author: Smith, J.

text:
    Blumenstiel v. State.
    Opinion delivered May 2, 1921.
    1. Criminal law — maintaining nuisance — evidence.—On a trial for maintaining a common nuisance, namely a resort where betting on horse races was permitted and encouraged, evidence of bets placed more than one year before the finding of the indictment was properly admitted when properly limited to the question of the connection of the parties with the subsequent occurrences in the same building.

      2. Gaming — maintaining nuisance — statutes.—Persons maintaining a common nuisance in a resort where betting on horse races is permitted and encouraged may he prosecuted under Crawford & Moses’ Digest, §§ 1432, 1433, relating to common-law crimes and misdemeanors, though they might also be punished under §§ 2632 and 2669, making it a misdemeanor to bet on a horse race or to operate a gambling house.
    3. Criminal law — punishment.—Under Crawford & Mosses’ Di-1 gest, § 1433, providing that where the punishment for crimes and misdemeanors is not provided for by the statute, the punishment “shall only be fine and imprisoment,” both fine and imprisonment are not required, and an instruction authorizing either mode of punishment or both should have been given, instead of an instruction directing that both modes of punishment be used.
    4. Witness — compelling accused to testify. — Under Constitution, art. 2, § 8, providing that no person shall be compelled in a criminal case to be a witness against himself, a defendant tried jointly with others can not be required to testify, though the jury is admonished that his testimony can not be considered against him; Crawford & Moses’ Digest, § 3122, providing that where two or more persons are jointly or otherwise concerned in the commission. of any crime either may be sworn as a witness, but that his testimony shall not be used against him, not being applicable to joint trials.
    5. Criminal law — proof of former testimony — hearsay.—On a trial of a charge of maintaining a common nuisance where betting on horse races was permitted and encouraged, the testimony of a witness as to testimony given on the trial of a third person for betting on horse races was hearsay.
    6. Gaming — nuisance—knowledge of defendant. — On a trial for maintaining a common nuisance where betting on horse races was permitted and encouraged, it was competent to show that persons had been convicted for operating a pool room in defendant’s cigar store, as tending to charge the owners of the business, who were in the building with more or less frequency, with knowledge of the use which was being made of their place of business.
    7. Gaming — common nuisance — indictment.—Under an indictment charging the maintenance of a common nuisance for the purpose of permitting and encouraging divers idle and ill-disposed persons to resort thereto for the purpose of betting on horse races, etc., the allegation that the frequenters of the place were “idle and ill-disposed persons” was surplusage, and no other inquiry into their character was required than whether they assembled there from time to time to bet on horse races.

      Appeal from Garland Circuit Court; Scott Wood, Judge;
    reversed.

      A. J. Murphy and Geo. P. Whittington, for appellants.
    1. If appellants are guilty, they are either guilty of the statutory misdemeanor of betting on a horse race, forbidden under C. & M. Digest, §§ 2669-70, or they are guilty of the statutory felony of operating a gambling house, under C. & M. Digest, § 2632. The whole subject-matter of the charges is covered by these sections, § 2669 covering every form of betting on horse races and \ 2632 covering every form of operating a gambling house, so if appellants are guilty at all they should be prosecuted under these sections and not for maintaining a common-law nuisance, as that offense was merged into the statutes and there is no rule for the infliction of the penalties prescribed by § 1433 of C. & M. Digest and the facts stated in the indictment do not constitute a public offense. 13 Ark. 700. The case, State v. Vaughan, 81 Ark. 117, is not an authority against us, because when that opinion was rendered it was not a violation of law to bet on horse races, and there was no statutory penalty for operating a place for betting on horse races. The penalties sought to be imposed here are those prescribed in C. & M. Digest, § 1433. Under this section it was error to fine and imprison appellants under the common-law statute, as all phases of such crime are now punishable under statutory provisions.
    2. It was error to permit defendants Blumensticl and Wolf to testify over the objections of defendants. C. & M. Digest, § 3062. See, also, lb., % 3123.
    3. There are other errors in admitting testimony, and the court erred in its instructions. 32 Ark. 124; 71 Id. 144.

      J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    1. Under the undisputed testimony, appellants were guilty, under 0. & M. Digest, § 2670, also under <§. 2632
      Id. and § 2669. See 98 Ark. 437; 55 Id. 10; 98 Id. 440; Bishop on Cr. Law, § 1135; 29 Cyc. 1183. Betting on horse races and operating a place where such bets are made, are common-law nuisances at least and punishable under our common-law statute. 20 B. C. L. 404-5; 81 Ark. 122; 48 Id. 60 ; 2 Wharton, Cr. Law, § 1465.
    Under the undisputed testimony, the manner in which appellants carried on this unlawful business was a nuisance within itself. 35 S. W. 553; 98 Ky. 574; 79 Ky. 618; 13 S. W. 236; 88 Tenn. 566; 40 N. E. 432.
    It was a nuisance, per se. 1 Hawk 733.
    2. The testimony offered and objected to was admissible as competent. 131 Ark. 450; 18 A. & E. Ann. Cas. 850-1; 97 S. \W. 92; 45 Md. 33; 108 N. W. 6; 135 Ark. 163. The testimony was competent. 131 Ark. 445; 130 Id. 48. See, also, C. & M. Digest, § 3124. A nuisance per se is clearly charged and proved. 945 S. W. 847; 3 Words & Phr. (N. S.) 661. It was a nuisance at common-law. 10 L. B. A. (N. S.) 995; 218 Am. St. Bep. 269.
   Smith, J.

This appeal is docketed and briefed here under the style of Blumensteil et al. v. State, for the reason that it bore that style in the court below, where Blumensteil, Wolf, Davis and Zoll were jointly tried and all convicted; but only Whdf-and Davis have appealed.

The indictment charges the maintenance of a common nuisance “in a certain building on Central Avenue in the city of Hot Springs, Arkansas, known as the Blum-ensteil & Wolf Cigar Store, for the purpose of permitting and encouraging divers idle and ill-disposed persons to resort thereto for the purpose of betting on various horse races run outside of the State of Arkansas, and at divers times permit and encourage various idle and ill-disposed persons' to resort thereto and bet money on horse races run outside of the State of Arkansas, and did thereby promote and encourage immorality, idleness and lawlessness, to the great injury and damage to the public morals and a common nuisance to the county of G-arland, against the peace and dignity of the State of Arkansas.”

The defendants were jointly tried, and at the trial Blumensteil and Wolf were called by the State as witnesses, and over the objection of the defendants were required to testify. In overruling this objection the court stated that he would instruct the jury that the testimony of Blumensteil could not be considered against him, and the testimony of Wolf could not be considered against him, and the jury was so instructed.

Over the objection of the defendants, witnesses were permitted to testify to bets on races placed with a man in charge of the rear end or back room of the cigar store, where such bets were accepted. But in admitting the testimony the court stated that a conviction could not be had on what occurred more than a year prior to the finding of the indictment, but that such testimony was admissible on the question of the connection of the parties with the subsequent occurrences in the building. We think the testimony as thus limited was competent for the purpose for which it was admitted.

There was testimony that within a year of the indictment bets were received, and that on one occasion the city commissioner, with the police, raided the place and found a large crowd of people there, who ran in every direction out of the front and the rear of the building, and when the crowd had dispersed, tickets were found scattered about the place which were used in betting on the horses, and posted on the wall of the room was a card showing the odds which were being offered on the different horses.

The police judge was permitted to testify about the conviction of a man named Powers, which had been secured in his court by the authorities, for betting on horse races, and in giving this testimony he was allowed to state that “the evidence tended to show that he (Powers) was seen around there on several occasions, and was making a book up there. ” It is argued, however, that a, proper exception was not saved to this testimony.

Appellants requested the court to give an instruction numbered 5. reading’ as follows-:

“If you'find the defendants guilty, you will assess their punishment at a fine of not exceeding one hundred dollars or imprisonment not exceeding three months, or by both such fine and imprisonment.”

This instruction was refused, and the jury was instructed that “the punishment provided by law for the offense charged is a fine not exceeding one hundred dollars and imprisonment not exceeding three months — that means anything up to one hundred dollars, and imprisonment for any time not exceeding three months.”

This instruction numbered 5 was asked by appellants after the court had refused to declare that sections 1432 and 1433, Crawford & Moses’ Digest, did not apply to the case made.

No attempt was made to show that any particular frequenter of the place was an idle or an ill-disposed person. On the contrary, appellants offered affirmative testimony that certain persons who were shown to have been in the room when bets were being received were not idle or ill-disposed persons; but this testimony was excluded by the court for the reason that the allegation of the indictment in that respect was an immaterial one; and an exception was saved to that ruling.

The verdict of the jury fixed the punishment of Wolf and Davis at a fine of one hundred dollars and imprisonment in the county jail for sixty days each; and from the judgment in accordance therewith is this appeal.

It is first insisted for the reversal of the judgment of conviction that sections 1432 and 1433, Crawford & Moses’ Digest, do not apply. The insistence is that if appellants are guilty at all they should have been punished pursuant to section 2669, Crawford & Moses ’ Digest, or under section 2632, Crawford & Moses’ Digest. Section 2669 makes it a misdemeanor to bet money or anything of value on any horse race, whether run in or out of this State. Section 2632 makes it a felony to operate a gambling house. It may be that appellants might have been convicted under either of these statutes; but that fact is -unimportant here, if they were also guilty under sections 1432 and 1433.

By section 1432 it is enacted that' “The common law of England, so far as the same is applicable and of a general nature, and all statutes of the British Parliament in aid of or to supply the defect of the common law, made prior to the fourth year of James the First (that are applicable to our form of government), of a general nature and not local to that Kingdom, and not inconsistent with the Constitution and laws of the United States, or the Constitution and laws of this State, shall be the rule of decision in this State unless altered or repealed by the G-eneral Assembly of this State.”

Section 1433 is as follows: “In cases of crimes and misdemeanors committed in this State, the punishment of which has not been provided for by statute, the court having jurisdiction thereof shall proceed to punish the offender under the provisions of the common or statute law of England put in force in this State by this act; but the punishment in such eases shall only be fine and imprisonment, and in such cases the finé shall not exceed one hundred dollars and the imprisonment shall not exceed three months.”

In the case of State v. Vaughan, 81 Ark. 117, which was a proceeding to enjoin the operation of a pool room, suc.h as appellants herein are shown to have been connected with, the court said: “The common law is put in force in this State, and the punishment for common-law offenses not covered by statute is fixed as a fine not exceeding $100 and imprisonment not to exceed three months. Kirby’s Digest, sections 623 and 624.

“These statutes have been held applicable to a gaming house as a common-law misdemeanor. Vanderworker v. State, 13 Ark. 700; Norton v. State, 15 Ark. 71; Thatcher v. State, 48 Ark. 60; 1 Bishop, Crim. Law, section 1137. Each period in which a nuisance continues is a separate offense. Wharton, Crim. Law, section 1419. ’ ’ Sections 623 and 624 of Kirby’s Digest are carried into Crawford & Moses’ Digest as sections 1432 and 1433.

The court .denied the relief prayed in that case on the ground that the operation of a pool room, was a misdemeanor, and persons charged with its commission are entitled to a jury trial, and this right can not be taken away under the guise of an injunction against a nuisance.

The appellants here have had the jury trial which the court in the Vaughan case said persons were entitled to have who were charged with operating a pool room.

We think the court was in error, however, in holding that one convicted under sections 1432 and 1433, Crawford & Moses’ Digest, must be punished by both fine and imprisonment, and the court should have given the instruction numbered 5 set out above. The language of the statute is: ‘ ‘ But the punishment in such cases shall only be fine and imprisonment, and in such cases the fine shall not exceed one hundred dollars and the imprisonment shall not exceed three months.”

In interpreting this statute the purpose of the Legislature must be kept in mind. The Legislature was enacting into our jurisprudence the common law of England so far as the same was applicable and of a general nature, and in fixing the punishment for crimes and misdemeanors where no punishment had been provided by statute, the Legislature' sought to exclude certain punishments which prevailed at the common law. The phrase, “but the punishment in such cases shall only be fine and’imprisonment,” furnishes the key to the interpretation of section 1433.

There were other punishments for misdemeanors at the common law besides fine and imprisonment., There was the pillory in some cases, and whipping in others. 1 Stephen’s History of the Criminal Law of England, page 457; 1 Russell on Crimes (7 Eng. ed.), p. 249.

The Legislature intended to prohibit the imposition of such punishments as pillory and whipping’, and authorized the imposition of only fines and jail sentences, one or the other or both, and did not intend to «require the imposition of both a- fine and a jail sentence; -

The question has never heretofore been expressly decided by this court, hut the interpretation we have now given section 1433, Crawford & Moses’ Digest, comports with the interpretation heretofore generally accepted.

In Vanderworker v. State, 13 Ark. 700, the appellant was convicted of keeping a common gaming house, which constituted a nuisance at common law. He was tried under what is now section 1433, Crawford & Moses’ Digest, and only a fine was assessed against him. This judgment was affirmed without comment by this court.

In the case of Martin v. State, 32 Ark. 124, it was pointed out that the statutes had provided a punishment for voluntary escapes of prisoners, hut no punishment had been prescribed for negligent escapes. It was held that escapes of the latter class were punishable as common-law offenses. The punishment in that case was a fine of ten dollars; and while the judgment was reversed on another ground, no question appears to have been made that the punishment did not conform to the law.

So in the case of West v. State, 71 Ark. 144, the court affirmed without comment a conviction for maintaining a common-law nuisance where a fine of one dollar had been imposed, with the alternative that if the fine was not paid the defendant should be imprisoned until it was paid.

We think the court erred in requiring Blumensteil and Wolf to give testimony in the case. It is true the court did admonish the jury that the testimony of Blumensteil could not be considered against him, and that the testimony of Wolf could not be considered against him, and it is insisted that, this admonition having been given, the testimony of each became admissible against the other. It is argued that such is the effect of section 3122, C. & M. Digest, which reads as follows:

“Section 3122. In all eases where two or more persons are jointly or otherwise concerned in the commission of any crime or misdemeanor, either of such persons may be sworn as a witness in relation to such crime or misdemeanor; but the testimony given by such witness shall in no instance be used against him in any criminal prosecution for the same offense.”

We do not interpret this statute as the court below did. We think it does not apply where persons are being jointly tried for the commission of the same offense. It applies when one concerned in the commission of a crime or misdemeanor, who is not himself on trial, is sworn as a witness in relation to such crime or misdemeanor upon the trial of another person. In that case he is required to testify and is given immunity against a subsequent use oh that testimony against himself. But to require one to testify when he was himself on trial would, in a measure, render nugatory the provision of section 8 of article 2 of the Constitution providing that no person shall be compelled in any criminal case to be a witness against himself, even though the jury were admonished not to consider the testimony against the witness who gave it. Under the Constitution one on trial charged with the commission of a crime or misdemeanor has the right to refuse to be sworn as a witness.

We think it unnecessary to decide whether proper exceptions were saved to the testimony of the judge of the police court. But, inasmuch as the cause is to be rer manded for a new trial, we take occasion to say that the police judge had no right to repeat the testimony heard by him at the trial of Powers. Such testimony was hearsay. It was competent, however, to show that persons had been convicted for operating a pool room in this cigar store. Such testimony tends to charge the owners of the business, who were residents of the city and were in and about the building with more or less frequency, with knowledge of the use which was being made of their place of business.

The court below properly treated as surplusage the allegation of the indictment that the frequenters of the place were idle and ill-disposed persons.

The court told the jury that if the defendants kept “a place for people to resort to to place bets on horse races, and persons who desired to place bets on horse races resorted to such, place from day to day or from time to time, and made bets on horse races at such place, and such place was regularly kept for such business, and such business was regularly carried on there, then such a place would constitute a common nuisance within the meaning of the law.”

No other inquiry into the character of the persons who patronized the place in question is required than that stated in the instruction, towit: That persons assembled there from day to day and from time to time to bet on horse races.

Other assignments of error are discussed; but we think no other errors were committed, and the other points raised do not, in our opinion, require discussion.

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


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Payne v. Mallory.
    Opinion delivered May 2, 1921.
    1. CARRIERS — DELAY in shipping LIVE STOCK. — A complaint against a carrier alleging the receipt of cattle and delay in shipment for three or four days states a cause of action for unreasonable delay.
    2. Carriers — duty to ship live stock promptly. — It is the duty of a common carrier accepting live stock for shipment to ship and deliver same without unnecessary delay, and delay in the shipment of stock from Saturday until the following Tuesday is unreasonable unless there was some good and sufficient cause to justify it.
    3. Carriers — burden of establishing justification for delay.— The burden of establishing justification for a delay of from Saturday to Tuesday in forwarding a shipment of livestock rests upon the carrier.
    Appeal from Carroll Circuit Court, Western District ; W. A. Dickson, Judge;
    affirmed.

      Shouse & Rowland, for appellant.
    The court erred in overruling appellant’s demurrer and refusing to give the peremptory instruction asked by defendant. No negligence was alleged or proved. The instructions state tlie law correctly, and there is no evidence to support a verdict for any sum. 1 Hutch, on Carriers, § 510; 83 S. W.'20; Kirby’s Digest, § 6804; 77 Ark. 357; 79 Id. 59. See, also, 64 Ark. 271; 83 S. W. 20. Under the law supra, appellee failed to make out a case and a verdict should have been directed.

      G. A. Fuller, for appellee.
    1. It is the duty of a railroad company to furnish suitable pens for keeping stock and facilities for feeding and watering them, and failing to do so renders it liable. Mi-chie on Carriers, §§ 1757-8, 1784; 82 Ark. 253; 73 Id. 112; 101 Id. 289.
    ' 2. The evidence fully sustains the verdict.
   Humphreys, J.

Appellees instituted suit against appellant in the circuit court, Western District of Carroll County, to recover damages in the total sum of $696.62, as per itemized statement incorporated in the complaint, on account of the alleged negligence of appellant in failing and refusing to ship two cars of stock on the 22d day of November, 1919, or to deliver same upon the Kansas City market within a reasonable time after said date.

A demurrer was filed to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled, to .which ruling of the court appellant objected and excepted.

Appellant, reserving its exceptions to the ruling of the court on the demurrer, filed an answer, denying the material allegations of the complaint.

The cause then proceeded to a hearing, and at the conclusion of the evidence appellant requested a peremptory instruction directing a verdict in its favor. The court refused to give the instruction, to which ruling appellant objected and excepted. The cause was then submitted to the jury upon the pleadings, evidence and instructions of the court, resulting in a verdict and judgment against appellant for $475, from which an appeal has' been duly prosecuted to this court: '•

Appellant first contends that the court committed reversible error in overruling the demurrer to the complaint. It is asserted that no fact of negligence is alleged in the complaint, the only allegation being that when appellees “arrived at the stockyards it was dark and the stock pens were all full of other stock, and there was no place available in which to drive their stock for shipment.” Appellant argues that common carriers can not be held in damages for a failure to furnish shipping facilities unless it be alleged and shown that the facilities. furnished were inadequate for the accommodation of all normal business at the shipping station, and that the allegation in the complaint that the stock pens were all full of other stock when appellees’ stock arrived was insufficient because it failed to allege that the accommodations were insufficient to accommodate the normal business at the Eureka Springs station. We deem it unnecessary to pass upon this question, as, in our opinion, the complaint sufficiently alleged other facts of negligence upon which to base a recovery. The complaint, in substance, alleged that appellees, on Tuesday before Saturday, November 22, 1919,' engaged two cars to ship a. car of cattle and a car of mixed stock on the 22d day of said month; that, relying upon the promise of appellant to furnish the cars, they purchased the cattle and drove them a distance of eighteen miles to the shipping pens of appellant at its station in Eureka Springs, arriving with the cattle after dark; that the stock pens and grounds around them were filled with cattle and hogs, and that they were advised by appellant to take their cattle across the track and a public road into an adjoining field until they could be loaded; that appellees‘were unable to get their stock out of the field across the railroad track and public road into the stock pens after they were vacated of the other stock therein on account of the darkness of the night; that they were required to keep their stock at the station several days before the same were shipped; that, by reason of the failure of appellant to deliver said stock upon the market at. a reasonable time after November 22, 1919, appellees were damaged, on account of extra expense, shrinkage in weight of cattle, downward bréale in the market and other causes, in the total sum of .$696.62. The following is a verbatim copy of one of the allegations in the complaint: “By reason of the defendant company having failed, neglected and refused to provide a way for the shipment of plaintiff’s, stock on the 22d of November, 1919, and by reason of the failure of their stock to arrive upon the Kansas City market at' a reasonable time when it should have arrived, immediately after the 22d of November, 1919, these plaintiffs have sustained a total loss as above itemized of $696.62.” These allegations, in connection with the substance of others, amount at least to an allegation that appellant received the stock for shipment on the 22d day of November, 1919, and failed to ship them out for three or four days thereafter, from which act damage resulted to appellees. Unexplained, this was an unreasonable delay and constituted an act of negligence upon which to base an action for damages against a common carrier. The court did not therefore err in overruling the demurrer to the complaint.

Appellant’s next and last insistence for reversal is that the evidence is insufficient' upon which to establish any liability against appellant. The facts, in substance, are as follows: On the 18th day of November, 1919, ap-pellees applied to appellant’s agent at Eureka Springs for two cars to ship one car of cattle and a mixed ear of stock on the 22d of November following. The evidence is in dispute as to whether the agent agreed to furnish two cars or whether he simply promised to do the best he could. In reliance upon the promise of the agent to furnish the cars, according to appellees’ testimony, they purchased the stock in Benton County and brought it to Eureka Springs for shipment on said date, arriving at the stock pens at about 5:30 or 6 o’clock p. m. J. B. Mallory arrived in advance of the stock and obtained a shipping contract, or bill of lading, for one car and had the shipping contract or bill of lading filled out for the other car to be delivered when one of his helpers by the name of Evans, who was to accompany the car to Kansas City, arrived. Bills of lading-, or shipping contracts, for eight cars of stock were issued during the afternoon, four of which were upon orders for cars made subsequent to ap-pellees’ order or request for cars. During the afternoon appellee Mallory discovered that the stock pens and the grounds around same had been entirely occupied with cattle and hogs brought there for shipment. He talked to the agent as to where he should put his stock and was advised to put them in a field across the railroad and a wagon road from the stock pens, around which there was a very poor enclosure. The cattle and hogs on the ground near the stock pen were held by guy ropes and guards. Some of them got away before being loaded. After the darkness came on it was discovered by appel-lees that it was impossible to drive their cattle from the field in which they had been placed across the wagon road and over the railroad track or under a culvert through a running stream without a part of them escaping. They then notified the .agent who had come on duty that it was impractical and impossible to load that night. The train to take the stock arrived at 4 a. m. Sunday morning. According to the evidence of appel-lees, only one car remained after all stock in the pens and immediately surrounding it had been loaded. Appellant’s testimony was to the effect that they furnished appellees with two cars, which were refused by them. No other cars for shipping the cattle were furnished until about 4 o’clock the following Tuesday afternoon, after written notice had been given to the railroad demanding-immediate shipment. The cattle .did not arrive in Kansas City until Thursday morning, on Thanksgiving day, which was a national holiday, and could not be sold until the following day, and, when sold, were sold on a declining market. The evidence of appellant was to the effect that when appellees declined to attempt to load on Saturday night, or Sunday morning, they were informed that cars could not be furnished before Monday or Tuesday. There was testimony on the part of appellees as to the amount of damages sustained on account of the delay in shipment, which exceeded the amount recovered..

This evidence sufficiently establishes the fact that the cattle were accepted-for shipment on November 22, 1919, and were not shipped until late in the afternoon of the 25th day of said month. Giving the testimony offered by appellees its strongest probative force, it was impossible for them to load the cattle on Saturday night, or Sunday morning, and the cattle remained in the stock pens after the other cattle were shipped until late in the afternoon of the 25th of said month. It is the duty of a common carrier accepting live stock for shipment to ship and deliver same without unnecessary delay. A delay in the shipment of stock from Saturday until the following Tuesday is an unreasonable delay unless there was some good and sufficient cause to justify it. St. L. & S. F. Rd. Co. v. Pierce, 82 Ark. 353. The burden to establish the justification of a delay for such a length of time necessarily rests upon the common carrier. In the instant case, no cause was assigned by appellant for this unreasonable delay. There was evidence to support the verdict and judgment.

No error appearing, the judgment is affirmed.


text:
    Willison v. Loretz.
    Opinion delivered May 2, 1921.
    1. Appeal and error — bill op exceptions — conclusiveness op judge’s certificate. — Where the trial judge certifies that the bill of exceptions contains all the evidence and instructions given and refused, such certificate is conclusive as to the completeness of the bill of exceptions.
    2. Brokers — right to commission. — When an owner lists his property for sale with two or more agents, without the exclusive right in either to sell, the agent effecting the sale is entitled to the commission, if the owner has maintained neutrality between them.

      3. Brokers — good faith toward two brokers. — In an action for a commission on a sale of a farm listed by defendant with plaintiff and with other brokers, the question of good faith on the part of defendant as between such brokers held for the jury.
    4. Brokers — good faith between brokers — instruction.—In an action for a broker’s commission on a sale of a farm listed by defendant with plaintiff and other brokers, an instruction that the agent effecting the sale is entitled to the commission is erroneous in failing to add the proviso that the owner has maintained neutrality between the brokers.
    Appeal from Prairie Circuit Court, Northern District ; George W. Ciarle, Judge;
    reversed.

      Brundidge & Neelly, for appellant.
    1. The court erred in giving to the jury instruction No. 1 requested by plaintiff. It completely ignored the question as to the liability of a landlord to the agent who effects the sale of the land. There was no testimony upon which to base it. 112 Ark. 227.
    2. The court erred in refusing instruction No. 1 asked by defendant. 122 Ark. 259.
    3. It was error to refuse instruction No. 3 requested by defendant. The law of this instruction is well settled. 121 Ark. 536. Where two agents have the right to negotiate a sale of land for the owner, the agent who actually brings about the sale is entitled to the commission. Ib. The facts being undisputed, it was error to refuse to direct a verdict.

      F. E. Brown and Carmichael & Brooks, for appellee.
    1. Appellant relies on 112 Ark. 227. The case is not in point here.
    2. The verdict is sustained by the evidence. The question is a new one in this State, but the verdict is in keeping with equity and justice.
   Humphreys, J.

Appellee instituted suit against appellant in the Prairie Circuit Court to recover $600 as a commission for effecting the sale of a farm owned by appellant, near Des Arc, consisting of 220 acres.

Appellant filed an answer, denying that appellee effected the sale of the land, but that the sale was effected by the Middle-West Land Company, a real estate partnership, composed of Clyde Ridout and G. I: Rogers, to whom he paid a commission of $330, or five per cent, on the purchase price of $6,600.

The cause was submitted to a jury upon the pleadings, evidence and instructions of the court, which resulted in a verdict and judgment in favor of appellee for $270, from which judgment an appeal has been prosecuted to this court.

Appellee suggests the insufficiency of the record, and insists upon an affirmance of the judgment on this ground. It is pointed out that the record does not affirmatively show that it contains all the evidence or all the instructions of the court. While there is no statement at the conclusion of the evidence that the record contains all the evidence, this fact does appear in the certificate to the bill of exceptions by the judge who tried the case. It is also true that the motion for a new trial, filed by appellant, recited that the court erred in its oral charge to the jury, and that the oral charge, if given, does not appear in the bill of exceptions, but the certificate to the bill of exceptions of the judge who tried the case recites that the bill of exceptions contains all the instructions given and refused in the case. The certificate of the judge who tried the case must control, and, according to his certificate, the record is complete.

The facts, in substance, are as follows: Appellant verbally authorized appellee, a real estate agent in Des Arc, to sell his farm for -$6,000 net to him, agreeing to allow the agent, as commission, any amount in excess of the net price for which he sold the farm. Appellant also verbally authorized the Middle-West Land Company, a partnership composed of Clyde Ridout and G-. I. Rogers, a real estate agency in Des Arc, to sell the. farm for $6,600, agreeing to pay them, as commission, five per cent, of the purchase price. The exclusive right to sell the farm was given to neither Loretz nor to Ridout & Rogers. Loretz did not know that the farm was listed with Ridont & Rogers, and it does not appear whether Ridont & Rogers knew that the farm was listed with Loretz. Appellee had shown the farm to J. H. Tallhnt of Madisonville, Tenn., who told his fellow-townsman, W. C. Mason, about it. Based upon the information thus received, Mason, who afterward purchased the farm in connection with W. H. McCrory and a Mr. Hicks, wrote to Loretz on March 5, 1920, that if he would split the commission with him, he would procure a buyer. Loretz showed appellant the letter. Loretz immediately answered the letter, offering the farm to Mason for $7,000, stating that he was to receive eight per cent, as commission on the purchase price, which he would divide. equally with him, if he procured a buyer. On March 13 following, W. 0. Mason wrote to Loretz that he expected to reach Des Arc the latter part of the week. On the night of the 16th of March, "W. C. Mason, in company with a prospective purchaser, arrived at Des Arc, went to Ridout’s office, who took them to the farm, introduced them to appellant, and consummated a sale thereof for $6,600. Out of the sum, appellant paid Ridout & Rogers, as a commission, $330.

W. O. Mason testified that he had a personal acquaintance with Clyde Ridout, and had been corresponding with him in reference to real estate; that he did not come to Des Arc through the influence of Loretz, but with the view of looking at appellant’s farm; that he had been writing to both and purchased the farm through Ridout & Rogers because they offered it cheaper than Loretz. ' ^'iPT^Pfl

H. S. Loretz testified that, on the morning of the 17th of March he started out to appellant’s farm to show him the second letter he had received from W. C. Mason; that he met appellant coming to town and showed him the letter; that appellant said nothing to him about having sold the place; that he then returned to town and met W. C. Mason, who informed him of the purchase of appellant’s farm through Ridout & Rogers; that he immediately went to appellant concerning the matter, and lie said: “If it hadn’t been for me, they wouldn’t have done anything about the place, and that he didn’t want to get into any lawsuit with me; ’ ’ that he replied to appellant that unless he wanted to .pay the commission twice, he had better see Ridout & Rogers; that appellant replied, “We will let a jury do that;” that appellant then closed the deal.

Appellant testified that, when he listed the property with H. S. Loretz for sale, Loretz was to have no commission if he himself, or any other person, sold it; that, when Loretz showed him the first letter he had received from Mason and told him that he was going to price it to him at $7,000, he forbade him to raise the price above $6,600, believing that if he did so he would spoil the sale of the place; that, under the contract, he was to receive $6,000 net in case Loretz sold the property; that Loretz had had the place listed for a year and hadn’t sold it because he kept raising the price; that he sold the' place to Mason through Ridout & Rogers for $6,600, and paid them $330 as a commission for making the sale; that he received $270 more than he would have received had Loretz sold the place to Mason.

We deem it unnecessary to set the evidence out at greater length in order to determine the questions involved on the appeal. At the conclusion of the testimony, appellant asked a peremptory instruction in his favor, which request was denied by the court, over his objection and exception. The court -submitted the cause to the jury upon two instructions, the first of which was requested by appellee and given by the court over the objection and exception of appellant. That instruction is as follows:

“The jury are instructed that if they find from the evidence that Willison had placed his farm with Loretz for sale, agreeing to pay him as a commission for making a sale all above $6,000, that he might sell the farm for, and you further find that Loretz was the procuring cause of bringing Mason, -the purchaser, and. .Willison,. the seller, together, wherefrom a sale was consummated, you should find for Loretz the difference between the excess above $6,000 that the farm was sold for and the commission Ridout & Rogers was to receive on the sale, although you may find that the purchaser was introduced to Willi-son by Ridout & Rogers.”

The second instruction was given at the request of appellant. The court refused to give two other instructions requested by appellant, to which refusal of the court objections were separately made and exceptions separately saved. The two instructions refused are as follows:

“The jury are instructed that if you find from the testimony that the plaintiff Loretz had the lands for sale under a verbal contract which did not give him the exclusive right to sell said lands, and you further find that the defendants, Rogers & Ridout, also had a contract with Willison to sell said lands and did effect the sale thereof, then you will find for the defendant, unless you find that the owner, Willison, did not act in good faith with the plaintiff.

“You are instructed that where land is in the hands of more than one agent for sale, the agent selling the land is the one entitled to the commission, and if you find that the defendant’s lands were sold by Rogers & Ridout and they were paid for said sale by the defendant, then you will find for the defendant, unless you find that the owner, Willison, did not act in good faith with the plaintiff.”

The first insistence by appellant for reversal is that, under the undisputed facts in the case, appellee did not effect a sale, and, under the law, was not entitled to a commission. It is true that, when an owner lists his property for sale with two or more agents, the agent effecting the sale is entitled to the commission, if the owner has maintained neutrality between them. Murray v. Miller, 112 Ark. 227; McCombs v. Moss, 121 Ark. 533. While it is undisputed that the farm was placed in the hands of both Loretz and Ridout & Rogers for sale, without the exclusive right in either to sell, and that Ridout & Rogers effected the sale, there are facts in the case from which an inference might he drawn that appellant, the owner, did not preserve strict neutrality between the agents. The facts referred to are that, with full knowledge on the part of appellant, Loretz was in communication with Mason with reference to a sale of this particular farm; that Mason came to Arkansas with a view of inspecting said farm; that appellant, when shown the second letter by Loretz from Mason, did not inform Lor-etz that he had sold the farm to Mason through Ridout & Rogers, and that he profited $270 more by the sale through Ridout & Rogers than he would have profited had Loretz consummated the deal. These facts made the question of good faith on the part of appellant a disputed question of fact to be determined by the jury; hence it was proper for the court to refuse the peremptory instruction requested by appellant.

The next insistence of appellant for reversal is that instruction No. 1, requested by appellee, was erroneous because it ignored the question as to the liability of a landowner to the agent that effected the sale of the land. This court announced the doctrine in Murray v. Miller, 112 Ark. 227, and reaffirmed it in the case of McCombs v. Moss, 121 Ark. 533, that “ where two agents have the right to negotiate the sale of land for the owner, the agent who actually brings about the sale is entitled to the commission, where the owner acted in good faith and preserved strict neutrality between the rival agents.” The instruction given at appellee’s instance ignored, and the instructions requested by appellant and refused by the court embodied, the doctrine announced in those cases. The court therefore committed reversible error in giving the instruction requested by appellee and refusing those requested by appellant.

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


author: McCulloch, C. J.

text:
    Brown v. Falls Rubber Company.
    Opinion delivered May 9, 1921.
    1. Receivers — order directing inventory. — Where an intervener claimed certain boxes of goods in the hands of a receiver but refused to disclose their contents, no personal right of such inter-vener was violated by an order that the boxes be opened and inventory made to determine ownership.
    2. Appeal and error — final order. — An order of the court that certain boxes in the custody of the receiver and claimed by the intervener be opened and their contents inventoried is an interlocutory and not a final order, and an appeal therefrom will not lie.
    Appeal from Garland Chancery Court; J. P. Henderson, Chancellor;
    appeal dismissed.

      O. H. Sumpter, for appellant.

      Chas. C. Sparks, for appellee.
   McCulloch, C. J.

Appellee instituted an action in the chancery court of Garland County against E. D. Brown and T. G. Holland as copartners to recover a debt due on account for merchandise sold and delivered and to wind up the partnership, alleged to he insolvent, to secure the appointment of a receiver and to subject the assets of the partnership to the payment of debts. A receiver was appointed by the court who took charge of the partnership property which consisted of automobile accessories, repairs, equipments and other things at the place of business of said copartners in the city of Hot Springs.

Subsequently it was discovered that immediately before the appointment of the receiver four wooden boxes supposed to contain automobile accessories and repairs, two automobile wheels, a lathe and a counter-shaft had been removed from the place of business of said copart-ners to the private residence of Brown’s father in the city of Hot Springs. The receiver claimed that the contents of the boxes and the other items mentioned were the property of said copartners, and he made demand on Brown’s father for delivery of said property to him, as receiver, under the court’s order. Pursuant to the demand, Brown’s father delivered the property to the receiver.

Appellant J. M. Brown, who is the brother of E. D. Brown, claimed this property as his own, asserts that he moved it from the place of business of Brown & Holland where he had been at work as an automobile mechanic, and that he left the property with his father for safekeeping. He intervened in the action and filed a plea claiming the property and praying that the court order the receiver to turn the property over to him.

There was a trial of appellant’s plea before the chancery court, which was heard on oral testimony in support of appellant’s claim and against it. The testimony was conflicting as to the ownership of the property in controversy. At least the testimony warranted the inference that the articles in dispute, or some of them, were part of the stock in trade of Brown & Holland from whose place of business they were removed. Appellant testified as a witness, and his testimony supports his claim. But he could not and did not give a detailed list of the articles in the boxes — he could only remember in' general terms the contents of the boxes and the aggregate value thereof. None of the other witnesses knew what the boxes contained, except one of the witnesses introduced by appellee, a negro who had worked in the repair shop and who helped to pack and haul the boxes for appellant. He could only give a general description of the things. Appellant refused to permit the boxes to be opened, though the court suggested that course. The court thereupon entered an order, over appellant’s objections, directing the receiver to open the boxes in his possession in the presence of appellant and three other persons on a specified date, and make an inventory of the articles in the boxes. An appeal has been prosecuted from that order, though the court did not render a decree on the merits of the controversy.

No sound reason is perceived' why appellant can claim exemption from the right of the other parties to the controversy to have the boxes opened so as to disclose the contents thereof and to enable the court to more readily determine whether those contents were the property of appellant or of Brown & Holland, appellee’s debtor. No personal right of appellant was violated in ordering that the boxes in the custody of the receiver be opened. To do so was essential to a correct determination of the rights of the parties.

But the order was interlocutory and not final. It was not an appealable one, for it did not determine the rights of the parties with respect to the subject-matter of the controversy. If an error has been committed, it must be corrected on appeal from a final decree.

The appeal is therefore dismissed.


text:
    Harris v. Terhune.
    Opinion delivered May 9, 1921.
    1. Logs and logging — time for removal of timber. — A contract for the sale of timber which required the buyer to remove it within a specified time and to cut the timber clean, obligated the buyer actually to remove the timber from the land within the time stated, and not merely to sever it from the soil for subsequent removal, and the buyer was liable in damages for removing timber after that time.
    2. Logs and logging — breach of contract — damages.—The measure of damages for breach of a contract to leave the stumps not to exceed a stated height from the ground is the reasonable cost of cutting the stumps down to the required height, and not the difference between the value of the land with the stumps as they were left and its value after they were cut off to the contract height.
    Appeal from Sevier Circuit Court; James 8. Steel, Judge;
    affirmed.

      Lake & Lake and E. K. Eckmrds, for appellant.
    1. Under the terms of the contract, appellant had the right to remove, within a reasonable time, the timber severed from the soil. '89 Ark. 361; 91 Id. 291. Tire word removal in a timber contract means a severance from the soil. Cases supra. Construing the contract in the light of these decisions, it is evident that the intention of the parties that appellant should become the owner of all timber severed from the soil by January 1, 1920, and have a reasonable time thereafter to haul away any logs then remaining on the land, and the court erred in giving for ap-pellee instructions 1 and 2 and in refusing Nos. 1, 2 and 3, asked by appellant.
    2. On the issue of the amount of damage's sustained because some of the stumps were left higher than fifteen inches, the court overlooked the fact that the stumps, being small pine stumps, would rot and be entirely gone in a few years, and the appellee’s damages were on that account only temporary, and it was error to give the instructions requested by appellee and refuse appellant’s request. Appellee made no attempt to prove the actual loss or damages, and only nominal damages should have been allowed for any breach of the contract. 106 Ark. 274. ■
    3. The demurrer to paragraph 7 of the complaint should have been sustained. 91 Ark. 292; 89 Id. 361.

      Reynolds & Steel, for appellee.
    This suit is nothing more than one to construe a contract and hinges'upon the legal meaning of the word “removed” as used therein. It is the duty of the court unless it is ambiguous. Here it is plain and not ambiguous, and it was the duty of the court to so construe it as to carry out the intention of the parties. Lawson on Contracts, pp. 387-8-9; .'Bishop on Contracts, p. 384; 53 Ark. 58; 23 Id. 582; 3 Id. 258. “Removal” signifies an actual or physical change in the position or locality — to move away from the position occupied. See Words and Phrases, citing 120 Fed. 182; 86 Ky, 186; 5 S. W. 567; Funk & Wagnalls’ Diet., “Remove.” See, also, 87 S. W. 1119.. A sale of timber on a tract of land to be removed within a given time is only a sale of so much timber as is removed within that time. 86 S. W. 1122; 26 Mich. 523; 96 Id. 83; 25 Cyc. 1551; 46 Am. Rep. 32; 28 A. & Eng. Ene. 541; 107 S. W. 733, and many others. Appellant had a reasonable time within which to remove the timber after the expiration of the specified time. 167 S. W. 1116. A severance from the soil is not a removal from, the premises. 114 Tenn. 196; 87 S. W. 415; 59 Ore. 149; 100 Miss. 177; 56 So. Rep. 329; 160 N. 0. 281; 75 S. E. 714.
    The judgment is not excessive, and there is no error.
   McCulloch, C. J.

Appellee, who was the plaintiff below, owns a small tract of land in Sevier County, and on October 5, 1918, he sold and conveyed to appellant the pine timber on said tract of land and executed to appellant a contract or conveyance, in writing, which, after reciting the consideration and describing the tract of land and timber thereon, contained the following clause:

“The said second parties shall have till January 1, 1920, to remove said timber. And said second parties agree to commence cutting the timber at the north end of said land and to remove all of their said timber clean as they go. And the said second parties further agree to cut the timber as close to the ground as practicable and in no case to exceed fifteen inches above the level of the ground.”

A part of the timber on the land was cut down by appellant and removed from the land before the date specified in the contract, January 1, 1920; and a considerable portion of the timber was felled and cut into saw logs immediately before the expiration of the time mentioned, but was not removed from the land until a short time after the expiration date. In cutting the timber the stumps on the land were left higher than fifteen inches above the level of the ground.

This action is to recover damages on account of the removal of the down timber after the expiration of the date mentioned in the contract, and for failure to cut the stumps to a height of not exceeding fifteen inches above the level of the ground. On the trial of the cause the jury found in favor of appellee, assessing tlie damages at the sum of $96, the value of 24,000 feet of logs at $4 per thousand, and the sum of $46.35, the cost of cutting 309 stumps at 15 cents each. The verdict is supported by legally sufficient evidence, and the judgment must be affirmed if the issues as to the right of appellant to remove the timber after the expiration of the date mentioned in the contract and the measure of damages for failure to cut the stumps in accordance with the contract were properly submitted to the jury.

The contention of appellant is-that under the terms of the contract he had the right to remove, within a reasonable time, timber severed from the soil within the period specified in the contract, and that the measure of damages for failing to cut the stumps in accordance with the terms of the contract was the difference, if any, between the value of the land in the condition in which appellant left it and the condition in which it would have been if the stumps had been properly cut. Appellant relies on the case of Indiana & Ark. Lbr. & Mfg. Co. v. Eldridge, 89 Ark. 361, in support of his contention that he had a right under the contract to remove severed timber within a reasonable time after the expiration of the date mentioned in the contract. His contention is that the word “remove” meant severance from the soil, and that the time restriction in the contract was only to that extent, and that it did not prevent him from removing the logs within a reasonable time. In the case referred to there was a written contract or deed of conveyance, as in the present case, granting the timber to the purchaser, and there was also a clause which gave a specific period of time within which to * ‘ cut and remove ’ ’ the timber. We decided that the proper interpretation of the contract was to construe the words “cut and remove” together and as meaning a severance from the soil, and we stated the rulé of law applicable to the sort of contract, as follows: “But we think that the weight of authority and the best considered cases which are strictly in point harmonize with the view that all timber cut down and severed from tbe soil by tbe grantee before tbe date specified in the contract of sale becomes his personal property, which be may remove in a reasonable time after said date, unless by tbe express terms of tbe contract a contrary intention is manifest. ’ ’

Now, tbe language in tbe contract under consideration in tbe present case is slightly different from that used in tbe contract dealt with in tbe other case, in that tbe word “cut” is omitted and tbe language of the contract is that the time mentioned is given “to remove” said timber. There is no reason to construe tbe word “remove” as relating to tbe cutting or the severance of tbe timber from the soil. Tbe plain signification of tbe word is to talie away or to transfer from one place to another, that is, to change tbe location of tbe timber from tbe particular land to some other place. The use of the words “to remove,” therefore constitutes, within tbe rule laid down in tbe case cited above, an express, contract that tbe right of tbe purchaser to take away tbe property is limited to tbe time specified. Tbe consideration of other language of tbe contract strengthens this view, for tbe next sentence provides that tbe cutting should commence on a certain part of tbe land, and that appellant should remove all of tbe timber “clean as they go.” This is tbe construction placed on tbe contract by the trial court, and tbe issue was submitted to tbe jury under this rule to determine tbe value of tbe timber wrongfully removed by appellant after tbe expiration of tbe contract.

On tbe other branch of tbe case we are of the opinion that tbe trial court was correct in bolding that tbe measure of damages for tbe breach- of tbe contract was tbe necessary expense of having tbe stumps cut so as to conform to tbe specifications of the contract. It was a part of tbe contractual obligations of appellant to cut tbe stumps down to a certain height from tbe ground, and it was appellee’s right to have tbe contract performed in tbe specified manner or to recover as his damages tbe additional cost of completing tbe performance so as to conform to contract. Inland Construction Co. v. Rector, 133 Ark. 277. It does not answer appellee’s claim for damages to say that the difference in value of his land was less than the additional cost of putting it in the condition that the contract called for.

Judgment affirmed.


text:
    Howell v. Daughet.
    Opinion delivered May 9, 1921.
    1. Animals — impounding statutes. — Statutes authorizing the impounding and sale of stock found running at large in violation of law are valid as police regulations.
    2. Animals — impounding statutes. — A statute authorizing the impounding and sale of stock running at large and providing for killing the animal taken up if no bidder appears at the sale held valid.
    3. Animals — eight op owner to reclaim. — A statute authorizing the taking up and sale of stock found running at large in violation of law is not invalid as unduly limiting the time within which the owner may appear and show cause against the condemnation and reclaim the animal where the statute gives the right to reclaim at any time up to the sale.
    4. Constitutional law — impounding statute. — A statute authorizing the impounding and sale of stock found running at large in violation of law is not confiscatory because it directs the officer who sells the animal, after paying the specified fees and expenses, to pay the residue over to the county treasurer to the credit of the road and bridge fund of the county.
    5. Animals — impounding statute. — An impounding statute held to give the owner a reasonable time for reclamation where it provides for a notice of the seizure to be posted in five public places for either ten or twenty days according to the value of the stock, and also providing a notice of sale after condemnation.
    Appeal from Hempstead Chancery Court; James D. Shaver, Chancellor;
    affirmed.

      Will Steel, for appellants.
    The act of 1819, act No. 496, is unconstitutional and void, and appellants have the right to enjoin its enforcement. 1 High on Injunctions (4 ed.), p. 87; 118 Fed. Rep. 399; 195 U. S. 223-4; 12 Cyc. 903. The act conflicts with art. 14, § 1, Const. U. S. and art. 2, § 8, Const. Ark. It unlawfully deprives residents of the district of their property without due process of law. The whole act is void, as the valid and invalid parts of the act can not be separated. 6 R. C. L., §§ 122-3-5-7; 111 Ark. 108, 118; 89 Id. 466. The intention fo the Legislature must be gathered from the language of the act. The act can not by judicial construction be so amended as to leave a valid and effective law. 126 Ark. 260; 79 Id. 517; 49 Id. 492. See, also, 31 Ark. 77-91. The provisions of the act are arbitrary, oppressive and unjust — purely arbitrary — and are not founded upon necessity under the circumstances. 96 U. S. 107. The courts are the judge of the reasonableness of an act. 83 Ark. 180. The act is clearly unconstitutional.

      James H. McCollum, for appellees.
    The presumption is in favor of the constitutionality of an act, and all doubts are resolved in its favor. 39 Ark. 353; 85 Id. 464; 100 Id. 175; 102 Id. 166; 199 Id. 314. Under these decisions the act is valid. But if the last clause of § 1 is in conflict with our “due process” clause of the Constitution, it is separable and should be stricken out or treated as surplusage and leave the act to stand. 37 Ark. 356; 46 Id. 312; 70 Id. 94; 89 Id. 466; 111 Id. 108; 125 Id. 350; Ann. Cases D 1916, p. 1, and note.
   McCulloch, C. J.

The G-eneral Assembly of 1919, at the regular session, enacted a special statute creating a district in Hempstead and Nevada counties where stock is prohibited from running at large, and the statute was put into effect after adoption by a vote of the. qualified electors of the district. Appellants are citizens residing within said district and owned stock therein, and they instituted this action in the chancery court of Hempstead County to restrain the officers from enforcing the provisions 'of the statute. They contend that the statute is unconstitutional and void, and they have appealed from a decree of the chancery court dismissing their complaint.

The statute provides, in substance, that any animal found running at large within the area mentioned shall be taken np and delivered to a justice of the peace of tlie township; that said justice of the peace shall cause the animal to he appraised by three disinterested persons and shall then give notice, by posting in public places describing the animal and calling on persons claiming any interest to appear and show cause why the animal should not be condemned and sold, and that if at the expiration of the specified period no person appears to show cause against it the justice of the peace shall enter judgment condemning the animal to be sold to the highest bidder, on notice by posting and by publication in a newspaper; that the sheriff of the county or the constable may make the sale, and that said officer shall dispose of the proceeds by paying a fee of $1 to the taker-up of 'the animal, a fee of 50 cents each to the appraisers, a fee of $1 to the justice of the peace, a fee of $1 to the officer for making the sale, and also to the person entitled thereto the cost of keeping and caring for the animal up to the time of the sale at the rate of 50 cents per day, and that “the rési-due. if any, shall be paid into the county treasury to the credit of the road and bridge fund of said county. ’ ’ Another section of the statute permits the owner of the animal or any one having or claiming any interest therein “to retake the same upon payment of the fees allowed to the taker-up thereof, and for the appraisers and to the •justice of the peace as in the case of sale together with cost of keeping and earing for such animal.” There is also a provision in the statute to the effect that if no person shall bid anything for the animal offered for sale the officer in charge shall proceed to kill the animal.

It is ’ contended, in the first place, that this statute attempts to authorize the taking of property without due process of law, and for this reason it is unconstitutional and void. It is very generally held by the courts, especially in the more recent decisions, that statutes authorizing the impounding and sale of stock found running at large in violation of law are valid as police regulations. The cases on this subject are collated in 12 Corpus Juris, page 1284, and in the case note in Fall Creek Sheep Co. v. Walton (24 Idaho 760), 37 Ann. Cas. 1915 C, 1252. The question of the validity of such statutes has been put at rest by several decisions of this court. Fort Smith v. Dodson, 46 Ark. 296; Hendricks v. Block, 80 Ark. 333; Ross v. Desha Levee Board, 83 Ark. 176.

In those cases it was decided that under the police power there can be a summary seizure and sale of trespassing stock without personal service of notice on the owner and without any kind of judicial proceedings. It may be noted, however, that the statute now under consideration provides for a judicial determination of the right under the statute to condemn in a given case, though it does not provide for personal service of notice. It is not doubted that the provisions of the statute are valid so far as they relate to the seizure and sale of the property. Nor is the validity of the statute affected by the provision in regard to killing the animal taken up if no bidder appears at the sale. This is to provide for an emergency where it is demonstrated by failure of bidding that the animal is without value, and in order to dispose of it so as to prevent further depredation, and to obviate the burden of keeping the valueless animal, it is provided that it shall be killed.

One of the contentions in support of the attack on the validity of the statute is that it limits the time within Avhieh the owner may appear and show cause against the condemnation and in which he may reclaim the animal to the day specified in the original notice and does not give the right to reclaim up to the time of sale. Counsel is, we think, mistaken in his interpretation of the statute, for, according to a fair and reasonable interpretation, the framers of the statute intended to give the owner the right to reclaim his stock at anytime up to the sale, or at least that the time for reclamation was not limited to one date.

The principal ground for attack on the validity of the statute is that the provision which directs the officer who sells the animal, after paying the specified fees and expenses, to pay tlie residue over to the county treasurer to the credit- of the road and bridge fund of the county. It is contended that this constitutes a confiscation of the property, and that if the provision is invalid it vitiates the whole statute. We do not, however, agree with counsel in his interpretation of the statute and do not think tliat it should be construed as a confiscatory provision. The purpose is to give the owner the right to reclaim his property at any time up to the sale by paying the fees and expenses, and the other provision with reference to the residue of the funds constitutes merely a final disposition of the funds in the event the owner has failed to claim his property. If the terms of the statute are reasonable and give the owner a fair opportunity to reclaim his property upon the payment of accrued expenses and fees, 'then the lawmakers have the power to provide for a final disposition of the surplus funds, in the event of a sale of the property on failure of the owner to reclaim it. And it does not, under those circumstances, constitute a confiscation of the property to authorize the residue of the funds to be appropriated to public use. This is the scheme provided in our estray laws for the disposition of proceeds of sale of an estray (Crawford & Moses’ Digest, chapter 4, subdivision 2) which are, in substance, that a stray animal may be taken up and after appraisal shall be kept for a period of one year, and if not reclaimed shall become the property of the person who takes it up, and that one-half of the net appraised value of the animal shall be paid to the county treasurer as public funds. This was a part of the Revised Statutes of 1838, with only a few amendments up to tins day, and the validity of these provisions has never been challenged. On the contrary, this court has impliedly, if not expressly, sanctioned them and upheld their validity in several cases. Phelan v. Bonham, 9 Ark. 389; Davis v. Calvert, 17 Ark. 85; Smith v. Williams, 95 Ark. 587.

The only difference between the two statutes, so far as concerns the validity of -the one now under consideration, is as to the time given for reclaiming the property by the owner, and that presents the question whether or not the time given for reclamation by the owner is reasonable. Our conclusion is that it is reasonable, or at least that we should not, in the face of the legislative determination, declare it to be unreasonable. This particular statute applies to a limited territory, and there is a provision for two notices, one to be given by the justice of the peace as soon as the impounded animal is appraised and which is posted in five public places in the immediate locality where the animal is taken up. Ten days’ notice is required where the property is not over $50 in value and twenty days where it is over that value. After condemnation a notice of sale is then required, which is not only by posting in the locality but by publication in a newspaper. This notice is reasonably calculated to bring home to the owner information as to the fact that his animal has been taken up and is sufficient to satisfy the demands of justice. It is a reasonable interpretation of this statute that the owner may appear and reclaim the property itself at any time before it is sold, but the statute makes it the duty of the officer to deliver the proceeds of the sale of unreclaimed property to the county treasurer. It is intended, not as a confiscation of the property of the owner or of the funds arising from the sale, but as a disposition of the surplus funds arising Prom the sale of the unreclaimed property. This the Legislature could authorize if the provision for notice is reasonable. Suppose this statute had provided that the funds should be paid over to the county treasurer to be held for the owner for a period of six months and then if unclaimed should be finally credited to a given public fund. Can it be doubted that the statute would be valid? We think not, for the length of time within which the fund might be claimed would undoubtedly be reasonable. We are of the opinion that the provision in the present statute is not unreasonable, for it gives the owner ample opportunity to reclaim his property.

The chancery court was correct in refusing to restrain the enforcement of the statute under consideration, and the decree is therefore affirmed.


author: Wood, J.

text:
    Payne v. Thurston.
    Opinion delivered May 9, 1921.
    1. CARRIERS — TIME FOR PASSENGERS TO ALIGHT. — It is the duty of carriers to allow their passengers a reasonable opportunity to alight, and in determining what is a reasonable time they should take into consideration any special condition peculiar to any passenger and to the surroundings at the station.
    2. Carriers — failure to assist passenger — negligence. — Under the evidence, whether the servants of a carrier were negligent in not allowing a passenger sufficient time to debark from a train, and in not rendering her assistance in debarking, held for the jury.
    3. Carriers — duty to assist passenger. — ’While there is no affirmative duty on the part of the trainmen to ascertain the physical condition of passengers or other conditions and circumstances making it necessary to render them special assistance in debarking from the train, yet where the passenger’s physical ailment or other conditions are such that the trainmen in the exercise of ordinary care are bound to observe that the passenger requires assistance in getting off the train, it is their duty to render it.
    4. Evidence — statement as to past event. — -A statement by one that she had fallen from defendant’s train and hurt her knee, and that she was unable to walk, was inadmissible, being a narrative of a past event and not in the nature of res gestae.

      5. Appeal and error — harmless error — admission of evidence.— The erroneous admission of evidence was harmless where other evidence to the same effect was admitted without objection.
    6. Evidence — abstract hypothetical question. — A hypothetical question addressed to an expert witness which assumes the existence of a fact that the evidence does not tend to prove is too broad.
    7. Appeal and error — specific objection to evidence. — Specific objection must be made at the time that there was no evidence tending to prove one of the facts assumed by a hypothetical question to an expert, and such objection comes too late on appeal for the first time.

      8. Appeal and ERROR — abandonment op ground op motion for new trial. — A ground of appellant’s motion for new trial, not urged in Ms brief, will be treated as abandoned.
    Appeal from Logan Circuit Court, Southern District; James Cochran, Judge;
    affirmed.

      Thos. 8. B'usbee, Geo. B. Pugh and A. 8. Buzhee, for appellant.
    1. It is apparent that appellant was guilty of no negligence, and a verdict should have been directed for defendant. It was the duty of the carrier to allow a reasonable time and opportunity to get on and off its trains and trains must stop at stations long' enough for that, purpose. A reasonable time is such time as a person of ordinary care and prudence should be allowed to take. It is the duty of the carrier in determining what is a reasonable time to take into consideration any special conditions peculiar to the passenger and the surroundings at the station and give a reasonable time under existing circumstances as they are known, or should be known, by the carrier’s servants for a passenger to get on or off its trains. 105 Ark. 269; 101 Id. 183. The testimony is undisputed; shows that the carrier performed its whole duty, and there was no negligence nor liability. 117 Ark. 483; 101 Id, 532.
    No negligence of the carrier was shown. No disability was shown in Mrs. Thurston, and in the absence of any notice of disability appellant owed no duty to her other than that allowed the ordinary passenger. 115 Ark. 505.
    2. Under the authority of 115 Ark. 505, it was error to give instructions Nos. 8 and 9 for appellee, without also giving, at the same time, Nos. 3 and 4 requested by appellant. The condition and needs of a passenger must be made known to the carrier or its servants. 115 Ark. 505.
    3. It was prejudicial error to admit the testimony of John A. Scott. It was hearsay and inadmissible. 78 Ark. 220: 114 Id. 56.

      4. Hypothetical questions which were erroneous were permitted to he asked which were clearly prejudicial. 136 Ark. 83; 130 M 456.

      JolmP. Roberts and Evans & Evans, for appellees.
    1. Where an injury is caused by the operation of a railway train, a prima facie case is made against the company operating the train. 73 Ark. 548-53; 131 Id. 571.
    2. It is the duty of a carrier to stop its trains long enough for passengers to get off and on its trains. A reasonable time must be allowed under all the circumstances of the case. It is the duty of the carrier to determine what is a reasonable time from the circumstances that are known, or should be known, to it. 128 Ark. 479; 73 Id. 548. A railroad must take notice of all things it should have taken notice of in the exercise of the highest degree of care due to passengers on its trains. Railroads are held to the highest degree, of care reasonably consistent with their mode of conveyance and the practical operations of trains. 99 Ark. 365; 105 Id. 269. A carrier must give a reasonable time for passengers to alight. 2 Hutchinson on Carriers, § 1118.
    3. There is no error in the instructions. They state the law correctly; nor was incompetent testimony admitted.
    4. The testimony clearly showed that the injury to Mrs. Thurston by her fall hastened her death, and any injury which hastens death causes it within the meaning of the law. 50 Ark. 545; 1 Hale P. C. 428.
    "Where two concurring causes produce an injury which would not have resulted in the absence of either, the party responsible for either cause is liable for the consequent injury. 129*Ark. 520; 130 Id. 435.
   Wood, J.

An action was brought by Henry Thurs-ton, appellee, who was the husband of Dora Thurston, to recover judgment against the appellant for damages which he alleged he sustained by reason of the death of his wife. The appellee, among other things, alleged that Mrs. Thurston was a passenger on appellant’s train from Booneville, Logan County, Arkansas, to Waveland, Yell County, Arkansas; that the agents of appellant negligently failed to stop and hold the train at Waveland for a sufficient length of time to allow Mrs. Thurston to alight in safety; that they negligently failed to furnish her with the necessary assistance and means to enable her to safely debark from the train; that by reason of the acts of negligence alleged, Mrs. Thurston fell while endeavoring to alight from the train and received injuries which produced and hastened her death, to his damage in the sum of $3,000, for which he prayed judgment.

The appellee, Charles I. Evans, as administrator of the estate of Mrs. Thurston, instituted an action against the appellant to recover damages for the benefit of the children of Mrs. Thurston. The acts of negligence alleged in his complaint are the same as those set forth in the complaint of the appellee, Henry Thurston. Appel-lee Evans alleged damages also in the sum of $3,000, for which he asked judgment. The answers denied the allegations of negligence and damages and denied liability. The causes were consolidated for trial and were sent to a jury. The trial resulted in verdicts and judgments in favor of the appellees, from which is this appeal.

1. The appellant contends there was no evidence to sustain the allegations of negligence in the complaint. The facts on the issues are substantially as follows:

About July 1, 1919, Mrs. Thurston, in company with her little girl and carrying such baggage as she needed for a trip, hoarded appellant’s train at Booneville, Logan County, Arkansas, for appellant’s station at Wave-land, Yell County, Arkansas, a distance of about eighteen miles. Mrs. Thurston had been ill'for some years with tuberculosis, though at that time she was better and was going on a visit to her mother for the benefit of her health. The train on which Mrs. Thurston took passage was about five hours late. It arrived at Waveland about two o ’clock p. m.

A witness who lived at Waveland observed Mrs. Thurston attempting to get off the train after it bad started. He was standing close to the steps and beard Mrs. Thurston holler and she kept hollering to let her off. Witness took hold of the little girl and set her off, and as she looked around Mrs. Thurston stepped off of the steps and got down and fell over on one leg and knee. She fell in an effort to get off of the train as it was starting. When witness heard Mrs. Thurston hollering after the train started, somebody began to flag the train. It did not stop until after Mrs. Thurston got in the waiting room. No one else got off there, and witness did not see any one get on. Neither the conductor, the porter, nor the brakeman were there. The train moved five nr six feet before it stopped. It was barely moving when she stepped off. She got down on one leg and on both hands. Witness did not assist her at all. The train was barely moving when witness helped the little girl off. Witness did not get to Mrs. Thurston before she got up. Witness did not know whether Mrs. Thurston kicked the step box off or not, but it fell off.

Another witness saw Mrs. Thurston while she was waiting to take the train that day, and she looked like she had been sick. Another witness, who was on the train when it reached Waveland, stated that she heard the step box fall and looked around and saw Mrs. Thurs-ton on one knee on both her hands on the ground. The train was then moving slowly. Mrs. Thurston got up and went to the station.

The conductor of the train testified that the-first he saw of Mrs. Thurston was when she was right in front of the freight room, probably going into the waiting room. The porter -had told him that some lady had fallen. He went back and asked her about getting off and asked her if she was hurt, and she stated that she was frightened more than anything else. This occurred in the waiting room. The witness looked after the unloading of passengers from the white passenger coach. He did not see Mrs. Thurston attempting to get off. The train was a vestibule train. Witness had been off the train at the front end of the chair car. They had a porter and a brakeman that day. The brakeman was back three or four car lengths protecting the rear end of the train. After the passengers were unloaded and loaded, witness and porter and brakeman went up to the express ear. They stayed there three or four minutes. The brakeman’s duties required him to be back at the rear end of the train. When the witness took up the ticket from Mrs. Thurston, she did not say anything to witness about being sick, and she was sitting in a seat just like the rest of the passengers. Witness did not pay any attention to her.

Another witness on behalf of the appellant testified that he was the station agent at Waveland and that he remembered the time Mrs. Thurston came down there and got off the train while it was just moving up. He saw her in the waiting room — was there when the conductor asked, her if she was hurt and she said she was not. Witness heard her say that she stepped off of the train and fell.

In Barringer v. St. L., I. M. & S. Ry. Co., 73 Ark. 548, we said: “But the law is that it is the duty of carriers to allow their passengers a reasonable opportunity of getting on or off their trains, and they must stop at stations long enough for that purpose. A reasonable time is such time as a person of ordinary care and prudence, under the circumstances, shouldhe allowed to take. It is the duty of the carrier, in determining what is a reasonable time, to take into consideration any special condition peculiar to any passenger, and to the surroundings at the station, and to give a reasonable time under the existing circumstances, as they are known, or should be known, by its servants, for a passenger to get on or off its train.” St. L., I. M. & S. Ry. Co. v. Trotter, 101 Ark. 183; St. L., I. M. & S. Ry. Co. v. Wright, 105 Ark. 269; St. L., I. M. & S. Ry. Co. v. Aydelott, 128 Ark. 479-485.

Applying the above doctrine to the facts which the evidence above set forth tended to prove, it was clearly an issue for the jury to determine whether or not the servants of appellant were negligent in not allowing Mrs. Thurston sufficient time and rendering her the necessary assistance in debarking from appellant’s train. The jury was warranted in finding that Mrs. Thurston and her little daughter were the only passengers who alighted from the train at Waveland station the day of the alleged injury, and that the conductor and his assistants — the porter and brakeman — knew, or should have known, this fact; that, when they were in the act of aligthing, the train was started and was moving slowly as they got off; that no step box was placed on the ground for their use; that, in her sick and feeble condition and. with her little girl and their baggage, it was necessary that Mrs. Thurston have assistance to enable them to get .off safely, and that appellant’s agents were bound to have known such facts and were negligent in not furnishing her such assistance and in not holding the train a reasonable length of time, under the circumstances, for Mrs. Thurston to safely alight.

While there is no affirmative duty upon the part of a conductor, porter or brakeman to ascertain the physical condition of passengers, or other conditions and circumstances making it necessary to render them special assistance in debarking from the train, nevertheless, where the physical ailment of any passenger is such, or other conditions áre such, that these train employees in the exercise of ordinary care in the discharge of their respective duties are bound to observe that they require assistance in getting safely on or off the trains, then it becomes the duty of such employees to render such assistance; and a failure to discharge such duty, resulting in injury to a passenger, is negligence, for which the carrier is liable in damages for such injury. In this case the jury might have found that Mrs. Thurston’s very appearance indicated that she was seriously ill. Her only companion was her little girl, and she was incumbered with some baggage. Under these circumstances, the porter and brakeman and conductor, knowing that these were the only passengers to he discharged at Waveland, in the exercise of ordinary care in the discharge of their respective duties, could and should have observed that Mrs. Thurs-ton needed assistance to enable her to safely debark from the train, and that it was necessary for the train to be detained a sufficient length of time for that purpose. At least, it was a question for the jury under the circumstances to say whether or not these employees were negligent in failing to discharge their duties to Mrs. Thurston.

The instructions of the court on the issue as to whether appellant was negligent as alleged in the complaint were in conformity with the law as announced in previous decisions of this court in regard to the duty of carriers toward their passengers while getting on and off trains. See Barringer v. St. L., I. M. & S. Ry. Co., supra; St. L., I. M. & S. Ry. Co. v. Hartung, 95 Ark. 220. The doctrine announceed in Weirling v. St. L., I. M. & S. Ry. Co., 115 Ark. 505, is not applicable to the facts of this record, because of the difference between the facts of that case and those of the instant case. The court did not err in refusing the instructions in which the appellant sought to have the doctrine of that case applied to the facts of the present case.

2. Witness John Scott testified that he was at the station on the day that Mrs. Thurston got hurt. He met her right this side of the station. She said that she was sick, .or had been sick, and that she had fallen from the train and hurt her knee and ankle, and that she was not able to walk to her brother’s house. The appellant objected to the above testimony and asked that the same be excluded from the jury. The court overruled the objection and refused the request, to which the appellant duly excepted.

The testimony was not in the nature of res gestae. The remarks of Mrs. Thurston were not in the nature of voluntary exclamations of pain resultant from the injury she had received, hut they were in the nature of a narrative of the fact that she was sick, that she had fallen and hurt her knee and ankle, and for that reason she was not a'ble to walk to her brother’s house. The court, therefore, erred in its ruling. L. R. & H. S. W. Ry. Co. v. Cross, 78 Ark. 220; Prescott & North Ark. Ry. Co. v. Thomas, 114 Ark. 56. But we can not agree with learned counsel for appellant that the error was prejudicial to appellant’s defense. The undisputed testimony shows that Mrs. Thurston fell on her hands and knee. The appellant’s conductor himself testified that the porter told him that some lady had fallen and that she was supposed to have dropped down on her knee in getting off of the train. Another one of appellant’s witnesses testified that he heard Mrs. Thurston say that she stepped off of the train and fell.

Mrs. Thurston’s brother, who was a witness for appellant, testified that when he drove up she told him that he had just come in time to save her life. ‘ ‘ She was complaining of being sick, and while she was at his house she kept complaining of a hurting in her side. She stayed there all night. My sister said she started to get off the train, and the little girl went out ahead of her, and she just kicked the step box out and started to getting off and the train was moving slowly when she started to- step off, but when she hit the ground she fell on one hand and on one knee.”

Other witnesses on behalf of the appellee, and without objection on the part of the appellant, testified that Mrs. Thurston fell on her knee and both hands, and that she said she had been sick, and she looked like she had been sick.

The physician, who was called to attend Mrs. Thurs-ton at her mother’s just after the alleged injury from the fall, testified, without objection from appellant, that he found that she “was suffering from some kind of a shock — had a bruised place on one ,Nf her knees — looked very much like she had fallen on her knee. ’ ’

In view of the testimony thus adduced by appellant itself and the undisputed testimony of the witnesses for the appellee showing that Mrs. Thurston was sick and that she had fallen on her knee and hands, it occurs to us that no possible prejudice could have resulted to appellant from the mere statement of Mrs. Thurston that she was sick and had fallen and hurt her knee and ankle. It will be observed that she did not say that her fall was caused by any negligence on the part of the servants .of appellant and appears to have been only narrating the fact of her fall merely to show that she was unable to walk to her brother’s house. This statement was but a recital of facts which had been established by the undisputed evidence and to which appellant had before offered no objection.

3. Counsel for appellee asked several physicians— experts — substantially the following question: “If she received an injury to her left side and a shock to her knee and body by falling on the ground, and she was at that time suffering from tuberculosis and afterward was continuously confined to her bed until she died, what is your opinion as to whether or not that injury hastened her death?” Counsel for the appellant objected to the question. The court overruled the objection, and it is now contended that the court erred for the reason that the hypothetical question included an assumption of the fact that Mrs. Thurston in the fall had received an injury to her left side and body when there was no testimony to justify such assumption.

The court excluded from the jury what Mrs. Thurs-ton said with reference to her side hurting her, but the doctor was allowed to testify without objection that she appeared to be suffering from a shock. There is no testimony that her side was injured by the fall, and no testimony that any part of her body was injured except her knee and ankle. The hypothetical question was, therefore, too broad because it assumed the existence of Tacts that the evidence did not tend to prove. The question was defective. Taylor v. McClintock, 87 Ark. 243-294; Bell v. State, 120 Ark. 535-551-2; Kelley v. State, 146 Ark. 509. However, there was evidence tending to establish. some of the facts assumed in the hypothetical question. It was the duty of the counsel, if he desired to have eliminated the particular fact which he now claims there was no evidence to sustain, to have called the court’s attention to it by specific objection to such fact. See Bell v. State, supra; Powell v. State, 74 Ark. 355; Missouri & North Ark. Ry. Co. v. Daniels, 98 Ark. 352-359-360. The specific objection which the appellant now makes to the hypothetical question for the first time can not avail it.

4. The appellant contends in the last place that there is no evidence that Mrs. Thurston’s death was in any way hastened by the injuries alleged to have been sustained. The answers to the hypothetical questions propounded to the several experts show that this contention is not tenable. The experts gave it as their opinion, assuming the existence of facts as stated in the hypothetical questions, that Mrs. Thurston’s death was hastened by her fall from the train.

Learned counsel for appellant do not urge by way of argument in their brief that the judgments are excessive, and we therefore treat that ground of its motion for a new trial as abandoned.

The judgments are correct, and they are affirmed.