the Legislature curing irregularities and establishing the district, the lands were described by sections and subdivisions thereof, and some of the descriptions specify certain sections "on the left bank of the Saline river." The lands are described, of course, as being in Howard county. The Saline river forms the boundary between Howard and Sevier counties. These are the descriptions which counsel for appellants insist are insufficient. We are of the opinion, however, that the words of description, giving the number of the section and stating that they are on the "left bank of the Saline river," clearly refer to that portion of each section which lies on the east side of the river and is in Howard county. Bush v. Delta Road Imp.. Dist., 141 Ark. 247, 216 S. W. 690. [2, 3] The General Assembly of 1921 enacted a special statute (Act No. 594) excluding from the district about half of the lands originally embraced therein, and the lands thus eliminated from the district had been assessed | more than half of the total benefits. It is contended now by counsel for appellants that the effect of this statute was to nullify the district altogether, for the reason that the Legislature had no power to impose the total cost of the improvement on the lands remaining in the district after the exclusion of others. Counsel is correct in the contention that the Legislature had no right to thus enlarge the burden on the lands remaining in the district. This, however, affords no reason nor nullifying the district, but it does afford grounds for declaring the act void. The act is also void as an impairment of the obligation of a contract between the district and its creditors. It is shown by stipulation that subsequent to the enactment of the curative statute the larger portion of the improvement was constructed, and that bonds were issued in the sum of $130,000. In the last case which was before us involving the question of the assessments in this case (152 Ark. 170, 237 S. W. 685) our attention was called to the act of 1921 supra, but we declined to pass upon its validity for the reason that it was not shown that there had been any indebtedness incurred prior to the passage of the statute. It needs no citation of authorities to support the view that a statute dismembering a district after obligations are incurred constitutes an attempt to impair the obligation of a contract and is void. That falls within the inhibition of our Constitution which declares that no law shall ever be passed impairing the obligation of contracts. Constitution of 1874, art. 2, § 17. The attacks upon the validity of the district are therefore unfounded. Decree affirmed. CHICAGO, R. I. & P. RY. CO. v. COMER et ux. (No. 208.) (Supreme Court of Arkansas. March 5, 1923.) I. Appeal and error 930(1)-On assignment of error that judgments were excessive, testimony viewed favorably to plaintiffs. In actions for injury, alleged to have resulted from plaintiff being thrown violently against the end of the coach while boarding a passenger train, where the only error assigned' excessive, testimony must be viewed in light as ground of reversal was that judgments were most favorable to plaintiffs. 2. Damages 185(1)-Evidence held sufficient to support Judgment for plaintiff in action for personal injury. In action for. personal injury to passenger, where complaint alleged that while plaintiff was boarding a passenger train with her two children, the train started, throwing her against the end of the coach and as a result she sufside, and by reason thereof suffered a miscarfered nervous shock, was injured in her right riage, evidence held sufficient to support a finding that she suffered a miscarriage and supported judgment in her favor. 3. Damages 131(5)-$2,000 for miscarriage and other injuries held not excessive. In an action for personal injuries, in which plaintiff suffered an injury to her side resulting in a miscarriage, and suffered acutely for nine days and less severely for some time thereafter, a verdict of $2,000 was not exces sive. Appeal from Circuit Court, Jackson County; Dene H. Coleman, Judge. Actions by B. F. Comer against the Chicago, Rock Island & Pacific Railway Company and by Lois Comer against the Chicago, Rock Island & Pacific Railway Company. Cases consolidated for trial. From judgments for plaintiffs in each case, defendant appeals. Reversed, and entered as to B. F. Comer. Affirmed as to Lois Comer. T. S. Buzbee and H. T. Harrison, both of Little Rock, for appellant. Boyce & Mack, of Newport, for appellees. SMITH, J. B. F. Comer and Lois, his wife, instituted separate suits against the Chicago, Rock Island & Pacific Railway Company, to recover damages on account of alleged injuries to Lois Comer on August 7, 1921, while she was preparing to board one For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ! (248 S.W.) of the defendant's trains. The cases were Mrs. Pierce, Mrs. Baker, and Mrs. Comer, consolidated by consent and tried together. a sister-in-law of the plaintiff, gave testiThe complaint alleged that, as Mrs. Comer, mony affording substantial corroboration of with two small children, was boarding a the plaintiff's testimony in regard to her illpassenger train, the company negligently ness and its consequences. caused the train to start, and she was suddenly and violently thrown and jerked against the end of the coach and against the railing of the platform to the entrance of the coach, and as a result thereof she suffered a nervous shock, was injured and bruised in her right side, her right arm and back were bruised, and by reason thereof she was caused to suffer a miscarriage on the 11th day of August, 1921. Mr. Comer alleged that he had been caused to expend large sums of money on account of his wife's injuries, and had been deprived of her services and society, and he prayed damages on that account. There was a denial of liability, and of injury; but the jury found for the plaintiff in each case, and assessed Mrs. Comer's dam ages at $2,000 and her husband's at $500. and judgments were rendered against the railroad company for those amounts. The railroad company has appealed, and the only assignment of error argued for the reversal of the judgments is that they are excessive. A doctor who attended plaintiff described her nervous condition, and stated that the patient told him, as a part of the history of her case, that she had suffered a miscarriage, and she pointed out a sheet on the bed with blood spots on it. The sheet was folded, and he did not know to what extent it was saturated with blood. He "could not say there was anything about her condition to indicate she had suffered a miscarriage"; that while he would not say definitely that she had miscarried, it is clear that in his opinion the case was one of delayed menstruation. Doctor Bradford, who made a digital examination of Mrs. Comer on August 27th, testified that the appearance he then found indicated that there had been no miscarriage. Still another doctor, who also examined the plaintiff on October 6th, testified that if there was a miscarriage, it was caused by the plaintiff's injury and fright. He testified that at the time of his examination he found a retroversion of the womb with a slight enlargement and a tendency for a slight prolapse, and that her temperature and reflexes were exaggerated. He also testified that her nervousness had improved, and she had about recovered from her injury and the miscarriage. [1] We must, of course, view the testimony in the light most favorable to the plaintiffs; otherwise the judgments would have to be reversed as being excessive, as the clear preponderance of the testimony is that Mrs. Comer was not seriously injured. On the day following the injury Dr. Bradford was called to attend Mrs. Comer on account of the injury to her wrist. She made no complaint of any other injury, and the doctor regarded the wound which he treated as offered less severely for some time thereafter. small consequence. Mrs. Comer testified that she was injured in the manner alleged in her complaint; that she was pregnant at the time of her injury, and had been since June; that prior to her injury she had been in excellent health; that she was thrown violently against the railing of the platform, and bounced back and was injured between her ribs and side; that soon after her injury her arm felt numb, and her side became sore. She was injured on Monday, and the pain continued and increased, and she went to bed on Wednesday, and suffered a miscarriage the next day. She saw a doctor on Monday and Tuesday, and he treated her arm, but gave her no treatment for her side. Wednesday night the pains in her side became more severe, and she was very nervous, and the doctor was called and she was given relief. Later she again became very nervous, and suffered a miscarriage, and was thereafter in bed for seven days, and did not resume her household duties until the ninth day. [2, 3] We think the testimony legally sufficient to support a finding that Mrs. Comer had suffered a miscarriage; and she testified that she suffered acutely during the nine days she was confined in bed, and had suf Under these circumstances we do not feel disposed to say that the evidence does not support the judgment recovered by her. [4] The verdict in Mr. Comer's favor we think is clearly excessive. He expended $60 for medical services. Mrs. Comer was unable to perform her household duties for a period of only nine days. When she was able she did the family washing, but during her illness her husband hired this done for two weeks. She testified that she had also worked with her husband in the field. but since her injury she had done less of this work. We think, however, the testimony does not show any impairment of Mrs. Comer's capacity to assist her husband as she did before her injury, and we have concluded that a judgment for $100 would fully compensate any damage sustained by him on account of his wife's injury, and the judgment in his favor will be reduced to that amount. The judgment in Mrs. Comer's favor will be affirmed. COX v. THANE et al. (No. 205.) (Supreme Court of Arkansas. March 5, 1923.) Public lands ~61 (11) Probative value of pencil notation of record of surrender of holding certificate held overcome by other evidence of title. Where, in action to quiet title, defendant claimed through a holding certificate issued in 1852, and plaintiff through a patent issued on the assumption that the holding certificate had been surrendered and a refunding certificate is sued therefor, which was evidenced by a pencil notation in the records in the column headed "Remarks," notwithstanding that the pencil notation had some probative value, its value was overcome by evidence of defendant's title. Appeal from Chicot Chancery Court; E. G. Hammock, Chancellor. Bill to quiet title by Paul D. Cox against Henry Thane, in which the Desha Bank & Trust Company filed an intervention and cross-complaint. From a decree canceling plaintiff's title, he appeals. Affirmed. Joe H. Thompson and J. S. Utley, both of Little Rock, for appellant. tain taxes, and were sold under the provisions of that decree to D. H. Reynolds. This sale was duly confirmed, and Reynolds received the commissioner's deed, which was also confirmed, and, by mesne conveyances, the Desha Bank & Trust Company has acquired the Reynolds title. There was a prayer that the plaintiff's title be canceled, and that relief was awarded, and this appeal is from that decree. The records of the state land office were carefully examined by the witnesses, and from the depositions, and stipulations the following facts appear from those records: A holding certificate was issued February 21, 1852, to William T. Ferguson for the lands in question. That certificate evidenced the fact that Ferguson had paid the purchase price demanded for the lands and was entitled to a patent from the state as soon as the state itself obtained a patent from the United States. Coleman v. Hill, 44 Ark. 452. But, as has been said, the state itself had not at that time obtained a patent from the United States. The record showing the issuance of a holding certificate to Ferguson is the "rec Streett, Burnside & Streett, of Lake Vil- ord of certificates of purchase," and was lage, for appellees. SMITH, J. Appellant filed a bill in the chancery court of Chicot county, alleging that he was the owner of two quarter sections of land there described situated in that county. He claimed title under the swamp land grant to the state from the United States approved September 28, 1850, and a swamp land patent to him from the state dated April 16, 1920. There was an allegation that the lands were wild and unimproved, and that Henry Thane, the defendant, claimed some interest in the land to the plaintiff unknown, and there was a prayer that the plaintiff's title to the land be quieted and confirmed. Thane filed an answer disclaiming any interest in the land; but the Desha Bank & Trust Company filed an intervention and cross-complaint, in which title thereto was asserted. The intervener claimed title as follows: That a patent issued from the United States to the state of Arkansas on January 3, 1880. That on February 21, 1852, William T. Ferguson purchased said land from the state of Arkansas, and paid the purchase price in full and received a certificate of purchase therefor designated as a "holding certificate." That immediately after this sale to Ferguson, the state caused the lands to be listed for taxation upon the tax books of Chicot county, and the state has since continuously assessed and attempted to collect the taxes thereon. That the lands were included in the overdue tax suit on account of the nonpayment of cer made in ink. In the column headed "Remarks," after the entry showing issuance of a holding certificate to each of the tracts of land in litigation, there appears a pencil notation to the following effect: "Refunding certificate July 6, 1863." The law permitted one to surrender a holding certificate and to take, in lieu thereof, a refunding certificate, which certificate entitled the holder thereof to enter a corresponding amount of swamp land; and when one took a refunding certificate for a holding certificate, that action operated to cancel the holding certificate. The state land department acted upon the assumption that the pencil notation evidenced the fact that Ferguson had surrendered his holding certificate, thereby canceling his entry of the land, and leaving it vacant and subject to sale, and, upon this assumption, issued to Cox the patent upon which he bases this suit. Was this assumption warranted under the facts of this record? These are as follows: The tax records of Chicot county from 1853 to 1869 are missing from the office where they should be kept; but the certificate of the county clerk shows that the lands have been continuously listed for taxation since 1869. The lands were included in the overdue tax decree, and were sold under its provisions. Although, as we have said, the law provided for the surrender of a holding certificate and the acceptance of a refunding certificate in lieu thereof, there is no showing as to the authority by which the nota For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (248 S.W.) tion was made that a refunding certificate had issued except its appearance under the head of "Remarks." There was a record then in use, and still in use, in the state land office in which the issuance was noted, of all refunding certificates, and if a refunding certificate was in fact issued to Ferguson, an entry thereof should have been made in this record; but none appears. Refunding certificates were numbered as issued, and the pencil notation makes no reference to any number. There was testimony to the effect that in 1915 a deputy land commissioner and a clerk in that office prepared an abstract of all the records of the state land office concerning swamp and overflow lands in Chicot county for an abstracter residing in that county. An official certificate was then made attesting the correctness of this copy of the records. The deputy who made this copy and certificate was asked if his copy showed this pencil notation, and he stated that it did not. When asked why he did not show it on his copy of the records, he answered that there might have been two reasons. One was that if the notation was on the record at the time the copy was made, it was disregarded as not being a permanent record on account of it being made in pencil. The other reason was that the notation might not then have appeared on the record. He had no independent recollection whether that was true or not. He also testified that if the holding certificate had been surrendered, and the refunding certificate issued in lieu thereof, a notation should properly have been made in ink, giving the date of the certificate and its number, so that it could be referred to by number. And, as we have said, there was also a permanent record in which entries were made showing the issuance of such certificates; but this record contains no entry indicating that a refunding certificate issued in lieu of the holding certificate. side of the levee and unprotected from the overflows of the Mississippi river. And it was also shown that. with the exception of a few omissions, the taxes had been paid since 1869; and since 1885 have not been delinquent, and since 1894 have been paid without a break by appellee and its predecessors in title. The court found from these facts that the probative value of this pencil notation was not sufficient to overcome the authentic records of the land office showing that Ferguson had entered the lands, and had obtained a holding certificate therefor, and that the state's title now stood as it did when the holding certificate issued, and that appellee as the owner of the Ferguson title was entitled to a patent, and, upon this finding, canceled the patent to appellant as a cloud upon appellee's title. We cannot say this finding is clearly against the preponderance of the evidence. In the case of State v. Taylor, 135 Ark. 232, 205 S. W. 104, we had occasion to consider the effect to be given a pencil notation similar to the one under consideration here. In that case, as in this, there was no showing when or by whom the notations were madé, nor any statute providing that such notations should be evidence of the matters contained in them. We held that although the notation had no force as a record, still the entry was not without probative force. So, here, the pencil notation does have probative value, but that value is overcome by the other evidence in the case, and the decree of the court below is affirmed. 0. K. TRANSFER & STORAGE CO. v. CRABTREE et al. (No. 191.) (Supreme Court of Arkansas. Feb. 26, 1923.) 1. Good will 5-Stockholder selling stock to corporation may agree not to engage in same business. Ferguson died March 19, 1863, which was, of course, prior to the date on which the notation shows the refunding certificate issued. It is true these certificates were as- A stockholder selling his stock to the corsignable, and Ferguson's assignee might poration may make a valid agreement with it have surrendered the holding certificate not to engage in the same business again in the and have obtained the refunding certificate; same city as that of the corporation. or his legal representatives might have done so; but the fact that the assignee of the entryman, or his legal representatives, rather than the entryman himself, surrendered the certificate, would appear to make it more probable that some record would have been made of that fact, if this had been done. 2. Good will 5-Contract by seller of stock not to engage again in same business held invalid. Where a contract for the sale of stock to the corporation which issued it was made, and the stock and notes therefor were delivered, before anything was said to the seller about agreeing not to engage again in the same business in the same city, such an agreement subse There was testimony tending to show that quently entered into without consideration was the land was in actual cultivation many invalid and unenforceable by the corporation or years ago before the location of the levee its assignee; the two contracts being separate was changed, leaving the land on the out- and distinct. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 3. Evidence 432-Parol evidence that agreement not to compete against buyer was independent of contract for sale of stock, and without consideration, held competent. Parol evidence that a contract for the sale of stock to the corporation which issued it and an agreement by the seller not to engage again in the same business in the same city were wholly independent and separate, and that there was no consideration for the latter, held competent in a suit to enjoin him from violating such agreement. According to the testimony of J. W. Crabtree, this written agreement was presented to Appeal from Sebastian Chancery Court; J. him after the contract for the sale of his V. Bourland, Chancellor. Suit by the O. K. Transfer & Storage Company against J. W. Crabtree and others. From a decree dismissing the complaint for want of equity, plaintiff appeals. Affirmed. O. K. Transfer & Storage Company, an Arkansas corporation, brought a suit in equity against J. W. Crabtree to enjoin him from conducting a storage and transfer business in the city of Ft. Smith, Ark. Subsequently the codefendants of Crabtree were made parties to the suit by an amendment to the complaint. In 1912 J. W. Crabtree was engaged in the general transfer business in the city of Ft. Smith, Ark., under the name of the Merchants' Transfer Company, and consolidated his business with that of the Ft. Smith Transfer Company. The Ft. Smith Merchants' Transfer Company was duly organized to take charge of the business of the two concerns. 190 shares of stock in the new corporation were issued to Crabtree in payment of his business. He was elected president of the new company, and assumed the management of its affairs. R. G. Moore was elected first vice president and Ollie C. Moore was elected second vice president. On the 23d day of June, 1914, J. W. Crabtree sold his stock and good will to the cor poration for $9,000. He resigned as president, and R. G. Moore was selected to succeed him. The minutes of the Ft. Smith Merchants' Transfer Company show that the directors met at 8:30 p. m. on June 23, 1914, in Ft. Smith, Ark. J. W. Crabtree resigned as president, and then sold 190 shares of capital stock in said corporation and his good will to the corporation for the sum of $9,000, to be evidenced by notes of $200 each. Crabtree's stock was held as collateral by the Ft. Smith Bank & Trust Company at the time the sale was made, and the same was not delivered until the morning of June 24, 1914. On that morning R. G. Moore and J. W. Crabtree met at the bank. The stock was delivered to Moore, and the notes executed by the corporation for the stock were delivered to the bank. This was in accordance with the terms of the agreement made on the previous evening. On the morning of the 24th stock in the corporation had been completed. The question of his not again entering into the transfer business in the city of Ft. Smith was not mentioned until after said contract for the sale of his stock had been executed. Moore presented the contract to Crabtree at the bank, and, after some insistence, Crabtree signed the contract, but received no consideration for so doing. The contract was not spoken of until after the sale of the stock by Crabtree had been completed. Crabtree's testimony is corroborated by that of Ollie C. Moore. The agreement which Crabtree made with the Ft. Smith Merchants' Transfer Company not to again engage in the transfer business in the city of Ft. Smith was assigned by that company to the O. K. Transfer & Storage Company at the time the former corporation sold its property and assets to the latter corporation. In September, 1921, J. W. Crabtree again engaged in the transfer business in the city of Ft. Smith. After the Ft. Smith Merchants' Transfer Company sold out to the O. K. Transfer & Storage Company it surrendered its charter, and the corporation was dissolved. On this account the plaintiff made all the stockholders in said corporation codefendants with J. W. Crabtree in the present suit. The chancellor found the issues in favor of the defendants, and it was decreed that the complaint of the plaintiff should be dismissed for want of equity. W. L. Curtis and Cravens & Cravens, all of Ft. Smith, for appellant. Warner, Hardin & Warner, of Ft. Smith, for appellees. HART, J. (after stating the facts as above). [1, 2] This court has sustained as valid agreements by the vendor of a business with or without limitations as to time not to carry on the business within the limits of a certain city. Bloom v. Home Insurance Agency, 91 Ark. 367, 121 S. W. 293; Hampton v. Caldwell, 95 Ark. 387, 129 S. W. 816; Kimbro v. Wells. 112 Ark. 126, 165 S. W. 645; Kimbro v. Wells, 121 Ark. 45, 180 S. W. 342. Under this rule Crabtree 'might make a valid agreement with the purchaser For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes |