Chicago, R. I. & P. Ry. Co. v. Earl

• Decision Date: 03 January 1916
• Docket Number: (No. 81.)
• Citation: 181 S.W. 925
• Parties: CHICAGO, R. I. & P. RY. CO. v. EARL.
• Court: Arkansas Supreme Court

Page 925

181 S.W. 925

CHICAGO, R. I. & P. RY. CO. v. EARL.

(No. 81.)

Supreme Court of Arkansas.

January 3, 1916.

Appeal from Circuit Court, Perry County; Guy Fulk, Judge.

Action by R. D. Earl against the Chicago, Rock Island & Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Reversed, and cause dismissed.

This suit was instituted by the appellee to recover damages from appellant for killing appellee's horse. Appellee alleged that he was the owner of the horse by virtue of a mortgage executed to him by Edmond Person; that his mortgage had been duly recorded before the horse was killed; that the debt of $150, which the mortgage was given to secure, was past due and unpaid; that the horse was of the value of $150; that appellant's agents negligently caused a train to strike and kill the horse to appellee's damage in the above sum, for which appellee prayed judgment.

Appellant answered, denying the allegations of negligence and pleading in bar of appellee's action that the horse was in possession of Edmond Person when it was killed, and that Person claimed to be the owner thereof; that appellant had settled all damages for the killing of the horse by paying to Edmond Person the sum of $195, and had obtained from him a full release.

The issues were submitted to the court sitting as a jury upon the following agreed statement of facts:

"It was agreed that the property in question was not in possession of the mortgagee at the time it was killed, and that it was in the possession of the mortgagor, personally.

"That the horse in controversy was originally the property of one Edmond Person; that prior to the alleged killing of the horse, said Person had executed a mortgage or deed of trust upon the horse, for the purpose of securing an indebtedness in favor of R. D. Earl, the plaintiff in this case; that said mortgage was duly acknowledged and recorded in the office of the recorder of Perry county, prior to the killing of the horse.

"It is further admitted that the facts of this case entitle the plaintiff to recover as a matter of law, if the settlement alleged in the answer by the defendant with Edmond Person is not a defense to the action, notwithstanding the fact that Person had legally executed a mortgage upon the horse, which was legally recorded prior to the killing of the horse and the settlement of the defendant with Person.

"It is further admitted that the defendant made payment to Person of the value of the horse, prior to the institution of this action and prior to presentation by the plaintiff to the defendant of any claim as such mortgagee."

The court rendered judgment in favor of appellee against appellant in the sum of $150, and this appeal was taken.

Thos. S. Buzbee, Jno. T. Hick, and H. T. Harrison, all of Little Rock, for appellant. Sellers & Sellers, of Morrilton, for appellee.

WOOD, J. (after stating the facts as above).

Under section 5396 of Kirby's Digest, which makes the filing of a mortgage for record notice to all persons of its existence, appellant had notice of appellee's rights under his mortgage.

"In the absence of stipulations to the contrary, the mortgagee of personal property shall have the legal title thereto and the right of possession." Section 5410, Kirby's Digest.

But until the mortgagee has actually taken possession, and so long as he permits the mortgagor to retain possession, the latter occupies the position of a bailee, and he has such a special ownership in the property that imposes upon him the duty of protecting it from wrongdoers, and that would make him liable to the beneficial owner if he failed to do so.

This...