SPRATLIN v. ST. LOUIS SOUTHWEST

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. 855 [U. S. Comp. St. 1901, p. 3154], 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 SIVENESS ON STATE COURT.

CONCLU

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, §§ 331, 333.]

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

Action by one Spratlin against the St. Louis Southwestern Railway Company. From a judgment, plaintiff appeals. Affirmed.

P. C. Dooley, for appellant. Saml. H. West and Bridges & Wooldridge, for appellee.

WOOD, J. The act of 1885 (Acts 1885, p. 35) upon which this suit is based is a copy of Laws Tex. Ex. Sess. 1882, p. 35, c. 26. The Supreme Court of the United States in Gulf, C. & S. F. Ry. Co. v. Hefley, 158 U. S. 98, 15 Sup. Ct. 802, 39 L. Ed. 910, held that the Texas statute was in conflict with Interstate Commerce Act Feb. 4, 1887, c. 104, 24 Stat. 379, as amended by Act March 2, 1889, c. 382, 25 Stat. 855 [U. S. Comp. St. 1901, p. 3154]. That court said: "The state statute and the national law operate upon the same subject-matter, and prescribe different rules concerning it. The national law is unquestionably one within the competency of Congress to enact under the power given to regulate commerce between the states. The state statute must therefore give way." The court shows how the state and national law conflict. It is only necessary to refer to that opinion as controlling this case. When this court passed upon the act of 1885 in Ry. v. Hanniford, 49 Ark. 291, 5 S. W. 294, and sustained it as a proper exercise of the police power, Congress had not passed the act of March 2, 1889, amending the interstate commerce law of February, 1887, in the particulars named therein, and the decision of the Supreme Court of the United States construing the effect of the two statutes had not been rendered. The decision of the Supreme Court of the United States, supra, construing the two statutes, is conclusive of the question here presented. Judgment affirmed.

ST. LOUIS, I. M. & S. RY. CO. v. REED. (Supreme Court of Arkansas. June 17, 1905.) CARRIERS RIDING ON FREIGHT TRAIN-InjuBIES LIABILITY OF CARRIER.

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 Company. 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, Ark., where his family lived. On the 3d of March, 1902, Reed desired to visit his home, and, meeting Tom Gentry, a conductor on a through freight train of the defendant company, he asked him "when he would get out." Gentry replied, "I am going out now." Reed testified, that while he had known Gentry for several years, he did not know that he was a conductor, but supposed that he was a brakeman, and did not ask him if he could go with him. But after having this conversation with Gentry, Reed obtained a leave of absence from his company, and then went and boarded the caboose attached to the through freight train on which Gentry was conductor. This train was not at the depot, but was standing on what was called the caboose track, near the stock pens, and some distance away from the passenger depot. None of the employés of the company were at the caboose before Reed boarded it, but he saw some of them there before the train pulled out. He did not buy a ticket, and paid no fare. He understood that the train which he boarded was a through freight, but says he did not know that it did not carry passengers. The conductor testified that when Reed met him at Texarkana "he asked me when I was going out, and wanted to know if there would be any show for him to go up the road with me. I told him I supposed it would be all right; that the caboose was in the yard, and I did not think that anybody would see him or find out if he went up with me." He further testified that nothing was said about fare, that he did not collect any fare and did not intend to collect any. The train left Texarkana about 5 o'clock, and the night following, about 50 miles north of Texarkana, at Boughton, another train accidentally ran into the caboose, and Reed's leg was broken above the ankle, and he received other injur

ies. He brought an action against the company to recover damages. The company set up that it was against its rules and regulations for conductors to carry passengers on through freight trains, and that the plaintiff was on the train without its permission and was a trespasser, and the company was not responsible for his accidental injury. There was a verdict and judgment against the company in favor of plaintiff for $500, from which it appealed.

B. T. Johnson, for appellant. E. H. Vance, Jr., and Andrew I. Roland, for appellee.

RIDDICK, J. (after stating the facts). This is an action by the plaintiff to recover damages received while riding on one of the defendant's through freight trains. The rules and regulations of the company did not allow the conductors of such trains to carry passengers. The plaintiff in this case was an employé of another railroad company, but, being an acquaintance of the conductor who had charge of this train, he was permitted by him to ride in the caboose attached to it. The plaintiff testified that he did not know that it was against the rules of the company to carry passengers on such trains, but, leaving out the testimony of the witnesses for the defendant on this point, the question arises whether the undisputed facts do not show that he either had notice, or, what is the same thing, that he had notice of facts sufficient to put him upon inquiry, and that if he had made any inquiry he could easily have ascertained the fact that the employés of this train had no right to accept him as a passenger. Now, plaintiff did not find this train at the passenger depot. He boarded it in the yards of the company, near the stock pen. It had no passenger coach attached, and there was nothing about it to indicate that it was intended for the carriage of passengers. Plaintiff himself shows that, though he had time and opportunity to inquire and ascertain whether passengers were allowed to be carried on this train, he did not do so. When we consider that plaintiff was 53 years old, had worked for railroads about 15 years, and was then at work at Texarkana for the Cotton Belt Railway Company, while his family lived at Malvern, a town on defendant's railway, between which place and Texarkana several passenger trains were run each day, one of which trains was due to leave Texarkana only a few hours after plaintiff left on the freight, and by which plaintiff could have reached his home as soon as, or sooner than, he could have reached it by the freight train, even had there been no accident; when we consider that plaintiff took this freight, on which an acquaintance was conductor, when he could have taken a passenger train and made better speed, and that up to the time of the accident he had neither paid nor offered to pay, nor been asked to pay, any fare-it

seems not unreasonable to believe, as counsel for defendant contends, that he chose this train in preference to the passenger because he had grounds to hope that through the courtesy of his friend, the conductor, he would be given free transportation. But we need not discuss that feature, for it is quite immaterial. For, conceding that plaintiff acted in good faith in getting on this train, it is clear that he acted carelessly. One should not get on the caboose of a through freight train, standing away from the passenger depot, in the yards of the company, near a stock pen, with the intention to travel thereon as a passenger, without making some inquiry as to whether the train is intended for passengers. If, without inquiring, he does get on such a train, not intended for passengers, and is carried safely to his destination, he gains that much at the expense of the company. On the other hand, if an accident happens, and he is injured, there is no reason or justice in requiring the company to pay for his injuries, unless they have been wantonly or willfully inflicted. "When," said Chief Justice Cockrill, "there is a division of the freight and passenger business of a railroad, the common presumption is that a person found on a freight train is not legally a passenger; and, if he claims that he is, it devolves upon him to show a state of case that will rebut the presumption." Hobbs v. Texas Pacific Ry. Co., 49 Ark. 360, 5 S. W. 586. The facts in this case do not rebut this presumption, but show conclusively that the circumstances under which plaintiff boarded this train were sufficient to give him notice that this train was not intended for the carriage of passengers. Whether in fact he believed it was intended for passengers is a matter of no moment, for, although members of the train crew were present, he made no inquiry, and cannot hold the company responsible for his ignorance. The law in such a case treats him as knowing those things which he could and should have ascertained by inquiry. This question has been fully discussed by a recent decision of the Court of Appeals, to which we refer. Purple v. Union Pacific R. Co., 114 Fed. 123, 51 C. C. A. 564, 57 L. R. A. 700. Had plaintiff been a boy or person of immature years, there would be more reason to support the judgment, but the facts in this case show that plaintiff, and not the company, was to blame for his presence on this train. He was injured by a collision which the evidence shows was the result of carelessness, but was not the result of wanton or willful negligence. On the whole case, we are convinced that it would be unjust to compel the company to pay damages for the injury to plaintiff, which was caused by his getting on a train not intended for passengers, in violation of the rules of the company.

Judgment will therefore be reversed. and the action dismissed. It is so ordered.

BROWN et ux. v. PULLER.

(Supreme Court of Arkansas. June 10, 1905.) LIMITATIONS POSTPONEMENT OF STATUTEPARTIAL PAYMENTS.

Where the last payment made on a note was made within five years after the note became due, a suit brought within five years after such payment was not barred by limitations.

Appeal from Clay Chancery Court; Edward D. Robertson, Chancellor.

Suit by Edwin S. Puller, as administrator of T. E. Tillotson, deceased, against Wallace J. Brown and wife. From a decree for plaintiff, defendants appeal. Affirmed.

J. L. Taylor and G. B. Oliver, for appellants. Douglas Hopson and Hawthorne & Hawthorne, for appellee.

BATTLE, J. Edwin S. Puller, as administrator of T. E. Tillotson, deceased, instituted this suit against Wallace J. Brown and his wife, Jennie Brown, to foreclose a mortgage given by the defendants to secure the payment of a promissory note executed by Wallace J. Brown. The note and mortgage were executed on the 11th day of March, 1893, and the note was due and payable on the 1st day of December, 1893, and bore interest at the rate of 8 per cent. per annum. The defense pleaded by the defendants was the statute of limitations. The court rendered a decree in favor of the plaintiff against Wallace J. Brown for the amount due on the note, and against the defendants for the foreclosure of the mortgage.

The evidence adduced in the hearing of the case showed that the following payments were made by Wallace J. Brown on the note:

A member of a firm of lawyers organized for the practice of law had implied authority to bind his partner by a written contract for the purchase of lawbooks.

[Ed. Note.-For cases in point, see vol. 38, Cent. Dig. Partnership, §§ 190-194, 206, 214.] 2. SAME-FOREIGN CORPORATIONS-ACTIONSCOMPLIANCE WITH STATE Law.

The prosecution of an action by a foreign corporation to recover on a contract for the purchase of lawbooks did not constitute "doing business" in Arkansas, within Act Feb. 16, 1899, p. 18, c. 19, requiring a foreign corpora

tion to file a copy of its articles with the Secretary of State as a prerequisite to its right to do business within the state.

[Ed. Note.-For cases in point, see vol. 12, Cent. Dig. Corporations, §§ 2520-2527.]

Appeal from Circuit Court. Polk County; Joel D. Conway, Judge.

Action by the Bowen-Merrill Company against Glitsch & Alley. From a judgment for plaintiff, defendant J. I. Alley appeals. Affirmed.

This is a suit begun in justice court on the 2d day of August, 1902, by the Bowen-Merrill Company, a corporation under the laws of Ohio, against Glitsch & Alley, a law firm. Omitting the caption, the complaint filed in justice court by said corporation sets forth the following allegations: "That the said Bowen-Merrill Company is a corporation organized under the laws of the state of Ohio, and doing business in Indianapolis, in the state of Indiana, with a branch house at Kansas City, Mo. That the said defendants, by their said contract in writing under their said firm name of Glitsch & Alley, promised to pay to the said plaintiff on the 15th day of June, 1898, the sum of $25 for lawbooks, with interest from maturity at the rate of 10 per cent. per annum; that the said defendants, by their written contract, promised to pay to the said plaintiff on the 27th day of October, 1898, the sum of $12 for lawbooks, with 10 per cent. interest from maturity-copies of which said contracts are filed herewith, as Exhibit A and B, respectively, and asked to be made and taken as a part of this complaint; and the said plaintiff also files herein a statement, duly verified, of the amount due and owing by the said defendant to the said plaintiff; and the said plaintiff says that the said defendants, nor either of them, have paid the said sums of money, nor the interest thereon, and that same is due, etc., and pray for judgment." At the trial in justice court, in answer to the above allegations of plaintiff, J. I. Alley, a member of the former law firm, filed his separate answer, which, aside from caption and prayer, reads as follows: "Admits that 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; denies that it was done with his knowledge or consent by Glitsch or any one else; denies that it was a part of the partnership business, or that if Glitsch signed said contract with the firm name, as alleged, that he had any right or authority to do so, and that same is not binding upon defendant J. I. Alley." Defendant denies that the contract was made as alleged by plaintiff. Defendant, further answering, says: "That the plaintiff corporation herein is a foreign corporation, and that, as such corporation, it has never complied with the laws of Arkansas, and especially with the act of the Legislature approved February 16, 1899, in the fil

ing of a copy of its articles of incorporation with the Secretary of State, and for said reason cannot do business or maintain this suit in this state." Further answering, defendant says: "The claim and contract sued on herein is barred by the statute of limitations; the same, if made as alleged, was made for more than three years ago." Prayer for judgment.

The case was tried upon the issues as made by the complaint and answer in justice court, where judgment was in favor of defendant Alley, and the case was appealed to the Polk circuit court, where it was tried upon the same issues by the court sitting as a jury, and there upon the following agreed statement of facts:

"(1) It is agreed that during 1898 Henry Glitsch and J. I. Alley were partners in the practice of law in Mena, Arkansas, under the style of Glitsch & Alley, and that the partnership agreement was a verbal one. (2) It is further agreed that Henry Glitsch signed the firm name of Glitsch & Alley to a contract for lawbooks of the Bowen-Merrill Book Company, and that the order, contract, and agreement was made by Henry Glitsch in the firm name and committed to writing. (3) It is agreed that J. I. Alley never gave his consent to nor authorized Henry Glitsch to make this order for books, nor any other order, nor to sign the firm name to this order, nor any other order nor contract, other than the use of his and the firm name in pleadings in court. (4) It is agreed that this suit was begun in the justice court of S. H. Smith on August 9, 1902. (5) It is agreed that the following is a correct statement of the account:

"(6) It is agreed that the plaintiff, the Bowen-Merrill Company, is a foreign corporation, and that it has not complied with the laws of the state of Arkansas by filing a certificate of articles, etc. (Act Feb. 16, 1899, p. 18, c. 19), with the Secretary of State of the state of Arkansas. (7) It is further agreed that the defendant J. I. Alley never acknowledged this indebtedness, or any liability whatever. (8) It is agreed that J. I. Alley has been a continuous resident of the state of Arkansas since the making of this contract. (9) That the defendant Henry Glitsch, in two letters written by him, one to the plaintiff and one to the plaintiff's attorney, admitted that said books were bought for the use of said firm, and that he, as one of the partners, signed the firm's name to the contract for the purchase thereof. (10) It is agreed that the contract for the purchase of said books was made outside of this state."

This trial resulted in a verdict in favor of plaintiff, and defendant appeals to this court.

Wright Prickett and J. I. Alley, for appellant. R. G. Shower, for appellee.

WOOD, J. (after stating the facts). Two questions are presented: First, is J. I. Alley, the appellant, liable on the contract made by Glitsch, his law partner, without his knowledge or consent? Second, can the BowenMerrill Company bring this suit and maintain it in this state, it being an Ohio corporation, without filing here its articles of incorporation and appointing an agent?

1. Upon the first question the trial court declared the law as follows over defendant's objection, which was declaration No. 4: "In a partnership for the practice of law, the act of one partner in the scope of business of said firm is the act of all, and every responsibility incident to other partnerships in general attaches to legal partnerships, as well as corresponding rights." Upon this point the defendant asked the following declarations, which were refused: (1) "That a firm of lawyers is a nontrading partnership, and one member of the firm cannot bind the other without express authority from the other." (2) "It is necessary in this case for the plaintiff to prove that Henry Glitsch had the right to contract for books in the firm name." (3) "It is the duty of persons or firms doing business with a nontrading partnership to know if one member is authorized to bind the other on contracts and commercial paper." (5) "That a firm of lawyers is a nontrading partnership, and that one partner cannot bind the other, either on commercial paper or on contracts, although the proceeds were used in the business, without express authority from the other partner." The court correctly declared the law that the act of one partner in a firm of lawyers in the scope of its business is the act of all. It is generally held that nontrading firms have no power to borrow money and sign negotiable paper, and that one member of such firm has no power to bind the other members by signing the firm name to such paper. Worster V. Forbush, 171 Mass. 423, 50 N. E. 936; Smith v. Sloan, 37 Wis. 285, 19 Am. Rep. 757; 22 Am. & E. Ency. L. p. 154, note. (Lawyers). This is because such transactions are not generally within the legitimate scope of the business of such firms. There is no reason why such firms should be bound by the acts of their members within the scope of their business. This would be true even in the case of negotiable paper, where it was shown that such paper was executed within the scope of the firm's business. 1 Bates, Part. 343. Mr. Bates, after an exhaustive review of the authorities on the powers and liabilities of nontrading partnerships, says: "Each partnership must stand largely on the nature of its peculiar business, and no rule of universal application is possible." This is the correct doctrine, and there is no reason why a firm of lawyers should not be bound by the act of one of its members in

buying such lawbooks as may be reasonably necessary for carrying on the business. Such an act is certainly within the scope of the business of such a partnership. It is impossible to practice law successfully in these times without some lawbooks. As Mr. Bates says: "It is difficult to conceive of a partnership which does not require some purchases to be made in the usual course of its business." In nontrading firms this is certainly necessary. He instances the case of lawyers purchasing their lawbooks. Miller v. Hines, 15 Ga. 197. See, also, Crosthwait v. Ross, 1 Humph. 23, 34 Am. Dec. 613. The purchase of lawbooks reasonably necessary in the business is a responsibility and liability incident to a partnership for the practice of law, and when lawyers come together for that business they are presumed to repose in one another the trust and confidence necessary to attend to the duty of purchasing lawbooks for the firm, and to clothe each with authority to bind the other.

2. "The institution and prosecution of an action is not doing business within the meaning of the act of Feb. 16, 1899, and other statutes upon the subject." Buffalo Zinc & Copper Co. v. Crump, 70 Ark. 525, 69 S. W. 572, 91 Am. St. Rep. 87; Ry. v. Fire Ass'n, 55 Ark. 174, 18 S. W. 43.

A divorce on the ground of cruelty inflicted by the husband on the wife will not be granted on the wife's testimony, corroborated by a daughter nine years old at the time of the occurrences about which she testified, and one other witness relating an instance of harsh language used by the husband towards the wife. [Ed. Note. For cases in point, see vol. 17, Cent. Dig. Divorce, §§ 403–407.]

3. SAME-WRONGFUL CONDUCT OF BOTH PARTIES-EFFECT.

Where, in a suit by a wife for divorce, on the ground of cruelty, in which the husband filed a cross-complaint on the ground of desertion, the proof showed that both parties were at fault, both should be denied relief.

[Ed. Note. For cases in point, see vol. 17, Cent. Dig. Divorce, §§ 190, 197.]

Appeal from Woodruff Chancery Court; Edward D. Robertson, Chancellor.

Suit for divorce by Mrs. Theo. Malone against J. E. Malone. From a decree for plaintiff, defendant appeals. Reversed.

J. F. Summers, for appellant. P. R. Andrews, for appellee.

MCCULLOCH, J. Appellee filed her complaint against her husband, J. E. Malone, in

the chancery court of Woodruff county, for divorce, on the ground that he was guilty of such conduct toward her as rendered her condition intolerable. Appellant answered, denying the allegations of improper conduct toward his wife, and also filed his cross-complaint on the ground of willful desertion for a period of one year. The chancellor granted the prayer of the complaint, and decreed a divorce.

The case presents only a question of fact, and after a careful consideration of the testimony we are convinced it is insufficient to warrant a dissolution of the bonds of matrimony, and that the conclusion of the learned chancellor was erroneous. Appellant and appellee were married in June, 1898, he being then 21 years of age and she 32, and they lived together until some time in November, 1899, when she left him and returned to the house of her mother. Appellee testified that soon after their marriage appellant began a course of harsh and unkind treatment, frequently called her a fool, and upon one occasion, upon a trivial pretext, slapped her in the face, and upon another, when he was sick and irritable, threatened to throw a mug at her. Her description of the latter scene is as follows: "At another time he drew a mug on me. I was out of the room, and he was 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, and told me if I didn't shut my mouth he would knock me in the head with it. I told him if he did hit me with it I would leave him then and there, and go home to my mother, and he said if he had a pistol he would shoot me." She further testified that she left appellant and went to her mother in November, 1899, because she learned that he intendIed to leave her in a few months. The testimony of appellee was corroborated in part by her daughter by a former marriage, who was 11 years of age, and testified to same instances related by appellee. Appellee called another witness, J. M. Daughtry, who testified that he knew the parties, lived in about 21⁄2 miles from them, and visited at their home about every two weeks. He said he knew of only one instance of improper conduct of appellant towards his wife, which he described as follows: "I happened in when Mrs. Malone was taking up ashes. Mr. Malone made the remark, 'Why haven't you a fire? Hurry up, I am cold. I am in the notion of throwing this cup at you.' I spoke to him, and said, 'Mr. Malone, ain't you ashamed to talk to your wife that way?' and I stepped out." This was substantially all the evidence in support of appellee's alleged ground for divorce. Appellant testified, denying all the charges of improper conduct or harsh or unkind treatment towards his wife, except that he slapped her on account of an improper accusation which she made against him. He describes the occurrence as follows: "I became