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the Legislature curing irregularities and establishing the district, the lands were de CHICAGO, R. I. & P. RY. CO. V. COMER scribed by sections and subdivisions thereof,

et ux. (No. 208.) and some of the descriptions specify certain (Supreme Court of Arkansas. March 5, 1923.) sections "on the left bank of the Saline river.” The lands are described, of course, 1. Appeal and error 930(1)-On assignment as being in Howard county. The Saline of error that judgments were excessive, tesriver forms the boundary between Howard timony viewed favorably to plaintiffs. and Sevier counties. These are the descrip In actions for injury, alleged to have re-. tions which counsel for appellants insist sulted from plaintiff being thrown violently are insufficient. We are of the opinion, how against the end of the coach while boarding a ever, that the words of description, giving passenger train, where the only error assigned the number of the section and stating that excessive, testimony must be viewed in light

as ground of reversal was that judgments were they are on the “left bank of the Saline most favorable to plaintiffs. river,” clearly refer to that portion of each section which lies on the east side of the 2. Damages oma 185(1)-Evidence held sufficient river and is in Howard county. Bush v.

to support Judgment for plaintiff in action

for personal injury. Delta Road Imp.. Dist., 141 Ark. 247, 216 S.

In action for personal injury to passenger, W. 690.

where complaint alleged that while plaintiff was [2, 3] The General Assembly of 1921 enact- boarding a passenger train with her two chiled a special statute (Act No. 594) excluding dren, the train started, throwing her against from the district about half of the lands origi- the end of the coach and as a result she sufnally embraced therein, and the lands thus side, and by reason thereof suffered a miscar

fered nervous shock, was injured in her right eliminated from the district had been assessed riage, evidence held sufficient to support a findmore than half of the total benefits. It is con- ing that she suffered a miscarriage and suptended now by counsel for appellants that the ported judgment in her favor, effect of this statute was to nullify the district 3. Damages On 131(5)-$2,000 for miscarriage altogether, for the reason that the Legisla and other injuries held not excessive. ture had no power to impose the total cost In an action for personal injuries, in which of the improvement on the lands remaining plaintiff suffered an injury to her side resultin the district after the exclusion of others. ing in a miscarriage, and suffered acutely for Counsel is correct in the contention that nine days and less severely for some time

thereafter, a verdict of $2,000 was not excesthe Legislature had no right to thus enlarge

sive. the burden on the lands remaining in the district. This, however, affords no reason

4. Damages om 133—$100 held to compensate

husband for wife's injury. nor nullifying the district, but it does afford

Where, on account of an injury to a wife, grounds for declaring the act void. The act she was unable to perform household duties is also void as an impairment of the obliga- for nine days only, and the husband spent $60 tion of a contract between the district and for medical services, and hired the family its creditors.

washing done for two weeks, and there was no It is shown by stipulation that subsequent impairment of her capacity to assist her husto the enactment of the curative statute the band after the injury, $100 damages would fully

compensate him for her injury. larger portion of the improvement was constructed, and that bonds were issued in the

Appeal from Circuit Court, Jackson Counsum of $130,000. In the last case which was ty; Dene H. Coleman, Judge. Lefore us involving the question of the assessments in this case (152 Ark. 170, 237 S.

Actions by B. F. Comer against the ChiW. 685) our attention was called to the act cago, Rock Island & Pacific Railway Comof 1921 supra, but we declined to pass upon pany and by Lois Comer against the Chiits validity for the reason that it was not cago, Rock Island & Pacific Railway Comshown that there had been any indebtedness pany. Cases consolidated for trial. From incurred prior to the passage of the statute. judgments for plaintiffs in each case, deIt needs no citation of authorities to sup

fendant appeals. Reversed, and entered as port the view that a statute dismembering to B. F. Comer. Affirmed as to Lois Comer. a district after obligations are incurred con T. S. Buzbee and H. T. Harrison, both of stitutes an attempt to impair the obligation Little Rock, for appellant. of a contract and is void. That falls within Boyce & Mack, of Newport, for appellees. the inhibition of our Constitution which declares that no law shall ever be passed im SMITH, J. B. F. Comer and Lois, his pairing the obligation of contracts. Constitu- wife, instituted separate suits against the tion of 1874, art. 2, $ 17. The attacks upon Chicago, Rock Island & Pacific Railway Comthe validity of the district are therefore un- pany, to recover damages on account of alfounded.

leged injuries to Lois Comer on August 7, Decree affirmed.

1921, while she was preparing to board one

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(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 testi-

The 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 ill-
passenger train, the company negligently ness and its consequences.
caused the train to start, and she was sud A doctor who attended plaintiff described
denly and violently thrown and jerked her nervous condition, and stated that the
against the end of the coach and against the patient told him, as a part of the history of
railing of the platform to the entrance of the her case, that she had suffered a miscarriage,
coach, and as a result thereof she suffered a and she pointed out a sheet on the bed with
nervous shock, was injured and bruised in blood spots on it. The sheet was folded, and
her right side, her right arm and back were he did not know to what extent it was satu-
bruised, and by reason thereof she was rated with blood. He "could not say there
caused to suffer a miscarriage on the 11th was anything about her condition to indicate
day of August, 1921.

she had suffered a miscarriage"; that while
Mr. Comer alleged that he had been caused he would not say definitely that she had
to expend large sums of money on account miscarried, it is clear that in his opinion the
of his wife's injuries, and had been deprived case was one of delayed menstruation.
of her services and society, and he prayed Doctor Bradford, who made a digital ex-
damages on that account.

amination of Mrs. Comer on August 27th, There was a denial of liability, and of in- | testified that the appearance he then found jury; but the jury found for the plaintiff in indicated that there had been no miscareach case, and assessed Mrs. Comer's dam riage. ages at $2,000 and her husband's at $500. Still another doctor, who also examined and judgments were rendered against the the plaintiff on October 6th, testified that if railroad company for those amounts.

there was a miscarriage, it was caused by The railroad company has appealed, and the plaintiff's injury and fright. He testified the only assignment of error argued for the that at the time of his examination he found reversal of the judgments is that they are a retroversion of the womb with a slight enexcessive,

largement and a tendency for a slight pro[1] We must, of course, view the testi lapse, and that her temperature and reflexes mony in the light most favorable to the plain- were exaggerated. He also testified that her tiffs; otherwise the judgments would have nervousness had improved, and she had about to be reversed as being excessive, as the clear recovered from her injury and the miscarpreponderance of the testimony is that Mrs. riage. Comer was not seriously injured. On the [2, 3] We think the testimony legally sufdar following the injury Dr. Bradford was ficient to support a finding that Mrs. Comer called to attend Mrs. Comer on account of had suffered a miscarriage; and she testithe injury to her wrist. She made no com- tied that she suffered acutely during the nine plaint of any other injury, and the doctor days she was confined in bed, and had sufregarded the wound which he treated as of fered less severely for some time thereafter. small consequence.

Under these circumstances we do not feel Mrs. Comer testified that she was injured disposed to say that the evidence does not in the manner alleged in her complaint; that support the judgment recovered by her. she was pregnant at the time of her injury, [4] The verdict in Mr. Comer's favor we and had been since June; that prior to her think is clearly excessive. He expended $60 injury she had been in excellent health; that for medical services. Mrs. Comer was unshe was thrown violently against the rail- able to perform her household duties for a ing of the platform, and bounced back and period of only nine days. When she was was injured between her ribs and side; that able she did the family washing, but dursoon after her injury her arm felt numb, ing her illness her husband hired this done and her side became sore. She was injured for two weeks. She testified that she had on Monday, and the pain continued and in- also worked with her husband in the field. creased, and she went to bed on Wednesday, but since her injury she had done less of this and suffered a miscarriage the next day. work. She saw a doctor on Monday and Tuesday, We think, however, the testimony does not and he treated her arm, but gave her no treat- show any impairment of Mrs. Comer's cament for her side. Wednesday night the pacity to assist her husband as she did be. pains in her side became more severe, and fore her injury, and we have concluded that she was very nervous, and the doctor a judgment for $100 would fully compensate called and she was given relief. Later she any damago sustained by him on account of again became very nervous, and suffered a his wife's injury, and the judgment in his miscarriage, and was thereafter in bed for favor will be reduced to that amount. seven days, and did not resume her house The judgment in Mrs. Comer's favor will hold duties until the ninth day.

be affirmed.

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|tain taxes, and were sold under the proCOX v. THANE et al. (No. 205.) visions of that decree to D. H. Reynolds. (Supreme Court of Arkansas. March 5, 1923.) This sale was duly confirmed, and Reynolds

received the commissioner's deed, which Publio lands Omm 61(11) Probative value of was also confirmed, and, by mesne conveypencil notation of record of surrender of ances, the Desha Bank & Trust Company holding certificate held overcome by other has acquired the Reynolds title. There was evidence of title.

a prayer that the plaintiff's title be canWhere, in action to quiet title, defendant claimed through a holding certificate issued in celed, and that relief was awarded, and this 1852, and plaintiff through a patent issued on appeal is from that decree. the assumption that the holding certificate had The records of the state land office were been surrendered and a refunding certificate is carefully examined by the witnesses, and sued therefor, which was evidenced by a pencil from the depositions and stipulations the notation in the records in the column headed following facts appear from those records: "Remarks,” notwithstanding that the pencil A holding certificate was issued February notation had some probative value, its value was overcome by evidence of defendant's title. 21, 1852, to William T. Ferguson for the

lands in question. That certificate evi

denced the fact that Ferguson had paid Appeal from Chicot Chancery Court; E.

the purchase price demanded for the lands G. Hammock, Chancellor.

and was entitled to a patent from the state Bill to quiet title by Paul D. Cox against as soon as the state itself obtained a patHenry Thane, in which the Desha Bank & ent from the United States. Coleman Y. Trust Company filed an intervention and Hill, 44 Ark. 452. But, as has been said, cross-complaint. From a decree canceling the state itself had not at that time obplaintiff's title, he appeals. Affirmed.

tained a patent from the United States. Joe H. Thompson and J. S. Utley, both of The record showing the issuance of a Little Rock, for appellant.

holding certificate to Ferguson is the "recStreett, Burnside & Streett, of Lake Vil- ord of certificates of purchase," and was lage, for appellees.

made in ink. In the column headed "Re

marks,” after the entry showing issuance of SMITH, J. Appellant filed a bill in the a holding certificate to each of the tracts · chancery court of Chicot county, alleging of land in litigation, there appears a pencil that he was the owner of two quarter sec- notation to the following effect: “Refund. tions of land there described situated in ing certificate July 6, 1863." that county. He claimed title under the The law permitted one to surrender a swamp land grant to the state from the holding certificate and to take, in lieu thereUnited States approved September 28, 1850, of, a refunding certificate, which certificate and a swamp land patent to him from the entitled the holder thereof to enter a corstate dated April 16, 1920. There was an responding amount of swamp land; and allegation that the lands were wild and un- when one took a refunding certificate for improved, and that Henry Thane, the de- a holding certificate, that action operated fendant, clained some interest in the land to cancel the holding certificate. to the plaintiff unknown, and there was a The state land department acted upon the prayer that the plaintiff's title to the land assumption that the pencil notation evibe quieted and confirmed.

denced the fact that Ferguson had surrenThane filed an answer disclaiming any in-dered his holding certificate, thereby canterest in the land; but the Desha Bank & celing his entry of the land, and leaving it Trust Company filed an intervention and vacant and subject to sale, and, upon this cross-complaint, in which title thereto was assumption, issued to Cox the patent upon asserted. The intervener claimed title as which he bases this suit. Was this assumpfollows: That a patent issued from the tion warranted under the facts of this recUnited States to the state of Arkansas on ord? January 3, 1880. That on February 21, 1852, These are as follows: The tax records William T. Ferguson purchased said land of Chicot county from 1853 to 1869 are missfrom the state of Arkansas, and paid the ing from the office where they should be purchase price in full and received a cer- kept; but the certificate of the county clerk tificate of purchase therefor designated as shows that the lands have been continuousa “holding certificate.” That immediately ly listed for taxation since 1869. The lands after this sale to Ferguson, the state caused were included in the overdue tax decree, the lands to be listed for taxation upon the and were sold under its provisions. tax books of Chicot county, and the state Although, as we have said, the law prohas since continuously assessed and at- vided for the surrender of a holding certifitempted to collect the taxes thereon. That cate and the acceptance of a refunding certhe lands were included in the overdue tax tificate in lieu thereof, there is no showsuit on account of the nonpayment of cer-I ing as to the authority by which the nota

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(248 S.W.) tion was made that a refunding certificate, side of the levee and unprotected from the had issued except its appearance under the overflows of the Mississippi river. And it head of "Remarks." There was a record was also shown that, with the exception of then in use, and still in use, in the state a few omissions, the taxes had been paid land office in which the issuance was not since 1869; and since 1885 have not been ed, of all refunding certificates, and if a re- delinquent, and since 1894 have been paid funding certificate was in fact issued to without a break by appellee and its predeFerguson, an entry thereof should have been cessors in title made in this record; but none appears. The court found from these facts that the Refunding certificates were numbered as is probative value of this pencil notation was sued, and the pencil notation makes no ref- not sufficient to overcome the authentic recerence to any number.

ords of the land office showing that Ferguson
There was testimony to the effect that in had entered the lands, and had obtained
1915 a deputy land commissioner and a a holding certificate therefor, and that the
derk in that office prepared an abstract of state's title now stood as it did when the
all the records of the state land office con- | holding certificate issued, and that appellee
cerning swamp and overflow lands in Chi- as the owner of the Ferguson title was en-
cot county for an abstracter residing in that titled to a patent, and, upon this finding,
county. An official certificate was then canceled the patent to appellant as a cloud
made attesting the correctness of this copy upon appellee's title.
of the records. The deputy who made this We cannot say this finding is clearly
copy and certificate was asked if his copy against the preponderance of the evidence.
showed this pencil notation, and he stated in the case of State v. Taylor, 135 Ark, 232,
that it did not. When asked why he did 205 S. W. 104, we had occasion to consider
not show it on his copy of the records, he the effect to be given a pencil notation
answered that there might have been two similar to the one under consideration here.
reasons. One was that if the notation was in that case, as in this, there was no show-
on the record at the time the copy was ing when or by whom the notations were
made, it was disregarded as not being a madé, nor any statute providing that such
permanent record on account of it being notations should be evidence of the mat-
made in pencil. The other reason was that ters, contained in them. We held that al-
the notation might not then have appeared though the notation had no force as a rec-
on the record. He had no independent record, still the entry was not without proba-
ollection whether that was true or not. He tive force.
also testified that if the holding certificate So, here, the pencil notation does have
had been surrendered, and the refunding probative value, but that value is over
certificate issued in lieu thereof, a notation come by the other evidence in the case, and
should properly have been made in ink, giv- the decree of the court below is affirmed.
ing the date of the certificate and its num-
ber, so that it could be referred to by num-
ber. And, as we have said, there was also
a permanent record in which entries were
made showing the issuance of such certifi 0. K. TRANSFER & STORAGE CO. v.
cates; but this record contains no entry in-

CRABTREE et al. (No. 191.)
dicating that a refunding certificate issued
in lieu of the holding certificate.

(Supreme Court of Arkansas. Feb. 26, 1923.)
Ferguson died March 19, 1863, which was, 1. Good will Ow5--Stockholder selling stock to
of course, prior to the date on which the corporation may agree not to engage in same
notation shows the refunding certificate is business.
sued. It is true these certificates were as A stockholder selling his stock to the cor-
signable, 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 2. Good will en 5 Contract by seller of stock
$0; but the fact that the assignee of the not to engage again in same business held
entryman, or his legal representatives, rath-

invalid. er than the entryman himself, surrendered Where a contract for the sale of stock to the certificate, would appear to make it the corporation which issued it was made, and more probable that some record would have the stock and notes therefor were delivered. been made of that fact, if this had been before anything was said to the seller about done.

agreeing not to engage again in the same busi

ness in the same city, such an agreement subseThere 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-I and distinct.

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

3. Evidence @mw432-Parol evidence that agree-, day of June, 1914, J. W. Crabtree entered

ment not to compete against buyer was inde- into a written agreement with the Ft. Smith pendent of contract for sale of stock, and Merchants' Transfer Company that he would without consideration, held competent.

not at any time thereafter directly or inParol evidence that a contract for the sale directly engage in conducting a transfer busiof stock to the corporation which issued it and ness in the city of Ft. Smith, Ark.

This an agreement by the seller not to engage again in the same business in the same city were agreement also provided that Crabtree would wholly independent and separate, and that there at all times do everything in his power to was no consideration for the latter, held com- promote the good will and prosperity of the petent in a suit to enjoin him from violating business sold. such agreement.

According to the testimony of J. W. Crab

tree, this written agreement was presented to Appeal from Sebastian Chancery Court; J. him after the contract for the sale of his V. Bourland, Chancellor.

stock in the corporation had been completed.

The question of his not again entering into Suit by the 0. K. Transfer & Storage Com- the transfer business in the city of Ft. Smith pany against J. W. Crabtree and others. was not mentioned until after said contract From a decree dismissing the complaint for for the sale of his stock had been executed. want of equity, plaintiff appeals. Affirmed.

Moore presented the contract to Crabtree at 0. K. Transfer & Storage Company, an Ar- the bank, and, after some insistence, Crabkansas corporation, brought a suit in equity tree signed the contract, but received no conagainst J. W. Crabtree to enjoin him from sideration for so doing. The contract was conducting a storage and transfer business not spoken of until after the sale of the stock in the city of Ft. Smith, Ark. Subsequently by Crabtree had been completed. Crabtree's the codefendants of Crabtree were made par- testimony is corroborated by that of Ollie

C. Moore. ties to the suit by an amendment to the complaint.

The agreement which Crabtree made with In 1912 J. W. Crabtree was engaged in the the Ft. Smith Merchants' Transfer Comgeneral transfer business in the city of Ft. pany not to again engage in the transfer Smith, Ark., under the name of the Mer- business in the city of Ft. Smith was aschants' Transfer Company, and consolidated signed by that company to thé 0. K. Transhis business with that of the Ft. Smith fer & Storage Company at the time the Transfer Company. The Ft. Smith Mer- former corporation sold its property and aschants' Transfer Company was duly organ-1

sets to the latter corporation. In September, ized to take charge of the business of the 1921, J. W. Crabtree again engaged in the two concerns. 190 shares of stock in the transfer business in the city of Ft. Smith. new corporation were issued to Crabtree in After the Ft. Smith Merchants' Transfer payment of his business. He was elected Company sold out to the 0. K. Transfer & president of the new company, and assumed Storage Company it surrendered its charter, the management of its affairs. R. G. Moore and the corporation was dissolved. On this was elected first vice president and Ollie C. account the plaintiff made all the stockholdMoore was elected second vice president. ers in said corporation codefendants with J.

On the 23d day of June, 1914, J. W. Crab- W. Crabtree in the present suit. tree sold his stock and good will to the core

The chancellor found the issues in favor of poration for $9,000. He resigned as presi- the defendants, and it was decreed that the dent, and R. G. Moore was selected to succeed complaint of the plaintiff should be dismissed him. The minutes of the Ft. Smith Mer- for want of equity. chants' Transfer Company show that the directors met at 8:30 p. m. on June 23, 1914,

W. L. Curtis and Cravens & Cravens, all in Ft. Smith, Ark. J. W. Crabtree resigned

of Ft. Smith, for appellant. as president, and then sold 190 shares of

Warner, Hardin & Warner, of Ft. Smith, capital stock in said corporation and his

for appellees. good will to the corporation for the sum of $9,000, to be evidenced by notes of $200 each. HART, J. (after stating the facts as Crabtree's stock was held as collateral by the above). [1, 2] This court has sustained as Ft. Smith Bank & Trust Company at the time valid agreements by the vendor of a busithe sale was made, and the same was not ness with or without limitations as to time delivered until the morning of June 24, 1914. not to carry on the business within the limits On that morning R. G. Moore and J. W. Crab- of a certain city. Bloom v. Home Insurance tree met at the bank. The stock was de- Agency, 91 Ark. 367, 121 S. W. 293; Hamplivered to Moore, and the notes executed by: ton v. Caldwell, 95 Ark. 387, 129 S. W. 816; the corporation for the stock were delivered Kimbro V. Wells. 112 Ark. 126, 165 S. W. to the bank. This was in accordance with ' 615; Kimbro V. Wells, 121 Ark. 45, 180 Ş. the terms of the agreement made on the pre- W. 342. Under this rule Crabtree 'might vious evening. On the morning of the 24th make a valid agreement with the purchaser

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