text:
    Southern Lumber Company v. Axley.
    4-2956
    Opinion delivered April 17, 1933.

      Aubert Martin and Williamson & Williamson, for appellant.

      Clary & Ball, D. L. Purkins and J. R. Wilson, for appellee.
   Humphreys, J.

This is a second appearance of this case in the Supreme Court. It was brought up the first time on writ of certiorari for the purpose of testing the validity of the findings, orders and decree rendered in a slander suit by the chancery court of Bradley County, wherein O. O. Axley was the plaintiff and the Southern Lumber Company was defendant. The suit was originally brought in the circuit court of Bradley County by O. O. Axley against the Southern Lumber Company to recover damages for slander, to which an answer and cross-complaint were filed, incorporating a motion to transfer the cause to the chancery court, which was done, over the objection and exception of the plaintiff, O. O. Axley. After the cause was transferred, the plaintiff filed a motion to remand same, which was overruled over his objection and exception, and, over his exception, he was forced to try the case, which resulted in a dismissal of the complaint as well as the cross-complaint.

In the certiorari proceeding, under the style of Axley v. Hammock, 185 Ark. 939, 50 S. W. (2d) 608, it was ruled that the suit was improperly transferred to the chancery court, and that the findings, orders and decree rendered and entered therein were void because the chancery court had no jurisdiction over the subject-matter involved. Accordingly, the findings, orders and decree of the chancery court were reversed, and the chancery court was directed to remand the cause to the circuit court.

Upon the remand of the cause, the appellant herein requested the chancery court, in remanding the cause to the circuit court, to enjoin appellee herein from proceeding with his slander suit because the chancery court in the course of the proceedings therein found that he had estopped himself from doing so by a settlement of the cause of action. The chancery court properly denied appellant’s request for a mandatory injunction for the reason that, under the ruling of this court, the chancery court acquired no jurisdiction over the subject-matter of the action by reason of the alleged defenses interposed thereto in its cross-complaint. All of the findings and orders of the chancery court, as well as the decree, were nullities because chancery courts have no jurisdiction of slander suits and defenses thereto in this State. Circuit courts alone have jurisdiction in this State to try actions for slander and all defenses thereto.

For the reasons aforesaid, this appeal of the Southern Lumber Company is dismissed and all the orders, findings and determinations of the Bradley County Chancery Court, had and done in this case, are hereby quashed and vacated.


source: Caselaw Access Project

author: Kirby, J.

license: Public Domain

text:
    Houston Oil Company of Texas v. McGuire.
    4-2926
    Opinion delivered April 17, 1933.

      Gaughan, Sifford, Godwin & Gaughan and Powell, Smead & Knox, for appellant.

      J. S. McKnight, Walter L. Pope and Pace & Davis, for appellee.
   Kirby, J.

Appellee, in' his own behalf and as administrator of the estate of his deceased wife, sued the appellant oil company and its agent, Joe McDonald, to recover damages for the death of his wife, resulting from an alleged explosion of a highly inflammable and explosive fluid consisting of a mixture of coal oil and gasoline, it being alleged that the mixture had been bought as and for use as coal oil, as appellants knew, and that, instead of delivering coal oil, they wrongfully and negligently delivered from the wrong container gasoline, and sold same to appellee as and for coal oil.

It was further alleged that the appellant, Houston Oil Company, carelessly and negligently furnished to Joe McDonald, its agent, for sale to the public as and for use as kerosene said gaseous fluid, which was highly inflammable and ignitable at a temperature below 140 degrees Fahrenheit, knowing it was not suitable for use for heating and illuminating purposes.

That on the 4th of December, 1931, the deceased attempted to use said fluid as and for kerosene in starting the fire under a wash kettle or pot in the yard, as was the custom, and, starting to pour some of said fluid on the kindling and wood under said kettle, the can of fluid ignited and exploded, scattering its contents over the person of deceased, setting’ her clothing on fire and horribly burning ber body upon her face, neck, arms, waist and legs to such an extent that she died from the effects thereof on the 16th day of December, 1931, and from which, during the period of time that she lived after said explosion, she suffered the most excruciating and severest physical pain and mental anguish.

The answer denied the material allegations of the complaint and pleaded contributory negligence of the deceased as a defense.

The court instructed the jury, amending one of appellants’ requested instructions over its objection, and the jury returned a verdict assessing the damages at $2,000 for the plaintiff individually and at $5,000 as administrator of the estate, and from this judgment, this appeal is prosecuted.

It is insisted on appeal that the court erred in refusing to direct a verdict in favor of appellants, that appellee ’s wife was guilty of contributory negligence as a matter of law, and also that the court erred in admitting testimony relative to the custom of building fires with kerosene or coal oil, and by modifying appellants’ requested instruction No. 2 by adding the clause thereto: “if you further find that in so doing she was not exercising ordinary care for her own safety.”

It appears from the testimony that Noah McGuire, who lived in Calhoun County a short distance from Bear-den, across the line in Ouachita County, undertook to buy 5 gallons of kerosene from the Houston Oil Company through its agent, Joe McDonald, driver of the tank wagon. Handing his five-gallon can to McDonald to be filled with kerosene, McGuire went away, leaving his can with McDonald, and, returning shortly, paid McDonald 45 cents for the oil, being the regular standard price for kerosene. McGuire took the oil home and had used very little of it on December 4th. He put some of it in a stove in the potato house, but was not able to say that the container was empty when he put the newly purchased oil in. He also put some in an oil lamp, which contained a small amount of oil, and he noticed that there was a peculiarity about the way the wick of the lamp burned when he raised the globe, the blaze would run up high, and he would have to turn the wick down for about a half minute and then turn it back up gradually after putting on the globe.

On December 4, while McGuire was away in the woods at work, Mrs. McGuire undertook to build a fire under the wash boiler in the back yard, and the can of oil exploded, with disastrous results to her. The explosion was heard by persons half a mile away, who thought it was from dynamite being used on the highway; and those who appeared on the scene soon afterwards could not tell much about the occurrence.

Mrs. Palman said the explosion threw Mrs. McGuire 10 feet away from the kettle, where she saw some of the remains of her burned clothing. McGuire went out to the kettle after he reached home and picked up the oil can about 12 to' 16 feet away from the kettle and the bottom had been blown out of the can. Oil had been splashed all over a pile of oak heater wood about 20 feet from the wash pot and had burned over the pile of wood. The pot was turned over on its side, and there was nothing left around it but a few splinters and a small pile of chips underneath.

Some of the fluid had been drawn out of the can by Mr. McGuire into a bottle and carried to the woods for oiling saws. This bottle was corked with a bunch of pine needles and the oil sprinkled through on the saws prior to the explosion, and'the common test of putting a small quantity on paper and then touching a lighted match to it disclosed that it was much more volatile and inflammable than kerosene, which was subjected to the same test at the same time.

A flash test and a chemical test were both made by Dr. Rose, chemist, and proved that the fluid was gasoline. The explosion itself seems to confirm this finding, as otherwise the fluid should not have exploded in the open air on a cold day, according to Rose’s statement.

Dr. Rose, who made the analysis of the sample of the fluid, testified upon a question embracing the allegations of the answer and the other proof relative to the explosion that, if the fluid had been kerosene or coal oil of the grade permitted to be sold by the statute, it would not have ignited and exploded under such circumstances. It should not have exploded unless the temperature of the kerosene had been raised to the igniting point, which would have taken some time and heat would have had to have been applied to the can; and that, even if the kindling surrounding the wash pot was burning, his answer would not be changed.

Joe McDonald, one of the defendants, denied that he drew the fluid from the wrong faucet, either at the station or out of his tank wagon; stated there were three faucets for delivering the products sold, oil, gasoline, etc., and that he himself unlocked the kerosene tank when it was delivered into the tank wagon.

Jelly Warren, whose duty it was to deliver the oil from the storage tanks of the oil company at their depot, did not testify.

The test of the fluid as analyzed by Dr. Rose showed it contained 96 per cent, of gasoline and ignited at a temperature of 88 degrees, when the statute 5903, Crawford & Moses’ Digest, as amended by act 77 of 1923) provides that, if the fluid ignites at a temperature of less than 140 degrees, it shall not be offered for sale for illuminating and heating purposes.

The manager of the oil company and some of its chemists testified about the details of making the test for determining when petroleum oil meets the required standard for gasoline and kerosene, and also about the location and capacity of this storage tank from which sales and deliveries are made. Said that if the fluid, as analyzed by Dr. Rose, contained 96 per cent, gasoline, it would be very dangerous to use in a potato house stove or lamps, and he doubted if it would burn in kerosene lighting equipment without causing a fire; said the company knew what was put into the tanks to be delivered, but that no test was made after it was put into the tank wagon of McDonald. That the company should know about the ingredients of every liquid that went into its storage tanks; said the fluid could have been tested at every point except on delivery at the tank trucks and the wrong fluid might have been delivered.

No witness who could have known testified that the fluid put into the tank wagon as coal oil came from the kerosene storage tank. No one saw McDonald draw it from that tank, and the can could have been filled with gasoline by McDonald by opening the wrong faucet or it could have resulted from a mistake in loading the gasoline tank. The fluid delivered to McGuire was not kerosene, but about 96 per cent, gasoline, flashed in a test at a temperature of 88 degrees and on a cold day in the open air exploded, causing the death of appellee’s wife. It certainly was not kerosene of the grade required by the statute for heating purposes, and it makes no difference where the mistake was made, since it was made by appellant or its agents, whether in loading the tank truck or in filling the oil can; and the testimony is sufficient to show the delivery of the gasoline to appellee, and no error was committed in refusing to direct a verdict.

There was no eyewitness to the explosion of the gasoline and the burning of Mrs. McGuire on account of it, and the law presumes that a person injured is free from fault in the absence of such eyewitness or evidence to the contrary. Dallemand v. Sallfeldt, 175 Ill. 310, 48 L. R. A. 753, 67 Am. St. Rep. 214, 51 N. E. 645; Salyers v. Monroe, 104 Iowa 74, 73 N. W. 606; Atchison, T. & S. F. R. Co. v. Aderhold, 58 Kan. 208, 49 Pac. 83; Mynning v. Detroit, L. & N. R. Co., 64 Mich. 93, 8 Am. St. Rep. 804, 31 N. W. 147; Texas & P. R. Co. v. Gentry, 163 U. S. 353, 16 S. Ct. 1104, 41 L. ed. 186; Chicago B. & Q. R. Co. v. Gunderson, 174 Ill. 495, 51 N. E. 708.

The burden was upon the appellants to establish contributory negligence upon the part of deceased, and it has failed to discharge the burden. In the case of Ellis v. Republic Oil Co., 133 Iowa 11, 110 N. W. 20, a case wherein the facts are similar to the case at bar, it is said, with reference to contributory negligence:

“It is said, however, that there was not sufficient showing of absence of contributory negligence on part of the deceased. To this contention it may first be said that there is no living witness of the explosion or of the circumstances under which the'unfortunate girl met her death, and the administrator of her estate is in this action entitled to the presumption of due care on her part arising from the common instinct of self-preservation which naturally leads a normal person to avoid danger.” Citing eases.

It was further said there:

“In the absence of any showing or suggestion that she was not in any manner responsible for the character of the contents of the oil can, or that any reason existed to excite her suspicion that the can was not filled with standard kerosene, there is certainly no showing on which we can say as a matter of law that she was- guilty of contributory negligence. The use of- kerosene in kindling fires is too common and too well known for us to say that a person using reasonable- care may not employ that agency without being chargeable with negligence.” • - -

No error was committed in admitting testimony relative to the custom of making fires with kerosene, that being such a matter of common knowledge that the court could have taken it into account without any such testimony in any event. Waters-Pierce Pet. Co. v. Deselms, 212 U. S. 157, 29 S. Ct. 270; Kentucky Independent Oil Co. v. Schnitzler, 208 Ky. 507, 271 S. W. 570, 39 A. L. R. 979.

Neither did the court err in modifying defendants’ requested instruction No. 2 by adding the words complained of, making it read: “Ton are instructed that, if you believe from the testimony in this case that Mary McGuire had built a fire under and around a wash pot in her yard, which fire had died down until only some coals or hot embers remained surrounding the pot, and that she undertook to rekindle the fire, placing some kindling wood under and around the pot, and that in starting the fire she took the can of fluid in controversy and poured the contents thereof on said kindling wood, coals and hot embers, and that while doing so the coals and kindling suddenly burst into flames which ignited the fluid in the can, resulting in the injury and death complained of, and if you further find that in so doing she• was not exercising ordmary care for her own safety, then you are told that the said Mary McGuire was guilty of contributory negligence, and plaintiffs cannot recover, and your verdict should be for defendants.”

The circumstances of this case are unlike those in the case of Magnolia Pet. Co. v. Bell, 186 Ark. 723, 55 S. W. (2d) 782, and the injured woman could not be charged with being guilty of contributory negligence as a matter of law, and no error was committed in modifying the instruction by the addition to it leaving the question to the jury.

Upon the whole case, the doctrine found in Pierce Oil Corporation v. Taylor, 147 Ark. 100, 227 S. W. 420, and Pierce Oil Corp. v. Taylor, 264 Fed. 829, justifies the finding that the appellants sold the dangerous fluid as and for kerosene or coal oil because of which, in the customary use of it, the explosion occurred causing the damage, notwithstanding that some of the facts are proved partially by circumstantial evidence and legitimate inferences. See also Waters-Pierce Pet. Co. v. Deselms, supra.

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


author: Mehaffy, J.

text:
    American Bonding Company v. Board of Street Improvement District No. 82.
    4-2977
    Opinion delivered April 17, 1933.

      Horace Chamberlin, for appellant.

      Murphy & Wood, for appellee.
   Mehaffy, J.

Street Improvement Districts Nos. 82 and 89 of Hot Springs, Arkansas, were duly organized in 1926.

In 1927 act 182 was passed, which was an act requiring all improvement districts in this State to require depositories of the funds of such improvement districts to give surety bonds for the full amount deposited. After the passage of this act, the Community Bank & Trust Company of Hot Springs, Arkansas, was designated as the depository of the funds of the districts. J. O. Langley was president of the Community Bank & Trust Comany, and was collector of both districts.

In 1927 the directors of each district applied to the Community Bank & Trust Company for a depository bond, and bonds were executed by the bank with the Home Accident Insurance Company as surety. These bonds continued in force until the insolvency of the Home Accident Insurance Company in 1930. In December, 1930, application was made to the American Bonding Company of Baltimore, and on December 15, 1930, the Community Bank & Trust Company entered into a bond, as required by statute, with the American Bonding Company of Baltimore as surety. Bond was made to each district. Each of the bonds provided, among other things, that “the condition of the obligation is such that, if the above boruiclen principal shall in due course pay, on legal demand made during the term of this bond all sums of money which the principal shall be legally bound to pay, then this obligation shall be void; otherwise of full force and effect.”

This is a statutory bond, and the statute is read into the bond. The statute provides that the bond shall be conditioned for the apt and full and complete payment of all funds so deposited, together with the interest thereon.

J. O. Langley, who was president of the Community Bank & Trust Company and collector for each district, also made a bond with the American Bonding -Company of Baltimore as surety.

The Community Bank & Trust Company, on November 30, 1931, became insolvent and closed its doors. At that time it had on deposit to the credit of Street Improvement District No. 82 the sum of $294.98, and to the credit of J. O. Langley, as collector of Street Improvement District No. 82, $946.88. Street Improvement District No. 89 had on deposit to its credit $402.11, and J. O. Langley, as collector of Street Improvement District No. 89, the sum of $2,040.25.

Each of the districts made demand upon the American Bonding Company for the payment of the amounts deposited to their credit, and also for the amounts deposited by J. O. Langley as collector for each of said districts. The American Bonding Company admitted liability for the amounts deposited in the names of the districts, and offered to pay these sums in settlement of its liability under its bonds. The districts refused to accept these amounts, and demanded that the bonding-company also pay the amounts in the name of J. O. Langley as collector of the districts. After the demand was made by the districts, the Bank Commissioner paid a dividend to all depositors, and dividends were paid by the Bank'Commissioner on these four accounts. Both districts brought suit in the Garland Circuit Court against the appellant and the Bank Commissioner.

District 82 did not bring a suit on its collector’s bond, and, when the dividends were paid, both districts had Langley to assign his accounts in the bank to them, and the dividends due Mr. Langley were paid to the districts. After suit was brought, the bonding company placed the amounts that were on deposit in the names of the districts with the clerk of the G-arland Circuit Court.

The appellant filed answer in each case and tendered the payments above mentioned, but contended that it was not liable for the amounts to the credit of the collector, and in District No. 82 pleaded the collector’s bond, which covers the exemption as to liability shown in said bond. It also alleged that it was not liable to either district for the collector’s deposits because they were his funds; that he was indebted to the district, and the bank indebted to him. After these pleas were filed by the appellant, the complaints were amended, making Langley a party defendant, and alleging that he had' no interest in the funds which he had on deposit as collector of the districts. Langley entered his appearance, filed answer, in which he alleged that he had deposited the money as an officer of the districts, and that he has no interest in the accounts, and that the funds belonged to the several districts. The undisputed evidence showed that the funds deposited by Langley as collector belonged to the districts, and that Langley had no interest in them.

The cases were consolidated and tried together, and the court, sitting as a jury by agreement, found that the funds to the credit of J. O. Langley as collector belonged to the districts, and that he had no interest in said accounts, except that he received and deposited said moneys as collector of the respective, districts.

Judgment was entered against the bonding company for all four amounts with interest, less 28 per cent, which had been paid by the Bank Commissioner. The case is here on appeal.

The evidence in the ease was an agreed statement of facts; the bonds and the testimony of Judge Wood and E. E. Steigler we do not deem necessary to set out in detail. The only question for our consideration is whether the bonds given by the depository as principal and the American Bonding Company as surety covered the deposits in the name of J. O. Langley as collector of the districts.

Bonds are to be construed like other contracts, and it is the duty of the court, if it can do so, to ascertain the intention of the parties. In arriving at the intention of the parties, where a statutory bond is given, it is proper to examine, not only the. bond itself, but the statute under which it is given, and all the facts and circumstances connected with the making of the bond. Ætna Casualty & Surety Co. v. State, 174 Ark. 988, 298 S. W. 501.

The bonds in this case recite: “Whereas the said Community Bank & Trust Company has been designated as a depository of funds of Street Improvement District No. 82, now therefore the condition of the above obligation is such that, if the above bounden principal shall in due course pay on legal demand made during the term of this bond all sums which the principal shall be legally bound to pay, etc.”

The bond given to District 89 is the same as that given for District 82. The statute under which the bonds were given states: “All other improvement districts of this State, both rural and urban, having in their charge the moneys and funds of such districts shall before depositing same in any bank, trust company, savings association, or with any other person or company, require of such depository a good and sufficient bond signed by some surety company authorized to do business in the State of Arkansas, conditioned for the apt and full and complete payment of all funds so deposited, together with the interest thereon.”

It will be seen from an examination of the statute that it includes all moneys and funds of the district which the depository has in its charge. There can be no question but what the bank had in its charge the moneys deposited by the collector of the district, as the money of the district, and, reading the statute into the bond, the surety undertook to pay all funds so deposited, etc. That necessarily means all the funds in charge of the depository bank belonging to the districts deposited in the name of the collector of the districts. The money might have been deposited by the treasurer, but it would then have been the funds of the districts, and, if deposited in the name of any officer of the districts in such a manner as to show that they were the funds of the districts, such funds would be covered by the terms of the bond.

The manner in which the funds were deposited in the bank did not in any way affect the rights or obligations of the surety, if they were so deposited as to clearly show that they were the funds belonging to the districts. Another familiar rule of construction is that, all the provisions of bonds or other contracts must be construed most strongly against the obligor who prepared the bonds, and in favor of the beneficiary. Ætna Casualty Co. v. State, supra; Consolidated Indemnity & Ins. Co. v. State use Craighead County, 184 Ark. 581, 43 S. W. (2d) 240.

The liability of a surety is measured by his contract, and the liability cannot be extended by implication, but a bond made by a paid surety, as in this case, is construed most strongly against the sureties, but, of course, it must not impose burdens not within the terms of the bond. Norton v. Md. Cas. Co., 182 Ark. 609, 32 S. W. (2d) 172; Consolidated Indemnity & Ins. Co. v. State use Craighead County, 184 Ark. 581, 43 S. W. (2d) 240.

We think that, when the statute is read into the bond, the surety became liable for all moneys deposited in the Community Bank & Trust Company belonging to the re=spective districts, and, if such moneys belonging to the districts were deposited in the bank, it was not material whether such moneys were deposited in the name of the districts, or the name of the collector, or the name of the treasurer, if they were so deposited as to show that they were the moneys of the districts. What the surety undertook to become liable for was the moneys belonging to these districts, which the principal had in charge.

There is no reason why the surety should not be liable for all the funds that were deposited in the bank belonging to these two districts.

The .judgment of the circuit court is affirmed.


author: Smith, J.

text:
    Arkansas State Highway Commission v. Keaton.
    4-3037
    Opinion delivered April 24, 1933.

      Hal L. Norwood, Attorney General, and Walter L. Pope, Assistant, for appellant.

      Lee & Moore and Coleman & Riddick, for appellee.

      Marvin B. Norfleet, amicus curiae.

   Smith, J.

Appellee brought this suit in the Pulaski Chancery Court against the State Highway Commission to recover the value of certain labor performed and materials furnished in the construction of three bridges on State Highway No. 1, more particularly described as Job No. 1-1059-S, and from a decree in his favor is this appeal.

The contract is similar in all essential respects to the one sued on in the recent case of Leonard v. State ex rel. Attorney General, 185 Ark. 998, 50 S. W. (2d) 598, and, like the contract there involved, is unenforceable as such, for the reason that it was not let in the manner and form prescribed by law. We said, in the Leonard case, supra, that the only question involved in that appeal, and the only question which we decided, was that of the validity of the contract sued on, and we held that it was not enforceable as a contract, for the reason that the statute had not been complied with in letting it.

In the later case of Arkansas State Highway Commission v. Dodge, 186 Ark. 640, 55 S. W. (2d) 71, suit was brought upon another similar contract to recover quantum meruit for the value of labor and materials furnished by the plaintiff in the construction of portions of the State highway system. A writ of prohibition was prayed against the chancellor presiding, upon the ground that his court was without jurisdiction to hear and determine the case. The writ was denied for the reason there stated “that the court below has jurisdiction to hear and determine the question of liability of the Commission, and its extent, for the work and material of which it has received the benefit. ’ ’ It will be observed that the direction to the court below was not to assess damages for the breach of a contract, for there was no contract enforceable as such, but to determine the value of the work and material of which the Commission had received the benefit.

In the case last cited we reviewed the conflicting views of the members of the court which resulted in a composite opinion authorizing suits against the Highway Commission, and, in that connection, said: “It will be seen that, out of the conflicting views of a majority of the several members of the court, a very definite result has been reached, i. e., that in a proper case the Highway Commission may be sued when authority for the bringing of the suit may be found in the statute. Since this is the effect of the holding in both the Dodge and Baer cases, supra, we think it more important that this question be definitely settled than a too firm insistence be held to our individual views, and we now hold that, in all cases where the statute authorizes a suit, it may be maintained against the Highway Commission, whether it be thought to be a juristic person or whether § 20 of article 5 (of the Constitution) be merely declaratory of the general doctrine that the State may not be sued in her courts unless she has consented thereto.” The opinion then oited the legislative acts under which this authority has been conferred.

At the time of the rendition of the opinion from which we have just quoted, it was a mooted question whether § 17 of act 15 of the Special Session of 1932 was valid legislation as being within the purview of the Governor ’s call convening the extraordinary session of the General Assembly at which act 15 had been passed. Acts of extraordinary session, 1932, page 34. Without deciding the validity of this section of act 15 we there said: “The question of the validity of this act is now pending, but, whether valid or not, it is an indication of the legislative will, but without it the authority sufficiently appears, and, if the act be upheld, it of itself makes absolute that intention.” This opinion was delivered on November 28, 1932, and on December 5, 1932, the opinion in the case of State Note Board v. State ex rel. Attorney General, 186 Ark. 605, 54 S. W. (2d) 696, was delivered in which it was expressly held that § 17 of act 15 was authorized by the proclamation of the Governor convening the extraordinary session of the General Assembly which passed the act. This § 17 recognized that there were outstanding many claims against the Highway Commission which had not been adjudicated or paid, and authorized the State Note Board to issue notes in payment, with the proviso, however, that “* * * this act shall not validate any claim, voucher, or warrant or other evidence of indebtedness issued under or pursuant to an illegal contract, and provided further that no note or notes shall be issued in lieu of any such claim in excess of $150 where such claim is based on a cost plus contract or a contract not let on competitive bidding until such claim is approved and the issuance of such notes are authorized by the State Highway Audit Commission, or until the validity of such claim is finally adjudicated and determined by a court of competent jurisdiction.”

We are aware of no legislation which has repealed § 17, supra, either expressly or by necessary implication, although the provisions of that section with respect to the manner of payment of these claims appear to have been changed by the provisions of act 167 of the Acts of the 1933 Session of the General Assembly, which was approved March 28,1933, and, having an emergency clause, became a law on that date.

The decree from which this appeal comes was rendered February 21, 1933, and directed the Highway Commission to issue a voucher to the plaintiff for the amount adjudged to be due him. The subsequent act 167 requires a modification of the decree in this respect, as the provisions of that act must be followed.

Section 1 of act 167 reads as follows: “The issuance of Arkansas State Bonds, hereinafter called State bonds, is hereby authorized in a total sum equal to the aggregate of the entire outstanding indebtedness of the State on account of the construction and maintenance of the State Highway system, including all State Highway notes or bonds, toll bridge bonds, revenue bonds, valid outstanding road district bonds on which the State has been paying interest under act No. 11 of the Acts of 1927 and act No. 65 of the Acts of 1929, hereinafter called road district bonds, certificates of indebtedness issued or authorized under act No. 8, approved October 3, 1928, and act No. 85 of 1931, short term notes issued under act No. 15, approved April 14, 1932, all valid claims against the State Highway Commission and all warrants and vouchers issued by the State Highway Commission prior to February 1, 1933, together with the interest on the respective obligations and claims. Such bonds shall be the direct obligation of the State, for the payment of which, principal and interest, the full faith and credit of the State and all its resources are hereby pledged. They shall be dated May 1, 1933, shall be payable in twenty-five years, and shall bear interest at the rate of three per cent, per annum, the interest to be payable semi-annually, and to be evidenced by attached interest coupons.”

Section 5 of act 167 reads as follows: “The holder of any State Highway note or bond, toll bridge bond, revenue bond, valid road district bond or short term note issued under act No. 15 may deposit the same with the State Treasurer for exchange for a State bond of equal face value. All other obligations and claims mentioned in § 1 shall be presented to and examined by the State Refunding Board, and, if allowed, may be presented to tbe State Treasurer, with the certificate of allowance, and exchanged for a State bond of the face value of the amount allowed by the board.”

The claim here sued on, being embraced in the provisions of § 5, supra, will be presented to the State Refunding Board, but, as its validity has been approved by a court of competent jurisdiction, prior to the passage of act 167 and that decree is affirmed by us, for the reasons hereinafter stated, the Refunding Board will, as to this particular claim, have only the ministerial duty to perform of certifying the claim for allowance for exchange for a State bond.

We have construed this act 167 because it relates to the manner of enforcing the decree from which this appeal comes, although the Attorney General says in his excellent brief that “The only question involved in this case is whether the State is under a liability to the appellee Keaton for materials furnished and services rendered under an invalid contract, or, what may be more properly termed, no contract at all.” The question is otherwise stated in this brief to be whether there is liability for the value of labor performed and materials furnished of which the Highway Commission has had the benefit, which cannot be returned or restored, under the doctrine of quantum meruit.

Through the diligence of counsel many cases have been cited and discussed on this subject. We do not review these cases, as the law of the subject appears to have been definitely and frequently decided, and the only difficulty is in the application of settled legal principles to particular facts.

In the instant case it is not contended that there was any fraud or corruption in the attempt of the parties to make a binding contract. Nor is the contract an immoral one; nor was it prohibited by law or public policy; nor was it in excess of the power of the Highway Commission to make. The contention is that the contract was not made in the manner and form provided by law and was therefore void, and, this being true, no enforceable rights can arise out of it.

In the class of contracts first mentioned which are immoral or illegal, or which are prohibited by law or public policy, or which are in excess of the power of the parties to make, it is immaterial whether the contract has been partially or wholly performed, or whether the consideration has passed or not. The courts lend no aid to the enforcement of such contracts. This subject was reviewed somewhat extensively in the case of Carter v. Bradley County Road Imp. Dists. Nos. 1 and 2, 155 Ark. 288, 246 S. W. 9, where recovery on a quantum meruit was denied for the reason that the plaintiff, to establish his case, was compelled to prove and rely on a contract prohibited by law.

The instant case arises out of an attempt on the part of the Highway Commission to contract with the plaintiff for the construction of bridges as a part of the State highway system. The law epapowering the commission to make and let the contract was not complied with, and for this reason only the courts will not enforce the agreement of the parties in relation thereto according to its terms. The Highway Commission had the power and was under the duty to have the bridges built. The law conferred this express power upon the Commission. The bridges were built, and the question is whether the value thereof shall be paid.

The case of Clark v. United States, 95 U. S. 539, was one in which officers of the Hnited States were authorized to enter into contracts upon behalf of the government, but the statute conferring that authority required that such contracts be reduced to writing and be signed by the contracting parties, which statute was there construed to be mandatory and in effect to prohibit and to render unlawful any other mode of making the contract; yet, the government having received the benefits of the contract, it was held, to quote a headnote in that case, that: “Where, however, a parol contract has been wholly or partly executed on one side, the party performing will be entitled to recover the fair value of his property or services as upon an implied contract for a quantum meruit.” See also Pulman Car Co. v. Transportation Co., 171 U. S. 138, 18 S. Ct. 808; Marsh v. Fulton County, 10 Wall. 676, 77 U. S. 676; Louisiana v. Wood, 102 U. S. 294; City of New York v. Davis, Director General of Railroads, 7 Fed. (2d) 566.

The case of Forrest City v. Orgill, 87 Ark. 389, 112 S. W. 891, was one in which the city purchased and installed a machine to be operated in connection with its waterworks system. The opinion in that case recited that: “This contract was not authorized by any ordinance, resolution or order of the city council wherein the yeas and nays were called and recorded, as required by § 5473 of Kirby’s Digest, nor was it ratified by any formal action of the city council. The contract was therefore void. Cutler v. Russellville, 40 Ark. 105.” But, immediately following this statement of fact, the court proceeded to say: “A different principle prevails, however, where a contract, which is within the power of the municipality to make, is made without authority, but passes from an executory state, as it was in Cutler v. Russellville, supra, to an executed one, where the benefit is retained by the municipality. Then it is held that the municipality cannot retain the property which might properly have been purchased for it in proper manner and defeat a recovery for the price thereof, or recover back the price if paid. Frick v. Brinkley, 61 Ark. 397, 83 S. W. 527; Springfield Furniture Co. v. School Dist., 67 Ark. 236, 54 S. W. 217; Book v. Polk, 81 Ark. 244, 98 S. W. 1049; Texarkana v. Friedell, 82 Ark. 531, 102 S. W. 374; School Dist. v. Goodwin, 81 Ark. 143, 98 S. W. 696; Luxora v. Jonesboro, L. C. & E. Rd. Co., 83 Ark. 275, 103 S. W. 605.” Numerous other cases to the same effect are cited in the brief of counsel for appellee and in the brief filed by amicus curiae.

We conclude therefore that, a benefit having been received which cannot be returned, which was derived from an agreement between parties having power to make it, which was neither illegal nor immoral, nor in violation of public policy, but which agreement cannot be enforced according to its terms because not made in manner and form provided by law, a recovery was properly permitted. The decree, modified in the respect hereinabove indicated, must therefore be affirmed, and it is so ordered.

Kirby, J., dissents.


author: Kirby, J.,

text:
    Bank of Conway v. Hiegel.
    4-2967
    Opinion delivered April 24, 1933.

      R. W. Robins, for appellant.

      Clark & Clark, for appellee.
   Kirby, J.,

(after stating the facts). In Taylor v. First National Bank of De Queen, 184 Ark. 947, 43 S. W. (2d) 1078, this court held that, where checks received in the ordinary course of business between respective banks, not for collection but for payment which they attempted to effect by charging them to the accounts of the depositors who had drawn them, and by delivery of the draft for the difference between the respective amounts of the checks, the relation of debtor and creditor arose between the two banks and not an agency or trust relationship.

It has been held, where the drawers of an order had funds in the hands of the drawee on its presentation, a waiver by the payee of a cash payment and an acceptance of a bill of exchange instead extinguish the debt, although the exchange proves worthless. Loth v. Mothner, 53 Ark. 116, 13 S. W. 594. See also Johnson v. First Bank, 144 Minn. 363, 175 N. W. 612, 9 A. L. R. 960; Fed eral Reserve Bank v. Malloy, 264 U. S. 160, 44 S. Ct. 296, 31 A. L. R. 261; Missouri Pac. Rd. Co. v. Taylor, 185 Ark. 211, 46 S. W. (2d) 642; vol. 1, Paton’s Digest, page 257, § 1566.

From these cases it will be seen that only the relation' of debtor and creditor arose between the two banks upon the clearance of checks and giving the bill of exchange in payment of the difference, and not an agency or trust relationship; and, the check being presented to the bank, not for collection, but for payment, the transaction amounted to a payment, so far as the drawers of the check, appellees, were concerned, and they are discharged, the drawer having funds in the bank to its credit, the check in effect having been paid by the drawee upon presentation, it being conclusively presumed that he did not accept something in lieu thereof for which it had not been drawn- — could not accept-at the drawer’s risk a check of the drawee upon some other bank.

No error therefore was committed in the decree of the chancellor, and it is affirmed.


text:
    Taylor v. Crawford.
    4-2944
    Opinion delivered April 24, 1933.

      Bridges, McGaughy & Bridges, for appellant.

      E. W. Brockman, for appellee.
   Kirby, J.,

(after stating the facts). It is insisted that the court erred in holding the claims of interveners for liens to be prior claims.

The testimony is virtually undisputed that W. E. Massey and the Merchants’ & Planters’ Bank & Trust Company furnished the tenants to work the lands rented from the interveners in 1930, and that the interveners did not waive their landlord’s liens for rent. That Massey executed a statement in writing, which was delivered to and accepted by the bank, showing the amount of rents due each respective intervener for rent upon his lands for that year, and that the landlord’s lien had not been waived thereon; that the bank, acting’ with Massey in pursuance of its oral agreement and with full knowledge o-f the interveners’ prior claims, furnished the money with which to make and' gather the cotton, and sold the crop off the interveners’ lands as alleged and received the proceeds of the sale thereof, agreeing to pay the rents out of such proceeds when collected; that the proceeds of the sales had not been remitted when the bank was declared insolvent, and said proceeds have had a distinctive identity in the hands of said bank, have actually increased its assets and did not result from shifting its liability from one of its creditors to another, and that the interveners at the time were not indebted to the bank.

No error was committed in holding the claims of interveners for landlord’s liens for rent as prior claims.

Section 1, act 107 of 1927, in describing the classes of preferred creditors on a bank’s insolvency, in part, reads as follows:

“(6) The owner of the proceeds of a collection made by said bank and not remitted by it, or of which remittance has not been paid, when such collection .was made otherwise than by honoring a check or other order upon said bank or by a charge against the account of the depositor of said bank, and the said collection has had a distinctive identity in the hands of said bank, has actually increased its cash assets, and has not resulted in merely shifting its liability upon its book from one of its creditors to another or new creditor.”

When the bank undertook to and directed the sale and disposition of the cotton grown on interveners ’ lands and collected the drafts drawn on the purchasers for the sale price and to pay therefrom the rents due and after-wards became insolvent and was taken over by the Bank Commissioner, all money coming into its hands as collections on the rents constituted preferred claims in favor of the landlords. Home Life Ins. Co. v. Taylor, 186 Ark. 768; Taylor v. Corning Bank & Trust Co., 183 Ark. 757, 38 S. W. (2d) 557.

It is true the appellees were not the owners of the cotton which the hank sold, but they had a lien thereon of which the 'bank had knowledge, and the appellees pursued the proper remedy to impress their liens on the proceeds of the crops raised on their lands which equity will fix on the proceeds in the hands of the bank. Judge v. Curtis, 72 Ark. 132, 78 S. W. 746; and Murphy v. Myar, 95 Ark. 32, 128 S. W. 359. In the latter case it was said: “The appellee had a lien on this cotton for the payment of the rent of the land; and, after appellants had, with notice of his rights, purchased the cotton from his tenant, and by sale had wrongfully converted it, the appellee had a right to fix his lien on the proceeds thereof in equity, and in the court to obtain judgment against appellant therefor.”

Appellees did not seek to enforce a lien against the property of the bank, but only to fix their statutory lien on the proceeds of the cotton raised on their lands, which cotton the bank took charge of and sold with notice of their lien.

Massey was operating under orders from the bank in making the sales of the cotton and having the collections made by the bank, and, while they were deposited in his account there in his name, he was restricted in his right to check on such account by stipulation that the checks would not be honored except for the payment of the rents on the lands due for that year.

It is true the appellees were not depositors in the bank, but it had full knowledge of the appellees’ first lien, undertook with Massey to sell the crops, the bank being allowed to make the collections, and necessarily increased its assets to the amount of appellees ’ rents, and afterwards closed its doors, ceasing to function, with the amount of appellees’ rents still in its possession. The bank recognized that the interveners had a prior claim for the payment of their rents due out of the amounts collected for the cotton sold, upon which they had a lien for payment of the rents, and honored all the checks drawn by Massey in payment of such rents out of such account and proceeds, having agreed to do so before the money was collected by them and placed in the account to Massey’s credit.

The bank knew that the proceeds of the sale of the cotton by it and credited to the account of Massey was subject to the payment of his check on such account for the rents of the lands or farms cultivated by him, as the bank also understood to be the case when the credit of the collections was made. The collections from the sale of the cotton had a distinctive identity in the hands of the bank, actually increased its cash assets, not resulting from merely shifting its liability upon its books from one of its creditors to another or to a new creditor, and, under the provisions of the statute and the circumstances of this case, the claims of the interveners, the claim of B. F. Hatley excepted as already stated, were entitled to priority of payment and the chancellor did not err in so holding. The decree is accordingly affirmed.

The B. F. Hatley claim, in the sum of $350, allowed by the chancellor in the sum of $199.07 as a prior claim, was barred by the six months ’ statute of limitations. The rent note was due November 15, 1930, and the landlord’s lien only continued for six months after the rent became due and payable, and, the claim not being filed until March 12, 1932, the lien was long barred and the claim not entitled to payment, and the court erred in not so holding. Section 6889, Crawford & Moses’ Digest. Cocke v. Clausen, 67 Ark. 455, 55 S. W. 846.

The decree as to the Hatley claim is reversed, and said claim dismissed.


author: Mehaffey, J.

text:
    Missouri Pacific Railroad Company v. Rodden.
    4-2981
    Opinion delivered April 24, 1933.

      R. E. Wiley and Henry Donham, for appellant.

      J. H. Lookadoo and Bush & Bush, for appellee.
   Mehaffey, J.

J. H. Rodden, by Ms next friend, O. B. Rodden, brought tMs suit in the Clark Circuit Court against the Missouri Pacific Railroad Company. The facts, as testified to by appellee, are substantially as follows:

J. H. Rodden, the appellee, was about 19 years of age, and, prior to the time he alleged he was injured, he was at work at Sparenberg, Texas, and was coming home from there. He was accompanied by Earl Lawley and another boy, from Kentucky. Jack Williams met up with them at Dallas, Texas. They had been catching rides on the highway until they got to Texarkana, Arkansas, about two hours after dark, and went down to the railroad yards. They found a man working on the engines, and asked him what time they could get a train out of there to Prescott, and he told them between one and two.o’clock in the morning of February 29th. He told them where to catch the train up at the road crossing. They thought he was a trainman because he was working in the yards. Between one and two o’clock in the morning they caught a freight train out of Texarkana going to Prescott. The appellee’s mother and father are dead, and he had been living with his uncle, O. B. Rodden, who brings this suit as his next friend.

There were about 65 or 70 cars in the freight train. They caught the train at the road crossing where the man working in the yards told them to catch it. They boarded the train on the east or right side. After they had gotten out of Texarkana a mile or two, a brakeman came from the direction of the engine and passed the appellee first. Appellee was on the back end of a car, and Lawley and Williams were on the front end of the next car behind him. The cars on which they were riding were 10 or 12 cars back of the engine. The brakeman passed appellee and then passed the other two boys and went on beyond them about 15 cars. When he came back by these two boys he Avas motioning to them and talking to them, and they reached in their pockets and handed him something. He then walked up to the car appellee was on and asked him what he was holding. Appellee told him he was broke and was going home; that he was hungry, and asked the brakeman to let him ride to the next stop. According to his testimony, the brakeman cursed him, and appellee told him he could not get off there Avithout killing himself, the train was going so fast. The brakeman again.cursed him and told him to get off or he would kill him. Appellee started down the ladder, and the brakeman stepped on his fingers. The brakeman hung his lantern on the door and kicked the appellee in the muscle of his right arm and paralyzed it, then kicked him in the head and chest. Appellee saw he was going to fall any way, and threw his head as far as possible. His foot struck a spike in the cattle guard. His head hit the ground, and about daylight he regained consciousness, and found that his boot was caught in the cattle guard. He pulled his foot out of his boot, and found the flesh clotted up.

The man that forced him off the train had on a hat, blue serge pants, blue jumper, and had a small lantern with a globe that was small at the top and big at the bottom. It had braces around it and protection bars. It was a regular railroad lantern.

Appellee’s chest hurt him so that he could hardly get a deep breath without pain; his knee was a little stiff, and there was a skinned place on it.

An automobile came by on highway 67 and the driver carried appellee to the Missouri Pacific Hospital at Texarkana. Appellee told the driver how he was hurt; that he was kicked off a freight train. The man that took him to the doctor explained how it happened. The doctor said appellee was not hurt much. He grabbed appellee’s foot, twisted the toe's back, took a pair of scissors, went around the gash and cut the flesh, put medicine on it, and wrapped it up, and told appellee it would be all right.

Prior to his injury, appellee was a pastry cook in a restaurant, but he got sick and decided to go home. He has.not been able to follow his occupation as a cook since he was injured. He cannot stand on his feet to work as he did before. He has not done anything since he was hurt.

He hitch-hiked his way from Sparenberg to Texarkana, and the reason he did not hitch-hike his way to Prescott was that he was broke and hungry, and wanted to get home and get something to eat. He did not buy a ticket because he did not have enough money. He was within fifty miles of Prescott and wanted to go on home.

The man in the yards that told appellee about the train was oiling an engine. The only member of the train crew that appellee saw when he got on the train was a man who caught the back end of the train, the caboose. Appellee was riding on a refrigerator car. The brakeman weighed from 140 to 170 pounds and was rather heavy-set. Appellee did not notice any badge on the brakeman, but noticed the way he was dressed, and that he was carrying a lantern. Appellee was unable to point out from the train crew which man it was who kicked him off.

The evidence on the part of the appellant contradicted the testimony given by the appellee. The jury returned a verdict in favor of the appellee for $2,000. The. ease is here on appeal.

The appellant contends that there is no substantial evidence to establish that appellee was ejected from the train by a brakeman.

Appellee testified that he was ejected by a brakeman. When asked how he knew it was a brakeman, he stated that he was dressed in blue overalls, wore a blue jumper, and was walking on top of the train from the front end towards the rear, and then walked back, and that he had a railroad lantern.

The conductor testified that, so far as he knew, there was no one on the train except employees of the railroad company wearing a railroad suit and carrying a lantern.

It is contended that there is no evidence to show that the party who kicked appellee from the train was a brakeman; no evidence that he was performing. any duties. The jury had a right to infer that the person dressed as appellee says this person was dressed, carrying a lantern and walking on top of the freight train, doing what brakemen frequently do, was a brakeman.

In the case of St. L., I. M. & S. R. Co. v. Hendricks, 48 Ark. 177, 2 S. W. 783, the court said: “It is not urged that there was a failure of proof except in this particular, vis-. That Cost and the other witnesses were not positive that the man whom they alleged was the cause of the injury was one of the company’s employees. Upon his examination in chief, the plaintiff testified that the man alluded to was a brakeman on appellant’s train, but on cross-examination he stated he did not know that to be a fact. He gave as the reason for his belief, however, that he saw the man on the platform at Cabot with a lantern, deporting himself as an employee; and James Jenkins, his other witness, who rode from Cabot to Little Bock on the train, and corroborated Cost’s statement of the accident, testified that the man acted as a brakeman on the train between these points.

“If the jury credited the testimony that the man was for such a length of time aiding the company in operating its train, it was sufficient to justify the conclusion that he was a regular employee. Indeed, it would be difficult, in the most of these cases, to prove the relation of master and servant except by the fact that the one is known to perform service for the other, or from their course of dealing.”

It would be difficult to make any direct proof that relation of master and servant existed between any one of the train crew and the railroad company. It is a matter of common knowledge that persons dressed as the appellee testifies this brakeman was dressed, carrying a lantern and walking on top of a freight train as this man was, is a brakeman, or in the employ of the railroad company.

The rules require the trainmen to prevent trespassers from riding on freight trains, and it is the duty of the trainmen, as the evidence in this case shows, to put such persons off the train. The rules of the company require them to do this.

It is true that the rules require the trainmen to put trespassers off the train when it is not in motion, but putting trespassers off the train is a part of their duty; and, if appellee’s testimony is true, that is what this man undertook to do. We think therefore that the evidence was sufficient to submit the question as to whether this man was a brakeman to the jury.

Appellant, however, says that, if appellee had sued any one of the trainmen jointly with the railroad company for the injuries which he sustained, the court would have been compelled to direct a verdict in favor of the individual trainman because there was no evidence introduced upon which a judgment against any one of the trainmen could have been sustained. That is true, because the appellee was unable to say which one of the train crew kicked him off the train, and, in order to get a judgment against any person for a wrong, the evidence must show that that particular person committed the wrong. But the suit is not against the trainman who committed the wrong, but against the railroad company, and there is no question but that the appellant is the railroad company whose employee committed the wrong. A person might be abused, kicked from the train by any one of the trainmen and be unable to say which one it was' when he sees them in court, dressed differently from the way they were at the time of the injury.

It is said that neither of appellee’s companions were called to testify. His two companions were on the freight train and w#re not put off. The evidence shows that Williams was from Kentucky, but does not show where Lawley was from, but they were both on the train, remained on the train when appellee says.he was kicked off, and they may or may not know what became of him. At any rate, the evidence is silent as to where they went and whether they 'knew anything about appellee’s injury.

It is next contended that there is no substantial evidence that appellee was ejected from the train by a brakeman within the scope of his employment. Appellant again relies on the Hendricks case, supra. The court in that case said on this question: “Whether a particular act was or was not done in the line of the servant’s duty is a question to be determined by the jury from the surrounding facts and circumstances.” The court further said in that case: “It was the legal right of the company to eject persons attempting to ride on its trains without paying fare, and the legitimate object of the testimony was to show that the right was commonly enforced through the class of employees that ejected the plaintiff. * * * The fact that brakemen commonly performed the duty of ejecting such persons from appellant’s freight trains afforded a reasonable presumption or inference that the brakeman who ejected the plaintiff acted in the line of his duty, if the jury chose to believe that he was ejected by a brakeman for the nonpayment of his fare.”

Appellant calls attention to and relies on the case of St. Louis, I. M. & S. R. Co. v. Pell, 89 Ark. 87, 115 S. W. 957. This case expressly approves the doctrine announced in the Hendricks case. If the person who kicked appellee from the train was acting in the course of his employment, the railroad company was liable.

“If he was, the company is liable in damages for any wrongful act of his in the course of his employment resulting in injury to another, though he exceeded his authority.” Ry. Co. v. Hackett, 58 Ark. 381, 24 S. W. 881.

If, under the rules of the company, it was the duty of the trainmen to eject trespassers from freight trains, and in doing this he exceeded his authority either by putting him off the train while it was in motion, or kicking him off, in either event the railroad company would be liable.

“A servant may do an act expressly forbidden by his employer, and yet, if it be within the scope of his authority, the employer may be liable for a resulting injury. This rule is constantly enforced in cases against railroads, electric light and gas companies, and it applies to private persons who employ servants to transact their business.” St. Louis, I. M. & S. R. Co. v. Grant, 75 Ark. 579, 88 S. W. 580, 1133; St. Louis, I. M. & S. R. Co. v. Robertson, 103 Ark. 361, 146 S. W. 482; St. Louis, I. M. & S. R. Co. v. Mynott, 83 Ark. 6, 102 Ark. 380; St. L. S. W. Ry. Co. v. Mitchell, 100 Ark. 314, 140 S. W. 136; St. Louis-S. F. R. Co. v. Van Zant, 101 Ark. 586, 142 S. W. 1144; Chicago, R. I. & P. Ry. Co. v. Womble, 131 Ark. 411, 199 S. W. 81.

Appellant cites the case of Ill. Central Rd. Co. v. Latham, 72 Miss. 32. That case seems to be not only against the weight of authority, but is in direct conflict with our decisions.

It is contended by appellant that the court erred in refusing to give its requested instructions Nos. 7 and 9. No. 7 reads as follows: “If you find from the evidence that J. H. Eodden was assaulted by one of the defendant’s employees while he was riding as a trespasser upon one of the defendant’s trains, still if you further find that such employee was acting outside of the scope of his employment and contrary to instructions of his employer when committing said assault, then the defendant is not liable and you should so find.”

That instruction is erroneous because it tells the jury, among other things, that, if the employee was acting contrary to his instructions, they must find for the defendant.

No. 4, given at the request of the appellant, covers everything in No. 7 except the statement about being contrary to instructions.

No. 9 reads as follows: “If you find from the evidence that J. H. Rodden was assaulted and ejected from the train by one of the defendant’s brakemen, and you further find that said brakeman assaulted the said J. H. Rodden and ejected him from the train because the said J. H. Rodden failed or refused to pay the brakeman to permit him to ride on the train, then your verdict should be for the defendant. ” No. 9 was correctly refused. If it was the duty of the trainmen to eject trespassers, the fact that the brakeman did this because appellee refused to pay would be immaterial.

It is next contended by appellant that the verdict is excessive. The evidence showed that the spikes stuck in appellee’s-foot; that his knee and chest were injured; that he is unable to do the work he did before he was injured, and that he still suffers pain. He was earning from $60 to $75 per month before the injury, and is now unable to do the kind of work he formerly did.

The facts above stated, we think, are sufficient to justify the verdict. Whether it was a brakeman who kicked the appellee off the train, and whether he did it while acting within the scope of his authority, are questions of fact, and were properly submitted to the jury.

If there is any substantial evidence to sustain a verdict, this. court cannot set it aside, although we might believe that it was contrary to the preponderance of the evidence. We do not pass on the weight of evidence nor the credibility of the witnesses.

The judgment of the circuit court is correct, and is therefore affirmed.


author: McHaney, J.

text:
    McRae v. Hammond.
    4-2984
    Opinion delivered April 24, 1933.

      Emmet Vaughan, for appellant.

      Glen H. Wimmer, for appellee.
   McHaney, J.

This lawsuit originated in the justice court, where appellant suffered defeat, was appealed to the circuit court with like result, and now it is here and must be affirmed. It arose in the following manner: George Wright Jones leased a sawmill at Des Arc. He had a customer in Memphis who desired to purchase two carloads of pecan lumber. Jones did not have the lumber nor any money with which to buy the logs to make it. Appellee Hammond had the timber and agreed with Jones to furnish the logs at the mill for $16 per thousand feet with the understanding that the labor and cost of the logs were to be first paid out of the sale price of the lumber before Jones was to have anything. Whatever remained over and above the cost of labor and logs was to go to Jones. The lumber was to be inspected and paid for in Des Arc before shipment. One carload was thus handled, but appellee did not get any pay for his logs. The second car was delayed in manufacture by a breakdown in the mill, and the inspector had to return to Memphis, so it was agreed that this car should be shipped subject to destination inspection. Later it was loaded, billed to purchaser, and, while on the siding awaiting transportation, was attached by appellant, a creditor of Jones. Appellee intervened, setting up his rights, and it was agreed that the car be delivered, the proceeds placed in 'bank pending a determination of the rights of the parties. The amount due appellee for logs exceeds the proceeds of the sale of the second car, and approximately all the proceeds of the first car was required to pay the labor and repair the mill.

Appellant’s contention is that the lien of his attachment is superior to appellee’s lien for the purchase money of the logs. We cannot agree with this contention. The only-equity Jones had in the lumber was the excess over the cost of the logs and the labor for manufacturing them. As we have already stated, there was no excess. The proceeds of the sale, after deducting $50 advanced to Jones by the purchaser, were insufficient to pay appellee for the logs. Appellant’s debtor, Jones, therefore had no interest in the second car which could he attached by appellant. „ The undisputed evidence is that appellee agreed to furnish the logs to manufacture the lumber, and that it was to be inspected by the purchaser and the logs paid for before the lumber left Des Arc. The court should have directed a verdict in appellee’s favor, as there was no question of fact to submit to the jury. And it can make no difference that the first car was shipped without paying appellee.

This makes it unnecessary to discuss the errors assigned in the giving and refusing to give certain instructions:

Affirmed.


text:
    Arkansas Trust Company v. Bates.
    4-2959
    Opinion delivered May 1, 1933.

      Murphy & Wood, for appellant.

      Jay M. Rowland, for appellee.
   Smith, J.

On April 27, 1926, S. P. Johnson entered into a written contract with Mrs. Georgia A. Bates for the conveyance of two certain lots in the city of Hot Springs. One lot was described as part of lot 27, block 27, fronting 75 feet on Spring Street, and its purchase price was recited to be $3,500, of which $1,750 was to be secured by a lien on the property sold, and the other half of the purchase money was to be secured by a mortgage on a lot on Cottage Street owned by Mrs. Bates. The second lot was described as part of lot 3, block 27, fronting 100 feet on Spring Street, and adjoining lot 2, and the price thereof was recited to be $6,000, of which $1,000 was to be secured by a mortgage on the Cottage Street lot. The contract of sale recited that “the said lien of $5,000 is to be paid at the rate of $1,000 per year until same is fully paid; and the $2,750 mortgage and the $1,750 lien on part of lot 2 is to be paid at the rate of $500 in two years and $500 each year until same is fully paid; or, at the option of the purchaser, may pay all of same on or 'before five years from date.”

Pursuant to this contract, a deed was executed on May 7,1926, by J ohnson to Mrs. Bates, in which the title was warranted to be clear of all incumbrances. At the time of the execution of this deed there was outstanding a lease from J ohnson to J. A. Porter covering the west half of lot 2, block 27, “for the term of ten years, to commence the first day of December, 1925, at the monthly rent of thirty dollars per month, payable the first day of every month.” The lease required Porter “to keep houses and place in good repair during the time of the lease.”

On September 14, 1927, Johnson conveyed to Mrs. Bates another lot adjoining the two above described, for the consideration of $4,066.50, of which $500 was paid in cash, the balance being secured by a vendors lien on the property sold. This last conveyance was an entirely separate transaction from the first.

Mrs. Bates made no payments on any of these purchase money notes, and on June 9, 1927, a suit was filed to enforce the payment thereof. This suit was brought upon the theory that an annual payment of $350 was due on the $1,750 note, and that an annual payment of $1,000 was due on the $5,000 note. A suit was later brought to foreclose the lien reserved in the second deed, and these suits were consolidated and tried together.

Mrs. Bates was advised of the outstanding lease after entering into the contract of April 27, 1926, but before the delivery of the deed, and knew that Portér was in possession of lot 2, but she was also advised that Porter would surrender possession on demand. However, she took a deed with full covenants of warranty against incumbrances, and it is not seriously questioned that this lease was an incumbrance which constituted a breach of the warranty. It is not admissible to show by parol evidence that a covenant against incumbrances was not intended 'by the parties to apply to a particular incumbrance, in the absence of fraud or mistake, where no exception to that effect is contained in the deed itself. Hardage v. Durrett, 110 Ark. 63, 160 S. W. 883, L. R. A. 1916E 211, Ann. Cas. 1915D 862; Musial v. Kudlik, 87 Conn. 164, 87 Atl. 551, 34 Ann. Cas. 1914D 1172; Crawford v. McDonald, 84 Ark. 415, 106 S. W. 206.

Upon the delivery of the deed, Mrs. Bates collected rent from Porter for the months of June, July, August and September, 1926, but in August of that year she gave Porter notice to vacate, and, when he refused to do so, she later brought suit to evict him. Porter later assigned his lease to B. A. Moore, and Mrs. Bates continued the effort to evict Moore.

At the time of the delivery of the deed to Mrs. Bates there were seven buildings on lot 2, of cheap construction, which some of the witnesses referred to as “shacks.” The other lots were practically unimproved. Porter and Moore, his sublessee, erected five other similar buildings on lot 2. There' was testimony to the effect that lot 2, containing the improvements, was more valuable than lot 3, and that the recital of a larger purchase price for lot 3 than for lot 2 was purely arbitrary, and that the real consideration was not $3,500 for the one lot and $6,000 for the other lot, but was $9,500 for the two lots. This testimony was competent, as the plaintiff in a suit for damages for breach of a covenant of warranty may show that the actual consideration was greater than that expressed in the deed, for the purpose of increasing the damages, just as the defendant may show that the consideration was less, for the purpose of reducing the damages, but not for the purpose of defeating the deed or a recovery on the covenant. Davis v. Jernigan, 71 Ark. 494, 76 S. W. 554; J. H. Magill Lbr. Co. v. Lane-White Lbr. Co., 90 Ark. 426, 119 S. W. 822; Bass v. Starnes, 108 Ark. 357, 158 S. W. 136. But we think this fact unimportant in this case, and we do not stop to inquire whether the testimony sustains this contention or not.

Failing to evict Porter and Moore, Mrs. Bates took possession of one of the buildings which she found vacant, and Moore caused her to be arrested for trespassing. There followed suits for false imprisonment and slander and certain other litigation, the merits of which we find it unnecessary to consider.

After much testimony had been offered, the court below rendered a decree, from which this appeal comes, finding that there had been a breach of the covenant of warranty. It was found also that Mrs. Bates had made no payments of purchase money except those recited in the deeds. The court canceled the lease to Porter, which had been assigned to Moore, for the nonpayment of the rent reserved, and held that Mrs. Bates was then entitled to the immediate possession of all the property, and there is no appeal from this part of the-decree. The court found the fact to be that the rental value of the property covered by the lease was $100 per month, and that Mrs. Bates was entitled also to a credit of $1,000 for attorney’s fees, and $55 for costs expended. There appears to be no question as to the amount of purchase money due, with the interest thereon, which the court found and decreed to be $14,858.23 on the date of the rendition of the decree.

The important question of fact in the case is the rental value of the property covered by the lease, which constituted a breach of the covenant of warranty, and we have concluded that the rental value as fixed by the court below is grossly excessive. The property had been rented prior to Porter’s lease for $20 per month, and that tenant had refused to renew the lease at the same amount. The rent reserved in the Porter lease was $30 per month, and, while this is not conclusive as to the rental value as against Mrs. Bates, it is evidentiary of the rental value. Missouri Pacific R. R. Co. v. Frost, 146 Ark. 472, 225 S. W. 645.

As appears from facts already stated, this litigation was pending in the chancery court for several years, and, during the two years immediately preceding the rendition of the final decree, a receiver was in charge of the leased property, and he reported that he had been able to collect during those two years only $7.33, and this he was allowed to retain as compensation for his trouble. It was shown that, while Moore was in possession, there was- a demand for this property, and, during what is known as the “season” at Hot Springs, the property had rented for as much as $180 per month. To earn this sum, however, required the entire time and attention of a manager, and the -most illuminating testimony on this subject was given by H. H. Hastings, who had been employed in that capacity by Moore. He had kept -books on the receipts from the leased property, and stated the expenses, including his own compensation, which were incurred to earn $180 during the “season.” These expenses included water, lights and laundry, but did not include repairs, which the tenant was required to make at his own expense. Hastings stated that there was a net profit of $45 per month, and we have concluded that, for the entire period during which the lease constituted an incumbrance, the rent should be computed at $40 per month.

On behalf of Mrs. Bates, it is insisted that she should be allowed credit for rent, not merely to the date of the rendition of the decree, but to the date of the expiration of the lease, and the case of Bass v. Starnes, 108 Ark. 357, 158 S. W. 136, is cited in support of that contention. It was there said: “It is true that ‘where the incumbrance is an unexpired term or lease, the general rule, at least in the absence of any special circumstance, is that the measure of damages will be the fair rental value of the land to the expiration of the term. The underlying principle is that the damages should be estimated according to the real injury arising from the existence of the incumbrance, which, in the case supposed, is presumably and ordinarily the value of the use of the premises for the time during which the vendee has been deprived of such use.’ Fritz v. Pusey, 31 Minn. 368, 18 N. W. 94; Rawle on Covenants for Title, (5 ed.) § 91. See also case note 35 L. R. A. (N. S.) 779.”

However, this lease had expired, as found by the court below, it being there adjudged that the lease had forfeited on account of the nonpayment of the rent, and the lessee and his assignee have not appealed from that adjudication. No rent can therefore be allowed since the rendition of this decree, its date being October 11, 1932, but credit should be allowed, at $40 per month, from October 1,1926, to the date of the decree.

The court allowed Mrs. Bates $1,000 for attorney’s fees, which we think was excessive. There was much litigation which had its origin in the facts herein stated, but which cannot be taken into account in determining the fee to be allowed her. The law is settled that, under a covenant to warrant and defend title, the covenantee is entitled to recover the costs and necessary expenses incurred in a bona fide defense or assertion of the title, including a reasonable attorney’s fee. Beach v. Nordman, 90 Ark. 59, 117 S. W. 785; Brawley v. Copelin, 106 Ark. 256, 153 S. W. 101; note to Beutel v. American Machine Co., 35 L. R. A. (N. S.) 781. But there is no authority for the payment of attorney’s fees in collateral litigation. We think a fee of $250 would he fair and reasonable, and the decree will be modified in this respect also.

The case of O’Bar v. Hight, 169 Ark. 1008, 277 S. W. 533, is not opposed to the view here announced. There damages were claimed in a suit for 'breach of warranty, these including the fee of an attorney in the sum of $326.50 and the court costs. In a suit to collect these damages, an additional fee of $250 was there asked and allowed. The court allowed both fees, but we held that the allowance of the $250 fee was error. So here Mrs. Bates should have credit only for a reasonable fee in the litigation directly involving the incumbrance upon the title. She will, however, be allowed the item of $55 which was allowed by the court below.

The decree is therefore reversed, and the cause will be remanded with directions to state the account between the parties in accordance with the views here expressed, and for further proceedings not inconsistent with this opinion.


author: Humphreys, J. Smith, J.,

text:
    Illinois Bankers Life Assurance Company v. Wilken.
    4-2973
    Opinion delivered May 1, 1933.

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

      J. F. Holtsendorff, Thos. C. Trimble, W. W. McCrary, Jr., and Thos. C. Trimble, Jr., for appellee.
   Humphreys, J.

Appellee brought suit against appellants in the circuit court of Prairie County, Northern District, to recover on a life insurance policy issued to Thomas G. Guidos on the 3d day of May, 1926, in consideration of the payment of an annual premium of $36.50, which policy contained a paragraph providing that the insured should have a right to deposit with the insurer, in addition to the annual premium required, the sum of $31.70 for the purpose of creating a saving fund which should bear 4 per cent, compound interest per annum and which was credited to the fund at the close of each policy year. It was alleged that Thomas G. Guidos died on September 25, 1931, at which time the policy was in full force and effect.

Defendants filed an answer denying any liability on the policy, alleging that same was forfeited for failure to pay the annual premium on May 3,1931, or during the thirty-day grace period that expired June 3,1931.

The cause was submitted to the court, sitting as a jury, upon the pleadings and testimony adduced by the respective parties, which resulted in a judgment against appellants for $2,461.70, $295.40 penalty, together with interest on the total amount at the rate of 6 per cent, per annum from date of judgment until paid, and an attorney’s fee of $350, from which is this appeal.

The annual premium on the policy was paid each year from the date thereof until May 3, 1931. The insured failed to pay the premium of $36.50 on that date. There was, however, on that date, to the credit of insured, accumulated savings in the sum of about $140, out of which the annual premium was payable. The insurer failed to apply any part of the savings fund to the payment of the premium. On the 8th day of May, 1931, the insured wrote to the insurer as .follows:

“Gentlemen: I want to cash in all of my accumulated saving’s fund which I can cash in up to date. Please send it as soon as possible.”

In answer, the insurer wrote as follows on May 15, 1931:

“We have your letter of May 8, 1931, relative to our above-numbered policy. Your policy has a savings accumulation of $140, which is subject to withdrawal. Have you, however, considered the advisability of leaving this money to the credit of the policy to pay premiums if the need arose ? There might be an occasion when you would find it impossible to pay premiums, and in that case the savings fund could be used for that purpose, thus keeping the policy from lapsing and maintaining for you an insurance protection which would otherwise be lost. If you find that you must withdraw this money, you may execute and return the inclosed request for withdrawal of saving’s form, and we will send you the money. On the reverse side of this form please indicate how you wish to continue your policy in the future.”

The insured executed and returned the form for withdrawal and received a check inclosed in the following letter, dated June 4, 1931:

“According to the request for withdrawal of savings form which you returned to this office, we are inclosing herewith our check, No. 12969, for $140, which refunds to you the savings fund accumulation to the credit of your above-mentioned policy. Will you please advise us as to how you wish to continue your policy in the future in accord with the three options set forth in our letter of May 15? We are glad to have been of service to you in this instance and shall be pleased to administer to your insurance needs in the future. ’ ’

The policy contained a grace period of thirty days, in which the premium might be paid after the due date. It also contained two clauses relative to the application of the accumulated savings fund to the payment of the annual premium as follows:

. “(c) Should the insured fail to pay any premium on this policy when due, the savings fund' accumulation to the credit of this policy shall, without action on the part of the insured, be applied to such premium so long as the amount of the savings fund to the credit of the policy shall be sufficient to pay two quarterly premiums.”
“(f) There shall be no obligation on the part of the association under provisions (c) or (e) as recited above, except to apply the accumulation to the credit of this policy to the payment of premiums as they fall due and to mail to the insured a receipt for each premium paid thereunder.”

The judgment of the trial court was based upon the finding that, under clauses (c) and (f) in the paragraph entitled “savings fund” in the policy, it was the duty of the insurer to pay the annual premium of $36.50 on May 3, 1931, out of the accumulated savings. The appellant contends that, under the clauses, no duty rested upon it to apply any part of the savings fund to the payment of the annual premium until the expiration of the 30-day grace period, which would not be until June 3, 1931. The language of the clauses is too plain to bear such a construction. They plainly state that such duty rests upon the insurer when the premium falls due. There can be no question that the premium became due May 3, 1931. The grace period of 30 days was a privilege extended to the insured to pay the same after maturity. If the intention had been to make the application at the expiration of the 30-day grace period, unambiguous language could have been employed to express such intent. Certainly, it cannot be said that the use of the words “when due” in clause (c) and “as they (premiums) shall fall due” in clause (f) meant some other date than the maturity date. Under clause (e), the insurer obligated itself to make the application on the due date without any action on the part of the insured.

“The rule is that insurance companies cannot declare forfeiture of policies for the nonpayment of premiums when they have sufficient funds in their hands belonging to the insured to pay the premium, and the duty rests upon them to use the funds to pay the premiums and thereby prevent forfeitures.” Security Life Insurance Company v. Matthews, 178 Ark. 775, 12 S. W. (2d) 865. So, even if the contract had not provided for the application on the due date, the law would have made the application. There was ample in the savings fund to pay the premium on the due date. The subsequent-withdrawal of more than the insured was entitled to did not and could not work a forfeiture of the policy. The insured, in the letter of date May 8, 1931, did not ask to withdraw more than he was entitled to. No specific amount was requested. He only requested to withdraw all he could withdraw. The amount thereof was left to the insurer, and the fact that it sent more than it should have sent cannot work a forfeiture of the policy. When it sent the check on June 4, its letter did not contain a statement that the policy had been forfeited by failure to pay the last premium, but, on the contrary, it contained an interrogatory to the insured as to what arrangement he intended to make about the payment of his future premiums.- If the policy had then been forfeited by reason of the insured’s failure to pay the premium due on May 3,1931, it would not have propounded such an interrogatory to the insured. Appellant simply made a mistake in overpaying the insured, and cannot take advantage of its mistake to declare a forfeiture of the policy and thereby avoid the payment thereof.

No error appearing, the judgment is affirmed.

Smith, J.,

(dissenting). The policy sued on contained a table showing the amount of the savings accumulations at the end of each year it had been kept in force. The insured not only had this information, but he was advised that this value at the time of the correspondence was $140. The premium was due May 3, with thirty days grace. Did the insured write, on May 8th, that he intended to -withdraw his savings, less the premium then due but not delinquent? He did not. He stated that' he wanted ££to cash in all of my accumulated savings fund which I can cash in up to date,” and that he wanted this money as soon as possible. Is there any indication that he wished to pay the premium then due and have the balance remaining sent him? The insurer did not so interpret this letter; nor do I.

The reply to this letter told the insured how much he might withdraw, but urged him not to do it. Still urging the insured to keep the insurance in force, the letter inquired how he would do so if he withdrew his accumulations.

The letter from the insurer failed to persuade the insured not to withdraw his accumulations, and he executed and returned the form for withdrawal, and received a check for the full amount of the accumulations, which was enclosed in a letter' advising him that the check “refunds to you the savings fund accumulations to the credit of your above-mentioned policy.” Can the insured, or his beneficiary, now be heard to say that he did not know that the plain and unequivocal direction contained in his first letter had been complied with? He had asked for “all of my accumulated savings,” had been told what they were, and had been advised not to withdraw them. But he had the right to do this, and he did it, and, having withdrawn and appropriated these savings, he could not expect his premium to be. paid with the money thus withdrawn and appropriated.

Now, this policy did contain clause (c), set out in the majority opinion, and it was there provided that, “without action on the part of the insured,” the savings fund accumulation should be used to pay premiums. What does this language mean? Plainly that, if the insured did not otherwise direct, the accumulations would be applied to premiums so long as they sufficed to pay them. It certainly did not mean that the accumulations were to be so used when the insured had otherwise directed, that direction being to send him the money, and to do so at once. Certainly, he could not withdraw the money and pay the premiums with it, too, no more than he could eat his pie and have it, too.

The insurer made no mistake. It only paid the insured what.he was entitled to withdraw, and had the right to demand, and what he did demand, and did receive.

I therefore dissent, very respectfully, but very earnestly, and am authorized to say that Justice McHaney concurs in this dissent.


text:
    Chicago, Rock Island & Pacific Railway Company v. Glascock.
    4-2998
    Opinion delivered May 1, 1933.

      Thos. S. Buzbee and Geo. B. Pugh, for appellant.

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

(after stating, the facts). It is first insisted that the court erred in not requiring appellees to make a cost bond upon its motion made during the trial. The motion for cost bond, however, is not shown in the record, nor that any exception was saved to the ruling of the court thereon, nor was the failure to require the giving of the cost bond set out in the motion for a new trial; and this objection therefore cannot be considered here.

In addition, the plaintiffs alleged in their complaint that they were residents of the State of Arkansas, and there was no denial thereof. The motion was not made until after the trial had been proceeded with, the jury impaneled, and part of the testimony heard; and the testimony on the point cannot be said on the whole to have established nonresideney anyway.

It is next contended that the court erred in giving appellees’ requested instruction No. 1, objected to, which was written in three different paragraphs. No specific objection was made to any of them, but only a general objection was made to the instruction as a whole. At least two of the clauses are correct statements of the law, and conceding, not deciding, the other incorrect, since the instruction was not wholly wrong, the defect should have been reached by a specific objection and not a general one. No error was committed in giving it. Darden v. State, 73 Ark. 315, 84 S. W. 507; St. Louis I. M. & So. Ry. Co. v. Barnett, 65 Ark. 255, 45 S. W. 550.

Appellant’s requested instruction No. 2 contained the language that ‘ ‘ such employee wilfully by threats or violence or by violence caused said Floyd Glascock to get off the train while it was running, etc.,” submitted the same question to the jury as was objected to by appellant in appellees’ said instruction No. 1; and, haying concurred in the error complained of, if it was error, waived it and cannot now complain here. St. L., S.-F. Ry. Co. v. Vaughan, 88 Ark. 138, 113 S. W. 1035; Wisconsin-Arkansas Lumber Co. v. Ashley, 158 Ark. 379, 250 S. W. 874.

The undisputed testimony shows that this appellee, Glascock, and his companions were around the station at Haleyville, intending to ride free on the freight train going out of there. They acquired information from the trainmen about the time it would leave. They had seen the special agent, whose duty it was to protect the train from trespassers or persons who might break into the cars, and he had told them not to get on the train. That they had caught the train; and three witnesses testified that the special agent, by intimidation and fear by threatening to shoot them off the train, forced them to leave it at a dangerous place, and, as a result of the fall therefrom, two of the boys were very severely injured. The special agent knew where the trestle was, and. the three boys, one of whom was not forced from the train, saying he could not leave it because of the trestle, notwithstanding which the special agent walked a few steps, threw his flashlight into the eyes of the other boys and forced them to jump from the train while it was moving on the trestle, and the agent knew such to be the case.

It is true he denied that he had gone on top of the train at all or made any threats or had anything to do with ejecting the boys from the train, and two other witnesses corroborated him about his having remained in the cab of the engine all the way from Haleyville to the next station, but the jury believed the testimony of appellees, and it is ample to sustain the verdict, which is not claimed by the appellant to be excessive.

The injury having occurred within the State of Oklahoma, the laws of that State govern as to the liability, if any, but the remedy to recover damages on account of the injury must be pursued according to the law of this-State where the suit was brought. St. L.-S. F. Ry. Co. v. Coy, 113 Ark. 265, 168 S. W. 1106; St. L., I. M. & S. Ry. Co. v. Hesterly, 98 Ark. 240, 135 S. W. 874.

The Oklahoma courts have held that it is unnecessary to show actual physical violence and assault to sustain an action for wrongful ejection of a trespasser and “that, if by threats and show of force he (the conductor) impels one through fear to jump from the moving train, and injury results, the -master will be liable.” Folley v. C. R. I. & P. Ry. Co., 16 Okla. 32, 84 Pac. 1090; see also 52 C. J. 638-39; Kansas City F. S. & G. Rd. Co. v. Kelley, 36 Kan. 655, 14 Pac. 173; Kline v. C. P. R. Co., 27 Cal. 400, 99 Am. Dec. 282; Pierce v. North Carolina Ry. Co., 124 N. C. 83, 32 S. E. 399; St. Louis-S. W. Ry. Co. v. McLaughlin, 129 Ark. 377, 196 S. W. 460; see also Missouri Pac. Rd. Co. v. Rodden, ante p. 321.

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


text:
    Wasson v. Castetter.
    4-2975
    Opinion delivered May 1, 1933.

      Archer Wheatley, for appellant.

      Horace Sloan, for appellee.
   Kirby, J.,

(after stating the facts). The only question for determination involved in this appeal is, whether one who has purchased bank stock by giving a note in payment therefor can defeat an assessment thereon eleven years later after having renewed the note twenty-two times and used the dividends thereon for the payment of interest on the note, and further having permitted his name to appear as a stockholder of the bank on the records of the county for eleven years.

The action of the Bank Commissioner under the statute is conclusive as to the necessity for the levy of the stock assessment and cannot be disputed or defended against by the stockholder of the failed bank. Davis v. Moore, 130 Ark. 128, 197 S. W. 295; Aber v. Maxwell, 140 Ark. 203, 215 S. W. 389; Fee v. Taylor, ante p. 204.

Appellee insists that the sale of stock to him was void, it being made on a credit and not “for money or property actually received or labor done, ’ ’ as required by the Constitution, § 8, art. 12; and that this court has already determined the question in Taylor v. Gordon, 180 Ark. 753, 22 S. W. (2d) 561, wherein it held that the purchaser of such stock or owner thereof is not subject to liability to the payment of the double stock assessment levied against it by the bank commissioner.

Section 8, article 12, of the Constitution provides: “No private corporation shall issue stocks or bonds, except for money or property actually received or labor done, and all fictitious increase of stock or indebtedness shall be void; nor shall the stock or bonded indebtedness of any private corporation be increased, except in pursuance of general laws, nor until the consent of the persons holding the larger amount in value of stock shall be obtained at a meeting held after notice given for a period of not less than sixty days, in pursuance of law.”

The statute, § 702, Crawford & Moses’ Digest, authorizing the assessment against stock by the Bank Commissioner, reads:

“The stockholders of every bank doing- business in this State shall be held individually responsible equally and ratably, and not one for another, for all contracts, debts and engagements of such bank to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in .such stock; provided that persons holding stock as executors, administrators, guardians or trustees shall not be personally subject to liability as stockholders, but the estates and funds in their hands shall be liable in like manner and to the same extent as the testator, intestate, ward or person interested in such trust fund would be, if living and competent to act and hold the estate in his own name.”

Upon the regular increase of the bank’s stock so many shares were sold to appellee for a certain amount, and the stock was issued to him, indorsed and given with Ms note to the bank for the amount of the purchase money, the certificates of stock being pinned to the note and held as collateral for its payment. The dividends thereafter upon these certificates of stock were paid to the holders thereof, and the note given in payment of the purchase money was renewed twenty-two times; and appellees were shown as stockholders in the bank upon the records of the county as required by law to be kept. They made no effort to repudiate the validity of the transaction until this suit was brought to collect the stock assessment duly levied against stock of the insolvent bank, of which they were the legal owners as shown upon the books of the bank and the records of the county.

The statute fixes the responsibility of the stockholders in the bank “for all contracts, debts and engagements of such bank to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such stock;” and they appeared as stockholders, the stock standing on the books of the bank in their names, having been indorsed 'by them and delivered to the bank as collateral security for their notes executed for the purchase of said stock, and also on the county records as such stockholders; and, as between them and the creditors of the bank for whose protection and benefit the statute was made, they are estopped to deny under such circumstances that they were stockholders and are liable to the payment of the assessment as provided by statute. 3 R. C. L. “Banks,” § 29, page 399; Madison v. Dent, 176 U. S. 521, 20 S. Ct. 419; Aber v. Maxwell, supra; Commissioner of Banks v. Cosmopolitan Trust Co., 253 Mass. 205, 148 N. E. 609, 41 A. L. R. 658.

These cases differ from that of Taylor v. Gordon, supra, and are not controlled by the decision therein.

From the views herein expressed, it follows that the court erred in overruling the demurrer and dismissing the complaint, and the cause will be reversed and remanded with directions to sustain the demurrer to the answers, and render judgment for the amount of the assessments sued for. It is so ordered.