text:
    Murphy v. Continental Supply Company.
    4-3206
    Opinion delivered November 20, 1933.

      Walter L. Brown, for appellant.

      Robert A. Kitchen, for appellee.
   Johnson, C. J.

On June 18, 1930, appellant, P. E. Murphy, wrote the following letter to appellee:

“If you will let Mr. W. M. Kemp have a string of 2,600 feet, 2½-inch tubing, I will guarantee that he pays you within ninety days’ time for same. Please mail me copy of invoice of same. Beg to thank you very much for this favor.
“Yours truly,
“P. E. Murphy.”

In pursuance of the request and directions contained in said letter, appellee sold and delivered to W. M. Kemp the tubing referred to therein for the sum and price of $758.54. The indebtedness was not paid by Kemp, and this suit was instituted by appellee against appellant upon the written guaranty.

After hearing all the testimony introduced in said cause, the trial court directed the jury to return a verdict in favor of appellee.

But *one contention is argued by appellant for reversal, as follows: “The letter written by P. E. Murphy to the Continental Supply Company was an offer to pay for the tubing. He was entitled to notice of the acceptance of his offer and of the shipment of the tubing.”

McCollum v. Cushing, 22 Ark. 540, is cited as authority for this position. Without going into a detailed discussion of the letter referred to in the McCollum case, we think, in effect, that there is a marked difference between it and the letter in the instant case. The letter in the McCollum case was merely an offer of guaranty and so demonstrates upon its face, whereas in the instant case there is an absolute guaranty of the contemplated obligation. Therefore we conclude that this case is not ruled by the McCollum case.

In Fall City Construction Company v. Boardman, 111 Ark. 415, 163 S. W. 1134, this court, quoting from 20 Cyc., page 1407, said:

“Both the English and American cases hold generally that the rule requiring notice by the guarantee of his acceptance of guaranty applies only where the guaranty is in legal effect an offer or proposal. Where the transaction is not merely an offer to guaranty the payment of debts, and amounts to a direct promise of guaranty, all that is necessary to make the promise binding is that the promisee should act upon it; he need not notify the promisor of his acceptance.”

It is our conclusion that the guaranty in the instant case falls squarely within the rule announced in the Boardman case, cited supra, and that the trial court was correct in so deciding.

The judgment is affirmed.


source: Caselaw Access Project

author: Johnson, C. J.

license: Public Domain

text:
    Case v. Taylor.
    Opinion delivered November 20, 1933.

      Williamson & Williamson, for appellant.

      J. Paul Ward, for appellee.
   Johnson, C. J.

Appellee, Walter E. Taylor, State Bank Commissioner, recovered a default judgment against appellant, H. B. Case, in the Stone County Chancery Court in a sum in excess of $8,000. The indebtedness was secured by a pledge of $10,000 in common and $5,000 in preferred stocks of the Batesville White Lime Company. This stock was directed to be sold by John F. Crammer, Special Deputy Bank Commissioner in charge of the North Arkansas Bank, insolvent, at public sale in Batesville, Arkansas, after'having advertised said sale for ten days by at least one insertion in a weekly paper in Stone County and in Independence County, and by giving the defendant written notice of said sale, etc. The sale was effected, and a report thereof made by the Special Commissioner, whereupon appellant interposed the following exceptions thereto:

“First, that the sale can only be made by the circuit clerk, as ex-officio commissioner.
“Second, that no notice of sale, was published in Independence County pursuant to the decree.
“Third, that John F. (Trammer was an interested party in the proceedings, therefore could not be legally appointed special commissioner.”

Section 2196 of Crawford & Moses’ Digest provides: “That the clerks of the circuit courts in the several counties shall be clerks of the chancery courts and ex-officio masters and commissioners thereof in each of said counties,” etc.

Section 1365 provides: “The judge may appoint any other person master or commissioner in special causes in said court.”

It will be seen that § 1365 of Crawford & Moses’ Digest, cited supra, gives to chancery courts full power and authority to designate and appoint any qualified person in special causes as commissioner.

Appellant’s second exception to the report of sale is likewise without merit. The chancery court’s order confirming the sale finds: “That said sale was in all respects regular, and in conformity to law and the decree in said case, and same is hereby, in all things, approved and confirmed. ’ ’

Since the trial court found that the sale was in all respects regular and in conformity with the decree in said cause, we must presume that his findings were supported by the facts. The mere fact that only one proof in publication appears in this record does not establish the alleged fact that it was the only one published. Fid dyment v. Bateman, 97 Ark. 76, 133 S. W. 192. Price v. Gunn, 114 Ark. 551, 170 S. W. 247, L. R. A. 1915C, 158.

The contention that John F. Grammer, liquidating agent of the North Arkansas Bank, was an interested party is likewise without merit.

The Bank Commissioner and his agents hold property as trustees and not as owners. The possession thus acquired is analogous to that of a receiver, and it is common practice for receivers to conduct sales of property held by them as such.

The judgment is affirmed.


author: Smith, J.

text:
    Arkansas Rice Growers’ Co-Operative Association v. Minneapolis-Moline Power Implement Company.
    4-3201
    Opinion delivered November 20, 1933.

      W. A. Leach, for appellant.

      J. F. Holtzendorff, for appellee.
   Smith, J.

Appellee recovered judgment on the 15th of August, 1932, in the Prairie Circuit Court for the Southern District against George Jensen for $755. On September 27, 1932, appellee filed with the clerk of that court its allegations and interrogatories, in which it was alleged that the appellant, the Arkansas Rice Growers’ Co-Operative Association; Standard Rice Company, Inc.; Arkansas State Rice Milling Company, and the Walton Rice Mill, were each indebted to the judgment defendant, George Jensen, in the sum of $775. Upon this allegation interrogatories were filed requiring the parties named to answer “touching the goods, chattels, moneys, credits and effects of the said defendant, and the value thereof,” in their hands and possession “at the time of the service of such writ, or at any time thereafter. ’ ’

Upon filing these allegations and interrogatories as required by § 4910, Crawford & Moses’ Digest, writs of garnishment issued as prayed. The return of the sheriff reads as follows: “I, C. C. McCallister, Sheriff of Ark. Co., hereby return this writ having served true copies of the- within upon the Ark. Rice Growers’ Coopr. Ass’n by serving H. K. Smith,.their pres, and mgr.; Standard Rice Co., Inc., by serving- Grant Cummings, their mgr.; Ark. State Rice Milling Co. (The lessees of McGill Mill) •by Mr. McCrory, their stenographer, accepting service, and the Walton Rice Mill by serving C. R. Walton, their mgr., this 29th day of Sept. 1932. Ser. $3.00 Mil. .80 Ret. .10. $3.90 C. C. McCallister, Sheriff, Ed. Hughes, D. C.”

All the garnishees except appellant filed the answer required by § 4911, Crawford & Moses’ Digest. It was shown by the answering garnishees that they had no goods or chattels, moneys, credits or effects belonging to the judgment defendant, and they were discharged with their costs.

No answer having been filed by appellant, judgment was rendered against it for the full amount of the plaintiff’s judgment against the original defendant, as authorized by § 4916, Crawford & Moses’ Digest, at the ensuing March, 1933, term of the court.

This appeal has been prosecuted from that .judgment, and the clerk, in preparing the transcript, has inserted the following notation: “Note. The writ of garnishment and allegations and interrogatories were bradded together and served as one paper.”

It is argued for the reversal of the judgment that the writ of garnishment was not sufficient, in that there was a single writ, and not a separate writ, for each garnishee. The implication of the record is otherwise. The sheriff has charged, in his return, not for the service of a single writ, but for four writs. There were four garnishees, and the act fixing the fees of the sheriff of Arkansas County allows that officer a fee of 75 cents for serving each writ of garnishment. Act 220 of the Acts of 1925, page 649. The fee of $3 charged for service indicates that service was had upon four garnishees. The return of the officer also evidences that fact. It recites that four garnishees were served, and indicates the manner of service upon each. In other words, we interpret the sheriff’s return, when read in conjunction with the clerk’s note, to show that there were five sets of papers, each set containing the writ of garnishment and a copy of the allegations and of the interrogatories bradded together. A set of these papers was served on each garnishee named, in the manner recited on the sheriff’s return, appearing on the fifth set of the papers, -which was treated as being the original of each of the other sets, all being alike. We think this a substantial and sufficient compliance with the law.

It is next questioned whether the writ was- actually served. It does not appear when the original writ was returned to and filed with the clerk who had issued it, as the law requires. But it does appear that it was served, not ten days merely, but more than five months before the judgment here appealed from was rendered, and it was on file with the clerk when that judgment was rendered. The recitals of the judgment itself are conclusive of that fact.

Now, the statute authorizing judgment against a garnishee upon failure to answer provides that: “If any garnishee, after having been served with a writ of garnishment ten days before the return day thereof, shall neglect or refuse to answer the interrogatories exhibited against him on or before the return day of such writ,” judgment shall be rendered against such garnishee, for the full amount of the plaintiff’s judgment against the original defendant. It thus appears that it is the service of the writ vdiich must be had ten days before the return day, and the sheriff’s return indicates a period much longer than ten days intervened between the service of the writ and the return day thereof. It was said, in the case of Jones v. Goodbar, 60 Ark. 185, 29 S. W. 462, that: “The bringing back of the writ by the officer, and filing it in the office of the justice or clerk from which it issued, together with this written certificate of his proceedings under it, indorsed on the writ or upon some paper attached thereto, constitute in law the return of the writ.” The writ was returned within the requirements of the rule thus announced.

It is finally insisted that the writ was not directed against appellant. The contention in this respect is stated in appellant’s brief as follows: “In the allegations and interrogatories the appellant is named as garnishee by its correct corporate name, to-wit: ‘ The Arkansas Rice Growers’ Go-Operative Association.’ In the second whereas attached to the writ appears the name ' The Arkansas Rice Growers’ Co-Operative Association,’ but the sheriff was commanded to summon the said 'Arkansas Rice Growers’ Oo-Operative Association.’ In the officer’s return appears the name 'The Ark. Rice Growers’ Co-oppr. Ass ’n ’, while the judgment is against ‘ The Arkansas Rice Growers’ Co-Operative. Association’.”

It is, settled, of course, that the garnishee must, be correctly named in the writ of garnishment; but we think the appellant garnishee was certainly and sufficiently named. The return recites that the service was had on appellant “by serving H. K. Smith, their pres, and mgr.,” which abbreviations mean, of course, president and manager. There was no attempt to show that H. K. Smith was' not the president and manager of appellant corporation.' The article “the” was employed at one place, arid omitted in another, as stated in appellant’s brief, but counsel has been candid enough to cite 3 Thompson on Corporations, § 3185, where it is said: “The omission or the addition of the word ‘the’ is not such a variance as will justify the reversal of a case. So it has been held that the prefixing of the word ‘the’ to the name of a corporation where it was not a part of the corporate name was immaterial.” We are of the opinion that the writ was properly directed against and served upon appellant. C. A. Blanton Co. v. First Nat. Bank of Marked Tree, 175 Ark. 1107, 1 S. W. (2d) 558,

Finding no error, the .judgment must be affirmed. It is so ordered.


author: Humphreys, J.

text:
    Western Coal & Mining Company v. Young.
    4-3202
    Opinion delivered November 20, 1933.

      J. P. Clayton and Pryor & Pryor, for appellant.

      G. C. Carter and Partain & Agee, for appellee.
   Humphreys, J.

Appellees sued appellant separately in the circuit court of Franklin County, Ozark District, for damages to the wells on the respective lands on which they resided at Denning, caused by the alleged negligence of appellant during the years 1929 and 1930 in mining and moving the underlying coal so as to cause the surface to crack and drain their wells, thereby depriving them of a water supply.

Defendant filed an answer denying the material allegations of the complaints and pleaded the three years statute of limitations in further defense.

The causes were consolidated for the purposes of trial and submitted to a jury upon the pleadings, testimony, and instructions of the court, which resulted in verdicts for each of the appellees in the sum of $300, upon which judgments were rendered, from which appeals were duly prosecuted to this court.

In the course of the trial, testimony was introduced by appellant tending to show that the mine owned by it was operated under a written lease to Consolidated Sales Company in the years 1929 and 1930. The lease was not recorded or produced in the evidence, and the contents thereof were not shown. The testimony tended to show that, if operated by the lessee during the years mentioned, the operation thereof was under supervision of appellant’s employees and that it received the output of the mine.

The undisputed evidence shows that appellees owned the surface covered by their homes, and that appellant owned the minerals thereunder, including the coal, with the right to mine and remove same; and also shows that when the coal was mined by appellant under the lands owned and occupied by appellees, it left pillars of coal at intervals throughout the mine to support the surface. The coal was mined at a depth of about 180 feet. The testimony also shows that appellant or its lessee returned to the mine in the years 1929 and 1930 and pulled the pillars and that a short time thereafter the surface near the homes of appellees subsided in one place and that two long cracks several inches wide appeared in the surface about 350 yards from their homes on the Mattus land. Cracks also appeared in the surface on two other sides of the property belonging to appellees. The testimony is in conflict as to whether the subsidence and cracks caused the wells in question to go dry.

Appellant contends for a reversal of the judgment because the evidence fails to show any subsidence or cracks in the surface in the immediate vicinity of the lands owned by appellees and that those that did appear were not shown to have any connection with the wells. The fact that all three wells were drained in a short time after the pillars were removed and that the surface subsided in one place and cracked in others on three sides of the properties and that theretofore the wells had furnished an abundance of water are substantial and potential circumstances which would warrant a jury in finding that the destruction of the pillars or supports under the lands damaged the wells. Then, too, if the jury believed the witnesses introduced by appellees to the effect that this was the cause, it certainly cannot be said that the verdicts are without substantial evidence to support them. Testimony to that effect appears in the record from witnesses who had had years of experience in mining coal.

Appellant also contends for a reversal of the judgments because, under the lease from Denning, it had the right to mine and remove the coal without reference to damage it might do to the surface of the lands above. It is true the lease placed no restrictions upon it with reference to damaging the surface in mining and moving the coal thereunder, and it is also true, as suggested by learned counsel for appellant, that there is no statute in this State requiring the owner of coal interests in lands to leave pillars to support the surface; but, notwithstanding, we are of opinion that the only true and sound rule is that “when the surface of land is owned by one person and the minerals beneath are owned by another, the owner of the minerals cannot remove them without leaving sufficient natural or artificial support to sustain the surface.” Such was the rule announced in the case of Western Indiana Coal Co. v. Brown, 36 Ind. App. 44, 74 N. E. 1027, 114 Am. St. Rep. 367. See also Williams v. Hay, 120 Pa. 485, 14 Atl. 379, 6 Am. St. Rep. 719; Noonan v. Pardee, 200 Pa. 474, 50 Atl. 255, 55 L. R. A. 410, 86 Am. St. Rep. 722; West Pratt Coal Co. v. Dorman, 161 Ala. 289, 49 So. 849, 23 L. R. A. (N. S.) 805, 135 Am. St. Rep. 127, 18 Ann. Cas. 750, and cases therein cited; Kistler v. Thompson, 158 Pa. 139, 27 Atl. 874; Earnest v. Corona Coal Company, 212 Ala. 303, 102 So. 445; 1 R. C. L. 395.

The court submitted the cases at bar to the jury upon the theory that appellees could not recover unless they showed by a preponderance of the evidence that appellant mined and removed the coal in a careless or negligent manner. The instructions to this effect were more favorable than appellant was entitled to under the absolute support doctrine. However, this was the theory upon which the suits were brought, as shown by the allegations of the complaint, and the court did not err in submitting it upon that theory, as there was ample evidence to justify the jury in finding that the removal of the pillars or supports constituted negligent or careless mining, resulting in the destruction of the wells.

Appellant also contends for a reversal of the judgments because the actions were barred by the three years statute of limitations. This contention was upon the theory that appellant ceased to mine the coal in its mine at Henning in 1924 and that its lessee removed the supports in 1929, and was at the time an independent contractor and responsible for the alleged damage to the wells, if any. The court submitted the issue of whether the lessee was an independent contractor without sufficient evidence to support the instruction. The lease was not produced, and the terms thereof were not shown. It .affirmatively appeared that the work was done under the supervision of appellant’s employees, and that it (appellant) received the output of the mine during the time the lessee operated it. The instruction on this issue was more favorable to appellant than it was entitled to.

No error appearing, the judgments are affirmed.


text:
    Rankin v. National Liberty Insurance Company of America.
    4-3210
    Opinion delivered November 20, 1933.

      Jones & Wharton, for appellant.

      Verne McMillen, for appellee.
   Humphreys, J.

Appellant brought suit against appellee in the circuit court of Jackson County to recover $1,000, the statutory penalty, and an attorney’s fee on an insurance policy issued by appellee to appellant to indemnify him against the loss of his business building on account of fire.

Appellee filed an answer to the complaint denying liability under the policy on the ground that appellant burned or caused said business house to be burned.

The cause was submitted to the .jury, under a correct instruction, upon the issue of whether appellant burned the building in question, which resulted in an affirmative finding and a consequent judgment dismissing the complaint, from which is this appeal.

Appellant contends for a reversal of the judgment on the ground that there is no substantial evidence to support the verdict. Learned counsel for appellant argue that the most the evidence did was to create a suspicion against him, and cite two cases to the effect that evidence which creates a suspicion only against one charged with a crime is not sufficient to support a verdict of guilty. Reed v. State, 97 Ark. 156, 133 S. W. 604; Jones v. State, 85 Ark. 360, 108 S. W. 223.

There was no eyewitness in the instant case who saw appellant set fire to his building. The verdict, therefore, must be supported by circumstantial evidence sufficient for the jury to have drawn a reasonable inference that he did burn same.

The record reflects that appellant was seen about twelve o ’clock Sunday night, March 13, coming from the back part of the building in which he conducted a fish market, and which burned at three o ’clock Monday morning, March 14. A car was parked across the alley from the back end of his building, and he was going toward it when the night watchman, D. J. Nance, threw his flashlight on him and inquired, “What are you doing down here this time of night, Rankin?” Rankin replied that he had bought the place several weeks before and was waiting there for a load of fish. Pearl Miller, who kept a rooming house in Memphis, Tennessee, testified that appellant came to her rooming house at 7 or 7:30 o’clock Monday morning; that he seemed tired and nervous and remained fifteen or twenty minutes, long enough to have a cup of coffee; that he never spent the night in her apartment during the. month of March. Appellant testified that he went to his place of business Sunday afternoon, the thirteenth of March, about 1 o ’clock and stayed a while checking his accounts, etc., and that he then left and did not return; that he left Newport about 7:30 p. m., to go to Memphis to see a sick brother, and did not hear about the fire until the next day; that he did not see. or talk to the night watchman Sunday night,, the thirteenth, in the alley back of his store; that it was Saturday night he saw him there; that he arrived in Memphis about 10:30 o’clock Sunday night, the thirteenth, and after calling to see his sister, he went to the apartment of Pearl Miller and spent the night.

The verdict of the jury indicates that they accepted and believed the testimony of Nance and Pearl Miller in preference to that of appellant. Their testimony was in direct conflict with his and was sufficient to warrant the jury in drawing a reasonable inference that he was the author of the fire.

It is insisted that appellant’s ¡motion for a new trial grounded on newly-discovered evidence should have been granted by the trial court, and that the judgment should be reversed on account of the court’s refusal to do so. The alleged newly-discovered evidence was that of Mrs. Mildred Nichols, appellant’s sister, who resided in Memphis, and who would have testified, had she been present, that appellant was at her home in Memphis between eleven and twelve o ’clock on 'Sunday night, March 13. Her excuse for not being present and testifying was that she got the impression from a Mr. Waldron, who was appellant’s attorney, that she would not be permitted to testify in his behalf because she was his sister.

Her testimony was not newly-discovered 'because appellant must have known what he could prove by her before the trial, and her excuse for not being present is without merit.

No error appearing, the judgment is affirmed.


author: Kirby, J.,

text:
    McCoy v. Lockridge.
    4-3188
    Opinion delivered November 20, 1933.

      Cockrill & Armistead and W. A. Leach, for appellant.

      Joseph Morrison, for appellee.
   Kirby, J.,

(after stating the facts). No notice of the dissolution of the corporation or the distribution of its assets among its stockholders was published by the Stuttgart Eice Mill Company; and it was admitted that appellee had no actual notice thereof, the agreed statement of facts containing the following stipulation: “No notice of the. dissolution of the corporation nor of the distribution of its assets among its stockholders was published by the Stuttgart Eice Mill Company; that after the rendition of the original decree in favor of Lozier Lockridge and before the filing of this cause of action he caused an execution to be issued against the Stuttgart Eice Mill Company and that the same was by the sheriff of Arkansas County returned marked ‘nothing found’.”

Appellee’s cause of action against appellants, stockholders, could not have arisen until the attempted dissolution of the corporation by the adoption of the stockholder’s resolution on March 17, 1926, and its certification to the office of the Secretary of State on April 9, 1926. It is admitted that after the rendition of the original decree on May 11, 1931, and before this suit was filed on September 21, 1931, appellee caused an execution to be issued thereon against the Stuttgart Eice Mill Company and same was returned by the sheriff marked “nothing found.”

It was also shown that appellee had no knowledge of any facts that would constitute actual notice of the attempted dissolution of the corporation before the return of the execution “nulla bona”; but a proper following up of that information would have disclosed the actual conditions and thus appellee was charged with notice from then on. The exact date of the execution is not shown in the record, 'but it is clear, from the agreed statement of fact quoted above, that this execution was issued and returned 'by the sheriff marked, “Nothing found” sometime between May 11, 1931, the. date of •the original decree, and September 21, 1931, the date this suit was filed.

Such fraudulent concealment would prevent the. running of the statute of limitations until the fraud was discovered, and under the agreed statement of fact herein appellee, cannot, be said to have been charged with notice thereof until after the nulla bona return of the execution, which would have advised appellee of the true condition had the information been followed up. In Wright v. Lake, 178 Ark. 1184, 13 S. W. (2d) 826, it was said: “It is well settled in this State that where there has been a fraudulent concealment of a cause of action, the statute of limitations does not begin to run until after the fraud is discovered.” (Citing cases). The cause of action was not barred by the five-year statute of limitations, and the chancellor did not err in so holding.

Neither was error committed in overruling the motion to dismiss for want of jurisdiction, appellant Wilson being summoned in Pulaski County, where he resided. This court had held in the case of Wilson v. Lucas, supra, that the liability of stockholders to the payment of the corporation’s debts after dissolution was joint and several, and the assets thereof received by them constitute a trust fund for payment primarily of the debts of the dissolved corporation. Moreover, after the court overruled the motion to dismiss for want of jurisdiction. appellant agreed in writing'to a hearing by the chancellor of the suits in vacation and necessarily waived any further right to complain of the jurisdiction of the court. Pacific Mutual Life Ins. Co. v. Toler, 187 Ark. 1073, 63 S. W. (2d) 839.

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

McHaney, J., dissents.


author: Mehaffy, J. Butler, J.,

text:
    Arkansas Power & Light Company v. Mart.
    4-3166 and 4-3325
    Opinion delivered November 20, 1933.

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

      J. H. Lookadoo, John B. Gulley and Lewis Rhoton, for appellee.
   Mehaffy, J.

This action was begun by the appellee to recover damages for personal injuries alleged to have been caused by the negligence of the appellant. The appellee alleged that on December 15, 1932, she boarded one of appellant’s inbound cars at Ninth and Barber Avenue, in Little Rock, Arkansas, and paid her fare; that, before she became seated, the car made a sudden and violent jerk forward, which threw her against the seats and then to the floor upon her head and back; that the motorman ran a block before he discovered her helpless condition, whereupon he assisted her from the floor; there were no other passengers in the car; as a result of the fall she alleged her nervous system was seriously and permanently shocked, and described her injuries; she alleged that they were permanent, and were caused by the careless, negligent and reckless manner in which the motorman started the car. She asked damages in the. sum of $35,000.

Appellant answered denying all of the material allegations in the complaint. There was a trial and a verdict and judgment for. the sum of $10,000. Appellant filed motion for a new trial, which was overruled, and this appeal is prosecuted to reverse the judgment of the circuit court.

Appellant’s first contention is that there was no negligence shown, and that its requested peremptory instruction should have been given.

Ross Powell, a witness for appellee, testified that he saw the appellee on the street car, and saw her thrown down just as the car passed Barber Avenue; that the motorman stopped the car just after it crossed Rector, and he knew positively that it was appellee; she got off at, Ninth and Main Streets. Witness was in an automobile and stopped his car and the appellee got off and, instead of going to the .sidewalk, stood there; witness put her in his ear and carried her to her home on Ninth and Barber; that she appeared to be badly hurt; witness stated that he was in his cousin’s, C. E. French’s, car, and that he had been to the Biddle Shops; that he had an appointment with Willis Smith, and he had gone to the Biddle Shops to collect $5 from Smith; that at the time of the accident he. was going home from the Biddle Shops; that it had been .snowing, and there was snow on the windows, but the car was lighted, and he could see appellee through the windows. He testified that when he drove up to the car appellee got on, he could not pass the car, and stopped his car, and it seemed that the motorman had trouble getting the street car started. Appellee was the only person on the car.

The appellee, testified that she was 38 years old, lived at 910 Barber, Little Bock, where she had lived for 10 years; that on December 15th she boarded a street car at 9th and Barber; that it was snowing and she stepped back into the car to take a seat; that the car started with a sudden and violent jerk, hard enough to thrbw her off her feet; there was no one else on the car except the motorman; that Powell picked her up at 9th and Main and took her home; that Mrs. Bisher helped put her to bed, and gave her some medicine. She then describes at length her injuries. She was facing the rear of the car when she fell, and fell toward the motorman; she did not get the number of the car, but knows it was one of the old type; she did not recognize the operator, and does not know whether she could identify him. Suit was filed on December 30th. She works for the R. F. C. at the Pulaski County Court House.

The evidence that it was snowing; that there was no other passenger on the car; that the car was an old one, and that, without giving the appellee time to be seated, the car was started with a sudden and violent jerk sufficient to throw her down in the manner the evidence shows she was thrown, together with all the surrounding circumstances, is sufficient evidence to siibmit the question to the jury.

Appellant cites and relies on the case of Oliver v. Ft. Smith Light & Traction Co., 89 Ark. 222, 116 S. W. 204, to show that starting the car suddenly or with a jerk is not sufficient to show negligence. In the case referred to and relied on, the court said: “A common carrier of passengers by street car is required to exercise the highest degree of skill and care which may reasonably be expected of intelligent and prudent persons employed in that business, in view of the instrumentalities employed and the dangers naturally to be apprehended.

“When the cars of street railway companies stop for passengers to alight, it is the duty of their servants to stop long enough for the passengers to alight, and to see that the car does not start again while any one is attempting to alight or exposed to danger. Stopping a reasonable time is not sufficient, but it is the duty of the conductor or those in charge to see and know that no passenger is in the act of alighting or in a dangerous position before putting the car in motion again.”

In the instant case it was snowing, the appellee had got on the car and the motorman knew she was 'walking back to be seated, and with this knowledge starting the car suddenly with a violent jerk before she had reached her seat was sufficient for the jury to find that the motorman was guilty of negligence. His negligence under the evidence and circumstances in this case was a question for the jury.

The court in the case above referred to also stated: “As a general rule, a street railway company is not. liable for injuries caused by the starting of its cars, nevertheless it may be liable where the method is unusual and dangerous to passengers.”

It is not shown that there was any occasion or reason for starting the car suddenly and with a violent jerk before appellee reached her seat.

Appellant then refers to a number of cases decided by the Massachusetts court, and quotes at length from Desautels v. Mass. N. E. St. Ry. Co., 276 Mass. 381, 177 N. E. 578. Quite a number of other cases from the same court are cited, and several of them, inclüdiiig the case of Desautels v. Mass. N. E. St. Ry. Co., supra, cite the case of Gollis v. Eastern Mass. St. Ry. Co., 254 Mass. 157, 149 N. E. 607. The cases cited by appellant cite this last-mentioned case as laying down the rale relied on by appellant here. The rale there stated is that a common carrier of passengers is not responsible for those sudden jolts or jerks which are the ordinary incidents of travel upon electric cars, and that starting a street car when a passenger is in the act of leaving is not negligence if the passenger is within the body of the car. In other words, the Massachusetts rule supports the contention of the appellant. The case however, relied on as laying down the rule, Gollis v. Eastern Mass. St. Ry. Co., supra, was by a divided court, the court stating: “In the opinion of a majority of the court there was no evidence to warrant a finding for the plaintiff.”

But the rule in this court is wholly different from the rule in Massachusetts. The rule here is, as stated in Oliver v. Ft. Smith Light & Traction Co., supra, that whether a sudden start is necessary and consistent with the prudent and proper operation of the car will depend upon the circumstances, and whether the evidence and circumstances in the instant case, justified a finding for the appellee, was a question for the jury.

We do not deem it necessary to discuss the Massachusetts cases cited by appellant, because the rule here is entirely different. Appellant calls attention to some other cases from other courts, but we will not discuss them for the reason that the rule adopted by those courts does not prevail here.

It is necessary in this State, in order to recover for personal injuries, for the plaintiff to allege and prove that the carrier was guilty of negligence. It is not necessary to allege anything else, and the appellant in this case treated the allegations of the complaint as sufficient, without alleging that the jerk was unnecessary. Moreover, the appellee would not know, and probably could not prove, whether the sudden and violent jerk was necessary or not, and the appellant might operate a car, in order to start which it would be necessary to start it with such a violent jerk as to injure the passengers, but under the rule in this State, the question is whether the carrier was guilty of negligence which caused the injury to the appellee, while she was herself in the exercise of ordinary care. Of course, if the appellant was guilty of no negligence, there could be no recovery, and, as argued by appellant, every one knows there will be some jerks in the operation of street cars and trains of all kinds.

In the case of Pasley v. St. Louis, I. M. & S. Ry. Co., 83 Ark. 22, 102 S. W. 387, where suit was brought by the appellant against the appellee for personal injuries while he was a passenger on a freight train, the court said, speaking through Judge Riddick: “Under these facts Mr. Justice Battle and myself were first of the opinion that the presiding judge was justified in directing a verdict, but, the other judges having taken a different view, we have reconsidered the matter, and concluded, with them, that, in view of the very short time the plaintiff remained on his feet, the question of whether he was guilty of negligence should have been submitted to a jury.”

“But the railway company owes to the passenger on its freight train the duty to exercise the highest degree of care consistent with the practicable operation of such train to protect the passenger from injury. Failing in exercising that care, the railroad company is guilty of negligence; and, if that negligence is the proximate cause of the injury complained of, it is liable for the damages consequent on such injury. In the case at bar the plaintiff was riding in the caboose of a freight train as a passenger; he was thrown to the floor and severely injured by a sudden jar or jerk of unusual violence; from that testimony it became a question of fact for the jury to determine whether the railroad company did exercise that high degree of care which it owed to the plaintiff to protect him from injury, or whether it was guilty of negligence in causing the injury.” St. Louis S. W. Ry. Co. v. Jackson, 93 Ark. 119, 124 S. W. 241; St. Louis, I. M. & S. R. Co. v. Holmes, 96 Ark. 339, 131 S. W. 692. The rule here is that if a passenger is injured by the negligent sudden starting of a ear, and a passenger is in the exercise of due care, the carrier is liable.

Appellant next urges a reversal on the ground that appellee’s instruction No. 4 was erroneous and should not have been given. Its first specific objection is that the instruction exacts too high a degree of care from appellant’s motorman. The instruction was to the effect that it was the duty to exercise for the safety of the passenger the highest degree of skill and care which may reasonably be expected of intelligent and prudent persons employed in the operation of street cars for the purpose of carrying passengers in view of the instrumentalities employed and the dangers naturally to be apprehended. This was a correct statement of the law.

The second specific objection to the instruction is the phraseology “and that the operator, before the plaintiff, after being accepted as a passenger, had a reasonable opportunity in the exercise of usual and ordinary care to become seated, negligently started the car.”

Certainly if the operator negligently started the car before she was seated, and by this negligence caused her injury, the company would be liable, and it was proper to tell the jury that if he negligently did this while she was free from fault herself, the verdict should be for the plaintiff.

Its third specific objection was that it assumes that the facts stated therein would constitute negligence, and therefore, invades the province of the jury. We do not agree with appellant in this contention. It not only does not assume that the facts constitute negligence, but that question is by the instruction submitted to the jury.

It is also argued that the instruction assumes that merely because the car started with a sudden or violent jerk, the appellant’s motorman failed to exercise the proper degree of care. It not only does not assume this, but also submits this question to the jury. Under the rule adopted bv this court, instruction No. 4 was a correct statement of the law.

But it is contended by appellant that, under the doctrine laid down by this court, the instruction was inherently wrong, and it cites Ark. P. & L. Co. v. Nuckols, 182 Ark. 17, 31 S. W. (2d) 415. In that case the instruction which the court held erroneous told the jury that, if the defendant was negligent, the jury should find for the plaintiff without regard to whether the injured person was guilty of contributory negligence, and it was also held to be in conflict with another instruction. The court also in that case held that the appellee was not guilty of contributory negligence as matter of law, but it was a question for determination by the jury.

The next case referred to is Temple Cotton Oil Co. v. Skinner, 176 Ark. 17, 2 S. W. (2d) 676. The court said in that case that an instruction directing the jury to find a verdict for either party should be complete in itself, and that separate and disconnected instructions, each complete and irreconcilable with each other, cannot be read together so as to modify each other and present a harmonious whole. There is no such question in the instant case as discussed in the Temple Cotton Oil Company case.

The. next case it refers to is the Natural Gas & Fuel Co. v. Lyles, 174 Ark. 146, 294 S. W. 395. In that case the court held an instruction erroneous when it told the jury to find a verdict for the employee, if they found the employer guilty of negligence. That instruction was held erroneous because it ignored the defenses of contributory negligence and assumed risk. We think it has no application here.

The next case cited by appellant is Garrison Company v. Lawson, 171 Ark. 1122, 287 S. W. 396. This case has no application and does not discuss an instruction like the one in the instant case.

The next case cited is Newell Contracting Co. v. Lindahl, 181 Ark. 272, 25 S. W. (2d) 1052, and it also cites the case of Herring v. Bollinger, 181 Ark. 925, 29 S. W. (2d) 696. In the case reported in 181 Ark. on page 272, the court held the instruction erroneous because it told the jury under what conditions they could find the. defendant liable, because it did not include contributory negligence. In other words, it is error to tell the jury that if they find the defendant guilty of negligence, without submitting tlie question of contributory negligence, they can find for the plaintiff. If the jury are instructed in effect to find for the plaintiff, without submitting the question of contributory negligence, the instruction would be erroneous.

In the case of Herring v. Bollinger, the holding was to the same effect, that ignoring one of the issues in the case and giving conflicting instructions made the instructions erroneous.

We have carefully examined all the instructions and the authorities cited by appellant, and have reached the conclusion that there is no conflict in the instructions, and, taken as a whole, they correctly state the law.

The rule is well established in this State that the carrier of passengers is held to the highest degree of care, prudence and foresight that a prudent man engaged in business as usually conducted would employ, that is, such care, prudence and foresight as can reasonably be exercised consistent with the practicable operation of the road or mode of conveyance used, and the exercise of its business as a carrier, taking into consideration the circumstances and conditions existing at the time and place in question. The degree of care required may vaiy according to the time and place and circumstances. The carrier is not an insurer of the safety of the passengers, but it is liable for any negligence causing injury to the passenger, while the passenger is himself in the exercise of ordinary care.

It is contended also that the verdict of the jury is excessive. The evidence is in conflict as to the extent of appellee’s injuries. The jury may have believed the evidence of appellee’s witnesses, and, if so, it was justified in returning the verdict it'did. This was a question of fact which was the province of the jury to determine, and as we have many times said, although we might not agree with the jury, yet if there was any substantial evidence to sustain its verdict, we are not authorized to disturb it. In other words, the jury is the judge of the facts, and we cannot substitute oflr judgment of the facts for the judgment of the jury.

To discuss in detail all the questions raised by appellant and review the authorities cited by it would serve no useful purpose and would unnecessarily extend the opinion.

The original case was tried on May 3, 1933, and the motion for new trial on the ground of newly-discovered evidence was filed in July following. On July 24th the hearing on the motion for new trial on account of newly-discovered evidence was set for trial before the court. The motion for new trial was overruled on October 12, 1933', and an appeal is prosecuted from the order of the court in overruling the motion.

The motion for new trial on the ground of newly-discovered evidence alleged that,Ross Powell, the only witness for the plaintiff as to the accident, had sworn falsely at said trial in that he had testified that he was present at the time of the accident and injury complained of by plaintiff, and saw her fall; that he lived about 12 miles from Little Rock, and had driven in an automobile borrowed from a cousin named French, for the purpose of going to Biddle Shops to collect $5 from one Willis •Smith, to whom'he had loaned said money, and upon his return passed the corner of Ninth- and Barber in Little Rock, saw plaintiff board the street car, and saw her fall by reason of a sudden lurch or jerk of the car; that it had not known that Ross Powell would be a witness, because he was not subpoenaed to testify in the case: that after the trial the appellant began an investigation, locating French and his wife in Memphis, Tennessee, and inquired of them, and was informed that they had not loaned Powell a car on December 15th, and that Powell did not have their car at any time on said date; the statements in the motion for new trial were supported by the affidavits of French and his wife; that the defendant then interviewed Willis Smith and learned that he had never borrowed $5 or any other sum from Powell, and he had no appointment with Powell to come to Biddle' Shops.

It was further alleged in the motion that Powell was confronted by French and Smith, and had confessed that he had not used the car of French, and had not gone to Biddle Shops to see Smith; that he was present at the time of the accident and saw plaintiff board the street car, and saw her fall to the floor; that he was in an automobile with a lady whose name he declined to reveal; that this lady got out of the car, and he picked up Mrs. Mart and drove her to her home. It was further alleged that Powell admitted that he was interested in the result of the trial, and had been promised a division of the fee of the lawyer for bringing the case to him and testifying as a witness; that'he made the arrangement with appellee’s attorney, Lewis Rhoton; that his contract was with Mrs. Mart with the approval of Rhoton; he was to get half the lawyer’s fee; that Powell further stated that one of the jurors approached him, but he did not know his name, and asked him if he could speak to Mrs. Mart; that Powell told him that she had gone to the hotel with Rhoton and Lookadoo; that this incident occurred after the jury had been instructed and heard the argument, and after it had been dismissed for the night until eight o’clock the next morning. A number of other statements were alleged in the motion to have been made by Powell about who the juror should see, but the motion further says that Powell stated that he saw the accident; that there was a sudden .jerk or lurch of the car; that it was one of the old obsolete cars that started with a jump; that the motorman had trouble starting it. It is further alleged that Powell made these statements of his own free will, and had not been offered any money or other consideration, and had not been threatened or intimidated. The statement of Powell was attached to and filed with the motion, as was also the affidavits of other witnesses.

Appellant thereafter filed an amendment to its motion for new trial, alleging that it had used every effort within its power to investigate the accident and injuries, and used due diligence to discover all evidence material to the trial of said cause. The amendment to the motion further alleged that A. R. Bird, who was confined in the Pulaski County Hospital with tuberculosis in its last stages, had had conversation with Mrs. Mart, and she discussed with him her intention to fall from a street car, and bring suit for damages. Numbers of other statements were made with reference to what appellee had said to Bird in their conversation. This motion was also supported by affidavits.

It is admitted in the amendment to the motion that on April 29th appellant’s representatives, having learned about Bird’s statement, went to the hospital to interview him, but his condition was such that they were not permitted to interview him on that day.

It is the well-settled rule of this court that a new trial on the ground of newly-discovered evidence will not be granted, unless the applicant has shown reasonable diligence, and whether he has shown such diligence is a question in the sound legal discretion of the trial court, and, unless there is manifestly an abuse of discretion, the finding of the trial court will not be disturbed. Temple Cotton Oil Co. v. Holliday, 186 Ark. 514, 54 S. W. (2d) 304.

The undisputed evidence in this case shows that appellant learned about what Bird knew on or before April 29th, preceding the trial on May 3rd. It is true they say they could not interview him because of his condition, but the appellant did have knowledge of the facts prior to the trial, and did not ask for any postponement, or to take the deposition of Bird, and we think the trial court was justified in overruling the motion so far ás the evidence of Bird is concerned, on the ground that the appellant had not used reasonable diligence.

As to the other grounds for new trial on newly-discovered evidence, no question of diligence is involved-, because under the evidence in this case the appellant did not know o£ the facts which it set up in its motion until after the trial. It did not know that Powell was going to testify and certainly could not have known what his testimony would be. It appears that Powell made a statement in which he said he was interested in the result of the lawsuit; that he was to get half the lawyer’s fees, and that he did not go to Biddle Shops in French’s car, and did not collect $5 from Willis Smith. Powell contends that he was drunk when he made the statement. The preponderance of the evidence, however, shows that at the time he made the first statement, he was not drunk. But the statement that he was to get half of the lawyer’s fees, together with the statement that he wanted to settle the case for $1,000, so that he could get $250, is not supported by the evidence. The evidence is overwhelming that his statement, which it is alleged he made, that there was a frameup, and that he was to get half the lawyer’s fee, is untrue. He admitted in his evidence on the motion for new trial, that he did not go to Biddle Shops in French’s car, and that Willis Smith was not the Smith that he collected the $5 from, but he insisted that he did collect $5 from another Smith, who worked at the Biddle Shops. He explained his statement about going in French’s car by saying that at the time he testified it did not occur to him that it was material, and he had ridden in French’s car many times. But, as a matter of truth, on the night of the accident, he was in a different car, a car belonging to the woman with whom he was driving, and he declined to say who the woman was.

The most that can be said about this newly-discovered evidence is that it discredited and impeached Powell. It is not claimed that he, at any time, made any statements about the accident in conflict with his testimony at the trial of the case.

The rule with reference to granting a new trial on newly-discovered evidence is stated in R.' C. L. as follows : “In order to warrant the granting of a new trial on the ground of newly-discovered evidence, it must appear (1) that the evidence is such as will probably change the result if a new trial is granted; (2) that it has been discovered since the trial; (3) that it could not have been discovered before the trial by the exercise of due diligence; (4) that it is material to the issue; (5) that it is not merely cumulative or impeaching. Therefore it becomes necessary for the court to take into consideration the weight and importance of the new evidence, its bearing in connection with the evidence on" the former trial, and even the credibility of the witnesses.” 20 R. C. L. 290-291.

As to whether a new trial should be granted on the ground of newly-discovered evidence, is in the discretion of the trial court. “Newly-discovered evidence, material for the party applying, which he could not with reasonable diligence have discovered and produced at the trial is, in the discretion of the court, ground for a new trial, which has been granted in numerous cases. But a case where a showing made requires a new trial is unusual, and applications for new trials for this cause are not favored, especially where the alleged newly-discovered evidence consists largely of conclusions and hearsay. To warrant a new trial, it must appear that evidence'is in fact newly-discovered, and not merely the importance of it; and a new trial will be denied if the court is not satisfied that the alleged newly-discovered evidence really exists. A new trial for newly-discovered evidence will be granted only where manifest injustice and wrong appear, and there is no other relief obtainable; in determining whether a new trial shall be granted on the ground of newly-discovered evidence, courts, while keeping within well established legal limits, endeavor to do what the interest of truth and justice requires.” 46 C. J. 243.

‘ ‘ This court has- many times held that motions for new trial on account of newly-discovered evidence are addressed to the sound discretion of the trial court, and that this court will not reverse for failure to grant unless an abuse of such discretion is shown.” Forsgren v. Massey, 185 Ark. 90, 46 S. W. (2d) 20.

“Moreover, the testimony of Johnson and his wife on the matter set out in their affidavits was in the nature of impeaching testimony of the Smiths; and it has been held by this court that newly-discovered evidence which goes only to impeach or discredit a witness is not ground for a new trial.” Bradley Lbr. Co. v. Beasley, 160 Ark. 622, 255 S. W. 18; Freeo Valley Rd. Co. v. Rowland, 164 Ark. 613, 262 S. W. 660.

The granting of new trials on the ground of newly-discovered evidence is always within the discretion of the trial court. Banks v. State, 133 Ark. 169, 202 S. W. 43; Hinkle v. Lasetee trial court did not abuse its discretion'in overruling ther, 142 Ark. 223, 218 S. W. 825. We are of opinion that th motion for new trial, and the judgments of the circuit court are affirmed.

Smith and Butler, JJ., dissent.

Butler, J.,

(dissenting). I base my dissent principally upon what I conceive to be error committed in overruling the appellant’s objection to appellee’s instruction No. 4 and in giving said instruction. That instruction, after telling the jury that it was the duty of the appellant to exercise for the safety of the passenger the highest degree of skill and care, continuing, was couched in the following language: “Therefore, if you find from the preponderance of the testimony in this case, that the plaintiff was a passenger upon one of the defendant’s cars and, was herself free from fault or negligence, and that she was injured by reason of the failure of the defendant’s operator of the car to exercise for her safety that degree of care above stated, and that the operator, before the plaintiff, after being accepted as a passenger had a reasonable opportunity, in the exercise of usual and ordinary care, to become seated, negligently started the car with such a sudden and violent' jerk as to throw, and did throw her to and upon the floor of the car, and that she was thereby injured, she at the time being free from fault or negligence, upon her part, your verdict should be for the plaintiff.”

A number of objections are raised to this instruction which perhaps might have been cured by instructions given at appellant’s request, but that part of the instruction, i.e., “and that the operator before the plaintiff, after being accepted as a passenger had a reasonable opportunity in the exercise of usual and ordinary care to become seated, etc.,” was not cured by any subsequent instruction and, in my opinion, was a clear intimation- to the jury that the sudden and violent starting of the car before the appellee had an opportunity to take her seat was negligence.

The authorities relied upon by the appellee to sustain the instruction go no further than to hold that it is the duty of the operator óf a car not to start the same until the passenger has taken a safe position. The instruction goes further and would require the motorman not to suddenly start his car as long as a passenger had not had an opportunity to be seated after having entered the car. This certainly is not the law. The most that could be said of the fact that the car was started before the passenger had time to be seated is that this would be a proper matter of argument on the question of whether it was negligence to suddenly start the car.

The appellant made a specific objection to the language singled out in the instruction and quoted above. If there was no other vice in the instruction, it was erroneous in singling out a particular class of testimony and in directing the jury to consider it and calling it especially to their attention.- We have frequently held that it was not error to refuse such an instruction. Western Coal & Mining Co. v. Jones, 75 Ark. 76, 87 S. W. 440; Jenkins v. Quick, 105 Ark. 467, 151 S. W. 1021; Scott v. State, 109 Ark. 391, 159 S. W. 1095. So, where such an instruction is given, the error whereof is pointed out in a particular way, it is error to give the same with the objectionable language retained.


author: Mehaffy, J.

text:
    Missouri Pacific Railroad Company v. Sellers.
    4-3204
    Opinion delivered November 20, 1933.

      Thos. B. Pryor and Harvey G. Combs, for appellant.

      Richardson & Richardson, for appellee.
   Mehaffy, J.

The appellee, Ralph Sellers, while unloading a car of gravel at Swifton, Arkansas, received personal injuries on account of an alleged defect in the car, and sues the appellant, the Missouri Pacific Railroad Company, which was the delivering carrier, to recover damages for his injuries. The car of gravel was shipped from Black Rock to Swifton, consigned to D. H. Dalton & Company, a partnership composed of D. H. Dalton and T. B. Sarles. The car went over the St. Louis-San Francisco Railroad Company from Black Rock to Hoxie, and was at Hoxie turned over to the appellant, and transported over its line to Swifton, and placed on a sidetrack to 'be unloaded. The appellant is the delivering carrier.

There was a hole in the bottom of the car, and, according to the testimony of appellee, was four or five feet long and eight or ten inches wide. One witness for appellant testified that the hole was approximately six inches wide and eighteen inches long. The hole was covered with a board or plank, and in unloading the car this board was removed by the clam bucket, which was used to unload the gravel. The appellee ivas unloading the car for Dalton & Company, by whom he was employed at the time. The car was being unloaded in the usual manner, and appellee did not discover the hole in the bottom of the car until he stepped into the hole and was injured. His left shoulder and arm were wrenched, twisted and sprained, the ligaments and muscles were torn, lacerated and pulled loose, and the bones of his left shoulder fractured and dislocated.

There is no conflict in the evidence about the hole in the car, nor about how the accident occurred. No one saw the clam bucket pick up the board, but the evidence showed that it was bound to have been over the hole, otherwise the gravel would have been lost through it.

An employee of the Lutesville Sand & Gravel Company testified that when cars were delivered to them in which to ship gravel, they had to clean the cars out and patch them if they needed it, and make them in a safe condition, and that they never let a car go out that needed repairs, but witness did not remember about this particular car. They repaired cars like this by putting a plank over the hole and spiking it down.

The Frisco agent at Hoxie testified that there was no car inspector there, but they looked them over for any defect which they could see; that if a car came after he left, which was 1:30 in the afternoon, it would not be inspected at all.

It is contended by the appellant that the court erred in refusing to direct a verdict for it, and it is argued that the verdict of the jury was clearly contrary to the preponderance of the evidence under the rule of law that the only obligation resting on a carrier is to exercise ordinary care to furnish cars in such repair that they can be unloaded in reasonable safety to those engaged in that work.

The court gave instruction No. 1. By this instruction the court told the jury that it was the duty of the carrier to exercise ordinary care to furnish cars in such repair that they could be unloaded with reasonable safety to those engaged in that work. This instruction was not only not objected to by appellant, but it is a correct statement of the law as contended for by appellant.

The question of appellant’s negligence was therefore submitted to the jury under proper instructions, and, if there is any substantial evidence to support the finding of the jury, its verdict cannot be disturbed by this court. The car was loaded with gravel, and it would therefore have been impossible for the appellant or any one else to inspect the floor from the inside of the car without removing the gravel. This fact, however, did not relieve the carrier from exercising ordinary care to make the car reasonably safe for the persons who unloaded it. The evidence does not show who repaired the car, nor where it was repaired, and the jury were justified in finding that there was no proper inspection made to discover the defect in the floor of the car, and that no proper inspection was made. As we have said, there is practically no conflict in the evidence, and we deem- it unnecessary to set ont the evidence at length.

It was the duty of the appellant to make delivery of freight to the consignees, and when, in accordance with the custom or for the convenience of both parties, the delivery was made by placing the car on a side track to be unloaded by the consignee, an obligation rested on the carrier to exercise ordinary care to furnish cars in such repair that they could be unloaded with reasonable safety to those engaged in the work. C., R. I. & P. Ry. Co. v. Lewis, 103 Ark. 99, 145 S. W. 898; 3 Elliott on Railroads, § 1265 C; Griffin v. Payne, 95 N. J. Law 490, 113 Atl. 247; Ladd v. N. Y., N. H. & Hartford Rd. Co., 193 Mass. 359, 79 N. E. 742, 9 L. R. A. (N. S.) 874, 9 Ann. Cas. 988.

We think the jury were justified in finding that the car was unsafe, and had not been properly repaired.

We find no error, and the judgment is affirmed.


text:
    Missouri Pacific Railroad Company v. Harding.
    4-3216
    Opinion delivered November 27, 1933.

      Thos. B. Pryor and Harvey G. Combs, for appellant.

      John R. Thompson and Trimble, Trimble & McCrary, for appellee.
   Johnson, C. J.

In briefs but one ground is argued and insisted upon by appellant for reversal. Under settled rules of this court all other alleged errors are abandoned. Stevens v. Shull, 179 Ark. 766, 19 S. W. (2d) 1018.

The ground insisted upon and argued in briefs is that the trial court erred in refusing to direct the jury to return a verdict in favor of appellant; or that the testimony is insufficient to support the verdict.

In testing the legal sufficiency of the testimony, we must view it in the light most favorable to appellee. McGehee & Co. v. Fuller, 169 Ark. 920, 277 S. W. 39; Missouri Pacific Rd. Co. v. Nichols, 170 Ark. 1193, 278 S. W. 648; Wisconsin & Arkansas Lbr. Co. v. Hall, 170 Ark. 576, 280 S. W. 363.

The testimony, when viewed in the light most favorable to appellee in the instant case, is to the following effect:

Appellee, R. H. Harding, is the father, administrator and next of kin of Willard Harding, deceased. On November 25, 1931, Willard Harding, deceased, a boy about 17 years of age, was riding upon one of appellant’s freight trains, which he had boarded at Hoxie in this State. On the train with the deceased was one Oliver Jobe. The freight train was going from Hoxie to North Little Rock and passed through Austin, a station on appellant’s line of railroad, about 9. p. m. When the train begun pulling out of Austin, a brakeman approached deceased and Oliver Jobe and demanded that they get off the train. At this time the train was running about 15 miles per hour. Oliver Jobe, instead of obeying the demand of the brakeman, proceeded down the moving train of cars toward the engine, but the deceased, when last seen by Jobe, remained at the place where he was when first approached by the brakeman. Oliver Jobe testified that Willard Harding stated to the brakeman that he did not want to get off the train because it was running too fast. Just before 11 p. m. of the same night, appellant operated a passenger train over and upon its tracks upon Avhich deceased was found a few minutes later. Deceased Avas found immediately after 11 p. mv having attracted the attention of people who resided in the vicinity by his cries, lying upon the south track of appellant’s railroad; both his legs and one arm were severed. In response to questions asked by attendants, deceased stated that he was knocked off the train. This declaration of deceased Avas elicited by attorneys for appellant on cross-examination of witnesses. One witness testified, upon examination, he found imprints, made by one’s feet, knees or his head, at or near the ends of the cross ties and near the point where deceased was found.

This testimony was amply sufficient to make out a prima facie case in behalf of appellee, and against appellant. St. Louis, Iron Mountain Railroad Co. v. Gibson, 107 Ark. 431, 155 S. W. 510.

In addition to what has been said, the jury was fully Avarranted in finding that the deceased was knocked off the freight train by an employee of appellant, or that he was forced by such employee to disembark from the freight train while it was moving at a dangerous rate of speed. Either of these conclusions would be amply sufficient to support a finding of negligence.

The declarations of deceased as to the cause of his injury were elicited by attorneys for appellant, therefore such declarations became competent and relevant testimony, notAvithstanding such declarations were neither dying declarations nor a part of the res gestae. The rule is stated thus in 64 C. J., § 242 (2d), page 230: “Hearsay evidence, admitted without objection, should be considered and given its natural probative effect, subject to any infirmative suggestion due to its inherent weakness, and may establish a material .fact in issue, and sustain a verdict or judgment.”

No reversible error appearing, the judgment is affirmed.


author: Johnson, C. J., Smith, J.,

text:
    Fairbank v. Douglas.
    4-3190
    Opinion delivered November 27, 1933.

      Reid, Evrard & Henderson, for appellant.
    J. T. Coston and James G. Coston, for appellee.
   Johnson, C. J.,

(after stating the facts). Appellants’ first contention is that the sale to Sewer Improvement District No. 1 on September 17, 1928, was void, because, on the date of the sale to the sewer district, title to the property was in the State, because of the forfeiture and sale to the State on June 12, 1927, for nonpayment of taxes for 1926. It is stipulated between counsel for appellant and counsel for appellee-that the county clerk of the Chickasawba District of Mississippi County, wherein the lands are situated, has kept no record of the list of delinquent lands and notice of payment of taxes of delinquent lands in said district since 1924. Section 10,085 of Crawford & Moses’ Digest, after providing for the form of notice to be attached to the delinquent land list to be sold by the county clerk, provides :

“The clerk of the county court shall record said list and notice in a book to be by him kept for the purpose,” etc.

The requirements provided for in § 10,085 of Crawford & Moses’ Digest have been held to be mandatory. Hunter v. Gardner, 74 Ark. 583, 86 S. W. 426; Earle v. Harris, 121 Ark. 621, 182 S. W. 283; Osceola Land Co. v. Chicago Mill & Lumber Co., 184 Ark. 1, 41 S. W. (2d) 759.

It will thus be seen that the failure of the county clerk of the Chickasawba district of Mississippi County to record the list of delinquent lands voided the collector’s sale, which occurred on June 12, 1927.

We held in Tallman v. Board of Commissioners of Northern Road Improvement District of Arkansas County, 185 Ark. 851, 49 S. W. (2d) 1039: “We have heretofore held that, when lands have been sold to the State, the lien for assessments was suspended, and could be enforced after the lands went back to private ownership. Of course, this meant a valid sale. A void sale would not suspend the statute, because, if Amid, it is a nullity, binding on no one.”

Since the forfeiture and sale of the lands in this controversy to the State in June, 1927, for nonpayment of taxes for 1926 is determined to be void for noncompliance with § 10,085 of Crawford & Moses Digest, and, since this court has decided that a void tax sale does not suspend improvement district taxes and the enforcement thereof, it naturally folloAvs that the sale in the instant case to the seAver district in September, 1929, Avas, and is, a valid sale.

It is insisted on behalf of appellant that the doctrine as announced in the Tallman case has no application to the facts of this case. The contention is that the assessment of benefits upon which the sale was effected to the sewer district was not due or payable in June, 1927, at the time of the forfeit to the State, therefore it is said that the sewer district was not such interested party as could bring in question the invalidity of the sale to the State. The case of Hopper v. Chandler, 183 Ark. 469, 36 S. W. (2d) 398, is called to our attention. It is true that Ave used the following language in reasoning out the conclusion reached in that case:

“In order to question the validity of the tax title, the plaintiff must show that those under whom it holds Avere the owners of the land or had some interest in it at the time it was sold for taxes. (Citing cases.)
“At the time of the sale for taxes, the appellant had no interest and claimed no interest, and, so far as the record shows, there were no assessments due to improvement District No. 4 at the time this land Avas certified to the State. It therefore appears that, at the time of the forfeiture and sale for taxes, neither the appellant nor the improvement district had any claim against this land, and, as the title was apparently in the State at the time of the sale under the decree of the chancery court, the chancery sale Avas void, and the court below was correct in so holding, and the decree must therefore be affirmed. ’ ’

The language used to the effect; “There- were no assessments due to Improvement District No. 4 at the time this land was certified to the State. It therefore appears that, at the time of the forfeiture and sale for taxes, neither the appellant nor the improvement district had any claim against this land,” after a careful analysis, is merely dictum, and ivas not necessary to the conclusion reached. On the contrary, we understand the law to he that an improvement district, holding assessments of benefits against lands within the boundaries of its district, is an interested party in contemplation of law, which can bring in question the invalidity of any tax sale or forfeiture, and this is true, even though the yearly assessment of benefits is not due. The position of an improvement district is analogous to that of a mortgagee of real property. It is uniformly held that a mortgagee of real property may do any act or perform any duty in reference to the protection of title or redemption from sales that can be done or performed by the owner. For this rule to have full application, it is not necessary that the debt secured by the mortgagee be due, or any part thereof, because the status of the parties is established by the execution and delivery of the mortgage. Since we have reached the conclusion that the judicial sale of the property in controversy to Sewer Improvement District No. 1 is a valid sale, it necessarily follows that the decree of the trial court dismissing appellant mortgagees’ complaint for want of equity must be affirmed.

Regardless of this result, however, it is insisted that the sale by the -sewer district of the lands in controversy to Mrs. Douglas is against public policy and void. It is practically admitted that Robinson’s mortgagee cannot raise or insist upon this question. The question can be and is raised, however, by a citizen and taxpayer of the district, who intervened in said cause, and we now proceed to determine it. The first insistence on this question is that the sale to Mrs. Douglas was for an insufficient and inadequate consideration. Improvement districts are not engaged in the real estate business. Their paramount duty is to collect assessments of benefits and' remit the proceeds to the bondholders. It is not contemplated in law that improvement districts will purchase lands with the view of making profits thereon. When the district disposes of lands acquired by it for an amount aggregating all past-due assessments, prima facie the law has been satisfied. We know of, and have been cited to, no case holding to the contrary. In Arkansas-Louisidna Highway Improvement District v. Pickens, 169 Ark. 603, 276 S. W. 355, we stated the. rule as follows:

“The theory is, and the practice should be, in order to comply with the spirit of the scheme, for the commissioners in selling the land to secure a sufficient price at least to cover the expenses and all of the delinquent assessments up to the time of the resale, so that the lands will bear their full share of the burden of the expense of the improvement.”

The fact is, in the more recent case of Oliver v. Gann, 183 Ark. 959, 39 S. W. (2d) 521, quoting from the first headnote, we held: “Drainage districts may sell land forfeited for nonpayment of assessments for an amount less than would have been required to redeem the land. ’ ’

When an improvement district disposes of lands held by it for an amount equal to, or in excess of the accrued taxes, we are unwilling to say that such sale is improvident or fraudulent.

It is next said that Mrs. Douglas could not become the purchaser of the lands from the sewer district. This contention is grounded upon the fact that her husband was the attorney for the district. We know of no rule of law, and none has been cited by counsel, to this effect.

It follows from what we have said that the decree of the chancery court should in all things be affirmed.

Smith, J.,

(dissenting). The net result of the majority opinion is that for a consideration of $58.66 the wife of the attorney for the improvement district has acquired property which the undisputed testimony shows has — even now — -notwithstanding the depression, a market value, of not less than $6,000' cash. No witness placed the cash market value at a smaller figure, and some placed it much higher. The Bankers’ Mortgage Company made a cash loan of $5,000, and the appellants, who are the trustees of the Missouri Congregational Conference, thought the property safe security for a loan of that amount, and upon that assumption took an assignment of the mortgage as an investment for $5,000 of the fund held in trust for the support of indigent preachers of that denomination. This result has been reached because, forsooth, the commissioners of the improvement district had the power to sell the property for the price paid.

. The sale was for less than one per cent, of the value of the property, and was made to the wife of the attorney for the district.

W. H. Stovall, who is a member of the board of commissioners of the improvement district and the secretary thereof, testified that it was the custom of the board to make deeds to the original owners, in consideration of the taxes, penalty, interest and costs for which property had been sold to the improvement district, and that such deeds were executed to effect redemptions, and that he executed the deed here sought to be canceled upon its presentation to him for that purpose without knowing who the grantee was and upon the assumption that a redemption was being effected by the owner. This result was accomplished because of the confidential relation existing between the. secretary of the board of commissioners and its attorney, and the secretary testified that he would not have executed the deed for the consideration received had he known that the deed was being executed to a stranger to the title.

Because such transactions might occur, either inadvertently or through design, public policy should prevent their occurrence.

It may be conceded — and I make the concession— that payment of the taxes, penalty, interest and costs for which the land sold to the district, or even a smaller sum if a larger amoúnt could not be obtained, is a consideration sufficient in law to support a deed conveying such property. On the other hand, it is certain that a much larger amount could have been obtained, had any effort in that behalf been made, and, in my opinion, the good faith which should exist between attorney and client required that such effort be made before the attorney for the improvement district should be permitted to acquire, title to valuable property for less than one per cent, of its value, even though the title was taken in the name of the attorney’s wife, if, indeed, such a conveyance could be made at all.

The case of Arkansas-Louisiana Highway Imp. Dist. v. Pickens, 169 Ark. 603, 276 S. W. 355, from which the majority quote as holding that the district had the power and authority to sell the land for the amount of taxes, etc., for which it had been sold to the district, states the duty of commissioners acting for the public in such matters. The facts in that case were that, through the failure of certain landowners in an improvement district to pay their annual assessments of benefits, the district had made default in the payment of its maturing obligations, and it became necessary to levy an increased per cent, of the betterments assessed against all the property, including that of lands owned by persons who were not in default. The owners who had paid their assessments complained that, had other owners paid theirs, no increase would have been required in the assessments ; and it was complained also that is was unfair to increase the burdens of persons who had paid their assessments because of the delinquency of others who had made default in that respect. This objection was answered in a statement declaring the duty of the commissioners of the district. This statement, from which the majority have quoted only a single sentence, reads as follows:

“When the lands are bought in by the commissioners at the foreclosure sales, they become the property of the district, to be used for the purpose of raising revenues to pay the bonds. The lands do not belong to the bondholders, and the district is not entitled to take credit, as contended by counsel for appellees, to any extent until revenues are raised by the sale thereof. The lands thus purchased become the absolute, property of the district, and express authority is conferred by the statute to sell the lands at prices fixed by the commissioners. The theory is, and the. practice should be, in order to comply with the spirit of the scheme, for the commissioners in selling the land to secure a sufficient price at least to cover the expenses and all of the delinquent assessments up to the time of the resale, so that the lands will bear their full share of the. burden of the expense of the improvement. Nor is there any dislocation or destruction of the scheme of uniformity by reason of the purchase, by the district of delinquent lands. By the purchase of lands at foreclosure sale,, when the sales are confirmed, the district becomes the absolute owner of the lands, which renders, not only the estimated benefits, but the total value of the lands subject to sale to raise revenues. It would be a contradiction in terms to say that the. foreclosed lands escape their just proportion of the burden by becoming the property of the district, when, as a matter of fact, by this change in the title the lands become wholly subject to these, burdens.
“The requirement of uniformity is fully met in the assessment of benefits and the methods of enforcing the same, and the fact that some of the lands, by delinquency of the owners, may become the property of the district under foreclosure proceedings does not, as we have already seen, disturb the uniformity of the scheme. If it were otherwise, it would be impossible to comply with the requirement of uniformity, for foreclosure of the tax lien and purchase by the district in the absence of other purchasers is the only method whereby the burden of taxation can be, successfully enforced.”

It appears to me to be apparent that the requirement of uniformity is not only not met but is wholly destroyed if a district having acquired title to delinquent property, as the district here did, may sell a choice piece thereof to the wife of the attorney of the district whose duty it is to protect the public interest.

A similar question arose in the case of Chicago Mill & Lbr. Co. v. Drainage Dist. No. 17, 172 Ark. 1064, 291 S. W. 810, where the duty of the commissioners of an improvement district as declared in the Pickens case, supra, was reaffirmed. To make that duty plainer and so certain that no doubt about it could exist, it was said, after reaffirming the Pickens case: “It was pointed out in those cases that the lien of the district continued until the taxes were paid or until the lands themselves were acquired by the district through sales for the nonpayment of the taxes, and that, when the delinquent taxes were paid, they became available and should be used in paying the obligations of the district, and further, that, if the lands were sold to the district and not redeemed, then the entire value of the lands to be realized by a sale thereof would be available for this purpose. So that, while a delay would be entailed in obtaining and applying revenues from the delinquent lands, these revenues would finally be obtained and applied, and thus no unequal burden would be imposed.”

There is no question about the power 'of the commissioners to sell delinquent property which has forfeited to it because of the delinquency. But the power to sell is not limited to a sale merely for the taxes, etc., for which the land sold. On the contrary, the power exists, and the duty is by law imposed, if the property must be sold by the district, to realize its revenues and to place the property back on the tax books, to sell it as advantageously as possible.

The benign policy which the secretary of the district testified he thought he was folloiving, when he signed the deed here attacked,, of executing deeds to original owners as a method of perfecting redemption, is one thing. The policy of permitting a stranger to the title, whose husband occupies the most confidential of all relations, to take advantage of information acquired in the course of that relation to purchase property acquired by the district through the professional services of its attorney is a wholly different proposition.

It must be remembered that this question is not raised by one who has no interest in the subject-matter. The trustees of a fund from which a loan of $5,000 was made upon the security of the land sold, have made themselves parties to this proceeding to protect their security evidenced ‘by the mortgage which they own by the assignment thereof to them. The majority opinion furnishes full authority for this intervention on their part. In arguing that the improvement district itself had the right, as an interested party, to question the forfeiture to the State for the nonpayment of the general taxes, the majority say: “The position of an improvement district is analogous to that of a mortgagee of real property. It is uniformly held that a mortgagee of real property may do any act or perform any duty in reference to the protection of title or redemption from sales that can be done or performed by the owner. For this rule to have full application, it is not necessary that the debt secured by the mortgage be due, or any part thereof, because the status, of the parties is established by the execution and delivery of the mortgage.”

However, an owner of property within the district has intervened in that capacity to protect the interest of the district. It cannot therefore be said that the question of the validity of the deed here attacked has not been raised by one having the right to question its validity. If it be said that the property owner does not propose to pay the improvement district its due, it may be answered that the assignees of the mortgage debt make that offer, and their entire good faith is shown not only by their tender but by their prosecution of expensive litigation to be accorded that right.

In my opinion, this deed should ‘be set aside as violative of public policy and positive law, and the right of redemption should be accorded as prayed. The case of Cabell v. Board of Improvement, 124 Ark. 278, 187 S. W. 666, appears to me to require that action.

I am authorized to say that Justices Mehaffy and McHaney concur in the views here expressed.


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    Heard v. Griffin.
    4-3213
    Opinion delivered November 27, 1933.

      B. H. Heard, pro se, for appellant.

      Longstreth & Longstreth, for appellee.
   Smith, J.

Appellant brought unlawful detainer to recover possession of a farm from appellee, who was in possession of the land under an unexpired lease at the time appellant bought it. Appellee was evicted, and filed an answer asserting his right to the possession, and, in a cross-complaint, he prayed damages for his alleged wrongful eviction.

The principal issue in the case, except that of the damages, is presented in an instruction requested by appellant, which reads as follows: “No. 2. If you-find from the evidence that the defendant had a rental contract for the rent of the land in question for the year 1932, and that, when plaintiff Heard learned that he claimed to have such a contract, he offered and proposed permitting him to proceed under such contract, and if you further find that defendant Griffin declined to accept such proposition;.and by word and acts led the; plaintiff to believe that he did not desire to retain possession and remain on the land for the year 1932, and that, acting on such impression, plaintiff Heard rented said lands to another, you are instructed that defendant Griffin would be estopped to set up his rental contract for the year 1932, if any, and you will find for the plaintiff.”

There was a conflict in the testimony touching the questions of fact referred to in the instruction, which have been settled by the verdict of the jury in appellee’s favor, the testimony being sufficient to support the verdict.

The verdict of the jury in appellee’s favor is conclusive of the issue of fact that the eviction was unauthorized. Damages were assessed by the jury in appellee’s favor in the sum of $500, and judgment was rendered accordingly.

It is insisted that the instructions on the question of damages were erroneous, and that there was no testimony showing appellee had been damaged by his eviction.

We are of the opinion, however, that there was sufficient competent testimony to support the verdict of the jury. There was testimony that the rental value of the farm was much more than the amount of rent which appellee had agreed to pay. There was testimony also to the effect that appellee had sustained certain special damages, these consisting in the value of work which had been done by appellee to prepare the land for cultivation and the expenses of his removal from the farm. The testimony as to the difference between the rent reserved and the actual rental value, and that as to the special damages, was legally sufficient to support an even larger • judgment. The truth of this testimony was, of course, a question for the jury.

The instruction which submitted these issues reads as follows: “No. 9. You are instructed that, if you find from the evidence that W. H. Griffin was caused to be wrongfully evicted in this case by the plaintiff, you will take into consideration as elements of damage the difference in the rental value of the property and the amount of rent which Griffin was to pay, the value of the work and improvements he had made up to the time of his eviction, the expense of moving for himself which you find from the evidence, if any, he has caused to suffer as a direct and natural consequence of the wrongful act of the plaintiff, if you find there was any wrongful act of plaintiff.”

There is no error in this instruction. McElvaney v. Smith, 76 Ark. 468, 88 S. W. 981.

As there appears to be no prejudicial error in the record, the judgment must be affirmed It is so ordered.


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    King v. Solmson.
    4-3207
    Opinion delivered November 27, 1933.

      Streett Streett, for appellant.

      Powell, Smead & Knox, for appellee.
   Smith, J.

On August 20, 1928, H. B. Solmson leased a building in the city of Camden to Stephens & Wallin for a period of two years beginning April 1,-1929, at a stipulated rental of $175 per month. The lessees occupied the premises until December, 1929, when they made a sublease of the building to Ben King. This sublease was evidenced by a writing dated December 10,1929, and provided for the payment by King to Stephens & Wallin of $175 per month from January 1,1930, to March 31, 1931, the date of the expiration of the original lease.

King occupied the building under this sublease until in June, 1930, at which time, according to his testimony, he surrendered the sublease to Stephens & Wallin, and he thereafter entered into negotiations with Solmson for a new lease agreement, which negotiations terminated in an oral agreement whereby King would continue to occupy the premises for an undetermined time, paying $150 a month for each month he remained in possession. In the meantime, and on June 7, 1930, Stephens & Wallin indorsed a written assignment of its interest in the sublease contract to Solmson.

King continued to occupy and use the premises until January 15, 1931, when he vacated the building and delivered the keys thereto to Solmson, and he then paid a half month’s rent in January, and now denies liability for any sum in addition.

Suit was brought by Solmson against King to recover rent up to the date of the expiration of his sublease, which was two and one-half months, and which, at $150 a month, would amount to $375, and judgment was prayed for that sum.

The question of fact was submitted to the jury whether the sublease, had been annulled by an agreement that King should remain in possession as a tenant from month to month for an indefinite period, with the privilege of vacating the property when he pleased. This issue of fact was determined in King’s favor, as is evidenced by the verdict of the jury against him for only $225, which was the rent unpaid for the month of January and for the entire month of February. There was a judgment accordingly, from which King has appealed.

The court charged the jury that King was liable in any view of the case for the half month’s rent for January, which King had not paid, amounting to $75. This instruction was correct. According to King’s own testimony, he had changed the lease for a definite time, expiring March 31, 1931, into a lease from month to month for an indefinite time, with the privilege of terminating it at his pleasure. But, as there was no agreement made or custom proved dispensing-with notice, King should have given the month’s notice which the law requires of the landlord and the tenant alike to terminate a lease from month to month.

King insists that in no event should he be held liable for more than one month’s rent. But we do not concur in that view. It is an undisputed fact that King gave notice on January 14, 1931, of his intention to vacate, and, pursuant to this notice, he vacated on January 15, 1931.; It is argued that previous notice had been given to Solmson by King in December, 1930;-but we do not so interpret the testimony. There is no question but that in December, and prior thereto, King had complained to Solmson about the rent charged, and had demanded a reduction, and had stated to Solmson that he would have to get another tenant unless a reduction was made; but we find no evidence of a formal notice of a definite intention to vacate — which the law requires — prior to January 14.

This being true, the question of law for decision is whether King is liable for only one month’s rent, or whether he is liable for the remainder of the month of January, on the 14th of which month he gave notice of his intention to vacate, and for the ensuing month of February. The original lease began on the 1st day of the month, and there is no testimony that the rent-paying date was changed, or that time was to be computed otherwise than from the 1st day of each month.

The common-law rule is that, in order to terminate a tenancy from month to month, notice to quit by the landlord, or notice of an intention to vacate on the part of the tenant, is necessary, and this notice must be served before the beginning of the succeeding rental month. 1 Underhill on Landlord and Tenant, § 115.

The authorities are reviewed by Mr. Justice Hughes in the case of Stewart v. Murrell, 65 Ark. 471, 47 S. W. 130, where he quoted from Gear on Landlord and Tenant, page 85, § 32, as follows: ‘ ‘ ‘ The right to notice to quit is mutual between landlord and tenant. * * * A tenant from month to month is entitled to thirty days’ notice to quit, unless the statute allows a shorter period of notice. The notice must be for a full month before the day on which a new holding would begin, and terminate at the expiration of a monthly period. ’ See cases cited to § 32 in note 15, p. 89.” Following this quotation Mr. Justice Hughes proceeded to say that, “We have no statute regulating the length of notice required in such case, and we are therefore governed by the common-law rule.”

Our adherence to the common-law rule was reaffirmed in the case of Reece v. Leslie, 105 Ark. 129, 150 S. W. 579, where it was said that, in case of a tenancy by the month, it is necessary, in the absence of an agreement between the parties for a different time, that either party give the other thirty days’ notice to terminate the tenancy, the notice ending with a monthly period.

There appears to be no error, and the judgment must therefore be affirmed. It is so ordered.