text:
    Byrd v. Galbraith.
    Opinion delivered November 23, 1926.
    1. Automobiles — care to avoid injuring street laborers. — Persons driving motor cars must exercise reasonable care to see and avoid injuring persons at work in the streets, as well as pedestrians.
    2. Automobiles — exercise op caution by street labober. — A person at work in the street need not neglect his occupation to avoid injury from an automobile driver’s want of ordinary care, but he cannot recover if actually guilty of contributory negligence.
    3. Negligence — instructions as to contributory negligence- — In an action for injury to plaintiff while at work in the street, an instruction that if the nature of his work precluded him from keeping a constant lookout for approaching automobiles and he was so engaged in his duties as not to see the approach of the automobile which struck him, he was not guilty of contributory negligence, held not error, in view of other instructions submitting such defense.
    4. Trial — repetition op instructions. — Where the court, at defendant’s request, charged that, before the plaintiff could recover, the jury must find that he was free from any negligence that contributed to his injuries, it was not error to refuse a further instruction setting up the same defense.
    5. Automobiles — street laborer — reasonable care. — One working in the street is responsible only for failure to exercise such care 'as reasonably prudent persons should exercise under similar circumstances to avoid injury by automobiles.
    6. Damages — personal injuries — excessiveness.—A verdict for $3,500 in favor of a father for injuries to his minor son was not excessive where he had spent $3,200 for medical attention and would have to spend more.
    7. Damages — personal injuries — excessiveness.—In view of his suffering and permanent injuries, a recovery of $14,000 by plaintiff held not excessive.
    Appeal from Jefferson Circuit Court; T. G. Parham, Judge;
    affirmed.

      Maurice Reinberger aiijd Coleman é Gantt, for appellant.

      Harry T. Wooldridge, for appellee.
   Humphreys, J.

Appellee, Oliver Galbraith, father of appellee, Fred Galbraith, instituted suit in his own right, and as next friend for his said minor son, against appellant, in the circuit court of Jefferson County, to recover damages for injuries inflicted upon luis son through'the alleged negligence of appellant in running over him with an automobile, at the intersection of Fifth Avenue and Main Street, in Pine Bluff, while engaged in painting a “No Left Turn” sign on the surface of the street, as an employee of the city.

Appellant filed an answer, denying the allegations of the complaint and, by way of affirmative defense, pleading contributory negligence on the part of appellee’s son.

The cause was submitted upon the pleadings, the testimony adduced by the respective parties and the instructions of the court, which resulted in verdicts and consequent judgments in favor of Oliver Galbraith for $3,500 and Oliver Galbraith, as nest friend for Fred Galbraith, for $14,000, from which is this appeal.

. The substance of the evidence, reflected by the undisputed testimony, is about as follows: The injury occurred between 8 and 9 o’clock p. m. on September 16, 1924, at the intersection of Fifth Avenue and Main Street, in said city. Fifth Avenue runs north and south and Main Street east and west. The street car company operates a double track along Main Street. At this particular point Main Street is 55 feet wide, and the distance from the west car rail of the west car track to the curb line on the west side of Main Street is 20 feet. It maintains a safety zone on the north side of the intersection and on the west side of the double tracks for passengers to get off and on the street cars running south on Main Street. Traffic going south on Main Street was required to keep on the west side, and traffic north to keep on the east side of the center of Main Street. The street intersection is in the business part of the city, where the traffic is heavy, the Hotel Pines being on the northwest corner of the intersection, McEwen’s Dry Goods Store on the southwest corner, Franey Brothers’ Store on the southeast corner, and the T. M. C. A. building on the northeast corner. The intersection of the streets at this point was perhaps the best lighted intersection of streets in the city.

Fred Galbraith was an intelligent yonng man, having graduated from the high school when he was sixteen years of age. He was eighteen years of age at the time of the injury, and had been working in the city engineer’s office for over a year, as inspector of streets and sewers. He was familiar with the streets and conditions of traffic in all parts of the city. He and two assistants had been directed to repaint the traffic signs on the surface of the streets, and were permitted to select their own time for doing the work. Fred Galbraith was told by the city engineer, on the afternoon of the night that the injury occurred, to go that night and paint the “No Left Turn” sign at the intersection of Fifth Avenue and Main Street. On the' occasion of the injury, Fred Galbraith was dressed in khaki pants and light brown shirt, and was working about five or six feet west of the west car rail on the west car track, leaving a space of about fifteen feet between the west curb line of Main Street and himself, for automobiles to travel going south on said street. At the time he was struck by appellant he was facing south, in a stooping or kneeling posture, down on the street, painting on the surface thereof, in large letters, “No Left Turn”, and was devoting strict attention to the performance of his duties, not moving around or about on the street, and had been in the same position for fifteen or twenty minutes. While thus engaged, an automobile, owned and operated by appellant, traveling south on Main 'Street, struck him in the rear and knocked him over on the pavement. His foot was caught in the axle of the car, and he was dragged a distance of 68 feet before appellant brought his car to a stop and Galbraith was extricated. He did not know that he had run over Galbraith until' Galbraith’s co-worker jumped on the running-board of the car and told him what had happened. Galbraith did not see appellant’s car before it struck him. Appellant was not looking in the direction of Galbraith at the time he ran over him, his attention having been attracted to some girls across the street, who had called to him. At the time of the injury Galbraith was hot working under the protection of lanterns or other guards. There is nothing in the record, however, to show that it was customary, when this character of work was being done at night, to put out lanterns or other signs.

Fred Galbraith was immediately removed to a hospital and examined by a physician. It was'found that the skin had been peeled almost entirely off his back, a hole punched in his side, and that he had sustained minor cuts and bruises practically over his entire body. He recovered from these injuries, but suffered intense and excruciating pain from them for a period of- about six weeks. In addition to these temporary injuries, he received a permanent injury to his left arm, from which he was still suffering at the time of the trial. A hole was punched in his left elbow which required two operations by home surgeons, and later a major operation by Dr. Willis C. Campbell, of Memphis, an eminent bone specialist. He remained in Dr. Campbell’s clinic- from December 27, 1924, until March 1, 1925, under the care of Dr. Campbell and his assistants. The operation performed by Dr. Campbell consisted in the removal of an extensive area of diseased bone.' The wound had not healed at the time of the trial. Dr. Campbell and other physicians testified that the injury was a permanent one, rendering his left arm twenty-five per cent, deficient. At the time of the trial his father had expended about $3,200 for hospital, nursing and medical services, and was then bearing the expense of having the wound dressed'daily.

The only disputed questions of fact arising out of the testimony consisted in a contrariety of opinions as to whether it was better to paint the traffic signs in the daytime or at night, and whether the work could have been performed in such a manner as to allow" or permit Fred Galbraith to have kept a lookout for automobiles and in that way avoid the injury. Bearing upon that point, .Tim Whittle testified that a man painting letters already outlined could stand on any side of them and do the work, which would enable him to keep a lookout while repainting them, whereas appellee, Fred Galbraith, testified that he kept no lookout whatever while painting the sign, because he could not and paint the sign.

Appellant contends for a reversal of the judgment upon three alleged grounds:

First: In giving instruction number 3 on behalf of appellees, over the objection and exception of appellant.

Second: In refusing to give instructions numbers 5 and 9, requested by appellant, over his objection and exception.

Third: Because the verdict was excessive..

The general law applicable to cases of this character is well stated.in the case of Burger v. Taxicab Co., 66 Wash. 676, 120 Pac. 519, as follows:

‘ ‘ The true rule as to the reciprocal rights and duties of persons driving vehicles and laborers on the highway is as follows: ‘Persons riding or driving are bound.to exercise reasonable care to see and avoid injuring persons who are at work in the streets, as well as pedestrians. And the laborer is not bound to neglect his occupation in order to avoid injury from the want of ordinary care on the part of drivers of vehicles. But he cannot recover if actually guilty of contributory negligence.’ ”

The same doctrine was announced in a Michigan case, styled O’Donnell v. Lange, 162 Mich. 654, 127 N. W. 691 (quoting from the syllabus) : “One employed as a street cleaner must, while at work, use ordinary care to avoid injury from passing vehicles, but he need not neglect his work to escape collision with those not using reasonable care.”

With this rule in mind, we will proceed to a consideration of the alleged errors of the trial court in giving instruction number 3, requested by appellees, and in refusing to give instructions numbers 5 and 9, requested by appellant.

1. Instruction number 3, given by the court over appellant’s objection, is as follows:

“If you believe from a preponderance of the evidence in this case that the plaintiff, at the time of the injury, was an employee of the city of Pine Bluff and, under the directions of the city engineer, was engaged in painting a ‘No Left Turn’ sign upon the street, and that the nature of his work precluded him from keeping a constant lookout for approaching automobiles; that, at the time he was. struck and just before such time, he was not moving about or around upon the streets, and that he was so engaged in his duties as not to see the approach of the automobile which struck him, then the court tells you that he was not guilty of contributory negligence.”

Appellant assails the instruction upon the alleged ground that it, in effect, relieved appellee entirely of the duty of keeping any lookout whatever, or taking any precaution for his own safety, regardless of whether he might have done so in the proper performance of his duties in the exercise of ordinary care for his own safety. Or, expressing it differently, that the instruction eliminated the defense of contributory negligence entirely from the case. We do not think the instruction susceptible of the construction placed upon it by appellant. It is apparent that the trial court did not intend to exclude appellant’s defense of contributory negligence, else he would not have given instruction number 1, which is as follows:

“If you believe from a preponderance of the’evidence in this case that, at the time he was injured, the plaintiff, Fred Galbraith, was engaged in performing his duties as an employee of the city of Pine Bluff in painting a ‘No Left Turn’ sign at the intersection of Main Street and Fifth Avenue, and that, while so doing, he was devoting strict attention to his duties and was.in the exercise of that degree of care reasonably consistent with the practical performance of his work, and that, while so engaged, an automobile driven by the defendant, traveling south on Main Street, approached the intersection of Fifth Avenue and Main Street, and that the defendant negligently failed to keep such a lookout for plaintiff or others who might be lawfully upon said street as a reasonably prudent person, in the exercise of ordinary care under the same or similar circumstances, would have done, and that, by reason thereof, Fred Galbraith was struck by said automobile, thereby causing the injuries of which he complains, then you are instructed that your verdict should be for the plaintiff; provided, that you further find that' the plaintiff himself was not guilty of contributory negligence as defined in these instructions.”

Certainly, if it had been the intention of the court to exclude contributory negligence on the part of appellee, Fred Galbraith, as an affirmative defense in the case, he would not have given instruction number 4, requested by appellant, which is as follows:

“Before you can find for the plaintiff, Fred Galbraith, you must find that he himself was free from any negligence that contributed to his injuries.”

We think instruction number 3, correctly interpreted, meant that Fred Galbraith was not required to spend all of his time in keeping a lookout for approaching automobiles, and that it would not be negligence as a matter of law on his part to fail to look and listen for approaching vehicles while he had his mind and eyes on his work. Under this interpretation, the instruction correctly stated the law, for a workman in a street could not possibly keep a constant lookout for approaching vehicles and perform duties which required him to think and see. Reagan v. Los Angeles Ice & Cold Storage Co., 46 Cal. App. 513. We think, when instruction number 3 is read, as it should he, in connection with instruction number 1, given by the court at appellees’ request, they cover the whole law declared in the cases above referred to.

2. Appellant is in no position to complain at the court’s refusal to give his requested instruction numbers 5 and 9, after having prevailed upon the court to give instruction number 4. Both 5 and 9, in effect, preclude a recovery by appellees if Fred Galbraith failed to exercise such care for his safety as an ordinarily careful and prudent man would have done under the same or similar circumstances. Instruction number 4, set out above, was broader and more favorable to appellant than either one or both instructions numbers 5 and 9, It prevented the recovery by appellees if Fred Galbraith, by commission or omission, contributed to his injury by the slightest negligence, whereas the law renders him responsible only for the failure to exercise such care as a reasonably or ordinarily prudent person would or should exercise under the same or similar' circumstances. In other words, the instruction holds him to the very highest degree of care, when the law .requires him only to exercise ordinary care.

3. Eelative to the claim that the verdict is excessive, it is only necessary -to call attention to the fact that the father, Oliver Galbraith, showed that he had expended on his son almost as much as the amount awarded him, and that he ■ will have to expend other amounts before the wound heals. This verdict in his favor, as we understand the record, does not take into account any amount for the loss of the services of his son.

When the extent and nature of the injury is considered in connection with the excruciating pain suffered by Fred Galbraith, as a result of the injury, it cannot be said that $14,000 was an excessive allowance to him.

No error appearing, the judgment is affirmed.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Ingram v. Wood.
    Opinion delivered November 23, 1926.
    1. Judgment — amendment after lapse of term. — Where the original decree in a partition suit determined the interests of all the parties involved, as provided by Crawford & Moses’ Dig., § 8100, it became final with the lapse of the term, and a supplemental decree, rendered at a subsequent term, changing the interests of the parties but not embracing any of the grounds for vacating or modifying the prior decree set out in § 6290, and alleging no claim that the original decree was procured by fraud, held void.
    2. Equity — opening or vacating decree. — A court of equity can set aside a void decree- at any time.

      Appeal from Union Chancery Court, First Division; John E. Harris, special Chancellor;
    affirmed.

      Bailey £ Bailey, for appellant.
   Humphreys, J.

This is an appeal from a decree rendered on May 5, .1925, in the first division of the chancery court of Union County, annulling an amended and supplemental decree made and entered on January 27, 1925, in a suit wherein J. W. Raiford et al. were plaintiffs and Ben R. McClanahan et al. were defendants. Both appellants and appellees herein were parties to that suit, which was a partition suit of certain lands in said county. The original decree in that suit was rendered on the 30th day of June, 1924. It was adjudged in the original decree that appellees.herein,-Mrs. Lizzie Wood and Mrs. Fannie McMullen, owned an undivided one- . sixth interest each, and appellants herein, who were children of their deceased sister, an undivided one-thirtieth interest each in the lands involved in the suit. The term of court at which the original decree was rendered adjourned until court in course on the first Monday in September, 1924. On the 27th day of January, 1925, at a subsequent term of court, the amended and supplemental decree was rendered, on the motion of the attorneys who represented appellants and appellees herein in the original partition suit, so as to change their several adjudged interests in said lands to equal shares therein, conformable to the said attorneys’ construction of a written instrument of date May 3,' 1923, evidencing a purported family settlement between appellants and appellees on the one side, and R. II. Ingram and Mattie J. Ingram on the other.

It will be observed that the effect of the amended and supplemental decree was to materially reduce the interests of appellees herein, Mrs. Lizzie Wood and Mrs. Fannie McMullen, adjudged to them in the original decree. On account of this reduction, they attacked the validity of the supplemental decree 'aforesaid, by motion, at a subsequent term of the court, upon the ground that the court was without authority in law to change or modify the original decree after the expiration of the term at which same was rendered.

The following recitals appear in the decree of May 5, 1925, from which this appeal was taken:

“Said matter is presented to the court upon the verified petition of Mrs. Lizzie Wood and Mrs. Fannie McMullen aforesaid, and upon the response filed thereto by Polk Ingram, Pauline Ingram Ward, formerly Pauline Ingram, Emma Ingram Quires, formerly Emma Ingram, Ruby Ingram McMullen and Charles (Charlie) Ingram, feme sole, aforesaid, and upon all of the original pleadings, depositions and records heretofore filed or entered in this cause, said depositions, pleadings and records being more fully set out in the original decree entered in this cause, and submitted also upon the original decree in September, 1924, and upon the motion to correct and modify the original decree which was filed on January 21, 1925, and upon the supplemental decree entered in said cause on January 27, 1925, and upon the oral testimony of Mrs. Fannie McMullen, Mrs. Lizzie Wood, Arthur McMullen, and Neill C. Marsh.”

Appellants herein contend for a reversal of the decree of date May 5, 1925, because they say the ascertainment of the several interests of the parties in the lands was not an issue in the suit at the time the original decree, of date June 30, 1924, was rendered. The supplemental decree of date January 27, 1925, reflects by recitals therein that the rights and interests of all the parties to the suit, including the rights and interests of appellants and appellees herein, were ascertained and determined, but, in ascertaining and determining same, the court made a mistake as to the correct interest to which each was entitled. According to the recitals of the decree of date May 5, 1925, quoted above, the original pleadings in the partition suit and the testimony therein were before the court, which formed a basis for the finding in said decree that the several interests of all the parties in the lands involved were correctly ascertained and determined in the original decree of date June 30, 1924.

We have searched the transcript for the pleadings and testimon3r upon which the original decree was based, but are unable to find that same were incorporated therein. The transcript contains the proceedings beginning with and including the supplemental decree rendered on January 27,. 1925. The omission from the transcript of the original pleadings and testimony makes it impossible for us to determine what the issues were in the original suit, except as reflected by the recitals in the supplemental decree of date January 27, 1925, and the decree of date May 5, 1925. These recitals, as stated above, show that the original suit was one in partition, and that the interests of all the parties -to the lands involved were ascertained and determined. It is the statutory duty of courts in partition suits, to ascertain and determine the interests of all parties in the lands and tenements sought to be divided and to decree a partition in accordance with the rights of each thus ascertained. Section 8100, C. & M. Digest.

It follows from what has been said that the original decree, which fixed the interests of the several parties in the lands involved, became final and binding upon appellants and appellees herein with the lapse of the term of court on the first Monday in September, 1924. The only method by which the decree could have been modified or set aside, after the lapse of the term at which same was rendered, except for fraud in the procurement of same, is the method provided in § 6290 of Crawford & Moses’ Digest. The motion filed to modify the decree did not embrace any of the grounds contained in said section for modifying and vacating judgments. The supplemental decree therefore of date January 27, 1925, changing the several interests of appellants and appellees in said lands as ascertained and determined in the original decree of date June 30, 1924, was rendered without authority in law, and void. Brady v. Hamlett, 33 Ark. 105; Kersh v. Lincoln County, 36 Ark. 589; Robinson v. Citizens’ Bank, 135 Ark. 308, 204 S. W. 615.

The supplemental decree, of date January 27, 1925, was void, so it was within the continuing and inherent power of the court, after the lapse of the term at which rendered, to set it aside as a nullity. A court has the right to say at any time that a void decree is no decree at all. Bobo v. State, 40 Ark. 224; Jackson v. Becktold Printing & Book Manufacturing Co., 86 Ark. 591, 112 S. W. 161, 20 L. R. A., N. S., 415; State v. West, 160 Ark. 413, 254 S. W. 828.

No error appearing, the decree is affirmed.


author: McCulloch, C. J.

text:
    Fretwell v. Nix.
    Opinion delivered November 29, 1926.
    1. Mortgages — effect of deed subject to mortgage lien.. — Where a deed recited that it was “subject to a mortgage lien,” but not an assumption of the mortgage debt by the grantees, the acceptance of the deed did not impose liability on the grantees for the payment of such debt.
    2. Deeds — merger of previous contract. — The original contract for . the exchange of properties is deemed merged in the deed consummating the trade; the execution and acceptance of the deed being presumed to represent the final agreement of the parties.
    3. Evidence — sufficiency to overcome recitals in deed. — Proof to overcome recitals in a deed as to the consideration thereof must be .moré than a mere preponderance of the evidence.
    Appeal from White Chancery Court; John E. Martineau, Chancellor;
    affirmed.

      John E. Miller and Culbert L. Pearce, for appellant.

      Bnmdidge £ Neelly, for appellee.
   McCulloch, C. J.

Appellants, J. A. Fretwell and his wife, Sallie Fretwell, were the owners of- certain farm lands in White County, Arkansas, and appellees, J. P. Nix and J. W. McCuen, were the owners of certain real estate in Sebastian County, and on September 1, 1923, these parties entered into a written contract for exchange of said properties. The contract recited that appellants agreed to sell to appellees the farm property in White County for the following consideration:

‘£ Thirty thousand dollars, sixteen thousand, to. be paid as follows: $12,500 mortgage to the Oklahoma Farm Mortgage Company and $750 interest on the east half of section 11, and all of section 2, except 97 acres in the northwest quarter, and a mortgage of $2,500, together with $250 interest, on the balance of the above-mentioned land. And $14,000 to be paid by a warranty deed to lot 21 in block 22, Main Addition, subject to $1,500 loan, and lot 2, block 538, Reserve Addition, subject to $1,700 loan, and lots 56 and 57 in Randolph Place, subject to $1,100 loan, and lot 16 in block C, Sulphur Springs Addition, all in city of Fort Smith, Arkansas; and lot 13 in block 5 in South Fort Smith Addition to South Fort Smith, Arkansas; and lots 8 and 9 in block 1, Weaver’s Addition to Huntington, Arkansas; and one concrete stuccoed double office building- in Hartford, Arkansas, known as the A. M. Dobbs property, subject to a $500 mortgage in favor of W. L. Roberts.”

It appears from the pleadings and proof in this case that the mortgage debt of $2,500 and the $250 interest referred to in the contract was to the Arkansas Bank & Trust Company, a hanking institution at Newport, Arkansas. Abstracts of title were submitted by the respective parties, and there was considerable correspondence and personal negotiation concerning the consummation of the trade, and, after a time, appellees refused to comply with the contract. Appellants executed and tendered a deed conveying the property which they had undertaken in the contract to convey,, except four acres of the land, which was expressly reserved from the operation of the conveyance. The deed did not recite an assumption of the mortgage debts by appellees, but contained a recital of consideration of “the sum of $5,000 and exchange of other property,” and also a recital that the conveyance was “ subject to a mortgage lien in favor of the Oklahoma Farm Mortgage Company for $12,500, and $750 accumulated interest,” and “subject to a mortgage lien in favor of Arkansas Bank & Trust Company of Newport, Arkansas, for $2,500, and $250 accumulated interest.” The mortgage to the Arkansas Bank & Trust Company covered only a portion of the lands conveyed.

Appellants instituted an action against appellees in the Sebastian Chancery Court to compel specific performance of the contract, and, during the pendency of that action, appellees accepted the deed tendered by appellants and executed to appellants a deed conveying the Sebastian County property specified in the original contract. That ended the litigation in the Sebastian Chancery Court. Appellees failed to pay the mortgage debt to the Arkansas Bank & Trust Company, and appellants instituted this action in the chancery court of White County against appellees and against the Arkansas Bank & Trust Company to compel the latter to foreclose the mortgage on the lands conveyed therein and also to recover from appellee any deficiency in the amount of the debt after crediting the proceeds of the foreclosure sale. The Arkansas Bank & Trust Company appeared and filed a cross-complaint praying for a foreclosure of the mortgage, and a decree was rendered in its favor, with personal judgment against .appellants, and a sale by commissioner was ordered by the court. In the decree thus rendered the court reserved for further consideration the claim against appellees for the deficiency. The sale was made by the commissioner, and Arkansas Bank & Trust Company purchased the property for the price of $1,500, which was credited on the personal judgment against appellants. The sale was duly confirmed and deed made, and subsequently there was a trial of the cause on the question of personal liability of appellees for the deficiency. It was alleged in thq complaint that appellees assumed liability for all of the mortgage debts referred to in the original contract and in the deed. Appellees answered, denying that they had agreed to assume and pay the debts, and alleged that they had purchased appellants’ equity in the property, subject to the mortgage debts. The court rendered a final decree dismissing the complaint of the appellants, Fretwell and wife, and the cross-complaint of appellant Arkansas Bank & Trust Company, and an appeal has been duly prosecuted to this court.

It is the contention of appellants that they are entitled to recover against appellees under the terms of the original contract. The argument is that the recital in the contract of the several items of mortgage indebtedness as a part of the consideration for the exchange of properties renders appellees personally liable for those debts. It is clear that, under the terms of the deed, there was no assumption of the mortgage debts, the conveyance being merely subject to those debts, and that the acceptance of the deed did not impose liability on appellees for the payment of the debts. Patton v. Adkins, 42 Ark. 197; Felker v. Rice, 110 Ark. 70, 161 S. W. 162. It is, however, the further contention of appellants that, under the doctrine announced by the court in the case of J. H. Magill Lumber Co. v. Lane-White Lumber Co., 90 Ark. 426, 119 S. W. 822, and other cases, they are entitled to recover upon proof of any additional consideration not expressly recited in the deed. The answer to this contention is that the original contract became merged into the deed consummating the trade, and the execution and acceptance of the deed is presumed to represent the final agreement of the parties. Conceding that appellees should be permitted to prove an additional consideration, i. e., an agreement to assume and pay the mortgage debt, the proof is not sufficient to overcome the presumption arising from the recital of the consideration in the deed. The proof is in conflict with the recitals in the deed, and must, in order to prevail, be more than a mere preponderance of the evidence. Vaugine v. Taylor, 18 Ark. 65; J. H. Magill Lumber Co. v. Lane-White Lbr. Co. supra. The language of the deed was selected by the grantors, and it is fair to assume that they adopted the language which expressed the contract in accordance -with their conception of its terms. There was a controversy between the parties as to the performance of the contract, and. it was only after litigation had begun that appellees agreed to accept the conveyance which was executed by appellants on September 22, 1923, but not delivered to appellees until December 24, 1923, and the delivery and acceptance of the deed was in settlement of the pending litigation in the Sebastian Chancery Court. There is no proof in the record of an agreement at that time that'there should be any other consideration except that expressed in the deed itself, and appellants rely entirely upon the original contract as proof of that agreement. But, as we have already stated, the original contract was merged in the deed, which is presumed, until the contrary appears, to completely recite the agreement of the parties in consummating the trade. Moreover, there is testimony in the record, adduced by appellees, tending to show that there was no intention, at the time of the consummation of the trade, to perform the original contract, for the reason that the four acres of land omitted from the deed contained the house and barn on it, and that another tract of seventeen acres was under two mortgages, and that this constituted the reasons that appellees had for refusing to comply with the original contract.

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


author: Wood, J. Hart, J.,

text:
    Gavin v. Scott.
    Opinion delivered November 29, 1926.
    1. Fraudulent conveyances — presumption in case op insolvency. —The rule that a voluntary conveyance hy an embarrassed debtor to members of his family is prima, facie fraudulent, and that when the debtor’s embarrassment proceeds to financial wreck the pre- . sumption is conclusive as to existing creditors, does not apply in the case of subsequent or secured creditors.
    2. Fraudulent conveyances — secured creditors. — A secured creditor of an embarrassed debtor is in the same category, in regard to voluntary conveyances by the debtor to his family, as subsequent creditors, since it will be presumed that secured debts will be fully paid by resort to the security, and any deficiency on foreclosure will be treated as a subsequent debt.
    3. Fraudulent conveyances — existing unsecured creditors. — A conveyance by a debtor to his wife and children which left him insolvent is conclusively fraudulent as to unsecured creditors existing at the time of the conveyance.
    Appeal from Yell Chancery Court, Dardanelle District; W. E. Atkinson, Chancellor;
    reversed.

      John M. Parker, for appellant.

      Herbert C. Scott and Sam Bor ecu, for appellee.
   Wood, J.

On January 5, 1918, Gleason Brothers executed a note to John Gavin in the sum of $418.40, with interest thereon at the rate of ten per cent, per annum until paid. John Gavin died, and W. L. Gavin was appointed administrator of his estate. On the 13th of September, 1923, the administrator recovered judgment against J. EL and W. J. Gleason, members of the firm of Gleason Brothers, in the sum of $657.30. Long prior to this time, to-wit, on the 6th of April, 1921, J. H. Gleason executed to Nancy C. Gleason, his wife, Jerry G., Luther EL, Floy, and George G. Gleason, his children, a deed to 455.74 acres of land in Yell County, Arkansas, and also a part of a block in the town of Dardanelle, Yell County, Arkansas. The deed recites that it was executed for a consideration of $1 and love and affection.

On the 13th of November, 1923, this action was instituted by W. L. Gavin, administrator of the estate of John Gavin, deceased, against the estate of J. EL Gleason and the widow and children of J. El. Gleason, to set aside the above deed and also a deed of Nanny C. Gleason, dated' January 31, 1922, to Jerry G. Gleason. EL C. Scott was appointed administrator ad litem for the estate of J. EL Gleason and guardian ad litem for the minor children. Et was alleged in the complaint that these deeds were voluntary conveyances, and that they were fraudulent and void as against the judgment in favor of the estate of John Gavin. An amendment was later filed to the complaint in which it is alleged that an execution had been issued on the above judgment and placed in the hands of Joseph Gault, sheriff of Yell County, and that the sheriff had failed to levy such execution prior' to the death of J. H. Gleason, and, after such death, that the sheriff declined to levy on the lands described in the original complaint. The plaintiff prayed that the sheriff be made a party and that an order be issued commanding him to levy on the lands described in the complaint. An answer was filed by the administrator ad litem of the Gleason estate and as guardian ad litem for the minor heirs of J. H. Gleason. The execution of the deed in controvérsy was admitted, but the defendant denied that it was fraudulent and void as to the plaintiff. The defendant Gault answered and alleg*ed that he did not levy the execution on the lands put in his hands by the attorney for the plaintiff for the reason that, upon investigation, he ascertained that these lands had been deeded to other persons, and that the record showed that the lands were not the property of the defendant in the execution, and for the further reason that the defendant in execution had died after the execution came into his hands.

The plaintiff introduced a certified copy of the judgment mentioned in the complaint and the deed in controversy. Gault testified that he was the sheriff of Yell County, "and that he made the return on the execution placed in his hands by the plaintiff’s attorney, “that no property clear of mortgage was found in the name of J. H. Gleason upon which to levy the same.” As far as he was able to find from the records, J. H. Gleason, at that time, was insolvent. Gleason lived two or three days after he received the execution. He had been sick for two years before that time. We deem it unnecessary to set out all the testimony bearing upon the issue as to whether or not J. H. Gleason was insolvent at the time the deed in controversy was executed. It suffices to say that the uncontroverted proof shows that, at the time this deed was executed, the firm of which Joseph. H. Gleason was a member had contracted debts, and, among them, the debt to John Gavin, the foundation of this action, which had not been paid. An action had been instituted to foreclose a mortgage on one of their debts in the sum of more than $9,000, and there were also other debts, unsecured, outstanding at that time. Efforts, at that time, had been made and were being made to cob lect the debt to John Gavin, but without success. J. H. Gleason offered to pay one-half of the note if he could be released from liability for the other half. Thus the note, at the time of the execution of the deed in controversy, remained unpaid.

While there was testimony on the part of the defendants tending to show that, at the time the deed in controversy was executed, J. H. Gleason had sufficient assets to pay all of his indebtedness, nevertheless the debt in controversy was not paid-, and the execution of this deed left J. H. Gleason without sufficient property to pay the debt to John Gavin. His own son testified that there was no unincumbered land belonging to the estate of J. H. Gleason; that there was no unincumbered personal property belonging to the estate, and no personal property belonging to the firm of Gleason Brothers, and none belonging to the firm of J. H. Gleason & Son. “He (J. H. Gleason) didn’t have any estate at the time of his death,” says the witness. It thus appears that J. H. Gleason, at the time of the execution of the deed in controversy, was an embarrassed debtor. The debt his firm owed to John Gavin was at that time an existing indebtedness. The debt had been contracted by the firm of Gleason Brothers in 1918. By the execution of this deed, as is shown by the undisputed testimony, J. H. Gleason rendered himself wholly insolvent.

In Wilks v. Vaughan, 73 Ark. 179, 83 S. W. 915, we said: “It is thoroughly settled in equity jurisprudence that conveyances made to members of the household and near relatives of an embarrassed debtor are looked upon with suspicion and scrutinized with care, and when they are voluntary they are prima facie fraudulent, and when the embarrassment of the debtor proceeds to financial wreck they are presumed conclusively to be fraudulent as to existing creditors. ’ ’ Other cases announcing the doctrine are McConnell v. Hopkins, 86 Ark. 225, 110 S. W. 1039; Brady v. Irby, 101 Ark. 573, 142 & W. 1124, Ann. Cas. 1913E, 1054; Papan v. Nahay, 106 Ark. 230, 152 S. W. 107; Simon v. Reynolds-Davis Gro. Co., 108 Ark. 164, 156 S. W. 1015; Burke v. New England National Bank, 132 Ark. 268, 200 S. W. 1018; Farmers’ State Bank v. Foshee, 170 Ark. 445, 280 S. W. 380.

The above rule does not apply in favor of subsequent creditors, nor creditors whose debts, at the time of the conveyance, are secured. The latter are in the same category as subsequent creditors, for the reason that it will be presumed, and must be assumed, that creditors whose debts are secured will be fully paid when their security is resorted to, and, if there be a deficit, this is treated as in the same attitude as a subsequent debt. Home Life & Accident Ins. Co. v. Schichtl, ante p. 31.

Gavin’s debt was unsecured, and he was an existing creditor at the time of the conveyance in controversy, and the undisputed testimony shows that Gleason, at the time of the conveyance, even if not insolvent, was an embarrassed debtor, and the conveyance rendered him thereafter wholly insolvent. Therefore the court erred in not holding that the conveyance in controversy was conclusively fraudulent as to Gavin. The decree is reversed, and the cause is remanded with directions to the trial court to enter a decree setting aside the conveyance, in so far as it affects the rights of Gavin, and to subject the property conveyed to the payment of his judgment, and for such other and further proceedings as may be necessary, according to law and not inconsistent with this opinion.

Hart, J.,

(dissenting). It seems to me that much confusion will result from the application of the rule in the Wilks v. Vaughan case to the facts in the case at bar, and that of the Home Life & Accident Co. v. Schichtl.

As I understand the rule in the Wilks-Vaughan case, there is a conclusive presumption of fraud as to existing creditors if the grantor, at the time, is greatly embarrassed or so largely indebted that his conveyance necessarily has the effect to hinder and delay creditors. This seems to be the interpretation placed upon it in the present case, but the application seems to be wholly at variunce with that in the Schichtl case.

In the present case, the voluntary conveyance was made more than two years prior to the rendition of the judgment sought to be enforced against the debtor. The conveyance was held to be fraudulent because it necessarily had the effect to hinder and defraud existing creditors. In the Schichtl case, the conveyance was made only seven days before the rendition of the judgment against the debtor, and his embarrassment proceeded to financial wreck just as soon as his property could be sold under the foreclosure decree. The court in that case seems to have proceeded upon the theory that, in addition to showing that the conveyance was a voluntary one and that the party seeking to impeach it was at the time a creditor of the grantor, the additional fact of insolvency at the time must be shown. In other words, that the conveyance necessarily had the effect to hinder and defraud existing creditors in the collection of their debts was not sufficient. But it is insisted that, because the creditor in the Schichtl case had a mortgage on certain-lands of the grantor, who made the voluntary conveyance, this placed him -in the attitude of a subsequent creditor.

As it appears from our dissent in the Schichtl case, this holding is directly opposed to the rule announced in the Mallory case, and there has been no express overruling of the latter case. There mig*ht be some reason in holding that a mortgagee whose mortgage is not due should be considered in the nature of a subsequent creditor where the debt is shown to be fully secured by the mortgage, for then the debtor might be in the same condition legally as if he were free from debt. To my mind, the case it quite different where the mortgagee is seeking to foreclose his mortgage and thereby collect his mortgage debt. In such a case the mortgagee is trying by every means available to him to collect a past-due indebtedness, and should be considered an existing creditor. If I am correct in my reasoning in the matter, a contrary or different application has been made of a settled principle of equity in these two cases which calls for a dissent on my part in this case because the application is different from that made by the majority in the Schichtl case.


author: Hart, J.

text:
    Hight v. State.
    Opinion delivered November 29, 1926.
    1. Robbery — sufficiency of evidence. — In a prosecution for robbery, evidence held sufficient to authorize a conviction of assault with intent to rob.
    2. Robbery — conviction of assault. — Under Crawford & Moses’ Dig., § 3211, one indicted for robbery may be convicted of an assault with intent to rob.
    3. Criminal law — cautionary instructions. — While the courts have a large discretion in advising a jury, which reports that they are unable to agree upon a verdict, of the importance of rendering a verdict, the court must be careful not to express an opinion upon the facts nor to attempt to coerce the jury.
    "4. Criminal law — cautionary instruction. — In a criminal prose-" cution, a cautionary instruction advising the jury that the litigation was expensive to the State and the defendants, was not error as tending to cause the jury to return a verdict against the defendants.
    Appeal from Crawford Circuit Court; James Cochran, Judge;
    affirmed.

      Jolvn B. Hiner and John D. Arbuclde, for appellant.

      H. W. Applegate, Attorney General, and John L. Carter, Assistant, for appellee.
   Hart, J.

Harry Hight and John Holstein prosecute this appeal to reverse a judgment of conviction against them for the crime of assault with intent to rob.

The first assignment of error is that the evidence is not legally sufficient to warrant the verdict.

Alfred Eaton was the principal witness for the State. According to his testimony, he lived in Memphis, Tennessee, and was nineteen years of age when he went to work in the harvest fields in the West. On his way home he traveled by freight train, and met John Holstein and Leonard-Marts in Kansas, and, when they got to Oklahoma, they met Harry Hight. When the witness left Kansas, he had $14.72. When he reached Greenwood Junction, Oklahoma, he had $5 in his pocket.' He had been shoveling coal, and the fireman told him to get out of the engine and go back where the rest of the boys were. When he got back there, Marts told him to get off, and kicked him twice. Then John Holstein, Harry Hight and Leonard Marts seized him, and two of them held him while the other one searched him and got the five-dollar bill. He does not know which one of them took the money from his purse. Another witness testified that Greenwood Junction is at the State line between Arkansas and Oklahoma, and that the train upon which the boys were riding was going into Crawford County, Arkansas,

Leonard Marts, John Holstein and Harry Hight were all witnesses in the case. They denied that they robbed Eaton or that they assaulted him with intent to rob him. Evidence was also adduced by the defendants tending to show that they were of good character.

The jury was the judge of the credibility of the witnesses, and, if they believed the testimony of Eaton to be true, they could have found the defendants guilty of robbery. This is conceded by counsel for the defendants, but they contend that, under the evidence, the jury must have found the defendants guilty of robbery or nothing. We do not agree with this contention. According to the testimony of the defendants and of Marts, Eaton did not have any money, and they had been buying him something t'o eat while on the train. The jury might have given credence to this much of their testimony, and still might have rejected that part of it in which they testified that they did not attempt to rob Eaton, and might have believed the testimony of Eaton to this extent.

Again, it does not follow that the action of the jury in finding the defendants guilty of assault with intent to rob instead of robbery was prejudicial to them. As the jury found the defendants guilty of the lesser offense, they cannot complain. The defendants were indicted for robbery, and, under § 3211 of Crawford & Moses ’ Digest, an offense includes an attempt to commit the offense. In the construction of this statute it has been held that, under an indictment for murder, the accused may be convicted of an assault with intent to kill, provided the indictment contains all the substantive allegations necessary to let in proof of the inferior crime. Davis v. State, 45 Ark. 464. It has also been held that an indictment for rape of a female under the age of sixteen years will sustain a conviction of carnal abuse. Henson v. State, 76 Ark. 267, 88 S. W. 965. In State v. O’Keefe, 23 Nev. 127, 43 P. 918, 62 A. S. R. 768, it was held that, under a statute providing that the jury may find the accused guilty of any offense necessarily included in that with which he is charged, or an attempt to commit the offense, one charged with robbery may be found guilty of an attempt to rob. In Harris v. State, 170 Ark. 1073, 282 S. W. 680, it was held that, where the State’s evidence in a prosecution for' murder in first degree tended to prove that defendant killed an officer while attempting to arrest defendant engaged in perpetrating larceny, and defendant’s evidence was to the effect that he was not engaged in perpetrating larceny, but shot deceased in self-defense, it was not error to submit to the jury the lower degrees of homicide.

In the application of this rule to the case at bar, if it should be conceded that the evidence showed the defendants to be guilty of robbery or nothing, still no prejudice would result to them from submitting to the jury an instruction with regard to assault with intent-to rob, Rogers v. State, 136 Ark. 161, 206 S. W. 152.

The next assignment of error is that the court erred in giving a cautionary instruction to the jury. We do not agree with counsel in this contention. We have frequently held that trial courts have a large discretion in advising a jury, which reports that they are unable to agree upon a verdict, of the importance to the State and to thé defendant of reaching an agreement where they can do so by a fair interchange of arguments. Of course, the court must be careful not to express an opinion upon the facts or to attempt in any wise to coerce the jury. We shall not set out the cautionary instruction in this case, on account of its length, and we again advise trial courts of the care they should exercise in giving such instructions, lest, by inadvertence, they say something to the jury which would be likely to coerce them or be taken as an expression of opinion upon the facts by the court. Stepp v. State, 170 Ark. 1061, 282 S. W. 684; Nelon v. Nelon, 171 Ark. 505, 284 S.W. 743.

It is claimed, however, by counsel for the defendants, that the cautionary instruction in this case is erroneous because the court told the jury that the litigation was expensive to the State and to the defendants, and, for that reason, it was important for the jury to reach a verdict. In 11 Enc. of Pl. & Pr., p. 305, it is said, among other things, that the trial court may urge, as a reason for agreeing on a verdict, the time and expense involved in the trial and the time and expense which a new trial would entail. Several eases from courts of last resort are cited in support of the text. In most of these cases it has been insisted that the language of the court was calculated to impress upon the jury the-necessity of agreeing, to save costs to the State, and, on this account, was prejudicial to the defendant. It has been generally held that the language is only an expression of opinion by the court that it was for the best interest of the parties and would save cost to the loser if a verdict should be reached. It has generally been said that the element of expense is not thereby injected into the case as a proper matter to influence the jury to agree upon a verdict, but is intended merely to impress upon the jury the advisability of a new effort to decide the case according to the law and evidence.

It is next insisted by the counsel for the defendants that advising the jury that the litigation was expensive to the defendants might cause it to return a verdict against them. We do not think the language could have this effect. It might, if it had any effect, be as effective in inducing the .jury to acquit the defendants as to convict them. Hence we hold this assignment of error is not well taken.

We find no reversible error in the record, and the judgment will therefore be affirmed.


author: Hart, J.,

text:
    Tatum v. State.
    Opinion delivered November 29, 1926.
    1. Homicide — murder—specific intent to kill. — In a prosecution for murder a specific intent to take life is necessary to a conviction of murder, and in determining- the existence of that intent the jury should consider the manner of the assault, the nature of the weapon used, the manner in which it was used, the statement of the defendant, and all the facts and circumstances tending to show his state of mind.
    2. Homicide — specific intent. — The specific intent to kill, necessary in commission of murder, need not have existed for any appreciable length of time.
    3. Homicide — malice.—In a prosecution for murder, malice may be inferred from the fact that a murderous assault was committed with a knife, in connection with other circumstances.
    4. Homicide — abusive or insulting words. — Mere words, however abusive or insulting, cannot reduce a homicide from murder to manslaughter.
    5. Homicide — condition of mind. — The only way to determine the condition of mind of another at the time of a killing by him is to judge from the attending circumstances.
    6. Homicide — malice question for jury. — The question of the presence or absence of malice at the time of a killing is for the jury, when there is any evidence to support their finding.

      7. Criminal law — weight op evidence. — The jury are the judges of the weight of the evidence.
    8. Criminal law — sufficiency of evidence. — In reviewing a verdict the sufficiency of the evidence must be viewed in the light most favorable to the State.
    9. Criminal law — credibility of witnesses. — The jury are the judges of the credibility of witnesses, and may accept a part of a witness’ testimony and reject a part believed to be false.
    10. Homicide — instruction as to threats. — An instruction in a murder case not to consider threats if deceased was making no attempt to kill or do great bodily harm to defendant “as viewed from the standpoint of the defendant at the time acting without fault or carelessness on his part” held correct, in view of other instructions which submitted the question of the appearance of danger to the defendant.
    Appeal from Lafayette Circuit Court; James E. McCollum, Judge;
    affirmed.
    STATEMENT OF FACTS.
    Lee Tatum was indicted for murder in the first degree, charged to have been committed by stabbing A. Brittenberg with a knife.
    It appears from the record that Lee Tatum and A. Brittenberg had a lawsuit about a tract of land, and came to Stamps, Lafayette County, Arkansas, for the purpose of tailing depositions in the case. They met on the streets, and Tatum stabbed Brittenberg with a knife which resulted in his death in fifteen or twenty minutes. Thus far the facts are undisputed.
    According to the testimony of C. W. Hamm, he saw Lee Tatum and Newt Aldridge sitting on an iron step about a foot high which extended out in front of a drugstore in the town of Stamps. The witness saw Brittenberg walking towards them. He their turned away, and his attention was attracted by hearing somebody scuffling. He looked around, and noticed Brittenberg advancing towards Tatum with his hands up (he was advancing towards Tatum as the latter came out from behind the offset made by the iron step extending out in front of the store). He saw the defendant make a stab at Brittenberg, and the latter threw up his hands and hoilowed “Oh!” He then put his hands to his side and leaned over. When he took his hands away from his side, the blood gushed to the sidewalk. Within fifteen or twenty minutes he died.
    Two other witnesses testified to practically the same state of facts. They said that Brittenberg was pushing the defendant when the latter stabbed him. One of them said that the blood poured out of Brittenberg’s body when he was stabbed.
    Charlie McGill was also a witness for the State. According to his testimony, he saw the difficulty, and was not more than twenty feet from the scene of the difficulty when it occurred. He was asked to tell the jury what he saw, and answered as follows: “Well, I first noticed just a scuffle, and I didn’t think it was much of a fight. They were just ruffling hands, and Brittenberg kindo’ pushed Tatum back, and, as he did, why, Tatum took another step back, pushed against the drugstore door, and at the same time he was reaching for his right-hand back pocket for a knife, and just one step was made off that step of the drugstore, and, when he did, there was one strike, and Brittenberg tried to defend that.”
    On cross-examination he was asked if Brittenberg did not have his hands doubled up just before he tried to throw his hands up, and replied that he did not see them doubled up. He further stated that he did not see Brittenberg hit Tatum, but did see him push him. Brittenberg was seventy-three years of age at the time he was killed.
    According to the testimony of Newt Aldridge, Brittenberg passed by the drugstore where the witness and the defendant were sitting, and shook hands with the witness. Brittenberg then turned to Tatum and said: “Mr. Tatum, I am not your friend. I won’t shake hands with you. ’ ’ Mr. Tatum turned to Brittenberg and said: “I don’t want no friendship from no such son-of-a-bitch as you are.” Brittenberg then said: “I won’t take that, Tatum, at all.” Tatum began getting up, and Brittenberg hit him and knocked him up against the screen door of the drugstore. Tatum, caught on his hands as he was knocked against the door, and, when he got up, he took his knife out of his pocket. The witness told Brittenberg not to advance on Tatum, that he would cut him. Brittenberg made a step, and a short step, towards Tatum. He stooped a little bit and had his hands in the motion of boxing. Tatum then struck him with his knife. Brittenberg weighed somewhere between 175 and 200 pounds. He was a well-preserved man and skilled -in boxing. The witness saw him knock out two boys with whom he was boxing.
    The defendant was a witness for himself, and, according to his testimony, he stabbed the deceased with his knife in order to prevent him from doing him great bodily harm. Brittenberg had knocked him down one time and was advancing upon him in a threatening position when he stabbed him. The defendant admitted that he had sharpened his knife on the day before the killing, but said he did so because he had dulled it in cleaning some fish a few days before.
    The jury returned a verdict of guilty of murder in the second degree, and fixed the punishment at ten years in the penitentiary. From the judgment and sentence of conviction the defendant has duly prosecuted an appeal to this court.

      Steve Carrigan and McKay S Smith, for appellant.
    H. W. Applegate, Attorney General, and John L. Garter, Assistant, for appellee.
   Hart, J.,

(after stating the facts). It is earnestly insisted by counsel for the defendant that the evidence is not legally sufficient to support the verdict. This court has held that, in a prosecution for assault with the intent to kill, it is necessary to show a specific intent to take life under such circumstances that, if death ensues, the accused would be guilty of murder in the first or second degree. It was also held that, in determining whether or not such intent existed, the jury should take into consideration the manner of assault, the nature of the weapon used, the manner in which it was used, the statement of the defendant, and all facts and circumstances tending to show his state of mind. Clardy v. State, 96 Ark. 52, 131 S. W. 46, and Davis v. State, 115 Ark. 566, and cases cited.

"While there must have been a specific intent to take life, it need not have existed for any appreciable length of time, and malice could have been inferred from the fact that a murderous assault was committed with a knife in connection with the other attendant circumstances. Green v. State, 51 Ark. 189; Ferguson v. State, 92 Ark. 145.

In Keirsey v. State, 131 Ark. 487, 199 S. W. 532, it was held that mere words, however abusive or insulting, cannot reduce the degree of homicide from murder to manslaughter.

In Stepp v. State, 170 Ark. 1061, 282 S. W. 684, the court said that, inasmuch as no one can look into the mind of another, the only way to decide upon its condition at the time of the killing is to judge from the attending circumstances, and that the question of the presence or absence of malice at the time of the killing is for the jury, when there is any evidence to support its finding, because the jury is the judge of the weight to be given to the evidence, in deciding its legal sufficiency to support a verdict, it must be viewed in he light most favorable to the State.

We have set out the substance of the evidence, and need not repeat it here. In arriving at its verdict, the jury was not required to accept or reject the whole of the testimony of any witness. The undisputed evidence shows that bad blood existed between the defendant and the deceased on account of a lawsuit between them about some land. They had come to Stamps, where the killing occurred, for the purpose of taking depositions in the case. The deceased passed a drugstore where the defendant and Newt Aldridge were sitting on an iron step in front of it. He shook hands with Aldridge, and refused to shake hands with the defendant, saying, in substance, that he was not his friend. The defendant replied by applying a vile epithet to the deceased. It is true that, according to the witnesses for the State, the deceased first pushed the defendant back; but the .jury might have inferred that the defendant called the deceased a vile name for the purpose of causing a row, .and had the intention of stabbing him with a knife and killing him if the deceased tried to fight - him with his fist. He knew that the deceased had some skill in boxing, and that he was seventy-three years of age. While the deceased was a large man, the defendant might have thought that, on account of his advanced age, he might not be able to harm him, but, on account of his skill in boxing, he might claim that he cut deceased in order to keep from receiving great bodily harm at his hands. At least these were legal inferences which the jury might have drawn from the testimony.

The jury was the judge of the credibility of the witnesses, and might accept such portion of the testimony of any particular witness which it believed to be true and reject that part which it believed to be false. When the testimony is viewed in the light most favorable to the State, the jury might have inferred that Tatum was angered at the deceased and intended to raise a quarrel with him and to stab him and kill him if he should advance upon him. In reaching this conclusion, the jury might take into consideration the character of the wound, the fact that it caused death in fifteen or twenty minutes, and the further fact that the defendant sharpened his knife on the day before, at a time when he knew that he would meet the deceased in Stamps, where they were to take depositions in a pending lawsuit. It is true that the deceased first addressed the defendant by saying that he would not shake hands with him because he was not his friend. In the first place, there was nothing in the language used which was insulting; but, even if it should be so construed, as we have already seen, words, however insulting, are not sufficient to reduce a homicide from murder to manslaughter. It follows that we are of the opinion that the evidence is legally sufficient to warrant the verdict.

It is next insisted that the court erred in giving instruction No. 15, at the request of the State. The instruction reads as follows: “You are instructed that the only purpose for which proof of threats is admissible is to throw light on the state of mind of the defendant at the time he struck the fatal blow, and to show who was the probable aggressor, and if you believe, from the evidence as explained in these instructions, that the deceased was not making any attempt to kill the defendant or do him great bodily harm, as viewed from the standpoint of the defendant, acting as a reasonable man, you will not consider threats, even if proved, for any purpose; and in this connection you are told that threats alone, however violent, would not justify an assault or afford provocation for a homicide.

Couiisel for the defendant specifically objected to that part of the instruction which makes the defendant view the facts as a reasonable man and because of reading “as viewed from the standpoint of the defendant acting as a reasonable man,” instead of “as viewed from the standpoint of the defendant at the time, acting without fault or carelessness on his part.” We do not think the objection of counsel to the instruction is well taken. There is nothing in the testimony itself to show that the defendant was not a reasonable man or a man of ordinary intelligence. The question was narrowed down to whether, under the circumstances of the case, the attitude of the deceased, as described by the witnesses, was of itself sufficient to create in the mind of the defendant, as a reasonable man or a man of ordinary intelligence, a bona fide belief that the danger to him was imminent, and that the action which he took was necessary for the purpose of protecting himself from loss of life or the infliction of great bodily injury. If a man of ordinary intelligence, or a reasonable man under the same circumstances, would not have believed the danger to have been real, then the defendant cannot he said to have been justified in Ms action. In several other instructions given to the jury the court submitted the appearance of danger to the defendant, in accordance with the rules of law laid down in our previous decisions. When the instructions are considered and read as a whole, we cannot see how the jury could have been misled by the instruction in question or could have thought that it referred to any other time than the time of the killing. Branscum v. State, 134 Ark. 66, 203 S. W. 12, and Sullivan v. State, 17 Ark. 768.

It is next insisted that the court erred in refusing to give instruction No. 12, requested by the defendant, which reads as follows: “You are instructed that, if you believe from the evidence that the deceased had made threats of physical violence against the defendant, and that these threats had been previously communicated to the defendant, and that the deceased came up to where the defendant was sitting in the door of the store at Stamps, and struck the defendant, and that the acts and conduct of the deceased at the time were such as to lead the defendant to believe that the deceased was about to put his threats into execution, and that it honestly appeared to the defendant, acting on the facts and circumstances as they appeared to him from his standpoint at the time, without fault or carelessness on his part, that it was necessary to stab and kill the deceased to prevent him from taking his life or doing him serious bodily injury, then you are instructed that the defendant would be .justified in so acting, and you should return a verdict of not guilty for the defendant.”

The evidence on the part of the defendant showed that the deceased had made previous threats against the defendant and that the persons to whom the threats had been made communicated them to the defendant. The court, in other instructions, however, instructed the jury that it might consider such threats in determining who was the aggressor at the time the killing occurred. The court was not required to multiply instructions upon the same phase of the case. The respective theories of the State and of the defendant were fully and fairly submitted to the jury in the instructions given by the court. We have examined these instructions carefully, and find no reversible error in them.

It follows that the judgment must be affirmed.


text:
    H. Rouw Company v. Kansas City Southern Railway Company.
    Opinion delivered November 29, 1926.
    I. Carriers — delay in shipment- — justification.—A carrier is not justified in delaying a shipment under a diversion order because a through rate could not be obtained where the order for diversion was not made conditional on obtaining such rate.
    2. Carriers — delay in shipment — damages.—The damage for unreasonable delay in shipment of goods is the difference between the market value of the goods at the time and place when and where they should have been delivered and the value when they were delivered, with interest.
    Appeal from Sebastian' Circuit Court, Fart Smith District; John E. Tatimi, Judge;
    reversed.
    STATEMENT BY THE COURT.
    The H. Rouw Company sued the Kansas City Southern Railway Company to recover damages fo'r alleged negligent delay in an interstate shipment of apples.
    According to the testimony of J. L. Cannon, who was the agent for the plaintiff in the transaction, he shipped a car of apples from Gentry, Arkansas, to Dallas, Texas. The car of apples was consigned to the plaintiff with directions to notify the Texas Produce Company at Dallas, Texas. On the arrival of the apples at Dallas, Texas, they were examined by the Texas Produce Company, which refused to accept them at the price offered, but offered to take them at a reduced price. The plaintiff refused to accept the reduced price, and, on September 7, 1923, returned the original bill of lading to the agent of tlie defendant at Gravette, Arkansas, and wrote across it the following diversion order: “Divert to the H. Rouw Company, Austin, Texas, via M., K. & T. Railroad Company. Signed J. L. Cannon. ” He delivered the bill of lading with the diversion order just before the train left Gravette for Gentry. He heard no more of the matter until the morning of the 10th inst., which was the fourth day after the diversion order was given. On that day the agent at Gravette called the witness and told him that through rates did not apply from Dallas to Austin over the M., K. & T., and asked him if he still wanted the car of apples diverted. Witness told the agent that the car should have been in Austin a day or two before, and that his diversion order was not a conditional order; that there was nothing on it about the rate, and that he had simply asked that the car be diverted. The car was later diverted to Austin, Texas, and it was refused by the brokerage company to which it was consigned. The reason was that apples had been received from the State of Washington which were claimed to be of a superior quality to the apples shipped and which could be purchased at a less price. The shipment of apples from the State of Washington to Austin caused the price of apples to fall, and the plaintiff had to sell them for a less price than it could have obtained for them at Dallas.
    According to the evidence for the defendant, delay in the shipment of the apples from Dallas to Austin, Texas, was caused by its efforts to divert the car of apples on a through rate from the point of shipment to the final point of destination. The diversion order was in the hands of the defendant, and was not produced at the trial. Delay in diverting the car of apples was due to the fact that the defendant could not secure a through rate via the M., K. & T. Railroad.
    The jury returned a verdict for the defendant, and from the judgment rendered the plaintiff has appealed.

      Roy Gean, for appellant.

      James B. McDonough and Joseph R. Broivn, for appellee.
   Hart, J.,

(after stating the facts). Over the objection of the plaintiff, the court instructed the jury that, if J. L. Cannon, the agent for the plaintiff, requested the defendant’s agent to divert the shipment of apples from Dallas, Texas, to Austin, Texas, saving the through rate if possible, the delay in Dallas was justified. It is earnestly insisted by counsel for the plaintiff that this instruction was abstract and necessarily prejudicial to the rights of the plaintiff, because there is no testimony in the record tending to show that the plaintiff asked the defendant to save the through rate in making the diversion order. In this contention we think counsel for the plaintiff is correct.

The diversion order was in possession of the defendant, and was not produced at the trial. J. L. Cannon, who was the agent for the plaintiff, and who acted for it throughout in the transaction, gave in his testimony what purported to be a copy of the diversion order. There is nothing in it about saving the through rate. According to the testimony of Cannon, the diversion order was not upon any condition whatever. There is nothing in the record whatever from which it might be inferred that the diversion order was subject to the condition that the railway company was to secure a through rate if possible. It is true that the order was diverted via M., K. & T. Railroad, and that the evidence on the part of the defendant shows that a through rate could not be obtained over this route. This, however, was not sufficient evidence upon which to base the instruction. The plaintiff may have known that it was necessary to get the car of apples to Austin as quickly as possible and may have chosen this route on that account. Be that as it may, the fact that the car of apples was directed to be diverted over the M., K. & T. Railroad is not sufficient evidence that a through rate over that line was requested. There is no other testimony whatever in the record upon which to predicate such an instruction. It follows that the court erred in giving the instruction complained of.

Inasmuch as the judgment must be reversed, we call attention to the established rule of this court as to the measure of damages. The general rule of damages for unreasonable delay in the transportation of goods is the difference between the market value of the goods at the time and place when and where they should have been delivered and their value when they were delivered, with interest. St. L. I. M. & S. R. Co. v. Coolidge, 73 Ark. 112, 83 S. W. 333; K. C. Sou. Ry. Co. v. Mabry, 112 Ark. 110, 165 S. W. 279; K. C. & Memphis Ry. Co. v. Oakley, 115 Ark. 20, 170 S. W. 565; and St. L. I. M. & S. Ry. Co. v. Tilby, 117 Ark. 163, 174 S. W. 1167.

For the error in giving the instruction complained of as indicated in the opinion the .judgment will be reversed, and the cause remanded for a new trial


author: Smiti-i, J.

text:
    Webb v. Cobb.
    Opinion delivered November 29, 1926.
    1. Contracts — merger of written in oral contract. — A written contract may be superseded by a subsequent oral contract.
    2. Evidence — modification of written by oral contract. — The rule that parol evidence is not admissible to contradict, vary or alter the terms of a written instrument does not exclude the introduction of evidence to show that a written contract has been modified, altered or in fact entirely rescinded by a subsequent oral agreement.
    3. Evidence — best and secondary. — In a suit by a contractor for extra work under a contract for construction of a building, permitting him to testify as to the plans of the building to show what was extra work without introducing the written plans was not error where defendant had the original plans, and the contractor’s evidence clearly distinguished between the work contracted for and the extra work.
    4. Trial — instruction assuming facts. — Where a contractor claimed that a written contract for construction of a building had been abandoned and an oral contract substituted on account of defects in steel framework completed at time of the contract, and was suing for extra work, an instruction that, if defendant agreed to pay plaintiff for additional work on account of defects in steel construction, plaintiff could recover for such extra work, was not erroneous as assuming that there were defects in the steel construction, in view of another instruction making it necessary for the jury to find whether there were defects in the steel construction.
    Appeal from Garland Circuit Court; Earl Witt, Judge;
    affirmed.

      W. G. Bouic and Murphy & Wood, for appellant.

      A. B. Belding and Gibson Witt, for appellee.
   Smiti-i, J.

Appellant was the general contractor for the construction of a four-story steel and brick building and an additional story on an old building for the Woodmen of Union, a negro fraternal organization in the city of Hot Springs. Appellant and appellee entered into the following written agreement:

“Hot Spring National Park, Ark., “April 29, 1924.
“I, J. C. Cobb and Company, do hereby agree to build complete all brick work, terra cotta, and tile for the outside walls of the proposed W. O, U. bank and office building and the fourth story of the present building, corner Gulpha and Malvern Streets, city, in keeping with the plans and specifications furnished by W. T. Bailey, architect, for the sum of $8,250, to be paid as follows:
“For the first story $1,000; during and completing the second story $1,500; during and completing the third story $1,700. And for the completion of the fourth floor and parapet walls complete, $4,000. All of which is to be done in a workmanlike manner and subject to the usual conditions.
“John L. Webb, Principal.
“J. C. Cobb, Contractor.”

After the execution of this contract, appellee commenced work, but, after a few weeks, discovered, according to his contention, that the spacing and openings in the steel work were irregular and not uniform, and that the uprights were out of plumb, and the brick and terra cotta would not fit and fill the openings without extra chipping, cutting and reshaping, and changing the levels of many of the horizontal pieces of steel. When this condition was discovered, according to appellee’s contention, it was seen that it was impracticable and impossible to follow the plans and specifications in building the walls with the materials furnished by appellant, and it was therefore agreed to abandon the written contract, and a new oral contract was made. This oral contract provided that appellee should furnish the labor for building' the outside walls, without plans or specifications but under the directions of a superintendent employed and furnished by appellant, for the same price stipulated in the written contract, towit, $8,250, and appellant was to pay an additional charge for chipping, cutting and finishing the brick and terra cotta to fit the openings or spaces in the structural frame steel work of said building, and for all extra brick work done in and about the building.

Appellant’s contention is that the steel framework and the terra cotta blocks were properly constructed, and that all trouble encountered by appellee was dire to his own fault in improperly building his brick and terra cotta walls so that they were not plumb and in disregarding the terra cotta plans and the numbers on the terra cotta blocks which were intended to show where each of the blocks was to be placed in the structure, and that the written contract was not changed. Appellant also contends that appellee did no extra work except the construction of a smokestack at an agreed price of $900. Appellant alleged in his answer that appellee had abandoned the work without cause after having been paid more than he had earned under the contract, and appellant was required to employ another contractor to complete the job, thereby increasing the cost of the work to a sum largely in excess of the contract price, and a judgment for this excess was prayed in a cross-complaint filed by appellant.

The cause was submitted to the jury under instructions covering the two theories of the case, and there was a verdict and judgment for appellee in the sum of $2,500, from which is this appeal. Appellant has abandoned the allegations of his cross-complaint.

The steel framework of the new building and the concrete foundations for this work were in place when appellee began operations.

Appellee testified that the steel was out of plumb, and gave as his reason for saying it was not plumb' that his brick ran into the steel flanges at the second story, and at every other story. He testified that his brickwork was plumb, and, if the steel had been plumb, he would not have run 'into it with his brickwork, but he admitted that he never dropped a plumb line to get his starting point. He also testified that he properly placed the terra cotta blocks, and they did not fit. A number of witnesses corroborated appellee in these statements.

The testimony on appellant’s behalf is in conflict with this testimony, but the verdict of the jury is decisive of the conflicts in the testimony as to the cause of the trouble.

When appellee was called as a witness in his own behalf, he offered in evidence the written contract set out above, and objection was made to its introduction unless and until' the plans and specifications there referred to were also'introduced in evidence. Appellant, while denying that there was a second or oral contract, insists that, if there were, it was.still necessary to introduce the plans and specifications to determine what work done by appellee was called for in the contract; in other words, it could not be definitely known what part of the work was extra without knowing what work was contemplated in the plans and specifications with refer.ence to which the written contract was made. By numerous objections to testimony and the instructions which were given, and by exceptions to the refusal to give other instructions, appellant preserved this point throughout the trial.

Appellee insists that he is not suing on the written contract, but on a subsequent oral contract; and he also insists that the testimony shows the work which the plans and specifications required him to do, and also the extra work called for by the plans.

Appellee makes two answers to appellant’s insistence that appellee should have offered in evidence the plans and specifications. The first is, as stated, that the suit was not based thereon, and the second is that the testimony does not show that appellee was in possession of a copy of the plans and specifications, but does show that appellant was in the possession of the original of the plans and specifications and might have introduced them, and we are unable to say that the testimony does not support appellee in both these contentions.

We think the court was correct in holding that appellee’s right to recover was not dependent on the written contract, for, according to- his contention, it had been superseded by a subsequent oral contract, and he had the right therefore to sue upon the oral contact.

One of the principal items for extra work involved in this appeal is for the construction of the pilasters. Appellee admits that the pilasters were shown on the original plans, but, when the plans were submitted to him, appellant stated that he did not want the pilasters, and for appellee to take no account of them in making his hid, yet, according to appellee, appellant changed his mind as the work progressed, and decided that he did want the pilasters, and directed appellee to build them, but this direction was not given until after the abrogation of the written contract. Appellant objected to this testimony, and insists that it is a contradiction of the written agreement by oral testimony.

We do not think this objection is well taken. The contract which was signed by the parties stipulated that the -work should be “in keeping with the plans and specifications,” which meant, of course, the plans as they then stood. Appellee does not contend that he was not to erect the building in keeping with these plans; on the contrary, he admits their binding effect. His contention is that the plans and specifications with reference to which he contracted -did not call for the building of the pilasters at the time the contract was signed. The plans and specifications were not incorporated in the contract except by reference to them, and the contract as signed did not undertake to define .what these plans were. It was permissible therefore for appellee to show what the plans and specifications were with reference to which the parties had contracted.

In 9, Encyclopedia of Evidence, page 356, it is said: “The rule that parol evidence is not admissible tó contradict, vary or alter the terms of a written instrument does not exclude the introduction of evidence to show that a written contract has been modified, altered, or in fact entirely rescinded by a subsequent oral agreement, the evidence not being for the purpose of varying the terms of the written instrument, but to show that it has become inoperative, either in whole or in part, by reason of a subsequent and independent agreement. It is immaterial how soon after the execution of the written instrument the new agreement was made.”

Appellant insists that the question concerning the pilasters demonstrates the necessity for the introduction of the plans and specifications,- as otherwise the court and jury could not know what work was extra, and, as appellant says, this is the principal error complained of. Appellant also insists that the cause was not and could not have been properly submitted under the instructions given, in the absence of the plans and specifications, as the jury could not tell what part of the work done was covered by the written agreement and what was not included in the written agreement.

We think, however, that appellee answers these • assignments of error when it is shown that it does not clearly appear that appellee was in possession of the plans, whereas it is not questioned that appellant had the original plans and might himself have introduced them in evidence, and further, according to appellee, the testimony offered in his behalf distinguishes between the work contracted for and the extra work.

It is finally insisted that the court erred in giving an instruction numbered 9, which reads as follows: “If you believe from a fair preponderance of the evidence that, after the work was begun by the plaintiff under the written contract in evidence, the plaintiff and the defendant entered into a verbal agreement, whereby the defendant placed a superintendent in charge of the work to be done by the plaintiff and agreed to pay the plaintiff the usual or customary price for such additional work as would be necessary in completing defendant’s contract on account of defects in the terra cotta or steel construction, and that, in said verbal agreement, the plaintiff agreed to perform additional work not contemplated in the written contract, then you should find for the plaintiff for any balance due him for such additional labor as was required on account of any defect in the terra cotta or steel construction, and for the usual or customary value of the work, if any, performed by the plaintiff not contemplated in the original contract.”

The specific objection made to this instruction is that it assumes there were defects in the terra cotta or in the steel construction. This instruction must, however, be read in connection with another instruction which told the jury that appellee’s insistence was that, on account of defects in the terra cotta and steel construction, it became necessary to abrogate the original contract, and, unless the facts were so found, to find for appellant, except as to certain additional work about which there was no dispute. This instruction required the jury to find that there were defects, and that, on account of these defects, a new contract was made, and we think therefore, when the two instructions are read together, the instruction quoted is not open to the objection made.

Upon a consideration of the whole case we find no error, so the judgment of the court below is affirmed.