text:
    Galloway v. Hood.
    Opinion delivered May 12, 1930.

      Longstreth S Longstreth, for appellant.

      Robert Bailey, for appellee.
   Humphreys, J.

Appellant brought suit against ap-pellee for $463.71, tbe balance due on a Lipman lee Machine he sold appellee on the installment payment plan, and to enforce a lien on said machine for said amount. It was alleged that he sold the machine for $1,022.50, received $102 cash, and eighteen notes for the balance of the purchase price, all of which were paid except the notes covering the amount sued for; also that pursuant to the contract, made the basis of the suit, he properly installed the machine by attaching same to an American fountain which appellee purchased elsewhere, and regulated the operation thereof with a thermostat; that after installing the same the contract provided for a twenty-four hours ’ test to ascertain whether satisfactory, which test was made to the satisfaction of appellee, who then accepted same; that the written contract provided that after the twenty-four hour test guaranteeing satisfaction “seller’s liability is limited to replacement of such parts as may prove defective in one year,” provided seller be notified of defect in writing; and “seller does not guarantee and will not he responsible for spoilage or other damage which may occur after installation and satisfactory test. ’ ’

Appellee filed an answer admitting the contract, and that there was a balance of $466.71 due on the notes, hut filed a cross-complaint claiming damages in the sum of $1,000 on account of the failure of the Lipman Ice Machine to satisfactorily do the work for which it was sold.

Appellant filed a reply denying the allegations of the cross-complaint.

The cause was submitted upon the pleadings and testimony, at the conclusion of which, appellant requested a dismissal of the cross-complaint which was refnsed, over his objection and exception.

The court then sent the case to the jury upon the sole issue of whether appellee sustained damages, not to exceed $1,000, on account of defects in the Lipman Ice Machine, which prevented it from satisfactorily doing the work for which it was sold, over the objection and exception of appellant.

The court correctly stated to the jury that appellee admitted the execution of the contract and the balance due thereon; hut we think erroneously told them that ap-pellee was entitled to recover ■ on his counterclaim for •any damage resulting to him on account of defects in the Lipman Ice Machine. The only proof fending to show damage was for spoilage and loss of profits in appellee’s business because the thermostat, which automatically regulated the temperature in the different compartments of the soda fountain to which the Lipman Ice Machine was attached, did not correctly function. The testimony did not show -what a new one would have cost, or that the installation of a new one would not have caused the machine to do the work satisfactorily for which it was sold. The undisputed testimony reflects that the twenty-four hour test provided for in the contract was made with the result that the Lipman Ice Machine correctly functioned. According to the terms of the contract appellant was exempted from liability for spoilage or other damages after the installation of the Lipman Ice Machine and a satisfactory test thereof, the only reservation being that appellant should supply or pay for defective parts within a year upon written notification. The testimony does not reflect that such an application was made for any part of the Lipman Ice Machine after the test on account of same being defective.

Again, long after the installation of the Lipman Ice Machine and the twentjr-four hour test had proved satisfactory, and after appellant admits that he knew he was sustaining- damages on account of defects in said machine, he wrote the following letters to appellant which, in our -opinion, clearly estopped him from claiming damages on account of spoilage, or the loss of profits in his business:

“11-8-26.
“Just received your letter. Am very sorry you had to pay those notes. Owing to the crop conditions which you are aware of we just can’t make collections, and business is very quiet. Too, we have been handicapped in many ways. Our plumbing- bills were big and our power bill is more than we anticipated, and we have other unforseen expenses. It is impossible for us to pay all the notes off now, but we will pay the past due-notes one at a time, and then pay the others as they fall due. Let us hear from you. The company is still holding one note which we paid but failed to include interest. We will send this when we hear where the note is. We can pay at least two of the past due notes this month. Maybe all of them.
“Respectfully, Louis Hood.” •
“11-30-26.
“Galloway Woodward.
“Gents: We expected to send you some money before now. We have some notes which parties promised to pay, but to date we haven’t collected. We will send you check to pay one by Monday, and will take up another one soon. We cannot pay them all at once, but will get them paid before long. We have been handicapped in many ways. Our fountain has not been fixed right yet. Our electric bill is more than we anticipated, and owing to condition of fountain we have had some big plumbing bills which we shouldn’t of had. Of course you are aware of the slump in business which we didn’t anticipate. We will get it all adjusted soon. Thanking you,
“Respectfuhy, Louis Hood.”
“1-6-27.
“Galloway Woodward.
“Gents: We don’t owe you 5 notes. Just 4. We are sending check to cover No. 88, and will pay another one soon. Will send check for the extra interest due you, too.
“Respectfully, Louis Hood.”

According to a proper interpretation of the contract, and the undisputed evidence relating to the installation and twenty-four hour test that was made, 'and the letters quoted above, the trial court should have dismissed the cross-complaint, when requested to do so by a peremptory instruction.

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

Hart, C. J., dissents.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Frame v. Whittam.
    Opinion delivered May 12, 1930.

      John P. Roberts, for appellant.

      Evaois £ Evans, for appellee.
   Humphreys, J.

This is an appeal from a judgment in the sum of $225 principal, and $52.45 accrued interest, rendered in the circuit court of Logan County, Southern District, on appeal from the court of a justice of the peace, in favor of appellee against appellant.

The cause proceeded to a hearing in both courts upon a statement of a cause of action filed before the justice of the peace to the effect that appellant was indebted to appellee in said sum for a Ford car sold by appellee to J. R. Frame and R. R. Pearson and later sold to L. L. Frame, appellant, by J. R. Frame and R. R. Pearson.

According to the undisputed testimony, J. R. Frame, the son of appellant, and R. R. Pearson purchased a new Ford runabout from appellee on May 31, 1926, for $475, paid in cash therefor $245, and gave their promissory note for $225, payable on November 1, 1926, bearing 10 per cent, interest per annum from date until paid, in which title to the car was retained in appellee until the note should be paid, but that on the same date, May 31, 1926, R. R. Pearson, representing that the car was the property of Henderson Motor Company of Paris, Arkansas, sold it to appellee for $375, $50 cash and a .note due in thirty days for $325; that appellee paid the note when due, and subsequently sold said car to a man by the name of Montrey; that when appellee attempted to collect the note executed by J. E. Frame and E. E. Pearson he learned that E. E. Pearson had sold the car to appellant, and that appellant in turn had sold it to Montrey.

The record reflects a dispute in the testimony as to what then occurred.

The testimony introduced by appellee tended to show that he threatened, through employees, to retake the car, whereupon appellant prevailed upon him not to do so, promising that he would, pay the note.

The testimony introduced by appellant tended to show that when appellee’s representatives demanded payment for the car from him, and said that they would retake same unless he paid the note, hei refused to pay the amount» and told them to repossess it, as he could get his money back from the Henderson Motor Company.

The issue of disputed fact was submitted to the jury for determination under the following* instruction requested by appellee:

“If you find from the preponderance of the testimony that the defendant, Frame, promised the plaintiff, Whittam, to pay the purchase price of the automobile remaining unpaid in consideration, that plaintiff* would not take the automobile from Montrey and plaintiff, by reason of such promise, refrained from faking the automobile from Montrey, your verdict will be for the plaintiff, against the defendant for the balance due on the automobile with interest.”

Appellant contends that the court erred in giving the instruction quoted because the promise of appellant to pay for the car was not in -writing, and the oral contract was within the statute of frauds, Crawford & Moses’ Digest, 1862, which provides that no action shall be brought to charge any person upon any special promise to answer for debt, default or miscarriage of another, unless the contract is in writing. A contract to pay the debt of another need not be in writing if supported by a new or independent consideration. Such a contract is not within, or governed by, the statute of frauds. Zimmerman v. Holt, 102 Ark. 407, 144 S. W. 222; Brinkley Car Works & Manufacturing Co. v. Cook, 110 Ark. 325, 161 S. W. 1065; Hunt v. Taggett, 160 Ark. 617, 255 S. W. 873; Burkhart Manufacturing Co. v. Berry, 162 Ark. 123, 257 S. W. 723. Under the conflicting evidence in the instant case, the jury could have found and did find that appellant promised to pay the note executed by J. R. Frame and R. R. Pearson to appellee in consideration that he would not take the automobile from Montrey, to whom he had sold it.

Appellant also contends that the court erred in giving the instruction lettered A on his own motion, because it omitted the issue of whether appellee failed to retake the car by reason of the promise of appellant to pay the debt. The instruction undertook to state what the issues were, and it failed to state the question of a new consideration. It could hardly be regarded as an instruction to the jury, as it did not declare any principle of law applicable to the facts in the case. It simply attempted to state the issues involved. .The omission complained of was included im instruction No. 1, given by the court at the request of appellee, which was a correct instruction. It is apparent that the question omitted in instruction A was an inadvertent omission, and might be regarded as a clerical error which could only be reached by specific objection. No specific objection was made to it, and we are unable to see that any prejudice resulted to appellant on account of the omission. Had appellant thought so, he could have called the attention of the court to the failure to include the question, and the court would have readily included it.

No error appearing, the judgment is affirmed.


author: Kirby, J.,

text:
    General Motors Acceptance Corporation v. Jerry.
    Opinion delivered May 12, 1930.

      Lvnwood Brickhouse and Ben D. Brickhouse, for appellant.

      Powell, Smead <& Knox, for appellee.
   Kirby, J.,

(after stating the facts). It is first insisted for reversal that the court erred in allowing testimony introduced tending to show that the plant installed was not fit for the service for which it was purchased, and intended to be used, and especially in permitting the hearsay testimony of the witness that an agent of the seller, long after the plant was sold appellee and installed and the contract assigned to appellant, told him in trying to sell him a like plant, “I guess the reason you don’t want a plant is because Mr. Jerry has a bum outfit. * * * We let Mr. Jerry have a second-hand outfit for the price we let him have it at.” The witness relating this conversation did not know the man with whom he talked, nor that he was an agent of the company which sold the light plant to appellee. Said he would not recognize him if he saw him again, and, certainly, he was not in the performance of any duty so far as the transaction ill controversy is concerned at the time of this statement. He did say that the man was riding in a car belonging to the Electric Refrigerating Company, and was talking- to him as a prospect for a sale of a light plant machine, which he had in the car at the time. He certainly had no authority to make an admission, as against the interest of said company about a sale, a transaction long since completed, out of the presence of his principal, and the testimony was nothing but hearsay at best, was inadmissible and highly prejudicial. The court erred in not excluding it. Lovell v. Sneed, 79 Ark. 204, 95 S. W. 157; Forrester v. Lockett, 149 Ark. 225, 231 S. W. 897; Galloway v. Russ, 175 Ark. 665, 300 S. W. 390.

It is undisputed that the Delco light plant was purchased under the written contract, which contained no warranty; that the machinery for its construction and operation is a well known and definite article of commerce in general use for the construction of such plants, and there was therefore no warranty as to the fitness of it for the purpose for which it was purchased implied, and the court erred in modifying the said instructions, and in failing to give the one asked, telling the jury, under the terms of the contract, there was no warranty except against defects in the machine, etc. Western Cabinet & Fix. Mfg. Co. v. Davis, 121 Ark. 370, 181 S. W. 273; Kull v. Noble, 178 Ark. 496, 10 S. W. (2d) 902; Crow v. Fones Bros. Hardware Co., 176 Ark. 993, 4 S. W. (2d) 904.

For the errors designated, the judgment must be reversed, and the cause remanded for a new trial. It is so ordered.


author: Kirby, J.

text:
    Chicago, Rock Island & Pacific Railway Company v. French.
    Opinion delivered May 12, 1930.

      Thos. S. Buébee and George B. Pugh, for appellant.

      W. L. Kincmmon and Evans & Evans, for appellee.
   Kirby, J.

(After stating the facts). Appellant insists that the court erred in not directing a verdict in its favor, contending that there was no negligence shown on its part approximately contributing to the injury, or, if so, that the contributory negligence of appellee was greater in degree than its negligence, preventing a recovery in the case. The testimony was in conflict as to whether the signals were given, and the proper lookout kept by the trainmen in approaching the crossing, and, there being substantial testimony that such was not the case, the question of appellant’s negligence was one for the jury. Neither do we agree with appellant’s contention that the undisputed testimony shows that appellee’s contributory negligence was greater in degree than the negligence of appellant, and should have been declared so by the court, and a verdict directed against him. The facts of the case bring it within the provisions of the statute, § 8575, C. & M. Digest, commonly known as the comparative negligence statute, there being substantial evidence in the record tending to show negligence on the part of appellant and its employees, as well as contributory negligence on the part of appellee. Under that statute an injured party guilty of contributory negligence cannot recover damages for an injury, unless his negligence is of a less degree than the negligence of the railroad company. The facts in this case present this issue of whether the negligence of the injured person was of a less degree than that of the railroad company, and, since it cannot be said that the undisputed testimony shows such to have been the case, it was a question properly determinable by the jury. Jemell v. St. L. Sw. Railway Co., 178 Ark. 578, 11 S. W. (2d) 449; Chicago, R. I. & P. Ry. Co. v. McKamy, 180 Ark. 1095, 25 S. W. (2d) 5.

Appellant argues that, since appellee bad time to stop his slow-moving- car after passing- the sign board, which obstructed his view of the oncoming train, and did not look again and discover his danger and stop the car, it should he said as a matter of law that his contributory negligence was not of less degree than that of appellant company; but he was only about twenty feet from the crossing, when he leaned out and looked down the track and did not see the train, and, not being aware that his vision was obstructed by the sign board which prevented his seeing it, and not hearing the signals he was expecting to be given, he continued driving on toward the tracks, and it cannot be said as a matter of law under the circumstances that his negligence in not stopping was not of a less degree than the negligence of the railroad compaiy causing the accident in approaching the crossing- without a proper lookout, and the giving of the statutory signals as the jury found was the case. 'Since no complaint is made of the amount of the recovery, which was much less than the amount sued for, it will be assumed it was diminished in proportion to the contributory negligence of the appellee.

We find no error in the record, and the judgment must be affirmed. It is so ordered.


author: Me-haKei', J'.

text:
    St. Louis-San Francisco Railway Company v. Cole.
    Opinion delivered May 12, 1930.

      E, T. Miller, E. L. Westbrooke, Jr., and E. L. Wesl-broohe, for appellant.

      Cunningham é Cionn-ingham, for appellee.
   Me-haKei', J'.

Joe B. Cole, the appellee, was the owner of a team of mules, wagon and harness. The mules were hitched to the wagon in front of the house of Mr. Jones, hut were not hitched to anything to prevent them moving. The lines were tied to the wagon standard, and the team was left standing, no one about them. Mr. Jones had hitched them to the wagon and left them standing in front of the house, and they walked off, went to the railroad crossing, and were struck by a train, and the mules were killed, the wagon and harness damaged. After Jones had tied the lines in front of the wagon and left the mules unhitched, he walked towards the railroad track, and was on the track when the mules started towards the track. The railroad crossing where the mules were killed was about 170 steps from the front door of Mr. Jones’ house, in front of which the mules were left.

Tliere is some conflict in the testimony as to whether the mules in going- from Jones’ house to the railroad crossing were walking fast or slow, hut all of the witnesses agree that they were walking. Some of appellant’s -witnesses say they were walking at a good fast walk, and appellee’s witnesses testify that they were walking slow. The track was straight and unobstructed for more than a quarter of a mile from the crossing where the mules were killed, in the direction from which the train came.

The engineer, King, testified that he was the engineer on a passenger train of six steel coaches and locomotive, going south towards Memphis. That he struck the team of mules a short distance west of Hoxie, was running about sixty miles an hour. He also testified that he sounded the whistle at the whistling post for the crossing, following that with the station whistle, and that the whistle was sounded all the way until they were over the crossing. He said he turned on the bell ringer and the bell was ringing. That the fireman hollered at him, and he slipped the brakes over to the emergency, and then saw the heads of the mules as he struck them. The mules came on to the track from the left side and had never been in the view of the engineer. He testified that he had been an engineer since May 12, 1905; that he was looking- ahead all the time. The front of the engine and boiler obstructed his view of the mules, and when the fireman hollered at him he put the brake into emergency. They were a short distance from the crossing, probably 100 feet when the fireman gave him notice. The brake valve is right at the engineer, and he struck the brake valve back into emergency, and about that time they hit the mules.

The fireman testified that he had had experience of 11 years, and, when they approached the crossing about 700 feet away, he saw a team coming on the side of the right-of-way line. They walked on, and he saw there was no driver in the wagon. When he discovered that there was no driver, he hollered to the engineer, and the engineer applied the brakes in full force, hut they struck the mules. The fireman testified that the engineer was blowing the whistle for the crossing, that the mules were getting into the inside of the right-of-way line fence before the fireman discovered them. He did not have any sight of them while they were off the right-of-way until they reached the fence; saw the first glimpse of their heads when they were coming into the right-of-way fence. Prom the right-of-way line to the center of the track is 50 feet.

Ernest Jones testified that there was nothing* to obstruct the view of one on a locomotive approaching the crossing in the direction the train was going, from seeing a team when it comes into the right-of-way a quarter of a mile, hut he said when-the train was a quarter of a mile away the mules were not there. 'He did not think the train whistled, hut would not he positive about it.

Bessie Holder testified that she was between the house and the railroad, and saw the train strike the mules, and did not hear any alarm. She said she did not know how many times she heard the train whistle, but she heard it after it hit the mules.

Nina Jones testified that she heard the whistle north of the trestle, hut not south of it.

Ruby Cole, daughter of appellee, testified that the whistle blew before the train got to the trestle, but never before it got to the crossing*, and the train did not whistle any more after the first time. She admitted, however, that she signed a. statement, and that she herself wrote at the bottom of the statement, “I have read this, and it is true,” and in that statement she admitted that she had said she heard the whistle sounded. It was the musical sounding whistle, and she did not know how many times it sounded.

Claudia Cole, another daughter of appellee, saw the train and said it did not whistle. She had also signed a statement and liad written at the bottom of it before she signed it, "I have read this, and it is true,” and in that statement she said she did .not think the -whistle was sounded, hut could not be positive; if it sounded, she did not hear it.

The only question for our consideration is whether the evidence is legally sufficient to sustain the verdict. There was a verdict for $250 in favor of appellee. It is the established doctrine of this State, under § 8562, C. & M. Digest, that where an injury is caused by the operation of a railway train a prima facie case of negligence is made against the company operating such train. When the evidence shows, that an injury was caused by the operation of a train, the presumption is that the company operating the train is guilty of negligence, and the burden is upon such company to prove that it was not guilty of negligence. St. L. S. W. Ry. Co. v. Vaughan, 180 Ark. 559, 21 S. W. (2d) 971.

The Supreme Court of the United States recently said, in construing a statute similar to the Arkansas statute: “The only legal effect of this inference is to cast upon the railway company the duty of producing some evidence to the contrary. When this is done, the inference is at an end, and the question of negligence is one for the jury upon all the evidence.” Western & A. R. R. Co. v. Henderson, 279 U. S. 639, 49 S. Ct. 445.

After the introduction of evidence by the railroad company, as we have already said, the inference is at an end. It cannot be considered by the jury as evidence.

In construing the Mississippi statute, the Supreme Court off the United States said: “It did not * * * fail of due process of law because it creates a presumption of liability, since its operation is only to supply an inference of liability in the absence of other evidence contradicting such inference. The Mississippi statute created merely a temporary inference of fact that vanished upon the introduction of opposing evidence. * * * That of Georgia., as considered in this case, creates an inference that is given effect of evidence to he weighed against opposing testimony, and is to prevail unless such testimony is found by the jury to preponderate. The presumption raised by § 2780 is unreasonable and arbitrary, and violates the due process clause in the 14th Amendment.” Western & A. R. R. Co. v. Henderson, 279 U. S. 639, 49 S. Ct. 445.

Under the construction placed upon statutes like oirrs, the presumption of negligence is at an end when the railroad company introduces evidence lo contradict it, and the presumptiou cannot be considered with the other evidence, because io do this would, as stated by the Supreme Court of the United States, be unreasonable and arbitrary, and would violate the due process clause of the 14th Amendment. Therefore, in determining whether the evidence in this case is legally sufficient to support the verdict, we cannot consider the presumption created by the statute, but must determine the question from the evidence introduced. The train vTas running about 60 miles an hour, the engineer and fireman were both keeping- a lookout. It' was impossible' for the engineer to see the mules as they approached the track because they were on the left hand side of the track, and the engineer on the right-hand side. The fireman, however, -was keeping a look-out, and saw the mules about the time they came on to the right-of-way, but at first there was nothing- to indicate that there was any dang-er. The mules were walking, and, according to the testimony, the whistle was being- sounded. The engineer and fireman testified that it was, and the witnesses for appellee did not say that it was not, but some of them say they did not hear if, but the engineer and fireman both testified that the bell -was ringing at the time, and this is not disputed by any witness. The statute does not require that both the whistle and the bell shall be sounded, but it does require that one of them must be, and the undisputed proof shows that this statute wals complied with. Section 8568A, C. & M. Digest.

When the fireman saw the team, as we have said, there was nothing to indicate that there was any danger. Persons operating passenger trains are not required to stop when they see teams near the right-of-way unless there is something to indicate that they are going on to the track. They have a right to assume of course that persons driving on the highway will exercise ordinary care, and the persons operating the trains are required to exercise just such care as persons of ordinary prudence would exercise under the circumstances. Whenever persons operating a train see persons or stock near the track, and there is anything to indicate that they did not know of the approaching train or that they are in a situation of peril or danger, it is then the duty of the persons operating the train to exercise care to avoid injury.

“The statute referred to imposes upon the railroad the duty to maintain a constant lookout, and charges it with the responsibility of having seen what would have been seen, had this lookout been kept, and imposes upon the carrier the degree of care it should have exercised had the lookout been kept and the traveler’s peril thereby observed; and if, by keeping this lookout, the railroad company could and would have discovered the traveler’s peril in time to avert the injury, it is liable if it fails to do so, notwithstanding the fact that the traveler’s contributory negligence placed him in peril. But it does no more than this. The duty of the railroad to take precautions begins when it discovers, or should have discovered, the peril of the traveler. So here the railroad company should have kept the lookout, and is chargeable with such knowledge as it would have had, had the lookout been kept; but if the lookout had in fact been kept and appellee’s presence near the track discovered, this would have imposed no duty on the railroad to stop the engine or to take other precautions until the peril of the traveler was discovered.” B., L. & A. S. R. Co. v. Gessell, 158 Ark. 569, 250 S. W. 881; Lane v. K. C. S. R. Co., 78 Ark. 236, 95 S. W. 460.

The jury could not arbitrarily disregard the testimony of the engineer and fireman. St. L. I. M. & S. R. Co. v. Landers, 67 Ark. 514, 55 S. W. 940.

"The public interest requires that trains be run on time and that railroads dispatch their business promptly.” Davis v. Porter, 153 Ark. 375, 240 S. W. 1077.

In this case the evidence shows that both engineer and fireman were keeping a .lookout, and that, as soon as the fireman discovered there was no driver, he notified the engineer, the engineer then did all he could to avoid striking the mides. The fact that the fireman saw the mules near the track imposed no duty on the railroad to stop the engine, or to take other precautions until the peril was discovered. Until the fireman discovered that there ivas no driver, he had a right to believe that the person in charge of the mules would act in response to the dictates of ordinary prudence. It appears from the evidence that there was a fence, and that the fireman did not see the mules until they passed this fence. Appellee contends that because the fireman said it was several seconds before the engineer understood him, that this was evidence of negligence, but we do not think this evidence indicates or tends to prove negligence. The trainmen did all they could after they discovered the peril, and they were not. required to take any precautions until the peril was discovered, if they were keeping an efficient lookout, and the undisputed evidence shows that both the engineer and fireman wore keeping a lookout. The evidence in this case is not legally sufficient to support the verdict. The judgment is therefore, reversed, and the case dismissed.


author: Mbhafev, J.

text:
    Bank of El Paso v. Neal.
    Opinion delivered May 12, 1930.

      Brunclidge £ Neelly and lí. A. Midye.it, for appellant.

      Miller £ Ymgling, for appellee.
   Mbhafev, J.

This action ivas begun by appellant in the .justice of the peace court in White County, where the case was decided against it, and appeal was taken to the circuit court. A trial was had in the circuit court, where there was a verdict'and judgment against appellant. This appeal is prosecuted to reverse said judgment.

The appellee contends that the appeal was not taken within six months. Section 2140 of 0. & M. Digest is as follows: “An appeal or writ of error shall not be granted, except within six months next after the rendition of the judgment, order or decree sought to he reviewed, unless the party applying therefor ivas an infant, or of unsound mind at the time of its rendition, in which case an appeal or writ of error may be granted to such parties, or their legal representatives, within six months after the removal of their disabilities or death. ’ ’

Judgment was rendered in the White Circuit Court July 15, 1929, and the appeal was granted by the clerk of this court January 16, 1930.

“It is a general rule, not only in jurisdictions where the computation of time is regulated by statute, but in other jurisdictions, where it is not so regulated, that, in computing the time given or allowed by statute or order of court for taking of an appeal or writ of error, and all tlie proceedings necessary to perfect the same, there should he excluded the date of rendition of the judgment, order, or decree or other day from which the time commences to run, and that the last.day, or the day on which the appeal is taken, should he included. ’ ’ 38 Cyc. 326. Early & Co. v. Maxwell & Co., 103 Ark. 569, 148 S. W. 496; Peay v. Pulaski County, 103 Ark. 601, 148 S. W. 491; Chinn v. Tucker, 33 Ark. 421; Connerly v. Dickinson, 81 Ark. 258, 99 S. W. 82; Pearce v. Peoples Savings Bank & Trust Co., 152 Ark. 581, 238 S. W. 1063; Field v. Waters, 148 Ark. 325, 229 S. W. 735; 3 C. J. 1047.

"The rule of reckoning from a given day to a day of the corresponding number is one so easily understood and applied that we do not think that we should be justified in adopting any other. The rule seems to be that of Commercial Law.” Parkhill v. Brighton, 61 Iowa 103, 15 N.W. 853.

"On what day, therefore, did six calendar months from November 30, 1894, expire? Tinder all of the authorities, without exception, which we have been able to find, the period would expire on May 30, 1895. * * * In Glore v. Hare, 4 Neb. 132, it was held that an appeal taken on the 22nd day of August from a judgment rendered February 21st was not within six months from the rendition of the judgment. We have been cited to no authority laying down a different rule or method for the computation of time, and this seems to be in complete accord with common usage and with common understanding. This being true, we are constrained to hold that this suit was barred by the limitation imposed by the contract. It was begun one day too late. The bar was complete with the expiration of the day of May 30th.” Daly v. Concordia Fire Ins. Co., 16 Col. App. 349, 65 Pac. 416.

Applying the above rule appellant’s time expired on January 15th. The appeal was not taken within six months.

“The time within which an appeal .must be taken being fixed by statute, it must be taken within the time designated. The provision which limits the time is jurisdictional in its nature.” Sample v. Manning, 168 Ark. 122, 269 S. W. 55.

• ■Since the appeal in this case was not taken -within six months, it must be dismissed. It is so ordered.


author: Butler, J.

text:
    Arkansas Power & Light Company v. Tolliver.
    Opinion delivered May 12, 1930.

      Rose, Hemingway, Cantrell & Loughborough and Elmer Schoggen, for appellant.

      Sam T. Poe, Tom Poe and McDonald Poe, for appel-lee.
   Butler, J.

The appellee, Pearl Tolliver, was injured in a collision between a Ford sedan, in which she was driving, and a street car operated by the appellant, near Thirteenth and Bice streets in the city of Little Bock on September 2, 1927. The street car was headed west, the automobile being in front of it. It is the contention of the appellee that she was driving on the track in front of the street car, and that it ran into' and struck the rear of her automobile, inflicting upon her personal injuries.. The appellant contends that the appellee’s sedan was parked in a place of safety on the side of the street, and, just as the street oar approached, she backed her automobile suddenly and without warning toward the track, thereby bringing about the collision, which could not have been averted -by the motorman.

The testimony in the case was in direct conflict. A group of workmen who were engaged in repairing the street testified that the collision occurred at about the noon hour, at which time they were on the curb near the scene -of the accident, taking their noon-day meal; that at that place the street on either side of the car track was being repaired and was so obstructed that it was necessary for those traveling along it to travel partly on the tracks of the appellant company. These witnesses observed the appellee driving in a westerly direction partly on the car track. She was proceeding at a moderate rate of speed when a street car approached from her rear and traveling” at a more rapid rate of speed than the appellee, rapidly lessening the distance between them, and, without any warning- being given, ran into the Ford sedan, violently knocking it from the street toward the curb and severely injuring the appel-lee. The motorman and a number of passengers on the street car, as well as other witnesses, testified that just, before the street car reached the point of the accident the appellee’s car was parked on the edge of the street, and that she suddenly and without warning backed her car on the track in front of the approaching street car, and as she did this the motorman sounded his signal and applied the brakes, but was unable to stop or check the street car in time to avoid striking appellee.

There were several witnesses, including- physicians, who testified as to the appellee’s injuries. The jury found the issues in favor of the appellee, and assessed her damages at $3,000. The court rendered a judgment in accordance with the verdict, from which the appellant has appealed.

The first ground of error assigned and argued in plaintiff’s brief is that instruction No. 1A given for the plaintiff was erroneous and prejudicial in that it incorrectly stated the law of discovered peril. The specific vice of the instruction urged upon our attention is that the instruction told the jury that if the motorman could have, discovered appellee’s peril in time to have stopped his car and avoided the injury to the appellee, had he used ordinary care with the means at his command, and did not do so, appellant was liable, and it is argued that the court should have limited the degree of care required of the defendant’s motorman to ordinary care in stopping the car after he actually discovered the plaintiff in a perilous position upon the track, and also that there was no testimony to show that the motorman failed to keep the lookout required by the exercise of ordinary care, and that therefore the instruction rvas abstract in this regard.

We do not think the instruction inherently wrong or prejudicial. Unlike railroads, a street railway company lias no exclusive riglit to occupy its own tracks, but lias only the preferential rights to that part actually being- used at any given point of time, and every one has the right to use the entire street, including the tracks of the street railway company, whenever reasonably necessary or convenient. Therefore, we think that the operator in charge of a street car is under the duty to keep a constant lookout to avoid injuring those who may chance to be in a dangerous position by reason of its operation, and, because of the fact that the street railway uses the streets in common with others, such duty would only be the exercise of ordinary care. The principle, as stated, is not in conflict with the case of Johnson v. Stewart, 62 Ark. 164, 34 S. W. 889, for the effect of that decision was merely to hold that the duty to keep a lookout did not abrogate the doctrine, of contributory negligence. Before the passage of our “lookout statute, ’ ’ it was not the duty of the railroad operatives to keep a constant lookout for persons upon the track for the reason that the railroads had the exclusive occupancy of their tracks, and had the right to assume that the way would be clear. This, however, has never been the rule as to street railways, for, as we have seen, they have not the right to the exclusive use of their tracks. Bain v. Fort Smith L. & T. Co., 116 Ark. 125, 172 S. W. 843 L. R. A. 1915D, 1021; Pankey v. Little Rock Ry. & Elec. Co., 117 Ark. 337, 174 S. W. 1170.

It is contended that incompetent testimony was admitted on the part of the appellee in permitting her to testify as to what she earned before and after the accident. The true test as to the measure of damages, as suggested by the appellant, is “what she was able to earn since the accident as compared with what she was able to earn before the accident,” but the testimony admitted was competent for the purpose of tending to establish that fact. Further objection was made to the testimony of the appellee to the effect that she had no other source of livelihood than that of cleaning and pressing. We have frequently held that where one had fitted himself for the prosecution of any profession or trade, and by reason of an injury was no longer able to follow such occupation, this might he considered, in measuring the damages sustained, as tending to show the loss of earning .power.

It is also contended that the verdict is excessive. This question we need not consider as the case must be reversed and remanded for a new trial for the reasons hereinafter stated.

In the complaint, after the allegation of the injury occasioned by the street car running into the automobile of the appellee, and after the allegations as to negligence, the specific results of the negligence charged were set out in the following language: “As a result of the negligence and carelessness of the defendant, its servants and employees, complained of herein, the plaintiff received severe, painful and permanent injuries to her person, and has suffered great, severe and excruciating bodily pain and mental anguish. The injuries complained of herein consisted of a fractured rib, a contusion on the back of head, sprained and strained muscles in hack and neck, and internal and outer injuries to body and limbs, which are permanent and have greatly impaired the health of plaintiff, and caused her continual and painful suffering to mind and body.” A number of witnesses testified in support of these allegations, in - eluding the appellee’s physician, after which Dr. E. F. Ponder was called as a witness, and, after qualifying as an expert in the diagnosis and treatment of mental and nervous disorders, was permitted to testify over the objection of the appellant as to an examination made by him, and his conclusions based thereon regarding certain injuries to the appellee’s nervous system. His conclusion was that the appellee was suffering from a specific organic disease of the brain known as “Friedman’s complex,” and that, in his opinion, this condition was permanent. The specific objection made to this testimony was that there was no allegation in the complaint of any nervous injury or injury to the nervous system. It will he noted that Dr. Ponder did not testify, nor is it anywhere shown, that the mental disease -mentioned was a necessary or even probable result of the injuries sustained >by the appellee as described to the witness. The most that can be inferred from his testimony is that the condition described by him could be caused by jars that produce a disturbance. The exact testimony of the witness on this question, after stating the information he received from the appellee as to her condition at, and subsequent to, the accident and after defining “concussion of the brain,” is as follows:

“Just how much trouble will be manifested in a concussion depends on the jar, and will leave a more or less permanent condition in the brain. There are two kinds, immediate and more remote. The immediate effect of concussion in trauma is manifested by the evidence I described; and more remote — if it is sufficient to cause vasomotor — it wil-1 be manifested in symptoms such as she complained of, such as mental fatigue, inability to be as they formerly were.” When asked whether in his opinion the nervous trouble of the appel-lee was permanent, the witness answered: “Well, that is problematical; the best way to judge the future is by the past. This has been going on for two years; we have claimants at the bureau (interrupted by the court) —that condition can be caused by jars that produce a disturbance. Yes, I believe it is permanent from the history and the present condition. It is known as Friedman’s complex. It is an organic trouble, because that affects the circulation of the 'brain. The only difference between that and an injury that would produce paralysis is that it would 'have been large hemorrhages and caused paralysis — is the only difference.”

The specific injuries alleged in the complaint were a fractured rib, a contusion on the back of head, sprained and strained muscles, internal and outer injuries to the body and limbs. Any conditions which were symptomatic of the injuries alleged, and by which the existence of those injuries mig’ht be established, would be relevant and competent — such as loss of sleep, pain suffered in various parts of the body, lassitude, general debility, and many other things. But the evidence elicited tended to establish the existence of an injury independent and distinct from any of the injuries alleged in the complaint, i. e., that the appellee was suffering from an organic disease of the brain known as “Friedman’s Complex,” and, as there is no evidence that such disease is the necessary or even probable result of any of the injuries pleaded, the testimony was therefore incompetent, and its admission was error.

The general rule as stated in 17 C. J. 1021, cited by the appellant, is as follows: “In an action for damages the pleadings and proof must correspond. The damages recovered must be warranted 'by the pleadings, and a defendant is entitled to know from the declarations the character of the injury for which he must answer. Evidence of damages for an injury not mentioned therein, or. for which no claim for damages as alleged or for which the claim has been abandoned, cannot be admitted. So in an action for personal injury, where plaintiff describes in his petition the different parts of his body injured, it is presumed that this specification covers the whole cause of action, and that proof of an injury to a wholly different part of the body cannot be shown.” This rule is supported by the weight of authority and it seems to be generally held that evidence of an injury or disease not specifically alleged is incompetent, unless such are the necessary results of injuries that are specifically pleaded. Chesapeake & N. Ry. Co. v. Hanmer, (Ky.), 66 S. W. 375; Wilkins v. Nassau Newspaper Del. Exp. Co., 98 App. Div. 130, 90 N. Y. Supp. 678; Fort Worth, etc., Co. v. Rogers, 21 Tex. Civ. App. 605, 53 S. W. 366; Atchison, etc., Co. v. Willey, 57 (Kan.) 764, 48 Pac. 25; Howard v. Washington Water Power Co., 75 Wash. 255, 134 Pac. 927; Lane v. Kansas City Rys. Co. (Mo. App.) 228 S. W. 870; Pugmire v. Oregon Short Line R. R. Co., 33 Utah 27, 92 Pac. 762; Gordon v. Northern, etc., Co., 39 Montana 571, 104 N. W. 679; Martin v. Pac., etc., Co. (Cal. App.) 255 Pac. 284; Mobile, etc., Co. v. Therrell, 205 Ala. 553, 88 So. 677; Ry. Co. v. State, 59 Ark. 165, 26 S. W. 824.

As opposed to this rule, the appellee cites 17 C. J. 1013, where it is said: “As the mind and nervous S3rs-tem are so intimately connected with the body, and so likely to he affected by physical injuries, proof of impairments of these faculties is usually held admissible under allegations in substance of grievous or permanent physical injury. Also, evidence of nervousness is not objectionable on the ground that it is not pleaded specially, where it is offered, not for the purpose of proving damages for an injury to the nervous system, but merely as proof of one of the manifestations of the physical injury complained of. A general allegation of injury to the mind or nervous system is sufficient without setting out details.” The appellee also cites a number of cases from Kentucky, and other respectable courts, which we have examined with care, and find they merely support the text cited by appellee, and are not in conflict with the rule first stated supra.

The appellee argues that, although this testimony was incompetent for the purpose of proving an independent element of damage, it was admissible under the general allegation of injury as showing the extent of the physical injury for which the appellee claimed compensation. This contention is not tenable for the' reason that the specific objection was made, that the complaint did not allege any such injury as Ur. Ponder testified to, and at the conclusion of his testimony the appellant moved to exclude same for the reasons stated in its objection. For that reason, the authorities cited by the appellee are not in point.

There is no merit in appellee’s contention that the appellant failed to plead surprise and meet the issue by the introduction of controverting testimony. "When the appellant specifically objected to the testimony of Dr. Ponder, and afterward at the close of his testimony moved to exclude the same for the reasons stated, and these motions were overruled, the appellant saving- its exceptions, it did all that it could to preserve its rights. The court should have sustained the objection and motion, and then the appellee, had she so desired, might have asked for leave to amend her complaint, which the court could have permitted, giving the appellant sufficient time to meet by answer and proof the new issue raised. Bryant v. Swifton, 85 Ark. 322, 108 S. W. 216.

For the error in the admission of the testimony of Dr. Ponder, the judgment is reversed, and the case is remanded for a new trial.


author: HaRT, C. J.,

text:
    Fidelity & Deposit Company of Maryland v. Rieff.
    Opinion delivered May 19, 1930.

      Horace Chamberlin, for appellant.

      Carmichael & Hendricks, for appellee.
   HaRT, C. J.,

(after stating the facts). No contention is made about the validity of the indebtedness of D. C. Horton, Inc., to H. F. Rieff, and no objection is made to the form of the mortgage to him. The mortgage to Reiff by D. C. Horton, Inc., was also prior in point of time to that executed on the same lots in favor of the Fidelity & Deposit 'Company of Maryland.

It is earnestly insisted, however, by the Fidelity & Deposit Company that the acknowledgment of the mortgage by D. 0. Horton, Inc., to Rieff vras not in conformity with the statute, and for lliat reason the mortgage to Rieff was not entitled to record, and under our statute did not constitute a lien on the lots as against the mortgage executed to it. Section 7380 of Crawford & Moses’ Digest provides that mortgages shall be acknowledged in the same manner that deeds for the conveyance of real estate are now required to be acknowledged, and, when so acknowledged, shall be recorded in the county in which the real property is situated. Section 7381 provides that every mortgage for real property shall be a lien on the mortgaged property from the time it is filed for record and not before. It is conceded that these provisions of the statute were complied with, but it is insisted that the acknowledgment was defective.

In ordinary forms of acknowledgments, this court has held that a substantial compliance with what the statute requires to be done ought affirmatively to appear from the certificate. While a literal compliance is not required and while words of similar import to those used in the statute may be employed, yet there must be a substantial compliance with the statute. 'Courts cannot suggest by intendment important words omitted in the certificate of acknowledgment. Jacoway v. Gault, Admr., 20 Ark. 194; and Little v. Dodge, 32 Ark. 453.

Section 1526 of the Digest relating to the acknowledgment of mortgages by corporations reads as follows:

“All deeds, conveyances, deeds of trust, mortgages and other instruments in writing affecting or purporting to affect the title to any real estate situated in this State and executed 'by corporations, the form of acknowledgment shall be as follows:
“ ‘On this.day of.., 19., before me, a notary public, duly commissioned, qualified and acting, within and for said county and State, appeared in person the within named...and., (being the person or persons authorized by said corporation to execute such instrument, stating their respective capacities in that behalf), to me personally well known, wlio stated that they were, the.and. of the.,.a corporation, and were duly authorized in their respective capacities to execute the foregoing' instrument for and in the name and behalf of said corporation, and further stated and acknowledged that they had so signed, executed and delivered said foregoing instrument for the consideration, uses and purposes therein mentioned and set forth.’ ”

At the outset, it may be stated that the sea.1 of the corporation, accompanied with the signature or signatures of the appropriate officer or officers of the corporation becomes prima facie evidence that such officer or officers had due authority from the corporation to execute the instrument, so as to cast the burden of proof upon one who challenges its validity. 10 Cyc., page 1018. This court has recognized the rule, and has held that a deed executed by the president of a corporation and bearing' its seal raises the presumption that he was authorized to execute the instrument. Sibly v. England, 90 Ark. 420, 119 S. W. 820; and Cotton v. White, 131 Ark. 275, 199 S. W. 116.

An examination of the certificate of acknowledgment of the mortgage from D. O. Horton, Inc., to H. F. ‘Rieff made before a notary public, when read in connection with the mortgage itself, shows that the mortgage was executed by a corporation. In the body of the mortgage it is recited that the mortgagor is D. C. Iiorton, Inc, The mortgage is signed D. C. Horton, Inc., by D. O. Horton, president. To the left is the seal of the corporation, and under it appears the following: “Attest: E. F. Horton, secretary. ” It is conceded that the word ‘‘ seal’ ’ indicates the seal of the corporation.

So it will be seen that the mortgage itself purports to be the act o:f the corporation executed by its president and attested by its secretary with the corporate seal affixed. No effort was made to show that the president was not authorized to execute the mortgage, and it was not necessary that the mortgage should recite the vote of the corporation that the president was authorized to execute the mortgage. This was not essential to the validity of the mortgage, and the statute did not require it to he done. The acknowledgment recites that D. C. Horton, president, and E. F. Horton, secretary, of D. C. Horton, Inc., well known to the notary as the grantors in the body of the deed, appeared and stated that they had executed the same for the consideration and purposes therein mentioned and set forth. In the absence of proof to the contrary, the recitals of the certificate of acknowledgment, taken in connection with the recitals in the mortgage itself, show that it was executed by a corporation, and that the president and secretary acted for the corporation affixing the corporate seal, and acknowledging that they had done so as officers of the corporation. This was equivalent to a recital that they were duly authorized in their respective capacities to execute the mortgage for the corporation, and that they were the persons authorized by the corporation to execute it.

As we have already seen, all that has ever been required with reference to the ordinary acknowledgment of a deed or mortgage is a substantial compliance with the statute. While the certifying officer does not declare in express terms that the president and secretary were authorized to execute the'instrument, still that was the effect of the acknowledgment when read in connection with the recitals of the mortgage itself. The mortgage purports to be the act of the corporation executed by D. C. Horton, president and attested by E. F. Horton, secretary, with the corporate seal affixed. It is recited in the acknowledgment that these persons were known to the certifying officer as the president and secretary of the corporation, and this is a substantial compliance with the statute, and was sufficient to admit the mortgage to be filed for record. It constituted a prior and paramount lien to the mortgage given by the same corporation at a later date to the appellant. As we have already seen, the authority of the president and secretary to execute the mortgage will he assumed under the doctrine of our own cases above cited; and the affixing by the secretary of the corporate seal determines the sufficiency of the acknowledgment as to the corporate intent. Authorities on both sides of the question may he found in case notes to 29 A. L. R. at page 989 and 108 A. S. R. at page 573.

Therefore the decree will he affirmed.


author: Smith, J.

text:
    Usrey v. Yarnell.
    Opinion delivered May 19, 1930.

      Gooley <& Adams, for appellant.

      Miller & Tingling, for appellee.
   Smith, J.

This appeal is prosecuted from a judgment of the circuit court sustaining a demurrer to that portion of appellant’s complaint which made J. Pitts Yarnell, as sheriff of White County, a party defendant. The suit was against (both Yarnell, as sheriff, and H. P. Pollett, and the complaint alleged the following facts as constituting a cause of action. Pollett, while specially deputized and acting as the agent and deputy of Yarnell, as sheriff of White 'County, and while armed with process for the arrest of prisoners who had escaped from White County, was en route, by the shortest and most direct route, to Leachville, Mississippi County, where said escaped prisoners were supposed to he, for the purpose of arresting them, and, while so engaged, he negligently ran his automobile into that of the plaintiff. Judgment was prayed to compensate the damages resulting’ from the collision.

The statute (§ 9152, C. & M. Digest) provides that “Bach sheriff may appoint one or more deputies, for whose official conduct he shall be responsible,” and in the case of Edgin v. Talley, 169 Ark. 667, 276 S. W. 591, we said: ‘ ‘ The general rule is that for all civil purposes the acts of a deputy sheriff or constable are those of his principal. Hence, a sheriff or constable is liable for the act, default, tort, or other misconduct done or committed by his deputy colore officii

The question for decision is, therefore, whether the negligence of Pollett, in colliding with plaintiff’s car, under the circumstances alleged, was done colore officii, or was official conduct for the consequences of which his chief should be held liable.

There is here no relation of master and servant, and the complaint alleges only that Pollett was traveling to a place where, upon his arrival, he was to perform an official act, that is, arrest prisoners who had escaped. He was not acting under color of his office while driving his automobile, and he was not engaged in any official conduct ait the time he collided with plaintiff’s automobile. He was driving at his own volition to a place where, upon his arrival, he expected to perform an official act, but the collision occurred before his arrival there.

The note to the annotated case of Alabama v. Kolb, 1 A. L. R. 218, 218 Ala. 439, 78 So. 817, contains an extended review of cases dealing with the liability of officers for the acts of deputies and assistants; but we do not review any of these cases for the reason that, in our opinion, there is no allegation in the complaint that Pol-lett was acting officially, or by virtue of his deputy ship, when he collided with the plaintiff’s car. Therefore no cause of action was alleged against • Yarnell, as sheriff, and the demurrer was properly sustained as to him. The judgment is therefore affirmed.


author: Mehaffy, J.

text:
    Holton v. Cook.
    Opinion delivered May 19, 1930.

      McAdoo, Neblett, O’Connor é CladgeU and J. A. Tellier, for appellant.

      Donham & Fulk, for appellee.
   Mehaffy, J.

This suit was begun by appellant against appellee to collect $900 balance due on a contract alleged to have been made for tuition and board olf appel-lee’s minor daughter for the school year 1927-1928. The ■appellee lives at Malvern, Arkansas, and his sixteen-year-old daughter was attending school in Little Nock, and, while attending’ school in Little Rock, she wrote to a number of schools for catalogares. After receiving a number of catalogues, she decided she wanted to attend the Hol-ton-Arms School, and she so informed her parents, and they agreed that she might attend this school. She took the catalogue home, but her father never examined it, and neither the girl nor her parents had ever noticed what is called “the agreement” in the catalogue. The catalogue contained the following: ‘ ‘ The school reserves the privilege of asking pupils to withdraw for infraction of the honor rules of student government. Pupils are entered for the entire year, and no reduction is made for either absence or withdrawal. Tuition is payable half yearly in advance on the opening day of school and on the first day of February.” In addition to this, the daughter signed an application which contained a number of blanks to be filled, and, among other things in the application, it was stated that the price varied from $1,400 to $1,800, aecoi’d-ing to the size and location of the room, and the daughter selected a room, the price of which was $1,800. This catalogue received by the daughter was for 1926-1927, and she attended the Holton-Arms School that year, and, before leaving in June, 1927, she notified the plaintiff verbally that she was coming back for the school year 1927-1928. No contract was signed, and no additional catalogue furnished at that time. She went back to school in the fall of 1927, and remained at the school until December 14,1927, when she went home. On December 31,1927, Mrs. Holton received the following telegram from Mrs. Cook: ‘‘Regret that Yerna is not returning to school. Letter following. ’ ’ She also received the following letter, written January 4: “I regret very much to say that Yerna will be unable to return to school. I have been considering the matter; therefore I delayed writing you.”

The evidence tends to show that she did not go back to school because she became wholly incapacitated from pursuing her studies at the school by reason of defective eyesight, and for that reason alone did not return to school at the close of the Christmas vacation of 1927. It is unnecessary to set out the evidence in full. The court found in favor of the defendant.

The only question for our consideration is, whether the fact that the appellee’s daughter becoming incapacitated relieved Mm. from liability for tuition and board for the balance of the year.

It is earnestly contended by the appellant that the facts show that the parties entered into an entire and indivisible contract, and that the appellee is liable for the board and tuition for the entire year whether the absence or withdrawal of appellee’s daughter was voluntary, or whether it was caused by illness or incapacity to pursue her studies. There is some conflict in the authorities, and appellant calls attention to a number of authorities relied on to sustain her contention.

The first authority to which attention is called by appellant, and which is relied on, is a statement of the law in 24 R. C. L. p. 630: It is stated in that paragraph: “A parent is bound by a provision in a school catalogue that pupils may be entered only for the entire year, and that no money will be refunded if the pupil is withdrawn or expelled, if such provision was known to him when he entered his child. In such case the contract is entire. The fact that a pupil is incapacitated by illness does not relieve the parent from liability for tuition during’ that time.” It will be observed, however, that this statement of the law is based on the fact that the provision was known to the parent when he entered his child. The section quoted from and relied upon by appellant contains the following, after the statement quoted by appellant: “It has been held that there can be no recovery of tuition if the pupil is prevented by illness (from attending school ait all. This is on the ground that the parties must have acted on the assumption of the continued ability of the promisee to give, and the promisor to receive the proposed instruction.” There is cited under this section, Stewart v. Loring, 5 Allen (Mass.) 306, 81 Am. Dec. 747. The court in that case said: “But if we may suppose the real purpose of the writing to have been to insure the plaintiff in advance that his school should be patronized, and that the defendant would be a pupil, then the answer, as it seems to us, might be reasonably made that the party, without any fault of his own, was from subsequent ill health rendered physically incapable of attending the gymnasium as a pupil. The parties must have acted upon the assumption of the continued ability of the prom-isee to give, and the promisor to receive, the proposed instruction.”

The next case to- which attention is called by appellant, is Hall v. Mount Ida School for Girls, 258 Mass. 464, 155 N. E. 418. The school was a school for girls, and appellant’s granddaughter was discharged because she secretly married while attending’ school. One difference between that case and tlie instant case, is that in the Hall case the pnpil was expelled because of her misconduct; in the instant case the withdrawal was because of incapacity of the pupil. In the Hall case it was agreed: “That contracts for hoax'd, lodging and instruction at a private school for a specified time have always been held to be entire eoixtracts and not divisible; and as a practical consequence further agree that the plaintiff is entitled to recover in the action $900 or nothing. ” The question involved in that case was very different from the question wre have here.

The next case relied upon by appellant, is Pierce v. Peacock Military College (Tex.) 220 S. W. 191. The con-ti'act made in the Peacock case expressly referred to the catalogue, and made it a part of the contract. The applicant, Mrs. Pierce, stated in her letter that she had examined the catalogue, and accepted the rales and regulations as published both in the catalogue and the literature of the college. This case does not discuss the question which is before us. That was a written contract and a voluntary withdrawal of the pupil, and not a question of incapacity of the pupil to receive instruction.

The next authority referred to, is Sedgwick on Damages, which cites the International Text Book Co. v. Martin, 92 Neb. 430, 138 N. W. 582. The opinion in the International Text Book Company case quotes from Sedg-wick on Damages as follows: “In some cases the plaintiff may recover the whole contract price. A common case is that of a school master. If a scholar is removed from the school during the year, the school master may recover the tuition fee for the whole quarter.” The case does not discuss the question involved here, and in fact does not state the facts in that case but refers to the same case in 82 Neb. 403, 117 N. W. 994. The facts in that case as stated by the court in 117 N. W., shows that a contract was entered into, and that the defendant notified the plaintiff that he did not intend to perform the contract. This was a voluntary withdrawal or breach’ of the contract, and there was no question of illness or incapacity or other excuse for not performing the contract.

The next case to which attention is called by appellant, is Vidor v. Peacock (Tex.) 145 S. W. 672. It was held in that case: “That Vidor agreed to the catalogue provision on the subject, which was that money advanced on account is never refunded except in cases of severe illness whereby a pupil withdraws from school by the advice of a San Antonio doctor and then the loss is shared equally by the parent and the school. No rebate under any circumstances is allowed for withdrawals during- the last month of the school year. Pupils entered are obligated to remain to the end of the year. The court held that this was defendant’s contract, and that he was obligated to pay for the whole year, except, and as a condition precedent to the exception, the boy withdrew on account of severe illness and then upon the advice of a San Antonio physician.” The parties had a right to contract as to the manner in which the illness would be determined, and they did contract that it should be determined by a San Antonio physician, and this contract was violated, and the court held that a recovery could be had.

The case of William v. Stein, 100 Misc. Rep. 677, 166 N. Y. S. 836, relied on by defendant, merely holds that under the contract in that case the school was entitled to recover. In that case, however, the application for admission expressly stated that it was made for the school year, according to the terms, rules and regulations in the catalogue, to all of which the applicant agreed. In the catalogue special attention was drawn to the notice that pupils were entered for the entire year, and that no reduction would 'be made for absence or withdrawal, except in cases of protracted illness. In that case the pupil voluntarily withdrew, and there was no question of illness involved.

The next case relied upon by appellant is Kentucky Military Institute v. Cohen, 131 Ark. 121, 198 S. W. 874, L. R. A. 1918B, 709, but that does not discuss the question involved here. There was no question of illness or incapacity, but was simply a question of breach of contract on the part of the school, and withdrawal of the pupil because of said breach.

There are one or two other cases referred to by appellant, but the cases involving simply a breach of contract, or voluntary withdrawal or expulsion, have no application here. The question here is, whether the incapacity of the pupil to receive instruction discharges the parent from liability.

“In all contracts in which the performance depended on the continued existence of a given person or thing, a condition is implied that the impossibility arising from the perishing of the person or thing shall excuse the performance. In none of the cases are the terms in words other than positive, nor is there any express stipulation that the destruction of the person, or thing, shall excuse the performance, but that excuse is by law implied, because from the nature of the contract it is apparent that the parties contracted on the basis of the continued existence of the particular person or chattel.” 6 R. C. L. 1005.

■Contracts to perform personal acts are considered as made on the implied condition that the party shall be alive, and shall be capable of performing the contract, so that death or disability will operate as a discharge when a 'Contract is made like the one involved here. The parties must have acted on the assumption of continued ability for the school to give, and the pupil to receive instruction. This is implied in contracts of this character, unless this implied condition is plainly negatived .by the contract itself. See Arlington Hotel Co. v. Rector, 124 Ark. 90, 186 S. W. 622; 24 R. C. L. 630; 6 R. C. L. 1012. In other words, the parties to the contract necessarily understand that it is on condition that the pupil shall be able to receive instruction, and .that the school shall he able to. give it, and either death or disability which renders the performance impossible discharges the contract. Contracts of this character must be construed as subject to an implied condition that the parties shall the excused in case, before breach, performance becomes impossible without fault of the contractor. In contracts of this character there is an implied exception in case of incapacity to receive instruction.

We do not mean to say that parties could not contract so that there would be no condition implied, but in this case they have not done so. If for any reason, not the .fault of appellant, the school had been destroyed, or it became impossible to give the instruction, this would excuse the appellant from complying with the contract. If a pupil without fault becomes incapacitated from receiving instruction, the parent is excused from performing the contract. The evidence in this case shows, and the trial court found, that the physical disability of defendant’s daughter to further pursue her studies or to attend appellant’s school rendered the performance of the contract impossible, and absolved appellee from all liability thereunder.

In the instant case, appellee’s attention was never called to the provision in the contract, but Mrs. Cook testifies that when she wrote to appellant, and when she took her daughter to Washington, the appellant did not mention anything about the tuition to her, did not mention anything about the time she should leave her daughter, or about any contract. When she got ready to leave, she mentioned tuition to appellant, and appellant said there was no hurry about it, and she would send bill later. In the cases relied upon by appellant, the written contract itself in most of them called attention especially to provision in the catalogue, and made it part of the contract, and in other cases relied on there was no question of the incapacity of either party, and where it is shown that a pupil has withdrawn because of incapacity to pursue her studies, and there is nothing in the contract to the contrary, it will be implied that the total incapacity of either party excuses the performance. Finding no error, the judgment of the Pulaski Circuit Court is affirmed.

Justices Smith, Humphreys and Butler dissent.


author: Mehaeey, J.

text:
    Reeder v. State.
    Opinion delivered May 19, 1930.

      Pryor, Miles & Pryor, for appellant.

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

The grand jury of Sebastian County returned four indictments against appellant, charging him with, (1), unlawfully and feloniously setting up a distillery for the purpose of manufacturing distilled spirits for beverage purposes; (2), keeping in his possession a. still; (3), making mash; and (4), manufacturing and being interested in the manufacture of liquor. Each of the indictments contained all the necessary allegations required by statute to charge the crime mentioned. The indictments also charged Earnest Reeder, son of appellant, with the same offenses. Appellant entered a plea of not guilty in each ease, the cases were consolidated by agreement, a trial was bad resulting in a conviction in eaeb case. Tbe punishment was fixed at imprisonment in tbe penitentiary for one year in each case, tbe sentences to run concurrently. This appeal is prosecuted to reverse tbe judgments of conviction.

Appellant contends that tbe evidence was not sufficient to justify tbe jury in finding bim guilty. He admits, however, that tbe evidence of two witnesses introduced by tbe. State connected appellant with tbe crimes charged, but be argues that their testimony is highly unsatisfactory, unreasonable and contradictory. These were questions, however, for tbe jury, and not for this court. The credibility of tbe witnesses, and tbe weight to be given their testimony, are for tbe jury, and there was substantial evidence to support the verdict. If tbe jury believed tbe two witnesses whose testimony connected the appellant with tbe crimes charged, they were justified in finding him guilty. Appellant earnestly insists that bis motion for a new trial should have been granted on tbe ground of newly discovered evidence, and that tbe case should toe reversed because tbe trial court refused to grant bis motion on this ground. Mr. Houck and Mrs. Finley both testified, in substance, that tbe appellant who lived about one-half a mile from Houck’s home, rented a stone potato bouse from Houck in which tbe still, equipment, etc., was found. Tbe potato house was about sixty yards from.Houck’s dwelling house, and fifty or sixty yards from tbe bog pen. That appellant agreed to pay tbe rent of $10 a month in groceries, and that be did deliver tbe groceries. That appellant put two hogs in tbe pen on Houck’s place, and that be brought feed for tbe bogs each day. After tbe time when witnesses say appellant rented tbe potato bouse, it was kept looked. Appellant denies renting the potato bouse, but admits that he put bis son’s bogs in tbe pen and fed them, and admits that be delivered groceries to Houck, but says the groceries were delivered for bis son Earnest Reeder. In appellant’s motion for new trial, be says that be discovered after tlie trial that Ms son, Earnest Reeder, who was at that time confined in the county jail at Muskogee, Oklahoma, had stated in an affidavit that appellant had nothing to do, and knew nothing about the still and equipment for which he was convicted; that the still and equipment belonged to J. H. Houck and Earnest Reeder; that he had talked with his son about the case, and asked his son if he knew anything about the facts, and his son refused before the trial to disclose the facts which were in his knowledge; that appellant knew of no other witness 'by which he could establish his innocence; that these facts were only obtained from the son after his conviction; that he used all diligence in preparing his defense; that he did not know his son would testify to any of these facts until after his conviction, and that, if a new trial is granted, he -will have his son present to testify. The affidavit of his son, Earnest Reeder, was attached to his motion for new trial.

Evidence to be newly discovered must be found out since the trial, and it must appear that it could not have been .known at the time of the trial by the exercise of reasonable diligence. Johnson v. Johnson, 169 Ark. 1151, 277 S. W. 535. Appellant in this case knew that his son was charged jointly with him. He knew that his son knew'all the facts about the hogs, the feed and the delivery of the groceries, and he knew his son was an important witness to establish the facts about whose hogs were in the pen, and who sent the groceries to Houck, if appellant delivered them for his son as he testified. Appellant cites and relies on Huckabee v. State, 174 Ark. 859, 296 S. W. 716. The facts in this case do not bring it within the rule announced in that case. The court in that case, however, said: “And it is also true that this court has held in numerous cases that a motion for a new trial for newly discovered evidence should show diligence in getting such evidence on the trial of the case, and must ordinarily show an excuse why such evidence was not produced at the trial.” Tt is within the discretion of the.trial court to grant a new trial or not. Carter v. State, 174 Ark. 871, 298 S. W. 7; Jewel Coal Mining Company v. Whitner, 170 Ark. 393, 279 S. W. 1031; Houston v. State, 130 Ark. 591, 197 S. W. 576; Brown v. State, 143 Ark. 523, 222 S. W. 377.

In criminal, as in civil cases, the grant or refusal of a new trial is generally said to rest in the sound discretion of the trial court, and the appellate court has no right to review the exercise of such discretion, unless it appears that it has been abused to the prejudice of the defendant. 16 C. J. 1119.

Of course, this discretion is founded on established legal principles, and is to be exercised for the promotion of justice and the protection of the innocent. We do not think the trial court abused its discretion in refusing to grant a new trial in this case, and the judgment is therefore affirmed.


author: McHaNey, J.

text:
    Stevens v. Adams.
    Opinion delivered May 19, 1930.

      Northcutt & Northmtt, for appellant.
   McHaNey, J.

Appellant, the town marshal of the town of Calico Rock, was sued by appellee for damages for personal injuries received by him as the result of a shot fired by appellant at the car in which appellee and others were driving in said town. Appellant attempted to stop the car and arrest appellee and the others for a misdemeanor committed in his presence and hearing, that of disturbing the peace, and for publicly using vile and profane language. When the parties in the car did not stop on liis order, appellant fired two shots at the tires of the car. One of the bullets struck appellee in the back of the head, inflicting a severe and painful injury. He did not shoot at either of the parties in the car, and did not intend to hit any one. The case was tried to a jury, resulting in a verdict and judgment against appellant for $150.

For a reversal appellant argues that the court erred in giving, and in refusing to give, certain instructions. Three of the instructions given were peremptory in effect, as they told the jury that, if they found appellant fired the shot that struck appellee, they should return a verdict in his favor for some amount. ‘Since we are of the opinion that the court should have instructed a verdict for appellee, the amount of damages to be determined by the jury, on the undisputed evidence, no prejudice could have resulted to appellant by the giving or refusing to give, the instructions complained of.

In the recent case of Edgin v. Talley, 169 Ark. 662, 276 S. W. 591, 42 A. L. R. 1194, this court reaffirmed the rule of law regarding the force an officer may use in making arrests, and preventing escapes after arrest in misdemeanor cases, as stated by the court in the earlier case of Thomas v. Kinkead, 55 Ark. 502, 18 S. W. 854, 15 L. R. A. 558, 29 Am. St. Rep. 68. In the latter case, Judge MaNSeield, speaking for the court, said: “In making the arrest or preventing the escape, the officer may exert such physical force as-is necessary on the one hand to effect the arrest by overcoming the resistance he encounters, or on the other to subdue the efforts of the prisoner to escape; but he cannot in either case take the life of the accused, or even inflict upon him a great bodily harm, except to save his own life or to prevent a like harm to himself.”

The same principle applies here. Appellant had no right to kill the appellee, or to inflict a great bodily injury upon him, in order to effect his arrest for a misdemeanor, and it can make no difference, in a civil action, that appellant did not fire the shot at appellee or intend to bit bim. It is not disputed that one of the sliots fired at the tires struck appellee, and it must have been the result of negligence or carelessness, since the specific injury was not intended.

A correct instruction was given on the measure of damages, and again repeated in another instruction. Complaint is made of this repetition, but no specific objection was made thereto on this account.

The court correctly refused to give the instructions requested by appellant, about which complaint is now made. It is argued that certain language used in Edgin v. Talley, supra, supports him. But not so. The language relied upon refers to the suit of Eclgin, which was affirmed because he received no injury, but it was reversed as to Golclia Floyd, who was riding in the car with him, and who was injured the shot fired by the constable.

We find no reversible error, and the judgment is affirmed.


author: Hart, C. J.

text:
    Kansas City Southern Railway Company v. Biggs.
    Opinion delivered May 26, 1930.

      Joseph 11. Brown and James B. McDonough, for appellant.

      Roy Gean, for appellee.
   Hart, C. J.

Appellant prosecutes this appeal to reverse a judgment against it in favor of appellee for injuries to person and property, alleg*ed to have been caused by one of appellant’s trains negligently running into her automobile at a railroad crossing in the city of Fort Smith.

According to the evidence adduced in favor of ap-pellee, she had just purchased a new Ford sedan, and was driving in it with her husband across the railroad tracks of appellant sometime after dark in the latter part of January, 1929, when one of appellant’s trains negligently ran into her automobile and severely injured her and badly damaged her automobile. Appellee was sitting by the side of her husband who was driving the car at the time the accident occurred. The automobile was going west; and, as they were going across the railroad crossing, something dark struck the automobile and turned it around. The train went on by the crossing and then stopped. There was no headlight burning on the engine of the train, and there were no lights in the coaches of the train. The bell was not sounded nor was the whistle blown for the crossing. The headlights were burning on the automobile at the time of the accident. There was no light ahead of the automobile which looked like that of.a train or automobile. The train ran about a block after it had run across the crossing before it was stopped. The crossing where the accident occurred was about four blocks from the railroad station.

According to the evidence adduced in favor of the appellant, the operatives of the train began to ring the bell after the train left the station, and it was kept ringing by an automatic ringer until after the accident occurred. The statutory whistle was also blown for the crossing. ' Tlie engineer and fireman were both, keeping a lookout. The engine liad a standard headlight, and there were lights in the coaches at the time the accident occurred. The engineer and fireman were at their usual places on the engine, and both were keeping a lookout. The engineer did not see the automobile until it came right out in front of the engine on his side of the train. No automobile appeared in range of the headlight of the engine when it was a block or a half a block away from the crossing. The headlight, was burning at the time the engine approached the crossing’, and there was nothing wrong with it. Other witnesses for the appellant testified that the headlight of the engine was burning, and that there were lights in the coaches at the time the train approached the crossing. They also testified that the 'bell was ringing, and that the whistle was blown for the crossing. The track was straight from the crossing in the direction from which the train was approaching.

It is first earnestly insisted by counsel for appellant that the evidence is not legally sufficient to warrant the verdict. They contend that, inasmuch as the track was straight, and as both the engineer and fireman testified that the headlight was burning and that the statutory signals were given, appellee should be held, as a matter of law, to- have seen the approaching train. It cannot be said, however, that the evidence in favor of appellant on this point is uncontradicted. According to the evidence ‘for appellee, the statutory signals for the crossing were not given. The witnesses for appellee testified that they were listening for such signals as the automobile approached the crossing, and that none were given. They testified that they would have heard the bell ringing or the whistle blowing if such had been the case. They also testified that they were looking in the direction from which the train approached, and that there was no light in the headlight of the engine. They testified that the train approached silently, and that they did not see it until the engine struck the automobile of appellee. This was testimony of a substantive nature, and this court has uniformly held that where the trial court has overruled a ■motion for a new trial based upon the legal insufficiency of the evidence and there is any substantial evidence to support the verdict of the jury, it will not be disturbed upon appeal. The duty rests upon the trial court to grant a new trial if it is of the opinion that the verdict is contrary to the weight of the evidence. This court has no such power. St. L. S. W. Ry. Co. v. Ellenwood, 123 Ark. 428, 185 S. W. 768.

This case was brought under what is commonly called our look-out statute, and the instructions given by the court were predicated upon our decisions construing that statute. We do not mean to say that we approved the instructions as to form; but in substance they conform to the rules of law laid down in the following cases: Ft. Smith & Western Ry. Co. v. Messek, 96 Ark. 243, 131 S. W. 686; Louisiana & Arkansas Ry. Co. v. Woodson, 127 Ark. 323, 192 S. W. 174; Mo. Pac. Rd. Co. v. Mitchell, 170 Ark. 689, 280 S. W. 627; Dickerson v. St. Louis-San Francisco Ry. Co., 177 Ark. 136, 5 S. W. (2d) 943.

The rule laid down in Jemell v. St. Louis S. W. Ry. Co., 178 Ark. 578, 11 S. W. (2d) 449, to the effect that a driver of an automobile is guilty of negligence as a matter of law in driving upon a public crossing without looking when he could have seen an approaching train if he had looked for it, is not applicable under the evidence adduced by the appellee in the present case. The accident there occurred in the daytime; and, according to the testimony of the plaintiff himself, he could have seen the approaching’ train if he had looked. In the case at bar, the witness for appellee testified that they did look for an approaching train, and neither saw nor heard one. The accident occurred in the night, and they testified that the headlight of the engine was not burning, and there were no lights in the coaches of the train which would indicate that a train was approaching the crossing.

It is next contended that the court erred in allowing the husband of appellee to testify in her behalf as to the facts relative to the accident. He was permitted to testify that the headlight on the automobile was burning’, and that the headlight on the engine was not burning at' the time of the accident. He also testified that there were uo lights in the coaches, and that’the statutory warnings for the crossing were not given. The husband was driving the car at the time the accident occurred, and his testimony was admitted on the theory of his agency in the transaction. According to the third subdivision of § 4146 of the Digest, husband and wife may not testify for or against each other, except that either shall be allowed to testify for the other in regard to any business transacted by the one for the other in the capacity of agent. This court has frequently said that the design of the statute was to enable the husband ox wife who had transacted business with some third party, through the other as agent, to prove such business by the agent who transacted it, the principal not having first knowledge thereof. Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405; Miles v. St. L. I. M. & So. Ry. Co., 90 Ark. 485, 119 S. W. 837, and cases cited; and Miller v. Hammock, 97 Ark. 11, 132 S. W. 1000.

In Mississippi River, Hamburg & Western Ry. Co. v. Ford, 71 Ark. 192, 71 S. W. 947, in applying the rule, the court held that the fact that a husband had authority to treat with a railroad company as to the terms upon which the right-of-way might be secured through his wife’s land, did not qualify him, after a failure to agree upon such terms, to testify as her agent as to 'the damages she sustained by reason of the construction of the railway through her land.

Again, in St. L. I. M. & Sou. Ry. Co. v. Courtney, 77 Ark. 431, 92 S. W. 251, the court said that the statute under consideration is violated bj7- permitting the husband to testify as to the value of the wife’s stock in a suit by her against a railroad “company for stock killed by the train. The court said that the testimony of the husband in such a case was not testimony in reference to any business transaction done by him as her agent, and was not therefore competent testimony.

The result of the holding in all these cases and other decisions of this court is that the husband is only allowed to testify for the wife in regard to business transactions by him with third persons for her in the capacity of agent. To illustrate, in the present case, the husband was driving the automobile of his wife, and his testimony as to the manner in which the accident occurred did not involve any transaction by him with the railroad company in which he acted as agent for his wife. On the other hand, if, after the accident had happened, his wife had authorized him to settle the damages sustained by her, he might have testified as to any agreement which he had reached with the proper agents of the- railroad company, since this would have been the transaction of business by him with the railroad company in the capacity of agent for his wife.

This is not a case where part of the testimony might have been admitted and part of it was not competent. In such cases, the objection must relate solely to the testimony which was incompetent. Here a proper objection was made to the competency of the witness. The testimony was all relevant to the matter under consideration, and all would have been competent testimony if it had been given by a competent witness. The court erred, however, in holding that the husband was a competent witness for his wife under the provisions of the statute above referred to. Mosley v. Mohawk Lbr. Co., 122 Ark. 227, 183 S. W. 187.

It is next insisted that the court erred in giving instruction No. 7, which x*eads as follows:

“If you find for the plaintiff you will fix the amount of her recovery at whatever -sum you find from the testimony will fairly and reasonably compensate her for damages to her automobile, if any, and suffering endured by her, if any, all of which must appear from the proof in the ease.”

It is contended that the instruction is too indefinite and uncertain to furnish a correct guide to the jury as to the measure of damages to appellee for injury to her automobile. In this connection, we also think counsel is correct. The instruction is inherently wrong- in that it fails to furnish to the jury any certain guide in fixing appellee’s compensation for the automobile except what it might believe from the evidence would be fair and reasonable. The jury would thus be left to their own individual ideas as to how much was a reasonable compensation. The measure of damages was the difference between the market value of the property immediately before the injury, and its market value immediately after the injury. Southern Ry. in Kentucky v. Kentucky Grocery Co., 166 Ky. 94, 178 S. W. 1162; General Fire Extinguisher Co. v. Beal-Doyle Dry Goods Co., 110 Ark. 49, 160 S. W. 889, Ann. Cas. 1915D, 791.

For the errors in giving instruction No. 7 and in allowing the husband of appellee to testify, as indicated in the opinion, the judgment must be reversed, and the cause will be remanded for a new trial.

Justices -Smith and Humphreys concur.