text:
    Arkansas General Utilities Company v. Shipman.
    4-3286
    Opinion delivered January 15, 1934.

      DuVal L. Purkins and Leffel Gentry, for appellant.

      C. T. Sims and George H. Holmes, for appellee,.
   Mehaffy, J.

This suit was begun in the Drew Circuit Court by appellee against the appellant to recover damages in the sum of $5,000 for personal injury, alleged to have been caused by the negligence of appellant.

The appellant operates an electrical system at Wilmar, Drew County, Arkansas, and it is alleged that it maintained an electrical transmission line, conveying 33,000 volts of electricity near appellee’s home, and also a service line of 110 volts; that on July 3, 1932, one of the 33,000-volt wires fell across the 110-volt wires, causing an unnecessary, excessive and dangerous amount of electricity to be transmitted into the residence of appellee, and into the light and radio connections in said residence ; that, as a result, the radio was burned and blazed up, and appellee, in order to save the residence from being burned, took hold of the insulated cord which connected the radio to the 110-volt service line, and broke the connection by separating the plug, and that when she did so, there was a powerful electric are therefrom, which damaged her eyes, and the current entered her body, causing injury to her head, eyes, heart, muscles and nerves. It was alleged that appellant was negligent in erecting and maintaining the wire carrying 33,000 volts of electric current which broke and fell upon the 110-volt wires, connected Avith the residence of appellee; that, in erecting and stringing the wire upon the poles, said -wire was stretched so tight that the strain and tension thereon was so great that said wire was pulled in two. It is also alleged that appellant did not exercise reasonable care in mailing inspection, and that, if it had it would have known of the strain upon the wire.

Appellant filed answer, admitting the ownership of the 33,000-volt transmission line and the 110-volt distributing line, but denied all allegations of negligence, and denied that appellee received any injuries, and alleged that, if appellee was injured, it resulted from her own negligence.

There was a verdict and judgment in favor of the appellee against the appellant for $2,093.08. The case is here on appeal.

There is no dispute about the transmission line, which carried 33,000 volts, breaking and falling on the other wires. There is a sharp conflict in the evidence as to the injury, and also contention is made by appellant that appellee was guilty of negligence herself, which caused the injury. It would serve no useful purpose to set out the testimony. It is in conflict on all matters of fact.

The evidence showed that there were pennies in the fuse box, and the appellee’s evidence shows that appellant’s representatives knew of this before the injury. This evidence is also disputed. No one testified as to how much voltage went into the house. The wires had been there several years, and one Avitness testified that he inspected the -wires 60 days before the injury.

Witnesses for appellant testified that it would be physically impossible for the line to break under strain because this break happened in the summer time, and breakage of -wires drawn too tight would occur in the -winter months. Several witnesses also testified that, in their opinion, the transmission line was struck and severed by lightning. No one saw the line struck by lightning, nor did any one testify about lightning on that day.

Appellant first contends that the ease should he reversed upon the opinion in the case of Dierks Lumber & Coal Co. v. Brown, 19 Fed. (2d) 732. In that case the court held that the doctrine of res ipsa loquitur applied in a case where the evidence showed that a current of electricity of high voltage, unnecessary, unsafe and unsuitable, passed into the store over the power company’s wires and caused injury. The breaking of the 33,000-volt wire in the instant case, breaking and causing high current of electricity to enter the home of appellee, causing injury, speaks for itself, and makes a prima facie case of negligence. The court further said, in the case relied on by appellant: “If no further evidence appeared in this case than circumstances showing that an excessive current of electricity of high voltage, unnecessary, unsafe and unsuitable for the purposes of the store, was transmitted over defendant’s wires into the store, and that plaintiff suffered injury therefrom, such circumstances would point to negligence and be sufficient, no facts or circumstances being shown to disprove the same, to take the case to the jury. As the Supreme Court said in the Sweeney case, supra [228 U. S. 233, 33 S. Ct. 416]: ‘The circumstances are evidence of negligence.’ ”

Of course, the presumption arising from the happening of the accident may be rebutted, and in this case the appellant undertook 'to rebut this presumption by showing that it had inspected the wires, and by introducing evidence tending to show that the high voltage wire was struck by lightning. These were facts, however, for the jury to determine.

Appellant next cites City Electric St. Ry. Co. v. Conery, 61 Ark. 381, 33 S. W. 426. It is contended that the test of the duty is announced in this case. The court, after stating the high degree of care required of one controlling electric current, said: “This fact being established, the next question is, upon what duty of the appellant to the appellee can this action be based? The answer to it is, upon the duty enjoined by the rule which requires every one to so use his property as not to injure another. The applicability of this rule may be shown by many illustrations. One is where an owner of a vicious animal accustomed to do hurt, knowing his habits, negligently allows him to escape. He is responsible for the mischief the animal does, because it was the duty of the owner to keep him secure.”

The court then, after citing other illustrations, continues: “This rule applies with equal force to electric companies. They are bound to use reasonable care in the construction and maintenance of their poles,. cross-arms and wires and other apparatus along streets and other highways. They are required to do so for the protection of persons and property. If they negligently allow their wires to fall or sag, or poles or other apparatus to fall, to the injury of another, they are responsible in damage for the wrong done, if the party injured is guilty of no culpable negligence contributing to the injury.”

We do not agree with appellant that it was the duty of the appellee to show that transmission wire broke because it was stretched upon the poles so tight that the strain and tension thereon pulled the wire in two. The circumstances and the breaking of the wire is evidence of negligence.

The appellant argues at length that the evidence is insufficient to sustain the verdict. This court has many times held that the jury will not be permitted to guess and speculate, but, where there is any substantial evidence upon which to base a verdict, it cannot be disturbed by this court.

If the evidence had established the fact that the wire was struck by lightning and severed within such a short time before the accident that the appellant could not have repaired it by the exercise of ordinary care, the appellant would not be liable; but whether the evidence establishes this fact was a question for the jury.

Objection was made by appellant to some of the instructions, but these objections are not argued in its brief.

“The duty of an electric company in reference to keeping its appliances in safe condition is a continuing one. Not only must it exercise a high degree of care in the original selection and installation of its electric apparatus, but thereafter it must use commensurate care to keep the same in a proper state of repair. The obligation of repairing defects does not mean merely that the company is required to remedy such defective conditions as are brought to its actual knowledge. The company is required to use active diligence to discover defects in its system. In other words, an electric company is bound to exercise due care in the inspection of its poles, wires, transformers and other appliances.” Curtis on Electricity, 699; Ark. Power & Light Co. v. Cates, 180 Ark. 1004, 24 S. W. (2d) 846.

“A company maintaining electrical wires, over which a high voltage of electricity is conveyed, rendering them highly dangerous to others, is under the duty of using the necessary care and prudence at places where others may have a right to go, either for work, business, or pleasure, to prevent injury. It is the'duty of the company, under such condition, to keep the wires perfectly insulated, and it must exercise the utmost care to' maintain them in this condition at such places. And the fact that it is very expensive or inconvenient to so insulate them will not excuse the company for failure to keep their wires perfectly insulated.” 1 Joyce on Electricity, 735; Duncan Elec. & Ice Co. v. Crisman, 59 Okla. 67, 157 Pac. 1031; Ark. Power & Light Co. v. Cates, supra.

We think the evidence was sufficient to submit the questions of fact to the jury as to the negligence of the appellant and the contributory negligence of appellee. On all the issues of fact where evidence was introduced, the testimony was in conflict. All of these questions were for the jury, and not the court.

We find no error, and the judgment is affirmed.


source: Caselaw Access Project

author: McHaney, J.

license: Public Domain

text:
    Hemby v. State.
    4-3276
    4-3316
    Opinion delivered January 15, 1934.

      George R. Steel and Pinnix & Pinnix, for appellant.

      Tom Kidd and Alfred Featherston, for appellee.
   McHaney, J.

This action originated in the county court of Pike County, where a complaint was filed against appellant, a boy eighteen years of age, charging him with being the father of a bastard child theretofore delivered of Cornelia Cornelius, a girl seventeen years of age. Trial in the county court resulted in a finding and judgment that appellant was not the father of said child. An appeal was prosecuted to the circuit court, where a jury trial was had, which resulted in a verdict that appellant was the father of said child, and it was adjudged that he forthwith pay to said girl “the sum of $50 for the lying-in expenses, and the further sum of $10 per month for each month dating from the birth of said child until it arrives at the age of fourteen years, and that defendant immediately enter into a bond to the State of Arkansas in the penal sum of $300, with good and sufficient security to be approved by the judge of this court, conditioned to be void if said Tommy Hemby, his executors or administrators, shall indemnify each county in-this State from all costs and expenses for the maintenance- or otherwise of such child while under the age of fourteen years, and for the payment of the monthly dues hereinbefore adjudged to be paid; and that all costs of this proceeding be by the defendant immediately paid, and it is further ordered that defendant be remanded to the jail of Pike County if said sum is not paid and bond executed in thirty days from date, and there be by the jailer safely kept until all moneys now due the prosecuting witness, Cornelia Cornelius, be paid, and the bond herein ordered to be made be furnished and approved by this court. And the court doth find that the sum of $210 is already past due on the monthly dues herein adjudged to be due, for which judgment is rendered against defendant, on which execution or other process may be issued, in addition to commitment to jail.” Case No. 3276 is an appeal from that judgment.

Thereafter habeas corpus proceeding was instituted in the chancery court, seeking the release of appellant from the order of commitment. The chancery court dismissed the petition for want of jurisdiction, and ease No. 3316 is certiorari to the Pike Chancery -Court. Both cases have been consolidated for hearing in this court. In view of the disposition we make of the matter in the former, it becomes unnecessary to discuss the latter.

While the evidence tending to show that appellant is the father of said child is very unsatisfactory, depending almost entirely upon the evidence of the prosecuting witness, we are of the opinion, after careful consideration thereof, that there was sufficient evidence to take the case to the jury, and its finding, based on substantial evidence, is conclusive in this court.

The serious question in the case, and the one that has given us most concern, is whether, under the undisputed facts in the record, the court erred in committing appellant to jail until he had paid the $210 adjudged against him and executed a bond, conditioned as heretofore set out.

Section 777 of Crawford & Moses’ Digest, as amended by act 111 of 1927, p. 310, empowers the court to commit the accused person to jail until the amount adjudged against him shall have been paid with costs, and to require bond .conditioned as aforesaid. Section 778, Crawford & Moses’ Digest, reads as follows: “If such person shall refuse or neglect to enter into bond with securities above provided, the county judge shall commit him to the jail of the county, there to remain until he shall comply with such order, or until he shall be otherwise discharged according to law.” Under these sections of the statute, the court made the order above quoted. The undisputed facts in this record show that it was impossible for the appellant to comply with the order of court above quoted. The facts show that appellant is a boy eighteen years of age, living with his father on the farm; that he earns no money, and is supported by his father. He earns his board and clothes by his work on the farm, and is sent to school by his father at Delight. His father is a small farmer owning only a small amount of property of any kind. Appellant testified that he attempted to comply with the order of the court, but was unable to borrow the money to pay the amount of the judgment against him, or to get anybody to sign his bond who could qualify for the amount thereof. There is no evidence contradicting this testimony. The question then is, does the court have the power to commit for an indefinite length of time for failure to pay the amount adjudged against him and for failure to make the bond? The case of Land v. State, 84 Ark. 199, 105 S. W. 90, is quite similar to the case at bar. In that case the court, speaking through the late Chief Justice McCulloch, said: “But it is said that where the accused is unable to comply with the order the result is to imprison him for an indefinite length of time, perhaps for life. This, of course, depends on his ability or inability to comply with the order of the court. We have no such question before us in this record, as no effort was made by the appellant to show that he was unable to pay the lying-in expense and costs, or to give bond for the payment of the monthly allowance. The statute clearly gives the court power to discharge the defendant from custody when it is made to appear to the satisfaction of the court that he cannot comply with the order.

“Imprisonment under this statute may be likened to that for failure in a divorce case to comply with an order of the court with respect to alimony. This court said, in a case of that kind, ‘that imprisonment in such a case is justified on the ground of willful disobedience to the orders of the court; and so soon as it is made to appear that the defendant is unable to comply with the orders of the court, he should be discharged. Ex parte Caple, 81 Ark. 504, 99 S. W. 830.’ ”

But the very question which the court said was not in the case of Land v. State, supra, his ability or inability to comply with the order of the court, is the main issue in the case now before us, and,' as above stated, his inability to comply is undisputed. If imprisonment under this statute is to be likened to that of failure in a divorce case to comply -with an order of the court with respect to alimony, and imprisonment in such a case is justified only on the ground of willful disobedience to the order of the court, as held in the Land case, then appellant undoubtedly should have been discharged. Our statute, § 778, Crawford & Moses’ Digest, provides that, if the accused shall “refuse or neglect” to enter into bond with security, etc., he shall be committed. We think the evidence conclusively shows that appellant has neither refused nor neglected to comply with the order within the meaning of the statute. It is shown that he tried to make the bond, but could not do so. He did not “refuse” because that word implies a willful disobedience. To neglect to do a thing implies negligence on the part of the person. Webster defines neglect as “omission of proper attention ; avoidance or disregard of duty, from heedlessness, indifference, or willfulness; failure to do, use, or heed anything; negligence; as, neglect of business, of health, of economy.” In New York Guaranty Indemnity Co. v. Gleason, 53 How. Prac. (N. Y.) 122, it is said: “What constitutes neglect or refusal?- To neglect and to omit are not synonymous terms. There may. be an omission to perform an act or condition which is altogether involuntary and inevitable, but neglect to perforin must be either voluntary or inadvertent. ‘To neglect is to omit by carelessness or design’ (Webster’s Dictionary) not from necessity, and there can therefore be no possibility of neglecting to do that which cannot be done. ’ ’

We are therefore of the opinion that appellant has neither neglected nor refused to obey the order of the court within the meaning of the statute. See also Brown v. Hendricks, 102 Neb. 100, 165 N. W. 1075; State v. Kranendonk, 79 Utah 239, 9 Pac. (2d) 176; State v. Reese, 43 Utah 447, 135 Pac. 270.

We are therefore of the opinion that the judgment of the circuit court, in so far as it relates to the commitment of appellant for his failure to comply with the order of the court, should be reversed and remanded with directions to vacate and quash the order of commitment.


author: McHaney, J. Johnson, C. J.,

text:
    Waid v. Waid.
    4-3289
    Opinion delivered January 15, 1934.

      J. F. O’Melia, for appellant.

      Utley & Hammock, for appellee.
   McHaney, J.

Appellee, husband of appellant, brought this action against her and the First National Bank of Fort Smith, to recover the sum of $3,640 and the accrued interest thereon, the total amounting to $4,211.11, which she had deposited in a savings account in said bank, in her maiden name of Ethel Marie Mivelaz. The parties to this action were married January 1, 1928. At that time appellee was under a “try out” contract of employment as traveling salesman with the R. Hoe Company, manufacturers of printing machinery and supplies, by which he received traveling expenses only, but in June or July he began receiving a salary in addition to expenses. Fort Smith was his headquarters during 1928, where they lived with appellant’s sister. In December he was transferred to New Orleans, became sales manager of a large territory, and was given a salary of $350 per month plus traveling expenses. Some time after their marriage, appellee opened a checking account in the First National Bank in their joint names, giving either the right to check thereon. Salary and expense checks from his employer were sent to him at Fort Smith, were received by her in his absence, and she was instructed by him to deposit same to said account after deducting such sums as she might need for her living expenses in his absence. Some of the funds she received were deposited according to instructions, but, from August 28, 1928, to March 3, 1930, she withheld from deposit in that account $3,640 of said money sent her, and deposited same to her own credit under her maiden name, Ethel Marie Mivelaz. From May, 1929, to December, 1932, there was deposited in the checking account in their joint names the sum of $8,750.57, 'but he received no salary or expenses after February 15,1932, as he suffered á serious and permanent injury in an automobile wreck January 18, 1932, and did no work thereafter, and it appears from the bank records that $2,427.50 was deposited in said account from April 11 to December 23,1932.

Appellant defended the action on the ground that the money deposited to her credit was a gift from her husband.' The court found against her contention, and she has appealed.

Substantially the only question presented is one of fact. Did appellee give her the money she deposited to her credit in a savings account? There is no conflict in the testimony, except on the issue of gift or no gift. It is undisputed that all the money deposited in both accounts came from his earnings. It is also undisputed that he knew nothing about this account in her maiden name until the bank charged him with an overdraft, and, upon investigation of this matter, discovered same. Appellant says he gave her the money, and is corroborated to some extent by her two sisters and a niece. Appellee denies that he gave her the money to be kept as her own, but that it was to be deposited in the checking account. In this he is corroborated to some extent by the facts and circumstances surrounding the transaction. The fact that she deposited it to her credit in her maiden name; that she did not deposit it in the bank where she had another savings account, the Merchants’ National; that she did not tell him that she had done so, all tend somewhat to show an effort to hide or conceal the matter, and to corroborate him that there was no gift. The court found the issue in favor of appellee, and we are unable to say the finding is against the preponderance of the evidence.

Moreover, if this is a gift at all, it is a gift inter vivos or clonatio inter vivos. In Stifft v. W. B. Worthen Co., 176 Ark. 585, 3 S. W. (2d) 316, we said: “Gifts inter vivos or donationes inter vivos are gifts between the living, and are perfected and become absolute during the lifetime of the donor and the donee. * * * The elements necessary to constitute a valid gift inter vivos were stated by this court in Lowe v. Hart, 93 Ark. 518, 125 S. W. 1030, to the effect that the donor must be of sound mind, must actually deliver the property to the donee, must intend to pass the title immediately, and the donee must accept the gift.” We think the evidence in this case fails to satisfy this rule. There was no intention on his part to pass the title to her immediately or at all. He intended that the mone}^ be deposited in their joint checking account, over which he had some control. While she did not"draw any checks on that account, she could have done so without accounting to him therefor.

It follows that the decree must be affirmed.

Johnson, C. J., and Kirby and Butler, JJ., dissent.

Johnson, C. J.,

(dissenting). The applicable rule on appeal in chancery cases is that this court tries and dotermines such eases de novo, and the findings of fact by the chancellor are allowed to stand, unless clearly against the preponderance of the testimony. Leach v. Smith, 130 Ark. 465, 197 S. W. 1160; Ellis v. District, 142 Ark. 73, 218 S. W. 389; Teague v. Hutto, 132 Ark. 180, 200 S. W. 805.

The converse of this rule, is aptly illustrated in Leach v. Smith, su,pra, wherein this court said:

“When chancery causes are taken up for determination by this court, the judicial balance, so to speak, stands at perfect equipoise. One side of the scales is labeled ‘appellant,’ the other ‘appellee.’ The testimony in the record is examined and all that is incompetent is discarded. That which remains for appellant is put on his side, and that for the appellee on his side, and if the scales are evenly balanced, or so nearly so as to leave the judges in doubt as to where lies the greater weight, then the decision of the court below is persuasive and is allowed to stand as the correct result.”

The majority opinion hold that the testimony in the instant case is so evenly balanced that the chancellor’s findings tip the scales in favor of appellee, therefore affirm the case. To this finding and determination I can not agree. The testimony in the case is to the following effect.

Appellee Ben W. Waid testified that he and appellant were married January 1, 1928. “The first salary drawn after marriage was in June or July, 1928; we lived in my wife’s family home at Fort Smith; my salary and expense checks came to our home; the money was deposited in the First National Bank of Fort Smith and was subject to my check. I trusted my wife to make the deposit of my salary, but did not intend that she should claim any of it as her separate property.” In December, 1928, appellee was ordered to New Orleans and thereafter lived there. After January, 1929, appellee lived in New Orleans and came to Fort Smith only occasionally, and, during this period of time, his salary and expense checks came to him there. He visited his wife at Fort Smith as often as possible, sometimes twice a month and sometimes tire visits were three months apart; that in January, 1932, he was injured; that witness was taken off the payroll of his employer February 15, 1932, thereupon witness moved back to Fort Smith and started a chicken ranch. When witness began to improve Ms chicken ranch, he first discovered that a part of his money had been deposited in his wife’s name. On cross-examination witness testified that his checks continued to go to Ms wife at Fort Smith until March, 1930, thereafter he received the checks at New Orleans, but continued to send money to his wife at Fort Smith; that, as he now remembers, he gave his wife at various times $325 for her personal needs; that after March, 1930, witness earned $350 a month up to February, Í932. Witness further testified, that he never stated in the presence of Jessie Dawson that he had given the money in controversy to his wife; that he had never made any such statement to Mrs. Newman. Witness had drawn all the checks that were drawn against his account and, in addition thereto, made an overdraft of $3215. Mr. Simms, a witness on behalf of appellant, testified that he was vice-president of the First National Bank of Fort Smith and knows the parties; that Mrs. Waid effected a checking account in his bank subject to the check of Mr. Waid also; but the savings account is in the name of Ethel Marie Mivelaz; the savings account reflects a credit to Ethel Mivelaz for the sum of $4211.11, which includes interest to date. The statement made and exhibited to Mr. Simms’ testimony reflects that Mrs. Waid’s savings account was opened August 27, 1928, and shows a total deposit aggregating $3,640, the last deposit being made March 3, 1930. The difference between the present status of the account is due to accumulated interest. In rebuttal appellee testified that he did not know that deposits were made in a savings account in the name of Ethel Marie Mivelaz until the filing of this suit; that he did not tell Mrs. Waid to make such deposits and did not give his consent thereto. That there is not now any change in the friendly affectionate relationship between himself and wife. The checking account reflects a total deposit of $8,750.57. TMs account was.open by witness’ authority. This was all the testimony' introduced in behalf of appellee.

The testimony on behalf of appellant was, to the following effect, that she and appellee were married on January 1,1928, and thereafter lived in her home in Fort Smith. Appellee sent his checks to her for deposit with instructions to put so much money in checking account —the rest he gave me — made a special gift to me. These checks would average $175 every two weeks and expense checks were from $75 to $100 a week. “Appellee opened the checking account at the First National Bank, and I did not authorize him to open it in my name.” Witness put all checks sent her in the checking account except what appellee gave her. Witness’ maiden name was Ethel Marie Mivelaz. All deposits made in the savings account were given witness by appellee on the date of deposit. Appellee gave witness no money after March 3, 1930. After March 30, 1930, witness did not receive any checks from appellee. Witness has lived in Fort Smith during all her married life. Appellee has resided in New Orleans since March, 1930. Witness has never drawn any money out of the savings or checking accounts. Witness had her name taken off the checking account when it became overdrawn. Appellee sent witness $50 or $100 after 1930: Witness deposited the money which appellee gave her in the name of Ethel Marie Mivelaz. Witness has never mixed her money with that of appellee’s, and this is the only money which was so deposited.

On cross-examination, witness testified, that all appellee’s gifts to her were in the form of money. Appellee, if he were not at home, would call her over the telephone and tell her what to do with the money. The savings account was my gift money. Witness never asked appellee for money when he failed to give it to her. Witness has income property in Fort Smith from which her expenses are paid.

Marguerite Mivelaz testified, in behalf of appellant, as follows:

That appellant and appellee, after their marriage in 1928, lived in witness’ and appellant’s home in Fort Smith; that Avitness had often heard appellee say: “Here, Ethel, is a check and I give it to you with all my heart and to do what you please with it,” and appellant Avould put the check in her account in the -hank. Witness has heard such statements from appellee numbers of times. After 1929, appellee lived in New Orleans and did not give appellant any more money. Mrs. Newman, another Avitness on behalf of appellant, testified, that she was a sister to appellant and Marguerite Mivelaz and lived in the same block in Fort Smith and witness had heard appellee say that he had given appellee, money; that she heard him make this statement on two occasions.

Jessie Dawson, a witness on behalf of appellant,. testified that she lived in an adjoining house to appellant and was Avith her continuously; that appellee continuously boasted that he had given money to appellant and made fun of her clothing and said she didn’t have to dress that way; that she had money of her oAvn and he boasted that he had given it to her. Witness has heard these boasts from him in the last year or so. Appellee did not state Iioav much money he had given appellant, just said that he had given her gifts and wondered why •she did not dress better. This Avas all the testimony introduced in said cause.

The testimony here presented, when measured by the rule cited supra, of necessity must be found to preponderate in favor of appellant. Under long-established rules of this court, the burden of proof in the whole case is upon appellee. His testimony is entitled to no greater weight than that of appellant. Viewed in this light, the testimony of appellee, and appellant should be determined of equal weight, therefore the decree should have been in appellant’s favor. But this is not all. Three other witnesses strongly corroborated the testimony of appellant as to the gift. This testimony should not be ignored as is done by the majority. This court is noAV evading the responsibility of trying this case de novo; it is attaching the same credence to the chancellor’s findings of fact, heretofore and now given to findings of juries. This overturns established rules of this court heretofore, thought to be impregnable.

The testimony above recited demonstrates an unusual condition of affairs — the husband suing- the wife to recover money deposited in her name — merely because it was earned by the husband during coverture. Moreover, it is unusual in that the wife furnished the house and living expenses out of her own separate estate at all times since .the marriage, never at any time spending one dollar of the husband’s earnings in this regard. Also this record reflects that appellee has earned and deposited on a checking account in a Port Smith bank $8,750, every dollar of which has been expended by appellee for things other than living expenses for himself and wife; in addition to this, after March, 1930, appellee received all of his earnings at New Orleans and disposed of same for his own maintenance and convenience. It is unusual that a wife would remain in Port Smith, earning her own living during every day of coverture, yet assert from the witness stand that she had affection for her husband.

But one question arises on this record for decision, namely: Did appellee give this $3,660 to his wife prior to its deposit in bank?-

I assert that this record demonstrates that he did. This is true, first, because it is perfectly natural for a husband to do just what appellant says her husband did —gave her this money. This gift constituted only approximately 30 per cent, of the total amount deposited in this Port-Smith bank and, when viewed in this light, was a reasonable award to his wife for her efforts in assisting him in accumulating money and property. I assert that this circumstance corroborates appellant that this deposit was a gift from appellee. Moreover, the testimony of Marguerite Mivelaz and Mrs. Newman, to the effect, that the husband made gifts to his wife of his earnings should not be disregarded merely because they are appellant’s sisters; if such -be so, however, Jessie Dawson testified that appellee had boasted to her of the gifts he had made to his wife, and this record does not reflect that this witness has any bias or prejudice in her favor.

On the other hand, the only testimony supporting the chancellor’s finding of fact, that his deposit was not a gift, is the testimony of appellee, and the effect of his testimony is merely a denial that such gift was effected. I assert, without fear of contradiction from this record, that the. great preponderance of the testimony is to the effect that this deposit was a gift from appellee to appellant and should be so determined by this court.

Since when, until now, has any court decided on the uncorroborated testimony of a husband, that a wife is not entitled to have or hold any of the property and money accumulated during coverture? Since when, until now, has any wife been required to furnish her own home and living expenses during coverture, then denied the right to participate in the husband’s accumulations to the extent of even $1 ?

Although the dower statutes of the State have no direct application, neither are they analogous to the question here under consideration. They do demonstrate, however, that the wife is not wholly without legal rights. Not, until now, is the wife treated as a mere chattel of the lord and master, the husband, by this court.

The case should be reversed and the cause remanded with directions to enter a decree according to the decided preponderance of the testimony.

I am authorized to say that Justices Kirby and Butler concur with the views here expressed.


author: Butler, J.

text:
    Bryant v. Parker.
    4-3279
    Opinion delivered January 15, 1934.

      W. J. Lanier, for appellant.

      F. F. Harrelson and W. J. Sherman, for appellee.
   Butler, J.

A. W. Bryant died intestate on the 3d day of May, 1932, leaving surviving him a widow, Mrs. Lydia Bryant, and four daughters and a son by a former marriage and three grandchildren, the children of another daughter by the same former marriage, who had died some years before the death of A. W. Bryant. This action was begun by the widow to set aside a gift of-$5,000 in money, and a deed of trust executed by ¡Bryant and wife, Lydia Bryant, to Bryant’s son-in-law, S. B. Walker, and his wife, Bertie Walker, to secure an alleged debt of $900 with accrued interest. Contention was made, first, that there was no actual gift of the money by the intestate to Walker and wife, and, if so, the donor was mentally incapable of thus disposing of his property, and, second, that there was no bona fide debt due which the mortgage was given to secure and that the trust deed was void. The administrator of the estate and certain other parties were made defendants as well as Walker and his wife and the other heirs of the intestate! Issue was joined on the allegations of the complaint, and much testimony was adduced before the trial court, which court, after having considered the pleadings and proof, rendered a decree dismissing Mrs. Bryant’s complaint for want of equity. From that part of the decree relating to the validity of the gift to Walker and his wife, and upholding the deed of trust, Mrs. Bryant has appealed.

Two questions of fact are involved: first, whether or not the evidence is sufficient to establish a gift inter vivos, and, second, whether or not Bryant, at the time of the making of the gift to Walker, was mentally capable of knowing the effects and consequences of. his act.

It is the contention of appellant’s counsel, which he has ably presented for our consideration, that the act of Bryant was so unnatural in the light of surrounding' circumstances as to strongly indicate that no actual gift of the money was intended to he made by him to his son-in-law, and that, if so, it indicated that his mind was so enfeebled by age and infirmity as to render him legally incapable of disposing’ of his property; that the attempt to take advantage of his alleged gift was a fraud upon him and the appellant; that the circumstances further-show that there was in fact no consideration for the execution of the deed of trust; that all of this corroborates the testimony adduced by the appellant to sustain the allegations of her complaint, and clearly preponderates in her favor, and that therefore the decree of the trial court should be reversed.

The law relating to gifts inter vivos is well settled, and has been many times stated by this court, the authorities being reviewed and the rule restated in the recent case of Stifft v. W. B. Worthen Co., 176 Ark. 585, 3 S. W. (2d) 316, (cited by the appellant) as follows: “The elements necessary to constitute a valid gift inter vivos were stated by this court in Lowe v. Hart, 93 Ark. 548, 125 S. W. 1030, to the effect that the donor must be of sound mind, must actually deliver the property to the donee, must intend to pass the title immediately, and the donee must accept the gift. It will therefore be seen that a gift inter vivos cannot be made to take effect in the future, as such a transaction would only be a promise or agreement to make a gift, and, being without consideration, would be unenforceable and void, and considerations of blood or love and affection are not sufficient to support such a promise. 12 R. C. L. 930. This court, from Hynson v. Terry, 1 Ark. 83, down to the present time, in an unbroken line of cases, has held that actual delivery is essential, both at law and in equity, to the validity of a gift, and that without it the title does not pass. Mere delivery of possession is not sufficient, but ‘there must be an existing intention accompanying the act of delivery to pass the title, and, if this does not exist, the gift is not complete.’ ” McKee v. Hendricks, 165 Ark. 369-383, 264 S. W. 825, 952, and cases cited. In the case of Carter v. Greenway, 152 Ark. 339, 238 S. W. 65, it is said: “Gifts causa mortis, as well as inter vivos, are based upon the fundamental right every-one has of disposing of his property as he wills. The law leaves the power of disposition complete, but, to guard against fraud and imposition, regulates the methods by which it is accomplished. To consummate a gift, whether inter vivos or causa mortis, the property must be actually delivered, and the donor must surrender the possession and dominion thereof to the donee. In the case of gifts inter vivos, the moment the gift is thus consummated, it becomes absolute and irrevocable.”

Although there are circumstances winch render the conduct of Bryant with respect to his property unusual, we are of the opinion that, when all of the testimony is considered, it is sufficient to make the gift of Bryant to Walker and his wife a completed and irrevocable one within the rule stated, that at the time of its execution he was mentally capable of performing the act, and further that the evidence preponderates in favor of the appellee, Walker, in regard to the validity of the debt and the deed of trust to secure the same. Bryant was a widower at the time he married the appellant, having a number of children, all of whom were grown, as well as his grandchildren, with the exception of one. When he was courting the. appellant, he told her of his financial condition, that he owned a home and had about $8,000 in cash in the bank. This appears to have been approximately true. He was married to the appellant in the month of April, 1927, 'being then well advanced in years and afflicted with ills usually attendant upon persons of that age, but, except for occasional spells which would confine him to his home for a few days at a time, he was able to perform those actions which men ordinarily did; he was able to, and did, work in his garden, attend to his live stock and make trades, but grew progressively more infirm and feeble until his death. About one year after his marriage, he sent for his son-in-law, S. B. Walker, and, without any previous intimation of such intention, told him he was going to give him $5,000 out of the money he had then on deposit in the Planters’ Bank & Trust Company of Forrest City. He directed Walker to draw a check payable to himself and his wife for that snm and gave it to Walker, telling him that it was his desire that no mention be made of the matter. Walker carried the check to his home, where he informed his wife of what had occurred, and gave her the check, which she indorsed. Bryant went with Walker to the bank and introduced him to the cashier where the check was presented, some conversation had relative to it, and the money transferred from the account of Bryant to a savings account in the name of S. B. Walker and Bertie Walker. The cashier related these conversations, which are unnecessary to set out here, but, when taken in their entirety, together with the. testimony of Walker and his wife, and with the subsequent conduct of Bryant, are sufficient to sustain the chancellor in his finding that the facts attendant upon these circumstances were sufficient to constitute a valid gift inter vivos. When the $5,000 was transferred to Walker, there remained a little in excess of $600 to the credit of Bryant. If he had any other money in his possession or to his credit elsewhere, we are not so informed. At any rate, about a year before his death, Bryant informed Walker that his funds were exhausted, that he needed $900, and wanted to borrow that amount from him, agreeing to give Walker a deed of trust to secure the loan on the home in which he and Mrs. Bryant lived. Walker agreed to lend Bryant the money, and, on instructions given, the note and deed of trust were prepared by Walker’s attorney, who, accompanied by a notary, carried the instruments to the home of Bryant, where the matter was explained to Mrs. Bryant and she there signed the deed of trust, relinquishing her dower and homestead rights in,the property described. Before this was done, she had been informed by Bryant that his money was all gone, and that it was necessary to borrow from Walker, and to execute the deed of trust.

The evidence shows that a part of the $5,000 gift was used by Walker in making the loan to Bryant, and it is upon this fact that the contention is based that there was no consideration for the execution of the deed of trust, or any valid debt created by the transaction.

On the question of Bryant’s mental capacity, the evidence is in conflict, but, as we view it, it preponderates to the effect that while physically weak and infirm, he was mentally capable of knowing, and did know, the effect and consequences of any business transaction which he might make. The evidence is undisputed, both on the part of the appellant and that given by Walker, that there was no particular reason why Bryant should have preferred one of his children above the others, or why he should have denuded himself of his estate so as to leave his widow destitute. The two had lived happily together during their married life; he was kind and considerate of her, and she of him, and, so far as the record discloses, there at no time existed any discord between the two. The evidence further shows beyond any dispute that Walker and his wife had done nothing more for their father than the other children or that he held them in any greater degree of affection than the others. But, with all this, the fact remains that he had absolute control over his money and the. power of disposing of it as he saw fit. The record is silent as to the motivating cause of his preference. What his secret motives were, we do not know, and have no means of discovering. It might be, and it appears, that he was unjust and unkind to a faithful wife, but that does not alter the law, and, however much we may question the justness of his act, we cannot gainsay its legality.

The appellant calls attention to a number of circumstances which, it is contended, dispute the claim that Walker had absolute control and dominion over the $5,000, such as borrowing various sums from time to time and giving mortgages to secure the same, and, as we have before noted, the apparently unnatural conduct of Bryant. But these were not sufficient in the mind of the chancellor to overturn the direct evidence of facts and circumstances which supported the view he reached.

It would serve no useful purpose to set out the evidence in detail, and would unduly extend this opinion. The questions before the chancellor were disputed questions of fact, and the judgment he reached was, in his opinion, as in ours, supported by a preponderance of the testimony.

Let the decree be-affirmed.


text:
    Union Central Life Insurance Company v. Boggs.
    4-3290
    Opinion delivered January 15, 1934.

      Buzbee, Harrison, Buzbee & Wright, for appellant.

      Woodson Mosley and R. W. Wilson, for appellee.
   Butler, J.

The appellee, a guardian of an insane person, brought suit against the appellant insurance company to recover disability benefits under a clause in the contract of insurance issued by said company to the ward of the appellee. An answer was filed to the complaint and various motions made and proceedings taken, when finally the appellee, by amendment to the complaint, alleged that she and the appellant, pending the litigation, had agreed upon a settlement of the controversy by which she was to be paid by the appellant a stipulated sum in full settlement of all demands which then existed or might thereafter arise under the policy, upon her execution and delivery to the appellant of a “valid, binding and unimpeachable release,” and the delivery to the insurer of the policy for cancellation; that she had complied with the terms of the agreement, but that the appellant had failed to settle according to the agreement. She prayed for judgment.

To the complaint, as amended, the appellant tendered its answer, admitting the agreement, but alleging that the appellant was without authority to execute and deliver a release of the nature and effect agreed upon. Appellant denied that appellee had executed and tendered any such release, and admitted its willingness to carry into effect the agreement upon the performance by the appellee of her part of the agreement, namely, that she would execute and deliver a valid, binding and unimpeachable release.

On the issues thus joined on the complaint as finally amended and the amended answer thereto, the cause came on to be heard, and by express agreement of the parties, a jury was waived and the cause submitted to the court sitting as a jury. The court, after having heard the evidence, refused the findings of fact and declarations of law requested by the appellant and rendered judgment in favor of the appellee, basing the same on the findings of fact and declarations of law requested by appellee, as follows:

“I. The court finds that on the 6th day of September, 1930, Victor James Boggs was duly adjudicated insane by a proper order of the probate court of Cleveland County, and that his wife, Elizabeth McMurtrey Boggs, was appointed by said court as his guardian; that she is now the duly appointed, qualified and acting guardian of Victor James Boggs; that as guardian of Victor James Boggs, she had authority to compromise, for a valuable consideration, his claim, and suit against the defendant, the Union Central Life Insurance Company, upon such terms and conditions as might be agreed upon between her and said Union Central Life Insurance Company, provided such compromise agreement was made in good faith and not in fraud of the rights of her ward, Victor James Boggs.
“II. The court finds that the compromise agreement made between the plaintiff, Elizabeth McMurtrey Boggs, and the defendant, the Union Central Life Insurance Company, which was reduced to writing and signed by the parties, a copy of which is attached as exhibit A to the amendment to plaintiff’s amended complaint and the original of which was introduced in evidence in this cause as exhibit 1 to plaintiff’s testimony, was made in good faith and is not in fraud of the rights of plaintiff’s ward, Victor James Boggs, but, on the contrary, is to the. best interests of the said ward and his estate.
“III. The court finds that said agreement of compromise was effective to obligate the defendant, the Union Central Life Insurance Company, to pay to the plaintiff, Elizabeth McMurtrey Boggs, as guardian of Victor James Boggs, the sum of $4,000, upon the execution and delivery by said guardian to the Union Central Life Insurance Company of a valid, binding and unimpeachable release, fully and finally releasing and discharging the defendant of all liability, causes of action, claims and demands of every name and nature now existing or which might arise hereafter under the insurance contract effected by the defendant on the life of Victor James Boggs on the 22d day of March, 1921, and the policy of life insurance issued pursuant thereto, being No. 683,532, a copy of which is attached as exhibit A to the memorandum of agreement to compromise introduced in evidence and upon the surrender to the defendant of said policy of life insurance for cancellation and final extinguishment of all its liability thereon.
“IV. The court finds that, pursuant to the agreement of compromise sued on and introduced in evidence, Elizabeth McMurtrey Boggs, as guardian of Victor James Boggs, duly executed and tendered to the defendant, the Union Central Life Insurance Company, a valid, binding and unimpeachable release a true copy of which was attached as exhibit B to the amendment to plaintiff’s amended complaint and introduced in evidence as exhibit 4 to plaintiff’s testimony. The court further finds that said instrument of - release is efficient to consummate and make effective for all time the compromise, settlement agreed upon, and to relieve the defendant insurance company fully and finally of any and all liability of every name and nature now accrued or which could by any possibility hereafter accrue on the policy of insurance sued on and introduced in evidence. The court finds further that, at the time plaintiff tendered to the defendant said release, she tendered the policy of life insurance issued by the defendant on the life of her ward, Victor James Boggs, on the 22d day of March, 1921, No. 683,532, impowering the defendant to cancel same and to extinguish finally and fully all possible liability of every name and nature now accrued or which might hereafter arise thereon. That plaintiff, as guardian of Victor James Boggs, had authority to do all these things, and, by her acts and deeds herein, to bind her ward, Victor James Boggs, and any and all persons who are now or who may hereafter be in privity with him, so that said settlement and release are not subject to impeachment in any subsequent proceeding. The court also finds that the plaintiff is now tendering to the defendant said release and said policy for the sole consideration of the payment to her by the defendant of the sum of $4,000.”

The issue presented to the trial court for its determination, and now before us on review, is succinctly stated by the appellant, as follows: “The controlling issue in this ease is whether the plaintiff, as guardian of Victor James Boggs, an insane person, had authority to compromise and settle, finally and fully, all her ward’s rights under the insurance policy involved and to execute and deliver to the defendant a valid, binding and unimpeachable release, for the consideration agreed on. If she did have such authority, so that her agreement to compromise and the release which she executed and tendered pursuant thereto would have forever foreclosed the right of her ward, or any one in privity with him, to attack the settlement after the defendant had paid the consideration agreed upon, the judgment of the lower court should be affirmed. On the other hand, if the compromise settlement could later be impeached, either on the ground that she was without authority to make it or on the ground that she did not act in good faith and to the best interests of her ward in making it, then she has not tendered performance of her undertaking to furnish a valid, binding and unimpeachable release, and the judgment of the lower court should be reversed. ’ ’

The appellant contends that there is no express authority conferred by statute on the guardian of an insane person to bind a ward by a compromise settlement, and that because of this appellee was without authority to enter into the agreement and to execute and tender the release, and therefore, the same was not a valid, binding and unimpeachable' release. This contention is based on the language of § 5848 of Crawford & Moses’ Digest, as follows: “Such guardian is authorized and required to collect all debts due his ward and give acquittances and discharges thereof, and adjust, settle and pay all demands due from his ward, so far as his estate and effects will extend.”

The contention is made that, despite the holding in the case of Moss v. Moose, 184 Ark. 798, 44 S. W. (2d) 825, it appears that the only way for settling a claim of the character of that here involved and in the manner sought is through the agency of the probate court under the power given by § (5852 of Crawford & Moses’ Digest, which is as follows: “The probate courts, respectively, shall have power to control the guardian of any such ward in the management of the person and estate, and ihe settlement of his accounts, and may enforce and carry into execution their orders, sentences and decrees, in the. same manner as a court of chancery.”

In the case of Moss v. Moose, supra, it was held that it was not the purpose of constitutional and statutory provisions relating to the jurisdiction of the probate court to invest it with jurisdiction of contested rights and of litigation concerning the titles to property, and that an order of the probate court upon the ex parte application of a guardian approving a compromise by tbe guardian of a claim in favor of tbe ward is not binding as a judgment because not authorized by law, and any such judgment would be void for want of jurisdiction. The argument is made that this case has no application to the case at bar because of the difference in the subject-matter involved, that in the case of Moss v. Moose being a claim for unliquidated damages in behalf of minors, whereas that in the instant case is not for unliquidated damages, but for a debt due on a contract which it is the duty of the guardian to, collect, and that therefore the probate court has power 'to control the guardian in the matter and to enforce its orders. For that reason, it is insisted, that, in order to execute a release of the character contemplated by the agreement, it was the duty of the guardian to procure from the probate court an order authorizing the appellee to enter into the compromise agreement and to execute the release in evidence and, not having procured such order, she was without authority to act, and that the circuit court was without jurisdiction of the issues involved.

It is true that the subject-matter involved in the case at bar is different in its nature to that considered by the court in the case of Moss v. Moose, supra, yet the doctrine of that case is applicable to this for the reason that the rights of the parties are in dispute, which dispute has resulted in litigation over which the probate court has no jurisdiction under the holding in the case cited. We think the statute is sufficiently broad to authorize the guardian of an insane person to compromise a disputed claim, subject to review by a court of competent jurisdiction. The circuit court was the only one in which the suit, as first framed by the complaint, could have been instituted, and a basis of compromise and settlement reached between the parties during the pendency of the suit was one over which the court had power to render judgment upon the compromise agreement on evidence which convinced it of the good faith of the parties to the agreement where it was clearly beneficial to the ward. The court found that this was the case upon evidence which justified that conclusion. As is slated in Moss v. Moose, supra, where the court had power to render a final judgment upon the merits in any case before it, the power to render judgment on a compromise agreement is necessarily implied.

The finding of the court that the agreement entered into was made in good faith and was beneficial to the ward and that it should be upheld, rendered the release valid and unimpeachable within the meaning of the agreement, and its judgment, being’ based on legally sufficient evidence, is conclusive of the rights of the parties, and is therefore affirmed.


author: Johnson, C. J.,

text:
    Webster v. Horton.
    4-3297
    Opinion delivered January 22, 1934.

      Arthur D. Chavis, for appellant.

      E. W. Brockman, for appellee.
   Johnson, C. J.,

(after stating the facts). The decree of February 27,1932, became conclusive and binding upon all parties thereto at the expiration of-six months after its rendition, no appeal having been prosecuted therefrom. Section 2140, Crawford & Moses’ Digest. Stephens v. Williams, 122 Ark. 255, 183 S. W. 527; Newall v. Valley Farming Company, 133 Ark. 456, 202 S. W. 838. Therefore all asserted claims and rights of the Websters are precluded thereby.

The rights of appellant, Curtis K. McAdams, under and by virtue of his intervention were expressly reserved by the court for future determination; therefore his rights are not precluded as the other appellants are.

Appellant Curtis K. McAdams asserts superior rights under and by reason of the supplemental decree entered by-the chancery court of Jefferson County on January 21, 1930, in the then pending ease of C. H. Triplett Company against appellees, the effect of which supplemental decree was to advance his mortgage from a second to a first lien against the minors ’ homestead. This supplemental decree was void, because the attorney representing the minors had no authority in law or in fact to make such an agreement. This court has many times held that neither a guardian nor the attorney representing such guardian has any authority to make agreements or admissions to the prejudice of the ward’s interest. Frazier v. Frazier, 137 Ark. 57, 207 S. W. 215. In the case of Rankin v. Schofield, 70 Ark. 83, 66 S. W. 197, we said: “In the absence of authority given by statute, the general rule, says Mr. Rodgers, is that a guardian cannot agree to any compromise or settlement by which the property interests of his ward are affected without the concurring sanction of the court, to which he must look for authority to hind his ward. Rodgers, Domestic Relations, 859. The recitals of the record, supra, show affirmatively that the chancellor performed no judicial act of investigation into the merits of the controversy, before entering the decree. On the contrary, that was purposely avoided, out of considerations of mere expediency, ‘to put an end to tedious litigation, and as an amicable settlement and adjustment of a family affair.’ Such added dignity to the compromise of the guardian did not make it any the less his compromise. In the face of such a record, we cannot indulge the maxim, ‘Omnia praesumuntur rite et solemn-iter esse acta.’

“It was plainly not the compromise of the court. There was nothing to show that it was for the benefit of the infant. The facts shown by this record do not bring the appellant within the maxim of consensus tollit errorem and bar her right of appeal. ’ ’

As was said by this court in the Rankin case, supra, this agreement was plainly not the compromise of the court. There was nothing to show that it was for the benefit of the minors. The effect of the supplemental decree was to use the minor’s insurance money for the sole and only purpose of advancing the second mortgage of Curtis K. McAdams to a first lien against their homestead. Moreover, it must be remembered that Curtis K. McAdams was an uncle of the minors, and they were entitled to his best advice and honest judgment. The trial court concluded, and we concur therein, that the effect of this supplemental decree was to advance the interests of Curtis K. McAdams, to the prejudice and detriment to the right of the minors.

It is next contended that the trial court erred in rendering the decree of February 27, 1932, subrogating the*guardian and wards to all the rights of the C. H. Triplett Company under and by virtue of its mortgage. Neither can we agree with this contention. In Southern Cotton Oil Co. v. Napoleon Hill Cotton Co., 108 Ark. 555, 158 S. W. 1052, the rule in reference to subrogation was stated as follows; “The doctrine of subrogation is an equitable one, having' for its basis the doing of complete and perfect justice between the parties, without regard to form, and its purpose and object is the prevention of injustice.”

The decree granting subrogation in the instant case pronounced exact justice and equity between the parties. Appellant, Curtis K. McAdams, knew when he accepted his mortgage against this homestead that it was a second lien thereon, and second to the C. H. Triplett Company mortgage; he knew that the C. IT. Triplett Company mortgage must be paid and satisfied prior to his mortgage. Therefore the decree of subrogation places him in no worse position than he was when he accepted his mortgage. On the other hand, refusal to grant subrogation in the instant case would cause the minors not only to lose their ho'mestead but the insurance money which was applied on the C. H. Triplett Company mortgage. Exact justice and equity can be effected only by granting the right of subrogation to these minors.

Since the trial court’s decision conforms to the views 'here expressed, the same must be affirmed.


text:
    Gilliam v. Bradley Lumber Company.
    4-3196
    Opinion delivered January 22, 1934.

      Aubert Martin, Nelson H. Sadler, Graham Moore, D. L. Purkins and J. R. Wilson, for appellant.

      D. A. Bradham, Clary & Ball and C. C. Hollensworth, for appellee.
   Johnson, C. J.,

(after stating the facts). Appellant’s requested instructions, Nos. 5 and 9, which were given by the trial court, are correct declarations of law when applied to the facts of this case. On the other hand, appellee’s requested instruction No. 8, as given by the trial court, is in irreconcilable conflict with instructions Nos. 5 and 9, given upon appellant’s theory. Appellee’s instruction No. 8 tells the jury: “The jury are instructed that the particular act of negligence which the plaintiff charges the defendant in this case is that one Rufus Elmore, a fellow-servant of plaintiff, pulled a valve and changed the way the fuel would fall into the fuel house, without giving any signal or warning that he was going to do so. With reference to this charge of negligence, the court tells you that the mere fact that Elmore pulled the chain at the time he did, and the mere fact that plaintiff got sawdust in his eye, would not be sufficient in itself to justify a finding on your part that Elmore was guilty of negligence.”

Appellant’s requested instruction No. 9 had, in effect, directed the jury to find for appellant, if they determined from the testimony that Elmore reversed the valve of the discharge pipe without warning to appellant, and thereby reversed the discharge of the fuel from the opposite side of the building in and upon appellant; and, if this were determined to be negligence upon Elmore’s part, and this was the proximate cause of appellant’s injury if any, then they would find for appellant. Appellee’s instruction No. 8 as given by the trial court, was in direct conflict with the views expressed in appellant’s requested instruction No. 9, because in instruction No. 8 the jury is directed in effect that appellant could not recover merely because Elmore negligently reversed the fuel valves, and was injured thereby. Under a long line of decisions of this court, it is reversible error to give conflicting instructions. Postal Telegraph-Cable Co. v. White, ante p. 361; Southern Anthracite Coal Co. v. Bowen, 93 Ark. 140.

Not only is appellee’s requested instruction No. 8 in conflict with appellant’s instructions, but it also invades the province of the jury, and is upon the weight of the evidence. It was a question for the jury to determine, and not for the court, whether or not the reversing of the fuel valves by Elmore, or the reversing of the discharge of the fuel into the fuel house, upon appellant, without warning, at the time and under the circumstances of this ease, was negligence; and, if so, whether or not this negligence was the proximate cause of the injury, if any.

This court has many times held that it is error for trial courts to point out inferences to be drawn from particular facts in evidence. Haley v. State, 49 Ark. 439, 5 S. W. 880; Rector v. Robins, 82 Ark. 424, 102 S. W. 209; McLemore v. State, 111 Ark. 457, 164 S. W. 119.

Many, many times we have also held that trial courts should not instruct juries upon the weight of -the evidence or give instructions which assume facts which are for the consideration of the jury. Polk v. State, 45 Ark. 165; Railroad Co. v. Byars, 58 Ark. 108, 23 S. W. 583; Murray v. Boyd, 58 Ark. 504, 25 S. W. 505; Hinson v. State, 133 Ark. 149, 201 S. W. 811; Railroad Co. v. Britton, 107 Ark. 158, 154 S. W. 215.

Many other alleged errors are pressed upon us for reversal, hut we assume that they will not recur upon retrial, therefore do not consider them.

For the error indicated, the cause is reversed, and remanded for new trial.

Smith, McHaney and Butler, JJ., dissent.


author: Johnson, C. J.

text:
    Stone v. Stone.
    4-3287
    Opinion delivered January 22, 1934.

      Partlow & Rhine and Cleveland Cabler, for appellant.

      Jeff Bratton, for appellee.
   Johnson, C. J.

The sole question presented for consideration on this appeal is the interest the wife takes in money r.eceived by her husband from the United States Government as a pension by reason of services as a soldier in the World War. On August 27,1932, appellee was awarded an absolute divorce from appellant by the Greene County Chancery Court, and in the decree the determination of property rights of the parties was expressly reserved for future adjudication. Thereafter a stipulation was filed in which the facts of the case were agreed to. It reads as follows:

“That the plaintiff and the defendant were married in Greene County, Arkansas, on December 11, 1917, and lived together as husband and wife until the 3d day of April, 1923, when the defendant deserted the plaintiff, and they never lived together thereafter; that on the 27th day of August, 1932,’in a cause wherein Prudence Stone was plaintiff, and IT. T. Stone was defendant, a decree of divorce was granted to the plaintiff on the grounds of desertion, occurring prior to the adjudication of insanity.
“That on April 24,1923, the defendant, II. T. Stone, was adjudicated insane by a court of competent jurisdiction in Greene County, Arkansas, and that he was incarcerated, and is now incarcerated, in the Government Hospital at North Little Rock, Arkansas, and that IT. R. Partlow is the duly appointed, qualified and acting guardian of H. T. Stone, incompetent.
“That H. T. Stone is the owner in fee simple, as an estate of inheritance, of the following lands in Greene County, Arkansas, to-wit: The southwest quarter of the northeast quarter and the northeast quarter of the southeast quarter of section 14, township 18 north, range 6 east, containing 80 acres, more or less.
“It is further agreed that, in addition to the lands hereinbefore described, that there has been paid to the guardian of H. T. Stone the sum of one hundred dollars per month, in the way of compensation, by reason of the said H. T. Stone being a World War veteran, and by reason of his rendering military service in the World War, and that the said H. B. Partlow, as guardian of H. T. Stone, has in his possession, and to his credit, money and other mortgage securities in the approximate amount of twelve hundred dollars, the last-named sum being exclusively derived from payment made by the United States Veterans’ Biireau.
“It is further agreed that the said Prudence Stone has drawn the statutory amount of thirty dollars per month by reason of being the wife of H. T. Stone, and by reason of living separate and apart from her husband; that said payments were paid to her up to and including the date of her divorce, which was granted on the 27th day of August, 1932; that, in addition to the thirty dollars per month payments as hereinbefore mentioned, the guardian, by order of the court, has paid her an additional sum of one hundred thirty dollars.
“It is further agreed by and between the attorneys herein that the decree of divorce hais been properly granted, the sole question being the proper division of the property.”

Thus it will be seen that no question is presented in reference to the validity or invalidity of the divorce decree between the parties. Therefore, we decide the question here presented, assuming, for the purpose of this case only, that the decree is valid, and expressly reserving the question of the validity or invalidity of the divorce decree when properly presented.

It appears from the agreed statement that, on August 27, 1932, the date of the divorce decree, that appellant’s guardian had, in cash and other personal securities, the sum of $1,200, which sums had accrued to him solely by reason of his pension from the United States Government. The trial court awarded appellee $400, or one-third of these securities, as her dower interest in appellant’s personal property. Was this error? Section 3511 of Crawford & Moses’ Digest, in part, provides: “* * * and the wife so granted a divorce against the husband shall be entitled to one-third of the husband’s personal property absolutely, and one-third of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage for her life, unless the same shall have been relinquished by her in legal form, and every such final order or judgment shall designate the specific property both real and personal, to which such wife is entitled.” * * *

If the moneys and securities in appellant’s possession are his property, and were on the date of the divorce, decree, then, under' the plain provision of the statute quoted, supra, appellee was entitled to one-third thereof upon being awarded a divorce.

Appellant’s first contention is, however, that the money received from the United States Government by him as a pension did not belong to him as his property in contemplation of § 3511 of Crawford & Moses’ Digest, because, as it is said, the United States Government has, and holds, a superintending control over all said funds. The Supreme Court of the United States has definitely decided this question adversely to appellant’s contention. In Spencer v. Smith, 288 U. S. 430, 53 S. Ct. 415, the court .said: “War risk insurance and disability compensation paid by Government to guardian of war veteran and deposited in bank was not entitled to priority upon bank’s insolvency as ‘debt due United States,’ within Revised Statute 3466 (31 USCA, § 191), because the guardian appointed by the State court was not an agent or instrumentality of the United States and payment to the guardian vested title in the ward, and operated to discharge the obligation of the United States in respect of such installments.”

Appellant next insists that, since appellee received thirty dollars per month for some years as her apportionment of her husband’s gratuity from the United States Government, this must be construed as in lieu of statutory dower. No authority is cited supporting this contention, and we cannot agree thereto. The duty and responsibility rested upon appellant to support and maintain his wife during coverture, and the mere fact that he performs this duty in no wise extinguishes her right of dower. This award by the Federal Government was for no purpose other than support and maintenance, during the disability of appellant.

The last insistence is, that the award to appellee of $400 in specific personal property by the chancery court creates the relationship of debtor and creditor between appellee and appellant, and that therefore, under § 22 of the World War Veterans’ Act (38 USCA), the same is exempted to him.

It is true, we decided in Wilson v. Sawyer, 177 Ark. 492, 6 S. W. (2d) 825, that money paid to a guardian of a World’s War veteran by the United States Government was not subject to garnishment, either in the hands of the guardian or the hands of the veteran, but this holding has no application to the facts in this case.

Under the plain terms of § 3511, Crawford & Moses’ Digest, supra, no money judgment is or should. be awarded the wife against the husband, but* on the contrary, the court determines the specific personal property owned by the husband at the time of the divorce and directs one third thereof to be delivered to the wife. This, in effect, is the mandate of the order here complained of. It does not create the relationship of creditor or debtor, but, on the contrary, is a specific partition of property owned by the parties during coverture. The interest the wife takes in her husband’s property, under § 3511, Crawford & Moses’ Digest, supra, is analogous to that of common-law dower in real estate. The wife takes common-law dower, not by virtue of any contract, but by the mandate of the law. 9 R. C. L., § 5, p. 563.

This record discloses that the trial court awarded appellee’s attorney a fee of one hundred dollars, to be paid out of appellant’s remaining interest in the funds derived from the United States Government, as a pension. This was error. The relationship of debtor and creditor does exist between appellee and appellant in so far as this attorney’s fee is concerned, and comes within the exemption as pronounced in Wilson v. Sawyer, supra.

For the reasons aforesaid, the decree of the trial court will be modified by eliminating the $100 attorney’s fee, and, as thus modified, will be affirmed.

Smith, J., dissents.


author: Smith, J.

text:
    Northern Road Improvement District of Arkansas County v. Simmerman.
    4-3291
    Opinion delivered January 22, 1934.

      Ingram & Moher, for appellant.

      Joseph Morrison, for appellee.
   Smith, J.

Appellee filed suit against the board of commissioners of Northern Road Improvement District of Arkansas County, in which it was alleged that fractional northeast quarter of section 2, township 3 south, range 4 west, was condemned to be sold for the nonpayment of certain road taxes due the improvement district. The decree was rendered in March, 1927. It was alleged that the Commissioner of the court had erroneously recited, in the report of the sale made by him to the court, that, pursuant to this decree, he had sold to the road improvement district a tract of land described as part fractional northeast quarter of section 2, township 3 south, range 4 west, whereas, the land sold was fractional northeast quarter of section 2, township 3 south, range 4 west. The report of sale was confirmed. The certificate of sale, issued by the commissioner of the court to the improvement district, was assigned for the amount of the taxes, etc., for which the land sold, to the plaintiff, who received from the commissioner of the court a deed erroneously describing the land as part fractional northeast quarter of section 2, etc.

It was prayed that “all records, papers and other proceedings concerning the above tract of land, wherein the description of said land appears to be described as part frl. northeast quarter of section 2, township 3 south, range 4 west, Arkansas County, Arkansas, be changed so as to correct said mistake, error or clerical misprision to read frl. northeast quarter of section 2, township 3 south, range 4 west.” Plaintiff prayed, in the alternative, that, if reformation were denied, she have judgment for $240.16, the consideration paid by her to the commissioners of the district for the assignment to her of the certificate of purchase.

No answer was filed, and a decree was rendered, which granted the relief prayed. The improvement district has appealed from this decree.

The complaint is ambiguous and indefinite, and we do not understand that it alleges that the land was described as “part fractional northeast quarter,” etc., in the warning order upon which the decree foreclosing the assessment lien was rendered; nor that it was so described in the decree itself, nor in the notice of sale thereunder. The employment of such a description in either instance would be fatal, and would render the sale invalid.

A proceeding to foreclose an assessment lien of an improvement district is in the nature of a proceeding in rem, and the statute pursuant to which the foreclosure decree was rendered provides that notice shall be given by publication in a newspaper, in which the lands proceeded against as being delinquent shall be described, and that “it shall be immaterial that the ownership of the said lands be incorrectly alleged in said proceeding. ’ ’ See § 13 of act 247 of the Acts of 1919, page 1071, creating the Northern Road Improvement District of Arkansas County, and § 23 of act 279 of the Acts of 1909, page 829, to which act 247 refers, in providing how delinquent assessments may be collected.

This statute providing that lands shall be proceeded against by their description means, of course, that they shall be correctly described; that a valid description shall be employed, one- sufficient to advise the reader of the notice as to what lands are being proceeded against. The decree ordering sale of the delinquent lands must correctly describe the land ordered sold; and the notice of sale pursuant to the decree must likewi.se employ a correct description. A sale lacking these requirements is void.

It has been frequently and definitely decided that deed to a tract of land described as “pt.” or “part of” has a void description, being void because of its indefiniteness. Moore v. Jackson, 164 Ark. 605, 262 S. W. 653; Brinkley v. Halliburton, 129 Ark. 334, 196 S. W. 118; Cotton v. White, 131 Ark. 273, 199 S. W. 116; Covington v. Berry, 76 Ark. 460, 88 S. W. 1005; Dickinson v. Ark. City Imp. Co., 77 Ark. 570, 92 S. W. 21; Hewett v. Ozark White Lime Co., 120 Ark. 528, 180 S. W. 199.

On the other hand, it has been held that the use of the word “fractional” is a good description, where it is used in connection with a subdivision of a section in describing it to mean either that there is more or less land than is usually contained in such subdivision in the sectionizing of same by the government. In other words, a subdivision, according to the public survey, which is described as fractional is accurately and sufficiently described where it is made fractional from the fact alone that it contains either more or less, usually less, land than such subdivision ordinarily contains. In such cases, the designation “fractional” describes all the land in that subdivision. Graysonia-Nashville Lbr. Co. v. Wright, 117 Ark. 151, 175 S. W. 405. This case, however, like those just cited, and numerous others, holds that a deed conveying lands as part of a particular division or subdivision of a section is void for uncertainty.

So therefore, if the tract of land here in question was described, either in the original warning order, or in the decree of sale, or in the notice of sale, as “part northeast quarter,” etc., the sale was void, and no confirmation thereof would operate to cure this invalidity. On the other hand, if the land was described in the warning order, and in the decree of sale, and in the notice of sale, as “fractional northeast quarter,” etc., the sale was good, because this is a valid and sufficient description, and in such case the clerical error of the commissioner of the court in employing an incorrect and insufficient description in his report of sale, and in the execution of a deed upon the approval of his report, are mere clerical misprisions, which may be corrected.

It was said in the case of Buckner v. Sugg, 79 Ark. 445, 96 S. W. 184, that it was settled, not only by the decisions of this court, but by the adjudged cases in the courts of other States, that, in order to make a valid sale, the land proceeded against must be described with certainty in all proceedings to enforce the tax. The reason assigned for such rule was that this was essential for the owner to have information of the charge upon his property.

As to the sufficiency of the description to be employed in such proceedings, it was said: “It has sometimes been said that a description that would be sufficient in a conveyance between individuals would, generally be sufficient in assessments for taxation. "We do not, however, consider that a safe test. The description in tax proceedings must be such as will fully apprise the owner, without recourse to the superior knowledge peculiar to him as owner, that the particular tract of his land is sought to be charged with a tax lien. It must be such as will notify the public what lands are to be offered for sale in case the tax be not paid. (Citing authorities.) ”

This statement of the law was reaffirmed in the case of American Portland Cement Co. v. Certain Lands, 179 Ark. 554, 17 S. W. (2d) 281, where it was said: “The description is void where it is so vague and indefinite that it in no way identifies the land.” (Citing cases.)

This is especially true in cases where the proceeding is in the nature of a proceeding in rem, where it is not required that the land be proceeded against in the name of the true owner. The owner has no notice unless the land is described in the warning order required by the statute under a description sufficient to identify it.

Now, of course, it is not the law that one tract of land may be proceeded against as delinquent, and another tract of land be sold. Jurisdiction to sell is acquired by proper notice. It is, however, the law that, where land has been properly decreed to be sold and a valid sale has been had, subsequent clerical errors or misprisions may be corrected.

The case of Hill v. Dillard, 187 Ark. 486, 60 S. W. (2d) 572, announces this principle. There an administrator had advertised lands of his intestate for sale under an incorrect and insufficient - description, and had executed a deed which contained the same description employed in the notice of sale. Suit was brought to reform the sale, and the administrator’s deed executed pursuant thereto to properly describe the intestate’s lands, the lands which the administrator had intended to sell. In reversing the decree of the. chancery court granting that relief, il was there said: “Vesting the title to the north 29½ feet of lots 10, 11 and 12, in block 317 in appellee, and decreeing him the possession thereof, was in effect to reform the proceedings of the probate court, and the administrator’s deed made pursuant to the judgment rendered therein in substance and not form or for clerical errors only. Administrators’ or commissioners’ deeds may be reformed for clerical errors or in matters relating to form only. Gates v. Gray, 85 Ark. 25, 106 S. W. 947; Cates v. Cates, 157 Ark. 181, 247 S. W. 780. We are unable, to find any authority in the chancery courts to reform orders or judgments of probate courts or deeds made pursuant thereto in matters of substance. ’ ’

Now it is not a matter of form only, after a sale, to substitute a valid description of a tract of land that was never sold for a description which was void, which did not describe any land, and consequently put no one on notice.

It does not appear from the record before us that the original owner of the land in question was ever advised of the proceeding’s, or made party to it, except by the publication of the original warning order under which the jurisdiction to foreclose the assessment lien was acquired by the chancery court. Nor is the warning order, or the decree of foreclosure, or the notice of sale before us, and we cannot and do not pass upon the sufficiency of these matters, but it follows, from what we have said, that, if the land was described in the proceedings had prior to the sale as “part fractional northeast quarter,” etc., the decree of foreclosure is void. If this be true, the necessity for notice to the owner which a correct warning order would give cannot be, and has not been, supplied 'by the subsequent proceedings from which this appeal comes, of which proceedings the owner of the land was without notice, and to which he was not a party.

But we interpret the decree from which this appeal comes as correcting only the clerical error of the commissioner of the court in reporting a sale under an improper description, and, in correcting the subsequent proceedings, including the commissioner’s deed, to correctly describe the land which was actually proceeded ag’ainst under a valid description, and, as thus interpreted, the decree must be affirmed, and it is so ordered.


text:
    National Old Line Insurance Company v. Russell.
    4-3298
    Opinion delivered January 22, 1934.

      Beloit Taylor, for appellant.

      Barber & Henry and M. F. Elms, for appellee.
   Smith, J.

Appellee filed a complaint in the circuit court of Pulaski County against appellant insurance company, hereinafter referred to as the company, which contained the following allegations: The company issued to appellee a life insurance policy, which had been continued in force by the payment of annual premiums until it had a cash surrender value of $603.65, and appellee made application to the company for the payment to him of this sum. Appellee surrendered his policy pursuant to this application, and, on February 20, 1933, the company drew its check on the Union Trust Company, of Little Rock, payable to appellee, for the sum of $603.65, the full cash surrender value. The check was delivered, at appellee’s request, to his representative, who immediately forwarded it to appellee at Stuttgart, where it was received by appellee on February 22, 1933. This being a bank holiday, the banks of the city of Stuttgart were closed on that day on that account. Appellee resides in the country fifteen miles distant from Stuttgart, and for that reason induced one of the tellers of the First State Bank of Stuttgart to accept said check to be deposited on the following day, to obviate the necessity of returning to Stuttgart to make the deposit. The Stuttgart bank closed or failed to open its doors on the 23d, and was immediately taken in charge by the State Bank Commissioner for liquidation.

The plaintiff thereupon, and on February 23d, communicated with the defendant company by wire and by mail and requested that it stop payment on said check. This demand was complied with, and the company gave ■the drawee hank notice on February 23d to stop payment of the check, “and payment on said check was stopped and same returned on February 25, 1933, through banking channels, and received several days thereafter by the plaintiff, Mack Russell; that by the time the check had been returned to the plaintiff, the Union Trust Company, upon which said check was drawn, had, on February 28, 1933, gone on a restricted basis. ’ ’

In the letter confirming* the telegram, which directed that payment be stopped, a request was made that the company issue another check “in lieu of the original one, which said defendant company, in its reply to plaintiff dated February 27, 1933, agreed to do upon the delivery of the original check to it; that, before said original check could be delivered to the defendant, the bank on which it was drawn had gone on a restricted basis, and thereupon the defendant company refused to issue a new check or- otherwise pay the amount due this plaintiff. ’ ’

It was further alleged that demand for payment had been made and refused, “except that the defendant tendered in payment 52½ per cent, of the amount of the original check, which is the amount or percentage since released by the bank on the restricted account of the defendant, and further tendered an assignment on its restricted account in the Union Trust Company for a sum which represented 47½ per cent, of the original check, which was refused by the plaintiff.”

Judgment was prayed for $603.65, with interest, and the statutory penalty and attorney’s fee.

The company filed a demurrer to this complaint, which was overruled, and, as the company elected to stand upon its demurrer, and declined to plead further, judgment was rendered for the full cash surrender value of the policy, and six per cent, interest thereon. Appellee moved the court to assess the statutory penalty of twelve per cent., and to allow a reasonable attorney’s fee, which the court declined to do. The company has appealed from the judgment against it, and appellee has prayed a cross-appeal from the refusal to allow the penalty and attorney’s fee.

It is earnestly insisted that the company fully discharged its obligation when it issued a valid check for the surrender value, which would, in due course, have been paid had it been presented for payment to the bank upon which it was drawn, and that the failure so to be paid arose out of the fact that appellee selected an insolvent agent to make the collection. However, the company agreed to and did stop payment of the check, so that it may not now be said that the check was tendered and accepted as final payment. Under the allegations of the complaint, the fact remains that the company gave a check, the payment of which was stopped at its direction, so that it has not paid the demand which it is under a contractual duty to discharge.

The ease of Southern Bank & Trust Co. v. Whited, Ala. App. 145 So. 832, is cited by appellant company as authority for holding that the company discharged its obligation when it stopped payment of the check at appellee’s request. But we think the case cited does not sustain that contention. The facts there were that payment was made of an uncertified check, like the one here involved, after the drawer, for the benefit of the payee, had notified the bank upon which the check was drawn not to make the payment. It was there held by the Court of Appeals of Alabama that the drawer of an uncertified check may stop payment on it at any time prior to payment, and that, when the bank is notified by the drawer, for the benefit of the payee, not to pay an uncertified check, the bank owed the payee the legal duty not to make payment.

We have no hesitancy in approving the law thus declared ; but we find nothing in this opinion to support the contention that the company has, by stopping payment of the check, at the payee’s request, discharged its duty as the drawer of the check. When the payment of this uncertified check was stopped before presentation and payment, it ceased to be, as was said, in effect, in the case cited, by the Court of Appeals of Alabama, an order for the payment of money, and it cannot therefore be held to be a payment or discharge of the company’s obligation to appellee. Judgment was therefore properly rendered for the amount of the unsatisfied obligation, with interest thereon.

"We are also of the opinion that the court properly refused to render judgment for the statutory penalty and attorney’s fee.

By the act of March 29, 1905 (Acts 1905, page 307), appearing as § 6155, Crawford & Moses ’ Digest, it is provided that, “In all cases where loss occurs, and the * * * life * * * insurance company liable therefor shall fail to pay the same within the time specified in the policy, after demand made therefor, such company shall be liable to pay the holder of such policy, in addition to the amount of such loss, twelve per cent, damages upon the amount of such loss, together with all reasonable attorney’s fees for the prosecution and'collection of said loss.”

This statute was held to be valid and constitutional in the case of Arkansas Ins. Co. v. McManus, 86 Ark. 115, 110 S. W. 797. There was a discussion in this opinion of the purpose of such legislation and the theory upon which it could be sustained. It was there said that the insurance companies, after a loss insured against occurs, have the insured at a great disadvantage, and are in position to inflict great damage by mere delay in payment of losses, and that it was therefore neither unjust nor unreasonable to inflict a penalty which will in some degree compensate for that injury where the resisted claim is finally adjudged to be just, and which also tends to deter the insurer from interposing unnecessary delay in settlement.

This statute has been enforced in many subsequent cases, but it has been frequently stated that, being a penal statute, it should, like all such statutes, be strictly construed. Business Men’s Acc. Ass’n of America v. Cowden, 131 Ark. 419, 199 S. W. 108; Inter-Ocean Casualty Co. v. Warfield, 173 Ark. 287, 292 S. W. 129.

There has been no denial of liability; nor was there any refusal to pay. On the contrary, the obligation to pay the cash surrender value of the policy was recognized, and a prompt effort, in good faith, was made to discharge it. The real question here involved is, who shall sustain the loss arising out of the failure of the bank which appellee selected as his agent to collect the check, and the subsequent partial suspension of payment by the drawee bank? -We are of the opinion that it was not the purpose of the statute to impose a penalty in such a case, and the judgment in its entirety will therefore be affirmed.