text:
    Oliver Construction Company v. Erbacher.
    Opinion delivered November 21, 1921.
    1. Contracts — construction.—Where á contractor agreed to become liable for all outstanding bills against a subcontractor “for work and labor and material, services done for and furnished to” the subcontractor, this did not bind the contractor to pay the meat bill of the subcontractor incurred in boarding employees.
    2. Contracts — construction.—A stipulation in the contract between a road contractor and the road district that the contractor should pay “for work and labor done, material, machinery, appliances and supplies of every kind and nature furnished and used in and about the work contemplated in the contract” did not bind the contractor to pay the meat bill of a subcontractor incurred in boarding employees.
    ■3. Principal and agent — authority op agent. — An agency cannot be presumed, but must be established by proof, and one dealing with an agent is bound to ascertain the extent of his authority.
    4. Principal and agent — authority op agent. — An agent of a contractor, authorized to pay bills for labor and materials entering into construction of a road, was not authorizéd to bind the contractor to pay for meat furnished to a subcontractor, which was used in feeding employees.
    Appeal from Faulkner Circuit Court; George W. Clark, Judge;
    reversed.

      Golemcm, Robinson <& House, for appellant.
    1. In the contract between the appellant and Rich, the former agreed to assume the payment of bills owed by the latter for work, labor and material. It did not obligate appellant to pay debts of a different nature.
    Before appellees could recover under this contract, they must show by the contract itself that the parties at the time of its execution had appellees in contemplation, and intended a direct benefit to appellees by virtue of the agreement. 121 Ark. 414; 128 Id. 149; 101 Id. 223.
    2. Appellees failed to establish a valid oral agreement between appellant and themselves because, 1st, there was no consideration for Smith’s alleged promise; 2nd, the alleged promise not being in writing, falls within the statute of frauds, and 3rd, the uncontradicted evideuce shows that he had no authority to ipake such agreement binding upon appellant. C. & M. Digest, § 4862; 3 Cook on Corporations, 7th Ed., § 720 and cases cited. The burden of proving Smith’s authority was on appellee. 21 R. O’ L. par. 36. One who deals with an agent is bound to ascertain the nature and extent of his authority. 55 Ark. 627; 92 Id. 315; 94 Id. 301. The authority of an agent to bind his principal will not be presumed, neither is it proved by his own acts and declarations. 132 Ark. 155; 140 Id. 306.
    3. Appellee was not a party to the contract between appellant and the road improvement district, neither was the subcontractor who incurred the debt to appellee a party to that contract. There can be no liability on the part of appellant to appellee for the subcontractor’s debt, growing out of the original contract. 121 Ark. 414; 128 Id. 149; 101 Id. 223.
    Moreover, it was too late to plead liability under the original contract, at the time the amendment was offered. The court erred in reopening the case. C. ■& M. Digest, § 6529; 129 Ark. 253; 138 Id. 606; 75 Id. 465.

      J. II. Dwm, for appellees.
    1. As to the oral agreement, it is well settled that a promise to one party to pay a third party, upon sufficient consideration, is an original undertaking, and not within the statute of frauds. 103 Ark. 407; 31 Id. 411.
    2. Appellees are beneficiaries under the memorandum agreement between appellant and Rich, and also under the contract between the appellant and the road improvement district, and as such they had the right to sue. 31 Ark. 411; Id. 155; 46 Id. 132; 93 Id. 346.
    3. It was within the discretion of the court to permit the amendment of the complaint. 1 Standard, Enc. of Proc. 874-876.
   Humphreys, J.

This suit was commenced by appellees against appellant in a magistrate’s court in Cadron Township, Faulkner County, Arkansas, to recover the sum of $181 for meat furnished by appellees to J. F. Rich, a subcontractor under appellant, which had a contract with the Conway-Damascus Road Improvement District to construct a road from Conway to Damascus- and had given a bond under the provisions of Act No. 466 of the General Assembly of the State of Arkansas approved June 2,1911. (Gen. Acts 1911, p. 462).

Under the allegations of the complaint filed before the justice of the peace it was sought to charge appellant with the debt upon two grounds: first, that appellant had bound itself by written contract with J. F. Rich, its subcontractor, to pay said indebtedness as a part of the consideration for surrendering his -contract for grading the road back to appellant; and, second, that appellant bound itself by oral agreement with appellees to pay said indebtedness upon appellees’ release of the obligation against J. F. Rich, its subcontractor.

A default judgment was rendered in the magistrate’s court for said sum against appellant, from which an appeal was duly prosecuted to the circuit court, where the cause was tried de novo by the circuit court sitting as a jury by the consent of the parties. At the conclusion of the testimony the court took the case under advisement until a later date in the term, at which time, over objection and exception of appellant, the case was re-opened, the complaint amended to also charge liability against appellant for the indebtedness under the provisions of the original contract entered into between appellant and the Conway-Damascus Road Improvement District for the construction of the road, and additional evidence introduced in support of the amendment. Thereafter the court rendered a judgment in favor of appellees for the sum of $181 with six per cent, interest thereon from December 20, 1920, from which an appeal was duly prosecuted to this court.

The written memorandum of agreement between appellant and its subcontractor, J. F. Rich, upon which appellees rely as fixing liability for the account upon appellant, is as follows: "Whereas, on August 3, 1920, the Oliver Construction Company and J. F. Rich, did onter into a contract whereby the said J. F. Rich did agree to do certain work in the construction of the road being constructed by the Conway and Damascus Road District of Faulkner County, Arkansas, for the consideration set forth in said contract; and whereas, the said J. F. Rich now finds himself unable to proceed with said contract and desires to release therefrom; and whereas, certain sums are due to said J. F. Rich for said work, and said J. F. Rich is indebted to various parties for work and labor and material, services done for and furnished to J. F. Rich in and about the prosecution of said work; now in consideration of the premises the said J. F. Rich does hereby release and surrender to the Oliver Construction Company said contract and all rights thereunder, and does acknowledge full payment and settlement of all amounts due and owing to him from the Oliver Construction Company thereunder; and the Oliver Construction Company does hereby agree that it will assume and pay off all valid claims against the said J. F. Rich for work and labor and material, services and done for and furnished to said J. F. Rich in and about the prosecution. of said work. This................ day of November, 1920.” Signed by Oliver Construction Company and J. F. Rich.

The clause in the original contract between appellant and the Conway-Damascus Road Improvement District under which the appellees seek to charge appellant for the meat bill is as follows: “The contractor shall pay promptly when due for work and labor done, material, machinery, appliances and supplies of every kind and nature furnished and used in and about the work contemplated in the contract; and the contractor shall file, within ten days after receiving the notice provided for in paragraph 10 of this contract, a bond as provided by section 2 of act No. 446 of the G-eneral Assembly, approved June 2, 1911. Should the contractor fail to file said bond, the board may, at its option, require the contractor to file at such time as it may direct, with it, written receipts and releases from all persons and corporations furnishing any material, labor, machinery, or appliances in said work or any part thereof.”

The evidence responsive to the issue of whether appellant became responsible' for the indebtedness under an .oral contract assuming it, is in substance, as follows:

Appellant entered into a contract with the Conway-Damascus Road Improvement District to build a road from Conway to Damascus 'in Faulkner County. J. F. Rich procured a contract from appellant to grade the road. During the time he was grading the road he maintained boarding camps for his laborers, and in settling with the laborers at stated intervals deducted their board bills from their wages. The account sued upon was a balance due appellees for meat furnished by them for consumption in the boarding camps. J. F. Rich issued a check on the Conway Bank to appellees to cover the account. Before cashing same, it developed that Rich was unable to complete his contract, and he was released therefrom by appellant.

■ J. E. Erbacher, one of the appellees, testified that Rich requested the return of the check, stating that appellant would pay the amount; that he interviewed R. S. Smith, a representative of 'appellant, who agreed to pay the account, and requested an itemized statement thereof; that he returned the check, and therefore looked to appellant for the debt; that he itemized the account as per request and gave it to Smith, who agreed to take it up; that he called on Smith a week later, who then said, if anything was due J. F. Rich under the contract after paying the labor, he would apply it on the debt.

Charley Jones testified, over the objection and exception of appellant, that during the time J. F. Rich was grading the road the Jones Milling Company furnished him feed and flour to the amount of $597.05 for which the Oliver Construction Company, by its president, R. B. Oliver, later executed its note payable in sixty davs after date.

R. S. Smith testified that he was an agent of appellant, and as such had charge of the books and payrolls for it in connection with the construction of the road; that he deducted the board bills from the wages of the laborers on the payrolls turned over to him by J. F. Rich before paying them; that he told appellees if any money was left after paying the labor which belonged to J. F. Rich he would pay it on the meat bill; that he had that authority; that he did not agree to pay the bill, as he had no authority to do so.

W. R. Emmit, vice-president and secretary of appellant, testified that he did not agree to pay the account, and that R. S. Smith had no authority beyond paying labor and material with money furnished him for that purpose; that Smith had no authority to promise to pay other accounts.

Appellant insists that appellees’ claim is not within and protected by its written contract with J. F. Rich, assuming certain of his indebtedness, nor the original contract between it and the road district. ' We think the contention is correct. The contract between appellant and Rich, in specific terms, covered bills for work, labor and material only; and while the language in the original contract between appellant and the road district is extended to include supplies, the context clearly indicates that it relates to supplies which should enter into the construction of the road. We find nothing in the language or context, when given a natural construction, which would include meat furnished to a sub-contractor. Thus interpreting the meaning of the contract, it becomes unnecessary to determine whether any privity existed between the promises in the contract and appellees.

Appellant also insists that it is not liable under oral contract to pay the account. The contention is that R. S. Smith was without authority to make the alleged oral agreement assuming the payment of the debt; that, if made, it was without consideration, and also within the statute of frauds. It is true that J. E. Erbacher testified that R. S. Smith was the representative of appellant, but that he did not pretend to testify as to the extent of his authority. The rule is well established that an agency cannot be presumed, but must be established by proof, and that one dealing with an agent is bound to ascertain the extent of Ids authority. Liddell v. Sahline, 55 Ark. 627; Latham v. First National Bank, 92 Ark. 315; Wilson v. Shocklee, 94 Ark. 301; Wales-Biggs Plantation v. Grooms, 132 Ark. 155; Pierce v. Fioretti, 140 Ark. 306.

E. S. Smith, the book-keeper, and W. E. Emmit, vice-president and secretary of appellant, testified that the-authority conferred upon Smith was limited to the payment of accounts for labor and material entering into the construction of the rpad with money furnished him for that purpose. According to the undisputed evidence therefore, the alleged oral contract of Smith,, assuming to pay the meat bill, was made without authority, if made at all. In this view, it is unnecessary to determine whether there was a consideration for the alleged promise, or, if made, whether within the statute of frauds.

The case appears to have been fully developed, and. no liability being established against appellant under the evidence, the judgment is reversed, and the cause dismissed'.


source: Caselaw Access Project

author: McCuleooh, C. J.

license: Public Domain

text:
    West v. State.
    Opinion delivered November 28, 1921.
    1. Jury — competency-—opinion already formed. — In a criminal case one juror testified that he had formed an opinion as to accused’s guilt from reading newspapers and from a discussion between two of the jurors in a former trial. Another juror testified that he had heard a part of the argument on a former trial and had formed an opinion as to accused’s guilt. Both jurors testified that they .could lay aside their opinions and be controlled by the testimony. Neither of them stated that he had heard a narrative of the facts in the case nor what purported to be the • testimony of the witnesses. Held that a finding of the trial judge that they were not disqualified will be sustained.

      2. Jurors — competency—opinion already formed. — The entertainment of a preconceived opinion about the merits of a criminal case renders a juror prima faoie incompetent, and to render him competent it must he shown that such opinion is based on the rumor, or is not of a nature calculated to influence an intelligent and fair-minded man, even though he states that he can lay aside the opinion and try the case upon the evidence ad- . duced at the trial.
    3. Criminal law — evidence—conduct of bloodhounds. — Upon proof that a bloodhound has been trained to follow the trail of human beings, it was competent to prove that the hound was taken to the place of an alleged rape, shortly after the crime was committed, that the dog picked up the trail and followed it several blocks to the car line, where defendant was shown to have boarded the street car..
    Appeal from Pulaski Circuit Court, First Division; J. W. Wade, Judge;
    affirmed.

      Mehaffy, Bonham S Mehaffy, for appellant.
    Four of the jurors who, on their examination, said they had formed or expressed an opinion as to the guilt or innocence of the defendant, were not competent to serve. 13 Ark. 741; 19 Ark. 159; 45 Ark. 170; 47 Ark. 185; 56 Ark. 583; 69 Ark. 322; 79 Ark. 132; 85 Ark. 68; 91 Ark. 579; 102 Ark. 183; 113 Ark. 304; 135 Ark. 524; 142 Ark., 479; 146 Ark. 582.
    The evidence was not sufficient to show that the dogs were properly trained nor were they properly handled. 46 Sou. 166; 16 L. B. A. (N. S.) 285; 116 S. W. 344.

      J. 8. TJtley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    Opinions formed on hearsay, rumor and from reading newspapers, are not sufficient to disqualify a juror. 72 Ark. 613; 79 Ark. 127; 80 Ark. 13; 85 Ark. 64; 101 Ark. 443; 103 Ark. 21; 10,4 Ark.'616; 109 Ark. 450; 113 Ark. 301; 114 Ark. 472; 141 Ark. 496.
    The testimony as to the bloodhounds being experts in their line was admissible, 'thfe proper foundation having been laid. 116 Ark. 227; 125 Ark. 471.
   McCuleooh, C. J.

This appeal is from a judgment of conviction under an indictment charging appellant with the crime of rape. The charge is that appellant assaulted and raped a certain young woman on the night of March 19,1921, in the city of Little Bock.

The assaulted female testified that on the night mentioned she rode home on a street car from her place of work, and walking a short distance after she debarked from the car she was met and assaulted by a negro man, whom she identified as appellant, and another negro, about whose identity she was uncertain.

It appears from the record that there was a former mistrial of the case before a jury which was discharged.

The first assignment of error relates to qualifications of several talesmen, each of whom appellant challenged peremptorily after the court had refused to sustain challenges for alleged canse, and later appellant exhausted all of his challenges. One of them testified that he had formed an opinion in regard to the guilt or innocence of the accused, and that the opinion was formed from reading newspaper accounts of the crime and from hearing a discussion of the case between two of the jurors at the former trial. He testified that he had heard two of the jurors discuss the merits of the case and had read the accounts in the newspapers and formed an opinion, but that he could not state that the opinion was formed exclusively from either of the sources mentioned, and further stated that he could lay aside that opinion and be controlled, in arriving at a verdict, by the testimony adduced at the trial. Another one of them testified that he had heard the case discussed, that he heard a part of the argument in the former trial of the case and formed an opinion, but that it was not a fixed or definite opinion, and that he could lay it aside and be controlled by the evidence adduced at the trial. Another one testified that he had formed an impression from what some one had told him what a juror in the former trial had said about the case, but that he had no fixed opinion, and could lay aside the impression thus obtained and try the case according to the law and the evidence adduced.

■ The law with reference to the qualifications of jurors lias been often discussed in the decisions of this court, and it is scarcely necessary to reiterate what has already been said. The oft-repeated rule announced is that the entertainment of # preconceived opinion about the merits of a criminal case renders a juror prima facie incompetent; and unless it is shown that such opinion is based on rumor or is not of a nature calculated to influence an intelligent and fair-minded man, the disqualification is established, notwithstanding he states that he can lay aside the opinion and try the case upon the evidence adduced at the trial. Polk v. State, 45 Ark. 170; Hardin v. State, 66 Ark. 53; McGough v. State, 113 Ark. 304. In the present instance it fairly appears' that the opinions of these talesmen were founded, not on narratives of what purported to be the facts in the case, but upon newspaper accounts and other discussions. It is true that one of them said that he heard a discussion between two jurors which influenced him in arriving at an opinion, and another stated that he had heard a portion of the argument at the former trial, but neither of them stated that he heard a narrative of the facts in the case nor what purported to be the testimony of the witnesses. An opinion thus founded is not one calculated, to influence an intelligent juror when he declares himself to be able and willing to discard such opinion and try the case upon the testimony adduced at the trial. In other words, it is such an opinion that can be discarded by an intelligent and fair-minded person without having testimony to remove it. Neither of the talesmen said that the opinion entertained was based on a statement by the jurors in the former trial of the facts or what purported to be the facts. The examination was had by the trial judge, and he was in situation to correctly determine whether or not the jurors entertained settled or fixed opinions which would likely influence them in the trial of the case. A due amount of deference ought, under the circumstances, to be given the finding of the trial judge on that issue, and his conclusions should not be discarded unless it appears that he erroneously accepted a juror who had a fixed opinion on the merits of the case, based on a narrative of facts traceable to a definite source and not based merely on rumor. Hardin v. State, supra; Reynolds v. United States, 98 U. S. 145.

Our conclusion is, therefore, that this casé falls within the rule announced in many of our decisions where such opinions have been held not to disqualify if the juror declares himself able and willing to lay aside the opinion thus formed.

In the progress of the trial the State introduced a witness who testified that he owned a dog trained to following the trail of human beings, and that on the night the offense was committed he took the dog to the scene of the crime, and he undertook to relate the action of the dog on that occasion. He testified, in substance, that when the place of the alleged assault was pointed out to him he took the dog there, that the dog picked up the trail and followed it several blocks to the car line. There was testimony tending to show that appellant, shortly after the crime was committed, boarded a car at the place where the trail followed by the dog ended. The witness testified that lie had trained the dog to follow human trail; that he and his brother had trained the dog, and that it had on other occasions followed human track. We have held in a number of cases that such testimony is competent, but in each case it was stated that there must be preliminary proof that the dog had been trained for this purpose or that the dog possessed the capacity of following the human trail. Holub v. State, 116 Ark. 227; Padgett v. State, 125 Ark. 471; Cranford v. State, 130 Ark. 101. It is contended in the present instance that there was not sufficient proof of the training or capacity of the clog, but we think that the proof was sufficient to justify the submission of this issue to the jury. The question of the weight of the testimony was one for the jury.

Finally, it is contended that the evidence is not sufficient to sustain the verdict, but it is clear from a perusal of the testimony that it is legally sufficient. The young woman alleged to have been assaulted testified concerning the assault and definitely identified appellant as the man who had committed the assault. Her testimony was sufficient to establish all of the elements of the crime of rape, and that appellant was the man who committed the crime. Appellant attempted to' establish an alibi and to show that the young woman was mistaken in her identification of appellant as the criminal, but the weight of all this testimony was a question for the jury, and we find that there was sufficient testimony to sustain the verdict.

Affirmed.


author: McCulloch, C. J.

text:
    Van Troop v. Dew.
    Opinion delivered November 28, 1921.
    1. Action — misjoinder—prejudice.—It was not prejudicial error to join several causes of action having sufficient identity to justify consolidation under Crawford & Moses’ Digest, § 1081.
    2. Torts — joint and several liability. — Separate and distinct tortious acts resulting in separate and distinct injuries, even to the same subject-matter, do not create joint liability on the part of the tort-feasors.
    3. Torts — joint and several liability. — Joint liability for separate acts of negligence exists where there is a common design or purpose or concert of action in the commission of the separate acts, or where such separate acts of negligence are concurrent as to time and place and unite in setting in operation a single force which produces the injury.
    4. Torts — joint and several liability. — Where several defendants working to a common purpose in the construction of a road opened and used gaps in plaintiff’s fences, and negligently let in cattle which destroyed plaintiff’s crops, defendants are jointly liable.
    5. Highways — construction—injury to crops — instruction.— In an action against a defendant who was employed to dig a ditch along a road which was being constructed through plaintiff’s fields, an instruction that defendant was not liable for any damage except .such as might have been suffered from the depredation of cattle which entered through the fence on the ditch was properly modified to make defendant liable for depredations through gates or gaps negligently left open by defendant.
    Appeal from Ashley Circuit Court; Turner Butler, Judge;
    affirmed.

      Coleman, Robinson & House, for appellants.
    There is no proof of a unity of interest, common design, purpose, or concert of action between the defendants held jointly liable in .this case, and the verdict is contrary to the law and the evidence.
    The instructions were conflicting, those given on behalf of plaintiffs holding that the defendants were liable jointly, and those given for defendants holding that each defendant was liable only for damages occurring from gaps which he individually made in the fences. The plaintiffs’ instructions took the question of individual liability from the jury, which was error. 38 Cyc. 491.
    There being no connection between the various defendants and no concert of action, the liability is several only. 38 Cyc. 484-5; 78 S. ~W. 92 and cases cited; 24 L. B. A. (N. S.) p. 1185.
    The evidence shows that Troop only made one gap in the fence, which he closed in a few days, whereas some of the other defendants made various gaps in the fences and made no effort to repair or guard them. By the verdict of the jury Troop is held liable for the greater damage done by the other defendants, when as a matter of fact any damage done through his negligence could have been but slight. The judgment should be reversed and dismissed as to Troop and Maddox and reversed and remanded as to Van Orden-'Winans Construction Co.

      Compere & Compere, for appellees.
    It was a question for the jury to decide whether or not appellants were liable jointly, and they have so found.
    The concurring negligence of two parties makes both liable to a third party injured, if the injury would not have occurred from the negligence' of one of them only. 61 Ark. 381; 62 Ark. 118; 73 Ark. 112.

      Where separate and independent acts of negligence of two parties are the direct causes of a single injury to a third person, and it is impossible to determine in what proportion each contributed to the injury, either is responsible for- the whole injury, although his act alone might not have caused the entire injury. 26 E. C. L. 764, and 767; 77 Neb. 351,109 N. W. 367; 25 Ohio St. 255; 18 Am. Eep. 298; 207 S. W. 724; 190 S. W. 612; 41 Mo. 484; 97 Am. Dec. 283; 185 S. W. 170;. 38 Cyc. 1159; note to 73 Am. Dec. 134-137. See also 15 Ark. 452; 29 Cyc. 487-8; and 64 N. Y. 138.
   McCulloch, C. J.

W. E. Dew, one of the appellees, held a lease for the year 1920 and other years on a farm in Ashley. County through which the Wilmot Eoad Improvement District constructed a public road. The other appellees were his sub-tenants, all of whom separately cultivated and produced crops of corn and cotton. There were about 300 acres in cultivation on the farm, enclosed by a 4-wire fence around the- entire premises, there being no intersecting or cross fences. The construction of the road was begun in October of that year, and it occupied a right-of-way 60 feet wide through this farm. The Oliver Construction Company, one of the defendants in this action, entered into a contract with the road improvement district to construct the road and made sub-contracts with the other defendants. Appellant Van Troop took the contract for the grading and ditching, and appellant Maddox was his foreman. Appellant Van Orden-Winans Construction Company (a corporation) took the contract for what is termed the gravel work in the 'construction of culverts or bridges, and some of this work was sublet to L. L. Winans, one of the defendants. It is alleged somewhere in the pleadings that E. O. McDermott and E. L. McDuffie took the contract for removing fences. The farm occupied by appellees was entered for the purpose of constructing the road, the fence was broken, and, as is alleged in the complaint, it was not replaced for a considerable time, and cattle were permitted to enter at will and to destroy the crops. This is an action at law instituted by appellees against all of said parties jointly to recover damages resulting from the destruction of the crops by the depredation of cattle. Each of the appellees claimed separate damages foi the destruction of their respective crops. After the testimony had been introduced, the court gave peremptory instruction in favor of the Oliver Construction Company, the principal contractor, and Tipton, its foreman, and also in favor of McDermott and McDuffie and L. L. Winans. The issues were submitted to the jury concerning the liability of Van Troop, Maddox and the Van Orden-Winans Construction Company, and the jury returned a verdict against each of these appellants jointly, assessing damages separately in favor of each of the appellees, aggregating the sum of $1,700, total damages.

No question has been raised as to the right of appellees to join in a suit each to recover compensation for his separate injury, and,, it being conceded that, since there is sufficient identity in the causes of action to justify consolidation under our statute, there was no prejudice in joining the action originally, instead of instituting separate actions and then consolidating them. Mahoney v. Roberts, 86 Ark. 130.

It is, however, very earnestly insisted that the facts of this case, as disclosed by the evidence adduced, do not constitute joint liability on the part of appellants, if indeed it establishes liability at all, and that the court erred in submitting the case to the jury on instruction permitting recovery as on joint liability.

Of course, it must be conceded, as too clear for argument, that separate and distinct tortious acts resulting in separate and distinct injuries, even to the same subject-matter, do not create joint liability on the part of the tort-feasors. There seems to be a considerable contrariety of opinion among the authorities on the question whether separate and distinct acts of negligence. committed by different persons, which unite and culminate in injurious results, constitute joint liability of the different persons committing the separate tort, so as to make each responsible for the entire result. There are numerous authorities on both sides of this question. 26 R. C. L. 763-764; 29 Cyc. 484-488; Day v. Louisville Coal & Coke Co., (60 W. Va. 27) 10 L. R. A. (N. S.) 167; Gibboney Sand Bar Co. v. Pulaski Anthracite Coal Co. (Va.) 24 L. R. A. (N. S.) 1185; Swam v. Tennessee Copper Co., 111 Tenn. 430. It is clear, however, that joint liability exists for separate acts of negligence where there is a common design or purpose or concert of action in the commission of the separate acts, or where such separate acts of negligence are concurrent as to time and place and which unite in setting in operation a single force which produces the injury. See the same authorities cited above.

The testimony was sufficient to bring this case within the rule last stated and to warrant the submission of the issue to the jury.

Viewing the testimony in the light most favorable to appellees, it shows that the fences were broken on or about October 18, 1920, and on subsequent days at different places, and were not replaced for a considerable length of time; that appellant Van Troop and his foreman caused the removal of the fence at least at one of the places, and that appellant Van Orden-Winans Construction Company caused the fence to be removed at other places; and that Van Troop, who was engaged in doing the ditching and grading, and the Van Orden-Winans Construction Company, which was doing the work of constructing culverts, used the openings for a considerable length of time in hauling and removing teams and other equipment back and forth 'without guarding the gaps or putting up the fences. The proof further shows that cattle were permitted to pass through these openings at night, and that the crops of -appellees were destroyed.

There was a conflict in the testimony, and some of the vdtnesses testified with reference to-a’map or plat showing the different gaps and the locations thereof, and this map is not in the. record, henee we are unable' to follow the testimony as accurately as could be done with the map before us. But there is, as before stated, testimony sufficient to show that each of the parties made gaps in the fence, which were. not replaced for a considerable length of time, and that both of the parties used these gaps without restoring the fence-or protecting the field from the depredation of cattle. Each of these parties was working to a common purpose,' that is to say, the construction of the road, and each used the open gaps while being under obligation to repair them so as to prevent injury to the farmers who had crops inside of the enclosure.

The case, therefore, comes not only within.the rule of joint liability where there is concert of action, but also within the other rule stated above, that there is joint liability where the different acts of negligence concur as to time and place and unite in setting in operation the force which causes the injury. In other words, they used the open gaps for the same purposes and at the same time, each being under duty to repair the gaps, and the conduct of each resulted in admission into the field of large numbers of cattle. It cannot be said that the entrance of the cattle was the result of the separate acts of either, but it was rather the result of. the act of both of the parties in failing to repair the gaps so as to keep the cattle out.

It is nest contended that the court erred in its instructions on this subject, and that the instructions were conflicting. The first instruction given at the instance of appellees told the jury that if “the defendants, or any of them, did negligently and carelessly permit cattle and other stock to enter said field, as alleged, and that plaintiffs did have therein crops of corn and cotton, and that said crops of corn and cotton * * * were damaged by said cattle and other stock, and that the entry of said stock and damage to the said crops * * * were the result of the carelessness and negligence of defendants, or some of them, then your verdict should be for the plaintiffs, against such of the defendants as, by their negligent acts, if any, caused the damage to the said crops * * *.”

Other instructions given at the instance of the plaintiff told the jury that if the ‘ ‘ defendants, or any of them, or their employees have failed to observe, for the' protection of the interests of the plaintiffs, that degree of care, precaution and vigilance one of ordinary prudence would have used under the circumstances of this case, and that thereby the plaintiffs have suffered injury, then such defendants are guilty of negligence, and your verdict should be for the plaintiffs.”

Other instructions given at the instance of appellants told the jury that each of them would only be liable for damage, if any, caused by stock which entered the field through openings caused by such appellants respectively. These instructions separately told the jnry that appellant Maddox was not liable for any damage except such as was caused by stock which entered the field through openings caused by Maddox himself; and another instruction to the effect that appellant Van Orden-Winans Construction Company was not liable for any damage except that caused from stock which entered the openings in the fence caused by that appellant; and another instruction that appellant Van Troop was only liable for damages done by the stock which entered the field at openings which he had caused. These instructions were even more favorable than appellants were entitled to, for they excluded the idea of joint liability and made the liability of each depend separately upon the fact whether or not the stock entered at the openings caused by him. The instructions given at the instance of appellant did not exclude the idea of a separate liability nor assume that the liability, if it existed at all, was joint, for these instructions merely told the jury that there was liability on- the part of each of the appellants whose negligent act caused injury.

There is no conflict in the instructions 'except that resulting from the too favorable instructions given at the instance of appellants, and they are in no attitude to complain on that account.

The verdict of the jqry, under these instructions, necessarily implies a finding of facts which constitute joint liability, and, as before stated, the testimony was sufficient to justify such finding. We are of the opinion that there was no prejudicial error in the instructions given by the court.

It is also contended that the court erred in modifying instruction No. 20, requested by appellant Van Troop. The instruction, as requested, told the jury that Van Troop was not liable for any damage except such as might have been suffered from the depredation of stock which entered through the fence on the ditch. The court modified this instruction by adding the words, “and other gates or gaps left negligently open, if any.” The instruction was erroneous without this modification, for the reason that the evidence was sufficient to show that Yan Troop’s outfit, comprised of 30 teams which he owned himself and numerous other hired teams, used the gate, and that the cattle got through the open gates, It was proper, therefore, to modify this instruction as was done by the court.

Judgment affirmed.


text:
    Imboden v. Talley.
    Opinion delivered November 28, 1921.
    1. Estoppel — knowledge of improvements being made. — The mere fact that a prior lien-holder knew that his lien-debtor was buying material to build a house on land the subject of the lien did not estop the former from asserting his lien as against the person furnishing the material.
    E. Vendor and purchaser — foreclosure of lien — rights of junior lienor. — A junior lienor who was not made a party to
      a suit by a vendor to divest the rights of a purchaser of land for non-payment of the purchase money was not bound by the decree, and may redeem from the prior lien, but is not entitled to have another foreclosure of the vendor’s lien.
    Appeal from Conway Chancery Court; W. E. Atlcmson, Chancellor;
    affirmed.

      Strait & Strait, for appellant.
    One who misleads by his acts, declarations or admissions, or by failing to speak or act when he should, with wilful disregard of the interest of others, will not be allowed to afterwards come in and assert his rights to the detriment of the person misled. 33 Ark. 465; 50 Ark. 128; 83 Ark. 554; 85 Ark. 156; 94 Ark. 354; 97 Ark. 49.
    Appellant’s mortgage lien, to the extent of the money furnished, was superior to any claim of appellee. C. & M. Digest, § 6909. See also 64 Ark. 503; 55 C. C. A. 579. Gordon & Dunn, for appellee.
    The appellant failed to compty with section 6922 and section 6926 of C. & 'M. Digest. The lien was not filed in the time required. 32 Ark. 59. The statute was not substantially complied with. 119 Ark. 44.
   McCulloch, C. J.

Appellee owned a small tract of land at or near the village of Menifee in Conway County, and on July 17, 1919, he entered into a written contract with one McCray for the sale of the land at the price of $325, of which $60 was paid in cash, and the balance was to be payable in installments. Appellant was engaged in the business of selling lumber and other building material, and he sold to McCray material at the price of $609 to use in building a house on the land which he had contracted to purchase from appellee. This material was hauled from appellant’s place of business in Morrilton, and was used in constructing a house on the land purchased by McCray from appellee. Appellee did the hauling for McCray for a price agreed upon between those parties. Nothing was paid on appellant’s account for the building material, nor did McCray make any further payments on his contract witli appellee for the purchase of the land. Appellant did not file his lien as -prescribed by statute, but on December 20, 1919, McCray and his wife executed a mortgage on the land to appellant to secure the debt. Subsequently appellee instituted an action in the chancery court of Conway County against McCray and his wife to declare a forfeiture under the contract and to divest all interest of McCray out of the property and quiet the title of appellee. Appellant was not a party to that suit. The chancery court rendered a final decree on September 20, 1920, in accordance with the prayer of the complaint, quieting appellee’s title, neither of the defendants having made appearance in the action. Subsequently appellant instituted. this action in the chancery court of Conway County against McCray and wife to foreclose his mortgage. In some way not disclosed by the record now before us, appellee got to be a party to that -suit. He was so treated, and filed an answer, no question being raised here as to appellee having been properly brought into the case.

The relief sought by appellant against appellee is that the latter’s lien on, or title to, the land be subordinated to his (appellant’s) mortgage debt on the alleged ground that appellee, by reason of having stood by and permitted appellant to furnish the material for building a house, is estopped to assert any claim or title.

The case was heard on depositions of the witnesses and documentary evidence introduced, and the court found that McCray and wife were indebted to appellant in the sum of $609 with interest from December 20, 1919, and decreed recovery of that amount as against said McCray and wife, but decreed that appellee’s right and title to the property was superior to appellant’s claim, and that appellant was only. entitled to a foreclosure by paying to appellee the amount of the original indebtedness of McCray and wife to him, which was found by the court to amount to the sum of $260 with interest from July 17, 1919, and appellant was decreed the right to redeem by payment to appellee of the necessary sum on or before January 1, 1922. The decree provided that, if said sum 'be paid to.appellee on or before the day mentioned, appellee’s title be divested, and that appellant’s mortgage be’ fox-eclosed by sale to be made by the court’s commissioner.

The contexition of appellant is that appellee is estopped by reason of the fact that in hauling the material for McCray he lent his assistaxxce to the procurement of the building material and led appellant to believe that McCray had a clear title to the property on which the house was to be built. Appellant also testified that appellee told him that McCray was the absolute owner of the laxxd. This, however, was dexiied by appellee, who testified that he made no such statemexxt to appellant, nor axxy other statemexxt which was calculated to induce appellaxit to believe that McCray had absolute title to the property, or that he (appellee) did not 'have any lien on it. Appellee testified that, 'after making the sale to McCray, the latter employed him at so much per load to haul the buildixig matexial, and that McCray claimed that he had the money with which to pay for the material. McCray’s wife also testified as a witness in the case, and she stated that she had $450 in money and gave it to her husband to use in paying for the building material and thought that the material was paid for.

There is a conflict of testimoxiy, but our conclusion is that the findixig of the chaxxcellor to the effect that appellee was xiot guilty of any conduct which would work an estoppel oxi his part is not against the preponderance of the testimoxiy. That being true, appellee’s rights are superior to appellant’s mortgage lien. Appellaxit was not, however, a party to the suit against McCray and wife in which their rights in the property were divested, and he is not bound by that decree. Appellant was a junior lienor and a necessary party to any proceedings to divest the title. Having been omitted from that decree, the. only remaining question which arises in the present litigation is, what are his rights now? There was no appeal by McCray or wife from the former decree, and that has become finah'as against them. The effect of the decree was to divest the title out of McCray, and, since it is found that appellee’s lien was superior to that of appellant, the latter’s only remedy is to redeem from that lien by payment of appellee’s original debt with interest. Dickinson v. Duckworth, 74 Ark. 138; Longino v. Ball & Warren Commission Co., 81 Ark. 521.

It is unimportant to inquire whether the decree was correct in appellee’s suit against McCray and wife in divesting the title, instead of directing a foreclosure of the lien. The decree being unappealed from, it is a final adjudication of the rights of the parties to it, and, as before stated, appellant’s only remedy is to redeem from the prior lien. The rule would not be altered by the fact that under the former decree the relief granted was improper. Under the authorities just cited, appellant was not entitled to have another foreclosure of the lien, for, in order to preserve his own equities, he is compelled to do equity by discharging the superior lien. The court has given him ample opportunity to do this, and the time allowed has not yet expired.

We find no error, therefore, in the proceedings, and the decree is affirmed.


text:
    Ft. Smith, Subiaco & Rock Island Railroad Company v. Scroggins.
    Opinion delivered November 28, 1921.
    1. Carriers — liability op initial carrier. — Under Crawford & Moses’ Dig., § 924, making the carrier issuing a bill of lading liable for loss or damage to the property caused by the negligence of connecting carrier, a railroad company issuing a bill of lading is liable for the negligence of a connecting carrier, though the bill of lading exempted the initial carriér from liability except for loss occurring on its own line.
    2. Carriers — parties.—In an action against an initial carrier to recover for damages to freight- caused by the negligence of a connecting carrier, it was not error to refuge to make the connecting carrier a party,

      3. Carriers — damage to freight in transit — defense.—In an action against a carrier for injury to freight in transit, the carrier cannot excuse itself by showing difficulties or interferences in procuring cars for shipment.
    4. Negligence — concurring causes. — It was not error to refuse to charge the jury that “where the injury for which compensation is sought was occasioned by different causes, for only one of which the defendant is individually responsible, the burden is upon the plaintiff to distinguish the damage resulting from the cause for which the. defendant is responsible from that resulting from other causes,” as the instruction would ignore the question of liability for concurring negligence.
    Appeal from Logan Circuit Court, Northern District; James Cochran, Judge;
    affirmed.

      E. II. McCulloch and James B. McDonough, for appellant.
    1. Under the stipulation in the bill of lading, there was no liability on the part of the appellant for any delay beyond its own line, and the court erred in holding to the contrary. Hutchinson on Carriers, §§ 229-235; 63 Ark 326; 64 Id. 115; 84 Id. 423; 32 Id. 393; 35 Id. 402; 50 Id. 397; 87 Id. 339; Miehie on Carriers, 3288; Elliott on Railroads § 1432; 10 Corpus Juris, pp. 529, 541. The delivery carrier is presumed to be liable. 118 Ark 398.
    2. Since the plaintiff introduced no proof that would enable the jury to separate the damages for which the defendant was liable from that for which it was not liable, the court should have directed a verdict in its favor. 118 Ark 398; 63 Id. 65; 57 Id. 402; 117 Id. 638; 174 S. W. (Ark) 547; 116 Ark 82; 113 Id. 353; 179 U. S. 658; 181 Fed. 91.
    3. The court erred in refusing to instruct the jury to the effect that where compensation is sought for an injury occasioned by defendant causes, for only one of which the defendant is responsible, the burden is on the plaintiff to distinguish the damages resulting from the cause for which the defendant is responsible from that resulting from other causes, etc. 4 Enc. of Ev. 11; 63 Ark. 65.

      4. The court erred in refusing to give instruction 5 requested by appellant on the question as to an unusual and unprecedented press of business at the place of shipment during the time covered by the complaint. 81 Ark. 373; 77 Id. 357; 73 Id. 373; 64 Id. 576; 61 Id. 562; Hutchinson on Carriers, § 392; 4 Elliott on Railroads, § 1470; 6 Cyc. 372; 89 Ark. 466; 105 Id. 415; 91 Id. 180.
    5. If the defendant was prevented from supplying cars sufficient for the movement of freight offered it, on account of war conditions, that was a defense in this case, and the court erred in refusing to instruct the jury on that subject. 6 Cyc. 445; Hutchinson on Carriers §§ 314-327.
    6. Instructions 10 and 11 and 12 on the question of delay caused by press of business at the compress in Ft. Smith, and the embargo thereon, should have been given. 20 Wis. 594; 10 Ky. L. Rep. 1020; 105 Ark. 415; 144 Ky. 561; Michie on Carriers, 249.
    7. On the question of the measure of damages the court erred in refusing to instruct the jury that it was the difference between the market price of the cotton when received for shipment and the market price thereof at the time it should have been delivered. ' 69 Ark. 150; 76 Id. 220; 74 Id. 358; 46 Id. 485; 54 Id. 22; 101 Id. 172; 90 Id. 452.
    8. The defendant was not liable for any delay due to a cause not within its power to prevent, and the jury should have been so instructed. 47 Ark. 97.
    9. The court erred in refusing to make the Arkansas Central Railway Company, the Director general and the Missouri Pacific Railroad'Company parties defendant. 10 Corpus Juris, § 937 and cases cited.

      Cravens, Oglesby S Cravens, for appellee.
    1. Under the statute, C. & M. Digest § 924, the initial carrier is made absolutely liable for loss or damage caused by its own negligence or that of any connecting carrier to which the property accepted by the initial carrier shall pass, giving to the initial carrier a right of action over against the connecting carrier on whose line the actual damage may have occurred.
    2. Since the statute, supra, fixes liability on the initial carrier, it was immaterial, for the purposes of this case, for the jury to determine whether all or any part of the damage occurred on the line of the defendant.
    3. Instruction 3 requested by appellant was not a correct declaration of the law. Moreover, there was no evidence on which to base it, since the proof showed that the entire damage occurred on defendant’s line of railroad.
    4. Damages are not sought in this case for delay, therefore an instruction on the subject of an unusual press of business at the place of shipment, etc., had no place in the instructions. The same reason justifies the refusal to give the instruction on the subject of interference with shipments on account of war conditions.
    5. There was no evidence on which to base instructions 10,11 and 12 on the question of press of business at the compress in Ft. Smith and the embargo there.
    6. There was no evidence to base an instruction that defendant would not be liable for damages due to causes not within its control.
   McCulloch, C. J.

Appellant owns and operates a short-line railroad in Logan County, Arkansas, between the towns of Paris and Scranton, connecting at Paris with the road operated by the Arkansas Central Railway Company, running from Paris to Fort Smith. In the year 1919, appellee delivered cotton to appellant at Scranton for shipment to Fort Smith, and appellant issued bills of lading for through transportation over appellant’s line from Scranton to Paris, thence over the line of the connecting carrier to Fort Smith. These bills of lading contained a stipulation to the effect that appellant’s agreement was only to transport the cotton over its own lines, and would not be liable for loss, damage or injury not occurring on its own line of road. This is an action instituted by appellee against appellant to recover damages alleged to have been sustained by depreciation in the weight and value of the cotton and expense of rebaling the same resulting from alleged delay and exposure of the cotton to inclement weather while in transit. The damages were laid in the sum of $1,933.62, and the verdict of the jury awarded damages in the sum of $1401.43.

The testimony “adduced by appellee was sufficient to establish the fact that the cotton was delivered to appellant at Scranton in good condition, and that it was considerably damaged and depreciated in value when it arrived at Fort Smith; that the cotton had to be repiclced and re-baled — ’“reconditioned”—as the witnesses term it, and that the damage amounted to the sum named in the complaint.

The principal ground urged for reversal is that, under the clause in the bills of lading exempting the initial carrier from liability, except for loss occurring on its own line, there can be no recovery, for the reason that the evidence does not show that any loss occurred while on appellant’s line of railroad, and that the court not only erred in refusing to give a peremptory instruction, but also erred in refusing to give other requested instructions submitting that issue to the jury. In making this contention, counsel either overlooked or ignored the statute of this State, patterned to some extent after the Federal statute, making the initial carrier issuing the bill of lading liable for any loss or injury occurring during transportation over the line of a connecting carrier. Crawford & Moses’ Digest, § 924. This statute provides that “when a railroad or other transportation company issues receipts or bills of lading in this State the common carrier, railroad or transportation company issuing such receipt or bill of lading shall be liable for any loss or. damage or injury to such property, caused by its negligence or the negligence of any other common carrier, railroad or transportation company to which such property may pass, and the common carrier, railroad, or transportation company issuing any such receipt or bill of lading shall be entitled to recover, in a proper action, the amount of any loss, damage or injury it may be required to pay to the owner of such property, from the common carrier, railroad or transportation company through whose negligence the loss, damage or injury may be sustained.” Most of the numerous assignments of error are settled by the application of this statute, for the case was apparently "tried below by appellant’s counsel on the theory that there was no liability unless it was shown that the loss occurred on appellant’s own line.

It is also insisted that the court erred in refusing to make the Arkansas Central Railway Company, the Director-General and the Missouri Pacific Railway Company, defendants. It is not shown why the Director General was sought to be made a party, but it is contended that the Arkansas Central Railway Company was a proper party, so that appellant could have judgment over and against it on proof that the loss occurred on its line. The statute does not require that the connecting carrier be made a party, but merely declares the liability of the connecting carrier to the initial carrier. There was no error in refusing to make the' connecting carrier a party, for under the statute the right of action against the connecting carrier is preserved.

Error is assigned in the refusal of the court to give several instructions relating to the question of congestion of traffic to the extent that there was an interference in obtaining cars for shipment of commodities. This is not a suit for failure to furnish cars, but is one for damage which occurred during transportation where the carrier had received the commodity for transportation and given a bill of lading. Under those circumstances, the carrier cannot excuse itself by showing difficulties or interferences in procuring cars for shipment.

It is contended that the court erred in refusing to give the following instruction:

“When the injury for which compensation is sought was occasioned by different causes, for only one of which the defendant is individually responsible, the burden of proof is upon tlie plaintiff to distinguish the damage resulting from the cause for which the defendant is responsible from thalj resulting from the other causes; and if the plaintiff has failed-in this, your verdict should be for the defendant; and damages cannot be proved by the opinion or conclusion of witnesses.”

This instruction is erroneous, because it ignores the question of liability for1 concurring negligence. Payne v. Orton, ante p. 307. There was some evidence introduced by appellant tending to show that the cotton was damaged before delivery to the carrier and not after; but this instruction does not submit that issue, and the court was correct in refusing to give it.

Again, it is urged that the court erred in refusing to give certain requested instructions in regard to delay caused by an embargo laid by the compress company at Fort Smith. It is sufficient to say in regard to these assignments that there was no evidence to justify the submission of that issue to the jury.

There are other assignments, which we do not think are of sufficient importance to discuss in detail, as they are covered by the principles hereinbefore announced.

The judgment is affirmed.


author: Wood, J.

text:
    Friend v. Patterson.
    Opinion delivered November 28, 1921.
    Executors and administrators — presentation op claim. — Under Crawford & Moses’ Digest, § 100, one having a claim based upon a written contract must present a copy of such contract, together with the original, to the executor or administrator, before the claimant can have judgment in the probate court.
    Appeal from Mississippi Circuit; Court, Osceola District; R. H. Dudley, Judge;
    reversed.

      W. J. Lamb and Joe Rhodes, Jr., for appellant.
    The instrument sued on is not a will under the law of Arkansas, because not executed and witnessed as prescribed by law, and never probated. Neither is it a promissory note.

      The claim was not probated within the time prescribed by law. The only pretense that the claim was filed within a year is the testimony of Hammons to the effect that he mailed such claim to the administrator, but he admits that he addressed ,the letter to the wrong post-office. A demand of such claim by mail presupposes a proper postoffice address (133 Pac. 975, 49 L. R. A. [N. S.] 458) including a street address, if any (26 S. W. 280; 174 Fed. 293) and prepayment of postage.
    The mailing of a letter properly creates a presumption of it receipt by the addressee, but this presumption may be rebutted. 93 Ark. 259; 72 Ark. 305. Mr.Friend denied receiving the first letter sent him, and if there be a prima facie case it was overthrown by such denial. 64 Pac. 117.
    The law does not contemplate the presentation of a claim 'by mail unless the original be enclosed or presented to the administrator in some way for his inspection. C. & M. Dig., § 100. This was not done.

      L. E. Hammons and Driver & Simpson for appellee.
    The instrument sued on is a direction to the legal representative of the maker to pay to appellee $1000 for an expressed consideration. The same sort of instrument was held valid by this court in 99 Ark. 523. See also 99 Ark. 527; 42 L. R. A. 802 and 2 A. L. R. 1469, 176 Pac. 37.
    A positive denial by the appellant that he received the claim which was properly mailed to him within the statutory time would not be sufficient, as a matter of law, to nullify the presumption o'f its receipt. Such testimony leaves the matter a question for determination by the jury. 98 Ark. 392; 127 Ark. 499. The same rule would apply to finding by the court.
   Wood, J.

This is an action by the appellee against the appellant as administrator of the estate of R. W. Friend, deceased, on the following order:

“Pecan. Point, Ark.
“April 23,1914.
“I hereby direct the executor of my will to pay to Mollie Patterson one thousand dollars after my death for her faithful servitude and kindness to me during my sickness.
(Signed “R. W. Friend.”

To the order was attached the affidavit of the appellee authenticating the claim. The order was presented to the probate court for allowance, and the cause was appealed to. the circuit court. The circuit court rendered a judgment in favor of the appellee against the appellant, from which is this appeal.

Several interesting questions are presented by this appeal; but 'it is only necessary to consider one. The appellee does not prove that the original order, which is the foundation of the action, was ever exhibited to the administrator, C. W. Friend. She does show that a copy of the order, with the attached affidavit duly authenticating the same, were enclosed in a letter addressed to C. "VY. Friend, the administrator, at Pecan Point, Arkansas, which letter was duly stamped and mailed on March 15, 1919. The appellant denies receiving this letter, but it was a question of fact as to whether be did receive it, and the court would not disturb the finding of the trial court -on that issue. However, the failure of the appellee to exhibit the original order to the administrator of the estate of R. W. Friend, deceased, bars her right to recover thereon.

Sec. 100, C. & M. Digest, provides: “Any person may exhibit his claim against any estate as follows: If the demand be founded on a judgment, note or written contract, by delivering to the executor or administrator a copy of such instrument with the assignment and credits thereon, if any, exhibiting the original, and if the demand be founded on an account, by delivering a copy thereof, setting forth each item distinctly and the credits thereof, if any.” This provision of the statute requiring the original to be exhibited to the administrator is mandatory. If a non-resident claimant, or a non-resident lawyer of such claimant, wishes to present a claim, he- must enclose the original along with the copy of the instrument in the letter to the administrator or executor, or he must exhibit the same to the administrator in person or by some one whom he has duly authorized to do so.

The statute conserves a wise purpose, inasmuch as it was intended to prevent possible mistakes, frauds, or forgeries, by giving to the executor or administrator the opportunity to examine the original instrument which is the basis of claim before approving or rejecting it. As we have said, it must be complied with before the claimant can have judgment in his favor allowing the claim against an estate in the probate court. The judgment of the circuit court is therefore reversed, and the cause will be dismissed.


author: Hart, J.

text:
    Lambdin v. State.
    Opinion delivered November 28, 1921.
    1. Intoxicating liquors — manufacture of — -sufficiency of evidence. — Evidence held to sustain a conviction of manufacturing or of being interested in the manufacture of alcoholic and fermented liquors.
    2. Criminal law — admission of evidence — necessity of objection and exception. — Admission of evidence in a criminal case will not be reviewed on appeal where no objection was made or exception saved thereto in the trial court.
    3. Criminal law- — newly-discovered evidence.— A motion for new trial for newly-discovered evidence which states that a person unknown to defendant told some of his friends that defendant was not guilty, and admitted that the unknown person was guilty, is too vague and indefinite to warrant a reversal of the judgment
    4. Criminal law — admission of accused as evidence of guilt.— Evidence that defendant accused of manufacturing liquor, pleaded guilty in the Federal court to having a still in his possession at the time he was charged in the State court to have been engaged in manufacturing liquor, was competent as an admission tending to connect defendant with the crime charged.
    5. Criminal law — necessity of motion for new trial. — Error cannot be predicated on rulings of a trial court which were not assigned as erroneous in defendant’s motion for new trial.
    Appeal from Grant Circuit Court; W. II. Evans, Judge;
    affirmed;

      D. E. Waddell and Isaac McClellan, for appellant.
    The verdict of the jury is wholly against the preponderance of the evidence. 2 Ark. 360; 70 Ark. 365; 100 Ark. 344. The allegation is for manufacturing whiskey and not for having a still in his possession.
    Proof of another crime is not sufficient to convict. 34 Ark. 160; 54 Ark. 660.

      J. 8. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee. .
    If there is substantial evidence to support the verdict, the judgment must stand. 135 Ark. 117; 136 Ark. 385.
    There was no error in admitting the record of the Federal court. The plea of guilty in another action is competent. Ency. of Ev. Yol.'3,'p. 334; 67 S. W. 96; 71 N. H. 435; 52 Atl. 493. The .admissibility of the con-confession was a question for the court. 28 Ark. 121; 28 Ark. 531. One cannot complain of evidence favorable to himself. 52 Ark. 180. The admission of the letter was harmless. 121 Ark. 570.
    The admission of incompetent evidence is not prejudicial if the point testified to is admitted. . 73 Ark. 407; '74 Ark. 417; 76 Ark. 276.
    The competency of evidence without objection will not be considered on appeal. 76 Ark. 276; 130 Ark. 111.
    The motion for new trial on account of newly discovered evidence was wholly inadequate. 2 Ark. 33.
   Hart, J.

Ransom Lambdin was indicted on March 3, 1921, charged with the crime of manufacturing and of being interested in the manufacture of vinous, malt, spirituous, alcoholic, and fermented liquors. He was tried before a jury and convicted, Ms punishment being fixed at one year in the State penitentiary. From the judgment of conviction the defendant has duly prosecuted an appeal to this court.

The first assignment' of error is that the evidence is not legally sufficient to support the verdict.

Ed F. McDonald, sheriff of Grant County, Ark., was the principal witness for the State. According to his testimony, in company with several other parties he located a still on the farm of the defendant Ransom Lambdin, about a week before he arrested him. It looked like the still had been operated at that place about two months. It was inside the defendant’s field about one-quarter of a mile from his house. On the 18th day of January, 1921, the sheriff and others went back there to arrest the defendant. They found that the still had been moved, and tracked the parties moving it across the field of the defendant towards Ms house. They found the §till located in a dense thicket about 100 yards from the defendant’s house. There was a pit dug in the ground, and two 60-gallon barrels of mash, which were ready to be run off, were placed on the covering of the pit. They found an oil stove burning in the pit between the barrels. There was a place near the still where they had been getting water. While watching this place, they saw a son of the defendant come down to the still from the defendant’s house carrying something in his hand. He then went back to the house. There was a small path leading from the still to the house. They found some fruit jars about 100 yards from the still and about the same distance from the house. Some of the jars had whiskey in them and others were empty. The sheriff then went to the house and arrested the defendant. The house was searched, and several fruit jars were found there. Two of them had about two tablespoons full of whiskey in them, and the others smelled like they had contained whiskey. A pair of rubber boots, with clay on them like the clay that came out of the pit where the mash was found, was on the porch. The bottoms of the boots were rough and some of the tracks leading from the house to the still corresponded with .the tracks of these boots. A spade was also found at the house which had clay on it like the clay in the pit. A small sack of nails was on the porch which compared in size and kind with the nails used to make a cover for the pit. The still had not been operated at the place where last found, but it was ready to be operated. Everything was there except the worm, and it was found in the defendant’s lot. The defendant was arrested at his house and was not seen near the still. The persons who were with the sheriff corroborated his testimony. The mash in the barrels was just ready to be made into whiskey, and mash at this stage contains a small per cent, of alcohol. This evidence, if believed by the jury, was sufficient to warrant a conviction. It tended to show that a still was being operated in the defendant’s field, and that whiskey was being manufactured there. After the sheriff began watching the still, it was moved into a thicket near the defendant’s house. There was a path leading from the still to the defendant’s house. A spade and a pair of rubber boots were found at the defendant’s house which had on them clay similar to that found in the Pit at the still. Fruit jars containing whiskey were found about the same distance from the still and the defendant’s house. Fruit jars which smelled like they had contained whiskey were found in the defendant’s house. These facts were sufficient to show,that ttie defendant was at least interested in the manufacture of intoxicating liquors.

It is true the defendant introduced witnesses who testified that the still was 200 yards from his house, and that a person could not see from it to the defendant’s house. This evidence, however, did not overcome the evidence for the State, but only tended to contradict it. These witnesses also testified that they were neighbors of the defendant, and had frequently visited Mm for many years, and had never seen any whiskey at his house. This, however, was negative testimony and had but little probative value.

The evidence for the State is as strong as that held to be sufficient to warrant a conviction in Robertson v. State, 148 Ark. 585, and Cox v. State, 149 Ark 387.

It is next insisted that the court erred in permitting one of the witnesses to testify that he saw a son of the defendant at the still, and another witness to testify that a boot was found at the home of the defendant which corresponded with tracks found near the still. No objection was made to the introduction of this testimony in the court below, and no exceptions saved, to the action of the court in admitting it. Admission of evidence will not be reviewed on appeal where no objection was made, or exceptions saved thereto in the trial court. Maxey v. State, 76 Ark. 276, and Walker v. State, 138 Ark. 517.

It is next insisted that the judgment should be reversed because the court erred in not granting the defendant a new trial on account of newly-discovered evidence. The • defendant states in his motion for a new trial that a party who is’ unknown to him told some of Ms friends that he, the defendant, was not guilty, and that the unknown party admitted his own guilt. The statement is too vague and indefinite to warrant a reversal of the judgment. The application of the defendant on this account is not corroborated by the affidavits of other persons than his own. The name of the witness is not disclosed. His friends evidently knew who he was. There is no allegation that the witness is within the jurisdiction of the court, or any statement of facts indicating that his attendance could be secured. The defendant only states that he believes he could secure his attendance. The application, under the circumstances, was not sufficient, and the court did not abuse its discretion in refusing to grant a new trial on this account. Rynes v. State, 99 Ark. 121.

It is also insisted that the court erred in permitting the State to introduce in evidence a copy of the judgment of the Federal court in which the, defendant pleaded guilty of having a still in his possession.

The indictment in the present case was returned on the 3rd day of March, 1921. The evidence shows that the defendant was arrested on the 18th day of January, 1921. The information filed in the Federal court charged the defendant with having a still in his possession on the 19th day of January, 1921.

The defendant pleaded guilty to this offense. It will be noted that the two occurrences were about the same time, and the fact that the defendant pleaded guilty to having a still in his possession was competent evidence in the present case. It tended to connect the defendant with the manufacture of intoxicating liquors. It amounted to an admission on his part that he had-a still in his possession at the time the sheriff discovered the still near his house. Beason v. State (Tex. Crim. App.) 67 S. W. 96, and State v. LaRose (N. H.) 52 Atl. 943. The other evidence in the case showed beyond question that some one was manufacturing intoxicating liquors at the still found in the defendant’s field near his house.

It is true the information in the Federal court which was introduced in evidence contained two other counts. One of these charged the defendant with manufacturing intoxicating liquors and the other charged him with unlawfully possessing intoxicating liquors.

The record in the Federal court, however, shows that these two counts were dismissed, and the defendant only pleaded guilty to the offense of having a still in his possession. Hence no prejudice could result to him in the present case from introducing in evidence the full information filed in the Federal court.

Finally, it is insisted that the judgment should 'be reversed because, after the jury had been out a while to consider its verdict, it returned into court and asked for special instructions concerning the certified copy of the Federal court proceedings. The court then instructed them that they could consider the same together with all the other evidence in determining the defendant’s guilt.

With regard to this, it need only he said that it was not made one of the defendant’s grounds for motion for a new trial. It is well settled in this State that error cannot be predicated on rulings of a trial court which were not assigned as erroneous in the defendant’s motion for a new trial. Freeman v. State, 150 Ark. 387, and Gooch v. State, 150 Ark. 268.

We find no prejudicial errors in the record, and the judgment will be affirmed.


author: McCulloci-i, C. J.

text:
    St. Louis Southwestern Railway Company v. Stewart.
    Opinion delivered November 28, 1921.
    1. Public service commissions — review of orders. — Where the Corporation Commission, in the exercise of its discretion, determined that a new railroad station should be built at a certain town, and on appeal to the circuit court the finding of the Commission was approved, the Supreme Court on appeal is not authorized to substitute its judgment for that of the Commission, nor to set aside the Commission’s order unless it appears that it would be unwise or unjust to require the railroad company to comply therewith.
    2. Public service commissions — record on review.— Although Crawford & Moses’ Dig. § 1639, authorized the Corporation Commission, upon the filing of a petition for a new railroad station, “to make a personal inspection of the conditions complained of”, this does not mean that evidence was to be heard which could not be put into the record, and on a review of the Commission’s order by the courts the case is heard on the record made.
    3. Public service commissions — record on review. — Although the Corporation Commission, in its report upon its action in ordering a new railway station to be built at a certain town, recited that the local conditions were inspected by the Commission and its engineer, the railroad company cannot on appeal complain because the report of the engineer, if any was made, was not brought into the record, since it could have been brought into the record in the trial in the circuit court.

      4. Public service commissions — authority to prescribe kind op station. — The power in the Corporation Commission to require the building of a new railroad station implies the authority to prescribe the kind and capacity of the building and the material, subject to review when arbitrarily exercised.
    Appeal from Pulaski Circuit Court, Second Division; Guy Fulk, Judge;
    affirmed.

      Daniel Upth&grove, J. B. Turney, and Gaughan S Sifford, for appellant.
    1. On this appeal the duty of this court is to try the case de novo, in accordance with the procedure defined 'by Act No. 124, approved February 15, 1921, and it should not govern itself by the rule heretofore established not to pass upon the weight of the evidence on appeals from'findings of facts by trial courts or verdicts of juries.
    2. The court can consider no evidence other than that shown in the record, — it cannot consider the personal impressions of the members of the commission, nor the information given the commission by the engineer not incorporated in the record. 227 TJ. S. 88.
    3. The commission was not authorized to prescribe the materials out of which the depot building should be constructed. The police power of the State can be exercised no further than to require things necessary for the public health, moral safety and convenience. 55 Ark. 12; 172 TJ. S. 269; 97 Ark. 475; 113 Id. 384, 3%; 200 TJ. S. 562.
    The Railroad Commission, the creature, cannot rise above its creator, the Legislature, and the latter in its latest expression on the subject has required only that £ ‘ every corporation engaged in public service business in this State shall establish and maintain adequate said suitable facilities” etc.' This has no reference to the appearance nor to the materials out of which the building’s— facilities — shall be constructed.

      B. L. Montgomery and Hamiter S Dickson, for appellees..

      1. This proceeding was instituted and the appeal to the circuit court was filed before the enactment of Act 124, Acts 1921, and the' procedure contended for by appellant does not apply; moreover, section 22 of that act provides that cases previously appealed to the circuit court shall foe heard and determined in accordance with existing law.
    2. The Commission had express authority under § 11, Act 571, Acts 1919, to make a personal inspection either foy its members, inspectors or employees.
    3. The reasonableness and necessity for the order requiring better station facilities is established by the proof, and in requiring the erection of a new station it was neither arbitrary nor unreasonable, but comes within principles recognized by this court. 85 Ark. 12; 99 Id. 1; 113 Id. 384, 385; 25 Id. 298; 97 Id. 473; 206 U. S. 7.
    4. It is within the power of the Commission to prescribe the character of the ¡building and the materials out of which it shall be constructed. Act 33)8, § 2, Acts 1907; Act 124, § 6, Acts 1921; Act 571, § 6, Acts 1919.
   McCulloci-i, C. J.

This appeal brings up for review proceedings before the Corporation Commission, initiated against appellant by citizens of the town of Lewisville, to require the company to construct a new passenger station at that place. Notice was given as required by statute, there was a hearing upon the testimony of witnesses and an order was made by the Commission requiring the construction of a new building as prayed for in the petition. An appeal to the Pulaski Circuit Court was prayed and granted, and a few days thereafter the statute now in force was enacted abolishing the Corporation Commission and transferring its functions, so far as related to control over public utilities, to the Railroad Commission.

The old statute (Act 571, Acts of 1919) provided for an appeal from the decision of the Corporation ■Commission to the circuit court of Pulaski County, where the matter should be heard upon the record made before the Commission, and also provided for an appeal to the Supreme Court from the judgment of the circuit court, and that “in such case appeals to the Supreme Court shall be governed by the procedure, and reviewed in the manner which is now or may hereafter be prescribed by law governing appeals from chancery courts.” Secs. 27-28, Act 571, Session of 1919. The statute abolishing the Corporation Commission (Act 124, Session of 1921) provided for appeals to the circuit court of Pulaski County, thence to the Supreme Court, and that on appeal to the Supreme Court that court “shall be governed by the procedure, and reviewed in the manner applicable to other appeals from such circuit court, except that any finding of fact by the circuit court shall not be binding on the Supreme Court, but the Supreme Court may and shall review all the evidence and make such findings of fact and law as it may deem just, proper and equitable.” Sec. 21, Act 124.

Sec. 22 of the last statute provides that “ail cases which have heretofore been appealed to the circuit courts of this State from any decision or order of the Corporation Commission and which appeals are now pending shall be heard and determined by said courts on the merits as in other cases by law made and provided.”

The first controversy here between counsel relates to the question of procedure, whether this court shall, hear the cause “in the manner which is now * * * prescribed by law governing appeals from chancery ■courts,” as provided by the act of 1919, supra; or whether it shall disregard the findings of fact by the circuit court and “review all the evidence and make such findings of fact and law as it may deem just, proper and equitable,” as provided in the act of 1921, supra, for appeals from the Railroad Commission as now constituted; or whether the court shall hear the case and review merely for error, as on other appeals from judgments of circuit courts. The contention of counsel for appellee is that section 22 of the act of 1921, supra, is controlling, and that this appeal affords merely review for error as in other law cases. On the other hand, counsel for appellant contend that the procedure on the present appeal is controlled by the provision of the old statute declaring that the Supreme Court shall hear the cause according to the practice governing appeals in chancery courts, or by section 21 of the act of 1921, supra.

There is another question which might raise itself, ■and that is, whether or not the Legislature has the power to change the practice in this court on appeals in law cases from a review for error to a trial de novo as in chancery cases. We do not deem it necessary to decide these questions, for, if we adopt the practice most favorable to the appellant and review the evidence do novo, as in chancery cases, we do not find that the conclusions of the Corporation Commission and of the circuit court on appeal are contrary to the preponderance of the evidence.

It appears from the evidence that Lewisville is a growing town, with a population of about 2000 inhabitants, and is situated at the junction of appellant’s line of railroad and a branch line known as the “Shreveport branch;” that the present station building,' which is a combination one for both freight and passengers, is a frame building about 30 years old; that it is not of sufficient capacity for the convenience of travel, that it is unsightly and insanitary, and that it is inconveniently located in that it is too close to the main track to afford platform space between the station building and the railroad. The contention of appellant was, and is, that a building constructed according to the orders of the Corporation Commission would cost about $25,000, and that the present building could be repaired 'and additions made thereto so as to furnish adequate accommodations at an expense not exceeding $6,000. It was shown by the testimony that the building was insanitary for the reason that water stood under it for seven or eight months in the year, furnishing a breeding place for mosquitoes, but testimony was adduced by appellant tending to show that, according to reports of its engineers, this condition could and would be rectified.

We do not thinlc that the testimony in the case presents such a state of facts as would justify this court in disregarding the finding of the Corporation Commission and the circuit court. If we indulge ourselves the utmost latitude in reviewing the testimony, it cannot be said that the preponderance is against the findings of the Commission and the circiut court. When it comes to the exercise of mere discretion, we do not feel authorized to substitute our judgment for that of the Corporation Commission or the circuit court unless we can discover that, according to the preponderance of the evidence, it is unwise or unjust to require the carrier to comply with the order with respect to the construction of a new building. The statutes of the State lodged that power, primarily, in the Corporation Commission, and have since transferred it to the Railroad Commission, and it was not the purpose, we conceive, of the framers of the statute in allowing an appeal to substitute the judgment of the courts, unless it appears that an error was made by the Commission in its conclusions.

An attack was made on the validity of the order on the ground that the report of the Commission recites that the conclusions were reached after a personal inspection of the locality by the members of the Corporation Commission and also upon a report of the Commission’s engineer as well as upon the evidence in the case. The contention is that, the statute having given a hearing in the courts concerning the propriety of the Commission’s order, and that the hearing in the courts must be on the record made before the Commission, this provision would be nullified if the Commission be permitted to gather evidence from personal investigation or inspection. The claim is that this renders the order of the Commission void because it acquired information which could not be put into the record, and which is not available to the courts on review. Counsel rely upon the decision of the Supreme Court of the United States in the case of Interstate Commerce Commission v. L. & N. Ry. Co., 227 U. S. 88, where it was held that the provision in the statute creating the Interstate Commerce Commission (par. 12) which authorizes the Commission to gather information on its own initiative, was only available for use in instituting prosecutions for violations -of law and not for a hearing on the fixing of rates.

The statute (Crawford & Moses’ Digest, 1639) authorizes the Corporation Commission, after filing of such petition, “to proceed to make a personal inspection of the conditions complained of and investigate the objects sought to be accomplished,” but this does not mean that evidence is to be heard which cannot be put into the record, for the provision of the statute in regard to appeals contemplates that the court shall hear the cause upon the record made before the Commission. It is true that the statute provides for an appeal to the circuit court on the record made before the Commission, and this, of course, negatives the idea that the Commission may consider matters within their personal knowledge which cannot be put into’the record, but aside from any express statutory authority it was within the power of the Commission to make a personal inspection, not to gather evidence, but to understand that which is introduced in such form as can be put into the record for consideration on appeal. That is all that it is shown was done in this case. It does not appear from the report of the Commission that it gathered any evidence not in the record, but merely that there was a personal inspection. Notwithstanding such inspection by the members of the Commission, the case is heard in review by the courts on the record made, and not by any outside matters which the Commission may have considered, and if upon that record it appears that the order was erroneous, it becomes the duty of the court to set it aside. The fact that the Commissioners have made a personal inspection may put them in a better attitude than the courts on review to comprehend the evidence adduced before them, and this affords a reason why the-order should not be overturned unless it affirmatively appears to be erroneous, yet the fact that there was an inspection does not alter the rule that in a review- by the courts the case must be heard upon the record as made before the Commission.

It is also recited in the report of the Commission that there was an inspection by the engineer of the Commission.-It is contended that this invalidates the order of the Commission because the report of the engineer is not in the record. The record does not show that the engineer made a report in writing* to the Commission. The written report or opinion of the Commission merely recites that “the conditions at the town of Lewisville were inspected by the engineer of the Commission and by the members of the Commission,” The Commission had the right to consider the report of its engineer, if there was such report, as it would have been advisory in its character and not evidentiary, and the report should have been put into the record. Appellant had the right to insist that it go into the record, but, having* failed to have it done, is not in -an attitude to complain. Furthermore, appellant has had the benefit of a trial de novo in the circuit court on the record, which included all of .the testimony which it saw fit to introduce before the Commission. It is not shown that anything was omitted which is material to appellant’s case, and it has been afforded full protection of the law in -all of its rights by a trial in the circuit court where the cause was heard, not for the purpose of reviewing for errors of the Commission, but to determine the merits of the controversy. The fullest requirements of the law are thus satisfied. Ohio Valley Water Co. v. Ben Avon Borough, 253 U. S. 287.

Lastly, it is contended that it is beyond the power of the Commission to prescribe the character of the building and the material of which it should be constructed. The power to require the construction of a new station building carries with it, by implication, the power to prescribe the kind and capacity of bnilding and the material. Of course this power cannot be captiously or arbitrarily exercised. We do not find that the order of the Commission is open to that charge. Appellant merely denies the authority of the Commission to give any directions with respect to the kind of material, and in this we think that counsel is mistaken.

We discover no ground for setting aside the order of the Commission, and the judgment of the circuit court will therefore be affirmed.

Hart and Smith, JJ., dissent.