author: McCulloch, C. J.

text:
    St. Louis-San Francisco Ry. Company, v. Whitfield.
    Opinion delivered November 20, 1922.
    1. Negligence — what law governs. — In an action for injuries from negligence in another State, the test of liability depends upon the laws of that State.
    2. Appeal and error — conclusiveness of verdict. — Where there was conflict in the evidence as to whether trainmen gave the statutory signals on approaching a crossing, and the issue was properly submitted to the -jury, the verdict is conclusive on such question.
    3. Appeal and error — conclusiveness of verdict. — In determining the sufficiency of evidence to support a verdict against defendant, the Supreme Court will view the testimony in the light most favorable to plaintiff and give, it such force as the jury might have given it.
    4. Railroads — contributory negligence — question for jury. — In an action for the killing of the occupants of an automobile by a train at a highway crossing, where there was evidence that they looked and listened when 200 feet from the track and also when 100 feet from the track, that their view was obstructed until they reached a point 40 feet from the track, and that the train was running at least 50 miles an hour, if not faster, without signal on a dark, foggy morning, when dazzling lights came from an automobile facing them on the other side of the track, held the question whether they were guilty of contributory negligence in attempting to cross ahead of the train was for the jury.
    5. Railroads — duty of traveler .at crossing. — A traveler at a railroad crossing must exercise ordinary care to discover the approach of trains and to avoid collisions, and in the exercise -of such care must look and listen for the approach of trains, and if necessary must stop the vehicle in which he is traveling.
    6. Railroads — burden o.f proving negligence. — In an action for death of travelers at a railroad crossing, the burden is on the railroad company to prove contributory negligence.
    7. Railroads — crossing ahead of train. — A traveler along a highway who attempts to make a crossing ahead of an approaching train may not speculate upon his chances of crossing in safety; but if the train is far enough away or appears to him in the exercise of ordinary care to be far enough away in order to justify the reasonable belief that the crossing may be made in safety, then it does not constitute negligence for him to undertake to make the crossing under the circumstances.

      8. Death — excessive damages. — A verdict of $30,000 for the death of a man 32 years old having an earning capacity of $3,000 a year and having contributed as much as $1,500 or $2,000 to his family and a verdict of $25,000 for the death of his companion who was earning $1,500 or $2,000 a year, both men being young, active and intelligent, of good moral character, healthy and of good habits, held not excessive.
    Appeal from Poinsett Circuit Court; J. M. Futrell, Judge;
    affirmed.

      W. F. Evans, W. J. Orr and E. L. Westbrooh, for appellant; Moore, Smith, Moore & Trieber, of counsel.
    Since the accident happened in Oklahoma, the law of that State pertaining to the rights and duties of railroad companies and travelers at public crossings must govern. 98 Ark. 240.
    As to the duties of travelers upon highways approaching a railroad crossing, the law of the State accords with the following line of cases: 61 Ark. 549; 110 Id. 161; 54 Id., 431; 65 Id. 225; 90 S. W. 805; 30 Id. 339; 38 Id. 308; 174 U. S. 379; 114 Id. 615; 95 Id. 697; 130 Fed. 65; 171 Id. 319; 134 Id. 233; 92 Pac. 687; 24 Atl. 747; 34 Iowa 160; 80 Fed. 217.
    We desire to call particular attention to the case of Railroad v. Balter, 104 S. W. 1182,’ wherein the facts set ■out at pages 1186, 1187 of the report are even more favorable to the plaintiff than the facts in this case. From that case it appears that the Oklahoma court approved the rule announced by this court prior to the lookout statute. For a discussion as to the exceptions to the rule requiring one to look arid listen, see 110 Ark. 161; 78 Id. 60.
    Appellant’s motion for a directed verdict should have been sustained. Under the undisputed testimony of plaintiff’s witness Brinkmyer, the physical facts testified to by him and others and the photographs of the situation, no legal excuse has been shown, or can be urged, why these men in the automobile did not see or hear the oncoming train, if they looked ánd listened for the same as the law demanded. 92 Pac. 687; 34 Iowa, 154; 174 N. W. 402; 30 S. W. 339; 233 S. W. 399; 168 Fed. 23; 188 Pac. 419; 42 N. E. 736; 103 S. E. 17; 27 Atl. 1064; 19 N. E. 422; 31 N. Y. S. 1033; 36 Atl. 731.
    The presumption of due care for one’s own safety cannot stand against proof that, had the decedents taken those precautions which the law demanded of them, they could plainly have seen the approach of the train in time to have avoided the danger. The facts in Tomlinson v. Railroad, 134 Fed. 233, an Oklahoma case, make it a precedent here. See also 99 Ark. 171; 85 Id. 534; 56 Id. 435; 97 Id. 443.

      Pace, Campbell ■& Davis, for appellee.
    As finally submitted to the jury, there were but two issues involved: (1) whether there was a failure to ring the 'bell or blow the whistle 80 rods before the train reached the crossing; (2) whether the decedents were guilty of contributory negligence.
    1. The evidence establishes the fact that there was a complete failure to give any signal whatever for the crossing.
    2. The decedents were not guilty of contributory negligence. While the law of Oklahoma governs in so far as pertains to the rights and duties of the parties, the law of this State will govern as to the procedure, for the determination and enforcement of those rights and duties. The law of this State, therefore, will govern, in determining whether the trial court erred in refusing to direct á verdict, and in submitting- to the jury the question of contributory negligence of the deceased. 5 B. O. L. § 134, pp. 1042-1044.
    As to the degree of care which it was the duty of these decedents to exercise in approaching and attempting to cross the railroad track, the law of Oklahoma is the same as that of. this State. 28 Okla. ¡815; 42 Id. 501; 103 Ark. 374-378.
    The issue of contributory negligence was properly submitted'to ■ the jury. 146 Ark. 555; 144 Id. 244; Id. 609 ; 138 Id. 539; Id. 175; 137 Id. 6; 136 M-246; Id. 1; 132 Id. 431; 117 Id. 457; 111 Id. 134; 105 Id. 180; 104 Id. 38; 101 Id. 315; 101 Id. 424: 97 Id. 405; 96 Id. 638; 270 Fed. 826.
    That there was an absolute duty to look and listen resting upon the decedents is conceded; but whether or not they performed that duty was a question for the jury and properly submitted to them.
   McCulloch, C. J.

On February 8, 1921, P. W. Whitfield and A. F. Sanders, while crossing the railroad track of appellant in an automobile about one and one-half miles north of the town of Kiefer, in the State of Oklahoma, were struck and injured by a train operated by appellant, and both of the men died as the result of their injuries. Sanders died the next day. His body was mashed and his back was broken, but he was conscious until he died. Whitfield lived two months after the injury occurred. The hip bone of one of his legs was broken and crushed, and after his leg was dressed by surgeons a weight was swung to it and he was kept in a recumbent position for three weeks, and then his leg was put in a plaster cast. When the plaster was removed, it was found that the fractured bone had not united, and there was a running sore or blister where the plaster rested. After the sore healed up it was decided by other surgeons then treating him to operate by pulling the ends of the bone together and putting him in a silver plate. The man died during the operation.

Whitfield was twenty years of age, and was survived by his wife. Sanders was thirty-two years of age, and was survived by his wife and three children, aged, respectively, one, three and five years.

Appellant, A. B. Whitfield, who was the father of P. W. Whitfield, and uncle of Sanders, was appointed administrator of the estate of each of said decedents, and in those capacities he instituted in the circuit court of PoinSett County two actions against appellant to recover damages for the benefit of each estate and the next of kin.

The only act of negligence relied on as a basis for the recovery of damages is that the servants of appellant in charge of the train failed to give the signals when approaching the crossing, as required by ■ the Oklahoma statute. The complaint in each ease contained other allegations of negligence, but they were abandoned, and the cause was tried wholly on the charge of negligence on the part of the engineer or fireman in failing to give signals.

Appellant denied the charge of negligence, and pleaded contributory negligence on the part of each of said decedents in attempting to cross the track ahead of the approaching train, without exercising ordinary care to discover the approach of the train and to avoid a collision.

The cases were consolidated by consent, and the trial resulted in a verdict in favor of appellee in each case, the jury awarding damages in the- sum of $25,000 in the Whitfield case, and the sum of $30,000 in the Sanders ease.

There is a conflict in the evidence on the issue as to the failure of the trainmen to give the statutory signals, and there is also a conflict in the testimony as to the situation at the crossing at the time Whitfield and Sanders attempted to cross over.

The alleged acts of negligence and the injuries resulting therefrom having occurred in the State of Oklahoma, the test of liability depends upon the laws of that State. St. L. I. M. & S. Ry. Co. v. Brown, 67 Ark. 295; St. L. I. M. & S. Ry. Co. v. Hesterly, 98 Ark. 240.

The statutes of Oklahoma require that the bell on a locomotive engine shall be rung, or the whistle sounded, at a distance of at least eighty rods from, a public highway. The statute differs from the Arkansas statute only in the fact that it does not require that the bell or whistle be sounded until the crossing be reached.

There is a sharp conflict in the testimony as to whether or not the signal was given, but it is conceded that there was sufficient testimony to go to the jury on that issue; and, if the issue was properly submitted to the jury, it must be treated as settled by the verdict in favor of the appellee. The instructions will be discussed later. There is no contention that ther.e was any error in the instructions as to the submission of the issue concerning the giving of signals.

Numerous witnesses testified on each side as to the-giving of signals, but it is undisputed that the customary method of giving crossing signals was by blowing the whistle. The witnesses introduced by appellee testified, however, that signals at the crossing were not given by either method. According to the testimony, there were two crossings between the town of Kiefer and the crossing where the injuries involved in this case were inflicted, and the witnesses introduced by appellee all testified that there were no signals given after the train passed the station of Kiefer.

"We come next to the question of contributory negligence, and this is the principal feature of the case relied on by counsel for appellant for a reversal of the judgment.

It is earnestly insisted that the uncontradicted evidence shows that the two decedents, Whitfield and Sanders, were guilty of contributory negligence, and that they and their personal representatives are barred from recovery of damages under the laws of Oklahoma. Counsel contend that the court should have directed a verdict in favor of appellant, and that the judgment should now be reversed and the cause dismissed for the reason that, as before stated, the evidence was not legally sufficient to warrant the submission of the issue of contributory negligence to the jury.

In testing the question of the legal sufficiency of the evidence we must, under rules well settled by the decisions of this court, view the testimony in the light most favorable to appellee, and give it such force as the jury might have given it.

The facts of the case, as the jury might have found from the testimony, are as follows:

Whitfield and Sanders both resided at the town of Kiefer, and were engaged in the mercantile business there with appellee, A. B. Whitfield, the administrator of the estates. They had all recently removed from the State of Arkansas, where they had lived for many years. Young Whitfield had been living at Kiefer for several months, but Sanders and A. B. Whitfield had been there only a few weeks. They (A. B. Whitfield and Sanders) had bought out a grocery business and were operating it it in copartnership, and young Whitfield was worldng for them' as clerk.

Kiefer is four or five miles southeast of Sapulpa, both places being situated on appellant’s line of railroad, and the two towns are connected by an improved public highway.

Early in the morning of February 8, 1921, Sanders and young Whitfield started from the store at Kiefer to drive to Sapulpa to deliver a lot of eggs which had been sold. They went in a Ford car, originally a roadster, on which had been placed a bed so that the car could be used for the delivery of goods. It was between 6:30 and 7 o’clock, according to the testimony, when they left the store at Kiefer, and the testimony tends to show that they were struck by the train at the crossing, about one and one-half miles northwést of Kiefer, about 7 o’clock. It was the second trip they had made from Kiefer to Sapulpa, having made a trip Saturday morning preceding the day in question, which was on Tuesday. The witnesses did not fix the time precisely, but all say that the two travelers reached the crossing about 7 o’clock. The witnesses stated that it was a dark and foggy morning, and rain was threatening. The headlight was burning on the engine when the collision occurred, and the lights were burning on the ear ‘which Whitfield and Sanders were driving, as well as on two other cars which were at the crossing at the same time.

The train, which struck the two men was a regular passenger train going north,' and it was a few minutes late. The testimony shows that the train was running at least fifty miles an hour, which was its usual speed, and there is other testimony that it was running faster than that. Some of the witnesses stated that it was running at a much higher rate of speed than usual.

The railroad track from Kiefer to Sapulpa is from southeast to northwest, and the crossing at which the in jury occurred is at an angle of about forty-five degrees, and the highway along which decedents were traveling runs directly east and west. Witnesses who viewed the scene after the accident testified that the railroad at that place was laid on a dump seven or eight feet high and that the highway was graded up to that level, the incline extending about two hundred feet from the track on the east side of the road and about forty feet on the west side. The incline of the highway was eighteen feet wide, but narrowed to sixteen feet at the rails of the railroad track, where plank sixteen feet long covered the space between and for a short distance on each side of the rails. The country is flat and level along there, and it is in the heart of an oil district, which is pretty well, covered with oil derricks, and where there are many houses.

The witnesses testified that, in approaching along the highway from east to west, at a point 220 feet east of the railroad track, there was a view south along the track for a distance of only about 300 feet; that 100 feet from the track there was an unobstructed view about 450 "feet down the track, and that, after coming within forty feet of the track, there was an unobstructed view clear down the track for a distance of three-fourths of a mile, telephone poles along the right-of-way being the only obstruction. Appellant introduced photographs’ Which tended to show an unobstructed view at a greater distance down the track, but this only makes a conflict in the testimony, which the jury has settled against the contention of appellant.

Though there were several persons who testified that they were not far distant from the crossing and that they heard the train coming and heard the impact of the collision, they did not see the collision, but there was only one eye-witness'who testified about seeing the collision. This was a man named Brickmeyer, who lived at Sapulpa, and who was in an automobile en route from Sapulpa to Kiefer, when he stopped at the crossing at the time the collision occurred. Brickmeyer was, of course, crossing from west to east, and he testified that he approached the crossing at a speed of about forty miles an ■ hour, and that when he saw the headlight of the train coming from the south he stopped his car on the incline, about 15 ox 20 feet from the track, to await the passage of the train. He testified that he saw the Ford car which collided with the train come from the east with the headlights burning, and that it came to a stop about 200 feet from the track, which was about the bottom of the incline; that about this time some one driving another car came along from the west, with headlights burning, and passed around witness’ car, went over the track and passed the Ford car which Whitfield and Sanders were driving about half way up the incline, the latter having in the meantime started up their car and begun ascending the incline at a speed of ten or twelve miles an hour, with their headlights burning. He stated that when the Ford car was about 100 feet from the track he saw the driver, who was on the left hand side of the car, turn his head towards the south as if looking in that direction, and that the car then passed on up the incline, and as it reached the track it was struck by the engine. The train ran about a quarter of a mile, and when it came to a stop the automobile was on the pilot of the engine, and the body of Sanders was lying there too. Whitfield had been carried about ninety or 100 feet and thrown to one side of the track.

Under the circumstances shown, it cannot be said as a matter of law that Whitfield and Sanders were guilty of contributory negligence. The law of Oklahoma must, as we have already said, be accepted as the test of responsibility for the injury, but we fail to discover any difference between the laws of Oklahoma and the laws of this State except in the particular already mentioned in regard to the method of giving signals upon approaching crossings. The rule of law here, as well as in Oklahoma, is that a traveler approaching a railroad crossing along a public highway must exercise ordinary care to discover the approach of trains and to avoid collisions, and in the exercise of this care it is held, as a matter of law, that he must look and listen for the approach of trains, and, if necessary for that purpose, he must stop the vehicle in which he is traveling. Only in exceptional cases is the traveler relieved from the absolute duty of looking and listening for the approach of trains. M. K. & T. Ry. Co. v. Horton, 28 Okla. 815; St. L. S. F. Ry. Co. v. Model Laundry, 42 Okla. 505; St. Louis, I. M. & S. R. Co. v. Martin, 61 Ark. 549; Little Rock & F. S. Ry. Co. v. Blewitt, 65 Ark. 235; Tiffin v. St. Louis, I. M. & S. Ry. Co., 78 Ark. 55. It is also settled that this vigilance on the part of the traveler must be maintained until the danger is past, and only under exceptional circumstances can it be relaxed.

According to the testimony in the case, the two travelers who were injured at the crossing stopped their car for the purpose of looking and listening for the approach of a train at a distance of about 200 feet from the track, and the train was not in view at that time. There is affirmative testimony also to the effect that at a distance of about 100 feet from the track the travelers, or at least one of them, again looked and listened for the approach of a train from the south, and that none was in view at that time.

Considering the speed of the train and the testh mony of witnesses as to the distance of the view down tbe track at that point, the jury could have found that the train was not then in view of the travelers. Then the testimony further is that the track was obstructed from' that point until a point forty feet from the track was reached, and that then the view down the track was unobstructed. The travelers came within the zone where there was a clear track with their backs partially to the south; they were ascending the incline, which attained a height of seven or eight feet, and were faced by another automobile with its headlights shining on the other side of the track. No alarm whistle had been sounded, as required by statute, and as was shown to be customary, and no train had been seen or heard by the travelers when they stopped 200 feet from the track, nor when they looked when 100 feet from the track. They had the right to rely, to some extent, upon the fact that no warning of the approach of the train had been given or had been heard.

It only required a few moments to cross the track in safety from the place where they first could have discovered the approach of the train, and it cannot be said, as a matter of law, that they were guilty of negligence in failing to look down the track during that short interval. The case in that respect falls squarely, we think, within the decision of this court in the recent case of Smith v. Mo. Pac. Rd. Co., 138 Ark. 589. In that case the plaintiff was driving in the daytime along a highway parallel with the railroad, and there were trees which, to some extent, obstructed the view, but when he came to the place where the road turned to the crossing, about thirty-five yards from the track, he pursued his journey without looking, and, in disposing of the question of his contributory negligence, as a matter of law, we said:

“It will be remembered that the plaintiff drove northward on the street parallel with the railroad track, and that he said there were some trees just outside of the right-of-way and some'telegraph poles inside the right-of-way which obscured his vision to the north. In addition to this, he listened for the statutory signals for the crossing to be given, and did not hear them. It is true he did not look for the train when he got on the crossing; .but the track to the north was straight and plaintiff had been looking in that direction for the train and listening for its approach or signals thereof as he drove up the street. When he did not see or hear the tr.ain as .he drove on the crossing, the jury might have found that he was justified, under the circumstances, in thinking there was no train coming near enough to prevent his crossing in safety, and that it would be best for his safety to devote his whole attention to driving his car over the crossing. He had only thirty-five yards to go, and it will be remembered that the train struck the hind wheels of his automobile, thus showing that in another instant he would have been across.’’

Again, it cannot be said, as a matter of law, that these travelers were guilty of contributory negligence in attempting to make the crossing ahead of the train, even if they looked and saw the train approaching. The burden of proof was, of course, on appellant to establish contributory negligence on the part of the travelers, and to show either that they failed to look and listen for the train when it could have been seen or heard, or that they saw the train approaching and negligently attempted to cross ahead of it. Now, it does no-t always constitute negligence for a traveler to attempt to make a crossing ahead of an approaching train. That depends upon the circumstances — the speed of the train and the distances of the traveler and the train, respectively, from the crossing. The test is whether the effort to cross the track with the train approaching is an act which a reasonably prudent person in the exercise of ordinary care would not attempt. A traveler along a highway who attempts to make a crossing ahead of an approaching train may pot speculate upon his chances of crossing in safety: but if the train is far enough away, or appears to one in the exercise of ordinary care to be far enough away in order to justify the reasonable belief that the crossing may be made in safety, then it does not constitute negligence for the traveler to undertake to make the crossing under those circumstances. These principles are settled by repeated decisions of this court, and we find nothing to the contrary in the decisions of the Oklahoma courts. St. L. I M. & S. Ry. Co. v. Hitt, 76 Ark. 227; St. L. I. M. & S. Ry. Co. v. Dillard, 78 Ark. 520; La. & Ark. R. R. Co. v. Ratcliffe, 88 Ark. 524; Arkansas & Louisiana Ry. Co. v. Graves, 96 Ark. 638; K. C. Sou. Ry. Co. v. Drew, 103 Ark. 374; St. L. I. M. & S. Ry. Co. v. Kimbrell, 111 Ark. 134; Smith v. Mo. Pac. R. Co., supra; St. L. S. F. Ry. Co. v. Adams, 144 Ark. 609.

In Kansas City Southern Ry. Co. v. Drew, supra, the applicable rule is clearly stated as follows:

“At the crossing of the railroad track and the highway both the railway company and the traveler on the highway are bound to use ordinary care, the one to avoid inflicting injury and the other to avoid being injured, and the degree of care to be exercised by each is that which a prudent man would exercise under the circumstances of the case in endeavoring to perform his duty.”

Applying the rule just stated concretely to the facts of the present case, the test of negligence on the part of the traveler is, whether'or not, under the circumstances of this ease, a reasonably prudent person, in the exercise of ordinary care, would have attempted to make the crossing in the manner in which these travelers did. In making this test we must consider what these circumstances were as shown by the testimony in its light most favorable to the rights of appelleee. The question is, did the travelers, acting as reasonably prudent men in the exercise- of ordinary care, have reason to believe that they could make the crossing in safety? They had stopped, looked and listened for the train and had heard none, thus being led to believe that no train was approaching, until they saw it when they came within forty feet of the track. It was a dark, foggy morning, when distances and moving objects were deceptive, and the travelers may have been confused by the dazzling lights from, the Automobile which was facing them* The train was approaching at an unusual speed — faster than the travelers had a right to suppose it was approaching— and they were misled as to the distance of the train and the time they had within which to make the crossing-before the train could reach that spot. The travelers were misled, too, largely by the negligent act of the operators of the train in failing to give the signal. It is also a question how far the view of the travelers might have been obstructed by the line of telephone poles running parallel with the track. It may not have obstructed the view so as to prevent seeing the train, but it might have caused a deceptive view in judging the distance and speed of the approaching-train. Another feature of the situation, which is not without force in creating a deceptive condition calculated' to mislead Whitfield and Sanders, was that Brickmeyer’s car had stopped on the other side of the track, apparently in waiting and expectancy of these parties crossing at that time. At least the jury might have found that Whitfield and Sanders had the right to draw the inference from this circumstance that the traveler across the track was in a better attitude to observe the approach of the train, and that he did not observe a train closely approaching, and was expecting them to cross, the crossing not being wide enough for two cars at the same time. Brickmeyer was facing more to the south and was in a better position to notice the approach of the train. The fact is, as stated by Brickmeyer, that he saw the train and stopped his car to wait for the train to pass, but his purpose was fixed by the fact that he actually saw and correctly judged the distance of the train, and it does not alter the inference which Whitfield and Sanders might have drawn from this circumstance. They might, in other words, have believed, without looking back to see whether any train was coming from the south, that the man on the other side had stopped to wait for -them to cross at that time.

When all these things are considered, we cannot say-that there was contributory negligence on tfie part of the travelers in attempting to make the crossing, even when they saw the train approaching. In fact, it is far more reasonable .to conclude from the testimony in the case, even though the travelers had their backs partially turned to the -train when they reached the spot where they could see it, that they saw the headlight of the approaching train, but that in the dim light of the foggy morning they were deceived as to the distance of the train from the crossing, as well as by the fact that no signals had been given at the place where they should have been given.

We reach the conclusion, therefore, that there was no error committed by the court in refusing to take the case away from the jury by a peremptory instruction.

It is also contend that the court erred in its charge to the jury, and in modifying certain request's of appellant for instructions.

One of the instructions requested by appellant and modified by the court contained two lengthy paragraphs, the first of which was devoted to the statement of the substance of the Oklahoma statute with respect to crossing signals, and concluded with the statement that the purpose of requiring such signals to be given is to inform the traveler that the train is coming, and that “if said traveler is informed of the approach of said train by the noise it makes or by seeing it, then the failure to ring the bell- or blow the whistle would not constitute actionable negligence as to such traveler. ” The court gave this paragraph as a separate instruction, with a very slight and wholly unobjectionable modification. The other paragraph of this instruction was lengthy and argumentative in form, and was properly refused. In the form in which it was given, however, it contained the statement that “if there is a point after all obstructions are passed from which a train can be seen approaching the crossing and near thereto, and in such close proximity thereto that the driver. of the automobile, if he sees the train, could not reasonably expect that he could pass over said crossing in safety before the train reached the same, then it would be negligence upon his part to drive upon said crossing in front of said approaching train, aiid such negligence on his part would defeat any recovery for injury to him by a collision of said car.”

While the court refused to give this part of the instruction, it gave the following, which fully and correctly states the law on this subject:

“3. You are instructed that a railroad track is at all times a constant warning to all persons aproaohing said track and intending to cross the same, and you are further instructed that it is the duty of persons approaching the railroad track in an automobile to look and listen for the approach of trains, and to continue on his guard of looking until the danger is passed, and if such person, after he sees the approach of such train, goes on to the traclr immediately in front of the train and is struck before he can get over the track, he is held in law to be guilty of contributory negligence.”

There was no error, therefore, in the rulings of the eourf with respect to this request of appellant. This instruction No. 3 was given as a substitute and was a part of one requested by appellant. Other portions of the instruction were stricken out, but the portions thus eliminated were argumentative and added nothing to the substance of the law stated by the court in its instructions.

Error is assigned in the modification by the court of the following instructions by adding the word “negligently,” so as to make the statement of the instructions to be “that, if a traveler sees the approach of the train or hears the approach, then he will not be excused from negligently going on the track immediately in front of the train,” etc.

“C. You are instructed that, under the law of Oklahoma, where this accident happened, the railroad company is required to sound the whistle or ring the. bell at least eighty rods from the place where the railroad track crosses the public highway. You are further instructed that the purpose of this statute is to notify persons about to cross the railroad track at said highway that a train is approaching, and you are further instructed that, if such persons see the approach of said train or hear the approach of said train, then he will not be excused from going on the track immediately in front of such train because the railroad company has failed to either sound the bell or blow the whistle, as above stated, and the failure to give such signal in that case would not constitute negligence which would be in law the cause of the accident.”

There was no error in the modification, because otherwise it might have been understood as meaning that recovery would be denied merely because the train was seen approaching, regardless of its distance, or apparent distance, from the crossing.

Again, it is insisted that the court erred in giving the following instruction on its own motion:

“8. You are instructed that, before you can find that the plaintiff, Mr. Sanders, was guilty of contributory negligence, you must believe from the testimony that the deceased, at the time of the injury, failed to look and listen for approaching trains and to use ordinary care to avoid the injury; and ordinary care is such care as an ordinarily prudent man would have used for his safety, under the 'circumstances and conditions as shown by the testimony.”

This instruction, when read in the light of others .given by the court, was not erroneous in stating the test of contributory negligence on the part of the travelers. It was framed to meet the charge of contributory negligence both as to failing to look and listen and as to failing to exercise ordinary care after deceased saw the train, if the jury found that they saw the train. If it was thought that the use of the disjunctive word “or” would have better expressed the meaning, a specific objection should have beep made to the use of the conjunctive.

In addition to the instructions already copied, the court gave No. 7, which reads as follows:

‘ ‘ Even though yon may find that the agents and servants of the defendant failed to sound the whistle or ring the bell, as required by law, still you cannot find for the plaintiff if you find that Mr. Sanders Avas guilty of any negligence which contributed to his injury and death. It was his duty, under the law, in approaching the crossing, to look and listen for the approach of train, and if the situation was such that ordinary care required him to.stop in order to effectually hear or see the train, to stop or caused to he stopped his car before going upon the track, and if you find that he failed to comply with this duty, and such failure contributed to his death, .your verdict will be for the defendant.”

We are of the opinion that there was no error of the court in charging the jury or in modifying the instructions requested by appellant.

Finally, it is insisted that the aivard of damages in each case is excessive.

The testimony of numerous Avitnesses shows that these men, who were killed as the result of the negligent acts of appellant’s servants, were young, active and intelligent men of good moral character, healthy and of good habits; that one of them had been earning about $3,000 a year and contributed to his family as much as $1,500 to $2,000 a year, and that the other was capable of earning $1,500 or $2,000 a year at the time of his death. Each of them suffered great pain until his death, one for about thirty hours and the other for two months. It cannot be said, under these circumstances, that the verdict in either case is without sufficient evidence to support the findings as to the amount of damages to be awarded.

Each of the judgments is therefore affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Brotherhood of Railroad Trainmen v. Fountaine.
    Opinion delivered November 20, 1922.
    1. Marriage — presumption of validity — when not overcome!— In an action on a benefit certificate by one claiming to be his wife and beneficiary, testimony of insnred’s former wife, from whom defendant claimed he had never been divorced, and who stated that she was interested in the litigation by virtue of her claim to be the beneficiary, as to his place of residence while she lived with him as his wife, together with proof of the contents of the record of insured’s subsequent employment and service with several railroad companies, was not conclusive evidence of his various places of residence during such period, so as to warrant a directed verdict for defendant on proof that no divorce bad been granted at any of such places; it being for the jury to determine whether the evidence was sufficient to overcome the presumption of the legality of insured’s marriage to plaintiff by eliminating possibility of a divorce having been granted at some other place.
    2. Evidence — declarations of insured. — In an action on a benefit certificate, it was reversible error to prove insured’s declarations, made subsequent to his marriage with plaintiff, that he had been divorced from his former wife, such declarations being self-serving.
    3. Trial — instruction—degree of proof. — In an action on an insurance policy warranting plaintiff to be his wife and naming her as beneficiary, where defendant claimed that insured had never been divorced from his former wife, an instruction that the presumption that his marriage to plaintiff could be overcome only “by strong, distinct, satisfactory and conclusive evidence,” and that the burden is on defendant to prove that insured had not been divorced by a high degree of proof,, was erroneous, as the presumption of validity of the marriage to plaintiff could be overcome by a preponderance of the testimony.
    Appeal from Pulaski Circuit Court, Second Division; Guy Fulk, Judge;
    reversed.

      F. Weldin, for appellant.
    The policy provides for payment of benefits to “lawful wife,” and to so pay the amount of the policy to appellee would be a diversion of the benefit funds. 117 Ark. 145. Failure to comply with the constitution and by-laws in designating the beneficiary voids the policy. 135 Ark. 65; 29 Cyc. 118-B 1; 2 A. L. R. 1676; 17 Ann. Cases 865. An illegal designation of beneficiary cannot be waived. 120 Ark. 605; 121 Ark. 185; 123 Ark. 620.
    A bigamous marriage is void, though one of the parties enters into it in good faith. 114 Ark. 84. A common-law marriage is invalid. 97 Ark.. 272. A wife of a man having another living wife not divorced is not a legal wife. 116 Ark. 501; 112 Ark. 47.
    In connection with the testimony pertaining to the residence of the insured and to the divorce records in these places, see the following citations, in regard to residence and compliance with statutory requirements necessary to confer jurisdiction upon a court to grant a divorce: 34 Cyc. 1647; 9 R. C. L. 492, par. 198, 403, par. 199, 399; 195, 511, and 333. 59 Ark. 441 and 54 Ark. 172.
    Instruction No. 1 given by the court is erroneous in that it places upon appellant the burden of too high a degree of proof to overcome the presumption of the validity of the marriage of appellee to the deceased. See the following authorities in support of the contention: 18 R. C. L. p. 419; 26 Cyc. pgs. 871 and 872; 89 A. S. R. pgs. 205, 206; 55 Am. Rep. 883; 202 Mass. 500; 147 111. 210; 153 111. 585.
    The statements made by Meredith as to having secured a divorce from his first wife were self-serving and incompetent.

      Murphy, McHaney & Dimaway, for appellee.
    When a marriage has been shown, the law raises a presumption of its legality, casting the burden of proof on the party objecting to prove its invalidity. 84 Tex. 408. 19 A. & E. Enc. of Law (2nd ed) 1209; 43 Am. Rep. 677; 222 Mo. 74; 34 Ark. 518; 67 Ark. 281; 131 Ark. 221; 121 Ark. 361.
    The presumption of law is that Meredith obtained a divorce from his first wife, and the attack in this action upon the validity of such divorce and remarriage is a collateral one, which cannot be sustained. The only ones who could attack the decree are his first wife or the State. 100 Arle. 69; 66 Ark. 113; 14 Cyc. 723; 35 L. E. A. 783; 152 U. S. 327, etc.
    Instruction No. 1 was the law and is supported by the following authorities: 222 Mo. 74; 17 Ann. Cas. 677; 203 Mo. 31. If appellant deemed the instruction to be incorrect, he should have made specific instead of a general objection.
   McCulloch, C. J.

This is a suit against appellant on a benefit certificate, or policy of insurance, issued on the life of Arthur C. Meredith, the name of the beneficiary, Winnie E. Meredith, being designated in the application as the wife of the member, and there being a warranty of the truth of all statements contained in the application. Appellee claims that she was the lawful wife and is the widow of Arthur C. Meredith, and she seeks to recover from appellant the amount of the benefit on the ground that she was the person designated as the beneficiary, and that there was no breach of warranty with respect to her relationship to- Arthur C. Meredith, the member.

'On the first trial of the case the court directed a verdict, but the judgment was reversed by this court on the ground that there should have been a submission of the issues to the jury. Brotherhood of Railroad Trainmen v. Meredith, 146 Ark. 140.

Since the institution of the action appellee has remarried and appears now under her changed name. The facts in the case are fully recited in the former opinion. We decided, in substance, that there could only be a recovery upon proof of a lawful intermarriage of appellant with Arthur C. Meredith, but that there is a presumption in favor of the validity of any marriage which is shown to have been solemnized, and that the burden rested upon the insurer to prove that the marriage was invalid. Appellant attempted to do that, both in the first trial and the last one, by showing that Meredith had a former wife who was still living, and that there had been no divorce. Upon the remand of the cause it was tried again, and the issues were submitted to the jury upon instructions, some of which will be referred to later.

It is conceded that Meredith had a wife in the person of Nora C. Meredith, who is still living. Meredith and his wife, Nora, resided at Rector, Clay County, Arkansas, They were married in the year 1908, and according to the testimony of Nora C. Meredith, who was a witness in this case, she and Arthur 'C. Meredith lived together as husband and wife until the year 1912, and that she has continued to reside at Rector up to the present time. She testified that her husband moved to Jonesboro in the year 1912 and was engaged in railroad service, and moved from there to Amarillo,'Texas, in the year 1914. There is other proof tending to show the various places of residence of Arthur C. Meredith up to the time it is alleged he intermarried with the appellee. This proof was in addition to the testimony of Nora C. Meredith, mostly by the testimony of the records of railroad companies, in whose service Meredith was engaged, showing his headr quarters.

Appellee proved by her own testimony, and by the exhibition of a recorded marriage license that she was' married to Arthur C. Meredith in legal form at Amarillo, Texas, on November 19,1915. The license exhibited shows that it was issued by the clerk of the county court of Potter County, Texas, on November 19,1915, and there is a certificate attached thereto, purporting to be signed by an ordained minister, certifying that the ceremony was performed on the same day, and there is also a certificate of record purporting to have been signed by, the county clerk.

Appellant adduced testimony of the proper officers and custodians of records in all the places where there was proof tending to show that Meredith had lived up to the time of his alleged intermarriage with appellee, to prove that no decree of divorce had been granted to Meredith or to his former wife, Nora C. Meredith

Appellant contends that, though the burden was on it, according to our decision in the former appeal, to overcome the presumption of the legality of Meredith’s last marriage by showing that there had not been a divorce from his former wife, the fact that there had been no divorce granted was established by undisputed evidence, and that the court should have directed a verdict in favor of appellant.

We do not agree with counsel for appellant that the evidence can be treated as undisputed. The only proof adduced tending to establish the various places of resience of Meredith prior to his intermarriage with appellee was brought forward by the appellant, and appellant then showed by the proper custodians of records that there had been no decree of divorce rendered at any of those places of residence. But the burden being upon appellant to completely negative the fact that there had been a divorce before it can be said that the testimony is undisputed, it must have closed up every possible ave-, nue for the divorce having been' granted at some place other than that covered by the testimony adduced in the case.

The testimony undoubtedly warranted a finding that Meredith had only lived at the places covered by the proof which appellant introduced, but this proof was not undisputed and conclusive of the fact that Meredith had only lived at those places. For instance, the proof as to Meredith’s place of residence up to and including the year 1912 depended entirely upon the testimony of the former wife, who stated that she was interested in the litigation by reason of the fact that she herself was claiming to be the beneficiary under this policy, and her testimony covering that period of time cannot be treated as undisputed. The jury was not bound to accept it, as it came from a witness confessedly interested in the result of this litigation. Skillern v. Baker, 82 Ark. 86. The other testimony on this subject was mainly proof of the contents of the record of Meredith’s employment and period of service with the respective railroad companies showing his headquarters during such period. The jury was not bound to accept these records, conceding that they are admissible in evidence for that purpose, as conclusive evidence of the various places of residence of Meredith during those periods. It was a question for the jury to determine whether or not the evidence adduced by appellant was sufficient to overcome the presumption. The proof adduced by appellant on this subject was to be considered by the jury in connection with the presumption in favor of the validity of appellee’s marriage with Meredith, and it was within the province of the jury to determine the weight and sufficiency of the evidence. We cannot say that it was undisputed, and the court did not err in refusing to take the case from the consideration of the jury.

Appellee was permitted to prove by the testimony of witness Lindsey, introduced over appellaftt’s objection, that Meredith had stated to him, subsequent to his intermarriage with appellee, that he had been divorced from his former wife, Nora. Other similar declarations made by Meredith were admitted in evidence, over appellant’s objection. We are of the opinion that this testimony was incompetent and should not have been admitted. We decided on the former appeal that declarations and admissions of Meredith to the effect that he had not been divorced from his former wife, Nora, were not admissible against appellee as the beneficiary under the certificate. We are unable to conceive any rule upon which the declarations of Meredith would be competent evidence against appellant. The statements of Meredith were merely self-serving, and it necessarily follows that they were not admissible against the appellant as tending to show that there had been a divorce. The damaging effect of this inadmissible testimony is obvious, because if the jury were permitted to consider it at all, they doubtless gave it considerable weight. The erroj* in admitting this evidence calls for a reversal of the judgment.

The court, over appellant’s objection, gave the following instruction:

“1. If you find from the evidence that a marriage contract was, in form of law, solemnized, ceremonial in form, between the plaintiff and Arthur C. Meredith, either in that name or in the name of Charles A. Mere-, di'th, by an ordained minister, and that they thereafter lived together as husband and wife until said Arthur C. Meredith’s death, the law presumes that said marriage was valid, and this presumption being one of the strongest known to the law, can only be overcome by strong, distinct, satisfactory and conclusive evidence to the contrary. In other words, in this case, the defendant having attacked the legality of the marriage between plaintiff and said Meredith, the burden is upon the defendant to convince you that Arthur C. Meredith had not been divorced from his first wife, and, as before stated, the law requires a high degree of proof to establish this fact. If you find from all the evidence in this case that the defendant has failed to do this, to your satisfaction, then your verdict should be for the plaintiff. ” * * *

The objection to this instruction was general, and it is unnecessary to determine on this appeal whether or not that form of objection was sufficient to properly call in question the defects and errors in the instruction, but in view of another trial of the case we call attention to it for the benefit of the trial judge.,

The instruction is erroneous in that it places upon appellant the burden of too high a degree of proof in order to overcome the presumption of the validity of appellee’s intermarriage with Meredith. The instruct tion, in effect, constitutes one upon the weight of the evidence. The presumption of the validity of appellee’s marriage is a rebuttable one and may be overcome by a preponderance of the testimony, and the question of the weight and sufficiency of the evidence is, as in all other trials of issues at law, one for the jury.

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


author: Wood, J.

text:
    LaGrand v. Arkansas Oak Flooring Company.
    Opinion delivered November 20, 1922.
    1. Jury — challenge por cause — discretion of court. — Where a juror on the list furnished to make up the jury was an officer in the same company with one of defendant’s officers, but he had no interest in defendant company, it was within the court’s discretion to refuse to allow a peremptory challenge.
    2. Evidence — photographs.—In an action for injuries in being struck by a belt, photographs, identified as being correct representations of the premises where plaintiff was injured, were admissible as evidence to aid the court or jury to understand the evidence, the witnesses to explain their testimony.
    3. Appeal and error — invited error. — In an action for personal injuries, resulting in the loss of plaintiff’s eye, he cannot object on appeal because the trial court admitted evidence of a medical expert’s opinion that the wound to plaintiff’s eye was such as could have been made by plaintiff stooping down and striking his eye against some object, where plaintiff had previously elicited similar evidence from another witness.
    4. Trial — abstract instructions.- — It was not error, in a personal injury action, to refuse instructions on the issue of contributory negligence where there was no testimony tending to prove contributory negligence.
    5. Negligence — proximate cause. — One is not liable in damages for an injury that was not the direct result of his negligence.
    6. Master and servant — presumption from happening of injury. — In an action for injuries to an employee struck by a belt when it parted, the master’s negligence will not be presumed from the fact alone that the belt parted and that plaintiff was injured thereby.
    7. . Master and servant — duty to furnish safe place and tools.— A master is only required to exercise ordinary care to furnish his employee a safe place in which to work and safe tools to work with, and if, while exereiáing such care, he could not reasonably have anticipated that the injury could occur'as it did, he is not negligent in failing to provide means to prevent it.
    8. Master and servant — accidental injury. — 'Where, an employee’s injuries were the result of a pure accident, and not of the negligence of any one, he could not recover.
    Appeal from Jefferson Circuit Court; W. B. Sorrels, Judge;.
    affirmed.

      Rowell <& Alexander, for appellant.
    It was an abuse of discretion on the part of the court in refusing to hold juror Hightower incompetent, because of business relationship with an officer of the appellee.
    It was improper to admit the unauthenticated photographs.
    The question propounded to Dr. Breathwit, an expert, as to the manner in which the injury might have occurred, was prejudicial. The opinion of an expert is not admissible to prove a matter of common experience and knowledge. 55 Ark. 593; 94 U. S. 469; 56 Ark. 617; 62 Ark. 70; 121 Ark. 626; 108 Ark. 387; 4 L. R. A. (N. S.) 460; 16 L. R. A. 437; 66 Am. Dec. 219, and notes
    Instruction 18 requested by appellant on the question of comparative negligence declared the law as set forth in sec. 7145 of C. & M. Digest, and by analogy with the case at 135 Ark. 480, the instruction should have been given.
    Instruction No. 8, given, was error. 18 Fed. 304; 15 Minn. 519; 67 Wis. 24.
    Instruction 10 was misleading, and not supported by the evidence. The servant did not assume the risk unless he appreciated the danger. 105 Ark. 337; 105 Ark. 392. He does not assume risk from latent defects. 79 Ark. 20.

      ColemaA% ■& Gantt, for appellee.
    Juror Hightower was qualified. See 121 Ark. 202. The objection to him was not made in time. 13 Ark. •295.
    The photographs were shown to be correct, and were competent. 80 Ark. 528.
    The evidence of Dr. Breathwit was only a repetition of testimony elicited before from Dr. Crump, a witness for appellant, whose testimony was unchallenged, and was therefore not prejudicial. 56 Ark. 37.
    Instructions 16, 17, and 18, on the question of contributory negligence, were properly refused, because not pertinent to any issue in the case. 2 Ark. 133; 89 Ark. 24.
    Instruction 7 was correct. 95 Ark. 597 and 87 Ark. 576.
    Instruction 8 was correct. 79 Ark. 76.
    Instruction 9 was correct. 70 N. Y. 90; 35 Ark. 602; 3 Labatt, Master & Servant, sec. 1042, and notes; 83 Md. 257.
   Wood, J.

This is an action by the appellant against the appellee to recover damages for personal injuries. The appellant alleged that the appellee was a corporation, and that he was in its employ, and that while in the discharge of his duty, and free from any carelessness on his part, on the 9th day of August, 1921, through the negligence of the appellee, a large belt in the appellee’s plant broke, one end of which struck the appellant about the head and left eye, which rendered him blind in that eye; that the appellee was negligent in failing to furnish the appellant a safe place to work and in failing to properly inspect the belt in use, and in’ removing the hood which was placed over the belt. He prayed judgment for damages in the sum of $10,000.

Appellee, in its answer, denied all the material allegations of the complaint, and set up the affirmative defenses of contributory negligence and assumed risk.

The testimony of the appellant tended to prove that he was employed at the sawmill plant of the appellee as a common laborer. On the day he was injured he was putting boards on the table for the rip-sawyer. He was fourteen or fifteen feet away from the belt that broke. When the belt broke, the belt, or piece of it, hit the appellant in the eye, which put it out. One witness testified that on the day before the accident he had worked on the belt that broke and injured the appellant.; that he had fixed it with glue. The belt came apart where it was glued ’ and several pieces whipped off and flew in different directions. Some were as large as your hand and some were not larger than your thumb. The belt was running very fast. There was no top o,n the box the day appellant was injured. The top was there for the protection of the employees. If the top had been on, the belt was not liable to fly out, but would have gone underneath. The hood should have been there, but was off to oil the bearings and had not been put back. If it had been on the appellant would not have been hurt. The belt was old. It had been used and spliced. It should be looked after every day. If it had been looked at that afternoon, it could have been discovered that-it was coming loose.

Photographs of the rip-saw and premises showing where the appellant was situated on the day'of his injury were identified by the photographer who took these pictures, and also by one of the owners of the plant, as being correct representations of the premises.

There was testimony on behalf of the appellee tending to prove that the place where the appellant was standing at the time of his injury was 23 feet from the belt; that it was not possible for the belt to reach over and strike the appellant. There was testimony tending to prove that the fender box housing the belt was properly constructed; that a top was not necessary on a machine of that make; that in mills constructed as this one was it was not customary to have housing or a top over the driving pulley. There was further testimony tending to show that the belt was of a reliable quality and properly constructed; that immediately after the appellant was injured the place where he was standing was examined and no piece of the belt was found that could have struck him. A piece of belt was found about a foot from where it came off the pulley. The belt itself was examined, and the whole belt was intact except a small piece about six inches wide.

Witnesses who were familiar with the premises and the construction of the belt and pulley, after testifying concerning these, stated that in their opinion it was not possible for the belt to come out of its housing and hit a man where .the appellant was standing, and that it would have been more dangerous for the belt to have had a housing or covering over it than without. There was testimony tending to prove that the belt had been inspected the day of the accident, and before the injury occurred.

The issues of negligence and assumption of risk were sent to the jury under instructions which will be referred to later. The jury returned a verdict in favor of the appellee. The motion for new trial, assigning the various errors upon which the appellant relies, was overruled. We will refer later to such of these assignments of error as we deem necessary. From a judgment in favor of the appellee is this appeal.

1. After the appellant had exercised his challenges to the list furnished him from which to make up the jury, he asked the court to permit'him to challenge juror High-tower and to accept in lieu of him juror 0 ’Connell. Appellant stated to the court that his attention had just been called to the fact that one E. A. Howell was vice-president and a director of a certain trust company and also vice-president and a director of the appellee; that juror Hightower was also an officer of the same trust company, and that for the reasons stated appellant wished the privilege of then challenging Hightower and accepting 0 ’Connell, who at that time had left the room. The court refused the request, to which ruling appellant duly excepted.

It is not contended that Hightower had any interest, direct or remote, in the appellee. He was a qualified juror, and it was within the.discretion of the court at that juncture to refuse the above request of the appellant to substitute another juror for him. There was no abuse of this discretion. Rumping v. National Bank of Hot Springs, 121 Ark. 203; Funkhouser v. Pugue, 13 Ark. 295; Decker v. Laws, 74 Ark. 286; Lavender v. Hudgins, 32 Ark. 763.

2. The photographs were duly authenticated. They were shown to he correct representations of the locus in quo at the time the appellant was injured. They were therefore “admissible as evidence to aid the court or jury to understand the evidence, and witnesses to explain their testimony.” K. C. S. R. Co. v. Morris, 80 Ark. 528-534; Young v. State, 144 Ark. 71; see also Zinn and Chaney v. State, 135 Ark. 342.

3. Dr. Breathwit, who qualified as an expert in the treatment of the eye, after describing the nature of the wound to the appellant’s eye, was asked this question: “Was the wound which you found upon your examination made at the time such as could have been made by appellant himself in stooping down and striking his eye against some object?” The witness, over the objection of appellant, was permitted to answer the question, and answered in the affirmative.

Conceding, without deciding, that the question was an improper one, the appellant is not in an attitude to complain of the ruling of the court. For the error, if it be an error, was waived by the appellant by not objecting to a precisely similar question propounded by appellee’s counsel on cross-examination to an expert witness which appellant had introduced to prove the nature of the injury to appellant’s eye. Moreover, the error, if it be an error, was invited by the appellant, and he is in no attitude to complain, because in the cross-examination of appellee’s superintendent, who was on the ground and had his attention drawn to the injury a few minutes after it occurred, and who was investigating to ascertain the cause, he was asked by the appellant’s counsel what he thought was the cause of the injury, and he explained that in his opinion “when the belt broke the appellant just ducked down and struck his eye on the sharp corner of the board.” This testimony having been elicited by the appellant himself, he cannot complain because the appellee thereafter brought forward evidence, which was merely opinion evidence, to the effect that the appellant’s injury could have been caused by tbe appellant striking his eye against some object. The testimony thus adduced by the appellee was in its nature merely cumulative of that which had already been brought into the case by the appellant himself. See Greer v. Laws, 56 Ark. 37. While the appellant objected to the testimony of Dr. Breathwit, he did not ask the court to exclude testimony of the same nature which had already been brought into the case without his objection and the other testimony which had been elicited by the appellant himself.

4. The appellant complains of the ruling of the court in giving its instructions to the jury and in refusing certain prayers of appellant for instructions. It is unnecessary to set out and discuss in detail the several instructions given and the prayers for instructions refused. The issues of negligence and assumed risk were submitted to the jury in instructions which correctly declared the law applicable to the facts and in conformity with many decisions of this court. No useful purpose could be subserved by reiterating those familiar doctrines. The court submitted the appellant’s theory of the case on the facts in several prayers for instructions. Such of appellant’s correct prayers as were refused were covered by those granted. The court did not err in refusing the several prayers of the appellant for instructions on the issue of contributory negligence. There was really no testimony in the record tending to show that there was any contributory negligence on the part of the appellant, and the court would have been fully justified in refusing to submit that issue to the jury. The court, however, gave appellant’s prayer No. 1, which embraced the issue of contributory negligence and fully covered other prayers of the appellant on that subject, which were refused. It was not error to refuse any prayer offered on the issue of contributory negligence, because that issue was entirely eliminated by the undisputed evidence in the case.

For the same reason the court did not err in refusing to give appellant’s prayer for instruction No. 18 on the subject of comparative negligence.

Appellee’s prayer for instruction No. 7 in substance told the jury that the appellee would not be liable in damages for an injury that was not the direct result of the negligence of the appellee. The instruction was correct. Emerson v. Turner, 95 Ark. 597-604; Pittsburg Reduction Co. v. Horton, 87 Ark. 576-581.

In appellee’s instruction No. 8 the court told the jury, in effect, that the negligence of the appellee could not be presumed from the fact alone that the belt parted and that the appellant was injured thereby. The instruction was correct. St. L. S. F. R. Co. v. Hill, 79 Ark. 76-81, and cases there cited.

In instruction No. 9 the court, in effect, told the jury that, even if the appellant’s injury resulted from the breaking of the belt caused by the appellee’s failure to inspect the same, or its failure to have a hood over the belt, still the appellee would not be liable unless, in the exercise of ordinary care under the circumstances, it could have anticipated or foreseen that the injury might have occurred to the appellant while working at the place where he received the injury; that the appellee’s duty to exercise reasonable care to furnish the appellant a safe place to work extended only to such parts of the premises as the appellant occupied while in the discharge of his duty. The instruction was. correct. The master is only required to exercise ordinary care to furnish his employee a safe place in which, and safe tools with which, to do his work, and if the master, in the performance of this duty, has taken every precaution that a man of ordinary care and prudence would take under the same circumstances, then he is not guilty of any negligence. If the master, in the exercise of ordinary care to furnish a safe place and tools, could not have reasonably anticipated or foreseen that the injury could occur as it did, then he is not negligent if he fails to provide means to prevent it. Little Rock & Ft. Smith Ry. Co. v. Duffy, 35 Ark. 602-615-616. 3 Labatt’s Master & Servant, sees. 1042-1046, footnotes 2 and 3, and Wood v. Heiges, 83 Md. 257, 34 Atl. 872.

Instruction No. 10, given at the instance of the appellee, was an instruction on assumption of risk, and, taken in connection with appellant’s instruction No. 4 on that subject, correctly declared the law.

Instruction No. 11, given at the request of the appellee, told the jury that if the appellant’s injuries were the result of a pure accident and not the result of the negligence of any one, the appellant could not recover. The instruction was applicable to the facts and was a correct declaration of law.

The issues were correctly submitted to the jury, and there was' testimony to sustain the verdict. The judgment must therefore be affirmed. It is so ordered.


text:
    Lehman v. Broyles.
    Opinion delivered November 20, 1922.
    1. Appeal and error — conclusiveness op court’s finding of pacts. A finding of fact by a trial court sitting as a jury is as conclusive on appeal as would be the verdict of a jury, and will not be disturbed where there is substantial evidence to support it.
    2. Gifts — deposit in bank — delivery.—In a suit for funds deposited in a bank to plaintiff’s credit by decedent, who delivered the pass book to plaintiff, telling her that it was her money and that he was making the deposit for her, held sufficient to' sustain a finding of a delivery and acceptance, necessary to constitute a gift inter vivos.

    Appeal from "Washington Circuit Court; W. A. Dickson, Judge;
    affirmed.

      John Mayes, for appellant.
    The appellee has utterly failed to show a delivery to her, symbolical or otherwise, of the money in controversy, or the delivery and possession of the pass book.

      It is well-established law that gifts, either causa mortis or inter vivos, must show an actual delivery by the donor to the donee of the property intended to be gwen, as well as the circumstances under which either must be consummated. 44 Ark. 45; 107 U. S. 602; 114 Mass. 30; 43 Ark. 307; 1 Ark. 83; 6 Ark. 538.
    There were no instructions or directions given by Mr. Lehman to the bank, at any time, for the bank to deliver this money to appellee.
    One can make a lawful gift inter vivos of his property, provided the gift is complete, i. e., that the donor parts with all control of it, and reserves no right to recall it, and intends it to be a final disposition of the property. 147 Ala. 311; 3 L. R. A. (N. S.) 774; 40 So. 104; 10 Ann. Cas. 1051; 68 Ark. 255; 58 S. W. 42; 113 Cal. 490; 45 Pac. 867; 176 Pac. .56; 52 Ind. 393; 137 Iowa 742; 115 N. W. 590; 28 Atl. 9; 144 Pac. 1094. Delivery to an agent or trustee for the use of the donee.is sufficient to vest title in the donee. 138 Iowa 344; 116 N. W. 119; 151 Iowa 362; 130 N. W. 125.
    Where property intended to be given to a third person for delivery to the donee, although the right of revocation existed, but was not exercised prior to the death of the donor, the title vested in the donee. 173 Iowa 165; 155 N. W. 283; 51 Vt. 227; 31 Am. Rep. 682; 179 111. 137; 53 N. E. 584.
    There was no delivery or surrender of dominion of the property by the appellant. 138 Mass. 581; 192 Mass. 564; 116 Am.'St. Rep. 270; 78 Neb. 648; 141 Mo. 642; 43 S. W. 617; 42 Mo. App. 49; 125 Mo. App. 165; 101 S. W. 1108.

      Walker ■& Walker, for appellee;
    Where the judgment of a court sitting as a jury is based upon substantial testimony, its judgment •will not be disturbed on, appeal. 38 Ark. 139; 45 Ark. 41; 50 Ark. 305; 53 Ark. 161; 56 Ark. 621; 68 Ark. 83.
    Findings of fact by a court sitting as a jury are as conclusive as the verdict of a jury, and will not disturbecl if there be evidence to support them. 90 Ark. 512; 91 Ark. 108; 92 Ark. 41;-90 Ark. 494; 90 Ark. 375; 100 Ark. 166; 86 Ark. 504; 80 Ark. 47; 82 Ark. 188; 84 Ark. 623; 97 Ark. 374; 80 Ark. 249; 96 Ark. 606; 114 Ark. 170; 171 S. W. 924; 111 Ark. 190.
   Wood, J.

The appellee instituted this action in the. circuit court of Washington County against the Arkansas National iBank of Fayetteville, Arkansas (hereafter called bank), to recover tlie sum of $3,366 with interest thereon at four per cent, from the 30th day of June, 1918, She alleged that the money was deposited with the bank to her credit by William Lehman, who had legally adopted the appellee as his daughter. The appellants filed an intervention alleging that they were the sole surviving heirs of William Lehman; that the money on deposit in the bank was the property of William Lehman, and at his death they became entitled to same as his only heirs. They denied that the appellee was the legally adopted daughter of William Lehman, and denied that she was entitled to the money in controversy. On the 29th of October, 1921, the bank paid to the clerk of the court the sum of $3,366, and by consent of all parties was discharged from further liability.

The appellee testified that ' she was the adopted daughter of William Lehman, deceased. Her father, William Lehman, delivered to her a bank deposit book and made her a present of some money in the bank, which book she introduced in evidence. When the book was delivered to her it showed a deposit of $600. When her father delivered the book to her he told her that was her money. William Lehman, her adopted father, had no child of his own. At the time he delivered the book to witness his wife was dead. From time to time after he first delivered the book to witness he called upon witness for the book and made other deposits, and told witness they were hers. Witness was the owner of the money in controversy, and had made demand on the bank for same, and instituted this action because the bank refused to pay the money over to her. Witness further testified that she had not checked against the deposit during the life-time of her father; that he said, “I am making a deposit for you. You don’t really need this money now. It might he that later you will need it.” The bank book had been in her possession at all times since it was first delivered to her by. her father, except at such times as her father called for it when he desired to make additional deposits. Her father was 68 or 70 years old at the time of his death. At one time during his life she loaned him $500, and. he gave her his note for it. Numbers and numbers of times before that her father had given her money, and she had always had a bank account with the bank, and also had an account with the First National Bank. .The $500 she loaned her father was in the First National Bank. She checked it out and • delivered the money to him. The reason she did not have her father pay the $500 when he was depositing the money to her credit was that she did not need it. He always looked out for witness’ welfare — anything she needed. She didn’t ask her father for interest on the note. She left the $500 note and mortgage in her father’s box for safekeeping at his suggestion. She knew nothing about her father making a deposit for her to avoid any judgment that might be obtained by the woman he had married in Texas. Her father had given her the money; that was all she knew. Her father had considerable money in the bank in his own name, which came into the hands of Mr. Wilson, his administrator. Her father had in his box, «which she opened, vendor’s lien notes amounting to thousands of dollars on property in Texas. She turned over the box to the administrator. Her father was stricken with paralysis at the home of Mrs. Collins.

T. L. Hart testified that he was cashier of the bank. The book exhibited and introduced is a savings pass book issued by the bank to Mrs. Ethel Broyles. The book gives a correct record of the amount of money deposited by William Lehmaii and the withdrawals from same which were charged to the account of Mrs. Ethel Broyles. William Lehman was dead. The withdrawals from the fund were by checks drawn by William Lehman. He made the last withdrawal in May before his death, amounting to $100. Witness had no instructions to honor appellee’s drafts against the account — had instructions not to honor checks drawn by her. Witness further stated that, while Lehman did not tell him definitely when he made the deposit, witness drew the presumption that he had some fears that some woman may be molesting his estate or his funds, and he said that he wanted that in such a shape that his daughter, Mrs. Broyles, would have no trouble after his death, but at the same time he reserved the right to control the fund as he saw fit. Witness was asked whether or not he had any authority from Mrs. Broyles to check against that account, and answered, “Well, we had no instructions from Mrs. Broyles either way.” Mrs. Broyles brought the bank book in after her father’s death and had witness to bring it down to date with the amount of accrued interest at that time. Witness further testified that he did not know where Lehman kept his pass book. He would bring the book with him when he made a deposit. He could not say that he had the book with him every time, but several times he did. Witness could not recall the exact words of Lehman in regard to the money but he said, “I want this money so no one can molest it. ’ ’ Thus in a scattering way he led witness to believe he was apprehensive that somebody would try to get it. Witness did not remember whether Lehman had other money on deposit at that time, but thinks that is all he had. Witness had been unable to find any checks against the deposit, except one. Witness exhibited this check, which was as follows:

“Muskogee, Okla. 5-3-21.

“Pay to the order of S. S. Gill, Trustee, $100.00, one hundred no/100 dollars.

“Endorsed by payee, this check becomes a receipt in full for account as per statement below.

“Arkansas National Bank, Fayetteville, Arkansas.

“Chg. Ethel Broyles.

“W. M. Lehman.”

The words “Charge Ethel Broyles” on the draft were put there by witness. Witness didn’t know about that particular check or draft, but it was witness’ understanding when Lehman made the deposit that he would control it and withdraw from it as he saw fit. He wanted it there so when he died it would be in such a shape that “she wouldn’t have any trouble in getting it. That was about the sum and substance of it.”

The appellee was recalled and testified that when her father was making deposits he would say to her, “This is for you,” and a few times he said, “I am going to check on this, will that be all right?” She replied, “Perfectly all right. Any time you need any money don’t save anything for me that you might need yourself —use it.”

There was testimony on behalf of. the .appellee to the effect that the relations between William Lehman and the appellee before and up to the time of Lehman’s death were pleasant. William Lehman died at Fayetteville. At that time the appellee was living in Joplin, Missouri.

We deem it unnecessary to set out the testimony that was introduced on behalf of the appellants, the interveners, and also the testimony that was introduced on behalf of the appellee on the issue as to whether or not she was the legally adopted daughter of William Lehman. The court made a general finding in favor of the appellee on all the issues, and in the view we have of the case it becomes wholly unnecessary to set forth any testimony except that already stated, for the reason that the appellant contends that the above testimony was not sufficient to show that there was a gift inter vivos of the money by Lehman to the appellee. If the above testimony' is sufficient to sustain the finding of the court that the money in controversy was given by William Lehman to the appellee, then all other questions pass out.

The law is well settled that the finding of fact of a circuit court sitting as a jury is as conclusive on appeal as would be the verdict of a jury, and the verdict of a jury on appeal will not be disturbed where there is substantial evidence to support it. See Rush v. Citizens’ National Bank, 114 Ark. 170; Greenspan v. Miller, 111 Ark. 190; Williams v. Board of Directors, 100 Ark. 166, and many cases cited in appellee’s brief.

No declarations of law were asked of made by the trial court, and the only question, therefore, for our determination is whether or not the above testimony, giving it its- strongest probative force in favor of the appellee, was sufficient in law to constitute a gift inter vivos between Lehman and the appellee. In Lowe v. Hart, 93 Ark. 548, the facts were somewhat similar concerning the delivery of money to the facts here. In that case one Carroll, the donor, handed to Mrs. Hart, the donee a certificate of deposit and said, “Here is a check for my money.” On another occasion he was at the hospital and was told that he might die, and was asked what he was going to do with his money, and his reply was, “John Hart’s folks will know what to do with my stuff.” Commenting upon these facts, we said: “If Carroll intended at the time he handed the certificate to Mrs. Hart to immediately pass to her the title and the right to draw his money on deposit, as the above evidence tends to show, and if she accepted it as her own, then the intention on his part to give, and on her part to accept, accompanied by delivery of the certificate for the purpose indicated, would constitute an absolute gift inter vivos. Citing Ammon v. Martin, 59 Ark. 191.” See, also, Nolen v. Harden, 43 Ark. 307, 318-19; Harmon v. Harmon, 131 Ark. 501-506; King v. Allen, 132 Ark. 54.

In the recent case of Gordon v. Clark, 149 Ark. 173, we held that the delivery to another by a depositor of a bank book showing the amount of the deposits would not be a delivery so as to pass title from the depositor to the person to whom the book was delivered. 'But the case at bar is entirely different from that, because here the deposits were made and entered in the bank book, not in the name of Lehman, the depositor, but in the name of appellee herself. “The savings pass book” says the cashier, “was issued by the bank to Mrs. Ethel Broyles.”

Now it occurs to us that the facts of the present record are fully as convincing of the intention of Lehman to give the appellee the money in controversy and of appellee to accept the same as were the facts in the case of Lowe v. Hart, supra. The court manifestly found that Lehman gave the appellee the bank book intending to vest in her the funds in controversy, and that she accepted the gifts. At least, a general finding would include a specific finding to that effect, and, even though we might have rendered a different verdict on the facts if we had been sitting as jurors, yet under well established rules of this court we cannot disturb the verdict or finding of the trial court where there is any legal evidence to sustain it. Lowe v. Hart, supra, and cases there ¡cited at pages 561-2.

The court might have found from the testimony of appellee that Lehman delivered to the appellee the bank savings deposit book, showing deposits in her name, with the intention of vesting title in praesenti in the appellee, and that the appellee accepted the gift as her own. Such a finding would constitute in law a gift inter vivos.

The judgment is therefore correct, and it is affirmed.


text:
    Moon v. State.
    Opinion delivered November 20, 1922.
    1. Criminal law- — use op motion por continuance in argument. —It was error to permit the prosecuting attorney to use defendant’s motion for continuance in his argument to the jury where it does not appear that the motion was introduced in evidence; and such use of the motion was prejudicial where it was calculated to cause the jury to believe that defendant had sworn falsely.
    2. Seduction — testimony as to general reputation op prosecutrix. — In a prosecution for seduction, in which defendant had made no attack upon the general reputation of the prosecutrix for truth or morality, it was error to -permit the State to prove the prosecutrix’s general reputation as to morality; the court should have confined the State to proof of her general reputation for chastity in the community in which she lived.
    Appeal from White Circuit Court; J. M. Jackson, Judge;
    reversed.

      Brwndidge <& Neelly, for appellant.

      J. 8. TJtley, Attorney General, Elbert Godwin and Wm. T. Hammock, Assistants, for appellee.
   Wood, J.

This is an appeal from a conviction of appellant under an indictment which in good form charged him with the crime of seduction alleged to have been committed against the person of one Clytie Du-Priest. The appellant was indicted on the 19th day of July, 1921. On the 26th day of July, 1921, he filed a motion for a continuance in which he set up that he could not safely go to trial at that term of the court- on account of the absence of Jewell Moon, Lloyd Casteel and Déwey Wilkerson. He set up that these witnesses were temporarily absent from the State working in the harvest fields of Kansas; that if present they would testify that they had known the prosecutrix for some years; that they had been with her and had observed her conduct at dances and other public gatherings, and, if present, they would testify that they knew that she had been guilty of acts of unchastity and that she was a woman of easy virtue; that Jewell Moon, if present, would testify that Clytie DnPriest admitted to her (Jewell Moon) that she was not chaste, bnt had been guilty of adultery; that she was forced to leave home by her father on account of her disobedience and her imprudent acts with men.

The motion was in proper form. It was granted and the cause continued until the 11th of July, 1922. The bill of exceptions recites the following: “During the argument of the case the prosecuting attorney read to the jury a motion for a continuance filed at the July, 1921, term of the court, to the reading of which said motion counsel for defendant objected as being prejudicial to the defendant, which said objections were by the court overruled, to which ruling of the court defendant at the time excepted and caused said exceptions to be duly noted of record.”

The State introduced testimony tending to prove that the appellant had sexual intercourse with the prosecuting witness under an express promise of marriage, which he failed to carry out; that the prosecuting witness at that time was chaste; that she had never had sexual intercourse with any one else before or since.

The appellant introduced testimony tending to impeach the chastity of the prosecutrix. One witness, Ed-son Blakely, testified that on one occasion prior to the alleged intercourse between the appellant and the prosecutrix she heard the prosecutrix begging’ Lloyd Casteel to take her to Conway; that Casteel told her he could not quit school, and could not carry her any way if he had the money, and the prosecutrix said to him, “I am sure you will get your money’s worth.”

The State in rebuttal called Lloyd Casteel as a witness, who testified that he had known the prosecutrix four or five years, and that he was acquainted with her general reputation for morality in the community where she lived; that it was fairly good. He went with her a few times. He remembered when she tried to get him to take her to Conway. She told the witness that she didn’t have any money, but that she wanted some of her friends to take her there that didn’t have to have money. Witness didn’t think she said anything about witness getting his money’s worth: The appellant testified that he had never had sexual intercourse with the prosecutrix.

1. The appellant contends that the court erred in allowing the prosecuting attorney to read and comment in his argument on the motion for continuance. If, as the Attorney General ^contends, the motion for continuance had been introduced as evidence in the cause, then the prosecuting attorney would have had the right to use the same in his argument, even though the motion were incompetent. But, on the other hand, if the motion was not introduced as testimony in the cause, then the prosecuting attorney had no right to refer to the same in his argument. The record does not show that the motion was introduced in evidence. Such showing should appear affirmatively in the record and not he left to inference from the position where the motion is found in the transcript. The affirmative recital in the record is that the prosecuting attorney read the motion for a continuance in his argument, over the objection of the appellant. The court erred in permitting this to be done, and the error was a prejudicial one.

The appellant had sworn to the contents of the motion, which set up that Lloyd Casteel would testify, if he were present, that he knew that the prosecutrix had been guilty of acts of unchastity and and was a woman of easy virtue. Lloyd Casteel, at the trial, testified to the contrary. By permitting the prosecuting attorney to read the motion he was thus allowed to áttack the credibility of the appellant without having first introduced the motion as testimony. The motion was not a part of the pleadings in the case and was not proper to be read as a pleading. The issue in the case was made up by the indictment and the appellant’s plea of not guilty thereto. The use of the motion by the prosecuting attorney in argument was calculated to cause the jury to believe that the appellant had sworn falsely because the witness Casteel had not sworn at the trial as the appellant stated he would swear in the motion for a continuance. This improper use of the motion in argument might have caused the jury to conclude that the appellant was unworthy of belief, and therefore its tendency was to destroy the force and effect of appellant’s testimony. If the State desired to use the motion to contradict the testimony of the appellant and to thus impeach his testimony, it should have introduced the motion as evidence in the cause. See Baker v. State, 85 Ark. 300; Weaver v. State, 83 Ark. 119; 38 Cyc. 492.

2. The State, in rebuttal, was permitted, over the objection of appellant, to ask certain witnesses the following question: “Were you familiar with the general reputation she (prosecutrix) bears in that community as to her morals'?” The appellant objected because “there was no attack upon her general character at all.” The answer to the question was: “Her reputation is good.”

In Polk v. State, 40 Ark. 482-487, we held: “The defendant may prove particular acts of immorality or in-decorum, as well as her general bad character. But the inquiry must be confined to the period preceding the defendant’s misconduct. * * * In rebuttal the State may prove her previous purity by her own testimony. * * * It may be further shown that she was a woman of good character, of correct and modest deportment, and that, until the occurrence with the defendant, she was considered by her acquaintances to be virtuous.”

Since the appellant made no attack upon the char acter or reputation of the prosecutrix for morality in general, the court should have confined the State in rebuttal to proof of her general reputation for chastity in the community in which she lived. As is said in State v. Hummer, 128 Ia. 505, at page 507, “The reputation for morality which, under the authority of these cases, may be §hqwn in rebuttal of evidence tending to prove specific acts of lewdness or unchastity, is a reputation for morality in the sexual relations, that is, a reputation for sexual virtue, and not merely reputation as to general good moral character.” See also the authorities there cited.

We have a statute which provides that “evidence of the good character of a witness is inadmissible until his general reputation lias been impeached.” Sec. 4189, C. & M. Digest. In Lockett v. State, 136 Ark. 473, we held on rehearing, at page 480, that proof of good character in support of the credibility of a witness could not be introduced until the general reputation of the witness had been impeached.” Here the appellant made no attack upon the general reputation of the prosecutrix for truth or morality. The appellant had only attacked her character for chastity, and the State, in rebuttal, should have been confined to proof of her general reputation for chastity. Testimony as to her general reputation for truth and morality was not in rebuttal of the specific proof made by the appellant that the prosecutrix was an unchaste woman, that is, lacking in sexual virtue. In Polk v. State, supra, we said at page 486, “In every prosecution for seduction the character of the seduced female is involved in .the issue. And character means, in this 'connection, not her general reputation in the community, but the possession of actual personal chastity.”

For the errors indicated the judgment is reversed, and the cause is remanded for a new trial.


author: Humphreys, J.

text:
    Hudson v. Union & Mercantile Trust Company.
    Opinion delivered November 20, 1922.
    Estoppel — inconsistent positions.- — Where a widow, after notifying the administrator of her husband’s estate that she intended to claim money deposited by her husband in his own name as her own, filed a petition in the probate court, alleging that decedent died seized thereof, and praying that she be allowed a widow’s interest therein, she was estopped to claim the fund as her individual estate after the court allowed her one-third of the • amount, which she accepted, and the administrator, believing she had abandoned her claim to the entire fund, paid the balance in good faith on claims probated against decedent’s estate.
    Appeal from Independence Chancery Court; Lyman F. Feeder, Chancellor;
    reversed.

      Samuel M. Casey, for appellants.
    Plaintiff is estopped by the action of the widow in filing a petition for dower out of the funds in controversy, obtaining an order under such petition from the probate court directing the administrator to deliver to her that part which was allowed to her as dower out of the fund, and her acceptance of the same from the administrator. 57 Ark. 638; 96 U. S. 267; 59 Ark. Ml; Bigelow on Estoppel, 6 Ed., 783.-732; Belding v. Whittington, 154 Ark. 561; 99 Ark. 260; Words and Phrases, vol. 3, first series, p. 2498; 21 C. J. 1148; 10 R. C. L. 699-703; 54 Ark. 70.

      Earl C. Casey, for appellee.
    The probate court petition, made an exhibit to the agreed statement of facts, nowhere prays for an allowance of dower, but the prayer was that the adminis.trator be directed to set apart and deliver to her “such part of said estate as she was allowed under the law.”
    It was held on former appeal that the fund in controversy created an estate by entirety in personal property. After Richardson’s death, the entire amount became the property of the survivor. She would not be estopped, therefore, to claim the remainder, even though she had received a part thereof under the name of dower. 147 Ark. 6-11; 30 Ind. 444; 30 L. R. A. 310, 311, note. There is absent in this case that intent which is essential to call into effect the doctrine of equitable estoppel. Story, Eq. Jur. 14 Ed. vol. 3, p. 569, § 1989; Pomeroy, Eq. jur. vol. 2, p. 1440, § 811; 16 Cyc. 726; 54 Ark. 499; 148 Ark. 300-301.
   Humphreys, J.

This ease was here on appeal un: der the style of Union & Mercantile Trust Co. v. Hudson, to determine whether the bill stated a cause of action. The case is reported in 147 Ark. 7. Reference is made to it for the allegations contained in the bill, instead of setting them out herein. Upon the reversal of the decree dismissing the bill and a remand of the cause, an answer was filed interposing, among other defenses, the defense that, after appellee’s executrix had notified appellants that she was claiming the funds on deposit in the First National Bank as her individual property, she filed a petition in the probate court, where her deceased husband’s estate was being administered, for the dower interest in the particular fund in question, which was allowed and paid to her; that, relying upon her election to take dower, the administrator paid the balance of said fund, on the order of the probate court, on preferred claims proved against the estate of V. Gr. Richardson, deceased.

The cause was submitted to the court upon the pleadings and an agreed statement of facts,'with exhibits attached, which resulted in a decree in favor of appellee for $4,885.28, the balance of the fund, including interest, which was on deposit in said bank when Y. Gr. Richardson died, from which judgment is this appeal. The defense interposed and set out above was incorporated in substance in the agreed statement of facts. The following paragraph appears therein:

“Administration was granted to the defendant on the Y. Gr. Richardson estate on the 28th day of May, 1918, and thereafter the said Willie A. Richardson, widow of V. Gr. Richardson, with full knowledge that said money was on deposit in the First National Bank at Batesville, in the name of Y. Gr. Richardson, filed a petition for dower out of said funds and moneys in the Independence Probate Court, a copy of which petition is hereto attached, marked Exhibit ‘ C’, and made a part of this statement of facts.” Exhibit “C” referred to in said paragraph is as follows:

“Petition for assignment of dowry and personalty. In the matter of the estate of V. G. Richardson, deceased.

“Mrs. Willie Alexander Richardson, who is the widow of Y. G. Richardson, deceased, states at the time of the said Y. G. Richardson’s death, he was solvent and was possessed of personal property in the excess of $300 in value, as shown by appraisement list filed herein.

“Also, tire said Y. G. Richardson, before his death, executed a certain will devising and giving all of his estate to the said petitioner, and same has been filed for probation, but your petitioner elects to take her interest as allowed her by law rather than take under said will.

“The said Y. G. Richardson died seized and possessed of certain personal property, consisting of notes, money in the bank and other personal property of the value of approximately $8,000, which is shown by inventory filed by the administrator herein, with the exception of about $6,000, which is deposited in the First National Bank of Batesville, Ark., to the credit of the estate of the said Y. G. Richardson.

“The petitioner, therefore, prays that Roy Hudson administrator of the estate of the Y. G. Richardson, be directed to set apart and deliver to her such part of said estate as she is allowed under the law governing a widow’s allowance, and for all other proper and equitable relief.

(Signed in person) “Willye A. Richardson,

“Casey & Thompson, Attorneys.”

Appellant’s contention is that, under the agreed statement of facts, appellee’s testatrix was estopped from claiming the fund on deposit as her individual estate, and that the court erred in not dismissing the bill. We think they are correct in this contention. The doctrine of equitable estoppel has been defined by this court as follows: “Estoppel in pais is conduct intended and calculated to induce and in fact inducing another person to alter Ms condition 'so that it would be a fraud on him to allow the person to take an inconsistent attitu.de to Ms detriment.’’ Thompson v. Wilhite, 131 Ark. 77; Johnson v. Taylor, 140 Ark. 100. After appellee’s testatrix knew that her husband deposited the money in question in his individual name in the bank, which had been derived from a mortgage on lands owned by them in entirety, and after she had notified appellants that she intended to claim the money as her own, she filed a petition in the probate court alleging that her husband died seized and possessed of.it and prayed that she be allowed a widow’s interest therein. The court allowed her one-third of the amount, which was paid to and accepted by her. Thereafter the administrator of her husband’s estate, under the belief that she had abandoned her claim to the entire fund, paid the balance of the fund out, in good faith, bn preferred claims which had been proved against the estate of her husband which had been ordered paid by the court. These facts bring the instant case within the doctrine of equitable estoppel as defined in the cases cited above, and also within the rule announced in the case of Beam v. Copeland, 54 Ark. 70.

For the reasons indicated the decree is reversed, and a decree is entered here dismissing appellee’s bill for the want of equity.