Wakin v. Wakin

• Decision Date: 28 June 1915
• Docket Number: 74
• Citation: 180 S.W. 471,119 Ark. 509
• Parties: WAKIN v. WAKIN
• Court: Arkansas Supreme Court

180 S.W. 471

119 Ark. 509

WAKIN v. WAKIN

No. 74

Supreme Court of Arkansas

June 28, 1915

Appeal from Miller Circuit Court; George R. Haynie, Judge; affirmed.

STATEMENT BY THE COURT.

Appellees sued the appellant, alleging in substance, that one Hamisey was, at the May term, 1913, of the district court of Bowie County, Texas, in seven different indictments, charged with the illegal sale of whiskey, which was a felony under the Texas laws, and bail was fixed in each case at $ 100; that Hamisey had executed bond for his appearance; that the appellee Davis Wakin was the step-father and appellee Sarah Wakin the mother of Hamisey; that appellees at the instigation of appellant procured two persons named Kuhl to become surety on Hamisey's bond, and in order to indemnify them as sureties on the bonds, appellees at appellant's instigation, executed and delivered to the Kuhl's a mortgage or deed of trust on a certain brick building in Texarkana; that the bonds constituted a contract between Hamisey and the Kuhls by the terms of which Hamisey was to appear at the district court of Bowie County, Texas and in case of his failure to do so the Kuhls had contracted to pay to the State of Texas the amount mentioned in the bonds; that by reason of the contract of indemnity between the Kuhls and the appellees, appellees were to indemnify the Kuhls in case there was a forfeiture of the bonds by Hamisey and therefore appellees were the real parties in interest that Hamisey was released from prison upon the execution of these bonds, and that the appellant Wakin conspired with him to have him leave the jurisdiction of the court of Texas and thereby forfeit his bond; that he did leave the State of Texas and forfeit his bond; that appellees endeavored to apprehend Hamisey and to bring him before the court, and in their effort they necessarily expended the sum of $ 667.02 that from June 15, 1913, when Hamisey fled, until December 1, 1913, when he was apprehended, appellees had suffered a loss from their business in their efforts to apprehend Hamisey in the sum of $ 1,000.00. They set forth that they had expended in all $ 1,696.40, which represented the actual damages they had sustained by reason of the forfeiture which they allege that the appellant had caused, and prayed for judgment in that sum, and for $ 1,000.00 punitive damages which they alleged they had suffered by reason of appellant's willful act in inducing Hamisey to leave the jurisdiction of the Texas court and to forfeit his bond. The answer denied the allegations of the complaint.

The undisputed evidence showed that the bonds were executed in the manner alleged in the complaint; that the Kuhls were sureties on the bonds; that appellees executed a deed of trust to the Kuhls on property which was ample security to them for the amount they were obliged to pay in case of a forfeiture of the bonds; that the deed of trust was executed to secure the Kuhls against liability by virtue of becoming sureties on the bonds of Hamisey; that judgments of forfeiture were taken on the bonds, and that on the surrender of Hamisey these judgments were set aside, and that the costs of the proceedings were $ 29.40.

Appellees, over the objection of appellant, were permitted to read the deposition of Hamisey. The ground of objection urged was that Hamisey was not a qualified witness. Hamisey was asked if he understood the meaning of an oath and answered that he did; that he understood that an oath meant for the witness to swear; that it meant for him to swear to tell the truth. He was asked if he swore to a lie what the result would be, if any, and answered, "I don't know what the result would be; it would be life in the penitentiary."

The testimony of Hamisey tended to show that he was 19 years of age, and that the appellee Sarah Wakin was his mother. He was arrested in Texarkana for the illegal sale of whiskey and was placed in jail on that charge. His mother fixed up his bond and he was released from jail. He came back to Texarkana, Texas, and stayed with his mother eight or nine days. He had no money. In Texarkana the appellant told the witness that they were going to send him to the penitentiary for five years, and appellant said that he would give witness money for him to leave town; that appellant told witness to go back to the old country; told him to see a certain party in New York who would give him money to go to the old country. Appellant gave witness $ 25.00 and told witness to see appellant's brother George, when he got to Little Rock, who would also give him $ 25.00. The witness left that night and went to Little Rock and went to see appellant's brother George, who was running a saloon for appellant, and he bought a ticket for witness to St. Louis by way of Memphis.

Before witness was placed in jail at Texarkana he sold whiskey for appellant in Texarkana, Arkansas and Texas. The appellant delivered the whiskey to him and he sold it at 25 cents a pint.

The appellees then introduced testimony tending to show the amounts that had been expended by them in endeavoring to procure the arrest of Hamisey after he fled the State of Texas. It is not contended by the appellant that the sums were not expended by the appellee in an effort to secure the arrest and return of Hamisey to the State of Texas in order to have the forfeiture set aside.

The appellant, in his testimony, stated that he was the owner of a saloon in Little Rock, run by his brother, George Wakin. He did not furnish Hamisey with whiskey to peddle on the Texas side and had nothing to do with the making of his bonds. He had pleaded guilty in seven or eight cases in Miller County for taking orders for intoxicating liquors. George Wakin testified that appellant did not tell him to give Hamisey any money.

The court instructed the jury to the effect that if appellant did induce and encourage Hamisey to leave the State and forfeit his bonds, by which the appellees were damaged as alleged in their complaint, that the verdict should be in their favor, and instructed them to take into consideration, in measuring the damages, the expenses that the appellees had incurred in procuring the arrest of Hamisey and his return to Texas, and any costs for which they were liable on account of the forfeiture proceedings.

There was a general objection to this instruction, which was overruled. The appellant requested a peremptory instruction, which was overruled.

The jury returned a verdict in favor of the appellees in the sum of $ 349.96. Judgment was rendered in their favor for this amount and appellant has duly prosecuted this appeal.

Judgment affirmed.

M. E. Sanderson and John N. Cook, for appellant.

1. Sam Hamisey was incompetent to testify; he did not understand the obligation of an oath, and had no knowledge of a place of rewards or punishment. 25 Ark. 92; 93 Id. 138; 109 Id. 345.

2. The contract was not made for the benefit of appellants, and they were strangers to it, and the breach of it was not the proximate cause of the injury. They could not sue on it. 43 S.E. 419; 60 S.W. 1058. The money they spent was to protect the bondsmen, but their liability to the bondsmen was in no way connected with the liability of the bondsmen to the State of Texas. 98 Cal. 578; 15 S.W. 57; 43 S.W. 419; 66 Ark. 68. As to remoteness and non-liability see 56 Ark. 279; 55 Id. 510; 76 Id. 430.

3. Appellees' attorney's closing argument was clearly improper.

Louis Josephs, R. P. Dorough and Will Steel, for appellees.

1. Sam Hamisey was a competent witness. 93 Ark. 158; 25 Id. 92.

2. The breach of the contract was the proximate cause of the injury. Persons who aid another to violate a contract, even with a stranger, to his injury, are liable. 86 Ark. 130; 38 Cyc. 508; 64 Ark. 221.

3. The objection to the argument of attorney is frivolous. But if improper, it was harmless.

WOOD, J. MCCULLOCH, C. J., dissenting.

OPINION

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

Sam Hamisey was 19 years of age. It must therefore be presumed that he had common discretion and understanding until the contrary appears. There is nothing in the record to show to the contrary. But his testimony does show that he had sufficient natural intelligence and had sufficient understanding to apprehend the nature and effect...