author: McHaney, J. Mehaeey, J.,

text:
    State, use Garland County, v. Balesh.
    Opinion delivered October 21, 1929.

      William G. Bouic, for appellant.

      Martin, Wootton S Martin, for appellee.
   McHaney, J.

This action was instituted by the prosecuting attorney of the 18th Judicial District, under. §§ 030 to 643, inclusive, of C. & M. Digest, relating .to public auctioneers. The complaint charges that appellee operates a public auction in the city of Hot Springs, No. 350 Central Avenue, at which place various articles of merchandise are offered for sale daily, at public auction, to the highest 'bidder, and that appellee employs others to sell said goods at auction for him; that neither lie nor his employees have obtained a license as public auctioneers.

Appellee answered, admitting that he conducted the business alleged in the complaint, but denied that he did so in violation of law, and denied that he and his employees were required by law to take out a license.

The case was submitted to the court sitting as a jury, on an agreed statement of facts substantially as follows: Appellee is a resident and taxpayer of Hot Springs, and since 1918 has been selling merchandise in said city, consisting chiefly of Oriental goods, chinaware, linens, antiques and art goods generally, by auctioning same to his customers, instead of the ordinary method of selling over the counter; that he sells only his own goods, in his own storehouse, and not on consignment or for a commission for others; that he has never sold any goods on auction for .any other person, and has never held himself out to the public as a public auctioneer to sell real estate or any other kind or class of goods; that he has paid no license as a public auctioneer, nor has he filed any bond with the county court, or rendered any account in writing to any county official of any property sold by him at auction; that he employs such help as he considers necessary, and that some of said employees auction goods for him; and that he pays the city $100 occupation tax, and $300 for the privilege of selling at auction annually.

Under the above facts the court found for appellee, and entered judgment accordingly.

The statute provides, § 630, C. & M. Digest, that:

“No person shall exercise the trade or business of a public auctioneer, by selling any goods or other property subject to duty under this law, without a, license, to be issued according to law.” It will be noticed that the word “public” precedes the word “auctioneer” in this section, and nowhere else in the subsequent sections of the statute does this word “public” appear. It was put there by the Legislature for a purpose, and, in determining what this purpose was, as said in Bullion v. Ætna In surance Company, 151 Ark. 519, 525, 237 S. W. 716: “We conceive it to be our duty only to ascertain the legislative intent, and this must be done by interpreting the words which the Legislature itself has employed in expressing-that intent. It is an accepted canon of construction; that ‘ where a word which has a known legal meaning is used in a statute, it must be assumed that the term is used in its legal sense, in the absence of an indication of a contrary intent.’ 26 A. & E. Enc. of Law (2d ed.) 607.” And in St. L. I. M. & S. R. Co. v. State, 102 Ark. 205, 143 S. W. 913, this court said: “In determining what the meaning of these words (‘division point’) is, we must look to see what is the usual and ordinary interpretation given to them by those using them, and also to consider them in reference to the subject-matter in the mind of the Legislature, as shown by this statute.” The word “public” is here used in its adjective sense. It is an adjective, and modifies and limits the word ‘ ‘ auctioneer. ’ ’ It defines the kind of auctioneer who must obtain a license. It is descriptive of the person, and not his business. A number of definitions of “auctioneer” may be found in Words and Phrases, 1st ed., but the substance of all of them is that an auctioneer is a person who sells property at auction. But the word “public” in our statute, as applied to the word “auctioneer,” means something more. It means just what it says, that is, a public auctioneer is a person who holds himself out to the public as being willing and ready to sell property at auction. It has the same meaning as the word “public’ ’ as applied to accountant, or stenographer — those who are willing to sell their services to the public in their particular line of business. A person might be an expert accountant, and yet do no business for the public, nor hold himself out to the public as being ready to serve it. Certainly such a person would not be a public accountant. The Legislature evidently intended to require all persons who engage in the business of selling property for others at auction, that is, for the public, to obtain a license.

All the cases cited by counsel for appellant construe statutes and city ordinances wholly different from ours. Biddles v. Enright, 239 N. Y. 354, 146 N. E. 625, deals with a city ordinance of the city of New York prohibiting sales at public auction except in the daytime. The ordinance was sustained. In Fretwell v. City of Troy, 18 Kan. 271, the court had under consideration an ordinance of the city of Troy providing that, “before any person shall' proceed to sell at public auction * * * he shall obtain a license. ’ ’ The court sustained the ordinance. So, in the city of Hot Springs appellee is required to and does pay an annual license fee of $300. In City of Goshen v. Kern, 63 Ind. 468, 30 Am. Rep. 234, the court held an ordinance of the city valid which provided that “any person who shall exercise, within said city, the business of an auctioneer * * * without having first obtained a license, * * * shall be fined,” etc. Also in Chicago v. Ornstein, 323 Ill. 258, 154 N. E. 100, 52 A. L. R. 489, an ordinance of the city of 'Chicago was held valid which required auctioneers to be licensed, and which defined an auctioneer as one “who sells goods at public auction for another or for himself.” We do not consider these cases as being in point. Our statute deals with “public auctioneers,” and not merely “auctioneers,” or persons who sell goods, wares, and merchandise at public auction. Appellee sells his own goods, in his own place of business, at auction. He employs others to assist him. He does not sell for others, nor does he hold himself out to the public as ready and willing to do so. Applying the rules of construction above stated, we think the appellee is not a “public auctioneer” and is not required to comply with the statute referred to.

Affirmed.

Mehaeey, J.,

(dissenting). I do not agree with the opinion of the majority in this case. The facts are sufficiently stated in the opinion of the majority, and it is unnecessary to restate them.

The majority opinion states: “It will be noticed that the word ‘public’ precedes the word ‘auctioneer’ in this section, and nowhere else in. the subsequent sections of the statute does the word ‘public’ appear. It was put there by the Legislature for a purpose, and,' in determining what this purpose was, as said in Bullion v. Ætna Insurance Co., 151 Ark. 519-525, 237 S. W. 716, we conceive it to be our duty only to ascertain the legislative intent, and this must be done by interpreting the words which the Legislature itself has employed in expressing that intent. It is an accepted canon of construction that ‘where a word which has a known legal meaning is used in a statute, it must be assumed that the term is used in its legal sense, in the absence of an indication of a contrary intent. ’ 26 A. & E. Enc. of Law, 2d Ed. 607. ’ ’

The majority opinion then says: “The word ‘public’ is here used in its adjective sense. It is an adjective and modifies and limits the word ‘auctioneer.’ It defines the kind of auctioneer who must obtain a license. It is descriptive of the person and not his business.”

We agree that the intent of the Legislature must be ascertained, but, in ascertaining’ the intent of the Legislature, we must consider the whole act and not merely a portion of it or one word, but all of it must be considered together, and we must also consider the purpose for which the act was passed; the object of the Legislature in passing it.

It is true that the first section of the statute says: “No person shall exercise the trade or business of a public auctioneer, by selling any goods or other property subject to duty under this law, without a license, to be issued according to law.” Crawford & Moses’ Digest, § 630.

The act provides that he shall not exercise the trade or business of a public auctioneer, by selling goods or other property, etc., and the section immediatelv following provides that every person who shall exercise the trade or business of an auctioneer, (this section does not say public auctioneer), but every person who exercised tbe trade or business of an auctioneer. That is, every person wbo sells property at public sale to tbe highest bidder is exercising the trade of an auctioneer because, according to all the authorities, auctioneer means a person who sells goods at auction; that is, a person who sells goods at public sale to the highest bidder.

Again, § 637 of Crawford & Moses’ Digest mentions the property that shall be free of duty and for the selling of which one does not have to have a license as an auctioneer. Among other things, one may sell property of a debtor who has made a general assignment for the benefit of creditors. Also property of deceased persons sold by authority of executors or administrators, and live stock, agricultural productions, etc., sold at the residence of the owner. Also land or leasehold interest sold on the premises.

There is no indication anywhere in the act that one might be permitted to sell his goods at auction, or that it was the intention to make an exception in case where one sold his own goods at auction other than the exceptions made in the statute. When the entire statute is considered, we think the word “public” meant nothing more than an auctioneer wbo sold goods at public sale.

We all agree that it was the intention of the Legislature in passing this act to protect the public. Can it be said that the public is more likely to be injured or deceived when one sells goods belonging’ to another at public sale than when he sells his own goods? If there is any difference at all, the public Avould be more likely to be deceived by the person who is selling his OAvn goods than by a person who is selling the goods of another. The object is to protect the public.

I think, 'from the reading and consideration of the entire act, that it was the intention of the Legislature to protect the public, whether a person sold his oavu goods or the goods of another. If the construction placed unon the statute by the majority is correct, then three or four merchants who desire to sell their goods at auction might very well contract with an auctioneer who would agree to sell at one place at one hour and at another at another, and also agree that he would not act as auctioneer for the public. But this would be a clear evasion of the law, and the object of the law is to prevent all persons from acting as auctioneer and selling goods at auction unless they comply with the law.

This court said recently: “Mr. Chief Justice Taft, in recognition of the duty of the court to consider the act whose validity was in question in the light of the environment in which Congress passed it, said: “It was for Congress to decide, from its general information and from such special evidence as was brought before it, the nature of the evils actually present or threatening, and to take such steps by legislation within its power as it deemed proper to remedy them. It is helpful for us, in interpreting its validity, to know the conditions under which Congress acted.” Hill v. American Book Co., 171 Ark. 427, 285 S. W. 20.

So, in the instant case, it is helpful for us, in interpreting the statute, to know the conditions, and especially the object of the Legislature in enacting the statute.

‘ ‘'Such a construction ought to be put upon a statute as may best answer the intention which the makers have in view, and this intention is sometimes to be collected from the cause or necessity of making the statute, and sometimes from other circumstances; and, whenever such intention can be discovered, it ought to be followed with reason and discretion in the construction of the statute, although such construction seems contrary to the letter of the statute. And such construction ought to be put upon it as will not suffer it to be eluded.” Turner v. Ederington, 170 Ark. 1155, 282 S. W. 1000.

“The primary object in the construction of statutes is to determine what purpose or intent the Legislature had in mind in passing the statute, from the language used, and to give effect to that purpose or intent.” Cowan v. Thompson, 178 Ark. 44, 9 S. W. (2d) 790; McGinnis v. Gailey, 174 Ark. 174, 298 S. W. 335.

“'This 'court has uniformly held that, in the construction and interpretation of statutes, the intention of the Legislature is to he ascertained and given effect from the language of the act, if that can be done. In doing this, each section is to be read in the light of every other section, and the object and purpose of the act to be considered.” Miller v. Yell and Pope Bridge Dist., 175 Ark. 314, 299 S. W. 15; Ark. State Highway Com. v. Kirby, 175 Ark. 652, 298 S. W. 335.

“The intention of the Legislature in framing a statute is to be collected from the words used, the context, the subject-matter, the effects and consequences, and the spirit and reason for the law.” Breashears v. Norman, 176 Ark. 26, 2 S. W. (2d) 53.

“In deciding this question we have in mind the settled rules of construction that a statute must be read as a whole to ascertain its meaning, and courts must give effect to the meaning of the statute as thus ascertained, and in the discharge of this duty courts are frequently required to eliminate or to substitute words for those employed by the Legislature.” Indian Bayou Drainage Dist. v. Dickie, 177 Ark. 728, 7 S. W. (2d) 794.

It appears to us that there could be no disagreement about the object and purpose of the Legislature in passing the statute, and, keeping that in view and considering the entire act, we are of opinion that the Legislature meant to require everyone, except those embraced in the exceptions of the statute, to get a license before he could sell goods at auction.

The majority opinion says that “public” means the same thing that it would to say public stenographer or accountant; that is, those who are willing to sell their services to the public in their particular line of business, and states: “A person might be an expert accountant and yet do no business for the public, nor hold himself out to the public as being ready to serve it. Certainly such a person would not be a public accountant.”

We do not agree with the majority in this. In the first place, the statute providing for an examination and registration of public accountants says that one may be a public accountant and serve the public as such without paying any fee or talcing any examination. It, of course, prohibits him from claiming to be a certified public accountant when he is not.

The majority opinion says: “All the cases cited by counsel for appellant construe statutes and city ordinances wholly different from ours.” We do not think so, but think that some of them are similar to our statute, if not exactly like it.

The first case to which the majority opinion calls attention is Biddles v. Enright, and that was under a New York statute and prohibited the selling of goods by auction at night. But the court said in that case: “It is a reasonable effort to insure fair public sales, to prevent fraud and deception, and to protect purchasers from the dangers lurking in the darkness of the night. * * * Then again, the business of an auctioneer, while perfectly legal, has always been affected with a public interest and subject to legislative restriction.” Biddles v. Enright, 239 N. Y. 354, 39 A. L. R. 766, 146 N. E. 628.

In the New York case the auctioneer was selling his own goods, and not the goods of another.

In the case of Fretwell v. Troy, 18 Kansas 271, the court not only sustained the city ordinance, but that ordinance, like our statute, had two sections. One of them referred to the auction, and the other to the auctioneer. And the court said:. “Do these two sections reach to the same matter, &0> that obtaining a license under one, is equivalent to a license under both, and a bar to any prosecution under either? We think not. There is a clear distinction between the two. The one applies to the party who has goods which he desires to dispose of by auction, and the other to the party who makes the out-cry. The same party may occupy both positions. He may have goods to sell at auction, and he may be his own auctioneer. ’ ’

The ordinance is not only similar- to our statute in the two sections, but in that case the auctioneer was selling his own goods, just as the .appellant in this case.

The majority opinion disposes of the case of Goshen v. Kern, 63 Ind. 468, 30 Am. Rep. 234, simply by stating that the court held the ordinance of the city making a person liable who exercised the business -of an auctioneer without license valid. However that is another case which holds that an auctioneer must have license to sell his own goods. That case gives the definitions found in the dictionaries of auctioneer, and all of them define auctioneer as a person who sells by auction, or sells goods publicly to the highest 'bidder, and s-ome of them state outright that an auctioneer is a person who sells at public auction his own goods or the goods of another. That court said also: ‘ ‘ And the owner of the property to be sold will not and does not, in our opinion, affect, impair, or prevent the exercise of these powers in any respect. The power given is in the nature of police regulation, and it applies to all sales by auction, as well to those where the auctioneer sells his own property as to those where he sells the property of other persons.”

The next case to which the majority opinion calls attention held as follows: “The object of the regulation is to promote the -general welfare by protecting the public from fraudulent sales, and this protection is needed as much, if not more, where the auctioneer is selling his own goods as where he is selling the goods of another.” Chicago v. Arnstein, 323 Ill. 328, 154 N. ID. 100, 52 A. L. R. 489.

The Missouri court held valid an act which prohibited any person from exercising the trade or business of public auctioneer by selling any goods, or -other property subject to duty under this law, without a license, There were exceptions to the statute there the same as ours, but the defendant was selling tobacco and tobacco was not included in the 'exceptions. That is, the sale of tobacco was not free of duty. The defendant contended in that case that to be guilty he must be proved to have followed the business for <a livelihood or for support. But the court held that this was not a defense. State v. Rucker, 24 Mo. 557.

I think, therefore, that the object and purpose of the Legislature in passing the act was to protect the public, and that therefore sales by the owner of goods cannot be lawfully made at public sale any more than the sale of the goods for others. It is immaterial whose goods they are if they are sold at auction, and not within the exceptions mentioned in the statute. The auctioneer who makes the sale must have a license.

I also think, when the entire act is considered and construed according to the rules adopted by this court, taking into consideration not only the entire act, but the purpose of it, that “public” before “auctioneer” means nothing more than selling at public sale, and that the case should be reversed.

Mr. Chief Justice Hart and Mr. Justice Humphreys ag’ree with me in the conclusions herein reached.


source: Caselaw Access Project

author: Butler, J.

license: Public Domain

text:
    Fidelity Mutual Life Insurance Company v. Price.
    Opinion delivered October 21, 1929.

      T. J. Moher, Rose, Hemingway, Cantrell S Lough-borough and Carmichael & Hendricks, for appellant.

      A. G. Meehan, Peyton D. Monqrief and John W. Moncrief, for appellee.
   Butler, J.

Appellee’s intestate, James Arthur Price, in 1914 procured a policy of insurance from the appellant, Fidelity Mutual Life Insurance 'Company, in the sum of $5,000. He was at that time, or a short time thereafter, doing business with the appellant, American Southern Trust Company’s predecessor, and, to secure it for any advances made, assigned the policy as collateral security. This assignment contained a stipulation giving full power to the assignee or its legal representatives to receive in any form the value thereof, in trust, without liability on the part of the company to see to the proper discharge of the trust or any part thereof. In April, 1926, this assignment was released in writing, and an “•assignment absolute” was executed, by the terms of which all the right, title and interest in and to the policy and all benefits accruing or arising therefrom were transferred without qualification. The assignee was constituted attorney with full power to do any act necessary for the enjoyment of the policy assigned, and the company was expressly authorized to make all payments under the policy to the assignee.

Price died May 31, 1927. Proof of death was made by the assignee, and on the 16th day of June, 1927, the appellant insurance company made its cheek for the face value of the policy, less a loan which the insured had negotiated in his lifetime, the net amount being $4,571.62. This check was duly paid, and the proceeds appropriated by the appellant bank. The appellee, R. C. Price, as administrator of the estate of James A. Price, his heirs joining with the said administrator, brought this suit against both the appellant insurance company and the appellant bank. The complaint sufficiently alleges a joint liability on the part of the appellants, on the theory that the assignment had been canceled by an oral agreement made between the appellant bank and the insured, and the policy constructively delivered to the insured, and the possession held by the bank thereafter was as agent of the insured, and that he was the owner of the policy, and his beneficiaries entitled to the proceeds at his death; that all of these facts were known to the insurance company, and that, with this knowledge, it colluded with the appellant bank to defraud the beneficiaries, and, in furtherance of the common design, accepted 'from the bank the policy, and made payment of the proceeds to it to enable its confederate to fraudulently convert the proceeds thereof to its own use.

This suit was filed in the circuit court of Arkansas County. Service was had upon the'insurance company, and summons issued and served on the bank in Pulaski County by virtue of § 1176 of Crawford & Moses’ Digest, which is as follows: ‘ ‘ Every other action may be brought in any county in which the defendant, or one of several defendants, resides, or is summoned.” After service upon it, and before issue joined, the appellant bank challenged the jurisdiction of the court by its motion to quash service on it. Upon denial of its motion, proper exceptions were saved, and in its answer, after traversing the allegations of the complaint, it set up the fact that it was a banking corporation, domiciled in Pulaski County, with no branch in Arkansas County, and moved to transfer to chancery. The court sustained the motion to transfer, and the appellees (plaintiffs below) moved to dismiss as to both defendants, which motion was sustained. Thereafter the appellees filed their motion to reinstate. Appellants .contested this motion, but the motion was sustained, and the cause reinstated, appellant bank appearing and contesting the motion to reinstate.

After the cause was reinstated, an amendment to the complaint and response to the motion to transfer to equity was filed, and, on a hearing of the response, the court set aside the order to transfer, and the cause then proceeded to trial, which trial resulted in a verdict and judgment for the plaintiff against both defendants in the amount sued for, to-wit, $2,997.50.

The insurance company raised no question as to the service upon it, but, before answer, moved to strike because there was a misjoinder of parties and no joint liability alleged. These motions were overruled. The insurance company answered, and, at the conclusion of the testimony, moved for a directed verdict, because the facts proved failed to establish any liability as to it. The appellant insurance company and the appellant bank filed their joint motion for a new trial, in which they preserved their objections and exceptions to the action of the court, and, their motion for a new trial being overruled, they have prosecuted this appeal.

They insist that there was no evidence tending to establish the allegations of fraudulent conspiracy of the appellants, The appellees, on their part, contend that there is ample testimony to warrant the trial court in submitting’ this question to the jury. The facts relied upon to establish the allegations of fraudulent conspiracy may be thus summarized:

The insured died on or about May, 31, 1927, and was buried June 2, following: On that day Mr. C. P. Ball addressed a letter to “ft. C. Bright, manager of the Fidelity Mutual Life Insurance Company, Little Rock, Arkansas.” Ball had been a friend of the insured, and was interested in the welfare of his family, and, moved by this, he wrote the letter, in which he informed Bright of the recitals of the decree of the chancery court entered May 28, 1928, showing that in 1922 the insured executed a mortgage on certain lands to secure an indebtedness due the appellant bank’s predecessors, and had pledged two insurance policies issued by the appellant insurance company; that in the decree there was no personal judgment against the insured, and that the delivery of certain personal property, and the foreclosing of lands and sale of same to be made thereunder was in satisfaction and settlement of the indebtedness due. After making these statements, the letter concluded with the request for information relative to the status of the two policies.

On June 4, 1927, Mr. Bright answered the inquiry, stating that there had been one policy issued to the insured by his company for $5,000; that later the insured made application for another policy for $6,000, but that the last named policy was not acceptable to the insured, and was declined; that after this the $5,000 which had been pledged as collateral security was “assigned to the bank absolutely.” He stated that, because of the assignment, the fact that no personal judgment was given in the decree mentioned would not serve to enable the family of the insured to receive the proceeds of the policy, but gave it as his opinion that, notwithstanding the assignment absolute, “as a matter of practice and good conscience, so far as I know,' under the assignment absolute, if an equity exists it is turned over to the heirs of the deceased.” He further stated: “You know that the bank had paid the premiums for several years, and the collection of the policy will not prevent them from sustaining an actual loss. ’ ’

It developed that Bright was mistaken, at least as to the payment of two past due premiums, which the assured paid through the appellant bank in April, 1926, and he also paid the premium due November, 1926, which ivas remitted by the appellant bank to the insurance company, with the request to mail receipt direct to the insured. Insured also paid the premium due November, 1927, by his personal check delivered to Mr. Bright. The insurance company mailed direct to assured notices of due dates of premiums. Mr. Bright, to whom the letter of Mr. Ball was written, and who received the premium check of November, 1927, was, and had been for some years, the State agent of the insurance company. He was also the owner of some three or four thousand dollars’ worth of the capital stock of the appellant bank, and a director of said bank.

On the 8th day of June, 1928, proof of death was made by an officer of the appellant bank and transmitted to the insurance company, and on the 16th day of the same month the insurance company made and forwarded to the appellant bank its check for $4,571.62, net proceeds, after deducting a loan made by the insured in his lifetime on the policy. On the 13th day of July following, a son of the insured applied to Mr. Bright for forms on which to make proof of death, and was informed that proof had been already made by the appellant bank, and the proceeds of the policy paid to it. There was also evidence tending to show that there was a settlement between the bank and the insured prior to his death, and the assignment of the policy canceled.

There was no testimony showing that Bright had any part in the management of the affairs of the bank or any knowledge of the details of its business, or that he had any information regarding any settlement of the affairs of the hank and the insured, except such as was disclosed in Ball’s'letter and his answer thereto, in which no knowledge was disclosed except such general knowledge as would likely be in the possession of any friend of the insured, and who had been acquainted with his business operations and the disasters attending it through several years.

Assuming that the transactions above narrated, and Bright’s information was within the scope of his authority and the knowledge he gained as bank director, if any, is imputable to the insurance company (which is not necessary for us to decide, but see Waters Pierce Co. v. Bridewell, 103 Ark. 345, 147 S. W. 64, 64 Ann. Cas. 1914 B, 837, do the facts warrant the submission to the jury of the question of fraudulent conspiracy on the part of the insurance • company in aid of fraudulent conduct, if any, on the part of the appellant bank? In order to establish a conspiracy to defraud, the evidence must do more than raise a suspicion; it must lead to belief. The circumstances are disconnected, and it seems only reasonable that any one or all of these circumstances are just as consistent with a lawful purpose as with an unlawful undertaking; they are ‘ ‘ slight, equivocal, and unsatisfactory.” The appellees, as we have said, insist, however, that this evidence is ample to establish the fraudulent conspiracy; that the fact that Bright was a director in the appellant bank and a personal friend of the insured, familiar with his business affairs, and that the insured’s account with the bank was large — the knowledge that the insured had paid premiums after the date of the assignment, the letter of Ball and his reply — all warranted the submission of the issue to the .jury and supported its finding. They say that the circumstances were sufficient to show that Bright knew that the assignment, although absolute in form, was only collateral security. If, indeed, the assignment was only collateral security, the insurance company could not be deemed to have agreed to any other conditions than those stated in the collateral assignment which had theretofore been made, and which authorized the assignee to collect the proceeds, without liability on the part of the company to see to the proper discharge of any trust.

We see no fact from which a reasonable inference might be drawn that Bright or the insurance company had knowledge that the assignment was collateral or that the debt was paid, or knowledge of the alleged oral agreement of cancellation and redelivery of the policy to the insured. Bright testified that he had no knowledge of any such fact, and, while he was a director of the bank and had general laiowledge that the insured was largely indebted to the bank, there is no testimony that he took any actual part in the management of the affairs of the bank or had any special knowledge of the extent of the insured’s business, or any knowledge whatever of the alleged settlement or of the terms upon which it was made, or of the property taken or to be taken in satisfaction of the debt, or of any agreement, oral or otherwise, by which the absolute assignment was released. There is nothing in his letter to Ball to indicate any such knowledge. He merely gave Ball what information he had, namely, that there was an absolute assignment of the policy, and that the bank stood to lose a considerable sum after collecting the policy. It is true, he knew • — as also did the home office of the insurance company— that the insured had paid the premiums of November, 1927, and the home office knew of the payment by the insured of the premium of November, 1926, and of past due premiums made in April preceding; but these circumstances would hardly call for any investigation of the respective rights of the bank and the insured, it not being shown that this was unusual or of any such particular significance as to call for any such investigation. Neither was the insurance company or its agent under any obligation to see that the bank properly discharged its duty to the insured. In the letter from Ball there was no intimation that the estate or heirs of the insured would demand of the insurance company the proceeds of the policy, and nothing to warrant the belief that they intended to do so. The fact that the decree referred to provided for a judgment in rem only did not indicate anything further than that a personal judgment was not desired, and we fail to see how this could have indicated that the assignment had been, or ought to have been, released.

The appellees insist that Bright could have obtained all of this information on inquiry from Mr. Hicks, who appears to have been the officer in charge of the affairs of the bank, and knew whether the bank held the policy as collateral security, whether the assignment had been canceled, and whether the title to the policy reinvested in the insured. In the first place, there was no duty resting upon Bright to make any such inquiries, and, if he had, as shown bjr the testimony of Hicks, he would have discovered that the bank claimed the absolute ownership of the policy. The insured was indebted to the bank in excess of $50,000; the decree recited that the judgment was in rem only; that the mules and equipment had been delivered to the bank, and the land was to be sold in satisfaction of the debt. The policy was already assigned, the land and equipment and policy were all of doubtful value, and it might have been as reasonably concluded from a knowledge of these facts that the policy was taken into consideration, and absolutely acquired by the bank as to conclude otherwise.

In the case of Bank of Little Rock v. Frank, 63 Ark. 16, 37 S. W. 400, 58 Am. St. Rep. 65, where fraud was alleged and testimony introduced to establish it, the chancellor decreed that the facts proved were sufficient to sustain the allegation, and this court, on appeal, in reversing the cause and holding that the facts were not sufficient, among other things, said: “Fraud is never presumed, but must be proved, and the burden of proving it is upon the party alleging it. It need not be shown by direct or positive evidence, but may be proved by circumstances. Slight circumstances, or circumstances of an equivocal tendency, or circumstances of mere suspicion, leading to no certain results, are not sufficient evidence. They must not be, when taken together and aggregated, when interlinked and put in proper relation to each other, consistent with an honest intent. If they are, the proof of fraud is wanting-. They may be sufficient to excite suspicion, but suspicion is not the equivalent of proof. 'Circumstances necessary to prove fraud must be such as naturally, logically, and clearly indicate its existence.” Applying this rule to the facts in this case, we think that the facts did not warrant the submission of the question to the jury, and that the appellant insurance company’s request for a peremptory instruction should have been granted.

As we have seen, the appellant bank moved to quash service of summons upon it, and excepted to the action of the court in overruling same. Appellees say that, by asking for a continuance, or time to file its answer, and by appearing and contesting the motion to reinstate, and by presenting and arguing its motion to transfer to chancery without saving its rights, the question of service is waived. They rely upon the cases of Epps v. Sasby, 43 Ark. 545; Tindall v. Layne, 139 Ark. 590, 214 S. W. 1, and Sager v. Jung & Son, 143 Ark. 506, 220 S. W. 801, to support their contention. It is true that, as a general rule of practice, ‘ ‘ any action on the part of the defendant, except to object to the jurisdiction which recognizes the ease as in court, will amount to a general appearance,” and these cases so hold. But, as the service- on the bank was obtained by virtue of § 1176, C. & M. Digest, supra, the bank, under § 117-8, C. & M. Digest, is not bound by the general rule, for it might at any time before judgment was rendered object to the jurisdiction of the court and thus preserve its rights, and if the case as to its codefendant should be dismissed or judgment rendered in favor of the codefendant, the bank would be entitled to dismissal as to it.

It follows therefore that the cause should be reversed as to the appellant bank; and the question arises, has the appeal of the bank to this court entered its appearance so that further service upon it will not be necessary, and-the cause be remanded for a new trial in the circuit court of Arkansas County? The general rule is that, although the judgment was erroneously rendered in the trial court, where proper service was not had, yet an appeal to this court would render further service unnecessary, and the cause would be remanded for a new trial in the court below. This is the effect of the holding in the following cases: Benjamin v. Birmingham, 50 Ark. 433, 8 S. W. 183; Waggoner v. Fogelman, 53 Ark. 181, 13 S. W. 729; Epps v. Sasby, 43 Ark. supra; St. L. I. M. & S. R. Co. v. Barnes, 35 Ark. 95; Adams Machine Co. v. Castleberry, 84 Ark. 573, 106 S. W. 940; Holloway v. Holloway, 85 Ark. 431, 10-8 S. W. 837; Beal-Doyle D. G. Co. v. Odd Fellows Bldg. Co., 109 Ark. 77, 158 S. W. 955; Merimack Mfg. Co. v. Bibb, 119 Ark. 443, 178 S. W. 403; Tindall v. Layne, 139 Ark. 590, 214 S. W. 1; Duncan Lbr. Co. v. Blalock, 171 Ark. 397, 284 S. W. 15; Purnell v. Nichol, 173 Ark. 496, 292 S. W. 686; Federal Land Bank of St. Louis v. Gladish, 176 Ark. 267, 2 S. W. (2d) 696.

An examination of all these cases will disclose, however, that in none of them was service had on the appellee by virtue of § 1176, C. & M. Digest, supra, but in each of the cases none of the defendants were residents of the county in which suit was brought, and that § 1178, C. & M. Digest, supra, had no application.

The only one of the above cases which might appear not of this class is that of Beal-Doyle D. G. Co. v. Odd Fellows’ Bldg. Co., supra, but a careful examination of that case will disclose that there was but a single defendant, for the complaint showed that the defendant who was -sued and served in Clay County was sued and served merely, as the agent of the Beal-Doyle D. G. Co., so that the legal effect was but one defendant, Beal-Doyle Co., domiciled in Pulaski -County, no cause of action being alleged against the resident defendant except in his representative capacity.

Seelbinder v. Witherspoon, 124 Ark. 331, 187 S. W. 325, was a suit like the instant case, and the court in that case held that under the statute the defendant, improperly served, and who made his objection before judgment, was entitled to have the case dismissed against him, where no judgment was rendered against his codefendant, and that an appeal from the judgment against him was not a waiver, and did not enter his appearance, and the case against him should be dismissed on appeal. In the recent case of Federal Land Bank of St. Louis v. Gladish, supra, the court reviewed the cases, and has clearly drawn the distinction, and shown that the case of Seelbinder v. Witherspoon, supra, is in no sense in conflict with the general rule announced in the cases above, but is governed by the express terms of the statute. The rule announced in the case of Seelbinder v. Witherspoon, supra, is applicable to the instant case, and controls it. As we have seen, there was no testimony to establish joint liability in the court below, and a verdict for the insurance company should have been directed. The judgment in this court dismissing the case as to the insurance company is therefore equivalent, and in legal effect the decision in the court helow.

We have purposely refrained from discussing the question of the liability of the appellant bank to the administrator of the insured, for it is neither necessary nor proper, in our opinion, to discuss the facts relative to that issue.

It follows that the judgment of the trial court must be reversed, and the cause is dismissed as to both the appellants, without prejudice to the rights of the appellees to further proceedings against the appellant bank.


author: Hart, C. J.,

text:
    Wilson v. Rambo.
    Opinion delivered October 28, 1929.

      Alley <& Olney, for appellant.

      Minor Pipkin and Duke Frederick, for appellee.
   Hart, C. J.,

(after stating the facts). It is sought to uphold the decree upon the authority of Taylor v. Rogers, 176 Ark. 156, 2 S. W. (2d) 56. In that case it was held that all contracts made by road improvement district commissioners for the construction of bridges on the main line of the road involved, and which formed a pari of the State Highway system, made subsequent to the passag’e of act 11 of the Acts of 1927, were made without' authority, and are void. It was further held that all contracts, made either prior or subsequent to the passage of the Acts of 1927 relating to improvements of roads not a part of the State Highway system, are valid and binding’ if made in compliance with the law authorizing the same.

' The improved highway was organized under the provisions of the act of 1915 commonly called the Alexander Road Law, and under the terms of that act commissioners are authorized to make changos in the character and route of the road to be improved. This court, however, has uniformly held that such changes in the character of the improvement and the route of the road must be confined to those which are consistent with the original plans, and that material changes in the plans or route of the road cannot be made. Rayder v. Warrick, 133 Ark. 491, 202 S. W. 831; Hunt v. Harvey, 135 Ark. 102, 204 S. W. 600; Nunes v. Coyle, 148 Ark. 365, 230 S. W. 11; Matlock v. Jones, 171 Ark. 45, 284 S. W. 30.

It is first earnestly insisted by counsel for appellee that the contract had been completed, in so far as the proposed change in the route is concerned, and that the commissioners had no authority to make a new contract for the proposed change after the passage of the acts relating to the subject by the Legislature of 1927. We do not agree with counsel in this contention. The original contract was made on a yardage basis, and was an entirety. It contemplated that the whole of tne proposed improved road should be constructed before the contract was at an end. The contract was on a yardage basis, and did not contemplate that the construction of any part of the road should terminate the contract in so far as that part was concerned. As we have already seen, it was in the power of the commissioners to make changes in the route of the road under the Alexander act, under which the district was organized; and the contract for the construction of the road was executed in contemplation of this provision of the statute. The construction contract was made on a yardage 'basis, and applied to changes in the route of the improved highway as well as to that part of the highway which was already laid out and established. The fact that the change was made after the improvement had been made along that part of the road did not affect the power of the commissioners to make the change; and, inasmuch as the commissioners had the power to make the change, it was the duty of the contractors to construct the proposed change or changes in accordance with the plans of the commissioners. The contract was made before the Acts of 1927 were passed, and, under the case cited above, the commissioners had a right to enforce the original contract.

We are of the opinion that, under the terms of the original contract, the commissioners were bound to construct the improved road along the proposed change, provided they had the power to make the proposed change, under the authority of the county court. The record shows that the proposed change was sanctioned by the county court, and that it was ordered to he made a part of the proposed public highway. The city of Mena also passed an ordinance laying out the proposed route as a city street.

As we have already seen, the act under which the district was created gave the commissioners the power to alter the route, provided the change was not a material one. In other words, any change, in order to he made, must not be a material change in the route, but must be a minor change which tends to perfect the general plan of the proposed road. The proposed road runs from the north part of Polk County through the city of Mena to the south boundary of the county, where it touches Sevier County. When we consider the length of the road as running through the entire county from north to south, and the fact that the proposed change made shorter the road four or five hundred feet, and that it eliminated two right-angle curves in the city of Mena, we do not think that it can be classed as a material change in the route. On the other hand, we think that it is a minor change which tends to conform to the original plans of the road and make it more perfect, and safer for the public travel.

The result of our views is that the proposed change is a valid one, and the chancellor erred in not so holding. It follows that the decree must be reversed, and the cause will be remanded with directions to the chancery court to dissolve the injunction, and to dismiss the complaint for want of equity. It is so ordered.


author: Smith, J.

text:
    WILLOUGHBY v. Hot Springs Ice Company.
    Opinion delivered October 28, 1929.

      W. D. Swain, for appellant.

      Martin, Wootton & Martin, for appellee.
   Smith, J.

Tbis suit was brought by the administratrix of the estate of James M. Willoughby to recover damages to compensate the loss sustained by his death. It was alleged, and testimony was offered tending to show, that deceased went to the factory of the Standard Ice Company to purchase ice, and, while on the premises of the ice company for this purpose, a truck driven by C. E. Driscole was 'backed against the platform where deceased was standing, crushing his legs so severely that death resulted. The suit was prosecuted upon the theory that the ice company had negligently failed to provide deceased a reasonably safe place in which to stand and remain while he purchased ice, and the same was. being delivered to him.

The complaint named Driscole and the Standard Ice Company as defendants, but, when it was developed that the plant was being operated at the time by the Hot Springs Ice Company, the latter was made a party defendant.

At the conclusion of the testimony a verdict was directed in favor of the ice companies, and from the judgment on this verdict is this appeal.

The ice plant was -located about twenty-five feet from the street, and the space thus provided was used as a driveway or parkway for persons wishing to purchase ice. The front of the building in which the ice was stored extended about 140 feet parallel with the street. The building for its entire length was fronted with a platform approximately three feet high, with a concrete step-in front also extending the length of the building. The platform and step were used in serving ice to pedestrians and trucks. Deliveries, both wholesale and retail, were made from points on this platform. Deceased lived near the plant, and bought ice daily, usually in small quantities, and delivery was made to him and all other pedestrians in the same manner at the platform, and the purchasers usually stood on the lower step of the platform while they were being served. There was a general invitation to the public to buy ice in this manner.

On the day of his injury deceased was standing on the step, or foundation, as it was interchangeably called, below the platform, which was about hip high to a man standing on the ground, but, if he were on the step, the platform reached his knees. The width of the step was not stated. Deceased was being served by Rufus Brown, a salesman of the ice company. "While waiting to be served, deceased stood on the step with his back to the street and to approaching vehicles. Deceased gave his order for ice, and Brown went into the storage room to fill it, and he passed through two doors to do so. As Brown entered the first door he saw Drisoole driving rapidly, who, “when he drove up, shot in like this (indicating).” The witness testified that the truck backed rapidly into the platform, and that “it jarred my feet” while he was in the storage room.

No separate part of the platform had been designated for the use of pedestrians, to the exclusion of vehicles.

Tom Neeley, testifying on behalf of the plaintiff, stated that he had worked at ice plants in Hot Springs and other cities in this State for twenty years, and that the plant where deceased was killed was constructed in the usual way, and, while he would not say that this was a safe way he considered it as safe for pedestrians as a filling station, and that there was no danger if truck drivers were always careful, but they were not always careful. Witness had never known an ice factory having separate platforms or places assigned on the platforms for pedestrians, to the exclusion of those who came in cars.

There was no defect in the platform or the step attached to it, or in the premises approaching it, and it is not contended that there was anything dangerous about the premises. The only danger arose out of the probability that some of the drivers of the vehicles approaching the platform mig’ht not do so carefully. Deceased was in no danger, and would not have been injured, but for the recklessness of Driscole in backing the truck against him. There was no occasion for Driscole to back his truck against deceased, as there was an abundance of space for this purpose along the platform. Driscole was not employed by the defendant ice companies. They had no control over him in the operation of his truck, and the case was not tried upon the theory that Driscole or other truck drivers were accustomed to driving their trucks up to or against the platform in a careless or negligent manner. The argument is that a separate space for the exclusive use of pedestrians who bought ice pursuant to the invitation so to do, should have been provided, and that the failure to provide this exclusive space was negligence, which, in conjunction with the concurring negligence of a third party, was the proximate cause of the injury, and that the ice companies are liable as well as the driver of the truck.

The trial court held that no case had been made against the ice companies, and we concur in that view.

It may be conceded, as is contended on behalf of appellant, that, where one is invited on the premises of another, he has the right to assume that the premises are reasonably safe for any use compatible with the invitation. But, as we have said, the premises were safe, and there was no danger in their use, and there would have been no injury, but for the negligence of a third party, over whose conduct the ice companies had no control. There was neither opportunity nor occasion for the ice companies to warn deceased, as there was nothing in the testimony tending to show that its employees, in the exercise of ordinary care, should have anticipated the danger. In order to warrant the finding that negligence is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances. Ultima Thule, etc., R. Co. v. Benton, 86 Ark. 289, 110 S. W. 1037.

It may be conceded that Driscole was grossly negligent in 'backing the truck against deceased, but Driscole was not an employee of the ice companies, and the doctrine of respondeat superior has no application to the ice companies, and there is nothing in the testimony to support the finding that the ice companies knew, or should have known, that the safety of any of its customers would be imperiled by an act so negligent as that committed by Driscole, which was the sole cause of the injury.

In the case of Manning v. Sherman, 110 Me. 32, 86 Atl. 245, 46 L. R. A. N. S. 126, Justice Cornish, for the Supreme Judicial Court of Maine, said:

“ ‘When the injury is the result solely of the negligent act of a third person, who does not stand in such a relation to the defendant as to render the doctrine of respondeat superior applicable, no liability attaches to defendant. The fact that the negligent act which caused the injury was done on a person’s land or property will not render him liable, where he had no control over the persons committing such act, and the act was not committed on his account, nor where the third person, whose negligence caused the injury, assumes control of the owner’s property without authority. An owner or occupant of premises, not in a defective or dangerous condition, is not liable for injuries caused by acts of third persons, which were unauthorized, or which he had no reason to anticipate, and of which he had no knowledge.’ ” Citing 29 Cyc. 477, 478.

This case is annotated in vol. 34 Ann. Cas. 1914D, 91, and the numerous cases there cited fully sustain the rule above quoted.

The judgment is affirmed.

Kibby, J., dissents.


author: Humphreys, J.

text:
    Zeddy v. Zeddy.
    Opinion delivered October 28, 1929.

      R. T. Boulware and Edwin A. Upton, for appellant.

      Searcy S Searcy, for appellee.
   Humphreys, J.

Appellant obtained a decree of absolute divorce from appellee upon the ground of abandonment, on the 30th day of November, 1928, in the chancery court of Lafayette County, the custody of their three minor children, and an allowance of $10 per month for their support, and a one-third interest for life in his homestead, consisting of 67.51 acres of bottom land in said county, which was ordered divided between them, quantity and quality considered, in accordance with the provisions of § 3511 of Crawford & Moses’ Digest.

In addition to filing an answer in the suit denying that the abandonment was without cause, appellee filed a cross-complaint against appellant, seeking a divorce from her upon the alleged grounds of personal indignities and adultery.

In rendering the decree of divorce the trial court refused to allow appellant attorney’s fee and suit money, to subrogate her to the rights of the mortgagee in the mortgage paid by her to remove an incumbrance from said homestead, and to require appellee to make bond to secure the payment of the monthly allowance for the support of the children, from which refusals, and the alleged inadequacy of the amount allowed her for the support and maintenance of the children, she has prosecuted an appeal to this court.

The trial court dismissed appellee’s cross-complaint for want of equity, from which dismissal and the decree granting appellant a divorce on her complaint he has prosecuted a cross-appeal to this court.

The testimony is in sharp conflict as to whether appellant offered such indignities to- the person of appellee as to render his condition in life intolerable, and as to whether she was guilty of adultery.

After a very careful reading of the record we are unable to say that the finding of the trial court upon these issues of fact is contrary to a clear preponderance of the evidence. According to the undisputed testimony, appellant left his family in possession of the homestead, in the spring of 1926, and never returned to live with them, and never contributed anything out of his earnings to their support. His excuse for leaving was the alleged misconduct of appellant, and indignities offered him hy her. It follows from the finding of the trial oourt against him on these issues that he deserted appellant without just cause. The trial court did not err therefore in granting appellant a divorce and dismissing appellee’s cross-complaint.

The custody of the children was properly awarded to appellant. They are of tender years, the oldest being six years of age at the time the suit was instituted. Appellee is working for a small wage at such times as he can find employment, and has no separate home for them, and no one to take care of them while he works.

The allowance of $10 per month as support for the children is indeed small, but at present the earning capacity of appellee is not great. He only earns $2.50 a day at a sawmill at such times as he can get employment. The sawmill does not afford continuous employment. He has no property except the farm, out of which the life estate of appellant is to be carved. In the division of the homestead appellant will acquire a home for herself and children, upon which she will be able to earn a support. She has already demonstrated this fact hy her ability to do so since appellee deserted her. The land is productive, and appellant, with the aid of her children as they grow older, can cultivate it without employing much, if any, labor. She has been cultivating a portion of the land by her own labor for several years.

Appellant’s demand that appellee be required to give a bond to pay the monthly allowance of $10 was unreasonable, and not justified by the facts in the ease. Bonds are not easily procured, and it will be time enough to request such a bond if appellee defaults in the payment of the monthly allowance. There is nothing in the record reflecting that the trial court abused its discretion in denying appellant’s request for a bond. It was within the trial court’s sound discretion to grant or refuse the request.

The trial court did not err in refusing to decree appellant a reasonable sum for suit money and attorney’s fees. In addition to cultivating a portion of the land herself, appellee has been collecting the rents on the land cultivated by a tenant upon the place, and, relatively speaking, was better able to pay her own cost and attorney’s fee than appellee was to pay his.

The only remaining question raised by the appeal is whether the court erred in refusing to subrogate appellant to the rights of the mortgagee in the mortgage paid by her to remove an incumbrance from the homestead. The record reflects that at the time appellee abandoned his family there was a mortgage upon the homestead of $560. Although appellant paid this amount and took an assignment of the mortgage herself, the record reflects that it was paid out of the rents and profits of that portion of the homestead not actually occupied and cultivated by her. As the money with which she removed the incumbrance arose, not from the earnings of appellant or from her separate estate, but from the rents and profits of the homestead, she was and is not entitled to be subrogated to the lien of the mortgage on the land, under the doctrine announced in the case of Kenady v. Gilkey, 81 Ark. 147, 98 S. W. 969. The instant case is governed by the rule announced in that case.

No error appearing, the decree is affirmed throughout.


author: Kirby, J.

text:
    Snow Brothers Hardware Company v. Ellis.
    Opinion delivered October 28, 1929.

      T. W. Hardy, G. W. Smith and R. H. Little, for appellant.

      Gatbghan, Sifford, Godwin S Gaaighan, for appellee.
   Kirby, J.

On this appeal the question for determination is whether the court erred in holding, upon the issue raised by the pleadings, that there was no title to the lands sought to be sold under execution remaining in Rogers, the judgment debtor, subject to execution on the judgment recovered against him by appellant.

The court sustained a general demurrer to appellant’s answer, and, upon its declining to plead further, made the temporary injunction permanent, and from this decree the appeal is prosecuted.

From the complaint, answer and exhibits it appears that W. L. Rogers, the owner of the land, entered into a written contract with Mrs. Edna Umsted and her daughters, on January 15, 1927, under which she loaned him $5,000', tailing his note therefor and a deed of trust on the land to secure same, and at the same time Rogers executed a deed conveying the lands' in fee to Mrs. Umsted and her daughters. The contract provided that, if Rogers should not pay the $5,000 note when due, one year after date, Mrs. Uonsted should deposit with the bank holding the contract and deed in escrow $2,650 and the $5,000 mortgage note, marked “Paid,” and receive the deed from the bank. The $5,000 mortgage note was not paid by Rogers nor any one for him. She deposited the $2,650 and the note, marked “Paid,/’ and received the Rogers deed from the bank, in accordance with the terms of the contract, recorded it on January 17, 1928, and she and her daughters conveyed the lands to S. J. Carnes on January 2-3, 1928, by deed recorded that day. Appellant recovered its judgment against Rogers on April 11, 1927, three months after the contract between him and Mrs. Umsted had been executed. The execution on the judgment was issued on November 26, 1928, and levied on the lands on December 24, 1928, about eleven months after Rogers’ deed conveying the lands to Mrs. Umsted was delivered by the bank to her in accordance with the escrow agreement.

Appellant insists that its judgment constituted a lien on the lands, notwithstanding it was not rendered till three months after the written contract was made by the owner with the lender of the money, under the terms of which the money was loaned Rogers, the deed of trust executed by him for its security, and the warranty deed conveying the lands executed and put in escrow, to be delivered on condition to the grantee, since the judgment was rendered long before the condition was performed and the deed conveying the lands was delivered under the terms of the escrow agreement.

A judgment lien, however, does not attach to the land, but is a lien on the real estate owned by the defend-' ant — the judgment debtor’s interest in it — and, if that interest be subject to any infirmity or condition by reason of which it is eliminated or ceases to exist, the lien attached thereto ceases with it. Howes v. King, 127 Ark. 511, 192 S. W. 883; § 6299, C. & M. Digest; 15 R. C. L., § 255, p. 798.

A judgment lien only attaches to an estate in lands, not to a lien on lands, and a vendor’s lien is not an estate or interest in land subject to execution, nor is the interest of a vendor of land who has given a bond for title thereto subject to execution. A judgment lien is subject to existing equities of third parties in the land. Howes v. King, supra; Stephens v. Shannon, 43 Ark. 464; Strauss v. White, 66 Ark. 167, 51 S. W. 64; McGuigan v. Rix, 140 Ark. 418, 215 S. W. 611.

Before the rendition of the judgment, Rogers, the judgment debtor, had conveyed all his interest in the land on condition, and put the deed in escrow, to be delivered upon performance of the condition, which was done, and he did not therefore hold the land or any interest in it free from or not subject to the condition, by reason of which his entire interest was eliminated or ceased to exist.

If it be regarded that Rogers had a vendor’s lien for the balance of $2,650 paid by the grantee to procure the delivery of the deed under the contract and escrow agreement, it does not improve appellant’s position, since a vendor’s lien is not an interest in land subject to execution. There was no attempt to levy the execution upon the balance of the purchase money paid into the bank upon delivery of the deed by it to the grantee.

"We find no error in the record, and the decree is affirmed.


author: Mehafey, J.

text:
    Howell v. State.
    Opinion delivered October 28, 1929.

      Harney M. McGehee, for appellant.

      Hal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   Mehafey, J.

Appellant was convicted of murder in the first degree, and the death penalty was imposed. No motion for a new trial was filed, and we can therefore consider only the errors that appear on the face of the record. The attorney representing' appellant here did not represent him in the lower court.

The evidence showed that Howell was an inmate of the county hospital in Crawford County; that, a few days before the killing with which he is charged, the superintendent, Deffenbaugh, asked Howell to fix a bed for a patient, and Howell told him he would not do that for him or anybody else. He became enraged, and packed his grip and left. He had on a pair of boots that the heels were worn off, and they made a grating on the floor when he walked. The killing took place ahont 7:30 or 8 o ’clock, and one of the witnesses saw a man run out and slam the screen door, and testified that he heard a scraping noise like tacks striking on the concrete. In the room where the shooting took place Nicholson was found dead, Deffenbaugh was dead, and Mrs. Deffenbaugh was lying on one side, still living, and asked for help, and said that W. H. Howell did it. The witness who testified to seeing the man run could not recognize him.

Deffenbaugh and Howell had not had any quarrel, but, after he had told Howell to help him with the bed, Judge Stockard discharged Howell. Howell, before the killing, left the county farm, and said he was’ going down and tell the county judge what they had been doing; that they had turned him out, and he was going to see the judge. He was mad.

Another witness testified that Howell said they turned him away without cause, and were keeping two young men there who had never paid a cent of taxes. This was about three days before the killing-.

The county judge testified that he had sent Howell to the county house temporarily, and told him so at the time he sent him. On Wednesday before the killing Howell went to his office, and wanted to know whether he had been let out, and the judge told him he had. Howell remonstrated with the judge, and the judge ordered him out of his office. As Howell was leaving, he remarked: “I will g-et even with the last one of you that had anything to do with it.” The judge then reached for a hammer, and told Howell to get out of his office, and Howell left.

Another witness testified that he saw Howell in a hardware store, the day before the killing, and he bought some 38-calibre' Winchester shells. The empty shells that were found were identified by witness as the same kind that Howell had bought. Howell was seen on the same day of the killing with something in & gunnysaok that looked like a walking stick. He was going towards the county infirmary, and another witness testified that he saw Howell on the day of the killing. Howell rode with him a short distance, and this witness said Howell had something in his sack, and he asked him what it was, and Howell said it was a gun.

About noon on the day of the killing another witness said that a large man came to her house, wanting some dinner, and that he had something in a sack. She pointed out the man in the court room.

Another witness testified that Howell came to her house in the afternoon before the killing, and wanted something to eat, and that when he left he went in the direction of the county farm.

When Howell was arrested, the Monday morning before the killing, he had his Winchester, and the shells in the gun were the same kind as the empty shells picked up in the hall where the parties were killed. They were 38-calibre.

Other witnesses testified that they picked up empty shells around the infirmary, and identified them as 38-calibre shells.

I. N. Alexander said that some time last December Howell was at his house and ate supper. He was there 25 or 30 minutes. He was carrying a Winchester. That he was mad, and said he had just had a fight.

Another witness testified that a man came to his house, and said his name was Thompson. He had a Winchester, and said he was lost. Witness then pointed out the man at the end of the table as the same person.

There was some testimony that Howell was not entirely normal.

Appellant was being tried for the murder of J. D. Nicholson, and the prosecution proved by witnesses that Mrs. Deffenbaugh, who was evidently killed at the same time, had made a dying declaration in which she stated that Howell did it.

It is contended by tbe appellant tbat he did not have a fair and impartial trial, and that the dying declarations of Mrs. Deffehbangh were improperly admitted in evidence.

There is some conflict in authority about the admissibility of the dying declarations of a person other than the one defendant is 'being tried for killing, some courts holding that, where two or more persons are killed at the same time by the same person in the trial for killing one, the dying declaration of one of the others that was killed at the same time is admissible. Most courts, however, hold that only the declarations of the person whose death is the subject of the charge against the accused are admissible. Under the common law, dying declarations are admissible in criminal prosecutions for homicide only, and the declaration is then admissible only when the declarations are those of the person whose death is the subject of the charge against the accused, and the circumstances of such death are the subject of the declarations. Such declarations are not admitted to prove the killing of any other than the declarant.

“According to' the weight of authority, this rule is adhered to where the accused has killed two or more persons by the same felonious act, and is on trial for the murder of one of them; but there are cases holding that, upon the trial of the accused for the murder of one of his victims, the dying declarations of another are admissible, inasmuch as he might have been charged in one indictment for the murder of all of them, when such evidence would have been clearly admissible.” 21 Cyc. 982.

This court, however, has held that the dying declaration of the person for whose death the defendant is being tried only can be introduced; that the dying declaration of any other person, although killed at the same time and by the same person, is not admissible.

“Dying declarations are admissible only in case of homicide where the death of the person killed is the subject of the charge, and the circumstances of the death are the subject of such declarations.” Rhea v. State, 104 Ark. 102, 147 S. W. 463; Moore v. State, 125 Ark. 177, 188 S. W. 3.

Therefore the dying declaration of Mrs. Deffenbaugh should not have been admitted; .but no objections were made in the trial court, and it cannot be considered here. The evidence, without the declaration of Mrs. Deffenbaugh, was sufficient to- justify "the jury in finding that the appellant killed the three persons. No objection having been made to the introduction of this testimony, it cannot be- considered here.

Harding v. State, 94 Ark. 65, 126 S. W. 90, was a ease where the defendant was convicted of murder in the first degree. He saved no exceptions to the evidence adduced or to the instructions, but relied on the statute (Acts 1909, p. 959) which provides that, when one has been convicted in the lower court of a capital offense, all errors of the lower court prejudicial to the rights of the' appellant shall be heard and considered by the court, whether exceptions were saved in the lower court or not. And, if the Supreme Court finds that any prejudicial error was committed by the trial court in the trial of any case in which a conviction of a capital offense resulted, such cause shall be reversed, and remanded for a new trial, etc. The court said in construing this statute:

“The -Supreme Court of this State has appellate jurisdiction only, except it may issue writs of quo warranto to the circuit judg’es and chancellors, and to officers of political corporations when the question involved is the legal existence of such corporation. * * * Ah to the admission of evidence in a trial, a question as to its admissibility or competency must be presented to the circuit court by objection or otherwise for decision before it can err as to its admission, and the same is true as to the law of the case. No exception to such decision is necessary, under the act of 1909, to present it to this court for review, neither is a motion for new trial in cases in which the defendants have been convicted of capital offenses. But it must appear that the decision was made before we can find that the court erred. It is only for errors of the lower court that the act of 1909 authorizes this court to reverse or modify judgments of conviction of capital offenses. Such errors must appear in the manner indicated before such authority can be exercised.” Harding v. State, 94 Ark. 65, 126 S. W. 90.

This court also has said: “Appellant now contends that the testimony of Homer Bearden was incompetent, and that the court erred in not sustaining his motion to strike it out. In Warren v. State, 103 Ark. 165-171, 146 S. W. 477, we said: ‘Where incompetent evidence is offered, it is the duty of the party to object immediately, or at least within a reasonable time. If he fails to object at the time, and afterwards asks for the exclusion of the incompetent evidence, he cannot demand its exclusion as a matter of right, but the request addresses itself to the discretion of the court. A party cannot speculate upon what the testimony of a witness will be, and then at the end of the trial demand as a matter of right that the incompetent testimony be excluded.” Bell v. State, 120 Ark. 531, 180 S. W. 186.

In the Bell case it was also said that the appellant did not object to the testimony at the time it was given.

“Here, as albove stated, the record does not show that any objection was made to the manner of selecting the jury. This court has held repeatedly in capital oases that there are certain constitutional and statutory rights guaranteed to the defendant as a personal privilege, which he may waive at the trial, and which he does waive by not objecting to the method of procedure during the trial. Most of the cases on this point, as well as a review of them, Will be found in the majority opinion, or in the dissenting opinion, in Shinn v. State, 150 Ark. 215, 234 S. W. 636. * * * Both the majority and the dissenting opinion recognized that rights which do not affect the State and are in the nature of a personal privilege may be waived by the defendant, and are waived by him where he does not object during the trial.” Sullivan v. State, 161 Ark. 19, 257 S. W. 58; Bullen v. State, 156 Ark. 148, 245 S. W. 493.

The court, in the case of Sullivan v. State also said, in speaking of the statute with reference to procedure in capital cases: “In construing this act, however, this court has held that, while formal exceptions need not be saved at the trial, objections must be made to the proceeding in the trial court in order to obtain a review of the alleged errors in this court.” And it cites Harding v. State, 94 Ark. 65, 126 S. W. 90; Caughron v. State, 99 Ark. 462, 139 S. W. 315; Morris v. State, 142 Ark. 297, 219 S. W. 10; Snead v. State, 159 Ark. 65, 255 S. W. 895.

It therefore appears to be the settled rule of this court that, although in capital cases exceptions would not have to be saved, objection must be made at the time before this court will be authorized to review it, and, as to' the admissibility of the testimony complained of, no abjection was made at the time. As to the admissibility of the dying declaration, it is sufficient to say that no objection was made.

As this court has repeatedly held, the Supreme Court of the 'State has only appellate jurisdiction in cases of this kind. It reviews errors of the circuit court, but, before it can consider an error of the circuit court as to the admission or rejection of evidence, objection must be made in the trial court, and this is true in capital cases as well as others.

Appellant next contends that the court erred in refusing to allow him to show by witnesses the fact that he was not mentally normal at the time of the alleged shooting. The question asked, after reciting a number of facts, was: “Do you consider that an act of a normal man?” The State objected to it, first, on the ground that it was not based upon facts in proof. In other words, before the evidence would have been admissible, the State contended that it should state the facts in proof, and that it did not do this. It is also stated that it included things that had not been proved. And the prosecuting attorney said: “It is not a question of whether or not he is normal, but whether he is insane.” The defendant then modified the questions by asking: “Is it the actions of an insane man?” And the court permitted the witness to answer this question.

A sufficient answer to the objection here is that the question contained matters not in proof, and then that the defendant himself, when he changed the question without objection, necessarily waived his right to ask it in the form first presented. The same thing may be said about this as said about the last question, that no objection was made after the form of the question was changed. Moreover, the court properly instructed the jury with reference to the defendant’s mental capacity to commit crime.

The appellant, however, argues that no exception was saved to the court’s action, but that it is not necessary that exceptions be saved, because this is a capital case, and relies on § 3414 of Crawford & Moses ’ Digest, the act already referred to.

It is true that in a capital case no exceptions have to be saved, but we have repeatedly held that objections must be made, and there was no objection made to this question as appellant finally asked it himself, and it was permitted to be answered. When appellant changed the form of the question and substituted the word “insane” for the word “normal” he waived any objection he might have had to the question as originally asked, and he made no objection to it in the way it was finally asked, and, in fact, it was answered. But the court stated clearly that the question reiterated matters not in proof, and that would have been a sufficient reason for rejecting it.

The instructions given to the jury on the question of insanity are instructions that have been approved by this court time and again, and the record does not show any objections to any of the instructions, and they were as favorable to appellant as he had any right to ask.

The appellant also contends that the hypothetical questions and answers in response thereto, over his objection, were prejudicial. That hypothetical question recited the facts already testified to, and then asked the doctor i'f there was anything in that testimony, or the conduct of the defendant, as shown by this evidence, that indicated that he was insane, and he answered that there was not. We do not think the question was objectionable, and the court did not err in permitting it to be answered.

Appellant discusses at some length also the testimony of appellant’s former wife, but that testimony was withdrawn from the jury, and the court instructed them that they should not give it any consideration whatever, and the court committed no error in this respect.

The statute relied on by appellant, as construed by this court, requires this court to consider all objections made by the appellant, whether excepted to or not. If objection is made, this court must consider it, whether exceptions were saved or not. We have construed the statute to mean this, but, where no objections are made, there is m> error for the court to review. Witness might be asked about a dying declaration that would be wholly improper, as in this case, and not object, for the reason that he thought the answer might be helpful to him. If he were permitted to pursue this course, and then, when it turned out to be against him, could object, he would be in the position of taking advantage of it if it were favorable to him, and objecting if it were unfavorable. This he cannot do, but he must object, and, if he does, then this court will review the errors whether there were any exceptions or not.

There were three persons killed at the same time. The evidence is sufficient to show that the appellant did the killing, and we find no error in the record justifying a reversal of the case, and the judgment is therefore affirmed.


author: McHaney, J.

text:
    Alexander v. American Building & Loan Association.
    Opinion delivered October 28, 1929.

      Starbird S Starbird, for appellant.

      Robinson, House <& Moses, Harry E. Meek and W. R. Roddy, for appellee.
   McHaney, J.

Appellee foreclosed a mortgage on certain real property in Mulberry, given it by Gr. L. Wisdom and wife as security for a note for $1,050, and interest. The Bank of Mulberry was made a defendant, it holding a second mortgage. Appellant is an officer of the bank. Neither the Wisdoms nor the bank filed an answer or made any defense to the action, and a default decree was taken. 'Counsel for appellee wrote the commissioner appointed by the court to make the sale, who was the clerk of the court, to advertise the property for sale, after the lapse of the ten days given the .judgment debtor in the decree to pay the judgment, and to notify them of the day of sale. The property was advertised by the commissioner according to directions, but he failed to notify counsel for appellee of the date of sale, as requested by them. At the sale appellant became the purchaser on a bid of $305. Before confirmation, appellee filed a motion to set the sale aside on the ground that it had no notice of the day of sale; that it relied upon the commissioner to notify its counsel thereof; and that the property was sold for a grossly inadequate price, it being willing to bid the amount of the judgment, interest and costs — a sum in excess of $1,800. It attached to its motion the original application for loan signed by Wisdom and the appraisal made by others, showing a value of $4,500 at the time the loan was made.

The court refused to confirm the sale, set it aside, reopened the sale, and sold the property in open court to appellee for $1,838.04, the amount of its judgment, interest and costs. Appellant was present in person and by attorney, but declined to bid.

We think the court correctly set aside the sale and resold the property, under the circumstances. The sale was not complete until confirmed. Moore v. McJudkins, 136 Ark. 292, 206 S. W. 445. We have many times held that mere inadequacy oif price is not sufficient to justify the court in refusing to confirm. Marten v. Jirkivosky, 174 Ark. 417, 296 S. W. 365, and cases cited. We have also held that, where the sale is made not only for a grossly inadequate consideration, but is attended by circumstances which work a hardship against the owners of the property or against a party to the suit, such as appellee, the court does not err in refusing to confirm the sale. In Hawkins v. Wood, 179 Ark. 845, 18 S. W. (2d) 371, we said:

“The sale was not only for a grossly inadequate price, but appellee was misled and prevented from attending it by the failure of the other party in interest, or the commissioner’, to notify him of the time and place of the sale, as' was agreed to be done, thus permitting appellants to attend the sale and bid without competition for the property, working a hardship against the owners. of the property, and the court did not err in refusing to confirm the sale. ’ ’

In Moore v. McJudkins, supra, this court held that it was error to confirm, a sale where the property sold did not bring a fair, price “because of circumstances which created a condition in the nature of an unavoidable casualty which prevented appellants or their attorney from attending. ’ ’ While the same set of circumstances do not exist in this case as in that, yet the fact remains that' the property was sold to appellant at the first sale for a grossly inadequate price, at a time when appellee and its counsel had no actual notice thereof, were not present, for the reason the commissioner neglected to notify them of the date as requested, and, hut for this failure of the commissioner, would have been present and bid enough to satisfy its judgment with costs.

Under these circumstances we are of the opinion that no error has been committed, and the decree is accordingly affirmed. -


text:
    Ice Service Company v. Forbess.
    Opinion delivered October 28, 1929.

      Mike Danaher and Palmer Danaher, for appellant.

      Rowell $ 'Alexander, for appellee.
   Butler, J.

Robert Douglas, a negro man, assisted by Ms son, Willie Douglas, whose age is not disclosed by the testimony, was engaged in delivering ice in the city of Pine Bluff, and, while so engaged, a large block of ice fell from the rear of the delivery wagon, striking and injuring a boy about ten years of age, the son of the appellee. The appellee brought suit in his own right and for the benefit of his minor son for damages for the injury, alleging that the same was occasioned by the negligence of the two negroes while in the employ of the appellant, Ice 'Service Company. There was a trial, and a verdict for the plaintiffs in the sum of $4,00.0.

Error is assigned because of the admission of incompetent testimony and in the court’s declarations of law, to' all of which timely objections were made and exceptions duly saved. A careful examination of the testimony and instructions given discloses no reversible error.

We think appellant has correctly stated the vital issue: “The only question in this case is whether Willie Douglas, .who was driving the wagon, was an employee of the defendant, Ice Service Company.”

It is admitted that the evidence, while conflicting, is sufficient to establish negligence on the part of those in charge of the delivery wagon, and the sole issue in the case is whether these persons were the servants of the appellant Ice Service Company. The latter insists that there is no liability attached to it, because neither Robert Douglas nor Willie Douglas were in its employ, but were independent peddlers of ice on the streets of Pine Bluff, and the only connection appellant had with them was to sell them ice which they, in turn, independently sold and delivered, without any control or supervision on the part of the appellant.

It appears there were two corporations in Pine Bluff engaged in the manufacture, sale,' and delivery of ice, the Southern Utilities & Ice Company and the City Ice Company, prior to the 29th day of June, 1927, on which date the appellant ice company was organized and took over the retail business of the ice companies and the delivery to the customers in the city of Pine Bluff. One of these companies was known as the City Ice Company. Miller testified that Robert Douglas, before the organization of the appellant company, had a contract with the said City Ice Company, which defined and specified his relationship with respect thereto, and that, when the appellant company was formed, he (Miller), who was also the manager of the 'City Ice Company, and became the manager of the appellant company, told Robert Douglas that he could continue to work under the same contract for the appellant company. This contract was introduced in evidence, on the theory that it might be taken into consideration in determining what contract Robert Douglas had with the appellant company. The contract specified that Douglas should purchase all of his ice from the appellant company, pay for it at the close of the business day, and sell it to the citizens- of Pine Bluff at a price to be fixed by him (Douglas); that he would pay the appellant company the sum of $1 per week for the wagon he used in the prosecution of his business. Mr. Miller, the manager of the appellant, and Willie Douglas were the only ones testifying as to any direct knowledge of the relationship existing between the appellant and Robert and Willie Douglas. Both testified positively that the Douglases were not in the employ of the ice company; that Robert Douglas was an ice peddler; that the appellant had no connection with him except to sell ice to him and deliver it to him on his wagon at the storage house of the appellant, and that Willie Douglas worked for Robert Douglas, his father, and was paid for his services by him.

Appellant insists that there was no testimony contradicting this evidence. There were, however, other conditions in the contract and other facts and circumstances proved in the case which we think have been overlooked by the appellant. The Ice Service Company, as shown by its articles of incorporation, was organized for the purpose of retailing and delivering ice in the city of Pine Bluff. There was a license tax required by the city for those engaged in that kind of business, which was paid by the appellant company. It took over from the City Ice Company and the Southern Ice & Utilities Company the equipment owned and used by them in the delivery of ice. The appellant company owned the wagon that was used by Douglas, and paid the tax on it. The appellant company required Douglas to store the wagon at all times, when not in use in the prosecution of the delivery of ice, in the storehouse of appellant, and prohibited its use for any purpose except the delivery of ice. It prescribed the territory in which Douglas was to operate, and required that all complaints, orders or inquiries received from patrons in that territory should be referred to the company. Mr. Miller, appellant’s manager, controlled the loading of the ice upon the wagon, and would not allow more than a certain amount to be loaded thereon, the average load being about 2,400 pounds. The city also required a license tax for all peddlers, and it was shown that no peddler’s license'was ever issued to Robert or Willie Douglas, or that they had paid any peddler’s license fee, either during the time they were working for the City Ice Company or continued for the appellant company, and that they had been working for the City Ice Company for about two years before they began working for the appellant company. The ice which was unsold at the end of the day’s business was returned to the appellant company and stored in its warehouse, and on the following morning that ice, or “its equivalent,” was again delivered to Douglas.

As before stated, Mr. Miller was manager of the City Ice Company, and also of the appellant company. During the two years that Robert Douglas had been engaged in the delivery of ice, Willie Douglas, his son, helped him. Mr. Miller stated that he knew this — that he had seen Willie on a number of occasions around the ice plant with Robert Douglas, and had seen Robert’s wagon out on delivery work a number of times and Willie with it; one would drive the wagon and the other deliver the ice; that he kept Robert Douglas’ wagon in repair and controlling the manner of its loading.

There was testimony to the effect that, a short time before the trial, Willie Douglas had stated that he was working for the appellant company, and was going to testify to that fact.

Counsel for the appellant argue most earnestly and plausibly that the evidence is wholly insufficient to establish the relationship of master and servant; that it does show that the negro, Robert Douglas, was an independent peddler or contractor, and that, even though Robert Douglas might have been the servant of the appellant, Willie Douglas is shown to have had no connection with such company, but worked solely for his father.

Terry Dairy Co. v. Parker, 144 Ark. 409, 223 S. W. 6, is similar, and, under the rule stare deqisis, controls the instant case. The facts in that case were as follows:

“The appellant is engaged in selling ¡milk and manufacturing and selling ice-cream. It buys milk from dairy farmers and distributes it to its customers in Little Rock. During the summer months it contracts with drivers to sell what the stores want. Appellant starts running its wagons about the first of March. It gets good men, who take it on commission, and it gives 10 per cent, a gallon for the first thirty gallons and five per cent, a gallon over that. It had three men running like that. Bob Ellison was one of them. lie was using appellant’s truck at the time of the injury. Appellant paid the license on the truck. The truck had painted on it- in big letters, ‘Terry Dairy Company.’ Appellant did not have any control over Ellison as to the quantity of cream he should sell or dispose of or to whom he should sell. He would come in in the morning and write out his order for what he wanted, and then he would sell to whomsoever he pleased, and turn in what he sold. He got whatever he wanted, and it was loaded on the wagons, and the company had no more control of it. Appellant had a verbal contract with Ellison by which he would take out his cream and sell it, and account to appellant for the price of the cream. He turned back the cream he did not sell, and got credit for that. He was charged with the amount he got in the morning, and had to account for that amount of cream, either by turning in charge tickets or turning in cash for what he sold. He had been working for the company four or five years. Appellant paid Ellison’s commissions once a week. Did not pay him anything except the commission. Appellant did not furnish Ellison any help; if he hired any help, appellant did not have anything to do with it. John Freeman, the negro driver who was driving the truck at the time of the injury, was not working for the appellant, although he had previously worked for appellant in the capacity of truck driver, and anything’ else that came up. At the time of the injury his name was not on appellant’s payroll, but when he worked for appellant his name was on the payroll.”

The court held that, under the above testimony, it was an issue for the jury as to whether or not Ellison was an independent contractor at the time of the injury to the appellee, and as to whether or not John Freeman was in his employ or in the employ of the appellant. This is our conclusion in the case at bar.

Counsel for the appellee urge that the decision in the above case should be overruled, and to support this contention cite an array of authority which they fortify by cogent reasoning and illuminating illustration. We are much impressed by the able argument, but are not convinced that we should depart from the rules announced in Terry Dairy Company v. Parker, supra.

On the question where, in a given case, the relation of master and servant obtains, this court has held that the method by which the compensation for work to be done is not conclusive as to the relationship of the parties, nor the name by which the compensation is called. The conclusion as to the relationship must be drawn from all the circumstances in proof, and, where there is any substantial evidence tending to show that the right of control over the manner of doing the work was reserved, it became a question for the jury whether or not the relation was that o'f master and servant. Magnolia Petroleum Co. v. Johnson, 149 Ark. 553, 233 S. W. 680; Harkins v. National Handle Co., 159 Ark. 16, 250 S. W. 900. This was the rule applied in Terry Hairy Co. v. Parker, supra, and is in accord with the weight of authority. 39 C. J., § 1518. Although Willie Douglas might not have been employed by appellant, but only by his father Robert, the testimony is undisputed that appellant knew for two years that Willie was engaged in helping Ms father deliver ice; knew in what way this help was given; and it became a question for the jury whether Robert’s act in procuring Willie’s services was acquiesced in and ratified by appellant. If it did ratify or acqMesce in the boy’s employment, he then occupied the- same relation to appellant as Robert, and therefore the appellant was liable for his negligence. It might be said that he was an instrumentality used in the furtherance of appellant’s business, and, when the appellant knowingly permitted this, it may be said to have adopted such instrument, and become liable for Ms negligent acts. Osteen v. S. C. Cot. Oil Co., 102 S. C. 146, 86 S. E. 202, L. R. A. 1916B, 629; Lakin v. Ore. Pac. R. Co., 15 Ore. 220, 15 Pac. 641; Althorf v. Wolfe, 22 N. Y. 355; Demmit v. Hannibal, 40 Mo. App. 654.

It is not infrequent that liability attaches to the master for the negligence of one employed by the servant or substituted for him, where .that one, in the prosecution of the master’s business, negligently causes an injury. Tchula Co-Op. Store v. Quattlebaum, 176 Ark. 780, 4 S. W. (2d) 919. In those cases the liability seems to attach upon the broad ground that the master is responsible for the negligence of the servant, whether the same be his immediate act or his mediate act only; but in the case at bar it is unnecessary to fix liability on that ground (and we do not in this case so hold), for the evidence was sufficient to submit the question to the jury on the theory that Robert Douglas’ employment of Willie was acquiesced in and ratified by appellant.

The issues raised by the pleadings and evidence were fully and fairly submitted to the jury under proper instructions, and we think its verdict was not excessive. The boy injured was ten years of age, and the son of a printer. A block of ice weighing 300 pounds fell, striking him and crushing his hand. Both forefinger and second finger were so injured that it appeared at first necessary to amputate both. However, the bones of the second finger were set, and that finger saved. The forefinger and about one-half of the bone extending from the base of the finger to the wrist were amputated; the skin of the index finger was torn off, and the palm of the hand was used to cover up the torn-out flesh. The doctor said: “The boy has a very good hand, minus one finger, with a pad that looks rather bunglesome in the palm of his hand.” The boy suffered great pain for a considerable time. As 'before stated, we think, under all the circumstances, the verdict was not excessive. See Moline Timber Co. v. Taylor, 114 Ark. 317, 222 S. W. 371; Terry Dairy Co. v. Parker, supra.

Judgment affirmed.