author: Humphreys, J.

text:
    Southwestern Bell Telephone Company v. Balesh.
    4-3569
    Opinion delivered November 12, 1934.

      H. L. Ponder, W. R. Bonham and Edward B. Bownie, for appellants.

      Pace & Bavis, for appellee.
   Humphreys, J.

Appellee, administratrix of the estate of her deceased husband, brought suit against the appellants for the estate and for the benefit of herself and minor children, to recover damages on account of the •alleged negligent killing of deceased resulting from a collision of his car with a Ford truck belonging to appellant, Southwestern Bell Telephone Company, which was driven by Herman Avery, the other appellant.

Appellant filed an answer denying the material allegations of the complaint, and pleading that the injuries and death of deceased resulted from his own negligence.

The cause was submitted to a jury upon the issues joined, the evidence adduced, and the instructions of the court, which resulted in a verdict and consequent judgment against appellants in favor of appellee for the benefit of herself and minor children for the sum of $50,000, from which is this appeal.

Appellants contend for a reversal of the judgment on the ground that the evidence is insufficient to support the verdict. In determining this question on appeal, the testimony in the case must he viewed in the most favorable light to appellee, and if, thus viewing it, there is any substantial evidence supporting the verdict, it cannot be disturbed by this court.

According to the evidence introduced by appellee, her now deceased husband was en route to Little Bock on the Hot Springs highway the morning of June 24, 1933, in his Cadillac sedan, which he was driving at the rate of thirty-five or forty miles an hour; that, just before entering the village of Douglasville, he overtook appellant’s truck, which was being driven at a speed of fifteen or twenty miles an hour; that, as he approached the truck, he blew his horn when forty feet behind it, and again when he was ten feet behind it, as a signal that he would pass around it to the left; that when his front wheels were opposite the hind wheels of the truck, the driver of the truck, without checking his speed and without putting-out his hand or giving- any signal, suddenly turned to the left almost at right angles across the highway, and that before he could get out of the way of the truck by speeding up and turning to the left as far as possible, the collision occurred; that the collision caused his car to lose its balance and swerve or zig-zag at a high rate of speed along the highway for a considerable distance until it turned over and fatally injured him; that he was unable to reg’ain control of his car after the collision.

The evidence thus detailed is substantial and sufficient to sustain the verdict. Although appellant introduced evidence tending- to show that deceased was to blame for the collision, and that he had or could have regained control of his car after the collision, in the exercise of reasonable care, it must be remembered that the jury and not the court are the sole judges of the credibility of the witnesses and the weight to be attached to the evidence. The trial court must be sustained in his refusal to instruct a verdict for appellants on the ground of the alleged insufficiency of the evidence to establish liability.

Learned counsel for appellants strenuously insist upon a reversal of the judgment on account of a number of instructions given by the trial court over their general and specific objections and the refusal of the court to give a number of instructions requested by them, to which refusal they objected and excepted. We have carefully read and considered the instructions given and refused and have concluded that the trial court correctly instructed the jury upon the issues involved responsive to the evidence in the case. We regard the exceptions to the giving and refusal of some of the instructions of sufficient importance to more specifically state our reasons for disposing of them.

Appellants specifically objected to the giving of the court’s oral instruction No. 2 because they allege he ignored their defense of contributory negligence on the part of deceased. The last sentence in the instruction is as follows:

“But if it (the evidence) preponderates in her (appellee’s) favor on all the material allegations, she would be entitled to recover a verdict.”

Appellants argue that this part of the instruction necessarily means that, if the jury should find that the evidence preponderates in favor of appellee on all the material allegations in her complaint, she would be entitled to recover. The instruction does not say so in words, and we do not think it susceptible of such a construction. It means all the allegations arising in the case, whether contained in the complaint or other pleadings. The language used does not ignore the defense of contributory negligence, and it should not be interpreted to do so by reading the word ‘ ‘ complaint ’ ’ into it. We are quite sure the jury did not so understand it in view of the fact that they were told in other instructions that, if the deceased met his death on account of his own negligence, appellee could not recover.

Appellants objected generally to the giving of the court’s oral instruction No. 3 and now contend that it was inherently erroneous because it opened or began with the following sentence: “This accident, gentlemen, ■was due to an automobile collision on the public highway. ’ ’

They argue that the court told the jury in this sentence that the injuries and death of the deceased were due to the collision. The court did not so state, but said the accident was due to a collision on the highway, which was nothing more than a general statement of the kind and character of case before them for consideration. It was not tantamount to telling them that the injuries and death of deceased were due directly to the collision or that the collision was the proximate cause of the injuries and death of the deceased. No specific objection was made on the ground that the sentence was susceptible of the construction they now give it. The court did not err in giving the instruction.

Appellants objected specifically to the giving of instruction No. 6 on the ground that the effect thereof was to make them insurers of the safety of deceased. That part of the instruction objected to is the exact language of a part of our traffic statute, and is as follows: “I instruct you, gentlemen, that ‘the driver of any vehicle upon a highway, before starting, stopping, or turning from a direct line, shall first see that such movement can be made in safety, and, whenever the operation of another vehicle may be affected by such movement, shall give a signal, plainly visible to the driver of such other vehicle, of the intention to make such movement’.”

The effect of giving this instruction was to tell the jury that, if the driver of the truck turned to the left without first seeing* whether he could make the turn in safety or without giving a signal plainly visible to others that he was going* to make the turn, he would be guilty of negligence, which was quite different from saying* to them that they were insurers of the safety of deceased, for the instruction left it to the jury to find from the evidence whether or not he was guilty of such acts in turning the truck to the left and also left it to the jury to find from the evidence whether deceased himself caused his injuries and death by his own negligence. The fact that the instruction given by the court was in the exact language of a traffic statute does not keep it from being a correct declaration of law applicable to the situation and facts in the case. If the court had told the jury that appellants violated the traffic laws of the State in turning to the left and for that reason they became insurers of the safety of deceased, then the instruction would have been erroneous and subject to criticism made by appellants.

Appellants objected to the giving of instruction No. 14 and now argue that it constituted reversible error to give it because it acquitted deceased of all negligence except driving at a greater rate of speed than an ordinarily prudent man would have done. In other words, that the instruction had the effect of limiting contributory negligence on the part of deceased to speeding or fast driving. It is argued that the last sentence in the instruction had this effect, which sentence is as follows:

“¡But if you further find that at the time he approached the truck and was passing the same he was driving his car at such a rate of speed as an ordinarily prudent man would have driven under the circumstances, then he was not guilty of negligence.”

The jury could not have concluded from the sentence that the court intended to cover the entire issue of contributory negligence, especially when read in connection with other instructions given on the subject of contributory negligence. The meaning of the sentence is that if deceased was driving at the speed that an ordinary person would have driven under the circumstances, he was not guilty of negligence in regard to speed. Although the phraseology of the sentence was poor, its meaning was clear, and, as thus construed, did not mislead the jury.

Appellants objected generally to the court’s modification of their requested instruction No. 16 on the ground that there was no evidence to support or justify the modification. The instruction, as requested, reads as follows: “You are instructed that it is the duty of the deceased to exercise ordinary care even after the collision, and if you find from a preponderance of the evidence that after the collision he ran his car at an excessive or unreasonable rate of speed and in so doing he failed under all the circumstances to exercise ordinary care; and if you further find that such failure on his part contributed to his injuries and death, then the plaintiff cannot recover, and your verdict will be for defendants. ’ ’

The court gave the instruction as requested after adding the following words: Unless you further believe or find that the deceased had lost control of his car by reason of his car being negligently struck by the truck. ’ ’ There is much evidence in the record to the effect that deceased lost control of his car when the collision occurred, and that he was unable to regain control thereof, so the modification was responsive to the evidence.

Appellants also objected specifically to the giving of the instruction as modified on the alleged ground that the modification assumed that the car of deceased was negligently struck by the truck of appellants. We are unable to discover such an assumption in the modification. It unmistakably submitted the issues of whether deceased lost control of his car, and whether he lost control thereof by reason of his car being negligently struck by the truck. The instruction, as modified, was a correct declaration of law responsive to the evidence in the case.

In our examination of the instructions, we find that quite a number of those requested by appellants and refused by the court were fully covered by other instructions given by the court. Courts are not required in instructing juries to indulge in repetitions and duplications.

As stated above, we have carefully examined each and every instruction given and refused and have concluded that the trial court correctly declared the law applicable to the issues and evidence in the case.

Appellants contend that the verdict is excessive. The jury was correctly instructed as to the measure of dám-. ages. A verdict of $50,000 was awarded the widow and children for their pecuniary loss, including damages to the children for the loss of parental care and moral guidance and development. No award was made to the estate of deceased.

The question for our determination is whether this compensatory award is supported by the evidence. The deceased had been a very prosperous merchant in New York City and Hot Springs for many years. He was an importer of Oriental rugs, fine laces and linens and sold his goods at auction in a business house in Hot Springs. In addition to supporting his family in a luxurious manner, he accumulated sufficient out of his business to buy a home which cost $20,000 and a business house which cost $105,000 and to accumulate a stock of goods valued at about $60,000 with an outstanding commercial indebtedness of about $5,000. In 1929, just before the depression, he bought an adjoining business house on a credit for $95,000. Although he continued to make money in his business until he went into voluntary bankruptcy a few months before his death, the net returns therefrom were insufficient to keep up the principal and interest payments and taxes on his real estate, after paying his living- expenses; so a few months before his death, he went into voluntary bankruptcy and closed his store. He then compromised with his creditors on the basis that they accept all his real estate in full settlement of his indebtedness, leaving his stock of goods clear. He was on his way to Little Rock in connection with his bankruptcy proceedings when he was killed. Until he took the ’benefit of the bankruptcy act, he had contributed about $7,000 a year to his wife and children for their support and education. In addition to educating his children, he was giving them music and dramatic lessons. He was an attentive and dutiful husband and father, making a happy home for his wife and four children, ranging in age from 7 to 16 years. Physically he was a strong man, able to carry on the auction business during the day and until late at night, which he did. He was 51 years of age at the time of his death and had an expectancy of 20 years. His financial troubles resulted from his real estate investments and not from any substantial shrinkage in his business. It is reasonably dedueible from the evidence that, had he lived,.in view of his composition with his creditors, he would have been able to continue his business successfully and to have contributed about as much in the future to his family as he had in the past. Pie was familiar with his line of business, having spent his entire life in it. He was an exceptional auctioneer and business man, and knew well how to earn a dollar. Based upon his earning- capacity and expectancy under the accepted rule for ascertaining the present value of the total amount he would have contributed to his family, $50,000 in cash is much less than the present value the total contribution would figure. This being true, it would not be permissible for this court to invade the province of the jury to scale down the amount or reverse the judgment.

No error appearing, the judgment is affirmed.

In the opinion of Justices Smith and McHaney the judgment is excessive and should be reduced.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Goode v. King.
    4-3528
    Opinion delivered November 19, 1934.

      W. A. Jachson and Beloate & Beloate, for appellants.

      D. L. King, R. C. Waldron and J. II. Townsend, for appellee.
   Smith, J.

Richard M. Moore owned at the time of his death a farm known as the old Marshall farm, situated on the right bank of Spring River in Lawrence County. He was survived by his widow, Mrs. M. C. Moore, and three sons, whose initials were N. R., J. C. and B. M. Moore, respectively. After the death of his father, N. R. Moore borrowed $1,500 from J. S. Pruitt, and gave Pruitt a note for that amount, which was signed by N. R. Moore and Pearl Moore, his wife. This note created a lien upon the maker’s interest in his father’s farm. Pruitt, the payee named in the note, died, and Wells, his administrator, brought suit to enforce the lien there granted in payment of the. note. The Bank of Ravenden and J. C. and B. M. Moore, the two brothers of the maker of the note, filed an intervention in this suit, and also a demurrer to the original complaint, which was sustained, but upon an appeal to this court it was held that the demurrer should have been overruled, and the decree of the lower court was reversed, and the cause was remanded with directions to overrule the demurrer. ;See Wells v. Moore, 163 Ark. 542, 260 S. W. 411. No directions were given upon the reversal and remand of the cause except to overrule the demurrer, and the present appeal arose out of subsequent proceeding's.

In this intervention filed by the bank and J. C. and B. M. Moore, it was alleged that N. R. Moore, while acting as cashier of the bank, had been found short in his accounts with the bank to the admitted extent of $3,750, and to make the shortage good N. R. Moore had conveyed his interest in the lands which he had inherited from his father to his brothers, J. C. and B. M. Moore, who assumed the payment of the shortage, and, by way of security therefor, mortgaged to the bank the interests which they had inherited and also the interest which they had acquired in the deed from their brother, N. R. Moore. It was not then certain that the full amount of N. R. Moore’s shortage had been determined, and the mortgage was drawn to cover any other shortage which might later be discovered, and it was subsequently determined that the total shortage approximated $7,000.

J. C. Moore died and was survived by four minor children and by his widow, Mary Ellen Moore, who subsequently married Charles Goode, and she is referred to throughout the record and in the briefs as Mrs. Goode. The widow of Richard M. Moore, who had joined in the execution of the mortgage to the bank to secure the payment of the shortage of her son, N. R. Moore, was made a party defendant to the cross-complaint which the bank filed along with its intervention to foreclose the. mortgage against her and against her surviving sons, N. R. and B. M. Moore, and against the widow and minor heirs of J. C. Moore. These cross-defendants were all properly served with process upon the filing of the cross-complaint, and D. L. King was employed as an attorney to represent the cross-defendants.

Without tracing the progress of that litigation, it may be said that it eventuated in a decree ascertaining and adjudging the amount of N. R. Moore’s shortage to the bank, and directing the foreclosure of the mortgage given to secure its payment.

Much of the testimony contained in the record now before us was devoted to an attempt to show that King had been unfaithful to his clients and had conspired with the bank and its representatives to improperly present certain defenses which could and should have been offered in the foreclosure suit. These were, first, that the execution of the mortgage had been secured through coercion by threats to send N. R. Moore to the penitentiary if it were not executed, and that the mortgage was finally executed for the purpose of compounding a felony, and that, through and in consideration of the execution of the mortgage, a felony was compounded, and N. R. Moore was not prosecuted for his crime as he would otherwise have been. The second defense which it is insisted King should have, made — but did not make — is that there were certain credits to which N. R. Moore was entitled and which would have been allowed, had they been properly asserted.

We will not review the testimony on these issues of fact, but are content to say that the testimony utterly fails to establish either contention.

After the rendition of the decree, and subsequent to the sale thereunder, an attempt was made, which appears to have been in the utmost good faith, to borrow the money to pay the. judgment rendered in the decree of foreclosure. It may be said that a settlement had been made of the original suit brought by Wells, administrator, to foreclose the lien created by the note from N. R. Moore, to Pruitt. The terms and details of that settlement are not disclosed, but we regard this as unimportant. The fact remains that an apparently valid decree has been rendered, in which all interested persons had been made parties, upon proper and sufficient service, including the four minor children of J. C. Moore. This decree determined the sums secured by the mortgage and ordered its foreclosure.- It was rendered June 24, 1925, and pursuant to its provisions the land described in the mortgage was ordered sold, and it was advertised to be sold on October 24, 1925. In the meantime futile, efforts were being made to borrow the money to pay the judgment. These failing, King personally agreed to pay the judgment, and he. took an assignment thereof to himself as security for the loan which he proposed to make. The fact is established beyond the possibility of doubt that King advanced from his personal funds the money for this purpose, six thousand dollars of which were derived from the sale of Government bonds which he then owned. The debt secured by the mortgage bore interest at the rate of ten per cent., as did also the judgment. King actually advanced $8,986.25 in cash, which he paid to the- bank, and at the time of payment took an assignment from the bank of its judgment for the debt and of the decree declaring the lien and ordering its foreclosure. It is equally certain that at that time King had no intention of acquiring the title, to the land, and made the advance for the benefit of his clients and at their request.

The sale as advertised was not held, but was indefinitely postponed, and the sale- which was later had under the decree of foreclosure did not occur until Decem■ber 18, 1926. During this interval the attempts to finance the proposition were, continued, but it was found that, an inaccurate description of the land in the mortgage, which had been carried forward into the decree, was an objection which rendered this more difficult. It was shown that in the preparation of the mortgage the land described had been copied from a tax receipt, which was supposed to embrace all the lands comprising the Moore farm, and which included also forty acres, a part of the farm, which Mrs. M. C. Moore, the mother of N. R. Moore, and the widow of Richard M. Moore, owned individually7, and which was therefore not conveyed by the deed from N. R. Moore to his brothers, J. O. and B. M. Moore. Much testimony was offered to the effect that this forty-acre tract, although a part of the Moore farm, had been fraudulently7 included in the mortgage to the bank in the execution of which Mrs. M. C. Moore had joined. There are two answers to this contention. The first is that. the. testimony7 does not show any7 frauck or deception or mistake in the inclusion of Mrs. M. O. Moore’s own individual forty7 acres in the mortgage. The second is that the question is concluded by the decree of foreclosure to which she had properly been made a party.

It was thought advisable and necessary, and to the interest of all parties to correct the description of the land as it appeared in the decree, and a' petition was filed in the court which rendered it for that purpose. This petition appears to have been supported by the affidavits of N. E. Moore and B. M. Moore and Mrs. M. C. Moore, their mother, which were made on March 30, 1926, which was three weeks prior to the rendition of the decree of correction made pursuant to the prayer of their petition. This petition recites that when, on January 30, 1922, the Moores executed the mortgage to the bank, “they agreed with the said Bank of Eavenden to execute said mortgage covering all the lands owned or in which any of the parties grantor of said mortgage had an interest lying in sections 6 and 7, township 18 north, range 2 west, known as the Moore lands, should be according to said agreement and ought to have been embraced and covered in said mortgagee.

The decree correcting the description contains the following recital as to the appearance of the parties:

“Now on this day, this cause being reached on regular call of the docket, comes the petitioner, David L. King, in person, and also come N. E. Moore, P. G. Moore, his wife, M. O. Moore, Ellen Moore, widow of J. C. Moore, deceased, in person, and also Ellen Moore as guardian and curator of James Franklin Moore, Mary Catherine Moore, Johnnie Ellen Moore and Louise Moore, minors and heirs at law of J. C. Moore, deceased, regularly appointed by the probate court of the Western District of Lawrence County and acting as such guardian and curator.
“And the court further finds that at this time all parties in any way interested in the subject-matter of this action are all before the court in person, and being duly represented by attorney and guardians as required by law.”

Concerning the error in the description the decree contains the following recital:

“It is shown to the court here at this time from the oral testimony of Ellen Moore and L. B. Poindexter, taken in open court, and the depositions of Mahala C. Moore, B. M. Moore and N. E. Moore, that there is a defect and misdescription of the. lands in the original mortgage executed to the Bank of Eavenden.”

The testimony in the record before us makes clear the fact that there, was an erroneous description, and that the decree as corrected now accurately describes the land which the mortgage was intended to cover. ■ The increase in acreage under the corrected decree was less than an acre more than that described in the original decree, and this increase resulted from the fact that some of the tracts of land there described did not contain an even and exact number of acres but some contained the fractional part of an acre.

It is very earnestly insisted that this correction decree is void for the reason that it appears, from the face thereof, that it was rendered at a term of court subsequent to the rendition of the original decree of foreclosure, and was done without service of process upon the minor defendants, and without the appointment of a guardian ad litem to represent them for the purpose of requiring the showing to be made that the amendment was not to their detriment but was to their advantage. It is stated also that the petitions and affidavits of the Moores were a forgery of their names by N. E. Moore, but this contention does not appear to have been made until long after the death of N. E. Moore, and was not sustained by the evidence.

It does appear that this decree was rendered without service of notice of the filing of the petition; but it will also be noted that this petition was not filed against the minors, but was filed for them along with the other Moore heirs in the case in which they were all parties, made so by proper service of process, and the. recitals of the decree indicate that the court made inquiry into and a finding upon the petition of their guardian and others that the correction of the description was a proper order to make, and not prejudicial to the minors to make under the circumstances. The power of the court to correct such an error in a proper case has been adjudged in many cases.

The lands were first advertised to be sold oil October 24, 1925, but, pending the efforts to refinance the loan and to correct the description as a means to that end, the sale did not actually occur until December 18, 1926, at which time a sale of all the lands was made to W. A. Bowman, who was Mrs. Goode’s uncle. At that time neither N. E. Moore nor Mrs. M. C. Moore had any interest in the lands, as they had conveyed their interests to J. C. and B. M. Moore, who had executed the mortgage to the bank which had been ordered foreclosed under the decree of the chancery court. Bowman was unable to pay the purchase-money note which he gave to the commissioner making the sale, and to avoid another sale it was agreed that Bowman should convey the land to Dr. E. N. F. Sullivan, who should convey to King, who would accept the conveyance in satisfaction of the decree. It does not appear why Sullivan should have intervened, but it does appear that the arrangement was known and assented to by B. M. Moore and Mrs. Goode, who actively participated in that transaction by signing receipts to the commissioner and by taking from King an option to buy the lands on terms which were equivalent to a redemption.

It is insistéd that the conveyance to King was void for the reason that he was without power to purchase because of his relation as an attorney in the case. Nothing is better settled than that the relation between an attorney and client is one of trust and confidence, requiring a high degree, of fidelity and good faith; but it is not the law that they may not make valid contracts with each other with reference to the subject-matter of litigation in connection with which the attorney was employed. The rule is stated in 6 C. J., title, Attorney and Client, § 211, page 687, as follows: “There is no necessary incapacity for dealing between client and attorney, and, although transactions between them will be closely scrutinized, yet those which are obviously fair and just will be upheld. To entitle the client to relief from a contract or agreement entered into with his attorney, it must be shown that the client has suffered some injury through an abuse of confidence on the part of his attorney.” See also Lytle v. State, 17 Ark. 608; Drennen v. Walker, 21 Ark. 539; Thweatt v. Freeman, 73 Ark. 575, 84 S. W. 720; McMillan v. Brookfield, 150 Ark. 518, 234 S. W. 621; Swaim v. Martin, 158 Ark. 469, 251 S. W. 26.

We think King’s relation to and his contract with his clients passes this test. It appears that he has represented them for a number of years in a lawsuit against which his clients had no valid defense, and that he has never been paid a dollar either as a fee or for his expenses.

As we have said, King did not intend to acquire the title to this property when he advanced the money to save it from sale, and his subsequent conduct indicates great'forbearance, and it is our opinion that the deed to him above-mentioned conveyed the title and did not constitute a mortgage or create a trust. However, pursuant to his agreement so to do, when he thus acquired the title, King executed a contract, which the court below construed to be a lease with an option to purchase, wherein B. M. Moore and Mrs. Goode were given three years to repurchase this land. This contract reads as follows:

“This agreement and contract, made and entered into on this 29th day of December, 1927, by and between D. L. King, party of the first part, and Mary Ellen Moore and Benoni Moore,- parties of the second part. Whereas the party of the first part has this day purchased from Dr. E. N. F. Sullivan, for a consideration of $8,986.25, the same amount paid by the said Sullivan to W. A. Bowman, for a certain tract of land of about 386 acres, lying in sections six and seven, in township 18 north, range 2 west, known as the Moore farm and lands in the Western District of Lawrence County, which lands were sold by R. B. Warner, as commissioner in .chancery, by decree of the chancery court to satisfy a certain judgment in favor of the Bank of Ravenden, assigned to D. L. King, which sum with interest to date amounts to said sum of $8,986.25.

“The said Sullivan has this day by his warranty deed sold and conveyed said lands and premises to the said D. L. King for said sum.

“Now the said parties of the second part being-desirous to purchase said farm, land and premises, the said D. L. King hereby gives and grants to said parties of the second part the privilege to repurchase said lands at any time within three years from this date by paying to the said party of the first part or his assigns the said sum of $8,986.25, with interest thereon at the rate of eight per cent, per annum. The parties of the second part to remain in possession of said lands and premises during said time or until some deal shall be made in regard thereto. And to pay the taxes on said lands and keep up the repairs on the farm.

“The parties of the second part in consideration of the premises above stipulated and agree to comply therewith.

“It is further stipulated and agreed that rents from said farm shall be used from year to year to pay the interest on said sum agreed upon by the parties hereto.

“It is further agreed by the parties that in the event the said parties of the second part should negotiate a deal to sell or transfer said lands and premises, the said D. L. King agrees that, upon the full payment of said sum of money paid out by him with 8 per cent, interest per annum, that he will make warranty deed thereto to any person whomsoever the parties of the second part may designate.”

Payments amounting only to $375 were made to King-under this contract, and this payment was made in 1928. No payments were made in 1929, and King attached a portion of the crop for the rent of that year, claiming as rent a sum equal to the interest on the purchase money. The attached crop was sold under the orders of the court, and it was ordered that the proceeds of the sale be applied to the payment of the rent. The complaint filed in that cause prayed also the cancellation of the contract of sale upon the ground that the parties had refused to perform it and had renounced it as a binding-contract.

An answer and cross-complaint was filed by Moore and Mrs. Goode, which raised the issues we have recited, along with a number of others a statement of all of which would protract this opinion to an interminable length. This cross-complaint charged King with infidelity and corruption, and also that through a betrayal of his trust he had apparently acquired the title to the land, and it was prayed that all the proceedings under which he had apparently done so be canceled and set aside. In the alternative it was prayed that judgment be rendered against King for $12,000, the present value of the land, as damages for his betrayal of his trust as an attorney.

There was a general finding in favor of King on all the allegations of the cross-complaint filed against him. The chancellor construed the contract set out above between King and B. M. Moore and Mrs. Goode as creating an option to purchase, which, until the option had been exercised, was a lease for an annual rental equal to the annual interest on the purchase money, the repairs and the taxes on the lands, and upon this finding sustained the attachment for the rent and rendered judgment accordingly. It was further decreed that, inasmuch as B. M. Moore and Mrs. Goode had refused to perform the option contract,- and had denied its binding effect and their liability thereunder, the same should be canceled and held for naught, and the present appeal is from that decree.

We think the court correctly construed the contract between King and B. M. Moore and Mrs. Goode. Such contracts are not unusual, and have been frequently upheld and enforced. The third headnote in the case of Thomas v. Johnston, 78 Ark. 574, 95 S. W. 468, reads as follows: “A landowner may agree with another that the relation of landlord and tenant shall subsist between them until it shall be changed into the relation of vendor and vendee by payment in full of certain amounts named.” See also Ish v. Morgan, 48 Ark. 413, 3 S. W. 440; Quertermous v. Hatfield, 54 Ark. 16, 14 S. W. 1096; Carpenter v. Thornburn, 76 Ark. 578, 89 S. W. 1047; Levy v. McDonnell, 92 Ark. 324, 122 S. W. 1002; Smith v. Berkau, 123 Ark. 90, 184 S. W. 429.

We are also of the opinion that the cross-complaint against King was properly dismissed for the want of equity. The undisputed facts are that the lands were about to be sold, and they would, no doubt, have been permanently lost to the Moores, had they been sold. Four days before the date set for the sale King advanced his own money to pay the judgment under which the sale had been ordered. This was done October 24, 1925, and the second sale was not had until December 18,1926, at which time Bowman bid in the lands for $9,000, and executed a note therefor. He paid no part of the note, yet by consent of all parties the commissioner made Bowman a deed on February 12, 1927, which was approved by the court. Further indulgence was extended by King until December 28,1927, at which time Bowman conveyed to Sullivan, who, in turn, conveyed to King, and on December 29, 1927, the contract between King and B. M. Moore and Mrs. Groode was executed, with a reduction in the rate of interest provided for in the foreclosure decree.

The conduct of King appears uberrimae fidei, and the decree in his favor is therefore in all things affirmed.


author: Butler, J. Mehaffy, J.

text:
    Pace v. State use Saline County.
    4-3593
    Opinion delivered November 19, 1934.

      Danaher & Danaher, for appellants.

      J. 8. Utley, Ernest Briner, W. A. Utley, D. M. Halbert, J. B. Milham and Tom W. Campbell, for appellees.
   Butler, J.

The facts in this case, which are undisputed, are that the treasurer of Saline County had been depositing the funds of the county, prior to December 4, 1930, in the “Benton Bank & Trust Company.” At that time the treasurer was George Pish, who served as such until his death on June 20, 1931. The Benton Bank & Trust Company became insolvent, and on said 4th day of December, 1930, the Benton Trust Company was organized and took over the assets of Benton Bank & Trust Company. An agreement was signed by the depositors of the insolvent bank, including the county judge and county treasurer, to the effect that the county deposits in the old bank should be frozen in the new bank to be paid in installments, beginning December 20, 1930, when ten per cent, of the deposits should be paid, the remainder to be paid in four installments — ten per cent, on March 1,1931, ten per cent, on June 1,1931, ten per cent, on September 1, 1931, and sixty per cent, on January 1, 1932. "When the old bank closed its doors and the new bank took over its assets and assumed its liabilities, the county had on deposit the sum of $28,647, all in one account, which included the funds belonging to the county as such and to its various school and road districts. "When George Pish, the county treasurer, died, the appellant, S. H. Pace was appointed as county treasurer on July 7, 1931, and entered into the discharge of the duties of his office on that date. On July 14 he executed his official bond in the sum of $30,000 with the appellant company as surety thereon. On the same day the county court of Saline County designated the Benton Trust Company as one of the depositories, conditioned that it would execute a depository bond as provided by law. On the same day, pursuant to the order of the court, said trust company filed with the county clerk its bond signed by Robert P. Lambeth, H. W. Thompson, L. B. White, W. J. Cox, H. W. Finkbeiner, A. Y. Martin, J. A. Cunningham, and B. A. Fletcher. This bond was examined by the county judge and the treasurer and approved by an indorsement in writing on the bond signed by them:.

On July 22, 1931, the administratrix of Mr. Pish paid to S. H. Pace, county treasurer, the. sum of $14,-591.07, which constituted all the county funds in the possession of Pish as treasurer at the time of his death. This payment was made by check drawn by the administratrix in favor of S. H. Pace, county treasurer, on the Benton Trust Company. Pace issued his receipt for said sum, presented the check to the drawee bank which accepted the same and credited Pace with said sum as county treasurer. Thereafter Pace, made deposits in the Benton Trust Company in his official capacity, drawing checks against the account until December 29, 1931, when that bank became insolvent and closed its doors. On this date the balance due Pace, as county treasurer was the sum of $10,750.79. He filed his claim for the sum stated with the liquidating agent of the bank, no part of which has yet been paid.

Suit was brought by the State for the use and benefit of Saline County to recover said sum from. S. H. Pace, county treasurer, and the surety on his official bond, and the signers of the depository bond executed as aforesaid. The court found in favor of the plaintiff against Pace and his surety and dismissed the case against the sureties on the depository bond. Both the State, of Arkansas and Pace and his surety have appealed.

The first question for our consideration is, was the bond executed by the appellees a sufficient compliance with the statute to exonerate the treasurer and his surety from loss of the funds in the depository bank which became insolvent? The first legislation on the subject of county depositories which we need notice is act No. 163 of the Acts of 1927, which the appellants contend was the law governing the subject at the time of the execution of the depository bond involved, and that the bond executed complied with the requirements of that statute. Section 1 of that act provided that any bank or trust company desiring to become a depository should make a proposition to the county court, which court should, twenty days before the commencement of the temí of court at which the proposition should he received and acted upon, give notice by publication in a newspaper published in the county of its intention to receive bids from the banks desiring to become the depository of the county funds; that the bank or banks proposing to become depositories should file with the clerk of the court a sealed bid stating the rate of interest to be paid for the county funds, and that the bid should be accompanied by a certified check of not less than $250, etc. Section 4 of the act provided for the execution of a bond by the successful bidder, payable to the county “with not less than five solvent qualified sureties, who shall own in this State real estate unencumbered and of value as great as the amount of said bond, * * * which may be approved by the county court.”

It is contended by the appellants that later legislation on the subject of depository banks did not serve to alter the existing law. Act No. 151 of the Acts of 1929 was entitled, “An Act to Repeal Act No. 42 of the Acts of 1927 of the Statutes of Arkansas, to Provide for the Approval of County Depository Bonds by the County Treasurer, and for Other Purposes. ” It is argued that as act No. 42 of the Acts of 1927 does not refer to the subject of county depository bonds, but provides merely that the Governor should have authority to relieve any public officer and his bondsmen from the payment of any public funds which said officer might have had on deposit in any bank in this State that has been designated as State or county depository and which has become insolvent, therefore, act No. 151 of 1929, not having- mentioned act No. 163', could not be deemed to be an amendment of said act. Section 1 of act No. 151 expressly repealed act No. 42. Section 2 of that act dealt with a different, subject, namely, that mentioned in the title, “To Provide for the Approval of County Depository Bonds by the County Treasurer, and for Other Purposes.” This, by implication, amended that part of act No. 163 providing that depository bonds should be approved by the county court, and substituted “a surety bond” for the personal bond of act 163. It is contended that this violates § 23 of art. 5 of the Constitution, which provides that no law shall he revived, amended, or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revived, amended, extended, or conferred shall be reenacted and published at length. This section has no application to implied amendments by later legislation to existing laws, and § 2 of act No. 151 does not offend against it. Perkins v. Du Val, 31 Ark. 236; Little Rock v. Quindley, 61 Ark. 622, 33 S. W. 1053; Boyer v. State, 141 Ark. 84, 216 S. W. 17.

Appellants also insist that act No. 139 of the Acts of 1931, purporting to be an amendment of act No. 151 of 1929, does not affect act No. 163; first, because no mention is made in act No. 139 of act No. 163 of the Acts of 1927. The title of that act is: “An Act to Amend § 2 of Act No. 151, Approved March 20, 1929.” The pertinent part of that act is as follows:

“No award by any county court or judge thereof, to any bank or banks of custody of any county funds shall be effective until each such bank receiving such award shall file with the county clerk a bond conditioned for the faithful and safe holding and keeping of all county funds placed with it and the due payment of the same according to law; nor until such bond shall have been approved b3r the county court or the. judge thereof and the county treasurer.
“Such bond may be executed by a corporate surety company authorized to do business in this State, or may be signed by not less than ten solvent, qualified sureties, who shall own in this State unincumbered real estate of the value of the amount of the bond over and above the debts and exemptions of the sureties. Each surety shall make an affidavit giving the description of the real estate owned by him and its value over and above his debts and exemptions. Any citizen of the county may appeal to the circuit court from any approval of the bond in the same manner and to the same effect as now provided b3r law in the approval of official bonds.”

It is true no reference is made to act No. Í63 of the Acts of 1927, but it deals with the same subject as § 4 of that act and provides for a different number of sureties, prescribing how their qualifications as such may be shown. While being’ entitled “An Act to Amend § 2 of Act No. 151,” it in reality impliedly amended § 4 of act No. 163; and this may be done, althoug’h no mention of the former act is made in the act which impliedly amends it. Porter v. Waterman, 77 Ark. 383, 91 S. W. 754.

It is further argued by counsel for the appellants that act No. 139 was repealed by act No. 222 of the Acts of 1931. That act contains two sections. Section 3 is as follows: ‘£ That act 151 approved March 20, 1929, of the acts of the General Assembly of the State of Arkansas and published on page 766 of vol. 1 of the Acts of the General Assembly of the State of Arkansas at the session of 1929 and entitled: £An Act to Repeal Act 42 of the Acts of 1927 of the Statutes of Arkansas to Provide for the Approval of County Depository Bonds by the County Treasurer and for Other Purposes,’ be and the same is hereby repealed.” 'Section 2 is the emergency clause, giving the reasons for the passage of the act and stating the conditions which made its immediate effect important. In effect, it states the inability of a county to secure surety bonds and the resulting danger of the loss of county funds because of this. By § 2 of act No. 151, it was surety bonds only which could be accepted to guarantee the deposits of county funds.

We are of the opinion that it was not the intention of the Legislature to repeal act No. 139 of the Acts of 1931 by the passage of act No. 222 only a few weeks later. In dealing with repealing acts the same, rules govern as to the construction of statutes generally. The cardinal rule for the construction of statutes is that the legislative intent should be ascertained, which may be done by construing every part of the statute together with reference to all laws which relate to the same-subject as a single system, so as to give effect to the legislative intent and to carry into effect the general purpose of the svstem.

The subject of county depositories is an important one, and the Legislature, from time to time, has attempted to safeguard public funds by requiring depository bonds to be executed. It is clear that tbe Legislature deemed tbe qualification and number of sureties named in act No. 163 of the Acts of 1927 insufficient to effect that purpose. By § 2 of act No. 151, supra, individuals as sureties were discarded, and surety companies only were deemed sufficiently solvent to execute any good bond. Because of the collapse of values and the uncertainty of all our business affairs, it was thought wise to provide ('by act No. 139, supra) that bonds might be executed by surety companies as provided in § 2 of act No. 151, and also by individuals — ten in number — who should make a showing of their solvency by sworn statement. Certainly, it was not the intent of the Legislature by the enactment of act No. 222, supra, to restore the provisions of act No. 163, supra, relative to the execution of depository bonds which experience had proved insufficient, but only to make certain the provisions of § 2 of act No. 139, passed at the same session as act No. 222. This intention is more readily discoverable from an examination of § 1 of act No. 222, quoted supra, which discloses the specific purpose of that act, i.e., to repeal a definite and certain law as it appears on a certain page and volume of the Acts of the General Assembly of 1929. If it had been the intention of the Legislature to include in this repeal act No. 139, supra, it would have so indicated by adding after the number of the act the words “and all acts amendatory thereto,’.’ or words of similar import.

Where a statute expressly repeals specific acts there is a presumption that it was not intended to repeal others not specified. In such cases there is an implied approval of the statutes not specified, as well as of an intention to leave them undisturbed. 59 G. J. 909, § 512. In the case of State v. Young, 30 S. C. 399, vol. 9, S. E. 355, it was insisted that the repeal of an act necessarily carries with it all amendments made to said act. In overruling that contention, the court said: “We know of no inexorable rule of law which peremptorily requires that every act which is entitled as ‘an amendment’ to a former act must therefore be carried back, and ‘ingrafted’ upon that act, so as to become part and parcel of it, for all purposes. It is well settled that the title is no part of the act. ‘ There is nothing in a name. ’ * * * The question must always be one of intention, to be reached by considering’ the character and objects of the acts.” The doctrine of that case is in line with our own decisions. Arkansas Tax Com. v. Crittenden County, 183 Ark. 738, 38 S. W. (2d) 318.

It was the dutjr of the county treasurer to require that the number of the securities be ten in number, and that they give evidence of their qualification in the manner pointed out in the statute, § 1, act No. 139, Acts of 1931. Failing in this duty, he remains guarantor for the payment of the county’s funds deposited by him.

The contention that the funds belonging ,to the county are to be classed as a preferred claim is based on the theory that the bond executed by the Benton Trust Company and the sureties created an express trust by the use of the following language: ‘ ‘ * * * and promptly pay, upon presentation of all checks drawn upon said depository by the county treasurer so long as said funds shall be in said depository to the credit of the treasurer of said county and keep all funds of said county faithfully in the hands of said bank and account for, according to law, all monies deposited by said county treasurer.” As authority for this contention, we are referred to the cases of Grossman v. Taylor, 185 Ark. 64, 46 S. W. (2d) 13; Albright v. Taylor, 185 Ark. 401, 47 S. W. (2d) 579; Royal Arch Ben. Ass’n v. Taylor, 187 Ark. 531, 60 S. W. (2d) 915. We do not review these cases, for they clearly do not support the contention of appellants. The instruments involved in those cases which were held to create an express trust were clearly indicative of that intention. The bond in this case is an ordinary depository bond, the .sole purpose of which was to guarantee the payment of all money deposited to the account of the county treasurer, and the court correctly found that it should be classed as a common claim.

We agree with the appellees that act No. 163 of the Acts of 1927 is not the controlling statute, but that act No. 139 of the Acts of 1931 is the law prescribing the execution of depository bonds. This, however, does not exonerate the sureties, for, by the execution of the bond and the delivery to the proper officials, they have estopped themselves to question its binding effect. Talley v. State, 121 Ark. 4, 180 S. W. 330; School Dist. v. Massie, 170 Ark. 222, 279 S. W. 993. The bond was made for the benefit of Benton Trust Company in which appellees were stockholders and directors. “A party who has had the benefit of an agreement cannot be permitted in an action founded upon it to question its validity. It would be in the highest degree inequitable and unjust to permit a defendant to repudiate a contract, the benefit of which he retains. While this is not strictly a contract inter paries, it is the same in legal effect, and the. same principle applies hereto.” Wasson v. State, use Lonoke County, 187 Ark. 680, 61 S. W. (2d) 679.

The contention of the appellees that the bond has no validity because it was not isigned by all of the directors of the bank as it had been agreed would be done is without merit. The evidence goes no further than to show an agreement among the appellees themselves, and there is no proof that this agreement was communicated to the county judge or treasurer, nor were they advised that the bond was not to become, effective until signed by all eleven directors. As a.matter of fact, it was delivered as a fully executed instrument, and it was upon the faith of this bond, according to the undisputed evidence of the treasurer, that the deposits were made.

There is likewise no merit in the appellees’ contention that there was no breach of the conditions of the bond. The evidence is certain that from and after the 20th day of February, 1931, all the funds deposited by the treasurer were new money, for on that date it is admitted that Mr. Fish, who was then the treasurer, was overdrawn in a small sum. Therefore, none of the funds from that date on could have, been frozen deposits, as claimed by appellees, because all of these the bank had permitted to be withdrawn. Another reason why this contention is untenable is that when Mr. Pace took over the office of treasurer, the administratrix of Mr. Fish delivered to him a check on the bank for the amount of funds in the hands of Mr. Fish as treasurer when he died. The bank accepted this check and passed the amount thereof to the credit of Pace without informing him that any of the funds of the county were frozen or that the check was to replace that character of funds which had been withdrawn.

It is mentioned by appellees in their statement of the case, but not contended in their brief, that, because the bond uses the words “funds of the county,” their liability extends no further than for repayment of the amount due the county arising from the general revenues and did not include liability for school and road district funds which were included in the account of the county treasurer. The answer to this is that the words by which their liability is sought to be limited are substantially the same as contained in the statute. In providing for the award to banks of the custody and the execution by them of bonds, the words “county funds” are used, which is, of course, equivalent to “funds of the county.” These words jvere used in the act ;so as to include not only the funds belonging strictly to the county, but all such as it collected and preserved as the agent of school and road districts within the county. Any other interpretation would wholly nullify the purpose of the act. Similar language in the bond as is in the statute must be construed as we construe the language of the statute in order to carry out its purpose. Huffstuttler v. State, 183 Ark. 993, 39 S. W. (2d) 721.

It follows from the views expressed that the execution of the depository 'bond, not being in conformity to the statute, did not relieve the treasurer as guarantor for the safety of the county deposits and that he and the surety on his official bond are primarily liable to the State for the use of Saline County; and that appellees are secondarily liable to S. H. Pace and the appellant company for the amounts they pay out on the judgment.

The decree of the trial court is therefore affirmed as to Pace and his surety and.reversed as to appellees, with directions to enter a decree in accordance with this opinion.

Mehaffy, J.

I agree to that part of the decree affirming the decree of the lower court, but dissent to that part reversing a portion of lower court’s decree. In other words, I think the decree should be affirmed.


author: McHaney, J.

text:
    Gus Blass Company v. May.
    4-3613
    Opinion delivered November 26, 1934.

      John Sherrill and Osro Cobb, for appellant.

      Fred A. Isgrig and Harry Robinson, for appellee.
   McHaney, J.

Appellee, for himself and as administrator of the estate of Babbette May, deceased, who was his wife, brought this action against appellant to recover damages for personal injuries received by her on January 22,1932, when she fell on the steps or while descending the steps leading from one part of the basement of appellant’s store in Little Bock to another part of the basement thereof. Mrs. May received severe and permanent injuries to her right leg, there being an oblique fracture of the right femur. She died on April 6, 1932, from this and other contributing causes.

A trial of the cause resulted in a verdict and judgment against appellant.

Several errors are assigned for a reversal of the judgment against it by appellant, but we consider it necessary to discuss only one of them which of itself calls for a reversal of the judgment. The condition of the nosing board at the head of the steps, whether in good or bad condition, was sharply at issue. During the course of the trial, appellant’s counsel requested the court to order the jury to go to the scene of the accident and view the condition of the stairway. This was not done. At the conclusion of all of the evidence, appellant’s counsel renewed his request to have the jury go look at the steps. The court inquired of the jury, whether it wanted to look at the steps. Whereupon juror W. C. Edwards said: “I went down and looked at them at noon.”

“Mr. Cobb (counsel for appellant): Note our objections. ’ ’

As the court reporter wrote it up, the court overruled the objection, and Mr. Cobb saved his exceptions, but the court struck from the bill of exceptions as prepared by the stenographer, the fact that the objection was overruled, and exceptions saved. Thereupon other members of the jury spoke up and said: “We will take his word for it,” referring to juror Edwards. “Mr. Cobb: Defendant requests that the entire jury go look at the steps, one member of the jury having already done so.” The court announced that he would not require the jury to go. Whereupon Mr. Cobb objected, his objection was overruled, and he saved his exceptions.

We are of the opinion that this constituted error. Under Crawford & Moses’ Digest, § 1293', it is provided: “Whenever, in the opinion of the court, it is proper for the jury to have a view * * * of the place in which any material fact occurred, it may order them to be conducted in a body under the charge of an officer to the place, which shall be shown to them by some person appointed by the court for that purpose. While the jury are thus absent, no person other than the person so appointed shall speak to them on any subject connected with the trial.”

Under this statute it would have been proper for the court to have ordered the jury to view the scene of the accident, if he thought it advisable, but only in accordance with the terms of the statute, that is, to be conducted in a body, under the charge of an officer and to be shown the place where the accident occurred and the alleged defective steps by^ some person appointed by the court, but it was highly improper for one juror to do so, unless by the consent of both parties. The reason is, as happened in this case, that such juror, when the jury has retired to consider of its verdict, may become a witness in the case for one of the parties and give his testimony to the jury as to what he found, without being-sworn as a witness and without being subject to cross-examination. For obvious reasons, this would not be proper. But appellee says that, even though this was error, no proper exceptions were saved to the action of the court. We. cannot agree with appellee in this regard. The above statement from the record shows that counsel for appellant did object when juror Edwards announced that he had been down at'noon and looked at the steps. According to the corrected bill of exceptions, the court did not rule upon the objection and the exceptions were not saved. But we are of the opinion that, when counsel for appellant made the request that the entire jury be ordered to go to look at the steps, since one member of the jury had already done so, which the court declined to do over appellant’s objection and exceptions, this amounted to an exception to one member of the jury viewing the steps in the absence of the others.

The other errors urged for our consideration may not arise on a retrial of the case, and we therefore refrain from a discussion of them.

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


author: Butler, J.

text:
    Trotter v. State.
    Crim. 3902
    Opinion delivered November 26, 1934.

      W. T. Pate, Jr., Robt. J. Brown, Jr., and U. G. May, for appellant.

      Walter L. Pope, Attorney General, and Robert P. Smith, Assistant, for appellee.
   Butler, J.

The appellant, Bogers Trotter, was indicted, tried and convicted for the crime of accessory before the fact of murder in the first degree, and his punishment fixed at life imprisonment in the State penitentiary. The indictment in effect alleged that on the 10th day of .June, 1933, he entered into a conspiracy with Ed Kleier and Bill Bailey to rob one J. D. Fowler who was then living in Booneville in the Southern District of Logan County, Arkansas; that, while acting in furtherance of this conspiracy and attempting to execute its purpose, Ed Kleier and Bill Bailey murdered Fowler by shooting him; that the said Bogers Trotter was not present when Fowler was murdered, but had advised, encouraged, abetted and assisted the said Kleier and Bailey in the commission of the murder.

In apt time the appellant filed a motion for change of venue in the manner and form prescribed by statute, the ground set up being “that the minds of the people of both the judicial districts of Logan County are so prejudiced against him that he cannot receive a fair and impartial trial in either district of said county. ’ ’ There were three affiants to the supporting affidavit who were examined in open court touching their credibility. I. W. Young, one of them, testified that he was familiar with the sentiment of the people in regard to the charge against Trotter, and that he did not believe that Trotter could receive a fair trial in the county; that there are twenty-four townships in the county, the most of which he had journeyed through on a mule buying trip and had heard the case discussed; that in the course of his business of buying and selling mules he dealt with people from all over the county, and based his opinion upon the discussions he had heard among these people. Another affiant, Jack Corley, was foreman of C. W. A. work and, as such, employed men from all over the northern district of the county, and had talked with numbers of persons from the southern district. He testified that he worked a crew of 74 men at a time which was frequently changed and consisted of men from different parts of the county; that he heard these crews talking about the case and others also, and, from their conversations relative to it, he based his opinion that Trotter would not be able to secure a fair and impartial trial in the county because of the prejudice against him.

U. C. May was called in support of the motion and testified that he was one of the attorneys for the defendant, and as such had ascertained the condition of the minds of the people of Logan County with reference to Rogers Trotter; that he had inquired from each township except one and the minds of the inhabitants were made, up one way or the other as to the guilt or innocence of Trotter.

The court overruled the motion, to which ruling timely objections and exceptions were saved.

Previous to the trial of the appellant, Kleier had been tried and convicted of the murder of Fowler which occurred shortly after dark on the evening of June 10, 1933. Fowler was a man eighty-five years of age, and no one lived with him except his housekeeper. On the evening he was killed he was sitting on his back porch which was screened with wire mesh. A man broke through this screen and commanded Fowler to put up his hands. As Fowler arose from his chair, the intruder fired two shots — one inflicting the fatal wound and the other going into the roof of the porch. The housekeeper, who was present, stated that another person besides the actual assailant stood on the outside.

There is no question raised as to the sufficiency of the evidence tending to show that Kleier was the actual murderer, and no contention is made on this appeal that Kleier did not commit the crime. The two grounds most strongly urged for reversal are: (1) error of the court in overruling the motion for change of venue, and (2) lack of sufficient evidence to support the jury’s verdict.

"We are of the opinion that the. trial court should have granted the defendant a change of venue. The testimony of the supporting witnesses to the motion discloses that they had unusual opportunity for discovering the sentiment of the people throughout the county with regard to the prejudice existing; that they had heard discussions of the case by people from practically every portion of the county, and on this they based their conclusion that defendant could not secure a fair and impartial trial in Logan County.

Many cases relating to this subject are cited in the recent case of Adams v. State, 179 Ark. 1047, 20 S. W. (2d) 130, cited by counsel for the appellee. In that case the settled rule is declared that this court will not overrule the judgment of a trial court in denying an application for change of venue unless it appears that the ruling of the lower court is such as to constitute the denial of a substantial right. That case refers to the examination of the supporting affiants and the purpose for the same — namely, to ascertain the means by which the condition of the minds of the inhabitants became known to the affiants, and the. extent of the information so obtained. If it should appear that the opportunity, for knowing, and the knowledge of the condition of the minds of the inhabitants was such as not to warrant the statements made in the affidavit, then the affiants would be deemed not to be credible persons within the meaning of the statute. In the instant case counsel urge that the examination shows the information of the affiants to be limited and obtained through limited sources. We do not so view their testimony, but, on the contrary, it appears as stated that the sources of information were wide, and that the conclusion of the affiants was accurate seems to us to be shown from the evidence upon which the verdict was based.

The evidence adduced by the State most strongly tending to support the verdict is collected in appellee’s brief, the testimony of each witness being summarized. One witness, Jimmy O’Neal, who, the evidence conclusively proves, was mentally deficient, testified that he had been living in Trotter’s home in Scott County for several days prior to the killing; that Trotter told him ‘ ‘ about a job about eighteen miles from where he lived;” that Kleier had also been living at Trotter’s home for several days, and that on the morning after the killing witness saw Kleier in the barn changing his clothes and cleaning a gun in the garage, then going into the house where he shaved his mustache and trimmed his eyebrows; that besides the gun Kleier had a blackjack, flashlight, pair of gloves, a piece of rubber hose and two tire tools.

Frank Nichols and Mrs. James testified that on May 29 they saw Trotter in company with Kleier and Herman Mitchell (also charged with the crime of this murder) at Nichols’ place, of business in Scott County. Another witness, Barney Quinn, stated that about a week or ten days before Fowler was killed Trotter and Kleier came to field about a mile and a half from Fowler’s home where Herman Mitchell was working. Harold Jones, another witness, stated that he saw a man he thought was Trotter in company with a man answering Kleier’s description in the- vicinity of Booneville on the day of the killing, but that he had not seen Trotter in two years and so was not positive. Another witness stated that he had seen Kleier in company with Trotter or Jimmy Walton, Trotter’s son-in-law, several times, and that the day Fowler was killed Trotter drove into his filling station from the direction of Waldron in Scott County.

Allan Hart testified that he saw a car resembling the Chevrolet coupe owned by Trotter pass his place of business in the afternoon before the. killing* going in the direction of Booneville, and there appeared to be three persons in the car.

Dr. Ed Wineman, who lived in Booneville, a half mile from the Fowler home, testified that he heard one shot in the early part of the night and noticed a car passing; that after he went to bed — or about the time he was in the act of doing so — a car passed going at a terrific rate of speed west on West Thomas Street; that in going to Fowler’s home one travels on West Thomas Street, turns south, then west; that the first time a car passed his house was before the shooting. It was after dark, but he observed that it had a bright radiator, the side lights were bright, and it had a rumble seat; that he was shown the car which had been taken in custody by the officers, and it resembled the one he saw passing his house at a high rate of speed. Witness stated that a car passed his house afterwards four or five times.

In addition to this testimony there are these circumstances; it is in evidence that about two weeks before Fowler was killed Kleier and his' wife, apparent strangers in that community, came to Trotter’s home and remained until Kleier was arrested on the morning after Fowler was killed. From statements made by Jimmy O’Neal the officers suspected Kleier and early on the morning after the killing went to Trotter’s home and asked Trotter to call Kleier to come outside. Kleier appeared in response to Trotter’s call, was arrested and taken to jail. Among Kleier’s belongings a pistol was discovered which he was supposed to have used in committing the murder. Shortly after Kleier’s arrest, Trotter learned that he was suspected of some complicity in the guilt of Kleier and left the country, going from place to place for several months, but finally returned and surrendered to the officers. His friends in the meanwhile had made arrangement for his bond.

The inference justly deducible from the testimony quoted and the attendant circumstances proved, when given their greatest weight, falls short in probative value of that degree of evidence necessary to connect Trotter with the commission of the crime. O’Neal did not attempt to explain the nature of the job which Trotter wanted him to undertake, and the association of Trotter with Kleier and his movements during the days immediately preceding the killing and on that day do not reasonably establish more than a suspicion of Trotter’s connivance with Kleier in his felonious purpose.

The judgment of the trial court is reversed, and the cause remanded with directions to grant the motion for change of venue, and for such further proceedings as may be deemed advisable.


author: Baker, J.

text:
    Goode v. Union County.
    4-3608
    Opinion delivered November 26, 1934.

      Herbert V. Betts, for appellant.

      Alvin D. Stevens, for appellee.
   Baker, J.

H. ft. F. Goode, clerk of the chancery court of Union County, filed this suit in the circuit court of Union County challenging, first, the legality of Union County Salary Act, and, second, praying for fees, emoluments and commissions alleged to have been earned by him as clerk of the two chancery courts of Union County, which fees he claims accrued during the year of 1933. The case was presented to the court upon an agreed statement of facts, and upon the testimony of the appellant.

The agreed statement of facts set out that Goode was the duly elected, qualified and acting circuit clerk and ex-officio recorder of the two divisions of the circuit court of Union County, Arkansas, and had been since January 1,1931. Also that he was the duly elected, qualified and acting chancery clerk of Union County, and had been since January 1,1931; that the claim involved in this action represents fees and commissions earned and received by the clerk of the two divisions of the chancery courts of Union County, Arkansas, from January 1, 1933, to December 1, 1933, inclusive; that the sums were paid by the appellant to the treasurer of Union County monthly, under protest, and that the amount of such fees and commissions so paid was $2,591.

It is further agreed that the claim involves the construction and interpretation of what is known as act No. 1 of Union County, Arkansas, which act was filed and made a part of the record, and it was stipulated that in a former cause testing the validity of said Initiative Act No. 1, styled Dozier v. Ragsdale, in which the opinion of the Supreme Court was delivered on December 5, 1932, as reported in 186 Ark. 654, 55 S. W. (2d) 779, in which said initiative act was held valid, that the question as to whether the said act affected the fees, commissions and emoluments of the clerk of the chancery court was not raised in the court below nor in the Supreme Court, and the purpose of this suit is to determine whether' said Initiative Act No. 1 applies to the clerk of the chancery court of Union County.

The parties agreed to waive the right of trial by jury, and also that other evidence might be offered in addition to the stipulation.

Goode testified that he is the chancery clerk; that during the year of 1933 he had collected $1,036.45 as such elerlc of the second division of the Union Chancery Court, and $755.55 from the first division of that court; that he had received as commissioner in chancery during the year 1933 the sum of $640; that he earned fees for making transcripts of records, in cases on appeal, the sum of $162; that this money was paid into the treasury of Union County. There were, perhaps, some other fees not necessary to include here. He was paid the salary of $2,700 according to Initiative Act No. 1, the salary act of Union County.

The trial court held that the duties of the chancery clerk, first and second divisions of Union County, devolved upon the appellant by reason of the fact that he was the duly elected circuit clerk of that county; that the law imposed upon the circuit clerk of the county the duties of the chancery clerk, and that the salary fixed in the Union County Initiative Act No. 1 of $2,700 a year was full compensation that he had a right to receive for all of the duties he performed as circuit and chancery clerk.

We think'this decision was a correct announcement of the law.

Section 15 of article 7 of the Constitution of 1874, provides: “Until the General Assembly shall deem expedient, the circuit court shall have jurisdiction in matters of equity, subject to an appeal to the Supreme Court in such manner as shall be prescribed by law.” The clerk of the circuit court, of course, performed all of the duties of what was then generally spoken of and called “the chancery side of the docket.”

Section 10 of act 166 of the Acts of 1903, provides: “The clerks of the circuit courts in the several counties shall be clerks of the chancery courts and ex-officio masters and commissioners thereof in each of the said counties * * *.” This was not an imposition of new or additional duties imposed upon circuit clerks, for they had prior to that time, as circuit clerks, performed all of the duties devolving npon them in all equity cases that arose, and were tried in chancery by the circuit judges.

Upon the establishment however of the. separate chancery courts, the clerks continued, as under § 10 of said act, to perform the same duties, and render the same services they had prior to that date rendered in the circuit court. There has been no change in that general law of the State since that date, as to the rendition of the duties by the circuit clerk for the separate chancery courts, and clerks of the chancery courts are such by reason of the fact that they are regularly elected as circuit clerks. Upon election they become ex-officio clerks of the chancery courts. So long as the fee system prevailed, they received the fees, emoluments and commissions accruing to them by reason of their services in the chancery court in the same manner that they did those, in the circuit court.

"Whatever may be said about the separate or distinct duties as clerk of the circuit court or as clerk of the chancery court, those duties are performed by one officer, though that officer may act, in the performance of his several duties, as clerk of the circuit court in the one instance, as recorder in another, or as clerk of the chancery court.

In the case of Durden v. Sebastian County, 73 Ark. 305, 83 S. W. 1048, this court said: “It is clear that the Legislature intended to provide in this act for the compensation of all the officers of Sebastian County, and not simply for some of them. The Legislature fixed the salary of the ‘judge of the county court.’ Nothing was said about an extra salary or additional compensation for the judge of the probate court. Why? Because the judge of the county court is ex-officio judge of the probate court, and in providing the salary of the ‘judge of the county court’ the Legislature intended to include compensation to him for whatever services he might perform as judge of the probate court. So, likewise, the ‘clerk of the county court’ for his services as ‘clerk of the probate court,’ and the ‘treasurer’ for his services as treasurer of the common school fund. And the ‘ clerk of the circuit court’ for his services as recorder. It is clear that the Legislature intended, for the purpose of fixing salaries, at least, that these various officers (except the sheriff) having ex-officio duties should receive but one salary for all the duties performed. The Legislature intended that there should be but the one salary or compensation in the cases mentioned, even if it could be said that there were in each case named two offices and two officers in one. ”

In the case of State ex rel. Poinsett County v. Landers, 183 Ark. 1138, 40 S. W. (2d) 432, this court said: “While it is true that the sheriff, under the 'Constitution (art. 7, § 46) holds two separate and distinct offices (Ex parte McCabe, 33 Ark. 396; Falconer v. Shores, 37 Ark. 393), and must give a separate bond for each office, it does not follow that he becomes two officers. We think that he is necessarily only one officer, but holding two separate and distinct offices, until such time as the Legisture sees fit to separate them. ’ ’

In the Landers case, from which the above quotation is taken, Landers was claiming that he was entitled to retain for his own use the compensation of $5,000 for each office, sheriff and tax collector. The court held, however (p. 1142), “The collection of such taxes being a duty imposed by law, it is difficult to perceive on what theory he would be entitled to retain the compensation therefor in excess of $5,000 net compensation for these and all other duties performed.” Citing the case of Durden v. Sebastian County, above.

It must follow that, since the appellant in this case is the circuit clerk and ex-officio clerk of the chancery court, his compensation as clerk, as fixed by the salary act of Union County is the full compensation he is entitled to receive. It has been repeatedly held by this court that the imposition of extra duties on an officer entitled him to no additional compensation unless such compensation is expressly provided for such services.

The question is also raised here, for the first time, as to the sufficiency of the ballot title of the Union County Salary Act. It is unnecessary to argue this proposition. This question was settled, adversely to appellant’s contention here, in the case of Coleman v. Sherrill, ante p. 843, and also in the case of Blocker v. Sewell, ante p. 924.

It follows therefore that this case should be affirmed.

Affirmed.


author: Johnson, C. J.

text:
    Daniels v. Batesville.
    4-3615
    Opinion delivered December 3, 1934.

      L. B. Poindexter and Chas. F. Cole, for appellant.

      W. M. Thompson, for appellee.
   Johnson, C. J.

By complaint and amendment thereto filed by appellant in the Independence County Circuit Court in September, 1933, against the city of Batesville, Arkansas, it was alleged, in effect: That during the year 1929 the city of Batesville, a city of the .second class, caused to be paved, drained and guttered certain streets adjacent to appellant’s real property upon which his home is situated in said city; that, because of the gathering of water from a large territory in said city and throwing it into one drainage, thereby diverting and accelerating the flow thereof into insufficient openings, appellant’s property was caused to overflow, etc. The complaint continuing alleges:

“That on or about the. 12th day of June, 1933, and at other times, and from time to time, and during heavy rains, the surface drainage from a large territory adjacent to Central Avenue, being most of West Batesville east of Central Avenue and a part of the territory west of Central Avenue, has been concentrated at a point adjacent to plaintiff’s property by means of the sewers, gutters, and drains aforesaid, and then discharged in a body onto and across plaintiff’s property, thereby flooding plaintiff’s sidewalks and causing them to collapse; undermining the foundations of his buildings and the retaining walls constructed on his property causing them to collapse; has damaged his buildings by flooding them from time to time; and has washed and eroded his property by the casting of the surface water onto his property as aforesaid in a volume in excess of the capacity of the drain passing through his property.
“Plaintiff states that, because of the continuing and recurring injuries and damages to his property, the value of said property as a business location is lowered; that the rental value of his property is lowered; that his property is rendered much less desirable and valuable as a residence, or for any other use for which said property is reasonably suited. That, because of the injuries aforesaid, the plaintiff verily believes that he has suffered a damage, of twelve hundred and fifty dollars ($1,250), for which said defendant city of Batesville is justly liable.
“Plaintiff further states that the injury complained of is not the construction of the pavement gutters, drains, and sewers along Central Avenue, but is the recurring damage to said property by the discharge of surface drainage in a mass upon plaintiff’s property in a volume in excess of the capacity of the drain passing through his property, thereby causing the damage aforesaid.”

The trial court sustained a demurrer to the complaint thus filed, and appellant declined to plead further, whereupon the complaint was dismissed and this appeal follows.

The complaint and amendment thereto were dismissed because they show upon their face that the alleged cause of action was barred by the three year statute of limitations. Crawford & Moses’ Dig., § 6950. Was this error? Our leading case on the question under consideration is St. Louis Iron Mountain & Southern Ry. Co. v. Biggs, 52 Ark. 240, 12 S. W. 331, where the rule is thus stated: “Whenever the nuisance is of a permanent character and its construction and continuance are necessarily an injury, the damage is original, and may be, at once fully compensated. In such case the statute begins to run upon the construction of the nuisance. * * * But when such structure is permanent in its character, and its construction and continuance are not necessarily injurious, but may or may not be so, the injury to be compensated in a suit is only the damag'e which has happened ; and there may’ be as many successive recoveries as there, are successive injuries. In such case the statute of limitations begins to run from the happening of the injury complained of.”

The case just referred to fell within the latter clause of the rule. In the subsequent case of St. L. I. M. & S. Ry. Co. v. Anderson, 62 Ark. 360, 35 S. W. 791, we had under consideration a similar question, but the facts were that the railroad ivas built across a natural drain and a trestle was constructed to permit the passage of the water thereunder, but subsequently this trestle was removed and a solid earthen dump was constructed across the drainway. Upon this statement of facts we held that it fell within the first clause of the rule announced in the Biggs case, and that the cause of action was barred by the three year statute of limitations.

In the subsequent case of Chicago, R. I. & P. Ry. Co. v. McCutchen, 80 Ark. 235, 96 S. W. 1054, we had under consideration the same question, and all the authorities on the subject were there reviewed, and in concluding the opinion we announced the distinction between the Bigg's case, supra, and the Anderson case, supra, in the following language:

“The distinction between the Anderson case and those last cited [Ry. Co. v. Cook, 57 Ark. 387, 21 S. W. 1066, and St. Louis Iron Mt. & Southern Ry. Co. v. Stephens, 72 Ark. 127, 78 S. W. 766; St. L. I. M. & S. Ry. Co. v. Biggs, 52 Ark. 240, 12 S. W. 331], is that in the former there was a complete obstruction of the drain-way, thus creating a permanent obstruction which necessarily caused a permanent injury, whilst in the latter there was only a partial obstruction which rendered the drainway insufficient at times, and made the future injury dependent upon the seasons and the quantity of rainfall.”

In the subsequent cases of Board of Directors of St. Francis Levee Dist. v. Barton, 92 Ark. 406, 123 S. W. 382; Turner v. Overton, 86 Ark. 406, 111 S. W. 270, St. L. I. M. & S. Ry. Co. v. Magness, 93 Ark. 46, 123 S. W. 786; and Chicago, R. I. & P. Ry. Co. v. Humphreys, 107 Ark. 330, 155 S. W. 127, the rule as theretofore announced was consistently adhered to and followed. On the one hand, where the improvement or obstruction was permanent in nature and the resulting injury or damage, if any, necessarily flowed from the construction, we have consistently held that the cause of action must be instituted within three years after the construction of the obstruction. On the other hand, we have consistently held that where the structure is permanent in its character, and its construction and continuance are not necessarily injurious, but may or may not be so, the injury to be compensated in a suit is only the damage which has happened; and there may be as many successive recoveries as there are successive injuries, and in all such cases the statute of limitations begins to run from the happening of the injury complained of. In other words, the rule is if the structure is a complete obstruction of the drain-way, thus creating a permanent obstruction which necessarily causes a permanent injury to the realty, the suit must be instituted within three years from the date the obstruction is made; on the other hand, if the obstruction is partial and renders the drainway insufficient at times only, and makes the future injury dependent upon the seasons and the quantity of rainfall, successive actions may be instituted to compensate the injuries as they occur. •

The complaint and amendment thereto under consideration alleged, in effect, that appellant’s property was overflowed and damaged because of insufficient openings in the drainage system to carry away the excessive flow of water which falls at certain seasons of the year. It appears therefore that the suit is not grounded upon the theory that the structure was permanent and therefore the damage original, but upon the theory of a partial obstruction which rendered the drainage insufficient at times only, and this dependent upon the seasons and the quantity of rainfall.

We conclude therefore that the trial court erred in sustaining the demurrer to the complaint and amendment thereto, and in dismissing same.

For the error indicated, the case is reversed, and the cause remanded for further proceedings.


text:
    Hopper v. Sullivan.
    4-3618
    Opinion delivered December 3, 1934.

      B. F. Madole and Majors, Robinson db Boyers, for appellant.

      Strait, Gaviness db George, for appellee.
   Humphreys, J.

This is an appeal from a decree rendered by a special chancellor subsequent to the term at which he was' elected. The special chancellor was elected by the bar at the November term to try this case which had been continued and set down for trial on the 4th day of the succeeding March term of court, upon announcement by the regular chancellor that he was disqualified to try the case.

The special chancellor appeared on the 9th day of March which was the 4th day of the. March term, and was sworn in and tried the case without objection and took it under advisement, and at a subsequent day of the March term rendered the decree.. Under § 21 of article 7 of the Constitution of Arkansas, the special chancellor’s authority expired with the adjournment of the November term at which he had been elected. This court said in the case of Goodbar Shoe Company v. Stewart, 70 Ark. 407, 68 S. W. 250, that “The powers of the special chancellor ended with the term at which he was elected, and, as the record does not show that he was elected during the term at which the- decree was rendered, the appeal must be dismissed. Constitution 1874, art. 7, § 21; Dansby v. Beard, 39 Ark. 254.”

Following these authorities, the appeal in the instant case is dismissed.


author: Mehaffy, J.

text:
    Coca-Cola Bottling Company of Arkansas v. Cordell.
    4-3619
    Opinion delivered December 3, 1934.

      Jones & Wharton and 8. Hubert Mayes, for appellant.

      Hugh U. Williamson and Fred M. Pickens, for appellee.
   Mehaffy, J.

This action was begun by the appellee in the Jackson Circuit Court. The complaint stated that on April 18, 1931, the appellee, purchased from the Cash Service Station, Newport, Arkansas, a bottle of Coca-Cola which had been manufactured and delivered to said Cash Service Station by the appellant. It was alleged that, instead of being wholesome and fit for human consumption, said bottle of Coca-Cola so purchased had been negligently bottled by the appellant, and was unwholesome, poisonous, and wholly unfit for use, in that it contained a decomposed foreign substance, poisonous and deleterious, which had been negligently permitted to enter and remain in said bottle by the appellant. Appellee then alleged that he drank a portion of the contents of the bottle, and he became sick, and was permanently injured.

The appellant filed a motion to require the appellee to make his complaint more definite and certain, and this motion was sustained by the court.

Thereafter, the appellee filed an amendment in which it was stated: “that said bottle of Coca-Cola contained some kind of poisonous matter, foreign matter', and unwholesome matter, which has changed the color and appearance of same, giving it the. appearance of being murky and cloudy with heavy dark dregs and settlings in same, the chemical analysis of which is unknown to the plaintiff.”

The appellant then filed a supplemental motion to require appellee to make his complaint more definite and certain. This supplemental motion was overruled by the court, and appellant filed answer denying all the material allegations of the complaint and alleging contributory negligence.

There was a verdict and judgment for $3,000, and the case is here on appeal.

The appellant contends for a reversal on two grounds only, first, that the court erred in refusing to compel the appellee to conform to the motion to make more definite and certain, and in overruling appellant’s supplemental motion; second, that the verdict is excessive.

The original complaint was sufficient without any amendment. The court probably sustained the first motion to make more definite and certain under the belief that appellee could state what substance was in the bottle. When the amendment was filed, it contained the statement that the chemical analysis was unknown to the appellee.

Section 1183 of Crawford & Moses’ Digest provides:. “The pleadings are the written statements by the parties of the facts constituting their respective claims and defenses.” Section 1187 of Crawford & Moses’ Digest, in stating what the complaint shall contain, among other things, said: “A statement in ordinary and concise language, without repetition of the facts constituting the plaintiff’s cause of action.”

We think the original complaint is a compliance with the provisions of the. statute. It is a statement, in ordinary and concise language, of the facts constituting the plaintiff’s cause of action.

The appellant relies on the case of Rapp v. Parker, 128 Ark. 236, 193 S. W. 535. That was a suit for slander, and the court said among other things: ‘ ‘ The sole question in the case, is whether, in charging slander, it is necessary to set out the defamatory words.” The defamatory words were not set out, the court sustained a motion to make more definite and certain, and the plaintiff refused to amend and the complaint was dismissed. The court also said in that case: “Unless the words used were set out, it would be impossible for judge or jury to properly construe them.”

In the instant case the appellee amended his complaint in compliance with the order of the court.

In the case of Dorr, Gray and Johnston v. Fike, 177 Ark. 907, 9 S. W. (2d) 318, the court said: “It is well settled in this State (and no citation of authorities is necessary to support the position) that all a pleader is required to state is the facts upon which he relied for a recovery, where general damages are claimed.”

Many complaints of this kind have been before this court and other courts, and it has never been required to set out the facts with more certainty than they are set out in the complaint in this case.

It is next contended that the verdict is excessive. Section 1305 of Crawford & Moses’ Digest is as follows:

“When by the verdict, either party is entitled to recover money of the adverse party, the jury in their verdict must assess the amount of recovery.” Section 1311 provides that a new trial may be granted for excessive damages appearing to have been given under the influence of passion or prejudice.
“While the discretion of the jury is very wide, it is not an arbitrary or unlimited discretion, but it must be exercised reasonably, intelligently, and in harmony with the testimony before them. The amount of damages to be awarded for breach of contract, or in actions for tort, is ordinarily a question for the jury; and this is particularly true in actions for personal injuries and other personal torts, especially where a recovery is sought for mental suffering.” 8 R. C. L. 657, § 199; Olson v. St. Paul & D. R. Co., 48 N. W. 445; Colgate Co. v. Bross, 107 Pac. 425; Christy v. Elliot, 74 N. E. 1035.

This court said: ‘ ‘ The principal error assigned is in the amount of the recovery. Verdicts are set aside for this cause only when they are not supported by proof, or when they are so excessive as to indicate passion, prejudice, or an incorrect appreciation of the law applicable to the case.” Texas & St. L. Ry. Co. v. Eddy, 42 Ark. 527; Kelly v. McDonald, 39 Ark. 387.

“The amount of recovery in a case of this sort should be such, as nearly as can be, to compensate, the injured party for his injury. The suit is for compensation, and compensation means that which constituted or is regarded as an equivalent or recompense; that which compensates for loss or privation, remuneration.” M. P. Ry. Co. v. Remel, 185 Ark. 598, 48 S. W. (2d) 548.

The evidence shows that the appellee was forty years old, that he became violently sick, vomited, and suffered pain, and was unable to eat the things he had formerly eaten, and was under the care of a physician for a long while. Appellee’s physician testified that his injury was permanent; that he would suffer as long as he lived.

The extent of the injury and the amount of recovery were questions of fact for the jury, and there is nothing in this case to indicate passion, prejudice, or an incorrect appreciation of the law applicable to the case. This court, as was said in Texas & St. L. Ry. Co. v. Eddy, supra, cannot set aside a verdict if it is supported by proof, and when there is nothing to indicate passion, prejudice, or an incorrect appreciation of the law applicable to the case.

The jury were correctly instructed; they saw the witnesses; heard them testify; were able to observe their demeanor on the witness stand, and also had an opportunity to see the appellee himself, and they are therefore better judges of the. extent of the injury and amount necessary to compensate appellee than this court is, and for that reason the jury is the judge of the credibility of the witnesses and the weight to be given to their testimony.

The judgment is affirmed.