appellee moved to dismiss the interplea of YOES v. COMMERCIAL BANK OF ALMA. the appellant on the ground that the justice (No. 216.) (Supreme Court of Arkansas. March 11, 1918.) had no jurisdiction. The circuit court sustained the motion, dismissed appellee's complaint, and the cause was appealed to this court, and the judgment of the circuit court was reversed. This court held that the justice of the peace had jurisdiction. The cause was remanded to the circuit court for further proceedings. After the cause was remanded Gilliam Yoes filed a separate answer in which he denied specifically all the allegations of appellee's complaint, and set up that: Where a bank brought garnishment to recover the value of a part of a cotton crop under a chattel mortgage given to it by one who purported to be the landlord of the tenant who raised and sold the crop, depositing the proceeds with the garnishee, and another intervened, claiming to be the true landlord, and therefore time that the cotton crop of Monds' was plant"One W. C. Yoes is now, and was at the entitled to the rents, evidence held to sustained, grown, and gathered, the owner of the land a finding that plaintiff's mortgagor was in possession, and therefore entitled to mortgage the upon which the crop was grown, and was enti crop. tled to the rents." Upon the issue thus raised evidence was Appeal from Circuit Court, Crawford Coun- adduced by the respective parties. The apty; James Cochran, Judge. Action before a justice of the peace by the Commercial Bank of Alma against Charles Monds and another, wherein W. C. Yoes intervened. On a judgment dismissing the interplea there was a trial de novo in the circuit court wherein appellee's complaint was' dismissed, whereupon it appealed, and the judgment of the circuit court was reversed and remanded. On trial after remand there was a judgment for plaintiff, and intervener appeals. Affirmed. This action was begun by the appellee against Charles Monds and Gilliam C. Yoes in the justice of the peace court in Crawford county. Appellee alleged that it was the special owner of one-fourth of a crop of cotton valued at $60 which was raised on the farm of one L. T. Farmer in Crawford county, commonly known as the W. C. Yoes place; that it was the owner of the cotton by virtue of a chattel mortgage executed by Farmer; that Monds had sold a part of the cotton, and thus converted the same to his own use, and Gilliam Yoes claimed to have some interest in the same; that Monds was the tenant of Farmer. There was a garnishment issued against the Bank of Alma. W. C. Yoes intervened in the justice court, and claimed that he was the owner in fee; that Monds was a tenant on the place, and raised a crop of cotton and had sold a portion of the same, placing the proceeds thereof in the Bank of Alma to pay his rent on the land. Appellant set up that he was in open and adverse possession of the premises, and had the right to the rent from said land, and that the same had been deposited by Monds in the bank for the use of appellant. He prayed that appellee's action be dismissed, and that the garnishee be released. The cause was tried in the justice court, and the interplea of appellant was dismissed, and the garnishee directed to pay over the money. On appeal to the circuit court the pellee introduced a copy of its mortgage, Farmer testified that he entered into possession of the land contracted for in the written contract and rented the land to Charles Monds; that W. C. Yoes had nothing to do with any of the property; that nothing was said about his tenants becoming the tenants of Yoes in case witness failed to make the payment on the land. Witness placed Monds in possession, and Monds was to pay the rent to witness. Witness never surrendered possession of the land to Yoes. Yoes had no contract with Monds for an interest in the rents that Monds was to pay witness. Gilliam Yoes was called as a witness for the appellee. He conducted the negotiations For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes for W. C. Yoes out of which the written contract between Yoes and Farmer was executed. He identified the contract. He stated that the rent that went into the Bank of Alma was from the crop raised on the farm described in the written contract between W. C. Yoes and L. T. Farmer. On cross-examination he stated that the sale mentioned in the contract between W. C. Yoes and L. T. Farmer was never consummated. Farmer never offered any payment, and no papers were executed except the memorandum in evidence. Farmer never resided on the land. Farmer and witness together were looking after the place and renting it. Witness told Farmer that if he found a good renter before witness did to put him on the place. Witness knew by June 1st that Farmer was not going to close the contract for the purchase of the land, and witness told the renters that they were witness' renters. Witness told Farmer to find a renter, and it would be satisfactory to witness whether witness sold the place to Farmer or not. That was all the possession that Farmer had. Farmer put Monds on the place. Witness made no objection to Monds because he wanted a renter on the place. Witness went upon the land all the time and talked with the tenants with reference to the crops from the time they went on it and dealt with them with reference to the crop all during the sea son. Witness further testified on redirect examination that a man by the name of Brooks and some one else rented the gin and sawmill. They rented from Farmer. The contracts with Brooks and Monds were in writing. Witness did not sign them, but told them that he would if they thought it was necessary, but they did not think it necessary. Witness did not collect any rent out of the sawmill and gin. Witness put Farmer in possession of the mill and gin and told him to make some money out of it for himself and witness. Witness told Farmer that, if he could make the first $1,000 payment, they would draw up the papers, but Farmer kept putting witness off, and never drew up any papers at all. Witness further testified that he was to have the rents unless Farmer made the $1,000 payment. Farmer did take charge of the place and run the sawmill and gin, but the gin was not used until witness started to oust Farmer. Farmer never lived on the land, and never had any crop on it. Written contracts were introduced between Farmer and Brooks which show that Farmer had rented to Brooks the gin on the place for the year 1914. Upon the above issues and testimony the court found for the appellee, and entered judgment dismissing the appellant's interplea, from which he prosecutes this appeal. E. L. Matlock, of Van Buren, for appellant. WOOD, J. (after stating the facts as above). [1] On the former appeal in this cause from a judgment dismissing the appellee's complaint we said: "The court erred in dismissing the plaintiff's complaint, for the title of real estate was not involved in the action, which is simply one for the recovery of the value of the cotton and involved only the title of personal property. If there was any question in the case as to title and occupancy of the land, it was only incidental to the main issue and related only to the status of the parties, and did not raise any question as to jurisdiction to determine the title to the real estate." The learned counsel for the appellant insists that appellant is the true owner of the land, and has the right to dispute the title of Farmer to the land upon which the cotton was grown, and is entitled to question the right of Farmer or his assignees to the rent out of the cotton grown on the appellant's land by Monds and to set up the ownership of the land as against the assignees of Farmer. This contention cannot be sustained for the reason that under the pleadings and the evidence neither the title nor the right of possession in Farmer at the time he rented the land to Monds is in issue here. [2] The evidence tended to show that Farmer was in possession of the land under a written contract to purchase the same, and that he went into possession of the land under this contract and rented the same to Monds. Whether or not Farmer at the time he rented the land to Monds had the title to the land we cannot inquire under our former decision. Nor could we inquire as to his right to the possession of the land if such right were an issue, but under the undisputed evidence his right to the possession at the time he rented the lands to Monds is not in issue in this proceeding. Neither the pleadings nor the proof raises that issue. The testimony of both Farmer and Gilliam Yoes, who conducted the negotiations for W. C. Yoes, tended to show that Farmer went into possession under the written contract. True, Yoes testified that Farmer never resided on the land, but that does not show that he did not take possession, and Yoes positively testified he put Farmer in possession of the gin and sawmill and told him to make some money out of it for both of them, and that Farmer made the contracts with the other parties, and that he told Farmer that if he found a good renter to put him on the place and that would be satisfactory with Yoes, if he sold him the place or if he did not sell it to him. Thus the fact of Farmer's possession of the land is established, as we take it, by the evidence. It cannot be said that there was no substantial evidence to warrant a finding on the part of the trial court that Farmer had possession at the time he rented the land to Yoes, and this is as far as the court could properly go. Such being the case, the court gave the check for her baggage to an expressman, and when her trunk was delivered to her she discovered that the lock to it had been torn loose and its contents rifled. The diamond ring was missing, and was worth $300. The trunk was in good condition when she find, that Farmer was the landlord of Monds, [on the afternoon of February 24, 1917. She and had the right as such to mortgage his interest in the crop grown by Monds to the appellee. Having found that the relation of landlord and tenant existed between Monds and Farmer, it follows as a matter of law that Monds could not pay the rents to the appellant, Yoes, and that appellee, as the as-delivered it at the station in New Orleans signee of the landlord, Farmer, was entitled to his interest in the crops or the proceeds of the same as rent for the land. on the return trip. One of the grounds of appellant's defense was that it was prohibited from carrying as The judgment of the court is therefore baggage the diamond finger ring. To support correct, and is affirmed. BUSH v. BEAUCHAMP. (No. 181.) (Supreme Court of Arkansas. Feb. 25, 1918.) 1. CARRIERS 387-BAGGAGE-CONTRACT. The contract to carry baggage is an incident to the contract to carry the passenger. 2. CARRIERS TIONS. that defense it introduced a regulation which it had filed with the Interstate Commerce Commission, as follows: "Rule 1. (a) Personal baggage consists of wearing apparel, toilet articles and similar effects in actual use, and necessary and appropriate for the wear, use, comfort, and convenience 391-"BAGGAGE"-REGULA- sale." of the passenger for the purpose of the journey, and not intended for other persons, nor for (b) Money, jewelry, negotiable paper, and like Jewelry is "baggage," and an interstate car- valuable, fragile, or perishable articles should rier cannot make it otherwise by rules and regu-not be inclosed in baggage to be checked. The lations filed with the Commerce Commission, carriers issuing and concurring in this tariff although it can properly limit the amount of will not be responsible for such articles in bagits liability, and is only liable up to such limit gage nor for damages caused by same." where excess value is not declared and paid for, under Kirby's Dig. § 6615, defining "baggage." [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Baggage.] 3. CARRIERS 406-BAGGAGE-CONNECTING CARRIERS-LIABILITY OF CONNECTING CAB RIER. A carrier selling a through round-trip ticket, including passage over other lines, is liable for loss of baggage on the other lines on the return trip, although the ticket provided that such carrier was only agent for the other lines. Appeal from Circuit Court, Pulaski County; G. W. Hendricks, Judge. Action by Alma Beauchamp against B. F. Bush, receiver of the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed. The schedule filed with the Interstate Commerce Commission also contained a provision limiting the free transportation of baggage to 150 pounds and the liability of the railway company to $100. The case was tried before the court sitting as a jury. The court found for appellee in the sum of $100, and from the judgment rendered this appeal is prosecuted. E. B. Kinsworthy and W. G. Riddick, both of Little Rock, for appellant. June P. Wooten, of Little Rock, for appellee. HART, J. (after stating the facts as above). [1] The contract to carry the baggage is an incident to the contract to carry the passenger. Railway Co. v. Berry, 60 Ark. Appellee sued appellant to recover dam- 433, 30 S. W. 764, 28 L. R. A. 501, 46 Am. St. ages for the loss of part of her baggage while Rep. 212, and Kansas City, F. S. & M. R. in appellant's possession for transportation. Co. v. McGahey, 63 Ark. 344, 38 S. W. 659, On February 13, 1917, appellee purchased 36 L. R. A. 781, 58 Am. St. Rep. 111. Coun from appellant a first-class railroad ticket en- sel for appellant concedes this to be true, but titling her and her baggage to transportation insists that under the regulations filed by the over appellant's line of railroad and that of railroad company with the Interstate Comthe Illinois Central Railroad Company from merce Commission that it was not allowed to Little Rock, Ark., to New Orleans, La., via carry the diamond ring as baggage. They Memphis, Tenn., and the transportation of rely on the case of Boston & Maine R. v. herself and baggage on the return trip over Hooker, 233 U. S. 97, 34 Sup. Ct. 526, 58 L. the same route. Appellee delivered her trunk Ed. 868, L. R. A. 1915B, 450, Ann. Cas. containing wearing apparel and a diamond 1915D, 593. In that case the railroad comparing, intended for her personal use while in ny had filed with the Interstate Commerce New Orleans. The trunk was transported Commission the schedule of its fares and to New Orleans, and delivered to her there. charges for the transportation of passengers She wore the diamond ring on various oc- in interstate commerce. The schedule concasions while there, and on the 23d day of tained a provision limiting the free transporFebruary, 1917, delivered her trunk, contain- tation of baggage to a certain weight and ing her wearing apparel and the diamond the liability of the railroad company to $100, ring, to the Illinois Central Railroad Compa- followed by a table of charges for excess ny at New Orleans to be transported to Lit- weight and for excess value. The court tle Rock. Appellee arrived at Little Rock held that the limitation of liability of car For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes riers for passenger's baggage is covered by | pany acts only as agent, and is not responsible the Interstate Commerce Act, and that the beyond its own lines." Carmack Amendment to the Hepburn Act (Act Cong. Feb. 4, 1887, c. 104, § 20, 24 Stat. 386, as amended by Act Cong. June 29, 1906, c. 3591, § 7, pars. 11, 12, 34 Stat. 595 [U. S. Comp. St. 1916, §§ 8604a, 8604aa]) applies thereto as well as to liability for shipments of freight. Appellee purchased a round-trip ticket from appellant. Inasmuch as the carriage of baggage is considered as an incident to the contract for the carriage of its owner, a through contract for the transportation of the passenger over several connecting lines is a through contract for the carriage of his [2] The court further held that a provision baggage and the initial company, in the abin a tariff schedule that the passenger must sence of any valid limitation, may be held declare the value of his baggage and pay ex- liable for the loss or destruction of the bagcess charges for the excess liability over the gage on any of the lines. 4 Elliott on Railstated value to be carried free is a regulation roads (2d Ed.) 1658, and cases cited. When within the meaning of the Interstate Com- the trunks were committed to the custody merce Commission Act, and as such is suffi- of the appellant's baggagemaster, the comcient to give the shipper notice of the limita-pany assumed the obligation of its carriage. tion. We do not think that case is control- From the very nature of the transaction apling here. We have in this state a statute defining what shall be considered as baggage. Kirby's Digest, § 6615. Besides, the term "baggage" has a meaning which is generally recognized. pellee could not exercise any further personal oversight of it on the route, nor make any examination at the terminus of each road to ascertain whether or not her trunk was being carried. Appellant knew that the In Chicago, Rock Island & Pac. Ry. Co. v. trunk would be delivered to appellee when Whitten, 90 Ark. 462, 119 S. W. 835, 21 Ann. she arrived at New Orleans, and that she Cas. 726, the court held that "baggage" may would deliver the trunk to the Illinois Cenbe defined as whatever a passenger takes tral Railroad Company when she returned with him for his own personal use and con- to Little Rock. This course must have been venience, according to the habits or wants of necessarily in the contemplation of the parthe particular class to which he belongs, ei-ties. This is not the case of the purchase of ther with reference to the immediate necessi ties or the ultimate necessities of his journey. This rule has been universally sustained by various courts of the country. that the passenger would get on and off the a coupon ticket where it might be assumed train several times during the progress of trouble and expense of loading and unloadhis journey, and thus put the carrier to the ing his trunk several times before he reach In St. Louis, Iron Mountain & So. Ry. Co. v. Miller, 103 Ark. 37, 145 S. W. 889, 39 L. R. A. (N. S.) 634, we held that a gold locketed his destination. Here the appellee purand chain for the personal use and conven- chased a through ticket from Little Rock to ience of the passenger on the journey was New Orleans and return. As above stated, baggage. Mr. Hutchinson says that a woit must have been in contemplation of the man's jewelry and every article pertaining parties that the trunk would be delivered to to her wardrobe that may be necessary and appellee at New Orleans, and that she would convenient to her in traveling is included in deliver it into the custody of the carriers for the term "baggage." Hutchinson on Carriers (3d Ed.) vol. 3, § 1246; Hasbrouck v. Rail- brings the case squarely within the rule of transportation on her return trip. road Co., 202 N. Y. 363, 95 N. E. 808, 35 L. Gomm v. Oregon R. & Navigation Co., 52 R. A. (N. S.) 537, Ann. Cas. 1912D, 1150. In- Wash. 685, 101 Pac. 361, 25 L. R. A. (N. S.) asmuch as the term "baggage" has a general-537. Besides, we think under the act of ly recognized meaning, we do not think that the carrier can by rules and regulations limit its meaning so as to exclude articles which are usually included in the generally accepted meaning of the term. [3] It is next contended by counsel for appellant that it cannot be held liable for the loss because it occurred on the return trip. The proof shows that the trunk on the return trip was carried over the Illinois Central Railroad Company from New Orleans to Memphis, and over the Chicago, Rock Island & Pacific Railway Company from Memphis to Little Rock. The ticket issued to the appellee contained a printed provision as fol lows: This Congress of June 29, 1906, known as the Carmack Amendment to the Interstate Commerce Act of 1887, a carrier receiving baggage for transportation to a point in another state beyond its own line is liable for its loss occurring upon the lines of a connecting carrier. Boston & Maine R. v. Hooker, supra. See, also, House v. Chicago Northwestern Ry. Co., 30 S. D. 321, 138 N. W. 809, Ann. Cas. 1915C, 1045. The facts in the record bring this case within the rule announced in Boston & Maine R. v. Hooker, supra, as regards the limitation of value, and the court properly rendered judgment against appellant for only $100. It follows that the judgment will be af "In selling this ticket for passage over other lines and in checking baggage on it, this com-firmed. ABBOTT v. KENNEDY. (No. 178.) (Supreme Court of Arkansas. Feb. 25, 1918.) 1. APPEAL AND ERROR 697(3)-RECORD ON APPEAL-BILL OF EXCEPTIONS. In an action on a promissory note, a bill of exceptions on appeal held sufficient to carry the inference that it contained all the evidence. 2. EVIDENCE 444(6) PAROL EVIDENCE VARYING WRITTEN INSTRUMENTS. In an action on a promissory note, the exe cution of which was admitted by maker, oral evidence that it was delivered on condition that no payment should be required in case certain shares of stock for which it was given failed to pay dividends was inadmissible, as varying the terms of a written instrument. Appeal from Circuit Court, Sebastian County; Paul Little, Judge. Action by Mrs. S. H. Abbott against Allen Kennedy. Judgment for defendant, and plaintiff appeals. Reversed and rendered. deposition of Miss Vogel; then follows the recital, "Plaintiff's rebuttal testimony." The bill then recites as follows: "Mr. Hardin: I will now offer Mr. Abbott's testimony in rebuttal. (Objected to; objection sustained; exception saved.) "Court: Let the record show that plaintiff moves for a peremptory instruction. Motion the court for a peremptory instruction. Motion overruled. Exception saved. Defendant moves for the defendant. Plaintiff's exceptions saved." sustained, and the jury directed to find a verdict Here follows motion for new trial. Then follows the recital: Twelfth circuit of Arkansas, hereby certify that "I, Guy E. Williams, official reporter for the the above and foregoing is a true and correct transcript of the evidence, exceptions thereto, motion for new trial, and decisions of the court." Then follows the certificate of the trial judge, concluding as follows: "Now comes plaintiff, and presents his true bill of exceptions in this cause, and asks that the same be signed, sealed, and made a part of the record, which is accordingly done, this the 17th day of August, 1917. [Signed] Paul Little, Circuit Judge 12th Circuit." This appeal seeks to reverse the judgment based upon a directed verdict; one of the assignments of error being that "the verdict is contrary to the evidence," and another that "the court erred in giving peremptory instructions for the defendant." [1] In order to make the error of the court appear, it is necessary that the appellant present here a bill of exceptions which either shows by express statement that it contains all the testimony that was adduced at the trial, or it must contain statements from which it appears "inferentially and by natural implication" that it contains all the evi Appellant sued appellee on a note of $1,000 executed by appellee to S. H. Abbott on November 18, 1911, due one year from date. Appellant alleged that the note had been assigned to her for value before maturity in due course of trade. Appellee answered, admitting execution of the note, but denied that it had been assigned to the appellant in due course of trade for value before maturity, and said that he had bought some corporation stock from S. H. Abbott, in part payment of which he had given this note, and that it was understood and agreed at the time that the note was executed and delivered to Abbott that the note would only be paid from dividends earned by the stock which he had bought from Abbott, and if the stock for which the note was executed earned no divi-dence. See Leggett v. Grimmett, 36 Ark. dends then the note was not to be paid. He alleged that the stock had earned no dividends. The case was tried before a jury, and at the conclusion of the testimony appellant asked for a peremptory instruction, which was denied, and the appellee asked for a peremptory instruction which was granted. From a judgment in favor of the appellee this appeal has been duly prosecuted. G. C. & Joe Hardin, of Ft. Smith, for appellant. Hill, Fitzhugh & Brizzolara, of Ft. Smith, for appellee. WOOD, J. (after stating the facts as above). 1. Appellee insists that the bill of exceptions does not affirmatively show that it contains all the evidence. The bill of exceptions, after reciting that the cause came on to be heard for trial before a jury, contains the following: "Whereupon the plaintiff, in order to maintain the issues upon her part, introduced the following testimony, to wit." Then follows the testimony; then the recital, "plaintiff rests;" after this the recital, "The defendant offers in evidence the following;" then follows the testimony given by the defendant, the last in order being a 497; Overman v. State, 49 Ark. 364, 5 S. W. 588; Mitchell v. Young, 80 Ark. 441, 97 S. W. 454, 7 L. R. A. (N. S.) 221, 117 Am. St. Rep. 89, 10 Ann. Cas. 423; Walker v. Noll, 92 Ark. 148, 122 S. W. 488; Roberts Cotton Oil Co. v. Grady, 105 Ark. 53, 150 S. W. 150. While there is no express statement in this bill of exceptions that it contains all the evidence, yet such should be inferred from its general tenor. True, there is no express statement at the conclusion of the testimony adduced by the defendant and set forth in the bill of exceptions, "that the defendant rests," but following this testimony there is this recital, "Plaintiff's rebuttal testimony," and a recital showing that "the plaintiff offered testimony in rebuttal," to which there was objection, and which objection was sustained. Then a recital that "Plaintiff moves for peremptory instruction," and a further recital that the "Defendant moves for peremptory instruction," which motion was sustained, and "the jury was directed to find a verdict for the defendant." Now, in the regular and orderly progress of the trial plaintiff could not have introduced her rebuttal testimony until the defendant had closed his testimony and rested, so the recitals at the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |