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by their landlords, and, with their consent, Action by T. D. Noe, as special adminischarged to their accounts, and paid out of trator of Ula Mitchell (formerly Ula Robtheir crops when gathered. When payment inson), against the American Central Inby others is valid, and when invalid, is dis- surance Company. From a judgment for cussed and the line clearly marked in Whit- plaintits, defendant appeals. Affirmed. taker v. Watson, 68 Ark. 555, 60 S. W. 652.

Sam H. Davidson, Shepard Barclay, and Counsel differ as to the exact number prop

Thos. T. Fauntelroy, for erly proved under this rule, but an exact

pellant. Chas.

E. Elmore and J. B. Baker, for appellee. estimate is not necessary, for there can be no doubt that more than sufficient were fully proved to have been paid in good faith HILL, C. J. The insurance company isthrough others to wipe out the apparent ma- sued a policy of fire insurance to Mrs. Ula jority of 13 for Driver, and give Rhodes a Robinson (afterwards Mrs. Mitchell) upon majority over him, and to increase the ma- her dwelling house and household and jority already shown of Lovewell over Bowen. kitchen furniture. The policy was for $1,Appellants also proved many illegal votes 000 on the house and $400 on the furniture, which were cast on “gift receipts," as they are in consideration of a single premium of called in the record, to have been cast for $17.50. During its life the house and part Bowen and Driver. A discussion and calcu- of the furniture were destroyed by fire. lation of them is unnecessary, as these con- Proofs of loss were sent to the company clusions call for a reversal of the case.

within the stipulated time required by the Other questions are presented and argued, policy. The proofs were made upon the but it is not thought that it is necessary to forms furnished by the company, and were discuss them, because no new questions of in substantial compliance with the terms law are involved.

of the policy, and seem to be full and comThe case is reversed and remanded, with plete. The company objected to them as directions to grant appellees a new trial. incomplete and unsatisfactory, and declined

to accept them for these reasons: They did not give copy of written portions of the

policy, or all the descriptions in the policy; AMERICAN CENT. INS. CO. v. NOE. a conflict was stated to exist in the valua(Supreme Court of Arkansas. May 27, 1905.) tion of the house; and failed to show de1. INSURANCE VALUED POLICIES Total | preciation in the building. Then a demand Loss-ACTIONS.

is made to produce for examination books Under Kirby's Dig. $ 4375, declaring that

of accounts, bills, vouchers, invoices, etc., a fire insurance policy, in case of total loss of the property insured, shall be considered a liq

relating to half dozen articles of household uidated demand for the full amount of the pol- goods, etc., including the Family Bible and icy, the value of a house wholly destroyed by the Criminal Code of Arkansas. Objection fire is not open to evidence in an action on the policy covering the same.

was further made to the insufficiency of [Ed. Note.-For cases in point, see vol. 28,

the statements as to the origin of the fire, Cent. Dig. Insurance, 8 1275.]

the proofs merely stating it was unknown, 2. SAME-ACTION ON POLICY_VALUE OF PROP- and the company intimated that she had ERTY-SUBMISSION OF ISSUE.

knowledge of circumstances which required In an action on an insurance policy, where explanation. In reply to this Mrs. Robinthe evidence of the value of the property destroyed is uncontradicted, and is given without

son requested a return of the proofs, which objection, and without the witness being sub

were sent her. The matter rested for about jected to cross-examination, the question of a year, when a demand was made by Mrs. value need not be submitted to the jury, al

Robinson for arbitration and appraisement, though the evidence thereof is general in character, and the witness does not show himself

and fuller and more explicit proofs were qualified to testify thereto.

sent. Nothing was done by the company, (Ed. Note.-For cases in point, see vol. 46, and this suit was brought. Various deCent. Dig. Trial, § 336.]

fenses, including all the matters above re3. SAME-LIMITATION OF ACTION-PROVISIONS ferred to (except no charge was made that OF POLICY.

Mrs. Robinson caused or connived at the Under the express provisions of Kirby's Dig. § 4381, if plaintiff in an action on an in

fire), were interposed. Other defenses, surance policy suffers nonsuit he may commence which are settled against the company by a new action within one year after such non

the statutes of this state, were also intersuit, notwithstanding stipulations in the policy of insurance to the contrary.

posed. On the trial Mrs. Mitchell and her 4. SAME TOTAL Loss CONSTRUCTION OF

father were the only witnesses. They prov. POLICY.

ed the destruction of the house by fire, its Where a building covered by an insurance value to be from $1,300 to $1,500, and Mr. policy was wholly destroyed by fire, with the

Robinson, the father, testified, “The loss on exception of a glass door, which was crushed after its removal, the loss was a total one with

the personal property was $298." He showin the meaning of the policy.

ed that he had assisted his daughter in [Ed. Note.-For cases in point, see vol. 28, making the proofs of loss and placing the Cent. Dig. Insurance, 8 1266.]

value on the personal property. This sum Appeal from Circuit Court, Fulton Coun- was the aggregate of the values placed on ty; John B. McCaleb, Judge.

the various items in the proofs of loss. No


TILLAR V. HENRY. (Supreme Court of Arkansas. May 27, 1905.) 1. CONSTRUCTIVE TRUSTS-PABOL EVIDENCE.

Though a constructive trust may be proved by parol, the evidence is insufficient unless “it is full, clear, and convincing." 2. SAME-SUFFICIENCY.

Evidence held insufficient to establish a constructive trust of land purchased at a fore closure sale.

Appeal from Drew Chancery Court; Marcus L. Hawkins, Chancellor.

Action by T. R. Henry against T. F. Til-, lar, in which Mrs. Sue M. Henry filed a crosscomplaint. From an adverse decree, defendant Tillar appeals. Reversed.

S. M. Taylor and W. S. McCain, for appel

lant. Bridges & Wooldridge and Wells, Wil. liamson & Cotham, for appellee.

objection was made to this evidence, and no cross-examination of the witness to show his familiarity or unfamiliarity with the property or its market value; crossexamination to develop upon what basis he made the estimate was had. At the conclusion of this testimony, and upon it and the correspondence between the parties, the court directed the jury to find a verdict for $1,298 and interest.

1. The first point urged for a reversal is that the question of value should have been sent to the jury for determination. This argument is chiefly based on a lack of qualification of the witnesses to testify as to the value of the house and the fact that it was put between $1,300 and $1,500. The question of value of the house was not open to evidence. Section 4375, Kirby's Dig., makes the amount of the policy on the house a liquidated demand. This was evidently overlooked by the insurance company in its demands and in its present insistence. The value of the personal property was proved by Mr. Robinson in the general statement above quoted, which was not objected to. The company could have required him to have first proved his knowledge of the property and its market value, and could have cross-examined him to show the incorrectness of his valuation, to impeach the truth or accuracy of his estimates, and may have shown by such crossexamination a doubt of the absolute valuation placed on the property. In such event it would have been error to have directed a verdict, for the determination of the value would then have been a question exclusively within the province of the jury. But a jury cannot be permitted to arbitrarily disregard the sworn testimony of a witness which is uncontradicted, and bears upon its face no fact impeaching either its verity or accuracy. In this case there was absolutely nothing to impair the force of this testimony, and therefore there was no error in instructing a verdict.

2. Error is assigned in permitting recovery on the policy in an action begun more than one year after the fire, contrary to a clause in the policy. The complaint alleges and the answer admits that suit was filed within a year, and a nonsuit taken in that suit, and this suit filed within a year thereafter. This brought the action within section 4381, Kirby's Dig.

3. A question is raised as to the total loss of the building. The uncontroverted evidence is that all of it was lost except a glass front door, which was crushed after removal. This was a total loss within the meaning of the policy. 4 Joyce, Insurance, & 3029.

4. Other questions are incidentally raised, but they are not regarded as sufficiently substantial to call for discussion.

The judgment is affirmed.

HILL, O. J. T. R. Henry and J. T. Duncan were partners in business under the firm name of Duncan & Henry. Henry died, leaving Mrs. Sue M. Henry, his widow, and Claude Henry, their son. Duncan is a brother of Mrs. Henry, and after her husband's death looked after her affairs. T. F. Tillar was a neighbor and friend of the Henrys-a business man and a planter. The firm of Duncan & Henry owed considerable money, but Henry owned considerable property, both real and personal, but the estate had no casb to meet present demands. The real estate consisted of three places—the Henry place, or home place, consisting of over 500 acres, of which nearly 300 was in cultivation; the Guinn place, of about 700 acres, of which about 100 acres was in cultivation; and the Roane place, 160 acres, of which 40 was in cultivation. Mrs. Henry was administratrix of her husband's estate. The Guinn and Roane places were under mortgages. The mortgages were foreclosed, and the properties sold at commissioner's sale January 28, 1893, and bought by Tillar, for about $1,450 for the two places. Deeds were duly executed to him. On April 1, 1893, the Henry or home place was sold at administratrix's sale, subject to the widow's dower. Duncan requested Tillar to buy this property for Mrs. Henry's benefit. He went to the county seat to attend the sale, and found the representatives of the creditors there, expecting to buy the place to protect their debts. They regarded the estate as solvent, and expected to work their debts out through regular course of administration. Tillar entered into negotiations with them, and effected an agreement by which he purchased all the claims at par; the creditors giving him one and two years' time on the payment. When this agreement was reached, the property was then sold, and Tillar purchased, and at once announced he was purchasing 'for Mrs. Henry. There is no dispute as to his purchase of the place for her benefit; he to retain possession and use of it until the

place repaid his expenditures, and then to


in turn it over to her and her son.

the last of 1901 or early in 1902 Tillar brought standing between Tillar and Mrs. Henry suit against Duncan on a judgment against that Tillar was buying to assist her. Tillar Duncan & Henry which he had purchased. positively denies any agreement with DunThe suit was brought just before the judg. can about the purchase of these places in ment would be barred by limitations. Dun- January, and says when he bought at these can filed a cross-complaint against Tillar, al- sales he had no thought of afterwards buyleging that Tillar bought the three places ing at the probate sale the Henry place; that pursuant to an agreement with him to the he bought the Henry place pursuant to reeffect that he would purchase these places quest of Duncan, and told Mrs. Henry of in his own name, and hold them in trust to the arrangement immediately afterwards, pay the debts of Duncan & Henry—the re- and was always ready to fulfill it. His vermainder over to Mrs. Henry and her son- sion of the purchase at the January sales and that the rents and profits and sales bad is that he wrote a letter to Judge Wells by been sufficient to pay off all the indebted- mail, prior to the sales, to buy the lands for ness, including the judgment sued on. Mrs. him, but not to pay exceeding $1,500 for both Henry, on the same day this cross-complaint places. He denies positively any agreement was verified, filed in behalf of herself and with Duncan or Mrs. Henry about them. He son a suit in equity to the same effect. The details his agreement with the creditors, and cases were consolidated in chancery and the purchase on April 1st of the home place; tried together, with the result that Tillar but, as there is no dispute over that matter, was held a trustee for all three places, and it is not necessary to further refer to it, an account stated accordingly. To reverse other than to say that his statement in this that decree he has appealed, but does not regard comports with the other witnesses. appeal from the decree as to the Henry Mrs. Henry's testimony throws but little, if place, nor the accounting in regard thereto; any, light on the question. Her whole testiaverring that he always held that subject mony leaves doubt whether she regarded only to reimbursement, which is accorded Tillar as trustee for all the lands, or the him in the decree. Therefore the only ques- home place only. As her information was tion presented is as to whether he should be derived from Duncan, stronger corroboration held as trustee for the Guinn and Roane of his testimony would be expected than is places.

found in this evidence. She asked him for The substance of the evidence is as fol

a statement of her account in 1898, and he lows: Duncan says that on the 27th of furnished an itemized account of the Henry January, 1893, the day before the chancery place, brought to April 1, 1898. Appellee sales of these places, at the village of Tillar, claims two items in it acknowledged credits he made an agreement with Tillar by which arising from the Guinn and Roane places. Tillar was to buy in the places, pay the

These grew out of rents collected from two probated claims, and hold the real estate as

negroes to whom Henry had sold small security until he got his money back; that tracts in his lifetime. One had a clearing there was no agreement as to interest, but right on the line between the home place and he expected Tillar to get 10 per cent. Dun

the other, and, of the other, it is doubtful can says that prior to this he had a promise which tract it came from. Tillar testified from a gentleman in Monticello, of means, that he thought these tracts were on the to let him have $4,000 to pay off the claims, Henry place, and they had been so treated, but Mrs. Henry preferred dealing with Til- and he continued to do so, and, if they were lar, and when he made this arrangement not, he simply made a mistake against himwith Tillar he dropped the other matter. self in charging himself with rents of them. Tillar did not attend the sale, but Duncan He received rents from other tenants on both says he carried a note from him to Judge places for five years, and received a large W. T. Wells, who was attending to Mrs. sum from the sales of a cypress brake, and Henry's administration matters, and also received money and notes from other sales. foreclosing these mortgages, to buy in the If he intended to recognize a trust against land in his (Tillar's) name for Mrs. Sue these two places, it is inconceivable that he Henry, but not to pay over $1,500.

The should do so by charging himself with the lands were bid in at a price slightly under rent from these two negroes, and omit to $1,500 by Judge Wells, and the purchase charge all other receipts from the places. money paid by Tillar, and the deeds made The statement, including these errors, if erto him. Judge Wells testifies that he does rors they be, is strongly corroborative of Tilnot remember whether Tillar was present, lar's evidence. In the nine years of the alor not, at the sale; has an impression that leged trust, it was the only account called Duncan was there, and Tillar was not. He for, and only one conversation between bim is not certain that he bid in the lands for and Mrs. Henry was shown during that Tillar; thinks it likely he did so; and his time, except bis promise at the beginning of recollection is that he received a note or his trust to do the best he could for her; message from Tillar, but, if a note, he can- and that left doubt, as indicated above, not produce it, for it is either lost or de- whether she regarded him as trustee for

Taylor, 45 Ark. 472; Robinson v. Robinson, 45 Ark. 481; Crow v. Watkins, 48 Ark. 169, 2 S. W. 659; Camden v. Bennett, 64 Ark. 155, 41 S. W. 854; 1 Perry on Trusts, $ 137. The statement of the rule makes it manifest that the evidence in this case' does not measure up to the standard required to establish a constructive trust by parol. Titles to real estate cannot be overturned by a bare preponderance of oral testimony seeking to establish a trust in opposition to written instruments. The conservatism of the courts has prevented the tenure of realty being based on such shifting sands. The statute of frauds has limited trusts capable of being proved by parol, and the courts uniformly tell those who seek to establish those trusts permitted to be established in this way, "Your evidence must be full, clear, and convincing." The appellees failed to establish the trust as to the Guinn and Roane places according to the requirements of equity jurisprudence.

The decree is affirmed as to the Henry place, but is reversed as to the Roane and Guinn places, and the cause is remanded, with directions to enter a decree in accordance herewith.

more than the home place. There are some corroborating evidence and circumstances for each side, but in the main the case rests upon the testimony of Duncan and Tillar. Each intelligent, interested, and with equal knowledge of the facts, yet their testimony is in irreconcilable conflict. One establishes the trust, and the other defeats it. The appellees rely in the first instance on an express trust,“ resting on the letter Duncan says Tillar wrote Judge Wells, telling him to buy the places in his (Tillar's) name for Mrs. Sue Henry. This letter and its contents depend entirely upon the testimony of Duncan. Judge Wells does not even remember whether he received any letter at all, and, of course, cannot and does not testify to its contents. Tillar positively denies writing such letter, and denies sending any letter by Duncan at all, and says that he wrote an entirely different letter from the one quoted by Duncan, and sent it by mail to Judge Wells, some days prior to the sale. To say nothing of the unreliability of the memory of the contents of a letter 12 years ago, the appellees wholly fall on the burden of proof on this issue. The trust chiefly relied upon by appellees is a constructive trust.

Counsel for appellant lays down this application of the principles of constructive trusts to this case: “Now, if Tillar, on the day before the chancery sales, agreed with Duncan to go and buy the place for Mrs. Henry, this of itself would not make Tillar's purchase fraudulent, because fraud consists in acts and results, and not in mere words. But if Tillar made with Duncan such an agreement, oral or otherwise, and thereby Duncan and Mrs. Henry were induced to relax their efforts to raise money and pay off the decrees, or if this agreement was made known to other bidders, who would have paid more for the property, and they were, by reason of this agreement, induced to refrain from 'bidding against the widow,' then it would have been a fraud for Tillar afterwards to claim the land for himself." Counsel for appellees insist that this application of the law concedes the case to them. Thus the counsel met on common ground in applying the doctrine of constructive trusts to the case at bar. Accepting this application as sound, it is left to determine the sufficiency of the evidence. Constructive trusts may be proved by parol, but parol evidence is received with great caution, and the courts uniformly require the evidence to establish such trusts to be clear and satisfactory. Sometimes it is expressed that the “evidence offered for this purpose must be of so positive a character as to leave no doubt of the fact," and sometimes it is expressed as requiring the evidence to be “full, clear, and convincing,” and sometimes expressed as requiring it to be "clearly established.” Crittenden v. Woodruff, 11 Ark. 82; Trapnall's Adm'x v. Brown, 19 Ark. 39; Johnson V. Richardson, 44 Ark. 365; Richardson v.

PRICE et al. v. ST. LOUIS, I. M. & S. RY.


In an action against a railroad company for the death of a drunken passenger, who, it was alleged, was placed in charge of defendant's conductor, and was by him negligently permitted to go onto the platform and fall from the train, evidence held to justify submission to the jury of the issues of defendant's negligence and the contributory negligence of deceased. 2. SAME-ACCEPTANCE OF INTOXICATED PERSON AS PASSENGER.

A railroad company is not required to accept as a passenger, without an attendant, one who, from intoxication, is mentally or physically incapable of taking care of himself.

(Ed. Note.—For cases in point, see vol. 9, Cent. Dig. Carriers, § 971.) 3. SAME-AUTHORITY OF CARRIER'S AGENT.

The conductor of a passenger train who accepts an unattended passenger so drunk as to be unable to look after himself is acting within the scope of his authority. 4. SAME-CARE REQUIRED OF CARRIER. Where the conductor of a pa

nger train accepts an unattended passenger who is so drunk as to be unable to look after himself, the railroad company, while not an insurer of such passenger's safety, is bound to exercise reasonable care to protect him from danger.

[Ed. Note.—For cases in point, see vol. 9, Cent. Dig. Carriers, $ 1095.] 5. SAME-CONTRIBUTORY NEGLIGENCE.

Where a railroad company accepts an unattended passenger who is so drunk as to be unable to take care of himself, and has knowledge of such condition when it accepts him as a passenger, the question of contributory negligence cannot arise when he is injured.

(Ed. Note.--For cases in point, see vol. 9 Cent. Dig. Carriers, $ 1350.]


dered condition, and, not knowing or reThe doctrine of res ipsa loquitur does not alizing his situation or whereabouts, while apply where the accident might as plausibly have resulted from negligence on the part of

in said drunken and irresponsible condition, the passenger as on the part of the carrier; nor arose, and without being warned, cautionis it applicable to the death of a passenger from ed, or restrained as he should have been, circumstances that are personal and peculiar to him, and not by reason of any management

staggered through the door of the car, which of or accident to the train itself.

was but a few feet distant, and out upon 7. NEGLIGENCE — CONTRIBUTOBY NEGLIGENCE

the platform of said car—the train being -CONFLICTING EVIDENCE - QUESTIONS FOB then moving at great rate of speed-and JURY.

was thrown from said car to the ground, Where the evidence is conflicting the questions of negligence and contributory negligence

thereby receiving mortal injuries, from are for the jury.

which he died, and which could and should [Ed. Note.--For cases in point, see vol. 37, have been prevented by the exercise of Cent. Dig. Negligence, 88 298, 299.]

proper care by the defendant, and that his

dead body was discovered lying upon or Appeal from Circuit Court, Miller Coun

near the defendant's railway track, horribly ty; Joel D. Conway, Judge.

mutilated, on the morning of the 17th of Action by C. S. Price and others against

December, 1898. That upon the arrival of the St. Louis, Iron Mountain & Southern

said Cannon Ball train at Newport, the said Railway Company. From a judgment for

conductor left the valise belonging to said defendant, plaintiffs appeal. Affirmed.

deceased at the depot at Newport; stating J. F. Price was killed on the night of that deceased was lost somewhere between December 16, 1898, by falling from a pas- Little Rock and Newport.” That deceased senger train of the St. Louis, Iron Mountain at the time of his death was earning a to& Southern Railway. The “cause of fall tal income of $4,000 per annum. The plainunknown to jury" was the verdict of the tiffs were obliged to expend $500 for the jury of inquest. The widow and children burial expenses of deceased, and, by reason of Price, appellants, sued the appellee, al- of the wrongs and injuries complained of, leging, inter alia, that the proprietor of the had sustained damages in the sum of $10,000, Silver Moon Hotel, at Texarkana, where for which they prayed judgment. The dePrice was stopping, being aware that he fendant, for its answer, denied every maexpected to go to Newport, Ark., to visit terial allegation in the complaint, save that his wife, who was then sojourning there, it was a corporation and common carrier, took Price, who was in an insensible condi- and that the deceased was intoxicated, and tion from intoxication, to appellant's depot alleged contributory negligence of the de at Texarkana, and delivered him to the con- ceased, and that wbatever injuries he re ductor of the Cannon Ball train; stating to ceived were due to his intoxication and the conductor that he desired Price to be want of care. There was a trial at the put off at Newport, and paying his fare to November term, 1900. that point. The complaint then continues

The proprietor of the hotel, who put deas follows: "The said conductor received ceased, Price, on the train, testified, so far the deceased in such insensible and irre- as his evidence is material here, as folsponsible condition, well knowing the same, lows: "I took him in, and he had a valise, and, laving divested him of all his valua- with a quart bottle of whisky in it. I put bles, including about twenty-seven dollars him in care of the conductor, and paid his in money, said conductor took charge of his fare, and gave the remainder of his money money, valise, and other valuables, for to the conductor, to take care of until he which he gave a receipt to said proprietor got home. I told the conductor he was of the hotel, and said conductor caused the unable to take care of himself. He didn't deceased to be laid down on the seats near seem to know anything. There were two the door of the smoking car of said train, seats in the back end of the car where we and there left him, and that the defendant took him, and, if I remember right, we put received said deceased, and undertook to him in the end seat and laid him down. I transport carry, and safely deliver him at took out his money, and got the conductor Newport, Arkansas, well knowing the in- to take his fare out. The conductor told sensible and irresponsible condition of said me he would take care of him. I said: deceased. That after having deposited the 'You have to watch him closely. Take care deceased in said smoking car, the con- of him.' I opened his valise, and showed ductor, brakeman, and other employés of him a bottle of whisky and said: 'He will defendant on said train paid no further at- need a drink or two before reaching Newtention to the deceased, and negligently and port, to keep him from getting too nervous carelessly failed to exercise any diligence on you.' I don't think he knew what was or care whatever with respect to said de- going on in regard to the money. Any. ceased, by reason of which he came to body could see he was just like a child. his death. That just before said train The conductor said, 'Yes,' he would see that reached the station at said Cabot, it being he would be taken care of all right. I told then nighttime, the deceased awoke from him two or three times. The reason I took his drunken stupor, in a dazed and bewil- him down was that I was uneasy, and

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