text:
    Beeson-Moore Stave Company v. Anderson-Jeffers.
    4-2714
    Opinion delivered December 19, 1932.

      Chas. W. Mehaffy, for appellant.

      J. P. Clayton and G. C. Carter, for appellee.
   Humphreys, J.

This is an appeal from a decree overruling exceptions to the final report of the receiver filed in the cause in the chancery court of Franklin County,. Ozark District. The report was filed subsequent to the final decree in the case on the merits rendered on the 30th day of March, 1931. Exceptions to the final report of the receiver were filed July 17, 1931, and were heard and overruled by the court on December 18, 1931. The transcript of the record necessary to determine the correctness of the trial court in overruling the exceptions to the final report of the receiver, from which ruling an appeal was prayed oilt of this court, was lodged with the clerk of the Supreme Court on June 8, 1932.

Appellee has filed a motion to dismiss the appeal because not perfected within six months after the final decree overruling the exceptions to the receiver’s report. This motion is not well taken, for the transcript was lodged here on June 8, 1932, or within six months from December 18, 1931, the day on which the exceptions were overruled by the trial court.

Appellee also has filed a motion to dismiss the appeal because the transcript does not contain the entire record made in the case below. It was only necessary to embrace in the transcript all the record relating to and bearing upon the correctness of the court’s decree in overruling the exceptions to the final report of the receiver.

The exceptions challenged allowances made to the receiver by the former chancellor at chambers at Fort Smith in vacation without notice to appellant or without having taken the matter of such allowances under consideration in term time for determination in vacation.

The record reflects that the receiver was appointed on application of parties who had no interest in or claim to the property he took into his possession, and that appellants intervened, and on the trial of the intervention on the merits obtained a decree for the property or the proceeds thereof in the hands of the receiver. In accounting for the funds in his final report, the receiver claimed and requested the court to allow him credits for the amounts allowed him by the former chancellor at chambers at Ft. Smith, which items or allowances were excepted to by appellant. The court overruled appellant’s exceptions and allowed the receiver credit for the items claimed, consisting of a fee to himself and to the attorneys who secured his appointment and certain court costs. The authority under which the chancellor made the order herein involved is said to be conferred by §§ 2190 and 2191 of Crawford & Moses ’ Digest, but such authority is not given by said sections. If the claim for these allowances he treated as an application to the chancery court for them, it was improper to make the allow-anees out of the fund in the hands of the receiver, for the fund had been adjudged to appellant in the trial of the intervention. To make such allowances -would amount to paying debts incurred by one party out of the property belonging to another.

On account of the error indicated, the judgment is reversed, and the cause remanded with directions to sustain the exceptions and disallow the claim of the receiver.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    White v. Williams.
    4-2788
    Opinion delivered December 19, 1932.

      Cravens & Cravens, for appellant.

      Roy Gean, for appellee.
   Humphreys, J.

This is an appeal from a verdict and judgment in favor of appellees in the circuit court of Sebastian County, Fort Smith District, in a replevin suit for an automobile upon which appellee had levied an execution issued on a judgment obtained by Barton-Kellogg Lumber Company against Yiola Earls. The Barton-Kellogg Lumber Company intervened and became a party to the suit. This was the second execution issued on the Barton-Kellogg Lumber Company judgment against Yiola Earls and levied on the automobile in controversy. When the first execution was levied on said automobile, appellant intervened and claimed title thereto, and, on the trial of the intervention on October 9,1929, it was found and adjudged that she was the owner and entitled to the possession of the automobile. At that time, appellant herein was a single woman, residing with her mother, Yiola Earls. Subsequently she married a man by the name of White. About two years elapsed between the first and second executions.

In order to sustain her title and right to possession of the automobile, appellant introduced the judgment of date October 9, 1929, finding her to be the owner and entitled to the possession of the automobile in the same character of proceeding between herself and appellees herein. She relied upon the judgment, and, in order to overcome the effect thereof, appellees attempted to show that she had parted with her title after the rendition thereof either to her mother or Will Eigney.

Over the objection and exception of appellant, they introduced testimony to the effect that appellant married after the rendition of the judgment and remained most of the time for two years in Oklahoma without taking the automobile with her and that during the time, it was housed in her mother’s garage and used by her mother and Eigney.

Over the objection and exception of appellant, they introduced a bill of sale or invoice of tires purchased by her mother on credit from Armstrong Tire & Service Company, for which Barton-Kellogg Lumber Company paid after the levy of the second execution. It does not appear from the record whether the tires on the automobile when seized were the ones purchased from the Armstrong Tire & Service Company by Yiola Earls.

Over the objection and exception of appellant, ap-pellees introduce a judgment in a replevin suit brought by Will Eigney against them for the automobile in which he testified that he purchased same from appellant for $500 after October 9, 1929. Appellant was not a party to that suit, and, so far as the record discloses, had nothing to do with it. Will Rigney testified on cross-examination in the instant case that he had purchased the automobile from appellant after the rendition of the judgment of date October 9, 1929.

Over the objection and exception of appellant, ap-pellees introduced testimony to the effect that Will Rig-ney mortgaged the automobile to E. 0. Trent and J. H. Barch to indemnify them against loss for signing his replevin bond when he brought suit to recover the automobile from appellees.

Appellant contends for a reversal of the judgment upon two grounds: First, that there was no competent, evidence tending to show that she had parted with her title to the automobile after she was adjudged to be the owner thereof in the trial of the first suit on October 9, 1929, between the same parties; and, second, that the court admitted incompetent evidence to which she objected and excepted.

(1) The extended absence of appellant from the State and the use of the car by her mother and the testimony of Will Rigney to the effect that he had purchased the automobile for $500 from appellant, together with his use of it for a part of the time, was competent testimony tending to show that appellant had parted with the title thereto at the time the second execution was issued and levied upon the automobile. In view of the rule that this court will not disturb verdicts of juries if sustained by any substantial evidence, we would affirm this judgment if incompetent testimony had not been admitted which was prejudicial to appellant.

(2) The fact that Will Rigney brought a replevin suit for the automobile, and what he testified to in that case, and the further fact that he gave a mortgage on the automobile to E. 0. Trent and J. H. Barch to get them to sign his replevin bond, were inadmissible and prejudicial. Appellant was not a party to the suit and, so far as the record shows, did not encourage it and did not acquiesce in the proceedings or know what testimony was introduced therein, nor is it disclosed that she had any knowledge of or suggested or participated in the execution of the mortgage.

The introduction of the bill of sale for tires purchased by Viola Earls from the Armstrong Tire & Service Company was also inadmissible and prejudicial, for there was no showing made that they were purchased for and used on the car in controversy.

On account of the errors indicated, the judgment is reversed, and the cause is remanded for a new trial.


author: Kirby, J.,

text:
    Poch v. Taylor.
    4-2789
    Opinion delivered December 19, 1932.

      Tom F. Digby, for appellant.

      Robinson, House & Moses, for appellee.
   Kirby, J.,

(after stating the facts). Appellant first contends that the court erred in holding the State Bank Bank & Trust Company, insolvent, of which the note sued on constituted a part, but this question has been determined against him in a former suit wherein he was a party against the Bank Commissioner, ante p. 618.

Pie insists also that the court erred in not holding the note was executed without consideration and void upon the assurance of the officers of the bank that he would never have to pay it. He admits, however, that he executed the note, and the money was loaned him by the bank with which to purchase stock of an ancillary or auxiliary corporation, of which the bank officials were officers, and who assured him that he would never have to pay the note, and that the dividends from the stock of the new company would take care of the loan. The stock was issued to him upon his purchase thereof, and he continued to renew the old note and pay the interest thereon until the execution of the note sued on herein, the last renewal of the note given. He borrowed the money, however, and admitted that he had never repaid it, and there could be no failure of consideration, so far as the loan of the money upon the note discounted was concerned, since he got the value of the money for which the note was executed. The fact that the stock purchased with the money he received on the note finally proved to be without value did not constitute failure of consideration for the note executed for the loan; and, even if it were true, which is not shown, that the bank officials made fraudulent representations to him to induce him to take stock in the ancillary company and loaned him the bank’s money for that purpose, he would still be bound to the payment of the money loaned upon this note, since the bank officers had no authority, and could have none, to lend the bank’s money to enable persons, who desired to do so, to buy stock in the ancilliary corporation, of which they were also officials. This could not be done even though they had attempted to guarantee, which was not done, sufficient returns upon the stock purchased to take care of the repayment of the money loaned. Clements v. Citizens’ Bank of Booneville, 177 Ark. 1085, 9 S. W. (2d) 569.

No error therefore was committed in directing the verdict, the evidence being virtually undisputed.

The judgment is affirmed.


text:
    Hays v. McGuirt.
    4-2754
    Opinion delivered December 19, 1932.

      McElhannon .& Callaway, for appellant.

      J. H. Loohadoo and Bush .& Bush, for appellee.
   Kirby, J.,

(after stating the facts). It is insisted that the court erred in instructing the jury that if they found “that there was no valuable consideration moving to the plaintiff from the defendant for the execution of the release,” it should be disregarded. This instruction was erroneous, misleading and prejudicial. It cannot be said there was no valuable consideration for the execution of the release, whether it was moving to the plaintiff from the defendant or not. The testimony on appellant’s part conduced to show that the plaintiff herself received no consideration for the execution of said release, although she virtually admitted or at least did not deny that the things agreed to be done by the defendant in the release had all been done. The consideration could be a valuable one, whether it moved to her or not, as it might be of benefit to the party promising or a loss or detriment to the party to whom the promise was made; it does not have to he both; it may be either. The court said in Phoenix Sidewalk Co. v. Russellville Water & Light Co., 101 Ark. 22, 140 S. W. 996, “that a consideration was a benefit moving to the promisor or a detriment agreed to be suffered by the promisee. ’ ’ The consideration does not have to move to the party promising, but may move from a promisor to a third person.

■ “As has been noted, the consideration need not move to the mortgagor. Hence the debt may be the debt of another and the consideration, for example, may consist in a loan to a third person, or a satisfaction of a debt due the mortgagee from a third person or. in the release of a mortgage of a third person, or forbearance or extension to a third person debtor.” 41 C. J. 387. See also 13 C. J. 324-25; Jonesboro Hardware Co. v. Western Tie & Timber Co., 134 Ark. 543, 204 S. W. 418; Rockafellow v. Peay, 40 Ark. 69; Reynolds v. Winship, 175 Ark. 352, 299 S. W. 16; Margruder v. State Bank, 18 Ark. 9.

The compromise of a disputed claim furnishes sufficient consideration to uphold a settlement, even though the asserted claim is without merit. Gerdner v. Ward, 99 Ark. 588, 138 S. W. 981; Lee v. Swilling, 68 Ark. 82, 56 S. W. 447; Texas Co. v. Williams, 178 Ark. 1110, 13 S. W. (2d) 309.

The release purported to be in settlement of all claims between the parties, and, as already said, the testimony tended strongly to show its terms were performed by the parties to the release.

It follows from what we have said that the court erred in giving the instruction complained about, and it was apparent from the testimony introduced that the erroneous instruction was prejudicial, and the judgment must be reversed on account of same. Under this view it is unnecessary to determine whether the verdict is excessive. For the error designated the judgment must be reversed, and the cause remanded for a new trial. It is so ordered.

Mehafey, J., dissents.


author: Mehaffy, J.

text:
    Burden v. Hughes.
    4-2790
    Opinion delivered December 19, 1932.

      Cockrill & Armistead and R. E. Wiley, for appellant.

      Beaumont & Bea/umont, J. A. Watkins and T. N. Robertson, for appellee.
   Mehaffy, J.

The appellant, George H. Burden, is a contractor, and had the contract to tear down and remove an old bnilding at Fourth and Louisiana streets and to erect a new building. The old building had to be taken down before the new one could be built. He had had experience in wrecking buildings and doing work of this kind. At the time he was tearing down the building on Fourth and Louisiana streets he had several jobs going on, and was therefore at this job only occasionally, something like once a day. He was on the job when the accident happened, and had been there fifteen or twenty minutes. The appellee, 0. C. Hughes, is 37 years old, and was in the employ of appellant working under Mr. Harry Haws, who was the foreman for the appellant. The roof had 'been torn off by the laborers, and, when Hughes came to work Monday morning, he was put to work cleaning up lumber. He went to work about the center of the north side of the wall that fell. He worked there cleaning up that lumber all day except for a few minutes when he was called away by the foreman to clean some 2-x 6’s. At the time of the accident, appellee was working’ north of the wall, pulling’ nails and cleaning lumber there, and, while he was stooped over picking up some lumber, the wall fell on him and injured him. There is no dispute about the injury or its extent.

Appellee brought suit in the Pulaski Circuit Court alleging that appellant was a contractor and engaged in construction work at the southwest corner of Fourth and Louisiana streets in the city of Little Rock on the 3d day of August, 1931. That on that day about 4 o’clock in the afternoon appellant directed all work to cease in tearing down the building which was then being removed. After said work had been stopped by orders of the foreman, appellee with two other employes were directed by the foreman to pick up pieces of timber and clean them and pick up trash near one of the walls of said building. While so engaged and while acting under the immediate orders of the foreman in charge of said work, said wall fell upon appellee, breaking bis collar bone in two places, breaking eleven ribs, puncturing bis lungs, crushing and breaking bis right elbow, pelvis, chest and stomach, injuring him internally, inflicting numerous cuts and bruises on his body, hands and legs, from which he suffered pain and from which he will so continue to suffer. That the injuries are permanent, and that he will not be able to do any kind of work again. Ap-pellee was 37 years old and earned from $5 to $8 per day, and he had lost in earnings $4,600 and had been damaged in the further sum of $50,000 on account of his pain and suffering. It was alleged that his injuries were due to the negligence of appellant as follows: (1) It was the duty of the defendant to use reasonable care to provide for plaintiff a reasonably safe place in which to work. In this he negligently failed, in that he negligently and carelessly removed the I-beam and the window frame and all other supports of the wall which fell upon plaintiff and injured him, thereby caused said wall to fall and result in injury to the plaintiff above described. (2) The foreman of defendant negligently and carelessly directed plaintiff to perform work near said wall, both he and the defendant being present, looking on, directing and supervising the work done by the plaintiff, when they knew or by the exercise of ordinary care could have known that said wall was dangerous and likely to fall.

Appellant filed answer denying all the material allegations in the complaint and pleading contributory negligence and assumption of risk.

There was a jury trial, and a verdict and judgment in favor of plaintiff for $5,000. The case is here on appeal.

The appellant concedes that the master must exercise ordinary care to furnish a safe place to work, but contends that this rule is not applicable here because appellee was a member of a wrecking crew which was demolishing a building, and the work itself which he engaged to do constantly changed the working place and created hazards, and these were ordinary risks incident to his employment, which he assumed. In other words, the contention is that the appellee assumed the risk because he was a member of the wrecking crew which was constantly changing the working place. The undisputed evidence is that the appellee was not working on or about the wall at all, hut was 12 or 14. feet away from the wall cleaning up lumber and had nothing to do with tearing down the wall. The appellee testified that he did not help take the joists down because Haws, the foreman, saw him there and told him after he got the paper off to go ahead and take the sheeting off. That Haws was there directing .the detail work. Hughes testified that he thought he was in a s.afe place, and was working under the direction of the foreman Haws, and there was nothing to cause him to believe there was any danger. The appellant and Haws, the foreman, both testified that the posts were rotten at the bottom and this caused the wall to fall. Neither of them had investigated to see if there was any danger, and Haws testified that the laborers must make their own place safe as they go and guard against pitfalls. He did not advise any of the laborers that there was any danger of the walls falling. He said he did not know it. He did not make any investigation, but testified that what happened showed that an investigation should have been made. Numerous authorities are referred to, but this question has been settled by decisions of this court, and we deem it unnecessary to review or discuss all the authorities referred to by appellant. The undisputed evidence .in this case shows that the appellant was tearing away the building, and that the work was under the direction and control of Mr. Haws, the foreman, and, at the time the wall fell and injured appellee, both appellant and the foreman were present, and both of them admitted in their testimony that the rotten posts were the cause of the wall falling, and they both admitted that no investigation had been made to determine whether the posts were rotten or whether there was any danger of the wall falling. We have said: ‘ ‘ The master is required to exercise ordinary care in discovering defects and in repairing them and in discovering dangers and obviating them. And this care and prudence must be tested by the business in which the master is engaged and the circumstances surrounding it and commensurate with its requirements.” Bryant Lbr. Co. v. Stastney, 87 Ark. 321, 112 S. W. 740.

“Although the defense of assumption of risk .is established as a part of the law and will be applied in all cases fairly within the rule, it is nevertheless not a favored doctrine, but at best is artificial and harsh and should not be extended beyond its reasonable limits.” 39 C. J. p. 689.

Where the injured employee provides the place to work himself or where his work so changes the place as the work progresses as to make it dangerous and this changing of the work causes injury without the negligence of the master, the injured employee cannot recover. In other words, he assumes this risk, but here the master was directing the work, and the injured employee had nothing to do with its direction and no knowledge of any danger, and it was not his duty to inspect the wall to determine whether there was danger. It was, however, the duty of the master to take such precautions as a person of ordinary prudence would have taken under the circumstances to protect the employee.

“Where there is any evidence justifying an inference that the defect or danger was known or ought to have been known by the defendant, the question whether he took reasonable precautions to guard against the defect or danger is generally a question for the jury.” 45 C. J. p. 1325.

In this case the appellee was not changing the place in any way, but the place was being changed at some distance from appellee under the direction of the foreman himself. The rule contended for by appellant, if adopted, would relieve the master from all liability for injury to servants tearing down a building, no matter how negligent the master himself might be. Such a rule has never been adopted by the courts. It is the duty of the master to make inspection for all latent or concealed defects beyond tbe knowledge of the employee. It is the duty of the master to make proper tests and inspections to discover dangers, and the employee has a right to assume that this duty has been performed by the master, and whether in any particular case the employer has discharged his duty with respect to making proper test and inspections is ordinarily a question for the jury.

. The appellant earnestly insists that the progress of the work in which the appellee and his co-laborers were engaged was constantly changing and that the appellee therefore assumed the risk. The evidence shows that in the progress of the work which the appellee was doing there was no change, and it was simply a question whether the master was guilty of negligence causing the injury.

It is next contended that the court erred in admitting testimony as to the unsound condition of the studding and floor joists because he says there was no allegation in the complaint that the floor joists were rotten. Any evidence tending to show the cause of the wall falling was competent. Moreover, both the appellant and the foreman testifying for the appellant said that the posts were rotten, and that this caused the wall to fall.

It is next contended that the court erred in giving instruction No. 1 requested by appellee, because the complaint does not ask a recovery for failure to warn appel-lee. This is not an independent ground for recovery in any sense. It was the duty of the master to exercise proper care to prevent injury to the appellee, and the foreman and appellee testified about warning without objection.

■Objection is made to instruction No. 7 and No. 10 also. The objection to No. 7 was that it was misleading-in telling the jury that it was the employer’s duty to refrain from any act which would render the employee’s working place more insecure, and that, even though the master did not furnish a safe place, it. was his duty to contribute towards making it a safe place. An objection was made to No.10 because it repeated the alleged error of submitting the failure to warn as a ground for recovery. We do not think the court erred in giving either of these instructions. As we have already shown, it was the duty of the master not only to exercise reasonable care to furnish a safe place to work, but it was his duty to exercise ordinary care in discovering defects and in repairing them and in discovering dangers and obviating them. Bryant Lbr. Co. v. Stastney, supra.

It is next contended by appellant that it was a mere accident which ordinary foresight conld not anticipate, and that no negligence was proved. The evidence shows conclusively that, by the exercise of ordinary care and proper inspection, it could and would have ¡been discovered that the posts were rotten, and this precaution was not taken. The negligence of the appellant was a question of fact properly submitted to the jury, as was also the question of assumed risk and contributory negligence of appellee.

We find no error, and the judgment is affirmed.


text:
    Clayton v. State.
    Crim. 3823
    Opinion delivered December 19, 1932.

      Tom Kidd, for appellant.

      Hal L. Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee.
   Mehaffy, J.

Paul Clayton was indicted, tried and convicted in the Howard Circuit Court for cansing an abortion. The indictment, omitting the formal part, reads as follows: “The said Paul Clayton in the county and State aforesaid, on the 30th day of June, 1932, did unlawfully and feloniously administer and prescribe to one Eunice Burk, a woman with child, before the period of quickening, a quantity of drugs and medicine with intent then and there and thereby to produce an abortion, against the peace and dignity of the State of Arkansas.”

Mrs. Nona Burk, the mother of Eunice Burk, testified that Eunice was 17 years old at the time of her death. Paul Clayton was paying her attention. "Witness did not know that her daughter was sick until Saturday after she had gotten sick on Friday. She had left home and had gone to another daughter of witness at Center Point. Witness testified that she had physicians to attend her; that Paul Clayton came on .Sunday evening and brought some medicine. Dr. Roberts wrote a prescription, and Paul Clayton had it filled and brought it up there. Witness said that Clayton asked her if the doctor told her what he had written the prescription for, and witness told him that he had not. Clayton said yonr daughter has blood poison, and that he had some medicine that might do her good. He stayed all night, and said he would take her to the hospital. Her daughter said she was going to die. Did not see the medicine he fixed up, hut was in the room: when he attempted to give it to her. This was after the abortion had occurred. The medicine which was brought had been prescribed by Dr. Boberts and Dr. Storey. Witness did not know of any medicine that Clayton had there.

Veda Kelley, a sister of Eunice Burk, testified that she lived at Center Point in June and July; that Eunice Burk was her sister and 16 years old. Eunice died at witness’ home. She came there on the 7th day of June and died on the 17th of July. Paul Clayton came there while she was there and stayed ten or fifteen minutes. Eunice was in bed. He came up two weeks before she was taken sick and carried her off and was gone about an hour. He gave her some medicine on the porch and told her to take it if what he did didn’t do her any good. Witness saw him give her the ¡medicine; did not hear him say anything else. This was about two weeks before she got sick. Eunice left witness’ house and came back on June 7. She ate supper and went to bed. The foetus passed Saturday evening and night. Clayton stated that he was responsible for her condition. She was on the porch when Paul gave her the medicine, and witness was standing in the front room. She conld see them, but they could not see her. There was a little morphine tablet colored green and white abont the size of an aspirin tablet.. She got in a car and went off with Clayton about two weeks before she got sick. We went to see Dr. Storey. She came back on Friday and took her bed, and on Saturday evening gave birth to the child. Dr. Storey treated her about a week and then Dr. Boberts was called. They had a consultation and prepared the prescription, that is the medicine which Clayton brought up there. There was a bottle and some tablets Dr. Boberts prescribed. Clayton had some more.

Dr. Storey testified that fie fiad been practicing medicine for 27 years; fiad occasion to treat women with, child; was a graduate of the .School of Medicine of Memphis. Treated Eunice Burk on June 10 at his office. Examined her and found a mess or something- inside her womb and it was soft doughy, and made a vaginal examination and introduced a speculum and found there a condition of puss and bloody water coming from the womb ; took a syringe, washed it out and sterilized it with iodine. She was with child and the foetus was dead. He was called to see her Saturday and was back Monday, and the foetus had passed. In his opinion the foetus had been dead about a month or six weeks. There is a drug which will produce the death of the foetus. Witness continued to treat the girl until about two weeks before her death. Dr. Roberts and Dr. Chambers and his son were there. Witness testified that there is a drug which will produce an abortion, and that he could name and describe it. Witness had been treating Mrs. Kelley for two or three years, but saw Eunice Burk the first time on June 9. He had never treated Eunice before this time.

Mrs. Joe Head testified in substance that she had known Eunice Burk prior to her death; had known her about four weeks; that Mr. Sheffield carried her to the home, and she remained there until Eunice died. She went there on-Sunday, and part of the foetus was removed by Dr. Roberts and Dr. Chambers on Monday. Clayton came up there to bring some medicine which Dr. Roberts had prescribed. Clayton told witness he was responsible for the girl’s condition; he did not say he was responsible for the abortion. Witness is not a registered nurse.

Dr. Roberts testified that he lives in Nashville, and is a graduate of the University of Arkansas, and has practiced medicine 34 years; he was called to see Eunice Burk Sunday evening June 19, and found an incomplete abortion; administered to her for blood poisoning; went back Monday and made an examination and found that part of tire bones of the sknll had not passed and removed them; did not attend her any more. It is a very rare thing that medicine administered to a mother will canse abortion. There is a drng, supposed to be, when administered in enormous doses will produce an abortion, but the chances are it will kill the mother. If it causes sufficient pain to rupture the membrane, the foetus would die and pass out, and, if it did not pass out, it would become decomposed. If an abortion had been caused by the use of instruments and the foetus had failed to pass, a condition would be like witness found there. An abortion is usually done by dilating the mouth of the uterus and introducing instruments. Witness received information that the foetus passed about eight days before he performed the operation.

Dr. W. H. Chambers testified substantially to the same facts as the other physicians.

There was some evidence introduced as to the credibility of the witnesses.

Sheriff Wilson testified about making a search of the home of Roy Ferguson, where Eunice Burk’s mother lived.

Harold Cornish testified that he carried the mail from Dierks to Nashville, and that he remembered carrying Eunice Burk from Center Point to Dierks.

Dr. W. B. Simpson testified in substance that he lives in Nashville, been practicing medicine' 33 years; graduate of Tulane University, New Orleans; had treated women for female diseases; did not know of any drug which would cause an abortion. Medical science does not teach there is a drug that will cause an abortion. Any doctor knows that when a woman is four or five months pregnant there is no drug that will cause an abortion.

Mrs. Nora Burk was recalled and testified that she knew an abortion had been caused on her girl.

There was some evidence introduced by the State in rebuttal. The case is here on appeal.

There was a verdict of guilty fixing punishment of appellant at a fine of $50 and one year in the penitentiary, and judgment was entered accordingly.

Appellant first contends that tlie court erred in not granting his motion to require the State to elect upon which charge it would prosecute, that is, for procuring medicine or prescribing medicine. He alleges that the indictment charged two offenses, and cites and relies on Gramlich v. State, 135 Ark. 243, 204 S. W. 848. In that case appellant had been indicted for the crime of manufacturing intoxicating liquor and being interested in the manufacture of liquor. The court in that case, however, did not hold that the indictment charged two offenses, but held that it was not defective because it charged two offenses conjunctively. The indictment in the case at bar does not charge two offenses. It charges one offense, but charges that the crime was committed by administering and prescribing. It was proper to charge the offense as it is charged in this indictment, and proof of either administering or prescribing would sustain the charge. An indictment in the same language here used was upheld in the case of State v. Reed, 45 Ark. 333. One might be charged with administering and prescribing, and it might be shown in evidence that he did both. The statute provides that it shall be unlawful for any one to administer or prescribe any medicine, etc., and it was proper to charge the offense as having been committed by prescribing and administering.

It is next contended that the court erred in refusing to permit Dr. Storey to testify and to tell the name of the drug which would cause an abortion. The appellant could not have been prejudiced by failure to name the drug because all that he claims that he could have shown by other physicians is, that there is no such drug, and, if the physician had been permitted to name the drug, still the physician testifying for the appellant could only have said it could not produce it; but the appellant argues that, if witness had been permitted to answer the question telling the kind of medicine, he could have shown that this was different medicine from the kind which was used to cause an abortion, but his witnesses testified that there was no such drug, and therefore, if in their opinion there was no such drug, they could not have shown that the medicine named by the State’s doctors was different from the medicine which would produce abortion. The real question was whether there was such a drug, and the State’s witnesses testified that there is such a drug and the doctors testifying for appellant said that there was no such drug. We therefore think that the refusal of the court to permit the witness to state on cross-examination the name of the drug was not prejudicial.

Reversal is also urged on the ground that the court refused to let Mrs. Burk testify, or let the defendant show by her, that she had committed an affirmative act, and tried to conceal the matter of the abortion from the officers at the time it was inquired into, and it is argued that, if she did this, she was an accomplice. This testimony was urged by the defense for the purpose of proving that she was an accomplice. The record however shows that the question was asked, and the witness answered it, stating that she did not make the statements which she is asked if she made.

It is next urged that the court erred in refusing to permit appellant to show by Mrs. Burk that she tried to conceal the matter from the officers, and therefore was an accomplice. The record, however, shows that the attorney for appellant asked the following question: “I just want to get it in the record. We offer to show by this witness that she committed an affirmative act and tried to conceal the matter of the abortion from the officers.” The witness answered: “I did not do it.” There is therefore no evidence in'the record tending to show that Mrs. Burk was an accomplice. On the contrary, the evidence conclusively shows that she was not an accomplice.

The appellant next contends that the court erred in refusing to give certain instructions requested by him. Instruction No. 6 requested by appellant told the jury that the burden was upon the State to show1: (1) That the defendant did administer and prescribe medicine to cause Eunice Burk to have an abortion: (2) That it occurred within Howard County within three years next of the day of the returning of the indictment. No error was committed by the court in refusing to give this instruction. The statute itself provides that it shall be unlawful for one to administer or prescribe. Therefore, if he did either, it would he a violation of the statute, and the burden was not on the State to show that he did both. Proof of either would be sufficient, and it would have been error to tell the jury that the State must prove both.

Instruction No. 2, given at the request of the State, correctly tells the jury that the State must show that he either administered or prescribed the medicine, and that it must have been done within three years prior to the finding of the indictment.

Instruction No. 7, requested by the appellant, stated that he could not bé convicted unless the evidence showed beyond a reasonable doubt that he was present at the time and place the alleged crime was committed, and assisting or ready and consenting to aid and abet the one who did commit the crime, etc. It was not necessary that appellant be present in order to commit the crime. The statute makes it unlawful for any person to prescribe or administer, and, of course, he could do this without being present. This court said: “The well-known meaning of these words, as given by any of the standard lexicographers, shows that the presence of defendant in person at the time the medicine is delivered to or taken by the prosecutrix is not necessarily contemplated. The conduct of the appellant in sending medicine used to bring about abortion to the prosecutrix to be taken by her and his direction to her in person or by letter, and how to take it come clearly within the meaning of the words ‘administer’ or ‘prescribe’ as used in the statute.” Burris v. State, 73 Ark. 453, 84 S. W. 723.

It is next contended by appellant that the court erred in refusing to give his instruction No. 9. That instruction told the jury that they must find the defendant not guilty if they found that the abortion was caused by the use of or employment of any instrument or other means except use of medicine. This instruction was erroneous, because, under the statute, if appellant either prescribed or administered the medicine, he would be guilty, although the medicine was never taken. As said in Burris v. State, supra, “if the defendant procured and gave or sent medicine or drugs to said Nela Burris with the intention of producing an abortion before the period of quickening, it is no defense that the medicine was not taken, or, if taken, that it failed to produce abortion or premature delivery.”

The appellant next complains because the court refused to give instructions No. 15 and No. 16 asked by him. These instructions were on the theory that Veda Kelley was an accomplice. There is no evidence in the record tending to show that she was an accomplice, and therefore there was no error in refusing to give these instructions.

Appellant urges a reversal on the ground that the evidence is not legally sufficient to sustain the verdict. It is argued that the evidence of Veda Kelley must be corroborated because she was an accomplice. If she were an accomplice that would be true, but we have already stated that there was no evidence tending to show that she was an accomplice.

It is finally contended that the judgment should be reversed on the ground of newly discovered evidence. Veda Kelley, a witness for the State, signed an affidavit repudiating some portions of her testimony given at the trial. She states that she did not see the defendant give her sister the medicine, and did not hear him make the statement she testified to in connection with giving her the medicine. She states in her affidavit that she was mistaken about seeing Paul Clayton give her sister the medicine and that she did not hear him make the above statement as testified in the trial. She does not state in her affidavit that any other part of the evidence given at the trial was not true. She testified at the trial that Clayton came up there two weeks before she was taken sick and carried her off and was gone about an hour. She testified at the trial that Clayton said he was responsible for the condition she was in; she also testified on cross-examination that she had told the attorney that all she knew about medicine was what her sister told her; that she was standing in the front room and they were at the steps; they could not see her but she could see them, and she testified on cross-examination that appellant brought the medicine up there; the medicine that was prescribed by Storey and Roberts.

Mrs. Joe Head also made affidavit about some statements that Veda Kelley had made to her, and that Veda Kelley had stated that certain testimony which she gave in the trial was untrue. We think there was sufficient evidence to justify a conviction without the statements of Veda Kelley, which she says in her affidavit were untrue, or rather she says she was mistaken. Of course, she could not have been mistaken, she either saw and heard what she testified to, or she did not see and hear those things.

Granting or denying a new trial on the ground of newly discovered evidence is largely within the discretion of the trial court; unless this discretion is manifestly abused, the cause will not be reversed for not granting a new trial on the ground of newly discovered evidence. This court said: “A material error or misstatement in the testimony of a witness for the prosecution may constitute grounds for a new trial. Where, therefore, it appears that on a new trial the witness will change his testimony to such an extent as to render probable a different verdict, the new trial will be granted; but recantation by witnesses called on behalf of the prosecution does not necessarily entitle defendant to a new trial. The question whether a new- trial shall be granted on this ground depends on all the circumstances of the case, including the testimony of the witnesses submitted on the motion for new trial. Moreover, recanting testimony is exceedingly unreliable, and it is the duty of the court to deny a new trial where it is not satisfied that such testimony is true. Especially is this true where the recantation involves a confession of perjury.” Little v. State, 161 Ark. 245, 255, S. W. 892; 16 C. J. 1188.

We do not think the trial court abused its discretion, and the judgment is affirmed.


author: Butler, J.

text:
    Magnolia Petroleum Co. v. Bell.
    4-2777
    Opinion delivered December 19, 1932.

      Cockrill, Armistead $ Rector and Patterson & Patterson, for appellant.

      Cravens •&. Cravens, Reynolds & Mase and J. H. Rrock, for appellee.
   Butler, J.

On July 23, 1929, Mrs. O. E. Bell was severely burned by an explosion which occurred while she was endeavoring to start a fire in her kitchen stove by applying a lighted match to a pile of kindling and wood upon which she had poured coal oil. From the fire resulting from this explosion the dwelling in which Mr. and Mrs. Bell were living and the household belongings therein were destroyed. This suit was brought to recover damages resulting from the explosion and fire.

There was a trial and judgment for plaintiffs in the trial court, from which is this appeal.

The liability of the appellant, Magnolia Petroleum Company, is based on the contention that the coal oil or kerosene used in starting the fire was purchased by the appellee, O. E. Bell, from a retail dealer in gasoline and kerosene, who had purchased the same from the appellant, which fluid was not kerosene, but a mixture of kerosene and gasoline; that this mixture was highly inflammable and explosive, and that the explosion occurred because it was such mixture. The appellees depended upon circumstances to establish the charge of negligence against the appellant for selling an impure product, and the court, at their instance, instructed the jury that proof of this was not required by direct evidence, but might be proved by circumstances, and if, from the circumstances adduced in evidence, a fair and reasonable inference might be drawn that defendant (appellant) sold as kerosene a different fluid which was dangerous and explosive in its nature, and this was the proximate cause of the injury, liability would attach to the defendant (appellant).

It is the contention of the appellant that the circumstances proved were not sufficient to meet the test laid down by the court, and that the verdict of the jury was without substantial evidence to support it. It is well settled that this court must view the evidence, with all the inferences reasonably dedueible therefrom, in the light most favorable to the appellee, but, applying this rule, we are unable to discover any substantial testimony or proof of any circumstance to support the finding of the jury that the appellant sold to the retailer, Middle-brook, who in turn sold to the appellee, Bell, a fluid as kerosene which was not such, but a mixture dangerous in its character, from the use of which the injuries to ap-pellees resulted.

Prior to this suit, a suit on the same cause of action had been instituted in the Federal District Court of the Western District of Arkansas, and evidence was fully developed on that trial. That case, however, was non-suited, and on the trial of the instant case it was agreed that the evidence taken might be used for the purpose of showing the testimony of any witness in said trial for the purpose of contradiction, or in regard to any statement of testimony of any witnesses who testified in said trial. The testimony of the witnesses in this case and the admissions made as to their testimony in the former trial established the circumstances upon which the appellees rely which are as follows: The appellees lived in the village of Hartman, a short distance from the place of business of Middlebrook, who, among other things, sold gasoline and kerosene, and that it had been their custom to purchase kerosene from him to use in starting- fires in their kitchen stove and under their wash pots; that on or about the 9th day of July, 1929, the ap-pellee, O. E. Bell, applied to Middlebrook for the purchase of a gallon of kerosene. The alleged kerosene was put into a gallon can which appellee kept for that purpose, and he returned with it to his premises. A quantity of this fluid was poured upon some fuel under a wash pot and was ignited by the application of a lighted match. Mr. and Mrs. Bell noticed that it appeared to flame up more quickly than the usual kerosene, which alarmed them and made them think it was dangerous and “looked like it might burn you up. ’ ’ Bell went back to see Middle-brook who told him it was all right, and they continued to use the fluid some three or four times for the purpose of starting- fires before the occurrence on the 13th day of July. The can of kerosene was kept in the garage near the dwelling house and before the date of the explosion Bell had drawn out a small quantity in a bottle which he carried to the woods for the purpose of putting it on a saw, and after the explosion he went to the woods and found this-bottle with some fluid still in it and took it to a chemist for analysis about September TOth. The fluid was found to be a mixture of equal parts of kerosene and gasoline. The chemist who made the analysis stated that the fluid would be highly dangerous for use in lamps and to use to build fires, and if used generally throughout a community would cause a great many casualties.

On July 13th Mrs. Bell cleaned out her kitchen stove, removing the ashes with her hands. She then placed some wood and kindling in the stove and got the can of kerosene and ponred some of the fluid on the fuel in the stove, and upon touching it with a lighted match the explosion followed. Immediately after the explosion the kerosene can was found on the floor near the stove. Appellee testified that on the day his house was burned he saw Mr. Spanke, the agent of appellant, and his driver came to Middlebrook’s place of business and moved the tank in which the kerosene was kept out of his building and took another one off of the truck and put it on the inside, and that Middlebrook was there at the time. A witness by the name of Tinner stated that he was at Middlebrook’s filling station and saw some person, or persons, whom he did not know, change the kerosene in the tank that the oil was carried out of the tank in a five-gallon can and other oil substituted for it. All of this was disputed by Middlebrook and Spanke who testified that no agent of the appellant came to Middlebrook’s place of business on that day and neither the tank nor its contents were changed. There were three witnesses who gave some testimony regarding trouble they had experienced with kerosene bought from Middlebrook, which will be commented upon later in this opinion.

The facts about which there is no dispute are to the effect that the kerosene handled by Middlebrook was all purchased by him from the appellant company through its agent Spanke at Clarksville; that the kerosene in the tank at his filling station out of which he sold a gallon to the appellee, Bell, was purchased about the first to the 10th of July and was drawn into the appellant’s tank truck from a large supply tank. This kerosene had been inspected at the point of shipment and again after it had been put into the tank of the local agent, Spanke, and the test showed it to be kerosene of good quality which came within the test required by law. Middle-brook was a retail dealer in gasoline and kerosene. The tanks in which his gasoline was stored were sunk in the ground outside his building and á small tank was located inside of his building in which he kept kerosene. Appellant’s tank truck was divided into separate compartments, in one of which was kerosene and in the others gasoline, with outlets from each compartment. The kerosene delivered to Middlebrook from the first to the 10th of July was delivered in the ordinary way without admixture with any other fluid or substance. Prom the storage tank of Spanke the local agent of appellant, kerosene was sold to a number of retailers about this time in that territory, who in turn retailed the same to their customers, and no complaint was made by any person who used it. Middlebrook had a number of customers in the village of Hartman, and out of the particular quantity of oil from which the sale was made to appellee, Bell, Middlebrook sold to various other customers the balance of the oil. They used it in their lamps and for the purpose of making fires. This amount, from July 1st to 13th, the date of the explosion in question, was about thirty gallons and was sold in small quantities to the householders in the village who used it in the customary way to light fires and burn lamps and they had no trouble in its use.

The trouble Tinner experienced was that when he started to blow out his lamp the oil ignited down in the lamp and exploded when it was thrown into the yard, but the condition of the lamp was not stated, and it is therefore uncertain whether or not that caused the flame to descend into the lamp or whether it was caused from the character of the oil. Brazier testified that he kindled a fire with the kerosene in his stove about the first of July, and the caps or lids were blown off the stove, but the manner in which the fire was kindled is not disclosed by the testimony- — whether the oil was poured on a smoldering fire or whether the stove was hot or cold— so that that explosion may have been caused by the character of the oil used or from some other cause. It is in the undisputed evidence that kerosene, when poured upon a smoldering fire or under certain other conditions, quickly forms a gas which, upon application of a flame will explode. The witness, Smith, testified that he was not pleased with some kerosene purchased and returned it — but be was unable to say with any degree of certainty when the purchase was made. It would, therefore, be but speculation to say that it was from the same quantity of kerosene out of which the sale to Middlebrook was made in July, 1929. It seems reasonably certain, from the definite and undisputed evidence relating to the character of the kerosene purchased by Middlebrook from appellant in July, 1929, that it was unadulterated and fit for use. Such being the state of the evidence, if it may be said to be established that the kerosene in the gallon can was mixed with gasoline when Mrs. Bell used it for starting the fire in the cook stove, how it became adulterated is a matter of conjecture. There was some testimony that a small quantity of gasoline was kept on the premises in a glass jar, and it appears equally as reasonable that it was inadvertently mixed with the kerosene as it is to say, in view of all the attendant circumstances, that it was mixed in Middlebrook’s tank before the sale was made to Bell, or, as Bell himself furnished the container, that some gasoline might have been in it when the kerosene was purchased by him. It is certain that on the 10th day of September, 1929, the fluid in the bottle given by Bell to the chemist for analysis was found to be half gasoline and half kerosene, but it must be remembered that the time the fluid in the bottle was alleged to have been taken from the gallon can of kerosene is nowhere shown, nor where it was or in whose possession from that time until a date long after the accident resulting in the damages to Mrs. Bell and the destruction of the premises.

We have not overlooked the testimony of Bell and Tinner relative to the agents of appellant making some change of the tank of kerosene in Middlebrook’s filling station on the day of the accident, but no particular significance can be attached to this because the testimony of Bell and his witness, Tinner, are contradictory to each other and there was nothing out of the ordinary in the action of the agents of the appellant, as it was a part of the business to visit the retail dealers from time to time and deliver gasoline and kerosene to them, and, especially. in view of the other circumstances in the case, it is insufficient to show any essential fact.

The essential fact in this case which must be established to fix liability on the appellant is that it delivered to Middlebrook kerosene mixed with gasoline and that it was a part of this mixture that was sold by Middle-brook to the appellee, Bell. While we may have inadvertently omitted mention of some circumstance in evidence, we have carefully reviewed it and believe that we have stated the circumstances in as favorable a light for the. appellee as is warranted. We conclude that there is no substantial testimony which would justify a reasonable inference of the existence of the essential fact upon which a verdict might have been based. It is well settled that the verdict of the jury based on mere conjecture or speculation, as we find this verdict to be, will not be permitted to stand. St. L., S. F. R. Co. v. Smith, 179 Ark. 1015, 19 S. W. (2d) 1102, and cases therein cited.

Appellees rely on the case of Pierce Oil Corp. v. Taylor, 147 Ark. 100, 227 S. W. 420, to support their contention that the evidence in the instant case is sufficient to support the verdict. In that case, however, the evidence clearly established the fact that the retail dealers sold kerosene only and not gasoline, and that on the truck of the oil corporation at the time of the delivery to the retail dealer were four barrels of kerosene and four of gasoline. Two of these barrels were delivered to the retail dealer and two days later a can of coal oil, supposedly, was purchased which was drawn from one of these barrels. In starting a fire with this fluid there was a violent explosion of sufficient force to burst the can nearby, and immediately after the explosion some of the oil was taken from the barrel from which the oil had been purchased, and the sample, after being securely sealed, was sent to a chemist in Port Smith for analysis, who found that it flashed at a temperature of 80 degrees and contained ingredients found in gasoline and not properly present in kerosene. Prom, this evidence the reasonable inference conld be drawn that at least one of the barrels delivered from the corporation’s truck to the retail dealer contained gasoline and not kerosene. The mere statement of the facts in that case distinguish it from the facts of the case at.bar and make it inapplicable thereto.

We deem it unnecessary to discuss the alleged negligence of Mr. and Mrs. Bell or the contention that they used the fluid with full knowledge of its dangerous character. We have examined the instructions and find that some of them erroneously declare the law, but, in view of our conclusion as to the sufficiency of the evidence, it is unnecessary to discuss those instructions. It follows from what we have said that the judgment of the trial court must be reversed, and the cause dismissed. It is so ordered.


text:
    Vance v. Harkey.
    4-2793
    Opinion delivered December 19, 1932.

      Ward & Caudle, for appellant.

      Robert Bailey, for appellee.
   Butler, J.

J. M. Jones died testate in the year 1921, devising his real property to his wife Dora Jones, for life and the remainder in fee to four children, J. W., Luke, Bessie and Dolly Jones, being children born to him and his wife, Dora. Children by a former marriage were mentioned in the will, and Will D. Vance was named as executor. The executor took charge of the property under the will and proceeded to its administration as therein provided.

Seven acres of the real estate are located in the city of Russellville, and, this land not producing enough revenue to pay the general and local taxes, Mrs. Jones and the executor concluded that it would be best to sell the same. In 1928 the appellee, Ed Harkey, agreed to purchase this property for $4,'250, provided the necessary orders were made by the court to authorize the sale as all of the children were minors. The appellee entered into a written contract with the widow and executor to that effect, and pursuant to that agreement Will D. Vance, as executor, and Mrs. Jones, for herself and as the natural guardian and next friend of the minor children, filed a petition in the chancery court for partition, if practical, and, if not, that the land be sold. It was alleged in the petition that the appellee had offered to purchase the property for the sum aforesaid.

It subsequently developed that the child, Luke Jones, had died while an infant and before the death of his father, and that after the execution of the will another child had been born who was named Catherine. The attorney who prepared and filed the petition for partition was not advised of the death of Luke Jones or the birth of Catherine Jones, but assumed that all the beneficiaries and children of J. M. and Dora Jones were those named in the will, naming them in the petition. On-hearing of the petition the court granted same, and directed that the land be sold at private sale to the ap-pellee by a commissioner who was appointed for that purpose. The sale was duly made and report thereof with the commissioner’s deed duly acknowledged to the court, which sale and deed were by the court approved and confirmed, by which the interest of the four children named in the will was conveyed to the appellee, Harkey. Mrs. Jones also conveyed to the appellee by proper deed her interest in the land in question.

The present litigation arose in the following manner: Early in the year 1927, Harkey entered into an agreement with the board of directors of School District No. 14 in Russellville for the sale by him, and the purchase by the said board, of the tract of land for the sum of $6,500. Before this sale was consummated, John W. White and a number of others, presumably citizens and taxpayers of said district, brought suit in the chancery court to enjoin the school board from purchasing the land, and prayed that the minor children named in the partition suit aforesaid be made parties, and that the sale of the land made under the partition decree aforesaid be set aside.

On October 22, 1927, the appellee filed his separate general and special demurrer and answer to this complaint, in which answer the allegations of the complaint were specifically denied. After the filing of this answer, on motion of Harkey, the child, Catherine Jones, was made a party defendant, and a special guardian was appointed to represent her interests. Thereupon Harkey filed an amendment to his answer and cross-complaint wherein he alleged that the child, Catherine Jones, had been inadvertently omitted from the proceedings up to that time, and that she should receive her distributive share of the amount paid by him for the land, and that his title should be quieted and confirmed against all persons including the said Catherine Jones.

An answer was filed for Catherine Jones by her special guardian, and on the 27th day of February, 1928, Mrs. Dora Jones and her children aforesaid filed their interventions, wherein they sought to have the sale made under the partition decree set aside for the reason that the sum contracted to be paid by Harkey was $5,200 instead of $4,250. To this intervention answer was made by Harkey. That case was heard and determined and final decree rendered June 12, 1929, a day of the regular February term. No appeal was taken from that decree, •but on December 28, 1929, Harkey filed an action in tbe probate court against tbe estate of J. M. Jones for $984 which be bad paid into tbe registry of tbe chancery court pursuant to said decree. On motion of Will D. Yance, tbe executor, this claim was dismissed by tbe probate court on October 27, 1930. From this judgment Harkey appealed to tbe circuit court, but tbe record does not disclose what further action, if any, was taken by him in that regard.

Subsequent to all of these proceedings, Harkey filed this action, naming as defendants, Yance as administrator (executor) Dora Jones, tbe widow of J. M. Jones, J. W. Jones, Bessie Jones and Dolly Jones and Catherine Jones, minors, these being tbe four living children of J. M. Jones, deceased, and tbe owners under bis will and by inheritance of tbe parcel of land sold to Harkey. In bis complaint Harkey alleged tbe facts recited above, and that tbe $984 paid by him into tbe registry of tbe court was then in tbe bands of tbe clerk, Ed C. Bradley. The complaint concluded with the prayer that the original contract entered into by Dora Jones, for herself and minor children, and Will D. Yance, executor, be reformed so as to omit tbe name of Luke Jones, deceased, and insert tbe name of Catherine Jones, and that tbe original decree in tbe partition suit be reformed so as to insert tbe name of Catherine Jones where tbe name of Luke Jones appeared; that tbe deed from tbe commissioner made pursuant to tbe decree of partition be reformed in tbe same particular as tbe decree, and that he have judgment against tbe defendants in the sum of $984, and that tbe clei’k of tbe court be ordered to pay said money over to him.

To this complaint tbe defendants interposed a special and general demurrer and answer admitting tbe allegations of the complaint and setting up as an affirmative defense that all tbe matters and things pleaded bad been set up and determined in the suit instituted by citizens to enjoin tbe sale of tbe land in question by Harkey to the school board, in which suit all tbe parties bad inter-verted and all matters bad been adjudicated by a final decree, and tbe defense of res judicata was specially interposed.

On tbe trial of tbe case tbe court rendered a decree against Vance, as executor, in tbe sum of $984 with interest from January 26,1929, and, further, that tbe title of the defendants to the land be divested, and title be confirmed and quieted in tbe plaintiff (appellee) from which is this appeal.

It is insisted by tbe appellee that the trial court was familiar with tbe matters in controversy and, under all the facts in tbe case, rendered a decree in consonance with good conscience, which decree was right. It is not difficult to perceive that tbe chancellor was endeavoring to render such a decree, and it is one which we would feel constrained to affirm, were it not against well-settled principles of law.

In tbe decree of June- 12, 1929, after reciting- tbe filing of the several interventions and tbe answers of Harkey thereto, tbe court found as a matter of fact that, subsequent to tbe execution of tbe will under which Mrs. Dora Jones and her children held title, Catherine Jones was born, and as to her J. M. Jones died intestate. Tbe court found that tbe decree for partition and sale thereunder bad been duly made and entered and tbe land sold to Harkey for tbe sum of $4,250; that tbe sale was duly reported and in all things confirmed and approved, and “the court, being otherwise well and sufficiently advised, doth find that tbe purchase price paid for said land at said sale was the fair and reasonable value thereof, and the court now finds after hearing this cause, and upon proof, that the said amount of $4,250 paid for said land is the fair value thereof, and that, as against the said Dora Jones, J. W. Jones, Bessie Jones and Dolly Jones, and to the extent of their interest, the said Ed Harkey is entitled to have his title in said above-described property forever quieted and confirmed.”

“The court further finds from the evidence in this cause that the minor defendant, Catherine Jones, was not made a party to said proceedings, and that she has her title and interest in said lands, the same being an undivided one-fonrth interest subject to the life estate in her said mother, Dora Jones, and that after investigation and hearing proof that it would be to the best interest of the said minor, Catherine Jones, to divest the title to her interest in said lands out of her and vest the same in the said defendant, Ed Harkey, upon the payment into the registry of this court by the said defendant, Ed Harkey, of her proportionate part and share of the value of the said land in the sum of $984, and that the said Ed Harkey, having paid the said sum of $984 in the registry of this court, which is the amount due said child for its interest in said land after deducting its part of the taxes paid by Ed Harkey, for the use and benefit of the said minor child, Catherine Jones, which amount is hereby ordered delivered to the statutory guardian of Catherine Jones after payment of attorney ad litem, M. H. Dean, and his attorney.

“It is therefore by the court considered, ordered, adjudged and decreed that all the right, title, interest and equity of the said Catherine Jones in and to the said above-described lands situated in Pope County, Arkansas, * * # be, and the same is, hereby divested out of her and vested in the said defendant to the intervention, Ed Harkey, and that the intervention and cross-complaint of-the said Dora Jones, J. W. Jones, Bessie Jones and Dolly J ones, seeking to set aside the decide of the chancery court and ordering a sale of the lands hereinabove referred to, and to revest title in them, be and the same is hereby dismissed for want of equity, and the title of the said Ed Harkey in and to the above-described lands against the said Dora Jones, J. W. Jones, Bessie Jones, Dolly Jones and Catherine Jones be, and the same is, hereby forever vested, quieted and confirmed.”

We. take judicial knowledge of the fact that the term of the court at which the decree of July 12, 1929, was made and entered has lapsed, and the decree become final. The complaint in the present case shows that all the issues involved were, or could have been, determined in the former suit, and all the parties that were necessary to that determination were then before the court. In that suit, Catherine Jones was made a party, and she and her brother and two sisters were the owners of the parcel of land which had been sold to Harkey and the decree quieted and confirmed title in Harkey, he having paid into the registry of the court the amount adjudged to be due the said Catherine Jones. It is argued that, since Yance, the executor, was made a party defendant in the instant case and was not a party to the proceeding which terminated in the decree of June 12, 1929, therefore that decree is not a bar to the instant suit. It is not shown, however, that the estate of J. M. Jones had any interest in the subject-matter of the litigation, and the sole duty of the executor (the specific bequest being only nominal) was to make a partition and division of the estate among the devisees and to pay the funeral expenses and debts of the deceased. There was no showing that any of these duties remained unperformed or that any part of the money arising out of the sale of the parcel of land involved was needed for the discharge of the obligations of the testator. Therefore, all of the persons necessary for the adjudication of the questions before the court were parties to the proceeding and all the matters in issue in the instant case were either directly adjudicated or necessarily involved in the determination of the action ending in the decree of July 12, 1929. That decree, under .familiar principles, operated as a bar to any subsequent suit involving issues which were then, or might have been, determined. Vittitow v. Bennett, 112 Ark. 277, 165 S. W. 625; Black v. Lenderman, 156 Ark. 476, 246 S. W. 876; Shaw v. Polk, 152 Ark. 18, 237 S. W. 703; Toll v. Toll, 156 Ark. 139, 245 S. W. 299; Robertson v. Evans, 180 Ark. 420, 21 S. W. (2d) 610.

The appellee earnestly argues that, since he was not a party to the ex parte petition for partition in which a decree was rendered and by which he became the purchaser of the land, and that in that petition it was erroneously alleged that Luke Jones was one of tke minor owners of tke land, wken in fact ke was dead, tke court kad no jurisdiction of Luke Jones, and tkat, as kis administrator was not a party to any subsequent proceeding, tke principles announced would not apply. Tke answer to this is tkat it is apparent tkat tke child, Luke Jones, died in infancy and therefore, kad no estate or interest in tke estate of kis father, and further tkat tke decree of partition is not tke one sought to ke modified in tke instant case.

Appellee also insists tkat tke proceedings and decree rendered in tke court below were correct under tke rule that a judgment rendered at a former term, of court may be corrected so as to make it speak tke truth, and cites a number of cases to support that contention. This, however, is not a case coming within that rule, for here there was no judgment of tke court which was omitted by misprision of tke clerk or one entered which in fact was not tke decision of tke court; it is an independent action to recover a sum of money which was ordered paid by the court and accordingly paid under tkat order, from which order, as we have seen, no appeal was taken.

We can see how it may be tkat the appellee has been required to pay more for tke tract of land than ke originally bargained, which was all tke land was worth, but no authority has been cited, nor have we been able to discover any, that would warrant tke affirmance of this case.

The judgment in tke instant case therefore must be reversed, and tke cause remanded with directions to dismiss tke appellee’s complaint for want of equity and to pay tke sum in tke registry of tke court to tke legal representative of tke minor child, Catherine Jones. It is so ordered.


author: McHaNey, J.

text:
    Williams v. State.
    Crim. 3827
    Opinion delivered January 9, 1933.

      Hal L. Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee.
   McHaNey, J.

Appellant was convicted of murder in the first degree for the killing of C. H. Atwood, an employee of the Black & White Store at 12th and Welch streets, Little Bock, Arkansas, while engaged in robbing the store, and was sentenced to die in the electric chair. The robbery and killing occurred April 15, 1932.

In his motion for a new trial, appellant assigns two errors of the trial court for reversal, to-wit: (1) “because the court erred in allowing the prosecuting attorney to ask the jurors as to their conscientious opinions in the manner in which the questions were framed”; and, (2) 'because the verdict is contrary to the law and -to the evidence.

1. We understand this assignment refers to the questions asked prospective jurors on their voir dire concerning any conscientious scruples they might have in returning a verdict of guilty where the punishment is fixed by law at death if the facts justified such a verdict. We understand further that the objections made go to the form of the questions only. The form of the questions objected to varied somewhat in wording, but substantially they were all the same. For instance, one juror was asked this question: “Have you any conscientious scruples against returning a verdict of guilty where the punishment is fixed at death if the facts justify returning a verdict of that sort ? ’ ’ Another was asked: ‘ ‘ Have you any conscientious scruples against voting for a verdict of guilty where the law fixes the punishment at death?” Substantially all the questions were the same. It is well settled in this State that there is no error in permitting the prosecuting attorney to ask prospective jurors such questions. In Bell v. State, 120 Ark. 530, 180 S. W. 186, the State was permitted, over appellant’s objections, to ask prospective jurors similar questions which was assigned as error. Overruling this contention, the court said: “Under the law, as we construe it, capital punishment has not been abolished, and it still being within the province of trial juries to return a verdict that would result in capital punishment, the State, in the trial of cases where the death penalty may be imposed, is entitled to a jury that has no conscientious scruples as to such penalty.” And in Jones v. State, 58 Ark. 390, 24 S. W. 1073, this court held that: “It was altogether proper for the prosecuting attorney to ask the jurymen on their voir dire if they had any conscientious scruples that would preclude them from returning a verdict of guilty when the law and evidence would justify same; and, on their answering the question in the affirmative, it was not error in the court to excuse them.” The court did not therefore err in overruling the objections to the questions asked the jurors.

'2. As to the assignment of error, that the evidence was insufficient to support the verdict, but little need be said. Counsel for appellant, in open court, admitted that he was the man that robbed the store and shot Mr. Atwood, and that it occurred in Pulaski County. The undisputed evidence further shows that appellant deliberately killed Mr. Atwood in cold blood while engaged in robbing said store; that he came into the store with a gun in each hand, forced two of the employees into the ice box, held up a customer, and, while robbing the cash drawer, when Mr. Atwood rose np from behind the counter to see what was taking place, appellant shot him. He was a short time thereafter captured by the officers, still having the two guns in his possession and confessed his guilt. No evidence was offered in appellant’s behalf. Under this state of the case, the jury could not well or reasonably have returned any other verdict than guilty, as charged in the indictment, carrying with it the death penalty.

Affirmed.


text:
    Bowlin v. Vinsant.
    4-2803
    Opinion delivered January 9, 1933.

      Phillip A. Toes and Evans & Evans, for appellant.

      Rains ■& Rains, for appellee.
   McHaNey, J.

This is a suit to quiet title to certain real property in the city of Yan Burén, Arkansas. It involves the construction of paragraph 6 of the last will and testament of William Bowlin, deceased, admitted to probate in Crawford County, Arkansas, January 3, 1916. We think it unnecessary to set out the whole will, as it is lengthy and as only paragraph 6 is involved in this lawsuit. It reads as follows: “I give, devise and bequeath unto my beloved wife, Julia Bowlin, all of my household furniture and effects of every character and kind in and about the dwelling house occupied by me in Yan Burén, Arkansas, including all silver -plate, pictures and other personal property and effects of every character in and about the said dwelling house and premises. I also further give and devise unto my said wife, Julia, for and during her natural life, the use, occupancy of my dwelling and home in Van Burén, Arkansas, with the lots and land inclosed and adjoining thereto, and at her death, or should my wife not survive me, I give and bequeath the said personal property herein set forth, or so much as may be undisposed of by my said wife, not in any manner intending to limit my wife in the disposition of said personal property, unto my daughter, Gertrude Vinsant, and I give and devise the said dwelling house and premises devised unto my wife during her life, at her death, or should my said wife not survive me, unto my daughter, Gertrude Vinsant, and unto the heirs of her body.”

Julia Bowlin survived her husband, the testator, and held the real estate mentioned above during her lifetime. She died in the year 1916, at which time the appellee entered into possession and has had continuous possession thereof since said time. The question to be determined is, what title the appellee took on the death of her mother, whether a life estate or a fee simple title? The trial court held that she took the fee and entered a decree quieting the title in her.

We think the case is ruled by the recent case of Pletner v. Southern Lumber Co., 173 Ark. 277, 292 S. W. 370, and cases there cited, and that the trial court correctly held that appellee acquired the fee to the real property devised in paragraph 6 of the will. In the Pletner case we said: “This court has often ruled that where land is conveyed, or devised, to a person and the heirs, of the body, children, or issue of such person, such conveyance or devise creates an estate tail in the grantee or devisee, which, under our statute (§ 1499, Crawford & Moses’ Digest) becomes an estate for life only in the grantee or devisee, and a fee simple absolute in the person to whom the estate tail would first pass, according to the course of the common law, by virtue of such devise, grant or conveyance.” A number of our cases are there collected, so holding. Continuing the court said: “But this familiar doctrine cannot have application here, for the reason that the estate is not devised to Mrs. Mary Elmira Godfrey and her bodily heirs, creating a life estate in her and a fee simple estate in her bodily heirs under the statute supra. The life estate as we have seen was previously devised to Mrs. Artemus F. Gil-lis, and the remainder of the estate, after such life estate, was deyised to Mary Elmira Godfrey and her bodily heirs.” The court then held that Mary Elmira Godfrey took the fee, and not a life estate.

In the instant case the testator devised the real property mentioned in paragraph 6 to his wife during her life, with the remainder to his daughter, the appellee, and the heirs of her body. While the testator did not use the word “remainder” in this connection as was the case of Pletner v. Southern Lumber Co., supra, it was in fact the remainder conveyed. If it had been the intention of the testator to devise only a life estate to Gertrude Yinsant, to take effect immediately upon the death of Mrs. Bowlin, he doubtless would have used similar language as he did concerning his wife, “during her life,” or some similar expression showing a clear intention to convey a life estate. The testator was providing for two contingencies, first, if his wife survived him, and, second, if she did not survive him. In either event it was to go to the appellee and unto the heirs of her body. It is not necessary to determine what estate the appellee would have taken had Mrs. Bowlin not survived her husband. The fact is she did survive him and took a life estate in the real property devised. We think the real intention of the testator was that, if appellee were living at the time of his wife’s death, she should take the fee, but, if she were not living then, the heirs of .her body would take the fee. In other words, it was his intention that this particular, piece of property should descend through the Gertrude Yinsant line of heirs to her first, if she were living at the death of the life tenant, but, if not, then unto her bodily heirs. Other cases holding to the same effect as the Pletner case are: Gregory v. Welch, 90 Ark. 152, 118 S. W. 404; Harrington v. Coop er, 126 Ark. 53, 189 S. W. 667; Bell v. Gentry, 141 Ark. 484, 218 S. W. 194.

It necessarily follows from what we lave said that tie decree of tie clancery court is correct, and must be affirmed. It is so ordered.


text:
    Meriwether v. DuBose.
    4-2794
    Opinion delivered January 9, 1933.

      Cook & Cook and Ned Stewart, for appellant.

      E. A. TJpton and Searcy & Searcy, for appellee.
   Butler, J.

J. W. DuBose brought this suit in the chancery court of Lafayette County, contending that under a contract entered into with James S. Meriwether the latter and the Meriwether Sand & G-ravel Company were due him as an overriding royalty two cents per cubic yard upon all the sand and gravel which Meri-wether and the Sand & Gravel Company had mined and actually shipped from sand and gravel leases in and around Lewisville, Arkansas. His claim was based on the following contract: -

“State of Louisiana,

“Parish of Caddo.

“This memorandum of agreement, made and entered into by and between James S. Meriwether, a resident of Caddo Parish, Louisiana, hereinafter known as party of the first part, and J. W. DuBose, a resident of Lafayette County, Arkansas, hereinafter known as party of the second part, witnesseth:

“That, whereas, the party of the second part has given his time and attention to the securing of gravel leases in and around Lewisville, Arkansas, for the benefit of the party of the first part, in contemplation of the party of the first part operating the said leases by mining sand and gravel therefrom, and

“Whereas,9 a consideration to the said party of the second part for such services is recognized to be due, therefore,

“It is agreed between the parties hereto that upon all sand and gravel actually shipped by the party of the first part from sand and gravel leases in and around Lewisville, Arkansas, the party of the first part will pay to the said party of the second part an overriding royalty of two cents per cubic yard, the said royalty to be based upon the royalties paid to the landowners under the original leases granted by them to the party of the first part, and shall be paid in the same manner and at the same time and place as specified in said original leases.

“Thus done and signed in duplicate at Shreveport, Caddo Parish, Louisiana, on this the 2d day of February nineteen hundred and twenty-five.

(Signed) “James S. Meriwether,

“Attests: “J. W. DuBose.

“Frank M. Cook,

“Nell Illien.”

In DuBose’s complaint the allegation regarding the liability of the Sand & Gravel Company was that the company, a corporation, knew of the existence of the contract and, with such knowledge, accepted the benefits and profits airsing from the mining and shipping of sand and gravel, and, by its dealings with DuBose, recognized said contract and acted thereunder. It is the contention of Meriwether that the contract, properly interpreted, rendered him liable only for an overriding royalty for gravel mined and shipped from certain leases which had been procured for him by DuBose, and that this royalty had been paid, but that large quantities of gravel had been shipped from other leases, and that as to this DuBose was not entitled to a royalty under his contract.

The Sand & Gravel Company filed a separate answer denying any knowledge of the contract entered into between DuBose and Meriwether, or that it had paid any royalty to DuBose, or that it was obligated in any way under the aforesaid contract.

Prior to the filing of the answers, the defendants filed a motion to transfer the case to the Lafayette Circuit Court. This motion was denied, and on the same day, a motion was filed by the defendants to make the complaint more definite and certain in certain particulars. This motion being overruled, the defendants answered.

At the conclusion of the testimony the court found that it was the intention of the parties to the contract that a royalty was due and payable to the plaintiff on all the sand and gravel mined and shipped from leases in and around Lewisville; that as a matter of fact DuBose procured certain leases for J. S. Meriwether, who then directed him, to take all future leases in the name of the Meriwether Sand & G-ravel Company, a corporation, of which J. S. Meriwether was president, and the then owner of one-half of its capital stock; that at the time Meri-wether entered into the contract with DuBose he had in contemplation the organization of the said corporation for the purpose of mining- and shipping sand and gravel from all leases taken in and around Lewisville, and that said company was organized for that definite purpose; that a short time after the organization of the company J. S. Meriwether became the owner of practically all of the capital stock of the corporation. The court further found that the corporation, with full knowledge of the contract, accepted an assignment of all the leases taken by DuBose in the name of J. S. Meriwether, and a large number of leases taken by said DuBose in the name of the company at the direction of J. S. Meriwether, after the incorporation of the said company; that the corporation made payments to DuBose for royalties on gravel taken from leases taken in the name of J. S. Meriwether, and those taken direct to the Meriwether Sand & G-ravel Company; that the company received and accepted the benefits of the contract with full knowledge thereof; that the total yardage shipped from the time operations began until December 16, 1930, was 549,941.69 cubic yards, and that the defendants were jointly liable to the plaintiff for two cents on each cubic yard of which amount the sum of $1,246.10 had been paid.

The court thereupon rendered a decree against both the defendants for the remainder due the plaintiff, from which judgment is this appeal.

It is first contended that the chancery court was without jurisdiction to try the issues involved, and that it should have transferred the case to the law court upon the motion of the appellant. Without setting out the complaint in detail, it suffices to say there were allegations to justify the prayer for an accounting. That this was obviated by stipulation of counsel during the trial of the case would not defeat the jurisdiction of the court. There was also the allegation that the company was in-eorporated for the purpose of carrying out the contract and to mine the leases procured by the plaintiff, and that, with full knowledge of the contract, the company received the benefits thereunder. This allegation stated an equitable cause of action, and the court did not err in overruling the motion to transfer. Charlesworth v. Whitlow, 74 Ark. 277, 85 S. W. 423; McClintock v. Thweatt, 71 Ark. 323, 73 S. W. 323; L. R. & Ft. Smith Ry. Co. v. Perry, 37 Ark. 164, at page 187.

The next assignment of error is the action of the court in denying the motion to make the complaint more definite and certain. The court did not err in its ruling, for it was apparent that the information sought to be elicited was not available to the plaintiff, but was in the possession of the defendants. Neither did the court err in overruling the renewed motion for transfer to the law court at the conclusion of the evidence, for the evidence accepted by the chancellor tended to establish the facts as alleged.

The fourth and fifth grounds for reversal are (a) that the court erred in its construction of the contract, and (b) in holding the corporation liable thereunder. It was fully established by the testimony that DuBose resided in Lewisville and was well acquainted with the landowners in that vicinity. He had discovered that there was a quantity of sand and gravel in that locality, and had conducted frequent exploratory operations to determine its quality and quantity. Believing that his find was valuable and learning that Meriwether was familiar with the value of deposits of sand and gravel and engaged in the business of mining such, he conveyed to the said Meriwether the information he had gained and of Ms acquaintance with those who owned the lands upon which sand and gravel had been discovered. Meriwether sent an agent with DuBose to go over the prospects, and, being convinced of the value of the find, entered into the contract with DuBose, which was prepared in Shreveport, Louisiana, by the attorney of J. S. Meriwether. At the time of the execution of the contract no leases had been actually procured, but, after it was signed by the parties, DuBose began to secure leases which were taken in the name of J. S. Meriwether, and provided for the payment to the landowner of eight cents per cubic yard for sand and gravel. Within a short time after the contract was executed, Meriwether formed the Meriwether Sand & Gravel Company for the purpose of mining the sand and gravel around Lewisville, and assigned to it said leases. He was president of the company, and, at the time of the .incorporation, the owner of fifty per cent, of the capital stock, and a short time thereafter purchased practically all of it. He was the owner of the company during the time it was engaged in developing the leases and shipping the product.

Without setting out the testimony at length, we deem it sufficient to say that there was testimony tending to sustain the finding of the court that Meriwether directed DuBose to take leases direct to the Meriwether Sand & Gravel Company, and that a number of such leases were procured either entirely by DuBose’s efforts or with his aid, and that the company was called into being for the definite purpose of conducting the mining operations and made payments of the overriding royalties on leases taken in the name of J. S. Meriwether originally and assigned to the Sand & Gravel Company, and also on leases taken directly in the first instance to the company.

In view of the plain language of the operative part of the contract, the dealings between the parties with reference thereto, and the fact that the contract was written by Meriwether’s attorney, we think the construction placed on it by the chancellor is justified.

On the question of liability of the Meriwether Sand & Gravel Company, the evidence supports the finding that the corporation was in contemplation at the time the contract was entered into, and that it was organized to provide in advance the means necessary for the successful operation of the leases; that the contract was for the benefit of the contemplated corporation, and that the corporation received the benefits thereunder with full knowledge of its existence. Therefore, the corporation may be said to have adopted sueb contract as its own, and is liable to tbe same extent as J. S. Meriwether himself. The authorities cited by appellee support this view. L. R. & Ft. Smith Ry. Co. v. Perry, supra; 7 R. C. L. 61.

There is no question raised to the finding of the court as to yardage moved, and, since we think its construction of the contract and its finding of liability correct, the judgment must be affirmed. It is so ordered.