author: ButiíEk, J.

text:
    Love v. Couch.
    Opinion delivered June 9, 1930.

      John M. Rose, for appellants.

      Robinson, lloiose & Moses and Harry E. Meek, for appellees.
   ButiíEk, J.

The appellants were the owners of oil properties in Union County on which two or more small producing wells had been brought in. In November, 1921., for reasons about which there is -some dispute, an arrangement was effected by which these properties were purchased by the appellee, to be developed and operated by a corporation. The terms of the agreement were set out in the following instrument:

“This memorandum of agreement, made this the 7th day of November, 1921, by and between H. C. Couch and associates, M. W. Love and Love Brothers, Incorporated, witnesseth:
‘ ‘ That M. W. Love and Love Brothers, Incorporated, are the owners of the following described properties, to-wit:
“(1) .1.0 acres, section 31, Rodgers lease, Union County, Arkansas; one-fifth interest of Love Brothers and two-fifths interest of M. W. Love. Well No. 1 producing 112 bbls. per day. Well No. 2 producing 35 bbls. per day.
“ (2) 10 acres, section 8, Pratt lease, Union County, Arkansas; one-fourth interest of Love Brothers. Well No. 1 capped. The first $14,500 worth of oil from this well to go to Couch interest. Well No. 2 producing 200 bbls. per day. Well No. 3 drilling. Debt of $6,000 out of first oil from this well to go to Harrell & Hatcher, drillers, $1,500 of which Couch interests pay.
“(3) 5 acres, section 17, Calvert lease, Union County, Arkansas; 51. per cent, interest of Love Brothers, Inc. Well No. 1. producing 200 bbls. per day.
“(4) 10 acres, section 8, DeCou lease, Union County, Arkansas; one-half interest of Love Brothers, Incorporated. Well No. 1 producing 65 bbls. per day. Well No. 2 drilling, to be completed by Love Brothers, Incorporated, Couch and associates to pay $6,250 of said drilling expense, to be deducted from purchase price, and Love Brothers to bear like expense.
“(5) 10 acres, section 20, Pendleton lease, Union County, Arkansas; one-half of 51 per cent, interest of Love Brothers. Well No. 1 to he completed by Love Brothers, including flow lines, separators and two 1,200-b'bl. wooden tanks, free of any cost to Couch and associates. Operation of this lease to be vested in Couch from date of transfer.
“(6) 20 acres, section 5-19-15, Greenwood lease, Union County, Arkansas; 5-16 interest of Love Brothers. Well No. 1 to he drilled by Love Brothers, Incorporated, free of any expense to Couch and associates. Plow lines, tanks and standardization to be paid equally by Love Brothers and Couch and Associates.
'“(7) Couch and associates to have full ownership of royalty on the 40 acres in section 31.
“(8) Couch and associates to have full ownership of the 700 acres of wildcat leases, description of which is attached hereto, and made a part hereof, marked exhibit A.
“ (9). Whereas, Couch and associates expect to consolidate all oil property interests in the Bl Dorado field into one company, possibly under the corporate name of ‘The ■Southwestern Oil Company,’ the company so formed agrees to take over and pay for said properties in the following manner, to-wit:
“ (10) In cash upon consummation of this deal ...$ 5,000.00
Upon completion of Greenwood well No. 1 . 7,500.00
(a) To be paid Love Brothers, Incorporated, and M. W. Love, monthly from net earnings of the property interests herein conveyed in the maimer described below. 19,000.00
(b) Indebtedness of Love Brothers, Incorporated, to be satisfactorily adjusted and paid by Couch and Associates. 45,000.00
Total ..$76,500.00
Paid by Couch and Associates toward drilling of well No. 2 DeCou .. 6,250.00
Total .,$82,750.00
“(a) It is agreed and understood by and between the parties hereto that Love Brothers, Incorporated, and M. W. Love, shall receive 20 per cent, of the net earnings accruing from the property interests herein conveyed until Couch and associates have been reimbursed for the $12,500 advanced under article 10 hereof, after which they shall receive 25 per cent, of such net earning’s until they have been paid the aggregate sum of $19,000.
“ (b) It is further agreed that 'Couch 'and associates, through the corporation to be formed, shall satisfactorily adjust and pay the outstanding’ obligations of Love Brothers, Incorporated, as minutely set forth in the attached list marked ‘ Exhibit B,’ from 60 per cent, of the net earnings of the property interests herein conveyed until Couch and Associates shall have been reimbursed for the $12,500 advanced under article 10 hereof, after which 75 per cent, of such net earnings shall be applied to the retirement of said indebtedness.
“(11) Upon retirement of the total indebtedness, including the item of $19,000 due Love Brothers, Incorporated, and M. W. Love, and $45,000 outstanding obligations, M. W. Love and Love Brothers, Incorporated, are to receive without cost $75,000 in stock at par of the oil company to be formed by Couch and Associates, said stock to be deposited in escrow upon consummation of this deal for delivery when retirement of said indebtedness shall have been accomplished.
“(12) All earnings from the Rogers and DeCou leases from October 1, 1921, and all earnings from the Pratt and Calvert leases after October 17, 1921, shall go to Conch and associates.
“(13) The sum of $15,000 derived from sales of • % of the first oil produced from Pendleton Well No. 1, is due Love Brothers, Incorporated, of which Couch and associates are to receive $75,000.
“ (14) It is further agreed that Love Brothers, Incorporated, and M. W. Love shall use their best endeavors to secure and turn over to Couch and associates, either by direct purchase, or under an operating’ agreement, control of the Pratt lease as described under article 10 hereof, and that as the wells now drilling are completed the control and operation thereof are to pass to the purchaser.
“(Signed) II. C. Couch and Associates,
“Love Brothers, Inc.
“By M. W. Love, President.
“By J. W. Love, Vice-President.
“ (Signed) By K. J. Michel, Secretaiy,
“By M. W. Love.”

At the time the contract was executed, a corporation existed bearing the name of the Southwestern Oil Company, of which LI.'C. Couch was president, with an authorized capital stock of $500,000, only $300 of which had been issued and which coi-poration held title to certain oil properties. Instead of organizing a new corporation to take over the properties acquired from the appellants, the existing corporation was utilized, and the appellants conveyed to it the properties described in the contract. At the time of the execution of the contract and for some time before, the production of the properties had been slowing down and their value diminishing*. When they were being operated under the aforesaid contract, the production became progressively less, so that finally they could not longer be operated at a profit, and in the latter part of October, 1922, operation of the properties was abandoned. It is not seriously contended that the properties were mismanaged or that they could no longer be made profitable. Tlie appellants were paid tlie cash items of $5,000 and $7,500 and $6,250 as stipulated. A payment was made on the $19,000 item which reduced that item to $16,417.74. The $45,000 item was reduced by various payments to the appellants ’ creditors to $18,614.69, for which balance the appellants were liable. A small balance against the appellants on another transaction was deducted, the balance then, remaining being- $34,865.26. These are the transactions from which this litigation arose and from a decision adverse to the appellants (plaintiffs below) is this appeal.

A number of points are presented by counsel for the litigants in their able and exhaustive briefs, but the main question, which is largely determinative of the issues involved, depends on a single proposition and is involved in the construction of article 10 of the contract set out above. It is a familiar rule of construction that contracts should be interpreted so as to give effect to the intention of the parties, which is to be ascertained by a consideration of the instrument as a whole and of each part in connection with other related paragraphs. Where the language used is of doubtful import, the situation of the parties and the attendant circumstances should be considered and that construction should be adopted which is mo3t fair and reasonable. But, when the language used leaves no doubt as to its meaning, it is conclusive as to the intention of the parties and must be enforced as written. With this elementary proposition of law in mind we proceed to an examination of article 10 of the contract to determine whether as to the items of $19,000 and $45,000 (the only items in controversy) there was an absolute and unconditional promise to pay as contended by the appellants, or whether the same were conditional and contingent. upon the happening of some other event as is the contention of the appellees.

It is clear from a consideration of the entire contract that the $5,000 item and the $7,500 item first mentioned in article 10, amounting to $12,500, were paid in cash by Couch at or about the time of the execution of the contract. Item A, article 10, is as follows: “ (a) To be paid Love Brothers, Incorporated, and M. W. Love, monthly from net earnings of the property interests herein conveyed in the manner described below, $19,000.” In the same article appears clause “A”: “ (a) It is agreed and understood by and between the patties hereto that Love Brothers, Incorporated, and M. W. Love, shall receive 20 per cent, of the net earnings accruing from the property interests herein conveyed until Couch and Associates have been reimbursed for the $12,500 advanced under article 10 hereof, after which they shall receive 25 per cent, of such net earnings until they have been paid the aggregate sum of $19,000.”

Item “b” of article 10 is as follows: “ (b) Indebtedness of Love Brothers, Incorporated, to be satisfactorily adjusted and paid by Couch and associates, $45,000, ’ ’ and clause “b”; “(b) It is further agreed that Couch and associates, through the corporation to be formed, shall satisfactorily adjust and pay the outstanding obligations of Love Brothers, Incorporated, as minutely set forth in the attached list marked ‘Exhibit B,’ from 60 per cent, of the net earning’s of the property interests herein conveyed until Couch and Associates shall have been reimbursed for the $12,500 advanced under article 10 hereof, after which 75 per cent, of such net earnings shall be applied to the retirement of said indebtedness.”

As to item “a,” it, standing alone within itself, clearly indicates how the $19,000 shall be paid direct to Love Brothers, Incorporated; as to item “b,” as explained by its related clause “b” following, it is equally clear how the $45,000 item should be paid. Both items “ a ” and ‘ ‘b ” are to be paid out of the net earnings of the properties conveyed, and, as there is nothing else in the contract which in any way refers to these items and further explains or limits the terms of their companion clauses, it follows that the payments are limited and conditional on the net earnings of the properties. We must bold the language unambiguous and conclusive as to the intention of the parties. Therefore, the parol evidence tending to contradict or alter these plain provisions of the written contract was incompetent. As the properties since October 22, 1922, could, and can, no longer be operated ata profit, the appellants were entitled to receive on item “a” and to have applied to item “b,” in the manner stated in the companion clauses, only the net profits already realized, and this, in effect, is the application of the rule hereinbefore stated made by the chancellor to the facts in the case at bar, in which he is supported by our decision on an analogous state of facts in the oases of Gilbert v. Patterson, 174 Ark. 61, and Hirsch v. Cadrin, 178 Ark. 209, 10 S. W. (2d) 2.

It is the theory of the appellants -that II. C. Couch is personally liable under the terms of the contract, while the appellees insist that the $19,000 and the $45,000 items were to be paid merely from the net profits derived from the operation of the Love properties, “if, as and when such profits were realized (which theory a proper construction of article 10 justifies) and responsibility for making such payments out of profits of operation was placed entirely on the corporation acquiring the properties and not on Couch personally” — in short, that the corporation was personally liable, and not Couch. Treating the contract as ambiguous in so far as this question is concerned and the parol testimony adduced legitimate to ascertain its true meaning in that regard, this testimony was conflicting; that of the appellants tending to establish appellee’s personal obligation for the payment of said items in accordance with the provisions of article 10, and that of the appellee supported by the testimony of others tending to negative this contention. The trial judge adopted that view of the evidence tending to establish the contention of the appellees. It is earnestly insisted by counsel for the appellants that, when the value of the-properties conveyed is considered, the financial standing of Couch, and the uncertainty as to the financial standing- of a prospective corporation, are taken into account, the contention of the appellees as to the non-liability of Couch is unreasonable, and that these facts, taken into consideration with the testimony of the appellants as to their understanding as to who should pay the items in question, makes the finding of the chancellor against the preponderance of the testimony. On the other hand, it is as seriously contended that the circumstances attendant upon the transaction are persuasive that Love Brothers, Incorporated, was so financially embarrassed that it could no longer develop and operate the properties which were showing' marked diminution in producing’ power; that the values of these properties were highly speculative, and that a careful analysis of the testimony discloses that they were in fact, even on a speculative basis, worth no more than the purchase price named in the contract, and that the cash of $18,750, with the prospect of the further development and operation of the properties and the forbearance of the creditors, made it not at all unreasonable that the agreement should be as contended by the appellees.

We have carefully examined and considered the evidence in support of these respective contentions and cannot say that the judgment of the trial court in upholding the contention of the appellees was against the preponderance of the evidence, or that the circumstances warranted the assumption that the finding was unreasonable. Therefore, under the established rules of procedure,’the finding* of the trial court will not be disturbed.

It is insisted, however, that the net profits were greater than shown by the audit because of certain items under the head of “General Expenses” which were not proper charges against the production, in- that these items were the expenses of the corporation as a whole which was operating other properties besides those acquired from the appellants, and while the appellee was not liable (as found by the chancellor) under the terms ‘ of the written contract as explained by the parol testimony, he was, and is, personally liable under the terms of § 1726 of Crawford & Moses’ Digest, because as president of the corporation he failed to make and file the annual statement prescribed by § 1715, ib. The appellants are in error in this contention. The corporation was organized in April, 1921; the properties were taken over in November of that year, and operations ceasing October 22,1922, the liability, if any, became fixed on that date.

.Tn the appellants’ original complaint filed September 16, 1925, the cause of action stated was for a breach of contract. Various amendments were filed to the complaint, among- which was one filed August 5, 1926, in which an independent cause of action than that -stated in the original complaint or in any of the preceding-amendments was alleged, namely, a statutory liability based on § 1715 and § 1726, supra. The period" of limitation applicable for the enforcement of statutory liability is three years. McDonald v. Mueller, 123 Ark. 233; Zimmerman v. W. & S. Fire Ins. Co., 121 Ark. 408. The statutory cause of action -was not included in the original complaint and the statute of limitations was not tolled by its filing, but continued to run until the filing of the amendment August 5, 1926, at which time the statute bar had attached. Cottonwood Lumber Co. v. Walker, 106 Ark. 108.

It is insisted by the appellants that the amendment will relate back to the filing of the original complaint, citing Holland v. Rogers, 33 Ark. 251, and Western Coal & Mining Co. v. Corkille, 96 Ark. 388, 131 S. W. 963, in support of this contention. But those cases are not authority for the contention made in the instant case for the reason that the amendment of August 4, 1926, was not an amplification of the cause of action set out in the complaint first filed or of any of the amendments thereto, but was an independent and distinct cause of action, and an adverse judgment on the cause of action alleged in the original complaint would not be a bar to recovery on the cause of action stated in the amendment of August 5, 1926. McDonald v. Mueller, supra; Cottonwood Lbr. Co. v. Walker, supra; 34 C. J., page 802. It follows from the view above expressed that the decree of the chancellor is in all things correct, and it is therefore affirmed.


source: Caselaw Access Project

author: Hart, 0. J.,

license: Public Domain

text:
    First National Bank v. Godbey & Sons.
    Opinion delivered June 16, 1930.

      W. P. Strait, for appellant.

      Robert Bailey and E. A. Williams, for appellee.
   Hart, 0. J.,

(after stating the facts). The chancellor was justified in finding that the 22 bales of cotton in controversy belonged to the plaintiffs. It is true that the testimony is contradictory on this point, but we think that the chancellor was warranted in finding that a preponder-■anee of the evidence shows-that the cotton belonged to the plaintiffs. Two employees of the firm and two of the members of the firm testified to that effect. It is trne that their testimony was contradicted by that of Patterson, and by the further fact that the space in the cotton yard where the cotton was stored as it was purchased was marked in the name of Patterson, but the Godbeys testified that this was done for the sake of convenience, because the members of the firm were also buying cotton, and the cotton purchased by Patterson was stored at a place in the cotton yard in his name in order to distinguish it from the ether cotton purchased by the plaintiffs. In all instances the plaintiffs furnished the money which paid for the cotton. Patterson did not handle any of the money. He would give the owners of the cotton tickets showing' the price he had agreed to pay and the number of pounds bought, and the seller would carry this ticket to the store of Godbey & Sons, and the money would be paid there by a member of the firm.

It is next insisted that, even if the cotton belonged to the plaintiffs, that Patterson had a right to sell it. The evidence showed that some eleven other sales of cotton had been made by Patterson, but it also showed that Wylie Godbey supervised the selling of the cotton and received the proceeds of sale. Patterson was allowed to actually handle the cotton in the sale because he was to receive as his commission all profits derived from the purchase and sale of the cotton. Wylie and Buck God-bey both denied’in positive terms that Patterson had any rig'ht to sell the cotton without the consent or supervision of some member of the firm. They are corroborated by the attendant circumstances. The cotton was purchased and stored in a cotton yard at Atkins. Patterson took the cotton without the knowledge of any member of the firm of Godbey & Sons and hauled it to Morrilton and deposited it in a compress warehouse and received receipts therefor. ITe carried these compress receipts to a bank and borrowed $1,500 on them. The bank did not see the cotton at all. It was not necessary for Patterson to have hauled the cotton itself to Morrilton in order to borrow the money. At the time he hauled the cotton there, he owed the plaintiffs’ firm over $2,000 and received flic amount borrowed and refused to pay the plaintiffs any part of the amount which he owed them. The attendant circumstances justified the chancellor in finding that lie had no actual authority to sell the cotton.

It is next insisted'that he had apparent authority to sell the cotton. Apparent authority in any case is such authority as the principal knowingly permits the agent to assume or which he holds the agent out as possessing. It is such authority as a reasonably prudent person would naturally suppose the agent to possess from the attendant circumstances. Ozark Mutual Life Assn. v. Dillard, 169 Ark. 136; and American Southern Trust Co. v. McKee, 173 Ark. 147.

In the present case, it cannot be said that the plaintiffs knowingly held Patterson out as having authority to sell the cotton which he purchased for them. It is true that he had actually sold the cotton, but the sale had been made under the supervision of Wylie Godbey, and the proceeds of sale were paid to the plaintiffs because they had furnished the money for the purchase of the cotton. A preponderance of the evidence shows that the plaintiffs did not hold out Patterson as having authority to do anything except to buy cotton for the firm, and it is well settled that one dealing with an agent without inquiring of the principal his authority does so at his peril. There is no testimony in the record tending to show that the bank knew any facts or circumstances which would lead it to believe that the plaintiffs held out Patterson as having authority to sell cotton for them. On the other hand, the officer of the bank wlm conducted the transaction for it with Patterson merely asked the latter if the cotton belonged to him. He had the compress warehouse receipts for it, and they supposed from that fact and from his statement that the cotton 'belonged to him and that be bad tlie right to sell or pledge it, and they did not lend him the money on it under any sort of belief that he was aeting for the plaintiffs or anyone else but himself. It is a fundamental principle of law that a principal can only be bound by the acts of his agent coming within the real or apparent scope of his authority. Ozark-Badger Co. v. Roberts, 171 Art. 1105.

It is next contended that the plaintiffs are estopped from recovering from the bank by the circumstances in the case. We do not think that it can be said in any sense that the plaintiffs are prevented by equitable estopipel from asserting their rights as against the bank as the purchasers of the cotton in controversy. The plaintiffs did nothing whatever to mislead the bank, and did not in any sense by word or conduct induce it to purchase or lend money on the 22 bales of cotton in question. While mere silence may operate as an estoppel in equity, in order to constitute such silence as an estoppel, there must be both the opportunity and the dtdy to speak, and the action of the person asserting the estoppel must be the natural result of the silence, and the party maintaining the silence must have been in a situation to know; that some one was relying -thereon to his injury. Baker-Matthews Lumber Co. v. Bank of Lepanto, 170 Ark. 1146; American Southern Trust Co. v. McKee, 173 Ark. 147; and Merchants’ Planters’ Bank v. Citizen’s Bank of Grady, 175 Ark. 417.

The whole principle of equitable estoppel is that when a man has done an act or said a thing and another person, who had a right to do so, has relied on that act or word and will be injured if the former can repudiate the act or recall the word, it shall not be done. In the-ca se at bar, the plaintiffs did nothing that would induce the bank to lend the money to Patterson on the faith that he had the right to handle the cotton for them. In fact they were wholly ignorant that he had done so. A member of the firm had gone to Morrilton to see about the cotton as soon as the plaintiffs learned that Patterson bacl hauled it there. Patterson stated be bad not sold tbe cotton but bad merely left tbe compress receipts in a bank. That showed that be had already pledged tbe compress receipts to tbe bank, and bad received the loan of $1,-500 before tbe plaintiffs knew anything about it. Indeed, the officer of the bank who acted for it does not claim that be was in possession of any facts which would have ipdueecl him to believe that Patterson had authority to act for tbe plaintiffs or any one else in tbe matter. The bank lent Patterson tbe money on the theory that the-cotton belonged to him. They relied entirely on his statement about the ownership of the cotton, and on the fact that he had the compress receipts in his possession. The fact that he had the compress receipts in his possession added nothing to the transaction under the circumstances of the case. He had hauled the cotton to Morrilton from Atkins without the permission of the owners of it, and had secured the compress receipts on the credibility that he owned the cotton. He had no authority to deliver these receipts to the bank unless the cotton belonged to him or unless he had authority from the owners of it to deliver the receipts to the bank, and pledge them for a loan.

Therefore the decree will be affirmed.


author: Hart, O. J.,

text:
    Washington v. State.
    Opinion delivered June 16, 1930.

      Milton MoLees and Joe N. Wills, for appellant.

      Hal L. Norwood, Attorney General and Pat Me-hajfy, Assistant, for appellee.
   Hart, O. J.,

(after stating tlie facts). It is first earnestly insisted by counsel for the defendant that the court erred in refusing' to sustain their motion in arrest of judgment. They contend that, inasmuch as the defendant was indicted and tried for murder committed in the perpetration and in the attempt to perpetrate robbery in violation of the provisions of § 2343 of the Digest, the indictment is fatally defective and does not charge an offense under that section. Their contention is based on the allegations of the indictment using the word “intent” instead of the word “attempt” to rob W. H. Boberts. They claim to constitute an attempt, something more than an .intention or purpose to commit crime is necessary. It is true that generally speaking- the word “attempt” is more comprehensive than the word “intent,” including both the purpose and an actual effort to carry the purpose into execution; but, in crimes which require force as an element in their commission, there is no substantial difference between an “'assault with intent” and an “assault with attempt” to perpetrate the offense. Smith v. State, 126 Ga. 544, 55 S. E. 475; Johnson v. State, 14 Ga. 55; 2 Bishop’s New Criminal Procedure (4th ed.), page 80; and Kelley’s Criminal Law and Procedure, (4th ed.) § 486.

By the common law, every homicide committed in the perpetration of a felony was murder, and this, whether there was any precedent intention of doing the homicidal act or not. Rhea v. State, (Neb.) 88 N. W. 789; Conrad v. State, 75 Ohio St. 52, 8 Ann. Cas. 966; and 4 Cooley, Black. Comm., star pages 200 and 201.

Our statute has modified the common law rule so that murder committed in the perpetration of or attempt to perpetrate certain named felonies including robbery is deemed murder in the first degree. Crawford & Moses’ Digest, § 2343; Palmore v. State, 29 Ark. 248; Rayburn v. State, 69 Ark. 177; Powell v. State, 74 Ark. 255; Sheppard v. State, 120 Ark. 166; Clark v. State, 169 Ark. 717; and Harris v. State, 170 Ark. 1073.

As will be seen from the body of the indictment which was set ont in onr statement of facts, the grand jury charged that 'George Washington, with the felonious intent to rob W. EL Roberts, did assault and kill W. H. Roberts by shooting him with a pistol. This, in plain language, charged the defendant, George Washington, with killing W. El. Roberts with the felonious intent to rob him, or in the attempt to rob him. Consequently, when the indictment charged an assault with intent to kill Roberts, this was necessarily an attempt by violence to rob him. The crime of robbeiy requires force as an element in its commission, and there can be no substantial difference between an “assault with intent to rob” and an “assault with attempt to rob.” Hence a verdict of guilty of murder in .the first degree was in conformity with the indictment. Murder committed in the perpetration or attempt to- perpetrate robbery under onr statute is not a distinct offense, but -merely one way of committing murder in the first degree. The authorities above cited hold that the malice in such a case is evidenced by the act of killing while attempting to- perpetrate the felony, and that premeditation is not essential to murder in the first degree in such a case. Hence we hold this assignment of error1 is not well taken.

It is next insisted that the court erred in giving certain instructions to the jury. We do not deem it necessary to set out these instructions. The assignment of error is predicated upon the theory that the indictment did not charge the offense to have been committed in the perpetration of or in an attempt to perpetrate robbery, and that it is error therefore to instruct the jury that if they found beyond a reasonable doubt that the defendant, in the perpetration of -or in the attempt to perpetrate robbery, shot and killed Roberts, he would be guilty of murder in the first degree. Reliance is had to sustain their contention on Rayburn v. State, 69 Ark. 177, and Sheppard v. State, 120 Ark. 160. As we have already-seen, the indictment is a good and valid indictment under § 2343 of the Digest, and it was proper for the court to instruct the jury on the law of the case under that section of the statute as laid down under the authorities above cited. Hence we do not deem the assignment of error with regard to the instruction is well taken. The jury, by its verdict, showed that it believed the witnesses for the State, and the testimony given by them warranted the jury in finding that the defendant was guilty of murder in the first degree, committed by killing W. H. Roberts while attempting to rob him.

It is next contended that the court erred in refusing to withdraw from the consideration of the jury two photographs of the scene of the killing introduced by the State. It is conceded that these photographs were properly introduced, and that their introduction was competent in order to show the jury'the premises where the crime was charged to have been committed. It is alleged, however, that the court erred in allowing the State to show from the photographs the purported positions of the parties by illustration from men in the pictures. It is insisted that there is no verification of the photographs with reference to the position of the parties, and for this reason the photographs should have been withdrawn from the jury. We think that the photographs were properly verified with respect to the position of the defendant and the deceased by the admission of the defendant himself. According to the testimony of the sheriff, the defendant admitted that the position of certain men in the picture were about the same as they were when the shooting occurred; that is to say, he admitted that he was about where W. L. Hall, one of the parties in the picture, was, when the shooting took place. He said that Roberts was standing in the door of the filling station.

In Sellers v. State, 91 Ark. 175, the court recognized the general rule laid down by authorities on criminal evidence that photographs are admissible in evidence when they are shown to have been accurately taken and to be correct representations of the subject'in controversy, and are of such a nature as to throw light upon it. The reason is they aid the jury to understand the evidence of. the witnesses by illustrating the situations of the persons, places, or things connected with the inquiry. It was only material to show the position of the defendant and of the deceased at the time of the shooting. The defendant admitted to the sheriff the position of these two parties and also testified relative to the same at the trial. He admitted shooting the deceased and only contradicted the witnesses for the State as to which one shot first. According to the evidence for the State, the person with the smaller pistol shot first, and it was shown that the defendant had the smaller pistol. According to the testimony of the defendant, the deceased shot first. Hence we hold that this assignment of error was not well taken.

It is next contended that the court erred in refusing to instruct the jury on the lesser degrees of homicide. We do not think that this assignment of error is well taken. There was no evidence to establish a lesser degree of homicide than murder in the first degree. The evidence showed that the defendant, if guilty at all, was guilty of murder in the first degree; and it was not error for the court to refuse to give instructions authorizing’ the jury to return a verdict of guilty of one of the lesser degrees of homicide when there was no evidence upon which to base such instruction. In this connection, it may be stated that the court instructed the jury on the subject of self-defense or excusable homicide. Clark v. State, 169 Ark. 717; and Harris v. State, 3 70 Ark. 1073.

We also call attention to the fact that the court told the jury that if it found from the evidence beyond a reasonable doubt that the defendant went to the place of business of the deceased for the purpose of robbing him, and that he attempted to perpetrate the robbery, he could not claim the benefit of solf-clefense unless the jury found that he in good faith abandoned his attempt to commit the robbery and that he retreated as far as consistent with his own safety before shooting the deceased. The court also gave proper instructions to the jury on the question of reasonable doubt and that the confessions of the defendant must be voluntarily made.

Finally, it is insisted that the judgment should be reversed because the court erred in not granting- a new trial for the reason that J. H. Brooks, one of the jurors, was at the scene of the crime when the photographs representing the situation of the parties were taken. According to the testimony of the juror, he did not recollect about having been present when the pictures were taken when he was questioned as to his qualifications as a juror in the case. He admitted that he was present when the pictures were taken and might have heard some of the •witnesses say something about the case, but, if he did hear them, their statements made no impression upon his mind, and he did not recollect anything about the occurrence when he was examined on his voir dire. He happened to be present when the pictures were taken because he was riding in an automobile with the sheriff which the latter was demonstrating to him. His testimony is corroborated by that of the sheriff, who testified that in summoning a special venire to try the defendant, he did not recollect that Brooks had been present at the time the pictures of the scene of the killing showing' the positions of the parties were taken. The juror testified that he had no bias or prejudice for or against the defendant, and that his mind -was perfectly free from any prejudice, and that he could and did give the defendant a fair and impartial trial. Therefore, we hold that this assignment of error is not well taken. Pendergrass v. State, 157 Ark. 376.

We have carefully examined the record and are of the opinion that the defendant received a fair and impartial trial. We find no prejudicial error in the record, and the judgment will therefore be affirmed.


author: Smith, J.

text:
    Ahern v. Paving Improvement District No. 53 of Texarkana.
    Opinion delivered June 16, 1930.

      J ones & J ones, for appellant.

      J. M. Garter and B. E. Garter, for appellee.
   Smith, J.

Appellant filed a -complaint which contained the following- allegations. Appellant owned certain town lots in Paving’ Improvement District No. 53 of the city of Texarkana, hereinafter referred to as the district. More than ten owners of property in the district filed with the city council on March 8, 1927, a petition praying- the creation of the district, and an ordinance was passed designating- the boundary lines of the district, it being recited in the ordinance that the district was created for the purpose of grading-, curbing, guttering and paving the streets named in the ordinance. Appellant did not sign, the petition upon which the ordinance was passed.

Thereafter the second or majority petition was circulated among- the owners of real estate included in the district, but a majority in value had not signed when the petition was presented to appellant by Finis Pharr, who was then and is now a member of the city council. Appellant refused to sign the petition, -for the reason that Fourteenth and Fifteenth streets, running west from Garland Avenue, which were included in the district, were not to be paved. Pharr represented to appellant and assured him that Fifteenth Street would be paved if plaintiff would sign the petition, and similar representations were made to appellant by other members of the city council, and by property owners within the district. “That, relying upon said representations so made to him that Fifteenth Street would be paved west from Garland Avenue and believing that the promises and agreements made to him by members of the city council and by others that Fifteenth 'Street would be paved, he signed said petition, and would not have done so if such representations had not been made and relied upon.”

He further alleged that after he had signed the petition, but before it had been filed, or presented to the city council, he was informed that it was not contemplated that Fourteenth or Fifteenth street would be paved, and thereupon filed his request in writing with the city council that he be permitted to withdraw his name from the majority petition. That, upon the presentation of this request, the council passed an ordinance instructing the assessors not to make an assessment of the better-ments “until this matter had been perfected and reported back to the council,” and J. P. Ahern (appellant) “is not to suffer any expense on account of the pavement of said streets mentioned above.”

That, relying upon the representations of the council that no taxes would be levied upon his property until arrangements had been made and perfected to pave Fourteenth and Fifteenth streets, he permitted his name to remain on the majority petition. That an ordinance was passed and assessors elected, who assessed benefits against appellants property amounting to $7,283, and it was ordered that six per cent, of the betterments be paid annually on or before the 1st day of February of each year, commencing February 1, 1928, and pursuant to this ordinance appellant paid one annual assessment amounting to $436.-98. That Fourteenth Street was paved, but the commissioners have failed and refused to pave Fifteenth Street, and have advised appellant (bat they did not intend to pave it unless they are protected by an order of court in so doing. That appellant did not know, and was not informed, that the paving district had not paved, and did not intend to pave Fifteenth Street, until September, 1929, which was after he had paid his taxes for that year. It was further alleged that the commissioners of the district were, at the time of the filing of the complaint, engaged in the work of paving and grading the streets, and would not pave Fifteenth Street unless they were required to do so. There was a prayer that the commissioners he required to pave Fifteenth Street, or, if that relief was denied, that the district be restrained from collecting the taxes assessed against and levied upon appellant’s property.

A demurrer, which was interposed to the complaint, was sustained, and this appeal is from this decree.

We think the demurrer was properly sustained. The power of the council to act is derived from the petition of a majority of the property owners. The law requires this petition to he in writing and to specify the improvement contemplated. The improvement district can only he created upon this petition, and must, of course, con-, form to it. The petition makes certain the improvement proposed, and all property owners have the right to rely upon the recitals of the petition; otherwise a property owner, by signing a petition for a particular improvement, might later learn that his consent to one improvement had been used to place the burden of a more extensive prog’ram upon other property owners as well as upon himself. What was said in the case of Cox v. Road Imp. Dist. No. 8 of Lonoke County, 118 Ark. 119, is applicable here. It was there said: “There is not, of course, the same necessity for accurate description of the roads 'which an improvement district embracing rural property is intended to improve as there is for an accurate description of streets in a town or city; hut the legal principles which govern in one case must be applied in the other. It is essential in both cases that there be no uncertainty about the improvement which it is proposed to malee. All of the cases under our improvement district law treat the petition as jurisdictional, and hold that its recitals must meet the requirements of the statute. All of these decisions make it plain that there must be no uncertainty about the improvement proposed. The details and plans of the improvement may be worked out by the board of improvement after the establishment of the district petitioned for, but the discretion of the board is limited to carrying out the purpose of the petition. It is not contemplated that upon and after the establishment of the district there shall be any doubt about the improvement to be constructed. Otherwise, property owners might sign the petition under the apprehension that a certain road or street was to be improved, only to learn after the district had been established, and the plans had been approved, that they were mistaken or had been deceived. One of the purposes of requiring a petition in writing is to prevent such controversies. (Citing numerous cases).” Later cases to the same effect are: Kempner v. Sanders, 155 Ark. 321; Nelson v. Nelson, 154 Ark. 36; Householder v. Harris, 147 Ark. 349.

The law furnished appellant and all other property owners a certain source of information, upon which he and they might safely have relied, to-wit: the petition which he signed, and he had no right to assume that the council would order the construction of an improvement for which other property owners had not petitioned.

In the case of Pharr v. Knox, 145 Ark. 4, an improvement district, established by order of the county court, was attacked .upon the ground — among others— that the plaintiff had signed the petition for the establishment of the district upon a representation of the county judge as to cost, which was false and fraudulent, and that the plaintiff had “relied on the statements of the county judge as a county official. ’ ’ A general demurrer was sustained to this complaint, and in upholding that ruling it was there said. “The alleged false and fraudulent representations, set up by one of the affiants, upon which signatures to the petition are said to have been obtained, were not statements of past or existing- facts, and were not such fraudulent representations as entitled appellants to have the judgment creating the district declared invalid. The appellant had no right to rely upon such representations. The act itself ‘provides an appropriate scheme for advising the landowners of the character of the improvements to be undertaken and the cost thereof, so that they could act upon the petitions intelligently.’ Lamberson v. Collins, 123 Ark. 205. The act itself, if complied with, protects the property owners from such frauds as are set up in that affidavit. See § 2, Luck v. Magnolia-McNeil Road Imp. Dist. No. 1 of Columbia County, 141 Ark. 603.

Not only did the majority petition describe the streets to be improved, but the ordinance enacted pursuant to the petition also described the improvement, yet no attack was made upon this ordinance for nearly two .years after its enactment, and under numerous decisions of this court this delay bars the attack here made. See also § 13 of act No. 64 of the Acts of 1929, vol. 1, Acts 1929, page 252.

The decree of the court sustaining the demurrer is correct, and it is therefore affirmed.


author: Humphkejts, J.

text:
    Smith Arkansas Traveler Company v. Simmons.
    Opinion delivered June 16, 1930.

      Busbee, Pugh & Harrison, for appellant.

      Prank B. Pittard and Walter A. Isgrig, for appellees.
   Humphkejts, J.

This is an appeal from judgments against appellant in favor of W. F. Simmons for $5,000 and Jennings Motors for $401.60, both of whom are ap-pellees herein, for- the alleged negligence of R. W. Hoehn, appellant’s motorman, in driving one of its busses in such a careless and reckless manner as to cause a collision between the bus and a Chrysler car owned and being driven by appellee Simmons at the time in a careful manner.

The suit was instituted by appellee, W. F. Simmons, against appellant to recover certain amounts for damages to his automobile and for personal injuries to himself resulting from the collision, and appellee Jennings Motor Company intervened in the suit to recover the balance of the purchase money due it by W. F. Simmons for the automobile which he had purchased from it under a conditional sales contract. The issue joined by the pleadings was -whether the automobile was damaged and appellee, "W. F. Simmons, injured by the negligent driving of appellant’s motorman or by said appellee’s own negligence in failing to drive his automobile according to the traffic rules of Little Rock, and to keep a proper lookout for traffic in the direction he was going.

"When the jury vms being impaneled to try the cause, the following questions were propounded and answers thereto made:

By Mr. Pittard (attorney for appellee W". F. Simmons). Q. I want to know if any of the jurors are employed by a liability insurance company or engaged in the insurance business, or employed in the insurance business? Mr. Robertson (attorney for appellant). I object. Court: What is the object of that question? Mr. Pittard: Just to know who the people are they are working for. Court: Why are you asking that question? Mr. Pittard: Some people working for insurance companies are not usually in favor of giving damages. Court: Have you any reason to believe that there is an insurance company interested in this case? Mr. Pittard: Yes, sir. Court: Is. there an insurance company interested in this case (addressing Mr. Robertson). Mr. Robertson: If there is, 1 don’t know about it. Court: Are you employed by any insurance company? Mr. Robertson: All I know about it is that I am employed by the Traveler Bus Company. Mr. Brown- here really is the one that employed me. Court: I will ask Mr. Brown — Is there any insurance company interested in this case? Mr. Brown: Yes, sir. Court: The objection is overruled.

(To which ruling of the court the defendant at the time duly excepted and asked that its exceptions be noted of record, which was accordingly done).

The collision occurred at the intersection of Eighth and State streets in Little Rock, Arkansas. Appellee was traveling south on the right-hand side of State Street and appellant’s bus was traveling east on the right-hand side of Eighth Street. Just as appellees automobile was passing out of the intersection of said streets the right-hand wheel of his. automobile was struck by appellant’s bus and knocked at an angle of about forty-five degrees across State Street, turning the same entirely around. The bus had turned slightly toward the right or south just before striking the automobile, and after striking’ same continued to run across the street and over the curb and sidewalk into'an adjoining yard.where it ran into a tree that stopped it.

The testimony introduced by appellee tended to show that he entered the intersection of the two streets before the bus reached State Street; that he was traveling at a reasonable rate of speed and could have passed over Eighth .Street before being’ struck if the motorman of the bus had not been traveling at a reckless and unreasonable rate of speed. Appellee’s witness testified that when appellee entered the intersection the bus was from one-third to one-half of a block-west on Eighth Street and did not enter the intersection until appellee had almost passed out of same, and that the collision occurred on account of the motorman driving* into the intersection at a rate of twenty or twenty-five miles an hour or over, without slowing down as he approached same and then because he turned slightly to the south or right instead of keeping straight ahead.

The testimony introduced by appellant tended to show that each reached the intersection about the same time; that the motorman of the bus approached at a speed of about ten or twelve miles an hour and appellee at about twenty-or twenty-five miles an hour, the latter running immediately in front of the bus before he had time to stop it, thereby causing the collision; that the purpose of the motorman in turning slightly to the right was to give appellee a chance to turn to the left or east on Eighth Street and avoid the collision.

The testimony thus detailed presented a conflict of testimony for determination by the jury as to whether the collision and consequent damage was occasioned by the negligence of the motorman or contributory negligence of appellee. This issue ivas submitted to the jury and determined adversely to appellant.

The appellant first contends for a reversal of the judgment because the trial court elicited information in the presence of the jury to the effect that appellant carried accident or casualty insurance to indemnify it against injuries that it might inflict upon other parties and their property.

The court elicited the information by inquiry after counsel for appellee had propounded over the objection of appellant, the following question to the jurors, upon their voir dire examination:

“I want to know if any of the jurors are employed by liability insurance companies or engaged in the insurance business, or employed in the insurance business'?”

The objection was made and exception saved to said question, and the exception was preserved in appellant’s motion for a new trial, but the questions propounded by the court in eliciting the information that an indemnity insurance company was interested in the suit were not objected and excepted to.

The question propounded by counsel for appellant was a proper one in order that he might intelligently exercise appellant’s right of challenge. Pekin Stave & Manufacturing Co. v. Ramsey, 104 Ark. 1.

Appellant’s only other contention for a reversal of the judgments is that the court erred in giving, over its objection, appellee’s requested instruction number 3, which is as follows:

Ordinary care requires of every man who drives a motor vehicle upon a public street to keep a lookout for vehicles or persons who may be upon the street, and to keep his motor vehicle under such control as to be able to check the speed or stop it absolutely if necessary to avoid injury to others when danger may be expected or is apparent.”

The identical statement of law ivas approved by this court in the case of Madding v. State, 118 Ark. 06. We think it a necessary and wholesome rule of law that drivers of automobiles in approaching street crossings or an intersecting street must have their automobiles under control, prepared to stop, if automobiles or other vehicles or pedestrians are passing over the intersection. Danger may always be "expected or anticipated at street crossings or at intersections of streets, and every driver of an automobile should keep a lookout and approach same with his machine under control, else he cannot be regarded or treated as exercising ordinary care.

We think the instruction comes within this rule and was applicable and appropriate in the case.

No error appearing, the judgments are affirmed.


author: Humphrevs, J.

text:
    Wilkin v. Special School District of Hazen.
    Opinion delivered June 16, 1930.

      Samuel S. Jefferies, for appellant.

      Chas. B. Thweatt, for appellee.
   Humphrevs, J.

This is an appeal from a decree sustaining a demurrer to and dismissing- the complaint of appellant filed in the chancery court of Prairie County, Southern District, praying that appellee be enjoined from issuing- $30,000 of bonds and executing a mortgage on the school property to secure same for the purpose of making repairs upon the school building, and to pay the outstanding indebtedness against said school district. It was alleged in the complaint that appellees had advertised, received bids for and entered into a contract for the sale of $30,000 negotiable bonds in accordance with the procedure required by 8984 and 8986 of Crawford & Moses’ Digest, as amended -by later acts, for purpose provided in ads 62 of 1927 and 164 of 1929. The injunction ivas sought upon the alleged invalidity of said acts 62 and 164 because neither act contained any procedure to be followed in issuing bonds, nor any authority to secure same by a mortgage upon the school property; and because appellees were proposing to cover two purposes in one issue of bonds.

Said acts 62 and 164 were passed by the Legislature to enlarge the purposes for which, bonds might be issued by a special school district so as to embrace debts which had been incurred for general operating expenses. This court ruled in the case of Phillips v. Baker, 172 Ark. 726, that § 8984 of Crawford & Moses’ Digest was not broad enough to authorize the issuance of bonds by a special school district to make ordinary repairs or for the operation of schools. ’Subsequent to this decision said acts 62 and 164 were passed to authorize the issuance of 'bonds by special school districts to pay their debts, whether incurred for the construction of buildings or the operation of the schools or other legal purposes, in addition to the authority already conferred on said district to issue bonds under and in accordance with act 180 of the Acts of 1917 of which §§ 8984 and 8986 of Crawford & Moses’ Digest are parts. Phillips v. Baker, 174 Ark. 403. All three acts related to the same subject, and the rule is that analogous acts or acts in pari materia should be read together in order to ascertain and carry out the intention of the Legislature. Said acts 62 and 164 were passed to supplement said act 180 as subsequently amended. When these acts are read together, the procedure to be followed in issuing bonds is set out and authority is conferred to execute mortgages to secure same. This construction of the three analogous statutes disposes of two objections to the validity of act 62 of 1927 and 164 of 1929. The other objection to the validity of the acts has been disposed of by this court in the case of Indian Bayou Drainage District v. Dickie, 177 Ark. 728. It was said in that case that “If separate bond issues may be authorized for each purpose, a single issue would suffice for both purposes.” The instant case in this particular is ruled by the principle therein announced and quoted above.

No error appearing, the decree is affirmed.


author: Mehaepy, J.

text:
    Smith v. Kirkpatrick Finance Company.
    Opinion delivered June 16, 1930.

      Horace Sloan, for appellant.

      Roy Peniaz, for appellee.
   Mehaepy, J.

The Jonesboro Machine Company was a corporation engaged as a retail dealer of automobiles at Jonesboro, Arkansas, in November and December, 1928, and for a number of years prior thereto. N. B. Stroud was the president and general manager of the corporation, owned a majority of the stock and was in absolute control of the affairs of the corporation. On November 28, 1928, N. B. Stroud, as general manager of the corporation, sold an automobile to himself and wrote a series of' twelve notes for $45 each, payable to the Jonesboro Machine Company, signed the notes himself, sent one of the boys into the warehouse where the corporation kept its automobiles to get the number of the car Stroud was driving. In each of the notes the automobile was described and its number given. The notes describing the car retained title in the corporation to the automobile until all the notes were paid. It ivas also stated in the notes that, on default of payment of said notes at maturity or any of said payments, all should become due and „ Stroud forfeited his right under the contract. Stroud indorsed on the back of the notes the following' words: “Jonesboro Machine Co., by N. B. Stroud, President,” and sold and transferred said notes to Paul Smith. This automobile claimed by Stroud to have been purchased from the corporation remained with the other cars belonging to the corporation which were kept for sale, had a dealer’s tag on it and nothing to indicate that it was owned by Strond or that it was not a car belonging to the corporation kept for sale just as its other cars. On December 1, 1928, this same car was sold to Pearcy Marlar for $812.10. Marlar paid at the time he purchased the car $243, leaving a balance of $569.10 payable in twelve monthly installments of $47.47, beginning January 1, 1929. This was a conditional sales contract, the cor poration retaining title, the notes being similar in this respect to the notes executed by Stroud to the corporation. The Jonesboro Machine Company sold the notes executed by Marlar before maturity to the Kirkpatrick Finance Company. Four or five months later the Jones-boro Machine Company was adjudged a bankrupt. Mar-lar paid all of the purchase price of the automobile to the Kirkpatrick Finance Company except $332. He failed to make the payments when due, and the Kirkpatrick Finance Company brought suit in the chancery court of Craighead County against Marlar, Paul Smith and J. Q. Lane, as trustee in bankruptcy of the Jonesboro Machine Company, alleging that Marlar had purchased the car under a conditional sales contract from the Jonesboro Machine Company and that the balance due was $332, and caused a writ of specific attachment and summons to be issued and served on Marlar attaching- the automobile. He alleged that Lane was the trustee in bankruptcy, and Paul Smith claimed a prior lien on the automobile.

Paul Smith filed an answer alleging that Stroud had purchased the car, and that he had purchased the notes from the Jonesboro Machine Company before maturity, claimed title to the automobile, and that his title was superior to any interest claimed by the Kirkpatrick Finance Company. - He claimed that he purchased the notes prior to the time the car was sold to Marlar, and that he was an innocent purchaser for value before maturity. He also alleg-ed that the Kirkpatrick Finance Company had waived any title it bad by suing- for a money judgment with an attachment instead of suing iu replevin for the automobile. It was also alleged that Marlar was insolvent, that the automobile was deteriorating, and asked that a receiver be appointed, that the plaintiff’s complaint be dismissed, and that he be declared the owner of the automobile.

Pearcy Marlar also bled answer and cross-complaint in which he denied the allegations in Smith’s cross-complaint.

There is very little conflict, in the evidence, and the evidence will not be set out in full, but attention called to such parts of it as appears necessary in order to understand the facts.

N. B. Stroud was president and general manager of the Jonesboro Machine Company, a dealer in automobiles. Stroud owned a majority of the stock in the Jones-boro Machine Company and had absolute control and management of its affairs. No one connected with the Jonesboro Machine Company except the bookkeeper knew anything- about Stroud selling the car to himself, and the evidence does not show that the matter was discussed with the bookkeeper. She knew about it evidently because she was bookkeeper.

The court entered a decree in favor of the appellee and ordered the automobile sold if the judgment was not paid and found against Smith. N. B. Stroud, the general manager of the Jonesboro Machine Company, made the contract and notes, signed them himself and then indorsed them as president of the company and sold them to Smith. This, if it could be said to be a sale at all, was a sale by Stroud to himself. One cannot make a contract with himself. Appellant calls attention to 2 C. J. 702, holding that a sale to an agent is not absolutely void, and that it may be ratified by the corporation. But here there -was no sale in good faith. Not only was this an attempted sale by Stroud, io himself but there was no delivery and no intention to deliver. The automobile remained ip the possession of the corporation just as it was before, had a dealer’s tag on it, was apparently a new car and was in fact sold two da}rs after the notes were delivered to Smith, to Marlar as a new car. No pretense was made of delivery. “For as we understand the law, in order to make the sale effectual against subsequent purchasers, or attaching creditors, there must have been actual delivery; a visible and substantial chang’e in the possession.” Davis Mallory & Co. v. Meyer & Co., 47 Ark. 210.

This court later held that it was not necessary in all cases that there be actual and visible possession by the vendee, and the court said: “Whenever there is a completed contract of sale and an agreement by the vendor to hold as bailee for the vendee in lieu of an actual delivery, the sale is complete against creditors, if it is not otherwise fraudulent. ’ ’ Shaul v. Harrington, 54 Ark. 305.

Under the doctrine announced in the last case there was no sale here. If the parties intend that the property is to be resold by the dealer in the ordinary course of business, this will enable him to transfer title to a bona fide purchaser. 24 R. C. L., p. 458.

It was not only the intention of Stroud and the Jones-boro Machine Company to sell the ■ automobile, but Mr. Smith either knew this or was in possession of facts sufficient to put him on inquiry. He talked to Mr. Stroud about turning in cars, and was advised that Stroud always turned them in in three or four months; turned them in so he would not have to take any loss. This necessarily meant that he sold them as new automobiles. The rule announced in the case of Buchanan v. Com. Investment Trust Co., 177 Ark. 579, is applicable here, and the decision in that case is decisive here. The decree is affirmed.


author: Butler, J.

text:
    Maloney v. State.
    Opinion delivered April 14, 1930.

      Jeff Bratton, for appellant.'

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

Appellant was tried and 'convicted on a charge of selling whiskey, and sentenced to serve one year in the penitentiary. He urges, for reversal of the judgment, error of the court in refusing to grant a continuance because of the absence of his attorney, and because the evidence was not sufficient to support the verdict, and for admission of improper testimony.

The indictment was returned on the 4th day of December, 19;29, and on the 9th he appeared, by his attorney, and filed a motion for continuance, because of the sickness of his attorney, M. P. Huddleston. The motion itself discloses that the attorney was seriously sick at the time he was alleged to have been employed. It is also disclosed by the record before us that he was represented by an attorney at the time of filing his motion, and that the same attorney represented him in the trial of his case. There was no abuse of discretion in the trial court in the refusal to grant the -continuance.

The appellant also argues that the court erred in permitting a witness to testify that, previous to the transactions which resulted in the indictment, he had made search of defendant’s premises on two occasions, one about four or five months, and one about two or three months before the alleged date of the sale for which defendant was indicted, and found whiskey and empty containers, which had an odor of whiskey.

In permitting the introduction of this testimony the court cautioned the jury not to consider it as evidence showing the sale with which defendant was charged, but only as tending to show the business in which defendant was engaged, and in its instructions the court renewed its caution to the jury. With the cautionary charge, there was no emor in the admission of this testimony. Taylor v. State, 169 Ark. 589, 276 S. W. 577; Newcomb v. State, 177 Ark. 509, 7 S. W. (2d) 802; Johnson v. State, 177 Ark. 1051, 9 S. W. (2d) 233; Evans v. State, 177 Ark. 1076, 9 S. W. (2d) 320.

We have examined the record, and find that there was substantial testimony to support the verdict. An eyewitness testified positively to seeing appellant make the sale of the liquor, and this testimony is corroborated by other testimony in the case. While there was testimony tending to impeach the eyewitness, and show that her reputation for truth and morality was bad, and' there was also testimony contradicting her statements, the jury were the sole judges of the credibility of the witness, and it was their province to pass upon the conflicts in and the weight of the testimony, and the fact that the testimony is conflicting, and that there was evidence tending to impeach the veracity of the State’s witness, furnishes no grounds for reversal. This rule of law has been many times declared by this court, .and the judgment of the court below will be affirmed.


text:
    Warren & Ouachita Valley Railway Company v. Ederington.
    Opinion delivered June 16, 1930.

      Fred L. Purcell and Wynne S Miller, for appellant.

      Wilson é Martin, for appellee.
   Butler, J.

Appeal from a judgment awarding damages to the appellee for personal injuries sustained.

The appellee was in the employ of the Warren & Ouachita Valley Railway Company, appellant, as a motorman on its motor passenger car operating between War-Ten and Tinsman, the shops being located in Warren. Appellee was first employed by the appellant about 1920 and worked as a. helper of the master mechanic in the shops of the appellant for a time, after which he began operating the motor car, first operating it at intervals until, more than a year preceding the occurrence out of which this litigation arises, he was the regular employee operating said motor car. On the 20th day of December, 1926, the appellee suffered an injury to Iris thumb. In some six or nine days thereafter blood poison developed which necessitated the amputation of his arm near the shoulder.

The testimony relative to the occurrence of the injury and the attendant circumstances is in direct conflict. That on the part of the appellee is to the effect that in the forenoon of the 20th day of December, 1926, and after the appellee’s first round trip on that day, he discovered that an instrument called a valve lifter which was necessary for the proper operation of the engine could not be found. He requested another from the master mechanic, foreman of the.shops and the superior of the appellee, who had employed him and under whose direction he worked. The appellee was informed by the master mechanic that he did not have another valve lifter, and directed him and a negro helper to make one. The lifter was a V-shaped instrument with a handle, and the foreman picked up> from a point in the shop a piece of automobile spring and handed it, with a tool called a cold cutter, to the appellee, directing him where to place the cutter, how to place and hold it and the piece of spring, and, at the same time, directing the helper to strike the cutter with a sledge hammer. The cutter was made of steel, tempered so that it would cut cold iron. It was an instrument measuring about four or five inches one way and one and a half inches the other, through which was an eye for a handle about two feet long. The instrument and the handle presented in size and appearance an Indian tomahawk, having a cutting edge with a head on the other end on which bloAVs might be given in forcing the cutting edge into the iron. The negro helper, in obedience to the orders of the foreman, struck the cutter one or more blows which were not sufficient to cause the cutter to bite into the iron spring. The foreman directed him to strike harder, and thereupon, while appellee was holding the cutter by the handle and on the automobile spring, he struck the base of the head of the cutter a very heavy blow, breaking a sliver from one corner of the head of the cutter which passed with violence through the thumb of the appellee and on beyond, striking and sticking into the wall. At that time the foreman had gone. The appellee went immediately to the appellant’s physician where first-aid treatment was given and the thumb bound up. The injury gave appellee no great inconvenience and he continued to operate the motor ear, keeping his thumb protected all the while until December 29, following. On the morning of the 29th of December, he told the foreman that his thumb was giving him pain, and that he would have to see the doctor. The foreman informed him that, after he had made his second run, he could then go and see the doctor. Appellee worked about two hours longer in the shops and then told the foreman that he felt unable to take the car out. He was told there was no one else to do this, so he operated the car on the second round, and after he reached Tinsman he became violently ill. A local physician treated him at Tinsman, and he was returned to Warren and treated for a couple of days at his home, and then taken to a local hospital where he stayed for perhaps forty days. During all of that time he suffered great pain, the cause of which was blood poison. Appellee’s thumb was first removed, then his arm, and finally it became necessary to make another amputation close up to the shoulder. A short time after the injury the appellee examined the cold cutter and discovered that where the sliver was broken off the steel showed a mark which witnesses call a water crack and which, witnesses say, was due to improper handling during the process of tempering, causing the crack to form. There was testimony to the effect that the degree of temper or hardness could be known from the color — that where the color was light gray the steel was tempered too much, rendering it hard and brittle, and that the appearance and color of the cutter indicated this condition. Appellee testified that at the time the cutter was handed to him the foreman stated that he had tempered the cutter and that it was all right.

It is undisputed that the disease and the condition resulting from the operations have rendered, and will render, the appellee unable to perform manual labor, and that he is now suffering and will continue to suffer pain. There was testimony to the effect that the injured thumb was carefully tended and protected and the wound was the direct and proximate cause of the infection.

Regarding the circumstances connected with the attempted making of the valve lifter, as already stated, the evidence is in conflict. The foreman testified that he was not present and did not direct the appellee to make the valve lifter, did not hand him the cold cutter and did not select for him the piece of automobile spring out of which it was to be made. The negro helper testified that the foreman was not present, and that appellee himself called him to assist in the making of the instrument. On this state of the testimony, it-was the theory of the appellee that his injury was occasioned by the negligent conduct of the foreman in directing him to work with a tool which was unsafe because of its improper tempering and, further, by the heavy blow struck by the helper -at the direction of the foreman. On the other hand, it was the theory of the appellant that the appellee, without the knowledge of the foreman, selected the cold cutter and the piece of automobile spring and chose his own method for the performance of the work, and that whatever was done by the helper wras at the request and direction of the appellee, himself, for all of which the appellant was not liable. Moreover, that the blood poisoning was the result of ap-pellee’s negligence in not obeying the directions of the physician and not properly protecting the injured thumb.

We think-the respective contentions are supported by sufficient substantial evidence to warrant their submission to tlie jury, and that the amount of damages a.warded is not excessive. It follows that tlie contention of the appellant that a verdict should have been directed in its favor in the court below cannot be sustained. It is insisted that there is no evidence that the cold cutter was defective, or, if so, that its condition was known to, or could have been discovered by, the appellant in the exercise of ordinary care. In this the testimony on the part of the appellee is ignored. As we have seen, the appellee testified that the master himself selected and g'ave him the cold cutter, and that there was no other that he knew of in the shops. There was evidence that the color of the cold cutter indicated its having been too highly tempered, and that the water crack could have been discovered by an inspection of the instrument. Moreover, there was evidence that the foreman had tempered the cutter himself, and that the streak or water crack was caused by talc-ing the cutter out of the water too quickly while tempering it. From what we have said it is apparent that the appellant is in error when it states that the defect was assumed simply because the tool slivered, and, if said defect did exist, it was known, or could have been discovered by reasonable inspection.

It is next insisted that, because the cutter used was a simple instrument, no duty of inspection rested upon the appellant, and in support of this position is cited the case of Arnold v. Doniphan Lbr. Co., 130 Ark. 487. In that case a demurrer to the complaint was sustained, the court saying: “Few tools could be simpler in their construction and use than the hatchet, and the defect which occasioned the injury was developed by its use by the servant himself. ’ That case is distinguished from the case at bar in this: the defect of the hatchet in the Arnold case was developed by its use by the servant himself, while in the instant case the defect in the cold cutter was occasioned by its being improperly tempered, so that a crack was formed, and it was rendered too brittle, and this, not the act of the appellee, but of the foreman who selected and gave the tool to the appellee with directions to use it. In Arnold v. Doniphan Lbr. Co., supra, we said: “This doctrine (‘simple tool’), as such, has never had recognition by this court; yet the principles upon which that doctrine is based have been recognized in a number of decisions of this court. That is, the simplicity of a tool, and the -skill or lack of it required in its use, have been treated as questions to be considered in determining the degree -of care to be used by the master in the selection of such tools for the purposes of his servant, and of the directions and instruction which should be given the servant in its use.” In the case at bar, accepting the testimony of the appellee, he had no choice in the selection of the tool nor in its preparation for use. The selection of the tool was made by the foreman, and the defect in said tool caused by the manner in which it had been tempered, which defect might have been discovered by casual observation.

It is also insisted that the injury and its resulting consequences were due to an “adventitious or fortuitous circumstance.” There are few occurrences which are wholly accidental in their nature. We cannot say as a matter of law that the injury in this case was due to accident, for, if the tool was too highly tempered and too quickly withdrawn from the water, it may have been reasonable to anticipate that it would break or sliver upon receiving a heavy blow. Appellee quotes from 3 La-batt on Master & -Servant, § 1042, where the rule is laid down that the master is not liable where the defect is secret or latent, or not discoverable on inspection and that no culpability is predicable where the most careful scrutiny would not have disclosed the defect) or where the appliance was apparently in sound -or good condition, and that injuries due to conditions of this character are unforeseen accidents. It was a question for the jury under the proof in this case to say if the defect could or could not have been discovered by a reasonable inspection, or whether or not there was anything to suggest a suspicion of unsoundness.

In LaGrand v. Arkansas Oak Flooring Co., 155 Ark. 592, cited and relied on by the appellant, it was held that if the master, in the exercise of ordinary care to furnish a safe place and tools, could not have reasonably anticipated or foreseen the injury, he would not be negligent in failing to provide means to prevent it. The principle stated in that case is applicable to the case at bar, and in that case, as in this, the question was submitted to the jury.

Instruction No. 14 requested by the appellee and given by the court, and instruction No. 5 given at the instance of the appellant, submitted to the jury the respective theories of the parties to this suit. The other instructions given may be said to be explanatory and illustrative of these propositions, except instruction No. 11 requested and given for the plaintiff and instruction No. 7 given at the instance of the appellant, which last submitted the question of an efficient supervening cause being responsible for the injury. We think the instructions, taken as a whole, fairly present the issues.

The tenth and eleventh assignments of error urged to the court’s attention allege that the court erred in its charge to the jury in instruction No. 11 and instruction No. 14, requested by the plaintiff. Instruction No. 11 submits the question of liability for the negligence of a fellow servant, and the further question as to whether or not the negro helper was a fellow servant of the appellee. This instruction, we think, was more favorable to the appellant than it should have been, for it would have been immaterial whether the helper of the appellee was negligent .in the manner of his striking the cutter, for, if the cutter was defective in the manner heretofore stated and was prepared and selected by the master for the use of the appellee, appellant would be liable without regard for the care or lack of care of the helper in striking the cutter, if the defect was the cause of the sliver 'breaking off.

Instruction No. 14 complained of has been approved by this 'court in the ease of Hunt v. Hurst, 170 Ark. 644, where the facts were quite similar to those of the instant case. Instruction No. 14 is as follows: “You are instructed that the burden of proof is upon the plaintiff to prove that it was the duty of the defendant to exercise reasonable care in furnishing the plaintiff reasonably safe tools with wliich to work, the defendant being required in such respect to exercise the same degree of care and caution which would have been exercised by an ordinarily prudent man under the same circumstances. And if you find from a preponderance of the evidence in this case that the cold cutter furnished plaintiff, if you believe and find from a preponderance of the evidence that it was furnished to the plaintiff and not selected by the plaintiff himself from the tools of defendant for use in the performance of his duties, was in a defective or dangerous condition, which condition would have been discovered by the employer in the exercise of ordinary care, and if you find that such defective or dangerous condition was not apparent to the plaintiff, and would not have been discovered by him in the exercise of reasonable care for his own safety, and if you further find that the plaintiff suffered an injur}' on account of such alleged defective condition of the cold cutter, then you are told that the defendant was guilty of negligence. In other words, it is for you to determine whether the defendant was under obligation to inspect the cold cutter in question before delivering it to plaintiff, you being instructed that the duty of the defendant under such circumstances was to act as an ordinarily prudent man would have done under similar circumstances.”

By an examination of the instruction approved in Hunt v. Hurst, supra, it will be seen that the instruction above set out follows exaetty the language of the Hunt case except where change in the language is necessary to make it applicable to a slightly different state of facts.

The final assignment of error is that the court erred in giving appellee’s instruction No. 15, because it ignored the defense of assumed risk and failed to take into consideration the contention that an intervening cause was the proximate cause of appellee’s present condition. Instruction No. 15 is as follows: “If you find from a preponderance of the testimony that the plaintiff’s injury was caused by the negligence of the defendant and the puncture of his thumb by the piece of the cold cutter was the proximate cause of his injury and all the attendant pain and suffering resulting therefrom, then you are instructed that the defendant is liable for said injury, and for'all the consequences and effects of same, even though you might believe from the evidence that, if the plaintiff had not taken blood poison after receiving the injuries that said injuries would have been only temporary, provided plaintiff exercised due care for the protection of his injured thumb.”

It will be seen from the last provision of this instruction that it does not ignore the contention of the supervening cause, and, when read in connection with appellee’s instruction No. 4, and appellant’s instruction No. 4, it is sufficient on the question of assumed risk. This instruction is unlike that held erroneous in Natural Gas & Fuel Co. v. Lyles, 174 Ark. 146, Garrison Co. v. Lawson, 171 Ark. 1122, and Temple Cotton Oil Co. v. Kenner, 176 Ark. 17, in that it did not undertake to tell the jury to “find for the plaintiff.” It is often impracticable to state the entire law of the case in a single instruction or to take notice of each and all of the defenses that might be inter-posed. Unless an instruction is in conflict with other instructions, the mere fact that it is incomplete will not render it prejudicial if from an inspection of it and a comparison with other instructions given the meaning of the court is clear.

In conclusion, we may say that the trial judge fairly and correctly stated the law, when the charge is considered as a whole, and, while there was a direct conflict in the testimony as to all the material issues, the jury were the sole judges of the credibility of the witnesses, and it was the opinion of the jury that the testimony tending to support the theory of the appellee was reasonable and true, and, as there was substantial testimony to support this conclusion and finding, it cannot be disturbed. The judgment is therefore affirmed.