text:
    Griffin v. Eustice.
    Opinion delivered October 29, 1923.
    1. Mines and minerals — methods op mining coal. — Under a lease of coal lands providing- that the lessee should open up all mines on the lands according to the most modern and approved method of coal mining, the lessee could abandon the shaft method and adopt any other method of mining, so long as such mining was according to the most modern and approved method of coal mining.
    2. Appeal and error — conclusiveness op chancellor’s finding.— Where evidence is so conflicting that the preponderance cannot he determined, the chancellor’s findings will he adopted.
    Appeal from Johnson Chancery Court; W. E. Atkinson, Chancellor;
    affirmed.

      Hugh Basham and Webb Covington, for appellant.
    Appellees wilfully and recklessly destroyed the mine, dismantled the tipple and removed machinery, in violation of the agreement. The case made here is much stronger than the one at 86 Ark. 489. Appellant was clearly entitled to the relief he sought, that is, the protection of all equitable rights and damages sustained by wrongful acts of appellees in wrecking and abandoning the mine, under the doctrine announced in 150 Ark. 169.

      Patterson & Bag on, for appellee.
    The right to mine involves the right to penetrate the surface of the soil for minerals and remove them in the manner most advantageous, using modern methods in performing the work. Barrington & Adams, Law of Mines, par. 177. Stripping is mining, and the kind most practical in the territory involved. A court of equity will not interfere on behalf of the party entitled thereto, and enforce a forfeiture, but will leave the party to his legal remedies, if any, even though the case might be one in which no equitable relief would be given to the defaulting party against the forfeiture. Pom. Eq. (3rd ed.) vol. 1, par. 459; 93 Ind. 456, 57 A. 1075; 81 S. W. ÍMo.) 169; 69 N. W. 157; 111 Fed. 284; 53 N. J. Eq. 46. The case at 86 Ark. 489 is not like the present.
   Wood, J.

This is an action by tbe appellants against tlie appellees to declare a certain lease forfeited and to recover damages alleged to have been sustained by the appellants by reason of alleged wrongful acts of the appellees in destroying a certain coal mine and in dismantling the tipple, removing the machinery from the mine, in violation of the terms of the original lease under which the appellees hold as sub-lessees. The appellants sold a certain tract of land in Johnson County, reserving in their deed the coal underlying the tract and the right to mine and remove the same. On the 29th of May, 1918, appellants leased the coal and the right to mine the same to appellee, Elizabeth Eustice. She sank a shaft, as by the terms of her lease she was required to do, and proceeded to develop the mine. The shaft was about 34 feet deep. Mrs. Eustice assigned her lease to the North Spadra Coal Company, one of the appellees. It operated the mine under its lease for about two and a-half years. The development work done by the coal company consisted in running an entry in a westerly direction for a distance of about 500 feet, from which entry rooms were turned off and driven north toward the' crop line. A slope was driven south and southwest and rooms turned. In the fall of 1920 the coal company sublet the mine to appellees, Werner & Dunlap. The equipment at the time Werner & Dunlap took over the property under their lease consisted of tipple, breakers, scales, boiler and engine-room, pit-cars and such other machinery, tools - and appliances as were necessary to the successful operation of the mine. The lease from the coal company contained a provision giving the sub-lessees, Werner & Dunlap, the right to strip and remove the coal under the lands for such period of time as the lessees were able to operate the mine in such manner as to derive a profit of at least one dollar per ton for the coal mined or stripped therefrom. The lease was made subject to prior leases, among them the lease from appellants to Elizabeth Eustice, which leases were made a part of the lease contract from the coal company to Werner & Dunlap.

The original lease from appellant and wife to Elizabeth Eustice leased the property to Mrs. Eustice for a period of fifteen years, and if, at the end of that period, the provisions of the lease had been complied with, the lessee had the right to renew the same for an additional period of fifteen years, “for the purpose of mining the coal lying under the land and removing the same.” It was provided that the lessee should begin at once sinking a shaft and opening and developing a mine on said property, and that she should diligently prosecute such work until a mine is properly opened and in operation. The lessee was to pay 12% cts. per ton. She was to pay $100 the first year as a minimum royalty, $150 the second year, and $250 the third year and each year thereafter'. It was provided that the lessee should open all the mines according to the most modern and approved methods of coal mining, and at all times keep and maintain the same in good condition for safe mining and so as to pursue the mining of coal under said lands-within said mines with entire safety and economy. The lease further provided that the lessee or his assigns, when the lease was terminated, should deliver the mines in good working condition and leave the tracks and tracking and the pumps and shafts and air-shafts and all the houses connected with the mines, and air-course and entrance, in good condition. The forfeiture clause was as follows: “A failure of the second party or assignee hereof to pay the royalty on the coal mined for three months, or to pay the minimum royalty agreed upon, or should the second party, for any cause, cease to operate said mine or mines for a period of six months, then this lease shall, except in cases of strikes or unavoidable accident, upon written notice from party of the first part, his heirs or assigns, become forfeited at once, and all rights of the second parties hereunder cease, and the mine and property leased revert to the party of the first part, his heirs or assigns.”

There is a further provision that, in case the mine was not operated for one year or for one coal season,so as to produce the tonnage as specified, and in case the minimum royalty was not paid for any one year as specified, then the lease should forfeit, without notice to the lessee. There was also a provision that, if the lessee failed to pay the royalty on the coal mine for three months, or fo pay the minimum royalty agreed upon, or for any cause cease to operate the mine or mines for a period of six months, except for strikes or unavoidable accident, then, upon written notice to the lessee or his assigns, the lease shall he forfeited. The minimum royalty was to be paid quarterly. There is a further provision in the lease that, in case of forfeiture, or at the termination of the lease, if all mineable coal had not been removed from the lands, the lessor should have the exclusive right to use and occupy all surface lands bought or leased by the lessee, or his assigns, also all surface tracking and track used in stocking coal, until the lessor or his assigns had mined the coal from' the lands, provided the same was done within thirty years from date. For the use of these surface privileges and rights, the lessor was to pay the lessee dr his assigns the sum of $10 per ton.

The appellants, in their complaint, set out the provisions of the above lease to Mrs. Eustice, and alleged that, by the terms of the lease under which the appel-lees claimed, the Eustice lease was made a part of their lease contract, and set up that the appellees had wholly failed to comply with the provisions of the lease and had thereby forfeited all rights thereunder. They specifically alleged that the appellees had not opened up and developed the mine according to modern and approved methods; that they had pretended to open for the past coal season so as to produce the minimum royalty called for in the lease that they had ceased to work the mine they had opened, and wholly abandoned the same; liad removed the machinery and pumps, and torn down part of the tipple; also, had torn down the pillars and removed the machinery and equipment; had torn down and destroyed the tipple and abandoned the mine, and permitted it to fill with water. That, if they had carried out their contract and mined the coal which cannot now he mined, appellants would have received a net profit from the mining of such coal in the sum of $1,500; that, by reason of the destruction of the mine and depriving the appellants of the use thereof, they had damaged appellants in the sum of $10,000; and that, by failure to pay the royalties, they had damaged appellants in the sum of $500; that appellants’ aggregate damages by reason of the failure of the appellees to comply with their lease contract was $12,000, for which they prayed judgment.

The appellees categorically denied all the material allegations of the complaint concerning their failure to carry out the provisions- of the lease. They alleged that they had continuously operated the mine to the satisfaction of the appellants. They averred that they endeavored to operate the mine by the sinking of a shaft and taking the coal from underneath the surface, but learned from experience and observation that the mine could be more profitably operated by stripping the surface and removing the coal in that way; that, by consent and with the full approval of the appellants, the appellees undertook to experiment and test the method of removing coal in this way, and, after having trouble about getting permission to remove the surface, which at that time was owned by R. H. Morrison and not by the appellants, the appellants offered their services to adjust and remove the surface troubles, and agreed that the appellees should take the coal out by stripping instead of through the shaft. They averred that the taking of the coal by the stripping method yielded thirty per cent, more royalty to the appellants than by the shaft method. They set forth that the appellant Griffin, about October 1, 1920, realizing the advantages to .appellants by mining the coal through the stripping method, went into the mine and instructed the mining foreman, who was then mining coal under a contract with the appellees, to what extent he should pull the pillars and roof supports in order to facilitate the mining of coal by the stripping method when such method was begun. They alleged that, after they began mining by the stripping method, appellants'’ royalties greatly increased to such an extent that they received more royalties in one month than they had received béfore for a whole year. They further set up that the deep coal underneath the land in controversy had a slate parting from four to six feet in thickness which made the mining by-shaft prohibitive; that the mineable coal on the land ranged in depth from twenty-one to eight feet from the surface, and that it was not practical to mine the same through a shaft. They also averred that they were then mining the coal according to the best methods which were accepted and approved by the appellants, and that the real purpose of appellants in seeking'to have the lease forfeited was, not. because of any objections to the methods pursued by the appellees in mining the coal, but solely for the purpose of depriving their immediate lessor, Mrs. Eustice, of the royalties due her under her contract with the appellees.

The above are the material issues raised by the pleadings and the provisions of the written leases. After hearing the evidence adduced by the respective parties to sustain their contentions, the chancery court entered a decree in favor of the appellees, from which is this appeal.

The appellants contend that, under the terms of the original lease from appellants to Mrs. Elizabeth Eustice, the appellees were not authorized to pull the pillars in the shaft mine, drag down the air-courses, pull the irons, cut the cables to the cages, strip the tipple, remove all machinery, tools and appliances, permit the mine to cave in and fill with water, and, in fact, to destroy the mine. We thoroughly agree with the appellants in the contention that the appellees, under the terms of the original lease, which is made a part of the lease contract under which appellees hold, would not be authorized to do the things above enumerated if the doing of those things were tantamount to a destruction of the mine. The original lease contemplated that the lessee and her assigns should “open up all mines placed on the lands according to the most modern and approved method of coal mining.” While this lease provided that the lessee should at once begin the sinking of a shaft and open and develop the mine, there is no provision anywhere in the lease restricting the mining of coífi on the lands in controversy to the shaft method. On the contrary, the lease, when considered as a whole, shows clearly that it was contemplated by the parties that the mines should be opened up and developed, as is expressed therein, “according- to the most modern and approved methods of coal mining.” If the original lease had, in express terms, limited the lessee to mining coal by the shaft method, then, unquestionably, the appellees would have been compelled to pursue that method; but, in the absence of such limitation, the lessee had the right to proceed to mine the coal “according to the most modern and approved methods.” Barrington & Adams, Law of Mines, p. 177.

The testimony of appellant Griffin tended to sustain the allegations of appellants’ complaint that appel-lees had torn all the props and pillars down in ' the' mine; that the mine was full of water, and that they had removed part of the tipple, the pump, scales, motor and machinery, and that it had been twelve months since they had operated the mine; that they had not paid the royalties according to contract, and that appellants had complied with the contract on their part in notifying the appellees that the lease was forfeited. Appellant Griffin testified that he had not in any manner consented to the acts complained of. They had abandoned the mine without his permission. He conceded that he gave his consent for the lessees to pull some pillars nest to the crop line north of the main entry, going west. .This was given on the representation of the lessees that the pulling of such pillars would .not interfere with the workings in other parts of the mine, and upon the further representation that, unless these pillars were pulled, it could never be mined. He told the appellees that he wouldn’t give permission to do anything that would destroy the mine or' any part of the mine, or interfere with getting out of coal, hut told them that they could remove the props next to the crop line where it was caving in and covering the track, if it didn’t injure the mine. Griffin stated that he was a farmer, ignorant of mining, and he informed appellees of that fact, and, when they showed him where it was caving and informed him that it was necessary to remove certain props and supports, he told appellees that he didn’t see anything wrong in moving the track and pulling the pillars where it was'caving; that Esch, the mining foreman of the appellees, informed the appellant that all the track could be used on the other side of the mine where there was other coal.

There was testimony on behalf of the appellants to the effect that the appellees had a contract with Esch to put coal on top of the mine at $4 per ton, .and'that this contract provided for the pulling of pillars and stumps in the mine; that Esch’s contract was to expire in six months, and didn’t state anything except that Esch was to pull pillars. The contract was to enable Esch to get all coal to the surface possible by pulling the pillars and stumps; that Esch began pulling the pillars under his contract about October 15, 1920, and that .in January, 1921, nearly all the pillars had been pulled in the entry up to where the slope turns south, and that he had pulled them on either side of the slope.

. The testimony of the appellees and their witnesses, on the other hand, was to the effect that the roof in the mine which the appellees were developing by the shaft method was had — caving in and dangerous; that the appellant consented to the pulling of the pillars, and that appellant had gone into the mine, observed the condition of the entries, the slopes and rooms, and knew that the roof was caving; that he expressly consented that the appellees should pull the pillars and move the tracks, and expressly consented that they should adopt the method of stripping the mine, as that would produce far more coal and therefore be more advantageous to him.

There is a vast volume of testimony adduced along this line on the part of the appellees, tending to prove that the appellants had fully consented, with full- knowledge of all the facts, to all that the appellees had done; that they were fully cognizant of the conditions of the mine, and knew that appellees were going to abandon the shaft method and resort to the stripping method. Certainly, if the appellants consented to the doing by the appellees of all those acts of which they herein complain, and for the purpose of enabling the appellees to work and develop the mine according to the most approved method of mining, under the conditions shown to exist in the mine in controversy, and for the purpose of making the mine more productive, then they would be estopped from claiming damages on account of such acts.

It could serve no useful purpose to discuss in detail all of this testimony. After carefully considering it, we have reached the conclusion that the findings of the chancellor are not clearly against the preponderance of the evidence. Indeed, this is one of those cases where it is most difficult for this court, in view of the great conflicts in the testimony, to determine just where the preponderance lies. In such cases it is the invariable rule to treat the findings of the chancery court as persuasive and adopt them as our own. Morrow v. Mer rich, 157 Ark. 618; Leach v. Smith, 130 Ark. 465-470, and cases there cited. That doctrine is peculiarly applicable to the facts of this record. The decree is therefore correct, and it is in all things affirmed.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    First National Bank v. Peugh.
    Opinion delivered October 29, 1923.
    1. Contracts — sale op good will — question for jury. — In a suit on. a note given for the good will of a business, to which the defense was that the note was, by the terms of the contract, void because the seller had violated his contract by reentering the business, evidence held to raise an issue for the jury.
    2. Contracts — sale op good will — breach.—Where, in the sale ■ of a dray business, the seller obligated himself not to haul any goods in a certain town or to infringe in any way on1 the purchaser’s dray business, and the .evidence showed that the latter’s business included hauling out of the town, it would be an infringement of the contract if the seller engaged in the business of hauling either within or from the town.
    3. Bills and notes. — bona-fide purchaser. — One who takes negotiable paper before maturity in payment of or as security for an antecedent debt, without notice of any defect, receives it in due course of business, and is a holder for value free from any equities of the maker or indorser.
    5. Trial — instruction—general objection. — A general objection is sufficient to take advantage of an inherently erroneous instruction.
    Appeal from Polk Circuit Court; James S. Steel, Judge;
    reversed.

      Norwood & Alley, for appellant.
    Appellant should have had a directed verdict. To sustain a verdict on appeal there must be some substantial evidence to support it. 118 Ark. 349; 69 Ark. 659; 7 Ark. 435. A judge should not express his opinion upon the evidence. It constitutes prejudicial error. 34 Ark. 696; 98 Ark. 83; 116 Ark. 482. Incompetent evidence was admitted and must be treated as prejudicial unless shown that it was not. 69 Ark. 648;. 105 Ark. 205; 89 Arle 556. Instruction No. 4 should have been given. It was based upon the contract, the language of which contains no ambiguity. 67 Ark. 553; 79 Ark. 172; 105 Ark. 213; 101 Ark. 353; 172 Ark. 165; 131 Ark. 134; 149 Ark. 55; 145 Ark. 344. Instruction No. 6, to the effect that, if Keller did some hauling for Hall with Hall’s truck, this was not a violation of the contract, should have been given. 91 Ill. App. 81; 45 Iowa 106; 137 Iowa 636; 60 N. H. 198; 35 Pac. 395; 119 N. W. 358. The intention of the parties to a contract should be derived from the whole instrument. 109 Ark. 537; 116 Ark. 212. Instruction No. 3, given for plaintiff, without the amendment offered by defendant, was erroneous. One who receives a negotiable instrument before maturity, as collateral security for a preexisting debt, may be a holder for value in due course of business. 94 Ark. 387; 102 Ark. 422. Appellant released its mortgage on the pro-erty Keller sold to Appellee. This was a valuable consideration. 63 Ark. 604.

      Minor Pipkm and Lake ■& Lake, for appellee.
    A plea of res judicata, to become effective, must be made an issue by the pleadings'themselves. 107 Ark. 38. The construction of the contract was for.the jury, since it did not clearly appear upon its face what the intention of the parties was. 99 Ark. 368; 81 Ark. 561.
   Wood, J.

This is an action by the appellant against the appellees. The appellant alleged, among other things, that it was the holder of a certain promissory note executed January 4, 1922, by the appellees -to one I. T. Keller in the sum of $1,075 with interest, on which there had been a payment of $225, leaving a balance of $850 due, with interest at 10 per cent, from July 4, 1922. It alleged that the note was secured by a mortgage on certain personal property, which. it described, and prayed that it might have judgment for the balance due on the note and for possession of the property, in order that it might sell the same and apply the proceeds to the payment of the note. The appellee answered, admitting the execution of the note and mortgage, and set np, by way of affirmative defense and for cross-relief, tliat, at tlie time of the execution of tlie note, a contract was entered into between Keller and Peugh whereby Peugh purchased of Keller his dray business in the town of Hatfield, together with the good will of the business; that, by the terms of the contract, Keller, in consideration of the purchase money, agreed that he would not re-enter the dray business, and that, if he did so, the note should become null and void and the amount thereof considered as liquidated damages for such breach of contract; that Keller, in violation of the contract, re-entered the dray business in the town of Hatfield, and, after he had thus breached the contract, refused to deliver the note to the appellees. The appel-lees also averred that the appellee Peugh had complied in all particulars with the terms of the contract on his part. They denied that the appellant was the legal holder of the note, and denied that the appellant was entitled to recover the amount thereof from the appellees. They also denied that they unlawfully detained the possession of the property from the appellant. They prayed that the complaint be dismissed, and, as cross-relief, that the appellant be ordered to surrender the note, and that same be canceled.

At the conclusion of the evidence adduced by the respective parties the issues were submitted to the jury on instructions of the court. The jury returned a verdict in favor of the appellees, and from a judgment in their favor is this appeal.

1. The appellant contends that the court erred in not granting its prayer for instruction directing the jury to return a verdict in its favor. Without setting out and discussing the testimony on this issue, it suffices to say, we have examined same, and we conclude that there was an issue for the jury to determine under the evidence.

2. The appellant prayed certain instructions concerning the construction of the written contract between Keller and Pengli evidencing the sale of Keller V dray business to Peugh. That contract, so far &S- it is material to set forth, is as follows: “This contract and agreement entered into this 5th day of January, 1922, by and between I. T. Keller, hereafter known as the party of the first part, and L. A. Peugh, hereinafter known as the party of the second part, witnesseth: Party of the second part has bought-the dray business from the party of the first part in -the incorporated town of Hatfield, Arkansas, and said party of the first part hereby agrees that he will not haul, transfer or in any way deliver any merchandise,- household goods, or any other article for pay in said town; that he will not in any way infringe on the dray business of the party 'of the second part. Should the party of the first part not do as he agrees above, then payments mentioned in a certain, note and mortgage from party of the second part to party of the- first part become null and void, and said payments shall cease, unless it is mutually agreeable between both parties that said delivery or deliveries be made.’'

Under the terms of this contract Keller could not, after that day, haul, transfer, or in any way deliver merchandise, household goods, or any other article for pay in the town of Hatfield. Keller, under this contract, as we construe it, could not accept the articles mentioned in the contract to be hauled, transferred or delivered for pay, where such was done wholly within the town of Hatfield, nor could he accept such articles to be hauled, transferred or delivered for pay, whether the hauling, transferring, or delivering was to be done within or without the town of Hatfield, because,'by the express terms -of the contract, Keller agreed that he would not in any way infringe on the dray business of Peugh. .It would be an infringement on the dray business of Peugh to haul, transfer or deliver any of the articles mentioned, either within or without the town of Hatfield, because the undisputed testimony shows that the dray business ■which Keller was engaged in and which Peugii bought extended beyond .the corporate limits of the town of Hatfield. This ease is clearly differentiated on the facts from the- case of McDonald v. Paragould, 120 Ark. 226, upon which appellant relies.

To be sure, Peugh could waive the provisions of the ' contract for his benefit and consent for Keller to carry on a dray business, but, in the absence of such consent, Keller could not conduct a dray .business for pay within the town, nor could he conduct it outside of the town, without Peugh’s consent, because that would be infringing on the dray business which Peugh had purchased.

It is unnecessary to set out and discuss in detail the prayers of appellant for instructions concerning the construction of the contract. Suffice it to say, according to the interpretation of the contract, supra, there was no error in the rulings of the court in refusing such prayers.

3. The court, among other instructions, gave the following, at the instance of the. appellee: “No. 3. You are instructed that the assignment of the Peugh note to the First National Bank must have been supported by a valuable consideration before the bank could become an innocent holder thereof, even though it took it before maturity, and taking the note to secure a preexisting-indebtedness owing by Keller to the bank would not be a valuable consideration.” The record shows that the appellant asked the court to modify the instruction by adding, “unless the bank agreed to give up a mortgage it already had on the same property.” The record recites that “instruction No. 3 asked by the defendant was by the court given, over the general objection made by the plaintiff, to which action of the court the plaintiff at the time excepted, and asked that its exception be noted of record, which was accordingly done.” The undisputed evidence showed that the appellant released the mortgage it held on the property which Keller sold to Peugh, and that appellee’s note and mortgage to Keller were assigned by Keller to appellant in lien of tbe mortgage appellant bad released. “One who takes negotiable papers before maturity in payment of, or as security for, an antecedent debt, without notice of any defect, receives it in due course of business and is holder for value, free from any equities of the maker or indorser.” Miles v. Dodson, 102 Ark. 422; Exchange National Bank v. Cole, 94 Ark. 387. The instruction was directly in conflict with the doctrine announced in the above cases. If the court had given the instruction with the modification requested by the appellant, no prejudice could have resulted to the appellant in the giving of the instruction, under the undisputed evidence. But, without the modification, the appellant was necessarily prejudiced by the ruling of the court in giving the appellee’s prayer for instruction No. 3. The objection made by the appellant and the refusal of the court to make the modification requested',- and the granting of the prayer for instruction without the modification, was tantamount to giving the prayer for instruction over the general objection of appellant. The instruction, as it appears from the doctrine of the. above cases, was inherently erroneous, and the general objection to- it was sufficient.

There are several other assignments of error which we have considered, but they are not of sufficient importance to discuss. We find no reversible error in any of the rulings of the court except in the giving of appellee’s prayer for instruction No. 3, supra. For this error the judgment is reversed, and the cause is remanded for a new trial.


author: Smith, J.

text:
    Cook v. Missouri Pacific Railroad Company.
    Opinion delivered October 15, 1923.
    1. RAILROADS — CARE IN OPERATION OP HAND-CAR. — While the statutory duty of keeping a lookout applies only to the operation of trains, and not to motor ears operated on a railway track, it is the duty of persons operating such cars to maintain a lookout when approaching a public crossing.
    2. Railroads — negligence a question por jury.— In an action against a railroad company for injuries to the plaintiff when struck by a motor-car at a railroad crossing, held that whether the defendant was negligent was a question for the jury under the evidence.
    3. Railroads — injury at crossing — contributory negligence.— Where there was testimony that, before driving on the railroad track, plaintiff slowed up his team almost to a stop, and looked and listened, and saw and heard nothing, it was a question for the jury to determine whether, the exercise of ordinary care required plaintiff to make a full stop before driving upon the tráck.
    Appeal from Phillips Circuit .Court; J. M. Jackson, Judge;
    reversed...
    ' A. D. Whitehead, for appellant.
    . The court erred in directing a verdict for the defendant’ 115 Ark. 346; 97 Ark. 405; 33 Cyc. 1019; 22 R. C. L. 1027; 138 Ark. 589; 137 Ark. 6. ’

      Thos. B. Pryor and Daggett & Daggett for, appellee.
    A traveler approaching a railroad crossing is charged with the knowledge that it is a place of danger, and that he must therefore exercise that degree of care which an ordinarily prudent person would exercise under similar circumstances. 117 Ark. 457; 56 Ark. 457; 54 Ark. 431; 81 Ark. 325; 136 Ark. 1; 137 Ark. 6; 138 Ark. 589. "
   Smith, J.

Plaintiff, Alex Cook, sued to recover damages to compensate a personal injury which he 'sustained by being struck by a motor-car operated by 'the defendant railroad company while attempting to cross the railroad track at Pillow’s crossing, in Phillips County. He sought to prove that his injuries were received as a result of the' negligence of the employees of the railroad company in failing to keep a lookout at the crossing and in running the car at an excessive speed as it 'approached the crossing. There was testimony from, which the jury might have found that the railroad was- negligent, in one or both of these respects. The defendant denied the material allegations of the complaint, and pleaded -contributory negligence of the plaintiff in bar of the action. At the conclusion of all the testimony heard at the trial, counsel for the railroad company submitted the proposi-1 tion to the court that the defendant railroad-company, was entitled to have the jury return a verdict in its favor, on the ground that the evidence showed 'that' the plaintiff was guilty of contributory negligence. This view- was accepted by the court, and a verdict in favor of the defendant was directed, and this appeal is from' the- judgment rendered on that verdict.

Plaintiff and his son, Henry Cook, and a man'named Shelton, were driving west from Helena, in a two-horse wagon owned !by plaintiff, about half-past four- one afternoon. The road on which they were driving entered a cut in -the earth, which began about thirty-five or forty yards from the railroad track, and was about six or seven feet deep -at the point where the public road crossed the railroad track, and, as -the crossing was a surface crossing, the railroad track was, of -course, six or seven feet lower tlian the top of the ground, and the railroad track runs in this cut for about seventy-five yards before it crosses the public road.

Henry Cook testified that he was driving the wagon, and that the team had been in a slow trot until -he.'arrived at the top of -the little hill, when he checked up the team and looked in both directions, -but he neither saw nor heard anything. The other occupants of the.-wagon also testified -that they too looked and listened,- without seeing or 'hearing anything. The witness Henry Cook testified that, for the distance, of thirty-five or forty yards through the cut to the railroad track, he drove in a- slow walk, and, just before reaching the track, -slowed the team up almost to a stop, when he and the other occupants of the wagon looked and listened, but they saw nothing and heard nothing, and the witness drove on to the track, and, as he did so, he saw the motor-car approaching a short distance away.. There was no escape except to drive forward rapidly, and this the driver did by striking the animals to accelerate their speed, but, before the wagon was entirely across the track, the motor-car hit the rear wheel of the wagon and overturned it, and injured the plaintiff.

The testimony tends to support the inference either (1) that no lookout was being kept by the persons on the motor-car; or (2) that, if a lookout was being- kept, the car was being operated at a speed so great that it could not have been stopped before -striking the wagon; or (3), that no effort was made by the operator of the ear to avert the collision. The railroad company offered no testimony in explanation of its part in the collision, and rested its case upon the theory that plaintiff had been guilty of negligence contributing to his injury, and that a recovery would be defeated on that account.

We have held that, while the statutory duty of keeping a lookout applies only to the operation of trains, and not to motor-cars, there might be a common-law duty to keep a lookout oven on a hand-car. St. L. S. W. Ry. Co. v. Mitchell, 115 Ark. 339. The case just cited -announces the duty of the railroad company to use ordinary care, under given circumstances, and the circumstances of this case must be taken into account in determining whether that degree of care was used by the employee of the railroad company who was running the car. There was a question therefore for the jury as to whether the employee of the railroad company was negligent.

This, however, does not appear to be 'the question which prompted the court to instruct a verdict in favor of the railroad company, as the court’s action was based upon a finding that the undisputed evidence showed plaintiff was guilty of contributory negligence.

We do not think it must be said, as a matter of law, that plaintiff was guilty of contributory negligence. He and the other occupants of the wagon testified that they looked and listened as they drove into the cut, and that they practically stopped just before driving on to the track, and that they saw nothing and heard nothing.

Learned counsel for the railroad company insist the wagon should have come to a full stop. But we think this was a question for the jury, as the jury might have found that the stop made was sufficient to enable the occupants of the wagon to see anything visible or to hear any anticipated noise. There was nothing to be seen, as the car was itself coming through the cut in the hill, and it was a question therefore for the jury to' determine whether the exercise of ordinary care required plaintiff to make a full stop befóte driving out of the cut on to the railroad track. The ear was a hand-car operated by a motor, and the whistle was not blown nor was the bell rung, and this was not required of the railroad company, as the motor-car had neither bell nor whistle, but these were signals which one expects to hear as a train approaches a crossing, and plaintiff may have slowed down sufficiently to have heard these signals had they been given, and the jury might have found that one who had taken these precautions was not negligent in failing to anticipate that a motor-car would be driven over the crossing at a speed so rapid that it could not avoid striking the wagon. St. L. S. F. R. Co. v. Stewart, 137 Ark. 6; Smith v. Mo. Pac. Rd. Co., 138 Ark. 589; Billingsley v. St. L. S. F. Ry. Co., 136 Ark. 1; St. L. I. M. & S. R. Co, v. Kimbrell, 117 Ark. 457.

For the error in directing a verdict against the plaintiff the judgment will be reversed, and the cause remanded for a new trial.


author: Hart, J.,

text:
    Wimberley Grocer Company v. Brandon Craig & Company.
    Opinion delivered October 29, 1923.
    1. Appeal and error — conclusiveness op finding of circuit court. — The judgment of the circuit court sitting as a jury will be affirmed on appeal if there is substantial evidence in the record to. support it.
    2. Account stated — evidence.—Plaintiff’s testimony was that it sold a bill of goods to defendant and charged same to its account, and rendered several statements to defendant, which the latter never disputed. Defendant’s testimony was that it never bought the goods, but that they were bought by a third person, who agreed to pay for them; that it received only one statement of the account, and called up the purchaser, who agreed to see plaintiff about it, and reported that he had done so and had • made it all right. Held to justify a finding that there was not an account stated.
    Appeal from Craighead Circuit Court, Lake City-District; W. W. Bundy, Judge;
    affirmed.
    STATEMENT OE EAOTS.
    The Wimberley Grocer Company sued Brandon Craig & Company to recover $375 alleged to be due on a merchandise account.
    Both the plaintiff and the- defendant are domestic corporations engaged in business in Craighead County, Arkansas. The former is a -wholesale grocer, and the latter runs a sawmill. It is admitted that the plaintiff furnished a bill of groceries to the defendant in the sum of $375. It appears from the testimony of the defendant that the goods were shipped to it on account of Leving Fraser, and that it was in no wise indebted to the plaintiff .for the groceries. Leving Fraser was a farmer in Craighead County, and had a good crop of potatoes, but no way to house them. He wanted to make some arrangements to get lumber sawed to build a potato-house. He told the manager of the defendant that he had no money, and the latter refused to saw the lumber for him unless he could make arrangements for groceries for the men to live on while they were sawing the lumber. The defendant offered to furnish him the lumber on that condition. In a few days Fraser came back and said that he had arranged for a credit of $375 for the defendant with the plaintiff, and told the defendant to proceed with the work. The groceries were shipped out at different times by the plaintiff to the defendant, and about a month afterwards the defendant received a statement of the account from the plaintiff. The defendant’s manager called up Fraser and asked him about it. Fraser said that he would call the plaintiff up about it, and later called up the defendant, and said that he had called up the plaintiff and had arranged the matter with it. No groceries were shipped by the plaintiff to the defendant after that time. Some months later the defendant received a letter from the plaintiff stating that the potato house of Fraser had burned down, and that the plaintiff was looking to the defendant for the sum of $375, the amount of the grocery bill. Evidence for the defendant also tends to show that no further statement of the account was ever sent it by the plaintiff.
    It appears from the evidence for the plaintiff that Leving Fraser bought- groceries for the defendant, and that they were charged to the defendant’s account. After the bill became due, statements of the account were rendered to the'defendant by the plaintiff at stated intervals, but the plaintiff received no acknowledgment of these statements or any denial that they were correct.
    By agreement of the parties the case was tried before the circuit court sitting as a jury, and from a finding and judgment in favor of the defendant' the plaintiff has appealed to this court.

      A. P. Patton, for appellant.
    The court erred in not declaring as a matter of law that the account had become an account stated, and could not be questioned except for fraud or mistake. 107 U. S. 325 ; 53 Ark. 155; 150 Ark. 197, 204.

      Cooley & Adams, for appellee.
    1. That the merchandise in question was not sold to the appellee nor charged to its account, is clearly-established by the evidence, and the court’s finding on that isue is conclusive. Ill Ark. 190'; 145 Ark. 466; 150 Ark. 3; 157 Ark. 167; 13 C. J. 713; 6 R C. L. 882-893.
    2. There is nothing in this case calling for the application of the doctrine of stated account. There was no contract between these parties, either express or implied — no privity of' contract between the parties. Moreover, there was never any acknowledgment of indebtedness on the part of appellee. 126 Ant 266, 275; -1 Encyc. of Evidence, 181; 53 Ark. 155; 55 Ark. ,378.
   Hart, J.,

(after stating the facts). The circuit-court found that the merchandise sued for was sold upon the credit of Leving Fraser and charged to him, and that plaintiff was not entitled to recover from the defendant.

Counsel for the plaintiff insists that the court erred in so holding. We have not set out the testimony of the plaintiff on this point in detail, for we are not concerned with the weight of the evidence. It is sufficient, upon appeal to affirm the judgment of a circuit court sitting as a jury, for us to find that there is some sub-tantial evidence in the record to support the judgment. The testimony of the manager of the defendant ■ ánd of Fraser is sufficient for that purpose. It appears from his testimony that he agreed to saw up some lumber for Leving Fraser, with which to build a potato-house, in consideration that Fraser would furnish him groceries to the amount of $375 to feed his men while they were sawing the lumber. It appears from the testimony of Fraser that he made arrangements for the plaintiff to ship to the defendant groceries to the amount of $375 and charge the same to his own account. This evidence is-sufficient to support the judgment of the circuit court on this point.

It is next insisted by counsel for the plaintiff that the circuit court erred in not finding as a matter of law that the account as between the parties became a stated account, and could not be questioned except for fraud or a mistake. It is true that the plaintiff testified that it sent several statements of the account to the defendant which were not answered by it.

On the other hand, according to the evidence for the defendant, no such statements were received by it. It never acknowledged in any manner that it was indebted to the plaintiff in any amount. It is shown that the defendant never did any business with the plaintiff in person or received any goods from it except the groceries involved in this suit.

According to the evidence for the defendant, as soon as the plaintiff sent it the statement of the account, it called up Fraser, and Flraser promised to see the .plaintiff about it. He reported to the defendant that he had seen the plaintiff and made it all right, and the defendant thereafter paid no further attention to the matter.

Under these circumstances it cannot be said that an account stated existed between the parties. The court was justified in finding that there was no consent, either express or implied, to the corrrectness of the account, or that the defendant did, in any manner, admit that it owed the plaintiff any amount whatever. Citizens’ B. & T. Co. v. Hinkle, 126 Ark, 266.

It follows that the judgment must be affirmed.


text:
    Bank of Hatfield v. Chatham.
    Opinion delivered October 29, 1923.
    1 Banks and banking — liability to depositor — A general deposit of money in ,a bank passes the title to the bank and establishes the .relation of debtor and creditor between the bank and the depositor, and the bank is bound by an implied contract to honor • " ■ the checks of the depositor to the extent of his deposits, and becomes liable upon its refusal to do so.

      2. Banks and banking — liability to depositor-instruction.— An instruction that, when a depositor places his money in a bank, it can be paid out and charged to his account only upon authority from the depositor, is not open to the objection that, in order to relieve the bank from liability, the depositor must have in person given his check or in person have authorized the bank to make the transfer.
    3. Banks and banking — forged checks. — Under Crawford & Moses’ Dig., § 7789, a bank is not autlmrized to pay out a depositor’s money on a forged cheek.
    4. Banks and banking — liability to depositor — instructions.— Where a depositor sued a bank for paying out his deposit on forged checks, and the bank contended that the money was loaned to one of its officers by plaintiff’s authority, instructions which presented both theories to the jury held correct.
    5. Banks and ranking — statement op depositor’s account. — A bank depositor has a right to rely upon the correctness .of -his account as rendered to him by the bank, and is under no duty to make any other investigation, so long as the statements ■ disclose nothing wrong with his account.
    6. Banks and banking — statement op depositor’s account. — A notation in one of a depositor’s statements that a portion of his deposit was drawing ten per cent, interest, when the bank had agreed to pay four per ' cent, was not notice to him that the' bank had allowed another to withdraw such portion of his deposit.
    7. Banks and banking — forgery op check — ratification.—Where a 'bank depositor’s funds were -withdrawn by means of a forged check signed by an officer of the bank, the mere fact that the depositor tried to get such officer to replace the money would not tend to show that he ratified the act or lost his remedy against the bank.
    8. Banks and banking — bank statement — presumption.—A bank statement of a depositor’s account mak,es a prima, facie case in the depositor’s favor, and the burden is on the bank to show that the depositor authorized a bank official to withdraw his deposits.
    9. Trial — abstract instruction. — An instruction upon the theory that a bank depositor ratified the unauthorized act of a bank official in withdrawing his deposits, was properly refused where there .was no evidence tending to prove a ratification.
    10. Banks and banking — forged checks — liability.—Where .the testimony of a depositor made an issue of forgery by a bank officer in signing such depositor’s name to checks and withdrawing his deposits, ah instruction that when the bank paid out money on checks bearing the depositor’s name it did so at its peril if-the checks were forged or the signature was unauthorized, was not erroneous.
    11. Banks and ■ banking — depositor’s statement — burden op proof. — Where the statement of a depositor’s account furnished by • a bank officer shows a balance due- for which he sues, the bank has the burden of showing that the- depositor authorized the withdrawal of his money.
    12. Trial — improper evidence — instruction.—The introduction of improper' testimony 'was cured by an instruction not to consider it.
    13. Witnesses — impeachment on cross-examination. — Where, in a suit by a depositor against a bank for deposits paid on forged checks, plaintiff testified that he never authorized defendant’s vice • president to use his money, it was not error, on cross-examination of such vice president, to elicit the fact that he had in the same manner, taken from the bank a large sum of money belonging to other depositors.
    Appeal from Polk Circuit Court; James 8. Steel, Judge;
    affirmed.
    STATEMENT OF FACTS.
    R. B. Chatham brought this suit against the Bank of Hatfield to recover the sum of $1,580 which he had deposited with- the bank and which the -banlr refused to pay him on demand therefor.
    The bank defended on the ground that the money had been withdrawn from it by the authority of the plaintiff.
    The plaintiff in 1920 opened an account with the defendant, and, between that time and the occurrences leading u-p to this litigation, his total 'deposits amounted to $2,400. At the time he opened Ms account, the bank agreed to pay him 4 per cent, on daily balances, and, in the early part of 1921, the plaintiff had on deposit in the bank something- more than $2,-000.
    L. H. Johnson had been cashier of the bank, but his' dirties -had been changed to that of vice-president early in 1921, and he continued in that position during the period of transactions involved in this suit. Johnson worked on the outside, and his main duties were to collect special accounts due the bank. At stated periods the bank furnished Chatham a statement of his account, and the statement rendered on the first day of July, 1921, shows that he had a balance in the bank of $1,906.52. On the 18th day of February, 1921, L. H. Johnson, as vice president of the bank, drew a check for - $1,000, signed Chatham’s name to it, and charged the amount thereof to the account of Chatham. At the same' time Johnson executed a note payable to Chatham’s order for this amount, and signed the names of his brothers thereto as sureties, and placed the -note among - the private papers of Chatham in the bank. He then withdrew from the bank $1,000 of Chatham’s -deposit. On the 7th -day of April following, he withdrew $300 from the bank in a similar manner. On the 27th -day of-June, 1921, in the same manner he withdrew $200 from the bank, making the total taken by him from the bank and charged to Chatham’s account, $1,500.
    Chatham was a witness for himself. According to •his testimony, none of the> withdrawals made by Johnson were shown in the statements received by him from- the bank. There was nothing in the statements, to-indicate that his money had been withdrawn from the bank by Johnson, and he did not know anything about the matter until it had been done. On the 25th day of August, 1921, Chatham received a letter from Johnson in which he admitted that he had used $1,500 of Chatham’s money in the bank. This was the first information that Chat-ham had that his money had been withdrawn from the bank by Johnson. He made an investigation of the matter, and made a demand of his deposit by drawing a check upon the bank for the balance thereof. The bank refused payment on the check, and on December 12, 1921, Chatham sued it to enforce payment. Johnson withdrew the $1,500 by signing Chatham’s name to the checks on the bank. This was done without the knowledge or consent of Chatham.
    L. H. Johnson was a witness for the defendant. He admitted that he was vice president of the Bank of Hatfield during the period of these transactions in the year 1921. He admitted that he made the statement of April 30, 1921, and sent it to the plaintiff, hut stated that he was working for the bank on the outside during that ■ year, and occasionally got out statements of customers of the bank. He admitted making the statement of July 1, 1921, and said that sometimes he would drop in the bank and help with the bookkeeping and work of that kind. He made other statements to Chat-ham' of his account, and, in fact, made all the statements that Chatham received. The cashier' permitted him to make these statements, and Johnson claimed that he had authority from Chatham to withdraw his money from the bank.' This authority was given him’ verbally by Chatham in the early part of 1921, in order that Chatham might" receive 10 per. cent, interest on his deposits. Johnson withdrew the money of Chatham by signing" the-name of Chatham to the checks above referred to.
    The jury returned a verdict for the plaintiff,- and'from." the judgment rendered the defendant has appealed to this court. ' ' ’

      Norwood & Alley, for appellant.
   Hart,-J.,

(after stating the facts)., . The first assignment of error is that the court erred in giving instruction No. 1, which is as follows: .“The court instructs the jury, that when Chatham deposited his money in the bank, it became, the property of the bank, and it could be paid out and charged to Chatham’s account only upon authority from Chatham.”

It has been repeatedly held by this court- that no principle of law is better established than that a genera] deposit of money in a bank, passes the title immediately . to the bank and establishes the relation of debtor and creditor, between the bank and the depositor. The bank is bound by an implied contract to honor the checks of the depositor to the extent of his deposits, and becomes liable upon its refusal to do so. Carroll County Bank v. Rhodes, 69 Ark. 43; Darragh Company v. Goodman, 124 Ark. 532, and cases cited; and Robinson v. Security Bunk & Trust Co., 141 Ark. 414.

It is insisted, however, by counsel for the defendant that the instruction is misleading in the form in which it was given, and that it carries the inference that, in order to relieve the bank of liability, Chatham must have in person given his check or in person authorized the bank to make the transfer. Hence it is claimed that 'the instruction as framed denies the jury the right to find in favor of the bank if it should believe that Chat-ham told Johnson to use his money, and, acting on this authority, Johnson did use it by withdrawing the money on Chatham’s check.

We do not think that the language of the instruction is fairly susceptible of this construction. It is a plain statement to the jury of the principles of law as uniformly held by this court.

The next assignment of error is that the court erred in giving instruction No. 2, which is as follows: “The name of Chatham forged to a check would not authorize the bank in paying the money on such check. So, in this case, if you believe from the evidence'that Johnson forged Chatham’s name to the checks, and the money was paid out on them, the bank would still be liable to Chatham for the money.”

We think that the principles of law applied in this instruction are settled against the contention of counsel for the defendant by the case of Bank of Black Rock v. B. Johnson & Son Tie Co., 148 Ark. 11, construing § 7789 of Crawford & Moses’ Digest.

In that case the court said that, under this section, payment upon a forged check by a bank upon whom it is drawn is made at the bank’s peril, and that the bank is not justified in charging it against the depositor’s account, unless the latter is precluded from setting up the forgery or want of authority. But it is insisted by counsel for the defendant that there is no issue of forgery in the case. They claim that the instruction amounts to telling the jury to find' for the plaintiff' if Johnson did use his money by the plaintiff’s permission, if Johnson, in getting it, did so by signing the name of the- plaintiff.

We. cannot agree with counsel in this contention. According to the testimony of Chatham, he did not authorize Johnson to sign his name to the checks, nor did he authorize Johnson in any manner whatever to withdraw his deposit from the bank. In fact, Chatham positively denied knowing anything about the (transactions. in question until after they were over. He received his statements from the-bank, and .there-was nothing in them to indicate that such transactions had been had.

The bank .is dependent upon the testimony of Johnson that he did have verbal authority from Chatham to withdraw his deposits from the bank. This presented a clear-cut issue of fact to the jury, and the instruction in question submitted the law of the case as applicable to the plaintiff’s testimony.

The court, at the request of the defendant, gave the following instruction:

“1. You are instructed that, if you believe -from a preponderance of the evidence that the - plaintiff had deposited funds in the Bank of Hatfield, and it was agreed between plaintiff and Lewis Johnson that Johnson might use such funds and pay him ten per cent, interest • thereon, and that Johnson, pursuant to such agreement, caused plaintiff’s account to be charged with amounts aggregating the amount sued for herein, and that Johnson personally used said amount, the Bank of Hatfield would not be liable to the plaintiff for- the amount, and in that event your verdict will be for the defendant.”

This instruction plainly presented'to the jury the theory of the defendant.

The next assignment of error is that the court erred in giving instruction No. 3 at the request of the plaintiff, which is as follows:

“If statements were mailed to Chatham, showing the state of his account with the hank, Chatham had the right to rely upon the correctness of such statements, and was under no duty to make any other investigation or take any action so long as such statement^ continued to disclose nothing ■ wrong with his. account. And if one of these statements contained a showing that part of his money was drawing ten per cent, interest, without any showing that some, one other than the hank was using it, he had the right to assume that the bank still held his money.”

Counsel for the defendant complains that this instruction is misleading. We cannot agree with the contention of counsel for the defendant that this instruction is one on the weight of the evidence. It was the duty of the plaintiff to examine the statements of his account rendered him by the hank, and he hád a right to rely upon the correctness thereof. The court correctly told the jury that he was under no duty to make any other investigation, so long as the statements continued to disclose nothing wrong with his account. Citizens’ B. &. T. Co. v. Hinkle, 126 Ark. 266, and Bank of Hatfield v. Clayton, 158 Ark. 119, and eases cited.

Notwithstanding there was a notation on one of the statements' to the effect that $1,500 of his deposit was drawing 10 per cent, interest, it showed that the balance on deposit on July 1,1921, was $1,906.52. Hence the mere fact that a part of his account was drawing 10 per cent, interest, instead of 4 per cent, interest, as originally agreed upon, was not notice to Chatham that other parties had withdrawn any of his deposit. So long as he was not in possession of facts tending to show that his money had been withdrawn by some one, he.had a right to rely upon the statements sent to him by the bank.

The next assignment of error is that the court erred in giving instruction No. 5, which is as follows:

“Chatham would not be hound by the act of Johnson in drawing money from the hank on checks to which his name was signed by Johnson without authority, nor would the fact that he tried to get Johnson to put the money hack in the hank bind him if it had been drawn out'without authority.”

We do not think the instruction is argumentative, as contended by counsel for the defendant, hut are of the opinion that it is a correct declaration of the principles of law decided in the case of Robinson v. Security B. & T. Co., 141 Ark. 414. Chatham did not wait an unreasonable time after finding out that Johnson had withdrawn his money from the bank without his consent before he demanded payment of the bank and .'instituted this suit. The mere fact that he tried to get Johnson to put the money back in the bank would not tend to show that he ratified Johnson’s act or lost his remedy against the bank.

The next assignment of error is that the court erred in giving instruction No. 6, which is as follows:

“When the bank paid out money on checks bearing Chatham’s name, it did so at its peril; and if the checks were forged or the signature unauthorized, it would still be liable to Chatham for the money.”

We do not think that this assignment of error is well taken. As said by counsel for the plaintiff, to take away from the jury the issue; of forgery in this case would be to deny the plaintiff any right to recover at all. His testimony makes a plain case of forgery in withdrawing his deposits from the bank, and he had a right for the court to so tell the jury.

The next assignment of error is that the court erred in giving instruction No. 8, which is as follows:

“The court instructs the jury that the statements furnished-to the plaintiff show conclusively that his money was on deposit in the bank, and these statements' and the canceled checks show that he should still have $1,500 and 'the interest accruing on his daily balances from November 1, 1920, in the bank, unless it was drawn .out and used by authority of the plaintiff. It therefore devolves upon the bank to prove by a preponderance of the evidence that the plaintiff authorized Johnson to draw out and use the money and charge it to his account, and that Johnson did so under and by virtue of such authority.”

We do not think that the court erred in giving this instruction. The undisputed evidence in the case shows that the statements of his account were furnished to Chatham by some officer of the bank, and that they were the only statements furnished him during the period of the transactions involved in this case. His statement of July 1, 1921, shows that he had a balance in the bank of $1,906.52. Therefore, under the principles of law above announced, this made a prima facie case in his favor, and the burden was on the defendant to show that the plaintiff had authorized J ohnson to withdraw his deposits from the bank.

Other assignments of error are based upon instruction given at the request of the plaintiff, but we do not deem them of sufficient importance to set out' the instructions and discuss them in detail. They hvere merely declarations of the principles of law as uniformly held by this court in the eases above cited and in others which might be cited.

It is next insisted that the court erred in refusing to give instruction No. 3 requested by the defendant, which is as follows:

“You are instructed that, if the plaintiff knew that Lewis Johnson was personally using his money, and made no complaint to any other officer or employee of the Bank of Hatfield, and was not holding the bank responsible for the amount, he will be deemed to have ratified the acts of Johnson, and, in that event, the bank would be liable, although plaintiff did not specifically authorize Johnson to use the money.” .. .

We do not think this assignment of error is / well taken. The principal issue in the case was whether or not Chatham authorized J ohnson to withdraw; his deposits. He testified unequivocally that he did • not in any manner authorize Johnson to withdraw his deposits from the bank, and that he never knew anything about fit until after it was called to his attention on the 26th day of August, 1921. The statement sent him by the bank on the first of July, 1921; showed that he had on deposit in the bank over ‘$1,900, and the transaction in question took place before that time.

It is true that Chatham, after 'being notified that his deposits had been withdrawn by Johnson, made an investigation,.and, after ascertaining its truth, demanded payment from the bank. It is also true that he tried to get Johnson to return the money to the bank, but this in no sense constituted a ratification of Johnson’s acts. No evidence is introduced by the bank tending to show a ratification on the part of Chatham. Johnson is the principal witness for the defendant, and he states positively that he had verbal authority from Chatham to withdraw his money from the bank. As above stated, this made a clear-out issue of fact between the parties, and there is not sufficient evidence upon which .to predicate an instruction on ratification after Chatham found out that his money had been withdrawn from the bank by Johnson without his authority.

It is next insisted that the court erred in allowing Chatham to testify that Johnson told him on the 27th of September, 1921, that, if he would give him a little time, he would go to Port Smith and get-the money for the plaintiff.

It is insisted that Johnson had no connection with the bank after September 15, 1921, and that Johnson and the bank are so closely associated in the matter that it 'would be hard for the jury to distinguish between the wrong of Johnson and that of the bank. Therefore it is insisted that what he had said after he had severed his connection with the bank was necessarily prejudicial to the rights of the latter.

Several pages of the transcript are devoted to recitations of the objections made by counsel and responses of the court thereto. It seemed that the- court at -first admitted tbe testimony, thinking that the record showed that Johnson was still connected with the bank when the conversation between Chatham and Johnson objected to occurred. The court, from, the beginning, stated that the declarations of Johnson after he had left the bank could not be considered as evidence against it. Finally the court sustained an objection to the testimony for the time being. It was meant by this that the testimony would be admitted if it was subsequently ascertained that Johnson was vice president of the 'bank at the time he made the statement. No effort was made thereafter to-introduce the testimony. Hence we do not think that any prejudice could have resulted to the defendant.

It is next insisted that the judgment -should be reversed because the court allowed Johnson to be -asked, on cross-examination, if he had not taken $2,000 of old man Chatham’s money. The witness answered in the negative. Prior to this time the witness had stated, on ■cross-examination, without objection, -that, during the year 1921, he had taken from the bank money pf customers to the amount of $10,000 in the same way that Chatham claimed that he got his money.

The court admitted the testimony as competent to show that he was taking out money of other people as a circumstance to strengthen or weaken his testimony as a witness. We think the court was right in holding that the testimony was admissible for- this purpose. The honesty of the witness was in question1, and the fact, if true, that he had‘been guilty of taking other people’s money out of the bank without their -consent and using it, during the period of time involved in this -case, would tend to impeach his character and discredit him as a witness, Hollingsworth v. State, 53 Ark, 387.

The testimony as to whether he had taken the money, of Chatham tended directly to establish or disestablish the principal issne in the case,- and was therefore competent.

Finally, it is insisted that the court erred in making-certain statements in the presence of the jury with regard to the testimony of Johnson. Johnson, while on the stand, admitted sending out the statements of Chatham’s account to him while he was vice president in 1921, but claimed that he had no authority to do so. In this connection he testified that Chatham was holding him responsible for the withdrawal of his deposits. The circuit court, in discussing this question, among other things, stated as a fact to the jury that it was a paper of the bank made by the acting vice president. Objections were made to this statement of the court, and he repeated that he understood Johnson to say that he was acting as vice president of the bank. Upon the objection being renewed, the court said that it would take it all back if Johnson did not swear it at least four or five times. Upon objections being pressed to its action, the court asked the jury not to consider it at all. "We think this action of the court would eliminate any prejudice that might have resulted from the remarks.

. Moreover, an examination of the record will show that Johnson had sworn as many as four or five times that he was vice president of the bank during the period in question in this case, and no attempt was made to contradict his evidence in this respect. The only contention was that he was assigned to special duties by the bank and did not have authority to send out the statements to 'Chatham of his account.

It is not denied, however, that he was permitted by the bank to do so. It does not claim that it sent .them out -by any other officer of the bank or authorized any of its employees to do so. Hence this assignment of error is not well taken.

We find no reversible error in the record, and the judgment will be affirmed.


text:
    St. Louis Southwestern Railway Company v. Hagler.
    Opinion delivered October 29, 1923.
    Damages — personal injuries. — reduction op award. — Where a train conductor cursed and assaulted a passenger but no permanent injury was sustained by the passenger, and no loss of time or diminution of earning capacity or disfigurement of any kind, a verdict for $600 compensatory damages and $900 punitive damages is excessive, and will be reduced to $250 compensatory damages and $500 punitive damages.
    Appeal from Miller Circuit Court; George R. Haynie, Judge;
    modified.

      J. R. Turney, J. N. Cook and Gaughan & Sifford, for appellant.
    1. In the absence of proof that there was some physical injury resulting from plaintiff’s being struck by the conductor, plaintiff could not recover. 94 Ark. 489.
    2. There is no evidence justifying submitting to the jury the assessment of punitive damages, and they should have been instructed that there could be no recovery of punitive damages. 156 Ark. 583.
    3. In any event' the verdict, both for compensatory .and pnnitive damages, was excessive.

      T. B. Vance, B. E. Garter and J. M. Garter, for appellee.
    1. That there was an unprovoked, wanton and malicious attack upon the plaintiff by the conductor must be considered as settled by the verdict of the jury.' 15 Ark. 403.
    2. The verdict is not excessive.
   Smith, J.

Appellee alleged and offered testimony tending to show that he became a passenger on one of appellant’s trains at Genoa, his destination being Texarkana; that he was accompanied by a boy eleven years old, named Thomas Pearsonj who was his cousin, and by Victor Hagler, a young man eighteen years old, who was his brother; that, after he and his companions had found seats in the car, H. G. Hawk, the conductor in charge of the train, came to the place where appellee and Ms companions were seated, to collect their fares. Victor Hagler paid his fare, amounting to thirty-five .cents, and appellee paid seventy-five cents for himself and the boy. The price- of appellee’s ticket was thirty-five cents, and that of the hoy was eighteen cents, the latter being a half-fare ticket. In payment of his own fare and that of the hoy, appellee gave the conductor a half-dollar, two dimes and one nickel, and the conductor issued proper receipts therefor, and went into, the -next car. The conductor soon returned, and appellee asked for his change, and was told that the change was coming the other way, as he had only paid a quarter, two dimes and one nickel, whereas the fare was fifty-three cents. Appellee insisted there was change coming to him, whereupon the conductor became angry and cursed appellee and called 'him very vile and abusive names, and when appellee extended his hand for the change and asked for it, the conductor commenced striking appellee’s fingers with his ticket punch, and struck Mm across the hand seven or eight times, breaking the skin on three fingers, thereby inflicting an injury from which he suffered about three weeks before the wounds had entirely healed. Appellee was thirty-three years old, and had been drafted into the army, where he developed epilepsy, and for the treatment of this disease he was sent to an army hospital, where he remained for about two years before his discharge therefrom, and thereafter' he had no recurrence of the fits from which an epileptic suffers until about two days after the .-incident on the train, when he had a fit. Appellee’s story was substantially corroborated by Ms 'brother and by the boy.

The conductor testified'that Victor Hagler paid Mm the correct fare, and appellee then gave him a quarter, two dimes- and a nickel, wMeh was three- -cents less than the correct fare, but he accepted it at a loss to himself of three -cents and gave cash fare receipts. He said he did -this because he had on a former -occasion had a few words with appellee, and did not want to renew that trouble. He further testified that, after demanding the return of a part of thé money paid, appellee, in an offensive and angry manner, stuck bis finger under Ms nose, and that be brushed appellee’s hand aside, and that he then left the car and notMng else occurred. Witnesses who were in the car testified that they saw something out of the ordinary had happened, but that nothing approximating an assault had occurred, and that they did not hear the conductor use any loud, abusive or insulting language.

There is a conflict in the testimony as to the extent of the injury to appellee and as to the duration of the time before the wounds healed.

The case was submitted under instructions correctly declaring the law in accordance with well known principles; and instructions numbered 4 and 5 were given at the request of the railway company, which, in effect, told the jury to find for the defendant if they believed the conductor’s statement. We assume therefore that the jury did not accept the conductor’s statement, but did accept that of appellee and the witnesses who testified in his behalf.

The jury returned a verdict for appellee for $600 compensatory damages and for $900 punitive damages, and the only question in the case which requires discussion is the sufficiency of the testimony to support this recovery, as there appears to be no other error in the case.

Appellee testified that, after Ms discharge from the army, he had not followed any regular employment, as he was physically unable to do so, and that his only occupation consisted in taking care of the house of a brother with whom he lived and giving some attention to his brother’s children, .and that for this service he received his board and lodging.

Aey Hagler, appellee’s brother, with whom he lived, testified that he saw appellee the night he returned from his trip to Genoa, and that appellee’s fingers were skinned, up and were bloody, and that appellee was excited when he came in. This brother also testified that appellee had syphilis, although, on 'Cross-examination, he practically withdrew the statement.

It is true appellee testified he had had no recurrence of fits after Ms return from the hospital until after the time of his assault. But we think it a mere matter of conjecture or speculation as to whether there was any connection between the assault and the fits. Had appel-lee had a fit while laboring under the excitement of that incident, it would be more probable that the assault had brought on a return of the epilepsy, but appellee testified that he did not have a fit “for a couple of days or so.” No physician testified that a return of the fits might have been or might not have been caused by the assault on the train; and we think it highly speculative as to whether there was any relation between the assault and the recurrence of the fits; and, if this be true, then the judgment returned in appellee’s favor is necessarily excessive.

Appellee sustained no permanent injury, there was no loss of time or even temporary diminution of earning ■capacity, or disfigurement of any kind, and it does,not appear that any medical expense was incurred. There was, of course, certain pain, and this, appellee testified, lasted for six or seven weeks; but for tills we think $250 is full compensation, and the judgment for compensatory damages will be reduced to that amount.

We are also of the opinion that the judgment for punitive damages is excessive. The testimony in appel-lee’s behalf made a case warranting the imposition of punitive damages; but we think the sum allowed is greater than the testimony warrants. The altercation lasted only a very short time, and was not of sufficient violence to apprise persons sitting near what had occurred. It is true, of course, that it was a gross breach of duty on the part of the conductor to assault and curse and abuse a passenger; but, under all the circumstances, we do not think a recovery for a larger sum than $500 on that account is warranted by the testimony, and the judgment for punitive damages will be reduced to that sum.

The total judgment is therefore reduced to $750, and for that sum will be affirmed.


author: Smith. J.

text:
    Bradshaw v. Sullivan.
    Opinion delivered October 29, 1923.
    1. Divorce — decree pro confesso. — Under Crawford & Moses’ Dig., § 3504, providing that “the statements of the complaint for divorce shall not be taken as true because of the defendant’s failure to answer, or his or her admission of their truth,” held that a decree granting to plaintiff a divorce which recites that the cause was submitted to the court upon the complaint and the proof of publication of the warning order and the report of the attorney ad litem is erroneous.
    2. Divorce — death of party — appeal.—Where property rights depend upon the correctness of a decree of divorce, it is the duty of the appellate court to review the decree in order to settle such rights, though one of the parties has died since the decree was rendered.
    3. Divorce — appeal—death of party. — Where a decree of divorce involving property rights was erroneous, the entire decree will be reversed, though one of the parties has subsequently died.
    Appeal from Pulaski Chancery Court; John E. Martinecm, Chancellor;
    reversed.

      Price Shofner, for appellant.
    It was manifest error to grant a decree for divorce without proof supporting the allegations of the complaint. 38 Ark. 119 ; Id. 324; 54 Ark. 20; 83 Ark. 533; 99 Ark. 94; 102 Ark. 54; 145 Ark. 254, 261. See also 88 Ark. 604; 77 Ark. 195; 80 Ark. 74; 154 Ark. 96.
   Smith. J.

Gr. M. Bradshaw brought suit for divorce and alleg'ed, as ground therefor, that his wife had deserted him. The decree in the cause appears to have been rendered either pro confesso or by consent. Its recitals are as follows: “On this day is presented to the court the petition of the plaintiff, Gr. M. Bradshaw, for the dissolution of the bonds of matrimony between himself and defendant, Oarrie E. Bradshaw; and the same is hereby submitted to the court upon the complaint and the certificate of publication of the warning order and the report of A. L. Botenberry, attorney ad litem, from all of which the court finds: That the plaintiff and defendant were intermarried on the 19th day of October, 1901, and lived together as husband and wife until December, 1917. That during the month of December, 1917, defendant deserted plaintiff without reasonable cause and against the will and without the consent of plaintiff, and that he is entitled to the dissolution of the bonds of matrimony existing between himself and defendant. ’ ’

The decree awarded the custody of the children to the defendant, and gave her a one-third interest in a tract of land owned by the plaintiff, and gave him an absolute divorce.

The decree was entered July 3, 1922, and on December 29, 1922, an appeal to this court was perfected. Since the rendition of the decree in the court below, the plaintiff died, and the cause was revived in the name of his administratrix.

The transcript in this case contains only the pleadings referred to in the decree, and the clerk of the court below has certified that the transcript is full and complete.

The decree specifically recites that the cause was submitted to the court upon the complaint and the proof of publication of the warning order and the report of the attorney ad litem. There can be no presumption therefore that testimony was heard from which the court found that plaintiff was entitled to a divorce. McClintock v. Lankford, 145 Ark 254.

It is -provided by statute that the statement of a complaint for divorce shall not be taken as true because of the defendant’s failure to answer, or because of his or her admission of their truth. Section. 3504, C. & M. Digest. The decree granting plaintiff a divorce was therefore erroneous.

Within the time limited by law for an appeal to this court, the defendant perfected an appeal.

In 1 C. J., page 171, § 289 of the chapter on Abatement and Revival, it is said: “Where the party seeking a divorce appeals from a judgment, simply denying it, and pending the appeal either party dies, the appeal and the action abate absolutely and cannot be revived, there being no one living who can legally have any interest in the same. But it is otherwise in so far as the property rights of the parties are involved. It has also been held that the right of a party against whom a decree of divorce has been rendered to have the same reversed for error is not defeated by the death of the other party pending the appeal.”

We do not have for decision the question whether an appeal could be prosecuted where no property rights are involved, for property rights were adjudged here; and there appears to be no division of authority as to the existence of the right of appeal when the decree also adjudicates property rights. 7 Emc. of Proc., page 834.

In the case of Strickland v. Strickland, 80 Ark. 451, the court had decreed in favor of the husband, and the wife appealed, and after the submission of the cause the husband died. The court said: “Of course, death terminates a divorce suit; but where property rights depend on the correctness of a divorce decree, and an appeal has been taken from it, it is the duty of the appellate court to review the decree in. order to settle the property rights. (Citing cases).” See also Johnson v. Bates, 82 Ark. 284.

The decree in regard to the property is based upon the decree for divorce, and as that decree was improperly rendered, the entire decree must be reversed. It is so ordered.


author: Smith, J. McCulloch, C. J.

text:
    Ex parte Coulter.
    Opinion delivered October 29, 1923.
    1. DIVORCE AND ALIMONY — ENFORCEMENT OF DECREE.-r-Courts of chancery have the inherent power to enforce their decrees awarding- alimony, and may do so by punishing the recalcitrant husband as for contempt.
    2. Contempt — statutory procedure. — As the procedure prescribed in contempt cases does not substantially deprive courts of the power to preserve their dignity and enforce their orders, the same must be followed.
    3. Contempt — statutory procedure. — Crawford & Moses’ Dig., § 1486, provides the procedure in civil as well as criminal con-tempts.
    4. Contempt — necessity of accusation. — Under Crawford & Moses’ Dig., § 1486, one accused of contempt there must be an accusation in court, either made by the judge or by some one in possession of the facts, before one accused of a contempt not committed in the presence of the court can be notified to appear in court and answer.
    5. Divorce — alimony—requirement of bond. — The chancery court in a proper case may require a recalcitrant husband to furnish security for the payment of future installments of alimony.
    Certiorari to Faulkner Cliancery Court; W. E. Atkinson, Chancellor;
    judgment quashed.

      Rogers, Barber & Ilenry, for appellant.
    Where the contempt is committed1 out" of ■ the presence of the court, the usual presumptions of the accused in criminal cases will prevail. 5 Stand. Pros. 383-4. If the proceeding’ is for a civil, indirect or constructive contempt, the offender must, as a rule, he brought before the court by rule or some other sufficient process. Ib: 390. The affidavit must clearly show a state of facts which give the court jurisdiction, lb. 392; or brought before the court by affidavits of persons who have knowledge of it. 89 Ark. 72; 26 Pac. 937. Here no affidavit had been'filed at the time process issued; such affidavit is essential. 102 Ark. 122.
    No brief for appellee.
   Smith, J.

Prior to April 11, 1922, Mrs. Coulter obtained a divorce from her husband, hereinafter referred to as petitioner, and on that date a decree was rendered requiring the petitioner to pay her a fixed sum of money each month as alimony.

On December 13, 1922, the following notice was served on petitioner:

“In the Chancery Court of Faulkner County, Arkansas, Bird P. Coulter, plaintiff, v. Edward H. Coulter, defendant.

‘ ‘ NOTICE.

“To Edward H. Coulter, the above named defendant: Ton are hereby notified that I will file a motion in the above entitled cause asking that you be adjudged in contempt of court, and dealt with accordingly, for refusing and failing to comply with the orders of the court heretofore made, ordering and directing you to pay to the clerk of the court certain sums monthly to aid in the support of your minor children. I will also ask for such other relief as the court may deem proper to grant. Said motion will be called for hearing on Tuesday, December 19, 1922, at 11 a. m., on said day, or as soon thereafter as the court can give it attention.

“ (Signed) J. C. & Wm. J. Clark,

“Attorneys for Bird P. Coulter.”

On December 16, 1922, a motion was filed praying that petitioner be adjudged in contempt for failing to comply with the decree of April 11. This motion contains a recital of the facts stated above, and that petitioner had failed and refused to make payments which the decree of April 11 required him to make.

Petitioner failed to respond to the notice served on him, and the court heard the testimony in his absence, which was submitted in support of the motion. The court made the finding of fact that petitioner would not comply with the orders of the court unless he was compelled to give security requiring him to do so, and made an order that petitioner be taken into custody and confined in jail until he had made the payments past due and had given bond in the sum of $750 conditioned that he would make future payments as they matured.

Petitioner seeks by certiorari to quash this decree upon the ground that the court had not obtained jurisdiction of his jjerson, and that the court had no jurisdiction to require him to give security to pay future installments of alimony.

It is settled, of course, that courts of chancery have the inherent power to enforce their decrees awarding alimony, and that they may do so by punishing the recalcitrant husband as for contempt. But, as in other case^ of contempt, it is competent for the Legislature to prescribe the procedure whereby this power may be exercised. The General Assembly of this State has. prescribed the procedure in contempt cases, and, as the legislation does not substantially deprive courts of the power to preserve their dignity and enforce their orders, the same must be followed. State v. Morrill, 16 Ark. 384; 6 R. C. L. § 37, page 525; note 117 Am. St. Rep. 960; note 53 Am. St. Rep. 600; Cheadle v. State, 59 Am. Rep. 199, 205.

In chapter 34 of C. & M. Digest — this being the chapter on contempts — the procedure is defined. 'By § 1486 of this chapter it is provided that “contempts committed in the immediate view and presence of the court may be punished summarily; in other cases the party charged shall be notified of the accusation, and have a reasonable time to make his defense.”

In the case of Carl-Lee v. State, 102 Ark. 122, the practice under this section was thoroughly considered. It was first contended by the contemnor in that case that the court was without power to institute contempt proceedings, but the majority held against that contention.

It was also contended that the court was without authority to punish for contempt not committed in its immediate view and presence without an affidavit or information bringing the facts to its knowledge, first made, and this contention was upheld by the majority of the court.

It is true that case was a criminal contempt, but that fact is unimportant, as tbe section there construed (§ 722, Kirby’s Digest, which is § 1486, C. & M. Digest) provides the procedure in cases of criminal and civil con-tempts alike. After stating that many authorities hold that it is necessary to decide whether the charge preferred constitutes a civil or criminal contempt, in order to determine the procedure for its punishment, Justice Kirby, for the majority, said: “It appears to us, however, and especially in this State, when the punishment is inflicted for disobedience to the order of, and to compel a proper regard for the dignity and authority of, the court making it, and the proceeding is in the name of the State against the accused, as in other criminal offenses, and the fine and imprisonment are paid and discharged in the same way as fines and imprisonment inflicted in misdemeanor cases are satisfied, that there is, in effect, no difference.”

After a review of the authorities, the opinion of the majority was further expressed as follows: “Under our system of procedure, the accused is entitled to be informed with reasonable certainty of the facts constituting the offense with which he is charged and an opportunity to make defense thereto — his day in court. The different kinds of procedure have been outlined for the punishment of other offenses, but the statute, as to this one, says only that he shall be notified of the accusation and have a reasonable opportunity to make his defense. There must be an accusation before the accused can be notified of it, and there is no reason why the court in session cannot recite that the matter offending has come to its knowledge, setting it out in an order, and direct a citation thereon to show cause.”

Section 1486, C. & M. Digest; provides that, in all eases of contempt, except those committed in the immediate view and presence of the court, the party charged shall be notified of the accusation; and the Carl-Lee case, supra, went off on the proposition that there must be an accusation before the accused could be notified of it.

This construction of the statute appears to he conclusive of this case. There was no accusation pending against petitioner when the notice was served on him to appear in court. The attorneys for Mrs. Coulter appear to have proceeded on their own volition to cite petitioner to appear and answer a charge of contempt, when there was no such charge pending.. It is 'the function of the court to authorize the issuance of a citation to appear and answer a charge of contempt, either criminal or civil.

We know of no law or practice which permits an attorney to determine whether a person shall he haled into court to answer a charge of contempt. It is the province of the court, and not that of an attorney, to determine whether a prima facie showing had been made that one is in contempt of court.

There must first be an accusation in some form, made either by the judge himself or by some one in possession of the facts, sufficient to constitute a prima fade case, and, upon this accusation, the party charged is notified in order that he may have a reasonable time to make his defense. Section 1486, C. & M. Digest; York v. State, 89 Ark. 72; Carl-Lee v. State, supra. See also § 44 of chaper “Contempt” in 6 R. C. L., p. 531, and § 88 of chapter “Contempt” in 13 C. J., page 64, in the note to which section the cases of Carl-Lee v. State and York v. State, supra, are cited in support of the text.

It is true a pleading designated as a motion, which appears to have been in proper form, was filed before the charge was heard by the court. But this motion or charge had not been filed when the notice was served on petitioner. Petitioner was not required to respond to this notice, because the attorneys had no authority 'to give it, and there could not then have been any finding by the court that a prima facie showing had been made, because no accusation had then been preferred.

We conclude therefore that petitioner’s first ground of attack is well taken, and the decree of the court must therefore be quashed.

Petitioner asks ns to decide the second ground of Ms attack (as a second appeal may thereby be prevented), which is that the court may not require security to pay future installments of alimony. We do this, and our opinion is that, in a proper case, the court has authority to require security to be given for future payments of alimony. This is the express holding in the case of Ex parte Caple, 81 Ark. 504, in which Justice Riddick, for the court, enumerates conditions under which that order would be proper. See also § 3509, C. & M. Digest; Shirey v. Hill, 81 Ark. 137; Casteel v. Casteel, 38 Ark. 477; § 1859, page 2011, vol. 2 Schouler on Marriage and Divorce, etc. (6th ed.).

For the error indicated the decree is quashed.

DISSENTING OPINION.

McCulloch, C. J.

It seems to me, with the utmost respect for the views of- my fellow judges and those who preceded us, that a series of over-technical decisions of this court has made a proceeding for punishment for contempt more difficult and involved than a prosecution for the highest crime known to the law. The present decision of the majority goes a step further than any previous ones, and, I think, overrules some of the cases heretofore decided, in holding that the procedure for the punishment for contempts “committed in the presence or hearing of the courts, or in disobedience to process” is subject to regulation by statute. The Constitution (art. 7, § 62) provides, in substance, that the procedure in such instances is beyond the regulatory power of the Legislature. Ford v. State, 69 Ark. 550; Bryan v. State, 99 Ark. 163.

The power to punish for contempt in the presence of the court, or in disobedience of process^ is inherent ill the courts, and the procedure rests upon common-law principles, and not upon regulations enacted by the Legislature. Turk v. State, 123 Ark. 341. The only essentials in the procedure are that the accused shall have notice and an opportunity to make his defense. Conceding, however, that the statute regulating* contempt proceeding’s is applicable, it only provides that, in proceedings other than for contempt committed in the immediate presence of the court, “the party charged shall be notified of the accusation and have a reasonable time to make his defense,” and that “the.substance of his offense shall be set forth in the order or warrant of commitment.” Crawford & Moses’ Digest, §§ 1486, 1487. The statute contains no provision concerning the method of initiating the proceedings. It merely provides, as shown above, that there must be notice and an opportunity to prepare for defense.

The distinction between civil and. criminal contempts is recognized, and in York v. State, 89 Ark. 72, and Carl-Lee v. State, 102 Ark. 122, it was held that the proceedings for .civil contempt must be initiated by the injured person, while in criminal contempts the proceedings may be initiated by the courts.

Conceding that the better practice in civil contempts is for the injured party to first present his petition to the court and obtain an order of citation to the accused to appear and show cause why he should not be punished, this is not mandatory, and the requirement for notice to the accused is fully met by a notice given by the injured party to the accused that the application to the court will be made at a stated time. The accused is thus given an opportunity to prepare his defense and to be heard by the court before punishment is inflicted. Under this method of procedure nothing is omitted for the protection of the legal rights of the accused. If he has notice of the proceeding’s and fails to appear, he cannot complain merely because the notice was given by the injured party and not by the court. The court acquired jurisdiction by the filing of the petition, and the jurisdiction was complete at the time the court made its? order, even though the petition had not been filed at the time the notice was given. The fact that the notice was given by the party and not by citation of the court, and that the petition was filed after the giving of the notice, is a mere matter of form or detail rather than of material substance, and does not affect the jurisdiction of the court to hear and determine the questions involved.

It is stated in the opinion of the majority that no person has the right to hale another into court to answer a charge of contempt, but the answer is, I think, that a notice by the injured party does not “hale” the accused into court — he goes merely on his own volition if he cares to make defense to the charge.