text:
    Drainage District No. 9 of Miller County v. Merchants' & Planters' Bank.
    Opinion delivered February 20, 1928.
    1. Drains — requirement op notice of establishment op district and assessment op bbnepits.- — The requirements of Crawford & Moses’ Dig., §§ 3607, 3615, relating to notice of formation of drainage districts and of the assessment of benefits, are jurisdictional, as publication of notice is in the nature of constructive service, and compliance with the statute is necessary.
    2. Drains — publication op notice. — Under Crawford & Moses’ Dig., §§ 3607, 3615, requiring publication of notices in some newspaper published and having a general circulation in the county' and issued within the county, held that notices of the organization of a drainage district and of the assessment of benefits therein, which were printed on presses located across the State line, but brought into a town within the county and bearing the name of such town and county and distributed therefrom in the first instance, was a sufficient compliance with such statutes.
    Appeal from Miller Circuit Court; J. H. McCollum; Judge;
    reversed.

      B. E. Carter and J. D. Head, for appellant.

      Henry Moore, Jr., for appellee.
   McHaney, J.

Appellant, Drainage District No. 9, Miller County, Arkansas, was organized under the provisions of §§ 3607 et sec/, of C. & M. Digest, and was begun by petition filed in Miller County Court on August 16, 1927. The procedure provided by statute having been complied with, the court, on August 17, 1927, made an order fixing September 3 thereafter ias the day on which the court would hear -said petition, and directed the clerk to give notice, calling upon the property owners to appear at such hearing and show- cause for or against the establishment of the district. The clerk complied with the order of the court by publishing such a notice in the Texarkana Evening News, 'a newspaper actually printed in the State of Texas, about one-half block across the State line from the Arkansas side, but which carried a Texarkana, Arkansas, headline and dating, and the whole issue of such newspaper, after being so printed in Texas, was actually carted to the office of the Texarkana Evening News on the Arkansas side of the State line, and about one-half block therefrom, and there, for the first time, released and distributed to the public, both by newsboys and by mail.

On the day so appointed for the hearing a.majority petition was filed, and the court made an order establishing the district and appointing commissioners, in which it found that the clerk “has given due notice by-publication for more than two weeks in the Texarkana Evening News, a newspaper published and having a general circulation in Miller County, Arkansas,” etc. Thereafter the commissioners appointed by the court filed their assessment of benefits, and the court fixed October 3, 1927, for a hearing- thereon, and the clerk was again directed to publish a notice of this hearing. The notice thereof was published in the same newspaper. On October 1 the appellee, being- a property owner in the district, filed its protest against the assessment, on the ground that the assessment of benefits was void, for the reason, as alleged, that no notice had been given by the clerk to property owners of the date fixed by the court to show cause for or against the establishment of the district “by any publication in a newspaper published in and having a general circulation in Miller County, and no notice has been given as required by law of the assessment of benefits by publication for two weeks in any weekly newspaper published and issued -and having la general circulation in Miller County, Arkansas.”

•On October 3, the date set for the hearing, the court entered an order finding “that the Texarkana Evening News is run through- the presses and printed in Texarkana, Texas, and is thereafter brought in bulk to. the office of said paper at 217 Vine Street, in Texarkana, Miller County, Arkansas, and is there distributed to newspaper boys for sale on the street and to carriers for delivery to subscribers. The court finds that said newspaper i-s not published in Miller County, Arkansas, that no other notice -of said hearing was given, and that said order establishing -said district is void.”

From that order appellant took an appeal to the circuit court, where, on December 15,1927, it made a finding substantially in the same language as the finding of the county court, and in addition that “said paper has a bona fide circulation in Miller County, and there is no other paper which purports to -be published or issued in said county.” And entered an order confirming the judgment of the county court, from which the drainage district has appealed to this court.

The only question we find it necessary to decide in this case is whether the above notices were published in compliance with the statute. If so, then the district was legally organized, and notice of the assessment of benefits was properly given, otherwise the judgment of the circuit court is correct.

That part of § 3607, C. & M. Digest, relating to the publication of a notice to the property owners in the establishment of the district, reads as follows: “The county clerk shall thereupon give notice by publication for two weeks in some newspaper published and having a general circulation in the county, calling upon all persons owning property within said district to appear before the court on some day to be fixed by the court,' to show cause in favor-of or against the establishment of said district. ’ ’

And that part of § 3615 relating to the notice to be given by the clerk on the filing of the assessment of benefits reads as follows: “Upon the filing of said assessment the county clerk shall give notice of the fact by publication two weeks in some weekly newspaper issued in each of the counties in which the lands of the district may lie.”

The act of May 8, 1899, brought forward in the Digest as § 6807 under the head of “Legal Notices and Advertisements,” reads as follows:

“All advertisements and orders of publication required by law of order of any court, or in conformity with any deed of trust, or real estate mortgage, or chattel mortgage, where the amount therein received exceeds the sum of $350, or power of attorney or administrators’ notices to be made, shall be published in some newspaper published and having a bona fide circulation in the county in which the proceedings are had, to which such advertisement or order of publication shall pertain; if there be no newspaper published in such county, then by posting five written or printed notices in five of the most public places in such county; provided, the provisions of this act shall not apply to sales under executions issued by justices of the peace; and provided further, that, as to amounts under $350, notices, written or printed, may be posted in five conspicuous places in the county, and notice shall be served in all cases upon the debtor as summons are now served.”

It will be noted in none of the statutes above quoted that the word “printed” is anywhere used therein so as to require such notices to be “printed” and “published” in the county. In the first statute quoted, § 3607, the notice is required to be given by publication “in some newspaper published and having a general circulation in the county.” The next section quoted, § 3615, is that the publication shall be in some newspaper “issued” in the county, and that the general statute pertaining to legal notices and advertisements is that they “shall be

published in some newspaper published and having a bona ficle circulation in the county.”

Under the statute existing prior to 1899 relating to legal notices and advertisements, which provided that the publication shall be “in some daily or weekly newspaper printed in the county where the suit or proceeding is pending, or where the * * * subject of the proceeding or publication is situated, provided there be any newspaper printed in the county having a bona fide circulation therein, which shall have been regularly published in said county for the period of one month next before the date of the publication of said advertisement,” this court held, in Jackson v. Beatty, 68 Ark. 269, 57 S. W. 799, that the word “published” as used in that statute was synonymous with the word “printed.” The court there said: “Nor will we, in this special statutory and summary proceeding, indulge in any astute refinements of construction in order to show that the statute in regard to jurisdiction has been complied with.”

The substance of the opinion in this case is stated in the syllabus as follows:

“An order calling in county warrants for cancellation and reissue is void where neither the.proof of publication, nor the sheriff’s return, nor the record of the court, shows that the newspapers in which such order was advertised were regularly published in the county for the period of one month next before the date of the first publication of said advertisement, as required by Mansfield’s Digest, § 4356.”

The decision in this case, being under a different statute, cannot be controlling here. Since, as we have seen, the Legislature has removed the requirement that the notice of publication be made in a newspaper printed in the county, the question for our determination is, whether the Texarkana Evening News was published in Texarkana, Miller County, Arkansas, although printed in Texarkana, Texas. Nor do we think that the decisions of this court in Wolf v. Phillips, 107 Ark. 376, 155 S. W. 924, where it was held that a paper printed in one judicial district and having a circulation in the other did not comply with the law requiring publication in a newspaper in the district where the land is located, and Gibson v. Incorporated Town of Hoxie, 110 Ark. 547, 162 S. W. 568, where it was held that the statute requiring certain city ordinances relating to improvement districts to be published in some newspaper published in said city or town for one insertion, were mandatory, and required such notices to be published in a paper actually published in the city or town where the ordinance is passed, and the publication of the ordinance in a newspaper published in the adjoining town of Walnut Ridge was not in compliance with the statute, although there was no paper published in Hoxie at that time, are controlling here.

The whole object of the statute relating to notice in the formation of drainage districts and the assessment of benefits therein is to give notice to that part of the public affected thereby, and is jurisdictional. The publication of the notice must be made in accordance with the statute, as it is in the nature of constructive service and takes the place of actual service on those interested. As was said by this court in Winn v. Campbell, 94. Ark. 841, 126 S. W. 1060: “That publication required by the statute was intended as a substitute for personal service, and, in order to give the court jurisdiction, compliance with the terms of the statute was imperative.”

The best definition of the word “publish” that has ' been brought to our attention, and the one that apparently has been adopted and accepted generally by the. courts of last resort throughout the country, was that of Mr. Justice Field in Leroy v. Jamison, Fed. Cases 8271, where he said:

“In one sense, a paper is published in every place where it is circulated, or its contents are made known But it is not in that general sense that the language, ‘place of publication’ in the statute is used. That language refers to the particular place where the paper is first issued, that is, given to the public for circulation.”

This definition was followed by the New York Court in the case of In re Gainsway, 66 Misc. Rep. 521, 123 N. Y. Supp. 966, where the court said:

“The proof is satisfactory that the notice appeared in a printed newspaper known as the Remsen News, which was circulated in the town of Remsen, at least five days before the election. But the claim is that the Remsen News is not a newspaper published in the town of Remsen. The proof shows that the Remsen News is ia weekly newspaper, printed in some place other than the town of Remsen, but entered as second-class matter in the town of Remsen, and mailed to a large number of subscribers in the postoffice at the village of Remsen, and itself shows that it is intended for the town of Remsen and to be uttered and distributed in the first instance in said town. In my opinion, at the time of the alleged publication, it was a newspaper published in the town of Remsen, and the notice was legally published.” ■

That decision was under a statute that provided that the notices “shall * * * be published at least five times before the vote is to be taken, once in one newspaper published in the county in which such town is situated, which shall be a newspaper published in the town, if there be one.”

The Illinois Supreme Court, in Polzin v. Rand-McNally & Co., 250 Ill. 561, 95 N. E. 623, Ann. Cas. 1912B, 471, defined the word “published” as follows: “By the word ‘published’ is clearly meant the place where the newspaper is first issued or printed, to be sent •out by mail, or otherwise.”

See also People v. Bead, 256 Ill. 408, 100 N. E. 230, Ann. Cas. 1913E, 293; Nebraska Land etc. Co. v. McKinley-Lanning Loan & Trust Co., 52 Neb. 210, 72 N. W. 357; Amos Brown’s Estate v. City of West Seattle, 43 Wash. 26, 85 Pac. 854; LeFavor v. Ludolph, 35 Cal. App. 145, 169 Pac. 412. And in 29 Cyc., under the head of “Notices,” it said: “The place of publication of a newspaper is that indicated on its face, and such paper is printed in the place so designated, within the meaning of a statute requiring the publication of a certain advertisement, and it matters not that part or even all of its issue is printed elsewhere, or that part of its issue is mailed elsewhere. The whole city, village or township in which a newspaper is published is its place of publication within the meaning of la statute requiring an advertisement to be published in a newspaper.”

iSince, as we have already seen that the Texarkana Evening News, although printed in Texarkana, Texas, is brought across the line into Texarkana, Miller County, Arkansas, showing on its face that it is a Texarkana, Miller County, Arkansas, publication, with such a headline and dating, and for distribution to the public in the first instance, it necessarily follows that such newspaper was published in Texarkana, Miller County, Arkansas, within the meaning of the statutes relating to notices in the organization of drainage districts and the assessment of benefits therein, as heretofore quoted.

The judgment of the circuit court will therefore be reversed, and remanded with direction to enter a judgment overruling the order of the county court and sustaining the legality of the organization of the district, and the assessment of benefits therein, in so far as affected by the legality of the notice published in the Texarkana Evening News, and for further proceedings according to law.


source: Caselaw Access Project

author: Mehaffy, J.

license: Public Domain

text:
    Arkansas Railroad Commission v. Galutza.
    Opinion delivered February 20, 1928.
    Public service commissions — necessity of motion for appeal.— Where the Railroad Commission failed to file a motion in writing in the circuit court, praying an appeal from the circuit court’s order setting aside the Commission’s action, as required by Acts 1921, c. 124, § 21, the appeal of the Commission will he dismissed.
    Appeal from Pulaski Circuit Court, Second Division; Richard M. Mmm, Judge;
    appeal dismissed.

      H. W. Applegate, Attorney General, John L. Carter, Assistant, and Robinson, House & Moses, for appellant.

      Charles Stan Harley and Louis Tarlowski, for appellee.
   Mehaffy, J.

The Messina Bus Line was granted a license certificate on May 31,1927, authorizing- it to operate a bus line on certain highways in the State of Arkansas, particularly from Helena to Ferguson, in Phillips County. On June 15, 1927, the Railroad Commission granteda permit to operate a taxi service to Joe Galutza, G. Centenio and Mike Messina, and the permit for taxi service provided, among- other things:

“It is further ordered that said Joe Galutza shall not operate upon a fixed schedule between fixed termini and over the route of a bus line heretofore granted or hereafter to be granted a license certificate, the intent of the Commission in issuing- this permit being that applicant herein shall not interfere with the operation of a regular bus line.”

The Messina Bus Line filed a petition before the Railroad Commission, alleging- that it had a license and permit to operate a bus line .from Helena to Ferguson and other places, and that, on the 15th day of June, 1927, the defendants were granted a permit to operate a taxi service, and it alleged that they operated their cars ahead of the Messina Bus Line schedule; they took on and discharged passengers at all points between Helena and Ferguson and return, and that the service as conducted by them seriously interferes with the operating of the Messina Bus Line Company; that the defendants have no fixed schedule, no fixed termini, and the method by which they are operating results in great damage and unfair and unauthorized .competition to the plaintiffs. :The prayer was for a hearing and cancellation of- permits granted to the defendant.

The defendants filed response, denying the material allegations of the complaint.

The Railroad Commission gave notice, and granted a hearing, and, after hearing the testimony, the Commission found that the defendants had violated the terms, of their permits, and made an order canceling the permit to the defendants. An appeal was taken to the Pulaski Circuit Court, where a trial was had, and the circuit court found that the order of the Railroad Commission was unreasonable, and should be set aside, and made an order setting it aside.

The Arkansas Railroad Commission filed its transcript in court, and prayed an appeal, which was granted by the clerk of this court on November 14, 1927. The Arkansas Railroad Commission did not file any motion for a new trial in the circuit court.

Appellee’s first contention'is that the appeal should be dismissed because no motion for new trial was> filed in the lower court.

■Section 21 of act 124 of the General Assembly of 1921 provides the manner in which appeals must be taken to the Supreme Court. That part of it necessary to be considered here reads as follows:

“ Appeal to the Supreme Court. — Within thirty days after rendition of any order of any circuit court under the terms of this act, whether such order be rendered on appeal of municipal council or city commission action, or Arkansas Railroad Commission action, any party aggrieved may file a motion in writing in said circuit court, or in the office of the clerk thereof, praying an appeal from such order to the Supreme Court of Arkansas, which motion, when so filed, shall be granted as a matter of right by the said circuit court or by the clerk thereof: and in such case the appeal to the Supreme Court shall be governed by the procedure, and reviewed in the manner applicable to other appeals from such circuit court, except that any finding of fact by the circuit court shall not be binding on the Supreme Court, but the Supreme Court may and shall review all the evidence and make such-findings of fact and law as it may deem just, proper and equitable. The record shall be lodged in the office of the clerk of the Supreme Court within sixty days from the rendition of the order in the circuit court, and all such. cases sliall be regarded and treated in the Supreme Court as cases involving public interest, and sliall be advanced alid given preference oil tbe docket of said court on motion of either party. ’ ’

It will be observed from the reading of this act that the party aggrieved, or the party desiring to take an appeal, takes the appeal by filing a motion in writing in the icircuit court, or in the office of the clerk of the circuit court, praying an appeal. It is necessary that this motion in writing be filed. This was not done by the appellant in this case.

It therefore appears that the appellant did not take an appeal in the manner provided by law by filing his motion in writing in the circuit court or with the circuit loletrk, and the appeal is therefore dismissed.


author: Humphreys, J.

text:
    Williams v. Kagy.
    Opinion delivered February 27, 1928.
    1. Gaming — betting on elections — Betting on the result of elections, including primary elections, is illegal and void, under Crawford & Moses’ Dig., § 3890, making it a misdemeanor to bet on the result of any general, special or primary election in this State.
    2. Gaming — recovery of bet. — The provision in Crawford & Moses’ Dig., § 4899, that a bettor may recover money or property from the winner by,a suit within 90 days'after payment of the money . or delivery of the property, does not apply to a stakeholder nor affect his liability to a bettor who requests return of the wager while the contract is executory, but applies only to the bettor after execution of the contract.
    3. Gaming — right to recover bet. — One malting a bet as to the result of primary election to nominate a candidate for the office of sheriff is entitled to recover amount of the wager deposited with the stakeholder, under Crawford & Moses’ Dig., § 3890, where he requested its return before the stockholder had paid it over to the winner.
    Appeal from Sebastian Circuit Court; J. Sam Wood, Judge;
    reversed.

      W. L. Curtis, for appellant.

      James B. McDonough, Jr., and James B. McDonough, for appellee.
   Humphreys, J.

This suit was brought in the Fort Smith District of Sebastian County by appellant againstappellees to recover $1,000 posted by him as a bet or wager with J. D. Kuykendall that John B. Williams would receive more votes for sheriff than Pink Shaw in the Democratic nominating primary election held on the 10th day of August, 1926. It was alleged that, a few days before the election, appellant and J. L. Kuykendall made a bet, and each posted a wager of $1,000 with R. H. Kagy, cashier of the City National Bank, as stakeholder, with instructions to deliver the entire amount, or $2,000, to appellant if John ¡B. Williams won, but to J. L. Kuykendall if Pink Shaw won; after the primary, and while a controversy was pending with reference to which candidate received the greater number of votes, and while the wager was still in the hands of the stakeholder, appellant notified R. H. Kagy to return to each one of the bettors the amount he had deposited as a wager, and that Kagy returned the $1,000 to J. L. Kuykendall but refused to return the $1,000 to him, and, instead, deposited said amount to the credit of J. L. Kuykendall in a special fund or deposit in the City National Bank, under agreement that it should not be subject to check.

Summons was issued and served upon R. H. Kagy on December 13,1926, and upon J. L. Kuykendall and the' City National Bank on January 13, 1927. On March 5, 1927, R. H. Kagy and the City National Bank filed an answer, denying the material allegations of the complaint, and alleging that the wager was placed in the hands of R. H. Kagy as stakeholder under agreement that the total amount should be delivered to J. L. Kuykendall if Pink Shaw was elected next sheriff in the Democratic primary election of Sebastian County, but, if not, to appellant. They further denied any liability either to appellant or J. L. Kuykendall, or that they had any interest in the litigation, or had ever asserted any right to the money, or that it was incumbent upon them to decide which was entitled to the wager. They admitted that, after receiving’ notice from appellant to return each his money, they returned $1,000 to Kuykendall, but placed the other $1,000 deposited by appellant in a special fund with the understanding that it should abide decision of a court.

J. L. Kuykendall'filed a separate answer, specifically denying that he made a wager with appellant or posted any money with R. H. Kagy for that purpose.

The cause was submitted upon the pleadings and testimony, at the conclusion of which each asked for a peremptory instruction in his favor, and asked no other instructions. The court instructed a verdict in favor of appellees, which the jury returned, and upon which judgment was rendered dismissing appellant’s complaint at his cost, from which is this appeal.

The bill of exceptions reflects, according to the undisputed testimony, that appellant and J. D. Kuykendall bet $1,000 on the result of the race for sheriff between John B. Williams and Pink Shaw in the Democratic primary election held in Sebastian County on the 10th day of .August, 1926, and posted $1,000 each with R. H. Kagy, cashier of the City National Bank of Port Smith, as stakeholder, under agreement that the entire amount should be delivered to appellant if John B. Williams ^should win and to J. D. Kuykendall in case Pink Shaw should win the nomination. A controversy arose between the two candidates as to which was nominated, resulting-in a contest in court, which was decided in favor of Pink Shaw. While the money was still in the hands of the stakeholder, appellant notified him to return each the amount he had posted or deposited with him. After receiving the notice, R. H. Kagy returned $1,000 to J. D. Kuykendall,' but refused to return appellant the $1,000 he had posted with him, but placed it in a special fund or deposit in the City National Bank in the name of J. D. Kuykendall, with the understanding that it was not subject to check and to remain intact and abide the decision of a court as to whom it belonged. It was discovered in the course of the trial that J. L. Kuykendall had nothing to do with the bet. J. L. was the'father of J. D. Kuykendall, who made the wager. J. D. Kuykendall was not made a party to the suit.

Appellant contends for a reversal of the judgment upon the theory that the common-law rule prevails in Arkansas with reference to the recovery of money from a stakeholder on illegal wagers. Betting on the result of elections, including primary elections, is contrary to statute, and void in this State. Section 3890 of Crawford & 'Moses ’ Digest makes it a misdemeanor to bet on elections. It reads as follows:

“Every person who shall make any bet or wager upon the result of any general, special or primary election in this State, shall be deemed guilty of a misdemeanor, and upon conviction shall be fined any sum not less than $50.”

Even before the passage of the statute quoted, this court ruled, in the case of Jeffrey v. Ficklin and Bennett, 3 Ark. 227, 36 Am. Dec. 456, that wagers upon elections then pending are calculated to endanger the peace and harmony of society and have a corrupting influence upon the morals, and are contrary to sound policy. In that case the court quoted with approval the doctrine announced /by Comyn on 'Contracts, as follows:

“It is a general rule that, if the contract be executed and both parties in pari delicto, neither of them can recover from the other the moneys bet; but if the contract • continues, and the party is desirous of rescinding it, he may do so, and recover back the deposit. And this distinction is taken in the books, viz.: Where the action is an affirmance of an illegal contract, for the performance of an engagement malum in se, it can in no case he maintained. But, where the action is in disaffirmance of such a contract, and, instead of endeavoring to enforce it, presumes it to be void, and seeks to prevent the defendant from retaining the benefit which he derived from an unlawful act, then it is consonant to the spirit and policy of the law that he should recover. ’ ’

In the case of Perkins v. Clems, 23 Ark. 221, this court said:

“It is held by the great current of authorities that the loser of money upon an illegal wager may recover it of a stakeholder at any time before he pays it over to the winner, and that it does not lie in his mouth to say that the wager is illegal, and keep the money.”

In 12 R. C. L. page 765, paragraph 67,.the rule is stated as follows:

“While there is some authority to the effect that the courts will not entertain an action by the loser on a bet against the stakeholder after the event by which the bet is determined, almost all the authorities hold that, if money or property is placed in the hands of a stakeholder, to abide the result of a bet, or as a forfeit to bind parties to an illegal contract, it may, while it remains in his hands, be arrested by the bailor before or after the happening of the event on which the money , is to be paid or the forfeiture depends.”

The Arkansas case of Jeffrey v. Ficklin and Bennett, supra, is cited in support of the rule.

The Legislature of our State has enlarged the general rule by statute so that the loser of money or property may recover same from the winner if suit is brought for it in ninety days after payment of the money or delivery of the property so lost. Section 4899, Crawford & Moses’ Digest. This statute has no application to a stakeholder nor in any way affects his liability to a bettor who repents and requests the return of his wager while the unlawful" contract is executory. It only applies to bettors after the execution of the unlawful contract.

Appellee insists that the bettors as well ias the stakeholders are in pari delicto and that courts will not interfere in favor of either. This was the case under the common law rule with reference to executed unlawful wagers, or in suits’ to enforce such unlawful wagers, but not in suits for rescission of executory unlawful wagers.

The trial court should have instructed la verdict for appellant, under the undisputed facts in the record.

The judgment is therefore reversed, and judgment . is directed to be entered here against appellees and their bondsmen for $1,000, with interest at six per cent, per annum from December 13, 1926.


author: Kirby, J.

text:
    Boullioun v. Little Rock.
    Opinion delivered February 27, 1928.
    1. Municipal corporations — removal of improvement district commissioners — sufficiency of petition. — A petition to remove the commissioners of a street improvement district, which charges them with incompetency, gross negligence, willful disregard of duties, waste of funds and failure to file an annual settlement with vouchers, as required by Crawford & Moses’ Dig., § 5718, held to state a cause for removal.
    2. Municipal corporations — removal of improvement district commissioners. — A city council has authority to remove from office commissioners of a street improvement district.
    3. Municipal corporations — removal of improvement district commissioners. — In a proceeding to remove the commissioners of a street improvement district, it was not necessary that the city council should vote or make finding upon each separate charge, but it could decide upon proof of the. sufficiency of the proof as a whole.
    4. Municipal corporations — removal of improvement district commissioners. — Although certain members of the city council before the hearing in a proceeding for removal of improvement district commissioners had already reported on the district’s affairs with findings adverse to the commissioners, such fact did not disqualify them from participating in the hearing and decision.
    5. Municipal corporations — removal of improvement district commissioners. — Commissioners of a street improvement district, removed from office by the city council after hearings, held not entitled to a trial by all the members of the council, and hence their removal was legal, although certain members were absent from some of the hearings.
    6. Municipal corporations — removal of improvement district commissioners. — Although certain members of the city council, in

      a proceeding to remove the commissioners of a street improvement district from office were not present at all of the .hearings, that did not disqualify them from voting on the final decisions.
    7. Municipal corporations — hearing of petition for removal of IMPROVEMENT DISTRICT COMMISSIONERS. — In hearing on petitions for removal of the commissioners of a street improvement district, the city council does not constitute a court, but acts in a gwasi-judicial capacity only.
    8. Municipal corporations — review of action of city council.— The action of the city council in removing commissioners of the street improvement district from office is reviewable by the courts on certiorari.
    Appeal from Pulaski Circuit Court, Third Division; Marvin Harris, Judge;
    affirmed.
    STATEMENT BY THE COURT.
    This appeal is prosecuted from the order and judgment of the circuit court of Pulaski County refusing to quash, on certiorari, the order of the city council removing appellants as commissioners of .Street Improvement District No. 349 and its annexes in the city of Little Bock.
    It appears that four petitions, preferring charges against the commissioners and asking their removal from office, were filed with the city clerk between the dates of July 20 and September 12, 1927; that the commissioners were duly notified of the charges pending against them on the 14th day September, 1927, and summoned to appear before the council and answer said charges on the night of the 26th of September, 1927, twelve days after the summons.
    They appeared in person and by counsel on September 26, 1927, and, after a hearing for several hours, the council adjourned until the night of October 3, 1927, at which time the commissioners were present with their counsel at the hearing, which was adjourned until the night of October 5, 1927, when the commissioners were again present, and the hearing was finally concluded. Sixteen of the eighteen members of the council found the commissioners guilty of the charges preferred, and adopted a resolution and made an order removing them from office.

      Herman Heiden, an owner of property in Street Improvement District No. 349 and the Marshall .Street Annex thereto, filed a supplementary petition, requesting the removal of the commissioners of the improvement district, adopting and making part of his petition the petitions for removal of the commissioners already filed with the council by iS. M. Alley, Joe Ferguson, and others; also the report ;and petition filed with the council by the committee of which J. A. Craft was chairman, and the report filed with the council by its committee on streets, of which Alderman Gay was chairman, relating to the district and its annexes, with the resolution and petition attached thereto; and, for further cause for removal of the commissioners, stated that they had refused to. furnish the accountants selected by the city of Little Bock with information that would enable them to make an audit of the district’s affairs. The petition was verified and filed on September 27, 1927.
    The sixteen members present, of the whole number of eighteen alderman elected to the council, at the conclusion of the hearing passed a resolution finding the charges sustained, and made an order removing the commissioners. The circuit court, on petition for certiorari, examined the order of the council, and affirmed it, and the appeal here comes from that order.

      Melbourne M. Markin, for appellant.

      Pat L. Robinson, for appellee.
   Kirby, J.

There is no merit in the contention that the charges or petitions for removal of the board of improvement of the ¿district and its annexes were not sworn to, or the complaint that the members were not duly notified of the filing thereof. The undisputed testimony shows the filing of a verified petition or complaint by Herman Heiden, and the attachment thereto as exhibits of the other petitions and requests of committees, also Verified, all specifying charges against the members of the board for incompetency, gross negligence, and willful disregard of their duties, mismanagement, and waste of the funds, and failure to file the annual settlements with vouchers as the law requires.

The testimony also shows that they had more than ten days’ notice of the time set for hearing of these petitions by the city council, and that they attended in person and by attorney the meeting’s of the council throughout the entire hearing, and filed no answer denying any of the charges made and produced no testimony in explanation or in justification of their conduct.

The law requires the 'boards of improvement in municipal improvement districts to file annual statements or settlements with the clerk of the city or town in which such improvements have been ordered made, showing all collections and money received and paid out, with proper vouchers for all such payments (See § 5718, C. & M. Digest). The undisputed testimony shows that they failed to file such vouchers showing the payments of the money with their settlements, and also that they refused to furnish the auditor, appointed by the city council to examine and audit the accounts of the district, with such vouchers, their attorney saying that they did not have them, and would not produce them for his examination if they could.

The auditor testified that there was a discrepancy or difference in the amount of the expenditures as shown by the annual settlement of the board, and such vouchers and information as he could get from others, and the books and accounts of the contractor, engineer and the bank, and that it was impossible to tell what went with this money, in the state of the accounts, and that he had no assistance from the commissioners in trying to make a correct audit of the affairs of the district and its annexes.

Certainly the cause or grounds alleged for the removal of the members of the board of improvement related specially to and affected the administration of the office, and were all substantial matters directly affecting the rights and interest of the public, and constituted cause for removal within the provisions of the statute, and the council was acting within its authority in removing them. Carswell v. Hammock, 127 Ark. 110, 191 S. W. 935.

It was not necessary that the council should vote or make-a finding upon each specification or charge made as cause for removal of the commissioners, as contended by appellants. It had the right to consider the proof as a whole and to decide upon its sufficiency as a whole, and was not required to vote upon each or any separate charge without reference to the evidence or proof upon the other charges or specifications, as held in Carswell v. Hammock, supra. There is nothing shown in this case to warrant the request for overruling that case as a correct statement of the law.

Whatever the reason for the action of these commissioners in the conduct of the affairs of the district and their failure to keep proper accounts of the money collected and paid out by the district, and make annual report or settlements thereof, with the vouchers showing the payments as required by law, the record here justifies the wisdom of such requirement of .the law.

Neither do we think there is any merit in appellants’ contentions that they were entitled to a trial before all the members of the council, or that they can complain that some of its members who sat in the trial had already made a report to the council upon the affairs of the district, showing they had a fixed opinion about the action •of the commissioners upon trial on the charges, amounting to preventing their having a fair trial before an impartial tribunal, and that any member of the council-who was not present at each and all the meeting’s of the council during the hearing of the matter was disqualified to vote upon the final decision.

The council was not a court, and was acting in' a g^asi-judicial capacity only in the hearing of the petition for removal, and its members were not disqualified to act because some of them had already, in an official capacity as members of the committee, investigated the conditions and reported their findings to the council, indicating an opinion adverse' to the innocence of the commissioners.

The council is given-jurisdiction to remove any member of the board of improvement of an improvement district by a two-thirds vote of the whole number of aider-men elected to the council, and in the hearing it could doubtless have followed its own rules of procedure, and, by a committee of its members appointed, made an investigation of the charges preferred, and recommended a decision or determination of the matter, which, of course, must have been concurred in by a two-thirds vote of the whole numlber of the aldermen elected.

The fact that one of the sixteen members of the council voting for the removal was absent from the hearing one night, and that another missed two of the meetings, could make no difference nor affect the result, since sixteen of the eighteen aldermen elected to the council concurred in voting for the resolution, the decision, or order for the removal of the commissioners.

The fact that some of the councilmen had already made an adverse finding to the innocence of the commissioners, in an official report to the council made after an investigation of the affairs of the district, out of which the charges grew, did not disqualify them from participating in the hearing and decision of the question, in any event. The law makes no provision for any such condition, and the council’s action can be reviewed by the courts on certiorari. Hale v. Bledsoe, 126 Ark. 125, 189 S. W. 1041; Carswell v. Hammock, supra.

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


text:
    Western Union Telegraph Company v. Fort Smith Body Company.
    Opinion delivered February 27, 1928.
    1. Telegraphs and telephones — contributory negligence. — In an action for damages caused by error in the transmission of a telegram to plaintiff’s agent, whether the latter was negligent in attempting to interpret an unintelligible message, without asking the sender for confirmation, held for the jury.'
    2. Appeal and error — conclusiveness op verdict. — The jury’s finding on a question of fact, properly submitted to them, cannot ■be disturbed by the Supreme Court.
    3. Telegraphs and telephones — contributory negligence.— Whether the plaintiff was justified in acting on a telegram to an agent as interpreted by the latter in answer to plaintiff’s inquiry, held for the jury in an action against the telegraph company for damages by error in the transmission of such message.
    4. Telegraphs and telephones — contributory negligence.— Whether plaintiff, acting on a telegram as interpreted by its agent, was guilty of contributory negligence, depends on whether the plaintiff acted as a person of ordinary prudence would have acted under the same circumstances.
    5. Telegraphs and telephones — instruction as to contributory negligence. — 'In a seller’s action against a telegraph company for damages by error in the transmission of the buyer’s telegram to the seller’s agent, an instruction that plaintiff cannot recover if the jury believe that plaintiff’s agent was negligent in not asking the buyer to confirm the message on receiving plaintiff’s message asking for information, because the agent’s first message to plaintiff was not clear, correctly submitted the question of the agent’s negligence.
    6. Telegraphs and telephones — sufficiency of evidence — damages. — Evidence held sufficient to sustain a verdict of the seller, suing a telegraph company for damages resulting from the former’s shipment of more than the number of automobile bodies ordered by the buyer in consequence of defendant’s error in transmitting a telegram directing shipment.
    Appeal from Sebastian -Circuit Court, Fort Smith District; J. Sam Wood, Judge;
    affirmed.

      Francis R. Stark, Rose, Hemingway, Cantrell & Loughborough and Pryor, Miles & Pryor, for appellant.

      James B. McDonough, for appellee.
   Mehaffy, J.

The appellee,. Fort Smith Body Company, engaged in the manufacture and sale of bodies for automobiles and trucks, etc., in the city of Fort Smith, Arkansas, brought suit in the Sebastian Circuit Court against the appellant, Western Union Telegraph Company, alleging that the Knapp Motor Company of Donna, Texas, sent a wire to appellee’s agent, George F. Hall, at San Antonio, Texas. The following is a copy of the telegram sent:

“Ship rush freight twelve special wide express with stock rack open cab and windshield and six open cabs and windshields only at same price terms and so forth as stipulated in our order dated May nineteen your number ten five one. Stop. Wire acceptance. Signed, Knapp Motor Company.”

The message was addressed to George F. Hall, San Antonio, Texas. The appellant, in transmitting the message from Donna, Texas, to San Antonio, changed the letter “y” to the letter “f” in the eighth word .from the .end, making it read “four” instead of “your,” so that, when George F. Hall received it at San Antonio, Texas, it read as follows: “Ship rush freight twelve special wide express with stock rack .open cab and windshield and six open cabs and windshields only at same price terms and so forth as stipulated in our order dated May nineteen four number ten five one. Stop. Wire acceptance. Signed, Knapp Motor Company.”

. Hall sent the massage from San Antonio, Texas, to Port Smith, Arkansas, addressed to the Fort Smith Body Company, as it was received by him, but not the message that was sent by the Knapp Motor Company. In other words, the Western Union Telegraph Company, in transmitting the message to Hall, changed the letter “y” to the letter “f,” and made it read “'four” instead of “your,” and it was received by Hall and transmitted to the Fort Smith Body Company just as the Western Union Telegraph Company had transmitted to Hall from the Knapp Motor Company.

The Fort Smith Body Company, on receipt of the telegram, telegraphed Hall as follows: “We do not understand the last sixteen words of your telegram of the twenty-seventh. Please explain more fully.”

Hall then wired the Fort Smith Body Company as follows: “Wants twelve three in one jobs complete six extra cabs also four number ten and five number one at former prices terms.”

The Fort Smith Body Company thereupon began the manufacture of the articles and shipped them to the Knapp Motor Company on August 8. On July 28 Hall wrote the Knapp Motor Company at Donna, Texas, telling them, what he had done and what he had ordered. The Knapp Motor Company, on July 30, wrote the following letter to Hall at San Antonio, Texas:

Our telegram calls for 1.3 of the ‘ 3 in 1 ’ and- 6 extra cabs at same price, terms and guaranteed freight rate, as previous carload we bought from you. We do not want the other bodies you mention in your letter dated July 28.
“Kindly acknowledge acceptance of this order and when shipment will go forward by wire at once.
“Yours very truly,
“Knapp Motor Company.”

Hall denied receiving the letter above set out.

The plaintiff asked for freight in transmission on the articles eroneously sent, because of defendant’s errors, $143.06; return freight on same articles $151.04; telegrams caused by the error of the defendant relating to said shipments, $16.71; demurrage on the shipment due to defendant’s negligence, $13.00. It also asked damages in the following sums:

“Loss of use of the articles shipped during the time they were detained away from the plaintiff .........................................................................................................:...........$50.00
“Loss of profits in loss of opportunity to sell said articles during the time that they were out of the possession of the plaintiff by reason of defendant’s negligence ............................................................ 50.00
“Damage to the articles which were shipped by reason of the transportation to and from the point of destination ......................................................... 40.00
“Making a total damage claimed by the plaintiff of....................................................................................................................$463.81

. The defendant answered, denying liability, and alleg ing the proximate .canse of the damage was Hall’s negligence in attempting to construe the telegram which he received from the Knapp Motor Company, when the appellee was unable to-determine what it -meant, and then permitting the goods to be shipped without confirmation.

Second, it contended that it was not liable to the Fort Smith Body Company on a mistake in the original message from the Knapp Motor Company, because the Fort Smith Body Company is the undisclosed principal of the sendee of that -message, and no action can be maintained by the undisclosed principal of a sendee of a telegram.

Third, that the messages were interstate messages, and no claim was presented in writing within 60 days after the messages were filed with the company for transmission.

The jury returned a verdict for $310.81. The verdict was made up of the following items:

Freight transmitting bodies not ordered........................$143.06

Return freight ............................................................................................. 151.04

Cost of telegrams caused by defendant’s negligence ............................................................................................................ 16.71

And found against the plaintiffs on the other items in the complaint.

F. E. -Knapp, manager of the Knapp Motor Company of Donna, Texas, testified that he desired to buy certain bodies and parts for automobile trucks on July 27, 1923; that he delivered to the appellant, Western Union Telegraph Company, at Donna, Texas, a telegram addressed to George F. Hall, and reading as follows: “Ship rush freight twelve special wide express with stock rack open cab and windshield and six open cabs and windshields only at same price terms and so forth, as stipulated in our order dated May nineteenth your number ten five one. Stop. Wire acceptance.”

The message was signed “Knapp Motor Company”; that the bodies which he desired were extra wide, with high side-racks, and that the cabs were open; that the message was sent collect; that, later on, he received the articles ordered in the telegram along with other articles which he did not order; that there were other automobile bodies in the car than those ordered, and that he declined to receive the other bodies, but did accept the goods ordered, and shipped back the other goods; that the matter .had been settled between him and the Fort Smith Body Company. He testified that George F. Hall wrote the Knapp Motor Company a letter, dated July 28, 1923, about this order, and that he answered Hall’s letter on July 30, explained in detail what the telegraphic order called for, and that the Fort Smith Body Company did not call upon the Knapp Motor Company for a confirmation of the order and that Hall did not wire them for confirmation of the order. He testified that his records showed that this shipment was made from Fort Smith on August 8, 1923, and that on July 30, 1923, he had written Hall.'

Hall testified that he was a traveling salesman, and was agent of the Fort Smith Body Company in the year 1923; that .on July 27, 1923, he received in San Antonio a message from the Knapp Motor Company at Donna, and that he immediately transmitfed it in the same' language to the Fort Smith Body 'Company at Fort Smith, Arkansas, by telegram. The telegram has already been set out above. That he immediately received a telegram from the Fort Smith Body Company as follows:

“We do not understand the last sixteen words of your telegram of the twenty-seventh. Please explain more fully.”

And that he then sent the following message to the Fort Smith Body Company:

“Wants twelve three in one jobs complete extra cabs also four number ten and five number one at former price terras.”

Tie testified that in sending the last message he relied upon the message which he had received through the Western Union Telegraph -Company from Donna, and that all messages were sent over the lines of the Western Union Telegraph C-ompany; that he, at the time, was the sales agent of the Fort Smith Body Company in San Antonio, Texas, selling the products of the Fort Smith Body Company generally in Texas; that he -did not change the word “your” to the word “four,” but that the message from Donna, Texas, -came to him with the word “four” used; that he naturally had no knowledge that the original message read “your” instead of “four”; that he did not know that the agent of the Western Union Telegraph Company at San Antonio knew the kind of business that he was transacting, and that it was not generally known in San Antonio that he was representing the Fort Smith Body Company; that he transmitted over the Western Union Telegraph Company to the Fort Smith Body Company at Fort Smith the exact language of the message which he received from Donna. He had been appointed agent of the Fort Smith B'ody Company in writing, but that he was unable to locate the writing; that he received a 10 per cent, commission on all sales made; that, at the -time of receiving the telegram from the Knapp Motor Company, he was not engaged in business for himself, buying and selling automobile bodies, and that he did not act as a broker in receiving the order from the Knapp Motor Company, but that he was the agent of the Fort Smith Body Company. When he received the message from the Fort Smith Body Company, that they did not understand the last sixteen words of his telegram, he sent his answer to the Fort Smith Body -Company, giving the definite number of bodies and cabs that the Knapp Motor Company wanted, without asking the Knapp Motor Company for a confirmation by wire, but undertook to interpret their message himself; that he could not give the name of any agent that handled any of the messages; that the population of San Antonio was more than 168,000 people.

Ben B. Johnston testified that he was president and general manager of the Fort Smith Body Company; had quite a business, extending from the Mississippi River to the Pacific Coast, and that the sales manager received and wrote up the orders; that when the message came from Hall on July 27, Mr. Walker, the sales manager, brought it in to witness, and stated that he did not understand the message; that they read it over together, and neither of them understood it, but that it was not a collect message, and they received it, and he advised Mr. Walker that the thing he had better do was to wire Hall to clarify the message; so they sent a message to Hall, and Hall wired back. The original message has been introduced and marked Exhibit A. The message was not exactly clear to him. The Fort Smith Body Company had previously shipped to the Knapp Motor Company their assemblies No. 10 and assemblies No. 1 in carload lots, and had naturally assumed that they wanted four No. 10 and five No. 1. He testified to the message sent to Hall and as to the receiving of the message from Hall. Upon getting Hall’s last telegram, they shipped-the goods mentioned therein. The day following the shipment they received their first notification that there was anything wrong with the shipment. The railroad company had received the car, and it was gone, and there wasn’t anything else to do but to wait; that the shipment was made on August 8,1923; that between the date of the telegram, July 28, and the 8th of August, there was no knowledge on his part that there was any error in the telegram; that they relied on the telegram given them by the Western Union Telegraph Company from Hall as stating the goods that the Knapp Motor Company wanted; that they acted on that message and made the shipment; that on August 9 they received a wire from Hall as follows: “Knapp wires ordered only sixteens and extra cabs, and will not accept balance. Evidently original order misunderstood by me. Geo. F. Hall.”

At the time of receiving this, the shipment was already on its way; the goods got to Donna, Texas, and they received a notice that the Kaapp Motor Company had refused to receive them, for the reason that there were more bodies in the car than ordered; that they ordered the extra bodies shipped back to Fort Smith; that the extra freight by reason of the error was $143.06 going and $151.04 returning; that they were out $16.71 in telegrams, $13 demurrage; that they were shipped on August 8, and they did not get them back until Sep>tember 11. Hall was the agent of the Fort Smith Body Company; that the date of his first written communication to the Western Union Telegraph Company about this claim was on October 13; tio written claim had been filed within 60 days, but he wrote the Western Union Telegraph Company a letter with reference to the claim on October 13, 1923.

A. W. Avery testified that he was shipping clerk for the Fort Smith Body Company, and that these bodies were shipped to Donna, Texas, on August 8.

Plaintiff introduced, over the objection and exception of the defendant, an assignment from the Knapp Motor Company of any interest it might have in the litigation, and also an assignment of George F. Hall of any interest he might have in the litigation. The assignment was in the usual form, assigning to the Fort Smith Body Company the right to bring and maintain a suit, if need be, for any claim that George F. Hall might have against the Western Union Telegraph Company. The same is true of the Knapp assignment.

Hettie M. Salisbury testified for the appellant that she was the manager and operator of the Western Union Telegraph Company at Donna, Texas; that the original message from the Knapp Motor Company to George F. Hall was transmitted from the Donna office on July 27; that it was a day letter, and sent collect; that it was not a répeated message, and that she personally transmitted the -message; that the message was exactly as TCnapp testified, with the word “your” instead of the word “four” in it; that the message was relayed at Brownsville, Texas, to Sail Antonio.

Fred Ward testified that he was manager of the Western Union Telegraph Company at Font Smith; that the first time that Mr. Johnston of the Fort Smith Body Company .called on him with reference to these telegrams was on October 8; that the first letter written was October 22.

Appellant then introduced the rules, as approved by the Interstate Commerce Commission, with reference to the acceptance and transmission of messages by telegraph. Among other rules is the following: “The company will not be liable for damages or statutory penalties in any case where the claim is not presented in writing within sixty days after the message is filed with the company for transmission.”

The court thereupon, at the request of the plaintiff, instructed the jury as follows:

“1. If the jury find from the evidence that the plaintiff received from its agent, George F. Hall, the telegram set up in the complaint, and if that telegram was based upon a telegram from the Knapp' Motor Company to George F. Hall,, and if the latter telegram was sent by the defendant, and if said latter telegram was erroneously sent, and if the said telegram-transmitted by the defendant from the Knapp Motor Company to George F. Hall called for different articles from the telegram actually written and delivered to the defendant by the Knapp Motor Company, and if George F. Hall, in sending the telegram to the plaintiff, relied upon the telegram received by him from the Knapp Motor Company as a true telegram; and if George F. Hall sent the telegram to the plaintiff, and if the plaintiff, relying upon the information received in the telegram; shipped different articles other than those ordered by the Knapp Motor Company, then, and in that event, the plaintiff is entitled to recover whatever reasonable damages, if any, it suffered by reason of the error or mistake of the defendant, if there was one, in sending the erroneous telegram from the Knapp Motor Company to George F. Hall.
“2. If you. find for the plaintiff, the plaintiff will be entitled to recover all direct damage resulting from the mistake, or error, or negligence of the defendant, if there was such mistake, error or negligence, including freight on the articles erroneously sent, because of defendant’s errors, if any, and the return freight on said articles, if any, and the extra telegrams caused by the defendant’s error, if any, and the demurrage, if any, due to the defendant’s negligence.”

To the giving of each of said instructions the defendant at the time objected and saved its exceptions.

The court gave the following instructions! at the request of the defendant:

“2. You are instructed that, if you believe that the purchaser of these bodies notified George F. Ha'll, the agent of the Fort Smith Body Company, by letter, that they did not want the extra .bodies, in ample time for the bodies not to have been shipped, your verdict must be for the defendant.
“5. If you believe that, when Hall received the mes-, sage from the plaintiff asking information because Hall’s first message was not clear, and that Hall was negligent in not asking the Knapp Motor Company to confirm its message on July 27, to him, then the plaintiff cannot recover. ’ ’

The court refused to give the following instructions requested by defendants:

“1. You are instructed that, under the law and the evidence, the plaintiff is not entitled to recover, and your verdict must be for the' defendant.
“3. You are instructed that, unless you believe that written claim was filed within sixty days'from the time the message was filed with the defendant, your verdict must be for the defendant.
“4. You are instructed that, unless the plaintiff proves that the defendant actually knew that George F. Hall was the agent of the plaintiff, there can be no recovery in an error in any message sent by the Knapp Motor Company to George F. Hall.”

The court,' on its own motion, gave the following instructions:

“The burden of proof. The court instructs the jury that the buirden of proof is on the plaintiff to establish his case by a preponderance of the testimony, and on the * * * to prove his case by a preponderance of testimony.
“Preponderance of evidence. A preponderance of the evidence means a greater weight of evidence; but this is not to be determined solely by the greater number of witnesses testifying in relation to any particular fact or state of facts. It means that the testimony on the part of the party on whom the buirden rests must have greater weight, in your estimation; have a more convincing effect than that opposed to it. If, in your opinion, the testimony on any essential point is evenly balanced, then the party on whom the burden rests to prove the same by a preponderance of the evidence must be deemed to have failed in regard thereto.”

After the verdict, the defendant filed a motion for a new trial, which was overruled. Defendant saved its exceptions, and has appealed to this court.

Appellant’s first contention is that the court erred in refusing to direct a verdict in its favor at the conclusion of all the evidence, first, because the proximate cause of the damage to appellee was the negligence of Hall, its agent; in attempting to interpret an unintelligible message without ashing the Knapp Motor Company for confirmation.

Appellant first calls attention to the Arkansas Valley Trust Co. v. McIlroy, 97 Ark. 160, 133 S. W. 816, 31 L. R. A. (N. S.). 1020. That was an action instituted for the recovery of damages for personal injuries sustained by a child twelve years old, and it was caused by the negligent acts of the defendants. The question in that ease was whether the minor, twelve years of age, was guilty of contributory negligence. The court, however, did not hold that that was a question of law, but it held that it was error for the lower court to give instructions A and B. Instruction number A given told the jury that, i.f a person left fire, or other instrumentality attractive to children, unguarded at a place where children are accustomed to go and play, and a child does go to or near such fire or other dangerous instrumentality attractive to children, and is injured, such child can recover damages from all those concerned in leaving unguarded such fire or other dangerous instrumentality attractive to children. And the court held that the leaving upon the premises of a dangerous object attractive to children does’not alone constitute the act of negligence; the act of negligence consists in leaving such object under such circumstances that one of ordinary prudence might reasonably expect that a child too young to appreciate the danger would be allured to and attracted thereby.

This instruction did not submit to the jury the question of the contributory negligence of the child, and the court said:

“What might be an act of negligence in leaving such an object or element resulting in attracting thereto a child of a few years of age and too young to appreciate the danger therefrom might not be an act of negligence if it should be reasonably expected that only a child of the age and maturity to fully understand and appreciate the danger from such an object or element should go near thereto, because it would not be reasonably anticipated that a child of sufficient maturity and intelligence to appreciate the danger from fire would go to and play with this dangerous element.”

In other words, it was a question of fact that should have been submitted to the jury, whether the negligence of the defendant was the proximate cause of the injury. That is, if it set out fire at a place where children would be attracted, and a child too young to know or appreciate the danger should be burned, the wrongdoer would be 'liable; whereas a person old enough to know and appreciate the danger would be guilty of negligence himself which would disentitle him to recover, notwithstanding the negligence of the person who set out the fire.

The court also held that instruction B was erroneous and should not have been given, and that told the jury if the evidence showed that the proximate cause of the injury to plaintiff was some voluntary act of hers, and not caused by the defendant’s negligence, they should find for the defendant.

Here the court said that, under the circumstances, it became a question of fact for the jury to determine, after taking into consideration the age, intelligence and capacity of the child, as to whether or not she was guilty of contributory negligence. If she was not, then the defendant was liable if it directed her to watch and guard the fire, without giving her proper warning.

In the instant case the question of negligence of Hall was properly submitted to the jury, and the jury’s finding on a question of fact properly submitted to them, cannot be disturbed by this court.

Appellant next calls attention to the case of Pittsburg Reduction Co. v. Horton, 87 Ark. 576, 113 S. W. 647, 18 L. R. A. (N. S.) 905. In that case the Pittsburg Reduction Company was engaged in mining at Bauxite, and it owned lands, houses, machinery, spur-tracks from the railroad, etc., which were near a schoolhouse, and a schoolboy about ten years of age, in going along a path near the spur-track, a place habitually used by the children of the neighborhood in going to and from school, picked up some dynamite caps on his way home from school, and carried them home with him. His father was a employee of the company, and he kept the caps at home for about a week, placing them on the floor, in the presence of his parents. When he would leave the caps on the floor his mother would pick them up. About a week after he found the caps he traded them to Jack Horton, a boy about thirteen years of age, and this boy was picking the dirt out of one with a match, when it exploded and tore up his hand. The court said in that case that the carrying of the caps home and playing with them in the presence of his mother there for a week, her course of conduct broke the causal connection between the negligent act of the appellant and the subsequent injury of the plaintiff. That it established a new agency.

We do not think the same principle is involved here. Hall received the message from Knapp Motor Company, but the telegraph company had not sent it as it was given to it, and Hall immediately sent the message received by him to the Fort Smith Body Company. It is. said that the appellee, with the exact message before it, refused to act, and' was therefore not damaged by the original negligence of appellant.

It is true that appellee did not undertake to fill the order without communicating with Hall, hut Hall thought that he understood it, and, after receiving a message from him, the Fort Smith Body Company thought that it understood it. Whether it was justified in acting under the circumstances as it did act is a question of fact properly submitted to the jury. In other words, if the Fort Smith Body Company acted in filling the order as ,a person of ordinary prudence would have acted under the circumstances it was not guilty of negligence, and was entitled to recover. If it did something that a person of ordinary prudence would not have done under the circumstances, it could not recover. The negligence charged is the negligence of Hall, and, of course, his negligence, if he was negligent, would be the negligence of the Fort Smith Body Company.

Appellant next calls attention to Manley Manufacturing Co. v. Western Union Telegraph Co., 105 Gra. 235, 31 S. E. 156. Appellant states'that there is no Arkansas, case in point, but that this case is in point. But the court in the Manley Manufacturing Company case submitted the question to the jury, telling them, in substance, that if they believed from the evidence that the message received by Manley was unintelligible and ambiguous, and that a reasonably prudent man wquld not have acted upon it without having it repeated or telegraphing to the sender, plaintiff could not recover, but that if, on the other hand, they believed that a reasonably prudent man would have acted upon it 'without having it repeated, plaintiff could recover.

The court, in discussing the case, states, that it thinks any sort of diligence would have prevented the damage in that case. The court frequently decides cases upholding the verdicts of juries, when, if the question were submitted to the court, it might find the other way. The question in the Manley case was 'Submitted to the jury, and the court did not hold that it should not have been submitted to the jury.

Appellant next calls attention to the case of Western Union Telegraph Company v. Neill, 57 Tex. 283, 44 Am. Rep. 589. The question in that case was whether the company could charge half rate and limit its liability. While the court held that the company could limit its. liability under the circumstances in that case, it said:

“Whether or not telegraph companies should he held as common carriers, with all their common law liabilities, has been the subject of much discussion and conflicting decisions * * *. If the testimony, however, should show that the failure to properly transmit or deliver a message arose from such misconduct, fraud or want of due care, then it might be very seriously questioned, indeed, whether the same reasons of public policy which prohibit exemption from liability on these" grounds would not also prohibit a limitation upon the true amount of damages which should be recovered — telegraphic communication having now become almost a social as well as a commercial necessity, and -the want of competing- lines giving to the companies greatly the vantage ground over the public.”

In Nusbaum v. Western Union Telegraph Co., 42 Leg. Int. (Pa.) 16, the message involved was insensible, substituting the word “ober” for “obey.” As transmitted, it was meaningless.

The message involved in the case of Hart v. Cable Company, 86 N. Y. 633, was held by the court to be main telligible jargon. It did not mean anything.

Appellant sails attention to the rule announced in 37 Cyc. 720, and states that, while the rule is that an undisclosed principal of the sender of a message may recover, and since the .undisclosed principal of the sender may sue, a person may, of course, sue where he is the undisclosed principal of both the sender and the sendee, but it is argued that the action cannot be maintained by one who is the undisclosed principal of the addressee alone. Appellant states that this seems to be the almost universal holding of the various courts of the United States.

In the volume of Cyc. referred to by appellant it is stated: “Since the undisclosed principal of the sender may sue, a person may of course sue where he is the undisclosed principal of both the sender and addressee, but it has been held that the action cannot be maintained by one who is the undisclosed principal of the addressee alone.” 37 Cyc. 1722. From the eases cited to the above section in Cyc. it appears that the authorities are in conflict.

The learned counsel for both the appellant and appellee have cited and discussed many authorities, but it would serve no useful purpose to review them or cite them here. The authorities are in hopeless conflict on most of the questions involved in this case. The proof clearly shows that the appellant was guilty of negligence in changing the word “your” to “four,” and if this change, resulting from the negligence of appellant, caused injury to the appellee, then the appellee was entitled to recover, unless barred by its own contributory negligence. The negligence of the appellant and negligence of appellee were questions of fact to be decided by the jury, and the appellant requested and the court gave the following instruction on the question of the negligence of the agent of appellee: “If you believe that, when TIall received the message from the plaintiff asking for information because HalFs first message was not clear, and that Hall was negligent in not asking the Knapp Motor Company to confirm its message on July 27 to him, then the plaintiff cannot recover.” This instruction correctly submitted to the jury the question of.HálPs negligence. If the message had been meaningless, or, as one court said, “unintelligible jargon,” appellee could not have recovered, but if the appellee, acting with reasonable care, understood 'the message with the word “four” instead of “your,” and if a person of ordinary prudence would have acted on it, then the appellee was not guilty of negligence. It is simply a question of negligence, and, as we have said, properly submitted to the jury, and the finding of the jury is binding upon this court on questions of fact. The evidence on the questions of negligence and contributory negligence, as well as on the question of damages, were questions of fact, and there was ample evidence to sustain the verdict of the jury.

Finding no error, the judgment is affirmed.


author: Hart, C. J.,

text:
    Pierce v. Sicard.
    Opinion delivered March 5, 1928.
    1. Venue — discretion of court. — ■A trial court has the discretion to refuse a petition for a change of venue where the plaintiff alleges that he could not obtain a 'fair and impartial trial in the county, but does not allege, any fact upon which his opinion was based.
    2. Jury — challenge of jurors for bias. — In an action against a bank and its officers for breach of a contract, it was not error to overrule plaintiff’s challenge to certain jurors because they did business with defendant bank.
    3. Jury — burden .of proving disqualification of juror. — One selected and returned as a juror is presumed competent and qualified to serve, and the burden is on the challenging party to establish a prima facie disqualification.
    4. Jury — discretion of judge in passing on qualifications. — The judge, who presides at the trial and observes the appearance and manner of jurors, must necessarily exercise judicial discretion in passing on their qualification.
    5. Jury — examination of jurors. — In an action against a bank for breach of a contract, it was not an abuse of discretion to refuse to allow jurors to answer whether they did business with the hank, which would cause them to believe an officer of the bank in preference to a stranger.
    6. Fraud — promises to act. — The general rule is that fraud must relate to a present or pre-existing fact and cannot ordinarily he predicated on promises or statements as to what will be done in the future.
    7. Fraud — false promise. — Though ordinarily a statement on which fraud may be predicated must be of an existing fact, yet, if a promise is accompanied with an intention not to perform it, and is made for the purpose of deceiving the person to whom it is made and induces him to act in the premises, the same constitutes fraud.
    8. Evidence — declarations of agent. — In an action against a bank for false promises that it would furnish money to another bank to carry on its business, declarations of defendant’s assistant cashier that defendant would see such other bank through a certain year are not competent evidence against the defendant, where they were not authorized and did not relate to any act done by the officer in the course of agency.
    9. Banks and banking — evidence as to bank officer’s liability.— In an action by numerous plaintiffs against a hank and its officers for false promises to furnish money to another bank to carry on its business, the evidence held insufficient to go to the jury on the question of liability of the 'assistant cashier of the defendant bank ■ as to plaintiffs, to whom no statement had been made by such officer or any one for him relative to the transaction in question.
    10. Appeal and error — assignment of error. — No assignment of error may be based on the action of the court in directing a verdict where such action is not one of the grounds for a motion for new trial.
    11. Appeal and error — conclusiveness of verdict. — A verdict on conflicting evidence will not be disturbed.
    Appeal from Sebastian Circuit Court, Fort ■Smith District; J. Sam Wood, Judge;
    affirmed.
    STATEMENT OE FACTS.
    L. A. Pierce and some sixty odd separate plaintiffs instituted an action in the circuit court against the First National Bank of Fort Smith, Arkansas, and A. N. Sicard and Neil Sims, respectively vice president and assistant cashier of said bank, to recover certain sums alleged to have been lost 'by the plaintiffs on account of the false promises of the defendants that said First National Bank would furnish'money to the Bank of Cameron, Oklahoma, to carry on its business during the year 1922.
    R. C. Strozier, cashier of the Bank of Cameron, was the principal witness for the plaintiffs. According to his testimony, he came to Port Smith in December, 1921, to make arrangements with the First National Bank of that city to furnish the Bank of Cameron, at Cameron, Oklahoma, with money with which to carry on its business during the year 1922. A. N. Sicard, vice president of the First National Bank, had some stock in the Bank of Cameron. One of the directors of the First National Bank asked Strozier if he would turn over his entire note-case if they would furnish him money to operate on in the year 1922. Strozier told him that he would, and they agreed on that. The directors of the First National Bank sent Neil Sims, assistant cashier, to Cameron to get the notes. Sims went with Strozier to Cameron and brought back 'all the notes the 'hank had, for the purpose of being used as collateral for money which the First National Bank would furnish to the Bank of Cameron. The notes amounted to something like $33,000. The First National' Bank of Fort Smith loaned the Bank of Cameron $10,000 at that time. The First National Bank furnished the Bank of Cameron with $22,000 in the next thirty days. Subsequently the Bank of Cameron secured a loan of $10,000 through the War Finance Corporation, and reduced its loan to the First National Bank to the sum of $12,500. Collateral notes were released by the First National Bank to the Bank of Cameron to enable it to secure said loan. Sims made several trips to Cameron about business relations between the two banks. He represented to some of the depositors that the First National Bank was going to see the Bank of Cameron through during the year 1922. He told Strozier to talk to the depositors and tell them that the First National Bank would see the Bank of Cameron through during the year 1922. Strozier did tell some of the depositors this, as he was directed to do by Sims. Subsequently the First National Bank refused to make further advances to the 'Bank of Cameron, and the latter became insolvent.
    According to the evidence adduced in favor of the defendants, none of the officers or directors of the First National Bank made any promise to R. C. Strozier or to any’ other person that the First National Bank of Fort Smith or any of its officers would make loans to the Bank of Cameron to carry it through the year 19'22. They only agreed to make a specific loan to the bank, and to make that loan after having received the collateral agreed upon: Sims was sent to Cameron for the purpose of obtaining this collateral, and had no authority whatever to represent to the officers of the Bank of Cameron, or to any one else, that the First National Bank would make loans to the Bank of Cameron and carry it through during the ye'ar 1922. Neil Sims and A. N. Sicard were witnesses for the defendant, and each one positively denied having made any such representations to R. C. Strozier or to any depositor of the Bank of Cameron.
    There was a directed verdict in favor of the First National Bank and in favor of A. N. Sicard and Neil Sims as to certain of the plaintiffs. As to the remaining plaintiffs, there was a verdict of the jury in favor of the-defendants, Neil Sims and A. N. Sicard. From the judgment rendered the plaintiffs have duly prosecuted an appeal to this court.

      A. A. McDonald, for appellant.

      Daily & Woods, for appellee.
   Hart, C. J.,

(after stating the facts). It is first soug’ht to reverse the judgment because the circuit court erred in refusing to grant the petition of the plaintiffs for a change of venue.

Section 10341 of Crawford & Moses’ Digest provides that the venue of civil actions shall not be changed unless the court or judge to whom the application for change of venue is made finds that the same is necessary to obtain a fair and impartial trial of the cause. In construing this statute in St. Louis, Iron Mountain & Southern Ry. Co. v. Reilly, 110 Ark. 182, 161 S. W. 1052, the court said:

“The statute means, of course, that the court must hear evidence on the subject, and be governed by it in reaching a conclusion on the issue whether or not a fair and impartial trial can be obtained in the county. The court has a certain amount of discretion in weighing the evidence, but cannot arbitrarily refuse to grant a change of venue when the evidence establishes the fact that a fair trial cannot be obtained there.”

The allegations of the petition were not of such character as the court was hound to find that the plaintiff could not obtain a fair and impartial trial in the county. The defendants to the action were a bank and two of its officers. The petition for change of venue alleged that, on account of the undue influence of the defendants, the plaintiffs, who were residents of the State of Oklahoma, could not obtain a fair and impartial trial in the Fort Smith District of Sebastian County. The statement of affiants to the petition amounts to no more than an expression of opinion by them. They did not attempt to give any fact upon which their opinion was based. They merely stated their conclusions in the matter, which the court was not required to accept as establishing the facts alleged.

Again, it is sought to reverse the judgment because the court denied the challenge of the plaintiffs to certain jurors. In asking questions touching the qualifications of jurors, it was ascertained that some, of the jurors did business with the First National Bank, and counsel for the plaintiffs challenged them for cause on this account. A person selected and returned as a juror is presumed to be competent and qualified to serve, and the burden is on the challenging party to establish a prima facie disqualification. Shaffstall v. Downey, 87 Ark. 5, 112 S. W. 176.

In discussing the subject in Thompson v. Douglass, 35 W. Va. 337, 13 S. E. 1015, the Supreme Court of Appeals of West Virginia said:

“As Lord Coke said centuries ago may be said now: ‘The causes of favor are infinite.’ No enumeration was ever attempted of what causes might be alleged as ground of challenges to the favor. It would be impossible to specify all that should be allowed in advance by a statute, for they depend upon each particular case and the circumstances and. parties to it.”

This view is in accordance with our holding on the subject. Rumping v. Arkansas National Bank of Hot Springs, 121 Ark. 202, 180 S. W. 749. The reason is that the judge who presides at a trial, and who observes the appearance and manner of jurors, when upon their voir dire, must necessarily exercise a .judicial discretion in passing upon their qualifications. Lavender v. Hudgens, 32 Ark. 763.

It is next insisted that the court erred in refusing to allow some of the jurors to -answer whether or not the fact that they did business with the First National Bank would cause them to believe an officer of the bank in preference to a stranger. The court did not abuse its discretion in sustaining an objection to this question. It was not shown whether or not the jurors were indebted to the bank or whether they were simply depositors. There had been nothing developed in their examination which tended to show that any special relation of friendship or business existed between them and the officers of the b'ank. Under these circumstances the court was right in refusing to allow the jurors to be examined as to the apparent credence which they would give to the testimony of the officers of the bank, who were defendants in the action, and the plaintiffs, who lived only a short distance away, in an adjoining .State. 35 C. J. p. 392, paragraph 438 (2); Horst v. Silverman, 20 Wash. 223, 55 P. 52, 72 Am. St. Rep. 98; Jenkins v. State, 31 Fla. 196, 12 So. 677; State v. McIntosh, 141 La. 150, 74 So. 886; and Commonwealth v. Porter, 4 Gray (Mass.) 423.

This brings us to a consideration of the merits of the issues raised by the appeal. It is conceded that the general rule in nearly all States is that fraud must relate to a present or pre-existing fact, and cannot ordinarily be predicated on promises or statements as to what will be done in the fntnre. The reason is that representations and promises as to future conduct are merely statements of opinion as to what the promisor intends to do, on which the party to whom they are made has no legal right to rely. This is the general rule laid down by this court in Lawrence v. Mahoney, 145 Ark. 310, 225 S. W. 340, and our earlier cases on the subject.

It is true that in Lilly v. Barron, 144 Ark. 422, 222 S. W. 712, the court referred to the exception to the general rule that, if the promise is accompanied with an intention not to perform it, and is made for the purpose of deceiving the person to whom it was made, and induces him to act in the premises, the same constitutes fraud. It will be observed, however, that the court said that no state of facts was presented in that case which would bring the case within the exception to the general rule, and there is nothing in the opinion to indicate that the court meant to recognize the exception to the general rule as the law in this State. In a case note to 51 A. L. R., p. 63, it is said that, according to the weight of authority, if the person making the promise or statement as to a future event is guilty of an actual fraudulent intent, and makes the promise or misrepresentation with the intention of deceiving and defrauding the other party, and-accomplishes this result, to the latter’s injury, fraud may, under many circumstances, be predicated thereon, notwithstanding the future nature of the representations. It is further stated that the weight of authority holds that fraud may be predicated on promises made with an intention not to perform the same, or, as the rule is frequently expressed, on promises made without an intention of performance. In such cases it is said that the gist of the fraud is not the breach of the agreement to perform but the fraudulent intention of the promisor and the false representation of an existing' intention to perform, when such intent did not in fact exist. Among the cases in support of the rule we cite the' following from the Supreme Court of Oklahoma: Blackburn v. Morrison, 29 Okla. 510, 118 Pac. 402, Ann. Cas. 1913A 523; McLean v. Southwestern Casualty Ins. Co., 61 Okla. 79, 159 Pac. 660; Rogers v. Harris, 76 Okla. 215, 184 Pac. 459; and Haggerty v. Key, 100 Okla. 238, 229 Pac. 548.

In McLean v. Southwestern Casualty Ins. Co., 61 Okla. 79, 159 P. 660, it was said that there is a wide distinction between the nonperformance of a promise and a promise made mala fide and without any intention at the time of making it to perform it; and, while ordinarily a statement upon which fraud may be predicated must be of an existing fact, yet if a promise is made to be performed in the future, as an inducement to obtain a contract, if the intention not to perform the promise be shown to have existed at the time the promise was made, such false promise constitutes cognizable fraud.

The circuit court adopted the view of the law laid down by the Supreme Court of Oklahoma in the cases above cited in trying the case at bar, and, inasmuch as the result of our views affirms the judgment of the circuit court, it will not be necessary for us to determine whether, in leases where the alleged fraudulent promises were made in another State and suit based thereon is brought in this State, the courts of this State will recognize the law on the subject as laid down by the Supreme Court of the State where it is alleged • that the false promises were made. '

The circuit court correctly directed a verdict in favor of the First National Bank. There is no testimony in the record tending to show that it authorized its assistant cashier to go to Cameron, Oklahoma, and make any representations to the Bank of Cameron to the effect that it would furnish the Bank of Cameron with money to operate on during the year 1922. While there was proof that Neil Sims, assistant cashier of the First National Bank, went to Cameron and told some of the depositors • of the Bank of Cameron that the First National Bank would see the Bank of Cameron through during the year 1922, such declarations of the assistant cashier are not competent evidence against the bank, because they were not authorized by the bank, and did not relate to any act done by him in the course of his agency. He went to Cameron for the purpose of getting collateral notes for a specific loan which the First National Bank was making to the Bank of Cameron. Taylor v. Commercial Bank, 174 N. Y. 181, 66 N. E. 726, 62 L. R. A. 783, 95 Am. St. Rep. 564. Hence the undisputed evidence shows that there was no liability to the plaintiffs by the First National Bank, and the court properly directed a verdict in its favor.

The court also directed a verdict in favor of Neil Sims against Ophelia Barton and twenty-four other plaintiffs, because there was no testimony tending to prove any statements made by Neil Sims or any one for him to said plaintiffs relative to the transaction in question. The record does not show that Neil Sims made any statement to these plaintiffs whatever, nor does it show that any one else for him made any statement to them relative to the matter. Therefore we hold that the court was right in directing a verdict in his favor as to these plaintiffs. Moreover, the action of the- court in directing a verdict in favor of Neil Sims as to these plaintiffs was not one of the grounds for the motion for a new trial, and, under our settled rules of practice, no assignment of error could be based upon the action of the court. The reason is that it is the duty of the complaining party to call the court’s attention to the particular error and give it an opportunity to correct the same. Patterson v. Risher, 143 Ark. 376, 221 S. W. 468, and Oliphant v. Hamm, 167 Ark. 167, 267 S. W. 563.

At the conclusion of the evidence the court directed a verdict in favor of the defendant A. N. Sicard against W. R. Brown and twelve other plaintiffs. The ruling of the court was not made one of the grounds for a motion for a new trial, and,'as just stated, under our settled rules of practice the action of the court cannot be reviewed.

We have carefully examined the instructions given at the request of the plaintiffs, as well as those given at the request of the defendants, and are of the opinion that they fully and fairly submitted the question at. issue, under the law as laid down by the Supreme Court of Oklahoma in the cases above cited. According to the evidence of all the officers of the First National Bank who were present when they had the negotiations with the cashier of the Bank of Cameron, no promise whatever was made by the First National Bank or any of its officers or directors that it would see the Bank of Cameron through during the year 1922. According to the testimony of R. C. Strozier, cashier of the Bank of Cameron, such promise was made. The disputed question of fact whether or not the jury should find that such promise was made and whether or not there was an intention not to perform the promise as shown to have existed at the time it was made, was submitted to the jury under the principles of law above announced, and, under our settled rules of practice, the verdict being in favor of the defendants, it will be allowed to stand.

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