author: Hehaffy, J.

text:
    Fraser v. Norman.
    Opinion delivered October 19, 1931.

      B'uzbee, Pugh $ Harrison, for appellant.

      Evans ■<& Evans, for appellee.
   Hehaffy, J.

The appellee brought suit against the appellant to recover damages for injury received while in the employ of the appellant. He alleged that he was working under Judson Jeff us, general foreman, doing whatever J'eifus directed him to do; that J effus directed him to assist one George Baumis about some carpenter work and to follow Baumis’ instructions in performing his work; that he was ordered by said Baumis to go upon a scaffold and nail some headers which he had been cutting for Baumis; that the scaffold had been negligently constructed by defendant’s agent too close to the wall, so' that while working overhead, nailing headers, the plaintiff was overbalanced, so that when he struck a nail in his awkward position the scaffold slipped, causing him to strike the nail a glancing lick, which caused the nail to ricochet out. The nail struck plaintiff in the eye, catm ing him to lose his eye. He prayed for damages in the sum of $5,000.

The answer of appellant denied, all the material allegations of the complaint, and alleged that whatever damages he sustained were the result of his own negligence or of a risk assumed by him.

The appellee testified that he was 50 years old, a laborer, not a carpenter but a carpenter helper; that he was employed by the appellant and began work on the first day of July, and worked until the third of September, when he received his injury. Appellant, who was a contractor, was building a school house. He had worked for appellant before, beginning in 1927 and working off and on until he was injured. He was hired as a carpenter helper, or anything that was to be done on the job.

The morning before the injury, the foreman wanted some extra laborers, and appellee helped him to pick some, as he lived there, and the foreman then told him to go and help George Baumis, a carpenter. He asked Baumis what he wanted him to do, and Baumis told him to cut some headers and bring them up and lay them on the scaffold. Baumis then told appellee to get on the scaffold and nail some of the headers. Appellee asked, “How is the scaffold?” and Banmis said, “It’s all right I’ve been on it.”

Appellee got on the scaffold, and Banmis told him to go ahead and nail some of the headers, and he did. There was a 1 x 8 nailed to studding on the partition wall and a leg of the same kind of material, and another 1x8 nailed from the studding of the partition wall over to the window frame, and a 2 x.10 lying across these, and this constituted the scaffold.

The scaffold was about 4% or 5 feet high and extended out from the partition wall about 3 feet. The arm was about three feet long, and the header extended out from the partition wall and the scaffold was very close to the wall, and, when he went to nail the headers he had to lean back, and when he leaned back his feet were on this 2 x 10 which was loose, and when he made the lick in the header the 2 x 10 he was standing on slipped and went back, which caused him to hit the nail a glancing lick, and it flew out of the timber and hit him in the eye. He did not fall but caught on to the overhead joist.

Baumis was doing the same thing, only he was above appellee. He had not nailed any of these headers before he was hurt; thinks that was the first one. When the nail hit him, he got pretty sick, told Mr. Fraser about it, and Fraser said he had better go to the doctor. He went to Dr. Hedrick, who told him his eye was out. Fraser came down, and Dr. Hedrick told him to take appellee to a specialist. He was taken to Dr. Moulton, a specialist, to treat him, who finally removed the eye-ball.

Appellee then told about his injury and suffering, but it is not necessary to set this testimony out because there is no dispute about the extent of his injury.

On cross-examination appellee testified that he had done carpenter work for a number of years and had worked on platforms before; that the ceiling was to be put on these headers. The particular work he was doing at the time was nailing these headers for the ceiling to be placed on. He had his own tools, a hammer and saw and square. His hammer was in good condition, and the nails were ordinary six-penny nails.

At the time of his injury he was standing on the 2 x 10. He did not put it there, Mr. Baumis put it up that morning. The 2 x 10 was just laid on the cross-bars. They very seldom nail them down. The arm was nailed to a stud, and this 2 x 10 was just lying up there. It was about 12 feet long. This 2 x 10 plank was about 12 feet long and was lying across these arms, and could be moved when he got ready. He could move it around to other positions as he saw fit, according to how he wanted to stand. That was the plank he was standing on when he drove the nail and became overbalanced. He felt the plank move toward the wall. It was not against the wall. He could have put it where he wanted it. He thought it was at a convenient place until he went to drive the nail.

The platform extended 10 or 12 feet, and he could step about on it any place to drive the nail. When he reached back, the board went toward the wall. The arms and legs were there when he went there. The plank he was standing on was laid up solid on the arms.

Dr. Moulton testified as to appellee’s injury, and Dr. Hedrick also testified as to the extent of the injury. The appellee was then recalled, and on cross-examination testified that he had been on this sort of platform many times before.

The jury returned a verdict for $2,500. Motion for new trial was filed and overruled, and the case is here on appeal.

It is contended by the appellant that there is no evidence to support the verdict, and that its request for a peremptory instruction should have been granted.

The only negligence alleged by appellee is that the scaffold, that is the 2 x 10 on which appellee was standing, was negligently constructed by defendant’s agent too close to the wall, so that plaintiff, while working, was overbalanced when he struck said nail; that the scaffold slipped, causing him to strike the nail a glancing lick.

Baumis, who put the scaffold up, was a fellow-servant and was joined as a defendant in the suit. The court, however, instructed a verdict in favor of Baumis. There is no dispute about the facts.

According to appellee’s own testimony, he had been on similar platforms many times and knew all about the arrangement, knew that they were not generally nailed, knew where the 2 x 10 on which he must stand was placed, and knew also that he had a right to place it wherever he thought proper.

It does not appear from the evidence that the master had anything to do with the scaffold except to furnish the material out of which it was made, and it is generally held that the obligation of an employer to furnish his employees with safe appliances and a safe place to work does not impose upon him the duty of supplying instrumentalities in a completed form.

Where the employees construct the scaffold, the employer’s duty is discharged by furnishing suitable materials, and the employer is not liable for injury due to a defect in the construction or adjustment of the scaffold.

In this case the undisputed evidence shows that the appellee himself had a right, and it was his duty, to adjust it to suit his own convenience.

The general rule may be stated as follows: Where the employer does not undertake to furnish the scaffold, but instead merely supplies material for its construction, and where the employer has no supervision over the erection of the structure and gives no directions in regard to it other than to direct that it be constructed, he is not liable for an injury due to negligence in its construction. 18 R. C. L., 596-597.

If, however, the employer furnishes the scaffold, or, if it is constructed either by himself or under his direction, he must exercise ordinary care to furnish the employees with a safe place to work, and it is 'wholly immaterial whether the master undertakes to perform this duty himself or delegates it to another.

The undisputed evidence in this case, however, shows that the employees themselves constructed the scaffold, and there is no evidence that the master had anything to do witli it.

A servant, in accepting and continuing in the employment, assumes all the ordinary and usual hazards incident thereto, and also all the risks which he knows to exist. Graham v. Thrall, 95 Ark. 560, 129 S. W. 532; Choctaw, O. & G. Rd. Co. v. Thompson, 82 Ark. 11, 100 S. W. 83; Sw. Tel. Co. v. Woughter, 56 Ark. 206, 19 S. W. 575; Fordyce v. Stafford, 57 Ark. 503, 22 S. W. 161; 3rd Labatt’s Master & Servant, § 1168.

There is no contention in this case that there was any defect in the materials furnished or that the scaffold was improperly constructed, except it is claimed that the plank was too close to the wall. This is the only ground of negligence alleged.

The appellee, however, testifies that he had used scaffolds like this before; that he had a right to place a plank wherever he wished, and there was certainly nothing about the situation that was not open and obvious. The employee assumed whatever risk and hazard there was because of the plank’s being too close to the walk

The appellee cites and relies on the following cases: Moline Timber Co. v. McClure, 166 Ark. 364, 266 S. W. 301, but in that case the court said: “There is a sharp conflict in 'the testimony whether or not plaintiff was working under the immediate direction and supervision of the foreman, or whether he was merely working in conjunction with a fellow-servant.”

In the instant case there is no conflict in the testimony, and no claim that appellee was working under immediate direction and supervision of the foreman. He testifies that the foreman told him to go up and help Baumis, but there is no .evidence that the foreman gave him any directions other than to go up and help Baumis.

The next case relied on by appellee is Brackett v. Queen, 162 Ark. 525, 258 S. W. 635. The court said in that case: “The rule is well settled in this State that when it appears to be clear that the servant has knowledge of and appreciates the danger incident to his work, or that the danger is so obvious or apparent that knowledge and appreciation thereof should be imputed to him, then the court should declare as matter of law that the servant is not entitled to recover.”

The court further said in that case: “He was required to do the Avork which was usually done by two men. He was only 18 years of age, and was wholly uneducated. He had only been at work at the mill for about two weeks and had been operating the bull-wheel for a much less period of time. He was not warned about the dangers incident to his work.”

The appellee in the instant case was fifty years old, familiar with this kind of work; had used platforms like this many times, and, besides that, had the right to arrange the plank to suit his own convenience.

The next case relied on by appellee is Jewel Coal & Mining Co. v. Whitner, 170 Ark. 393, 279 S. W. 1031. The court said in that case: ‘ ‘ The plaintiff further testified that he was sitting* in the middle of the front end of the front car where it Avas his duty to sit while driving, and that he had fixed his seat so that coal would not topple off and cause him to fall Avhen he should look back. His testimony as to the rock protruding oAmr the track, to a certain extent, was corroborated by the testimony of another witness. This evidence, if believed by the jury, was sufficient to warrant it in finding* that the defendant Avas guilty of negligence.”

The court in the same case said further: “It is true, as contended by counsel, where the danger is so obvious that knowledge of it and appreciation thereof should be imputed to the servant, the court should have declared as a matter of law that he i-s not entitled to recover against the master. ’ ’

The next case relied on by appellee is Bryant Lumber Co. v. Stastney, 87 Ark. 321, 112 S. W. 740. In that case the appellee testified that the foreman told him to come Avith him and load the car, and he understood that he was to go with the foreman, and he and his co-worker did so and followed the foreman onto the pile of lumber which fell and received no warning of the insecure position of the pile to which he was carried on his route nor notice from the foreman -of the impending danger from the approaching engine. This testimony was contradicted by the foreman, and the court said: “This conflict as to the facts upon which the case hinges is irreconcilable and should go to the jury upon proper instructions for their determination. * * * No presumption of negligence arises from the mere happening of the accident which caused the injury in such actions as these between master and servant; but the master is required to exercise ordinary care in discovering defects and in repairing them and in discovering dangers and obviating them. ’ ’

The next case is Oakleaf Mill Co. v. Smith, 98 Ark. 34, 135 S. W. 333. In that case the court said: “There is a sharp conflict in the testimony. Plaintiff and some of the witnesses testified that, though he was foreman, his duties were limited to those of superintending the work of the men on one of the floors of the mill; that he worked under the direction of the general manager, and that a millwright was employed whose duty it was to keep the machinery and working places in repair. There was abundant evidence tending to show that plaintiff was what the witnesses called a straw-boss with authority only to direct the working of men under him, and that he had nothing to> do with keeping the machinery and mill plant in repair; that this was done by the millwright under the direction of the general manager. ’ ’ •

Appellee also calls attention to the case of St. Louis Stave & Lumber Co. v. Sawyer, 90 Ark. 473, 119 S. W. 830, to sustain his contention that among the master’s non-assignable duties are to- use ordinary care to furnish a reasonably safe place in which to work and reasonably safe appliances, and to maintain them so. This rule is well settled by the decisions of this court, but the dec! sions in these cases relied on by the appellee are none of them applicable to the facts in this case.

It is well settled that the master owes the duty to the servant to exercise ordinary care to provide a safe place to work, and that this duty is .non-assignable; but it is equally well settled that where the master furnished the material and the employees themselves construct the platform or place to work, the master is not liable for negligence of the employees in the construction of the platform or place to work. This court has many times held that the master is not liable where the employee himself prepares the place to work.

In the instant case the appellee was not working under the immediate direction of the foreman; he had many times used platforms similar to the one used at the time of his injury; and, according to his own testimony, he had a right, and of course it was his duty, to place the plank where it would be most convenient and where it would be safe. The evidence, we think, does not show any negligence on the part of the master, but it does show that whatever risk there was was patent and obvious, and that the injured servant had a right to place the plank where there would be no danger.

The judgment of the circuit court is therefore reversed, and the cause is dismissed.


source: Caselaw Access Project

author: Butler, J.

license: Public Domain

text:
    State use Randolph County v. Pocahontas State Bank.
    Opinion delivered October 19, 1931.

      E. G. Schoonover, George M. Booth and Chas. D. Frierson, for appellants.

      George M. Gibson, W. J. Schoonover and Walter L. Pope, for appellees.
   Butler, J.

The Pocahontas State Bank was named county depository of Randolph County for a two-year period, beginning’ with the first day of May, 1929, and on June 1, 1929, gave the bond required by order of the county court with Ben A.'Brown and others as sureties thereon. The bond was duly approved, and the treasurer of the county from time to time during the year 1929 made deposits of funds in said bank, the property of Randolph County and various school and road districts in said county, withdrawing as occasion required part of said funds by proper warrants, so that on February 7, 1930, there remained in said bank to the credit of the treasurer of the county the sum of $19,070.22. On that date said bank and the Randolph County Bank, another banking corporation located in the town of Pocahontas, entered into an agreement by which the business of the two banks was merged, and to carry out this merger a new bank, called the Randolph State Bank, was duly incorporated. The assets of the two old banks were assigned to the new bank, which assumed the liabilities of the two old banks according to the stipulation of the merger agreement. Both the Pocahontas State Bank and the Randolph County Bank retained their corporate identity but agreed that they should receive no more deposits and should cease to engage in the banking business except for purposes of liquidation.

Ón the 8th day of February, following, the account of the county treasurer with the Pocahontas State Bank was closed, and the amount due him on that date was entered to his credit on the books of the new bank, so that on that day the county treasurer had to his credit property of the county and school and road districts, the sum of $19,070.22. The Pocahontas State Bank included in the assets to the Randolph State Bank its banking house in which the new bank opened for business and in which it operated.

, It is stated by counsel for appellants in the brief filed here that a number of the sureties on the bond heretofore mentioned continued to act as officials in the new bank, and we assume this to be a fact. For purposes of convenience, the stationery of the two old banks was used by the new bank in the transaction of its business, the old check books were continued to be used, and a depositor in the new bank would draw his check using the form of one of the old banks without changing the name and the check would be paid by the new bank; likewise, when a deposit was made, the old blanks for certificates of deposit were used without any change in the name at the head of these blanks.

The treasurer of Randolph County continued to make deposits in, and withdrawals from, the new bank up to November 15, 1930, when the new bank became insolvent and was taken over by the State Bank Commissioner for liquidation. During the time it operated the treasurer deposited with it, in addition to the money to his credit on February 8, 1930, other large sums of the county and school and road districts, and from time to time withdrew a sum far greater than the original deposit. As a result of the deposits and withdrawals there remained to his credit on November 15, 1930, the sum of - $37,909.91. '

This suit was instituted on December 26, 1930, against the Pocahontas State Bank, and the sureties on the aforesaid bond to recover from them said sum last mentioned. The case was submitted to the court on an agreed statement of facts which established, among other things, the foregoing statement. Other facts are not here recited as they are immaterial in view of the conclusion reached.

It is the contention of the appellants that upon the merger of the Pocahontas State Bank and the Randolph County Bank each continued as separate corporations, and that such merger did not change the liabilities of the Pocahontas State Bank as depository or of the sureties upon its bond. Appellants also contend that the sureties were officials and stockholders of the Pocahontas State Bank and are estopped to claim that they were released from liability upon the depository bond, and that there can be no apportionment of the loss with reference to dates of deposits or cheeks. It will be unnecessary for ns to examine the questions presented in the second and third contentions of appellants as we are constrained to find against them on the first contention.

We agree with the contention of counsel for appellees that the Pocahontas State Bank paid to the Randolph State Bank on February 8, 1930, the amount of the deposit of the county treasurer, and that his subsequent actions amount to the acceptance of the fund so transferred, which was in due course withdrawn by him, and that this act terminated the relationship before existing between the Pocahontas State Bank and Randolph County, and relieved such bank and its sureties from any liability on the depository bond; or, as succinctly stated by counsel for appellees, “At the time the Pocahontas State Bank ceased to do a banking business, it was"liable only for $19,070.22, and that amount has been paid.”

The measure of liability of the Pocahontas State Bank and its sureties must be found in the terms and conditions of the bond executed. The condition of the bond in this case is as follows: “Whereas, by an order of the Randolph County Court entered at its April term, 1929, the said Pocahontas State Bank was designated as the depository for all of the funds of Randolph County for the two-year period, beginning on the first day of the April term, 1929, of this court, and, whereas, under the order of this court, the said Pocahontas State Bank was to pay 3 iper cent, per annum on the daily balances of the said funds carried in the said depository during the said period of time.

“Now, if the said Pocahontas State Bank shall duly and properly perform all the duties and obligations devolved by law upon said depository and shall promptly pay'upon presentation all checks drawn upon said depository by the county treasurer of Randolph County, so long as said funds shall be in said depository to the credit of said county, and if all funds of the county shall be safely kept by the said depository and accounted for according to law, then this obligation is to be null and void; otherwise, to remain in full force and effect.”

The obligation on the part of the Pocahontas State Bank and its sureties therefore was that it should pay on demand of the county treasurer all checks drawn upon it so long as any funds remained in the bank to the credit of the county. The appellee bank ceased to do a banking business on February 7, 1930, and the funds in its hands to the credit of the county were delivered to the Randolph State Bank, which bank undertook to pay them out on the order of the county treasurer. While the specific sum transferred to the credit of the treasurer on the books of the new bank was not paid at one time and in one amount, the legal effect of the subsequent transactions between the county treasurer and the new bank was as if this had been done; for, after the 8th of February, 1930, the county treasurer continued to deposit in the new bank and to withdraw therefrom the county funds so long as the bank continued in operation. This was tantamount to an acceptance on the part of the county treasurer of the change: of the account, and since he withdrew from the hank in excess of the amount transferred to it from the county depository, in the absence of an agreement to the contrary, the law presumes that the money first withdrawn was $19,070.22, the money first placed to the treasurer’s credit in the Randolph State Bank.

It is the general rule that, where there is a running account and a payment is made, and neither the debtor nor the creditor directs to what item the payment should apply, the law applies such payment to the oldest item on the account. This rule is well established in this State and seems to be one of universal application, so much so that we deem the citation of authorities unnecessary.

It is also settled law that the relation between banker and depositor is that of debtor and creditor, and we can see no distinction in principle in an account between a bank and its depositor and any other running account. In the case of City Nat. Bank v. Eastland County, 12 S. W. (2d) p. 662-667, cited by appellee, the court of Civil Appeals of the State of Texas, in determining a case similar in many respects to the case at bar, said: “One of the defenses urged by the corporate sureties was that the county had received payment on all obligations for which they ever became liable. This contention is sustained. It is elementary that the liability of these sureties can, at most, be extended no further than for the payment to the county of all moneys deposited by the county in the City National Bank. As to any funds deposited with the Security State Bank, these sureties assumed no obligation, and cannot be held responsible, for their liability must be measured by the contract which they signed, and cannot be extended by implication to cover any other and different contract. The amount on deposit in the City National Bank on the day its assets were taken over by the Security State Bank was $262,436.55. Thereafter the county continued to make deposits with the Security Bank and to draw vouchers against said bank. The trial court found that by the 16th day of March, 1921, the county had withdrawn, in the regular course of business, sufficient funds to total the amount of such deposit. Thereafter the county continued to withdraw funds from the bank, until it closed for liquidation on August 2d. The total amount withdrawn by the county from said funds greatly exceeded the amount on deposit by the county at the time the City Bank turned over the account to the Security Bank.

“It is a well-established rule that, when payments are made upon a current account by a debtor to a creditor and no application is made by either, the law will apply the payments according to priority of time, liquidating the oldest items first. * * *

“No reason can be perceived why this rule should not apply between a bank and its depositor. The relation, as stated, is that of debtor and creditor. Each deposit made in a bank creates a new item of indebtedness due by the bank to the depositor, and each check or voucher cashed by the bank constitutes a payment by the debtor on its account, consisting of various items owing to the creditor. Sunflower County v. Drew, 136 Miss. 191, 101 So. 192; Henry County v. Salmon, 201 Mo. 136, 100 S. W. 21; Freemont County v. Freemont Bank, 138 Iowa 167, 115 N. W. 925; Pittsburg v. Rhodes, 230 Pa. 397, 79 A. 634; Board of Commrs. v. Citizens’ Bank, 67 Minn. 236, 69 N. W. 912; State v. U. S. F. & G. Co., 81 Kan. 660, 106 p. 1040, 26 L. R. A. (N. S.) 865.” See also First National Bank v. National Surety Co., 130 Fed. 401, 66 L. R. A. 781.

It is therefore immaterial whether the Pocahontas State Bank ceased to exist after the merger or whether it retained its corporate identity, and the citations from the text writers and the decisions to which we are referred by counsel for appellants have no application. Neither do we think that the facts in this case call for an application of the rule strictissimi juris, for as the condition of the bond was performed and the principal relieved of liability, the sureties were of course exonerated.

We have not overlooked the fact that the new bank con tinned to operate in the building formerly occupied by appellee bank and that the stationery of the appellee bank was continued to be used by the new bank, or the argument of counsel of appellant based thereon. There was no allegation of a fraudulent concealment on the part of the appellee bank of the merger and transfer of its assets to the Randolph State Bank, neither do we think the evidence justifies such conclusion.

It can scarcely be doubted but that, in a town the size of Pocahontas, such change in ‘as important- institutions as was effected between the -banks there, would be known to every one, especially those, who, like the treasurer, had been doing business with the bank. These circumstances in some cases might be strong evidence of fraud, but, when the entire situation of this case' is considered, they have no weight.

The judgment is therefore affirmed.


text:
    Holcomb v. American Surety Company.
    Opinion delivered October 19, 1931.

      J. H. Johnson and Jones $ Wharton, for appellants.

      Frauenthal, Sherrill & Johnson, for appellees.
   Butler, J.

Fifty-three persons brought a joint action against the appellees to recover amounts due them for work and labor performed and material furnished one Clark, a contractor, who had the contract for making an improvement known as Drainage District No. 12 in Jackson County. Clark had executed a bond to the drainage district for its use and benefit as well as for the use and benefit of all persons who might furnish any labor or material for the principal under his contract, and it was upon this bond that the liability of the appellees was sought to be established. Suit was first instituted in the chancery court, and a demurrer filed to the complaint which was treated by the court as a motion to transfer to the law court, which was accordingly done over the objection and exception of the appellees. In the latter court a demurrer was filed to the complaint, setting up, among other things, that there was a misjoinder of parties and a nonjoinder of necessary parties. A nonsuit was suffered by some of the plaintiffs, and the case proceeded to trial as to the others, which resulted in a judgment in favor of a certain number and against certain others, among them the Beattie Hardware Company, C. W. Butts, Reed & Deucker, Joe Koettel, J. W. McCartney, W. E. Stephens and Ed Hopper, who in apt time filed their motion for a new trial. This motion was overruled, and they thereupon prosecuted an appeal to this court.

I. It is insisted first by the appellees that the.appellants have no standing in this court for the reason that the complaint failed to state a cause of action in that it failed to state the amounts due any of the plaintiffs or what particular work any one of them performed or what material was furnished, and did not state any facts upon which an action could be based as to each separate plaintiff. The pleadings under the Code are liberally construed, and every reasonable intendment is indulged in behalf of the pleader. Thus considering the complaint, we are of the opinion that the facts stated were sufficient to state a cause of action as to each of the plaintiffs, and that objections to the complaint should have been raised by motion to make more specific and certain rather than by demurrer, and the court committed no error in overruling the demurrer.

It is secondly insisted that there was a misjoinder of parties in that fifty-two separate claimants were joined in one cause of action, and that under our decisions in Gage v. Road Imp. Dist. No. 3, 153 Ark. 321, 240 S. W. 427, and Tolbert Bros. & Co. v. Molinder, 178 Ark. 888, 12 S. W. (2d) 780, each plaintiff had a separate and distinct cause of action and therefore could not maintain a joint action. The trial court correctly held that the complaint was not demurrable on that account.

Section 1081 of Crawford & Moses’ Digest provides that “when causes of action of a like nature or relative to the same question are pending before any of the circuit or chancery courts of this State, the court may make such orders and rules concerning the proceedings therein as may be conformable to the usages of courts for avoiding unnecessary costs or delay in the administration of justice, and may consolidate said causes when it appears reasonable to do so.”

The purpose of the act is stated therein and is to avoid unnecessary costs or delay in the administration of justice. This section is to be liberally construed so as to effect its purpose. In the case at bar the claims were of a like nature and all against the same defendant, and grew out of the same transaction, and, while each plaintiff had an independent cause of action, it is not to be doubted that, if each had filed his separate suit, the court would have consolidated them for the purposes of trial. Since the court might have done this, we can see no good reason why the plaintiffs might not have jointly proceeded in one suit as they did. If a proper defense could not have been made because plaintiffs were proceeding .jointly and not independently, the court, in the exercise of its discretion, might have ordered a severance, but no such request was made, and it does not appear that any disadvantage was suffered. Therefore the action of the trial, court in overruling the demurrer on this ground must also be upheld.

The third ground of appellees’ demurrer was that there was a nonjoinder of necessary parties, in that the contractor was not made á party, and § 6919 of the Digest is invoked as authority for the position taken. This section provides that, in all cases where a lien shall be filed under the provisions of the act by any person other than a contractor, it shall be the duty of the contractor to defend the action at his own expense. The act referred to in § 6919 was one enacted for the benefit of laborers or other persons who should do work for private individuals or corporations, giving them a lien upon the building, • erection or improvement, etc. This statute has no application to the instant ease, as the construction in question was of a public nature, upon which there could be no liens, and the rights of the persons performing work or furnishing material must be found in the bond given fol' their (protection. This bond, which is hereafter set out, entitles the beneficiaries — the laborers and material-men — to an action against the obligors. Oliver Construction Co. v. Williams, 152 Ark. 414, 238 S. W. 615. Clark was a. proper, but not a necessary party. If it be true, as claimed by appellees, that Clark was frequently within the State and conferred during the pendency of the suit with their attorneys, they could have themselves made Clark a party if they deemed such action necessary for the preservation of their rights.

The fourth ground urged for an affirmance is that the suit was barred by the statute of limitations, and counsel suggest that, if the evidence was properly abstracted, it would show that the work of the plaintiffs for which they seek to recover was done during 1926 and 1927, and that the contract was forfeited, by Clark during the latter part of 1927 and terminated in so„ far as he was concerned, which would bar plaintiffs’ action under § 6914, supra. Appellees have not referred us to the page of the transcript where this evidence may be found, and we have examined the transcript and fail to find such evidence. We think that the case was properly in court, and none of the objections before mentioned made by the appellees are well taken.

It also is insisted by the appellees that the appeal should be dismissed for failure on the part of the appellants to comply with rule 9 of this court. The abstract is sufficient to give us an understanding of the issues involved; and is a substantial compliance with the rule.

II. We therefore proceed to an examination of the error assigned by the appellants, i. e., that the court erred in holding that “none of the other plaintiffs (appellants here) are entitled to recovery against the defendants for the reason that their claims would not lie covered by the surety bond in question, and judgment will be for the defendants on all other claims.” There was no contention made in the court below, nor is any made here, that the claims of the appellants against Clark for work done or material furnished were not true and correct. The evidence shows that at some time after the claims accrued the claimants met with Clark, some members of the district board, and an attorney for the appellees, at Which time the claims were examined and discussed and their correctness agreed to.

Without setting out separately the nature of each claim, the evidence shows they were for cutting and hauling wood, used as fuel under the boilers for the creation of steam; clearing right-of-way, for lumber used in the construction of the dredge boat, for machinery installed for the operation of the boat, and for digging and removing dirt, and for hauling this equipment to the location necessary for the performance of the work.

The condition of the bond on which the appellees were sureties, among other things, provided for the payment by Clark of ‘ ‘ all indebtedness for labor and material furnished or performed by any person on the work contemplated by said contract,’.’ and concluded with the following paragraph: “This bond is executed for the use and benefit of said drainage district as well as for the use and benefit of all persons, firms and corporations who may furnish any labor or materials for the principal of this bond under his contract with the district, and is for the purpose of saving the expense and trouble of making a separate bond for the use and benefit of the district and a separate bond for the use and benefit of persons furnishing materials and performing labor, and this bond shall be as valid and binding on the principal and sureties herein as if separate and distinct bonds had been made.”

Since the improvement in this case was of a public nature, the statutes giving materialmen and laborers a lien for their work do not apply, and the only protection for the payment for labor performed or material furnished is to be found in terms of a bond. The appellees, sureties on the bond, were organized, among- other purposes, to make surety bonds such as this, for which they were paid. Therefore the bond should be liberally construed in favor of the laborers and materialmen for whose benefit the bond was’given. United States F. & G. Co. v. Bank of Batesville, 87 Ark. 348, 112 S. W. 957; American Bonding Co. v. Morrow, 80 Ark. 49, 96 S. W. 613; Title Guaranty & Surety Co. v. Bank of Fulton, 89 Ark. 471, 117 S. W. 537; Equitable Surety Co. v. Bank of Hazen, 121 Ark. 422, 181 S. W. 279; Union Indemnity Co. v. Forgey & Hanson, 174 Ark. 1110, 298 S. W. 1032.

The condition of the bond under consideration in the case of Leslie Lumber & Supply Co. v. Lawrence, 178 Ark. 573-575, 11 S. W. (2d). 458, was “that if the said contractor shall pay all persons, firms or corporations who perform labor or furnish equipment, supplies and material for use in the work thereunder,” etc., and in construing this condition the court said: ‘ ‘ The last proposition necessary for consideration is whether the bond is liable only for material actually entering into the work —such items as might be the basis of the mechanics ’ lien. We answer this question in the negative, as does the bond itself. It protected all persons who furnished supplies and material for use in the work and not merely material actually entering into the work. Therefore all material and supplies furnished the contractor 'for use in the work’ or reasonably necessary to accomplish the purpose of the work, and which were delivered to the contractor for such use and purpose, are covered by the bond. ’ ’

In Ætna Casualty & Surety Co. v. Big Rock, etc., Co., 180 Ark. 1, 20 S. W. (2d) 180, where the condition of the bond was that the contractor “shall pay off and discharge claims for labor and material of .whatsoever kind used in the construction of said work,” it was held that the language used was sufficiently broad and inclusive to make the surety liable on claims for material used in the construction of the building, and the payment would not be limited to only such claims for labor and •material furnished as would constitute liens against the improvement.

So, in the instant case we are of the opinion that the language of the bond is broad enough to cover not only claims which constitute liens against the improvement, but for all labor or material which was necessary to accomplish the purpose of the work. It will be noted that the language is to the effect that the contractor should pay all indebtedness for labor and material furnished or performed by any person on the work contemplated by such contract and not that the contractor should be liable for labor and material which entered into the construction of the work; and in the concluding paragraph of the bond it is expressly provided that such bond was “for the use and benefit of all persons, firms and corporations who may furnish any labor or material for the principal of this bond under his contract.”

In Kotchtitzky v. Magnolia Petroleum Co., 161 Ark. 275-6, 257 S. W. 48, the court said: “The contract for the construction of the improvement by the appellant carries with it an obligation by necessary implication upon the part of the appellant to furnish the labor and material necessary to make the improvement which the appellant contracted to construct. How would it be possible for appellant to fulfill the obligations of'his contract to construct the improvement unless he furnished the labor and material necessary to make the improvement?” In the ease at bar the contractor was obligated under his bond to dig the ditch, and it would have been impossible to fulfill this obligation unless he obtained the labor and material necessary, and the surety expressly recognized the necessity of the case and undertook that the bond executed was for the use and benefit of all persons who might furnish any labor or material for the principal. We think the plain provisions in the bond bound the appellees for the labor done and material furnished by appellants, for there can be no question that this labor and material were reasonably necessary for the accomplishment of the work contemplated and were furnished for the principal, Clark.

The conclusion reached is not in conflict with the doctrine of Pierce Oil Corp. v. Parker, 168 Ark. 400, 271 S. W. 24; Oliver Const. Co. v. Erbacher, 150 Ark. 549, 234 S. W. 631; Goode v. Ætna Cas. & Sur. Co., 178 Ark. 451, 13 S. W. (2d) 6, and Heltzel Steel Form & Iron Co. v. Fidelity & Deposit Co., 168 Ark. 728, 271 S. W. 325, relied on by appellees, for those cases arose under different statutes to the one at bar, and the bonds considered were not as comprehensive and broad in terms as that considered here. It follows that the trial court erred in that part of the judgment which found against the appellants. Therefore the judgment will be reversed as to them, and the cause remanded with directions to enter a judgment against the appellees and in favor of the appellants in the amounts of their respective claims.


author: Hart, C. J.,

text:
    Chicago, Rock Island & Pacific Railway Company v. Thomas.
    Opinion delivered October 26, 1931.

      Thos. S. Busbee and George B. Pugh, for appellant.

      John L. McClellan and Wm. II. Glover, for appellee.
   Hart, C. J.,

(after stating the facts). Counsel for the defendant rely upon the principles of law decided in Jemell v. St. Louis Southwestern Railway Company, 178 Ark. 578, 11 S. W. (2d) 449, for a reversal of the judgment. They admit that there was a presumption of negligence when the plaintiffs proved that their injuries were received by the passenger motor coach of the defendant colliding with the automobile in which they were riding at the public crossing over the defendant’s railroad. They claim, however, that the facts in the present case bring it within the principles of law decided in the Jemell case, hut we cannot agree with them in this contention. In the Jemell case the operative of the train saw the plaintiff drive upgrade to the edge of the tracks at the public crossing and then back down the grade. He supposed that the plaintiff would not again attempt to run up the grade until after the train had passed. The plaintiff admitted that he did not look for the approach of the passenger train and admitted that he could have seen it if he had looked. The railroad track was straight at that point. When the plaintiff admitted that he did not look and could have stopped his car in time to avoid the accident if he had looked, he could not recover because his own negligence directly contributed to the happening of the accident, and there was no negligence on the part of the defendant because the fireman who was keeping the watchout was justified under the circumstances in believing that the plaintiff, when he hacked his car down the grade just before the accident, would not drive up the grade again in front of a rapidly approaching train. The train was running at the rate of thirty-five or forty miles per hour.

Here the jury might have found that the facts were essentially different. According to the testimony of the plaintiffs, they were keeping a watchout for a train on the tracks of the railroad company. They were prevented from seeing the approaching train because of some bushes growing along the side of the railroad. There was no upgrade at the crossing. It was practically level. The engineer of the defendant’s passenger coach admits that he saw the automobile in which the plaintiffs were riding about 200 feet away, hut supposed that it was going to stop. He did not look around again until just before the accident occurred. From this testimony, the jury might have inferred that the negligence of the railroad company wTas greater than that of the plaintiffs. It will be remembered that there was a presumption of negli•gence from the fact that the plaintiffs were injured by the defendant’s passenger motor car striking the car in which the plaintiffs were riding at a public crossing over ■the railroad. The jury might have found that the railroad operatives did not sound the whistle nor ring the bell for the approaching crossing as required by statute. The plaintiffs themselves testified that their eyesight and hearing were both good, and that they did not hear the -bell ringing or the whistle sounding as the passenger coach approached the crossing. They were listening for these statutory signals and could have heard them if they had been given. There were no sounds or other disturbances to interfere with their hearing, and their testimony cannot be classed as negative. It was affirmative testimony under the circumstances, and was entitled to such weight as the jury saw fit to give it. Fort Smith & Western Ry. Co. v. Messek, 96 Ark. 242, 131 S. W. 686; Slattery v. New York, N. H. & H. Rd. Co., 203 Mass. 453, 89 N. E. 622; Brown v. Milwaukee Electric Ry. & Light Co., 148 Wis. 98, 133 N. W. 589; Philadelphia, B. & W. Rd. Co. v. Gatta, 4 Boyce Del. 38, 85 Atl. 721, 47 L. R. A. (N. S.) 932.

There was a conflict in the testimony in this case, and it cannot be said as a matter of law that plaintiff’s contributory negligence was greater in degree than the negligence of the defendant. Hence there was no error in the court refusing to direct a verdict against the plaintiffs.

Under § 8575 of Crawford & Moses’ Digest, commonly known as the comparative negligence statute, an injured party, guilty of contributory negligence, cannot recover damages for an injury unless his negligence is of á less degree than the negligence of the railroad company. As we have already seen, the facts and circumstances adduced in evidence in this case make it a jury question whether the negligence of the plaintiffs was of a less degree than that of the defendant. Davis v. Hareford, 156 Ark. 67, 245 S. W. 833; C. R. I. & P Ry. Co. v. French, 181 Ark. 777, 27 S. W. (2d) 1021; St. L. S. F. Ry. Co. v. Haynes, 177 Ark. 104, 5 S. W. (2d) 737; Mo. Pac. Rd. Co. v. Sandifur, 183 Ark. 196, 32 S. W. (2d) 316.

No other assignments of error are urged • for a reversal of the judgment, and it will therefore he affirmed.


text:
    Northcross v. Miller.
    Opinion delivered October 26, 1931.

      G. B. Segraves, for appellee.

      Chas. E. Sullenger, for appellant.
   Hart, C. J.,

(after stating the facts). The general rule is that money paid under a mistake of fact may be recovered. C. R. I. & P. Ry. Co. v. Lena Lumber Co., 99 Ark. 105, 137 S. W. 562. In Tancred v. First National Bank, 130 Ark. 520, 197 S. W. 1178, the rule is stated where a person without mistake of fact, or fraud, duress, or coercion, pays money on a demand that is not enforceable against him, the payment is deemed voluntary and cannot be recovered. In Blackburn v. Texarkana Gas & Electric Co., 102 Ark. 152, 143 S. W. 588, it is said that where one voluntarily makes a payment upon a claim with knowledge of the facts, or under such circumstances that he is affected with such knowledge, then he cannot recover such payment upon the ground that the asserted claim was unenforceable. The reason for the rule that money paid under a mistake of fact may be recovered proceeds upon the theory that the plaintiff has paid money which he was under no obligation to pay and which the party to whom it was paid had no right to receive or to retain. Hence the law raises an implied promise on his part to refund it, and an action will lie to recover it.

In the application of this rule to the present case, the verdict of the .jury in favor of appellees upon the complaint of appellant must be sustained. Each party had the land surveyed in 1928, and there was a conflict' in the testimony as to whether there was any shortage in the leased land. The appellees withheld the rent for 43.7 acres of land in the fall of-1928 from the amount due for rent for that year because of this alleged shortage. The question was submitted to the jury, and the jury by its verdict found in favor of appellees. The testimony on the question of whether there was a shortage in the land for the year 1928 being in conflict, the verdict of the jury is binding upon this court upon appeal, and the judgment on that branch of the case must be affirmed.

On the cross-complaint, the facts are quite different. On that branch of the case, appellees sought to recover against appellant on their claim that they had overpaid the rent for 1927 by mistake. We do not think there was any evidence upon which to submit this question to the jury. Appellees did not claim a mistake as to the acreage. According to the testimony of appellant, there was no mistake as to the acreage. According to the testimony of Rogers, a member of the firm which rented the land for the year 1927, there was no mistake as to the acreage. He and McAdams, who worked for Williams, examined the tract where it is claimed the shortage exists and decided that there were 50 acres in it. Williams and Miller, as members of the partnership with Rogers, were bound by the latter’s act. The ground of liability of one partner for the acts of the other is that of implied agency within the scope of the partnership. Stephens v. Neely, 161 Ark. 114, 255 S. W. 562; 45 A. L. R. 1236.

Besides the testimony above referred to, that of Williams himself, shows that when the rent was paid in the fall of 1927, they made the payment with knowledge of all the facts or under such circumstances that they were affected with such knowledge. Under the authorities above cited, they cannot recover the payment upon the ground that there was a mistake in the acreage.

In this connection, it 'may be stated that, where a person has sufficient information to put one of ordinary intelligence upon inquiry, he shall be deemed to know what the inquiry would disclose. Jordan v. Bank of Morrilton, 168 Ark. 117, 269 S. W. 53; Richards v. Billingslea, 170 Ark. 1100, 282 S. W. 985.

Williams was asked about a plat of the land exhibited in evidence which he caused to be made in October, 1928, and was asked what was the occasion of it being made. His answer was, “Well, there were two reasons: This was the first reason. Mr. Miller and I went down there often. Quite a number of times I told Mr. Miller I did not believe we had the acreage we were paying for. Then, after the canals were cut, we decided we would have the land surveyed. And we also wanted to see how much land the canals took up.” ■ Continuing, he said that the canals were dug in the latter part of 1927 or the early part of 3928. Further on in his testimony, Williams said that he first believed in 1927 that there was a shortage in the acreage. He said that he had made a good many trips on the land and made up- his mind that they were paying for more land than they were getting-. Williams was a planter of large experience and was, according to his own testimony, capable of estimating the quantity of land in cultivation upon a given tract. It is inferable from his own testimony that he believed there was a shortage in 3927. It is true he said that they did not have the survey made until after the canals were dug in the latter part of 1927 or the first part of 1928. He states, however, that he made frequent trips down there in 1927, and that was when he first believed that there was a shortage in the acreage. He had worked the lands in 1926, and it was his duty to have ascertained about the shortage before he paid the rent in the fall of 1927. Not having done so, he will be deemed to have knowledge of the shortage because he was put on inquiry as to the shortage by his knowledge and judgment of the land during the frequent trips he made there before he paid the rent. Therefore, according to his own testimony, he paid the rent with full knowledge of the alleged shortage. Miller, his partner, was hound by his acts; and they were not entitled to recover on their cross-complaint because they made a voluntary payment of the rent with knowledge of the shortage and under such circumstances that they are affected with such knowledge.

Therefore there was no evidence upon which to submit the issue raised by the cross-complaint to the jury, and the court erred in so doing. No exceptions were necessary. A new trial was asked on the ground that the verdict was contrary to the law and the evidence under § 1311 of Crawford & Moses ’ Digest. The motion for a new trial was sufficient to raise the question as to whether the verdict was sustained by sufficient evidence. Naylor v. McNair, 92 Ark. 345, 122 S. W. 662. Inasmuch as the case seems to be fully developed on this point, the judgment in favor of appellees on the cross-complaint will be reversed, and their complaint will be dismissed here. The judgment in their favor upon the complaint of the appellant will be affirmed. It is so ordered.


author: Smith, J.

text:
    Atwood v. State.
    Opinion delivered October 26, 1931.

      Floyd Terral, for appellant.

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

Appellant was convicted of the offense of receiving stolen property, a Ford automobile. The automobile was stolen from the garage of B. M. Wilson at his home near Jacksonville, in Pulaski County, and was found at the home of appellant, who does not deny that the car was in his possession when- found. •

Appellant offered testimony to the effect that he sold a Ford car which he owned in April to one Keesey, and repossessed it about the second week in July, and during' this interval Keesey, or some one else, made extensive repairs and practically consolidated this car with the stolen car, so that, when the stolen car was found at appellant’s home, it had in it the motor and some other parts which had been in appellant’s car, and that he did not know the car had been stolen.

It is insisted that, for this reason, there was a failure of proof, in that the car found in appellant’s possession was not the car stolen from Mr. Wilson. We do not concur in this view. It is true, of course, that the motor is an essential part of an automobile, but an automobile was found at appellant’s house which had been identified as the one stolen from Wilson, and it is no defense to show that the motor, or some other part, had been changed. The car found was the property of Wilson, and there is no variance between the indictment and the testimony.

The court gave, over the objection of appellant, an instruction on the possession of recently stolen property, reading as follows: “You are instructed that the possession' of property recently stolen, without reasonable explanation of that possession, is evidence which goes to you for your consideration under all the circumstances of the case, to be weighed as tending to show the guilt of the one in whose hands such property is found, but such evidence alone does not imperatively impose upon you the duty of convicting, even though it be not rebutted. ’ ’

This appears to be a substantial copy of the instruction set out in the opinion in the case of Barron v. State, 155 Ark. 80, 244 S. W. 231, but it was there said that the error in the instruction was such that a specifio objection thereto was necessary to call the error to the attention of the court, and that, in the absence of such objection, it would not be held prejudicial. So here as there was no specific objection to the instruction, we must hold that giving it was not prejudicial error. It is true, of course, that an instruction on the possession of property recently stolen should not be given unless the possession of the property is so related to the larceny thereof in point of time so as to have some probative value on that account. But this is always a question of fact, and the value of such testimony diminishes as the time of possession becomes more remote from the larceny, but we are unable to say here that the possession of the stolen car was so remote in point of time that the possession thereof was without probative value.

It is very earnestly insisted that there was no proof of the venue in this case, and this is the most difficult question presented, as it must be admitted that the proof of venue is not as satisfying as it might easily have been made.

It is essential always to prove the venue in any criminal case, and this is true because § 10 of article 2 of the Constitution (which article bears the title, “Declaration of Rights”) provides that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed; * * The failure to prove the venue has therefore always been held to be a fatal defect in the testimony and requires the reversal of a conviction where this proof was not made. Ware v. State, 77 Ark. 19, 90 S. W. 619.

This essential fact, that of the proof of the place of the commission of the crime — the venue — is ordinarily so easily proved that many prosecuting attorneys neglect to prove it expressly, and such is the case here, but convictions are not necessarily reversed on that account.

The venue of the crime is no part of it and therefore does not have to be proved beyond a reasonable doubt, as the essential elements of the crime itself must be. Venue relates to and determines the .jurisdiction of the court under the provision of the Constitution above quoted, and may therefore be shown by a preponderance of the evidence. It is a fact which may be inferred from all the circumstances shown by the testimony, and the venue is said to be proved when the place of the commission of the crime appears, from all the testimony in the case, to have been within the county in which the indictment was returned. Brock v. State, 171 Ark. 282, 284 S. W. 10; Stribling v. State, 171 Ark. 184, 284 S. W. 38; Chambers v. State, 168 Ark. 248, 270 S. W. 528; Spivey v. State, 133 Ark. 314, 198 S. W. 101.

We have a special statute fixing the venue in prosecutions for receiving stolen property. It is § 2871, Crawford & Moses’ Digest, and reads as follows: “When any person shall be liable to be prosecuted as the receiver of any personal property that may have been feloniously stolen, taken or embezzled, he may be indicted, tried and convicted in any county where he received or had such property, notwithstanding such larceny may have been committed in another county.”

This statute was sustained and construed in the case of Smith v. State, 169 Ark. 913, 277 S. W. 530, whére it was held that the receiver of stolen property may be tried in any county where he “had or received” the property, and that the section quoted was intended to allow and did authorize the receiver of stolen property to he tried in any county where he either first received the property or at any time afterwards had it. See also Satterfield v. State, 174 Ark. 733, 296 S. W. 63.

Here a witness named Brown testified that he was a deputy sheriff, but did not state for what county. He did testify, however, that the stolen property was found at appellant’s home, but he did not state that his home was in Pulaski County, in which the indictment was returned and the trial and conviction had. But another witness, W. W. Garner, a deputy sheriff of 'Saline County, testified as follows: “Yes, I was deputy sheriff in Saline County; I went out with Mr. Brown and made a search for the oar at another place, how come me with them in Pulaski County.” We think this testimony supports the inference and sustains the finding that Garner went with Brown to search for the car, and that it was found at appellant’s home, which, as Garner testified, was the place in Pulaski County where he went with Brown to search for the car and where it was found.

We conclude therefore that the testimony sufficiently establishes the venue in Pula.ski County.'

■ We cannot refrain from taking this occasion to say that a little more care on the part of the prosecuting officer would remove such difficulties as this case presents.

On the whole ease we think the venue was established in Pulaski County, and that no error appears in the record. The judgment must therefore he affirmed, and it is so ordered.


author: Humphreys, J.

text:
    Kory v. Less.
    Opinion delivered October 26, 1931.

      W. E. Beloate, Jr., W. E. Beloale and Robt. C. Powell, for appellant.

      Smith & Blackford and G. M. Gibson, for appellee.
   Humphreys, J.

On November 11, 1929, this court reversed a decree of the chancery court of Lawrence County for and in the eastern district thereof awarding damages against appellant for waste, and remanded the cause with diiections to enter a decree in accordance with the opinion. The case is reported in the 180th Ark. at page 342 [22 S. W. (2d) 25], and, in order that the issues on this appeal may be better understood, reference is made to the statement of facts and opinion on the original appeal. On remand of the cause, the receiver filed a final report containing many items of debit and credit, and this appeal involves the correctness of the ruling of the trial court relative to four of the items contained in the report.

First, the court refused to allow appellant herein credit for $901.34 which the receiver expended out of the rents for repairs on the property.

Second, the court refused to credit appellant with the money expended by the receiver for making a survey of the lands.

Third and fourth, the court charged appellant with one-half of the amounts paid Mamie McKenzie for clerical work and W. M. Ponder for legal services in the preparation of the final report.

(1) It is first contended that the item of $901.34 was allowed to her by this court on the original appeal of the case. We find nothing in the opinion relating to the item and nothing bearing out the construction placed upon it by appellant. It is true the judgment against her for waste was reversed, but in doing so this court did not award her a judgment for amounts which the receiver had expended in making repairs upon the plantation. The weight of the evidence sustains the chancellor in his finding to the effect that the repairs covered by the item in question were for the benefit of the life estate of appellant, and not for the benefit of the reversionary estate of the appellee. They were for reroofing houses and barns and clearing drainage ditches on the property, which, in their nature, were necessary for the preservation of the property and in keeping with good husbandry.

(2). The item of surveying, according to the weight of the evidence, was necessary in order to properly collect the rents, and appellant was not entitled to a credit for one-half of the amount thus expended.

(3 and 4). The receiver, according to the record, was a capable farmer, but not in any sense an accountant. The management of the plantation involved many items of expense as well as many items of * collection. It is apparent from reading the record that the receiver needed some clerical help as well as the advice of an attorney in preparing his final report, and we think the allowances made to the receiver were proper expenses of receivership and very reasonable. He was allowed $107 for clerical help and $25 for attorney’s fees, one-half of which was charged against appellant.

■ No error appearing, the decree is affirmed.


text:
    Ridenour v. State.
    Opinion delivered October 26, 1931.

      Rains d Spinlcs, for appellant.

      Hal L. Nonvood, Attorney General, and Pat Mehaffy, Assistant, for appellee.
   Humphreys, J.

Appellant was indicted, tried, and convicted in the circuit court of Crawford County for possessing a still, and was adjudged to serve a term of one year in the State penitentiary as a punishment therefor, from which is this appeal.

The first, assignment -of error urged for a reversal of the judgment is the want of evidence to support the verdict. The evidence introduced by the State was to the effect that the sheriff and deputy sheriff of Crawford County procured a search warrant and proceeded to appellant’s home near Tip Top Tavern, close to the line between Washington and Crawford counties, and found a keg and quart of whiskey in his house and a still in a southeasterly direction therefrom, about one-quarter of a mile distant. At the still they found a pint of whiskey, the color of that they found at the house and a barrel of mash. As they approached the house, and about the time the sheriff was entering the front door, the deputy started around to the back door, where he met appellant and ordered him to sit down. He refused to do it and followed the sheriff into the house where some words were passed between them. Appellant’s wife seemed disconcerted and started into the room where the sheriff found the keg and quart of whiskey. Under the rule announced in the case of Robinett v. State, 180 Ark. 873, 23 S. W. (2d) 627, the evidence detailed above is sufficient to sustain the verdict of the jury finding that appellant possessed the still seized by the sheriff.

The next assignment of error urged for a reversal of the judgment is that the State failed to prove that the still was located in Crawford County. It is true that no witness said in so many words that it was located in Crawford County, but one of appellant’s witnesses testified on cross-examination that he was shown where the still was seized, and that the place shown him was land in Crawford County that he was employed to look after by St. Louis & San Francisco Railroad Company; that in the performance of his duty, he had surveyed the land. He was the surveyor of Crawford County. This circumstance was sufficient to establish the venue under the rule announced frequently by this court that the venue in criminal cases might be proved by circumstantial evidence. Wilder v. State, 29 Ark. 293; King v. State, 110 Ark. 595, 162 S. W. 1087; Spivey v. State, 133 Ark. 314, 198 S. W. 101.

The next assignment of error urged for a reversal of the judgment is that- the court allowed the sheriff to act as prosecuting attorney in the case. We are unable to find anything in the record indicating that the sheriff usurped the duties devolving upon the prosecuting attorney. The most that he did was to divulge information concerning the case to the prosecuting attorney.

The next assignment of error urged for a reversal of the judgment is that the court allowed the prosecuting attorney to ask Frank Price on cross-examination whether he drank liquor. This was an improper question, but, answered as it was, could not possibly have prejudiced appellant. The witness responded that he drank occasionally, but that he never obtained any liquor from appellant. An admission that he took an occasional drink in no wise affected his credibility as a witness, and the effect of his answer was to forestall any inference that appellant furnished him liquor to drink.

The next assignment of error for a reversal of the judgment is that the court allowed the State to prove that a keg and quart of liquor were found in appellant’s house. This was admissible as a circumstance tending to show whether appellant was engaged in the liquor business and the owner of the still seized by the sheriff near his home. Sexton v. State, 155 Ark. 441, 244 S. W. 710; Tuttle v. State, 180 Ark. 285, 21 S. W. (2d) 188.

The next assignment of error urged for a reversal of the judgment is that the prosecuting attorney was permitted in the argument to misquote witness Huey’s evidence relative to whether the trail leading to appellant’s house from the still was plainer than trails leading to other homes in the neighborhood. Even if the prosecuting attorney had misquoted the evidence of said witness, there is no showing that his version of it influenced any juror. The jurors heard the several witnesses themselves, and, knowing that to which they testified, could not have been misled by incorrect rehearsals of their testimonies by the prosecuting attorney. If it had been definitely shown that the juror or any juror was misled by the argument in reaching an adverse finding to appellant, then it might reasonably be contended that appellant was prejudiced by the argument, otherwise not. No such showing was attempted in the record.

The next assignment of error urged for a reversal of the judgment is that the court did not instruct the jury that the failure of appellant to testify should not be considered as a circumstance against him. Appellant made no request to that effect. He should have requested a correct instruction on the point, and, not having done so, is in no position to complain on account of this omission. Lowmack v. State, 178 Ark. 928, 12 S. W. (2d) 909.

The next assignment of error urged for a reversal of the judgment was the trial court’s refusal to give appellant’s requested instructions Nos. 2 and 3. Both instructions were covered by instructions given by the court to the effect that appellant should be acquitted unless proved guilty beyond a reasonable doubt of possessing a still.

The next assignment of error for a reversal of the judgment is the court’s refusal to give appellant’s requested instructions 4, 5 and 6 on circumstantial evidence. This court has ruled that the refusal to give any instructions on circumstantial evidence where the case depends wholly upon such evidence is not error if he had already fully and correctly instructed the jury on the credibility of witnesses, the weight of evidence, the presumption of innocence, and reasonable doubt. Barton v. State, 175 Ark. 120, 298 S. W. 867; Adams v. State, 176 Ark. 916, 5 S. W. (2d) 946.

The next assignment of error urged for a reversal of the judgment is the refusal of the court to give appellant’s requested instruction No. 7 to the effect that, unless there is other proof than the finding of a quantity of liquor in appellant’s home tending to connect him with the still, such testimony should not be considered by them. This court has ruled in a number of cases that the finding of liquor in the home of one accused of violating liquor laws is admissible as a circumstance tending* to show the commission of the crime. Marsh v. State, 146 Ark. 77, 255 S. W. 7; Robertson v. State, 148 Ark. 585, 231 S. W. 865; Clark and Tuttle v. State, 180 Ark. 285, 21 S. W. (2d) 188.

No error appearing, the judgment is affirmed.


author: Kirby, J.

text:
    White v. Board of Education of Independence County.
    Opinion delivered October 26, 1931.

      Cole $ Poindexter, for appellant.

      ColemcmS Reeder, for appellee.
   Kirby, J.

Appellant and others, on June 14, 1930, petitioned the Independence Circuit Court for a certiorari seeking to quash an order of the board of education of Independence County made on the 14th day of September, 1929, dissolving School Districts Nos. 4 and 88 and annexing- the territory formerly embraced therein to School District No. 71 in Sharp County.

It was alleged as grounds that district No. 71 lies wholly in Sharp County and that the Independence County board of education was without jurisdiction to annex territory in Independence County to it.

School District No. 71 at the date of the order of annexation in fact contained certain sections of land situated in Independence County, which were annexed by act of the Legislature, and School Districts Nos. 4 and 88 in Independence County adjoin said territory in Independence County that has been annexed to the Sharp County district by the Legislature. The annexation of districts Nos. 4 and 88 in Independence County to School District No. 71 of Sharp County increased the area in Independence County so materially in excess of the area in Sharp County that the board of education of Sharp County, acting under the present law and instruction of the State Board of Education and the State Superintendent of Education, relinquished jurisdiction over said district and ceded it to the board of education of Independence County, which accepted the administration of its affairs, designating it finally as School District No. 2A of Independence County.

When the order of consolidation was made, members of the boards of both districts Nos. 4 and 88 recommended and acceded to it. An election was called for the purpose of voting on the question of borrowing money for the construction of school buildings, one voting precinct being located in Sharp 'County and another in Independence County, and in the latter district one director of School District No. 4 and one of No. 88 acted as judges, and of 50 votes cast in Independence County precinct all were in favor of the loan for building purposes; and, acting under the authority conferred by the electors, the directors borrowed money from the “Revolving Loan Fund” of the State, and had at the time of the filing of the petition for certiorari constructed a large and commodious building to accommodate the pupils of the entire district, and had purchased and put in operation school busses for transporting the pupils formerly residing in the territory embraced in the old districts Nos. 4 and 88 to and from the new school at Cave City, where additional teachers had been employed for conducting the school.

The court denied the petition for certiorari because it was not sooner applied for, and from this judgment the appeal is prosecuted.

Certiorari is not a writ of right but one of discretion, and will not be granted except to do substantial justice Rural Special School Districts Nos. 17 and 95 v. Ola Special School District, 182 Ark. 197, 31 S. W. (2d) 129. In this case it was also said: “An effort to quash an order or judgment in a matter involving the public interest or of a public nature, such as the consolidation and creation of school districts, is not entertained as of right, but is a matter resting in the sound discretion of the court, which should not grant relief unless the remedy is sought within apt time or without an unreasonable delay in applying therefor.”

It was held in the above case that there was no abuse of discretion in refusing the writ of certiorari as the proceeding for quashing the order of consolidation was not commenced for more than 5 months after the order made without excuse made for the delay.

In the instant case petitioners waited almost 10 months before starting the proceeding, giving no sufficient excuse for the delay, and we hold this case is controlled by the ruling in the case above cited.

The judgment is affirmed.


author: Mehaeey, J.

text:
    Railway Express Agency v. H. Rouw Company.
    Opinion delivered October 26, 1931.

      A. M. Iiartung and Warner •& Warner, for appellant.

      D. H. Howell, for appellee.
   Mehaeey, J.

The appellee brought suit in the Crawford Circuit Court for damages to a car of strawberries delivered to the appellant for shipment to Dallas, Texas. The complaint alleged that the appellant was negligent in failing to ice and re-ice said car and maintain proper refrigeration in the handling and transporting of said shipment of strawberries, and that by reason of the negligen.ce alleged the strawberries, when they reached Dallas, Texas, were in a more or less overripe, soft, decaying, and otherwise deteriorated condition; that appellee was damaged by' the negligence of appellant in the sum of $348.75.

Answer was filed by appellant specifically denying negligence and denying all the material allegations in the complaint.

The canse was tried by a jury and a verdict was rendered for $348.75. The case is here on appeal.

There was sufficient evidence to submit to the jury the questions of negligence and damages, but it would serve no useful purpose to- set out the testimony here.

The first instruction given by the court at .the request of the appellee was as follows: “You are instructed that it is the duty of the carrier to furnish proper shipping facilities for the kind and character of commodity which it undertakes to carry, and in this case it was the duty of the defendant to furnish a refrigerator car sufficiently iced to preserve the strawberries loaded therein and keep said car sufficiently iced for such purpose until the same was delivered at destination.”

This instruction told the jury that it was the duty of the carrier to furnish proper facilities and to .furnish a refrigerator car sufficiently iced to preserve the strawberries therein. This instruction was erroneous and should not have been given. The suit was based on negligence of the carrier and it was its duty to exercise ordinary care to properly ice and re-ice the car, thereby keeping the proper temperature.

Instead of telling the jury that it was its duty to do the things mentioned, the court should have told the jury that it was the appellant’s duty to exercise ordinary care. The suit being based on negligence, the burden was upon appellee to show by the evidence that the appellant was guilty of negligence, causing the damages.

In the next place, the instruction tells the jury that it was the duty of appellant to furnish proper shipping facilities. There is no allegation in the complaint and no evidence tending to show that proper equipment was not furnished; hut, if this alleg-ation had been made in the complaint and there had been evidence to support it, it would not have been proper to tell the jury that it was the duty of the carrier to furnish proper shipping facilities, but the suit, being based on negligence of the carrier, the jury should have been told that it was the carrier’s duty to exercise ordinary care in furnishing shipping-facilities.

In suit for damages due to negligence the shipper must prove the negligence in order to recover. Mo. Pac. Rd. Co. v. Fine, 183 Ark. 13; St. L. S. F. R. Co. v. H. Rouw Co., 174 Ark. 1, 294 S. W. 414; Amer. Ry. Exp. Co. v. H. Rouw, 174 Ark. 6, 294 S. W. 416; H. Rouw Co. v. St. L. S. F. R. Co., 172 Ark. 881, 290 S. W. 936; C. R. I. & P. Ry. Co. v. Geo. E. Shelton Produce Co., 172 Ark. 1017, 291 S. W. 428; H. Rouw Co. v. Amer. Ry. Exp. Co., 173 Ark. 84, 291 S. W. 1001; C. R. I. & P. Ry. Co. v. Robinson & Co., 175 Ark. 35, 298 S. W. 873; Amer. Ry. Exp. v. Cole, 183 Ark. 557.

The appellee argues that the court, having correctly instructed the jury in other instructions, the cause should not be reversed on account of giving instruction No. 4. After giving instruction No. 4 the court gave instruction No. 5, telling the jury that it was the carrier’s duty to use ordinary care in furnishing- a properly refrigerated car, and to keep said car properly ventilated, and it is insisted by appellee that if there was error in giving instruction No. 4, that it was cured by the other instructions. The result, however, in giving the instructions referred to was to create an irreconcilable conflict in the instructions, leaving the jury without any proper or consistent guide. Am. Ry. Exp. Co. v. Cole, 183 Ark. 557; Mo. Pac. R. Co. v. Fine, 183 Ark. 13.

We have carefully examined the instructions given in this case and find no other error.

For the error in giving instruction No. 4, the judgment is reversed, and the cause remanded for a new trial.


text:
    American Railway Express Company v. Cole.
    Opinion delivered October 26, 1931.

      A. M. Hartung and Warner Warner, for appellant.

      D. H. Howell, for appellee.
   Mehaeey, J.

This suit was broug’ht by appellee to recover damages in the sum of $454.86, alleged to have been caused by the negligence of appellant.

Appellee, on the 12th day of May, 1929, delivered to appellant 448 crates of strawberries which were received and accepted for transportation. The berries were to have been transported to St. Louis, Mo., but on the 13th day of May, 1929, appellant was instructed to divert said car of strawberries to Cleveland, Ohio. The shipment arrived at Cleveland on May 14, 1929, too late for the market of that date. /

It was alleged that the appellant was negligent in transporting the shipment in that it did not transport it within a reasonable time, and in not furnishing appellee a properly constructed and equipped refrigerator car, and that it was also negligent in not icing and keeping properly re-iced the car in which the berries were transported.

It also alleged that appellant negligently and carelessly allowed the ice to melt away in the bunkers and allowed and permitted the temperature of said berries to rise to a high degree; and that, when the shipment of berries arrived at Cleveland, they were found to be soft, rotten, wet, mouldy, overripe, leaky, and otherwise deteriorated, and were thereby greatly depreciated in value.

John Steward, who bought the berries in the car on May 11th and inspected them, testified that the berries were dry, clean, mostly firm, in good condition, g’rade A, which is equivalent to No. 1. The car was set May 11th at 6:30 p. m. ; loading completed May 12th, and delivered to appellant at 2:30 a. m. This witness had had about 12 years’ experience. The berries were not diseased to such extent that could be determined at that time.

On cross-examination witness said he had no independent recollection of these cars, but his record respecting the berries was accurate. A few berries were small, but they were mostly medium to large. Ten per cent, of the berries did not have color. Witness found nothing wrong with the car; was satisfied with the car and accepted it.

Another witness, Donald P. Pocock, testified that he acted as broker in the sale of this car'of berries; that the car arrived at Cleveland at 4:45 a. m. May 14th, and was placed for delivery between 4:45 and 6:00 a. m. same day. The berries were refused by the purchaser on account of the weak condition. This witness inspected the berries May 14th and found them in poor condition; top two layers of berries soft, and some leaking. The berries had been sold for $3 a crate. After the purchaser refused to take the berries on account of their damaged condition, witness resold them for a smaller sum, but for the full market value of berries in damaged condition. This witness had had 18 years ’ experience, and in his opinion the damages to the berries was due either to faulty equipment or improper refrigeration. Witness stated that, if the car had been properly transported, the condition of the berries would have been the same when they arrived at Cleveland that they were when shipped.

The appellee testified about the shipment of' the berries and the sale f. o. b. Morrilton for $3 a crate; that in, his opinion if the berries had received ordinary care in shipment they would not have been damaged, and that the damage, he thought was due to improper refrigeration; that, if given ordinary care in transportation, the berries would hold up six to eight days.

S. L. Robinson, who had been a shipper of produce and fruit for 15 years, testified that the berries would hold up'and be delivered in merchantable condition for 6 or 8 days.

Another witness, H. Rouw, who had handled strawberries 12 or 15 years, testified that No. 1 quality of berries, when the condition was good, the berries dry, clean and mostly firm, under proper handling would hold up 6 to 8 days.

W. G-etes, a mechanical engineer for the appellant, testified about the construction of the car, when it was built, and how the air circulates; and H. A. Simms, a mechanical supervisor of cars for the appellant, testified that the car is handled in passenger train service, and cars are inspected each time they are put in a train; knows nothing personally about this car during the particular trip, but said if it was not all right he would have heard of it.

Earl Sanders, another witness for the appellant, testified that he cleaned and iced the car in question in Van Burén on May 10th; that it was iced to capacity, and the condition of the car after inspection was good. He does not know how many blocks of ice or how many pounds of ice were put in; no record was kept of the amount of ice put in the car, but it was iced to capacity.

A. L. Drilling, testified that he supervised the loading of the car at Morrilton and supervised the inspection; when loading started the temperature was 42 degrees inside the car; that the condition of the berries was fair quality, sandy and overripe; that several different lots were affected with small spots and bruises; 25 per cent, in that condition; temperature of the car was 66 degrees after loading was completed. Car moved on first train at 4:40 a. m. Ice was 11 inches down at 2:30 a. m. There were 14 crates of berries loaded into the car in which the quarts were about half full; that he had had 6 years’ experience in inspecting berries. U. S. No. 1 berries are not defective in any way; not spotted or overripe, and medium to large in size; does not know what defects are allowed in 17. S. No. 1 berries, but knows a good car of berries; does not remember anything personally about the car except what was in the record. This witness also testified that Tom Nation, working for Mr. Cole, loaded some of the cups which were not full. There were some good lots of berries in the car, but about 25 per cent, were bad. Car was iced before it left Van Burén. The ice was down about 11 inches five hours after loading began, does not know what caused the yellow spots in the berries, but were so large you could see them with your eyes; does not know the grade; 25 per cent, of the berries were defective. It was dry the day they were loaded, but it had rained the day before.

C. J. Treadway, inspector for the appellant at North Little Rock, testified that his record showed that the car was placed at the icing platform at 8:05 a. m. May 12th, and icing completed at 8:20 a. m. ; put in approximately 4,200 pounds, which filled bunkers to capacity. Temperature was 76 degrees outside. Ice would have to be down about 28 or 30 inches to get 4,200 pounds in the bunkers.

A. H. Ilyderman, general foreman for Railway Express Agency, St. Louis, Mo., testified that the car arrived at 8:02 p. m. May 12th; estimated the amount of ice put in at 1,500 pounds.

Mr. II. E. Cunningham, general foreman for express company at St. Louis, testified that in May, 1929, there were 2,400 pounds of ice put in the car at 1:15 p. m. on the 13th. This witness testified from his record and has no personal recollection other than shown by the record.

H. D. Marks, general foreman of the express company at Cleveland, Ohio, testified about the arrival of the car, and that the consignee was notified and that he came the following morning at 4:30 to take the car.

W. F. Wheeler; general foreman of the express agency at Cleveland, testified that he re-iced the car and found it in first-class condition; bunkers were filled to capacity with 2,350 pounds.

E. N. Watson, supervisor of express company in Cleveland testified about the number of express cars set for unloading on the morning of the 14th, and it was agreed that H. F. Kellam, if present, would testify that he inspected the car at 8:00 a. m., May 14th; that the ice was 5 inches down; outside temperature was 51 degrees; temperature of berries, 43 at top and 39 at bottom; berries full ripe and mature; '2 to 4 per cent, scars and blemishes; 6 per cent, decay.

K. S. Branch, market specialist for IT. S. Department of Agriculture, testified that he had had 13 years ’ experience in inspecting fruits and vegetables and has been connected with the IT. S. Government 7 years. He testified as to the temperature; that the temperature was 57 degrees and raining, and that that was bad condition for strawberries; market was down; supply liberal; that there are very few cars of berries that do not show some decay; temperature at bottom of load, 39 degrees, and at the top, 43 degrees, indicates very good refrigeration.

John Steward was recalled in rebuttal, and testified that it was not true that 14 crates of berries went into the car that were not inspected by him, and that the quarts were about half full; there would not be 14 crates put in without his knowing it; knows nothing about any yellow spots.

The appellant contends that the plaintiff wholly failed to establish negligence, and for that reason he was not entitled to recover.

Appellee’s witnesses testified that the berries were in good condition when, delivered to the appellant, and a number of witnesses testified that berries in the condition these were at the time of shipment would stand up from 6 to 8 days if the car was in good condition and kept properly iced. In fact, there is no dispute about this in the evidence.

There is some conflict in the evidence as to the condition at the time they were delivered to the appellant, but this was a question of fact properly submitted to the jury, and there was ample evidence to sustain the finding by the jury that the berries were in good condition when loaded and would stand up from 6 to 8 days if the car was properly iced.

The appellee alleged that the appellant was negligent in not furnishing’ a properly constructed and equipped refrigerator car, and was negligent in not icing and keeping properly re-iced the car furnished for the loading and transportation of the berries; that appellant negligently and carelessly allowed the ice to melt away in the bunkers of said car; allowed and permitted the temperature of said berries to rise to a high degree. These were the acts of negligence alleged in the complaint, and there was sufficient evidence of failure to keep the car properly iced to submit this question to the jury.

The evidence set out above tends to show that the ice was permitted to get low, and the undisputed evidence shows that they arrived at Cleveland in a damaged condition. There is no conflict in the testimony as to the length of time the berries would stand up if the car was properly iced. It was only three days from the time the berries were loaded until they reached their destination, Cleveland, Ohio, at which time all the evidence shows they were in a damaged condition.

Several witnesses testified that the condition of the berries was caused by failure to properly ice the car, and one witness testified that damage was caused either by faulty equipment or improper refrigeration. The jury may have believed and found from the evidence that the berries were in good condition when delivered to the carrier, and in damaged condition when they arrived at Cleveland, and that this was caused by improper refrigeration.

The appellee, having alleged specific acts of negligence and alleged that these acts of negligence caused the damage, the burden was on him to prove the negligence and resulting damage.

Appellant first calls attention to and relies on American Railway Express Co. v. Cole, 183 Ark. 557, 37 S. W. (2d) 699. In that case, however, the judgment was not reversed because of the insufficiency of the evidence. The court said: “There is ample evidence of a substantial nature to show that the damage to the berries resulted either from improper equipment or from a failure to ice the car as it should have been. ’ ’

The judgment was reversed because the circuit court gave erroneous instructions. Instructions were given making the express company liable as an insurer. Other instructions were given on the question of negligence, and the court said that the result of giving the instructions was to create an irreconcilable conflict in the instructions and leave the jury without any proper or consistent guide. In the instant case no such instructions were given.

In the case of Mo. Pac. Ry. Co. v. Fine, 183 Ark. 15, 34 S. W. (2d) 755, the suit was based on negligence, and there was also an instruction given to the effect that the carrier was responsible as an insurer. These cases hold that where a suit is based on negligence, as this case is, the shipper must prove the negligence in order to recover.

Appellant calls attention to numerous other cases, but the rule announced in these cases is not applicable here because the jury were told in this case that it was the duty of the carrier to use ordinary care.

The appellant objects, however, to the instruction because it mentioned proper shipping facilities. The instraction objected to reads as follows: “Ton are instructed that it is the duty of tbe carrier to use ordinary care to furnish proper shipping facilities for the kind and character of commodity which it undertakes to carry, and in this case it was the duty of the defendant to use ordinary care to furnish a properly constructed refrigerator car, to use ordinary care to sufficiently ice to preserve the strawberries loaded therein, and to use ordinary care to keep said car sufficiently iced for such purpose until the same was delivered at its destination.”

The complaint alleged that the appellant was negligent in not furnishing appellee a properly constructed and equipped refrigerator car, and the evidence of some of the witnesses tends to prove that the damaged condition of the berries was caused either by faulty equipment or improper refrigeration.

The next case referred to and relied on by appellant is St. L. & S. F. R. Co. v. Vaughan, 84 Ark. 311, 105 S. W. 573. The judgment in that case was reversed because of érroneous instructions. The court said: “The complaint contained no allegations of negligencé on the part of appellant’s servants in inducing the plaintiff to load his cattle in expectation of a train at an early hour to take them away, or at any particular time. No such issue was brought into the case by pleadings, and it was error to permit proof to be introduced upon it, over the objection of defendant, or to submit it to the jury. Nor was there any proof which warranted the submission of question of negligent failure on the part of appellant to furnish facilities for transportation of cattle.”

The principle announced in that case has no application here because both the pleadings and the proof .justified the giving of the instruction in this case. This court has many times held that it is error to give an instruction on an issue not" raised in the pleadings, but the issues in this case on which the instruction was given were raised in the pleadings, and there was some evidence tending to support the allegation in the complaint. In the last case cited there was no allegation in the complaint upon which to base the instruction complained of there, and the evidence, when offered, was objected to by the appellant. If the evidence had been introduced without objection, the complaint would have been considered amended to conform to the proof, and the instruction would have been proper.

The jury were not instructed that it was the duty of the carrier to sufficiently ice the car to preserve the berries, but they were told that it was its duty to use ordinary care for this purpose.

Appellant next contends that the court erred in its instruction on the measure of damages. This instruction told the jury that, if they found for the plaintiff, they would assess his damages, if any, between the original sale price, if they found there was such a sale, and the net amount received for said berries in their damaged condition. In view of the proof in this case, we do not' think the instruction given to the jury on the measure of damages was in any way misleading and would not justify a reversal of the judgment. The evidence showed that the berries were sold for the highest price, or rather for their full market value, in their deteriorated condition, and the jury could not have been misled by the giving of said instructions.

There was ample evidence to sustain the verdict of the .jury, and there was no error in the instructions.

The judgment is affirmed;