페이지 이미지
PDF
ePub

the event appellant's bill was not dismissed, I complaint. She set up substantially the her husband, W. G. Pannell, be made a facts stated above, and asked that a lien be party, and that she be decreed a reason- declared against the lot for her support and able sum against him for maintenance and alimony, including the taxes paid by her and support, together with a reasonable attor- the sum of $1,000 paid by her on her husney's fee, and that a lien be declared against band's debts, and that the lot be sold to the lot in question for support and alimony satisfy her lien. and for taxes paid upon said lot, and for the sum of $1,000 paid by appellee upon his debts, and that the lot be sold to satisfy the lien. She also prayed for general relief. The motion to make her husband, W. G. Pannell, a party, was overruled. No answer was filed by appellant to appellee's cross-bill. Under the issues joined, it was technical error to render a decree quieting the title to said lot in appellee, Mrs. S. A. Pannell, as against appellant.

[blocks in formation]

W. G. Pannell and his wife lived in Arkadelphia, Ark., and in 1897, without cause,

the husband deserted his wife and their three minor children. Since that time he

The court found the issues in favor of Mrs. Pannell. It was decreed that the plaintiff's complaint be dismissed for want of equity, and there was a decree in her favor, quieting and confirming the title in her.

I am of the opinion that the court was right in dismissing the complaint. of the plaintiff, but also believe that its decree was too broad with respect to the cross-complaint. The chancellor should have allowed her the relief prayed for in her cross-complaint. Under the facts stated, the wife had a clear-cut case for alimony, and also the right for reimbursement for the payment of her husband's, debts.

Of course, a wife does not ordinarily stand in the relation of a creditor to her husband,

and therefore cannot set aside a conveyance made by him of his property as a fraud against his creditors. But when the interest in the subject changes, a different rule prehis wife and minor children, the wife has vails. When the husband willfully deserts a right to institute an independent suit for alimony. Wood v. Wood, 54 Ark. 172, 15 S. W. 459, and Horton v. Horton, 75 Ark. 22, 86 S. W. 824, 5 Ann. Cas. 91.

Upon the institution of such a suit, the The wife, as a special creditor of her huswife becomes a creditor of her husband. band, is within the protection of the statute against fraudulent conveyance, and may proceed according to its provisions. On a proper showing of the fraud, the conveyance will be set aside, and the property of the husband will be declared subject to the decree for maintenance, or alimony. Nelson on Divorce and Separation, vol. 2, § 938.

has continuously absented himself from her and the children. When he deserted her, he converted all of his available assets into cash and carried away about $1,000 in money. He left debts to the extent of $1,000. He also owned the lot in controversy, on which was located a blacksmith's shop. To prevent the lot from being sold for her husband's debts, Mrs. Pannell paid off his debts and took possession of the lot. She has had possession of it ever since. When he deserted his wife, W. G. Pannell left the state, and has contributed nothing to the support of his family since. In September, 1920, Pannell temporarily returned to Arkadel- In 19 C. J. § 734, p. 318, it is said that a phia and sold the lot to Thos. N. Wilson for conveyance made by the husband in antici$500. He executed a quitclaim deed to Wil-pation of his wife's suit for divorce and to son. Wilson knew that Pannell and his wife prevent her from recovering alimony is had separated and were not living together fraudulent, and may be set aside, unless the when he purchased the lot. It is also in-purchaser take without notice and for value. ferable that he knew that Pannell had deserted her and the children. When Pannell deserted his wife, he went to Oklahoma City with another woman. The present value of the lot is estimated from $1,500 to $3,000. The lot in controversy is located on one of the business streets of Arkadelphia, and Wilson knew that Mrs. Pannell was in possession of it when he bought it. Wilson brought this suit against Mrs. Pannell, alleging that she was claiming title to the lot without right, that her claim constituted a cloud upon his title, and asked that his title to the lot be quieted.

Where a husband willfully deserts his wife and refuses to support her and his minor children, he knows she is likely to become his creditor, with the right to attack a fraudulent conveyance of his property as being against her marital interests.

In Harrington v. Johnson, 7 Colo. App. 483, 44 Pac. 368, the Court of Appeals of Colorado said that on this point the better authorities agree, and several cases are cited in support of the doctrine.

In De Ruiter v. De Ruiter, 28 Ind. App. 9, 62 N. E. 100, 91 Am. St. Rep. 107, the Appellate Court of Indiana, in a suit by the Mrs. Pannell filed an answer and cross- wife for divorce and to recover alimony,

(232 S.W.)

held that she is a present and continuous shows that Wilson knew of the separation creditor of her husband, and that on a prop- of Pannell and his wife, and that the huser showing of fraud the husband's convey- band had left the state and was not conance of his real property will be set aside. tributing anything to the support of his According to the principles announced in wife and minor children. Therefore he was that case, the wife may be either an actual not an innocent purchaser, and stood in no creditor or a subsequent creditor, or holder better attitude in this case than Pannell. of equities which afterwards ripen into a Hence the court properly dismissed his suit claim. In the instant case the husband made for want of equity. the conveyance after he had deserted his wife. He had no other property in the state. The lot in controversy was not worth more than $3,000, and it was the only property out of which she could enforce her claim for alimony and for reimbursement for the payment of her husband's debts. She had a right to pay his debts to prevent the lot in controversy from being sold at a sacrifice for the payment thereof, and thus deprive her of her lien on it for support and maintenance.

The appeal of Wilson brought up the whole case. The right of appellee to have Wilson's complaint dismissed depended upon her right to alimony and to be reimbursed for the $1,000 paid on her husband's debts. Hence the court should have heard her complaint and made her husband a party, so that the rights of all should be settled in one suit.

On cross-complaint the court should have decreed that the conveyance from Pannell to Wilson be set aside as in fraud of the Under our statute it is not necessary to wife's marital rights, and a lien should obtain judgment at law in order to main- have been declared on the lot to reimburse tain a suit to set aside a fraudulent con- Mrs. Pannell for the amount of her husveyance. Crawford & Moses' Digest, § 4880. | band's debts paid by her, and for whatever Section 4874 provides that every convey- amount of alimony the court should allow ance of real estate made to defraud creditors her. shall be void as against creditors and purchasers, prior and subsequent. The record

Therefore I respectfully dissent from the opinion of the court in this respect.

(192 Ky., 74)

CHESAPEAKE & 0. R. Co. v. PACK. (Court of Appeals of Kentucky. June 17, 1921.)

1. Carriers 284(1)-Conductor or other employee under duty to protect passengers from fellow passengers.

Ordinarily it is the duty of a conductor or other train operator to protect passengers from assault, insult, and abuse from fellow passengers.

2. Carriers 284 (2)-Conductor not under duty to assume from fact that officer had no warrant that arrest of passenger was unlawful.

It was not the duty of a railroad's conductor in the protection of a passenger arrested by an officer for inducing contract labor to leave the state, though he had information that the officer had no warrant, to assume from such fact that the arrest was unlawful, and that he was authorized or that it was his duty to prevent or protest against the arrest, or detention of the passenger, the railroad not being liable for his failure; to justify a conductor in interfering with a known officer in making an arrest on his train the case must be plain

and unmistakable.

Appeal from Circuit Court, Johnson County.

Action by Loe Pack against the Chesapeake & Ohio Railway Company. From judgment For plaintiff, defendant appeals. Reversed, with directions to grant defendant new trial. Worthington, Cochran, Browning & Reed, of Maysville, and Kirk & Kirk, of Paintsville, for appellant.

Wheeler & Wheeler, of Paintsville, for appellee.

TURNER, C. In December, 1916, the appellee was a resident of Burnwell, W. Va., and was there employed by a coal company. A short time before that the company by which he was employed received a letter from one Beals, at Garrett, in Floyd county, Ky., soliciting employment from the West Virginia coal company, and saying there were others at that place who wanted such employment and would come to West Virginia with him if the company would send the money for their transportation.

That company, instead of sending the money by mail, sent the appellee with it, and he arrived at Garrett about the middle of the day on the 14th of December. He saw Beals, who told him that he had changed his mind about going to West Virginia, but referred him to a negro laborer named Mingues, and it is apparent from the evidence that Pack, in connection with Mingues, arranged with 10 or 11 negro laborers to join him at the first station below Garrett on the early morning train the next day and proceed thence with him to West Virginia.

It is evident that the town authorities, as well as the officials of the coal company there operating, received information of Pack's purposes, and the next morning when Pack left on the train a deputy policeman and a deputy constable also boarded the train.

When the train reached the first station appellee went out either on the platform of the car or the platform of the station, and there found the negro laborers and handed to one of them $6 for the purpose of paying their fare down to the junction of the main Chesapeake & Ohio Road. The policeman saw him hand the money to the negro and saw the 11 negroes board the train, and shortly thereafter arrested them, all of whom were in the compartment provided for negro passengers, and then proceeded to another part of the train and arrested the appellee,

Pack.

For some reason, not clear from the evidence, the policeman proceeded from the white car with his prisoner, Pack, to the colored car, and on the way met the conductor of the train, and the conductor was then and there notified by the appellee that he was under arrest and that his arrest was

unlawful because the officer had no warrant

for him.

At the next station the 11 negroes and the appellee were taken from the train and told they would be taken back to Garrett, but, the appellee refusing to walk, they were again taken on the train and on down the road, and were some time that day taken back to Garrett or Wayland, where the appellee was placed in jail and subsequently fined.

This is an action by the appellee against the Chesapeake & Ohio Railway Company, which was operating the road, alleging, in substance, that while he was on the train as a passenger he was unlawfully and wrongfully assaulted and arrested and removed from the train by a person having no authority so to do, and that the wrongful arrest and removal were in the presence of the conductor operating and controlling the train, and that neither the conductor nor any other employé of defendant gave him protection from such unlawful arrest or removal and did not protest against the same and made no effort to prevent the same. He likewise alleges that he was wrongfully and forcibly, in the presence of the conductor and other trainmen, placed in the car prepared and used for colored passengers, and compelled to ride therein with the colored passengers without protest from the conductor.

The arresting officer, Clark, was a deputy policeman or marshal of the town of Wayland, a mining town very near to and practically a part of the town of Garrett, and he arrested appellee doubtless upon the theory that he, being a policeman of a town in that county, had authority to make an arrest at

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

(232 S.W.)

any place in the county, and upon the further | zen to interfere with or prevent a known
theory that, having seen appellee hand the officer from acting within the apparent
money to one of the negroes for the purpose of scope of his authority, would necessarily
paying their fare, the offense named in sec- tend not only to bring the law itself into dis-
tion 1349, Ky. Stats., of inducing persons repute, but to weaken its enforcement by
who have contracted to labor for a fixed pe- paralyzing, in a measure, the authority of an
riod to abandon such contract, had been com- officer of the law.
mitted in his presence.

Not only so, but to say that the conductor
It appears further from the record that of a railroad train owes such a duty to his
Wayland has an ordinance making it unlaw-passengers as that he, being in possession of
ful for one to solicit laborers therein without
first having secured a license.

The answer of the railway company was, in effect, only a traverse of the material allegations of the petition, and upon a trial in the circuit court the first time a verdict for $1,500 was returned against the defendant, but the court sustained the company's motion for a new trial, and thereafter another trial was had, and at that trial a verdict for $500 was returned for the plaintiff and a judgment was entered on that verdict, and, the trial court having refused the defendant a new trial, it has appealed.

In appellant's brief it is conceded that the evidence authorized the submission to the jury of the question whether appellee, with the knowledge of the conductor, was forced or permitted to ride in the compartment reserved for negro passengers, but it is earnestly urged that the evidence discloses no such state of case as authorized or made it the duty of the conductor to interfere, or attempt to interfere, with the arrest and detention of the appellee, or as authorized him to interpose any objection or protest against

such arrest or detention.

The evidence shows that the conductor knew that Clark was a marshal or policeman of the town of Wayland, and knew that the appellee had given money to the negroes with which to pay their fare, and knew that that was done in the presence of the officer. It further shows that the conductor was informed by appellee that the officer had no warrant for his arrest, and that appellee claimed he was unlawfully in the custody of the officer.

[1] Ordinarily it is the duty of a conductor or other train operative to protect passengers from assault, insult, and abuse from fellow passengers, but how far such conductor or passengers, but how far such conductor or train operative may be justified in interfering with the action of a known officer of the law in arresting and detaining a passenger, and under what circumstances he will be justified in such interference, presents an entirely different question.

It is of the utmost importance to the public that the criminal and penal laws of the commonwealth should be strictly enforced, and we know that primarily their enforcement depends upon the executive officers who have been chosen for that purpose; and any rule of law which would tend to lessen or weaken the authority of an officer of the law, or which would authorize or empower any citi

the facts, and knowing that one is an officer of the law, and knowing that the passenger has in the presence of the officer been guilty of certain things which the officer construes to have been the commission of an offense within his presence, had the authority, or that it was his duty, to step in and prevent the officer from arresting the passenger because in his opinion under the law he had no such authority, would be not only to clothe the conductor conductor with judicial power, but would place the administration of justice at the whim or caprice of a layman, and bring its administration quickly into disrepute and lessen the respect of the public for those who are charged with law enforcement.

In this case, before the conductor would have been authorized to interfere, it would have been necessary for him to have passed upon two questions of law with all the facts before him: (1) Did the officer, known by the conductor to be a policeman of the town of Wayland, in Floyd county, act within his authority in making an arrest outside of the town of Wayland, but in Floyd county? (2) Did the officer have authority to make the arrest without a warrant when a material part of a public offense denounced by statute in this state had been committed in the presence of the officer?

It is only necessary to state this proposition to show how utterly unwise and impracticable it would be to say that it was the duty of the conductor of a railroad train to pass upon such technical questions, and to exercise the authority, after having passed upon them, to interpose in the administration of the criminal and penal laws of the state.

152 Ky. 35, 153 S. W. 36, Ann. Cas. 1915B, In the case of L. & N. R. R. Co. v. Byrley, arrested the plaintiff by and with the consent 240, one claiming to be a railroad detective and acquiescence of the conductor, and the failure of the conductor to protect his pascause of action was partially based upon the failure of the conductor to protect his passenger. The court on that branch of the case

said:

"Whether or not this be true depends upon the particular facts and circumstances of the case. It is essential to the maintenance of the law that its processes should be promptly executed and its officer allowed to proceed withterference is plainly justified. When the arout interference except in cases where such inrest is by officers of the law, and is apparently regular, and there is nothing to put the company on notice that the arrest is illegal,

[ocr errors]

the company cannot be held liable for a failure to interfere with the officers and prevent the arrest. It would be going too far to hold that the conductor of a railroad company should interfere with officers of the law, and prevent an arrest merely because he did not know whether or not they were acting within their power and authority. We think the correct rule is that a railroad company is not liable for a failure of the conductor to protect a passenger from unlawful arrest, unless the conductor knows, or the facts and circumstances known to him are such as to apprise a person of or dinary prudence, that the arrest is unlawful. Brunswick & Western Ry. Co. v. Ponder, 117 Ga. 63, 97 Am. St. Rep. 152, 60 L. R. A. 713; Hutchinson on Carriers, § 987."

That case appears in Ann. Cas. 1915B, at page 240, and at page 244 there is a note wherein there is a quotation from the case of Mayfield v. St. Louis, etc., R. Co., 97 Ark. 24, 133 S. W. 170, 32 L. R. A. (N. S.) 525, where it was said:

"The duty to protect the passenger from violence or assault from others does not demand that the conductor should place himself in opposition to the due administration of the law; and he cannot therefore be said to be guilty of misconduct or of negligence where he simply submits to and complies with the request or demands of those officers whose duty it is

to enforce the criminal laws."

In the case of Baldwin v. Seaboard Air Line Ry., 128 Ga. 567, 58 S. E. 35, 13 L. R. A. (N. S.) 360, the last-named case was referred to, and the court further said:

essary violence to which the officers subject the passenger in making it, where the carrier's servants do not assist in such arrest. The duty imposed does not obligate either the carrier or its servants to offer active resistance to the officer of the law, or to inquire into the authority under which he assumes to act."

An examination of the authorities cited under the last text will disclose that they fully support it, and that it is never the duty of the conductor, in the protection of his passengers from arrest by a known officer of the law, to assert his authority against such officer, acting within the apparent scope of his authority, unless he knows such facts as beyond question make the action of the officer unlawful.

[2] We therefore hold that it was not the duty of the conductor in the protection of the appellee as his passenger, although he had information that the officer had no warrant, to assume from that fact that the arrest was unlawful, and that he was therefore authorized, or that it was his duty, to prevent, or protest against, the arrest or detention. It is only in the clearest case, where the facts are all known to the conductor, and where there can be no doubt in the mind of an ordinarily intelligent citizen as to the unlaw

fulness of the arrest, that will justify a conductor in any interference with a known officer of the law in making an arrest on his train. In other words, it must be a plain, unmistakable case where the facts are fully

in the arrest of a passenger by a known officer of the law.

"A railroad conductor is not required, for known to the conductor, and where they do the protection of one of his passengers, to en- not require of him to pass upon a technical ter into a contest with, or put himself in op-question, which will authorize him to interfere position to, an officer of the law, who is apparently acting within the scope of his authority. Brunswick & W. R. Co. v. Ponder [117 Ga. 63, 60 L. R. A. 713, 97 Am. St. Rep. 152, 43 S. E. 430]; Dugan v. Baltimore & Ohio R. Co., 159 Pa. 248, 28 Atl. 182, 186, 39 Am. St. Rep. 672; Fetter, Carr. Pass. § 101."

The same rule is thus stated in 4 R. C. L. p. 1193:

"Where an arrest is sought to be made on a train by persons known to the crew to be officers of the law, and there is nothing to put them on notice that it is irregular, the carrier is not liable for failure of the trainmen to interfere and prevent it, or because of unnec

A sound, high, and unimpeachable public policy requires not only a strict enforcement of the criminal and penal laws, but in addition that those primarily intrusted with the duty and authority to enforce them, shall not be subjected in their official conduct to unwarranted interference from others.

From what we have said it follows that

the lower court erred in submitting this phase of the case to the jury, and for that reason the judgment is reversed, with directions to grant appellant a new trial, and for further proceedings consistent herewith.

« 이전계속 »