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ERN RY. CO. (Supreme Court of Arkansas. June 17, 1905.) 1. STATE AND FEDERAL STATUTES INCONSISTENCY.

Since Act Tex. Feb. 27, 1885 (Acts 1885, p. 35), and Interstate Commerce Act Feb. 4, 1887, c. 104, 24 Stat. 379, as amended by Act March 2, 1889, c. 382, 25 Stat. 835 (V. S. Comp. St. 1901, p. 3134), operate on the same subject, and are in conflict, the latter, being within the competency of Congress under the power to regulate commerce between the states, must control.

[Ed. Note.-For cases in point, see vol. 10, Cent. Dig. Commerce, $ 5.] 2. COURTS FEDERAL DECISIONS CONCLUBIVENESS ON STATE COURT.

The decision of the Supreme Court of the United States construing a state statute as in conflict with the interstate commerce act is conclusive on the state courts.

(Ed. Note.-For cases in point, see vol. 13, Cent. Dig. Courts, 88 331, 333.]

Appeal from Circuit Court, Arkansas County; George M. Chapline, Judge.

ST. LOUIS, I. M. & S. RY. CO. v. REED.
(Supreme Court of Arkansas. June 17, 1905.)

Where a person of mature years boarded the caboose of a freight train, which was standing in the yards, with the intention of traveling as a passenger, and he made no investigation as to whether the train was intended for passengers, though members of the train crew were present, and it was against the rules of the company for such train to carry passengers, and he was injured in a collision due to carelessness, but not to wanton or willful negligence, the carrier was not liable.

Appeal from Circuit Court, Hot Spring County; Alexander M. Duffie, Judge.

Action by Levu Reed against the St. Louis, Iron Mountain & Southern Railway Com. pany. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Levu Reed was a machinist in the employ of the Cotton Belt Railway Company at Texarkana, Ark. His home was at Malvern,


Action by one Spratlin

against the st. March, 1902, Reed desired to visit his home,

Louis Southwestern Railway Company. From and, meeting Tom Gentry, a conductor on a a judgment, plaintiff appeals. Affirmed. through freight train of the defendant comP. C. Dooley, for appellant. Saml. H. West

pany, he asked him “when he would get and Bridges & Wooldridge, for appellee.

out.” Gentry replied, “I am going out now." Reed testified, that while he had known Gen.

try for several years, he did not know that WOOD, J. The act of 1885 (Acts 1885, p. he was a conductor, but supposed that he 35) upon wbich this suit is based is a copy was a brakeman, and did not ask him if he of Laws Tex. Ex. Sess. 1882, p. 35, c. 26. could go with him. But after having this The Supreme Court of the United States conversation with Gentry, Reed obtained a in Gulf, C. & S. F. Ry. Co. v. Hefley, 158 leave of absence from his company, and then U. S. 98, 15 Sup. Ct. 802, 39 L. Ed. 910, went and boarded the caboose attached to beld that the Texas statute was in conflict the through freight train on which Gentry with Interstate Commerce Act Feb. 4, 1887, was conductor. This train was not at the c. 104, 24 Stat. 379, as amended by Act depot, but was standing on what was called March 2, 1889, c. 382, 25 Stat. 855 [U. S. the caboose track, near the stock pens, and Comp. St. 1901, p. 3154). That court said: some distance away from the passenger de“The state statute and the national law oper- | pot. None of the employés of the company ate upon the same subject-matter, and pre- were at the caboose before Reed boarded it, scribe different rules concerning it. The na- but he saw some of them there before the tional law is unquestionably one within the train pulled out. He did not buy a tickcompetency of Congress to enact under the et, and paid no fare. He understood that power given to regulate commerce between the train which he boarded was a through the states. The state statute must therefore freight, but says he did not know that it did give way." The court shows how the state not carry passengers. The conductor testiand national law conflict. It is only neces- fied that when Reed met him at Texarkana sary to refer to that opinion as controlling "he asked me when I was going out, and this case. When this court passed upon the wanted to know if there would be any show act of 1885 in Ry. v. Hanniford, 49 Ark. 291, for him to go up the road with me. I told 5 S. W. 294, and sustained it as a proper ex- him I supposed it would be all right; that ercise of the police power, Congress had not the caboose was in the yard, and I did not passed the act of March 2, 1889, amending the think that anybody would see him or find interstate commerce law of February, 1887, out if he went up with me." He further in the particulars named therein, and the de- testified that nothing was said about fare, cision of the Supreme Court of the United that he did not collect any fare and did not States construing the effect of the two stat- intend to collect any. The train left Texarutes had not been rendered. The decision of kana about 5 o'clock, and the night followthe Supreme Court of the United States, su- ing, about 50 miles north of Texarkana, at pra, construing the two statutes, is conclu- Boughton, another train accidentally ran insive of the question here presented.

to the caboose, and Reed's leg was broken Judgment affirmed.

above the ankle, and he received other injurles. He brought an action against the com- seems not unreasonable to believe, as counpany to recover damages. The company set sel for defendant contends, that he chose up that it was against its rules and regula- this train in preference to the passenger betions for conductors to carry passengers on cause he had grounds to hope that through through freight trains, and that the plaintiff the courtesy of his friend, the conductor, he was on the train without its permission and would be given free transportation. But we was tre sser, and the company was not need not discuss that feature, for it is quite responsible for his accidental injury. There immaterial. For, conceding that plaintiff was a verdict and judgment against the com- acted in good faith in getting on this train, pany in favor of plaintiff for $500, from it is clear that he acted carelessly. One which it appealed.

should not get on the caboose of a through B. T. Johnson, for appellant. E. H. Vance,

freight train, standing away from tbe pas-i

senger depot, in the yards of the company, Jr., and Andrew I. Roland, for appellee.

near a stock pen, with the intention to trav

el thereon as a passenger, without making RIDDICK, J. (after stating the facts). some inquiry as to whether the train is inThis is an action by the plaintiff to recover tended for passengers. If, without inquirdamages received while riding on one of the ing, he does get n such a train, not intenddefendant's through freight trains. The ed for passengers, and is carried safely to rules and regulations of the company did not his destination, he gains that much at the allow the conductors of such trains to carry expense of the company. On the other hand, passengers. The plaintiff in this case was if an accident happens, and he is injured, an employé of another railroad company, there is no reason or justice in requiring the but, being an acquaintance of the conductor company to pay for his injuries, unless they who had charge of this train, he was permit- have been wantonly or willfully inflicted. ted by him to ride in the caboose attached "When," said Chief Justice Cockrill, "there to it. The plaintiff testified that he did not is a division of the freight and passenger know that it was against the rules of the business of a railroad, the common presumpcompany to carry passengers on such trains, tion is that a person found on a freight train but, leaving out the testimony of the witness- is not legally a passenger; and, if he claims es for the defendant on this point, the ques- that he is, it devolves upon him to show a tion arises whether the undisputed facts do state of case that will rebut the presumpnot show that he either had notice, or, what tion." Hobbs v. Texas Pacific Ry. Co., 49 is the same thing, that he had notice of facts Ark. 360, 5 S. W. 586. The facts in this case sufficient to put him upon inquiry, and that do not rebut this presumption, but show conif he had made any inquiry he could easily clusively that the circumstances under which have ascertained the fact that the employés plaintiff boarded this train were sufficient to of this train had no right to accept him as give him notice that this train was not a passenger. Now, plaintiff did not find this intended for the carriage of passengers. train at tho passenger depot. He boarded Whether in fact he believed it was intendit in the yards of the company, near the ed for passengers is a matter of no moment, stock pen.

It had no passenger coach at- for, although members of the train crew tached, and there was nothing about it to in- were present, he made no inquiry, and can. dicate that it was intended for the carriage not hold the company responsible for his igof passengers. Plaintiff himself shows that, norance. The law in such a case treats him though he had time and opportunity to in- as knowing those things which he could and quire and ascertain whether passengers were should have ascertained by inquiry. This allowed to be carried on this train, he did question has been fully discussed by a recent not do so. When we consider that plaintiff decision of the Court of Appeals, to which was 53 years old, had worked for railroads we refer. Purple v. Union Pacific R. Co., about 15 years, and was then at work at 114 Fed. 123, 51 O. O. A. 564, 57 L. R. A. Texarkana for the Cotton Belt Railway Com- 700. Had plaintiff been a boy or person of pany, while his family lived at Malvern, a immature years, there would be more reason town on defendant's railway, between which to support the judgment, but the facts in place and Texarkana several passenger this case show that plaintiff, and not the trains were run each day, one of which company, was to blame for his presence on trains was due to leave Texarkana only a this train. He was injured by a collision few hours after plaintiff left on the freight, which the evidence shows was the result of and by which plaintiff could have reached carelessness, but was not the result of wanhis home as soon as, or sooner than, he could ton or willful negligence. On the whole have reached it by the freight train, even case, we are convinced that it would be unhad there been no accident; when we con- just to compel the company to pay damages sider that plaintiff took this freight, on which for the injury to plaintiff, which was caused an acquaintance was conductor, when he by his getting on a train not intended for could have taken a passenger train and made passengers, in violation of the rules of the better speed, and that up to the time of the company. accident he had neither paid nor offered to Judgment will therefore be reversed. and pay, nor been asked to pay, any fare__it the action dismissed. It is so ordered.

tion to file a copy of its articles with the SecBROWN et ux. V. PULLER.

retary of State as a prerequisite to its right to

do business within the state. (Supreme Court of Arkansas. June 10, 1905.)

[Ed. Note.—For cases in point, see vol. 12, LIMITATIONS POSTPONEMENT OF STATUTE- Cent. Dig. Corporations, 88 2520–2527.] PARTIAL PAYMENTS.

Where the last payment made on a note was Appeal from Circuit Court. Polk County; made within five years after the note became Joel D. Co ay, Judge due, a suit brought within five years after such

Action by the Bowen-Merrill Company payment was not barred by limitations.

against Glitsch & Alley. From a judgment Appeal from Clay Chancery Court; Ed- for plaintiff, defendant J. I. Alley appeals. ward D. Robertson, Chancellor.

Affirmed. Suit by Edwin S. Puller, as administrator

This is a suit begun in justice court on the of T. E. Tillotson, deceased, against Wallace

2d day of August, 1902, by the Bowen-MerJ. Brown and wife. From a decree for plain

rill Company, a corporation under the laws tiff, defendants appeal. Affirmed.

of Ohio, against Glitsch & Alley, a law firm. J. L. Taylor and G. B. Oliver, for appel- Omitting the caption, the complaint filed in lants. Douglas Hopson and Hawthorne & justice court by said corporation sets forth Hawthorne, for appellee.

the following allegations: “That the said

Bowen-Merrill Company is a corporation orBATTLE, J. Edwin S. Puller, as adminis- ganized under the laws of the state of Ohio, trator of T. E. Tillotson, deceased, institut- and doing business in Indianapolis, in the ed this suit against Wallace J. Brown and

state of Indiana, with a branch house at his wife, Jennie Brown, to foreclose a mort- Kansas City, Mo. That the said defendgage given by the defendants to secure the ants, by their said contract in writing under payment of a promissory note executed by their said firm name of Glitsch & Alley, Wallace J. Brown. The note and mortgage promised to pay to the said plaintiff on the were executed on the 11th day of March, 15th day of June, 1898, the sum of $25 for 1893, and the note was due and payable on lawbooks, with interest from maturity at the the 1st day of December, 1893, and bore in- rate of 10 per cent. per annum; that the said terest at the rate of 8 per cent. per annum. defendants, by their written contract, promThe defense pleaded by the defendants was ised to pay to the said plaintiff on the 27th the statute of limitations. The court ren- day of October, 1898, the sum of $12 for dered a decree in favor of the plaintifi lawbooks, with 10 per cent. interest from against Wallace J. Brown for the amount maturity-copies of which said contracts are due on the note, and against the defendants filed herewith, as Exhibit A and B, respecfor the foreclosure of the mortgage.

tively, and asked to be made and taken as a The evidence adduced in the hearing of part of this complaint; and the said plainthe case showed that the following pay- tiff also files herein a statement, duly veriments were made by Wallace J. Brown on fied, of the amount due and owing by the the note:

said defendant to the said plaintiff; and the March 23, 1893...

$ 20 00 said plaintiff says that the said defendants, May 10, 1893.

80 00 nor either of them, have paid the said sums May 20, 18:93..

200 00

of money, nor the interest thereon, and that June 8, 1898.

43 53

same is due, etc., and pray for judgment." The last payment was made within the

At the trial in justice court, in answer to five years after the note became due and

the above allegations of plaintiff, J. I. Alley, payable, and the suit was brought April 1, a member of the former law firm, filed his 1901, within five years after the last pay. separate answer, which, aside from caption ment. The suit was not barred.

and prayer, reads as follows: "Admits that Decree affirmed.

he was at some time a partner of H. Glitsch in the practice of law, but denies that he, as a member of the firm of Glitsch & Alley,

made or signed the contract sued upon; deALLEY V. BOWEN-MERRILL CO.

nies that it was done with his knowledge or (Supreme Court of Arkansas. June 10, 1905.) consent by Glitsch or any one else; denies 1. PARTNERSHIP LAWYERS-AUTHORITY OF

that it was a part of the partnership busiPARTNER.

ness, or that if Glitsch signed said contract A member of a firm of lawyers organized with the firm name, as alleged, that he had for the practice of law had implied authority

any right or authority to do so, and that to bind his partner by a written contract for the purchase of lawbooks.

same is not binding upon defendant J. I. Al[Ed. Note.-For cases in point, see vol. 38,

ley." Defendant denies that the contract Cent. Dig. Partnership, $8 190–194, 206, 214.] was made as alleged plaintiff. Defend. 2. SAME-FOREIGN CORPORATIONS-ACTIONS

ant, further answering, says: “That the COMPLIANCE WITH STATE LAW.

plaintiff corporation herein is a foreign corThe prosecution of an action by a foreign poration, and that, as such corporation, it corporation to recover on a contract for the

has never complied with the laws of Arkanpurchase of law books did not constitute "doing business" in Arkansas, within Act Feb. 16,

sas, and especially with the act of the Legis. 1899, p. 18, c. 19, requiring a foreign corpora- lature approved February 16, 1899, in the ill


ing of a copy of its articles of incorporation Wright Prickett and J. I. Alley, for appelwith the Secretary of State, and for said lant. R. G. Shower, for appellee. reason cannot do business or maintain this suit in this state." Further answering, de- WOOD, J. (after stating the facts). Two fendant says: “The claim and contract sued questions are presented: First, is J. I. Alley, on herein is barred by the statute of limi- the appellant, liable on the contract made by tations; the same, if made as alleged, was Glitsch, his law partner, without his knowlmade for more than three years ago." Pray- edge or consent? Second, can the Bowener for judgment.

Merrill Company bring this suit and mainThe case was tried upon the issues as tain it in this state, it being an Ohio cormade by the complaint and answer in justice poration, without filing here its articles of court, where judgment was in favor of de- incorporation and appointing an agent? fendant Alley, and the case was appealed to 1. Upon the first question the trial court the Polk circuit court, where it was tried declared the law as follows over defendant's upon the same issues by the court sitting objection, which was declaration No. 4: “In

a jury, and there upon the following a partnership for the practice of law, the agreed statement of facts:

act of one partner in the scope of business of "(1) It is agreed that during 1898 Henry said firm is the act of all, and every responGlitsch and J. I. Alley were partners in the sibility incident to other partnerships in genpractice of law in Mena, Arkansas, under eral attaches to legal partnerships, as well as the style of Glitsch & Alley, and that the corresponding rights." Upon this point the partnership agreement was a verbal one. defendant asked the following declarations, (2) It is further agreed that Henry Glitsch which were refused: (1) "That a firm of signed the firm name of Glitsch & Alley to a lawyers is a nontrading partnership, and one contract for law books of the Bowen-Merrill member of the firm cannot bind the other Book Company, and that the order, contract, without express authority from the other.” and agreement was made by Henry Glitsch (2) "It is necessary in this case for the plainin the firm name and committed to writing. tiff to prove that Henry Glitsch had the (3) It is agreed that J. I. Alley never gave right to contract for books in the firm name." bis consent to nor authorized Henry Glitsch (3) “It is the duty of persons or firms doing to make this order for books, nor any other business with a nontrading partnership to order, nor to sign the firm name to this or- know if one member is authorized to bind the der, nor any other order nor contract, other other on contracts and commercial paper." than the use of his and the firm name in (5) "That a firm of lawyers is a nontrading pleadings in court. (4) It is agreed that this partnership, and that one partner cannot suit was begun in the justice court of S. H. bind the other, either on commercial paper Smith on August 9, 1902. (5) It is agreed or on contracts, although the proceeds were that the following is a correct statement of used in the business, without express authe account:

thority from the other partner.” The court 1898.

correctly declared the law that the act of one July 15, Shearman & Redfield on Neg.. $12 00 partner in a firm of lawyers in the scope of July 18, Sackett's Instructions to Juries 6 00

its business is the act of all. It is generally July 18, Underbill's Criminal Evidence 6 00

12 00 Oct. 27, Beach on Contracts....

held that nontrading firms have no power to

borrow money and sign negotiable paper, "(6) It is agreed that the plaintiff, the and that one member of such firm has no Bowen-Merrill Company, is a foreign corpo- power to bind the other members by signing ration, and that it has not complied with the firm name to such paper. Worster V. the laws of the state of Arkansas by filing Forbush, 171 Mass. 423, 50 N. E, 936; Smith a certificate of articles, etc. (Act Feb. 16, V. Sloan, 37 Wis. 285, 19 Am. Rep. 757; 1899, p. 18, c. 19), with the Secretary of State 22 Am. & E. Ency. L. p. 154, note. (Lawof the state of Arkansas. (7) It is further yers). This is because such transactions are agreed that the defendant J. I. Alley never not generally within the legitimate scope of acknowledged this indebtedness, or any lia- the business of such firms. There is no reability whatever. (8) It is agreed that J. I. son why such firms should be bound by the Alley has been a continuous resident of the acts of their members within the scope of state of Arkansas since the making of this their business. This would be true even in contract. (9) That the defendant Henry the case of negotiable paper, where it was Glitsch, in two letters written by him, one shown that such paper was executed within to the plaintiff and one to the plaintiff's at- the scope of the firm's business. 1 Bates, torney, admitted that said books were bought Part. § 343. Mr. Bates, after an exhaustive for the use of said firm, and that he, as one review of the authorities on the powers and of the partners, signed the firm's name to liabilities of nontrading partnerships, says: the contract for the purchase thereof. (10) “Each partnership must stand largely on the It is agreed that the contract for the pur- nature of its peculiar business, and no rule chase of said books was made outside of this of universal application is possible.” This state."

is the correct doctrine, and there is no reaThis trial resulted in a verdict in favor of son why a firm of lawyers should not be plaintiff, and defendant appeals to this court. bound by the act of one of its members in

business of such a partnership. It is impos- di

buying such lawbooks as may be reasonably the chancery court of Woodruff county, for necessary for carrying on the business. Such divorce, on the ground that he was guilty of an act is certainly within the scope of the such conduct toward her as rendered her con

dition intolerable. Appellant answered, desible to practice law successfully in these nying the allegations of improper conduct times without some lawbooks. As Mr. Bates toward his wife, and also filed his cross-comsays: “It is difficult to conceive of a part- plaint on the ground of willful desertion for nership which does not require some pur- a period of one year. The chancellor grantchases to be made in the usual course of its ed the prayer of the complaint, and decreed a business.” In nontrading firms this is cer- divorce. tainly necessary. He instances the case of The case presents only a question of fact, lawyers purchasing their lawbooks. Miller and after a careful consideration of the tesv. Hines, 15 Ga. 197. See, also, Crosthwait timony we are convinced it is insufficient to v. Ross, 1 Humph. 23, 34 Am. Dec. 613. The warrant a dissolution of the bonds of matripurchase of lawbooks reasonably necessary mony, and that the conclusion of the learned in the business is a responsibility and lla- chancellor was erroneous. Appellant and apbility incident to a partnership for the prac- pellee were married in June, 1898, he being tice of law, and when lawyers come to- then 21 years of age and she 32, and they gether for that business they are presumed lived together until some time in November, to repose in one another the trust and confi- 1899, when she left him and returned to the dence necessary to attend to the duty of pur- house of her mother. Appellee testified that chasing lawbooks for the firm, and to clothe

soon after their marriage appellant began a each with authority to bind the other.

course of harsh and unkind treatment, fre2. “The institution and prosecution of an quently called her a fool, and upon one occaaction is not doing business within the mean- sion, upon a trivial pretext, slapped her in ing of the act of Feb. 16, 1899, and other the face, and upon another, when he was sick statutes upon the subject." Buffalo Zinc & and irritable, threatened to throw a mug at Copper Co. v. Crump, 70 Ark. 525, 69 S. W. her. Her description of the latter scene is 572, 91 Am. St. Rep. 87; Ry. V. Fire Ass'n, as follows: "At another time he drew a mug 55 Ark. 174, 18 S. W. 43.

on me. I was out of the room, and he was Affirm.

sick at the time, and called me several times, and I didn't hear, and when I went to the room he began to fuss, and I told him he was

like a sore-headed bear, and he drew the mug, MALONE V. MALONE.

and told me if I didn't shut my mouth he (Supreme Court of Arkansas. June 10, 1905.)

would knock me in the head with it. I told 1. DIVORCE GROUNDS CRUELTY Evi

him if he did hit me with it I would leave DENCE-SUFFICIENCY. Evidence in a suit by a wife for divorce

him then and there, and go home to my mothon the ground of cruelty examined, and held er, and he said if he had a pistol he would not to show cruel treatment suthicient to war- shoot me." She further testified that she left rant a decree for divorce.

appellant and went to her mother in Novem2. SAME EVIDENCE CORROBORATIONSUFFICIENCY.

ber, 1899, because she learned that he intendA divorce on the ground of cruelty inflict

ed to leave her in a few months. The testied by the husband on the wife will not be mony of appellee was corroborated in part by granted on the wife's testimony, corroborated

her daughter by a former marriage, who was by a daughter nine years old at the time of the occurrences about which she testified, and one

11 years of age, and testified to same instanother witness relating an instance of harsh ces related by appellee. Appellee called anlanguage used by the husband towards the wife. other witness, J. M. Daughtry, who testified

[Ed. Note.-For cases in point, see vol. 17, that he knew the parties, lived in about 219 Cent. Dig. Divorce, SS 403-407.)

miles from them, and visited at their home 3. SAME_WRONGFUL CONDUCT OF Boru PAB

about every two weeks. He said he knew of TIES--EFFECT. Where, in a suit by a wife for divorce, on

only one instance of improper conduct of apthe ground of cruelty, in which the husband pellant towards his wife, which he described filed a cross-complaint on the ground of deser- as follows: "I happened in when Mrs. Ma. tion, the proof showed that both parties were

lone was taking up ashes. Mr. Malone made at fault, both should be denied relief. [Ed. Note.-For cases in point, see vol. 17,

the remark, 'Why haven't you a fire? Hurry Cent. Dig. Divorce, 88 190, 197.)

up, I am cold. I am in the notion of throw

ing this cup at you.' I spoke to him, and Appeal from Woodruff Chancery Court; Ed

said, 'Mr. Malone, ain't you ashamed to talk ward D. Robertson, Chancellor.

to your wife that way?' and I stepped out." Suit for divorce by Mrs. Theo. Malone

This was substantially all the evidence in against J. E. Malone. From a decree for

support of appellee's alleged ground for diplaintiff, defendant appeals. Reversed.

vorce. Appellant testified, denying all the J. F. Summers, for appellant. P. R. An- charges of improper conduct or harsh or undrews, for appellee.

kind treatment towards his wife, except that

he slapped her on account of an improper acMCCULLOCH, J. Appellee filed her com- cusation which she made against him. He deplaint against her husband, J. E. Malone, in scribes the occurrence as follows: "I became

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