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cross, and that it was safe to cross, the Hitts the business, while the other did not. The incould properly take into consideration that ventory did not contain certain notes which had the brakeman was standing in a favorable

been given to the firm and negotiated to the

firm's bank, nor certain material which had position to see any danger, and, as stated in been bought by the firm, and neither the rethe opinion, aside from any duty resting on ceiver nor the partner least acquainted with the him, would doubtless, from humanity's sake,

business had knowledge of these items. At the

sale the property was purchased in behalf of a warn them of any danger which his better

corporation in which the partner most conposition would enable him to see and hear. versant with the firm's business owned a maThe fact that they did not hear his cries jority of the stock. This partner also had the later, which is shown, does not change the

bill of the material referred to antedated so as

to apparently precede the sale, when in fact it situation as presented to them when they

was shipped after. Il eld, that the notes and started to make the drive across the tracks. material did not pass by the sale. While not a factor in determining the negli

Appeal from Pulaski Chancery Court; gence of the company, it is a factor in meas

Jesse C. Hart, Ohancellor, uring the conduct of the Hitts, and as such

Petition by P. W. Crawford, Jr., against alone was it considered by the court. The

L. A. Stainback. From a judgment for destatement complained of should read: “The

fendant, plaintiff appeals. Reversed. brakeman made no effort to stop the wagon known to the occupants."

Dan W. Jones, for appellant. 3. Other matters are presented in the brief, and have been considered, but they are the HILL, C. J. L. A. Stainback and P. W. same matters heretofore presented and con- Crawford, Jr., were partners doing a wholesidered, and of them counsel say: “The sale and retail business in builders' material court's attention was called to all of these and like lines of wares in the city of Little facts in the original brief, and the record Rock under the firm name of Stainback, shows them as we have here quoted them. Crawford & Co. They agreed to dissolve, Are we not entitled to a rehearing? And and, being unable to agree on a disposition should not this case be reversed? We have and settlement of the business, united in a tried respectfully to refer the court to the suit to have a receiver appointed and the testimony, which has been evidently over. partnership wound up in the chancery court. looked; or, if not overlooked, has not been The receiver was duly appointed, and was carefully considered, by the majority of this directed to sell the personal property decourt. We deem it our duty to bitterly pro- scribed in the inventory of assets, in bulk, test against the ruling of the majority of at public auction, for cash, to the highest this court. We deem it our duty to show to bidder. The receiver made the inventory this court how it has rendered a judgment assisted by the partners, who examined it directly in violation of the repeated decisions, after completed. The inventory did not conunbroken, of this court.” The court is un- tain five notes which had been given to the aware of overruling or failing to follow any firm, and which had been negotiated to the previous decision of this court, but, on the firm's bank upon the firm's indorsement; and contrary, believes that it is but applying the did not contain certain material bought of principles of many previous decisions. On Sickels & Co. to complete a contract of the the chief point in the case whether the ac- firm for the inside furnishing of the Majestic tion of the Hitts in making the drive across Hotel at Hot Springs. The receiver had no the track was per se contributory negligence, knowledge or information in regard to these or whether they exercised the care required matters. Stainback's brother was the bookby law-the court applied a familiar princi-keeper of the firm, and he (Stainback, the ple, upon which the authorities are collected partner) was thoroughly familiar with all in Ry. v. Martin, 61 Ark. 549, 33 S. W. 1070,

the details of the business. Just how faand which is fully stated by the Supreme miliar Crawford was with the details is Court of the United States in Ry. v. Powers, not clear, but it is clear that he did not pos149 U. S. 43, 13 Sup. Ct. 748, 37 L. Ed. 642. sess the intimate familiarity of Stainback, The motion for rehearing is denied.

and that these matters were wholly in Stain.

back's charge. Crawford's father bid upon BATTLE and RIDDICK, JJ., dissent the assets of the firm at the sale $35,900,

and he relied entirely upon the inventory as furnishing a complete list of the assets.

Other bidders did the same, and the court's CRAWFORD v. STAINBACK.

order called for the sale to be according to (Supreme Court of Arkansas. July 22, 1905.) this inventory, which had been filed in court. PARTNERSHIP_DISSOLUTION-RECEIVERSHIP- J. P. Stainback, the bookkeeper, bought the SALE OF ASSETS - PROPERTY NOT INVEN- assets at the sale for $36,000. He bought In a suit by partners for a receiver to

for a corporation then formed, in which his wind up the firm business, a sale of the assets

brother, L. A. Stainback, owned a majority was ordered according to an inventory which of the stock. Crawford filed a petition prayhad been filed. This inventory was prepared by

ing that the notes and said material (and the receiver, assisted by the partners, one of whom, whose brother was the firm's bookkeeper,

other matters not presented on this appeal) had an intimate knowledge of all the details of be charged as assets of the firm. The chan

TORIED.

cery court held that the notes passed to the Oscar L, Miles, for appellant Cravens & purchaser, subject to the lien of the bank Covington, for appellee. and that their payment should be out of the firm assets, and that the material bought BATTLE, J. Joseph Evans sued the Little of Sickels & Co. passed to the purchaser, Rock & Ft. Smith Railway Company for and its cost was a firm debt. Crawford ap- damages caused by the use and appropriation peals from this finding.

of his lands by the defendant for a right of Whether Stainback performed his full duty way for its railway. The defendant denied to his partner in disclosing the existence of the appropriation and damage. Plaintiff rethese notes and material and not listing them covered judgment against the defendant for in the inventory is a matter upon which $380, and the defendant appealed. the evidence conflicts; and the court is of It is contended by appellant that the de opinion that he did not do so, and, further- scription of the land in the deed adduced more, is of the opinion that the assets pass- by the appellee in the trial of this action as ing to the purchaser were only those listed. evidence of his title to the land appropriated Stainback is in no position to claim that for right of way was not sufficient to identhe notes passed when he was in charge of tify the land. It is described in one deed that department of the business and did not as "N. E. fr. quarter of the N. E. fr. quarter, list them, and he wrote to Sickels & Co. to section 22–822 W.," and in the other, "N. have the shipping of the material antedated E. fe. N. E. quarter of Section 22, township 8 so as to apparently precede the sale, when in N. range 22 W." It was described in both fact it was sbipped subsequently. The evi- deeds as situated in the county in this state. dence shows that the purchaser at the sale | It was admitted by the parties that the tract was to take the contracts as they were, and in controversy contained 7.09 acres. We unto furnish the material to finish them. derstood from this description that the land

The decree is reversed, and the cause re- meant is the northeast fractional quarter of manded, with directions to enter a decree the northeast quarter of section 22, in townin conformity herewith.

ship 8 north, and in range 22 west, situated

in the county of Johnson, in the state of ArRIDDICK and McCULLOCH, JJ, non- kansas. This description is sufficient. participating.

Chestnut v. Harris, 64 Ark. 580, 43 S. W. 977, 62 Am. St. Rep. 213; Boles v. McNeil, 66

Ark. 422, 51 S. W. 71. LITTLE ROCK & FT. S. RY. CO, v. EVANS.

It is contended by the appellant that the

evidence admitted to prove damages was in(Supreme Court of Arkansas. July 8, 1905.)

competent, because it did not show the mar1. DEEDS-DESCRIPTION-DEFINITENESS.

ket value of the land. In an action against a railroad company for damages caused by the appropriation of

The testimony of Joseph Evans in the trial plaintiff's land for a right of way, deeds, one of the action, by question and answer, was of which described the land as “N. E. fr. quar- in part as follows: ter of the N. E. fr. quarter, Section 22-822 W.," and the other as N. E. fe. N. E. quarter

"Q. State what you think is the difference of Section 22, township 8 N. range 22 W.,"

between the value of the tract of land before described the land with sufficient definiteness. the railroad was changed and after the 2. EMINENT DOMAIN-VALUE OF LAND TAKEN change?" -EVIDENCE. In an action against a railroad company

The defendant objected, and the court said, for damages caused by the appropriation of

"He can state what he thinks was the marplaintiff's land for a right of way, plaintiff, al- ket value of the land before and after takthough somewhat self-contradictory, testified

ing. that the land had a market value, and would sell readily in the market, and that its market value

"A. I think the land for a quarry would had been decreased to a certain amount. Other be cheap at $2.50 per acre—the land used. witnesses testified that the land had a market The other part would be damaged at least value, one of them saying that the same piece of land had sold some years before for a cer

one-half, north of the railroad. All would be tain sum, and was worth much less than that destroyed south of the railroad. after construction of defendant's right of way. “Q. The fair market value of that land beThe jury were instructed that in estimating

fore this proposed change and price-what damages they were not bound by the figures testified to by the witness, but must take the

is the difference in your judgment? testimony, and arrive at a just conclusion them- "A. I think it is worth more to-day than selves. The jury returned a verdict for plain- it was ever before, because the work that tiff for less than the damages estimated by any

had been done on it was a benefit to it. It of the witnesses. Held, that defendant could not complain on the ground that the market is in a better condition to-day for a quarry value of the land was not shown as a basis for than ever." estimating damages.

The witness, being asked a question, said, Appeal from Circuit Court, Johnson Coun- "I ask the court to enlighten me," and the ty; Jeptha H. Evans, Judge.

court asked, "What is the difference between Action by Joseph Evans against the Lit- the value of that land before the railroad tle Rock & Ft. Smith Railroad Company. took this right of way and after the road apFrom a judgment for plaintiff, defendant ap- propriated the right of way?" peals. Affirmed,

The witness answered: “About half the

whole piece of land; and I think the front land is worth $250 per acre, and the other perhaps one half-$125—south of the proposed new line."

"Q. Now, Mr. Evans, you have estimated the value of the land taken in the right of way at $250 per acre. If the balance of the land is damaged, what is the difference between the market value of the whole tract before the railroad was moved and the value of the whole tract since? For instance, you estimate the value of the land taken, and the damage, if any, to the balance, what do you think is the market value of the land?

"A. I think the land is worth to me-a fair valuation would be $800 before they went on it this time, like it was before they went on it; and after they occupied that front $200 would be a big estimate of the value.

"Q. That would make a difference of $600 damages?

"A. That is as less a valuation as I can put on it."

Cross-Examination. “Q. Now, Mr. Evans, has that kind of land any market value in this state?

"A. It has a value.

"Q. I am not talking about that. I am talking about the market value what the general public who desired to purchase that kind of land would pay.

"A. That would be guesswork on my part. That is the only land of that character.

"Q. Do you know of any land of that kind selling in this state per acre?

"A. I don't know that I do.

"Q. The values you gave to the jury are just your own personal estimate of it?

"A. That is what I consider it worth.

"Q. You consider it worth that, but you know of no market value for that kind of land?

"A. That land is valuable, but I do not know what it is worth.

"Q. I am talking about the market value of the land. What would such land as this bring, placed upon the market in the ordipary course of trade, a reasonable time given in which to effect a sale-has it a market value?

"A. It certainly has.

"Q. Tell us where any such land can be or has been sold in the market?

"A. I don't think there is a man living, who has got any money, that would see it, but what would buy it."

C. A. Holt was asked and answered in part as follows:

“Q. Tell what you think its market value is; that is, before the new road was put there?

A. I think it is worth $800.

"Q. From your knowledge of the market value of that land, what is the difference between the value of that tract of land as a whole, considering the value of the land that

88 S.W.-63

is in the right of way and the damage to the other, if there is any damage to the other, what is the difference in the fair market value of the land before the railroad appropriated this particular right of way and afterwards?

"A. I ced the market value before at $800. I think $100 would be a poor price for it; that is, a difference of $700.".

Cross-Examination. "Q. You state the difference in the market value was $700?

A. Yes, sir.

"Q. Know of any such lands selling in the markets of this state?

A. Yes, sir.

"Q. Do you know of any land such as that selling in the market of this state?

"A. This same piece of land sold for $800. Q. When? “A. 1870 some time, "Q. To whom? “A. The railroad company.

"Q. Don't you know there was a house on that land, which was torn down and destroyed, which entered into the value of that land?

"A. Not of my own knowledge.

"Q. Do you know what the market value per acre of rock quarry land is in the state of Arkansas ?

“A. I don't know. I am not in that business. I suppose if it was worth that 25 years ago it is worth that to-day.”

S. M. Brown:

"Q. Tell the jury what your idea is of the fair market value of the two and one-halt acres of land embraced in this proposed right of way?

"A. I think a fair valuation of it as a rock quarry would be $250 or $300 per acre.

"Q. As a quarry? "A. Yes, sir.

"Q. You are making your own personal es timates of these values ?

"A. Yes, sir."

This was the sum and substance of all the evidence as to the damages,

On motion of the defendants the court in. structed the jury as follows:

"In estimating the damages for this appro priation, the jury are not bound by figures testified to by any witness, but must take the entire testimony, and from the entire testimony in the case arrive at a just conclusion themselves."

Evans' testimony is in confusion, and to some extent contradictory. He testified that the land in question had a market value, and would readily sell in market. It does not appear that he was so ignorant of the market value of land as to be unable to give an opinion as to the same, Values of land are not certain, and at best are matters of opinion. His opinion may be worth little; but, taking his testimony as a whole, it may be fairly inferred that his estimate of the land in

question was based upon what he knew about the market value of lands generallyone of the modes of asserting the market value of land.

Holt based his estimate upon the sale of the same land to appellant 25 years before. Appellant paid $800 for it, and it is worth as much now as then. This is in the nature of an admission as to its value. He did not remember of any house upon it at that time. No evidence to show that there was was adduced.

It does not appear that Brown did not know the market value of such land as that in question.

The jury returned a verdict in favor of the appellee for $380. No witness estimated the damages so low. They seem to have followed the instructions given at the request of the appellant, discarded the estimates of witnesses, and found one of their own. It certainly cannot complain of their following its instructions.

Judgment atfirmed.

viewed was rendered, died on the 17th day of October, 1902. This did not extend the time of appeal for revivor beyond the year. The statute absolutely provides: “An appeal or writ of error shall not be granted except within one year next after the rendition of the judgment, order or decree sought to be reviewed, unless the party applying therefor was an infant or of unsound mind at the time of its rendition, in which cases an appeal or writ of error may be granted to such or their legal representatives within six months after the removal of their disabilities or death." The appeal must be tak. en within the one year unless the party applying therefor was an infant, or of unsound mind, at the time of the rendition of the judgment, order, or decree. Only two exceptions are made, and the applicant for the appeal in this case does not come within either of them. No authority is given the court to extend the time.

The appeal granted is dismissed.

ST. LOUIS, I. M. & S. RY, CO. V. ROW

LAND. EVANS v. ST. LOUIS, I. M. & S. RY. CO.

(Supreme Court of Arkansas. July 22, 1905.) (Supreme Court of Arkansas. July 8, 1905.)

RAILROADS - CATTLE GUARDS - FAILURE TO APPEAL-TIME FOR TAKING-DEATH OF DE- CONSTRUCT-REMEDY. FEATED PARTY.

Under the statute requiring railroads to Under the statute providing that an ap- construct cattle guards, and subjecting them to peal or writ of error shall not be granted ex- a penalty for failure to do so, a recovery of cept within one year after the rendition of the the penalty is the only remedy open to one judgment, unless the party applying therefor whose stock is killed in consequence of a viowas an infant, or of unsound mind, at the time lation of the statute. of its rendition, in which cases an appeal or (Ed. Note.-For cases in point, see vol. 41, writ of error may be granted to such or their

Cent. Dig. Railroads, $ 1545.] legal representatives within six months after the removal of their disabilities or death, the

Appeal from Circuit Court, St. Francis fact that the party against whom the judgment County; Hance M. Hutton, Judge. was rendered dies within the year limited for appeal does not extend the time.

"Not to be officially reported." [Ed. Note.-For cases in point, see vol. 2, Action by J. M. Rowland against the St. Cent. Dig. Appeal and Error, 8 1907.)

Louis, Iron Mountain & Southern Railway Appeal from Circuit Court, Jefferson Coun. Company. From a judgment for plaintiff, ty; Antonio B. Grace, Judge,

defendant appeals. Reversed. Action by J. s. Evans, in his own right B. S. Johnson, for appellant. W. Gorman and as administrator of Venna Evans, deceas

and P. Gorman, for 'appellee. ed, against the St. Louis, Iron Mountain & Southern Railway Company. From a judg

HILL, C. J. This is an action against the ment for defendant, plaintiff appeals. Ap- appellant railway company charging it with peal dismissed.

knowingly and negligently permitting a catS. J. Hunt and White & Altheimer, for tle guard to remain in an unsafe condition, appellant. B. S. Johnson, for appellee. whereby a horse of the appellee was killed

while attempting to cross it. The court sent BATTLE, "J. Appellee, St. Louis, Iron the case to the jury on an issue of care and Mountain & Southern Railway Company, watchfulness of the railway company in the moves the court to dismiss the appeal here- maintenance of the cattle guard. The case in because it was not taken within the time was tried on the wrong theory. The conprescribed by law.

struction of the cattle guard is only a statuThe judgment appealed from

ren- tory duty, and the statute which requires this dered on the 15th day of April, 1902. The duty provides the remedy for its violation, appeal in this case was taken on the 6th of and that is necessarily exclusive. This quesJune, 1903, more than one year after the tion was recently considered and so decided rendition of the judgment. The plaintiff in Railway v. Busick (Ark.) 86 S. W. 674. against whom the judgment sought to be re- Judgment reversed, and cause remanded.

was

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5. ACTION FOR DEATH-WIDOW AS ADMINISST, LOUIS, I. M. & S. RY. CO. v. CLEERE.

TRATRIX-REMARRIAGE OF WIDOW-INSTRUC

TIONS. (Supreme Court of Arkansas, July 22, 1905.) Where, after the commencement of an ac1. FOREIGN ADMINISTRATOR MARRIED WO

tion by a widow, as administratrix of her deMAN AS ADMINISTRATRIX.

ceased husband, to recover damages for his Kirby's Dig. $ 6003, permits a foreign ad

death, she remarried, it was proper to instruct ministrator to sue in the state, and section that the jury should not consider the remar7823 provides that the courts of Arkansas shall

riage of the widow as affecting the assessment take judicial notice of the laws of other states.

of damages. Held that, as a married woman may act as

(Ed. Note.-For cases in point, see vol. 15, administratrix in the state of New York, an Cent. Dig. Death, $ 99.] administratrix appointed in the state of New

6. APPEAL-REVERSAL-EFFECT – SUFFICIENCY York might sue in Arkansas, though she had

OP EVIDENCE. married subsequent to her appointment.

Where, on appeal, the evidence is found [Ed. Note.For cases in point, see vol. 22, sufficient to support the verdict, but the cause Cent. Dig. Executors and Administrators, 8 is reversed because of erroneous instructions, 2330.]

the finding as to the sufficiency of the evidence 2. CARRIERS-NEGLIGENCE-INSTRUCTIONS. is not conclusive on the next appeal after a Plaintiff's intestate, on leaving a passenger

retrial. coach placed on a side track adjacent to the 7. CARRIERS-PERSON ASSISTING PASSENGERmain track and across from the station, was RIGHT TO BE ON TRACKS. killed by an engine backing on the main track, One passing over tracks between the platand in an action for the death the court in- form of a station and a coach which is open structed that if defendant backed an engine be- to receive passengers, he being engaged in astween the coaches and platform without a guard sisting an embarking passenger, or in looking or lookout, without signal or warning which about and after the passenger's welfare, has a would reasonably attract the attention of a right to rely on an implied assurance that the man of ordinary care, defendant was guilty of way is clear. negligence; and another instruction stated that

(Ed. Note.-For cases in point, see vol. 9, defendant's only duty in running the engine Cent. Dig. Carriers, $ 1365.) was to use ordinary care with reference to the speed, to keep a lookout while passing through

8. DEATH-DAMAGES-ExcESSIVE DAMAGES. the station, and to give signals, and that, if

Where, in an action for death, it appeared such things were done, there was no negligence.

that deceased was 29 years old, vigorous and Held, that such instructions, when taken to

healthy, a practical printer, receiving a salary gether, were correct, and not erroneous on the

of $2,000 a year, in addition to which he earnground that the word "guard” required greater

ed $180 a year by giving certain instruction in care than that required by the statute, which

a college, that be sometimes did night work, only requires a lookout to be kept, and on the

for which he received extra pay, and that be ground that it assumed the existence of the

contributed most of his income to the support fact that plaintiff's intestate was rightfully on

of his wife and infant child, a verdict for the track; there being some testimony to show

$13,190 was not excessive. that a guard was maintained near by, who warned persons, and the question as to de. lalEd. Note.—For cases in point, see vol. 15,

Cent. Dig. Death, 88 125, 129.] ceased's right on the track having been covered 9. SAME-INTEREST. by specific instructions.

In an action for death plaintiff was en3. SAME-CONSTRUING INSTRUCTIONS TOGETH- titled to interest at the rate of 6 per cent. per ER.

annum on the amount of damages from the date Plaintiff's intestate accompanied a passen- of deceased's death to the date of recovery. ger needing assistance to a coach placed on a [Ed. Note.-For cases in point, see vol. 15, side track adjacent to the main track, and Cent. Dig. Death, $ 102.) across from the station, and was killed on his return by an engine backing on the main track. Appeal from Circuit Court, Hot Spring The evidence was conflicting as to whether in- County; Alexander M. Duffie, Judge. testate had enveloped his head in his cape, so that he could neither see nor hear the approach

Action by Regina Tomlinson, afterwards ing engine, or whether he merely held it so as Regina Cleere, as administratrix of the es. to keep off the rain without obstructing his tate of Arthur Tomlinson, deceased, against hearing or vision, The court instructed that the fact alone that plaintiff pulled his cape over

the St. Louis, Iron Mountain & Southern his head in such manner as only partially to

Railway Company. From a judgment in faobstruct his ability to see or hear an approach- vor of plaintiff, defendant appeals. Affirming train, or both, and in that condition went ed. in front of an approaching engine, did not necessarily render him guilty of contributory This action was brought by the widow and negligence, but that the question was whether administratrix of the estate of Arthur Tomhe exercised ordinary care and prudence under the circumstances. The court also instructed

linson, deceased, against the St. Louis, Iron that if deceased, in order to keep off rain, en

Mountain & Southern Railway Company, to veloped his head in his cape, so as to obstruct recover damages for his death. The case has his vision or hearing, and so went in front of

been here on a former appeal, and the facts an engine, and was immediately killed, when he would have seen or beard it if his hearing

are fully stated in the former opinion. St. or vision was not obstructed, he was guilty of Louis, I. M. & S. Ry. Co. v. Tomlinson, 69 contributory negligence. Held, that the first in- Ark. 489, 64 S. W. 347. After the case was struction was not erroneous.

remanded, a change of venue was taken to 4. SAME - CONTRIBUTORY NEGLIGENCE - EviDENCE-QUESTION FOR JURY.

Hot Spring county, where a trial was bad, In an action for the death of one killed which resulted in a verdict and judgment in by being struck by a locomotive while crossing favor of the plaintiff for $20,000 damages. a railroad track, held a question for the jury

Before the trial the defendant filed a plea in whether he had exercised ordinary care and prudence under the circumstances.

abatement as an amendment to its answer, [Ed. Note,-For cases in point, see vol. 9,

setting forth the intermarriage of the 1.' Cent, Dig. Carriers, § 1402.)

tiff with one Martin J. Cleere since t

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