Page images

amount sued for, on the 8th day of October, the letter to Judge Gautney was prepared and 1917. The judgment recites the appearance signed by her. of the plaintiffs by their attorney, J. F. Gaut- The circuit court made the following findney, and of the defendant by its attorneys ings of fact: Hawthorne & Hawthorne, and the offer of the defendant to confess judgment in the “On this day the motion pending in the foresum of $200. The judgment record then con- going described case is submitted to the undertains the following:

signed upon oral, documentary, and record evi

dence, from which the court finds that on the "The court, after making careful inquiry as 25th day of August, 1917, Edwin Prentiss to the extent of the injury, the character of the Heathcock was an employé of defendant cominjury, and the manner of the injury, finds that pany and was injured while working in the de$200 is a fair remuneration for the injury re- fendant's manufacturing plant; that said Edceived, including loss of time by the plaintiff win Prentiss Heathcock was at the time 17 Prentiss Heathcock, the damage to the plaintiff years of age and resided with his mother, his Mary E. Heathcock, on account of the loss of nearest of kin, and who was to some extent services of her son, the disfigurement of the dependent upon the earnings of the said Edwin band of Prentiss Heathcock, and for pain and Prentiss Heathcock for support; that on the suffering.

26th day of September, 1917, Mrs. Mary Heath"It is therefore considered, ordered, and ad-cock, the mother and nearest of kin of the said judged by the court that the plaintiffs, Prentiss Edwin Prentiss Heathcock, entered into a setHeathcock, by his next friend and mother, Mary | tlement with the defendant, agreeing to accept E. Heathcock, and Mary Heathcock, have and the amount agreed upon in full settlement of recover of and from the defendant, Truman all rights as to each of said parties, the mother Cooperage Company, the sum of $200 and all and son, flowing from the injuries so received, costs in and about this suit expended."

and, for the purpose of carrying out and making

effective such agreement, it was agreed that On the 10th day of October, the amount Judge J. F. Gautney be designated as the atof the judgment was paid to Mrs. Heathcock, torney for the said Mrs. Mary Heathcock, in and she executed a receipt to the cooperage her own right and as of next of kin of said company therefor.

minor, Edwin Prentiss Heathcock, and that suit According to the testimony of Mrs. Mary should be instituted in the Greene county cirHeathcock, neither she nor her son were pres- cuit court, in which judgment should be render

ed for such agreed amount; that proper coment when the case was tried in the circuit plaint was prepared by attorneys for the defendcourt, and no witnesses testified in the case. ant, and delivered to Judge Gautney, who filed She admitted receiving the $200, but stated the same in the Greene circuit court, and at that she did not instruct Judge Gautney to the same time the entry of defendant was filed, bring the suit and did not know that suit was and the matter submitted to the court upon the to be filed as the result of her negotiations pleadings and statement of counsel, and the with the claim agent of the cooperage com- judgment rendered for the amount agreed upon, pany. She stated that she did not remem- and there was no fraud or undue influence in

making said compromise settlement. ber writing the letter to Judge Gautney and only understood that the $200 was paid to of October, 1917, and prior to the institution

"The court further finds that on the 2d day help her out on account of the injury to her of the suit in the Greene circuit court, the son.

minor, Edwin Prentiss Heathcock, caused let. According to the testimony of Judge Gaut- ters of guardianship to be issued out of the ney, he acted on the authority of the letter probate court of Poinsett county, in which counfrom Mrs. Heathcock. No witnesses were ty he then resided and where the injury occurpresent in court, and no agreement was had red, and that such guardian was the duly apbetween him and the attorneys for the coop- the date of the institution of such suit, and of

pointed and acting guardian of said minor at erage company.

the rendition of the judgment therein, and that According to the testimony of J. C. Haw said guardian did not appear in said proceedthorne, he represented the cooperage com- ings. The court finds that the interest of the pany and prepared the complaint in the case. said Mrs. Mary Heathcock was effectually foreHe stated that no witnesses were introduced closed by the agreement so made, and the judgat the trial, and that the judgment was ren- ment recording the same, but the minor, Edwin dered after he and Judge Gautney had made Prentiss Heathcock, was not represented in said a statement of the matter to the court. proceedings, and that his right of action was

According to the testimony of other wit- not foreclosed thereby. nesses introduced by the defendant, Mrs.

"It it therefore by the court ordered that the Heathcock agreed that $200 would be a fair motion to set aside the judgment in so far as compensation for the injuries received by her it affects the rights of Edwin Prentiss Heathson, and this agreement was made after she cock be and the same is set aside, and said

motion is denied to Mrs. Mary Heathcock." fully understood the extent and character of his injuries. The matter was also fully understood by Edwin Prentiss Heathcock. Judgment was entered in favor of Edwin His mother understood it was necessary that Prentiss Heathcock in accordance with the judgment should be rendered in the circuit findings of fact made by the court, and the court for that amount, and for this reason | defendant has appealed.

Hawthorne & Hawthorne, of Jonesboro, for, to bring a suit by guardian, although one appellant.

may be in existence. The infant may sue Appellee, pro se.

by his next friend whether he has a guard

ian or not. Ordinarily, the guardian is the HART, J. (after stating the facts as above). proper person to represent his ward in all It will be noted, from the findings of fact legal proceedings, and, if objection had been made by the circuit court, that its judgment taken at the proper time that there was a proceeded upon the erroneous idea that the guardian by whom the suit should have been minor could not bring a suit by his next filed, it may have been that the court, in friend while he had a legally appointed the exercise of a sound discretion, might guardian. In the case of Miles v. Boyden, 3 have determined that the suit should have Pick. (Mass.) 213, the Supreme Court of the been changed and presented in the name of State of Massachusetts stated the English the minor by his guardian instead of as it law and the changes by statute in this re- was commenced. It is the business of the spect as follows:

court to see that no one stands between the "At common law infants were required to sue

infant and the protection of his rights, and and to defend by guardian. Co. Lit. 135 b, note for this purpose, although a minor may, un220. The law has not been altered as to the der our statutes, institute a suit either by manner in which they are to defend. But by his next friend or by his guardian, the court the statute of Westm. 1, c. 48, infants were may, in the exercise of a sound discretion, authorized to sue by prochein ami in an assise, determine whether or not it shall proceed as and Westm. 2, c. 15, in all other actions.

commenced. As sustaining this construc* It was a cumulative remedy, leaving it tion of our statute, see 21 Cyc. 191; Hooks optional for them to sue either by guardian or by next friend. Young v. Young, Cro. Car. 86; v. Smith, 18 Ala. 338; Williams v. CleaveGoodwin v. Moore, Id. 161."

land, 76 Conn. 426, 56 Atl, 850; Patterson

v. Pullman, 104 Ill, 80; Holmes v. Field, 12 This brings us to a consideration of our Ill. 424; Deford v. State, 30 Md. 179; Balown statute on the subject. Section 6021 timore v. Norman, 4 Md. 352; Burke v. of Kirby's Digest reads as follows:

Burke, 170 Mass. 499, 49 N. E. 753; Price v. “The action of an infant must be brought by 497 (Gil. 473) 10 Am. Rep. 166; Stewart v.

Phænix Mutual Life Insurance Co., 17 Minn. his guardian or his next friend. Any person may bring the action of an infant as his next Sims, 112 Tenn. 296, 79 S. W. 385; Robert friend; but the court has power to dismiss it, Robson v. Benjamin Osborn, 13 Tex. 298; if it is not for the benefit of the infant, or to Thomas v. Dike, 11 Vt. 273, 34 Am. Dec. 690. substitute the guardian of the infant, or another The recitals of the record show that, in the person, as the next friend."

suit of the minor by his next friend against

the cooperage company for damages, the cirIn the construction of this statute in St. cuit court made a judicial investigation of Louis, Iron Mountain & Southern Ry. Co. the merits of the controversy and of the v. Haist, 71 Ark. 258, 72 S. W. 893, 100 Am. character and extent of the minor's injuSt. Rep. 65, the court held that, where a ries before it allowed the judgment to be suit was brought for a minor by a foreign rendered. This is in accordance with the guardian who was not qualified to sue in rule laid down in Rankin v. Schofield, 71 Ark. this state, the court was right in appointing 168, 66 S. W. 197, 70 S. W. 306, 100 Am. some one as next friend to look after the St. Rep.. 65, and other cases on the subject minor's interests in the suit, instead of dis- decided by this court. The record, also, missing it. To the same effect, see Parker shows that the court made a specific findv. Wilson, 98 Ark. 553, 136 S. W. 981. Again, ing of fact that no fraud was practiced upon in Watts v. Hicks, 119 Ark. 621, 178 S. W. the minor in the matter; but the judgment 924, the court held that a minor by his next of the trial court in setting aside the judg. friend might file a remonstrance and ap- ment in favor of the minor in the suit for peal from an order of the probate court di- damages is based wholly on the theory that recting a sale of the land of the minor upon the minor could not prosecute that suit by the application of the guardian who had left his next friend while he had a guardian in the state.

existence, But so far as we are advised the extent of It follows, from the views we have exthe authority given by this statute has never pressed above, that the court was wrong in been judicially determined. It is evident, so holding, and for that error the judgment from the language used in the section above must be reversed, and the cause will be requoted, that an infant is not always bound manded for a new trial.

that the policy had been forfeited, and an SOVEREIGN CAMP, WOODMEN OF THE action was commenced by the beneficiaries WORLD, v. WILSON. (No. 246.)

against appellant in the circuit court of (Supreme Court of Arkansas. Nov. 18, 1918.) Craighead county on July 9, 1917, and sum

mons was served on the clerk of the local 1. INSURANCE CM 814-MUTUAL BENEFIT IN- organization at Jonesboro. Mr. Nichols, the SURANCE-SERVICE OF PROCESS--STATUTE. clerk of the local organization, inadvertently

Though a fraternal society did not comply failed to send in the copy of the summons to with Acts 1917, p. 2087, § 17, within the 30 the home office, or to notify that office of the days prescribed, by designating the commission

pendency of the suit, and at the succeeding er of insurance as its agent for service of pro- September term of the Craighead circuit court cess, where it did so thereafter, subsequent serv- judgment by default was rendered against ice on the clerk of a local lodge, in compliance with the superseded statute (Kirby's Dig. g appellant. The officers of appellant's organ4378), was not proper.

ization, or “Sovereign Camp," as it is termed,

did not discover that the action had been 2. JUDGMENT Cw495(2)—JUDGMENT RENDER- commenced and the judgment had been renED WITHOUT NOTICE VOID CHARACTER

dered until a day in January, 1918, and at PRESUMPTION.

once filed its complaint against appellees in Though Kirby's Dig. § 4424, provides that the said court to set aside the default judgjudgments rendered without notice shall be void, a presumption of regularity attends a judgment ment on the ground that there had been no of a superior court of general jurisdiction, which valid service of process summoning appellant can be controverted only by showing there was to answer in the action. Appellant tendered no notice, and that a meritorious defense existed with its complaint an answer to the original which could have been asserted.

action setting forth as a defense to the ac3. JUDGMENT 162(2)—JUDGMENT WITHOUT tion the alleged forfeiture of the policy or

SERVICE OF NOTICE-SETTING ASIDE-BUR- benefit certificate. Appellees filed their anDEN OF PROOF.

swer to the complaint, and the court heard Burden was on defendant to prove its de- | the matter on the pleadings and the testifense, at least to introduce testimony making mony introduced, and rendered judgment out a prima facie defense, before it could ask for refusing to set aside the former judgment of setting aside of original judgment against it on the court, from which an appeal has been ground that there was no proper service of no- prosecuted to this court. tice.

The statute in force at the time of the 4. INSURANCE 755(3) MUTUAL BENEFIT commencement of the original action of ap

INSURANCE FORFEITURE OF POLICY - RE- pellees against appellant prescribing the SUMPTION OF EXTRAHAZARDOUS OCCUPATION. method of service of process on fraternal in.

Where member of benefit society was engag- surance societies is section 17 of the act of ed in extrabazardous occupation, and never March 28, 1917, which had the emergency changed, but society voluntarily reduced assess clause and went into immediate effect. Acts ment as if he had, and it was paid for years, aft- 1917, p. 2087. The section referred to reads er member's death society cannot insist on forfeiture by failure to pay assessments based on

as follows: extrabazardous occupation on the ground mein- "Every society, whether domestic or foreign, ber was in default in failing to give notice of now transacting business in this state shall, resumption of such occupation, which he had within thirty days after the passage of this act, never abandoned.

and any such society hereafter applying for ad

mission shall, before being licensed, appoint in Appeal from Circuit Court, Craighead writing the commissioner of insurance and his County; J. T. Coston, Special Judge.

successors in office to be its true and lawful atAction by the Sovereign Camp, Woodmen torney on whom all legal process in any action

or proceeding against it shall be served, and in of the World, against Gladys T. Wilson, such writing shall agree that any lawful process guardian. From judgment for defendant, against it which is served upon such attorney plaintiff appeals. Affirmed.

shall be of the same legal force and validity as De E. Bradshaw, of Omaha, Neb., and shall continue in force so long as any liability

if served upon the society and that the authority Rhoton & Helm, of Little Rock, for appellant. remains outstanding in this state. Copies of

Lamb & Frierson, of Jonesboro, for ap such appointment, certified by said insurance pellee.

department shall be deemed sufficient evidence

thereof and shall be admitted in evidence with MCCULLOCH, C. J. Appellant is a frater. the same force and effect as the original thereof nal society incorporated under the laws of might be admitted. Service shall only be made another state, and Purd Tatham was a mem

upon such attorney, must be made in duplicate ber of appellant's local organization or so absence, upon the person in charge of his office,

upon the commissioner of insurance, or, in his ciety at Jonesboro at the time of his death, and shall be deemed sufficient service upon such being the holder of a benefit certificate in the society: Provided, however, that no such service sum of $2,000, payable to his wife and child. shall be valid or binding against any such socieAppellant refused payment on the ground ty when it is required thereunder to file its an.

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

swer, pleading or defense in less than thirty days [2] The contention of appellant is that from the date of mailing the copy of such serv- j the judgment was absolutely void because ice to such society. Wben legal process against the service of process was not in accordance any such society is served upon said commission with the method prescribed by the statute. er of insurance he shall forthwith forward by Our statute (Kirby's Digest, § 4424) provides registered mail one of the duplicate copies pre that all judgments rendered without notice paid and directed to its secretary or corresponding officer. Legal process shall not be served up shall be absolutely void, but there is a preon any such society except in the manner pro- sumption of regularity attending a judgment vided herein."

of superior courts of general jurisdiction

(Boyd v. Roane, 49 Ark. 397, 5 S. W. 704), Appellant on May 25, 1917, filed with the which cannot be controverted except by showcommissioner of insurance of this state a ing that there was in fact no notice, and written instrument appointing that officer that there existed a meritorious defense to and his successors to be the attorney of the action which could have been asserted if appellant on whom legal process might be notice had been given (State v. Hill, 50 Ark. served as specified in the statute quoted 458, 8 S. W. 401; Quigley v. Hammond, 104 above. The statute in force prior to the en- Ark. 449, 148 S. W. 275). actment of the new statute just referred to

[3, 4] This brings us to a consideration of provided:

the question whether or not appellant brought That in actions against fraternal societies the itself within the principle just announced by service should be on "the chief officer, or in case introducing proof sufficient to make out a of his absence, the secretary of the subordinate prima facie case of a meritorious defense to lodge or society through which the policy was the original action which might have been issued or obtained, or on the chief officer, or in asserted if notice had been given. Knights case of his absence on the secretary of any sub- of Maccabees of the World v. Gordon, 83. ordinate lodge in this state of such fraternal Ark. 17, 102 S. W. 711; Quigley v. Hammond, society.” Kirby's Digest, & 4378.


After careful consideration of the [1] The act of 1917 supra prescribes the testimony, our conclusion is that appellant exclusive method of service of process on failed to show the defense that there was a fraternal societies, but it is contended on forfeiture of the policy, and that the court behalf of appellees that it had no application was correct in refusing to set aside the judgto their action against appellant for the ment in the original action. reason that the latter did not comply with Tatham became a member of appellant's the statute within the period of 30 days pre- local organization at Jonesboro in the year scribed therein, and that the old method of 1897, and paid his dues regularly up to the service of process continued to be the legal time of his death. He was a 'railroad switchmethod of obtaining service on these socie- man at the time he joined the society, and ties until the next period under the statute that occupation was, under the by-laws of the for compliance, which would have been in society at the time Tatham joined, treated April, 1918. We do not agree with the argu- as an extrahazardous one, and an additional ment of counsel for appellees that the old amount was added to the monthly assessmethod of service continued in force after ment. The constitution and laws of the compliance with the terms of the new stat- order contained a provision on that subject ute by appellant, notwithstanding such com- as follows: pliance was not within the 30-day period "Change of occupation by any member to a specified in the statute. Appellant had no prohibited one shall not invalidate his certifiright to continue to do business in the state cate, but his rate of assessment shall be increasafter the expiration of the 30 days from the ed thereafter by adding twenty cents to each aspassage of the statute, except upon compli- sessment upon each one thousand dollars or less ance with its terms, and it was subject to named in his certificate while he is so engaged." penalty during the period of omission. But the terms of the statute were later complied The constitution was subsequently changed with, and thereafter service on the commis- so as to make the assessment 30 cents addi. sioner of insurance was the only legal meth- tional on prohibited occupations. In the year od of serving process.

1901 the supreme officer of the society Whether or not the continuance by ap- changed Tatham's assessment by striking pellant of its business in the state during out the additional amount for the prohibited the period of omission bound appellant by risk, and thereafter Tatham's rate of assessany service of process on the commissioner ment was fixed according to the preferred of insurance, notwithstanding its failure to class, and he continued to pay the lower file the required certificate of appointment, assessment as long as he lived. The proof we need not now decide. At the time the shows that Tatham's assessments were al. action of appellees against appellant was ways paid by his wife in his absence. The commenced the certificate of appointment had change in the rate of assessment was made been filed, and service on the commissioner on the theory and under the belief that Tatof insurance was the only way to get service ham had given up his occupation as railroad on the society.

| switchman and had become a farmer. The proof shows that he was a railroad switch-f in default in failing to give notice of a reman at the time of his death, and the for- sumption of his extrahazardous occupation feiture of the policy is claimed on the ground for the reason that he had never abandoned that he failed to notify appellant's officers of it. He joined the society as an extrahazardthe resumption of the occupation of railroad ous risk, and correctly declared his occupation switchman so as to charge him with the addi- in his application. He never changed that tional rate on the extrahazardous risk. The occupation for aught that appears in the by-law of the order under which this defense proof in this case, and he was under no is put forward reads as follows:

obligation to give any notice of his continued "If any member engages in any of the occu- pursuit of that occupation. Appellant cannot pations or businesses mentioned in this section, take advantage of its own error to defeat he shall within thirty days notify the clerk of his the payment of the policy, since it has accamp of such change of occupation, and while cepted payment of the assessments demanded. 80 engaged in such occupation shall pay on each

Judgment affirmed, assessment thirty cents for each one thousand dollars of his beneficiary certificate in addition to the regular rate. Any such member failing to notify the clerk and to make such payments as above provided shall stand suspended, and his beneficiary certificate be null and void.”

LIND V. STATE. (No. 248.) The weakness of appellant's case as pre- (Supreme Court of Arkansas. Nov. 18, 1918.) sented on the motion to set aside the original judgment was that it failed to show that 1. SEDUCTION W54-SUSPENSION OF PROSETatham ever quit the extrahazardous occu- CUTION-MARRIAGE. pation of railroad switchman, and subse- Kirby's Dig. $ 2044, providing for suspension quently resumed that occupation. Mr. Yates, of prosecution for seduction where defendant one of the supreme officers, testified that he marries the female, is for the benefit of the acdirected the reduction of Tatham's assess-cused; and where accused was forced to submit ment when he was notified in the year 1901, to the marriage ceremony there was no marriage either by the local clerk at Jonesboro or by at all, and the statute had no application on a

resumption of the prosecution by reason of deTatham himself, that he had quit the occu- sertion of the female. pation of switchman and had become a farmer, but this testimony was clearly incompe- 2. SEDUCTION 52 - HARMLESS ERROR - INtent, for it failed to show that Tatham had STRUCTIONS. in fact notified the order of a change of his In a prosecution for seduction accused could occupation. Mr. Yates did not produce any not have been prejudiced by the reading of Kirevidence of notice by Tatham himself that by's Dig. § 2044, to the jury, prosecution hay

ing been resumed after being suspended by reahe had changed his occupation. Mr. Parsons, son of a forced marriage, the undisputable testiwho was clerk of the local camp in the year mony showing that accused, without any legal 1901, when the reduction of Tatham's assess- cause, willfully abandoned the prosecutrix. ments was made, testified that he had no personal knowledge of Tatham having 3. SEDUCTION Cw46–CORROBORATION. changed his occupation, and Mr. Nichols, In seduction case, where accused admitted who became clerk shortly after the change the sexual act, further corroboration of the pros

ecutrix as to that was unnecessary. was made, testified that he had no personal knowledge of the matter, except that he re- 4. CRIMINAL LAW Om519(1) CONFESSIONS membered that Tatham moved out on ADMISSIBLE IN EVIDENCE, farm, but that, for aught he knew to the A confession having once been voluntarily contrary, Tatham continued his occupation as made, the fact that appellant afterwards repeatswitchman, coming back and forth from hised the confession under duress did not destroy farm near Jonesboro to pursue his occupation or lessen the effect of the voluntary confession. as switchman. It devolved on appellant to 1 5. CRIMINAL LAW 535(2) — CONFESSION prove its case, or at least to introduce tes

CORROBORATION. timony making out a prima facie defense to

Although, under Kirby's Dig. § 2385, one the action, before it could ask for the setting could not be convicted of seduction upon his conaside of the original judgment. Knights of fession alone, yet, when combined with testimoVaccabees of the World v. Gordon, supra. ny of prosecutrix establishing the corpus delicti,

If Tatham never changed his occupation at it is sufficient. all, and appellant's supreme officers volun

6. SEDUCTION Cm 46 - CORROBORATION CONtarily reduced Tatham's assessment, and

FESSION. same were paid throughout the many years

Although, under Kirby's Dig. 8 2013, one which Tatham continued to be a member, cannot be convicted of seduction upon the unappellant cannot now insist on the forfeiture corroborated testimony of the prosecutrix, yet, by reason of failure to pay assessments based when combined with a confession made by the on the extrahazardous risk. Tatham was not accused out of court, is sufficient to convict.

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


« EelmineJätka »