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

text:
    Arkansas Railroad Commission v. Stout Lumber Company.
    Opinion delivered November 19, 1923.
    1. Statutes — “amended to read as follows” construed. — While the words, “amended so as to read as follows” generally mean that the new statute is substituted for and repeals the _ old statute, or the part referred to, the rule is not an inflexible one, and is not applicable where there are other controlling and unmistakable indicia found in the statute of a contrary intention on the part of the lawmakers.
    2. License — severance tax — construction.—General Acts 1923, No. 118, § 5, imposed a privilege tax on the production of bauxite, coal and timber. General Acts 1923, No. 681, § 1, provides that § 5 of the former act “be amended to read as follows,” followed by a provision fixing the privilege tax on manganese ore. Held that this provision was not intended to repeal § 5 of the prior act, but to supplement it.
    3. Statutes — construction.—A tax statute and an amendment thereto, passed at the same session, should be construed together in determining whether the amendment was intended as a repeal or a supplement to the original statute, even though its repeal would leave a complete tax scheme.
    4. Statutes — amendment by reference. — Constitution art. 5, § 23, prohibiting the revival, amendment or extension of statutes by reference to title only, does not invalidate General Acts 1923, No. 681, amending General Acts 1923, No. 118, relative to severance tax, by imposing a special rate on a particular product, as it is original in form, and merely refers to an existing statute to point out the method of enforcement.
    Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor;
    affirmed.

      J. S. Utley, Attorney General, John L. Carter, Wm. T. Hammock and Barden Moose, Assistants, for appellant.
    Section 1 of act 681 repeals § 5 of act 118, and supplants the same, or else it is an attempt to extend the provisions of § 5, in violation of art. 5, § 23, of the Constitution. It is fundamental that every reasonable construction must he resorted to in order to save a statute from unconstitutionality, and that, if a statute is susceptible of two constructions, one that conflicts and the other that harmonizes with the Constitution, the latter construction will be adopted. 120 Ark. 288; 91 Ark. 5; 140 Ark. 398; 150 Ark. 486; 155 IT. S. 657. On the point that, as an attempt to extend the provisions of § 5 it would be contrary to the Constitution, supra, see 29 Ark. 252; 31 Ark. 239; 61 Ark. 625; 120 Ark. 169; 89 Ark. 598; 99 Ark. 100, .104; 132 Ark. 609; 133 Ark. 157; 141 Ark. 518; Icl. 84; Id. 196; Id. 612; 158 Ark. 519.
    2. The act 681 is complete for the purpose of supplanting § 5 of the original act, and cannot stand as a valid enactment if its purpose be to graft upon § 5 another provision, unless it conforms to the Constitution by reenacting § 5 of the original act, with such ingrafted provision incorporated therein. 132 Ark. 28; 154 Ark. 218; 143 Ark. 83; 138 Ark. 459.

      Gmtghan d Sifford, for appellee, Stout Lumber Co.
    1. It is reasonable, and the court, has the right, to ascertain the legislative intent, not Only from the language of the statute itself, but also by bringing to its aid public events, public documents, executive messages, etc., legislative proceedings and journals, and the trend of public events .leading to the enactment. 76 Ark. 309. It is clear, however, from the language of act 681, that it was intended to be an amendment. Had the Legislature intended to repeal § 5 of act 118, it could, and in appropriate language would, have said so, instead of saying that it intended to amend it. The language used in § 1 of act 681, viz: “Special rates (d), on manganese ore,” is convincing of an express purpose and intent to amend § 5 of act 118 by the addition of another paragraph to that section.
    2. If a failure to hold that § 5 is repealed by the act 681 is to result in a finding that the latter act is unconstitutional, it is better so, rather than for the court to constitute itself into a legislative body, and read into the act a construction not warranted by its language.

      Pryor d Miles, for appellees, Western Coal & Minina- Co. et al.

      When act 681 is considered in connection with paragraphs “a,” “b,” gnd “c” of § 5 of the original act, it is manifest that the Legislature was endeavoring to include manganese ore in the provisions of § 5 by adding another paragraph and designating that as “d,” to fix its place in the section. We think this court’s decision in Wallace v. McCartney, 1591 Ark. 617, is conclusive on the question raised here. It appears, from reading the provisions of the original act, that manganese ore had been omitted, and that act 681 was intended merely to add to the provisions of § 5, so as to include a tax upon manganese ore. 25 R. C. L. 923; let 1067; 133 Ark. 157; 3 Ark. 285; 27 Ark. 419; 48 Ark. 305. See also 31 Ark. 119; 137 Ark. 280; 150 Ark. 486, and cases cited; 133 Ark. 491.

      Rose, Hemingway, Cantrell & Loughborough, amici curiae, for appellant.
    If there is any rule of law that is well settled, it is that the form of amending sections of statutes, “so as to read as follows,” shows a clear intent on the part of the Legislature to displace the old section or sections with the new. 26 Am. & Eng. Encyc. of L., 735; 36 Cyc. 1083; 25 R. C. L., “Statutes,” p. 907; 43 Pae. 553; 61 Minn. 205 ; 63 ,N. W. 621, 623. While this is a general rule, it is especially rigid and inflexible in all those States having a constitutional provision similar to ours, to the effect that no law shall be amended by reference to its title, etc. Article 5, § 23, Const. It is not necessary, as explained in Wallace v. Truloch, 109 Ark. 556, to reenact all of an amended section, in all cases, still the evil to be guarded against is. ever present, and it would take an extreme case to justify a departure from the general rule. See also Wallace v. McCarthy, 159 Ark. 617; 29 Ark. 252; 61 Ark. 625; 120 Ark. 169; 132 Ark. 609, 612; 133 Ark. 157; 138 Ark. .459; 89 Ark. 600, 602; 91 Ark. 243.
   McCulloch, C. J.

This appeal involves the construction and effect of an amendment to the severance * tax statute enacted by the General Assembly of 1923, approved February 14, 1923, imposing a tax ou the business of severing certain products from the soil for commercial purposes. Acts 1923, General Statutes, p. 67. The statute is designated, and will be hereinafter referred to, as act No. 118. The amendatory statute was approved March 26, 1923 (Acts 1923, General Statutes, p. 578), and designated as act No. 681. Both of these statutes were enacted at the same session The bill for act No. 681 was introduced in the Senate on March 5, 1923, and passed the House of Representatives on March 7, but was not presented to the Governor for approval until after adjournment.

Section 4 of act No. 118 provides for the imposition of “a privilege tax amounting to two and one-half per cent, of the gross cash market value of the total production of such natural resources” other than -“the production of 'certain natural resources, the privilege tax upon which is hereinafter specially provided for.”

Section 5 of act No. 118 reads as follows:

“Section 5. Special rates.
“ (a) On bauxite. Every producer of bauxite shall be subject to all of the provisions of this act, except, instead, of a tax of two and one-half (2y2) per cent, of the gross market value of said product, the producer of bauxite shall pay a privilege tax equivalent to twenty-five cents (25c) per ton on the total production of bauxite during the preceding quarterly period, irrespective of the market value thereof.
“(b) On coal. Every producer of coal shall be subject to all of the provisions of this act, except that, instead of a tax of two and one-half (2%) per cent, on the gross market value of said products, the producer of coal shall pay a privilege tax equivalent to one cent (lc) per ton on the total production of coal during the preceding quarterly period, irrespective of the market value thereof.
“(c) On timber. Every producer of timber shall be .subject to all the provisions of this act, except that, instead of a tax of two and one-half (2%) per cent, of the gross market value of said products, the producer of timber shall pay a privilege tax equivalent to seven cents (7c) per thousand feet, board measure, on the total stumpage covered or cut during the preceding quarterly period, irrespective of the market value thereof.”

Act No. 681 (omitting § 2, which is the concluding section declaring an emergency and putting the statute into immediate effect) reads as follows:

“Sec. 1. That § 5 of act No. 118 of the Acts of the Legislature of the State of Arkansas, approved February 14, 1923, be amended to read as follows:
“ ‘Special rates’ (d). On manganese ore. The provisions of this act shall not apply to the producer of manganese ore, but every shipper of manganese ore shall pay a privilege tax of ten cents per ton, based on the weight at the point of shipment, irrespective of the market value of the said ore. Said tax to be paid as provided in said act. ”

The Arkansas Railroad Commission, which is clothed with authority to collect the tax, sought to collect from those producing commodities mentioned in § 5 a tax of two and one-half per cent, on value as prescribed in § 4, claiming authority to do so on the theory that the original § 5 had been repealed by act No. 681.

The appellees, each a corporation engaged in the business, respectively, of severing timber and coal from the soil for commercial purposes, disputed this assertion, and claimed the right to pay under § 5 of the original statute as the limit of its taxation. Appellees instituted this' suit in the chancery court of Pulaski County to restrain the Commission from attempting to impose the tax of two and one-half per cent, on valuation of the product. The chancery court granted the relief prayed for by appellees, and the Commission has appealed.

The question presented is whether act No. 681 operates as a repeal of the whole of original § 5 by substitution, or whether it merely amends the statute by adding another subdivision to § 5 relating to the tax on production of manganese. The State contends that the later statute operates as a repeal of § 5 by substitution; and the contention of appellees is that it operates merely as an amendment to the original section by adding another subdivision.

The rule of interpretation has been firmly established by many decisions of this court, as well as by decisions of other courts of last resort, that the use of the formula, “amended so as to read as follows,” in an amendatory statute, means that the new statute is substituted for and repeals the old statute, or that part of it which is thus referred to. The authorities on this subject are reviewed in the case of State ex rel. v. Trulock, 109 Ark. 556. We decided, however, in that case that the rule was not an inflexible -one, and was not applicable where there were other. controlling and unmistakable indicia found in the statute of a contrary intention on the part of the lawmakers. In the opinion in that case it was said: “But that rule of interpretation is not an absolute or an inflexible one, and is not always arbitrarily applied. It must be considered with other rules equally well settled, and must yield place to others which may, under the language of a statute, be more appropriately and accurately employed. The cardinal rule of interpretation is the ascertainment of the meaning of the lawmakers as expressed in the language which they have used. Not what the lawmakers themselves meant, but what the .language they used means; And all rules of interpretation must yield to this as the paramount one.” Again, it was said in the same opinion: “The words, ‘be amended to read as follows,’ constituted a mere formula, in which there is no magic, except that it ordinarily carries the meaning, when not otherwise limited, that the amendatory statute excludes all omitted provisions of the former law.” The conclusion reached in that case was that, notwithstanding the use of this formula in -the new statute, it did not exclude by repeal the omitted provisions in the former law.

In the very recent case of Wallace v. McCartney, 159 Ark. 617, the same question arose in the interpretation of a similar amendatory statute, and we announced the same rule as in the Trulock case, holding that the amendatory statute was not a substitution, but an addition or supplement, to the original statute. In the case just referred to we said that “it is obvious, from a consideration of the whole of the amendatory statute, that the Legislature did not intend to amend the whole of the section named, but had left unimpaired that part of it which covered a subject not treated in the new statute.”

In the Trulock case we followed the decision of the New York Court of Appeals in the case of Bank of the Metropolis v. Faber, 150 N. Y. 200, and quoted from it the following:

“The effect upon a prior statute of a subsequent amendment, '‘so as to read as follows,’ is not to be determined in all cases by any fixed and absolute rule, but frequently becomes á question of legislative intent to be determined from the nature and language of the amendment, from other acts passed at or about the same time, and from all the circumstances of the case. The duty of the courts is to give effect to the legislative intent rather than the literal terms of the act.” There are other decisions of the same court which might have been referred to, where language was used which has much force in the interpretation of the statute now before us. In the case of Smith v. The People, 47 N. Y. 330, where the court had under consideration a similar question, it was said:
“A clause in a statute purporting to repeal other statutes is subject to the same rules of interpretation as other enactments, and the intent must prevail oyer literal interpretation. One part of an act of the Legislature may be referred to in aid of the interpretation of other parts of the same act. So in cases of doubt or uncertainty, ants in pari materia, passed before or after, and whether repealed or unrepealed, may be referred to in order to discern the intent of the Legislature in the use of particular terms; and within the same rule, and the reason of it, contemporaneous legislation, although not precisely in pari materia, may be referred to for. the same purpose. Statutes in pari materia relate to the same subject, the same person or thing, or the same class of persons or things, and are to be read together, for the reason that it is to be implied that a code of statutes relating to one subject is governed by the same spirit, and are intended to be harmonious and consistent. * * * Statutes enacted at the same session of the Legislature should receive a construction, if possible, which will give effect to each. They are within the reason of the rule governing the construction of statutes in pari materia. Each is supposed to speak the mind of the same Legislature, and the words used in each should be qualified and restricted, if necessary, in their construction and effect, so as to give validity and effect to every other act passed at the same session.”

In the case of In re Rochester Water Commission, 66 N. Y. 413, where there was involved the effect of a supplemental statute using the formula, “amended so as to read as follows,” the court said:

“Ordinarily, and in the absence of any evidence of a legislative intent to the contrary, a substitution of one section for another by an amendment in the form in which this amendment was accomplished would work a repeal of the original section from the time of the amendment, and as affecting all eases thereafter arising. But when, from the language of the statute and of the amendment, a different intent is apparent, such effect will not be given to it; and where other acts of the Legislature, passed at or about the same time, corroborate the evidence of intent, as gathered from the statutes under review, the duty of the courts is to give effect to the intent rather than to the literal terms of the act. The intent must not be conjectured, but must be apparent from all the statutes taken together, and consistent with the whole purpose and object as well of the original statute as of the amendment. This rule of interpretation is of frequent application, and is one of the most important and familiar canons of construction.”

It is earnestly contended by learned counsel for the State that the use of the letter “d” in the amendatory statute affords the only evidence of the intention of the framers of the statute to supplement, rather than to repeal by substitution, the original statute, and that this evidence is too slight and uncertain to contravene or overturn the settled interpretation of the formula employed. The use of the letter in the same way that the preceding letters of the alphabet were used in the original statute in designating the different rates of taxation on the several ■ products is undoubtedly of emphatic significance in determining what the real intention of the lawmakers was, but we cannot agree with counsel that this is the only evidence of a contrary intention afforded by the statute itself and the original statute, which had been enacted only a short time before, at the same session of the Legislature. The whole structure and form of the amendatory statute is so identical with the different subdivisions of the original § 5 as to give compelling force to the idea that the addition of another subdivision was intended rather than a substitution for the whole of the original section. The natural and ordinary effect upon the mind ill comparing the new statute with the original section is that an addition to the section was intended, rather than a substitute. It deals solely with taxation of the production of a commodity, manganese, which is of little consequence in this State, compared with the production of the great commodities coal, lumber, and bauxite, mentioned in the original section, and it is scarcely conceivable that the lawmakers intended, in dealing with this commodity, to overturn the carefully laid taxation -scheme prescribed in the recently enacted and yet untried general statute on this subject.

The rule announced by the New York court in the cases cited supra is especially applicable in the present controversy, for the two statutes were passed at the same session and closely together in point of time. The statute was a new one, and when the amendatory statute was passed the former one had not gone into effect, and was wholly untried. There had been no experience in the enforcement of the original statute so as to give rise to the belief that material changes had taken place in the legislative mind. It is true that the repeal of the whole of original § 5 would have left a complete scheme for the uniform taxation of the privilege of production of all commodities mentioned at .the rate of two and one half per cent, on valuation, but this is of little force in inducing the conclusion that the lawmakers had undergone a complete change of mind in the scheme of imposing a specific amount upon most of the great commodities to be produced.

Again, it is insisted by counsel for appellant that if the later statute be construed to be an addition, and not. a substitution for, original § 5, it is brought in conflict with § 23, art. 5, of the Constitution, which provides that a law shall not be “revived, amended or the provisions thereof extended or conferred by reference to title only,” and that we should give such interpretation to this statute as will make it valid rather than to make it invalid. We are unable to agree with counsel in the argument that, if the later statute be interpreted to mean an addition to § 5, it offends against the provisions of the Constitution above referred to. It will be observed that § 1 of tbe amendatory statute, when read and considered separately and apart from the original statute sought to be amended, distinctly and unequivocally imposes a privilege tax of ten cents per ton on the production of manganese ore. This presents the case of a statute which is “original in form” and which “creates some burden or obligation,” and which merely refers to “some other existing statute for the purpose of pointing out the procedure -in executing the power, enforcing- the right,.or discharging the burden.” See the recent case of Farris v. Wright, 158 Ark. 519, and the authorities there collated. The later statute is therefore not invalid as an attempt to amend or extend the law by reference only to the title.

The conclusion now reached is that the effect of the last statute is not to substitute its provisions for the original § 5 in act No. 118, but that it is to add thereto the subdivision set forth in the later statute.

The chancery court was correct in its decision, and the de-eree is affirmed.

Wood and Humphreys, JJ., dissenting.

DISSENTING OPINION.

Humphreys, J.

In the opinion of Mr. Justice Wood and myself, act No. 681, enacted by the General Assembly of 1923, operated as a repeal, by substitution, of § 5 of act 118, passed at an earlier date at the same session. Act 681 amends § 5 of act 118 so as to read as follows:

“Special Rates” (d). On manganese ore. The provisions of this act shall not apply to the producer of manganese ore, but every shipper of manganese ore shall pay a privilege tax of ten cents per ton, based on the weight at the point of shipment, irrespective of the market value of the said ore. Said tax to be paid as provided in said act.”

It will be observed.that the special rates placed upon bauxite, eoál and lumber by § 5, act 118, were omitted from act 681. This court is committed to the well-settled rule of construction that “when a statute amends a former statute, ‘so as to read as follows,’ it operates as a repeal, by implication, of provisions omitted in the amended law.” Mondschein v. State, 55 Ark. 389; Rennau v. State, 72 Ark. 445; Henderson v. Dearing, 89 Ark. 600; Edland v. State, 91 Ark. 243. The rule thus announced is so firmly established in this State that only one exception thereto has ever been allowed, viz., when a literal interpretation of the amendatory statute would have the effect of abrogating the whole law upon the subject. State of Arkansas, on the relation of the Attorney General, v. Trulock, 109 Ark. 556; Wallace v. McCartney, 159 Ark. 617. In each of the cases last cited, if the amendatory acts had been literally construed, the effect would have been to practically destroy the entire law upon the subject sought to be covered by legislation. The court reasoned in these cases that the Legislature certainly did not intend to destroy the law it was attempting to enact, and therefore read the original and amendatory acts in each.case together, to ascertain the intent of the Legislature from all the language used in both acts. In the instant ease it is unnecessary to read the statutes together to ascertain the intent of the Legislature in each act. Section 5 of the original act may be treated as repealed by act No. 681, according to the formula used, and a privilege tax will remain, of two and one-half per cent, of the gross cash market value of every natural resource, including bauxite, coal' and lumber, except, of course, manganese, which is specially taxed under the last act. See § 4, act No. 118. In other words, if act No. 681 be treated as a substitute for § 5 of act No. 118, as it should be under the general rule of construction, if possible, no natural resources severed from the soil will escape the privilege tax. The entire subject . attempted to be legislated upon would still be covered by statute, so the whole law would not be abrogated by a literal construction of the amendatory act. The instant case therefore comes clearly within the general rule, and not within the exception announced in the Trulock and McCartney cases, supra. In arriving at the intent of the Legislature the letter (d) should not be permitted to override the plain, unambiguous language of the amendatory act. On the other hand, the well-established meaning of the formula, “amended so as to read as follows,” should override the uncertain and indefinite meaning of the letter (d). This can be accomplished by treating the latter (d), which is meaningless as used in the act, as surplusage.

Moreover, if the two acts be treated in pari materia, it becomes a mere matter of speculation whether the Legislature intended to add manganese to the commodities upon which the special privilege tax is imposed, or whether it intended to substitute manganese for the other commodities embraced in said § 5. It may have been, and -probably was, the intent of the Legislature to substitute the special tax' on manganese for the special tax on the other three commodities. It is apparent that said § 5, as it stood before the amendatory act 681 was passed, contained inequalities and discriminations between the three commodities of bauxite, coal, and lumber. One cent on coal was so nominal that it amounted to no tax at all. Seven and one-half cents on lumber was almost as nominal as that of coal, whereas the tax of twenty-five cents on bauxite was largely out of proportion to the taxes on the other two commodities. In speculating on the intent, one might just as well say that the Legislature intended to wipe -out these inequalities between three of the most important natural resources, as to say that it intended to add another commodity to the three for special taxation. By indulging the former speculation as to intent, the tax for severing the three most important natural resources would be equalized The fact that we are led into a field of speculation, by treating the statutes m pari materia in search for the intent, should prevent the invocation of that rule of construction. In the instant case we deem it unnecessary to ingraft another exception upon the well-established rule of construction, in order to arrive at the true intent of the Legislature. Too many exceptions tend to destroy the wholesome effect of a general rule.

For the reasons given, we dissent from the majority opinion.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    Martin v. State.
    Opinion delivered November 26, 1923.
    1. Indictment and information. — Where accused was indicted under one name and was tried and convicted under another, and went to trial without objection, he waived the right to object that the correction of his name was not made during the trial or before conviction, as required by Crawford & Moses’ Digest, § 3017.
    2. Witnesses — impeachment on cross-examination. — It was not error to permit the State to ask a witness for the defense whether, on the night the crime was committed, she was riding with a man in a stolen car.
    3. Criminal law — instruction as to alibi. — Defendant’s requested instruction that “it was not necessary for defendant to prove an alibi to your satisfaction, beyond a reasonable doubt,” was not substantially changed by substituting for the quoted words the following: “the burden is on the defendant to prove its defense by a preponderance of the testimony.”
    4. Criminal law — vague and indefinite instruction. — Where an instruction offered by defendant relative to the possession of stolen property is vague and indefinite, he cannot complain of its refusal.
    Appeal from Crawford Circuit Court, James Cochran, Judge;
    affirmed.

      Holland Holland, for appellant.

      J. S. TJttey, Attorney General, John L. Carter, Wm. T. Hammock and Darden Moose, Assistants, for appellee.
   McCulloch, C. J.

The indictment in this case mentioned the name of the accused as “Charlie Martin,” but appellant, Brady Martin, was arrested, arraigned and put on trial as the person accused, without any order of the court correcting the error. There was no objection made to the indictment by demurrer or other plea. The contention here is that the proof shows the correct name of appellant, and that he could not be convicted without an order of the court correcting the error in the name, under the statute which provides that error in the name of a defendant shall not vitiate an indictment, and that, “if his true name is discovered at any time before execution, an entry shall be made on the minutes of the court of his true name, referring to the fact of his being indicted by the name, mentioned in the indictment.” Crawford & Moses’ Digest, § 3017. The correction may be made, as will be seen from the language of the statute, at any time before execution, and the fact that an order correcting the error was not made before or during the progress of the trial does not afford grounds for setting aside the judgment of conviction. The design of the statute is to permit the correction to be made at any time, but, as appellant did not ask for a correction, or in an appropriate manner raise the question that he is not the person Who was indicted by the grand jury, and on arraignment pleaded not guilty and proceeded with the trial, he waived the right to have the correction made before conviction. Appellant demurred to the indictment on the ground that it failed to state facts sufficient to constitute a public offense, but this was not the proper manner to question the charge as being one against appellant.

The indictment was for burglary and grand larceny, and included other persons besides appellant. On the trial of the case appellant was acquitted of the crime of burglary, but convicted of grand larceny. He was charged with breaking into a store at Alma, in Crawford County, and stealing a lot of merchandise. Circumstantial evidence in the case, together with the fact that the property, after having been recently stolen, was found in appellant’s possession, was sufficient to sustain the conviction. ■ '

Appellant attempted to prove an alibi, and when one , of the witnesses was introduced to testify on that subject (a Mrs. Manus) the State undertook, on cross-examination, to discredit her by asking whether or not she had, late on the night that the alleged crime was committed, been out riding with a man in a stolen car. The witness admitted that she was out riding that night in the car at a very late hour, when there was a collision with another car, and that the man who was driving the car was arrested for speeding. We think that the testimony drawn out on cross-examination was competent for the purpose of throwing light on the credibility of the witness. It was a question for the jury to determine the extent which the incident should affect the credibility of the witness, and it was properly permitted to go to the jury for that purpose.

Error is assigned in amending one of appellant’s instructions on the subject of proof as to alibi. The instruction as requested by appellant’s counsel stated the law to be that it is not necessary for the accused to prove an alibi beyond a reasonable doubt, but if, after a full consideration of all the facts and circumstances in evidence, a reasonable doubt is entertained as to whether or not the accused was present at the time and place of the commission of the offense, it is the duty of the trial jury to give him the benefit of the doubt, and acquit him. The court struck out the words, “it is not necessary for defendant to prove an alibi to your satisfaction beyond a reasonable doubt,” and substituted the words, “the burden is on the defendant to prove this defense by a preponderance of the testimony,” leaving Intact the remainder of the instruction as requested by appellant. It seems to us that there was no substantial change in the meaning of the instruction, and that there was no prejudice in the modification.

Error is assigned in the refusal of the court to give the following instruction requested by appellant:

“á. You are instructed that the possession of recently stolen property presents a question for your determination, and which you may take into consideration in arriving at your verdict. However, it is only where the possession of the stolen goods, if you find that the defendant had possession of the stolen property, is found to be unsatisfactory, that such possession may be found sufficient to warrant an inference of guilt.”

The instruction, to say the least of it, was not couched in accurate language, and the court properly refused1 to give it. The meaning of the statement that “possession of the stolen property is found to be unsatisfactory” is not clear, and before the accused can complain of the refusal of the court to give an instruction he must offer one which is free from vagueness and ambiguities.

There are other assignments with respect to the court’s charge, which are not of sufficient importance to discuss.

There is no error found in' the record, and the judgment is affirmed. ■


text:
    Ex parte Lucas.
    Opinion delivered November 26, 1923.
    Statutes — uncertainty.—Special Acts 1923, p. 210, requiring the county superintendent of schools for Woodruff County to maintain his office and headquarters in the townsite required for the meetings of quorum courts, which was designated as “the townsite of judicial court sitting most centrally situated in such counties,” was void for uncertainty, as the phrase quoted may have referred to the geographical center, to the center of population, or to the most convenient or accessible place.
    Certiorari to Woodruff Chancery Court; A. L. Hutchins, Chancellor;
    writ g*ranted.

      Harry M. Woods, J. F. Summers, for petitioner.
    The act is void because of uncertainty. The expression “centrally situated” may refer to geographical center or center of population, or the place most centrally situated with reference to the residence of the members of the quorum courts, which last may vary from year to year, because of change of residence by some of the justices. The meeting place of the quorum courts cannot be left to uncertainties. The act, being vague and uncertain, is void. 122 Ark. 491; 130 Ark. 70; 45 Ark. 164.

      J. S. Utley, Attorney General, Roy D. Campbell, respondent.
    Courts will take judicial knowledge of the location of towns, counties and the like, and a glance at the map of Woodruff County will disclose that the county seat at McCrory is the one most centrally located in that county. Situated or located are words used interchangeably. 103 N. W. 756; 96 N. Y. Supp. 840. “Situated” means the place where the business is transacted or the offense committed. 20 Barb. 68; 106 N. W. 1037; 73 N. W. 585; 126 Ga. 504. A slight inaccuracy in the description of a thing by the Legislature, or in the title of an act, will not render it void, where it can be determined what was meant or intended. 36 Kan. 34.
   McCulloch, C. J.

The General Assembly, at the regular session of 1923, enacted a statute creating an additional court district in Woodruff County, to be designated as Central District, and provided for the holding of court at the town of McCrory. Special Acts 1923, p. 210. At the extraordinary session which convened on September 24, 1923, a statute was enacted, purporting to ¡be general in its terms, a section of which reads as follows: “That hereafter all quorum courts in counties of the State of Arkansas having more than two judicial districts shall meet and hold its [their] meetings, both regular and pall, in the townsite of judicial court sitting most centrally situated in such counties.” Another section of the statute provides that the superintendent of public instruction in such counties “shall maintain his office and headquarters in snch townsite as this act requires for the meeting of the quorum courts.” Another section provides a penalty for any public official or other person violating the terms of this statute.

Petitioner is county superintendent of Woodruff County, and failed or refused to remove his office from Augusta, the county seat, to McCrory, and he was arrested and tried before a justice of the peace on the charge of having violated the statute referred to, and, after being fined, he took the case before the chancellor on habeas corpus, on the ground that the judgment of conviction is void on its face because the statute is void. The petitioner was denied a discharge from the effects of the judgment, and has brought the record here on certiorari..

The contention of counsel for petitioner is that the statute is void for the reason, among other things, that the designation of the place of holding the quorum court is too indefinite. We are of the opinion that this contention is sound. The phrase, “in the townsite of judicial court sitting most centrally situated in such counties,” is too vague as a legislative provision fixing the place of holding court. Counsel for respondent assume that the words, “centrally situated,” refers to geographical center, and that courts take judicial knowledge of the fact that McCrory is nearer the geographical center of Wood-ruff County than either Augusta, the county seat, or Cotton Plant, the place of holding the courts in the other district. The language does not necessarily refer, however, to geographical center. The design of the statute was to provide for the most convenient place for the holding of the court, and the term may have had reference to the center of population, or the most convenient or accessible place. There should be no uncertainty as to a provision of law with reference to the place of holding courts, which are proceedings of a public nature, and’ every person is entitled to definitely know where a court is to be held. We sustain this contention of the petitioner, but expressly refrain from passing on either of tbe other grounds of attack upon the validity of the statute.

The decree denying the prayer of the petition for habeas corpus is reversed, and judgment will be entered here quashing the judgment of conviction and ordering petitioner’s discharge from custody.


text:
    Boyle-Farrell, Land Company v. Haynes.
    Opinion delivered November 26, 1923.
    1. Appeal and error — conclusiveness of verdict. — In determining whether a verdict°is sustained by evidence, the appellate court gives to the supporting evidence its strongest probative force.
    2. Master'and servant — negligence—evidence.—In an action for personal injuries to a servant, alleged-to have been caused by the master’s negligence, evidence held to sustain a verdict for the servant.
    3. Master and servant — servant riding on logging train. — Where a master expressly agreed to furnish medical treatment to its servants, which impliedly included transportation on its logging train to the doctor’s office, a servant, in riding thereon to and from the doctor’s office, is not a mere licensee, and while doing so is entitled to the exercise of ordinary care for his safety.
    4. Master and servant — rotten condition op railroad ties— Where a servant was injured from overturning of the master’s car in which he was returning from the doctor’s offiice and the rotten condition of the ties was discoverable upon inspection, failure of the master to discover such defect did not excuse the negligence.
    5. Master and servant — authority of superintendent. — A lumber company’s superintendent, who controlled all of its operations at its camp and in the woods, and who caused its railroad to be inspected and repaired, when necessary, and attended to furnishing medical attention to employees, had authority to permit an employee to ride on the company’s train for the purpose of obtaining medical attention.
    6.. Appeal and error — instructions—harmless error. — Where it was undisputed that plaintiff had a right, by contract, to ride on his employer’s train to procure medical attention, instructions which failed to distinguish a mere license from a contract right to ride in such train was harmless.

      7. Appeal and error — instructions—harmless error. — In an action by an employee for injuries sustained while riding on his employer’s train, instructions that, if the jury found certain facts, “then plaintiff had the right to be on defendant’s train,” were not erroneous where the undisputed evidence supplied the omission to define or explain the use of the word “right.”
    8. Damages — personal injuries — verdict not excessive — Where a laborer 35 years old, in good health, and earning $2.25" a day in steady work, sustained personal .injuries causing permanent shortening of a leg and stiffening of the knee, and almost totally impairing the use of such leg, and permanently disabling him for his usual occupation, and he suffered and will continue to suffer great pain and be disfigured for life, a verdict for $18,500 was not excessive.
    Appeal from Saline Circuit Court; W. H. Evans, Judge;
    affirmed.

      Coleman, Robinson S House, for appellant.
    1. Appellee, at the time of tlie injury, was a mere licensee. In order to hold the employer liablé, the relation of master and servant must exist at the time of the injury. The injury must have been received in connection with some service then being rendered by the employee in the line of his duty and because of the negligence of the employer. This relation always rests upon contract, express or implied. 146 N. W. 14. The burden of proof was on tlie appellee to establish a custom in relation to employees riding the train for the purpose of consulting the physician and for other purposes connected with their employment, and knowledge of such custom on the part of the company’s official. 96 Ark. 558; 37 L. R. A. 418; 107 Ark. 93; 66 Pac. 909; 2 Hutchinson on Carriers, § 1000; 3 Icl. % 1205; 128 N. E. 888; 130 N. E. 304; 223 Mass. 492; 112 N. E. 79; 134 N. E. 327. The burden was on him also to establish the right to ride on this train, and the extent thereof, if such right existed. 122 Ark. 168. As a licensee upon appellant’s train, the company owed him no duty except to refrain from injuring him after discovering his peril. As a licensee by permission and not by invitation, appellee took his license with its concomitant risk. 114 Ark. 218; 103 Ark. 226; 90 Ark. 279.

      W. D. Brouse and Mehaffy, Donham & Mehaffy, for appellee.
    1. The contract of employment vested in appellee a right to transportation on the train. Having contracted to furnish appellee treatment by the company physician, the duty rested on it to furnish him transportation from the camp to the physician’s office for the purpose of consulting him, when he was able to travel, or to send the physician to him, if he was not able to make the trip. 58 N. E. 738; 26 Cyc. 1050; 139 Ark. 32; 5 Labatt on Master and Servant, 2d ed., 6185; 66 S. W. 639; 54 S. W. 791; 79 Ark. 484; 122 S. W. 458. The circumstances affecting the making of a contract should be considered in construing it. 26 Cyc. 969. And custom is to be taken into consideration in the making and construction of a contract of employment. 78 Ala. 341; 86 G-a.'408,12 S. E. 678; 50 N. E. 306; 14 So. 241; 36 Md. 567; 167 Mass. 544, 46 N. E. 117; 125 Mich. 594, 84 N. W. 1095; 180 Mo. 241, 79 S. W. 136; 10 N. Y. App. Div. 603, 42 N. Y. Suppl. 370; 196 Pa. St. 580, 46 Atl. 934; 66 N. W. 931; 119 Wis. 429; 96 N. W. 826; 92 Fed. 749.
    2. The cases cited by appellant in support of its contention that appellee was a mere licensee are not applicable to the case at bar, and are not in point. Appellee was on the train by invitation, and not as a licensee. As distinguishable between a bare licensee and an “invitee,” see 90 Ark. 279. See also 85 Ark. 326; 89 Ark. 103; 90 Pac. 501.
   McCulloch, C. J.

Appellant is a domestic corporation, and operates a lumber mill at Farrell, in Pulaski County. It also operates a log railroad extending from the mill to the woods camp in Saline County, and thence to woods where timber is cut for the mill. The cars are moved by a steam engine.

Appellee was employed as a log cutter, and while so employed and while riding on the train between Farrell and the woods camp, was injured on August 6, 1921. This action was instituted by appellee to recover damages on account of said injuries. It is alleged in the complaint that appellee was riding on the train, pursuant to contract with his employer, and that his injuries occurred in a wreck of the train, caused by negligence of the appellant in permitting the railroad track and a flange on a wheel of one of the cars to get out of repair, and in operating the train at dangerous speed.

Appellant, in its answer, denied that appellee had any contractual right to ride on the train, but that he was a mere licensee when so riding; denied that there was any negligence on the part of appellant in any respect, and pleaded contributory negligence on appellee’s own part. ' ¡ i

A trial of the case resulted in appellee’s favor, awarding damages in the sum of eighteen thousand five hundred ($18,500) dollars.

The first contention of appellant’s counsel is that the verdict is not sustained by the evidence, and that the court erred in refusing to direct a verdict in appellant’s favor. In deciding this question we must, of course, give the evidence its strongest probative force in appellee’s favor. Thus viewing the evidence, the established facts are as follows: Appellee was, as before stated, employed by appellant as a log cutter. He resided at the camp, and worked in the woods. At the time of his injury he had been working for appellant for two months, and had worked for appellant during the year 1914, and was conversant with the method of work .and the dealings between appellant and its employees for ten years prior to 'his injury: Under the contract between appellant and its employees, a certain sum each month was deducted' out of the wages of the employees to cover the cost of medical attention, and, for the sum so deducted, appellant bound itself to furnish such attention. A physician residing at Farrell was engaged by appellant to attend the employees when ill or injured, and the deduction from the wages of the men was paid to the physician for his services. The physician attended the men at their homes, when ill or injured and unable to go to Farrell, and the men went to see the physician at his office in Farrell when physically .able to do so. Appellant provided means for the men to go, when necessary. They were permitted to choose their own method of getting to Farrell, and were allowed to ride on the train for that purpose. The men sometimes walked, sometimes rode in other conveyances, and sometimes rode on the train. Persons other than employees were permitted to ride free on the train. The custom had been general for a number of years for the men to ride on the train whenever they wanted to. Appellant also carried the men on the train from the camp to the place of work in the woods. One train ran between the camp and Farrell, a distance of six or seven miles, and another between the camp and the woods. Both trains hauled logs, and to the Farrell train there was attached a box-car, which was used in hauling groceries for the men at the camp, and in which persons were permitted to ride. Appellee had been slightly ill of malaria for about a month before his injury, and had been treated by the physician. On the morning of the day the injury occurred appellee desired to go to Farrell on the train to see the physician, and, as the train was about to leave the camp for Farrell, he mentioned this to the woods superintendent, who directed him to go ahead on the train. This superintendent had general supervision and control over the men who worked in the woods — he employed and discharged them. He controlled all of the operations at the camp and in the woods, caused the railroad track between Farrell and the camp and the woods to be inspected and repaired when necessary, and attended to furnishing medical attention to the men when they became ill. Appellee rode on the engine from the camp to Farrell, and, after seeing the physician and getting medicine, he boarded the grocery car in which passengers rode, for the return trip to the camp. When about two miles out of Farrell tbe train was wrecked on account of rotten cross-ties, which, caused the track to spread. The passenger or grocery car which appellee occupied was overturned, and he was pinned underneath. His left thigh bone, in the middle third, was broken, and his right leg was considerably bruised. He remained under the car an hour before he could be got out. He wa's carried to Farrell, and received surgical treatment. The bone was set, and he remained in bed seven weeks, and was then permitted to get up and walk around on crutches. The evidence shows that, on account of the break being oblique, the bone did not unite _ and heal together, but threw out a callus, and this, with the contraction of the muscles, permitted the ends of the bone to slip. There was not enough strength in the bone to bear the man’s weight. This was hot, according to the evidence, caused by any improper surgical treatment in setting the bone, but was the natural result of the character of the injury. Shortly after getting up, appellee’s crutch slipped so as to throw his weight on his left leg, and the broken ends of bone were again disunited. Appellee was then carried to a hospital, where another operation was performed by taking off a short section on each broken end of the bone so as to square the ends and permit them to properly grow together. This permanently shortened the leg about three inches. Appellee’s left knee was also permanently stiffened. He suffered great pain, which continued up to the trial.

The rotten condition of the railroad ties could' have been discovered by proper inspection. Appellant introduced testimony tending to show proper inspection, but the ties were shown to be mere shells, rotten inside.

• We are of the opinion that the evidence was sufficient to sustain the recovery.

Appellee was not, according 10 the facts which the jury could have found to exist, a mere licensee when riding on the train, but the privilege was a part of his contract of service with appellant. The contract expressly provided that appellant should furnish medical attention to the employees when ill. The proved facts were sufficient to establish ;an implied 'contract on the part of appellant to furnish to the employees means of transportation for them to go to see the physician when necessary. It was the custom to do so, .and the effect of the contract was not lessened by the fact that appellant permitted persons other than employees to ride on the train at will. Such persons were licensees, who enjoyed the privilege with its concomitant perils, but not so with employees who rode under contract. Nor is it important whether the contract to ride on the train was express or merely implied — in either event an employee thus riding op the train was not a mere licensee. Arkadelpbia Lumber Co. v. Smith, 78 Ark. 505.

An employee riding on a train or other mode of transportation, pursuant to contract with his employer, is éntitled to the exercise of ordinary care for his safety, and, when injured on account of negligence, he may recover damages. St. L. I. M. & So. Ry. Co. v. Harmon, 85 Ark. 503.

It is insisted that the facts do' not establish negligence in failing to discover the defects in the railroad track. The testimony shows clearly that the rotten condition of the ties was discoverable on proper inspection, and the failure to discover the defect did not excuse the negligence. Ark. Land & Lumber Co. v. Cook, 157 Ark. 245;

Again, it is urged that the evidence falls short in showing that the woods superintendent had authority to direct appellee to ride on the train or to permit a custom to grow up for the employees to ride on the train for the purpose of obtaining medical treatment. The facts already recited are, we think, amply sufficient to establish such authority. The woods superintendent was the representative of appellant, with complete authority to control the action of the men at the camp and in the woods, and to provide the means of furnishing them medical attention.

Errors are assigned in giving each of the following instructions at the request of appellee:

“No. 1. You are instructed that, if you find from the evidence that plaintiff was on defendant’s log train by the express permission of his foreman, and with the knowledge of those in charge of running the train, for the purpose of going to the plant at Farrell to obtain medical treatment of the company physician, and, at the time of his injury, was on his return trip to the logging camp of the defendant, then you are told that he had a right to be on defendant’s train.
“No 2. You are instructed that, if you find from the evidence that it was the general custom for the defendant to carry its employees from its logging camp to its plant at Farrell, for the purpose of obtaining medical treatment of the company physician, and for other purposes, and if you further find that plaintiff, at the time of his injury, had gone to the plant of the defendant to obtain treatment of the company’s physician, and was on his return trip to the logging camp, then you are told that he had a fight to be on defendant’s log train.”

Each of these instructions is inaccurate in omitting some of the elements which mark the distinction between a mere licensee and an employee riding under contract. We conclude, however, that the testimony was undisputed as to those elements, and that the omissions were not prejudicial. The testimony was conflicting as to the alleged permission granted by the superintendent on this occasion for appellee to ride on the train for the purpose of visiting the physician, but that issue was properly submitted to the jury in the first instruction. There was likewise a conflict in the testimony as to whether or not appellee went to Farrell to obtain treatment, but that issue was also properly submitted in said instruction. The only omission from that instruction was the failure to submit the question of the authority of the superintendent, and, as we have already said, the testimony on that point was undisputed. The only omission from the second instruction was the failure to submit the question of implied contract on the part of appellant to furnish medical treatment to the employee, but that, too, was undisputed. Appellee’s own testimony tends to establish the contract, and the superintendent’s testimony was to the same effect. He testified that appellant furnished the medical treatment' — that he procured the attendance of the physician at the home of the men, and sent them in to the physician at Farrell when necessary. He testified1 also that it was customary for the men to go on the train, when they desired to do so, for medical attention. This testimony was uncontradicted. This being true, if there was a contract to furnish medical treatment and the means of obtaining it, and if there was a general custom for the men to ride in on the train to visit the physician to obtain medical treatment when needed, this became a part of the contract, and an employee while thus pursuing the journey was not a mere licensee.

It is argued that the use of the word “right” in these and other instructions was erroneous and prejudicial, but we think that, in view of the uncontroverted facts as set forth above, there was no prejudice in the use of that word. The undisputed facts supplied the omission to define or explain the use of the word.

Other assignments of error with respect to the instructions are not well founded.

Finally, it is insisted that the verdict is excessive, but we do not think that the evidence is insufficient to sustain the award.

Appellee was thirty-five years old, in good health, and was earning $2.25 per day in steady work. His right leg. was shortened about three inches, and his knee was stiffened. The evidence warranted the finding that the use of the leg was ' almost totally impaired for life. Appellee is permanently disabled for his usual occupation, and he suffered great pain for a long time, and will suffer for a long time, if not as long as lie lives. The loss of earning capacity, suffering, inconvenience and disfigurement for life, as sliown by the evidence, is sufficient to sustain the award.

Affirmed.


text:
    Ross v. Wisconsin-Arkansas Lumber Company.
    Opinion delivered November 26, 1923.
    1. Appeal and error — conclusiveness of verdict. — A verdict based on conflicting evidence is conclusive on appeal.
    2. Master and servant — instruction.—Where plaintiff was injured while helping to raise a telephone pole, an instruction that, the employer was not an insurer against injury, but was liable for those injuries only which are caused by its negligence, could not be construed as limiting consideration to negligence in the actual work and as ignoring negligence in failing to furnish proper equipment.
    3. Trial — instruction—specific objection. — In a personal injury action, if it was thought that an instruction might be understood in a narrow sense as ignoring the question whether the master was negligent in failing to furnish proper equipment, the objection should have been pointed out specifically.
    4. Master and servant — instruction—contributory negligence. —Where plaintiff was injured by the falling of a telephone pole, and the evidence tended to prove that the men were warned when the pole began to fall, and that another, who, with plaintiff, was under the pole, avoided danger by stepping aside, it was not error to submit the issue of plaintiff’s contributory negligence.
    5. Appeal and error — exclusion of evidence-charmless error._ In a personal injury action, where the jury, by their verdict, found that plaintiff was not entitled to recover for any injuries alleged and proved by him, it is unnecessary to consider whether thé court abused its discretion in refusing to allow the complaint to be amended to allege injury additional to that set out in the complaint.
    Appeal from Howard Circuit Court; James S. Steel, Judge;
    affirmed.

      D. D. Glover and Mehaffy, Donham & Mehaffy, for appellant.

      An instruction is erroneous where it assumes as true the existence or nonexistence of any disputed fact in issue. 14 Ark. 286; 93 Ark. 29; 14 R. C. L. 738. An instruction is misleading where it ignores a material issue, concerning which the evidence is conflicting, and is prejudicial, even though another instruction, correctly presenting that issue, is found in other parts of the charge. 148 Ark. 500; 94 Ark. 282; 95 Ark. 108; 96 Ark. 184; 102 Ark. 627; 134 Ark. 575; 245 S. ¡W. 192.

      Kinsworthy & Kinsworthy and R. E. Wiley, for appellee.
    Defendant’s instruction, to which appellant now objects on the g-round that it submitted only one issue of negligence, was not in conflict with appellant’s instruction, which submitted both issues, but was supplementary to it. Appellant could, by specific objection to defendant’s instruction, have had the grounds of negligence separated in that instruction also, and he should have made such specific objection. 116 Ark. 125; 137-138; 97 Ark. 226; 98 Ark. 211; 97 Ark. 358, 364; 82 Ark. 105, 111.
   McCulloch, C. J.

Appellant was employed by appellee as a laborer, and alleges that he received personal injuries while at work in appellee’s service. Appel-' lee is a domestic corporation, operating lumber mills in Hot Spring County, and, at the time appellant claims to have been injured, the company was engaged in building a telephone line between two of its mills. Appellant and four other employees, working under the direction of a foreman, were raising a telephone pole. Three of the men were lifting the pole by the use of pikes, and appellant and another one of the workmen were holding the pole up on their shoulders. The telephone pole, while being raised, slipped from the pikes held by the men, and, it is claimed, fell down on appellant and injured him.

It is alleged in the complaint that appellee’s foreman was negligent in failing to furnish a jack with which to lift the pole, and1 also in failing to furnish more help. Negligence of fellow-servants in allowing the pikes to slip when lifting the pole is also alleged.

Appellee answered denying all the charges of negligence, and denying that appellant was injured at all.

The trial resulted in a verdict in favor of appellee.

There was a sharp conflict in the testimony, and every assertion made by appellant with respect to the injury and the cause thereof was disputed by testimony adduced' by appellee.

It appears that there were three of the poles to 'be raised, and that the raising was done by three of the men using pikes, and two others, appellant being one of them, standing with their backs to the hole in which the pole was to stand, and holding the pole while the other men were pushing i-t up with the pikes.

Appellant testified that he protested against engaging in .the work unless a jack was procured and unless additional men were put on the work of raising the pole, but that the foreman said that the force was sufficient, and that it was unnecessary to procure the jack, and directed the men to go on with the work, without a jack and without additional force.

Appellant testified that, while the pole was in process of erection, the pikes held by the men slipped and the pole fell on him, severely injuring him.

Testimony adduced' on the part of appellee was to the effect that appellant was not injured at all and made no complaint until long after the time that the pole was being raised. The testimony of the witnesses was-also to the effect that it was not customary to procure a jack when only a few poles were to be raised, as in this instance, and that the force of men was sufficient to raise the pole.

There being a conflict in the testimony upon every issue, the verdict of the jury is conclusive as to the facts.

The issues were submitted upon instructions asked by each party. Each instruction requested by appellant was given, and nearly all of the instructions asked by appellee were also given. Every phase of the case was covered by the instructions, and we think that they were not inconsistent with each other.

It is contended that the following instruction, given at the request of appellee, was erroneous:

“No. 2. The court instructs you that the defendant lumber company is not an insurer of its employees against injury and is not liable for damages for all injuries suffered by its employees, but for those only which are caused by its negligence, which means some failure to use ordinary care, being that care which an ordinarily prudent person would use under similar circumstances. So, if you believe from the testimony that ordinary care was used in raising the telephone pole, then your verdict should be for the defendant, notwithstanding plaintiff suffered an injury. ’ ’

The contention is that this instruction erroneously ignored the question of negligence on the part of appellee in failing to furnish reasonably safe equipment — in failing to furnish a jack to be used in raising the pole. The language in the instruction, “ordinary care was used in raising the telephone pole,” was manifestly intended to refer, in a broad sense, to the whole question of negligence with respect to the work to be done in raising the pole, and we scarcely think it could properly be construed as limiting the consideration to the question of negligence in the actual work, ignoring the question of failure to furnish proper equipment. But there was only a general objection to the instruction, and, if it was thought that the language might be understood in a narrower sense as ignoring the question with respect to furnishing equipment, then the objection should have specifically pointed out the fact, and a general objection was not sufficient-,

It is contended that the court erred in giving an instruction submitting the question of contributory negligence on the part of appellant. The contention is that there was no evidence to justify the submission of this issue. We are of the opinion that the evidence which presented an issue to the jury with respect to negligence of servants of appellee in allowing the pole to slip from the pikes and fall also called for a submission of the question of appellant’s own negligence in failing to avoid the danger. The testimony which tends to show that the men were negligent in permitting the pole to slip from the pikes also, shows that, when the pole began to fall, the men were warned and told to look out, and that appellant’s companion, who, like himself, was under the pole helping to hold it up, did avoid the danger by stepping aside. The jury might have found that appellant did not exercise proper care in jumping from under the pole when he was warned that it was falling. We are of the opinion therefore that there was no error in submitting the whole issue to the jury of contributory negligence as well as that of negligence.

During the progress of the trial, appellant asked permission of the court to amend his complaint by alleging additional injury other than that set forth in the complaint. In the complaint it was alleged that the falling of the pole injured plaintiff in certain respects, and the requested amendment was for the purpose of alleging that hernia resulted from the injury, but the court refused to permit the amendment to be made. Appellant offered testimony to support the allegation that hernia resulted, but the court excluded that testimony, and error is charged in that respect. There was proof showing other ill effects from the injury, if plaintiff was hurt at all, and the verdict of the jury is necessarily conclusive on the issue as to appellant having suffered any injury at 'all, so it is unnecessary to consider the question whether or not the court abused its discretion in refusing to allow the pleadings to be amended during the progress of the trial.

Objection is made to certain statements of one of the attorneys for appellee during the argument of the cause, but it appears from the record that the court sustained tlie objection and directed the jnry not to consider the argument.

We find no error in tlie record, and the judgment is therefore affirmed.