author: Mehaffy, J.

text:
    Birnbach v. Kirspel.
    4-3342
    Opinion delivered February 5, 1934.

      J. A. Watkins, for appellant.

      D. K. Hawthorne and Dean A. Phillips, for appellee.
   Mehaffy, J.

The appellant, E. M. Birnbach, filed suit in the Pulaski Circuit Court alleging that on or about February 4, 1933, the appellee, John Kirspel, approached him and advised him that he had an option for 20 days on certain property situated in the city of Little Rock; that said option was taken in the name of George Porbeck, but that he, Kirspel, was the real party in interest. Appellant alleged that Kirspel employed him to make a sale of said property within the limit of the option of 20 days. Kirspel at the time advised appellant that there were taxes against said property of about $2,000 and he wanted to sell the property for $6,500, the purchaser to assume $2,000 of taxes, and Kirspel agreed to pay appellant whatever sum he might sell the property for in excess of $8,500. The appellant immediately went to work to secure a purchaser, and one Otto Finkbeiner offered for the property $7,000 in cash, and to assume the $2,000 taxes.

Prior to February 13, 1933, appellant advised Kirspel that Finkbeiner was considering the purchase. On February 13, 1933, Finkbeiner agreed to purchase the property and appellant accompanied by Finkbeiner, went to Kirspel’s office and demanded an abstract and deed, advising Kirspel that Finkbeiner had the cash to pay when the title was approved. Kirspel declined to make the deed or to have the owners of the property to make it, and refused to comply with the. contract with Birnbach. It was alleged that Finkbeiner was able to pay and ready and willing to assume the $2,000 taxes and pay $7,000 in cash. Appellant alleges that under their contract, Kirspel owes him a commission of $500 which he refuses to pay.

Appellant then filed an amendment to his complaint alleging that he was a real estate salesman and licensed as such under act 148 of the Acts of 1929. Appellees answered, denying all the allegations in the complaint. The evidence was taken, and, at the. close of appellant’s evidence, the court directed a verdict for appellee. The case is here on appeal.

There is very little conflict in the evidence. The evidence tends to show that Porbeek had a written option of 20 days to sell a certain piece of property in Little Bock; that Kirspel was interested with Porbeek; that Kirspel secured the services of Birnbach to make a sale of the property within the 20 days, promising to pay Birnbach all that Birnbach sold the property_ for in excess of $8,500; that Birnbach secured a purchaser ready and willing to pay $9,000 for the property, and that Kirspel and Porbeek declined to make the sale to the purchaser, but had already sold or agreed to sell it to others. Birnbach had a license under act 148 for 1932. About February 1, 1933, Birnbach went to the office of the Arkansas Beal Estate Commission, and the secretary informed him that the issuance of licenses had been suspended pending the outcome of a bill in the Legislature to repeal the act creating the Arkansas Beal Estate 'Commission. Birnbach’s license for 1932 expired on December 31, 1932.

W. A. Beed, secretary of the Arkansas Beal Estate Commission, testified that Bay Birnbach came to his office about February 1, 1933, to see about a license. He explained to Birnbach about the bill pending in the Legislature, and told him that, if he paid his fees, there was no provision for returning them, and that he thought it would not be fair to take the money for the license until the bill in the Legislature was disposed of, but that he would take his application and put it on file. He also testified that when the applications were taken, they were put on file and when the fee was paid, license would be issued as of the date of the application. Birnbach made no application for license during the month of January, 1933, and at the time he talked to Beed about license, he did not make any application in writing, as required by law, and did not make application until February 21, 1933, when the transaction for which he seeks to recover a commission was on February 13, 1933.

Section 5 of act 148 provides that every applicant for real estate broker’s or salesman’s licenses shall apply in writing upon blanks furnished by the commission. It also provides that the application shall be accompanied by the recommendation of at least five citizens, real estate owners not related to the applicant, who have owned real estate for a period of five years or more in the county. The law requires the application to be accompanied by the fee.

Section 2 of act 148, among other things, provides: “No recovery may be had by any broker or salesman in any court in this State on a suit to collect a commission due him, unless he is licensed under the provisions of this act, and unless such fact is stated in his complaint.”

Act 148 was amended by act 142 of the Acts of 1931, but the amendment is not important here.

The appellant correctly states that the only question presented for our consideration is, did the failure of Birnbach to have a license as a real estate broker or salesman under act 148 of the Acts of 1929, deny him the right to go forward with his business as a real estate agent and collect his commissions in the event of a successful sale? Appellant also states: “If Birnibach made no effort to secure such license, he would have no cause of action.”

The undisputed proof shows that Birnbach’s license expired December 31, 1932. He does not claim to have made any effort to secure license during the month of January, 1933. The evidence shows that about February 1, 1933, he went to the office of the Arkansas Real Estate Commission to see about license, and was advised by the secretary that there was a bill pending in the Legislature to repeal act 148, and that they were uot issuing any licenses and would not until after the adjournment of the Legislature; but Reed at that time advised him that they were taking applications, and that, if license was thereafter granted, they would be dated back to the time that the application was made. The law requires the application, to be in writing. Birnbach does not claim that he made any application in writing until February 21, 1933. The transaction with appellees was on February 13, 1933. At the time of the transaction, the sale to Finkbeiner, the appellant does not claim that he had any license or that he had made any written application, as the law requires.

Act 148 provides: “No recovery may be had by any broker or salesman in any court in this State on a suit to collect a commission due him, unless he is licensed under the provisions of this act, and unless such fact is stated in his complaint.

Under the provisions of this statute, a salesman without license cannot recover any commission. However, this court, long before the passage of act 148, stated: “The law is well established that where a statute prohibits engaging in a business or calling without having procured a required license, or where it expressly vitiates all contracts made by unlicensed persons while engaged in such business or calling, a contract made by one who has no license is invalid and cannot be enforced.” Stiewel v. Lolly, 89 Ark. 195, 115 S. W. 1134.

In that case the ordinance of the city merely prescribed the amount of the license fee, and, as stated by the court in that case, it contained neither a penalty nor •' prohibition against engaging in this business without, license, nor did it undertake to invalidate a contract made by an unlicensed person.

In the instant case the law contains a penalty, a prohibition against engaging in the business without a license, and expressly invalidates the contract for commissions, and provides that commissions cannot be recovered.

“It is the rule in most jurisdictions that a broker who fails to procure a license to carry on his business, as required by law, is barred recovery of commissions for acting as a broker. ” Walker on Real Estate Agency, (2d ed.) 541; Whitfield v. Huling, 50 Ill. App. 179; Yount v. Denning, 52 Kan. 629, 35 Pac. 207; Richardson v. Brix, 94 Iowa 626, 63 N. W. 325; Buckley v. Humason, 50 Minn. 195, 52 N. W. 385; Law of Real Estate Brokerage, Nelson, 140.

This court recently said: “It is unimportant whether he had a license as a salesman for appellee at ¡lie time of such agreement, or a license on his own aecount, or any license at all, since lie was duly licensed at the time he perfected the sales and earned the commissions.” Talley v. Tuggle, 183 Ark. 957, 39 S. W. (2d) 707. In the above case the court impliedly holds that he must have a license at the time he earned the commission.

It is, however, contended by the appellant that it was through no fault of his that he did not have, license, and that he did all he could to procure license. We have already shown that he made no application for license in January, 1933, and made no application in February until the 21st. He was told by the secretary of the Commission that, if he would make application, when his license was issued, it would be dated the same date as his application, and notwithstanding this he still neglected to make, application until some days after his transaction with appellees. At the time of this transaction he had no license and no right to sell real estate, and could not recover commissions therefor. He could have, made his application, and could have gone further than that. In order to have done all that he might have done, if he was refused a license after maldng his application, he could have compelled the issuance of license by mandamus.

Appellant relies first on the case of Wicks v. Carlisle, 12 Okla. 337, 72 Pac. 377. In that case the court held that the city of Guthrie had ceased to collect an occupation tax from the real estate agents, and, while the ordinance requiring it was never repealed, the mayor and city council instructed the city officers to collect no more tax from them. The applicant had paid tax as long as the officers would receive it, and the court held it was the fault of the city that the tax was not paid. The applicant in that case, however, offered to pay the tax and did all that he could to pay it, but the mayor and city council, the very persons who passed the law, had abandoned it. The court also held in that case that under ordinary circumstances an agent could not collect commissions without complying with the law.

In the case of Woodside v. Baldwin, 4 Cranch C. C. 174, a physician practiced medicine and charged for his services, and the court held that he could .collect because at that time there was no medical board, and it was admitted that there had been no election of officers of the society for several years, and that there was no board of examiners during all the time the physician practiced.

In Mead v. Lamarch, 150 App. Div. 42, 134 N. Y. S. 479, referred to and relied on by appellant, the court said: “There being no board of examiners, and it being impossible for plaintiff to obtain-a certificate of competency, his position was in effect as though an impossibility of performance had been created ¡by the law.” No such condition exists in the instant case.

The other cases relied on by appellant are very similar to those to which we have called attention, and we deem it unnecessary to review them further, or to call attention further to the distinction between those cases and the instant case. We think that the case of Stiewel v. Lally, supra, settles this case. This seems to be the settled law in this State. The judgment of the circuit court is affirmed.


source: Caselaw Access Project

author: McHaney, J.

license: Public Domain

text:
    Columbian Mutual Life Insurance Company v. High.
    4-3331
    Opinion delivered February 5, 1934.

      Scott P. Fitzhugh and Trimble, Trimble & McCrary, for appellant.

      George E. Morris and Ralph E. Ray, for appellee.
   McHaney, J.

In December, 1911, appellee became a member of a fraternal beneficiary society known as Eminent Honsebold of Columbian Woodmen of Georgia, and was issued a beneficiary certificate by it in tbe sum of $3,000. Dues in the sum of $1.91 plus 10 cents for collection were payable monthly, without notice, on the first day of each month, to the secretary of the local branch, and, if not paid by the 10th day of such month, the member became suspended and all rights under the beneficiary certificate should cease until reinstated in accordance with the constitution and bylaws of the society, which were referred to and made a part of the certificate. Appellee paid his dues for a number of years to the secretary of the local branch at England. This local branch was later disbanded, and his dues were paid elsewhere. Later appellant succeeded to all the rights of the fraternal society and assumed all its outstanding policy liabilities, among them being appellee’s policy. No new policy was issued, but the old beneficiary certificate was permitted to remain as the contract between the parties. Appellee kept his premiums paid both to appellant and its predecessor by paying any time during the current month and as late as from the first to the 8th of the succeeding month without any objection from appellant or its predecessor, so far as this record discloses. The premium for March, 1932, was not paid within the time specified in the policy, but was mailed by appellee by cheek on April 2, 1932, to the Memphis office of appellant, and was received there April 5th. The general agent in Memphis refused to accept the check for the March premium, and required appellee to execute an application for reinstatement, on the ground that the policy had lapsed for nonpayment of the premium on or before the 31st day of March. The check was not accepted as a payment of the March premium, but was placed in the suspense account, as was also a check sent to cover the April premium. Appellee finally executed an application for reinstatement, which was submitted to appellant’s medical examiner, who required, as a condition for reinstatement, that appellee submit to a physical examination by a physician of liis choice in England, which he refused to do. Appellant canceled the policy,, and appellee brought this action as for a breach of the contract to recover the premiums paid by him thereon. A trial resulted in a verdict and judgment in his favor for $1,262.52, this amount to bear interest from May 24,1933, at 6 per cent, per annum, the date of the judgment.

The principal contention made for a reversal of the case, if not the only one, is that the evidence is insufficient to support the verdict, and that the court should have directed a verdict in appellant’s favor at its request. We cannot agree. It was testified by appellant’s agent that, after it assumed the obligations of the fraternal society, it permitted policyholders to have the benefit of the 30 days of grace provided for in policies issued by it, and that it did not insist on payment by the 10th day of the month as provided in the fraternal policies. It is also true that it did not take up the old policies and issue new ones of its own. It is undisputed in this record that appellee did not pay his premiums by the 10th day of the month in which the premiums were due at any time, or at least at any time after appellant took over the business of its predecessor. It is also true and undisputed that appellee’s cheek in payment of his premiums was received by appellant on numerous occasions after the lapse of the 30 days of grace which appellant allowed its policyholders. In a great many of these instances the check was mailed by. appellee on or before the last day of the month in which the premium was due and payable, but was not received by appellant until one or more days later. It is also true and undisputed in this record that, on at least three occasions prior to March, 3932, appellee’s check had been mailed after the last day of the month in which the premium was payable, and was accepted by appellant’s agent as payment of the premium. The agent in Little Rock who received such checks testified that he had advanced such premiums himself out of his own fund in order to keep appellee’s policy in force, and later collected from appellee. We are therefore of the opinion that the evidence is sufficient to establish a custom of appellant to accept payment of premiums after the expiration of the grace period, both as fixed in the policy and as appellant says it permitted to the fraternal policyholders. At least, the evidence was sufficient to submit the question to the jury as to whether appellant had established such a custom. In Cooley’s Briefs on Insurance (2d ed.), vol. 5, p. 4392, it is said: “Thus, where defendant insurance society, prior to April, 1906, had been in the habit of receiving payment of monthly assessments from insured during the month for which they were made, without requiring him to be reinstated, it thereby waived the requirement that insured must pay the assessment on or before the last week day of the month preceding the month for which they were made, and could not, without first giving insured reasonable notice of its intent to change its custom, require him to make payments strictly in accordance with the contract, nor require his reinstatement without notice of such change for his failure to pay the April, 1906, assessment prior to the last week day in March.”

See also Sovereign Camp, W. O. W., v. Newsom, 142 Ark. 132, 219 S. W. 759. After such custom had been established, appellant could not change the custom and lapse the policy where payment was made within the customary time, without notice of its intention to abandon the custom. Sovereign Camp, W. O. W., v. Condry, 186 Ark. 129, 52 S. W. (2d) 638.

Nor does the fact that appellee signed a petition for reinstatement change the result, if, in fact he paid his premium within the time, as we so held in Columbian Woodmen v. Simmons, 150 Ark. 325, 234 S. W. 182.

Appellant argues that the court erred in giving appellee’s requested instructions 1. and 2. These instructions correctly stated the law as we have above outlined it, and were therefore correct. We find no error, and the judgment is affirmed.


author: Butler, J.

text:
    Smith v. Gibbs.
    4-3332
    Opinion delivered February 5, 1934.

      John L. McClellan, for appellant.

      H. B. Means and W. H. Glover, for appellee.
   Butler, J.

From a verdict and judgment in favor of the appellee against the appellant in a justice of the peace court, an appeal was prosecuted to the circuit court of the county where, on a trial of the case, there was again a verdict and judgment in favor of the appellee for the sum of $86.44, from which this appeal comes.

At the conclusion of the evidence, the appellant moved for a directed verdict, which motion was overruled and the case submitted to the jury on instructions given by the court. The contentions made for reversal are that the verdict of the jury was based on incompetent testimony and that on competent testimony the appellant’s request for a directed verdict should have been granted and that the court erred in giving instructions for the appellee and refusing to give certain others requested by the appellant.

From the evidence it appears that a business was conducted in the city of Malvern under the name of “The Smith Funeral Home,” which purchased various items of merchandise at intervals from the appellee. On the 8th of May, 1931, the balance due him was $116.20. Subsequently, beginning on the 10th day of May, following, and from time to time thereafter, other items of merchandise were purchased and charged to the same account as those prior to May 8th. After May 10th, various payments were made by the appellant to the appellee, so that on June 6, 1931, there appeared to be a balance due the latter, as shown by his books, to recover which this suit was instituted.

On the evidence adduced, and from the charge given by the court to the jury, it seems that the suit was brought against the appellant on the theory that The Smith Funeral Home was a partnership composed of the appellant and her husband, Phillip M. Smith; that Phillip M. Smith died on May 8, 1931, and appellant continued the business as surviving partner, and, as such, was liable for the debts of the firm made prior to her husband’s death as well as for subsequent purchases.

The appellant contends that there was no partnership, but that prior to her husband’s death the business belonged to him individually, and she had no connection with it other than working as her husband’s assistant; that after his death she and her son, Robert Smith, formed a partnership and continued the business under the same trade name it had previously borne; that she and her son continued buying from the appellee, making payments on their own account from time to time in sums sufficient to pay in full the debt she and her son were due appellee, but that without right the appellee applied enough of these payments to the debt of her deceased husband to pay the same and claimed a balance of her own indebtedness as unpaid.

In order to establish the partnership, appellee, over the objection of the appellant, was permitted to testify in effect that he knew from advertisements carried in the local newspapers that The Smith Funeral Home was a partnership composed of Phillip M. Smith and Ada E. Smith. Over the objection of appellant, appellee was permitted to introduce several newspapers purporting to be issues of a local newspaper published in the city of Malvern, where The Smith Funeral Home was located. The inference to be drawn from these advertisements was that appellant and her husband jointly owned and conducted the business. On cross-examination of the appellee there was also introduced, and without objection being made, what purported to be a booklet published for circulation in Malvern called “The Bride’s Book,” in which appeared an advertisement bearing the name of Phillip M. Smith and Ada E. Smith over the words “Smith Funeral Home,” and commending this business to the public.

At the request of the appellee the court instructed the jury, submitting for its determination the question of whether or not a partnership existed between appellant and her husband and whether or not she permitted her name to be used in the advertisement which would carry the implication that she was a partner. The court also charged the jury, at the request of the appellant, on the law of application of payments on open accounts. The court refused certain instructions requested by the appellee.

It is the opinion of the majority, to which the writer does not agree, that the testimony objected to was competent and was sufficient to submit to the jury the question whether or not appellant was liable as a surviving partner, and that the court properly refused to direct a verdict in her favor, and that the instructions given were proper declarations of law applicable to the evidence adduced and that the appellee’s requested instructions which were refused by the court were sufficiently covered by the charge given. This being the conclusion reached, it follows that the judgment of the trial court is correct, and it is hereby affirmed.


author: Johnson, C. J.,

text:
    Furst and Thomas v. Rowland.
    4-3294
    Opinion delivered February 12, 1934.

      Barber & Henry, for appellant.

      Tom F. Digby, for appellee.
   Johnson, C. J.,

(after stating the facts). We think this case is ruled by Athletic Tea Co. v. McCormack, 159 Ark. 407, 252 S. W. 7. In the case referred to, this court had under consideration the liability of sureties on a sales contract, in all essential respects not dissimilar to the one here under consideration. There, as here, the contract provided for weekly reports by the principal to the obligee, which provision was ignored by the principal and acquiesced in by the obligees, and we stated the law as follows:

“Where one employed as sales representative of appellant gave a bond, with appellee as surety, obligating himself to make weekly reports of “stock on hand and in transit,” such provision was for the benefit of appellee as well as of appellant; and where appellant failed to require such report and to notify appellee of such omission, he thereby discharged appellee from liability on the bond.”

Appellants contend that the instant case may be differentiated from the case referred to in that in the instant case appellees are guarantors, whereas, in the case referred to, the contract was one of suretyship.

We need not here determine whether appellees are sureties or guarantors. In either event, their obligation's were assumed without compensation. In either event, they are entitled to all the protections usually attendant upon accommodating sureties.

We are definitely committed to the doctrine that an accommodation surety is bound only by the strict letter of his contract of suretyship. Miller v. Friedheim, 82 Ark. 592, 102 S. W. 372.

Under these circumstances, it was the duty of appellants to require the weekly reports from its dealer according to the terms of the contract, and, if and when omissions were encountered, to immediately notify appellees of such defaults. This appellants wholly failed to do.

When thus viewed, it is apparent that the trial court, in giving instruction No. 2 and refusing to direct a verdict in favor of appellants, was following the letter of our holding in the case referred to.

Other alleged errors, in reference to the introduction of testimony, are urged upon us in briefs, but, since the views above expressed are decisive of the ease, it is unnecessary to discuss them.

No error appearing, the judgment is affirmed,


text:
    Yaffe Iron & Metal Company v. Pulaski County.
    4-3354
    Opinion delivered February 12, 1934.

      Owens & Ehrman, John M. Lofton, Jr., and J. M. McFarlane, for appellant.

      Carl E. Bailey, Prosecuting Attorney, and Murray O. Reed, Assistant, for appellee.
   Johnson, C. J.,

(after stating the facts). Four reasons are urged by counsel for appellee for an affirmance of the judgment. First, it is argued that there was no valid contract between appellant and Pulaski County for the purchase of the materials; the theory being that the contract of purchase was made with the purchasing agent of the county, and without any order of the county court directing it. It is immaterial that the contract was void. Appellee cannot accept and hold appellant’s money, also retain the bridges, and at the same time plead the invalidity of the contract in bar of recovery. This contention has been definitely and certainly determined by this court in a number of cases. International Harvester Co. v. Searcy County, 136 Ark. 209, 206 S. W. 312; Howard County v. Lambright, 72 Ark. 330, 80 S. W. 148; Forrest City v. Orgill, 87 Ark. 389, 112 S. W. 891; Ft. Smith v. United States Rubber Co., 184 Ark. 588, 42 S. W. (2d) 1004.

Appellee’s second contention is that no appropriation was made by the quorum court of Pulaski County for the purpose of this claim. On this contention it suffices to say that it is fully answered 'by .the cases heretofore referred to and cited. As a matter of common honesty, a county should not be permitted to accept and hold money as the purchase price for material purchased, and at the same time retain ownership and control of the materials so purchased, and assert, in bar of any recovery, that no previous appropriation had been made therefor. The doctrine here announced does not in any way impair the holding of this court in American Disinfecting Co. v. Franklin County, 181 Ark. 659, 27 S. W. (2d) 95. There appellant’s right to recover rested solely upon the validity or invalidity of the contract.

The third contention is, that appellant’s claim was barred by the five-year statute of limitations. Appellant’s alleged cause of action against Pulaski County did not arise until the county appropriated the two bridges, and this, we understand, did not occur until sometime about 1931. At any rate, there is no testimony showing that the appropriation of the two bridges by the county occurred within any statutory period of limitations prior to the filing of the claim in the county court. The law is well settled in this State that the burden is upon the one pleading the statute of limitations in bar to establish its application by testimony. This appellee has wholly failed to do.

The fourth and last contention is that appellant’s claim is precluded by estoppel. An estoppel does not arise in favor of the party claiming it, unless misled by the acts or conduct of the other party. Rhodes v. Cissel, 82 Ark. 367, 101 S. W. 758; Rogers v. Galloway Female College, 64 Ark. 627, 44 S. W. 454.

Just how and when Pulaski County was misled, to its detriment, by the acts of appellant is not pointed out in briefs. The uncontradieted testimony shows that Pulaski County accepted and now holds $1,475 of appellant’s money. This money was paid to and accepted by it on the theory that the materials purchased would be delivered. The county now holds the money and the bridges. Certainly, under these circumstances, an estoppel could not possibly arise.

From what we have said, it necessarily follows that the trial court erred in disallowing the claim of appellant as a whole. Upon remand, the trial court will hear testimony to determine the value of the White truck, the scrap iron and the three bridges, which were accepted fey appellant (one of which was destroyed by high waters), and deduct the aggregate thereof from the claim of $1,475 and allow the claim for the balance thus obtained or direct its allowance by the county court.

The judgment is reversed, and the cause remanded for further proceedings, in conformity with this opinion.


author: Smith, J.

text:
    Wilson v. Fouke.
    4-3356
    Opinion delivered February 12, 1934.

      James D. Head, for appellant.

      Will Steel, H. M. Barney and Frank S. Quinn, for appellee.
   Smith, J.

C. W. and H. P. Fouke, being indebted to the State National iBank of Texarkana, Arkansas, in the sum of $32,000, evidenced by certain notes, executed their trust deed to a trustee for said bank, whereby they conveyed to said trustee approximately eight thousand acres of land. The trust deed was executed to secure the debt then due and any other debt thereafter incurred. The indebtedness secured not having been paid, suit was brought to enforce payment, and a decree was rendered, which declared the amount then due the bank, and a foreclosure of the lien of the deed of trust was ordered.

It was decreed that the commissioner named for that purpose, in selling the lands, should first offer them for sale in 40-acre tracts, and should thereafter again offer them for sale at an upset price of $3 per acre, and the commissioner was directed to accept and make report of the sale which produced the largest sum of money. The decree recites that, after the execution of the deed of trust, both grantors therein had died testate, leaving minor children as devisees, who had been made parties.

The trustee has appealed from this decree, and it is urged for its reversal that its provisions in regard to the manner of selling the land are in contravention of law and render it void, and it is prayed that it be reversed with directions to offer the lands for sale to the highest bidder without limitation as to the minimum price at which it might be sold. It is urged that the decree appealed from operates to deprive the trustee of his contractual right to subject the lands to sale, and thus impairs the obligation of the contract which the deed of trust created and evidenced.-

It may be said that the practice has not prevailed to any considerable extent in foreclosure proceeding’s in this State to fix a minimum price at which the lands ordered sold may be offered for sale; but we know of no law which prohibits this practice, nor do we think the procedure here attacked operates to impair the obligation of the contract created and evidenced by the deed of trust. The creditor is not denied the right to subject the mortgaged lands to sale. On the contrary, they have been ordered sold, and, if and when they have -been sold pursuant to the decree, a fund will be derived which exceeds the debt secured by the deed of -trust. Under the decree, this debt will first be paid, and the trustee has no interest, of course, in the proceeds of the sale in excess of the debt to the bank.

Obviously, the purpose of the decree is not to prevent the trustee from subjecting the lands to sale and thereby collecting his debt, but is rather to realize something from the sale for the benefit of the devisees, who are minors. The trustee has the right, of course, to have the lands sold. The deed of trust confers that right, But the power inheres in the court to protect not only the rights of the mortgagee, but those of the mortgagors as well, if this may be reasonably done.

Testimony was heard in the court below, before rendering the final decree from which this appeal comes, which has not been brought into the record, and we must therefore presume that it was made to appear to the court that the decree rendered conformed to the equities of the case, and, in the absence of such testimony, we may consider only the power of the court to make the decree rendered.

It may be that the lands cannot be sold at the minimum price fixed by the decree, but that fact has not yet been made to appear. It may also be true that the lands can be sold for that price, and, if so, no substantial prejudice will result, as the interest upon the principal debt is accumulating all the while at the contract rate. If, upon offering the lands for sale on the terms provided by the decree, it shall be made to appear that a sale cannot be had at the minimum price fixed in the decree here appealed from, the court may, and should, make such additional orders as are necessary to effectuate a sale. The power of the court has not been exhausted, and its jurisdiction to-foreclose the deed of trust, continues.

At § 392 of the chapter on Mortgages in 19 R. C. L., page 579, it is said: “It is regarded as a very proper and wise exercise of the discretion of the court to fix a minimnm bid that will be received at a foreclosure sale if the court is at the time of making the order of sale so advised or informed as to enable it fairly to judge of the probable value of the property.” And, in the absence of the oral testimony heard by the court below, we must presume that the court was so advised in rendering the decree which this appeal seeks to reverse.

The power of courts to protect the interests of opposing litigants in foreclosure proceedings is the subject of an extended note to the annotation of the case of Suring State Bank v. Ernestine Giese, reported in 210 Wis. 289, 85 A. L. R. 1477, 246 N. W. 556.

That the courts of this State have a discretion in foreclosure sales, not to deny the right of foreclosure, but to reasonably enforce that right so that unnecessary injustice may not be done, was recognized in the early case of Sessions v. Peay, 23 Ark. 39. After saying that in foreclosure cases the proceeding is under the supervision and control of the court, it was added that: “If not restricted by statute, it is within the power of the chancellor to prescribe, by the decree, the time, place, terms and mode of sale; and the varying circumstances of cases render it necessary that he should be invested with discretion in these matters in order to prevent the sacrifice of property, and to promote advantageous sales.”

See also § 41 of the chapter on Judicial Sales in 35 C. J., page 49, and the cases there cited.

It may be said that the practice is common, and, so far as we are advised, is invariable, to incorporate into mortgages and deeds of trust a power to sell without invoking the aid of chancery courts to decree a foreclosure, and such a power appears in the instrument here sought to be foreclosed. As to all such instruments, the statute provides the procedure under which the power may be exercised. Section 7405, Crawford & Moses’ Digest, requires an appraisement of the property in such cases, and § 7407, Crawford & Moses’ Digest, provides* that the property may not be sold under the power of sale for less than two-thirds of the appraised value thereof, provided that, if the property shall not sell at first offering for two-thirds of the amount of the appraisement, another offering may be made in twelve months thereafter, at which offering the sale shall be to the highest bidder, without reference to the appraisement. It is reasonably certain that no greater delay will result under the provisions of the decree than would result in a sale under the statute, provided the property was not sold at the first offering for as much as two-thirds of its appraised value.

It is insisted that the opinion in the recent case of Adams v. Spillyards, 187 Ark. 641, 61 S. W. (2d) 686, 86 A. L. R. 1493, requires the reversal of the decree here questioned. OBut such is not its effect. The statute there held unconstitutional required the mortgagee, before obtaining a decree of foreclosure, to file a statement that he would bid the amount of the debt secured by the instrument sought to be foreclosed, and prohibited the rendition of any judgment for any deficiency, whereas the decree here appealed from contains no such limitations.

We conclude that the decree is not in excess of the power inhering in the court, and it is therefore affirmed.


text:
    Arkansas Power & Light Company v. Heyligers.
    4-3327
    Opinion delivered February 12, 1934.

      Rose, Hemingway, Cantrell & Loughborough, N. A. McDaniel and J. W. Barron, for appellant.

      Paul E. Talley and W. A. Utley, for appellee.
   Smith, J.

The testimony at the trial from which this appeal comes is in irreconcilable conflict as to the cause and extent of the injury, to compensate which a verdict was returned by the jury in plaintiff’s favor for the sum of $2,200.

The testimony in appellee’s favor, which we must assume was credited by the jury, is to the following effect: She was riding as a guest in an automobile traveling east on Markham Street, in the city of Little Bock. Automobiles were parked along and adjacent to the sidewalk on the south side of Markham Street. Two other lines of automobiles, approaching the intersection of Main and Markham streets, had halted on account of the adverse signal light. One line of automobiles was traveling along the street car track on the south side of Markham Street with a small space between them and the automobiles parked adjacent to the sidewalk. The third line of automobiles was nearer the center of Markham Street, and plaintiff was riding in one of them. A street car, moving north on Main Street, had made the turn into Markham Street, and was proceeding west along that street, when it ran into the automobile in which plaintiff was seated. She was riding on the rear seat, and was injured by the impact. The motorman did not observe the condition of the traffic as he made the turn into Markham Street, but was apparently engrossed in something he was looking at in a hotel at the street corner.

The wife of the driver of the car, who was riding on the front seat with him, was permitted to testify that she said to her husband just as the impact was about to occur, “Lookout, the car is going to hit us,” and he was permitted to testify that he replied, “I can’t help it; I can’t move for that other car.” Objection was made to this testimony, and its admission is assigned as error.

It is also insisted that error was committed in giving certain instructions at the request of the plaintiff. It may be said, in this connection, that all the instructions requested by defendant were given except a peremptory instruction, which directed the jury to return a verdict for the defendant.

It is earnestly insisted that error was committed in the admission of the testimony just quoted, it being contended that the maxim, Res inter alios acta alteri noeere non debet, renders it incompetent.

In the case of Royal Neighbors of America v. McCullar, 144 Ark. 447, 222 S. W. 708, the maxim was applied in holding incompetent the testimony of the husband of the insured person to the effect that he had sent his wife the money with which to pay the insurance premium in question, and had insisted on her paying her lodge dues for the remainder of the year, the purpose of the testimony being to show that her attention had been called to the importance of paying the dues and that she had the money with which to make the payment. We there quoted from Broom’s Legal Maxims, (8th ed.) 748, the following statement of the law: “On the principle of good faith and mutual convenience, a man’s own acts are binding upon himself, and are, as well as his conduct and declarations, evidence against him; yet it would not only be highly inconvenient, but also manifestly unjust, that a man should be bound by the acts of mere unauthorized strangers; and, if a party ought not to be bound by the acts of strangers, so neither ought their acts or conduct to be used as evidence against him. ’ ’

It is obvious that the testimony there held incompetent had no direct probative value as tending to show that the payment of dues had actually been made, but showed only that the insured had the funds with which to pay, and that her attention had been called to the necessity for making the payment.

Here the testimony to which objection is made has a direct and immediate connection with the collision occasioning the injury. It was a warning given that the collision was about to occur, and the reply to the warning, made as the collision occurred, explained the helplessness of the driver of the car to prevent it. The warning and the response may therefore be said to be a part of the res gestae.

In the case of Beal-Doyle Dry Goods Co. v. Carr, 85 Ark. 479, 108 S. W. 1053, the remark of a boy, so young that he himself was incompetent as a witness, made directly after the injury occurred, was held competent. It was insisted that the child’s remark was a mere narrative of what had occurred, and was inadmissible for that reason. In overruling the objections to the admission of this testimony, it was said: “It is contended on behalf of appellee that the testimony was not admissible for the reasons (1) that the declaration of the boy was a narrative of the incident and not a part of the res gestae, and (2) that the tender age of the child rendered his statements, even though admissible as a part of the res gestae, incompetent. It is not easy, always, to determine when a declaration is a part of the res gestae. It is dependent upon the particular circumstances under which the declaration is made. This court, in Clinton v. Estes, 20 Ark. 225, said: ‘It may be difficult to determine at all times when declarations shall be received as a part of the res gestae. But when they explain and illustrate it, they are clearly admissible. Mere narratives of past events, having no necessary connection with the act done, would not tend to explain it. But the declarations may properly refer to a past event as the true reason of the present conduct.’ ”

The cases and authorities there reviewed and quoted from convince us that the testimony was competent as being a part of the incident, and as explaining the circumstances under which it had occurred. Arkansas Valley Trust Co. v. McIlroy, 97 Ark. 160, 133 S. W. 816; Public Utilities Corporation of Arkansas v. Cordell, 184 Ark. 878, 43 S. W. (2d) 746.

The instructions are discussed at great length, and a discussion of the objections made to them would protract this opinion unduly and would involve the consideration of no legal principle which has not already been definitely settled.

The essence of these objections is that the instructions take no account of the contributory negligence of the plaintiff, and improperly invoke the doctrine of the “last clear chance.”

As to the first objection, it may be said that it is virtually conceded that the plaintiff was guilty of no negligence contributing to her injury. The concession is not expressly made, but it need not be, as there was no testimony to require the submission of that question. The plaintiff had no control over the automobile in which she was riding. It is true she might have warnéd the driver that a collision was about to occur, but that warning was, in fact, given by the driver’s wife, and serious objection was made to its competency, as appears from what we have just said. Any additional warning by the plaintiff would have been unavailing. A younger and more athletic person might have escaped from the car to a place of safety. But the plaintiff was sixty-nine years old, and an effort to leave the ear might have caught her off balance and the impact might have resulted in consequences much more serious than those sustained. However, the instructions given at the request of the defendant told the jury that, if negligence on the part of the plaintiff proximately contributed in any degree, however slight, to the happening of the collision, a verdict should be returned for the defendant.

The jury was told, in an instruction to which objection was made, that if “ * * * the person in charge of said street car .discovered the position of said automobile and the perilous condition of the occupants thereof, or could have discovered same by the exercise of due care, that it became the duty of the operator of said street car to use all reasonable means within his power, consistent with the safe operation of said street car, to avoid the striking of said automobile, and, if he failed to exercise such precaution after he discovered, or could have discovered, such peril, and you should further find by a preponderance of the testimony that the injury to plaintiff, if any, was caused by such failure on the part of the operator of said street car, then your verdict should be for the plaintiff!.”

The objection is made to this instruction that it submits the case upon the “last clear chance” doctrine. It is argued that this doctrine cannot be applied to the facts of this case, and that “the ordinary rules of negligence and contributory negligence alone control.” And further, it is insisted that: ‘ ‘ The doctrine of last clear chance presupposes prior contributory negligence on the part of the plaintiff which has ceased activity, and that, as a result of such contributory negligence, the plaintiff is in a position of peril or danger from which he cannot escape by the exercise of ordinary care, and that the defendant then had, or by the exercise of ordinary care could have had, an opportunity to avoid the accident or injury, and failed to do so.”

The doctrine known as that of “last clear chance” is well defined and requires no discussion. At § 398, vol. 1, of White’s Personal Injuries on Railroads, it is said that the rule “may now be stated to be well established that the injured person, or his representative, may recover damages for an injury resulting from the negligence of the defendant, although the negligence of the injured person exposed him to the danger of the injury sustained, if the injury was more immediately caused by the want of care on the defendant’s part to avoid the injury, after discovering the peril of the injured person.”

It would appear to be a sufficient answer to appellant’s argument upon this subject to say' that, if the failure to use care to avoid injuring the person whose negligence had placed him in a perilous position was the proximate cause of the injury, when proper care, after discovery of the peril, would have averted the injury, such failure to use proper care would likewise be the proximate cause of the injury to a person in peril without fault or negligence on his part, and we concluded therefore that there was no error in the instruction.

Objections are urged to the instruction on the measure of damages; but they require but little discussion. Two physicians who had examined and attended the plaintiff testified that she had sustained permanent injuries, and had suffered much pain, and the verdict for $2,200 does not appear to he excessive.

The objection is made that the instruction permitted a recovery to compensate “the necessary expenses incurred or to be incurred for medicine and medical attention, if any,” without, as it is insisted, any testimony upon which to base a finding that additional expense for medicines and medical attention would be required. This, however, is not true if plaintiff’s injuries are as serious as her physicians testified they were. She testified that she still visited her doctor, and required medicines to ease her pain, and that from August 6,1932, the date of her injury, to May 15, 1933, the date of the trial of the cause, she had spent over $40 for medicines alone, and it is fairly inferable from the testimony that additional expenses for medicines and medical attention will be required.

Upon the whole case, we find no prejudicial error, and the judgment must he affirmed. It is so ordered.


author: Kirby, J.,

text:
    Massachusetts Protective Association, Inc., v. Jurney.
    4-3268
    Opinion delivered February 12, 1934.

      Frank L. Harrington and Cravens, Cravens & Friedman, for appellant.

      Robert Bailey, for appellee.
   Kirby, J.,

(after stating the facts). It is insisted that the court erred in refusing to instruct a verdict for appellant, and this contention must he sustained. Under the undisputed testimony there was no repudiation of the contract of insurance by the association, nor any breach of it. Had the association repudiated the contract even, it would still have been entitled to a directed verdict in its favor for the reason that the plaintiff, with full knowledge of its repudiation, elected to stand on the contract. The suit was not one to recover installments under an insurance policy, but was brought on the theory that plaintiff was entitled to recover the present value of future installments under the contract on account of an alleged repudiation of it by the appellant company. A careful examination of all the evidence in the case shows by the undisputed proof that the association at no time either repudiated the contract or breached any of its terms, but always relied upon it. The only controversy between appellant and appellee was as to the meaning of the contract and the coverage afforded by its provisions.

Under the terms of the rider, which was correctly construed by the court below, appellee was only entitled to the indemnity benefits thereunder beyond the sixty weeks provided in the policy itself in the event that a disability occurred within the said period and continued thereafter, totally disabling him and of such a nature as’ necessarily confined him to the house under the care of a physician, etc. No such contingency was shown here, but rather the contrary. It was agreed by the parties hereto that the sixty weeks provided in the policy for payment of indemnity expired on August 4, 1932, and that a settlement was made with appellee by the association whereby he was paid indemnity under the policy up to and including September 22, 1932. The undisputed proof shows that no disability which existed within the sixty-week period continued thereafter, or continuously disabled the insured or confined him to the house, or disabled him from following a gainful occupation. As already said, lie came to Little Bock after tie expiration of tie sixty-week period, and secured employment with tie Missouri Pacific Bailroad Company, where he worked for approximately three months, drawing pay at the rate of $3.56 per day; and he made no claim of any disability after August 4, 1932, until December 17,1932, when he claimed to have had an attack of influenza which confined him to his home from December 11th. A field representative of the association was informed by plaintiff’s attorney on November 7, 1932, three months after the expiration of the 60-week period, that appellee was in the best of health, and not objectionable as an insurance risk. Appellee himself testified that he.was in good health during this time.

In Mutual Life Ins. Co. v. Marsh, 186 Ark. 861, 56 S. W. (2d) 433, it was held that there could be no recovery for damages for an alleged repudiation of payment of indemnity under an insurance contract when it appeared that there was no repudiation, the insured’s remedy being to sue for the installments as they matured. In the instant case, there was no refusal to carry out the contract or renunciation of the agreement, but, as shown by the correspondence between the parties, when default was claimed to have been made, the association only contended that, under the existing facts, the insured was no longer entitled to the weekly indemnity, having been paid all that was due him under the terms of the contract. See 13 C. J., §§ 725-27, page 651.

Moreover, it was said in Mutual Life Ins. Co. v. Marsh, supra, that, if the insured, with knowledge of the facts, elects to continue with the contract, he cannot subsequently make a second and inconsistent election to treat it as abrogated. See also McNamara v. Cerf, 4 Fed. (2d) 997.

Said instruction No. 5, given by the court without objection from appellee, correctly declared the law, and, in addition, the court instructed the jury that plaintiff, to be entitled to recover, must show by a preponderance of the evidence that the defendant insurance company breached the contract or repudiated the provisions thereof. The undisputed testimony, as already shown, discloses that no disability arose during the sixty weeks’ period and continued thereafter as was necessary to entitle appellee to recover; and that the insurance company had performed its contract in the payment of the sixty weeks’ indemnity thereunder, and could not be held to further liability.

Under the circumstances of this case, the court erred in not directing a verdict for the appellant company and in submitting the cause to the jury, since there was no sufficient evidence to warrant its being done. The judgment is accordingly reversed, and the cause, appearing to have been fully developed, is dismissed.


text:
    Cherry v. Falvey.
    4-3346
    Opinion delivered February 12, 1934.

      John E. Harris and C. W. Smith, for appellant.

      Mahony & Yocum and John Sherrill, for appellee.
   Kirby, J.,

(after stating the facts). It is insisted by appellant that his cause of action alleged necessarily falls within the 5-year statute of limitations, not being covered by the general statute of 3 years, and concedes that otherwise, if the 3-year statute applies, the cause of action is barred thereby.

The evidence is virtually undisputed that Dr. Falvey, appellee, dissolved his partnership with the other physicians in El Dorado, with whom he had been associated, had his household goods removed to Longview, Texas, in February, 1931, the doctor having moved there in January, 1931. He had a contractor to build him a home and garage apartments there in February, 1931, the doctor paying a half year’s rent in advance and moving into it. He had been living with his brother at the hotel before getting into the house. One of the attorneys for appellee testified: “It was after that service of the summons in the second suit that I knew he had actually moved to Texas. I knew he had relatives in Longview, and I saw Dr. Falvey down there several times during the months that he stated in his testimony a while ago.”

The original summons was issued on March 24, 1931, on this second suit, and on August 13, 1931, a non est return was made thereon by the sheriff, stating that appellee could not be found in Union County, Arkansas. Another, an alias summons, was issued upon this complaint June 4, 1932, and served on the appellee in Union County, where he had returned on a visit.

Appellee contends, and we have concluded his contention must be sustained, that the cause of action is controlled by § 6950, Crawford & Moses’ Digest, which reads as follows:

‘ ‘ Contracts or liability not in writing.
“The following action shall be commenced within three years after the cause of action shall accrue, and not after.
“All actions founded upon any contract or liability, expressed or implied, not in writing.”

The testimony shows that appellee had moved'his residence from Union County, Arkansas, to Longview, Texas, after the nonsuit was taken in the suit first filed and before summons was issued in the second suit, and that he has continued to reside in Longview since that time. The issuance of the summons therefore for him in the second suit and delivery thereof to the sheriff of Union County was not the commencement of a new action within one year after the nonsuit suffered. An action properly commenced in this manner arrests the statute of limitations, even though summons is not served until after the statutory period elapses. In order for it to have that effect, however, the action must be properly commenced, if it be a transitory action, in the county where the defendant is served with summons or may be served. Such an action instituted in a county other than the residence of the defendant does not arrest the statute of limitations until the writ is served, and when served it relates back to the date of the issuance of the writ. The commencement of the action is by filing in the office of the clerk of the proper court a complaint and causing a summons to be issued thereon. Simms v. Miller, 151 Ark. 377, 236 S. W. 828.

The services of summons upon appellee on June 4, 1932, upon a return visit to Union County was more than 3 years after the injury on January 27, 1929, and more than one year after the dismissal of the prior suit which was filed on September 10, 1930. A summons was issued and served on June 4, 1932, but the issuance and service of summons on that date constituted the bringing of a new action against the appellee upon June 4, 1932, and said action was barred by the statute of limitations and also by the statute of nonsuit. Field v. Gazette Pub. Co., 187 Ark. 253, 59 S. W. (2d) 19.

Such being the case,, the court did not err in granting the motion to dismiss the cause of action, and its judgment must be affirmed. It is so ordered.


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    Lynch v. State.
    Crim. 3868
    Opinion delivered February 12, 1934.

      Hal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   Kirby, J.,

(after stating the facts). It is insisted, first, that the evidence is not sufficient to support the verdict. Notwithstanding appellant testified in his own behalf and denied any participation in the robbery, the truth of the defense was, of course, a question for the jury, and has been settled by its verdict against the appellant upon testimony sufficient to support the verdict. Norrid v. State, ante p. 32.

The fourth assignment of error is that the trial court erred in overruling a motion to quash the indictment because certain members of the grand jury which returned the indictment had served on juries within the period of two years contrary to the provisions of act 135 of 1931. It was shown that three of the jurors had served on a jury in the Danville district of Tell County within two years last past at the August, 1931, term of court, one on the grand jury and two as members of the petit jury. It does not appear that any of these jurors were challenged as disqualified for service upon the impaneling of the jury; and no error was committed in overruling the motion to quash the indictment on that ground. The statute provides that no indictment “shall be void or voidable because any of the grand jury failed to possess any of the qualifications required by law.” Section 3030, Crawford & Moses’ Digest; Weaver v. State, 185 Ark. 147, 46 S. W. (2d) 37.

The fifth assignment of error is to the effect that the court erred in overruling a motion for a continuance based on the fact that one of appellant’s attorneys, Mr. Horton, was a member of the General Assembly and required to be in attendance at the extraordinary session between August 14 and 24. It appears that Mr. Horton was the representative from Logan County and appellant’s regular attorney, and had been employed to defend him in the instant case; and also that Mr. Horton employed Mr. May, of the Booneville bar, to assist in representing appellant, and, within a few days after appellant was arrested, also employed Mr. B. F. Madole, of Danville, who appeared at the examining trial and all three of the attorneys appeared before the judge of the circuit court seeking a reduction of the amount of the bond set for appellant. The crime was committed on June 19, and the General Assembly did not convene until August 14, and the trial of appellant did not take place until August 27, several days after the adjouiument of the General Assembly.

Section 1, act 4 of 1931, reads as follows:

“That any and all proceedings in suits pending in any of the courts of this State in which any attorney for either party to any suit is a member of the Senate or of the House of Representatives or is a clerk or sergeant-at-arms or doorkeeper of either branch of the General Assembly, and any and all proceedings in suits pending-in any of the courts of this State in which any member of the Legislature or clerk or sergeant-at-arms or doorkeeper of either branch of the General Assembly is a party, shall be stayed for not less than fifteen days preceding the convening of the General Assembly and for thirty days after its adjournment, unless otherwise requested bv any interested member of said General Assembly.”

It has not been determined whether the act quoted above applies to proceedings in criminal prosecutions, it having been construed only in the case of Cox v. State, 183 Ark. 1077, 40 S. W. (2d) 427. We do not regard it necessary now to determine whether it relates only to civil suits, since the attorney employed to defend the appellant, recognizing that he would probably be engaged otherwise, employed the services of two attorneys at the bar of the court to assist in representing appellant, and both of them were present and participated in the trial. Appellant could not have been prejudiced by reason of the trial taking place 3 days after the adjournment of the Legislature and was not deprived of the services of counsel of his own choice, the assistants chosen by his chief counsel conducting the trial. No prejudice was shown to have resulted on account of it, and the. court did not err in refusing the eontinuánce under the circumstances.

No error was committed in overruling the motion for a continuance because of the absence of a witness, the motion not being made in the statutory form, the appellant not stating therein that he believed the testimony of the absent witness to be true. Sections 1270 and 3130, Crawford & Moses’ Digest; Estes v. State, 180 Ark. 656, 22 S. W. (2d) 172; Weaver v. State, 185 Ark. 147, 46 S. W. (2d) 37.

The other assignments of error, 7 and 8, alleging that the court erred in permitting the State to introduce “the evidence of divers witnesses, over the objections of the defendant,” and in refusing to permit defendant to introduce “divers testimony” in his own behalf, which was material to his defense, “and which action of the court was prejudicial to the interest and rights of said defendant,” are too indefinite to present any question for review on appeal. Lomax v. State, 165 Ark. 386, 264 S. W. 823.

The above also applies to assignment number 22, relative to the giving of various instructions. An examination of the instructions given show them to be correct declarations of the law, and only a general objection was made to the giving of said instructions, which objection was to the instructions en masse.

The court did not err in permitting the introduction of the testimony of witness, Myran Wright, the accomplice. The law does not prevent an accomplice from testifying, and the court properly instructed the jury concerning the testimony of such accomplice.

Assignment number 23, relative to an objection to the qualification of jurors after a verdict rendered is without merit, since no showing was made that any diligence was exercised by appellant such as would justify the granting of a motion for a new trial on the ground of a juror’s disqualification. Fones Bros. Hardware Co. v. Mears, 182 Ark. 533, 32 S. W. (2d) 313.

We find no prejudicial error in the record, and the judgment is affirmed.


text:
    Consolidated Indemnity & Insurance Company v. Dean.
    4-3347
    Opinion delivered February 12, 1934.

      Reinberger & Reinberger, R. M. Priddy and Arnold Pink, for appellant.

      Robert Bailey and Hays & Smallwood, for appellee.
   Mehaffy, J.

This suit was begun in the Pope Circuit Court against the appellant to recover $2,999. The complaint alleged that Mrs. Effie Dean is the duly appointed, qualified and acting administratrix in succession of the .estate of W. L. Dean, deceased; that Smith & Sandusky is a partnership composed of Thurman Smith and Lonnie Sandusky; that the appellants, Consolidated Indemnity Insurance Company, is a foreign corporation authorized to do a general insurance business in the State of Arkansas; that on April 14, 1931, W. D. Eakes, administrator of the estate of W. L. Dean, recovered judgment in the Pope Circuit Court against Smith & Sandusky in the sum of $25,000 and costs; a copy of said judgment was attached to, and made part of, the complaint; W. D. Eakes died in May, 1932, and Mrs. Effie'Dean was appointed administratrix in succession, and the judgment was revived in her name; that on February 24, 1931, Smith & Sandusky applied for and secured liability insurance with the appellant through its agents, Matthews Investment Company; that the premium was paid and accepted by the agents of appellant, who immediately gave coverage to Smith & Sandusky; that the injury occurred after the contract of insurance was entered into, and while it was in full force and effect. It was alleged that the coverage was $2,999; that, under the laws of Arkansas, appellee is entitled to be subrogated to the rights of Smith & Sandusky in the contract of insurance, and entitled to bring this action, and prayed judgment in the sum of $2,999.

The appellants filed answer, denying all the material allegations in the complaint, and further answered, stating that Smith & Sandusky made application to Matthews Investment Company for a policy of insurance covering any injury that might occur to an employee of said Smith & Sandusky at their mill at Dover, Arkansas, but that said application was made after Dean was injured on February 24, 1931. The answer alleged that Dean was injured a little after one o’clock, and it was after two o’clock when application was made to Matthews Investment Company for insurance, and was after Dean had been injured; that, by reason of such fact, no policy could be issued, either by its agent or itself, that would cover an accident that happened prior to the application. The appellants further alleged that said Matthews Investment Company was not authorized to issue policies of insurance, and their only authority was in accepting applications, which were to be submitted to the general agents for the issuance of a policy, and that, if said application was accepted, there has never been any policy issued on the same, and there was no policy in force and effect at the time Dean was injured; that there was no contract in force at the time of the injury.

The evidence showed that W. D. Eakes, administrator of the estate of W. L. Dean, recovered judgment against Smith & Sandusky in the sum of $17,500 for the administrator, and $7,500 for Mrs. Dean for her own use and benefit; that execution was issued and returned nulla bona.

There was a trial and judgment for appellee in the sum of $2,999, and this appeal is prosecuted to reverse said judgment.

The appellants earnestly insist that the judgment should be reversed, first, because the Matthews Investment Company was a mere soliciting agent with no authority either to issue policies or make any contract of insurance upon the payment of premium; second, that Dean was injured before application for insurance was made by Smith & Sandusky. If appellants are correct in either of these contentions, the case should be reversed. Both questions, however, are questions of fact, and are to be determined from the evidence.

The burden of proof was upon appellee to show by the evidence that the Matthews company had authority to put the insurance in effect immediately, and the burden of proof was also upon appellee to show that this took place before the injury to Dean. The appellee introduced a certificate from the Insurance Commissioner of the State of Arkansas, which certified that A. J. Matthews and W. H. Norwood were licensed agents of the Consolidated Indemnity Insurance Company of New York for the insurance year from March 1, 1930, to March 1, 1931.

Mr. Norwood testified that it was his understanding that they had authority to receive applications and issue binders; that Smith, when he made application for the insurance, gave him a check for $100, which was the amount of premium charged, and witness told Smith at the time that the insurance went into effect as soon as the premium was paid, and that Smith then paid him the $100; that he, witness, had charge of the insurance business, and continued to have charge of it. Witness further testified that it was his understanding, through the field agent, that they could bind the risk that way. The field agent is a man who travels around for the general agents, E. B. & F. R. Bloom, of Pine Bluff, as their representative, and he came about every two or three weeks. When a policy is issued, it dates back to the time when the application was made; it dates from the application.

A. J. Matthews, a member of the firm of Matthews Investment Company, testified that it was his understanding that Matthews company had general authority to bind or to make the policy effective immediately.

J. Gr. Williams also testified that Matthews Investment Company had authority to put the insurance in effect immediately. He also testified that this authority was never disputed by anybody so far as he knew; that they had authority to bind until the policy was written. Smith was told that the insurance was in effect immediately when he paid the premium. • ■

This evidence was introduced without objection; and is not denied by any witness. Neither the field agent nor the general agents testified in the case. It therefore appears that there was substantial evidence from which the jury might have found that the Matthews Investment Company had authority to make the insurance effective immediately upon the payment of the premium.

It is contended, however, that Dean was injured before the application was made by Smith for the insurance. The testimony on this question is in conflict. Thurman Smith testified that he went to the insurance company’s office about 11 or 11:30 in the morning; that in the office he met Mr. Norwood and another man whom he did not know. The insurance agents told witness the insurance would go into effect immediately, and he gave thém a check for $100 in payment of premium. After he left the insurance office, he went to lunch, and after lunch went back to Burkles’ Buick Company, where he had left his car, and when he got back it was about 1:30 or 1:40. They quit work at the mill at 12 o’clock and went back at 1 o’clock. According to Smith’s testimony, it could not have been later than about 1 o ’clock when he was at the insurance company’s office, and paid the premium.

B. R. Dean testified that he was the son of the man that was killed, and that the accident occurred around two o’clock. Arley Skelton also testified that it was about two o’clock. He also testified that they were paid that day up until 2:30. This would indicate that-.the injury occurred about 2:30. George Carter testified that Dean was injured 15 or 20 minutes after 2 o’clock.

There was some other evidence in conflict with the above, but the jury found that the insurance was in effect before the injury. It is the province of the jury to pass upon the credibility of witnesses and the weight to be given to their testimony, and it cannot be said that there was no substantial evidence from which the jury could find that the insurance took effect prior to the injury.

This court has many times held that it is the province of the jury to reconcile conflicts which exist in the testimony, and, if there is sufficient evidence to submit a question to the jury, its finding is conclusive, although we might believe that its finding was against the preponderance of the evidence. Dixie Bauxite Co. v. Webb, 187 Ark. 1024, 63 S. W. (2d) 734; Gibson Oil Co. v. Bush, 175 Ark. 944, 1 S. W. (2d) 88; International Harvester Co. of America v. Hawkins, 180 Ark. 1056, 24 S. W. (2d) 340; Chapman & Dewey Lbr. Co. v. Bryan, 183 Ark. 119, 35 S. W. (2d) 80.

The evidence in this case is not very strong on either proposition, but even heresay evidence, admitted without objection, should be considered and given its natural probative effect subject to any infirmative suggestion due to its inherent weakness, and may establish a material fact in issue, and sustain a verdict or judgment. Mo. Pac. Bd. Co. v. Harding, ante p. 221; 64 C. J. 230.

Appellants contend that the court erred in refusing to give its instruction No. 5 as requested, and erred in modifying the same. No. 5, as requested, in effect told the jury that, if they believed from the evidence that the Matthews Investment Company were local agents, and as such were to receive applications for policies of insurance, and did not have authority to issue policies, but only to take applications and transmit them to the general agents, then there was no contract, and the'jury were told that they should find for the defendant. The court modified the instruction by adding the following: ‘ ‘ Unless you find that the insurance company had expressly authorized the Matthews Investment 'Company to bind the insurance company in advance of the issuance of the policy.”

The court did not err in adding this to the instruction, because there was evidence to the effect that the agents were given this authority, and this evidence was submitted to the jury for its determination, and, if it believed that authority had been given as claimed by the appellee, it had a right to so find, and modifying said instruction was not prejudicial.

The important questions in this case are questions of fact, and there is substantial evidence to sustain the verdict, and this court has no authority to disturb it.

The judgment is affirmed.


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    Banks v. Corning Bank & Trust Company.
    4-3362
    Opinion delivered February 12, 1934.

      Buzbee, Harrison, Buzbee & Wright, for appellant.

      Oliver & Oliver, for appellee.
   Mehaffy, J.

The appellee filed suit in the Pulaski Chancery Court against the appellant, alleging that it is a banking corporation at Corning, Arkansas; that on January 12, 1932, in a case pending in the Pulaski Circuit Court, it recovered a judgment against said appellant in the sum of $29,432.52 with interest and costs; that on December 22, 1930, appellant, A. B. Banks, filed in the district court of the United States, Western Division of the Eastern District of Arkansas, his voluntary petition in bankruptcy, and was on said date duly declared to be a bankrupt; that J. K. Riffle is the duly qualified and acting trustee in bankruptcy of said estate; that Riffle bas in bis possession the sum of $2,800, the property of A. B. Banks; that no payments have been made on appellee’s judgment against Banks; that A. B. Banks is insolvent: that the appellee bas no legal remedy to subject said fund to the payment of its judgment, and, unless prevented by order of court, the said Riffle, as trustee, will pay said sum of money -to A. B. Banks, to appellee’s irreparable injury; that appellee bas procured from the United States District Court permission to make the said J. K. Riffle, as trustee a party to this proceeding; appellee prayed for a temporary injunction enjoining J. K. Riffle, as trustee, from paying said sum of money to 'Banks, and that upon final judgment Riffle be directed to pay said sum to appellee.

A temporary restraining order was issued. The appellant filed motion to dissolve the restraining order. The motion alleged that the judgment obtained against him was obtained in the action wherein the complaint was as shown in exhibit A; that Banks was discharged in bankruptcy on March 1, 1932. A certified copy of the discharge was attached to the motion. Appellee was scheduled as one of Banks ’ creditors, and advised of the bankruptcy proceedings.

Exhibit A, above referred to, is a copy of complaint in the Pulaski Circuit Court, wherein the Corning Bank & Trust Company was plaintiff, and Vann M. Howell Company, John R. Hampton and J. J. Harrison were defendants. Tbe complaint alleged that the Vann M. Howell Company was a corporation, organized under the laws of Arkansas, and bad a paid-up capital of $600,000. It was further stated that money was loaned to the Vann M. Howell Company on November 29, 1929, for which a note was given for $15,000. Said note was renewed from time to time, the last date on which it was renewed being August 23, 1930; that the Corning Bank & Trust Company became insolvent on November 17,1930. Tbe Vann M. Howell Company owned stock in the Corning Bank & Trust Company to the amount of $12,000, on which there was an assessment of 100 per cent. There was due on said note $16,233.33, and on the assessment of stock, including interest, $12,800. It is further stated that A. B. Banks and the other defendants named in the complaint were, during the months of September and October, 1929, the directors of the Yann M. Howell Company; that on September 27, 1929, by resolution of said board of directors, there was declared and made a cash dividend of 50 per cent., to be paid to the stockholders of said Yann M. Howell Company, said dividend to be paid as of October 1,1929, in the total sum of $300,000; and that A. B. Banks was paid $150,000, said sums being paid on October 7, 1929; that, at the time of making the payment, of said dividend, the Yann M. Howell Company had no net earnings or surplus of its assets over its liabilities, including its capital stock, out of which to pay said dividend, and that, despite the fact that it did not have such net earnings or surplus, the defendants wrongfully, unlawfully, negligently and wilfully made and declared said dividend, ordered it t'o be paid, and received for themselves the various amounts set forth, and to pay to the stockholders the balance of said dividend.

The Yann M. Howell Company filed petition in bankruptcy, and J. K. Riffle was appointed and now is trustee. The complaint then alleges that the trustee’s attention was called to the wrongful payment above mentioned, and he was requested to institute.suit; that defendants concealed the fact of the payment of said dividend, and neither the plaintiff nor those under whom its claim arose had any knowledge or notice of the payment until January 30, 1931.

The court entered a decree, stating that the cause was submitted to the court upon the complaint, upon a copy of the order of the Federal court giving permission to sue the trustee, upon motion to dissolve the temporary restraining order, together with exhibits to said motion, and upon the complaint filed in the Pulaski Circuit Court in the case of Corning Bank & Trust Company v. A. B. Banks, and upon the judgment rendered in said circuit court in said cause, and upon plaintiff’s response to defendant’s motion to dissolve, and the stipulation entered into between the parties, and upon amendment to defendant’s motion to dissolve, together with the response thereto.

This shows the evidence and documents considered by the court when he rendered his decree, and, upon considering these things, he entered a decree perpetually restraining the trustee from paying the money to Banks, and ordered and directed the trustee to pay to the Corning Bank & Trust Company the amount of money which should be credited on the judgment in the Pulaski Cir-* cuit Court.

Appellant contends for a reversal, first, because he claims that the money is exempt from liability or seizure under act 102 of the Acts of 1933 of the Arkansas Legislature. This question was not before the lower court, and therefore cannot be considered by us.

“The authorities are agreed on the proposition that the case on appeal must be decided on the same theory on which it was tried in the court below. Thus issues, which were treated in the lower court by the appellant as not involved, cannot be raised on appeal.” 2 R. C. L. 183.

“The rule that questions not raised in the lower court will not be considered on appeal generally prevents a party from obtaining on appeal relief which was not asked for in the court below. Nor can it be set up for the first time that, in view of the allegations of the bill or complaint, or the prayer for relief, or because of waiver or abandonment in the trial court, or for other like reason, plaintiff was not entitled to the relief given him. ” 3 C. J. 694; Warmack v. Zingg, 179 Ark. 391, 16 S. W. (2d) 17; Winfrey v. Peoples’ Savings Bank, 176 Ark. 941, 5 S. W. (2d) 360; Jones v. McDowell, 176 Ark. 986, 4 S. W. (2d) 049; Burke Const. Co. v. Bd. of Imp. Dist. No. 20, 161 Ark. 433, 256 S. W. 850; Connelly v. Earl Frazier Sp. Sch. Dist., 170 Ark. 135, 279 S. W. 13; White Co. v. Bragg, 168 Ark. 670, 273 S. W. 7; So. Ins. Co. v. Hastings, 64 Ark. 253, 41 S. W. 1093.

Appellant, however, contends that the stipulation became evidence in the case, and that the pleadings wilL be considered amended to conform to the proofs. It appears, however, from the record that the stipulation referred to was filed on November 30, 1932. The parties at that time could not have had in mind exemptions under act 102 of 1933, because that act was not passed until March 16, 1933, long after the stipulation referred to was filed. It clearly appears that the question of exemption under act 102 was never called to the attention of the trial court, and the trial court did not pass on this question, and it therefore cannot be considered here. Besides, the judgment sued on was long before the passage of the act, and the issues were made up before the act was passed, and it has no application to the facts in this case. But it is unnecessary to discuss or construe act 102, because, as we said, it was not an issue in the court below.

It is next contended by the appellant that Banks had been discharged from liability for the claim represented by the judgment. The facts with reference to A. B. Banks’ receiving $150,000, paid as a dividend by the Vann M. Howell Company, are not disputed. We think the record shows conclusively that, at the time the resolution was passed and the dividend paid, the Vann M. Howell Company was hopelessly insolvent, and had no earnings out of which to pay a dividend; that this condition of the company, and the fact that it paid this dividend, was unknown to the appellee, and the record shows that it was concealed from it.

On the complaint filed in the circuit court, alleging fraud and misappropriation of funds, there was a judgment, and this judgment was considered by the chancellor in arriving at his decision in this case.

Appellant argues at length that the discharge of Banks in bankruptcy relieved him from liability. We do not agree with this contention of appellant. Whether the judgment taken by default after due service should have been different cannot be determined here. This is a collateral attack on a judgment apparently valid, and the judgment itself settled this controversy against the appellant.

We do not deem it necessary to review the authorities cited by counsel on both sides, but we hold that the judgment which was considered by the chancellor is such that its obligation cannot be discharged or liability of Banks relieved under the bankruptcy act and decisions thereunder. See Bankruptcy Act, § 14, USCA, § 32, and decisions thereunder.

It is argued at length that the judgment was by default, and that Mr. Banks did not answer because he supposed that they were only seeking a judgment for the purpose of filing a claim in bankruptcy, and did not think a personal judgment was sought against him.

He had no right to think this or assume this attitude. He was served with summons, and he had the right to appear and contest the suit, and, since he did not do so, he cannot now complain.

The decree of the chancery court is correct, and is therefore affirmed.


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    Wilson v. State.
    Crim. 3866
    Opinion delivered February 12, 1934.

      John P. Roberts, for appellant.

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

Appellant was indicted in three counts jointly with.Clifford and Gene Harhack for the murder of Dolph Guthrie. In the first count they were charged with said murder in that they conspired to and did rob the First National Bank of Paris, and in doing so did kill and murder said Guthrie, a teller in said bank, by shooting him. In other words, all were charged with shooting Guthrie. The second count charges them with the same offense in the same way, except the actual shooting of Guthrie is charged to Clifford Harback, and that appellant and Gene Harback were accessories before the fact. The third count, after alleging the conspiracy to rob and the actual robbing of said bank as in the first and second counts, further charged that the offense was committed as follows: “the said John Wilson, Clifford Harback and Gene Harback, in carrying out said intentions and common purpose of robbing said bank and effecting their escape, and while, executing the purpose of said conspiracy aforesaid, feloniously, wilfully and of their malice aforethought and for their own protection from arrest and attack by officers or other persons from arresting them, the said John Wilson, Clifford Harback and Gene Harback, or either of them, compelled and forced Dolph Guthrie, against his will and consent, to accompany them out of said bank from a place of safety to a place known by said John Wilson, Clifford Harback and Gene Harback to be a place of great danger and exposed the said Dolph Guthrie to said danger from said attack upon them, the said John Wilson, Clifford Harback and Gene Harback by officers or other citizens in arresting them and preventing their escape, it was apparent to the said John Wilson, Clifford Harback and Gene Harback that the said Dolph Guthrie would naturally and necessarily be exposed to death and likely to lose Ms life, compelled the said Dolph Guthrie to accompany them from said place of safety to said place of danger as a shield from said attack from said officers or other persons and Andy Connoughton, the city marshal of the city of Paris, while attempting to arrest them, the said John Wilson, Clifford Harback and Gene Harback, and preventing- their escape, and intending to shoot the said John Wilson, Clifford Harback and Gene Harback, the said Andy Connoughton accidentally, innocently and with no intention to injure the said Dolph Guthrie, he the said Andy Connoughton did shoot at them, the said John Wilson, Clifford Harback and Gene Harback, but did shoot, accidentally and unintentionally, the said Dolph Guthrie in and upon the head and body, from the effect of said wounds so inflicted, he, the said Dolph Guthrie, died on the 30th day of May, 1933, against the peace and dignity of the State of Arkansas.”

Appellant was convicted under said indictment and sentenced to life imprisonment.

For a reversal of the judgment against him, appellant first says the court erred in refusing him a continuance or postponement from Monday to Wednesday. No formal motion was filed and no attempt was made to comply with § 1270, Crawford & Moses’ Digest. The case was set for trial on August 24 for September 11, and, while it is true appellant was confined in the penitentiary, it is also true he was represented by counsel on August 24, and thereafter up to and during the trial. He had ample time to prepare his case for trial. Continuances and postponements of trials in criminal cases rest in the sound discretion of the trial court, and this court does not reverse for failure to grant them unless an abuse of discretion is shown. No abuse of discretion' is shown in this case.

Appellant next says the court erred in not requiring the State to elect upon which count of the indictment it would go to trial. We cannot agree. Counts one and three charged appellant with murder in the first degree for the killing of Guthrie in different ways. Count two charged him with accessory before the fact to the murder of Guthrie. The statute, § 3015, Crawford & Moses’ Digest, provides that: “An indictment except in cases mentioned in the next section, must charge but one offense, but, if it may have been committed by different modes and by different means, the indictment may allege the modes and means in the alternative. ’ ’ The next section referred to gives a number of offenses that may be joined in one indictment. This court has frequently held that an indictment for murder may charge the killing in different ways in separate counts. See Owens v. State, 159 Ark. 505, 252 S. W. 25, where a number of cases are collected to the same effect. It is also the holding of this court and generally that it is permissible to charge one as principal and as accessory before the fact to murder in the same indictment, since they are only different modes of charging the same offense. Lay v. State, 42 Ark. 105; Gill v. State, 59 Ark. 422, 27 S. W. 598; 2 Bish. Cr. Pr., § 7. Therefore the court did not err in refusing to require the State to elect.

The final and most interesting assignment of error relates to count three of the indictment, to which a demurrer was interposed, and to an instruction based thereon. While there is some evidence tending to show that Guthrie may have been killed by one of the robbers, we prefer to base this decision on the assumption that he was accidentally killed by the town marshal. While the robbers were engaged in robbing the bank, the marshal, Ancty Connoughton, thinking something was wrong, walked to the front door of the bank, shook the door and looked in. He met Mr. Wayne Cook and told him to get a gun. The robbers knew they had been discovered and hastened to leave the bank with their loot. One of them with a drawn pistol forced Guthrie to go with them. When they emerged from the bank the marshal ordered them to halt and fired at appellant, who returned the fire, wounding the marshal, who fired another shot after he fell. One, perhaps the first, of the shots by the marshal, killed Guthrie.

The question raised by the demurrer and the exception to the instruction is a new one to this jurisdiction, for we have never before, so far as the diligence of counsel and our own investigation discloses, had the precise point presented for determination. Other jurisdictions have. Appellant cites and relies upon the cases of Commonwealth v. Moore, 121 Ky. 97, 88 S. W. 1085, 2 L. R. A. (N. S.) 719, 123 Am. St. Rep. 189; Commonwealth v. Campbell, 89 Mass. 540, 83 Am. Dec. 705, and Butler v. Illinois, 125 Ill. 641, 18 N. E. 338, 1 L. R. A. 211, 8 Am. St. Rep. 423; the two last cited being cited in the Kentucky case. The principle in all three is the same, and is this: A attempts to rob B. B, while resisting the attempted robbery, shoots at A and accidentally kills 0 who is an innocent third party. A cannot be convicted of the murder of C. The reason for the rule in such a case is stated in the Kentucky case as follows: “In order that one may be guilty of a homicide, the act must be done by him actually or constructively, and that cannot be unless the crime be committed by his own hands or by the hands of some one acting in concert with him, or in furtherance of a common object or purpose.” We agree entirely with the principle announced in these cases, but cannot agree that the same principle is involved in this case. The facts are different. Here the robbers compelled Guthrie, over his objections and against his will to accompany them from a place of safety, so far as outsiders were concerned, to a place known by them to be a place of danger from those on the outside. They knew they had been discovered and apprehended danger from the outside, else they would not have taken Guthrie with them. They wished to use him as a breastwork, as it were, or they thought perhaps the outsiders would not shoot at them for fear of killing Guthrie. In doing this, they committed another crime, kidnapping, and caused Guthrie’s death. “A person,” says 29 C. J. 1077, “may be responsible for a homicide and guilty of murder, or manslaughter, according to the circumstances, in -whatever manner or whatever means the death was caused, provided it was caused by his unlawful act or omission.” Further on in the same section (54) it is said: “Defendant’s act or omission need not be the immediate cause of the death; he is responsible if the direct cause results naturally from his conduct.” Examples: exposing a helpless child to inclement weather ; forcing a sick and weak sailor to go aloft; causing one to jump from a moving train. Note 29 C. J. 1079. Directing a blind man in a direction so that he walks off a precipice.

The case most nearly in point that has been called to our attention is Taylor v. State, 11 Tex. Cr. Rep. 564, 55 S. W. 961. There, the robbers stopped a train to rob the express car. They forced one of the trainmen, the fireman, to take a stand in a place of danger, where he was accidentally shot by a passenger who appeared on the platform of another car and began firing at the robbers. The court held “that, since the death of the fireman was directly caused by accused and the other robbers in placing him in a dangerous place, accused was liable, whether the shot was actually fired by him or the passenger. ’ ’ This holding was followed in the later ease of Keaton v. State, 41 Tex. Cr. R. 621, 57 S. W. 1125, where Keaton, one of the trio of robbers with Taylor, was convicted of the same murder, which case was affirmed. The reasoning in these cases appears to us to be sound and unanswerable. The only difference between this case and those is that in this the robbers were using Guthrie as a breastwork in an attempt to escape, after having robbed the bank, whereas in the Texas cases they were using the fireman during the attempted robbery. This can make no difference, for the conspiracy to rob the bank had not been completed until they had made their escape. Clark v. State, 169 Ark. 717, 276 S. W. 849; Maxwell v. State, ante p. 111. Having forced Guthrie to accompany them in an attempt to escape, another felonious act, and having compelled him to take a known place of danger, as they had already been discovered by the marshal and others, they must abide the consequences of their unlawful act, although the result was not intended. As stated in Ringer v. State, 74 Ark. 262, 85 S. W. 410: “If the act he intended to do was criminal, then the law holds him responsible for what he did, even though such result was not intended.” In line with this is Gilmore v. State, 92 Ark. 205, 122 S. W. 493, where it was held that if “defendant struck deceased blows which caused him to fall from a wagon in which he was riding, so that a wheel of the wagon passed over his body and killed him, the jury were justified in finding that the blows were the cause of his death.” While these cases are not directly in point, they are persuasive, in the application of the principle here involved. Section 2339, Crawford & Moses ’ Digest, provides: ‘ ‘ The maimer of the killing is not material, further than it may show the disposition of mind, or the intent with which the act was contmitted. ’ ’ Appellant’s action in forcing Guthrie to a place which was known by him to be perilous was just as much the cause of his death as if he had himself fired the fatal shot. This action was murder at common law and is murder under the above statute.

Affirmed.