페이지 이미지
PDF
ePub

er of the machine in question, merely stopped 134 S. W. 632, 32 L. R. A. (N. S.) 1177; Minor at the garage to obtain a supply of gasoline. v. Mapes, 102 Ark. 351, 144 S. W. 219, 39 L. The gasoline filling station was located near R. A. (N. S.) 214; Butler v. Cabe, 116 Ark. the curb on the left side of the entrance, and 26, 171 S. W. 1190, L. R. A. 1915C, 702; Flemcould be approached either by stopping the ing v. Oates, 122 Ark. 28, 182 S. W. 509; car on the side of the street or turning into Russ v. Strickland, 197 S. W. 709. We have the entrance.

stated the rule on the subject as follows: According to the testimony of several wit. "Automobilists and the drivers of other vehinesses introduced by the defendant, the ma

cles have the right to share the street with

pedestrians, but they must anticipate the preschine was not run into the garage at all, butence of the latter and exercise reasonable care was turned into the entrance for the purpose to avoid injuring them. Care must be exercisof stopping at the gasoline station. Accord- ed commensurate with the danger reasonably ing to that testimony, the driver in turning to be anticipated.” Minor v. Mapes, supra. into the entrance ran the car a little too far

Ordinary care for one's own safety and for to admit of connecting the gasoline hose with the safety of others is, in the absence of a the tank, the front wheels of the car being statute prescribing definite regulations, the stopped about the edge of the sidewalk in legal measure of duty applicable to all perfront of the entrance. Anderson was stand- sons who use the public streets, either as ing at the tank at that time for the purpose pedestrians or in driving automobiles or of delivering the gasoline, and another man other vehicles. Fleming v. Oates, supra. who had come up in the car with Anthony

[4] The instructions given by the court over was standing on the other side of the en- the objections of the defendant were not in trance. The car was backed only 4 or 5 feet, accord with these principles, for the reason according to the testimony of defendant's that they stated the law to be that the failure witnesses, and the rear fender struck plain- of the driver of the car to look for pedestrians tiff and knocked or pushed him down. Plain or to sound a warning constituted negligence tiff testified that he was violently knocked on account of which the plaintiff was entitled down, but defendant's witnesses testified to recover damages. Those instructions told that he was pushed down, or merely "sat the jury in effect that the failure of Anthony down,” using the exact language of the wit- to keep a lookout for pedestrians and to sound nesses. There is a sharp conflict in the tes- the horn as a warning constituted negligence timony as to the distance the automobile per se, and this was an incorrect declaration was backed, as well as to the speed. Accord-numbered 1 and 2 were each open to this ob

of the law on the subject. Instructions ing to plaintiff's testimony, the machine was backed about 19 feet out into the street, Istances established in a case by undisputed

jection. Of course there might be circumwhereas defendant's testimony shows that

evidence which would make the failure of an it was only backed about 4 or 5 feet. Plaintiff testified that the horn was not sounded, sound the horn negligence per se, and the

automobile driver to keep a lookout or to and there was no testimony to contradict

court would be justified in such case in so him on that point. Anthony testified that declaring the law to the jury. But, where when he backed his car he looked around on the circumstances are such as reasonable the left side of the car and did not observe minds might draw different inferences on any one in sight. He stated that he did not the question, it was improper to tell the jury look back through the rear windows of the that it constitutes negligence for a driver of car, nor did he look backward on the other a car to fail to keep a lookout or to fail to side of the car. Anderson testified that he

sound the horn. The correctness of the was looking when the collision occurred, and instructions must, of course, be tested by the that plaintiff was walking toward the car as testimony adduced by the defendant, for the it backed out, and that he called out in alarm, jury might have found the facts which that but that plaintiff continued his course.

testimony tended to establish. In other [1, 2] It is clear that the testimony intro- words, the jury might have found, as stated duced in the case presented issues to be sub- by defendant's witnesses, that the car was mitted to the jury as to the negligence of de- backed a distance of only 4 or 5 feet, at a fendant's agent in backing the car into the very low rate of speed, and in the presence street without warning, or without exercising of two other persons who were in full view proper care to discover the presence of plain- so as to be able to give warning either to tiff, and at an excessive rate of speed, and the driver or to a pedestrian. Under those also as to contributory negligence of plaintiff circumstances the jury might have drawn himself in failing to exercise ordinary care the inference that ordinary care did not reto avoid injury. The evidence was legally quire the driver either to look or to sound the sufficient to support a finding either way on horn before backing the car so short a disthose issues.

tance. [3] The law of the case has been settled in [5] Instruction No. 3, given by the court, several decisions of this court, defining the was also erroneous in telling the jury that relative rights and reciprocal duties of per- the verdict should be for the plaintiff if it was sons using public highways as pedestrians or found “that said automobile was being backed in operating automobiles and other kinds of at a greater rate of speed than a person of

into consideration the location of the garage, all circumstances, but merely declares the the pedestrians ordinarily passing along the duty of the driver to do so "whenever necesstreet and across said street, and the general sary as a warning of danger,” and prohibits traffic across and along the street where the the giving of the signal “at other times or automobile was backed.” The instruction was for other purposes.” The statute leaves it to

" erroneous in omitting all consideration of be determined in a given case whether or not the speed of the car being the proximate it is necessary for the driver to give warning. cause of the injury.

Section 16, prescribing regulations for the [6] Other instructions subject to the same operation of automobiles, has no application criticism were given, but it is unnecessary to to the present case, except to impose the discuss them all, the general theory upon duty of ordinary care for the protection of which the case should have been submitted other persons using the highway. to the jury having been stated so as to afford We find nothing in these statutory regulaa guide for the court at the next trial of the tions which charge the law so far as applicase. The instructions of the court are also cable to the facts of the present case. open to the objection that they exclude con- It is unnecessary to discuss other assignsideration of the issue as to contributory neg- ments of error based upon rulings of the court ligence of the plaintiff, and they authorize which may not occur in another trial, but, for the jury to find for the plaintiff regardless of the errors indicated, the judgment will be his own negligence contributing to the injury. reversed, and the cause remanded for a new

[7] What we have said is based on the trial. general law on the subject without reference to any particular statutory regulations, but

(134 Ark. 276) it is contended that in the state of Texas, THOMPSON v. BUCHANAN. (No. 373.) where the injury occurred, there are specific (Supreme Court of Arkansas. May 20, 1918.) statutory regulations which change the law

1. APPEAL AND ERROR Ou909(1) PRESUMPwith respect to the duties of the driver of a

TION FAVORING TRIAL COURT-EVIDENCE. .car. The statute brought to our attention Where the cause was heard upon oral testi. does not, we think, change the law herein mony, which has not been abstracted by defendstated. The following sections of the Texas ant appellant, it will be presumed, in favor of statute (Acts of 1917, p. 474) read as follows: evidence established a fact necessary to plain

the trial court's finding for plaintiff, that the “Sec. 7. Signals. Every motor vehicle shall tiff's case. be equipped with a bell, gong, horn, whistle or 2. SUBROGATION Ow16—PURCHASER AT VOID other device in good working order, capable

EXECUTION SALE. of emitting an abrupt sound adequate in quality and volume to give warning of the approach of at void sale on execution under the honest belief

Plaintiff having purchased defendant's land such motor vehicle to pedestrians and to the he was getting the property and his money havrider or driver of animals, or of other vehicles ing been applied for the benefit of defendant and to persons entering or leaving street, inter- in paying his debt to the judgment creditor, and. urban or railroad cars. Every person operat- having removed pro tanto the judgment lien on ing a motor vehicle shall sound said bell, gong, the property, plaintiff, under the doctrine of horn, whistle or other device whenever neces- subrogation, has a lien on the property for resary as a warning of danger, but not at other payment of the price he paid. times or for other purposes.'

“Sec. 16. Rules for Operation of Vehicles Appeal from Sharp Chancery Court; Geo. on Public Highways. (a) The driver or opera- T. Humphries, Chancellor. tor of any vehicle in or upon any public highway in this state, shall drive or operate such

Action by C. J. Buchanan against John W. vehicle in a careful manner with due regard for Thompson. From decree for plaintiff, dethe safety and convenience of pedestrians and fendant appeals. Affirmed. . all other vehicles or traffic upon such highway, and whenever practicable shall travel upon the

Sharp county, for the use of district school right-hand side of such highway. *

(k) The person in charge of any vehicle in or upon

and district road funds of said county, sued any public highway, before turning, stopping, or John W. Thompson, the ex-treasurer of changing the course of such vehicle, shall see Sharp county, for funds which it alleged

| first that there is sufficient space for such move- that he had failed to pay over. The county ment to be made in safety, and if the movement obtained judgment against him. Thompson's or operation of other vehicles may reasonably be affected by such turning, stopping or changing lands were sold to satisfy the judgment, and of course, shall give plainly visible or audible Buchanan was a purchaser at the sale, and signal to the person operating, driving or in charge of such vehicle of his intentions so to paid for the lands purchased by him the sum turn, stop or change said course. * *

* (m) of $1,525, which sum was credited on the Every motor vehicle, when moving along such judgment against Thompson in favor of the portions of the road where the curvature of the school and road districts of the county. road or highway prevents a clear view for a distance ahead of one hundred yards, shall be held Thompson afterwards instituted an action in under control, and the operator thereof in ap- the chancery court to set aside the sale, and proaching curves or sharp turns in the road succeeded in so doing. He also obtained an shall give a warning by his gong or other ade- order restraining the sheriff from making quate signaling device.

deeds to Buchanan, the purchaser at the Section 7, relating to signals, does not, i sale. it will be seen from reading the section, im- Buchanan then brought this action against pose an absolute duty to give the signal under Thompson and Sharp county, setting up in

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

[ocr errors]

his complaint the above facts, and asking, of this record. Here the undisputed evifor judgment in that sum, $1,525, with in- dence shows, and it is admitted, that the terest (6 per cent.), and that he bę subro- amount paid by the appellee on his purchase gated to the judgment lien in favor of the went pro tanto to satisfy the judgment in road and school districts against Thompson. favor of the county against the appellant. Thompson filed a general demurrer to the The county is not complaining that the full complaint, and also answered, denying the amount of its judgment has not been paid, material allegations. Upon a trial of the and the appellee was not liable, either origmerits the court found that the lands be- inally or as a surety, for the amount of the longing to Thompson were levied upon and judgment which was rendered in favor of sold on a void execution, and that Buchanan the county against the appellant. was not a party to the original suit in which [1] The court found that the sale was the judgment was rendered against Thomp-void, but the appellee, nevertheless, had purson, but was a purchaser of the lands at the chased at the sale, paid out his money, which sale under an execution issued on such judg- the county had received, and by virtue of ment; that the sale was void; that Buchan- this payment appellant had received a credit an paid the sum of $1,525 to the county, on his judgment to the amount of this paywhich was credited on the amounts due on ment. The record shows that the cause was the judgment that had been rendered in heard upon oral testimony, and that has not favor of Sharp county against Thompson, been abstracted by the appellant. Therefore as alleged in the complaint. The court fur- it will be presumed, in favor of the finding ther found that the liability of Thompson, of the trial court, that the evidence showed upon which judgment had been rendered that the appellee purchased in good faith. against him in the circuit court, was for a The judgment in favor of the county was a trust fund; that Sharp county, as the orig- lien upon appellant's land, and the money inal creditor, for the use of the road and paid by the appellee reduced the debt, and school districts, had a lien by virtue of the relieved appellant to that extent. In Meher judgment. The court then rendered a de- v. Cole, 50 Ark. 365, 7 S. W. 452, 7 Am. St. cree in favor of Buchanan against Thompson Rep. 101, we said: in the sum of $1,525, with interest, and de- “We entertain no doubt but that one, whose creed that he should be subrogated to all bid at a void judicial or execution sale disthe rights of Sharp county in the lands, charges an incumbrance on the land, can have

restitution to the extent of the lien discharged which were described in the decree, and before the defendant in the void proceeding, ordered that the same be sold, unless the or his heirs, can recover the lands so purchased judgment was satisfied within 90 days. by him, if his purchase is made in good faith, From that decree is this appeal.

under the belief that he is acquiring the title.”

[2] The doctrine of subrogation rests upon Appellant, pro se. David L. King, of

the natural principle of equity and justice. Hardy, for appellee.

Appellee having purchased under the honest

belief that he was getting the property sold, WOOD, J. (after stating the facts as and his money having been applied for the above). It was shown that the county ob- benefit of the appellant in paying his debt tained judgment against the appellant in and removing pro tanto the lien that was the sum of $2,653.18. The appellant contends upon the property, it would be highly inequithat the appellee was not entitled to subro-| table and against good conscience to permit gation until he had shown that he had fully appellant to hold his property free from any satisfied the judgment in favor of the county lien of the appellee, while at the same time against appellant, citing a line of cases which enjoying the full benefit of the payment. hold that a surety, or one originally liable for Such was the doctrine announced by this the debt, a portion of which he has paid, court in the case of Cowling v. Britt, 114 cannot be subrogated for the amounts So Ark. 175, 169 S. W. 783, and it is exceedingly paid to the rights of the creditor unless the applicable here. debt has been fully paid. But the above

The decree is in all things correct, and is doctrine can have no application to the facts affirmed.

(136 Ark. 623)

had an interest therein which was subject BARR et al. v. PARKINSON TRENT MER- to attachment. Certain preliminary pleadCANTILE CO. (No. 12.)

ings were filed, which we need not consider (Supreme Court of Arkansas. May 27, 1918.) under our view of the testimony in the case. 1. FRAUDULENT CONVEYANCES On95(1)-Hus

The decisive question in the case is whether BAND AND WIFE-GARNISHMENT.

or not J. J. Barr had any interest in the land Where an insolvent, without being paid any or the proceeds of the sale thereof which thing, therefor, conveyed to his wife his valuable interest in land, which they owned jointly, might be subjected to the payment of his and she then joined in her deed of it as security debt. The land attached consists of 462.59 for a loan to pay their grantor the balance of

acres on Arbuckle Island in Sebastian the purchase price due him, and she then sold it, her husband had an interest in the purchase county. J. J. Barr contracted to purchase money coming from those to whom she sold, the farm from B. M. Woodruff on March 18, which was subject to garnishment in their hands 1912, at $35 per acre, and while the contract by his creditors. 2. APPEAL AND ERBOR Cw173(2)—CLAIM Not J. J. Barr and his wife, the testimony shows

for this purchase recites that it was sold to RAISED BELOW.

Claim of homestead, not raised by pleadings that she never incurred any obligation on or proof below, is not available on appeal. account of its purchase, and the contract was Appeal from

from Circuit Court, Sebastian executed by J. J. Barr alone. County ; Paul Little, Judge.

The parties to this contract of purchase Action by the Parkinson Trent Mercan- appear to have treated Mrs. Barr as owning tile Company against J. J. Barr, his wife, an equal interest in the farm with her husI. J. Barr, intervening. Judgment for plain-band, and it was contemplated that the farm tiff, and defendant and intervener appeal. would be paid for in five years. In addition Affirmed.'

to the cash payment, a portion of which was Oglesby, Cravens & Oglesby, of Ft Smith, advanced by Mrs. Barr, all the rents for for appellants. Geo. W. Dodd, of Ft. Smith, the period of five years were to be applied to for appellee.

the discharge of the purchase money.

No

payments were made except the appropriaSMITH, J. Appellee was plaintiff below, tion of the rents, and an attempt was made to and brought suit against J. J. Barr upon sell the farm to McDougal, who declined to a promissory note, and obtained attachment purchase but who did agree to loan enough against him as a nonresident. Garnishment money to pay the purchase money and other was issued, in which I. F. Wright and Mrs. indebtedness against the place. This loan was 1. F. Wright were summoned to answer. secured by the deed above referred to. J. J. The writ of attachment was levied upon Barr left the farm in May, 1915, but Mrs. certain real estate which had been conveyed Barr remained there until the deal with Mcby J. J. Barr and I. J. Barr, his wife, to

Dougal was made. The sale of the land D. A. McDougal and by McDougal sold and

was negotiated by Mrs. Barr to I. F. Wright conveyed to I. F. Wright, the garnishee.

on August 2, 1917, for the recited consideraThe conveyance to McDougal was a deed in ion of $26,500, at which time there was due form, but, as it was intended to secure the McDougal the sum of $20,085.64. The nepayment of money, it was a mortgage in fact. gotiations were conducted and the transacHowever, none of the parties now question tion closed by Mrs. Barr, although J. J. the sufficiency or effect of that conveyance. Barr joined with his wife in the execution The garnishees answered that they had not of the deed to Wright. had any dealings with J. J. Barr, and were

The court expressly found the fact to be not indebted to him, but that they had, on that J. J. Barr was the owner of an undividAugust 2, 1917, contracted with McDougal ed half interest in the lands levied upon, and I. J. Barr for the purchase of the lands and that the garnishees were indebted to levied upon under the attachment writ, for which they agreed to pay $26,500, none of Barr and his wife for the excess of the purwhich had been paid at the time the writ was

chase money over the mortgage indebtedness served, and that they were not advised what due McDougal. The court found that the inpart, if any, of the purchase money was due terplea of Mrs. Barr was not sustained by and owing to I. J. Barr, and that they were the evidence, and thąt she was not the sole not otherwise indebted to her. I. J. Barr owner of the equity of redemption in the filed an interplea, in which she alleged that lands, and rendered judgment against J. the lands in question were not the property J. Barr for the amount of the note sued on. of J. J. Barr, her husband, but that the legal | The court also specifically found that the title thereto was in McDougal, and that she grounds of attachment were true, and sus

The note sued on had an equity of redemption in them which tained the attachment. was not liable to seizure under the attach had been executed in November, 1912, and ment issued. To this intervention a response antedated all of the transactions in relation was filed, alleging that the property attached to this land except the contract for its purwas the property of J. J. Barr, or that Barrchase by Barr and his wife from Woodruff ;

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the date of that contract being March 18, , Ark. 325, 55 S. W. 137, 48 L, R. A, 334, 77 1912.

Am. St. Rep. 116. Be that as it may, no Learned counsel for appellants earnestly reason exists why a garnishment should not insist that Mrs. Barr was the sole owner of have issued against the Wrights, and the this land, that she assumed the burden of court has found that one-half of the purchase paying for the land after her husband had money which the Wrights admit they owe ceased to make any effort to do so, and that was in fact due to Barr. The Wrights do the burdens which she then assumed repre not complain of this judgment, and we need sented the fair market value of the land only inquire whether the testimony supports at the time of the execution of the deed to the verdict. No attempt is made to set aside her from her husband, and that the enhanced the deed to McDougal or the conveyance value flowed from the improved agricultural from him to the Wrights, and the good faith conditions, due to the advanced price of cot- of those conveyances is conceded—at least ton and cotton seed; these being the crops is not questioned. cultivated on the land. The court, however, It is conceded that J. J. Barr is insolvent, has found otherwise, and we think the evi- and was insolvent at the time of the conveydence supports this finding. While McDougal ance to his wife, and the testimony warrants declined to purchase the land, he did in fact a finding that the conveyance from Barr to negotiate a loan to Barr and his wife for his wife was in fraud of his creditors. It the full amount of the outstanding indebted- is not shown that Mrs. Barr paid her husness, and the execution of this mortgage band anything for his interest, or that she represents the only real consideration ad- even assumed the payment of the purchasevanced by Mrs. Barr. This transaction would money debt due Woodruff. It is true she indicate that the land was worth more than did execute a deed to McDougal, which was the amount of the debt which Mrs. Barr intended to secure this debt, but her husassumed to pay by her mortgage to McDougal, band joined even in the execution of this as McDougal, who had not previously been deed. Barr had a valuable interest in the a party to the transaction, voluntarily loan- land, which he conveyed to his wife in fraud ed that sum of money with no security ex- of his creditors according to the finding of cept the land, and the land has now been the court. But this conveyance its not callsold at an advance of something more than ed into question. $6,000 above this purchase price.

By the garnishment proceeding a creditor McDougal is not a party to this litigation, seeks to impound a portion of the purchase yet he appears to be the principal witness, money which the court below found was due and all parties concede that he is first en- to Barr, and we know of no reason why that titled to the repayment of his money.

He

debt was not properly subject to garnishtestified that when he first discussed the pur

ment. chase of this land with Mrs. Barr, she then

[2] Appellant argues that a portion of the had no deed from her husband, although she

land in question ,constituted Mrs. Barr's claimed to own it, and the deed from Barr homestead, and that the value of the hometo his wife, which was executed on August stead interest is not subject either to attach30, 1916, was not recorded until November 24, 1916, which was after the execution of ment or to garnishment. This contention is

disposed of by saying that no such issue was the contract between McDougal and Mrs. Barr. There was a judgment against the raised either by the pleadings or the proof Wrights on their answer in the garnishment, ing that Barr was a nonresident of the state,

in the court below. Indeed, the court's findand no appeal from that order has been pray- and that his interest in the property was ed or prosecuted. Upon the contrary, they paid into the court below a sum sufficient to subject to attachment as such, would indidischarge the judgment. This was done in cate, if such issue were presented, that no

But, at any response to a motion filed by the interplead- right of homestead existed. er, and this payment, by the terms of the rate, as was said in the case of James v. court's order, was made to operate as a Mallory, 76 Ark. 509, 89 S. W. 472, the tessupersedeas of the judgment pending the dis- timony is too vague to base a finding upon position of the interpleader's appeal to this that the land was a homestead, and, if that court.

fact had been relied upon, direct proof should [1] Appellants insist that the land was not have been introduced tending to establish it. subject to attachment, and rely upon the case Finding no error in the decree of the court of Doster V. Manistee National Bank, 67 below, the same is affirmed.

.

« 이전계속 »