text:
    York, Admx. v. York.
    5-1619
    314 S. W. 2d 482
    Opinion delivered June 23, 1958.

      Paul K. Roberts, for appellant.

      B. Ball, for appellee.
   Paul Ward, Associate Justice.

The main issue in this litigation is who is entitled to the proceeds of a life insurance policy.

O. D. York carried a $2,000 insurance policy made payable at his death to his wife who is the appellee herein. On August 20, 1955 appellee inflicted- knife wounds on York which resulted in his death a few days later. Ada York was appointed administratrix of York’s estate, and as such filed a complaint against the carrier insurance company and appellee for the proceeds of the policy. The complaint alleged that since appellee maliciously and wilfully inflicted the mortal wounds upon York she is disqualified under the law to receive the proceeds of the insurance policy, and that the insurer is ready and willing to pay the proper amount to the rightful owner. Appellee denied all material allegations and claimed the proceeds of the policy as the named beneficiary. The trial resulted in a verdict in favor of appellee, and from the judgment entered thereon appellant prosecutes this appeal.

The only ground urged for a reversal is that there is no substantial evidence to sustain the jury’s verdict. This case is similar in many respects to the case of Ada York, Administratrix v. Dorothy Marie Hampton, 229 Ark. 301, 314 S. W. 2d 480, decided by us this day to which reference is hereby made. The same principal of law applies to both cases.

There is in the record, we think, substantial evidence to support the verdict. Appellee cut the deceased on the left arm with a knife in front of their own home sometime around 12 o’clock at night. He was promptly sent to the hospital where the doctor attempted to stop the flow of blood from an artery. On August 24, York began to hemorihage and during an attempt to tie off the artery he died.

On the late afternoon of August 20 it seems appellee and some friends went to a cafe where they got sandwiches. The deceased also came to the cafe but soon returned home. Later when appellee and her friends approached the house the deceased told appellee to come on home. Appellee and one of her friends said she told him she would be there soon, but another witness said appellee replied: “I will be back when I get good and ready.” At about this time the deceased started towards appellee with a stick when appellee cut him on the arm with a knife. The sister testified that about two weeks before the affray she heard appellee say: “Don’t lose my knife because I am going to mess O. D. up with it”, meaning the deceased. Another witness said she was in a store when appellee bought a knife' when appellee said she had told appellant she was going to kill her husband. Appellee denied making these statements, and said she had carried a knife a long time like most colored women. Appellee testified: “At the time I cut him he hit me with a stick. I was going to get some barbecue and he asked me to come home and he insisted and cursed me and grabbed a stick and started toward me. I stood there and the reason I did not get out of the way I knew he would catch me. "When he hit me with the stick, I cut him. I felt I was in danger. I don’t know what size stick he hit me with. It knocked a hole in my head. I did not intend to kill deceased. I tried to keep him off of me. He had whipped me before and I had plenty of excuses to cut him before.” She further stated that she used the knife in Self defense. A witness who was present stated that appellee was not looking at the deceased when he hit her, but she might have seen him before he got to her; that the force of the blow did not knock appellee down but that she was bleeding at the head.

The jury had a right to believe or disbelieve all or any part of the testimony of any witness, and we must give the testimony its greatest weight in favor of appellee. Viewed in this light we are unable to say there is no substantial evidence to support the jury’s verdict.

Affirmed.


source: Caselaw Access Project

author: Sam Robinson, Associate Justice.

license: Public Domain

text:
    Hicks v. Light, Judge.
    5-1566
    314 S. W. 2d 479
    Opinion delivered June 23, 1958.

      McCourtney, Brinton, Gibbons & Segars, for petitioner.

      Killough S Killough, for respondent.
   Sam Robinson, Associate Justice.

L. T. Hicks has filed in this Court a petition for a writ of certiorari seeking to review the action of the trial court in setting aside a default judgment. Hicks had caused a ivrit of garnishment to be issued against B. C. Baker in an attempt to collect a judgment against one N. M. Scoggins. Baker failed to answer within the time named in the writ of garnishment, and the trial court rendered a default judgment against him. Later, during the same term of court, on the motion of Baker, the court set aside the default judgment. It is the action of the trial court in setting aside the default judgment against the garnishee, Baker, that petitioner seeks to review by certiorari.

An appeal will not lie from an order setting aside a default judgment rendered during the same term of court in which it is set aside. In McPherson v. Consolidated Casualty Co., 105 Ark. 324, 151 S. W. 283, in referring to an appeal from an order setting aside a default judgment, Judge Frank Smith said: “Cases cannot be tried by piecemeal, and one can not delay the final adjudication of a cause by appealing from the separate orders of the court as the cause progresses. When a final order or judgment has been entered in the court below determining the relative rights and liabilities of the respective parties, an appeal may then be taken, but not before. No such final judgment has been entered here, and the appeal must be dismissed.”

A writ of certiorari cannot be used as a substitute for appeal to correct the alleged errors of an inferior court. Pettigrew v. Washington County, 43 Ark. 33. In Steadman v. State, 96 Ark. 344, 131 S. W. 679, Judge Wood said: “Certiorari will not lie to correct errors or irregularities that could have been corrected on appeal. ’ ’

In the case at bar if the trial court was in error in setting aside the default judgment against the garnishee, such error could be corrected on an appeal from a final judgment. If we should at this time go into the merits of the court’s action in setting aside the default judgment, it might be treated as a precedent for substituting certiorari for appeal to correct such alleged errors.

Petition denied.


text:
    Mo. Pac. Rd. Co. v. Yarbrough.
    5-1588
    315 S. W. 2d 897
    Opinion delivered June 23, 1958.

      Pat Mehaffy and B. 8. Ciarle, for appellant.

      Howell, Price & Worsham by Max Howell, for appellee.
   Sam Robinson, Associate Justice.

On the 22nd day of August, 1956, about 7:30 a. m., in Benton, at a place known as tbe Owosso crossing, a Missouri Pacific locomotive pulling a freight train consisting of nine cars collided with a truck being driven by appellee, Maynard C. Yarbrough. Yarbrough filed suit against the railway company and Noble Hatfield, the locomotive engisonal injuries in the sum of $20,000. The railway comneer, and obtained a judgment for damages due to perpany and Hatfield have appealed.

First, the appellants say there is no substantial evidence to support the verdict. We have reached the conclusion that the evidence was sufficient to take the case to the jury on the question of whether the locomotive engineer negligently failed to blow the whistle or ring the bell for the crossing. Several witnesses who were in a position to have heard the bell or whistle if either had been sounded testified that they heard neither a bell nor a whistle. Although such evidence is negative in character, it is admissible, and in this instance was sufficient to take the case to the jury. Missouri Pacific R. R. v. Rogers, 206 Ark. 1052, 178 S. W. 2d 667. This cause accrued at a time when Act 191 of 1955 applied. The rule of comparative negligence governs and will be controlling in a new trial. See St. Louis Southwestern Ry. v. Robinson, 228 Ark. 418, 308 S. W. 2d 282.

One of the allegations of the complaint is that the trainmen failed to keep a proper lookout. This issue was submitted to the jury. Appellants contend that the instruction on keeping a lookout was abstract, contending there is no evidence in the record to the effect that the trainmen failed to keep a proper lookout. In determining the question of whether there is any substantial evidence to support an instruction on the failure to keep a proper lookout, the evidence must he viewed in the light most favorable to appellee.

There are four railroad tracks that cross Neeley street in Benton. At this point the street is running approximately north and south and the tracks are running east and west. There are two main line tracks and to the south of these tracks is a spur track which services the Owosso Manufacturing Company plant. To the north of the main line tracks is another switch track. The spur track going to the Owosso plant is about 50 or 60 feet south of the main line track, and from that point to the main line track it is upgrade.

On the day in question the train was traveling west at a speed of from 20 to 25 miles an hour and was to stop at the railroad depot, about a quarter of a mile west of the Owosso crossing. The appellee, Yarbrough, was traveling north on Neeley street. He was driving a truck equipped with a transmission having four speeds forward and one reverse. One of the forward speeds is known as ‘ ‘ double low ’ ’. Appellee’s truck was empty. He testified that he was going after gas, and when he reached a point where his rear wheels were on the north rail of the spur track south of the main line, he came to a complete stop, looked to his right, then to his left, then to his right again, and seeing no train he put his truck in double low and started to cross the main line track at about 5 miles an hour. He testified that in looking east, to his right, the sun was in his eyes; and he also said that in that direction there was a little railroad tool house that might have interfered with his vision. From the pictures introduced in evidence, it appears that the right front end of his truck collided with the train.

According to the undisputed testimony, when about 100 feet from the crossing the fireman saw appellee’s truck going up the incline to the main line track; it occurred to him that the truck driver was not going to stop; he jumped up to make sure that the engineer heard him, and hollered “Big Ho”, which is the term used as a warning to apply the emergency brakes, that there is danger; the engineer immediately applied the brakes, but, although the brakes on the train were working properly, a train of the character involved, going at a speed of from 20 to 25 miles an hour, conld not be stopped in less than about 350 feet.

Appellee contends that the testimony of Richard Dick, the fireman on the locomotive, shows that the track is straight for a quarter of a mile east of the Owosso crossing, and that pictures admitted in evidence show the track to be straight for a considerable distance, and hence the fireman should have seen Yarbrough sooner than he testified he did see him, and if he had seen Yarbrough sooner the train could have been stopped before reaching the crossing. We do not find any evidence in the record that is fairly open to that construction. The pictures introduced in evidence clearly show that the crossing itself is actually in a curve, that the track is curving as it comes into the crossing and is curving east of there to such an extent that there is no indication that the fireman could see Yarbrough before he says he did see him. Appellee contends that the following testimony given on cross-examination by the fireman, Dick, indicates that the main line track is straight for a considerable distance east of the crossing:

“Q. And you are telling the jury that you do not know how far east it is where the line makes a turn from south to west?

A. I don’t know the exact distance.

Q. Do you have any idea? Can you estimate it for us?

A. I could estimate it, but that would be—

Q. All right, estimate it for us, if you will.

A. My estimation, it would be somewhere close to a quarter of a mile.”

When this evidence is considered along with the pic- . tures and the other evidence in the case, it is clear that the fireman meant that the curve started about a quarter of a mile east of the Owosso crossing.

We have carefully examined the record in this case and find no direct or circumstantial evidence from which an inference could be drawn that the trainmen failed to keep a lookout or that such alleged failure in any way contributed to cause the collision. And furthermore, even assuming that the trainmen were not keeping a lookout, according to the undisputed evidence such failure could have in no way contributed to cause the collision. According to appellee Yarbrough’s testimony, he brought his truck to a complete stop between the spur track and the main line; he then put the truck in double low and started across the track at about 5 miles an hour. When he did this he could not have been over about 40 feet from the main line. At 5 miles an hour he was traveling about 7 feet per second. The train was traveling between 20 and 25 miles an hour. Assuming that it was going 25 miles an hour it would not have been going over 37 feet a second. At 5 miles an hour it would take the truck about 7 seconds to reach the main line track. In this same length of time the train would travel approximately 250 feet. According to the undisputed testimony the train could not be stopped within that distance, and it would go about 140 feet before the brakes would start slackening the speed of the train to any extent. Therefore, a failure to keep a lookout could not have contributed to cause the collision. It was impossible to stop the train before reaching the crossing after the appellee put his truck in motion and started across the track. Certainly if the trainmen saw the appellee with his truck standing still near the track they would not be required to anticipate that he was going to start the truck up and attempt to cross, when to do so would make a collision almost inevitable. In Missouri Pacific R. R. v. Doyle, 203 Ark. 1111, 160 S. W. 2d 856, the court quoted from Blytheville, L. & A. So. Ry. v. Gessell, 158 Ark. 569, 250 S. W. 881, as follows: “ ‘The operatives of trains have the right to assume that a traveler or a pedestrian approaching a railroad track will act in response to the dictates of ordinary prudence and the instinct of self-preservation, and will, in fact, stop before placing himself in peril, and the duty of the railroad employees to take precautions begins only when it becomes apparent that the traveler at a crossing will not do so.’ ”

Appellee further contends that appellants are in no position to complain of the court’s action in giving an instruction submitting to the jury the question of whether the trainmen kept a lookout, because the instruction was given at the request of appellants. It appears that appellants, by their instruction No. 3 requested the court to instruct the jury not to consider the allegation of failure to keep a lookout. The court refused to give this instruction. Among appellants’ instructions was No. 19, dealing with the lookout question. In reading through the instructions requested by both sides, the trial court decided to give this instruction instead of giving appellee’s instruction on that point. The court’s action in giving the instruction was over the objection of appellants. It appears that the court had decided on the instructions that would be given when the attorney for appellants dictated his motion for a directed verdict and at the same time objected to the court’s action in giving the instruction on the issue of keeping a lookout.

Appellants also maintain that the court erred in not submitting the case to the jury in accordance with the comparative negligence statute (Act 191 of 1955), but from what has been said heretofore this point is not likely to arise at a new trial.

Because of the error in submitting to the jury the issue of whether the trainmen kept a proper lookout, the judgment is reversed and the cause remanded for a new trial.

McFaddin, J., not participating; Millwee, J., dissents.


text:
    Nowlin v. Magnolia Petroleum Company.
    5-1605
    314 S. W. 2d 509
    Opinion delivered June 23, 1958.

      T. O. Abbott and R. H. Peace, for appellant.

      John M. Lofton, Jr., and Owens, McHaney, Lofton S McHaney, for appellee.
   Sam Robinson, Associate Justice.

It appears from the pleadings in this case that a certain piece of property in Hampton is owned by appellee C. N. -Primm; that Primm leased the property to appellee Magnolia Petroleum Company, and Magnolia in turn subleased it to appellee J. H. Hannegan. According to the pleadings the lease from Primm to Magnolia provides: “In case of destruction of the premises by fire, explosion, storm, or otherwise, Lessors agree to immediately repair same and replace them in good and proper condition for operation of said service station, and Lessee agrees to repair or replace its said equipment with a view to returning said station to its original condition for the operation of a service station as quickly as possible. During the period of said repairs the rents herein provided for shall cease, but as soon as the repairs are finished and Lessee re-occupies the premises, the rent shall resume upon the same terms, and such periods of time shall be deducted in calculating the term of this lease.”

The complaint alleges that on October 9, 1955, a building on the property was destroyed by fire and that a sheet of metal from the roof of the burned building was left protruding over the sidewalk; that on November 2nd Margarett Ann Nowlin, a minor, struck her leg against this piece of metal, causing a serious injury. The complaint alleges that the defendants were negligent in not removing the sheet of metal from the walkway and that as a result of such negligence Margarett Ann was injured. At the conclusion of the testimony presented by the plaintiffs, the court instructed a verdict for Magnolia Petroleum Company and Hannegan. The court allowed the case to proceed against Primm, and the jury returned a verdict in his favor. On appeal appellants contend that the trial court erred in directing a verdict in favor of Magnolia and Hannegan.

The record contains no evidence introduced up to the time the court directed a verdict for Magnolia and Hannegan. Later in the trial the defendant C. N. Primm introduced a witness, one Lawrence Primm, and appellants contend that from this witness’ testimony it can be determined that Magnolia and Hannegan still had some duty in connection with removing the debris from the property after the fire. But even if Lawrence Primm’s testimony could be so construed, it could not benefit appellants, as Primm’s testimony had not been introduced in evidence and was not a part of the record at the time the court gave the instructed verdict in favor of Magnolia and Hannegan. When the court gave the instructed verdict, plaintiffs had closed their case, and the court had the benefit of no evidence except that which had been produced by appellants, and so far as the record shows at that point appellants had failed to make out a ease against Magnolia and Hannegan.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Hankins v. Dooley.
    5-1613
    314 S. W. 2d 691
    Opinion delivered July 1, 1958.

      Mann & McCulloch, for appellant.

      E. J. Butler; Davis & Davis, Memphis, Term., for appellee.
   Carleton Harris, Chief Justice.

W. N. Dooley and Ernestine G. Dooley instituted suit against A. F. Han-kins, alleging personal injuries and property damage as a result of a collision between an automobile driven by Mr. Dooley and one driven by Mr. Hankins. Mrs. Dooley was a passenger in the front seat with her husband. The complaint alleged that Hankins was guilty of various acts of negligence, which Hankins, in his answer, denied, appellant further alleging contributory negligence on the part of appellees.

The cause proceeded to trial, and at the conclusion of the evidence, was submitted to the jury on the court’s instructions and special interrogatories. There were no objections by any party to the instructions, and all instructions requested by the litigants were given. The jury returned its verdict, finding that Ernestine G. Dooley had suffered damages in the amount of $4,800; W. N. Dooley had not suffered any damage; Hankins was negligent, and appellees were negligent. The jury divided the negligence of the parties as 50 per cent to Hankins and 50 per cent to appellees. Under this verdict, Mrs. Dooley would have been entitled to judgment from Hankins in the amount of $2,400. Appellees filed a motion for judgment non obstante veredicto, asking the trial court to render judgment for the full amount of damages suffered by Mrs. Dooley, and also for damages suffered by Mr. Dooley. The motion alleged that there was no evidence to support a finding of negligence on the part of Mrs. Dooley. The court, in compliance with the motion rendered judgment non obstante veredicto for Mrs. Dooley in the amount of $4,800, and from such judgment, Hankins brings this appeal, asserting such action on the part of the trial court was erroneous, and that judgment should have been rendered on the verdict of the jury.

Appellant argues that the trial court’s action was erroneous for three different reasons, any one of which would require a reversal, if the arguments be sound. Since we are of the opinion that the' third contention is controlling, we find it unnecessary to enter into a discussion of the first two contentions. As the third ground for reversal, Hankins states:

“The appellees waived any right to contest the verdict because of failure to object seasonably to the instructions and interrogatories.”

The court gave thirteen instructions at the request of appellees, four instructions at the request of appellant, one written instruction upon its own motion, together with oral instructions, and further submitted four special interrogatories relating to the negligence of the parties, and whether damages were suffered by appellees. The interrogatories, together with the answer of the jury, are as follows:

“Interrogatory No. 1.

Do you find from a preponderance of the evidence in this case that the Defendant, A. F. Hankins, was guilty of negligence and that such negligence, if any contributed to cause, or caused, the injuries complained of by plaintiffs?

Answer . . . Yes . . .

Interrogatory No. 2.

If you have answered Interrogatory No. 1. “Yes”, you will answer Interrogatory No. 2.

Do you find from a preponderance of the evidence that the Plaintiffs, W. N. Dooley and Ernestine G-. Dooley, suffered damages, and, if so, what do you find the total amount of damages to each of them to be?

Answer . . . Yes . . .

$ (0) ... (Amount — W. N. Dooley)

$4,800 . . . (Amount — Ernestine G-. Dooley)

Interrogatory No. 3.

If you have answered Interrogatories Nos. 1. and 2. “Yes”, you will answer Interrogatory No. 3.

Do you find from a preponderance of the evidence that the Plaintiff, W. N. Dooley, was guilty of contributory negligence which contributed to cause the damages complained of?

Answer . . . Yes . . .

Interrogatory No. 4.

If your answer to Interrogatory No. 3. is “Yes”, you will answer Interrogatory No. 4.

What percent do you find from a preponderance of the evidence the contributory negligence of Plaintiffs, W. N. Dooley and Ernestine Gr. Dooley, contributed to cause the damages complained of by the Plaintiffs, using one hundred per cent (100%) to represent the total negligence involved?

Answer: Plaintiffs ... 50 per cent . . . Defendant ... 50 per cent . . .”

Appellees point out that the jury did not make a specific finding of negligence on the part of Mrs. Dooley, and contend that the inclusion of Mrs. Dooley’s name in Interrogatory No. 4 was an unintentional error by the court. It may well be that this contention is correct; still, the answer to Interrogatory No. 4 includes both appellees, for the question to be answered included both. Appellees stoutly contend that there is not one iota of evidence in the record to support a finding of negligence on the part of Mrs. Dooley. Even though we should agree, the judgment cannot be upheld. If appellees were of this opinion, they should have requested a peremptory instruction to the effect that she was free of negligence. This was not done. To the contrary, appellees themselves offered two instructions dealing with the question of negligence on the part of Mrs. Dooley, and there was no objection to the interrogatories submitted by the court to the jury. When appellees permitted the issue of negligence on the part of Mrs. Dooley to be submitted, it was thereafter too late to make objection. In Western TJnion Telegraph Co. v. Cowar din, 113 Ark. 160,168 S. W. 1133, this Court said:

“The court, at the request of appellant, granted prayers for instructions which told the jury that if the earlier receipt of appellee’s request to embalm and hold the body would not have prevented the funeral from taking place when it did, and if the failure to embalm and hold the body was the result of William’s misunderstanding of appellee’s wish, expressed in her telegram, the jury should find for the appellant.

Appellant now contends that the evidence shows conclusively that the failure to embalm the body was not by reason of the late receipt of the message, * * *. The appellant, having requested the lower court to submit this as a jury question, is not in an attitude to complain that the verdict of the jury was erroneous on this issue.”

Likewise, as recently as December 23, 1957, in Pinnacle Old Line Insurance Company v. Ellis, 228 Ark. 458, 307 S. W. 2d 882, we said:

The insurer, without requesting a directed verdict, obtained an instruction by which this question of fact was submitted to the jury. In these circumstances it cannot now be contended that the verdict on this issue was erroneous.”

So, if the instructions were erroneously submitted, the error was invited; if Interrogatory No. 4 was improper, objection should have been made. Appellees cannot now be heard to complain.

The judgment is therefore reversed, and the cause is remanded to the Circuit Court with instructions to render judgment in accordance with the verdict of the jury. While appellant, at all times, has indicated his willingness to pay the $2,400 judgment, the record does not reflect that such amount has ever actually been tendered. Accordingly, appellee, Ernestine Gr. Dooley, is entitled to the legal rate of interest from the date of the judgment (October 29, 1957) until paid. All costs shall be borne by appellees.

       The court overruled the motion as to Mr. Dooley.

       The appeal does not question the validity of the finding by the jury of negligence on the part of Hankins, nor does it question the validity of the finding as to the amount of damages.

       “Plaintiff’s Instruction No. 2. It is your duty to try the facts, and the following issues are for your determination: * * * c. The proportion of negligence, if any, expressed in percentage, attributable to the plaintiff, Ernestine G. Dooley, on the one hand, and to the defendant, A. F. Hankins, on the other? Plaintiff’s Instruction No. 7. Negligence, if any, on the part of W. N. Dooley as the driver of the vehicle in which the plaintiff Mrs. Ernestine G. Dooley was riding, can not in any degree be imputed to her, unless you find that the said Ernestine G. Dooley failed to exercise reasonable and ordinary care for her own safety, or unless you find that Ernestine G. Dooley and W. N. Dooley, her husband, were engaged at the time in a joint enterprise.”

       Of course, since the issue of Mrs. Dooley’s negligence was submitted to the jury, interrogatories inquiring as to such negligence were entirely in order.


text:
    Williams Mfg. Co. v. Strasberg.
    5-1624
    314 S. W. 2d 500
    Opinion delivered July 1, 1958.

      A. M. Coates, for appellant.

      Daggett $ Daggett, for appellee.
   Carleton Harris, Chief Justice.

Williams Manufacturing Company, appellant herein, is an Ohio corporation engaged in the manufacture and sale of women’s shoes. Leonard J. Strasberg is a retail merchant of Marianna, Arkansas. In 1954, Strasberg commenced handling appellant company’s shoes, having purchased same through appellant’s salesman, one Roy McGinnis. On July 3, 1956, appellant invoiced to appellee at Marianna an order which had been placed with McGinnis in the total amount of $630.85. The merchandise was purchased for fall and winter trade, and was stored to be put on the shelves when fall trade commenced.

On July 12, 1956, Strasberg sent his check to the company for the sum of $278.95, and returned merchandise which had been previously purchased at a cost of $351.90, said check and merchandise to constitute payment for the July 3rd order. The company accepted the check, but refused to accept the return of the merchandise as part payment. Appellant advised appellee that he could return the July 3rd shipment, but Strasberg refused to do so. Appellant instituted suit for the $351.90, together with interest. Strasberg answered, denying the indebtedness, and affirmatively stated that the purchase of the merchandise (invoiced July 3rd, 1956) was conditioned upon an agreement that Williams would not open or accept new accounts for the retail sale of similar merchandise manufactured by it, that appellant violated this agreement, and did thereby breach its contract. The cause proceeded to trial and the jury returned a verdict for appellee. From the judgment of the court dismissing the complaint, appellant brings this appeal.

Appellee contended that he had an agreement with the company giving him, together with Carothers Shoe Store of Marianna, the exclusive right to handle Williams Company shoes in that city, and appellant violated such agreement by shipping shoes to West’s Department Store, a competitor. It was this alleged violation of the agreement that caused appellee, according to his testimony, to send in shoes from previous orders as partial payment of the July 3rd order. Williams contended that it had no such agreement, and that its salesman, Mr. McGinnis, had no authority to enter into same. According to our view, there is no necessity to discuss whether such an agreement existed, or whether McGinnis was authorized to enter into such a contract, since we consider, that under the testimony, appellant was entitled to recover for the July 3rd shipment, irrespective of the alleged breach of contract. Strasberg had been purchasing shoes from appellant company since November, 1954. During that period, he had purchased several shipments and paid for them. Subsequent thereto, on May 4, 1956, he purchased the shoes (which are the source of this litigation), and received the invoice and shipment on July 3rd. On July 12, Strasberg wrote a letter to the company, sending his check for $278.95, and returning shoes (previously purchased and paid for) amounting to a value of $351.90. He stated in his letter:

“We regret this return, but you have violated your contract with us. * * * Your shoes are moving into Marianna through West’s Store, our bitterest competitor. When we agreed to buy your shoes, an understanding was reached whereby our store and Carothers Shoe Store would be the stores to handle Williams Shoes in Marianna (pop. 4,500) exclusively. * * * The only defense I have against a firm that will violate their contract with me is to return the odds and ends of their merchandise. * * *”

It would therefore appear that at the time Strasberg received the July 3rd shipment of shoes, or within a few days thereafter, (at most, within nine days) he had already learned that West’s store was selling Williams Brothers shoes. If an agreement had been breached, he was aware of it at that time, but despite such knowledge, retained the shoes, placed them in stock, and sold them in the fall. At the conclusion of appellee’s testimony, appellant moved for a directed verdict, first contending that the proof reflected that McGinnis had no authority to bind Williams Manufacturing Company to the agreement claimed by Strasberg, and second,

“The uncontradicted proof on the part of the defendant is that after the controversy arose as to the exclusive right to sell Williams Brothers products in Marianna, he accepted the fall shipment and placed the same on his shelves and proceeded to sell the same. The duty of the defendant was that if he was under the belief that he had an exclusive contract to sell Williams Brothers shoes was to return the merchandise and refuse to accept the same. Having- accepted the merchandise he now cannot plead any such agreement with a salesman. ’ ’

We feel that appellant, on the basis of the quoted portion of the motion, was entitled to the directed verdict, and the court erred in overruling such motion.

If Strasberg felt that appellant had breached its contract, he should have returned the shipment just received. In International Shoe Company v. King, 186 Ark. 799, 56 S. W. 2d 171, appellant instituted suit against King to recover $1,784.99 for “Bed Goose” shoes sold and shipped to King by the company. King defended on the ground that he had an agreement with the company to handle these shoes exclusively, and that International violated the agreement by allowing another firm in Camden to handle the same line of shoes. King shipped the shoes back to appellant, because of the alleged breach. On appeal, we affirmed, but there, King returned all the shoes purchased from appellant, including all that he had of the most recent purchase. He refused to further handle their merchandise, and immediately placed orders with other shoe companies. Here, Strasberg took all of the shoes remaining in stock from prior purchases, and returned them to appellant, together with his check for the difference, as payment for the last shipment. This had the effect of exchanging old goods for new. Included in the shoes returned were white shoes and straw shoes, bought for the purpose of sale in the spring and summer, and the returned shoes were, to a large extent, “odds and ends.” To permit appellee to select such stock as he desired to return to appellant, particularly that stock for which the sale season was mostly over, would certainly give him an undue advantage. Appellant was either entitled to remuneration for the fall shoes — or entitled to receive them back. As stated in Williston on Contracts, Vol. 5, page 4118:

“Few questions in the law have given rise to more discussion and difference of opinion than that concerning the right of one who has materially broken his contract without legal excuse to recover for such benefit as he may have conferred on the other party by part performance of an indivisible contract * * *. A satisfactory solution is not easy, for two fundamental legal policies seem here to come in conflict. On the one hand, it seems a violation of the terms of a contract to allow a plaintiff in default to recover —- to allow a party to stop when he pleases and sell his part performance at a value fixed by the jury to the defendant who has agreed only to pay for full performance. On the other hand, to deny recovery often gives the defendant more than fair compensation for the injury he has sustained and imposes a forfeiture on the plaintiff. * * * But the second of these opposing policies has steadily increased in favor in recent years. Except where the obliquity of the defective performance is of a sort that indicates moral obliquity, and where, therefore, the courts feel that the one who is in default may properly be penalized, the tendency is to grant him restitution if a substantial net benefit has accrued to the defendant by partial performance.”

Strasberg could have, of course, returned the fall shipment, and then sought damages for breach of contract. As it was, he did not elect to sue for damages, nor was. any proof of damage offered during the trial. He elected only to contend that the contract was breached, but if we consider such contention to be entirely established,, still, this did not entitle him to keep new merchandise- and pay for it with old. It only entitled him to refuse to-pay for the merchandise at all, to return it forthwith,, and to refrain from handling Williams Brothers shoes in the future. One cannot “have his cake and eat it too.” He cannot accept benefits under a contract, and at the same time, avoid his obligations under such agreement. Appellee received a substantial benefit from the shipment of fall shoes, and having accepted that benefit, he cannot refuse to compensate the company because of their alleged breach.

Accordingly, the judgment of the Circuit Court is. reversed, and the cause remanded with directions to enter judgment for appellant in the sum of $351.90,, together with interest as provided by law. •

Millwee and Ward, JJ., dissent.

       The merchandise consisted of shoes which had remained on appellee’s shelves from previous orders, some of which he referred to as “odds and ends.” The record does not reflect as to what finally happened to the shoes.


text:
    Bradley v. Keith.
    5-1627
    315 S. W. 2d 13
    Opinion delivered July 1, 1958.

      S. L. White, for appellant.

      Ancil M. Reed, for appellee.
   Carleton Harris, Chief Justice.

This is the second appeal of this case. An action was brought by the City of Little Rock to condemn five acres of land, the complaint alleging that Bradley had a deed to the land, and that Keith had a tax title to same. Bradley filed an answer asserting title to the property, but Keith failed to file any pleading whatsoever. At a preliminary hearing, with the parties represented by their attorneys, it was agreed that the land was worth $1,000, and that the city might deposit such amount in the registry of the court, and take possession of the property. The court’s order recited, “ * * * said funds shall remain in the registry of the court until ownership has been finally determined,” and directed that the cause be placed on the regular docket for determination. On June 5, 1956, Bradley was present by his attorney, but appellee failed to appear. After hearing evidence, the court found that Keith was entitled to reimbursement for the amount paid for his tax deed together with interest, and that Bradley was entitled to the rest of the aforementioned fund.

On the following day, Keith filed an unverified motion to set aside said judgment, asserting that only a pre-trial conference had been set for June 5th, and that his attorney had been unable to attend by reason of illness. This motion was not presented to the court until after the lapse of the term. At the subsequent term, the court considered the motion, and acting upon the statement of counsel for appellee, made a finding of unavoidable casualty and vacated the judgment. Bradley appealed to this Court, and we reversed the Circuit Court because the motion filed by Keith to set aside the judgment was not verified, nor was any. sworn testimony taken at the hearing on said motion. Following the filing of the mandate, Keith again filed a motion to set aside said judgment, and verified same. The court granted the motion, and set aside the judgment of June 5, 1956. From such action, appellant brings this appeal.

The second motion filed by appellee was identical with the first, with the exception that the latter was verified. The meritorious defense alleged was that Keith had a tax deed to the property. Subsequently, Keith amended his pleading to allege the placing of improvements upon the property. Section 29-508, Ark. Stats. (1947) Anno., requires that a complaint to set aside a judgment after the expiration of a term be verified. "We reversed the earlier appeal because this statute was not complied with. It was pointed out in our opinion that this requirement may be satisfied by the introduction of sworn testimony at the hearing on such a motion, but though an oral statement was made by counsel, which might well be considered testimony, the requirement was not met since the statement was not made under oath. The issue before this Court in the first appeal was whether the trial court’s action in setting aside its earlier judgment was proper and valid. That court had based its action on a finding that appellee’s counsel was prevented, through unavoidable casualty, from attending the hearing at which the judgment was entered. This question, as well as the question of appellee’s failure to file an answer within the time allowed by statute, was before this Court, and argued in the briefs. The fact that the case was decided on another point does not mean that Keith is entitled to start over again. Such a holding would not be logical. If Keith can correct his mistake by verifying his pleading and thus come before the Court a second time, then if the present pleading were unverified, and we again reversed for that reason — he could come a third time, and in fact, a fourth — and so on. There would never be an end to the matter. The additional allegation of improvements to the property is of no help because these improvements apparently were made before the filing of the first motion. On page 84, paragraph 65, Vol. 60, of Corpus Juris Secundum, we find:

“* * * the denial of a motion is not res judicata as to a subsequent motion which is based in part on matters occurring after the making of the prior motion, and which seeks relief which the earlier motion did not seek.”

Here, the converse is true. The second motion seeks identically the same relief as the first, and the additional defense alleged is not based on matters occurring after the making of the first motion. We accordingly find that the question of the validity of the Circuit Court’s order setting aside the judgment of June 5, 1956, was adjudicated by this Court on July 1, 1957.

Were it otherwise, the result would be the same, for appellee cannot prevail for yet another reason. This suit was filed by the city on March 29, 1956, and no answer was ever filed by Keith. The judgment in favor of Bradley was not entered until sixty-five days after service of summons on both Bradley and Keith,. and twenty-six days after the court placed the cause on the regular docket for determination. Counsel for appellee was apparently under the impression that it was not necessary to file an answer in a condemnation suit. As a general rule, this is true. In Vol. 18, American Jurisprudence, Section 325, page 970, we find:

“When condemnation is by judicial proceeding, the usual practice requires no plea or answer on the part of a defendant, and it has been held that it is not error to strike out an answer filed. A reason why there is no strict necessity that the owner should appear and answer is that the land can be condemned only on the payment of just compensation to the owner, and this, of course, must be ascertained and paid whether or not the owner appears and answers.

=& & *

On the other hand, it has been held that the duty devolves on a defendant in an eminent domain proceeding not only to prove, but also to plead, how and why he will suffer damages in respect of land which is not taken in the proceeding. Thus, if he claims damages for the cost of building and maintaining fences along a strip of land taken for a public use, such as a highway or railroad, his answer should contain appropriate pleadings supporting the claim.”

In this litigation, we do not agree that the filing of a pleading was unnecessary. Sec. 35-906, Ark. Stats. (1947) Anno., provides:

“So soon as the amount of compensation that may be due to the owners of the property taken, or to any of them, shall have been ascertained by the jury, the court shall make such order as to its payment or deposit as shall be deemed right and proper in respect to the time and place of payment and the proportion to which each owner is entitled, and may require adverse claimants of any part of the money or property to interplead, so as to fully settle and determine their rights and interests according to equity and justice.”

As previously mentioned, the court, on May 10, 1956, entered an order finding that the city had deposited the sum of $1,000 into the registry of the court, and “* * * that there is a dispute among the defendants as to the ownership of said property. That said funds shall remain in the court until said ownership has been finally determined. * * * It is further ordered that the cause be placed on regular docket for determination of distribution of the funds.” So here, it was incumbent, that in order to make claim to the fund deposited, the two claimants of the land assert their claim to ownership (or any other claim, such as improvements), in order that the court might act thereon. It was accordingly necessary that pleadings be filed. See. 27-1135, Ark. Stats. (1947) Anno., was amended by Act 49 of 1955 to provide as follows:

“The defense to any complaint or cross-complaint must be filed the first day after expiration of the periods of time set forth below, as the case may be:

First. Where the summons has been served twenty (20) days in any county in the State; * * *”

As pointed out by appellant, this provision has been held to be mandatory. Walden v. Metzler, 227 Ark. 782, 301 S. W. 2d 439. See also Pyle v. Amsler, Judge, 227 Ark. 785, 301 S. W. 2d 441. In the former case, this Court said:

tt* * * We do not mean to foreclose the possibility of relief to a defendant who has been prevented by unavoidable casualty in making his defense. For nearly a hundred years such a misfortune has been a basis for vacating a judgment after the expiration of the term. * * * The 1955 acts do not purport to change the law in this respect. * * *”

Here, no unavoidable casualty or misfortune is suggested as preventing the filing of an answer.

Without entering into a detailed discussion, since this litigation is thus disposed of, it might likewise be added that under the proof, we cannot agree that the failure of counsel to attend the hearing because of illness, constituted unavoidable casualty. The evidence showed that the law firm, with which then counsel was connected, had several members or associates, and it is not shown that it would have been impractical for any of these to attend the hearing.

For the reasons enumerated herein, the judgment is reversed, and the cause remanded with directions to reinstate the judgment of June 5, 1956.

       See Bradley v. Keith, 227 Ark. 1107, 305 S. W. 2d 134.

       Rehearing was denied on September 30, 1957.

       This act was further amended by Act 53 of 1957.


author: J. Seaborn Holt, Associate Justice.

text:
    Bramlett v. Watts.
    5-1590
    314 S. W. 2d 490
    Opinion delivered July 1, 1958.

      John G. Rye, Opie Rogers and Ray Trammell, for appellant.

      John B. Driver and N. J. Henley, for appellee.
   J. Seaborn Holt, Associate Justice.

Appellee, Watts, brought suit against appellant, Bramlett, to recover for personal injuries caused by collision of a heavily loaded truck, driven by Bramlett, with an automobile driven by appellee, on Highway 65 a short distance out of Marshall, Arkansas. Appellant answered with a general denial and specifically pleaded that any injuries that appellee received were proximately caused by appellee’s own negligence. A jury trial resulted in a verdict for Watts in amount of $12,000 and this appeal followed.

For reversal appellant relies on the following points: “1. Jury’s finding as to interrogatory No. 2 and No. 3 to effect plaintiff was absolutely free of any causal negligence was not based upon any substantial evidence and hence is error of law, 2. Failure to credit testimony showing plaintiff’s negligence indicates mistake by jury in application of comparative negligence statute and this is reversible error, 3. The judgment is excessive, etc.” We do not agree with any of these contentions. Neither party complains about any instructions given. In fact, it appears that all instructions given clearly and fairly submitted the issues, and were agreed to by the parties.

Under our often repeated rule, when an appeal from a judgment on a jury’s verdict reaches us, it is our duty to affirm that judgment if we find any substantial evidence to support the jury’s verdict. Here we are not concerned with where the preponderance of the testimony rested, but only whether, as indicated, there was any substantial evidence to support the jury’s finding and in determining whether the evidence was substantial we must give to the testimony its strongest probative force in favor of the successful party, that it will reasonably bear. “In determining the sufficiency of the evidence to sustain a verdict, the Supreme Court views the evidence in the light most favorable to the appellee, and will not set aside a verdict if supported by substantial evidence,” (and cases there cited) Albert v. Morris, 208 Ark. 808, 187 S. W. 2d 909. Under interrogatories propounded to the jury by the court, the jury found that appellee Watts was guilty of no negligence, but that Bramlett was guilty of negligence.

The evidence shows that the collision occurred at about 9:45 p. m. while Watts was driving along Highway 65 well within his proper traffic lane, at a speed of about 30 miles per hour, and that appellant drove his truck across the center line over into appellee’s lane strildng and sideswiping appellee’s car. Watts’ left hand was outside the window holding the little vent glass at the time. Yent glass was about 4 inches wide. Appellee’s witness, Billy Joe Holder, sheriff, who was called to the scene of the collision testified that Watts’ car (appellant’s abstract) “was in ditch on right hand side, and two lumber trucks were north of that on their side of road, on the shoulder. Looked for physical evidence which might show point of impact. Found glass and some dirt in Ford car’s lane which looked like where accident did occur. Would not say how far because did not measure it. Watts’ car pretty well broken up — windshield and door glasses broken out, body of the car injured. Car hit just before it got to the windshield, corner of the bed looked like it hit the car. Examined the truck involved. Truck not damaged. Truck loaded with oak lumber.” This evidence was substantial and ample to support the verdict. As indicated above, we do not think the verdict excessive.

Watts testified (appellant’s abstract) that he lost his forefinger as result of crash; his next finger is bent and cannot be straightened out, while hand was perfect previously; in palm is a heavy seam which is scar; little finger is numb, but some feeling in it has returned. He was under treatment for three months. Complete feeling has not returned to hand. Had pain and suffering for which he took pain pills. Couldn’t sleep for two months. Still has some pain in hand after working. Hand stays cold. Was treated by Dr. Evans at Marshall and sent on to Little Bock to Dr. Kenneth Jones. Stayed in hospital for ten days. Made seven or eight trips back to Dr. Jones for dressing. At time of injury was working at Gary, Indiana, taping and finishing sheet rock in connection with inside construction of new homes. Is skilled work consisting of putting mud in the crack where joints come together and then placing tape on there twice.. He was earning $4 per hour. Job was waiting on his return. Worked six days a week and made $192 a week before deductions. Company worked for it had lots of houses and work, and that both hands very necessary in doing this work. Used forefinger and thumb of left hand to fold the tape in doing corners. That this is work which requires minute care and attention. Went back to work last of October or first of November; has not drawn same rate of pay because of his left hand. Cannot work as fast and is paid by the hour. Still owes $347.70 to Dr. Jones — hospital bills were covered by his insurance ... he cannot use tools in left hand. Cannot use trowel but can use machine in work since machine has big end which he can grasp. Cannot work on location where machines are not used.

Dr. Kenneth Jones, orthopedic surgeon, Little Kock, Arkansas, testified that he first examined Watts at the Baptist Hospital July 7, 1956, Watts remained hospitalized until July 18, 1956 and was seen subsequently in the doctor’s clinic on 7 occasions, the last October 18, 1956. Dr. Jones testified, relative to the condition of appellee at the time he discharged him, that: “Considering the initial injury I feel that this patient has obtained a very good functional result. However, he does have a loss of the 2nd digit of the involved hand and has considerable limitation of motion in the 3rd digit of that hand. In addition there is a scar in the middle of the palm of the hand and for that reason it may be anticipated that at a later date function of the hand might be improved by turning a pedicle flap into the palm and loosening the adherent flexor digitorium profundis tendon to the middle digit. As it now stands, it is my opinion that the patient has lost approximately 40 per cent of the functional capacity of the hand.”

Appellee Watts was a young man 20 years of age, and a skilled workman earning $4 per hour, with steady employment of approximately 9 months a year. As a result of his injuries he is now handicapped with his left hand permanently injured with a loss of 40 per cent of its usefulness, which will materially affect his earnings. He has lost approximately four months employment, has incurred substantial hospital and surgical bills, and still owes a doctor bill of $347.70. He has suffered much pain and continues to suffer. Commenting on the excessiveness of jury verdicts we said in Phillips Motor Co. v. Rouse, 202 Ark. 641, 151 S. W. 2d 994, “Juries have the same right to pass upon the question of the amount to be awarded as compensation for an injury that they have to pass upon the question of liability for the injury; and we may not set aside a verdict in either case where it is supported by substantial testimony. If, however, there is no substantial testimony to sustain a judgment as to amount, it is our duty to reduce it; and if there is no substantial testimony to sustain a finding as to liability, our duty to dismiss the cause of action is equally certain.”

Having concluded that there was substantial evidence to support appellant’s liability for appellee’s injuries, and that the amount of the verdict was not excessive, we affirm the judgment.


author: Ed. F. McFaddin, Associate Justice.

text:
    Moore v. State.
    4891
    315 S. W. 2d 907
    Opinion delivered July 1, 1958.
    [Rehearing denied September 29, 1958.]

      W. Harold Flowers, for appellant.

      Bruce Bennett, Atty. General; Thorp Thomas, Asst. Atty. General, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is a death sentence case. In Moore v. State, 227 Ark 544, 299 S. W. 2d 838 the present appellant and three others had been convicted for the murder of M. R. Hamm. We reversed the convictions for the reasons stated in the majority opinion in that case. The facts surrounding the killing of Mr. Hamm and the appellant’s alleged participation are stated in our opinion in the first appeal; so we do not again recite them.

On remand, James Moore (present appellant) obtained a severance, made no claim for change of venue, and upon trial was again convicted and sentenced to death. This appeal ensued; and, being a capital case, we have reviewed every objection in the record. (See § 43-2723 Ark. Stats.) ¥e group the objections and assignments in convenient topic headings:

I. Appellant’s Motion To Quash The. Information. Appellant was tried on an information filed by the Prosecuting Attorney instead of an indictment returned by a Grand Jury; and he says:

“Again is presented to the Court the contention that Amendment No. 21 to the Constitution of the State of Arkansas violates those liberties provided for in the Constitution of the United States of America. The more recent interpretations of the due process clause of the Federal Constitution activates interest in the question of whether or not a State may, if it so desires, provide for prosecution by Information rather than Indictment. ’ ’

The contention here made has been rejected in many of our cases. In Washington v. State, 213 Ark. 218, 210 S. W. 2d 307, we said:

“Appellant was tried on an information filed by the prosecuting attorney, rather than on an indictment returned by a grand jury; and appellant claims that prosecuting him by information is violative of his rights under both the State and Federal Constitutions. Amendment 21 of the State Constitution reads: ‘That all offenses heretofore required to be prosecuted by indictment may be prosecuted either by indictment by a grand jury or information filed by the prosecuting attorney’. This amendment has been upheld by this court against such attack as is here made, in numerous cases, some of which are: Penton v. State, 194 Ark. 503, 109 S. W. 2d 131 and Smith et al. v. State, 194 Ark. 1041, 110 S. W. 2d 24. The United States Supreme Court has repeatedly held that a State can — if it so desires — provide for a prosecution by information instead of by indictment. Some of these cases are: Hurtado v. California, 110 U. S. 516, 28 L. Ed. 232, 4 S. Ct. 111; Bolln v. Nebraska, 176 U. S. 83, 44 L. Ed. 382, 20 S. Ct. 287; and Gaines v. Washington, 277 U. S. 81, 72 L. Ed. 793, 48 S. Ct. 468.”

The United States Supreme Court refused certiorari in the case of Washington v. State, 335 U. S. 884, 93 L. Ed. 423, 69 S. Ct. 232. So our holding remains the same as in Washington v. State.

II. Motion For Continuance. The trial of appellant’s case was duly set to commence on July 10, 1957; and on the morning of that date the appellant filed a motion for continuance, claiming:

“On a late news telecast over television station KCMC at Texarkana, Arkansas, July'9, 1957, Bill Gill, newscaster, told viewers and listeners living in a wide area covering all of Miller County, Arkansas and much of the four State area which it serves, that Judge Lyle Brown had granted permission for the televising of the trial of the defendant scheduled to begin on July 10, 1957 at 9:00 A. M., in granting permission for the filming and recording from the corridors of the Miller County Courthouse. The defendant, by his attorney, moves for a continuance to ascertain the effect of the sudden and dramatic interest created by such an act, upon the minds of the inhabitants of Miller County, Arkansas, for a possible move to ask the Court for a change of venue.”

Testimony on the motion was duly beard. It disclosed that the defendant’s attorney had agreed that a television camera could be placed in a corridor of the Courthouse and that through a window or conduit into the Courtroom certain portions of the trial could be filmed; that the filmed portions would be edited after the trial; and that the pictures could then be televised as silent films. No cameras were stationed in the courtroom and no pictures were taken by anyone in the courtroom. The motion for continuance was not because of the television itself, but because a radio newscast on the night of July 9th had stated what was to be done; and appellant’s attorney wanted the trial continued to see whether the radio announcement on the night of July 9th had adversely affected his client.

The Prosecuting Attorney, the Defense Attorney, and the Trial Court arranged some sort of pickup camera outside the courtroom. The motion for continuance is not an effort by the defendant’s attorney to recede from that agreement: rather it is a motion for continuance to see if the announcement of the facts of the agreement had adversely affected his client. We fail to see how the radio announcement could be a cause for continuance. The statutes (Ark. Stats. § 43-1705 et seq.) and construing cases specify the essential content and showing that must be made in a motion for continuance ; and no such content or showing was here made.

III. Motion To Quash The Panel Of Petit Jurors. This presents the claim of racial exclusion of trial jurors in Miller County, Arkansas. The motion to quash recites, inter alia:

“That at all times material herein it has been, was and still is the custom in Miller County, Arkansas, to use white persons exclusively for regular Petit Jury service in any and all cases including the trials of felonies, and in selecting the current jury and the supplement thereto the Jury Commissioners substantially followed the said customs in naming only white persons to the said jury panel. The defendants allege that no Negroes are now serving on the present panel of petit jurors, and that they have been systematically excluded from serving solely because they are Negroes, and that this action constitutes discrimination and a denial to them of equal protection of the laws of the United States of America as guaranteed by Section One of the Fourteenth Amendment to the Constitution of the United States of America.

A lengthy hearing was held on this motion covering seventy pages of the transcript. The evidence reflects that for several years prior to November, 1953 no Negroes had been selected on the trial jury by the Jury Commissioners, with the exception of the June 1951 term, when four Negroes were selected. There are two terms of the Miller Circuit Court each year, being the terms of June and November. The record as to Negroes selected by the Jury Commissioners for trial jury service from November 1953 to date of this trial is as follows:

Number of Negroes

Selected

November, 1953 3

June, 1954 1

November, 1954 2

June, 1955 5

November, 1955 3

June, 1956 9

November, 1956 none

June, 1957 10

Tbe defendant was tried at the June, 1957 term of the Court, at which ten Negroes had been selected for trial jury service. The record does not disclose the number of Negroes in Miller County who are qualified for jury service, and census figures of the total number of Negroes in the County would not indicate how many were qualified for jury service.

The issue here is whether, as regards the calling of Negroes for jury service in Miller County, Arkansas, there has been either a systematic exclusion or a studied evasion. We went into this issue in considerable detail in Washington v. State, 213 Ark. 218, 210 S. W. 2d 307; and we there said, as regards the claim of systematic exclusion in Jefferson County:

“. . . in the case at bar the record reflects that Negroes were selected for jury service at a special term of the Jefferson Circuit Court in March, 1947, and again at the regular term of the court in October, 1947, from which last-mentioned term comes this appeal. Thus, at the two most recent terms, including the one in which appellant’s trial occurred, Negroes were selected for jury service. So, any alleged systematic exclusion of previous years certainly had been abandoned at the time of the trial of this case — and this abandonment was no donbt in keeping with the holding of the U. S. Supreme Court in Hill v. Texas, 316 U. S. 400, 86 L. Ed. 1559, 62 S. Ct. 1159. That case referred to grand juries, but — a fortiori — is also germane to petit juries. So, we hold that the evidence here sufficiently repels any inference of present systematic exclusion, since Negroes are now called for jury service.”

In the case at bar, Negroes have been called for jury service in Miller County, Arkansas since 1953; so certainly no systematic exclusion has been shown.

As regards appellant’s claim of studied evasion, we likewise conclude that the proof offered fails to substantiate such claims. In Washington v. State, supra, we said on the claim of studied evasions:

“The fact that the jury commissioners selected Negroes for the panel satisfies the burden placed on the State under the holding in Patton v. Mississippi, supra: and the burden then devolved on the appellant to show that the jury commissioners practiced ‘evasion’. There is no such proof in the record.”

Here, the record reflects that the Trial Judge positively instructed the Jury Commissioners to have Negroes on the trial jury list that was to be called to try this case. On June 19, 1957 when there was a preliminary hearing on the motion to quash the jury panel, the record reflects:

“. . . said motion is held in abeyance after announcement by the Court of intention to have additional jurors selected. Whereupon the State of Arkansas elects to put James M. Moore to trial first, to which there are no objections, and this cause is continued until July 10th, 1957 to afford the Court opportunity to select additional Jurors.”

Then, at the hearing on the motion to quash the panel, the Trial Court stated:

“As a matter of fact, the Court instructed the Clerk in preparing that list, to put all the Negro jurors at the top of the list in order that there might be full opportunity, if found qualified and if not challenged either by peremptory challenge or cause, for them to serve.”

And again the Court stated:

“. . . the Court explained to' the Commissioners that the absence of Negroes on the panel was significant to the Court, particularly in view of the fact that we were to try the Hamm case, and I instructed them to take special precaution and to make special effort to place a substantial number of Negroes on the additional special list, reminding them that those special jurors, of course, would have to meet the same qualifications as the Court had previously laid down for the selection of jurors.”

Thus, the Trial Judge took every precaution to see that there were Negroes on the trial jury list in this case; and the record — instead of showing studied evasion — shows a deliberate attempt by the Trial Court in this case to fully comply with the rulings of the United States Supreme Court, which condemn racial exclusion. We, therefore, find no merit in this claim of studied evasion.

IY. The Confession. Appellant says: “The Court erred in admitting the confession of the appellant, and the confessions of three other co-defendants charged with the commission of the crime of which appellant was convicted.” Eeally, there are three points argued under this one topic; and we shall discuss each.

First, we consider the question of whether there was sufficient evidence to submit to the jury the question as to whether the confession was voluntary. The burden is on the State to prove that the confession was voluntary. Love v. State, 22 Ark. 336; Smith v. State, 74 Ark. 397, 85 S. W. 1123; and Cush v. State, 180 Ark. 448, 21 S. W. 2d 616. And in determining whether a confession is voluntary the Court should look to the whole situation and surroundings of the accused. Dewein v. State, 114 Ark. 472, 170 S. W. 582; Brown v. State, 198 Ark. 920, 132 S. W. 2d 15.

When the State sought to introduce the appellant’s confession the hearing was recessed to the Judge’s chambers for the Trial Judge to see if there was sufficient evidence of voluntariness to submit the issue to the jury. Such is in accordance with our frequently stated procedure. Charles v. State, 198 Ark. 1154, 133 S. W. 2d 26; Brown v. State, 198 Ark. 920, 132 S. W. 2d 15; Hendrix v. State, 200 Ark. 103, 167 S. W. 2d 503. The Trial Judge correctly ruled that there was sufficient evidence offered to take the case to the jury on the voluntariness of the confession; and thereupon the hearing was resumed before the jury.

It was shown that the defendant, James Moore, and the three others thought to be implicated in the murder of M. R. Hamm, were taken into custody about 4:30 or 5:00 P. M. the afternoon of May 15th at a store near Texarkana; that the Prosecuting Attorney’s office was at Arkadelphia, a distance of about eighty miles from Texarkana; that Moore and the other three accused persons were advised that they would he taken to Arkadelphia to the Prosecuting Attorney and then to the State penitentiary at Cummings Farm; that the only stop made from Texarkana to Arkadelphia was at Hope (thirty-three miles from Texarkana) for the purpose of placing a telephone call to the Prosecuting Attorney’s office; that in going from Texarkana to Arkadelphia the four prisoners were on the back seat of the car and three officers were on the front seat of the car; that the prisoners slept a considerable portion of the trip from Texarkana to Arkadelphia; that they reached the Prosecuting Attorney’s office in Arkadelphia about 8:00 P. M.; that in the Prosecuting Attorney’s office the prisoners were served with food; that the prisoners were questioned separately and sometimes together; that Moore was advised that he did not have to make any statement; that Moore’s statement was made freely and voluntarily; that the statement was signed by him; that the other prisoners likewise made and signed their statements; and that all of the prisoners were then taken to the State Penitentiary at Cummings Farm for safekeeping.

The Court Reporter who took down the statements, testified that Moore gave direct answers to the questions asked, and that the statement he signed was in his own words. The defendant testified that he was scared and, therefore, the confession was not voluntary. But he admitted that he was never threatened or struck or beaten; also he admitted that there were no harsh words used by the Prosecuting- Attorney. So, under the evidence as stated, and other in the record, we conclude that it was a question of fact for the jury as to whether the confession was voluntary.

The second objection argued under this topic relates to the statements that the other prisoners made regarding Moore’s participation in the homicide of Mr. Hamm. There was testimony that all four of the prisoners participated in the robbery and murder of Mr. Hamm. It was shown that the statements made by the other prisoners were made in Moore’s presence and not denied by him in any way. In fact, he tacitly admitted the statements to be true. This evidence of the statements by the other prisoners in Moore’s presence tending to implicate him in the crime was admissible testimony under our holding in Martin v. State, 177 Ark. 379, 6 S. W. 2d 293, wherein we said: “. . . it is a general rule that the statements of one accomplice made in the presence and hearing of another, which are not contradicted by him, are admissible in evidence against him as an admission on his part for his failure to contradict them. Polk v. State, 45 Ark. 165; Ford v. State, 34 Ark. 654.”

In 20 Am. Jur. 428, “Evidence”, § 493, the general rule is stated:

“The rule precluding- the use of the confessions of co-conspirators and codefendants as evidence against those not making- the confessions is limited to confessions made in the absence of such other defendants. A confession of a co-conspirator or codefendant made in the presence of the accused and assented to by him, impliedly or tacitly by his silence or conduct, is admissible against Mm, upon the same principles which permit the introduction of evidence that the defendant stood silent when accused of crime, but it must appear that he did assent to the confession.”

We, therefore, conclude that there was no error in the Court’s ruling on the point here involved.

The third and final point in regard to the confession of Moore is that his statement was obtained without taking him before a magistrate, as provided in § 43-601 Ark. Stats. It is conceded by the State that after Moore was taken in custody on the afternoon of May 15th he was immediately taken to the Prosecuting Attorney’s office in Arkadelphia and the signed confession obtained from him, and that it was not until May 21st that Moore was returned from the penitentiary and appeared in Court in Texarkana. Because of the above mentioned statute and the stated facts, appellant insists that the confession was not admissible.

In the case of State v. Browning, 206 Ark. 791, 178 S. W. 2d 77, we held that the statute (A 43-601 Ark. Stats.) was directory only and not mandatory. We there quoted from Wharton on Criminal Evidence, 11th Ed. Vol. 2, p. 1023, § 610: “The mere fact that a confession is made while the maker is in the custody of a police officer, or even while confined under arrest, is not sufficient of itself to affect its admissibility, providing that it is otherwise voluntarily made. This rule pertains equally whether the arrest is legal or illegal.” Then, in the Browning case, the holding of this Court was summarized in the following language:

“The fact that the confession was obtained while the accused was being held without a warrant, and before he had been carried before a committing magistrate, does not of itself make the confession inadmissible, but is a circumstance, along with all the other facts and circumstances under which the confession was made, to be taken into consideration by the jury in determining its voluntariness. ’ ’

We, therefore, find that there is no merit in this third point urged by appellant in regard to the confession.

V. Other Objections Or Assignments. It would unduly prolong this opinion to discuss in extenso every objection or assignment in the record; but we have given careful consideration to each, and find none to possess merit. The declarations and admissions made by Moore show his connection with the crime charged. Wooten v. State, 220 Ark. 750, 249 S. W. 2d 964. The fact that the deceased’s billfold was found at the place where Moore had the officers stop to look for it tends to connect Moore with the crime and to substantiate the confession. Shufflin v. State, 122 Ark. 606, 184 S. W. 454. The evidence was amply sufficient to support the verdict; and there was no error in any of the challenged instructions.

Affirmed.

       Some of the matters discussed in this opinion have been considered in several recent opinions of the United States Supreme Court, which we have carefully studied, to-wit: Payne v. Arkansas (opinion of 5/19/58), 356 U. S. 560, 2 L. Ed. 2d 975, 78 S. Ct. 844; Thomas v. Arizona (opinion of 5/19/58), 356 U. S. 390, 2 L. Ed. 2d 863, 78 S. Ct. 885; Hoag v. New Jersey (opinion of 5/19/58), 356 U. S. 464, 2 L. Ed. 2d 913, 78 S. Ct. 829; and Eubanks v. Louisiana (opinion of 5/26/58), 356 U. S. 584, 2 L. Ed. 2d 991, 78 S. Ct. 970.

       See also Smith v. State, 218 Ark. 725, 238 S. W. 2d 649.

       The defendant’s attorney testified in part on this point: “My name is W. Harold Flowers, an attorney representing James M. Moore, charged with First Degree Murder in the Miller Circuit Court. I have not discussed with Mr. Gill but upon one occasion in or about the chambers of the Presiding Judge the granting of permission to film and televise the proceedings in the trial of James M. Moore. In that discussion which was held during the month of June, on the Friday referred to, we talked for a few minutes and Í gave more or less tentative consent to the plan to televise the proceedings; that Mr. Gill told me at that time that we would have the privilege of editing the telecast, and that they only wanted to televise the summation or the arguments to the jury.

       Canon No. 35 of the Code of Judicial Ethics, adopted by the American Bar Association and by the Arkansas Bar Association (see 10 Ark. Law Review p. 295), provides: “Proceedings in court should be conducted with fitting dignity and decorum. The taking of photographs in the court room, during sessions of the court or recesses between sessions, and the broadcasting or televising of court proceedings are calculated to detract from the essential dignity of the proceedings, distract, the witness in giving his testimony, degrade the court, and create misconceptions with respect thereto in the mind of the public and should not be permitted. Providing that this restriction shall not apply to the broadcasting or televising, under the supervision of the court, of such portions of naturalization proceedings (other than the interrogation of applicants) as are designed and carried out exclusively as a ceremony for the purpose of publicly demonstrating in an impressive manner the essential dignity and the serious nature of naturalization.” We find no change in that Canon. In 11 Ark. Law Review, p. 174 there is a case note about photographing court proceedings, which article contains a review of many of the eases. Also there is a discussion about Canon No. 35 in the American Bar Association Journal for May 1957, Vol. 43, p. 419.

       See annotation in 39 A.L.R. 2d 1342 on continuance because of hostile sentiment.

       There is an annotation in 1 A.L.R. 2d 1291 entitled: “Proof as to exclusion of or discrimination against eligible class or race in respect to jury in criminal case.”

       In Washington v. State, 213 Ark. 218, 210 S. W. 2d 307, it was shown that there were 35,980 Negroes in Jefferson County, Arkansas, and that only 3,000 of these were qualified electors, which is one of the requirements for being a qualified juror. So total census figures shed no light on the qualifications for jury service under our statute.

       There are annotations in 85 A.L.R. 870 and 170 A.L.R. 567 on the voluntariness of confessions. Many Arkansas eases are there listed.

       This Section reads: “Where an arrest is made without a warrant, whether by a peace officer or private person, the defendant shall be forthwith carried before the most convenient magistrate of the county in which the arrest is made, and the grounds on which the arrest was made shall be stated to the magistrate, and, if the offense for which the arrest was made is charged to have been committed in a different county from that in which the arrest was made, and the magistrate believes, from the statements made to him on oath, that there are sufficient grounds for an examination, he shall by his written order, commit the defendant to a peace officer, to be conveyed by him before a magistrate of the county in which the offense is charged to have been committed; or, if the offense is a misdemeanor only, the defendant may give bail before the magistrate for appearing before a court or magistrate having jurisdiction to try the offense, on a day to be fixed by the magistrate and named in the bail-bond.”

       See annotation in 19 A.L.R. 2d 1331; and annotation in 93 L. Ed. U. S. 115.

       Included in the record are the summation arguments of counsel to the jury; and we have also read these arguments.


text:
    Harper v. Mo. Pac. Rd. Co.
    5-1595
    314 S. W. 2d 696
    Opinion delivered July 1, 1958

      McMath, Leatherman <& Woods and Mathis $ Keys, for appellant.

      Pat Mehaffy and B. 8. ClarJc, for appellee.
   Ed. F. McFaddin, Associate Justice.

At the completion of all the evidence the Trial Court instructed the jury to return a verdict for the defendant; and the correctness of that ruling is the only issue on this appeal. Our rule for testing such a ruling is well established: giving the evidence of the plaintiff its strongest probative force, was a question made for the jury regarding the alleged negligence of the defendant? (Hawkins v. Mo. Pac. Rd. Co., 217 Ark. 42, 228 S. W. 2d 642.) With this rule in mind Ave state the facts in the light most favorable to the plaintiff.

Mrs. Irene Harper, as administratrix, brought this action against the defendants, Missouri Pacific Railroad Company and Gr. C. Brown, engineer, seeking to recover damages for the death of her husband and intestate, Mr. Olan Harper. It Avas established that Mr. Harper, aged 41, left his home near Benton about 3:00 P. M. Saturday afternoon, September 15, 1956, planning to go to a neighbor’s home to place a call about a fishing trip; that Mr. Harper never returned home alive; that at 3:35 A. M. Sunday morning, September 16, 1956 Missouri Pacific northbound train No. 26, proceeding from Benton to Little Bock, struck Mr. Harper and killed him as he was trying to cross the railroad track on the road from Benton to Bauxite. No one witnessed the striking except the engineer and fireman of the Train No. 26. The fireman, Mr. Garland Fisher, testified as to the striking (as abstracted by appellant — plaintiff below):

“As train 26 approached the Benton-Bauxite Crossing I was keeping a lookout ahead. As we approached the crossing, we came around there somewhere around 3 or 4 cars, or maybe it is a little farther, that you can see this before crossing with your straight beam headlight and your oscillating headlight, then when you get two or three cars, straight beam headlig’hts, you can see the whole crossing, and the whole crossing at that time was clear, nothing on it, no cars, no nothing. You could see the whole crossing and this man came out of the shadows or dark and was running on his feet right down the middle of the highway a short distance from the south main track; then we got within a car and a half of the crossing and I picked him up with the oscillating headlight and got the view of the man running; then when we got within a car and a half of the crossing, I shouted to the engineer. ‘ The man is not going to stop ’ and he went to tooting the whistle and raised his hand up to apply the brakes and by that time we had done hit the man. At the time I first saw the man he was running. When I first picked up the man we were somewhere around a car and a half or two cars or three from the crossing. A car is 80 feet. (I picked him up first with the oscillating headlight, but we got up two cars there and the straight beam headlight puts it all on the whole crossing, and it also put it on there before we hit the man but was almost on the crossing.) When I first picked him up with the oscillating headlight he was not over 30 feet from the crossing — that is just an estimate. He was running just as hard as he could run. In my mind I felt that the man knew we were coming and that he would stop, he had plenty of time to stop, either turned up north or south of the track and avoid running out in front of us. When it became apparent he wasn’t going to stop I hollowed at the engineer that the man was not going to stop, and he was blowing the road crossing whistle and he went to tooting it just like when anything is on the track, and when he toots just as fast as he could, put his hand on the — and no more than the snap of your fingers, he had already hit the man. He reached for his brake at the same time. Prom the time I first saw him until it became apparent he wasn’t going to stop it was just the snap of your finger. He almost made it across the crossing. I would say he lacked maybe a step or something like that making it across. He was hit on the engineer’s side. The train is about 3 or 4 cars from the crossing when you can see the whole crossing. That is just an estimate. I looked at the crossing when it first came in view. No one was on or near the crossing at that time. When he came in view of my oscillating lights I saw him. I did not observe any cars passing over the crossing. The weather was clear. The accident occurred at 3:35. I saw the blinker lights at the crossing working as we approached the crossing. I heard the bell ringing on the crossing lights as we went by the crossing. The engineer was sounding his whistle; . . .”

The engineer, Mr. Brown (joined as a defendant in the case), testified as to the striking (as abstracted by appellant):

“No. 26 was a passenger train. It had ten cars. It was the train involved in an accident at the Benton-Bauxite crossing in which Mr. Alan Harper was killed. The train was traveling between 65 and 70 miles an hour at the time it reached Bauxite crossing. As we approached the crossing I was keeping a lookout ahead. I was blowing my whistle and about three car lengths before I got to the crossing or maybe three and a half, my fireman said, ‘"We are going to hit a man’ and I was blowing my whistle for the crossing bnt when he told me I went to blowing short blasts, jnst a warning, just when I got it on I seen the man run, running across the track ahead of me, possibly around 20 feet but by the time I got my brake on I had done hit him. When the fireman told me I was about to hit a man I started blowing short blasts of my whistle and put my brake on but by the time I got my hand to the brake the train struck the deceased. As I approached the Bauxite Crossing I did not observe anything on the crossing. Prom Texarkana to Little Bock my scheduled running time is two hours and 45 minutes. I might have been 10 or 12 minutes late when I reached the Bauxite cross-

The evidence also showed without contradiction: that after the railroad track leaves Benton going toward Little Bock it is a straight track for about 2,600 feet, then the track takes a one decree curve to the left and the curve extends about 3,300 feet; that near the center of this curve (about 1,650 feet from where the curve began) the road from Benton to Bauxite crosses the railroad track; that it is approximately 4,300 feet from the said railroad crossing back to the Benton railroad depot; that at the said railroad crossing there were two red blinker lights on each side of the crossing and also a warning bell; and that the warning bell and all the lights were working at the time Mr. Harper attempted to run across the railroad track in front of the train No. 26. Furthei’more, there was a street light in the locality.

The appellant does not claim that there was any failure by the defendants to comply with the warning board statute (§ 73-717 Ark. Stats.), or the lookout statute (§ 73-1002 Ark. Stats.), or the whistle and bell statute (§73-716 Ark. Stats.), or the headlight statute (73-704 Ark. Stats.), or any other applicable statute: rather, appellant says that this is a common law negligence action and that the applicable rule is contained in the following words found in the case of Zaloudek v. Mo. Pac., 193 Ark. 344, 99 S. W. 2d 567: “. . . the true test of liability was whether the death . . . was the result of the failure of the appellee, in the exercise of ordinary care, to operate its train so as to avoid striking and killing . . . (deceased), under all the circumstances and conditions existing at the time about or near the . *. . crossing”. On the basis of the foregoing statement, appellant urges that a jury question was made on either of two points, which we now discuss :

I. Appellant says: “Whether excessive speed under the circumstances constituted negligence was for the jury.’’ Appellant relies most strongly on the case of Davis v. Scott, 151 Ark. 34, 235 S. W. 407, wherein this sentence appears: “Unusual speed of a train does not, under all circumstances, constitute negligence, and often the Court may declare, as a matter of law, that the maintenance of a high rate of speed under given circumstances does not constitute negligence, but under other circumstances it may become a question of fact for the determination of the jury”. The appellant says that the facts in the case at bar make a question for the determination of the jury. But we cannot see how the speed of the train made a fact question for the jury in the case at bar. The Train No. 26 was a northbound passeng*er train; it was ten to twelve minutes late at the last time station a few miles before striking Mr. Harper. The train was only maintaining its scheduled speed. It was travelling from 65 to 70 miles per hour.

It was shown without contradiction that when the train operators discovered that Mr. Harper was going to try to run across the track in front of the/ train the engineer immediately gave the whistle .for danger and undertook to apply the brakes, but it was shown that the train would travel a considerable distance before there would be any retardation of the speed. Under all the facts here, speed of the train was not what caused Mr. Harper’s death: rather it was his effort to run across in front of the train. If the train had been going much slower, still it would have travelled a considerable distance before retardation of the speed would have taken effect, so the claim of excessive speed did not make a jury question in this case.

II. The appellant says: “Whether failure to station a flagman at this crossing, in view of the. special dangers arising at this particular time, constituted negligence was for the jury”. It is shown that the crossing here involved was within the city limits of the City of Benton, which has a population in excess of 10,000, and that the road that crossed the railroad track was one of the main traveled roads from Benton to Bauxite. Appellant relies most strongly on certain language contained in Fleming v. Mo. & Ark. RR. Co., 198 Ark. 290, 128 S. W. 2d 986;

“It is the settled rule that whether failure of a railroad company to station a flagman at a crossing constitutes an omission of such care as an ordinarily prudent person would use under the same or similar circumstances, is a question of fact where there are obstructions which materially hinder the view of approaching trains, provided the crossing is used frequently by the public, and numerous trains are run. Inasmuch as permanent surroundings may create a hazardous condition, the rule of care goes further and requires precautions where special dangers arise at a particular time. It is said that the obligation exists, at an abnormally dangerous crossing, to provide watchmen, gongs, lights, or similar warning devices not only for the purpose of giving notice of approaching trains, but such care is to be equally observed where the circumstances make their use by the railroad reasonably necessary to give warning of cars already on a crossing, whether standing or passing, as where a crossing is more than ordinarily dangerous because of obstructions to the view interfering with the visibility of the responsible train operatives, or those approaching the track.”

The evidence in the case at bar fails to show that there was any other person anywhere near the Bauxite crossing at 3:30 A. M. on the Sunday morning when Mr. Harper was struck by the train: the evidence also fails to show that there were any obstructions which could have in any way prevented Mr. Harper from seeing the blinker lights at the crossing; and the evidence fails to show that there was any noise that would have prevented Mr. Harper from hearing the warning bells sounding at the crossing. In the absence of such proof, we see no factual issue to submit to the jury on this point. Of course, there are cases presenting factual situations that would make a jury question as to negligence in failing to have a flagman or guard at crossings; but no such factual situation was shown in the case at bar.

CONCLUSION

We find no facts shown which were sufficient to take the case to the jury under Act No. 191 of 1955 (the governing Act in this case), or any other Act in regard to excessive speed or failure to have a flagman on duty at the time and place here involved.

Affirmed.

       We have several cases in which directed verdicts for the defendant have been given, even against the plaintiff’s claim of excessive speed. Some of these are: Tinsley v. Mo. Pac., 189 Ark. 530, 73 S. W. 2d 473; Garner v. Mo. Pac., 210 Ark. 214, 195 S. W. 2d 39; and Walker v. Mo. Pac., 211 Ark. 635, 201 S. W. 2d 768.