text:
    Priest v. Moore.
    Opinion delivered June 15, 1931.

      Steel & Edwards, for appellant.

      Lake, Lake & Carlton, for appellee.
   Mehaffy, J.

Appellees filed their petition with the county board of education of Sevier County on the 29th day of March, 1930, praying for a consolidation of Rural Special School Districts Nos. 13 and 61 of Sevier County.

After appellees had filed their petition, and before it was disposed of, appellant filed a petition for the consolidation of school districts Nos. 7, 11, 13 and 61 of Sevier County.

While appellees’ petition was filed first, the appellants were the first to give notice. The notice was given by appellants on the 14th day of April, 1930, and the appellees’ notice was dated the 15th day of April.

The appellants filed before the county board of education a motion to continue, and the hearing was continued until the 14th day of June, 1930. On the 14th day of June, 1930, the petition of appellees was presented, asking for the consolidation of school districts Nos. 13 and 61, the demurrer to said petition having been filed and overruled.

The county board of education then considered the petition of appellees and found that it was for the best interest of the school children not to grant said petition, and the petition was therefore denied. Appellees filed an affidavit and bond for appeal, and an appeal to the circuit court was granted. On the same day, the county board of education considered the petition of the appellants and granted said petition. District No. 13 thereupon filed an affidavit and bond for appeal; the bond was approved and an appeal to the circuit court was granted.

An order was entered by the county board of education after considering the petition and hearing the evidence, granting said petition, dissolving districts Nos. 7, 11, 13 and 61, and changing the boundary line so as to include the territory in the four districts into one district, and formed and created one district out of the territory of the four districts, to be known as Consolidated School District No. 7 of Sevier County.

. District No. 13 appealed to the circuit court. The cases were consolidated in the circuit court. A demurrer to appellees’ petition was filed in the circuit court, overruled, and exceptions saved. The circuit court then entered the following judgment:

“Now, on this day, the '21st day of August, 1930, comes the respondents, John Moore et al., by their attorneys, Lake, Lake & Carlton, and move to dismiss the petitions in these proceedings for want of jurisdiction, and the court proceeded to hear and determine said motion upon the record made in these proceedings.
“And the court, after examining the petition of F. C. .Priest et al., the filing marks thereon, the notices of the petitions and the affidavits, proving that said notices had been posted in the several school districts for the time prescribed by law, as well as the order of the county board of education, denying the petition of John Moore et al., and the order of said board granting the petition of F. C. Priest et al., finds Jhat the petition of John Moore et al. prayed for the consolidation of Rural Special School District No. 13 and Common School District No. 61 of Sevier County, and that the petition of F. C. Priest et al. prayed for the consolidation of the same two school districts, together with Rural Special School District No. 7 and Rural School District No. 11, all in Sevier County; and this court finds as a matter of law that the county board of education cannot at the same time consider two petitions affecting the same territory, or a part of the same territory, but must dispose of the petition first filed before accepting or considering a second petition affecting the same or a part of the same territory, and therefore that the county board of education was without jurisdiction or authority to grant the petition of F. C. Priest et al., and that this- cause should be dismissed.
“It is therefore considered, ordered and adjudged by the court that this cause be, and the same is hereby, dismissed for want of jurisdiction. To the judgment and order of the court in dismissing this cause, the petitioners, F. C. Priest et al., except and ask that their exceptions be noted of record.”

We find it unnecessary to pass on the demurrer filed by appellants to the petition of appellees.

The record shows that the board of education heard the petition of appellees first and denied same, and then heard the petition of appellants and granted same, and that both parties appealed to the circuit court, where the cases were consolidated.

Appellees contend that the case should be affirmed because there is no bill of exceptions and no motion for new trial.

We recently said: ‘‘It is next insisted that the judgment must be affirmed because there is no bill of exceptions. This was not necessary. We have copied the judgment in- our •statement of facts, and, by reference to it, it will be seen that it recites all the facts upon which the court based its opinion. This court has uniformly held that no bill of exceptions is necessary where the judgment of the lower court reciting the facts upon which it is based shows error on its face.” Yockey y. St. L.-S. F. R. Co., ante p. 601; Hisey v. Sloan, 180 Ark. 797, 22 S. W. (2d) 1007; Burns v. Harrington, 162 Ark. 162, 257 S. W. 729; Buchanan v. Halpin, 172 Ark. 822, 290 S. W. 602; Williamson v. Mitchell Auto Co., 181 Ark. 693, 27 S. W. (2d) 96; Davis v. McCandless, 130 Ark. 538, 198 S. W. 132; Davies & Davies v. Patterson, 132 Ark. 484, 201 S. W. 504.

A motion for a new trial and bill of exceptions is necessary where the error does not appear on the face of the record, but the judgment in this case recited: “And this court finds as a matter of law, that the county board of education cannot at the same time consider petitions affecting the same territory or a part of the same territory, but must dispose of the petition first filed before accepting or considering a second petition affecting the same or a part of the same territory.”

All parties residing in the district are interested and are entitled to be heard on a petition to consolidate, and, if they think that a petition to consolidate districts should not be granted, they have a right to appear and resist the petition, and they may do this by presenting another petition. It is the wishes and convenience of the majority of the persons in the territory affected that is to be considered, and there is no objection to filing more than one petition, and, if the county board of education thinks it proper to hear them together, it may do so.

We know of no reason why the inhabitants of the district might not present an additional petition for the purpose of showing that the petition under consideration should not be granted.

In the case of Rural Special School District No. 21 v. Common School District No. 87, ante p. 329, after the original petition was filed, there were three others filed affecting one of the districts. The board ignored the last three petitions filed and made an order consolidating districts 21 and 87, but there was no reason why the board of education might not hear evidence on the petitions if necessary. The law provides: “The county hoard of education shall have the power to dissolve any school district now established or which may hereafter be established in its county, and attach the territory thereof in whole or in part to an adjoining district or districts, whenever a majority of the electors residing in such district shall petition the court so to do.” Section 8869, Crawford & Moses’ Digest.

There might be three such districts, A, B, and C. It might be the desire of the majority of the territory affected to annex one-half of B to A, and a petition might be filed with the board of education asking this to be done. Another petition might be filed by C asking that the other half of B be annexed to it. There would be no reason why both petitions could not he heard by the board at the same time.

Again, the county board of education considered two petitions in the case of Franklin County Board of Education v. Riley, ante p. 148.

The duty of the board of education is to hear any petition or petitions that may be presented; hear the evidence and make its findings as required by law. If more than one petition is filed affecting part of the same territory, the board of education itself may determine whether it be advisable to hear them together or hear them separately.

In the instant case, however, the petitions were not considered together. The board of education first considered the petition of appellees and denied the prayer of the petition. It then considered the petition of appellants and granted the prayer of petitioners.

The county boards of education are vested by law with a sound discretion in the determination of matters necessary to the formation or consolidation of school districts, which is subject to review only when it appears that such orders are arbitrary or unreasonable. It was therefore the duty of the circuit court to hear the petition in order to determine whether the action of the board of education was arbitrary or unreasonable.

The judgment of the circuit court is reversed, and the cause remanded with directions to proceed with the trial according to law and not inconsistent with this opinion.


source: Caselaw Access Project

author: McHaney, J.

license: Public Domain

text:
    Houston Oil Company of Texas v. Phillips.
    Opinion delivered June 15, 1931.

      Ganglion*, Sifford, Godwin & Gmiglmn, for appellant.

      Compere & Compere, for appellee.
   McHaney, J.

Appellant correctly states tbe case as follows: “Appellee had been in the employ of appellant, working’ in a connection gang for about a year prior to July 16, 1929, the date when he received the injury complained of in his complaint. During the course of his employment, he assisted in laying two short pipe lines near appellant’s Camden refinery. Prior to his employment by appellant, he had worked as a blacksmith in Arkadelphia for more than twenty years.

“Appellee and twelve or fifteen other employees of appellant were engaged in laying a pipe line from the Camden refinery to the McDonald Oil Field some twelve or fifteen miles away. The right-of-way for the pipe line had been cut and appellee and the others were eng’aged in digging the ditch in which said line was to be laid. In laying the pipe line they started at the Camden refinery and were laying it towards the McDonald Field. On account of the railroad spur track near the refinery, it was necessary to lay the line under said track and to make the ditch at that particular place some deeper than at other places.

“At the time appellee was injured the ditch near the spur track had been dug, and was, according to appellee, about eighteen or twenty inches wide, and about twenty-four inches deep. A stump about six inches in diameter at the top and four inches at the bottom had been left standing near the middle of the ditch.

“Appellee was instructed by his foreman to take an axe and cut the stump out of the ditch. He got an axe, got down in the ditch and had struck from three to six licks with the axe when he struck the bank of the ditch and in doing so the axe glanced, striking his left foot and almost severing the toe next to the large one. He was immediately given first aid treatment to stop the flow of blood, then taken to the hospital where he was given further treatment. No other part of his foot was injured. ’ ’

In addition, it may be said the undisputed proof is that it is customary to dig down the banks of the ditch around a stump so as to make what is called a bell hole, to enable the axe to cut the stump off at the bottom of the ditch without striking the bank. Also that appellee had never before been directed to chop down a stump in the ditch and was not advised that a bell hole was necessary.

A trial resulted in a verdict and a judgment against appellant for $500. The only assignment of error urged here for a reversal of the .judgment is the refusal of the court to direct a verdict in its favor, on the ground that it was not negligent and that appellee assumed the risk as a matter of law.

We think the court correctly submitted these questions to the jury. The foreman directed appellee to get an axe and chop the stump out of the ditch. He did not tell him to get a shovel, make a bell hole around the stump, then get an axe and chop it out. Appellee attempted to do exactly what he was told to do in the manner directed by the foreman, and acted under his direct supervision. The foreman knew it was customary first to dig a bell hole and says he neglected to notice whether it had been done or not when he told appellee to get the axe and chop the stump out. This was sufficient to take the question of appellant’s negligence to the jury.

Nor can we say appellee assumed the risk as a matter of law. This question was submitted to the jury in several instructions which are not complained of, and its finding is binding here.

Affirmed.


author: Butler, J.

text:
    Citizens’ Pipe Line Company v. Twin City Pipe Line Company.
    Opinion delivered June 8, 1931.

      James B. McDonough, for appellant.

      Vincent M. Miles and Warner $ Warner, for appellees.
   Butler, J.

The presenil litigation began in this manner. The Harding Class Company, a corporation engaged in the manufacture of glass, required and used a large quantity of gas as fuel which it had contracted to purchase from the Twin City Pipe Line Company, a corporation engaged in the business of distributing natural gas in and within the vicinity of Port Smith, Arkansas. The glass company had for a time used the gas delivered by the pipe line company until, through the means of a subsidiary company, it acquired the control of certain gas wells in the State of Oklahoma. The stockholders of the glass company and others organized the Citizens ’ Pipe Line Company for the purpose of conveying gas from the aforesaid wells to the plant of the glass company for its own use, and procured the passage of an ordinance from the city of Port Smith by which it was permitted the use of the streets and alleys of the city under which were laid its mains.

On the 15th day of August, 1928, the Twin City Pipe Line Company filed its complaint in the chancery court making the Citizens’ Pipe Line Company and the city of Port Smith defendants, in the prayer of which complaint it asked that the ordinance be declared void, and that the Citizens’ Pipe Line Company be enjoined from constructing its pipe lines in the streets of Port Smith. Soon after the filing of the complaint the Citizens’ Pipe Line Company made preparations to begin the work of laying its lines in Port Smith, whereupon the complainant served notice on August 24th that it would ásk for a temporary injunction restraining the defendant pipe line company from proceeding with its work until the cause could be heard on its merits in court. This petition was heard and granted on August 28th, conditioned upon the execution by the complainant of the bond required by statute. This bond was executed and the temporary injunction issued on the last date aforesaid which resulted in the Citizens’ Pipe Line Company ceasing its work in Fort Smith and transferring it to Oklahoma where work was begun on the pipe line and continued until it was completed from the wells to the limits of the city of Fort Smith on October 20, 1928.

On September 14th the cause came on for hearing on its merits, and on September 25 following* a decree was rendered as of September 18th by the terms of which the defendants were enjoined from proceeding* with the work as prayed for in the complaint. From that decree an appeal was prosecuted to this court, where the decree of the chancery court was reversed and remanded with directions to dismiss the complaint of the Twin City Pipe Line Company for want of equity, the opinion being delivered on November 12, 1928. Upon a remand of the cause the defendant, Citizens’ Pipe Line Company, filed a complaint in which it sought to recover damages occasioned to it by reason of its work having been stopped for seventy-three days because of the injunctions granted and issued. In this complaint it was alleged that the suit was brought without probable cause, and items of damage were set up amounting to a large sum. The chancellor in his judgment found “that there is no specific evidence fixing any damages resulting from the temporary restraining order from the date of its issuance to the date of the decree of the chancery court” and dismissed the claim for damages, from which order and judgment is the present appeal.

It is contended by the appellant, Citizens’ Pipe Line Company, that its damage was not limited to that accruing* from the date of the issuance of the temporary injunction until the decree rendered September 18th following, but also for such damage as it suffered between the entry of the permanent injunction and the decision of this court on appeal reversing the decree of the chancellor and remanding the cause with directions to dismiss the complaint of the Twin City Pipe Line Company for want of equity. If it was established that the suit out of which these in junctions grew was brought without probable cause or the injunctions maliciously obtained, it is not to be doubted that the contention of the appellant here is correct. In such case the party injured might have maintained his action at law for malicious prosecution, which relief may now by force of statute be granted by the court out of which the injunction was sued. The appellant introduced evidence of another suit having been brought 'in the United States Court by the appellee against the Harding Class Company for the purpose of showing that this suit was wantonly brought. It argued that the sole purpose of the suit in the United States court was to prevent the appellant here from supplying gas to the Harding Class Company, with which company it had a contract to take its entire output, and, as its privilege to lay pipes under the streets of Fort Smith was granted for the sole purpose of enabling it to carry out its contract with the glass company, the practical effect of the suit in the United States court would have been to make the franchises involved in this suit worthless.

It is our opinion that a consideration of the issues involved in the suit brought by the appellee company in the United States court against the appellant company does not warrant the inference of any malicious purpose or that it was brought without probable cause. From an examination of the questions determined in the cases of Citizens’ Pipe Line Co. v. Twin City Pipe Line Co., 178 Ark. 309, 10 S. W. (2d) 493, and Harding Glass Co. v. Twin City Pipe Line Co. decided by the Supreme Court of the United States May 4, 1931, it will be seen that these questions were important, on which learned lawyers and courts of high repute may and do differ, and therefore it cannot be said that the suit here involved was wantonly brought or without probable cause.

As there was no common-law liability of the party securing the injunction, although erroneously granted, unless it was maliciously obtained, or except as modified by statute, there would be no general liability for the injunction here issued, unless the common-law rule has been changed by statute or unless the obligation entered into in specific terms or by necessary intendment fixes such liability. The rule is thus stated in chapter on Injunctions, 32 C. J., § 744: “Complainant’s liability for the wrongful issuance of an injunction at his instance may, of course, be fixed by the bond that he was required to give as a condition to the granting of the injunction. But, although there is contrary authority, the general rule, unless changed by statute, is that, without a bond for the payment of damages or other obligations of like effect, a party against whom an injunction has been wrongfully issued can recover no damages unless he can make out a case of malicious prosecution by showing malice and want of probable cause on the part of the party who obtained the injunction.” The reason for this rule is stated in the case of Yonkers v. Federal Sugar Refining Co., 221 N. Y. 206, as follows: “Public policy was thought to demand that the free pursuit of remedies in the courts should not be obstructed by the menace of. liability for innocent mistakes”; and thus, in the case of Russell v. Farley, 105 U. S. 433: “If the legal right is doubtful, either in point of law or of fact, the court is always reluctant to take a course which may result in material injury to either party; for the damage arising from the act of the court itself is damnum, absque injuria, for which there is no redress except a decree for the costs of the suit, or in a proper case, an action for malicious prosecution. ’ ’

Since we have seen that the suit out of which the alleged damages grew ivas not the result -of malice and was not without probable cause, the extent of the liability of the appellee company must be ascertained from an examination of the bond given and a consideration of our statute regulating the issuance of injunctions. Section 5792 of Crawford & Moses’ Digest provides: “Where it appears by the complaint that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission or continuance of some act which could produce great or irreparable injury to the plaintiff, or where, during the litigation, it appears that the defendant is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act, in violation of the plaintiff’s rights respecting the subject of the action and tending to render the judgment ineffectual, a temporary injunction may be granted to restrain such act. It may also be granted in any case where it is specially authorized by statute.”

Section 5801 provides 1 “In every case the court or judge granting an injunction shall specify in the order therefor an amount for which the party obtaining it shall give security in a bond to the party enjoined, before the injunction shall become effectual; which amount shall be sufficient to cover all the probable damages and costs that may be occasioned by the injunction.”

Section 5802 provides: “The court or judge may prescribe the effect of the bond, so as to secure to the. party enjoined the damages to which he may become entitled, if it is finally decided that the injunction ought not to have been granted.”

These are the provisions of law under which the order for a temporary injunction was made and under which the bond sued on was executed. That part of the order relating to the giving of the bond is as follows: “It is further ordered and decreed that this order shall become and be effective upon the filing and approval by this' court, or by the clerk of this court, of a bond in the sum of $'20,000, conditioned that the plaintiff will pay damages accruing to the defendant, Citizens’ Pipe Line Company, if it should eventually be adjudged that this order is improperly issued.” And the condition of the bond executed pursuant to that order is as follows: “That if the plaintiff, Twin City Pipe Line Company, shall pay such damages as may be adjudged by the court to be due the defendant, Citizens’ Pipe Line Company, in the event such temporary injunction should be found to be improperly issued, this bond to be void; otherwise, to be in full force and effect. ”

By § 5791 of Crawford & Moses’ Digest, it is provided that: “Injunction may be the final judgment in an action, or may be allowed as a provisional remedy, and where so allowed it shall be by order.”

It will be seen from an examination of these statutes and the bond that the injunction authorized was a provisional remedy, its purpose being- to maintain the status quo until the cause could be heard upon the merits and to provide for the security and payment of damages accruing during the life of the temporary injunction, if any should be occasioned thereby, and this -was the extent and limit of the liability. It is earnestly insisted, however, that the right to damages by the party enjoined and the liability of the one procuring the injunction was extended by the provisions of act No. 102 of the Acts of 1915, so as to cover all damages which might accrue at any time before the final determination of the cause, irrespective of the time in which the temporary injunction, as such, ceased to function.' It is argued that this view of the effect of act No. 102, supra, is warranted by the decision in the case of Sullivan v. Wilson Mercantile Co., 168 Ark. 262, 271 S. W. 30, where that act was considered. In speaking of the effect of that statute, counsel for appellee say that the statute is sweeping in its terms providing a new remedy where none before existed, and that by § 5801 it is made mandatory that a bond shall be given in every case, and in every case where an injunction is granted a bond is required and the1 right to the bond is not limited to a temporary injunction. We do not think that a consideration of act No. 102, supra, in connection with the entire chapter on injunctions, warrants the position taken by learned counsel. Act No. 102 was an act amendatory of §§ 3998 and 4001 of Kirby’s Digest of the statutes. These sections were a part of the Civil Code dealing with the subject of injunctions and were digested in Kirby’s Digest in the chapter on Injunctions, and, as amended by act 102, supra, are now §§ 5822 and 5825 of Crawford & Moses’ Digest, a part of the chapter on Injunctions in that digest.

Section 3998 of Kirby’s Digest was as follows: “Upon the dissolution in whole or in part of an injunction to stay proceedings upon a judgment or final order, the damages shall be assessed by the court which may hear the evidence and decide in a summary way, or may at its discretion cause a jury to be impaneled to find the damages.”

Section 4001 of Kirby’s Digest was as follows: “Judgment shall be rendered against the party who obtained the injunction for the damages assessed and the assessment shall be conclusive against the surety of such party. ’ ’

Section 1 of act 102, supra, provides that § 3998 of Kirby’s Digest should be amended to read as follows: “Upon the dissolution in whole or in part of any injunction or restraining order of any kind and of every kind and nature whatsoever, the chancery court wherein the same was pending may assess and render against principal and sureties on the injunction bond a valid judgment for any and all damages occasioned by the issuance of such injunction or restraining order; and the court may either appoint a master and report as to such damages or may render summary judgment therefor; or at its discretion may cause a jury to be empaneled to find such damages.” Crawford & Moses’ Digest, § 5822.

By § 2 of said act § 4001 of Kirby’s Digest was amended so as to read as follows: “Such judgment for damages shall be rendered against the party who obtained the restraining' order or injunction and against his sureties on the bond, and the same shall be conclusive against them, and in proceedings hereunder the sureties shall be considered parties in the cause, provided, the court may in its discretion require reasonable notice to such sureties before such finding and judgment. ’ ’ Crawford & Moses’ Digest, <§ 5825.

Prior to the passage of act No. 102, supra, §§ 5803 and 5804 of Crawford & Moses’ Digest (at the passage of the act §§ 3977 and 3978 of Kirby’s Digest) contained the only specific reference to the character of damages which might be recovered on the dissolution of a temporary injunction, and it might have been, as argued by the appellant, that, under the statute as it existed prior to the passage of act No. 102, the injured defendant “in an injunction suit had no remedy unless the suit was brought to enjoin proceedings upon a judgment.” If that be true, that act only enlarged the scope of the law so as to give the right to damages, not only in eases where a judgment was enjoined, but in all other cases in which an injunction as a provisional remedy had been procured, and further enlarged the remedies in injunction suit so as to authorize the court in which the suit was instituted and in that suit to assess the damages against the sureties on the injunction bond without remitting the party aggrieved to an independent action on the bond.

The case of Sullivan v. Wilson Mercantile Co., supra, relied on by the appellant, goes no further than the above statement. That was a case where the appellee had purchased lands and instituted an action against the appellant in the chancery court, alleging that the appellant was interfering with the possession of the appellee by trespassing on the lands and thus preventing the peaceable possession of the appellee. The prayer of appellee’s complaint was that the appellant be perpetually enjoined from interfering with the possession and from trespassing on the land. A temporary restraining order was obtained at the commencement of the action. An answer was filed by the appellant who set up his rights of possession under a lease from the appellee’s grantor, and he also filed a cross-complaint in which he alleged certain damages which had been occasioned by his having been deprived of the possession under the injunction issued in the ease. On the final hearing of the cause, the court dismissed both the complaint of the appellee and the cross-complaint of the appellant. The decree contained no formal dissolution of the injunction, and there was no assessment of damages claimed by the appellant. This court on appeal held that the dismissal of appellee’s complaint was tantamount to a dissolution of the injunction, and that the trial court erred in not awarding damages to the appellant for being put out of the possession and kept out during the pendency of the action, and said: “If appellant’s cross-complaint had been an independent action for damages, his remedy was complete at law, and he could not have invoked the jurisdiction of a court of equity; but, in the present action instituted by the appellee in which an injunction was obtained and which deprived appellant of substantial rights, the latter was entitled under the statute to a restitution of the possession of which he had been deprived by the injunction and an assessment of damages sustained by reason thereof. Crawford & Moses’ Digest, §§ 5822-5825. The effect of the dismissal of appellant’s complaint was to dissolve the injunction, and appellant was entitled to the relief afforded under the statute. ’ ’ It will be noted that in that case the damages suffered were under a temporary restraining order issued at the commencement of the suit and continuing down until the final decree dissolving the injunction was entered.

An examination of the statutes on the right to injunction and the liabilities of the parties thereunder discloses that there are two classes of injunctions authorized: one, on the final judgment, the other, as a provisional remedy. The latter is referred to in other parts of the statute as a temporary injunction, and it is this class only in which a bond is required. So that, wherever the word “injunction” is used in the statute in connection with the giving of bond or the liability of the parties arising because of such bond, it necessarily means a temporary injunction. For, as we have seen, it is that character of injunction only in which a bond is required. Therefore, as § 5822, supra, deals with the remedies against the principal and his sureties on an injunction bond, the words “any injunction or restraining order of any and every kind and nature whatsoever” must necessarily refer to and mean the provisional remedy by temporary injunction. Thus it will be seen that the common-law liability of the party securing an injunction has not been changed by the statute except as to the provisional remedy, liability for which is fixed by the bond. This, by necessary implication, limits the damage to such as was occasioned by, and incurred within the life of, the temporary injunction. The purpose of the temporary injunction, as we have seen, was to preserve the status quo until a hearing on the merits in the suit could be had, and, when this hearing was had and a decree rendered thereon, the temporary injunction had completely served its purpose and ceased to be. In its stead there arose the injunction based on the solemn adjudication of the court on the merits of the case, and the injuries, if any, which from then on were suffered were such as were clamnum absque injuria.

Counsel have cited a number of decisions that adopt a contrary view, but we think these decisions are not in consonance with our statute and are out of harmony with the general rule, which as stated in 32 C. J. § 695 (Injunctions) is as follows: “Where a decree for a perpetual injunction is rendered, the order for a preliminary injunction is merged and ceases to have any further effect.” It follows that, so much of the decree of the trial court as denied the items of damage accruing subsequent to September 25, 1928, the date of the final injunction, will be sustained. However, as it seems that the testimony was hot directed to that point, we are unable to say whether any damage was sustained within the life of the temporary injunction, and the cause will therefore be remanded with directions, if the appellant so wills, to take additional testimony relating to the damage, if any, which under our view is recoverable.

We deem it well to say that we are of the opinion that the rule relative to the recovery of attorneys’ fees as damages is in no wise changed. We adhere to the doctrine announced in the case of Oliphint v. Mansfield & Co., 36 Ark. 191, for tlie reason stated in Oelrichs v. Spain, 15 Wall. 211. The canse is therefore remanded for such other and further proceedings as the parties may elect in conformity with the law and not inconsistent with this opinion.


text:
    Keith v. Keith.
    Opinion delivered June 15, 1931.

      A. I. Roland and D. M. Halbert-, for appellant. •

      Joe W. McCoy, for appellee.
   McHaney, J.

January 10, 1919, the widow and heirs at law of John W. Keith, deceased, including appellants and appellees, leased certain lands belonging- to said decedent’s estate to one J. J. Ball for the removal of gravel. The particular piece of land now in controversy was described in the lease to Ball as follows: “And all gravel in section 17, township four, south of range seventeen -west, lying east and west of Ouachita River.” In the next paragraph of said lease it was stipulated that “the second party (Ball) is not to excavate closer than fifty feet to high bank on the south side of the gravel bar east of the river in the southeast quarter of the southeast quarter of section seventeen, and not to excavate closer than two hundred feet of the south line of the southwest quarter of the southeast quarter of section seventeen.” Shortly after the execution of this lease, dower was assigned to the widow in other lands, she agreeing to take a child’s part, one-tenth, in the proceeds of the gravel lease, and the nine heirs taking a one-tenth share each. In May, 1919, appellant, M. N. Keith, purchased from appellees, Mrs. Batchelor and Mrs. McCoy, his sisters, their interest in the dower lands assigned to the widow for a consideration of $2,700 each, taking a warranty deed from each prepared by his attorney, in which the gravel bars were reserved by each in this language: “It being understood and agreed that this deed does not include our interest in any of the gravel bars leased to J. J. Ball by said Jennie S. Keith and others, and that all our rights in said gravel bars and said lease, and the proceeds to be paid under said lease according to the terms thereof, being hereby reserved. Said lease now being of record in mortgage record ‘O,’ page 415, in the recorder’s office of Hot Spring County, Arkansas.”

In April, 1929, a new lease agreement was made with H. F. Riley and others, the Ball lease of 1919 having been canceled, in which the land was described as follows: “All lands owned by the lessors, containing gravel in sections Í6, 17 and '21, township 4 south, range 17 west.” This controversy arises over a distribution of the proceeds from the sale of gravel under this latter lease.

Appellant, M. N. Keith, contends that Mrs. 'Batchelor and Mrs. McCoy are entitled to share only in the proceeds from the sale of gravel from that part of the gravel bed from which Mr. Ball was permitted to remove gravel in the original lease in section 17. In other words, it is his contention that his sisters reserved in their deeds to him only such gravel in section 17 as Ball was permitted to excavate, and that, when gravel is removed under the new lease in section 17, outside the limitation in the Ball lease of 1919, he is entitled to recover their share of the proceeds thereof by virtue of their deed to him. The chancery court denied his contention and dismissed his complaint for want of equity.

We think the court was correct in so holding. The original lease to Ball covered ‘ ‘ all gravel in section seventeen.” True, he was not permitted to excavate closer than 50 feet to the high bank in a certain quarter section, nor closer than 200 feet to the south line of another quarter section of 17, but the granting clause in said lease conveyed all gravel in section 17. It is simply a case of having a lease on more land than he was permitted to mine or excavate. The lease therefore covered all gravel in section 17, and the reservations in the deeds of Mrs. Batchelor and Mrs. McCoy clearly excepted from the conveyance their interest in “any gravel bars leased to J. J. Ball.”

The decree is correct, and must be affirmed. It is so ordered.


text:
    Faulkinbury v. Shaw.
    Opinion delivered June 15, 1931.

      Pratt P. Bacon and Will Steel, for appellant.

      King, Mahajfey, Wheeler <§ Bryson and James D. Head, for apxiellee.
   Butler, J.

This is an appeal from a verdict instructed for the defendant by the trial court at the close of plaintiff’s evidence in a personal injury suit instituted by Mrs. Effie Faulkinbury against Percy A. Shaw, doing business as Shaw Gas & Plumbing Company, in the city of Texarkana, Arkansas. Mrs. Faulkinbury was injured in the store of appellee by the falling of a kitchen sink upon her ankle on the morning’ of February 15, 1930, while she was in the appellee’s place of business as a prospective purchaser of merchandise for sale by appellee. The appellee therefore owed the appellant the duty of exercising ordinary care to maintain and conduct his business so as to avoid injuring her. Alfrey Heading Co. v. Nichols, 139 Ark. 466, 215 S. W. 712. "Appellant alleged that the appellee failed in his duty to her in this particular by insecurely attaching a kitchen sink on the inside of his store to an old brick wall with wooden pegs driven therein upon which the sink was suspended, and that, because of the negligent fastening of said sink to said wall, the sink fell while appellee was in the exercise of due care, injuring her foot, ankle and leg.

The testimony on the part of the appellant tended to show that the building occupied by the appellee as a tenant, and in which he carried on the business of retailing articles of merchandise, was erected about 45 years before the occurrence resulting in the injury to the appellant; that the walls of the building were made of common or sand brick joined together with mortar made of lime, water and sand without the admixture of cement; that, by reason of the materials used in the construction of the walls, and on account of their age, the walls had become and were soft and “pretty rotten”; that this was the general condition of the walls of this building ■which had been occupied by the appellee for approximately two years, and that he had had the building* repaired while he was a tenant therein; that within the store and along* the east wall the appellee had caused holes to be chiseled or drilled in the wall at certain intervals into which were driven wooden pegs, so that the outer ends thereof were flush with the surface of the wall. Into these pegs, hooks -were screwed, and upon these hooks, about three feet above the floor, were suspended kitchen sinks in a row7 extending from the rear of the store to near the front of the building. Along the side of the building by this Avail and these sinks was a narrow7 passageway for the use of the employees and customers. While appellant was in this passageway, in company with one of appellee’s clerks, one of the sinks, ■weighing from 125 to 150 pounds, fell from the side of the w*all, striking the appellant and injuring her.

In addition to the above facts, about which there is no dispute, a witness for the appellant, who testified that he was in the building business and had been for a number of years, and who had overhauled the building in question several times for the owmer, and had also done some work therein for the appellee, testified that it was usual for sinks to be hung on the walls of the show rooms, and that two dealers in the city of Texarkana beside the appellee had their sinks suspended from the Avails of their buildings, but that there Avas a difference in the brick in the walls of the building in Avhieh appellee did business and in modern brick, and also in the construction of the Avail; that the brick used then Avas softer, and the mortar made without cement, w7hile in the more modern buildings the bricks are harder, and cement used in the mortar, making the entire structure denser and more durable. Witness gav7e his opinion as to the cause of the sink falling, in this Avay: “I would say that if it fell it was on account of the Avail being rotten, and when the pegs were drove in there — jnst the weight hanging on those pegs— it would naturally pull out, and the brick would shell and the thing would fall down.” Witness also stated that not all sinks were supported by the hooks alone; that some dealers, in exhibiting their sinks, put legs under them and some had brackets, and if supports were put under the sinks it was better than supports behind them.

•Counsel for the appellee erroneously imply by their argument that the appellee was not liable unless he knew of the unsafe condition of the wall, and that the pegs driven therein could not be expected to hold. This view seems to have been the one adopted bv the trial court, for in its direction to the jury it is said: “The court is of the opinion, gentlemen, that there isn’t any evidence bringing home to the defendant the knowledge that this particular sink was dangerous to the plaintiff, or that she would probably be injured bv the falling of the sink, or that the sink would fall. Taking that view of the evidence, gentlemen, it becomes the court’s duty to instruct you to return a verdict for the defendant in the case.”

For support of this view appellee apparentlv relies on the language used in the case of Hobart-Lee Tire Co. v. Keck, 89 Ark. 122, 116 S. W. 183, and Alfrey Heading Co. v. Nichols, supra, where the principle is laid down that the owner of premises who knows of their unsafe condition is responsible for injuries occasioned thereby to an invitee, who is ignorant of them and who is injured while using due care for his own safety. In those cases the evidence showed that the premises were unsafe, and were known to be so by the owners, and the statement declares the correct principle. However, it does not follow that the owner’s liability is limited to only those cases in which he had actual knowledge of the unsafe condition of the promises, nor does the text in 45 C. J., at page 837, cited by appellee, sustain that view.

In the case of St. L. I. M. & S. R. Co. v. Dooley, 77 Ark. 561, 92 S. W. 789, the court held correct the following instruction: “If you find from a preponderance of the evidence that the pile of ties in question was in an unsafe condition, and the agent of defendant company was in position to observe and know that fact, and said agent of said defendant company directed said plaintiff to unload his ties upon the pile of ties in question, and the plaintiff was using ordinary care and prudence while unloading or attempting to unload said ties, and by reason of the negligence or wrongful acts of such company, or its agents, plaintiff sustained an injury, then you will find for the plaintiff.” In so holding, the court said: “The bare permission of the owner of private grounds to persons to enter upon his premises does not render him liable for injuries received by them on account of the condition of the premises. But if he expressly or impliedly invites, induces or leads them to come upon his premises, he is liable in damages to them— they using due care — for injuries occasioned by the unsafe condition of the premises, if such condition was the result of his failure to use ordinary care to prevent it, and he failed to give timely notice thereof to them or the public. ’ ’

In St. Louis, I. M. & Sou. Ry. Co. v. Gaines, 46 Ark. 555, it was held that the presumption was that the master had furnished suitable appliances for the performance of the work, and also that he was presumed to have had no notice of the defect, and was not negligently ignorant of it.

From a fair consideration of all the cases, it appears that the owner of the premises is liable to the invitee for injuries resulting from a dangerous condition existing on the premises of which he knows, and the invitee does not know; and the owner is also liable for injuries resulting from defective conditions of the premises, unknown both to the invitee and himself, where the circumstances surrounding the situation are such that he could and would have known of the dangerous condition had he exercised reasonable care and foresight for the safety of those who might come upon his premises by his invitation, express or implied. Applying this principle to the facts stated, we think there was sufficient evidence to warrant the submission of the case to the jury for them to say whether or not from all the circumstances in the case the appellee knew, or ought to have known, of the defective condition of the walls, and whether or not he was negligent in suspending the sinks therefrom in the manner described. Negligence, like any other issue of fact, may be established by either direct or circumstantial evidence, or by both, and in this case, from the circumstances proved, including that of the falling of the sink, the jury might have inferred negligence on the part of the appellee in hanging the sink to the wall. 20 R. C. L. 180; St. L. I. M. & So. Ry. Co. v. Fuqua, 114 Ark. 112, 169 S. W. 786; Mo. Pac. Ry. Co. v. Hull, 182 Ark. 873, 33 S. W. (2d) 406.

During the examination of witness, Walter Harris, who had qualified as an expert builder and who had testified as to intimate knowledge of the building occupied by the appellee, the following question was asked: “In putting that sink up there, could it be told by the one putting the sink up there that this wall was old and that it would shell, and that it was soft brick?” The expected answer was that one putting up this particular sink at that place in the building, of this weight could have told by the slightest testing of these wooden pegs that they were not securely driven into the wall and could not be so driven. The question was objected to, and the objection was sustained. We think it was a proper question, and that the court should have permitted it to be asked and answered. The testimony shows that the witness had qualified as an expert, that he had an intimate knowledge of the building in question, and was qualified to give the opinion asked. Collinson v. Kirtner, 141 Ark. 132, 216 S. W. 1059, 8 A. L. R. 760; K. C. So. Ry. Co. v. Henry, 87 Ark. 452, 112 S. W. 967.

Much of the briefs of counsel are devoted to a discussion of the applicability of the doctrine of res ipsa loquitur to the instant case. Any discussion by us of that doctrine would be merely in anticipation of what the court might or might not rule. Therefore it is unnecessary for us now to comment on the argument or decisions cited by counsel in their discussion of that doctrine.

The trial court erred in directing a verdict for the defendant. The case should have been submitted under proper instructions for the determination of the issues raised by the pleadings and testimony. For the error indicated, the judgment is reversed, and the cause remanded for a new trial.


author: Per Curiam.

text:
    In re Smith.
    Opinion delivered June 15, 1931.

      Oscar Barnett, for appellant.
   Per Curiam.

'Mrs. Stella Smith, by her attorney, asks this court to compel her husband, Filus Smith, to deposit in the registry of the court a sufficient sum of suit money, including costs and attorney’s fees, to enable her to perfect an appeal from the Hot Spring Chancery Court, in which her complaint for divorce was dismissed for want of equity.

We have uniformly held that this court has the power, pending an appeal in a divorce proceeding', to make an. order allowing the wife costs and suit money as an incident to the appellate .jurisdiction in this court. We have also uniformly held that this court has no appellate jurisdiction until there is filed with the clerk of the court a certified copy of the judgment or decree and the pleading’s on file in the court below.

The motion of the petitioner herein is tantamount to asking a rule on the clerk to file a certified copy of the decree of the chancery court without paying the fee of eleven dollars and fifty cehts required by § 2141 of Crawford & Moses ’ Digest. The section is a part of the Acts of 1895 fixing the salary of the clerk of the Supreme Court and for other purposes. Acts of 1895, p. 213.

Section 7 provides that the clerk of the Supreme Court, in lieu of other fees, shall be allowed and paid by the appellant, or plaintiff in error, in advance, in all civil actions and misdemeanors, a fee of $11.50, which shall include all the costs in the case, .etc. The action makes no exception as to the payment of the fee in divorce cases, and neither does § 3506 of the Digest, which provides for suit money during the pendency of an action for divorce, and, in the absence of a statute allowing it, the court has no power to make any exception.

For the reason that the court has no jurisdiction until the appeal is pending here, and the appeal is not pending until the docket fee is paid and the transcript lodged with the clerk, as above indicated, the petition must be denied. In this connection it may be stated that there is no attempt to prosecute the suit as a poor person under the provisions of §§ 1850-1855 of the Digest.

Justices Humphreys and Mehaffy, JJ., dissent.


author: Smith, J.

text:
    Barnett v. Bank of Malvern.
    Opinion delivered February 4, 1929.

      Oscar Barnett, for appellant.

      Glover, Glover >& Glover, for appellee.
   Smith, J.

This is the second apjteal in this cause; the suit being one brought under §§ 7395 and 7396, Crawford & Moses ’ Digest, to recover damages for the alleged refusal and failure of a mortgagee to cancel tbe mortgage lien upon request so to do after the payment of the debt secured by the mortgage. Barnett v. Bank of Malvern, 176 Ark. 766, 4 S. W. (2d) 17.

The mortgagee, the defendant bank, had brought suit to foreclose a mortgage upon a lot which appellant bought subject to the mortgage. There was a decree of foreclosure, but before the sale appellant paid the mortgage debt, and the attorney for the bank caused a notation of that fact to be made upon the margin of the record of the chancery court in which the decree of foreclosure had been entered. When sued for the failure to satisfy the mortgage lien under the provisions of the above-numbered sections of Crawford & Moses’ Digest, the bank defended upon the ground that the cancellation of the decree of foreclosure by entering satisfaction on the margin of the record thereof was a substantial compliance with the requirements of the statute, and the court so instructed the jury, and, under the directions of the court, the jury returned a verdict in the bank’s favor.

Upon the appeal from the judgment of the court rendered upon the verdict of the jury returned as aforesaid, we held that the statute had not been substantially complied with, and that the mortgagor, or his successor in interest, had the right to demand the indorsement of satisfaction of the mortgage upon the margin of the record where the mortgage was recorded, although satisfaction of the decree of foreclosure had been previously entered.

Upon the remand of the cause, the bank defended upon the ground that it entered satisfaction of the mortgage upon the margin of the mortgage record within 60 days after being requested so to do, and that no request to satisfy had been made prior to the institution of the suit for damages for the failure to satisfy. The case appears to have been submitted at the trial from which this appeal comes under proper instructions. The testimony on the part of the plaintiff was to the effect that the request to satisfy was made and not complied with; while that on the part of the bank was to the effect that the request was not made until after the suit for damages had been commenced. The instructions made the determination of this issue of fact decisive of the question of liability.

(1). Appellant insisted in the court below, and insists here, that he was entitled to a judgment upon the pleadings, for the reason that the opinion on the former appeal is decisive of the issues joined at the trial from which this appeal comes. Appellant is mistaken in this contention. We do not undertake to decide any issues of fact raised in the case on the former appeal, but, inasmuch as a verdict had been directed at the first trial against plaintiff, we said on the appeal that, in determining whether he had a cause of action, we gave to the testimony in his behalf its highest probative value, and we merely decided that this testimony was legally sufficient to support a verdict in his favor.

(2). We would therefore be constrained to affirm the judgment from which the present appeal comes but for the fact that counsel for the defendant bank, in the course of his argument before the jury, said: “The satisfaction of the judgment record of the chancery court where the mortgage was foreclosed by the defendant, and as Mr. Robert Smith (the cashier of the bank) told you, was a full and complete satisfaction of any and every claim that the Bank of Malvern had against that property by reason of that mortgage; and plaintiff should not ask for any further satisfaction here.” An objection to this argument was overruled by the court, and exceptions duly saved.

The argument of counsel was an improper one, as it was directly contrary to the law as declared in the opinion on the former appeal and to the instructions given at the request of the plaintiff. It was expressly decided on the former appeal that, notwithstanding the satisfaction of the decree of foreclosure, plaintiff had the right to demand that the mortgage record be satisfied also; yet counsel asserted plaintiff had no such right.

In the case of Briggs v. Jones, 132 Ark. 455, 201 S. W. 118, it was held (to quote a syllabus) that “The refusal of the trial corn! to correct counsel, where he has made an improper statement of the law in his argument, is tantamount to the giving of an erroneous instruction on the subject.” The cases of Bird v. State, 154 Ark. 297, 242 S. W. 71, and Davie v. Padgett, 117 Ark. 551, 176 S. W. 333, are to the same effect.

For this error the judgment must be reversed, and it is so ordered.


author: Mehaffy, J.

text:
    Barnett v. Bank of Malvern.
    Opinion delivered June 15, 1931.

      Oscar Barnett, for appellant.

      D. D. Glover, for appellee.
   Mehaffy, J.

This is the third appeal in this case. The facts are stated in the case of Barnett v. Bank of Malvern, 176 Ark. 766, 4. S. W. (2d) 17. We will not restate the facts stated in the opinion on first appeal.

The second appeal is reported ante p. 1030, 13 S. W. (2d) 616. The suit was brought by appellant to recover damages for alleged refusal and failure of the mortgagee to satisfy the mortgage record, upon request to do so after payment of the debt secured by the mortgage.

The attorney for the appellee, the bank, had indorsed upon the margin of the decree of the chancery court, the payment in full of the indebtedness secured by the mortgage, but this court held that this was not a compliance with the statute, §§ 7395, 7396.

In that case a verdict had been directed in favor of the bank, and the court reversed the judgment and remanded the cause for a new trial.

It was again tried, and a verdict returned for the bank, and Barnett prosecuted a second appeal. On the second appeal the judgment was again reversed, and the cause remanded for a new trial. The appellant insisted when the case was here on second appeal, that he was entitled to a judgment upon the pleadings for the reason that the opinion on the former appeal is decisive of the issues joined at the second trial, but this court held that we did not undertake to decide any issues of fact, but, inasmuch as there had been a directed verdict, we said that, in determining whether he had cause of action, we gave to the testimony in his behalf its highest probative value, and merely decided that that testimony was legally sufficient to support a verdict in his favor, and this court further said that we would be constrained to affirm the judgment but for the fact that the attorney for the bank had made an improper argument to the jury, and this was the only ground for reversing the judgment on the second appeal.

Appellant contends that on second appeal the judgment was reversed because of the improper argument and improper evidence. However, the court said that we would therefore be constrained to affirm the judgment from which the present appeal comes, but for the fact that counsel for the bank, in the course of his argument before the jury said: The satisfaction of the judgment record of the chancery court, where the mortgage was foreclosed by the defendant, aixd as Mr. Bobert Smith (the cashier of the bank) told you, was a full aixd complete satisfactioxx of any axxd every claim the Bank of Malvern had agaixxst the property by reason of the mortgage, axid plaintiff should xxot ask for axiy further satisfactioxx here.”

This court held this was axx improper argument becaxxse it had been expressly decided oxi the first appeal that, notwithstanding the satisfaction of the decree of foreclosure, plaintiff had the right to demand that the mortgage record be satisfied also, and the attorney in his argument had asserted that the plaintiff had no such right.

Appellant insists that the judgment in this case should be reversed because the court below permitted the introduction of the same records that wore complained of in the former appeal, and permitted the same attorney to again argue, over the objections of appellant, that the satisfaction of this chancery judgment was a satisfaction of the mortgage record.

The appellant himself testified about the mortgage and the payment of it, and called the clerk and had him produce the record, not only of the deed, but of the mortgage. He also showed that the mortgage had been satisfied on the 16th day of May, by the attorney for the bank and the cashier.

It was admitted that the bank held the mortgage; that it brought a foreclosure suit, and that the appellant paid the entire mortgage debt, and the only question to be determined by the jury was whether a request had ever been made to satisfy the mortgage. The undisputed proof shows that the mortgage record was not satisfied within 60 days after the appellant testified that request was made. There is no controversy or dispute about the date when the mortgage was satisfied; there is no dispute about the payment of the money by Barnett, and the bank defended solely on the ground that no request was ever made by the appellant.

Appellant objects to the introduction of the chancery record, but the attorney stated that he only wanted to show satisfaction on the margin of the record. The appellant had introduced his checks showing payment of the amount of the judgment and the introduction of the satisfaction on the record showing that the amount of the judgment had been paid, and this evidence was not prejudicial. The trial judge repeatedly told the attorneys and the jury that the issue to be tried was whether the appellant had requested the appellees to satisfy the mortgage record.

It is next contended by the appellant that the court permitted attorneys for the appellee to again argue to the jury that the satisfaction of the chancery judgment was a proper satisfaction of the mortgage record. This is the argument that was made at the second trial, but in the trial of the case from which this appeal comes the attorney for the appellee did not make this argument. The only argument objected to in the last trial of the case, as set out by the appellant himself, is that Mr. Glover, the attorney for the appellee, said: “And he comes in here and says that he gave notice,” whereupon Mr. Barnett said: “I object to the notice,” Mr. Glover said: “All right, request, then.”

This is the only argument objected to and the only argument of appellee’s attorney mentioned in appellant’s abstract or brief. Of course this was not prejudicial; the attorney merely used the word “notice” instead of “request.”

The appellant next contends that the judgment should be reversed because the court granted a continuance over the objections of appellant. The record shows that on August 5, 1929, the appellant filed a motion alleging that an order was entered on the 31st day of July, 1929, as follows: “Cause by consent continued till January term, 1930, not to be tried then unless D. D. Glover can be here at that time.”

The motion was for the court to set aside this order and set the case for trial. ' The reasons given in the motion are: “1. That the order is contrary to the laws of Arkansas as expressed in the statute thereof. 2. Because the said order is inconsistent with the opinion of the Supreme Court of the State of Arkansas in its first opinion written in the first appeal of this cause. 3. Because the said order is inconsistent with the second opinion handed down by said court and filed herein on the second appeal in this case.

The motion does1 not state in what manner the order continuing the case by consent violated the laws of Arkansas or was inconsistent with the opinions of this court. The appellant did not contend in said motion that the order of continuance was not agreed to by him.

It is also undisputed that one continuance at least was had because of the sickness of the appellant. No evidence was introduced, so far as the record shows, on any of the motions, and there is no evidence in the case tending to show that the court abused it's discretion in granting the continuance or that appellant was prejudiced thereby, and, in the absence of any showing or any evidence as to the circumstances, we cannot say that the court abused its discretion.

Appellant offers no explanation or evidence tending’ to show that the order continuing the case till October 7, the date on which it was tried, was improperly made, or that he did not agree to it.

Appellant insists that the judgment should be reversed because the court refused to give instruction No. 3 requested by him. Instruction No. 3, reads as follows: “You are told that such matters of proof introduced by the plaintiff, as revealed by the deed records, mortgage records and court records, cannot be controverted, disputed or denied by the defendant, and you must accept such matters of record as conclusive evidence of the facts as revealed by them.

“You are further instructed that the purpose of the law (§ 7396 of C. & M. Digest) is not only to award compensatory, but also exemplary, damages as a punishment against the mortgagee for refusing to comply with the request or demand of the mortgagor to satisfy the mortgage on the record. A substantial recovery was intended in such cases. However, in this case your verdict must be not more than $500 in favor of the plaintiff. ”

This instruction was erroneous in telling the jury that they must accept matters of récord as conclusive evidence of the facts as revealed by them, and it was also erroneous in telling the jury that a substantial recovery was intended in such cases.

The statute provides that if any person receiving satisfaction does not, within 60 days after being requested, acknowledge satisfaction, etc., he shall forfeit to the party aggrieved a sum not exceeding the amount of the mortgage money. The amount to be recovered is to be fixed by the jury, and it was not proper for the court to tell the jury there must be a substantial amount.

The evidence of appellant’s damages was sufficient to support a verdict for a substantial amount if the jury had found in his favor, but it was the province of the jury, if they found for him, to determine the amount, and it would have been error for the court to have instructed them that their verdict must be for a substantial amount.

The court fully and fairly instructed the jury in instructions not objected to by the appellant. The only issue in the case was whether a request had been made as contended by the appellant for the satisfaction on the mortgage record. The appellant testified very positively that he made the request at a time when the president of the bank was passing his office. The appellant is corroborated by Mr. W. W. Dyer, who testified that he heard appellant ask Mr. Smith, the president of the bank, if he had received his money. He said this was on the 12th of March. The evidence introduced by appellee tended to show that no request had ever been made. Mr. Smith testified very positively that the appellant never made any such request at any time. Other witnesses connected with the bank testified that no request was ever made, but that is unimportant because the appellant does not claim to have made a request of anybody except the president.

No recovery is provided for until a request to acknowledge satisfaction has been made, and then the person receiving satisfaction has 60 days within which to acknowledge satisfaction. Section 7396, Crawford & Moses’ Digest.

The evidence as to whether the request was made is in conflict.

“Wherever there is conflict in the testimony, it is the province of the jury to pass upon the weight of the evidence and the credibility of the witnesses; and, even if it appear that the verdict is contrary to the preponderance of the testimony, this furnishes no g’round for reversal.” Armour Co. v. Rose, ante p. 413; Ark. P. & L. Co. v. Cates, 180 Ark. 1003, 24 S. W. (2d) 846; Hyatt v. Wiggins, 178 Ark. 1085, 13 S. W. (2d) 301; S. W. Bell Tel. Co. v. McAdoo, 178 Ark. 111, 10 S. W. (2d) 503; Ark. P. & L. Co. v. Orr, 178 Ark. 329, 11 S. W. (2d) 761; Mo. Pac. Rd. Co. v. Edwards, 178 Ark. 732, 14 S. W. (2d) 230; Western Union Tel. Co. v. Downs, 178 Ark. 933, 12 S. W. (2d) 887; Wright v. State, 177 Ark. 1039, 9 S. W. (2d) 233; Turner v. State, 109 Ark. 138, 158 S. W. 1087; People’s Bank v. Brown, 136 Ark. 517, 203 S. W. 579; Harris v. Wray, 107 Ark. 281, 154 S. W. 499; Gazola v. Savage, 80 Ark. 249, 96 S. W. 981.

The question whether or not a request had been made having been properly submitted to the jury, and there being substantial evidence to support the verdict, this court will not reverse.

The judgment is affirmed.


text:
    Gerig v. Furr.
    Opinion delivered June 15, 1931.

      Busbee, Bngh & Harrison, for appellant.

      W. D. Swaim and McMillan, S McMillan, for appellee.
   Butler, J.

This action was brought in the Clark Circuit Court by the appellee to recover damages for injuries sustained by him while in the employ of the appellant. The alleged cause of negligence was the failure of the appellant to provide a reasonably safe place in which appellee might do his work.

The appellee recovered judgment in the court below and on appeal here it is, among other things, insisted that the evidence was insufficient to establish negligence on the part of the appellant.

Appellant is a partnership, which at the time of the injury was engaged in building a bridge across the Caddo River bottom. In this construction work it employed a large number of men among whom was the appellee, who, while in the performance of his duties on the 29th of July, 1930, fell and was severely injured.

The evidence is conflicting, but that most favorable, to the appellee may be thus stated. Appellee was engaged with four or five others in tying long steel rods with small wire into bundles. These bundles .were to be used in reinforcing concrete pillars upon which the bridge when completed was to rest. How long appellee had been in the employ of the appellant is not certain; he stated “for several days” before the date of the injury. Appellee was a man about fifty years of age whose chief occupation was that of tenant farmer, but at intervals he did other work. His son was his regular foreman, but on this day one Dave Yates had been left to act as foreman in his place. The right-of-way which led to the construction work and at the point of the injury was 130 feet wide. A small concrete mixer was used in mixing concrete for pouring into forms for pillars, and this for convenience would be located near the point where a pillar was to be erected, and when one pillar was cast the mixer would be moved a short distance where another pillar was to be set and so on, being moved at frequent intervals ranging from one or two days to as short as a few hours apart. When the mixer would be set in place, three 2x4s about 12 feet long would be laid by its side and across these scantling planks 2x12 inches in width and of varying lengths from 8 to 12 feet, would be laid, thus forming a low platform about two inches in height from the surface of the ground. The purpose of this platform was to form a fairly level and firm surface on which carts or “buggies” carrying material from the mixer to the form into which it was to be poured might be easily rolled. When the mixer would be moved, the planks and 2x4s would be taken up and placed by the mixer in its new position. The proper way to make this platform was to place the 2x4s on the ground and the planks across them without nailing. When the platform was laid upon which appellant afterwards stumbled and fell, the employees who were laying it began to nail the planks to the 2x4s. The general foreman noticing this, directed them not to nail the planks saying, “Don’t nail them — we will have to use them over and over, and it is not necessary any way.” At the time of the injury to appellee the concrete mixer was sitting about the center of the right-of-way with the above-described platform resting immediately by and west of it. Appellee was at work tying the steel rods in “a little yard” on the side of the right-of-way 200 feet northeast of the mixer. He had previously been doing the same work at a point on the side of the right-of-way southwest of the concrete mixer and had left some small wire at this point. While tying the rods northeast of the mixer, he and his coworkers had used all the small wire there, and Yates told him to go and get more wire. “You know where it is.” In obedience to this direction, Furr left the point of his work and started diagonally across the right-of-way to the point at which he had been at work before and at which he had left the wire. The direction he took led him immediately to the above-described platform, and, as he was in the act of stepping upon it, another employee, who, with three others, was carrying an empty form, stepped upon the end of one of the planks which projected from the 2x4s, causing it to rise above the level of the floor. Appellee struck his foot at the instep against this and fell heavily upon the platform, severely injuring him. On the east side of the platform was a sand pile and gravel and some long pine poles used in the “false work” of construction, and on the west side of the platform were some forms. These forms were about 24 inches square and required from two to four men to carry them. In making his way down and across the right-of-way the most convenient route for appellee to take was to and across the platform; otherwise he would have to cross over the pile of sand and gravel on the east or the empty forms on the west or detour on the right-of-way so as to avoid them. It was the usual thing for employees to walk across the platform, and appellee himself had walked across it several times, twice on the morning before his injury. He had not helped build the platform, nor had hei seen any of them built, and he did not know how they were constructed.

It is our opinion that the above facts do not constitute actionable negligence on the part of the appellant. While it was the duty of appellant to exercise ordinary care to see that the premises were reasonably safe for the purposes contemplated, they were not insurers of appellee against the natural and ordinary risks incident to the performance of his duties, and in the exercise of ordinary care the appellant was only obligated to provide against those contingencies which might be expected by an ordinarily careful and prudent person. It is true, the accident might not have happened had the planks been nailed to the 2x4s, but can it be said, when the situation of appellee with reference to the nature of his work and the uses for which the platform was constructed are considered, that such an accident might have been reasonably anticipated by one of ordinary experience and sagacity, and could such a one have reasonably foreseen that the result which did happen might occur? We think not.

The case of Oak Leaf Mill Co. v. Littleton, 105 Ark. 392, 151 S. W. 262, relied on by the appellee, presents an entirely different situation to that of the instant case. In that case the platform on which the injury occurred was the place for the performance of the duties of the injured servant on which heavy logs were placed to be rolled down by the servant as need required. Two of the planks were unfastened, and the injury was caused by a log on which there was a knot rolling over the unfastened plank, the knot striking the plank, causing it to fly upward. In that case the court held that it was a question for the jury whether such an accident might reasonablv have been anticipated and foreseen in the light of the attendant circumstances. But in the case at bar the platform had no connection with any of the duties appellee was called upon to perform. Its sole purpose was for the use of the concrete “buggies,” it was but two inches above the surface of the ground, and was constructed in the customary manner which construction was necessary as the use of such platform at any one place was temporary. It had to be moved frequently and used, as stated by the foreman, “over and over again.” The evidence is undisputed that the platform was properly constructed for the use for which it was intended, and there was no fact or circumstance in the history of the use of such platform, or any such attending its location at any time, which could have caused a man of ordinary intelligence and experience to have reasonably foreseen the occurrence of the accident from which appellee suffered or any similar accident.

As said in LaGrand v. Arkansas Oak Flooring Co., 155 Ark. 585, 592, 245 S. W. 38, “If the master, in the exercise of ordinary care to furnish a safe place and tools, could not have reasonably anticipated or foreseen that the injury could have occurred as it did, then he is not negligent if he fails to provide means to prevent it.” Ultima Thule Arkadelphia, etc. Ry. Co. v. Benton, 86 Ark. 289, 110 S. W. 1037; Pittsburg Reduction Co. v. Horton, 87 Ark. 576, 113 S. W. 647; Saxon v. Barksdale, 168 Ark. 976, 272 S. W. 647; Covington v. Little Fay Oil Co., 178 Ark. 1046, 13 S. W. (2d) 306; Ault v. McGaughey, 173 Ark. 322, 292 S. W. 359.

It follows that the trial court erred in refusing’ to direct a verdict for the defendant as requested, and, as the case appears to have been fully developed, the judgment is reversed, and the cause dismissed.


author: Kirby, J.,

text:
    American Exchange Trust Company v. Trumann Special School District.
    Opinion delivered May 4, 1931.

      Wallace Townsend, for appellant.

      J. Brinkerhoff, for appellee.
   Kirby, J.,

(after stating the facts). The law is well settled that school districts are not only authorized to exercise the powers that are expressly granted by statute, but also such powers as may be fairly implied therefrom, and from the duties which are expressly imposed upon them, and such powers are implied when the exercise thereof is clearly necessary to enable them to carry out and perform the duties legally imposed upon them. Andrews Company v. Delight Special School District, 95 Ark. 26, 128 S. W. 361.

It is also true that all special school districts in the State are authorized and impowered, for the purpose of raising funds for the erection and equipment of necessary school buildings, to borrow money and mortgage the real property of the district for the security thereof as provided by statute. Sections 8977 and 8978, Crawford & Moses’ Digest. The later section provides the form for the evidences of indebtedness, either warrants or notes, the effect thereof, and that, if warrants are issued, “'they may be drawn payable in the future and need not be registered with the county treasurer until the time for payment, but shall be drawn upon the building fund and paid out of it in the order of their date after the building fund is provided and collected by the successive levy and collection, and said special school district shall be allowed in law or equity no defense merely by reason of the fact that it is a school district.” This statute also provides that, should any school district desire to borrow money or issue bonds or other evidences of indebtedness, etc., it shall be done after advertising for bids for sale of the bonds, etc. Under this statute the districts are given power to issue warrants on the treasurer payable in future as evidences of indebtedness for money borrowed and secured by mortgages upon the real property of the district, but only such warrants as ‘ ‘ shall be drawn upon the building fund and paid out of it in the order of their date, as the building fund is provided and collected by the successive levy and collection, etc.”

There is no doubt but that the board of directors could provide a building fund for the payment of bond issues for money borrowed by the district, but the statute does not require that it shall be done, except when warrants payable in future are issued as evidences of indebtedness for the money borrowed. This eourc held, in construing a special act authorizing the borrowing of money by a special school district .which provided that the evidences of indebtedness issued by the district shall be “paid out of the building fund in the order of their date after the building fund is provided and collected by successive levies,” that it pledged in effect “the building fund” of the district, the bonds containing such recitals, to the payment thereof; but held also that the bonds were valid obligations of the district, and it was evidently the intention of the Legislature that they should be paid out of the revenues of the district “and are therefore a charge against such revenues.” Schmutz v. Special School District of Little Rock, 78 Ark. 119, 95 S. W. 438. The board of directors could not have limited the liability of the district to the payment of the bonds out of the revenues set aside for “the building fund,” if one had been provided, since they were and are a charge against the whole revenues of the district.

No error was committed, however, by the court in refusing a mandamus to compel the special district to set aside revenues into a building fund for the payment of the wmatwred bonds, maturing, and as they matured. The trustee had no duties to perform, except in foreclosure of the mortgage, if it became necessary, and no error was committed in refusing to allow the trustee expenses including a reasonable attorney’s fee. Attorney’s fees cannot be allowed as costs in suits, except as provided by statute, the same being regarded as a provision for a penalty and not to be enforced in the State courts. Boozer v. Anderson, 42 Ark. 157; Federal Land Bank of St. Louis v. Craig, 276 Ark. 381, 3 S. W. (2d) 34; p. 345, Hughes on Arkansas Mortgages, § 114. The case is easily distinguished from Williams v. Prioleau, 123 Ark. 156, 184 S. W. 847, relied upon by appellant.

It follows that the chancellor’s decree was correct, and it is in all things affirmed.

Smith and Butler, JJ., dissent.


author: Hart, C. J., Hart, C. J.,

text:
    Krumpen v. Taylor.
    Opinion delivered June 8, 1931.

      George C. Lewis, for appellant.

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

(after stating the facts). At the outset it may be stated that, under our statute regulating the .liquidation of insolvent banks, orders for sales of the assets of an insolvent bank may be made and confirmed by the chancery court in vacation without notice. Section 720 of Crawford & Moses’ Digest; and Supplement to Crawford & Moses’ Digest by Castle, § 719; Acts of 1921, p. 514; Barham v. Crittenden County Bank, 170 Ark. 77, 278 S. W. 696. This holding' was recognized and approved by the court in State use of Crawfordsville Special School District v. Huxtable, 178 Ark. 361, 12 S. W. (2d) 1.

Without regard to whether the sale of the assets of the insolvent bank to the new bank was improvident or not, the sale should not have been confirmed because the new bank was organized in violation of the provisions of our Constitution regulating the organization of private corporations. Article 12, § 8, of our Constitution provides that no private corporation shall issue stocks or bonds except for money or property actually received or labor done. The interveners offered to prove that practically all of the stock issued by the new bank was paid for in checks by the subscribing stockholders against funds held by them in the insolvent bank. The court erred in refusing to admit the excluded evidence; for its admission would have shown that subscriptions for stock in the new bank were to be paid by the subscribing stockholders in checks given by them upon the funds owed them by the insolvent bank. This was a palpable evasion of the provision of the Constitution above referred to. This court has uniformly held that under the Constitution of 1874, article 12, § 8, prohibiting- the issuance of stocks by private corporations except for money or property actually received, a note given to such a corporation for the purchase of stock in it is void. Bank of Commerce v. Goolsby, 129 Ark. 416, 196 S. W. 803; Bank of Dermott v. Measel, 172 Ark. 193, 287 S. W. 1017; and Bank of Manila v. Wallace, 177 Ark. 190, 5 S. W. (2d) 937.

The depositors of the insolvent bank were creditors of it, and the payment by them of subscribed stock in the new bank by checks on the funds owned by them in the insolvent bank could in no sense be called a compliance with the Constitution. It was a plain violation of the constitutional provision referred to to pay their stock subscriptions in the new bank by checks given on -the insolvent bank for money due them by it. The sale of the assets of an insolvent bank to a new bank which was not legally organized could not be a valid sale and binding upon the depositors and creditors of the insolvent bank. The excluded evidence would have shown that the new bank was not organized according to law; and the chancery court therefore erred in approving and confirming a sale of the assets of the insolvent bank to it.

Therefore, the decree will be reversed, and the cause will be remanded for further proceedings in accordance with this opinion, and in accordance with the principles of equity. It is so ordered.

Hart, C. J.,

(on rehearing). This is a plain case confused by much argument on the motion for a rehearing. As will be seen from the sections of the statute cited in our orginal opinion and our decisions construing them, an order of the chancery court is necessary for a sale of the assets of an insolvent bank by the State Bank Commissioner. The order of approval of the chancery court is a prerequisite before any sale of the assets of a bank in the hands of the State Bank Commissioner for liquidation can be made. The Commissioner may negotiate the terms of sale, but it is the decree of the chancery court which gives effectiveness to the contract. In so far as the assets and property of the insolvent bank were concerned, the State Bank Commissioner must act under the order of the chancery court, and is, in this respect, the arm of the court as though acting as receiver under the appointment of the court.

Recognizing this to be the law, the attorneys for the State Bank Commissioner filed a petition in the chancery court asking that the court ratify and confirm a sale of the assets of the insolvent bank pursuant to certain negotiations which were exhibited with the petition. In the petition it is alleged that a new bank has been organized for the purpose of purchasing the assets of the insolvent bank, said new bank having a capital stock of $75,000, which has been fully paid in cash. The interveners replied that they had no knowledge of a bank having been organized with a capital stock of $75,000, but they denied that said capital stock had been paid in cash or that any part of the same has been paid in cash. It was stipulated between the parties that a list of depositors who became stockholders in the new bank need not be copied in full in the transcript, but that same shows an aggregate subscription to the stock of the new bank in the sum of $78,452.32, divided among 465 stockholders.

We also copy from the record the following:

“The petitioners, L. Krumpen, Sr., and others, hereby offer to prove that practically no cash has been paid into the so-called new bank, but that its capital has been made up of checks given against funds held by depositors in the failed bank.
“John Moncrief: We object to that testimony.
“The court declined to permit the introduction of testimony to that effect.
“To which ruling the petitioners excepted at the time. ’ ’

We held in our original opinion that the chancery court erred in not allowing appellants to introduce the offered proof in evidence, and said that the offered proof tended to show that the bank was not legally organized. We did not mean to say that the Bank Commissioner could not contradict the offered evidence.

In addition to what we said about the Constitution requiring the capital stock of corporations to be paid in cash or in property received or in labor done, we call attention to the provisions of our bank law on the subject. Section 677 of Crawford & Moses’ Digest and § 677 to Castle’s Supplement. It can be seen from reading these sections that it is not contemplated that a new bank shall be authorized by the Commissioner until the capital stock subscribed is paid in. It may be true, as contended by counsel for appellee, that none but the State can call in question the organization of the new bank. The fact that the State may do so is a good and sufficient reason why the chancery court should not have confirmed the sale of the assets of the insolvent bank to the new bank unless the new bank was organized according to law. The creditors of the insolvent bank would be .without remedy if they did not attack the sale of the assets of the insolvent bank to the new bank; for, if the order of the chancery court confirming the sale should'become final, then any attack after that would be a collateral one unless the order of the chancery court confirming the sale was void on its face.

That is not the case here. The issue before the chancery court was whether or not the sale was a provident one; and, as bearing on that question, appellants offered to prove that practically no cash had been paid into the new bank, and that its capital had been made up by checks given against funds held as depositors in the insolvent bank. The Bank Commissioner stood in the shoes of the insolvent bank, and questions of offset might come up, and it was a material and pertinent question for the chancery court to decide whether capital stock in the new bank had been actually paid in. It was proper for the chancellor to consider the evidence bearing on this question. On the one band, the interveners might substantiate their contention that the capital stock was not paid in, and, on the other, the Bank Commissioner might contradict it by showing that the capital stock had been paid. It was the duty of the chancellor to consider all the facts and circumstances attending the sale in order to determine whether it was a provident or improvident sale. Otherwise, the whole matter might just as well have been placed exclusively in the hands of the State Bank Commissioner. If the approval of the chancery court was absolutely required for a valid sale of the assets and property of the insolvent bank, it necessarily follows that the chancery court is vested with some discretion in the matter. The Bank Commissioner may negotiate the terms of the sale, but it is the order of the chancery court which gives effectiveness to the contract.

An appeal was taken to this court from an order of the chancery court approving the sale. Chancery cases are tried de novo on appeal, and this is a direct and not a collateral attack on the decree of the chancery court. Upon a remand of the case, the whole matter will be before the chancery court anew, and it will become its duty to hear all evidence bearing on the question whether the sale was a provident or an improvident one, and in determining this question, evidence as to whether or not the subscribed capital stock of the new bank was actually paid in is material and relevant to the issue.

Therefore, the petition for rehearing- will be denied.


author: Hart, C. J.,

text:
    DeLoney v. Dillard.
    Opinion delivered June 15, 1931.

      James 8. McConnell, for appellant.

      Feazel & Steel, for appellee.
   Hart, C. J.,

(after stating the facts). It is a well settled principle of equity jurisprudence in. this State that wherever at the time of sale a vendor of land is indebted to the purchaser and continues to be indebted to him after the sale with the right to call for a re-conveyance upon payment of the debt., a deed absolute on its face will be construed by a court of equity as a mortgage. Evidence, written or oral, is admissible to show the real character of the transaction. The law presumes that a deed absolute on its face is what it appears to be, and the burden is on the one claiming it to be a mortgage to overcome this presumption by clear, unequivocal and convincing evidence. Harman v. May, 40 Ark. 146; Hays v. Emerson, 75 Ark. 551, 87 S. W. 1027; Snell v. White, 132 Ark. 349, 200 S. W. 1023; Naill v. Kirby, 16 Ark. 141; Matthews v. Stevens, 163 Ark. 157, 259 S. W. 736; Bolden v. Grayson, 167 Ark. 180, 266 S. W. 975; Bailey v. Frank, 170 Ark. 610, 280 S. W. 663; and Tribble v. Tribble, 173 Ark. 561, 293 S. W. 705.

In the present case, the deed and agreement in question bore the same date; they relate to the same subject-matter ; they were executed by the same parties, and the agreement by positive and direct expression refers to the deed as a part of it. Therefore, they can both be considered as one instrument in construing the contract between the parties and, when so construed, constitute a mortgage. Vaugine v. Taylor, 18 Ark. 65; Belding v. Vaughan, 108 Ark. 69, 157 S. W. 400, and cases cited; and Mechanics’ Limber Co. v. Yates American Machine Co., 181 Ark. 415, 26 S. W. (2d) 80.

When thus considered, it is plain that, when the two instruments are considered together as the parties covenanted and intended that they should be, they are a mortgage and should so be considered by a court of equity. This view is strengthened when we consider the testimony of I. L. DeLoney copied in our statement of facts. He was asked the direct question, whether he had ever paid Hillie Davis the $750 he had borrowed from him on the land. He replied that he did not because he had not had it to pay. There is nothing whatever in the record to contradict this evidence, and we think the chancery court correctly held that it was established by clear, convincing, and satisfactory evidence that the deed and agreement constituted an instrument which was a mortgage.

It is next insisted that the judgment creditors could not levy on the land because it constituted the homestead of I. L. DeLoney. Even if it could be said that I. L. DeLoney attempted to impress the land with the character of homestead, we do not think that could affect the lien of the judgment creditors because he did not attempt to occupy the land as a homestead until after the recovery of the judgments against him by the plain tiffs in this action. The lien attached when they recovered their judgments against him because the land was situated in the same county where they recovered their judgments, and their liens could not be displaced by DeLoney moving on the land and impressing it as a homestead after the liens attached. Simpson v. Biffle, 63 Ark. 289, 38 S. W. 345; Burgauer v. Parker, 69 Ark. 109, 61 S. W. 381; and Cazort & McGehee Co. v. Byars, 104 Ark. 637, 150 S. W. 109.

J. L. Deloney executed the mortgage on the land before Cecil Deloney was married to him. Her husband’s estate in the land was subject to be converted into personalty by a foreclosure sale under the mortgage. She could not, after a foreclosure and a conversion of the estate into money, share in the surplus, if any, of the proceeds of sale.

On the question of jurisdiction of the chancery court, but little need be said. The principle which underlies the doctrine herein applied is peculiarly one of equitable cognizance. The reason is that it would be a virtual fraud for the grantee to insist upon the deed as an absolute conveyance of the title when the parties intended it to be security for a debt and therefore in reality a mortgage; and this is the view of the court in the cases above cited.

It follows that the decree of the chancery court must be affirmed.