text:
    Casteel v. State.
    Opinion delivered December 12, 1921.
    1. Criminal law — corroboration op accomplice. — It was proper to charge the jury that defendant could not he convicted upon the testimony of an accomplice unless the same was corroborated by other testimony tending to connect defendant with the commission of the crime charged against him, and that the corroboration was not sufficient if it merely showed that the offense was committed and the circumstances thereof.

      2. Criminal law — sufficiency of corroboration of accomplice.— Evidence held to corroborate sufficiently the testimony of an accomplice to the effect that defendant had been engaged in the unlawful manufacture of intoxicating liquors.
    3. Intoxicating liquors — evidence of manufacturing. — On trial of a charge of manufacturing intoxicating liquors, it was admissible to prove that whiskey was found in defendant’s possession, and that he was convicted of transporting liquor after the indictment herein was returned, where the court told the jury that they could consider such testimony only as tending to show that defendant' was engaged in the business of illegally manufacturing intoxicating liquors.
    Appeal from Cross Circuit Court; R. E. L. Johnson, Judge;
    affirmed.

      Killough, Lines & Killough, for appellant.
    Defendants’ motion for new trial should have been granted for the reason that there is no corroboration of the testimony of the accomplice, Termis Butts. 208 S. W. 197. Testimony of an accomplice must be corroborated by other evidence. C. & M. Dig., § 3181; 120 Ark. 148. The evidence relied on to corroborate an accomplice must, independently and without aid of the accomplice’s testimony, tend to connect defendant with the commission of the crime. 137 Ark. 243; 1 R. C. L. 169.
    The court erred in admitting evidence of crimes committed by the defendant subsequent to the time of the indictment, to-wit, the transporting of liquor, a misdemeanor, which occurred seven months or more after the indictment. The fact that a man was engaged in transporting liquor could in no way tend to prove that he also manufactured same, and the admission of such evidence was highly prejudicial. While the court has in numerous cases (131 Ark. 445; 136 Ark. 284; Id. 372; Id. 562) sustained the admissibility of evidence of subsequent offenses to show a general plan or scheme, the evidence here admitted cannot be likened to that in the above cases. There is no logical connection between the two from which it can be said that the one tends to establish the other, and the admitted evidence was prejudicial. 8 R. C. L. 206. Testimony of a person’s guilt or participation in the commission of a crime or felony, wholly unconnected from that for which he is on trial, cannot, as a general rule, he admitted. 2 Ark. 229; 216 S. W. 497.
    The court erred in overruling the demurrer to the evidence and motion for instructed verdict.

      J. 8. TJtley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants.
    The testimony of the accomplice Termis Butts was fully corroborated by others and also by the appellant himself.
    The courts will take judicial knowledge that “whiskey” is intoxicating. 37 Ark. 219; 15 R. C. L. Sec. 59, p. 1132.
    The accomplice need not be corroborated in every part of his testimony. 1 R. C. L. 168; 115 Ark. 480.
    The testimony of the witnesses Stafford and Hamilton tending to show that appellant committed like crimes, was competent to show, as a circumstance, that appellant had been engaged in operating a still and manufacturing intoxicating liquors, as alleged in the indictment and as testified to by Termis Butts. 131 Ark. 450; case note 18 A. and E. Ann. Cas. pp. 850 and 851; 97 S. W. 92; 45 Md. 33; 108 N. W. 6; 8 R. C. L. Sec. 198, p. 204.
   Wood, J.

This appeal is from a judgment of conviction on an indictment charging that the appellant ‘1 on the 15th day of October, 1920, did .unlawfully and feloniously manufacture, and was unlawfully and feloniously interested in the manufacture of alcoholic, vinous, malt, spirituous and fermented liquors and a compound or preparation thereof commonly called tonics, bitters or medicated liquors, etc.”

Termis Butts testified for the State substantially as follows: He lived with Casteel for two years. He saw Casteel making whiskey on the place he was living on iand assisted him. He had a still, and the boiler was about thirty gallons, made of copper or brass, with coils into a 'barrel and out of the bottom. Witness saw the liqnor after it was made. It was white and tasted like liquor. Appellant came out and took the liquor .away after it was made. Witness saw liquor made out there last about January or February of this year (1921). It started in September or October, 1920. Arthur Clark had another still out there, but witness was not helping him. Clark is Casteel’s step-son, and the other still was just a little way from the one that belonged to Casteel.

Epperson testified that he lived on Casteel’s place. Casteel was joking witness and said: “Epperson, you are crazy about going to church and such things. It would be more fun to have a dancing hall and still here.” Casteel didn’t say anything about making liquor out there. Witness never saw him with any liquor out there but saw a little wine. Casteel built a little house between his house and witness’ and said it would be a good place for a saloon or dance-hall. Witness didn’t tell the grand jury that Casteel made liquor and that he threatened anybody that turned him up. The grand jury asked witness about that wine, and witness said, “It was not liquor — it was red stuff.” And they asked if he sold any of it, and witness said, “He did not.” Casteel was joking when he spoke of the crap games and the dance-hall.

Howard Hamilton testified that he was mayor of the city of Wynne sometime ago and is deputy sheriff now. Sometime ago he saw a car of Casteel’s with liquor in the car and him standing by it. He was not in the car, and there were about four quarts of liquor, and he had none in his possession at that time. Witness found some at his home about three-quarters of a mile west of Wynne — about one gallon in a glass jar. It was white mule; it was white in color; it was hidden about thirty feet from his house in some weeds. The time witness spoke of was since the tenth day of February, 1921. There was no fence up around where witness found the liquor. Witness drove the car in. This liquor was out in the weeds back of his house. Casteel was not there. It was night time. Witness didn’t know who made the liquor or where it came from, and didn’t know anything about Casteel making any liquor. Mrs. Casteel and her mother were at the place where witness found the liquor. Witness didn’t know whether Casteel and his wife were living there or not — had not been seeing him there.

Witness Stafford testified that he was deputy sheriff; that Casteel lived about one mile west of town in May of this year, 1921. Witness made a search of his premises in May with Hamilton; found a gallon of white mule at the edge of the lot in some weeds. At that time witness saw Casteel with some liquor out on the hill and arrested him. Witness never saw a still in the possession of Casteel. He had one that he had torn up which he showed to witness on Tuesday or Wednesday after he was arrested on Saturday night. Witness had a conversation with Casteel after his arrest as follows: “I told him I looked at his mother’s for a still and didn’t find any still or liquor, and he said that I wouldn’t find any still — that he had done torn it up. ” He (Casteel) made a reply before any promise of clemency. He was out on bond at the time he made the statement about having torn the still up, and the statement was voluntary. The conversation detailed was sometime in May of this year 1921. Casteel lives about three miles from his mother. Witness didn’t know who the stuff belonged to, and Casteel didn’t tell witness that the still was his, or that he had anything to do with it. Witness didn’t know whether it belonged to Casteel’s mother or brother. There was never any charge brought against Casteel about that still. The liquor mentioned was found where Luther Casteel was living. Luther Casteel told witness it belonged to his mother.

Charlie Smith testified on behalf of the defendant that in going to Wittsburg last fall he went by a toe path which is. about a half mile from the public road. He found a little still over there by the smoke it made. It was 25 or 30 yards from the path. Witness found Jim Garrett and Termis Butts there. ‘ ‘ They were messing around with that still.” Witness came and told Casteel about it the same day. The still was on Casteel’s place. “I went with him and showed him where the still was. That still did not go on and continue to do business but was gone right now.” Witness did not know where it went. Witness had never drunk any of that white mule out there, and had never bought any liquor from Casteel. Garrett disappeared.

It is unnecessary to set forth in detail any other testimony of the witnesses for the appellant. It tends to show that Jim Garrett and Termis Butts were seen at the still on appellant’s place, and that Garrétt tried to make arrangements with others to move a still on their land in May or June of last year; that appellant was not seen by any of the witnesses at the still.

The testimony of the appellant himself tgnds to show that when he was informed by Epperson that there was a still on his lands he went with Smith, who showed him where the still was, and found Garrett and Butts there and told them to get the still off. He was out there two or three days later, and it was gone. He never had anything to do with manufacturing liquor and didn’t know how long the still had been out there. The still was on his wife’s farm. Appellant had nothing to do with the manufacture of the liquor that Howard Hamilton found in his car; that was three or four months after the indictment was found. Appellant did not know who manufactured that liquor. “The still,” says he, “which Mr. Stafford spoke of my tearing up and throwing away was no still, but some cheap copper. It was not mine. I had no connection with anything that was up there at my brother-in-law’s.”

The court instructed the jury that the witness, Termis Butts, was an accomplice, and that appellant could not be convicted upon his testimony unless the same was corroborated by other testimony tending to connect appellant with, the commission of the crime charged against Mm, and that the corroboration was not sufficient if it merely showed that the offense was committed and the circumstances thereof, and that unless the jury were convinced beyond a reasonable doubt that the testimony of Butts was so corroborated they should find the appellant not guilty. In the above instruction the court correctly declared the law applicable to the testimony of an accomplice. Sec. 3181, C. & M. Digest; Earnest v. State, 120 Ark. 148; Brewer v. State, 137 Ark. 243.

Counsel for appellant do not question the law as thus announced but contend that under the law thus declared by the court there was no testimony to corroborate the accomplice, and that therefore the testimony was not sufficient to sustain the verdict. We do not concur .with learned counsel in this view.

The testimony speaks for itself, and it is unnecessary to discuss it in detail. It suffices to say that it was sufficient to justify the court in submitting the issue to the jury, and’ to warrant the jury in finding that the testimony of the accomplice was corroborated by other witnesses. In other words, the testimony of the other witnesses, independently and without the aid of the testimony of the accomplice, tended to connect the appellant with the commission of the crime and was therefore sufficient corroboration of the testimony of the accomplice, and tended to prove that the appellant was guilty of the crime charged. See Brewer v. State, supra; Kennedy v. State, 115 Ark. 480.

The appellant next contends that the court erred in permitting the State to prove by the witnesses Stafford and Hamilton that whiskey was found in the possession of the appellant and that he was arrested and convicted of the offense of transporting intoxicating liquors after the indictment herein was returned on the 10th day of February, 1921. In passing upon the motion of the appellant to exclude such testimony, the trial court said: “The court holds that this evidence goes to the jury for what it is worth, and as a circumstance only to show what business he (appellant) might probably have been engaged in at the time of the filing of the indictment in this case and at the time alleged in the indictment in which he manufactured liquor illegally; and the -jury is also told that they cannot consider this evidence in arriving at a conclusion of' his guilt or innocence, but only as a circumstance to show what business he might have been engaged in at the time the indictment alleges he was engaged in; of the force and weight of the evidence the jury is the sole and exclusive judge.”

It thus appears that the court, in effect, told the jury that they could only consider the testimony of the above witnesses, to which objection was made, as tending to prove the character of business in which the appellant was engaged at the time of the commission of the alleged offense for which appellant was being tried, and as tending to show whether the intention of the appellant was to engage in the business of illegally manufacturing intoxicating liquors at the time alleged. The testimony was competent for such purpose and comes within the doctrine on that subject announced by this court in Larkin v. State, 131 Ark. 445-449, and Lowry v. State, 135 Ark. 163, and cases there cited. This testimony tended to prove that after the time of the commission of the alleged offense the appellant had in his possession a gallon of white liquor — white mule; that this liquor was concealed in the weeds thirty feet back of appellant’s house. This fact, coupled with the testimony that after the appellant was arrested he stated that he had torn up the still, tended to show that appellant was^ in possession of a still, and that he was manufacturing a liquor called “white mule.” There was testimony tending to prove that the white mule manufactured by the appellant was whiskey. This testimony tended to prove the crime with which the appellant was charged, and under the above authorities was therefore competent. See also 8 R. C. L. p. 205-6, §§ 199, 200 and 201. We find no error in the rulings of the trial court. The judgment is therefore affirmed.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    Chicago, Rock Island & Pacific Railway Company v. McClanahan.
    Opinion delivered December 12, 1921.
    1. Appeal and error — reversible error. — While it was error, in an action to recover from a carrier the statutory penalty for making an overcharge in passenger fare, to instruct the jury that if the defendant intentionally demanded from plaintiif a greater sum than that charged other passengers for the same distance traveled, such error is not ground for reversal when no specific objection was taken, and where it appeared from other instructions that the court intended merely to submit to the jury the question whether defendant exacted an excessive fare from plaintiff.

      t. Carriers — statutes construed. — Crawford & Moses’ Digest, §§ 879, 880, fixing maximum rates of passenger fares, held confiscatory and unconstitutional.

      S. Carrriers — OVERCHARGE—penalty.—Under Kirby’s Dig. § 6620, a carrier forfeits a penalty of not less than $50 for an overcharge in passenger fare, and also a reasonable attorney’s fee.
    Appeal from Hot Spring Circuit Court; W. H. Evcms, Judge;
    affirmed.

      Thos. S. Bugbee and Geo. B. Pugh, for appellant.

      W. H. Mieell, for appellee.
   Wood, J.

On the 24th day of August, 1920, the appellee purchased from appellant’s ticket agent at Malvern, Arkansas, a ticket from Malvern to Hot Springs and return. Appellee hoarded appellant’s train at Malvern and presented his ticket to the auditor, who punched the ticket and returned it to the appellee. The appellee was to change trains at Butterfield. On getting on the train at Butterfield the appellee presented his ticket to the auditor, who refused to accept the same and required the appellee to pay cash fare from Butterfield to Hot Springs, charging appellee the sum of seventy-eight cents, whereas the passenger fare from Butterfield to Hot Springs, according to the schedule of rates in effect at that time, was fifty-six cents.

This action was instituted by the appellee against the appellant to recover penalties for overcharges under the act of April 4, 1887, sections 6611-6620 of Kirby’s Digest. The complaint alleged the facts as above set forth. The appellant denied all the material allegations of the complaint and demurred to the same on the ground that the act of April 4, 1887, had been repealed by act No. 8 of the Acts of 1907 and by act No. 90 of the Acts of 1915, amending act No. 8 of the Acts of 1907 as found in sec. 879 et seq., Crawford & Moses’ Digest.

The testimony of the appellee and of witnesses in his behalf tended to establish the facts as above set forth. On behalf of the appellant E. E. Murrell testified that he was the conductor of the train on which appellee was a passenger on the occasion mentioned by him; that he did not refuse to accept the appellee’s ticket for transportation; that no ticket was offered him by the appellee. He did not charge the appellee from Butterfield' to Hot Springs the sum of seventy-eight cents. His record shows that he collected three fares from Butterfied to Hot Springs on that occasion, and they were each charged fifty-six cents. Witness had been a conductor on the Rock Island for fifteen years and knew the fare from Butterfield to Hot Springs and had a rate sheet giving the fare. The fare at that time from Butterfield to Hot Springs was fifty-six cents.

At the instance of the appellee, the court in effect instructed the jury that, if the appellant intentionally demanded and received from the appellee a greater sum than that allowed and paid by other passengers for the same distance, they should find in appellee’s favor; that a man is presumed to intend the natural and probable consequences of his own acts, and that, if the appellee purchased a ticket from Butterfield to Hot Springs and return and the conductor refused to carry him on this ticket and charged him any amount of money instead of accepting the ticket, this would be an overcharge. And further, if the conductor collected a cash fare from the appellee from Butterfield to Hot Springs and took an amount, over the regular tariff of fifty-six cents, this would constitute an overcharge, and the jury should return a verdict in favor of the appellee.

The appellant prayed the court in effect to instruct a verdict in its favor, which the court refused to do. At the instance of the appellant, the court gave an instruction to the effect that a mistake in making change by which too little change was returned to the passenger would not entitle the passenger to the penalty prescribed by the statute for an overcharge, and also that, if the appellee bought a ticket from Malvern to Hot Springs and used it from Malvern to Butterfield and changed at Butterfield to another train to Hot Springs, and the conductor or fare collector on the train from Butterfield to Hot Springs refused to accept the ticket for that portion of the trip and demanded and collected fare from Butterfield to Hot Springs, this would not constitute two overcharges nor subject the railway company to two penalties. The jury returned a verdict in favor of the appellee in the sum of $50. The court awarded the appellee $40 as an attorney’s fee, and entered judgment against the appellant accordingly, from which is this appeal.

The objections to the instructions that were given by the court were general. The court did not err in refusing appellant’s prayers for peremptory instructions, for there was testimony to warrant the jury in finding that the appellant had refused to accept the appellee’s ticket from Butterfield to Hot Springs for which the appellee had paid, but charged appellee for transportation from Butterfield to Hot Springs, and charged him more than the regular fare or schedule rate of fifty-six cents, or three cents per mile. The court erred in telling the jury that if the appellant intentionally demanded from the appellee a greater sum than that charged other passengers for the same distance traveled, appellant would be liable in this action. However, there was no specific objection to this instruction, and it is manifest that by this instruction the court intended only to tell the jury that if the appellant demanded of the appellee a fare in excess of the regular passenger tariff rate from Butterfield to Hot Springs, this would constitute an overcharge and render appellant liable. The other instructions given -by the court showed that such was evidently the court’s meaning, and, if the appellant conceived that the instruction had a different meaning, it should have directed the attention of the court to it by specific objection.

The appellant next contends that sections 6611 to 6615 inclusive, and sections 6619 and 6620 of Kirby’s Digest ^and the act of April 4, 1887, were repealed by act No. 8 of the Acts of 1907 and by act No. 90 of the Acts of 1915 amendatory of the act of April 4, 1887, and of act No. 8 of the Acts of 1907, (Sec. 879 et seq., Crawford & Moses’ Digest), and that these later acts were declared confiscatory and unconstitutional by the district Federal court. The decision of the Federal court declaring the later repealing acts unconstitutional and void necessarily left the original act of April 4, 1887, under which appellant instituted this action, in full force at the time of the alleged overcharge. Section 3 of that act, Sec. 6620 of Kirby’s Digest, provides that “any of the persons or corporations mentioned in section one that shall charge, demand, take, or receive from any person or persons aforesaid any greater compensation for the transportation of passengers than is in this act allowed or prescribed, shall forfeit and pay for every such offense any sum not less than fifty dollars,' nor more than three hundred dollars, and costs of suit, including a reasonable attorney’s fee, to be taxed by the court where the same is heard.”

Therefore, under the act of April 4, 1887, the judgment in favor of the appellee for the sum of $50 was authorized, and the court was justified in taxing the snm of $40 as a reasonable attorney’s fee. The record presents no error, and the judgment is therefore affirmed.


text:
    Wisconsin & Arkansas Lumber Company v. Fitzhugh.
    Opinion delivered December 12, 1921.
    1. Evidence — parol evidence to explain written contract. —Where a written contract is ambiguous, parol evidence is admissible to explain the situation of the parties, so as that the court may apply correctly the language used to the things described.
    2. Contracts — ambiguity—construction.—Where a written contract is ambiguous, and it becomes necessary to construe it, all doubts must be resolved and the contract construed most stronjgly against the party who prepared it.
    3. Contracts — construction—question for jury. — Where the intention of the parties to a written contract does not appear clearly upon its face, the determination of the question should be left to the jury.
    4. Logs and logging — sale of timber — construction.—Where plaintiff deeded the pine timber on certain land, “excepting ten board trees”, parol evidence was properly admitted to explain what trees were meant to be excepted.
    Appeal from Hot Spring Circuit Court; W. H. Evans, Judge;
    affirmed.

      Henry Berger and Mehaffy, Bonham & Mehaffy, for appellant.
    The description “ten board trees” in the deed was not sufficient to designate the trees reserved. 30 Ark. 640; 30 Ark. 657; 35 Ark. 470; 48 Ark. 419; 95 Ark. 253; 106 Ark. 83; 119 Ark. 301; 139 Ark. 83; 144 Ark. 442.

      H. B. Means and B. B. Glover, for appellee.
    There was no error in admitting oral testimony to prove the terms of the deed. 140 Ark. 231.

      The contract, having been prepared by defendant, must be construed as unfavorably against them as its terms will admit. 90 Ark. 92.
   Wood, J.

This is an action by the appellee against the appellant. The appellee alleges that he is the owner of the N half of the SW quarter of section 4, township 6 S., R. 15 W, and also the NW quarter of the SE quarter of section 5, township 6 S., R. 15 W, and other lands; that he sold to the appellant the pine timber on the above described tracts of land with the exception of ten 'board trees reserved in the face of the timber deed for his own personal use; that after he sold the timber to appellant it entered upon the lands and not only cut the timber purchased from the appellee, but also knowingly cut and removed nine of the ten trees reserved by the appellee when the deed was executed; that these nine trees were worth the sum of $225, for which he prays judgment. The appellant denied that it cut any board trees of the appellee.

The appellee testified that he was the owner of the land described in his complaint. He exhibited the timber deed executed by him to the appellant. The part material to this issue and which was introduced in evidence reads as follows: “This indenture made this fifteenth day of November, 1906, by and between S. E. B. Fitzhugh, party of the first part, and the Wisconsin & Arkansas Lumber Company, party of the second part, witnesseth: The said party of the first part, being the owner in fee, and in peaceable and lawful possession of the following lands in Grant County, Arkansas, to-wit: North half of the southwest quarter, and the southwest quarter of the northwest quarter of section four (4), and also the pine timber on the northeast quarter of the southeast quarter east of the field of section five (5), all in township six (6) south, range fifteen (15) west, excepting ten (10) board trees.” The deed then specifies that for 'the consideration of $1,000 the appellee conveys to the appellant all the timber standing, fallen, and growing on the above-described lands, the timber to be cut and removed from the lands within a period of ten years, etc. The appellee further testified that the appellant prepared the deed which he executed, and when the time specified in that deed expired he executed 'another deed which appellant also prepared and which was substantially a copy of the former deed except that the last deed granted to the appellant the right to remove the timber from the lands for a period of two and a-half years upon the consideration of $200 paid by the appellant to the appellee. After the deed extending the time was executed, appellant cut and removed nine of the trees that had been reserved by the appellee. These trees would have averaged over 2500 feet of lumber to the tree and were worth in the neighborhood of $75 per tree.

Other witnesses corroborated the testimony of the appellee to the effect that the nine board trees reserved in the timber deed were cut by the agents of appellant.

D. D. Clark testified on behalf of the appellant that he and one Lee cut the timber on the lands described in the deed for the appellant; that the timber belonged ,o the appellant except the trees in controversy. The xppellant gave witness and Lee a plat of the land .and told them what timber to cut. They worked by that plat. The board trees were reserved on the SW quarter of the NW quarter of sec. 4, and the NW quarter of the SW quarter of sec. 4. There were two trees reserved in sec. 5. They were left there and not cut at all. As witness understood it, Fitzhugh was to reserve his timber on his own place, and, instead of doing that, he just marked two trees on his own place and on the other three forties in a section he had no right to reserve them he went over there and marked his trees. Witness supposed he had them reserved as board trees. He knew it at the time — knew appellee was to cross nine or ten trees — and at the time witness cut 'the same these trees had the cross on them, and witness knew they were reserved by Fitzhugh. Witness would not have cut these trees if he had not been instructed to do so by the Wisconsin & Arkansas Lumber -Company.

There was other testimony on behalf of the appellant to the same effect, and also testimony tending to show that the value of 'the timber in these reserved trees would run from $4 to $5 per thousand feet.

The appellant asked the court to instruct the jury to return a verdict in its favor and also to instruct the jury that the appellee could recover nothing for the eight board trees on the land in section 4. The court refused these prayers, and appellant duly objected and excepted 'to the court’s ruling. The court, over the appellant’s objection, instructed the jury, in effect, that if they found from a preponderance of the evidence that the appellee reserved ten board trees in the timber deed he executed to the appellant, and that it was the intention of the parties to 'the deed that these board trees should be reserved, and- that by mistake the parties failed to include said reservation in the granting clause, and that the appellee afterward selected and marked these trees in such manner as to notify the appellant, and the appellant knew the particular trees claimed by the appellee, then 'the appellant had no right to cut and remove the same, and if it did so it was liable to the appellee for the actual market value of same. The appellant duly excepted to the ruling of the court in giving the above instruction.

The jury returned a verdict in favor of the appellee in the sum of $216.74. Judgment was rendered in appellee ’s favor for that sum, from which is this appeal.

In the case of Wood v. Kelsey, 90 Ark. 272-277, we said: ‘ ‘ Courts may acquaint themselves with the persons and circumstances that are the subject of the statements in the written agreement and are entitled to place themselves in the same situation as the parties who made the contract so as to view the circumstances as they viewed them, and so as to judge of the meaning of the words and of the correct application of the language to the things described.” See, Maloney v. Maryland Casualty Co., 113 Ark. 174. See also Mays v. Barnett, 150 Ark. 492, and other cases there cited.

Where a written contract is ambiguous, and it becomes necessary to construe it, all doubts must be resolved and the contract construed most strongly against the party who prepared it. Ford v. Ficks, 112 Ark. 1; Clark v. J. R. Watkins Medical Co., 115 Ark. 166. “Where the intention of the parties to a written contract does not clearly appear upon its face, the determination of the question should be left to the jury.” Jones v. Lewis, 89 Ark. 368; Massey v. Dickson, 81 Ark. 337.

Applying the above well-established rules for the construction of written contracts 'to the facts of this record, it is very clear that the ruling of the court was correct in holding that the contract under review was ambiguous and in submitting to the jury the issue as to the intention of the parties to i't in the matter of the reservation of the board trees. The words, “excepting ten board trees” used in the contract are ambiguous. These words conclude the paragraph in which the lands are described, and, without explanation, they are entirely meaningless and nonsensical in the connection used. Therefore, oral testimony was competent to explain the patent ambiguity and to determine the intention of the parties to the contract in the use of these words. The issue as to the intention of the parties in the use of these words in the contract was submitted to the jury under correct declaration of law. There was evidence to sustain the verdict. The record presents no error in the rulings of the trial court, and its judgment is therefore affirmed.


author: Hart, J.,

text:
    Maxwell v. Awtrey.
    Opinion delivered December 12, 1921.
    1. Dower — jurisdiction to award. — The jurisdiction of equity to award dower is not taken away by the statutory remedies at law.

      2. Dower — assignment.—Under Crawford & Moses’ Dig., § 3536, providing that, if a husband die leaving a widow and no children, such widow shall be endowed in fee simple of one-half of the real estate of which such husband died seized where said estate is a new acquisition and not an ancestral estate, held, that no adjudication of a court is necessary to establish the widow’s right to such estate.
    3. Executors and administrators — payment of debts. — Where a widow, who was administratrix of her husband’s estate, and entitled to dower in fee simple in one-half of her husband’s real estate, agreed with his mother, as his sole heir, to exchange deeds to such half interest, which agreement was carried out, the widow-administratrix was not estopped thereby from procuring an order of sale of the mother’s interest to pay debts of the estate.
    Appeal from Montgomery Chancery Court; J. P. Sanderson, Chancellor;
    reversed.
    STATEMENT oe eaots.
    Isaac L. Awtrey brought this suit in equity against Laura 0. Maxwell, as administratrix of the estate of Henry Maxwell, deceased, to enjoin her from selling the lands of said estate under orders of the probate court of Polk County, Arkansas, to pay the debts probated against said estate.
    Henry Maxwell died intestate in Polk County, Ark., in May, 1918, owning certain personal property in that county and certain real estate in Montgomery County, Ark. He left surviving him Laura 0. Maxwell, his widow, and Mary A. Free, his mother, as sole heir at law. Letters of administration were duly issued to his widow, .Laura 0. Maxwell, by the probate court of Polk County and she is still acting as such administratrix. Claims to the amount of $800 were duly probated and allowed against said estate. There were no children, and Mary A. Free, the mother, became the sole heir at law of Henry Maxwell, deceased. She instituted suit in the chancery court of Montgomery County. against Laura 0. Maxwell to have dower alloted to her as widow, and Laura 0. Maxwell was duly served with process in the case.

      Laura 0. Maxwell, the widow, lived in Polk County, Ark., and Minor Pipkin, her attorney in the dower suit, lived at Mena in said county. Isaac L. Awtrey was the attorney of Mary A. Free. While in Mena, Awtrey consulted with Pipkin with regard to a settlement of the dower suit. Pipkin consulted with the widow and a division of the property of the estate of Henry Maxwell, deceased, was agreed upon.
    According to the testimony of Isaac L. Awtrey, while in Mena he consulted with Minor Pipkin with regard to the settlement of the. dower suit. After consultation with Mrs. Free, Awtrey told Pipkin that Mrs. Free would accept as her part or interest in the estate of Henry Maxwell, deceased, a certain farm in Montgomery County, Ark. Pipkin, after1 consultation with Mrs. Maxwell, agreed to this proposition. It was ¡agreed that Mrs. Maxwell should execute a quitclaim deed to Mrs. Free to one of the farms belonging to the estate of Henry Maxwell, deceased, and Mrs. Free should execute a similar deed to Mrs. Maxwell to the other belonging to said estate. Mr. Pipkin got a description of the land belonging to the Henry Maxwell estate from Mrs. Maxwell, and, being called away from his office on business, asked Awtrey to write the deeds. Awtrey wrote the deeds, and they were duly acknowledged by the parties and delivered.
    According to the testimony of Laura 0. Maxwell and Minor Pipkin, after consultation they reached an agreement with Isaac L. Awtrey to settle the dower suit then pending in the chancery court in Montgomery County where the lands of the estate of Henry Maxwell, deceased, were situated. There were two farms situated in Montgomery 'County belonging to said estate, and it was agreed between the parties that Mrs. Maxwell should have one of them as her dower and Mrs. Free the other as heir at law. To carry out their agreement, it was agreed that Mrs. Free should execute a quitclaim deed to Mrs. Maxwell to the land which was intended to be her dower, and Mrs. Maxwell should execute a quitclaim deed to Mrs. Free to the remaining land to show that she had no claim of dower therein. It was agreed that the dower suit should be dismissed.
    Mrs. Free conveyed to Isaac L. Awtrey a one-half interest in the land conveyed to her by Mrs. Maxwell for his fee in the dower suit. Subsequently Mrs. Maxwell ascertained that the personal property belonging to her deceased husband’s estate was insufficient to pay the debts probated against it. Thereupon Mrs. Maxwell as administratrix filed her petition in the probate court asking for the sale of the real estate belonging to her deceased husband’s estate for the payment of the debts probated against his estate, and under the orders of the probate court she proceeded to sell the land which she had deeded to Mrs. Free as sole heir at law of her deceased husband. Isaac L. Awtrey, the grantee of Mrs. Free to an undivided one-half interest in said lands, resisted the sale on the ground that the deed from Mrs. Maxwell to Mrs. Free conveyed the dower interest of the former to the latter, and that the lands were not therefore subject to the payment of the debts of said estate. Hence this lawsuit.
    The chancellor found the issues in favor of the plaintiff Awtrey and a decree was entered accordingly. Mrs. Maxwell, the defendant, has duly prosecuted an appeal to this court.

      Minor Piphin, for appellant.
    The widow and the heir had the right to settle the only thing involved in the suit instituted by the heir, i. e., the assignment of the widow’s dower, and to settle it in the manner they did; and thereby they settled' “their respective rights in said estate,” the part going to the widow being one-half in value of the lands of the estate, in fee simple, free of the debts of the estate, and that part going to the heir being one-half, subject to the debts of the estate.

      Isaac L. Awtrey, fro se.

    Appellant’s testimony shows that dower was all the interest she had in the land she conveyed to the heir, and that that was the interest she intended to convey. She had the right to convey her dower interest to the heir. 84 Ark. 557; 116 Id. 405; 127 Id. 106.
   Hart, J.,

(after stating the facts). The decision of the chancellor was wrong. It was the duty of Mrs. Free as sole heir at law of her deceased son to allot dower to his widow in the lands belonging to his estate. She proceeded to do this by bringing a suit for that purpose in the chancery court of Montgomery County where the lands were situated and making the widow a defendant thereto. The suit was an appropriate one. The original equity jurisdiction over the subject of dower has never been doubted, and it has been uniformly held in thi's State that the statutory remedies for the allotment of dower do not exclude courts of equity from their jurisdiction in the premises. Johnson v. Johnson, 84 Ark. 307, and cases cited.

The heir at law and the widow had the right to settle their respective interests in the estate of Henry Maxwell, deceased, and to carry out their agreement by the execution of deeds to the lands which each of them was to receive. The issue involved in the case pending in the chancery court of Montgomery County was the allotment of dower to the widow by the heir. Two farms belonging to the decedent’s estate .were situated in Montgomery County. It was agreed between the parties that Mrs. Maxwell, the widow, should receive one of these farms as dower, and that Mrs. Free, the mother and sole heir at law, should receive the other as her distributive share of the estate. The farm deeded by Mrs. Free to Mrs. Maxwell became her dower, and Mrs. Maxwell executed a deed to Mrs. Free to the other farm, not for the purpose of conveying to Mrs. Free her dower interest in the land, but for the purpose of showing that she had been allotted dower in the land which had been deeded to her and made no claim to dower in the land which she conveyed by quitclaim deed to Mrs. Free.

There were no children, and the real estate owned by Henry Maxwell at the time of his death was a new acquisition. Under the statute Mrs. Maxwell, as his widow, became endowed of one-half of the lands as dower, and no adjudication of a court was necessary for that purpose. Kendall v. Crenshaw, 116 Ark. 427.

The suit in the chancery court by Mrs. Free against Mrs. Maxwell to assign dower was for the purpose of setting apart to Mrs. Maxwell the portion of the lands which the statute gave her as dower, and the parties accomplished this purpose by the execution of the quitclaim deeds to each other. The deed from Mrs. Free to Mrs. Maxwell was to show what lands had been allotted to the latter as dower by the former as heir. The quitclaim deed from Mrs. Maxwell to Mrs. Free was for the purpose of showing that dower had been allotted to Mrs. Maxwell and that she made no claim to dower in the lands which she deeded to Mrs. Free. Of course, this might have been accomplished by other means, but the one adopted by the parties was an appropriate one for that purpose.

It follows that the chancery court erred in enjoining the administratrix from selling the lands in question to pay the debts of her decedent’s estate, and for that error the decree will be reversed and the cause remanded with directions to dismiss the complaint of the plaintiff for want of equity.


text:
    Samuelson v. Patterson & Company.
    Opinion delivered December 12, 1921.
    Garnishment — sufficiency of evidence. — A judgment against a garnishee is sustained by evidence tending to prove that the garnishee entered into a scheme to defeat the plaintiffs in the collection of their debt.
    Appeal from Boone Circuit Court; J. M. Shvrm, Judge;
    affirmed.

      STATEMENT OE EAOTS.
    On the 23rd day of December, 1919, the plaintiffs, Patterson & Company, sued John Keys before a justice of the peace to recover $120.68 alleged to be due upon a promissory note executed by the defendant to the plaintiffs. On the same day a writ of garnishment was issued and served upon L. S. Samuelson to answer what goods, moneys, and credits he had in his possession belonging to the defendant, Keys. The cause was continued from time to time, and a change of venue was also taken.
    On the 31st day of Márch, 1920, the parties appeared in the justice’s court, and the defendant confessed judgment for the amount of the plaintiffs’ claim, and it was adjudged by the court that the plaintiffs recover of the defendant the sum of $125.68- and the cost of the action. On the same day the garnishment proceeding was tried, and judgment was rendered in favor of the plaintiffs against the garnishee, L. S. Samuelson, for the sum of $125.68 and the accrued interest. On the 27th day of April, 1920, L. S. Samuelson, the garnishee, filed an affidavit for appeal to the circuit court.
    L. S. Samuelson was a witness for himself in the circuit court. According to his testimony, he purchased 80 acres of land from John Keys and agreed to pay him therefor $900. Samuelson paid Keys $315 in cash ■and promised to pay him the remaining $585 by the 1st of January, 1920. John Keys executed to L. S. Samuelson a deed to the land. By agreement, the deed was delivered to the cashier of a bank to be kept by him and delivered to Samuelson upon the payment by Samuelson of $585, the balance of the purchase money, by the 1st day of January, 1920. After Samuelson was garnished in the present action, he went to the bank for the purpose of paying the $585 and obtaining his deed. Samuelson had that amount of money in his pocket, but was advised by the cashier of the bank who held the deed not to pay the money over until the garnishment proceedings were settled. Subsequently the cashier of the bank told Samuelson that he had delivered the deed back to Keys on the 2nd day of January, 1921. About a month later Richardson, who had purchased the land from John Keys after the 2nd day of January, 1920, and had received a deed therefor, executed a deed to the land to L. S. Samuelson for the consideration of $585.
    Samuelson further testified that the banker advised him not to pay the $585 until after the trial of the garnishment proceedings, but that he did intend to pay the $585 later and get the deed to the land.
    According to the testimony of John Keys, the deed was placed in the bank after Samuelson had made a payment of $315 and Keys told the cashier of the bank, in the presence of Samuelson, that the deed was to be delivered to Samuelson upon the payment by him of $585 by the first day of the year, 1920, or that the deal would be off. After the 2nd day of January, 1920, Keys sold the land to Tom Richardson for $585 and executed a deed to him to the land. Keys owed Richardson $585 at' the time he made the contract with Samuelson to convey him the land and he gave Richardson a check for $585 on the bank where the deed was deposited for Samuelson, and intended that Richardson should receive payment of the check when Samuelson paid the balance of the purchase money on the land.
    According to the testimony of Richardson, he did not have anything to do with the trade between Samuelson and Keys and did not enter into any plan or scheme with them whereby the plaintiffs might be defeated in the collection of their debt. He testified that $900 was a little too much to pay for the land, and that he would not give that much money for it. '
    The jury returned a verdict for the plaintiffs, Patterson & Company, against the garnishee, L. S. Samuelson, and from the judgment rendered L. S. Samuelson has duly prosecuted an appeal to this court.

      Shouse S Rowland, for appellant.
    There is no evidence to establish a contract of purchase, or indebtedness. The legal sufficiency of evidence is a question of law, and must be decided by the court. 57 Ark. 461. Under the uncontradicted facts, appellant had an option to purchase at his own election. 82 Ark. 572; 78 Ark. 306.
    Judgment against a garnishee cannot lawfully be rendered until judgment has been rendered against the defendant.. 112 Ark. 91; 114 Id. 384; 115 Id. 206.

      E. G. Mitchell, for appellee.
    There was an unconditional contract for a sale, and no element of an option contract was entered into, according to the testimony. As distinguishing between a contract for sale and one for an option, see 104 Ga. 157; 24 Am. St. 17.
   Hart, J.,

(after stating the facts). No exceptions were saved to the giving of instructions by the trial court, and no reversal of the judgment is asked here on that account. A reversal of the judgment is first asked on the ground that the evidence did not warrant a judgment against Samuelson, the garnishee. The evidence shows that the garnishment was issued on the 23rd day of December, 1919. It also shows that Samuelson was indebted to Keys at that time in the sum of $585, the balance of the purchase money of 80 acres of land.

It is the contention of counsel for Samuelson that he had only an option to purchase the land and had the right to elect not to pay the balance of the agreed price and thereby forfeit his right to purchase the land.

Under the facts disclosed by the record the jury might have found that Samuelson, Keys, and Richardson entered into a scheme to defeat Patterson & Company in the collection of their debt against Keys by the garnishment proceedings against Samuelson. Samuelson had bought the land from Keys for $900 and had already paid $315. According’ to his own testimony, under the advice of the banker he only refrained from paying into the bank tbe $585 until after tbe garnishment proceedings were determined. He said that be intended to pay tbe $585 later and get bis deed to tbe land. This is exactly what be did do. On tbe 2nd day of January, 1920, Keys took tbe deed out of tbe bank and then sold tbe land to Tom Richardson for $585, which be owed him and which was tbe exact amount that Samuelson owed as a balance of tbe purchase money. Indeed, Keys bad already given Richardson a check for tbe $585 which be expected Samuelson to deposit in tbe bank for tbe balance of tbe purchase money on the land.

Under tbe circumstances tbe jury was justified in finding that tbe taking of the deed back by Keys and bis subsequent conveyance to Richardson and tbe conveyance by Richardson in turn to Samuelson for $585, tbe balance due on tbe purchase money, was a scheme to defeat Patterson & Company in tbe collection of their debt- by tbe garnishment proceedings. Hence it cannot be said that tbe evidence was not legally sufficient to support a verdict in favor of tbe plaintiffs.

Again it is contended that tbe judgment must be reversed because tbe court could not render a judgment against tbe garnishee until judgment bad been rendered against tbe defendant in tbe main action. St. L. I. M. & S. R. Co. v. McDermitt, 91 Ark. 112, and Smith v. Bank of Higden, 115 Ark. 216.

Tbe record does not bear out tbe contention of counsel. It shows that judgment was rendered in favor of tbe plaintiffs, Patterson & Company, against tbe defendant, John Keys, in tbe justice court on tbe 31st of March, 1920, and that no appeal was taken to tbe circuit court. Tbe only appeal prosecuted to tbe circuit court was that of tbe garnishee from tbe judgment rendered against him.

It follows that the judgment must be affirmed.


author: Hast, J.,

text:
    Wisconsin & Arkansas Lumber Company v. Smith.
    Opinion delivered December 12, 1921.
    1. Master and servant — personal injury — negligence of fellow servant. — Evidence tending to prove that the plaintiff, an "'employee of defendant, was riding on a railway motor car which was tied to another car following it, and was thrown off and injured at a time when the front car was being propelled by defendant’s servants at an excessive rate of speed which caused the rear car to bump into the front car and push it off the track, held, to justify a finding of negligence 'on defendant’s part.
    2. Appeal and error — harmless error. — An instruction broad enough to permit the jury to find for plaintiff upon proof of negligence not alleged in the complaint was not prejudicial where-it affirmatively appears from the evidence and the other instructions in the case that the jury could not have been misled.
    Appeal from Hot Spring Circuit Court; W. E. Evans, Judge;
    affirmed.
    STATEMENT OP PACTS.
    Ernest Smith sued the Wisconsin & Arkansas Lumber Company to recover damages for being negligently injured by said company while in its employment.
    In October, 1920, Ernest Smith was working for the Wisconsin & Arkansas Lumber Company as a section hand for $3.50 per day. At the time he was injured he was engaged in the work of surfacing the log road of the company, and there were about ten members of the section crew. They went to and from their work in two motor cars. They started home in the two cars. The rear car got so it would not run under its own power, and it was fastened to the front car with some telephone wire so that the space between the front and rear car was something like twelve or fifteen inches. After they had been coupled together they were run for a half of a mile and came to a steep down grade. The section foreman was in charge of the cars and was running them at a speed of about twenty or twenty-five miles per hour. As they approached a road crossing the front car jumped the track, and the plaintiff was thrown off, and the rear car passed over his leg, breaking it. The front car was being run backwards a't the time the wreck occurred.
    Smith was sitting in the rear part of the car looking forward when- it left the track. According to his testimony, fast running and the rear car being coupled on the front car caused the front car to leave the track. The rear car pushed against the front car and caused it to jump the track. Smith was looking straight ahead at the time the accident occurred and did not see any rock on the track.
    Burl Young, another section hand, was on the car with Smith when the accident occurred. He corroborated the testimony of Smith'in the main. He said that the front car went off to the left and Smith was thrown from it, and the wheels of the rear car passed over his body, breaking his leg. According to his testimony, the space between the rear and front car was twelve or fifteen inches. The rear car left’ the track after the front car had jumped it. It was raining, and the cars were running at a rate of speed between twenty-five and- thirty miles an hour. The section foreman was running the front car.
    Witnesses for the plaintiff testified that they had never seen the two cars tied together before and had never seen them run at such a high rate of speed, although they had been in the employment of the company from five to fifteen years.
    The motor cars weighed 900 lbs. each, and no attempt was made to slacken their speed when they started down the steep grade to the crossing.
    On the part of the defendant it was shown that the front motor car hit a rock which had in some unknown way got on the track, and that this caused the wreck which injured the plaintiff. It was also shown by the defendant that the cars were not running at a rate of speed greater than six or eight miles per hour.

      The jury returned a verdict for the plaintiff/ and from the judgment rendered the defendant has appealed.

      H. Berger and Mehaffy, Bonham & Mehaffy, for appellant.
    Instruction No. 1 as given assumed that the defendant was negligent (a controverted fact) and was an invasion of the province of the jury. 14 Ark. 286; 93 Ark. 29; 14 E. C. L., p. 738.
    Instruction No. 3 was erroneous in submitting to the jury the question of whether appellant was negligent in coupling the two cars together, and so operating them, and also in submitting to the jury whether or not the speed at which the cars were being run was negligent. The evidence adduced did not justify the submission of such issues, and to do so was prejudicial error. American Bauxite Go. v. Tudor, 148 Ark. 500.
    Instruction No. 6 was general and not confined to the issues raised by the pleadings.
    Instruction No. 18 in addition to being erroneous was in conflict with other instructions given, and constituted prejudicial error. 138 Ark. 563 and cases cited.
    There is no evidence that shows or tends to show that appellant was guilty of any act of negligence resulting in injury to appellee, and appellant’s requested instructions Nos. 1, 2 and 3 should have been given.

      B. B. Glover, for appellee.
    The instructions given were correct and supported by the evidence. The issues raised and covered by the instructions were questions for the jury. 103 Ark. 231; 101 Ark. 564.
   Hast, J.,

(after státing the facts). It is first earnestly insisted by counsel for the defendant that the evidence is not legally sufficient to support the verdict.

We do not agree with counsel in this contention. According to the evidence adduced in favor of the plaintiff, the two cars weighed 900 lbs. each, and it was an •unusual thing to run them coupled together. It was also unusual to run them at such a high rate of speed as from twenty to thirty miles an hour.

It is fairly inferable from the- testimony of the plaintiff that 'the wreck was caused 'by the rear car bumping into the front car and pushing it so that it jumped and left the track.

It is true, as contended by counsel for the defendant, that it was not negligence in itself to couple the two cars together for the purpose of bringing them to the station; but the jury might have inferred negligence from the attendant circumstances. The defendant’s foreman knew the weight of the cars, and still he fastened them together with a telephone wire. He might have anticipated 'that the rear car would bump into the front car and push it from the track, and especially so if he ran the cars at a rapid and unusual rate of speed.

According to the plaintiff’s testimony the cars were being' run at a rate of twenty to twenty-five miles an hour, and another witness said they were run at the rate of twenty-five to thirty miles an hour.

The plaintiff and other witnesses for him testified that they were riding on the front car and looking ahead. They did not see any rock on the track. The jury might have legally inferred from their testimony that the rock was not there and that the wreck was caused by the rear car bumping into the front one and pushing it from the track. This would constitute such negligence as would warrant the jury in finding a verdict for the plaintiff.

It is next insisted 'that the court erred in giving instruction No. 1 at the request of the plaintiff. A specific objection was made to the instruction because it assumes that the defendant was negligent. The instruction is not open to the vice isomplained of. We do not deem it necessary to set out the instruction, as it in plain terms predicates the right of the plaintiff to recover upon a finding of negligence, as alleged in the complaint, by the jury.

After telling the jury that it must find from the evidence that the plaintiff was injured while in the exercise of ordinary care for his own protection, and that he had not assumed the risk, the instruction continues: “and you find from the evidence that he was injured on account of the negligence of the defendant company, its agents, servants, or employees as alleged in his complaint,” etc.

Instruction No. 2 defines negligence to the jury.

It is also insisted that the court erred in giving instruction No. 3, which is as follows:

“You are instructed that if you 'find from the evidence in this case that the plaintiff was in the employ of the defendant company and that he was. in the discharge of his duty to the company, and you find from the evidence that at the time he was injured he was in the exercise of ordinary care for his own protection and that he had not assumed the risk, and you find from the evidence that he was injured as alleged in his complaint, on account of the negligence of the defendant company, its agents, servants or employees, by negligently coupling the two motor cars together, or negligently operating them after being coupled together, and that such negligence, if you find by a preponderance of the evidence that said acts were negligence, and that the same was the proximate cause of the injury, it will be your duty to find for the plaintiff.”

It is insisted that this instruction is erroneous in submitting to the jury the negligence of the defendant in coupling the two motor cars together and its negligence in operating them after being coupled together.

We do not agree with counsel in this contention. It is true it was necessary to bring the defective motor car back to the station, but the jury might have found that there was negligence under the attendant circumstances. The two cars weighed 900 lbs. each, and were fastened together with a telephone wire with nothing to keep them from bumping into each other. It was raining, and all the employees were carried along on the cars. There was a steep grade for them to go down before reaching the stopping place. The jury might have found that the rear car bumped into the front one and pushed it off the track, and that there was negligence in tying them together with the telephone wire and bringing them in, without anything to hold them apart, under the conditions stated, with the section crew on them.

Again, from the testimony of one of the witnesses, it is inferable that the high rate of speed at which the cars were being propelled caused the front one to jump from the track and thereby throw the plaintiff off and severely injured him.

In another instruction the court told the jury that before the plaintiff could recover it must not only find from the evidence that the car was being operated at a negligent rate of speed, but that the plaintiff must show that this caused the car to leave the track.

The court also told the jury that, even though it should believe that coupling the cars together was a negligent act, before the plaintiff could recover on this account, the burden was on him to show that this caused the car to wreck. In each of these last two instructions, the court specifically told the jury that, if the plaintiff failed to maintain the burden of proof in this respect, the verdict of the jury must be for the defendant on this allegation of negligence.

Again it is insisted that the court erred in giving instruction No. 6, which is as follows:

“You are instructed that the defendant company owed the plaintiff the duty of exercising ordinary care for his protection while in their employ and in the discharge of his duty; and if you find from the evidence that the defendant company, its agents, servants or employees negligently failed to exercise that degree of care and you find that this failure in this respect caused the plaintiff’s injury, then you are told and instructed to find for the plaintiff.”

It is claimed that this instruction is erroneous because it submits to the jury other grounds of negligence than those named in the complaint. While the instruction is erroneous in this respect, it does not constitute prejudicial error calling for a reversal of the judgment.

As we have already seen, instruction No. 1 predicates the right of the plaintiff to recover upon proof of the allegations of negligence contained in his complaint. No other grounds of negligence were relied on by the plaintiff. His proof was directed solely to these two allegations of negligence.

The defense of the company was that the wreck was caused by a rock which had by some means been placed on the track. In the exercise of common sense the jury could not have been misled in the matter. At the request of the defendant the jury was specifically told that if it believed from the evidence that the car was caused to leave the track by a rock wedged 'between the crossing plank and the rail of the track, the plaintiff could not recover, and its verdict must be for the defendant.

Thus it will be seen that the record affirmatively shows that no prejudice could have resulted to the defendant from the instruction complained of.

It is well settled in this State that a judgment will not be reversed for an erroneous instruction not prejudicial to the party seeking a reversal. McArthur v. State, 59 Ark. 431; Green v. St. L. I. M. & S. Ry. Co., 99 Ark. 226; St. L. I. M. & S. Ry. Co. v. Wiggam, 98 Ark. 259; St. L. I. M. & S. Ry. Co. v. Carter, 93 Ark. 589, and St. L. I. M. & S. Ry. Co. v. Dowgiallo, 82 Ark. 289.

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


author: Smith, J.

text:
    Christian & Taylor v. Fancher.
    Opinion delivered December 12, 1921.
    1. Contracts — issues, proof and variance. — Where there is an express contract for services at a fixed compensation, there can be no recovery on a quantum, meruit.

      2. Witnesses — wife testifying for husband. — Act 159 of 1915 and act 66 of 1919 have not changed the status of the married woman so as to render her competent to testify in her husband’s behalf.
    3. Appeal and error — harmless error. — Incompetent testimony cannot be said to be harmless where it tends strongly to sustain the defense and the evidence was conflicting.
    4. Witnesses — wife of partner. — In an action against two partners jointly liable, the spouse of neither partner was competent as a witness on behalf of the defendants, in the absence of any showing that she was acting as an agent in regard to the matters about which she was offered as a witness.
    Appeal from Boone Circuit Court, J. M. Shinn, Judge;
    reversed.

      Shouse & Rowland, for appellants.
    The court erred in excluding testimony as to the reasonable value of the services of appellants and in refusing to give the instruction on the subject of reasonable compensation requested by them. 98 S. W. 943; 102 5. W. 721; 224 Fed. 892.
    It was prejudicial error to permit the wife of appellee Fancher to testify. Neither husband nor wife may testify for or against the other. C. & M. Dig., § 4146; 29 Ark. 603. The wife of one defendant may not testify on behalf of a co-defendant, if her testimony, in its effect, goes to the interest of both defendants. 28 B. C. L. “Witness,” §§ 64-72. This court’s opinion in the Comstock case, 146 Ark. 266, does not touch upon the competency of a wife as witness for her husband, neither do the acts enfranchising women; act 159, Acts 1915, and act 66, Acts 1919, change or modify the rule for the production of evidence in suits between third parties and the husband or wife. Witham v. State, 149 Ark. 324.

      Sam Williams, for appellees.
    The court did not err in restricting appellants to their count on the contract. Where there is an express contract for services at a fixed compensation, there can be no recovery on a quantum meruit. 143 Ark. 446; 78 Id. 87; 85 Id. 425; 7 Id. 321. .The terms of the express contract as alleged by appellee exclude the arising of any such implied contract as could form the basis of a claim upon a quantum meruit. “Work & Labor,” Dec. Dig. No. 9; Cent. Dig. Np. 23-33. The question as to the terms of the contract was properly submitted to the jury, and it. is the jury’s province to pass upon the weight of the evidence. 85 Ark. 425; 87 Id. 321. Mrs. Fanoher’s testimony, if erroneously admitted, was harmless. It did not touch upon the vital question in the case — the terms of the contract.
   Smith, J.

Appellants are real estate brokers, doing business under the partnership name of Christian & Taylor, and they brought this suit against' appellees to recover a commission alleged to be due upon the sale of a farm owned by appellees as tenants in common. According to appellants, the farm had been listed with them for sale for some months at $5,000, for an agreed commission of five per cent. But, shortly before the land was sold, appellees offered appellants, as. a special inducement ■ to effect an immediate sale, all over $5,000 which they might obtain for the farm, so that, according to appellants, their contract with appellees entitled them to retain as commission all over $5,000 for which the land was sold, and a commission of five per cent, if the land sold for only $5,000.

The farm was sold for 5,000, and appellants sued originally for a five per cent, commission on that sum. Their complaint has since been amended asking compensation quantum meruit. Appellants introduced testimony in support of their contention, and offered testimony showing the value of the services rendered by them in making the sale, but the court excluded all testimony as to the value of the services.

Appellees admit the execution of a contract, but contend that appellants were to look to all the purchase price in excess of $5,000 for their compensation, with the condition that in the event a purchaser should be procured who would not give more than • $5,000 the sale should be made.and the appellants would make no demand for compensation; that, in consideration of the opportunity to make the excess over $5,000, appellants conceded to appellees the privilege of selling their land for $5,000 in the event the prospective purchaser would not give more.

The only instruction set out in the briefs is one which stated the issues between the parties. It is insisted that error was committed in giving, and in refusing to give, other instructions; but, as these instructions are not set out, we assume that no error was committed in giving or in refusing instructions.

Under the issue joined the court did not err in refusing to- admit testimony showing the value of appellants’ services. Without reference to the value of the services, they were either entitled to five per cent, of the sale price of the land, or they were not entitled to anything. Where there is an express contract for services at a fixed compensation, there can be no recovery quantum meruit. Bayou Meto Drainage Dist. v. Chapline, 143 Ark. 446; Weil v. Fineran, 78 Ark. 87.

Over the objection of appellants, the court permitted Mrs. Dotson Fancher, wife of one of the appellees, to state the details of a conversation between herself and appellant, Christian, which occurred while the prospective purchaser, who subsequently bought the land, was at her house looking over the premises. She testified that she expressed the opinion to appellant, Christian, that the prospective purchaser would not give $6,000, and that Christian said: “We have the man on the ground; before we will miss a deal, we will take the $5,-000, regardless of my commission.” Mrs. Fancher immediately reported this conversation to her husband.

Objection was made to this testimony, and in overruling the objection the court said: “The Supreme Court passed on that in November, and held that the act enfranchising women takes away their disabilities entirely, and that a woman can testify just" the same as a man can testify. The decision was rendered in November some time.”

The case referred to by the court is that of Comstock v. Comstock, decided November 29, 1920, and reported in 146 Ark. 266. That the court misapprehended the effect of that decision is shown by the opinion of this court in the case of Witham v. State, 149 Ark., 324, where we said: “It was ruled in the case of Comstock v. Comstock, (146 Ark. 266), that act 159 of 1915 and act 66 of 1919 changed the status of married women so as to render husband and wife competent as witnesses for or against each other in suits between themselves. There is nothing, however, in the opinion in the ease of Comstock v. Comstock, supra, nor .in eithei statute, changing or modifying the rule for the production of evidence in suits between third parties and either one of them.”

Appellees’ first insistence, in defense of the ruling of the court in admitting the testimony of Mrs. Fancher, is that it was not prejudicial. This cannot be true — if the testimony is incompetent — because it tended strongly to sustain appellees’ defense; in fact, it proved the defense, if accepted as true, which the jury may have done.

A second defense of the court’s ruling is.that appellants are estopped to deny appellee’s right to this testimony as Christian conveyed this information to appellees through Mrs. Fancher. This cannot be true because Mrs. Fancher was in no sense an agent, and there is no element of estoppel in the case.

The admission of this testimony is not to be held harmless upon the ground that it was competent for some purpose and that no request was made to limit its use to this competent purpose. K. C. S. R. Co. v. Leslie, 112 Ark. 305; Little Rock Gas & Fuel Co. v. Coppedge, 116 Ark. 334.

The testimony was not competent for any purpose. The right of recovery' — if such right existed — was a joint one, inuring to the partnership of which Christian was a member, and the liability of appellees — if they are liable — was also joint, and if the liability were established and reduced, to judgment, satisfaction of the whole judgment could be had against either of the appellees. 28 R. C. L., title Witnesses, sec. 72; Dovey v. Lam, 4 A. & E. Ann. Cases 16; Walker v. Steels, 121 Ind. 436; Arn v. Mathews, 39 Kan. 272; Tomlinson v. Lynch, 32 Mo. 160; Craig v. Kittredge, 20 N. H. 169; Stewart v. Stewart, 41 Wis. 624; Bartlett v. Clough, 94 Wis. 196.

For the error in admitting the testimony of Mrs. Fancher the judgment will be reversed, and the cause remanded for a new trial.


text:
    Chaffin v. Lee County National Bank.
    Opinion delivered December 12, 1921.
    Bill of exceptions — approval of judge. — Sp. Acts 1921, p. 270, providing that the court stenographer of the First Judicial District should transcribe his stenographic report of proceedings, which, when certified by him “shall be used as a part of the bill of exceptions”, did not dispense with the necessity of having the trial judge approve the bill of exceptions.
    - Appeal from Lee Circuit Court; J. M. Jackson, Judge;
    affirmed.

      Lee & Moore and Jonas F. Dyson, for appellants.

      Daggett & Daggett, for appellee.
    This case should be affirmed for failure to file a bill of exceptions, as required by law. C. & M. Digest, § 1321; 40 Ark. 172; 131 Ark.'243; 98 Ark. 449; 46 Ark. 482; 64 Ark. 597; 37 Ark. 528; 35 Ark. 438.
   Smith, J.

On February 5, .1921, the Lee County National Bank brought suit against appellants and F, O. Love on a note of $6,000, executed by appellants to Love. Appellants filed a motion to dismiss the complaint on the ground that they had not been properly served with summons, and that the copy served upon them did not bear teste and was not signed by the clerk. This motion was heard by the court and dismissed, and as appellants failed and refused to plead further a judgment was rendered against them by default, from which is this appeal.

The bill of exceptions made upon the hearing of' the motion to dismiss was not signed and approved by the trial judge. Attached to the bill of exceptions, however, is the certificate of the official stenographer of the First Judicial Circuit (of which Lee County, where the trial occurred, is a part), to the effect that “the foregoing bill of exceptions contains a true and correct transcript of my stenographic notes taken on the motion of defendants to dismiss service of summons; that no testimony on the merits of the issue was had. ’ ’

The insistence is that this certificate of the stenographer suffices, for the reason that act 163 of the Acts of 1921 (Special Acts 1921, p. 270) renders the approval of the presiding judge to the-bill of exceptions unnecessary. The section of act 163 which is said to thus change the law is section 3 and reads as follows:

“Section 3. It shall be the duty of said stenographic reporter, upon request of either party to a case, to transcribe into typewritten manuscript from his stenographic report all matters of proceedings taken by him; provided, that the party requesting the same shall be required to pay said stenographic reporter ten (10) cents per one hundred words for the original ribbon copy thereof and five (5) cents per one hundred words for each carbon copy of said proceedings, which said transcript, when certified by him as true and correct, shall be used as a part of the bill of exceptions and as a part of the transcript in the Supreme Court on appeal without the necessity of .another copy thereof; provided, further, that in felony cases this requirement shall not be made of a pauper, after due proof of such pauperism. ’ ’

We think the section quoted has no such purpose as appellants ascribed to it. The purpose of the act was to permit and require the official stenographer, in transcribing his notes, to make a “ribbon copy thereof,” so that it would not be necessary for the clerk of the court in which the trial occurred, in making up the transcript, to make a copy of the bill of exceptions as prepared by the stenographer, but to permit the use of the copy made by the stenographer in the transcript. In other words, the necessity of copying the bill of exceptions by the clerk was to be dispensed with.

The act was intended only to save labor and not to deprive the presiding judge of the right and duty to approve the bill of exceptions.

There being no bill of exceptions in the case, the presumption is conclusive that the testimony heard by the court supported his finding on the question of fact.

Judgment affirmed.


author: Humphreys, J. McCulloch, C. J.,

text:
    Tallman v. State.
    Opinion delivered December 12, 1921.
    Malicious mischief — presumption of malice. — Under Crawford & Moses’ Dig., § 2511, providing that if any person shall wilfully, maliciously or wantonly kill, maim or wound any animal of another, he shall, on conviction, be punished by fine or imprisonment or both, held that it was error to charge the jury that, . if the killing of another’s dog was unlawful and done with a deadly weapon, the law presumes that it was done maliciously.
    • • Appeal from Arkansas Circuit Court, Northern District; George W. Glarh, Judge;
    reversed.

      George G. Lewis, for appellant.
    The statute, C. & M. Digest, § 2511, does not warrant a charge to the jury that the killing of the animal with a dangerous and deadly weapon will 'be presumed to have been done maliciously, and that proof of malice would not be required. The effect of this instruction and the •one following it is to shift the burden to the. defendant, leaving to the State only to prove the fact of the killing. Parsley v. State, 148 Ark. 518.

      J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    The instruction with reference to the killing with a deadly weapon did not, as appellant complains, shift the burden of proof to him and require him to prove his innocence, but it correctly, as we think, instructed the jury that, it being admitted that the defendant killed the dog with a dangerous and deadly weapon, the law would presume ¿he killing was done maliciously, if it was done unlawfully. If the instruction following the above was . misleading, appellant should have made specific objection. However, the instruction as a whole properly safeguarded the rights of appellant. Cain v. State, 149 Ark. 616. The instruction complained of is in no way related to the instruction in Parsley v. State, 148 Ark. 518, relied on by appellant.
   Humphreys, J.

This is an appeal from a judgment for malicious mischief and an assessment of damages incident thereto rendered in the Arkansas Circuit Court against appellant. The charge of malicious mischief for the killing of a dog belonging to Roger Crowe on June 18, 1921, was preferred against appellant before a justice of the peace in said county. Appellant was convicted in the magistrate’s court and prosecuted an appeal therefrom to the circuit court, and upon trial d'e novo was again convicted and fined.

Appellant was prosecuted under section 2511 of Crawford & Moses’ Digest, which provides, in addition to a penalty of fine or imprisonment, or both, an assessment of damages in favor of the owner of the animal killed for threefold the amount assessed by the jury. The jury assessed the minimum fine of $20 against appellant and ascertained the value of the dog to be $200, and upon this verdict the court rendered judgment against appellant in favor of Roger Crowe, the owner of the dog, for $600.

The testimony adduced in behalf of the State tended to show that appellant killed the dog wilfully, maliciously or wantonly, and that adduced in behalf of the appellant tended to show that he killed the dog under necessity in order to prevent injury to his person from an attack made by the dog upon him. Appellant killed the dog with a shotgun.

Over the objection' and exception of appellant, the court submitted the cause to the jury upon the theory that if the dog was unlawfully killed with a deadly weapon by appellant the law would presume it was done wilfully, maliciously or wantonly. The statute under which appellant was convicted reads as follows: “If any person shall wilfully, maliciously or wantonly, by any means whatsoever, kill, maim or wound any animal of another, with or without malice toward the owner of the animal, which it is made larceny to steal, he shall on conviction be punished by a fine of not less than twenty nor more than one hundred dollars, or by imprisonment in the county jail for a period of not less than ten nor more than sixty days, or by both such fine and imprisonment, and shall, moreover, be liable to damages to the owner- of the animal so killed, maimed or wounded, as in the preceding section provided; provided, nothing in this section shall be so construed as to extend to any person who shall kill, maim, or wound any animal trespassing in the fields or grounds of such person which are enclosed in a lawful fence, as defined in section 309 and sections 4646-4648. ’ ’

In order to convict appellant under the statute it was necessary for the State to prove, by positive or circumstantial evidence, that appellant killed the dog either wilfully, maliciously or wantonly. The gist of the statutory offense of malicious mischief is the killing of an animal wilfully, maliciously or wantonly. These essentials of the crime cannot be presumed from the fact that the killing of the animal was unlawful and done with a deadly weapon. A negligent or careless killing of an animal would be unlawful, and.though done with a deadly weapon no inference or presumption in law could be indulged that the careless or negligent killing was wilful, malicious or wanton. The court’s interpretation of section 2511 of Crawford & Moses’ Digest was erroneous, as evidenced by giving the following instruction:

“The defendant in this case admits the killing of the dog, the property of Roger Crowe, and admits the killing occurred at the place and time in the affidavit; and further admits that he killed the dog of Roger Crowe with a shotgun, a dangerous and deadly weapon. You are instructed that where these facts are admitted, if you find that the killing was unlawful, and done 'with a deadly dangerous weapon, the law presumes it was done maliciously, and the State is not required to prove that the killing of the dog by the defendant was wanton or maliciously done.”

The statute, in defining the crime of malicious mischief by killing an animal, does not attempt to impose penalties upon one for unlawfully killing an animal of another with a deadly or dangerous weapon. It penalizes one for maliciously, wilfully or wantonly killing an animal belonging to another.

Our attention has been called to the case of Benefield v. State, 62 Ark. 365, in support of the contention that the statute means that if an animal is unlawfully killed by one with a deadly weapon it will be presumed he killed it wilfully. Wilful and unlawful are not synonymous terms in the law. Acts may be and are frequently made unlawful whether intended or not. The mere commission of an act may be unlawful if prohibited by statute, whether done intentionally or not. The learned judge, in writing the opinion referred to, inadvertently followed the construction placed upon an Illinois statute defining malicious mischief, which was different from our statute. The Illinois statute made the unlawful lolling of an animal a crime. Snapp v. People, 19 Ill. 80. Our statute penalizes the wilful, malicious or wanton killing of an animal. The Bennefield case is therefore overruled in so far as it misinterprets the statute before us for review.

Other errors are assigned and insisted upon by appellant for. reversal, but, as the judgment must be reversed for the error indicated, we deem it unnecessary to consider them.

The judgment is reversed and the cause remanded for a new trial.

McCulloch, C. J.,

(dissenting.) The instruction condemned in the opinion of the majority is not technically correct, for no presumption of malice arises from the intentional killing of an animal. But the error was not prejudicial, for, under the statute, the killing need not be maliciously done in order to constitute a criminal offense. It is unlawful to kill, maim or wound an animal either “wilfully, maliciously or wantonly,” and either “with or without malice toward the owner. ’ ’

The statute formerly did not contain the word “wantonly,” nor the words “with or without malice toward the owner of the animal” (Mansfield’s Digest, § 1654) and this court held, in construing the statute, that the killing must, in order to constitute an offense, be done with malice toward the owner of the animal. Thomas v. State, 30 Ark. 433; Chappell v. State, 35 Ark. 345.

The Legislature at the session of the year 1893 (Acts 1893, p. 42) enacted a material amendment to this statute by inserting the words quoted above as the same now appears in Crawford & Moses’ Digest, § 2511. Thus the statute was broadened so as to include killing, maiming or wounding of animals, either wilfully or wantonly, and either with or without malice toward the owner.

In the case of Benefield v. State, 62 Ark. 365, this court construed the statute as amended, and held that, if the killing was wrongfully done, the fact that there was no malice did not constitute a defense. I think that decision was correct. The opinion shows that the court had the proper conception of the effect of the amendment of the old statute, which made the offense complete without the presence of malice being shown. This amendment made the statute the same, in effect, as the Illinois statute, and the court quoted the case of Snapp v. People, 19 Ill. 80, in support of its conclusions.

Now it seems to me that the decision in the present case overruling the Benefield case eliminates the amendment and puts the statute back as it stood before the Legislature amended it.

The old statute required, as before stated, that, in order to constitute an offense, the act must be done with malice toward the owner. The amendment provided that if the act was “wilfully” done, either with or without malice toward the owner, it was an offense. “Wilfully” means intentional or by design — not accidental or involuntary. Aubrey v. State, 62 Ark. 368; 8 Words & Phrases, p. 7468 et seq.

The amendment also provided that if the act be wantonly done, with or without malice toward the owner, it constituted an offense. Thus, under the statute, the offense is complete if done either intentionally or wantonly, either with or without malice toward the owner.

In the present case appellant admitted that he killed the dog, and that he did so intentionally, but claimed that he did it in order to protect himself from the dog’s attack. His own admission having brought himself within the terms of the statute, it devolved on him to show that he killed the dog in defense of his own person. That issue was clearly submitted to the jury in another instruction. The State was not required either to prove malice or to negative the appellant’s plea of self-defense.