Arkansas Bankers' Ass'n v. Ligon

295 S.W. 4, 174 Ark. 234, 53 A.L.R. 534, 1927 Ark. LEXIS 343

• Court: Supreme Court of Arkansas
• Decided: May 30, 1927
• Status: Published

Opinions

Wood, J.

This is an action by the plaintiff, Ligón, against the defendants, Special Protective-Bewards Committee of the Arkansas Bankers’ Association and Arkansas Bankers’ Association, to recover a reward.

The plaintiff alleged that the defendants offered a reward of $500 for the arrest and conviction of any pern son ‘ ‘burglarizing by forcible and violent breaking and entry, or attempt to burglarize by forcible and violent breaking and entry, or of robbing or attempting to rob, any member of the Arkansas Bankers’ Association.” The plaintiff alleged that the Bank of Gflenwood, at Grlen-wood, Pike County, Arkansas, was a member of the Bankers’ Association and the rewards committee on the 12th of March, 1925; that on that day Hadley Babbitt did burglarize by forcibly and violently breaking and entering the building occupied by the Bank of Grlenwood, with the intent to commit a felony, and did then and there commit burglary and grand larceny by breaking and entering the building occupied by the Bank of Grlen-wood and carrying away the sum of $65. Plaintiff alleged that he arrested Babbitt as he came out of the bank building and delivered him to the city marshal at Glenwood; that he was afterwards convicted in the juvenile court, and is held as a ward of that court. The plaintiff alleged that he made the arrest as a private citizen, and had complied with the terms of the offer of the reward, and that the defendants had failed and refused to pay the same, for which plaintiff prayed judgment.

. The defendants answered, and admitted all the allegations of the complaint as to the offer by the defendants of a reward and of the burglary and grand larceny by Babbitt, and of his arrest and conviction, but denied that the plaintiff was entitled to the reward, because of the following facts: The said Hadley Babbitt is a minor under the age of eighteen years. At and before the time when the said Hadley Babbitt began the aforesaid forcible breaking and entry of the building in which the Bank of Glenwood was situate, plaintiff was watching said Hadley Babbitt, and saw and observed each and all of the acts and things done and committed’ by the said Hadley Babbitt during and immediately before the forcible breaking- and entry, and the said plaintiff could, without effort or danger, have prevented both the breaking and the entry of the building; but, notwithstanding the fact that he could have thus prevented the commission of the crime, he failed and refused so to do. On the contrary, he continued'to watch and observe the said Hadley Babbitt throughout the entire time during which the latter was committing the breaking, entry and exit, ■ and, after the breaking, the entry and the exit had all been effected under plaintiff's observation as aforesaid, plaintiff captured Hadley Babbitt and delivered him to the city marshal of Glenwood. The defendants are informed and believe, and therefore allege, that at all. .times herein mentioned plaintiff was acquainted with the terms of the notice by which the Special Protective Rewards Committee offers rewards for the-capture and conviction of persons burglarizing member banks, and that his failure to take any steps toward the prevention of the commission by the said Hadley Babbitt of the aforementioned crime was due to his desire to collect a reward from these defendants. .By reason of the facts above set out, plaintiff constituted himself an accessory before the fact to the crime committed by the said Iiadley Babbitt, and he is not entitled to receive or collect a reward in any amount whatsoever from either of these defendants.

The cause was begun in the circuit court and was, by consent of parties, transferred to the chancery court.

The plaintiff testified in his own behalf, substantially as follows: He had been living in the vicinity of Glen-wood for fifteen years. He had been acquainted with Hadley Babbitt for about seven or eight years. Witness was working in a hardware store in the town of Glen-wood, about 100 feet or more from the Bank of Glen-wood. On the 12th of March, 1925, witness saw Hadley Babbitt on the sidewalk which passes along by the bank' building. It was between 12 and one o ’clock. His attention was called to Babbitt by D. M. Caldwell, who was standing in the door of the hardware store where witness was working. Caldwell called witness’ attention to the fact that some one was in the bank building, and witness went down to the bank to arrest him. Witness stopped at the window and saw Babbitt get some money out of the till of the bank and put it in his pocket. Babbitt had entered the building by raising a window at the rear of the bank.- He had gone up a stairway and removed a screen and entered the bank through a window. Witness stepped up to a window to see what Babbitt was doing. Witness went to the place where Babbitt entered the bank, and Babbitt, who was then coming toward the window, saw the witness standing there waiting for him, stopped, and backed himself up in a corner of the building. Witness then went to the side door, and Babbitt-unlocked the door and -came out. Witness took charge of him -and delivered him to the town marshal, and told the marshal what Babbitt had done. After Babbitt had procured the money he started to go out the same way he came in, and, when he saw witness, he hid himself in the directors’ room. Then the witness went around, and, when Babbitt saw him standing at the door, lie unlocked the door and came out, and witness look charge of him. Witness told the officers where he saw the boy hide himself in the bank, and they searched' that place for money and found $21 in pigeonholes and one place and another. Babbitt was convicted of the robbery of the Bank of G-lenwood in the Pike Circuit Court, the crime for which witness had arrested him. At the time witness arrested Babbitt witness did not know that there was a reward offered for him. Witness made the arrest because he thought it was his duty as a citizen for the benefit of the bank and the town. Witness appeared before the grand jury as a witness against Babbitt for the crime.

On cross-examination the witness described the situation of the store building from which he first saw "Babbitt and the bank building which he afterwards saw Babbitt enter. When he first saw Babbitt he,was just walking up and down along the sidewalk. It was probably a minute from the time witness first saw him on the. sidewalk until the time he first saw him lift the screen. While he was lifting the screen he sat down on the steps .of a stairway on the outside of the building. It was Babbitt’s peculiar actions that first attracted the attention of witness and Caldwell. When witness first saw Babbitt there was no one in the bank. The officers and employees had gone to lunch. Witness watched Babbitt from the time he first saw him until a customer came in, and witness went to wait on the customer. Witness had had an account at the bank for several years, and was in and out of the bank frequently. He made his deposit at the teller’s window, just as other customers. After witness’ attention was called to Babbitt’s peculiar action, witness wanted to see what he was going to do if he entered the bank. If there was anything wrong with the boy, witness wanted to know it. Witness and Caldwell were standing there watching him, and said, “We will just see what he is going to do.” Then witness went back in the store to wait on a customer. Witness did not know exactly what Babbitt’s purpose was in walking up and down the sidewalk and-opening .the window, hut his conduct looked out of the ordinary, and it was for that reason that witness watched him. His actions were suspicious. If witness had not been practically certain that Babbitt’s purpose was evil, he would not have watched him. Witness did not know what Babbitt’s occupation was. Witness thought Babbitt was seventeen years old. Witness did not think that he was a janitor in the bank. When witness observed Babbitt’s suspicious conduct, he might have called his attention, but .witness did not know but what he would have been butting in where he had no business, and did not do so. Witness went on and waited on the customer. Witness did not know what Babbitt was going to do, and therefore did not feel like it was his duty to get out there and holler at him. Witness had known Babbitt and his parents for many years. Witness and Babbitt’s father were young men together — had grown up in neighboring settlements. Babbitt’s family were customers of the witness. After witness had finished waiting on his customer, and went to the bank to see what Babbitt was doing, he did not call to Babbitt when he saw him reaching into the till to get the money, but stepped around to a position where witness could arrest him as he came out. Witness thought that was the thing for him to do. Witness was not in the bank, the doors were locked, and witness thought the safest plan was for him to catch Babbitt as he -came out of the bank. Witness probably could have stopped Babbitt before, but did not do so. Witness was first informed, that day or the next, about the offer of the reward made by the Bankers’ Association. Witness had never noticed the offer of reward that had been posted in the window of the bank. He did not know it was there. After it all happened and witness was informed of the reward, witness made this statement: “If the Bankers’ Association publishes a reward for a thing of that kind, if I was entitled to it, I just as well have it as not, otherwise I wou-ld not ask for it.”

Witness went to the- prosecuting attorney and told him about it, not altogether for the purpose of getting the reward. Witness felt that the laws ought to be enforced, and, if Babbitt had broken the law, he should be punished for it. If witness was entitled to the reward, he had just as well have it as not. Witness went to both the’ judge and prosecuting attorney and talked to them about it. After witness was informed about the reward he knew that it was necessary to have Babbitt indicted and convicted in order to obtain the reward.

The testimony of the witness Caldwell corroborated the testimony of the plaintiff in regard to the manner in which Babbitt entered the bank on March 12, 1925. He stated that he called plaintiff’s attention to the boy at the particular moment when Babbitt was sitting on the steps with his arm under the window. That a customer came into the hardware store, and Ligón waited on him and then came out. While Ligón was gone to wait on his customer, Babbitt entered the bank through the window. Witness then went to where Mr. Ligón was, and told him that the boy had gone into the bank. Mr. Ligón then went over to the bank, and was standing* near the door on the north side when the boy came out. Ligón said something to the boy, and came back with him and turned him over to the marshal of the town. It was Babbitt’s peculiar and suspicious actions which caused witness to direct the attention of Mr. Ligón to him. Witness thought that he intended to enter the building through the window. Neither Ligón or witness said anything to the boy while they were watching his actions. After Mr. Ligón went over to the bank he stood there at the window only a few minutes, then walked around to the door, and was there -when the boy came out.

McP. Gibbs testified that he had been an officer of the Bank of Glenwood for the past seven years. During all that time the bank had been a member of the Arkansas Bankers’ Association and a party to the special protective rewards agreement. There had always been on display in the bank in a prominent position a placard or card setting forth the special protective rewards committee’s offer of reward for the arrest and conviction of persons burglarizing member banks. This placard was by the front paying teller’s window, the window to which depositors came to make deposits and at which were presented checks for payment. It was the window through which 90 per cent, of the bank’s business is transacted. The placard faces so that any one'walking in at the door of the bank and up to the window sees it. No one can help seeing it. The placard sets forth, in heavy black-faced type, the offer of the rewards committee to pay rewards for the capture and conviction of persons robbing member banks. Babbitt had never been employed by the bank in any capacity whatsoever. The next day after the commission of the crime by Babbitt, his father had made good the loss. On account of the boy’s youth neither the bank nor its officers pushed any prosecution against him. The bank had nothing to do with the prosecution. Witness was subpoenaed before the grand jury as a witness.

The trial court found, upon the above facts, that the plaintiff was entitled to recover a reward of $500, and entered a decree in favor of the plaintiff against the defendants for that sum, from which is this appeal.

The theory upon which the rewards are recoverable, when offered by individuals or corporations, is that in some manner a contract relation exists between the one offering the inward and the one claiming the same. Before recovery can be had in any action for reward, the facts must be such as to justify the conclusion that the plaintiff or person who .claims the reward is entitled thereto because he has performed the services, for which the reward -was offered on the faith of the offer of such reward. While there is a sharp conflict in the authorities, both the better reason and the weight of authority is in favor of the above doctrine. The rule and the reason for it is well stated by Judge Hand, speaking for the Supreme Court of Illinois, in Williams v. West Chicago Street Ry. Co., 191 Ill. 610, 61 N. E. 456. 85 Am. State Rep. 278, as follows:

“The right to recover a reward arises out of the contractual relation which exists between the pelson offering the reward and the claimant, which is implied by law by reason of the offer on the one hand and the performance of the service on the other, the reason of the rule being that the services of the claimant are rendered in consequence of the offered reward, from which an implied promise is raised on the part of the person offering the reward to pay him the amount thereof by reason of the performance by him of such service, and no such promise can he implied unless he knew at the time of the performance of the service that the reward had been offered, and in consideration thereof, and with a view to earning the same, rendered the service specified in such offer. ’ ’

See other authorities there cited. See also 23 R. C. L., page 1115 el seq., particularly §§ 3 and 6; 34 Cyc. page 1730, § 1 (a) and page 1751, § 6, and authorities cited in notes; also note to Board of Commissioners of Clinton County v. Davis, 162 Ind. 60, 69 N. E. 680, 64 L. R. A. 780, 1 Ann. Oas. page 282, 285,-and cases there cited.

A well reasoned case, where the authorities pro and con are cited and reviewed, is that of Broadnax v. Ledbetter, 99 S. W. 1111, 9 L. R. A. (N. S.) 1905, 100 Tex. 375, in which Judge Williams, speaking for the Supreme Court of Texas, among other things said:

“The liability for a’reward of this kind must be created, if at all, by contract. There is no rule of law which imposes it except that Avhich enforces contracts voluntarily entered into. A mere offer or promise to pay does not give rise to a contract. That requires the assent or meeting of two minds, and therefore is not complete until the offer is accepted. Such an offer as that alleged may be accepted by any one who performs the service called for when the acceptor knows that it has been made and acts in performance of it, but not otherwise. He may do such things as are specified in the offer, but', in so doing, does not act in performance of it, and therefore does not accept it when he is ignorant of its having been made. There is no such mutual agreement of minds as is essential to a contract. * * * The mere doing of the specified things without reference to the offer is not the consideration for which it calls. This is the theory of the authorities which we regard as sound.” See authorities there cited.

There are certain well recognized, exceptions to the above rule which are mentioned in the authorities, hut which it is unnecessary for us to refer to here, because this case does not come within any of them.

The undisputed testimony of the appellee himself shows that the services he performed in the arrest of young Babbitt were without reference to the offer of reward. Among other things he stated: “My purpose was not any money interest, but rather interest in the enforcement of the laws of the country. Dr. Pate called my attention that appellants offered a reward for conviction of a person for such a crime. I appeared before the grand jury and was a witness in the case.” While the witness further stated that he talked with both the prosecuting attorney and the circuit judge, he does not make it clear that his actions in the premises were for the purpose. of obtaining the reward. On the contrary, giving the testimony of the appellee its strongest probative force in his favor, it tends to prove that he was actuated, at least primarily, for the enforcement of the laws and not for the obtaining of the reward.

Learned counsel for appellee, however, insists that a lack of knowledge on the part of the appellee of the offer of the. reward cannot avail the appellants, because this was not made an issue in the court below. While the pleadings do not specifically raise this issue, it was raised on the general issue by the appellee setting out the terms of the offer of reward and claiming that he was entitled to the reward, and that the defendants had-failed and refused to pay him, and the denial by the defendants that they were liable to the appellee. If the issue was not thus raised by the pleadings, certainly the undisputed testimony of the appellee raised it, and the court, in the consideration of the case, should have treated the pleadings as amended to correspond with the undisputed testimony, and thus should have considered the issue as to the liability or non-liability of the appellants on the uncontroverted proof. It must be remembered that this was not a trial at law before a jury, or the judge sitting as a jury, but a trial by the chancery court. On appeal chancery causes are tried-in this court de novo on the record made up in the lower court. The law and the facts are examined the same as if there had been no decision at nisi prius, and this court renders its decree based upon such record. Leach v. Smith, 130 Ark. 465, 197 S. W. 1160, and cases there cited.

Applying the principles of law as above announced to the undisputed facts of this record, it follows that the decree of the trial court must be reversed, and a decree will be entered here dismissing the appellee’s complaint for want of equity. It is so ordered. ’

Mehaeey and Smith, JJ., dissent.