WAY-FAILURE TO DRAIN-LIABILITY. Where, in an action against a railroad company for the statutory penalty for failing to drain a pond on its right of way after notice, the evidence was conflicting as to whether or not the pond could have been drained at any time before it was done after notice and whether or not it could have been done during the 20 days' notice, the question whether the company knowingly and willfully violated the statute was for the jury. state, be, at the time of the accrual of the [ 3. RAILROADS (§ 254*)-PONDS ON RIGHT OF cause of action, under twenty-one years of age, or insane or imprisoned beyond the limits of the state, such person shall be at liberty to bring such action within three years next after full age, or such disability may be removed." We do not think that this section of the statute has any application whatever to plaintiff's right of redemption from the tax sale. The reasoning of the court in the case of Sparks v. Farris, 71 Ark. 117, 71 S. W. 255, 945, leads to the conclusion that in suits to redeem from tax sales the statutes, having relevance to the right or privilege of redemption alone, are applicable. As we have already seen, section 7095 of Kirby's Digest is a part of the revenue system of the state, and was passed by the Legislature in the exercise of its power to levy and collect taxes. The section by prescribing the terms on which and the time during which minors might redeem their lands when sold for taxes necessarily excludes any terms or period of time not therein contained. The right to redeem is wholly statutory, and we cannot read into the statute any other statutes which are not a part of the revenue system, and which we cannot find that the Legislature intended to be a part of it. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 764-772; Dec. Dig. § 254.*] Appeal from Circuit Court, Clark County; Guy Fulk, Judge. Action by Andrew McAllister against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded for new trial. See, also, 154 S. W. 186. Appellants brought suit against the railroad company for the penalty provided by the statute (sections 6646 [as amended in 1907 (Laws 1907, p. 588)] 6648, Kirby's Digest) for its failure to drain a pond of water on its right of way within 200 yards of his residence. The complaint alleged that the pond was created by the construction of the culvert and roadbed, and that the railroad company for more than 20 days after service of notice upon it of its violation of the stat It follows that the decree must be reversed and the cause remanded, with directions toute, as required, had failed and refused to the chancellor to dismiss the complaint for want of equity. MCALLISTER v. ST. LOUIS, I. M. & S. RY. CO. (Supreme Court of Arkansas. April 14, 1913.) 1. RAILROADS (§ 254*)-PONDS ON RIGHT OF WAY-FAILURE TO DRAIN-NOTICE-STATUTORY PROVISIONS. A notice served on a station agent nearest the location of a pond on the right of way 20 days before bringing an action against the railroad company for the penalty for failing to drain the pond is a sufficient compliance with Kirby's Dig. § 6648, providing that 20 days' notice shall be given to the officer, agent, or employé of any violation of the statute before a cause of action shall accrue. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 764-772; Dec. Dig. § 254.*] 2. RAILROADS (§ 254*)-PONDS ON RIGHT OF WAY-FAILURE TO DRAIN-LIABILITY. Kirby's Dig. $ 6646, as amended by Acts 1907, p. 588, requiring every railroad company to drain its roadbed, and sections 6647 and 6648, imposing a penalty on any railroad company knowingly and willfully violating the act, provided 20 days' notice is given of any violation before a cause of action accrues, mean that the omission to drain a pond on a right of way must be with knowledge of the company, and with the intent that it shall remain, and, where it knows when the construction is finished that water will accumulate and it permits such condition to exist, it has sufficient knowledge, and, where it fails for 20 days after notice to drain the water, it is liable to the penalty. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 764-772; Dec. Dig. § 254.*] drain said pond. The answer denied that notice was served, as alleged, but admitted service upon its agent, denied all the facts alleged in the complaint, and alleged that during the months of April and May, 1912, the season was rainy, very rainy, and that the right of way near the plaintiffs' residence and about the pond was so wet and boggy that the same could not be drained until the weather became dry about the 1st of June, and as soon as it was possible to do so the pond was drained and the water removed. The testimony shows that the railroad company in the construction of the culvert through its roadbed made a depression on its right of way within 130 yards of the residence of appellants that filled with water, and that had stood there a long time. It attempted to remedy the condition by the construction of a culvert in 1910, but made it worse, by digging out the ground lower than the culvert. The plaintiffs had served upon the station agent of the defendant at Arkadelphia, the station nearest his residence, a written notice, demanding that the pond of water be drained within 20 days after the service of the notice and of their intention to claim the penalty provided by law in the event it was not done. The company drained the pond, beginning work June 2 and finishing June 5, 1912. vision engineer having the work in charge testified that during April and May it was Its di *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes John H. Crawford, of Arkadelphia, for appellant. E. B. Kinsworthy and W. G. Riddick, both of Little Rock, for appellee. very wet, and it was not possible to use | knowingly and willfully violate the proviscrapers in the work of draining, and that sions of this act," and provides that 20 days' it could not be done at a reasonable expense notice shall be given to the company of the without their use. The roadmaster testified violation of the statute "before a cause of that his attention was called to the pond action shall accrue." The words "willfully shortly after the notice was served, and that and intentionally," as used in another penalhe got the teams as quick as he could get ty statute (section 1899, Kirby's Digest), makthem, and did the work. That he had been ing it a misdemeanor to destroy telephone down there before and tried to get teams, lines, and providing that persons guilty of but could not procure any. That the weath- such offenses shall pay to the owners double er conditions were responsible chiefly for the the amount of all damages sustained theredelay, but they probably could have gotten by, has been construed by this court. In started earlier in the work if they had been Railway v. Batesville & W. Telephone Co., able to get teams anywhere near the locality. 80 Ark. 504, 97 S. W. 662, the court said: The court instructed a verdict for the de- "This is a criminal statute, and the words fendant, and from the judgment thereon the mean more than a mere doing voluntarily plaintiffs prosecuted this appeal. or knowingly the act in question. The use of the term 'willful,' and in this case almost its synonym, 'intentional,' in a criminal or penal statute 'implies knowledge and a preference to do wrong." They mean in such statutes, 'not merely voluntarily, but with a bad purpose.' 'An evil intent without justifiable excuse.' 'Doing or omitting to do a thing knowingly and willfully implies not only a knowledge of the thing, but a determination with a bad intent to do it or omit to do it'"-citing Felton v. U. S., 96 U. S. 699, 24 L. Ed. 875; Evans v. U. S., 153 U. S. 586, 14 Sup. Ct. 934, 38 L. Ed. 830; Potter v. U. S., 155 U. S. 438, 15 Sup. Ct. 144, 39 L. Ed. 214; Spurr v. U. S., 174 U. S. 728, 19 Sup. Ct. 812, 43 L. Ed. 1150. This statute does not say "willfully and intentionally," but "knowingly and willfully," meaning that the act must be done, not only with the knowledge of the company, but with the intention that it shall be done. There may be a different shade of meaning of the word "willfully" when connected and used with "knowingly," but these words have been construed together in statutes as quoted above by our court. It was not the intention of the Legislature to denounce a penalty against the railroad company for mere failure to drain a pond caused by the construction of its roadbed, or it would not have used both words "knowingly and willfully." If any other meaning whatever is to be given to the expression "knowingly and willfully," it must mean not only that the provisions of the law are knowingly violated, but with the intention and purpose that the condition created shall remain as it is. It was the evident purpose of this act to protect the health of the citizens of the state residing along and near the right of way of railroad [1, 2] The written notice was served upon companies by requiring the draining of all the station agent of the railway company pools and ponds resulting from the connearest the location of the pond 20 days be- struction of the roadbed, and it should refore the suit was brought, and this was a ceive a liberal construction on that account. sufficient compliance with the statute re- It is true it is a penal statute, but no penquiring notice to be given "before a cause of alty accrues, or can be recovered, until after action shall accrue." Railway v. Hale, 82 20 days' notice is given of the violation of Ark. 175, 100 S. W. 1148. The statute only the act. The railroad company knows the denounces a penalty against the railroad constructions of its roadbed and the condi KIRBY, J. (after stating the facts as above). The undisputed testimony shows that because of the extreme wet weather the pond could not have been drained during the 20 days after the notice was served upon the agent of the railroad company, unless at an unreasonable expense, and that the work could have been begun sooner than it was done if the company had been able to procure teams in the vicinity of the pond. The law makes it (section 6646, Kirby's Digest, and Act 250 of the Acts of 1907) the duty of the railroad company to drain their respective roadbeds where water is caused to stand by reason of the construction of the road within 200 yards of a farmhouse or residence or railroad station by the construction of ditches or drains of sufficient capacity to carry off all the water rapidly. Section 6647 provides: "Any railroad company, or corporation, or any officer or agent or employé of any such railroad company or corporation who shall knowingly and willfully violate the provisions of this act, shall be liable to pay a penalty of not less than fifty dollars for each and every offense, and costs of suit, including a reasonable attorney's fee, to be taxed by the court where the same is heard on original action, by appeal or otherwise, to be recovered by a suit at law by the party aggrieved in any court of competent jurisdiction." Section 6648: "Twenty days' notice shall be given to the officer, agent or employé, as the case may be, of any violation of this act, before a cause of action shall accrue." construction is finished whether water will be likely to accumulate and stand along the right of way in violation of this law, which it also knows; and, if it permits it to do so and such condition exists, it is necessarily knowingly done. If it then fails within the 20 days after the notice to remove the nuisance and provide the proper drainage, it can be said it has done so willfully and with the intention that the condition shall remain as it is, and the water shall not be drained off and the nuisance abated. The condition complained of by appellants had existed for two years before the notice was given, and was remedied in three days after the work was begun. [3] The testimony is in conflict as to whether or not the pond could have been drained any time before it was done after notice, and also as to whether or not it could have been done during the running of the 20 days' notice, and under all the circumstances made a question for the jury to determine whether the railroad company knowingly and willfully violated the provisions of the statute within the meaning of its terms. The court erred in directing a verdict. ter in the circuit court of Bradley county on January 30, 1905, against W. H. Harry for unlawful detainer of certain lands. The venue of that case was changed to Cleve land county, and the case was tried there, resulting, as before stated, in a judgment in appellant's favor. Appellant sued out an execution on said judgment and delivered the same to the sheriff of Bradley county, who proceeded to levy same on certain lands situated in that county as the property of H. M. L. Carnley. Mrs. Carnley instituted this action in the chancery court of Bradley county against appellant to restrain him from causing said lands to be sold under the execution. In her original complaint she alleged, in substance, that her husband, H. M. L. Carnley, bought the lands in controversy with her money, and she asked that he be declared a trustee, holding the legal title for her benefit. In an amended complaint filed later she alleged that her husband was indebted to her in the sum of $4,451.60 for borrowed money and conveyed said lands to her on June 25, 1909, in satisfaction of said debt. Appellant filed an answer to the original and amended complaints, denying the allegations of each, and alleging that said The judgment is reversed, and the cause conveyance was executed by H. M. L. Carnremanded for a new trial. BROWNE v. CARNLEY. (Supreme Court of Arkansas. April 14, 1913.) TRUSTS (8 81*)-RESULTING TRUSTS-WIFE'S SEPARATE ESTATE-USE BY HUSBAND-LIABILITY TO CREDITORS. Where a wife, who had accumulated money from the sale of lands of the husband in which she claimed an interest by reason of her labor in assisting to acquire such lands, permitted the husband to use it in his business and purchase land in his own name on the faith of which he obtained credit, she could not assert a trust in such land as against a judgment creditor of the husband. [Ed. Note. For other cases, see Trusts, Cent. Dig. 88 115-118; Dec. Dig. § 81.*] Appeal from Bradley Chancery Court; Zachariah T. Wood, Chancellor. Action by Mrs. J. E. Carnley against G. B. Browne and others. Judgment for plaintiff, and defendant Browne appeals. Reversed and remanded, with directions to dis miss. S. J. Hunt and Danaher & Danaher, all of Pine Bluff, for appellant. B. L. Herring, of Warren, for appellee. MCCULLOCH, C. J. In July, 1909, G. B. Browne obtained a judgment, for recovery of the sum of $1,901, in the circuit court of Cleveland county, against H. M. L. Carnley, husband of appellee, M. J. E. Carnley; said judgment being rendered on a bond executed by H. M. L. Carnley and others to appellant in an action instituted by the lat ley to his wife with fraudulent intent to cheat, hinder, and delay appellant in enforcing liability on said bond. Mrs. Carnley testified at length as to the transactions with her husband concerning the acquisition and sale of the property and division of proceeds. She stated that the first property she owned was 40 acres of land which she had purchased for the sum of $15, or donated, and afterwards sold for the sum of $428.40; the money being paid over to her. She states further that her husband had title to 480 acres of timber land in which she claimed a third interest on account of having worked in acquiring it. Half of the land was sold for the sum of $2,521.60, and she claimed one-third of that sum and testified that it was paid over to her when the sale was made. Then she says she was to receive, and did receive, one-third of the price of the homestead; the title being in her husband's name. That sum was $1,500. She also stated that she and her husband had $5,000 in cash, and that one-third of that belonged to her. This was prior to the year 1904, during which year they moved to Moro Bay, in Bradley county, where her husband embarked in the mercantile business. She testified that she kept the funds, at least her portion of them, with her in a trunk, and from time to time turned the same over to her husband to invest in his business and the purchase of lands. After stating that the funds turned over to her amounted to $4,451.60, she was asked, “Who handled and controlled this money, yourself or your husband?" to which she replied, “I *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes still another place she says that there were two notes aggregating $2,500. She exhibited a note for $800, dated August 1, 1908. Upon the whole, her testimony is far from convincing that she turned the money over under any distinct obligation of her husband to repay it. It is evident from her own statement of the facts that, even if the money was turned over by her as she claimed, she permitted her husband to use it as his own and for his own purposes, and that he enjoyed a basis of credit on the faith of the property thus acquired. Under those circumstances, she cannot in a court of equity be permitted to reap the benefit to the detriment of a creditor who had been deceived by his false basis of credit. had control of it when I wanted to, but I the note was for the sum of $2,500; and in allowed my husband to invest it for me from time to time, but in each case, as far as I can recall, my husband consulted me with reference to each investment of my money." It does not appear that any property was purchased in her name, but what she meant by investment was that her husband used the money in his mercantile business and in buying property for himself. In other parts of her testimony she states that she lent the money to her husband and took his notes therefor. Her husband conducted the mercantile business at Moro Bay with his son for several years, and then moved to Hermitage, Ark., where the mercantile business was continued. She testified that she let him have about $3,500 with which to buy property and build a storehouse after they moved to Hermitage. About the time H. M. L. Carnley executed to his wife the deed in question, he transferred his bank stock and all of his interest in the stock of merchandise to his son, which completely denuded him of all property. The son testified that the reason his father transferred the property to him was that while his father managed the business at Moro Bay a heavy loss was sustained, and the transfer was made to him to compensate for the loss. In a somewhat similar case, Judge Riddick, speaking for the court, said: "It is no doubt just and right for a husband to return such funds, however stale the claim may be, if he can do so without infringing upon the rights of his creditors; but an insolvent debtor is not allowed to turn over his property to his wife, and let his creditors go unpaid, under the pretense of settling a shadowy claim for money of his wife which he received and spent many years before. As it would often be impossible for the creditor to dispute such ancient claims, to allow them to be set up in that way against the creditors would furnish an easy way for an insolvent debtor to shield his property from his creditors, while at the same time retaining all the essential benefits of the same to himself and family. For this reason, when a wife allows her husband to use her money as his own for a long period of time, and thus to purchase property with it in his own name, and to obtain credit on the faith of his being the owner of it, she will not be allowed to claim such property as against his creditors." Davis v. Yonge, 74 Ark. 161, 85 S. W. 90. Now, it appears from the above statement that Mrs. Carnley claims to have accumulated the sum of $4,451.60 in money, all of which accrued from the sale of her husband's lands, except the sum of $428.40 from the sale of the small tract which she owned; that her interest in the fund was asserted and recognized on account of the fact that she had by her own labor assisted her husband in acquiring the lands and that she should be compensated for that as well as her homestead interest; that she turned the money over to her husband in various sums from time to time and allowed him to use it in his business and in purchasing the property in controversy, and other property, the title Other cases announcing the same printo which was taken in his own name. In ciple are: Driggs v. Norwood, 50 Ark. 42, 6 some parts of her testimony she stated that S. W. 323, 7 Am. St. Rep. 78; George Tayshe turned the money over to him to invest lor Commission Co. v. Bell, 62 Ark. 26, 34 for her; in other parts she stated that she S. W. 80; Morris v. Fletcher, 67 Ark. 105, 56 loaned him the money and afterwards took S. W. 1072, 77 Am. St. Rep. 87; Roberts his notes for some of it. She does not make v. Bodman-Pettit Lumber Co., 84 Ark. 227, a very satisfactory and convincing state- 105 S. W. 258; Goodrich v. Bagnell Timber ment as to the particular times or dates Co., 150 S. W. 406; Haycock v. Tarver, 155 when she turned the money over to him, nor S. W. 918. The doctrine of those cases apthe amounts, but in a general way she tes- plies with peculiar force in the present one, tified that he owed her the sum of $4,451.60 for the testimony shows that during the which she had turned over to him from time pendency of the case of Browne v. Harry to time. It appears from her statement that appellant relied upon the solvency of H. M. she did not take her husband's notes for any L. Carnley as a surety on the bond. When of the money until about a year before the the bond was executed, appellant caused the deed to her was executed, though she had record to be examined, and when he ascerbeen letting him have money for several tained that he (Carnley) owned real estate years before that time. In one place she and was in the mercantile business, and apsays that she had his note for $2,000, and parently being in prosperous circumstances, the note, dated July 20, 1908, is exhibited he accepted him as a bondsman and took cause was pending for a period of something | neck and shoulder, and treated him for musculike five years. His attorneys, who lived lar rheumatism, and that a jolt would probably crease of vitality would increase the power of cause rheumatism to develop, and that a dethe tubercular germs, the question of permanent injury and future suffering was properly submitted to the jury. in another county, relied upon appellant's examination of the record in determining that Carnley was solvent and constituted a good bondsman in the case. Leaving out of the case entirely the suspicious circumstances that no written evidence of the alleged indebtedness of Carnley to his wife has been brought into the record, except the two notes executed about a year before the judgment was rendered and while the cause was pending, and also the further circumstance that the deed in controversy was not executed until a few days before the rendition of the judgment, we have the undisputed facts from the lips of Mrs. Carnley herself that she permitted her husband to use this money at will, and, as before stated, she cannot be permitted to take advantage of creditors who have been misled to their prejudice. The learned chancellor was, we think, in error in upholding the conveyance and in restraining appellant from enforcing his judgment. The decree is therefore reversed, and the cause remanded, with directions to dismiss the complaint of Mrs. Carnley for want of equity. MEMPHIS, D. & G. R. CO. v. STEEL. (Supreme Court of Arkansas. April 14, 1913.) 1. CARRIERS (§ 318*)-INJURIES TO PASSENGERS-NEGLIGENCE EVIDENCE. In an action for injuries to a passenger on a mixed train, caused by cars backing against the coach standing at a station, evidence held to support a finding of negligence of the trainmen in operating the cars. Cent. Dig. §§ 54, 64, 68, 132, 144, 145, 205, 220, [Ed. Note.-For other cases, see Damages, 533, 534; Dec. Dig. § 208.*] 5. APPEAL AND ERROR (§ 1068*)—HARMLESS ERROR-ERRONEOUS SUBMISSION OF ISSUES. Where the amount recovered in a personal ed on account of permanent injury and future injury action indicated that nothing was allowsuffering, the error, if any, in submitting the question of permanent injury and future suffering, was not reversible. Error, Cent. Dig. §§ 4225-4228, 4230; Dec. [Ed. Note.-For other cases, see Appeal and Dig. § 1068.*] 6. CARRIERS (§ 307*) - PASSENGERS - FREE PASS-LIABILITY OF CARRIER. A carrier cannot defeat a recovery of damages by a passenger by showing the use of a pass at the time of the injury, though the acceptance of the pass was on condition that all claims for damages should be waived. [Ed. Note.-For other cases, see Carriers, Cent. Dig. 88 1252-1259, 1491; Dec. Dig. § 307.*1 Appeal from Circuit Court, Pike County; Jeff T. Cowling, Judge. Action by A. P. Steel against the Memphis, Dallas & Gulf Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed. J. W. Bishop and Sain & Sain, all of Nashville, for appellant. Steel, Lake & Head, of Texarkana, for appellee. SMITH, J. The appellee began this action in the Pike county circuit court, alleging substantially the following facts as con[Ed. Note. For other cases, see Carriers, stituting his cause of action: That the deCent. Dig. 88 1270, 1307-1314; Dec. Dig. $fendant is a railroad corporation, organized 318.*] 2. DAMAGES (8 185*)-PERSONAL INJURIESEVIDENCE. In an action for injuries to a passenger on a mixed train caused by cars backing against the coach standing at a station, evidence held to support a finding that the passenger's suffering and condition were proximately caused by the injuries received while a passenger. [Ed. Note. For other cases, see Damages, Cent. Dig. §§ 503-508; Dec. Dig. § 185.*] 3. APPEAL AND ERROR (757*)-BRIEFSQUESTIONS REVIEWABLE-INSTRUCTIONS. Where appellant asked a number of instructions, two of which, not set out in the brief, were given, the court on appeal will not inquire as to the correctness of any of the requested instructions which were refused. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3092; Dec. Dig. § 757.*] 4. DAMAGES (§ 208*)-PERSONAL INJURIESPERMANENT INJURY AND FUTURE SUFFERING EVIDENCE-QUESTION FOR JURY. under the laws of this state, owning and operating a line of railroad from Ashdown in Little River county to Murfreesboro in Pike county in said state, and is a common carrier of freight and passengers for hire. That on the 5th day of December, 1911, plaintiff took passage on a mixed train from Murfreesboro to Ashdown, after having procured his necessary transportation. That he took his seat in the regular passenger coach, and when the said train reached Nashville, a station on said line, and while the same was standing on the main line, near the depot, and while the plaintiff was seated in were desaid coach, the engine and cars tached from the caboose and passenger coach and with two or three heavy loaded cars were violently, wrongfully, negligently, and with unnecessary force backed against said Where, in an action for injuries to a passenger on a mixed train caused by cars back-caboose, attached to said coach, whereby aping against the coach, the passenger testified that he had been suffering from tuberculosis, but had regained his lost weight and was about restored to health at the time of the accident, and the attending physician testified that the passenger suffered intensely in the muscles of the pellee was thrown forward against the seat immediately in front of him and was permanently and seriously injured. That the said injury was caused by the straining and wrenching of the muscles of the neck, back, For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |