid by the employer, in the same amount and in the same manner as is now fixed and determined by the Workmen’s Compensation Law of the State of Louisiana, which law, it is agreed, in its entirety, as it now exists, is a part of, and embraced in, this contract.”

The remainder of the contract relates to contingencies which may arise in the event the agreement is not binding on the next of kin or the estate of the employee in the event of his death, and concludes with the request to his next of kin, or his personal representative in the event of his death, to make settlement with the employer on the basis of the Workmen’s Compensation Act.

It is clear from the sections of the preamble quoted and the recitals of the various sections that, while § 13 professes to offer the employee an option, which he has voluntarily accepted, that is, a free choice of conditions under which he works, there is in reality no alternative, but that he shall work under the provisions of the Workmen’s Compensation Act of Louisiana. It does not give him the right of choice between the benefits of the Workmen’s Compensation Act of Louisiana and the laws of Arkansas, and it is manifest that, if the prospective employee hopes to secure work, the contract must be signed. This interpretation, we think, is justified by a consideration of the contract in its entirety, and the phrasing of that part of the preamble first quoted, “Employee wishes to be employed. * ® * Employer consents to employ employee under the terms * * * hereinafter set out.” As we view it, there is nothing voluntary about it. This view' is strengthened by the language of the opening paragraph of the contract, quoted supra. By that agreement, in the event of injury, the employee is not given the right to elect to receive compensation under the laws of Louisiana, or to have his rights determined and his compensation fixed by the laws of Arkansas, but those rights must be determined, and compensation fixed, by the laws of Louisiana, without regard to what the employee may desire.

3. It is next contended that the contract in no way attempts to limit liability for injury. To sustain this contention, appellant argues that the fixing of the amount of compensation in no way limits liability for injury, and that to bring it within the inhibition of our laws it must have been such as to have defeated all liability, whereas it fixes a reasonable amount to be paid, if an injury occurs. For these reasons, appellant contends that the doctrine announced in Pine Belt Lbr. Co. v. Riggs, 80 Okla. 28, 193 Pac. 991; Little Rock R. Co. v. Eubanks, 48 Ark. 460, 3 S. W. 808; and Rosener v. Hermann, 8 Fed. Rep. 782, have no application.

The Workmen’s Compensation Act, which was made a part of the contract, is an involved and voluminous piece of legislation. Its provisions bearing on the question for our determination are to be found in the sections which relate to the amount of compensation and the procedure to be taken in the event of dispute and failure to agree upon a claim for compensation between the employer and employee. 'By § 8, the amount of compensation is fixed for an injury causing total disability to do work of any reasonable character at 65 per cent, of the wages, during the period of disability, not beyond 300 weeks; for injury producing permanent total disability, 65 per cent, of the wages previously earned, to extend not beyond a period of 400 weeks, and, where there is partial disability, 65 per cent, of the difference between wages at the time of the injury and wages which the injured employee may be able to earn thereafter, to extend not beyond 300 weeks. Provision is made for certain specific injuries, as for loss of thumb, first finger, toe, hand, arm, etc. We call attention, however, only to the disability allowed for loss of both hands, or both feet, or both eyes, or one hand and one foot, which is 65 per cent, of the wages previously earned, for a period of 400 weeks.

The argument that it was not the purpose of the contract to limit the liability, but to limit the recovery, and therefore was not offensive to the provisions of the act, is well answered by the appellee thus: “What is liability in personal injury cases? Is it not simply the obligation to respond in damages, and is not an attempt to exempt the master from his obligation to so respond, an attempt to exempt him from a portion of his liability?” The answer to the question is obvious. When the remedy is lessened, the liability to that extent is destroyed.

4. Section 18 provides for the procedure in the event of dispute and failure to agree upon the amount of compensation, and that the case be submitted to a single judge who shall hear and determine all of the questions in dispute and render his judgment without the intervention of a jury.

This contract deprives a citizen of this State of an appeal to its courts and remits him for the establishment of his rights and a remedy for his wrongs to a foreign jurisdiction, to be determined by procedure unknown here, and contrary to our traditional policy. Article 2, § 7, of our Constitution preserves in all cases triable in a court of law the right to a trial by jury, without regard to the amount in controversy. No declaration of a settled policy could be clearer than the language there used, and any shift to thwart or nullify the fundamental law cannot be upheld. It is apparent, whatever the argument may be, that the making of the contract was not the voluntary act of the appellee. The practical interpretation of the contract is, no contract, no job. By the contract, an employee’s remedy for injury suffered for a negligent act of the employer, while not wholly taken away, is seriously impaired; first, as has been observed, by the necessity of his having to resort to a foreign forum, and, second, by limitation of the amount to be recovered in a sum in many cases which might well be supposed little short of a complete denial of redress. Without regard to the culpability of the employer, the age of the employee, the number of his dependents, or the reasonable expectation of greatly increased earning power, or of the length of time he may be expected to live, yet, if totally and permanently disabled, his compensation is limited to 65 per cent, of the wages he was earning at the very time of the injury, and can in no event continue beyond a period of 400 weeks, or seven and one-seventh years. This is an arbitrary fixing of compensation, which, in many instances, would be so much less than the damages to which the employee is justly entitled as to amount to a denial of liability. Our Constitution, by § 32, art. 5, has asserted as basic law, and as further declaratory of our settled policy, that “no act of the General Assembly shall limit the amount to be recovered for injuries resulting in death or injuries to persons or property”; and by § 6 of art. 12, power is reserved to alter or amend any general laws existing at the time corporations are formed; by § 11, art. 12, foreign corporations are authorized to transact business in this State under such limitations and restrictions as may be prescribed by law. Those limitations and restrictions (§ 1828, Crawford & Moses’ Digest) are such as are imposed by law upon domestic corporations. If, then, the General Assembly could not limit the amount to be recovered for personal injuries received, it follows that a creature which owes its existence to a legal birth and operates within the State by its permission, under legal restrictions, may not do that which the law-making body itself cannot do. To leave no doubt regarding the policy of this State, the General Assembly, by act No. 175, supra, of which §§ 7144 and 7147 of Crawford & Moses’ Digest are a part, provided for liability for injury suffered by an employee of any corporation except those engaged in-interstate commerce. The exception was made because corporations of the last-named class, with respect to liability for injuries to its employees, was fixed by the Federal Employers’ Liability Act. Section 4 -of act No. 175 (now § 7147, Crawford & Moses’ Digest) provides that any contract, etc., seeking to exempt corporations from any liability imposed should be to that extent void. The- contract, then, being, as we hold, a shift to evade the laws of this State, and in conflict with public policy, the court correctly sustained the demurrer.to that part of appellant’s answer which pleaded said contract as a defense to plaintiff’s suit. Little Rock, etc., Ry. v. Eubanks, and Leep v. Ry. Co., supra; Liverpool, etc., v. Phoenix Ins. Co., 129 U. S. 397, 9 S. Ct. 469; The Kensington, 263 U. S. 263, 22 S. Ct. 102.

To sum up our conclusions: (a) Act No. 175 of the Acts of the General Assembly of 1913, is not within any inhibition of the National or State Constitutions; (b) the contract pleaded in bar was not voluntarily entered into; (c) it gives the employee no right of election in the event of injury, between the Workmen’s Compensation Act of Louisiana and the rights accorded by the laws of this State in which the cause of action arose; (d) it remits the employee to a foreign jurisdiction for the enforcement of his rights; (e) and deprives him of his constitutional right of trial by jury; (f) its practical effect is to exempt the employer of a part of his liability by limiting the amount of recovery, without regard to any except an arbitrary measure of damages; (g) it is not fair in its terms or fairly entered into; (h) the contract contravenes the public policy of this State as expressed by the Constitution, and is void within the meaning of § 7147 of Crawford & Moses’ Digest.

It follows from the views expressed that the judgment of the trial court is correct, and it is therefore affirmed.


author: Smith, J.

text:
    Swindle v. Rogers.
    4-3208
    Opinion delivered January 8, 1934.

      J. C. Brookfield, for appellant.

      Walter Killough, for Arkansas Power & Light Company, appellee.
   Smith, J.

Appellant says, in her statement of the case, that: “This is primarily an action to recover for damages for personal injuries to a minor, caused by his coming in contact with a live wire” owned and operated by the defendant, Arkansas Power & Light Company. The complaint alleges that the plaintiff: is the mother, guardian and next friend of John Henry Donnahoe, her minor child. That she was divorced from her husband, the father of the infant, under a decree of the Crittenden Chancery Court rendered at the January, 1919, term thereof, and that, by the terms of this decree, she was awarded the custody of the child.

She further alleged that the minor was injured by the negligence of the defendant power and light company. Her son and another boy of about the same age were climbing up a tree to get a bird’s nest, and there came in contact with a live wire, from which contact her son sustained serious injuries; that her divorced husband took out letters of guardianship in Cross County, where he resided, without notice to her or to the infant. The defendant, Union Indemnity Company, became surety upon the guardian’s bond, and was sued in that capacity.

Thereafter, her husband filed suit in the White Circuit Court, the Cross Circuit Court not then being in session, to recover damages for injuries to the boy. An answer was filed, and the cause was heard on the day the complaint was filed.

A judgment was rendered, which recites the appearance of the parties by their respective attorneys, and that “a jury is waived herein, and this cause is submitted to the court sitting as a jury for its consideration and judgment. And the court, having heard the complaint and the answer of the defendant thereto, and the testimony of witnesses introduced in open court, and, being well and sufficiently advised as to all matters of fact and law arising herein, doth find that Jim Donnahoe has been duly appointed, and is, the acting guardian of the said John Donnahoe; that he was duly appointed by the probate court of Cross County, and has given bond as required by law, which has been duly approved. The court further finds for the plaintiff, Jim Donnahoe, in the sum of $1,i800 in his own right, and the plaintiff, Jim Donna-hoe, as guardian of John Donnahoe, a minor, in the sum of $1,700.

“It is therefore by the court considered, ordered and adjudged that the plaintiff, Jim Donnahoe, in his own right, do have and recover of and from the Arkansas Power & Light Company the sum of $1,800, together with his costs herein; and it is further ordered and adjudged that the said Jim Donnahoe,' as guardian of John Donnahoe, a minor, do have and recover for said minor the sum of $1,700 of and from the Arkansas Power & Light Company, together with all costs of suit.”

The complaint in the instant case further alleged that the plaintiff in the suit brought in the White Circuit Court had appropriated to his own use the eighteen hundred dollars recovered for his own benefit, and that he had loaned, upon inadequate security, the seventeen hundred dollars recovered for the benefit of the minor to one W. R. Rogers, who was also made a party defendant to the instant suit.

It was alleged that the judgment of the White Circuit Court was collusive and fraudulent, and judgment was prayed against all parties, including the surety on the guardian’s bond, for $3,500. It was prayed also that the deed of trust securing the loan which the guardian had made to the defendant Rogers be foreclosed, the debt having matured and being unpaid.

The testimony taken at the trial from which this appeal comes shows that, after being divorced, Mr. Donnahoe married again, as did Mrs. Donnahoe, and no further order of court was made concerning the custody of their child. She regarded herself as the legal custodian of the child under the terms of the divorce decree, although she did not take out letters of guardianship until after the judgment of the White Circuit Court had been rendered.

The testimony was to the further effect that the child was living with his father in Parkin, Arkansas, where he had removed, and had been attending school there from December, 1927, until June 11, 1928, the date of the injury. Mr. Donnahoe paid out of the money which he recovered under the judgment of the White Circuit Court the expenses incident to his child’s treatment in the hospital, and the fee also of the attorney who brought the suit for him. Mr. Donnahoe had removed to Arizona on account of the ill health of his present wife, and was made party to this proceeding by the publication of a warning order.

The attorney who brought the suit for the plaintiff in the White Circuit Court testified that he had no knowledge that the wife with whom Mr. Donnahoe was living when the original suit was brought was not the mother of the child, and that he had no intimation that there was any question about Mr. Donnahoe’s right to maintain the suit.

Testimony was also offered as to the adequacy of the security which Mr. Donnahoe had taken for the loan of the seventeen hundred dollars, which we do not set out, as we regard this as immaterial in the present litigation.

The plaintiff i'n the instant ease prayed judgment upon the original cause of action against the defendant power and light company, and apparently asks that she he given the proceeds of the former judgment against that defendant.

The hoy was thirteen at the time his father was appointed as his guardian, and was eighteen at the time of the trial from which this appeal comes. He testified that he had no notice of the suit brought in the White County Circuit Court, or of his father’s application for letters of guardianship. He does not now live with either his father or his mother, but is making his own living. The boy’s mother, the plaintiff in the instant case, made application for letters of guardianship in succession in the Cross County Probate Court, and, when that application was refused, she applied for and obtained letters of guardianship in the Crittenden County Probate Court.

After hearing the testimony set out above, together with other testimony, which is not regarded as important in this litigation, the court rendered judgment for all the defendants, upon the theory that the judgment of the White County Circuit Court was conclusive of the rights of the parties, and that the plaintiff’s case was without equity, and this appeal is from that decree. The power and light company is the only defendant which has filed a brief upon this appeal.

It is true the judgment of the Crittenden Chancery Court awarding the plaintiff the custody of the child has not been modified, and the mother therefore continues to have that right under that decree. But this decree did not purport to give, and did not give, her control of her son’s estate.

Act 257 of the Acts of 1921, page 317, is entitled, ‘ ‘ An act to provide for the joint guardianship of minor children by husband and wife,” but provides that “nothing herein contained shall be construed to authorize either the father or mother to have the management of the property of any minor not derived from such parent, until appointed by proper probate court and duly qualified as now required by law.” Sparkman v. Roberts, 61 Ark. 26, 31 S. W. 742; Rhea v. Bagley, 63 Ark. 374, 38 S. W. 1039.

The decree for divorce awarded, the custody of the child to its mother; but this did not absolve the father from his paternal obligation to support it, nor did it render him ineligible to be appointed guardian of his estate, if that action was deemed to be for the child’s best interest. Shue v. Shue, 162 Ark. 216, 258 S. W. 128; McWilliams v. Kinney, 180 Ark. 836, 22 S. W. (2d) 1003.

The father appears to have recognized this obligation and to have discharged it by paying the expenses of the child’s treatment; indeed, the testimony on this issue is to the effect that this expense and the fee of the attorney, all of which were paid by the father out of the sum recovered for his benefit, exceeded the amount of the recovery on his behalf.

The child not being fourteen years old when the father was appointed guardian, no notice to the child of that application was essential to the validity of the appointment. Section 5010, Crawford & Moses’ Digest. However, the validity of the appointment of the guardian may not be collaterally attacked. Shumard v. Phillips, 53 Ark. 37, 13 S. W. 510; Hare v. Shaw, 84 Ark. 32, 104 S. W. 931 ; Day v. Johnston, 158 Ark. 478, 250 S. W. 532.

Appellant insists that the judgment of the White Circuit Court was collusive, and is void for that reason, and cites as her authority for that contention the cases of Rankin v. Schofield, 70 Ark. 83, 66 S. W. 197, and Frasier v. Frasier, 137 Ark. 63, 207 S. W. 215. Such, however, is not the effect of those cases as applied to the facts of this case.

The Frazier case, supra, was reviewed in the case of Kuykendall v. Zachary, 179 Ark. 478, 16 S. W. (2d) 575. It was there held that, where, in a suit on behalf of a minor, it affirmatively appears, from the judgment or decree, that no investigation and determination was made by the court as to whether the minor’s interest had been sacrificed by a compromise and settlement of the minor’s cause of action, but the court’s only action was to embody the settlement in the judgment or decree, such judgment or decree was void on its face. Bnt the judgment of the White Circuit Court is not open to that objection. On the contrary, it appears from the face of the judgment that the court, before rendering judgment, heard testimony, upon which testimony the judgment was rendered, thus implying that the minor’s rights had been protected.

It has never been held that the legal representative of a minor may not effect a binding compromise and settlement of a cause of action accruing to the minor; indeed, the contrary was held in the Kuykendall case, supra, where it was said: “This opinion is not to be interpreted as denying the right of the representatives of a minor litigant to effect a compromise of his litigation, for a compromise might in many cases be entirely proper and highly advantageous to the minor; but it does.mean that a compromise cannot be effective unless it is first approved by the court as being fair to the minor, and the approval would, of course, imply such investigation on the part of the court as made the fact appear that the minor’s interest had not been sacrificed. But in a case, ag in the Rankin case and in this, where it affirmatively appears that no investigation and determination were made, and the court’s only action was to embody the settlement in the decree, making the settlement the decree of the court, it is void. ’ ’

The judgment of the White Circuit Court is not void upon its face, and it may not therefore be collaterally attacked in the manner here attempted. If it be a fact that the judgment was fraudulent, the statute provides the remedy whereby it may be vacated, and that remedy must be pursued to obtain the relief. See subdivision 4 of § 6290, Crawford & Moses’ Digest. Whether appellant has made a case entitling her to relief under the statute cited is a question which we are not now called upon to decide, as no such proceeding is here involved, this appeal being from the decree of the chancery court of Cross County.

Upon the case made, we think the chancellor was correct in dismissing it as being without equity, and that decree is affirmed.


text:
    Barrett v. State.
    Crim. 3867.
    Opinion delivered January 8, 1934.

      M. F. Elms, for appellant.

      Hal L. Norwood, Attorney G-eneral, and Pat Mehaffy, Assistant, for appellee.
   Smith, J.

Appellant was tried under an indictment containing two counts, and was convicted upon each of them. The first charged him with the commission of the crime of burglary; the second with that of grand larceny. It is insisted that the testimony is insufficient to sustain either charge, and it is especially urged that the conviction for grand larceny must be reversed for the reason that the property obtained upon entering the house broken into did not exceed ten dollars in value.

The stolen property consisted principally of wearing apparel and a leather hand bag’, and the owner stated the aggregate value of all the stolen property was between thirty-five and forty dollars. He was asked the value of the hand bag, as well as that of other articles stolen, and stated that the bag cost $25, but he was not asked, and did not state, what its value was at the time it was stolen. He was asked about the shirts which had been stolen, and stated there were four of these, and that they were worth a dollar each. The owner stated that nine pairs of socks were stolen, worth fifty cents a pair. He also testified that some handkerchiefs and some underwear were taken, but did not state the quantity .or value of these articles. Appellant testified that he had one suit of the underwear, and, when asked its value, stated that it was worth “about a dollar or a dollar and a half.”

In the case of Cush v. State, 180 Ark. 451, 21 S. W. (2d) 616, the accused was charged with having stolen cotton worth from five to seven cents per pound, and it was there said that the jury was at. liberty to accept any figure between the minimum and maximum value of the property as shown by the testimony. And the jury was warranted here in finding that the value of the underwear was $1.50, it being unlikely that appellant would have overvalued it, in view of the importance of this testimony and its consequences to him. This makes a value of $10, and, if any value is given to the handkerchiefs and the hand bag, an aggregate value in excess of ten dollars was shown, and this is sufficient to sustain the charge of grand larceny. Section 2488, Crawford & Moses’ Digest; Jackson v. State, 73 Ark. 101, 83 S. W. 651.

What we have said about the. value of the property stolen is sufficient to dispose of the insistence that the testimony failed to show that a dwelling house was broken into and entered with the intention of committing a felony.

However, the crime of burglary might be complete even though the value of the stolen property did not exceed ten dollars; indeed, it might be complete when the intended felony was not committed at all, as, for instance, in the case of a burglar who, having broken and entered, fled upon having his presence discovered before he had consummated his intention. It is true, of course, that to constitute burglary a breaking and entering must have been done “with the intent to commit a felony.” Section 2432, Crawford & Moses ’ Digest. But it was not insisted at the trial from which this appeal comes that appellant broke into and entered the house with the intention of committing only the offense of petit larceny, which is not a felony.

In the case of Shaeffer v. State, 61 Ark. 241, 32 S. W. 679, it was held to be error to refuse an instruction upon the trial of an accused for burglary, that if “the defendant did in fact break and enter the house of B. C. Black, with intent to commit petit larceny only,” he was not guilty of burglary.

In the instant case, no snch instruction was asked, nor does there appear to have been any testimony upon whioh it could have been based, as appellant made no contention that he intended only to commit the crime of petit larceny. His contention is that he did not commit burglary because the value of the stolen property did not exceed ten dollars.

In the case of Harvick v. State, 49 Ark. 514, 6 S. W. 19, a burglary conviction was sustained although the property stolen was stated in the opinion to be of a value less than ten dollars. It was there said that: “It was not necessary, in order to complete the crime of burglary, that his anterior intent” (to steal) “should have been consummated.” In that case the burglar broke into a barber shop and carried off five or six dollars which he found in a small safe. It was insisted that this money, together with other articles stolen, did not exceed ten dollars in value, and that the crime of burglary had not been committed for that reason. In overruling this contention it was said: ‘ But if there had been no other property” (in the shop) “except that taken, the case would not be altered. The prisoner intended to take all the money there was in the safe. He testified to that fact upon the stand. He did not know that it contained less than ten dollars. His intent was to take more than that sum if he could find it, hence the intent to commit a felony.”

The clear implication of that opinion is that the burglar, who has broken and entered with the general intent to steal, may not escape the consequences of his act because of the fortuitous circumstance that his loot was not as valuable as he anticipated it would be. See Duren v. State, 156 Ark. 252, 245 S. W. 823, and cases there cited.

We conclude therefore that the testimony was sufficient to sustain the conviction upon each count, and the judgment must therefore be affirmed. It is so ordered.


author: Humphreys, J.

text:
    Arkansas Power & Light Company v. Crooks.
    4-3269
    Opinion delivered January 8, 1934.

      Rose, Hemingway, Cantrell & Loughborough and J. W. Barron, for appellant.

      Tom J. Terral, for appellee.
   Humphreys, J.

This suit was brought by appellee against appellant, in the circuit court of Calhoun County, to recover damages on account of personal injuries received by him in a collision between an automobile he was driving and one of appellant’s street cars on East 14th Street, in Little Bock, near the intersection of said street with Welch Street, through the alleged negligence of appellant’s motorman in running into the automobile he was operating.

Appellant filed an answer, denying any negligence on the part of its motorman in the -operation of the street car at the time of the collision, and alleging that the injuries received resulted from the contributory negligence of appellee.

The cause was submitted to the jury upon the pleadings, testimony and instructions of the court, resulting in a verdict and consequent judgment against appellant for $20,000, from which is this appeal.

The issues of negligence and contributory negligence were submitted to the jury on instructions requested by appellant, which were given by the court, and upon instructions requested by appellee and given by the court, over the objections and exceptions of appellant. We have carefully read the instructions assailed by appellant, and have concluded that the objections and exceptions thereto are not tenable. There are no material conflicts in the instructions given, and, when read as a whole, they present the law applicable to the divergent theories and facts in the case.

The refusal of the court to instruct a verdict for appellant presents the only real issue on this appeal, and that is whether, under the evidence, considered in its most favorable light to appellee, he was guilty of contributory negligence causing the injury.

A summary of the evidence, viewed in the most favorable light to appellee, reflects that he was traveling west on 14th Street in Little Rock in the nighttime, in a borrowed car, in company with his brother and a neighbor, when it became necessary for him to turn south onto the street car track to avoid striking cars which were parked on the north side of said street; that, while on the track, the automobile stalled, or stopped, on account of the engine or motor failing to work; that, while engaged in trying to start same, he saw a street car about a half block away, and beyond the intersection of a cross street, coming toward him at a rapid rate of speed; whereupon he signaled to the motorman by throwing out his arm, holloing and blowing his horn while continuing to start his engine, and, when thus engaged, the street car ran into his automobile and injured the occupants, including himself.

Appellant’s contention and argument is thát, when appellee discovered the street car approaching rapidly within the distance of one-half block, he should have, as a reasonable prudent man, abandoned the automobile and prevented the injury to his person. It cannot be said, as a matter of law, that this was his duty. It is true that he was in a perilous position, and one from which he might have extricated himself, had he known he could not start his engine and remove the automobile, and had he been able to anticipate that the motorman would ignore his signals and run through the cross street; but it cannot be said as a matter of law that he knew he could not start his engine, or could have anticipated that the motorman would not heed his signals and slow down or stop. It must not be forgotten that appellee owed a duty to his passengers to protect them by moving his automobile out of the danger zone if possible and prevent injury to the borrowed automobile, as well as a duty to appellant and its passengers to.prevent a collision and wreck. Under all the circumstances and facts surrounding the situation, the question of whether appellee acted as an ordinary prudent man would have done was a question for the jury, and not for the court. The following quotation from a Massachusetts court, in case styled Barnes v. Birkshire Street Ry. Co., reported in 281 Mass. 47, 183 N. E. 416, is applicable to the facts and circumstances in the case at bar:

“The plaintiff had a right to place some reliance upon the probability of care on the part of the operator of any street car that might come. When the plaintiff took his position in an attempt to move the automobile, its situation was fraught with possible peril to the automobile, to Eeynolds and to the motorman and passengers in any such street car. The man of ordinary prudence, by whose supposed conduct under similar circumstances the case of litigants is measured (LaBrecque v. Donham, 236 Mass. 10, 127 N. E. 537), is not devoid of human instincts and emotions numb to the promptings of friendship and humanity, and anxious only for the safety of his person at all costs. On the contrary, great risk taken to save persons in dire peril had been held consistent with good care (citing cases). Lesser risks may be justified by lesser occasions. There is no absolute safety in life, and the most ordinary acts involve possible danger, and one is not negligent unless he takes greater risks than a man of ordinary prudence would take in a like situation. Mere knowledge that some danger exists is not conclusive of the negligence of one who fails to avoid it. (Citing cases.) ”

The facts in the instant case bring it within the general rule announced in Berry on Automobiles, Sixth Edition, vol. 1, page 165, as follows:

‘ ‘ The driver of an automobile or other vehicle stopped for any temporary cause in front of a street ear cannot be held guilty of contributory negligence as a matter of law if he does not desert his vehicle, at least until it is reasonably certain that an impact is unavoidable. He has a right to assume that those in charge of the operation of the approaching street car, seeing his predicament, will not recklessly run him down. He has a right to make a reasonable effort to start his vehicle, if it is susceptible of being started, and so save it and its occupants from injury. Whether his acts in so doing or attempting to do were unreasonable and negligent would be a question of fact, which it would be the province of the jury to determine, in view of all of the circumstances of the particular ease. ’ ’

The only question remaining is whether the verdict is excessive. Before the injury, appellee had an earning capacity of from $200 to $300 a month, with an expectancy of 33.2 years. His earning capacity was totally destroyed on account of his injury. His collar bone and three ribs were fractured, resulting in traumatic pleurisy. He suffered the loss of an arm. He suffered great pain as a result of the injury, and was compelled to expend large sums for hospital and doctor’s bills.

The sum awarded him was not excessive, but, on the contrary, was a very reasonable amount in view of the actual injuries, and the great pain and suffering endured incident thereto.

No error appearing, the judgment is affirmed.


text:
    Metropolitan Life Insurance Company v. Gregory.
    4-3255
    Opinion delivered January 8, 1934.

      Leroy A. Lincoln and Streett & Streett, for appellant.

      J. F. Quillin and T. B. Vance, for appellee.
   Mehaffy, J.

On September 4, 1926, tbe appellant issued its group policy No. 3112-G, insuring the lives of .certain employees of the Ft. Worth Stockyards Company of Ft. Worth, Texas, upon certain terms, limitations and conditions therein provided. On the same date it caused to be issued certificate No. 66, which certified that appellee, W. L. Gregory, was insured under the group policy.

This suit was begun in the Miller Circuit Court for $1,050, the appellee alleging that the certificate contained the following:.

“This is to certify that, .under and subject to the terms and conditions of group policy No. 3112-G, W. L. Gregory, an employee of Fort Worth Stock Yards Company (herein called the employer), is insured for one thousand dollars. ’ ’

The complaint also alleged that the certificate contained the following:

“The group policy provides total and permanent disability benefits as provided on the last page hereof.
“Total and Permanent Disability Benefits.
“Under the terms of the group policy mentioned on page one of this certificate, any employee shall be considered totally and permanently disabled who furnished due proof to the company that, while insured thereunder, and prior to his 60th birthday, he has become so disabled, as a result of bodily injury or disease as to be prevented permanently from engaging in any occupation and performing any work for compensation or profit.
“Three months after receipt of such proof, the Metropolitan Life Insurance Company will commence to pay to such employee, in lieu of the payment of the insurance under said policy at his death, equal monthly installments, the number and amount of such installments to depend upon the amount of insurance in force on the life of such employee at such date, as shown in the following table:
“Amt. of Ins. Number of Installments Amt. of Each Installment
“$1,000.00 40 $26.25
“Such installment payments shall be made only during the continuance of such disability. ’ ’

It was further alleged that appellee attained the age of 60 years on August 28, 1931; that from September 4; 1926, to January 25, 1931 he was in the employ of the Ft. Worth Stock Yards Company, and that the certificate was in full force and effect during that time; that, prior to January 25, 1931, his colon became infected; that he was suffering from colitis on January 25, 1931; has continued to suffer from said disease, and will continue to suffer for the balance of his life; that on January 25, 1931, he sustained a rupture in his right side, and that he was totally and permanently disabled within the meaning of the certificate from and after January 25, 1931; and that he was entitled to recover $1,050. He further alleged that he notified appellant of said disability, and made proof thereof during November, 1932, and demanded payment, which was refused. The certificate was attached to, and made part of his complaint.

Appellant filed a motion to make complaint more definite and certain by stating the date that he furnished proof, and by requiring him to attach a copy of said notice or proof, and the appellee thereupon amended his complaint by interlienation, giving the date of the proof.

The appellant then filed answer, in which it denied all the allegations of the complaint, and alleged in its answer that it issued the group policy and certificate, and that appellee was insured under the group policy. It also alleged that the group policy provided that installments were payable only from three months after the receipt of proof of total and permanent disability, and that appellee was seeking to recover from the date of the injury rather than for the benefits which had accrued from three months after the date of proof. The group policy was introduced in evidence by agreement.

The appellee, W. L. Gregory, testified that he became totally and permanently disabled prior to his 60th birthday. Appellee’s application and other written instrur ments were introduced, which showed that he was a year older than he claimed. The application card showed that he was born August 28,1870, instead of 1,871, but his age was written in the application as 55. Lines were drawn through the 55, and 56 was inserted. Appellee testified that this was done after he signed the application, and without his knowledge or consent; that he knew nothing about it.

Appellant suggests numerous errors, but the principal ground urged for a reversal is the insufficiency of the evidence. It first contends that the evidence is not sufficient to support the verdict of the jury, and that the verdict is contrary to law and evidence. The evidence is ample to show that appellee’s disability began on January 25, 1931, and, if appellee was 55 when the policy was issued, this disability, if it began on January 25, 1931, would be before he reached the age of 60 years. It is, however, earnestly insisted that, because the written application showed that appellee’s birth was August 28, 1870, and because the report of the physician and letter written by appellee’s attorney show that he was more than 60 years of age at the time of the injury, the evidence is insufficient to support the verdict. In other words, it is contended that the written statements made by appellee, and others representing- him show that he was more than 60 years of .ago at the time he claims to have been injured.

The appellant concedes that the jury is the sole judge of the credibility of the witnesses and the weight to be given to their testimony, but it is contended that in this case the court should consider the testimony and weight in the light of reason, common sense and justice.

The rule is well established that it is the province of the jury, and not the court, to pass upon the credibility of witnesses and the weight to be given to their testimony. A verdict of a jury, based on substantial evidence, must be upheld by this court, although we might think it -was contrary to the preponderance of the evidence.

Appellant, however, says that, while it recognizes the rule and the precedents, it is still of opinion that this court has not adopted the scintilla of evidence rule. This court has not adopted the scintilla of evidence rule, but it has adopted the rule that, if there is any substantial evidence to support the verdict, it will be permitted to stand, although it might appear to us to be against the preponderance of the evidence.

The appellee testified positively as to his age, and testified that the figures 55, showing his age, were in the application when he signed it, and that lines had been drawn through the figures 55, and 56 had been inserted. The application itself shows that this had been done, and appellee testifies that it was done after he signed, the application.

It is true that in the application the date of his birth was given as 1870. He testifies that this was a mistake, and that it should have been 1871. Nobody disputes this, and the only contradiction of this evidence is other written statements signed by appellee. He could have been mistaken if he gave the date of his birth as 1870. At any rate, this was a question of fact for the jury to determine. It cannot be said that the positive- testimony of the appellee and the explanations given by him are not substantial evidence.

The following are some of the cases supporting the rule as to conclusiveness of the verdict of juries: B. & O. Rd. Co. v. McGill Bros. Rice Mill Company, 185 Ark. 108, 46 S. W. (2d) 651; White Co. v. J. E. Thompson Motor Express Co., 182 Ark. 71, 29 S. W. (2d) 674; K. C. S. Ry. Co. v. Sanford, 182 Ark. 484, 31 S. W. (2d) 963; S. L.-S. F. Ry. Co. v. Bishop, 182 Ark. 763, 33 S. W. (2d) 383; St. L. S. W. Ry. Co. v. Burford, 180 Ark. 562, 22 S. W. (2d) 378; Consolidated School Dist. No. 1 v. Fitzgerald, 180 Ark. 840, 23 S. W. (2d) 263; Walloch v. Heiden, 180 Ark. 844, 22 S. W. (2d) 1020; Boddy v. Thompson, 179 Ark. 71, 14 S. W. (2d) 240; Gurdin v. Fisher, 179 Ark. 722, 18 S. W. (2d) 362.

The Supreme Court of Utah announced the rule as follows: “Under our system of jurisprudence it is the province of the jury to pass upon the facts. It is not only their privilege, but their right, to judge of the sufficiency of the evidence introduced, to establish any one or more facts in the case on trial. The credibility of the witnesses, the strength of their testimony, its tendency, and the proper weight to be given it, are matters peculiarly within their province. The law has constituted them the proper tribunal for the determination of such questions. To take from them this right is but usurping a power not given. * * When there is a total defect of evidence as to any essential fact, or a spark, a ‘scintilla,’ as it is termed, the case should be withdrawn from the consideration of the jury.” Cunningham v. Union Pac. Ry Co., 4 Utah 206, 7 Pac. 795. It will be observed that the court calls the “scintilla” of evidence a spark.

The Illinois court said: “ ‘A mere scintilla of evidence,’ if it means anything, means the least particle of evidence, evidence which, without further evidence, is a mere trifle; and, as the law does not regard trifles, we see no reason why, on such a motion, the court may not adjudge such evidence insufficient in law, and direct a verdict as in cases where there is no evidence.” Offutt v. World’s Columbian Exposition Co., 175 Ill. 472, 51 N. E. 651.

Webster’s dictionary defines scintilla, “a spark; glimmer; gleam.” It will bardly be contended that the evidence of appellee is a mere scintilla.

The appellant contends that the court should have directed a verdict for it because the cause of action had not accrued. We do not agree with appellant in this contention. The appellant repudiated the contract and denied all liability, and in its answer denied that appellee was employed by the Ft. Worth Stock Yards Company; denied all the allegations about disability; denied that it ever received proof of disability; and, if the action was prematurely brought, as contended by appellant, this fact appeared from the face of the complaint. In appellee’s complaint, he alleged the date of his birth, the time that he worked for the Ft. Worth Stock Yards Company, and the date of his disability.

It is true that in the answer appellant admits that it issued the group policy and certificate, but it denies that it was ever in effect, because it says that he was not employed by the Ft. Worth Stock Yards Company.

It is next contended that the court erred in giving and refusing to give certain instructions. We deem it unnecessary to set out the instructions, but, after a careful examination and consideration of the instructions requested and those given and refused, we have reached the conclusion that there was no error either in giving or refusing to give instructions.

The chief objection to the instructions is that the court should have told the jury that he could only recover the amount of installments beginning three months after proof of disability. The suit was for the full amount of the assessments, and we think it was a suit for damages for breach of the contract.

The appellant also contends that the verdict is excessive, but the group policy was introduced in evidence by agreement, and it shows that the number of installments to be paid is 40, and the amount of the installments is $26.25, which aggregates $1,050.

We deem it unnecessary to review the authorities as to what constitutes total and permanent disability. This court had decided these questions many times, and there is no controversy about what constitutes total and permanent disability.

The measure of damages in cases of this kind would ordinarily be the present worth of the installments. However, in this case, the disability began in January, 1931, and suit was not filed until March, 1933, so that there were already installments from January, 1931 to March, 1933, before suit was filed.

It therefore appears that the judgment as rendered was at least approximately correct; that the difference between the amount of the installments that were not due at the time of the judgment and the present worth of such installments would be less than the interest on the past-due installments.

We therefore think the direction of the court to return a verdict for the $1,050 was not reversible error.

We find no error, and the judgment is affirmed.