text:
    Rutherford v. Kahler.
    Opinion delivered September 26, 1927.
    Contracts — waiver of written notice. — A- provision of a building contract for a written notice of delays caused by the architect, held waived by acceptance of-oral notices, so that the contractor was not chargeable with. liquidated damages.
    Appeal from Pulaski Chancery Court;.TP. P. Beard, Special Chancellor;
    affirmed.

      Reinberger & Reinberger, for appellant.

      Mhlcolm W. Gawmway and A. Carlyle Gamiaway, for appellee. :
   Smith, J.

Appellee, who is a building contractor, entered into a written contract on May 15, .1925, with appellant, whereby he agreed to erect for her a two-story brick building for the sum of $12,671. The contract contained the usual provisions found in the ordinary building contract, and required the contractor to complete the building in' a hundred and twenty days. The building was finally completed and accepted on December 12,1925, and appellee brought this suit to recover the balance which he alleged was due him.

The contract named a supervising architect, and gave him authority, as agent for the owner, to make changes and additions in the plans, upon notice in writing to the contractor, and during the progress of the work certain changes were made'upon the order of the architect, but the directions under which this was done were orally givén.

Article 7 of the contract provided that, should the contractor be delayed in the prosecution or completion of the work by the act, neglect or default of the owner or architect, the' time fixed for the., completion of the work should be extended for a period equivalent to the time lost on that account, the extended period to be determined by the architect, “but such allowance shall not be made unless the claim therefor is presented in writing to the architect within forty-eight hours. of the occurrence of the delay.”

It is. not denied that the building was completed in accordance with the plans and specifications therefor, nor is it denied that the contractor is entitled to charge for certain extras ordered by the architect and certain freight paid by the contractor which the owner should have paid. It is insisted, however, that the'building was not completed within the time limited, and the owner •claims, on that account, the right to take credit for the liquidated damages which the contract provided for in case of delay. This provision was that liquidated damages in the sum of seven dollars per day should be paid for every day after one hundred and twenty days .from the. date of the contract until the building should be completed, and the contractor concedes the validity of this provision as one for liquidated damages and not a penalty. The contractor contends, however, that the delay was occasioned by the default of the architect, and the court expressly found the fact to be that such was the case, and that finding does not appear to be against the preponderance of the evidence.

It is the insistence of the owner that written notice of this default was not given as required by article 7 of the contract, nor was that agreement waived by her, and that therefore the contractor is liable for the liquidated damages provided for in the contract. The court below found that the requirements for the written notice had been waived by the conduct of the parties, and refused to allow any sum as liquidated damages, and the correctness of this finding appears to be the only question presented for our decision. •

In the chapter on “Building and Construction Contracts,” 9 C. J. 782, it is said that: “When the contract so provides, the builder must give notice to the owner or the architect of delays arising from stipulated causes, or of his claim for additional time by reason of such delays, or he will not be excused or entitled to additional time, unless such formality is waived.”

Among the cases cited in the note to the text quoted is-our. case of Wait v. Stanton, 104 Ark. 9, 44 S. W. 446, and that case sustains the text quoted. Article 7 of the contract there construed appears to he identical with article 7 of the contract under consideration here, and it was there said:

“Article 7 provides that, if the contractors be delayed in the prosecution or completion of the work by the • act, neglect or default of the owner' or architect, the time herein fixed for the completion of the work shall be extended for a period equal to the time lost by reason of any such cause. But it also provides that no such allowance shall be made unless a claim therefor is presented in writing to the architect within forty-eight hours after the occurrence of such delay. Thus it will be seen that the contract expressly provides for a notice in writing, and the owner cannot he deprived of the benefit of that stipulation in his agreement. The obligation of the contractor to make claim for an extension of time in the manner prescribed by' the contract was a condition precedent to his right thereto” (Cases cited).

It appears that, while this stipulation is universally upheld, the courts also hold that the provision for a written notice may be waived, and that a waiver will be implied where, from the conduct of the owner of architect, the contractor is led to believe that the -requirement of written notice will not he insisted upon.

As we have said, the court specifically found the fact to be that the requirement for written notice under article 7 was waived, and we do not think this finding is clearly against the preponderance of the evidence. The court found that, at the direction of the architect, the contractor had performed certain extra work and labor and had made certain changes. The right thus to direct the contractor was given the architect, hut the contract provided that it should he done upon written directions, yet the panties treated oral directions as sufficient.

The court made the following finding:

“The court further finds that said Mitchell Sellig-man, defendant’s architect, mentioned in said contract, received and accepted verbal notice of all delays caused by him or said defendant, and that the conduct of said Selligman constitutes a waiver of the defendant’s right to demand later written notice of said delays, and that, by the conduct of said defendant, she is now estopped to set up her demand for written notice or claim for extension of time on account of the delays caused by the said defendant and her said architect.”

We think the testimony sustains this finding. The contractor from time to time reported to the architect the delay which was being occasioned by the architect. These notices were usually given personally or in conversation over the telephone, and there was no intimation that they would not be received as notice because they were not in writing.

In the case of Schmulbach v. Caldwell, 196 Fed 16, (C. C. A.), a contract very similar to the one here involved was under consideration, and the court, in holding that the provision for written notice might be waived by the apparent acceptance of an oral notice, said:

“It is evident that neither of the parties were adhering strictly to all of the terms of the contract in respect to these items of extra work. There is ample ground upon which to base the conclusion that, in regard to them, there was, by course of conduct, a waiver of the terms of the contract. They enter into the building, enhance its value, and defendant is in the enjoyment of them. As said by Mr. Justice Holmes, in Bartlett v. Stanchfield, 148 Mass. 394, 19 N. E. 549, 2 L. R. A. 625, cited in the opinion of Judge Dayton, dealing with á charge for extras in a suit upon a building contract very similar to this: ‘Attempts of parties to tie up by contract their freedom of dealing with each other are futile. The contract is a fact to be taken into account in interpreting the subsequent conduct of plaintiff and defendant, no doubt.’ While courts will enforce contracts as made by parties, they will require that both parties shall ‘live up’ to them. One may not by a course of conduct induce another to act upon the understanding that there is a waiver of strict performance, thereby obtain an advantage or benefit, and repudiate liability for fair compensation by invoking the terms of the contract. To do so is inequitable. Whatever difficulties a court of law may find in dealing in such cases, by reason of technical rules of pleading, disappear in a court of equity, where it is apparent that one party has acquired a benefit from the work done and material furnished by the other, under such circumstances as to make it inequitable to withhold compensation. It is manifest that the extras for which no written order was given come within this' principle. The master has properly held the plaintiffs to strict proof in respect both.to the necessity for the work and its value. He has rejected every doubtful claim. These findings have been approved by a learned and careful judge. The course pursued in the construction of the building in this respect is much like, and we think comes clearly within, the well-reasoned and sustained opinion of this court in Jefferson Hotel Co. v. Brumbaugh, supra.” See also Huber v. St. Joseph’s Hospital, 11 Idaho 631, 83 Pac. 768; Vanderhoof v. Shell, 72 Pac. 126, 42 Ore. 578; Carter v. Root, 121 N. W. 952, 84 Neb. 723.

Upon a consideration of the whole case we are of the opinion that the court below properly held that the provision for written notice of delays occasioned by the owner’s agent, the architect, was waived, and that the oral notice given sufficed, and fully warranted the court below in refusing to charge the contractor with the delay in construction which the owner’s agent occasioned, and the decree of the court below will therefore be affirmed, and it is so ordered.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Robison v. State.
    Opinion delivered September 26, 1927.
    1. Criminal law — admissibility of evidence. — An affidavit and search warrant, whether sufficient or not, held admissible in a murder trial, to explain presence of deceased officer at the place of, and certain circumstances leading to, the killing.
    2. Criminal law — admissibility of evidence. — In a trial for murder growing out of the search of defendant’s premises for whiskey, packages of whiskey seized were admissible as tending to show the motive and the probable aggressor.
    3. Criminal law — invited error. — In the trial of a filling station owner, who was appointed deputy sheriff to assist in running down automobile thieves, for murdering an officer searching his station for whiskey, cross-examination of defendant as to whether a man who stole cars was his lessee in charge of the station and one who got certain cars, held invited error, if any, being based on the direct examination.
    4. Homicide — admissibility of evidence. — In a trial for murdering an officer searching defendant’s premises for whiskey, testimony that defendant, on being told that deceased furnished information leading to a .former raid, by other officers, said it was none "of deceased’s business what he did out there, held admissible as tending to show defendant’s feeling toward deceased and a motive for killing.
    5. Homicide — instruction as to self-defense. — Evidence in a prosecution for murder held to warrant an instruction that defendant could not rely upon self-defense, no matter how imminent his peril, after he armed himself with deadly weapons and assaulted deceased with intent to kill him or voluntarily entered into difficulty with such intent, and did not abandon the difficulty before firing the shot.
    6. Criminal law — repetition of instructions. — It was not error to refuse instructions fully covered by those given.
    Appeal from Hempstead Circuit Court; J. H. McCol-lum, Judge;
    affirmed.

      L. F. Monroe and Dexter Bush, for appellant.

      II. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Humphreys, J.

Appellant was indicted for the crime of murder in the first degree for killing Will Goff, and, upon a trial of the charge, was convicted of manslaughter and adjudged to serve a term of five years in the State Penitentiary as a punishment therefor, from which judgment an appeal has been duly prosecuted to this court.

The assignments of error consist in the admission of certain testimony, the giving of instruction number 3 9 by the court, and the refusal to give instruction number 16 requested by appellant.

• The evidence introduced by the State showed that, on November 5, 19'26, three officers, Gene Booker, Clarence Baker and Will Goff, left Hope about dusk in a car to search the “Smiling Service Station” for whiskey. The station was owned by appellant, and was situated about one mile from Hope, on the Bankhead .Highway. Booker had filed an affidavit before W. G. Bright, a justice of the peace, 'that he suspected intoxicating liquor was concealed in appellant’s house or premises, and a warrant directed the officers to search appellant’s house. The justice of the peace had failed to sign the warrant. The officers stopped before reaching appellant’s premises, consisting of a filling station, several tourist houses, and a main residence, a part of which was used for a store. They concealed themselves in the woods near the station, and observed a Ford touring car drive up to the side of appellant’s place and stop, and appellant go out from his filling station to the car, and, after a few minutes, two men in the car get out and unload some sacks, which they took to the back yard, where there were two woodpiles. They saw them put one sack on one woodpile, one on the top of the other one, and one between the two. They also saw them go into the filling station and, after a short time, come out and stop in front, and, after meeting appellant, go back to the car. They then saw a Ford roadster come up and appellant get something out of the sacks and take to the ear. They then saw a Ford coupe drive up and appellant again get something out of the sacks and take it to the car. The officers then approached the premises, Baker entering the back yard and Goff and Booker entering the station from the front. Appellant was informed by Goff and Booker that they were there to search his premises, and produced the warrant. Appellant objected to the search, because it did not purport to charge those to whom it was directed to search for whiskey which might he concealed there for purposes of sale or for any unlawful purposes, and because the warrant was not signed. Appellant then went into the room right north of him, and came out and put his hand in 'his hip pocket and then pulled his hand out just as he came out of the door from behind the counter. The two officers, in company with appellant, went into the back yard, where they met Baker, and searched the premises, and found seventy-two eight-ounce bottles of whiskey in sacks at the wood piles. After they carried the whiskey to the car and were ready to go, Goff suggested to appellant that they go to the garage and make a search. Goff went to the garage with appellant, but found nothing. As they were returning, appellant a few steps in front, Goff told him to wait a minute until he searched him, whereupon appellant jumped and wheeled and threw his hand to his hip pocket, and told Goff that he should not search him. Goff then pulled his gun and cocked it, and had his left arm extended toward appellant, who was backing away from him. Appellant pulled his hand out of his hip pocket, and as it came out it flashed right in Goff’s face, and, as Goff started to fall, the gun in his hand went off and fired toward the ground. As Goff fell, appellant fired again. Baker then pulled his gun and began shooting. Goff made no motion to shoot appellant, and never had his gam up from his hip pocket to a shooting position. Goff’s pistol was fired only the one time. A fusillade followed between appellant and the other officers, resulting in the infliction of several wounds on appellant. Appellant was arrested in a short time after killing Goff, and incarcerated, where his wounds were later dressed. After being placed in jail, appellant said that if he had had a good gun he would have killed all of them.

Bobert Evans testified that, about a year before the killing, he raided appellant’s place of business, and that, after the raid, appellant asked him where he got the information which caused him to raid the place, and when he told him that he acquired it from Will Goff, appellant said, “Well, I will just tell you, it is none of Will Goff’s damn business what I do out there.” The packages of whiskey which were found and seized were exhibited to the jury.

Appellant testified, on direct examination, that he had been appointed deputy sheriff for the purpose of protecting his own property and to assist officers in running down car thieves. Several cars had been stolen, and one of them had been left near appellant’s place of business, before he received Ms commission as deputy sheriff. A part of the time and up until about three weeks before the killing’ appellant had rented Ms place of business to a man by the name of Bush, who had complete control of same during the rental period. The prosecuting attorney was permitted to ask appellant, on cross-examination, if the very man who stole the oars, and was then in the Federal pen in Louisiana, was not his lessee and in charge of his station there, and asked him if that was not the man that got the Buick cars belonging to Dave Finley, and a Chevrolet car.

Appellant first insists that the court committed reversible error in admitting the affidavit and search warrant in evidence, because they were defective. It is unnecessary to discuss the sufficiency of the affidavit and warrant; as bffih were admissible in evidence to explain the presence of the officers at the filling station and the circumstances leading up to the killing.

Appellant next insists that the court committed reversible error in permitting the packages of whiskey to be exhibited to the jury. The killing grew out of the search of appellant’s premises for whiskey, and the discovery and seizure were circumstances tending to show a motive for killing and who was probably the aggressor. Weldon v. State, 168 Ark. 534, 270 S. W. 968.

It is next insisted that the court erred in permitting the prosecuting' attorney to ask appellant, on cross-examination, if the very man who stole the ears and was then in the Federal pen in Louisiana was not his lessee and in charge of his station there, and in asking him if that was not the man that got the Buick cars belonging- to Dave Finley, and a Chevrolet car. The cross-question was based upon the direct examination, and so invited error, if error at all.

It is next insisted that the court committed reversible error in permitting- Robert Evans, a witness for the State, to testify that, about a year previous to the killing, he and other officers had made a raid upon appellant’s premises, and that, shortly after the raid, appellant came to him and asked him who furnished the information leading up to the raid, and that he told him Will Q-off had, whereupon he said that appellant told him that it was none of Will G-off’s damn business what he did out there. We think this testimony admissible as tending to show appellant’s feeling toward the deceased and the motive for the killing.

It is next insisted that the court committed reversible error in giving- instruction number 19, which is as follows:

“The law of self-defense does not imply the right of attack. If you believe from the evidence in this case that the defendant, Oscar Robison, while the deceased, Will Gf-off, together with other officers present, were engaged in searching his premises for whiskey under a search warrant, armed himself with a deadly weapon, and sought the deceased with the felonious intent to kill him, or sought or brought on, or voluntarily entered into, the difficulty with the deceased with the felonious intent to kill him, and did not abandon or attempt to abandon the difficulty before the mortal- shot was fired, then you are instructed that the defendant can not invoke the law of self-defense, no matter ,how imminent the peril in which he found himself.”

The main objection to the instruction is that the evidence failed to show that Robison armed himself for the purpose of bringing on a difficulty with the deceased,'or that Robison voluntarily> entered into the-difficulty for the purpose of killing him, or for any other 'purpose. In other words, appellant contends that the instruction is abstract. The evidence tended to show that, before going into the back yard with the two officers who served the search warrant, appellant entered a side room, and, as he was coming out, placed something in his hip pocket, from which he later drew a pistol and killed Goff. The testimony of the State’s witnesses also showed that appellant refused to be searched, and drew his pistol -and unnecessarily fired upon Goff. We think the evidence detailed in the opinion as coming from the State’s witnesses was sufficient to warrant the giving of instruction number 19.

It is appellant’s next and last contention that the court committed reversible error- in refusing to give instruction mjmber 16 requested by him, which is as follows:

“The jury is instructed that, in passing upon the question of whether the defendant, at the time of firing the shot that killed the deceased, acted in self-defense, as defined by other instructions given by the court, it is your duty to place yourselves as nearly as possible in the position of the defendant at the time of the shooting, taking- into consideration all the facts and circumstances that then and there surrounded the defendant, taking into consideration the excitement and confusion surrounding the situation, and the defendant should not be ■held to the same deliberate care in ascertaining the danger and the force necessary to repel it as would be used by a person in afterwards viewing the situation from a place of safety, uninfluenced by excitement or danger. ”

This instruction is fully covered by instructions numbers 6 and 11 requested by appellant. Those instructions are as follows:

“You are instructed that, to justify a killing in self-defense, it is not essential that the facts and circumstances should make it appear to the jury to have been necessary; it is sufficient if the defendant honestly believed, without fault or carelessness on his part, that the danger was so urgent and pressing that the killing was necessary, either to save his own life or to prevent great bodily injury to him.
“You are instructed that, when a man is threatened with loss of life or great bodily injury, he is compelled to act upon appearances, and to determine from the circumstances surrounding him at the time as to the course he shall pursue to protect himself. In such cases appar-. ent danger is as effectual for his justification as real danger is, and, when he is brought to trial for homicide, committed under such circumstances, the question for the jury is not ‘Was the danger real?’ or ‘Did the necessity for the killing in order to avert it.actually exist?’ but ‘Were the appearances such as to reasonably impress the defendant honestly with the belief, at the time, that the danger and necessity did exist? Did they so impress him, and did he act under their influence?’ The jury is to judge of the reasonableness and honesty of his conduct from all of the circumstances surrounding him at the time, from his standpoint, and not from theirs.”

No error appearing, the judgment is affirmed.


author: Mehaeey, J.

text:
    Texas Company v. Jones.
    Opinion delivered September 26, 1927.
    1. Master and servant' — sufficiency of evidence.- — In an action by an oil station employee against bis employer for an injury on the theory that he was struck by a loose bolt flying from machinery, evidence held insufficient to support a verdict for plaintiff.
    2. Negligence — sufficiency of evidence. — In an action for injury caused by defendant’s negligence, plaintiff must show by a preponderance of the evidence some act of negligence on the part of the defendant causing his injury; and if the evidence is such that the negligence of the defendant may have caused the injury, but also tends equally to show that the injury resulted from some cause other than the negligence of the defendant, this did not justify a verdict against the defendant.
    3. MASTER AND SERVANT — SUFFICIENCY OF EVIDENCE OF NEGLIGENCE. —In an employee’s action against his employer for negligent injury, plaintiff must present evidence of defendant’s negligence causing the injury, and the mere fact that the plaintiff was injured while working for the defendant in the exercise of due care himself is not sufficient.
    4. Appeal and error — sufficiency of evidence to support verdict. —Though a verdict supported by substantial evidence will not be disturbed on appeal, a verdict will not be permitted to stand when unsupported by substantial evidence.
    Appeal from Nevada Circuit Court; J. H. McCollum, Judge;
    reversed.

      Wm. M. Hall, G. R. Haynie and Powell, Smead & Knox, for appellant.

      Huey P. Long and William F. Denman, for appellee.
   Mehaeey, J.

The appellee, plaintiff below, brought suit in the Nevada Circuit Court against the appellant, defendant below. The plaintiff alleged that he was a •citizen and resident of Cass County, Texas, and that the Texas Company was a corporation duly organized and existing under the laws of the State of Arkansas, and authorized to do business in Arkansas. That about the 8th day of July, 1924, and for some time prior thereto, the plaintiff whs in the employ of the defendant company at or near Louann, in Ouachita County, Arkansas, engaged in assisting in the operation of a power pumping plant, and that, while so engaged, and while acting under the orders and directions of his foreman, and while in the exercise of due care for his own safety, he was seriously, painfully and permanently injured by, through and on account of the carelessness and negligence of the defendant, the Texas Company, its agents, servants and employees.

‘ ‘ That siaid injury occurred in this manner: that the plaintiff,, while in the exercise of due care for his own safety, acting under the orders and directions of his foreman and other superiors, was doing and performing the duties of his labor and work for which he was employed and to which he was assigned, and, in carrying ont instructions from his superiors while working in the machine house or pumping station attached to an oil well of the said defendant, as aforesaid, by reason of defendant’s negligence, carelessness and fault, a part of the appliances, machinery and apparatus struck petitioner, being a bolt or nut from the instrument known as and commonly called the ‘idler,’ or from the instrument called the ‘clutch,’ plaintiff being unable to be more definite, thereby immediately rendering petitioner unconscious for several days and thereafter disabling him from doing or performing any work or labor of any reasonable kind or character for the balance of his lifetime, and further physically and mentally deforming, deranging, impairing and paralyzing the petitioner through and in the manner as above set forth, and in the further particular manners to wit:

“Petitioner’s skull was fractured, and ¡a depression was also formed as a result thereof in the top of the skull, and, as a result of the same, the nervous system of petitioner’s body, his muscular power and mental capacities were so weakened and impaired, deranged, disorganized and thrown out of coordination that petitioner became, as a result thereof, is now, and will ever be, an invalid and cripple, unable to do or perform any tasks or physical labor, partially paralyzed, so much so that he cannot do the tasks necessary to enjoy any ordinary conveniences or pleasures of any kind or character, and, since the said accident, at this time and ever hereafter, has constantly and will hereafter suffer such severe pain as great as he can overcome and survive; all the same because of and on account of the carelessness and negligence of the defendant, the Texas Company, its agents, servants and employees, and arising out of and in the course of his employment with the said defendant. That the defendant, the Texas Company, its agents, servants and employees, were careless, negligent and at fault, first, in failing, refusing and neglecting to furnish to the plaintiff a reasonably safe place in which he was required to work; second, in failing, refusing1 and neglecting to keep its machinery and appliances in a reasonable safe condition ; third, in failing, refusing and neglecting to keep in proper repair the ‘idler’ aforesaid, in that the nut or bolt was allowed to become loosened, worn and defected, improperly fastened and secured, thereby allowing and permitting same to become loosened and to be released and thrown out of order away from the said ‘idler’, striking and-injuring the plaintiff as aforesaid; that the defendant, the Texas Company, its agents, servants and employees, knew, or, by the exercise of ordinary care could have known, of the unsafe and dangerous condition of said ‘idler,’ nut and bolt. That, prior to the injury herein complained of, this plaintiff was a stout, able-bodied man, about thirty-three years- of age, earning and capable of earning $150 per month, and bade fair, in the course of his work, to be rapidly promoted and to earn % wage of at least twice said amount, petitioner being, prior to his injury, an energetic and physically capable man; that now, as a result of the carelessness and negligence of the defendant, its agents, servants and employees, he is an invalid and cripple for life, as aforesaid, and has been greatly damaged in the sum of $60,000.”

The defendant answered, admitting that plaintiff was in the employ of defendant on the 8th day of July, 1924, and that he was injured on that day. It denied all the material allegations of the complaint, and alleged that the injury of the plaintiff was caused solely on account of his own negligence, and pleaded assumed risk.

The plaintiff, James R. Jones, testified that, on July 8, he was running the power station for the Texas Oil Company at Louann, Arkansas. Mr. Fussell was his foreman, and it was 'his duty to keep the machinery in repair. Fussell was gang-pusher for the Texas Oil Company; witness was making $142'or $142.50 a month; had been working for them about three months; had just gone on duty that morning about 12 o’clock, at which time he was to relieve the morning power man, who told witness he had been having trouble with tlie plant, particularly the idler; it was running- hot, and witness would have to watch it; witness had been watching it, oiling it every few minutes, trying to cool it off, because, when they would get hot, they would stick, or something would happen that would shut the station down; started around /to oil it; had hung up gas ticket or gas checker, had come in the main wall, had gone to hang up his ticket, and started around to oil it up; that is the last thing witness recollects; had started towards this belt idler; something popped, like a gunshot in witness’ ear; that was the only thing witness knew; witness was in the Warner Brown Hospital the next thing he remembers; does not know on what date he came to; was in the Warner Brown Hospital either 29 or 30 days; came to in the Warner Brown Hospital; was struck in the center of the head; showed up a three-quartered hole in witness’ head, about a half inch; it was in witness’ hat; corresponded with the place it made in witness’ head; can feel the hole; seems to be as big as witness’ thumb. Witness woke up in Warner Brown Hospital.

“Q. What size bolts were there in the idler? A. Well, they was something like an inch and a half long, I guess. Q. And about how big? A. Well, something-like my little finger, or hardly as large. Q. How big was the hole in your hat? A. Well, it was about half an inch, or something like that. It was just a three-cornered hole in there, and it was just like my hat was, that way. Q. Was there a hole in your hat? A. Yes sir. Q. Was the hole in the hat bigger, smaller, or of the same size as the idler? A. Well, it was the same size.”

There was no other mark on witness’ head, except the three-cornered hole mentioned; it was a panama hat, soft straw.

Witness is handed drawing. When he got hurt he had reached a point along to the right of the air compressor (this point is indicated on drawing by figure 1) (also marked S); the idler pulley is referred to as the idler; had gone from the locker to the right of the air compressor; heard something sounded like a gunshot; that was the last witness remembers; had started' towards the idler because it was running hot; was trying to cool it off with oil; the drawing handed witnes's shows the situation there.

"Witness had always been a pretty healthy, stout man before this accident; thinks he was thirty-three -when he had this accident; will soon be thirty-six. Witness’ weight is about fifteen or twenty pounds under what it was when the accident occurred. Has been able to do practically nothing since this injury; can’t earn a living for his family; can’t do any work; has not been able to work for anybody since he wias hurt; is tired and worn out; no use of himself; weak; head worries him practically all the time; suffers pain in his head and back practically all the time; has had no ease since injured; doesn’t feel natural; body is weak; has very little grip in his left hand; has some more in his right hand; feels paralyzed first on one side and then the other; more on left side at times; during these two years hasn’t rested well at all; has been unable to do 'any work; tried working on the farm; could do but very little; had some little kids that worked and had a fellow hired who worked for witness this year. Farm consisted of about 58 acres; had a hired hand; is not able to do farm work; is having it done by others. Worries witness to have to undergo an examination; can hardly stand it; weakens him so; underwent an examination in Prescott yesterday for defendant ’s doctors; put him in bed; had to have a physician; put him in bed about five-thirty or six o’clock; was unusually pained after examination; stuck needles in witness; seemed they wanted to take their fingers and find every soft spot on witness’ body; witness’ legs cause an impediment in his walk; walks that way all the time since he got up from his bed; did not have this impediment before he was injured. Before the injury could talk good and strong; when the doctors stuck pins in him, could feel it sometimes and sometimes he couldn’t. Is affected more on left side.

The bone was removed from witness’ skull by Dr. Horton; thirty-three years of age; was earning $142.50; has not been able to do a man’s work or even that of a ten-year-old hoy since injury. Did not know at the time that idler or appliances were dangerous. Before the injury was considered by everybody a good, able-bodied man; had worked regularly. Scar very near the center of witness’ head; suffered considerable pain over the examination the doctors made yesterday; reached Prescott Tuesday; came from El Dorado with Mr. Long in his car; came from Shreveport to El Dorádo; had been examined by doctors at the hospital in Prescott; does not know the name of the doctor who examined him; did not get sick over that examination; doctor didn’t try to insert his 'fingers in all of witness’ joints; doctor was selected by plaintiff and his attorneys; defendant’s doctors in their examination made -witness sick; injury occurred on the 8th of July, 1924; was working at that time for the Texas Company at Louann as a power-house man; no one else worked in the power house; was his duty to keep machinery oiled; his duty to keep the floor clean; not necessarily his duty to watch the condition of the machinery; naturally one would see after it if he knew it was out of fix; had started to oil the idler when he was hurt; had worked in the power house a month or six weeks before he was hurt; began working there when the power house was first installed; was a new one; just been running about a month or six weeks; had been working there all that time; was to some extent familiar with the different pieces of machinery in the building; the machinery was all new to plaintiff; knew where all of it was located; knew how it ran; knew where it all was and how it- operated; had worked in the oil field business for about eight or ten years before he was hurt; had never worked inji power house before; witness has not been able to go where he wanted to all the time since his injury; for the first eight or ten months' practically stayed at home all the time. Tried to get a settlement out of the Texas Company, but they wouldn’t settle; first filed suit in October, 1924.

“Q. I see. Now, you bad a trial on that case at Texarkana, didn’t you? A. Well, no, we didn’t exactly have a trial. Q. Well, what did you have? A. Well, I don’t hardly know what you might call it. Mr. Long’’s brother-in-law had died — .”

Had just been at work on the day that he was injured a few minutes — ten or fifteen minutes; had talked to the gas checker and had signed his gas report; had just went on; does not recollect having swept the floor; had probably dusted a little bit right around the back door; does not think he had picked up the broom that day before the accident occurred; testified in the trial of the case about this same injury in the Federal court at Texarkana; might have testified he had swept the floor some and had left his broom standing on the side of the door to the right; that is where they kept the broom. The drawing (general exhibit 1) shows pretty well the location of the different instruments and things and machinery in the power house; there are windows all around; all doors were open at the time plaintiff was hurt; don’t suppose he did any sweeping when he came in that day; had just been there a few minutes; probably did sweep a little bit; belt comes over a good big wheel, which is much smaller than the power wheel; belt does not cross; there is a crank to tighten the belt; belt was fastened together with 14-inch belt clamp — 3xl4-inch. Probably the clamp wouldn’t be as wide as the belt. Sometimes the clamps are built shorter. "Witness was standing about ten or twelve feet from the idler at the time of the accident. Does not know whether the bolt came out of the butt of the idler. The air pressure tank was not shown on drawing.

Redirect examination. — The idler pulley must have gone around 250 or 300 revolutions a minute. Witness was coming over to oil up the idler and see about the oil circulating* in the oil cup; was hit in the front of the head; there were bolts in the idler. The belt was on the back side of the idler; left is exposed in the direction of where witness was standing. Tlie "bolt ran straight and then became twisted; when the belt got to the power wheel, it turned flat; power wheel was probably two feet off the floor; the center of the wheel was about eighteen inches or two feet from the floor; there are about eight or ten 'bolts in the belt, according to the width of the belt; a bolt goes through there probably every inch and a half; placed through the belt to hold the belt clamp together, and they frequently come out; idler turned around maybe 250 or 300 revolutions; traveled at a rapid rate of speed. Possibly 25 or 30 bolts in the idler, maybe more; there Avere no other bolts in any other appliances there that Avere shaped like the bolts in the idler.

Re-cross examination. — The bolts in the idler have a flat head, and it ran off to a sharp edge. They are square bolts. No other bolts in any other machinery .just like it of Avhich witness knows; not all the bolts have square heads and sharp points; some of them are round; there is other machinery with square-headed bolts; not sharp sides and points; square bolts would have sharp points, but not sharp sides and points; the bolt in the idler had a square, sharp head. It’s flat on top; kneAv the kind of bolts in the idler before he Avas hurt; does not know of his OAvn knoAvledge Avliat hit him.

Does not knoAv Avhere the hat is; has seen it since he Avas hurt; suav it at Louann, about thirty days after he AA'as hurt; it Avas at Avitness’ house; the hole in the hat Avas between a half and three quarters of an inch; it was a small place there; is testifying from his idea by looking at it; never measured the bolts; his testimony on the size of them is from looking at them; the place in the hat was a snagged place like Avhen one’s pants are snagged from barb-wire or something. Lived at Louann some time after the injury. Had the hat at his house; does not know Avhat became of it; it got out of the house and got away from there. The hole in the hat Avas a three-cornered hole, something like a half to three quarters of an inch; there was no other sharp-pointed bolt the size of this bolt in the idler. Tbe idler getting out of fix would shut down the machinery.

Re-cross examination. — If the idler would stop running, the whole power plant would shut down; the idler is a device that tightens the belt as well as holding it upon the power wheel, and its stopping would cause a heavy drag on the machinery and would kill it; never saw an idler out of fix; knows that it would stop it.

Redirect examination. — The idler getting out of fix will cause a constant drag on the engine, just cause it to pull so much heavier with the same amount of gas on it. If there was an increase of gas and advance the spark, probably the engine would run on, but having the same amount of gas and same amount óf spark, when the idler began to drag it would kill it because it would be an added weight to it. Has seen idlers on steám engines drag.

Re-cross examination. — Does not know whether he went back to the power-house just a short time after he was hurt; that is something he knows nothing about.

D. T. Langston, a witness called by plaintiff, testified: Was working up in the Louann oil field on the 8th of July, 1924; knows Mr. Jones; witness was working for the Texas Company; witness and Jones were not working together; Mr. Jones was working for the Texas Company; witness was about 150 yards from where Mr. Jones was working on the 8th day of July, the day he got. hurt; was working at the pumping station; saw Mr. Jones that day; Mr. Jones came over to the station where witness was at work about twelve or a little after; does not remember the exact hour of the day; he was kinder unconscious; didn’t know what he was doing -when he got over there; had a hole in the top of his hat; examined and found he had a hole in his head underneath the hat; it was kind of a three-cornered hole; the power was shut off when Jones came io where witness was working; shut off just before he got there; could hear the power running; made lots of racket; could hear it from the station; Jones staggered up where witness was; about the time he staggered up there witness noticed the power was off.

Cross-examination. — No kin to Mr. Jones; has never testified in this case before; never been identified with it' until today; is not working down there; is farming at Atlanta, Texas; lives about ten or twelve miles from Jones; has known him five or six years; does not know how Jones found out what he knows about the accident; has not talked to J ones about it recently; has not talked to any one laibout it; hasn’t even told anybody about it; lives in Texas ten or twelve miles from J ones; the hole in plaintiff ’s head was something like a half or an inch long; was under his hair; bathed his head with water when he came over there; witness was inside- of the pumping station when Jones came in the door; had just come from the back of the station up to the front; he came in the door of the pumping station; noticed the power-house stop running, and looked out and saw Jones coming over that way; did not just exactly hear it when it stopped;-noticed it was down, and looked out that way; worked all afternoon there in the pumping station; worked there for the company until the 15th day of December, 1924; the powerhouse was down something like an hour or an hour and a half; don’t remember whether he heard it when it started up again; does not know who started it; knows he heard it stop, and late in the afternoon it was running.

Redirect examination. — First saw Mr. Long Sunday afternoon; first time he had ever seen, Mr. Long about the case. Was paid for that day’s work.

Re-cross examination. — Talked to Mr. Long Sunday evening when they came by.

Redirect examination. — Had never known Mr. Long before that Sunday evening.

It is unnecessary to -set out the instructions. The instructions given by the court, when considered together, correctly state the law.

A number of other witnesses testified, but none of them claimed to know anything about how the injury occurred, and, since a majority of the court has reached the conclusion that the evidence is not legally sufficient to support the verdict, it becomes unnecessary to set out the testimony of witnesses as to the extent of the injury.

A careful consideration of all the evidence has convinced a majority of the judges that the evidence is insufficient to support the verdict. While it is true that, if there is any legal evidence to support the verdict of a jury, the court will not disturb it, yet this court has repeatedly held that circumstances of mere suspicion or where the evidence tends equally to sustain either of two inconsistent propositions, a verdict in favor of the party bound to maintain one of them against the other is necessarily wrong. In other words, the plaintiff must show by a preponderance of the evidence some act of negligence on the part of the defendant causing his injury. And if the evidence is such that the negligence of the defendant may have caused his injury, but that it also tends equally to show that the injury resulted from some cause other than the. negligence of the defendant, this would not justify a verdict against the defendant.

. The mere fact that the plaintiff was injured while working for the defendant and while in the exercise of due care himself is not sufficient to justify a verdict against the defendant. There must be some evidence of the negligence of the defendant and that that negligence caused the injury.

The plaintiff relies on his own testimony, and he says that they had been having trouble with the “idler,” that it was running hot on him, and that it would stick or something would happen to shut down the station. That he went around to oil it up, and, after starting around to oil it up, he can remember nothing else.

The allegation in the complaint is that a bolt flew out from the idler and hit him, but there is no testimony tending to support this allegation. Counsel asked plaintiff this question:

“Q. Were you hit by something or did you hear something pop?” And lie answered: “Nothing, only something popped just like a gunshot in my ear. That was the only thing I ever knew.”

It is'wholly immaterial whether the idler was hot or not and whether the machinery was defective or not, unless these things, or some of them, caused the injury. It is possible that a bolt may have hit him. It is also possible that he might have been hit by something else or injured in some other way. There is certainly no evidence by plaintiff or any other witness tending to show that a bolt flew out and hit him.

“It is thoroughly well settled that verdicts of juries must have a more substantial basis than mere conjecture or speculation on which to rest.” St. L. I. M. & S. R. Co. v. Smith, 117 Ark. 655, 174 S. W. 547.

“It is a well established doctrine, often recognized by this court, that juries will not be permitted to rest a verdict purely on speculation. That there must be testimony which warrants a finding of the essential facts or which would warrant a reasonable inference of the existence of those facts upon which liability is predicated before a verdict will be permitted to stand.” St. L. I. M. & S. R. Co. v. Belcher, 117 Ark. 638, 175 S.W. 418; St. L. I. M. & S. R. Co. v. Enlow, 115 Ark. 584, 171 S. W. 912; Midland Valley Ry. Co. v. Ennis, 109 Ark. 206, 159 S. W. 214.

There are many other cases which have been decided by this court to the same effect, and, while it is a well-settled rule of this court that, if there is any substantial evidence to support the verdict it will not be disturbed, 3ret it is equally well settled by the decisions of this court that a verdict cannot be permitted to stand unless there is some substantial evidence to support the verdict. And, as we have already said, after a careful consideration of all the evidence in this ease, the conclusion has been reached that there is no evidence that the plaintiff was injured by reason of any negligence on the part of the defendant. If the bolt flew out and hit the plaintiff because of the negligence of the defendant, this would entitle him to recover, but he does not claim that this occurred. In fact, lie does not claim to know what hit him. That a holt hit him is mere conjecture.

Since the evidence is insufficient to support the verdict, this cause is reversed, and remanded for a new trial.


author: McHaNby, J.

text:
    Canard v. State.
    Opinion delivered September 26, 1927.
    1. Highways — driving automobile while intoxicated — evidence.— On & trial, under Acts 1923, p. 200, § 1, for driving an automobile on a public highway or street while intoxicated, testimony that a witness had advised defendant, some time before his arrest, no.t to go to the Fair Grounds, “cutting up with his car,” held competent as tending to show intoxication at the time witness gave such advice.
    2. Highways — public highway defined. — Any public highway or thoroughfare used for the passage of the public is to be considered ¡a public highway within Acts 1923, p. 200, § 1, providing that it shall be unlawful for any person to drive an automobile upon any public highway while in an intoxicated condition.
    3. Highways — driving automobile while intoxicated. — Driving an automobile on roadway provided for the use of the public, or within Fair Grounds, held within Acts 1923, p. 200, § 1, making it unlawful to drive any automobile over or upon any public highway or street while in an intoxicated condition.
    Appeal from Stone Circuit Court; S. M. Bone, Judge;
    affirmed.

      Ben B. Williamson, for appellant.

      II. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   McHaNby, J.

Appellant was convicted in the justice of the peace court and fined $25 and costs on a charge of driving an automobile on a public highway or street while intoxicated. He appealed to the circuit court, where he was again tried and convicted and fined $30 and costs. From the judgment against him he has duly prosecuted an appeal to this court.

The first assignment of error urged for a reversal of the case is that the court erred in permitting the witness James Webb to relate a conversation be bad with the appellant on the day the offense was committed, some time prior to bis arrest, in which be told appellant, in substance, that be bad better not go on the fair grounds “cutting np with bis car” as be was. We think this testimony was competent, as, although the witness did not say positively that the defendant was intoxicated, it tended to prove intoxication at the time the witness, was riding in the car with him and gave him such advice. The witness had been picked up by the appellant on his way to the fair grounds, and rode into the fair grounds with him, and, while he stated he did not know whether he was drunk or not, he did state that he was acting funny, and the statement the witness made to appellant, and the advice given him about not going on the fair grounds ‘ ‘ cutting up that way, ’ ’ was competent, as tending to show the .condition appellant was in.

The next assignment of error relates to the refusal of the court to give appellant’s requested instructions numbered 1, 2 and 3, the effect of all of which was to tell the jury that they could not convict the appellant if they found that the offense charged against him was committed in the fair grounds. This charge was brought under § 1 of act 250 of the Acts of 1923, page 200, which reads as follows: “Hereafter it shall be unlawful for any person to drive any automobile, truck or motor-driven vehicle on any of the public highways of this State, or over or upon any of the streets of any city or town in the State of Arkansas, while in an intoxicated condition.” The principal contention of counsel for appellant is that the offense was committed, if at all, in the fair grounds, and not on any of the public highways of the State, or upon any of the streets of any city or town in the State. A careful examination of the evidence has convinced us that there was sufficient evidence to go to the jury on the question of his guilt of the charge of driving a car on a highway while intoxicated, outside of the fair grounds. It is not disputed that he passed in and out of the fair grounds several times during the day and night, and up until the time of his arrest,* ■which was about 9 p. m., and that he not only drove his car in the fair grounds, but over the highway leading to the fair grounds. The court instructed the jury in No. 7, over appellant’s objection, as follows:

“I instruct you further, gentlemen, that any public highway or thoroughfare used for 'the passage of the public would be considered a public highway; and, before you would be authorized to convict the defendant, you must find that he was operating a car, an automobile, on a ‘public passageway’, thoroughfare or street, and that ■he was in an intoxicated condition, and that beyond a •reasonable doubt.”

We think the above a correct declaration of the law ■on this subject. In the case of Arkansas River Packet Co. v. Sorrels, 50 Ark. 466-472, 8 S. W. 683, Mr. Justice Battle quoted from 3 Kent, Commentaries, page 432, in part as follows: “Every thoroughfare which is used by the public, and is, in the language of the English books, ‘common to all the king’s subjects,’ is 'a highway, whether it be a carriage way, a horse way, a foot way, or a navigable river. ‘It is’, says Lord Holt, ‘the genus of all public ways.’ ”

A number of definitions of the word “highway,’.’ as defined by the different courts, may be found in vol. 4, Words & Phrases. Under these definitions, and the one quoted above, we are of the- opinion that the driving ■ of a car, while intoxicated, over the passageway, through the gates of a fair ground and over the roadways provided therefor within the fair grounds, falls vdthin the prohibition of the statute, and that appellant would be guilty of the offense charged if the proof showed the offense to have been committed within the fair grounds alone.

These are all the errors complained of. We do not set the evidence out, nor the requested instructions in full, as it would serve no useful purpose.

Judgment affirmed.


author: McHaNey, J.

text:
    Free v. Taylor.
    Opinion delivered September 26, 1927.
    1. MORTGAGES — SATISFACTION OF RECORD BY ASSIGNOR. — Where the assignment of a note and mortgage has been noted by entry made on the margin of the record, the assignor cannot enter a notation satisfying the record as to the mortgage, without power of attorney, entered of record, from the assignee.
    2. Mortgages — authority of assignor to satisfy record. — Where an assignment of a mortgage was not noted on the record, the assignee’s verbal authority to the assignor to satisfy the record, held to estop the assignee from asserting his assigned mortgage as a lien to a subsequent recorded mortgage of a third party.
    Appeal from Lincoln Chancery Court; H. B. Lucas, Chancellor;
    affirmed.

      Broclcman & Beid, for appellant.

      B. W. Wilson and A. J. Johnson, for appellee.
   McHaNey, J.

On January 1, 1924, T. W. Dean and wife were indebted to the Lincoln County Bank in a sum which they were unable to pay, and, on that day, executed and delivered to the bank a renewal note for $7,500, which was secured by a first mortgage on certain real estate, and a second mortgage on lot 14 in the north one-half of section 2, township 9 south, range 16 west. The mortgage bears date of January 1, 1924, but was not acknowledged until the 21st day of May, 1924, and was filed and recorded on the 22d day of May, 1924. In December, 1924, the indebtedness not having been paid at maturity, the Lincoln County Bank brought suit against the Deans to foreclose their mortgage, and, as to said lot 14, prayed that it be sold subject to the first lien of the Missouri State Life Insurance Company. The bank thereafter learned that appellant, T. H. Free, was claiming some interest in said lot 14, and it made him a party defendant in said action. Appellant’s interest in the matter relates only to said lot 14, and originated in the following’ manner: On September 27, 1919, T. W. Dean and wife executed a deed of trust on said lot 14 and other lands to secure a note to H. D. Palmer in the sum of $10,000. Dean thereafter" paid $4,000 of .the debt owing- to Palmer, leaving a balance due of $6,000, evidenced by three notes of $2,000 each, which, on March 20, 1920, he sold and indorsed to appellant, Free, a brother-in-law of Dean, together with the deed of trust securing said indebtedness, which had been recorded, but did not enter on the margin of the record of said deed of trust a notation of said assignment. This deed of trust constituted a first lien on five acres of land in lot 19 and a second lien on said lot 14, the Missouri State Life Insurance Company holding the first lien thereon. Dean paid the interest on this $6,000 loan to January 1, 1922, and also borrowed $2,500 additional from Free in 1921, of which a portion was repaid in September of that year, but, on January 1, 1922, he was indebted to Free in the total sum of $7,434.19, exclusive of interest. No other payments were made to Free by Dean thereafter, but, on January 17, 1922, Dean and his wife executed a warranty deed to Free to the five-acre tract in lot 19, which recited a consideration of $6,000. Valuable improvements were located on this five-acre tract, including a gin house, on which insurance was carried in the sum of $1,000, $1,700 on the gin machinery located therein, $1,000 on engine and $400 on a seed house. This conveyance was made, according to appellant, to enable him to secure insurance on the improvements, which had been canceled because of the mortgage, and that he held the title in his name as security for the loan, with the right on Dean’s part to pay it off and secure a reconveyance. However, the insurance which appellant secured on this property thereafter was made to him as mortgagee.

On August 29, 1924, Palmer entered a notation on the margin of the deed of trust assigned by him to Free, satisfying same as to said lot 14, and, according to his testimony, he satisfied the record as to lot 14 at the direction of appellant, Free; that the first mortgage to the Missouri State Life Insurance Company had become due and was up for reneAval by Dean, and that his second mortgage, transferred to appellant, stood in the way o'f a renewal of the first mortgage, and that he satisfied the record as to that lot at the direction of Mr. Free, so that the new mortgage to the Missouri State Life Insurance Company would continue to he the first mortgage; that Mr. Dean had told him to see appellant and that appellant would direct him to satisfy the mortgage, as it had never been assigned on the record to appellant, and that Dean also told him of his conveyance to appellant of the five-acre tract and improvements on lot 19. Appellant denies having authorized Palmer to 'satisfy the record, hut he admits that he told Mr. McPherson, the abstracter, to tell Palmer to satisfy the record as to lot 14, so that Dean could renew his first mortgage to the Missouri State Life Insurance Company. Under this state of facts the chancellor found that the satisfaction of the record as to lot 14 by Palmer was authorized, dismissed appellant’s intervention or cross-complaint, which sought to cancel the satisfaction of the record as to lot 14 and to declare his lien superior to that of the bank, and entered a decree of foreclosure in favor of the Bank Commissioner, who had in the meantime taken over the affairs of the Lincoln County Bank. From the decree against him appellant has appealed to this court.

The only question presented for our decision, as we view it, is the authority of Palmer, who was the cashier of the Lincoln County Bank, to make the entry of satisfaction on the margin of the- record as to lot 14, of the mortgage which he had transferred to appellant, but had not assigned to him on record. The record still showed Palmer as the mortgagee and the holder of the note from Dean to Palmer. If an entry had been made on the margin of the record of the transfer of the note and lien of the mortgage from Palmer to Free, then Palmer could not have satisfied the record, either in whole or in part, without a power of attorney entered of record so to do. But, since the record still showed Palmer to be the mortgagee and the owner of the note, he, with the authority of Free, could enter a proper satisfaction on the record. He says he satisfied the record at appellant.’s verbal direction. The law did not require a power of attorney or other written instrument from appellant to Palmer to satisfy the record. His verbal direction to do so is sufficient. The chancellor found “that the release of the lien on lot 14, in section 2, toAvnship 9 south, range 6 west, by T. H. Free’s authority and direction, was a complete satisfaction and restoration of the title of said lot in T. W. Dean, and said T. H. Free is estopped from asserting a lien prior to the lien contract by the Lincoln County Bank on said lot.”

The chancellor therefore found that the satisfaction entered by Palmer was .made with the authority and by the direction of appellant, and, while appellant denies that he authorized Palmer in person, he admits that he told McPherson to tell Palmer to satisfy, the record. The finding of the chancellor is supported by a clear preponderance of the evidence, and the decree is accordingly affirmed.


author: McHaney, J.

text:
    Interstate Grocer Company v. National Bank of Commerce in St. Louis.
    Opinion delivered September 26, 1927.
    CORPORATIONS — waiver op statutory lien on stook. — Where a corporation filed a claim against a bankrupt stockholder as an unsecured creditor, without knowing that the bankrupt had discharged the debt, as security for which it had waived the statutory lien on its stock owned by the' bankrupt, but, after learning of this,' still failed to claim its lien, held that it was estopped to assert its lien against the bank holding its assignment from the former creditor of the lien and waiver.
    Appeal from Phillips Chancery Court; A, L. Hutch-ins, Chancellor;
    affirmed.

      W. G. Dinning, for appellant.

      Braver & Cracraft, for appellee.
   McHaney, J.

John J. Hughes, was the owner of certificate No. 147 for. 44 shares of stock in appellant corporation, of the par value of $25 each, and, on September 30,19'20, at a time-when he was indebted to the American Bank of Commerce & Trust Company of Little Kook, Arkansas, W. W. Moore, secretary of appellant, executed the following* waiver of its statutory lien on said stock:

“State of Arkansas, County of Phillips.
“I, W. W. Moore, do hereby certify that John J. Hughes is the owner of 44 shares of the capital stock of the Interstate Grocer Company, a corporation org*anized and doing business under the laws of Arkansas, evidenced by stock certificate No. 147 of said corporation. That said corporation has no lien or claim whatever on said stock, and hereby acknowledges that said stock is transferred as security to the American Bank of Commerce & Trust Company, Little Rock, Ark., for the payment of $. with interest at.per cent, per annum, or for any other indebtedness now .existing or that may he hereafter contracted.
“Dated at Helena, Ark., Sept. 30, 1920. W. W. Moore, Secretary of the above named corporation.”

This indebtedness to the American Bank of Commerce & Trust Company was evidently paid off on or about June 5, 1922, as, on that date, the American Bank of Commerce & Trust Company assigned the above-mentioned waiver of lien to appellee by indorsement thereon in the following* language:

“'June 5, 1922.
“We hereby assign all rights of lien as expressed in the waiver on the opposite side of this sheet in favor of the National Bank of Commerce, St. Louis, Missouri, without recourse of any kind whatsoever on this institution. American Bank of Commerce & Trust Co., Little Rock, Arkansas. By W. A. Hicks, V. P. and Cash.”

On June 5,1922, Hughes was indebted to appellee in a large sum of money, and deposited with appellee, or its agent, the 44 shares of stock above mentioned, together with the waiver of lien above set forth, with the indorsement thereon. On December 5, 1922, this indebtedness by Hughes to appellee was renewed, and this stock certificate and other collateral remained with appellee as collateral security for the payment of Ms indebtedness. Hughes paid a portion of Ms indebtedness to appellee, and, on March 13, was adjudicated a bankrupt in the Helena Division of the Federal District Court of the Eastern-District of Arkansas, at a time when he was still indebted to appellee in a large sum of money. During all of the times hereinbefore mentioned Hughes was indebted to the appellant, and, on the date óf the adjudication, owed appellant the sum of $1,094.94, for which amount appellant filed claim with the referee in bankruptcy as an unsecured creditor, and without claiming or asserting any lien upon the stock in question, and without giving Hughes credit for the value of the stock in question. In its proof of claim in bankruptcy, appellant made the following statement: “That the said Interstate Grocer Company has not, nor has any person by its order or to the knowledge and belief of said deponent, for its use, had or received any manner of security whatever, or any note for such account, nor has any judgment been rendered thereon, and that the only securities held by the said............for said debt are the following”; and no securities are listed opposite said statement.

On June 29, 1923, appellee wrote .appellant advising it that it held this stock, giving the certificate number, in which it claimed the dividend, if any, thereon. Thereafter followed considerable correspondence between the parties regarding the stock, in which appellee sought to have appellant transfer the stock to it, and in which appellant demanded to see the stock and the waiver, which was sent by appellee to its correspondent bank in Helena, were submitted to appellant on September 4, 1923, and it refused to transfer the stock, because it claimed a statutory lien thereon for the indebtedness due it by Hughes. On October 20, 1923, appellee filed its claim in bankruptcy as a secured creditor for the balance due on its indebtedness, .and, having reached an agreement with the trustee as to the value of the securities held by it as collateral, including the stock in controversy, which was valued at $1,100, the value of all securities was credited on the note and claim filed in bankruptcy for the balance due as an unsecured claim, and the value of the securities so agreed upon between appellee and the trustee was approved by the referee. On November 30, 1923, a dividend of 7y2 per cent, was declared and paid, and on May 24,1924, another and final dividend of a little more than one-half of 1 per cent, was declared and paid, both of which were accepted by appellant, and thereafter the bankrupt was discharged. On these facts the lower court entered a decree holding that the 44 shares of stock in question was the property of appellee, and directing appellant to transfer same on the books of the corporation and issue a new certificate for a like number of shares to the appellee, together with the payment of dividends which had been declared on said stock, in the sum of $132, with interest as set forth therein. From the decree against it appellant has prosecuted this appeal.

The only question presented to this court for decision, as stated by counsel for appellant, is “whether or not the appellant is estopped by its conduct to now assert its statutory lien on the shares of stock in question for the purpose of enforcing collection of an indebtedness due it by the owner of the stock. ’ ’ Appellant concedes that, “if the conduct of the appellant company is such as to warrant a finding that it has made an election to rely upon the dividends to be declared by a court of bankruptcy rather- than upon the lien given it by statute for enforcing collection of its demand, then the decision of the lower court was correct.” Counsel for appellant contends, however, that, if “the claim of this appellant was filed as an unsecured claim with the referee in bankruptcy under a misapprehension of facts, ’ ’ without fault or negligence on its part, it should not be held to an election, and that the doctrine of estoppel would not prevent the enforcement of its statutory lien.

As above stated, appellant filed its claim in bankruptcy, without claiming a lien, on March '20, 1923, and a little more than 90 days thereafter, June 29, it received a letter from appellee advising it that it held this stock as pledgee thereof, and claiming any dividends thereon after that date. Reply was made to this letter on July 5, in which appellant requested proof of the fact that it was the holder of this stock, in which it said: “It will be necessary for you to prove your claim, not that we doubt your statement. The best way would he to send this stock in, together with release, and have new stock • issued for it. The writer was under the impression that this stock had been released by us, but we find no record of it, and said release would have to be established. ’ ’ A brief history of the success of the company was given in this letter, and a promise to send appellee the semiannual statement was made. Reply was made to this letter by appellee on July 6, suggesting that appellant confer with its counsel, and on July 9 appellant wrote appel-lee, acknowledging receipt of the letter of the 6th, and stated: “We have no idea of contending* with you concerning this matter with reference to John J. Hughes’ stock. We cannot send dividends to any person or persons until they establish their rights to receive such dividends. We need no legal advice on this matter. If you hold this stock as pledgee and have our release, when you have established this fact to our satisfaction, we will then recognize you as the proper source to receive the dividends.”

On July 13 appellee wrote appellant that they were sending the stock to the First National Bank at Helena, and requesting that the stock be transferred to their nominee. The stock was sent by appellee to its correspondent, who took the matter up with appellant, and for the first time it claimed to have a lien on the stock by reason of an indebtedness due it by Hughes.

We are of the opinion that the chancery court correctly held that appellant is estopped to assert its statutory lien on the stock because of its election to file its claim as an unsecured creditor of the bankrupt. It is true that, at the time of filing the claim in bankruptcy, appellant did so under a misapprehension of fact, as it had no knowledge of the discharge of the indebtedness of Hughes to the American Bank of Commerce & Trust Company, hut, shortly thereafter, it did learn of this fact, within ample time to have amended its claim in bankruptcy and reestablished its claim as a secured creditor and had the value of its security estimated.- It did-.not do this, but, with the full knowledge of appellee’s claim thereto, and with either the actual or constructive knowledge of its having filed its claim in bankruptcy as a secured creditor, with the value of the securities, including the value of this stock, credited thereon, appellant took no steps to have its rights to the stock adjudicated in the bankruptcy court. As this court said, in the case of the Bank of Searcy v. Merchants’ Grocery Company, 123 Ark. 403, 185 S. W. 806, ‘ ‘ it involves the doctrine of election because, if the appellee (grocer company) made an election to stand as an unsecured creditor, it cannot afterwards take the inconsistent position of being a secured creditor and assert the right to enforce the security. In' other words, the election to appear as an unsecured creditor constitutes an abandonment of the security.”

Quoting again from the same opinion, on page 407, this court quoted from the bankruptcy act as follows: “The bankruptcy act (§ 57, subdivision ‘e’) contains the following provision on the'subject of secured creditors-: £ Claims of secured creditors and those who have priority may be allowed to enable such creditors to participate in the proceedings at creditors’ meetings held prior to the determination of the value of their securities, or priorities, but shall be allowed for such sums only as to the court seems to be owing over and above the value of their securities or priorities.’ Another subdivision of the same section (‘h’) contains the following provision: ‘The value of securities held by secured credr itors shall be determined by converting the same into money according to the terms of the agreement pursuant to which such securities were delivered to such creditors, or by such creditors and the trustee, by agreement, arbitration, compromise, or litigation, as the court may direct, and the amount of such value shall be credited upon such claims, and a dividend shall be paid only on the unpaid balance.’ The bankruptcy act (§ 1, subdivision 23) defines the words ‘secured creditor’ as follows: ‘Secured creditor’ shall include a creditor who has security for his debt upon the property of the bankrupt of a nature to be assignable under this act, or who owns such a debt for which some indorser, surety, or other persons secondarily liable for the bankrupt has such security upon the bankrupt’s assets.’ ”

If appellant had desired to assert its claim in bankruptcy as a secured creditor, it would have been necessary for it to have asserted its lien and had the value' of the stock determined in the manner set forth in the bankruptcy act. And, although it filed its claim as an unsecured creditor in ignorance of its rights, or under a mistake of fact or law, it had the right, after it came into the possession of facts which put it on notice that another was claiming the security^ which it claimed, to have amended its claim in bankruptcy, so as to have asserted its lien and saved itself from the necessary consequences of election and estoppel, as is here presented.

One of the recent cases on this subject is that of In re O’Gara Coal Co., 12 Fed. (2d) 426, 46 A. L. R. 916, cited and quoted from by counsel for appellee as follows:

“In bankruptcy there have been many decisions in the district courts, all to the effect, so far as we have found, that the consequence of filing a secured claim as an unsecured debt is the waiver of the security. White v. Crawford (C. C.) 9 F. 371; In re M. I. Hibbler Machine Co. (D. C.), 192 F. 741; In re Fisk & Robinson (D. C.), 185 F. 874; In re Little (D. C.), 110 F. 621, 627 (Judge Shiras); In re Norris, 18 Fed. Cas. page 316, No. 10, 303; In re High, 12 Fed. Cas. page 133, No. 6, 473; In re Jaycox, 13 Fed. Cas. page 409, No. 7, 242, in which case it was held, however, that, when such proof was made through ignorance or mistake, a creditor ought to be allowed to withdraw Ms proof land prove as a secured creditor. In re Granger, 10 Fed. Cas. page 958, No. 5, 684. The answer to the objection that the filing of the amendment to the claim for allowance as a secured debt was ivith-out permission of the court should have been filed earlier, might be well taken under different conditions. But here no steps were taken for the allowance of the claim as secured until after the case was returned from the Supreme Court and several years after the decree of May 9, 1919, ordering payment of all claims. Unquestionably, great latitude has been allowed, as there should be, in the amendment of claims. There are, on the proposition, many district court decisions. In re Myers (D. C.), 99 F. 691, 693, an Indiana case, District Judge Baker said: ‘The court undoubtedly possesses the power, in its discretion, and in a proper case, to allow proofs of debt to be amended, and, in case of mistake or ignorance, either of fact or law, will generally exercise that power, in the absence of fraud, and, when all the parties can be placed in the same situation that they would have been in if the error had not occurred, and where justice seems to demand that the amendment should be made.’ See In re Wilder (D. C.), 101 F. 104; In re Falls City Shirt Co. (D. C.), 98 F. 592; In re Hubbard, 12 Fed. Cas. page 775, No. 6, 813; In re Fisk & Robinson (D. C.), 185 F. 974. See also Hutchinson (D. C.) v. Otis, 190 U. S. 552, 23 S. Ct. 778, 47 L. ed. 1179, where the court permitted the amendment and granted the relief because of a mistake of fact. All those cases show that amendments are only allowed because of some mistake or error, and in furtherance of justice. Here the alleged amendment of the claim sets up no error or mistake, and none is shown in the record. From the situation of the receiver we must assume that he knew that the collateral was worth at least $50,000 on January 1, 1917, and yet he delayed seven months thereafter before filing his amended claim.”

It will be seen that Judge Page, of the Circuit Court of Appeals of the 7th Circuit, made a very exhaustive review of the authorities and states the law clearly with reference to this matter. Taking all the facts and circumstances into consideration, including the fact that appellant had executed a waiver on this stock in favor of the American Bank- of Commerce & Trust Company, which had been assigned by it to appel-lee, and which had never been recalled by appellant, and its waiver of lien surrendered and canceled, together with the other matters hereinbefore stated, we hold that the appellant -had its election, and is now estopped to assert a lien on the stock in question.

It necessarily follows that the judgment must be affirmed. It is so ordered.


author: Wood, J.

text:
    Mutual Benefit Health & Accident Association v. Tilley.
    Opinion delivered October 3, 1927.
    Dismissal and nonsuit — final submission. — Plaintiff was entitled to a nonsuit and dismissal without prejudice, where he requested it after the court had indicated that he believed that plaintiff’s evidence was insufficient hut before argument of the case, since there was no final submission of the case within Crawford & Moses’ Dig., § 1261, providing that action may be dismissed without prejudice before final submission of the case.
    Appeal from Conway Chancery Court; W. E. Atkinson, Chancellor;
    affirmed.

      Strait & Strait, for appellant.

      Edivard Gordon, for appellee.
   Wood, J.

The plaintiff below, appellee here, instituted this action in the chancery court against the defendant below, appellant here, on a policy insuring James Richard Holder against death by accident in the sum of $1,000. The appellee alleged that the assured was murdered by his wife, the beneficiary named in the policy; that she thereby forfeited' her claim to the insurance, and that the' appellant was holding the same in trust for the estate of the deceased, which the appellee, as administrator, was entitled to recover on behalf of the estate of the deceased, James Richard Holder. The appellee alleged compliance with the terms of the contract on the part of the assured before his death and a compliance with the terms of the contract on the .part of the appellee since the death of the assured, in order to entitle appellee to recovery. The prayer was for the amount of the policy, and the statutory penalty, and a reasonable attorney’s fee.

The appellant answered, admitting- the issuance of the policy as alleged in the complaint, but denied its other allegations, and set up that appellee was barred by judgment that had been recovered by the beneficiary in the policy at a former term of the circuit court, and pleaded such judgment as res judicata. Testimony by deposition on behalf of the appellee was taken in this cause. On the 29th day of June, 1926, the same being a day of the June term, a hearing was had upon the pleadings and proof adduced. At the close of the testimony the court indicated to the attorney for the appellee that the proof was not sufficient to justify a recovery, and thereupon the attorney for the appellee asked leave to take ia non-suit, which leave the court granted, and dismissed the action without prejudice. Thereafter, on the 26th day of October, 1926, the same being a day of-an adjourned term of the chancery court, the appellant filed the following motion:

‘ ‘ On the 29th day of June, 1926, which date was a day when the present term of this court was in session, the above cause was submitted and tried in this court, and at the termination of said trial, this court announced that its findings and decree would be against the plaintiff and for the defendant upon the merits of this cause, and that upon said findings this defendant was entitled to have decree entered; that thereupon the plaintiff, after the submission and trial of said cause, and after the depositions of witnesses had been introduced and read in said trial, and after the court announced what its decision and decree ’would be, asked permission to take a nonsuit in said canse, which said permission was granted, and a nonsuit and dismissal without prejudice was thereupon entered in this cause. That said plaintiff had no right to take a nonsuit at said time; that this court was without authority to grant same, and that this defendant was entitled to have the decree in its behalf upon the merits rendered and entered of record. Wherefore it prays that said nonsuit and dismissal be set aside and that the decree be rendered in this cause upon the merits in behalf of the defendants.”

The court heard the motion upon the facts as above set forth, and, after argument of counsel, found as follows :

“That, at the time the plaintiff entered a nonsuit, the cause came on to be heard; that, after reading the testimony and before the argument of counsel, the court indicated to the attorney for plaintiff that he did not think his proof was sufficient. Whereupon the attorney for plaintiff asked leave to take a nonsuit, and dismissed the cause "without prejudice, which was at the time by the court granted, and the court finds from the foregoing-facts that plaintiff moved for nonsuit before the final submission of the case.” The court thereupon entered a decree dismissing the motion of appellant, without prejudice, from which decree is this appeal.

Section 1261 of 0. & M. Digest reads in part as follows: “An action may be dismissed without prejudice to a future action: First. By the plaintiff before the final submission of the case to the jury, or to the court, where the trial is by the court.” Then follow other subdivisions, not necessary to set forth, and the section concludes as follows: “In all other cases, upon the trial of the action, the decision must 'be upon the merits.”

Under the facts above set forth the chancery court found that the “the plaintiff moved for a nonsuit before the final submission of the case.” The finding of the chancery court was correct. Such being the case, the above statute in plain terms authorized the court to dismiss the action without prejudice to a future action. Carpenter v. Dressler, 76 Ark. 400, 89 S. W. 89, was a case at law. The evidence had been adduced and the cause submitted to the court for hearing. The argument had begun, but, before it was concluded, the plaintiff asked and was denied permission to take a nonsuit. This court, in passing upon the ruling of the trial court, at page 403 of the opinion, said: “A case is not finally submitted until the argument is closed, and a plaintiff-has a statutory right to nonsuit until final submission.”

The above ruling governs this case. The provision of our law under review is a part of the Civil Code which was modeled after the Civil Code of Kentucky. In Vetrees v. Newport News, etc., Company, 95 Ky. 314, 25 S. W. 1, the Supreme Court of .Kentucky, passing upon the similar provision of its Civil Code, among other things said:

“Now, the bill of exceptions, which we have quoted, shows that, although the court had sustained plaintiff’s motion for the peremptory instruction, there had not been any submission of the case, final or otherwise, to the jury before plaintiff moved to dismiss the case, for it is stated that the jury was not actually instructed to find for defendant until after the motion of plaintiff to dismiss was made. Strictly and properly there can be no final submission of a case to the jury until all questions of law have been disposed of by the court, instructions and papers pertaining to the case have been actually delivered to the jury, and they are authorized, without further interposition or control of the court., to proceed to a judicial examination of the issue of fact submitted to them.”

Now, while the above rule of our own court and of the Supreme Court of Kentucky in construing the statute was announced in law cases, the same rule applies where the case is tried by the court, either at law or by the chancery court, before the case is submitted to the court or jury for final determination. Here, notwithstanding the court had indicated to the counsel for the plaintiff that the court did not think the proof sufficient to justify a recovery, counsel for plaintiff still had the right to ask permission to argue his client’s cause before the court; and there is nothing in the record to show that the court, if asked, would have denied him this right and privilege. If counsel had availed himself of this right and privilege, he might have been able to convince the court that its view of the testimony before hearing the argument of . counsel was erroneous and thus induced the court to find in favor of his client. Instead of taking this course, counsel for plaintiff elected to take a nonsuit, which he had the right to do. In cases at law, under a similar statute, it is held that a case is not finally submitted to the jury when the last word of a charge is read, and not until the .jury are directed to retire and to enter upon a consideration of their verdict. See Bean v. Harris, 46 Iowa 118; Morrisy v. Chicago, etc., Ry. Co., 80 Ia. 314, 45 N. W. 545; Mullen v. Peck, 57 Ia. 430, 10 N. W. 829; Oppenheimer v. Elmore, 109 Ia. 196, 80 N. W. 307; Gassman v. Jarvis, 94 Fed. 603; Chicago, etc., Ry. Co. v. Metalstaff, 101 Fed. 769.

The decree is therefore correct, and it is affirmed.