author: Hart, J.,

text:
    St. Louis-San Francisco Railway Company v. Fruitmen's Union.
    Opinion delivered February 25, 1924.
    1. Carriers — liability of railroad for negligence of express company. — Where the express business and freight business on a railroad were handled by separate companies, though both had the same agent, the railroad company was not liable for the failure of the express company to furnish a car for the transportation of strawberries.
    2. Carriers — duty to furnish car for perishable freight. — Under Crawford & Moses’ Dig., § 931, making it the duty of a carrier to furnish cars for transporting perishable freight within 24 hours from seven o’clock p. m. on the day following application therefor, a railroad company which furnished a car within 24 hours after the application was not liable for damages to the freight.
    Appeal from Washington Circuit Court; W. A. Dickson, Judge;
    reversed.
    STATEMENT OF FACTS.
    Appellee brought this suit in the circuit court against appellant to recover damages for the failure to furnish an express car for the shipment of strawberries, and also for the negligent delay in furnishing a refrigerator car for the shipment of strawberries.
    The two causes of action are embraced in the same complaint, but are stated in separate paragraphs thereof. In one paragraph it is alleged that, on the 10th day of May, 1920, at Johnson, Arkansas, appellee ordered an iced express car from appellant, for immediate use in loading for shipment 448 crates of strawberries, and, on account of the failure of the defendant to furnish the car, appellee suffered a loss of $896.
    In the second paragraph of the complaint it is alleged that, on the 22d day of May, 1920, appellee ordered from appellant, for immediate use in shipping strawberries 'at Johnson, Arkansas, a refrigerator freight car, and that, by the negligence of appellant in failing to furnish said car as requested, appellee was damaged in the sum of $231.47.

      "W. L. Devin was the manager of the Fruitmen’s Union for the strawberry season of 1920, and was the principal witness for appellee. According to his testimony, on May 10, 1920, he ordered a car from F. C. Morris, who was in charge of the office of appellant at Johnson, Arkansas, to be used in shipping 448 crates of strawberries. Devin ordered from Morris an iced refrigerator express car, and not a refrigerator car. The order was in writing. An express car was ordered because the berries were sold for $1.50 per crate higher shipped that way than if they were shipped in a freight refrigerator car. The berries were to be shipped to Buell Mayes, at Muskogee, Oklahoma. He had purchased the strawberries at the rate of $7.50 per crate on the express car. A refrigerator freight car was furnished, instead of an express car, as ordered, and the berries were shipped to Buell Mayes at Muskogee, Oklahoma, in it. Because they were shipped in a refrigerator freight car, instead of an iced refrigerator express car, he refused to receive and pay for them at the agreed price, and they were sold to him in the refrigerator freight car at a less price, which resulted in a loss to appellee of $1.50 per crate.
    On May 22, 1920, Devin shipped an express car full of strawberries for appellee, and had left on hand 83 crates of berries. This was on Saturday. Devin then told Morris that he wanted a car for the 83 crates of berries, and Morris ordered the car for him. Devin intended to ship the berries out on Saturday night. A refrigerator freight car was set out on Sunday, within which to ship the berries. The berries became damaged because they could not be shipped Saturday night, and Devin sold them to a Mr. Curtis for $1.46 per crate. The market price of the berries at that time was $5 per crate in an iced express car.
    F. O. Morris was the principal witness .for the appellant. According to his testimony, he was the agent of both appellant and the American Railway Express Company at Johnson, Ark., during the strawberry season of 1920. Johnson is a small station in Washington County, Ark., north of Fayetteville. The express company paid him a salary. On May 9, 1920, Devin ordered from Morris an express car, to be loaded the following day. After some discussion about demurrage charges, it was agreed to change the date from the 9th to the 10th inst. Devin applied to Morris for an iced refrigerator express car for immediate use for shipping strawberries, and, in accepting the order for the express car, Morris was representing the American Railway Express Company and not the St. Louis-S an Francisco Railway Company. The business of the express company and of the railway company is entirely separate, and separate requisitions are used.
    The express company did not have any requisition blanks, and a requisition blank of the railway company was used in transmitting the order; but it was expressly stated that the car wanted was an iced express refrigerator car. Morris, in transmitting tile request for the express car, was acting as agent of the express company. A refrigerator freight car, instead of an express car, was set in on the sidetrack at Johnson, to be used in making the shipment, and this car was so used. The requisition was in writing, and dated 5/10/20, and was for one iced express refrigerator car. The requisition was signed by ‘‘Fruitmen’s Union.”
    With regard to the second shipment, Morris acted for the railroad in receding the order for the car. A car had been loaded on Saturday, and 83 crates were left over from the strawberries on hand at that time. Another car was ordered to take care of the 83 crates. This order-was made some time Saturday afternoon, and the car was delivered and set on the sidetrack to be loaded on the next day, which was Sunday. The 83 crates were not loaded on it, because the agent of appellee claimed they had been damaged by the delay.
    Other evidence was introduced by appellant tending to show that'the American Railway Express Company owned its own cars and carried all of the express which was handled over the railroad, of the St. Louis-San Francisco Railway Company in Washington County. The railway company and the express company are separate, and the express business is carried on by the American Railway Express Company.
    The jury returned a verdict for appellee, and judg.ment was rendered upon the verdict against the appellant.
    The case is here on appeal.

      W. F. Evans and Warner, Harclin & Warner, for appellant.
    1. The court erred in refusing to direct a verdict for the appellant.. The proof is clear and unequivocal that the order was for an iced express car. No liability could attach to the railway company for failure to furnish the express car. It was under no duty to furnish express cars, neither was there any evidence justifying the assumption that it held itself out as a carrier of express cars. ' 1 Hutchinson, Carriers, 86, § 90; 4 R. C. L. 663, § 140; Id. 674, § 150; 81 Ark. 373, 388; 4 Elliott on Railroads, § 2223; 242 U. S. 208, 61 L. ed. 251; 184 Pac. 442; 7 A. L. R. 140, 142. Appellant discharged its full duty to the public when it afforded to it reasonable express accommodations, which was done by the American Railway Express Company that transacted the business of supplying express cars upon orders therefor. 171 U. S. 1, 29 L. ed. 792; 2 Hutchinson, Carriers, § 517; 176 U. S. 498, 44 L. ed. 560, 569. The express company was a common carrier, and,'as such, required to furnish suitable cars within a reasonable time, etc. 130 Ark. 210, 214; (U. S.) 23 L. ed. 872; 4 Elliott on Railroads, § 2106, note 41; 10 C. J. 48, note 26; Transportation Act 1920, § 400. Morris, the agent, acted solely for the express company in receiving and forwarding the order. He was, necessarily, not an employee of the appellant in that transaction. 1 Roberts, Fed. Liab. of Carriers, 907, § 522; (U. S.) 65 L. ed. 205; 171 N. Y. App. Div. 652, Í57 N. Y. Supp. 420. 'Before the plaintiff could fix any liability on the railway company for failure to furnish cars, it must have shown an offer to bring itself into contractual relations with the company. 4 Elliott on Railroads 656, § 2225; 61 Ark. 562. Notice given on one day for a car that was wanted on the next day was not a reasonable notice. C. & M. Digest, § 931; 146 Ark. 355.
    2. As to the second car ordered, the proof is that a freight refrigerator car was ordered on Saturday the 22d, and that it was delivered on Sunday, the 23d of May, within thirty hours from the time the order was given. It was delivered in a reasonable time. 4 R. U. L. 67i8, § 153; 4 Elliott on Railroads 657, § 2225; C. & M. Digest, § 931; 84 Ark. 311.
   Hart, J.,

(after stating the facts). We will first take up the shipment of May 10, 1920, for the 448 crates of strawberries. Upon this branch of the case the undisputed evidence shows that appellee was not entitled to recover against appellant, and the circuit court therefore erred in not directing a verdict in appellant’s favor.

The undisputed evidence showed that the express business was handled by the American Railway Express Company, which was a separate company from the St. Louis-San Francisco Railway Company. The express company owned its own cars and handled all the express shipments. It is true that both companies had the same agent, and that the express company operated its cars over the railroad tracks of appellant; but this did not render the railway company liable for any negligence of the express company in failing to furnish cars for its business. The agent of the shipper testified that he ordered an iced refrigerator express car for the shipment of his 448 crates of strawberries. This was done because appellee could get $1.50 more a crate if the strawberries were shipped in an express car. The express company and the railway company had the right to employ the same person as agent. No conflict of duty could arise in serving the two companies.

The agent also testified that appellee ordered an express car for the shipment of 448 crates of strawberries, and that, in accepting the order, he acted for the express company. The failure of the express company to furnish an express car could not render the railway company liable. It had nothing whatever to do with the transaction, and the mere fact that it set out a refrigerator car for the use of the shipper would not render it liable for the failure of the express company to send an express car, as requested by appellee.

Therefore the court erred in not directing a verdict in favor of appellant, in so far as the first shipment of 448 crates of strawberries is concerned.

According to the allegation of the complaint, the cause of action for the second shipment is also based upon the alleged failure of the railway company to furnish an iced refrigerator express car for the shipment of the 83 crates of strawberries on the 22d day of May, 1920. If recovery is to be sought on the allegation of the complaint, the appellant will not be liable, for the reasons above stated. That is to say, the railway company is not liable for the failure of the express company to furnish the car, because the business of the two companies is separate and distinct. However, according to the evidence of appellant, a refrigerator freight car was ordered for the shipment of the 83 crates of strawberries. It appears that these berries were left over on Saturday from a quantity of berries which had been loaded into an express car for shipment. A telegraphic order was sent for a car some time Saturday afternoon, and it was intended to ship the berries in it some time Saturday night. Appellee ordered a refrigerator car, and it was not delivered until some time Sunday morning. Appellee claimed that the 83 crates of strawberries had become damaged by being kept over Saturday night, and appellee then sold them at a loss on Sunday rather than ship them in the refrigerator car. The refrigerator freight car in question was received at Johnson, Ark., pursuant to the order made on Saturday, and was received about 28 hours after the order was given to appellant’s agent at Johnson.

Section 931 of Crawford & Moses’ Digest regulates the duties of a carrier when a shipper makes application to a station agent for a car, or cars, to be loaded with perishable freight, such as fruit and vegetables. The section provides that such railway company shall furnish a car, or cars, in the kind and quantity ordered at the place of shipment, within twenty-four hours from seven o’clock ■ p. m. on the day following such application.

As we have already seen, the undisputed evidence shows that the refrigerator car was furnished by the railway company within the time prescribed by the statute. If it be said that the complaint should be amended so as to conform to the proof of appellant, there is no negligence shown on its part. Hence the appellee was not entitled, under the proof, to recover damages for the delay in furnishing a refrigerator car by the railway company for the shipment of the 83 crates of strawberries.

It follows, from what we have said, that the circuit court erred in not directing a verdict in favor of appellant, and for that reason the judgment must be reversed, and the cause will be remanded for a new trial.


source: Caselaw Access Project

author: Hart, J.

license: Public Domain

text:
    Polk v. Garrison.
    Opinion delivered February 25, 1924.
    1. Banks and banking — effect of making deposit. — A general bank deposit creates the relation of debtor and creditor, authorizing the bank to mix the deposit with its funds and use it in - its business.
    2. Banks and banking — forgery of order. — A bank is liable for honoring a forged telegraphic order for payment of a depositor’s money.
    S. Postoffice — liability of postmaster for delivering registered letter to IMPOSTOR.- — -Where an impostor, by forging a depositor’s name, induced a bank to send the deposit by registered mail, and, by impersonating the depositor, induced the postmaster to deliver the package, the postmaster was not liable to the defrauded depositor, there being no privity of contract between them.
    Appeal from Union Circuit Court; L. S. Britt, Judge;
    affirmed.

      U. L. Meade, for appellant.
    Appellee was jointly liable with the bank, and, at the option of appellant, suit conld be maintained against him alone. See O. & M. Digest, §§ 1099, 1100, 6229, 6231. Bishop on Non-Contract Law, p. 230, 521-522. A letter is within the custody and control of the postal department from the time received until delivered to the person entitled thereto. 170 Fed. 121. Appellee was also liable under Acts of 1913, p. 278, § 23, the uniform negotiable instruments act. A postmaster is liable for the act of his clerk. 90 Fed. 473, 33 C. C. A. 617. Jurisdiction of the court below was not challenged by the demurrer, and it was improperly sustained. See 5 Fed. .Stat. Ann., § 3833, p. 794.

      S. S. Langley, for appellee.
    The money on deposit in the bank was the property of the bank, subject to the order of Polk. 104 Ark. 550; 124 Ark. 531; 126 Ark. 266. Polk, not having ordered the withdrawal of his money, the money in question was the property of the bank, and he has no cause of action against appellee. 94 XT. S. 343; 98 Ark. 1. The bank having sent the money on a forged order, was liable therefor. 137 Ark. 251. The question of contract does not enter into the case.
   Hart, J.

D. W. Polk sued J. H. Garrison to recover $200 alleged to be due him.

According to the allegations of the complaint, in December, 1921, J. H. Garrison was postmaster for the city of El Dorado, Arkansas. In November of the same year D. W. Polk and Henry Bomb occupied the same room in the oil fields near the city of El Dorado, Ark. Bomb stole from the suitcase of Polk certain receipts for bank deposits, which Polk had from the Bank of Morton, in the town of Morton, Miss. These receipts showed that Polk had on deposit in said bank over $200. Henry Bomb then sent a telegram to the Bank of Morton, signed by D. W. Polk, to send to said D. W. Polk at El Dorado, Ark., by registered letter, the sum of $200. The bank received the telegram, and in December, 1921, mailed to D. W. Polk at El Dorado, Ark., $200 by registered letter, and charged said amount to the account of D. W. Polk. In due course of mail the registered letter was received at the post-office at El Dorado, Ark. Henry Bomb went to the post-office and represented himself to be D. W. Polk. The defendant delivered the registered letter to him, and Bomb converted the money to his own use.

The defendant, Garrison, filed a demurrer to the complaint, which was sustained by the circuit court. The plaintiff declined to plead further, but elected to stand upon 'his complaint. Whereupon the circuit court dismissed his complaint, and from the judgment rendered the plaintiff has duly prosecuted an appeal to this court.

The decision of the circuit court was correct. According to the allegations of the complaint, D. W. Polk had $200 on general deposit in the Bank of Morton. This created the relation of debtor and creditor between the bank and Polk. The bank was authorized to mix the deposit with its funds and use it in its business. Covey v. Cannon, 104 Ark. 550; State National Bank of Little Rock v. First National Bank of Atchison, Kansas, 124 Ark. 531, and Citizens’ Bank & Trust Co. v. Hinkle, 126 Ark. 266.

This court has held that a bank is liable for the payment of a forged check or bill of exchange. ' The reason is that forgery can carry no title to the paper, even in the hands of a bona fide holder. Otherwise any person might be stripped of all his money in a bank without any act at all upon his part. Sims v. American National Bank of Fort Smith, 98 Ark. 1, and Schaap v. First National Bank of Fort Smith, 137 Ark. 251.

Counsel for appellant concede the correctness of this .rule, but contend that the postmaster at El Dorado was liable, because he paid the money to Bomb without inquiring whether he was the person in reality entitled to it. Hence counsel for appellant argues that there was a joint liability between the postmaster and the Bank of Morton to D. W. Polk.

The contention of counsel would be sound if D. W. Polk had ordered the amount of his deposit sent to himself by registered letter to El Dorado, Ark., and the postmaster at that place had delivered the letter to some one impersonating Polk.

In the case at bar, however, Polk did not order the money sent to himself. The order was forged by Bomb, and Polk did not know of its existence. Hence there was no privity of contract between him and the postmaster at El Dorado. He could sue the Bank of Morton for the amount of his deposit if it refused to pay him, but he had no cause of action against the defendant. The Bank of Morton is not a party to the action, and the question as to whether or not it could recover from the postmaster is not an issue in the case.

It follows that the judgment will be affirmed.


text:
    Galloway v. Sewell.
    Opinion delivered February 25, 1924.
    1. Wills — use of a thing.- — Generally the use of a thing does not mean the thing itself, but that the user is to enjoy, hold, occupy or have in some manner the benefit thereof.
    2. Life estates — will giving wife use of property for life.— A will devising and bequeathing all of testator’s property to his wife during her life “to have and to use, manage, control, sell and enjoy for said term,” giving her power to sell the property, and directing that she be not held to account for disposition of the property used or sold during her life, the remainder to go to .testator’s legal heirs, entitled the wife to hold and occupy the real estate, and have all money during her life, and to receive the rents and interest, whether needed for her maintenance or not, whatever was left of the rents or interest at her death going to her legal heirs, and testator’s administrator or the remainderman could not require her administrator to account for anything more than the principal of money received under the testator’s will.
    3. Executors and administrators — accounting.—In a suit by a husband’s administrator against the wife’s administrator for • accounting as to property received by the wife from the husband’s estate, it appearing that moneys of the wife were a part of the property so received, defendant was not entitled to credit for interest on such moneys up to the husband’s death, in the absence of proof that she received any interest.
    4. Executors and administrators' — cost op tombstone. — In the case of solvent estates, the necessary cost of a reasonable tombstone placed at the grave of a deceased person is properly classed as funeral or administration expenses.
    Appeal from Pope Chancery Court; W. E. Atkinson, Chancellor;
    reversed.
    STATEMENT OP PACTS.
    R. I\. Sewell, administrator of the estate of J. "W. Dickey, deceased, brought this suit in equity against W. A. Galloway, administrator of the estate of Martha L. Dickey, deceased, for an accounting’ between the parties of the funds of the estate of which R. K. Sewell is administrator, which are in the hands of the defendant, and that plaintiff have judgment against the defendant for the amount found to be due.
    J. W. Dickey and Martha L. Dickey were husband and wife, but had no children. J. W. Dickey died testate in Pope County, Arkansas, on the 1st day of October, 1907, owning both real and personal property in said county. The construction of his will is involved in this suit, and it reads as follows:
    “The last will and testament of James W. Dickey.
    ■ ‘ ‘ Know all men by these presents: That I, James W. Dickey, of Atkins, in the county of Pope and the State of Arkansas, being in good bodily health and of sound mind and memory, do make and publish this, my last will and testament, hereby revoking all former wills by me heretofore made:

      ‘1 This is to say: It is my will that all my just debts be paid by.my executrix, hereinafter named, out of my estate, as soon after the probate of this will as conveniently may be done. I hereby constitute and appoint mv beloved wife, Martha L. Dickey, to be sole executrix of this mv last will and testament, and I desire that she be permitted to execute the same, without bond, at anv time.
    “I give, devise and bequeath unto my said wife, Martha L. Dickey, all my property of every kind whatsoever, and wherever situated, real, personal and mixed, for and during the term of her natural life, to have and to use, manage, control and enjoy for the said term; and from and after the decease of my said wife, I direct that the residue and remainder of my estate, of every kind whatever, and wherever located, shall descend to my legal heirs at law, according to the statute in such cases made and provided.
    “It is my will and I direct that my said wife, Martha L. Dickey, be permitted to manage, direct and control and use and enjoy all of my said property during the said term of her natural life, and she is hereby given full power and authority to sell and dispose of any of said property, and to make proper deeds therefor, when, in her judgment, it will be for the best interest of my said estate, and I hereby direct that she shall never be held to account for the disposition of any part of said property which she may use, sell or dispose of during the continuance of said term.
    “In testimony whereof I hereof set my hand and publish and declare this to be my last will and testament, in the presence of the witnesses named below. This the 18th day of December, 1901.
    ‘ ‘ James W. Dickey. ’ ’
    The will was duly probated, and Martha L. Dickey qualified as executrix under the will.
    J. W. Dickey and Martha L. Dickey were married in 1882. At the date of her marriage Martha L. Dickey had $800, which she had received from her father’s estate in 1876. At the date of his death J. W. Dickey had on deposit in the Merchants’ & Farmers’ Bank, Atkins, Ark., $81.90, and had on deposit in the Bank of Atkins $484. After his death the amount of these deposits was transferred to the account of Martha L. Dickey. On the 25th day of October, 1907, she placed in the Merchants’ & Farmers’ Bank $3,350 in currency and gold, and on the same day she placed to her credit in the Bank of Atkins the sum of $6.000 in cash. At the date of his death J. W. Dickey owned a farm near Atkins and two houses in Atkins. After his death Martha L. Dickey took charge of all of his property. During the World War she bought $3,000 worth of Liberty bonds and $175 worth of war savings stamps. She erected a monument over her husband’s grave at a cost of $400.
    At the time of the death of J. W. Dickey he had an insurance policy for $2,000, in which his wife was named as the beneficiary. She collected the amount of said policy, and placed it in the bank to her account. She enjoyed the use of the real and personal property so devised to her until the date of -her death on November 20, 1920.
    Other facts will be stated or referred to in the opinion.
    It was the opinion of the chancellor that Martha Dickey was entitled to the use and enjoyment -of all the property devised to her in the will of her husband for her support during her natural life, but that she should account for all of that part of it which had not been disposed of, including the rents from the real estate and the interest which she had received from the money. The total amount found to be due, upon the accounting, was $14,371.62, and the administrator of the estate of Martha L. Dickey, deceased, was ordered to turn that amount over to the administrator of the estate of J. W. Dickey, deceased.
    To reverse that decree W. A. Galloway, administrator of the estate of Martha L. Dickey, deceased, has prosecuted an appeal to this court.

      J. T. Bulloch, R. B. Wilson and Hays, Priddy & Hays. for appellant.
    There is no presumption of law or fact to support the finding that the money deposited by Mrs.'Dickey was the property of her husband. The law does not -presume that money in the possession of a wife belonged to her husband instead of her. 42 Ark. 62;' 24 Fed. 666. The fact of possession suggests ownership. '1 Jones’' Comm, on Ev:, § 74, :p. 354. 'The presumption of á gift from the husband'to the wife is'stronger than that she was wrongfully holding the money of her husband. 116 Ark. 152. To establish a resulting trust the proof must leave no well-founded doubt on the subject. 118 Ark. 146. Appellee is precluded from relief by laches, having’ waited during’ a long period, and until after the death of the only 'witness who knew the facts, to assert his claim. Am. & Eng. Enc. Law, vol. 18, p. 106; 2 Wall. 87; 95 Ark. 178. Mrs. Dickey, under the will, had a right to spend the money left by her husband. 112 Ark. 527.

      Robert Bailey and Jack Smalhoood, Jr., for appellee.
    If Mrs. Dickey had any separate funds, she mixed them with the funds belonging to the estate of her husband. One who mixes trust funds with his own money, the whole will be treated as trust property, unless lie is able to distinguish what is his. 13 L. R. A. 325; 83 Mo. 210; 57 Mo. 531; 58 Ala. 582 ; 8 L. R. A. 788; 11 Paige 520 ; 3 W. Va. 126; 104 IT. S. 54; L. R. A., 1916-A, 0-1; 58 L. R. A. 385; 52 L. R. A. 856; 26 A. L. R. 7; 9.5 Me. 353. Mere possession of money of a deceased person cannot raise any presumption of a gift during deceased’s life. 142 Ark. 308; Enc. of Evidence, vol. 6, p. 830 ; 30 C. J., § 299; 97 Ark. 69; 93 Ark. 548. When a gift is claimed, it must be proven by strong and clear evidence. 42 Hun 161; 42 N. J. Eq. 352; 2 Edw. Oh. 337; 233 Pa. St. 316. A possession which is as consistent with agency as with gift must indicate agency instead of gift. 75 Me. 521; 80 Me. 575; 81 Me. 243; 90 Me. 382; 38 L. R. A. 193; 110 Me. 35; 93 Me. 291; 111 Me. 25; 261 Mo. 126; 61 N. H. 541. A life tenant in possession is not entitled to credit for money paid out for taxes, improvements and other expenses. 17 R. C. L. 535, § 25; 13 L. R. A. (N. S.) 514; note 32 L. R. A. 736; 12 R. O. L. 641, § 31; 17 R. C. L. 641, § 31; 137 Ark. 140.
   Hart, J.,

(after stating thfe facts). The third paragraph of the will of J. W. Dickey gave Martha L. Dickey, his wife, full power and authority to sell and dispose of any of the property of his estate and to make proper deeds therefor when, in her judgment, it would be for the best interest of said estate.

In the same clause the will directs that she shall never he held to account for the disposition of any of said property which she may use, sell, or dispose of during her natural life.

Conceding that this clause of the will gave her the power, as life tenant, to convey the estate absolutely and thereby defeat the estate of the remainderman, as decided in Archer v. Palmer, 112 Ark. 527, it need only be said that it does not appear from the record that she disposed of any part of her husband’s estate, and consequently she did not exercise or attempt to exercise the power thus conferred upon her by the will.

This brings us to a consideration of what estate was vested in her under the will and what right she had in its use.

The second paragraph of the will devises - and bequeaths to Martha L. Dickey all the property of every land of the testator,- for and during the term of her natural life, “to have and to use, manag-e, control and enjoy for said term.” The same clause directs that the remainder of the estate of the testator should descend to his legal heirs.

In the third- clause of the will the testator again directs that Martha L. Dickey be permitted “to manage, direct, control, use and enjoy all of his property during her natural life.”

As a general rule the use of a thing does not mean the thing itself, but means that the user is to enjoy, hold, occupy, or have in some manner the benefit thereof. If the thing to be used is in the form or shape of real estate, the use thereof is its occupancy -or cultivation, etc., or the rent which can be obtained for its use. If it is money or its equivalent, generally speaking', it is the interest which it will earn. Blanton v. First National Bank, 142 Ark. 404; and Special School District No. 5 v. State, 139 Ark. 263, and cases cited; 39 Cyc. 845, and cases cited; 29 Amer. & Eng. Cyc. of Law, 2 ed. p. 444, and cases cited; Crane v. Van Dyne, 9 N. J. Eq. 259; Cross v. Hoch, 149 Mo. 325; Rountree v. Dixon, 105 N. C. 350; Russell v. Andrews, 120 Ala. 222; and Warren v. Webb, 68 Me. 133.

Under this rule Martha L. Dickey was entitled to hold and occupy the real estate devised to her for her natural life and to receive the income or rent therefrom. She was also entitled to the money received from her husband’s estate and to the interest on it during her natural life. It did not make any difference whether she used or needed the rents from the real estate or the interest on the money for her support and maintenance. She was entitled to receive the same, and was not required to account for it, under her husband’s will. At her death, whatever was left of the rents from the real estate' or the interest from the money became a part of her estate, and, under our law of descents and distributions, went to her legal heirs. Her administrator could only he required to account to the administrator of her husband’s estate, or to the remaindermen under the will, for the principal of the money she received under the terms of her husband’s will.

It is not claimed that she received any personal property under her husband’s will, except money. If there was any small amount of personal property left at her husband’s death, it was doubtless consumed by use under the rule stated in Fields v. Kline, 161 Ark. 418.

As we have already seen, Martha L. Dickey did not attempt to dispose of any of the real or personal property which she received under the will. The basis of this suit is to require an accounting from her administrator of the personal property which she received under her husband’s will, and which was undisposed of at the date of her death. The proof shows that, at the date of her husband’s death, he had on deposit in one hank $81.90 and in another $484, making a total of $565.90. In a few days after his death she placed on deposit in a hank two sums totaling $9,350.

It was not shown that she had any money of her owm, except $800 which she had received from her father’s estate. It is suggested that she should he entitled to interest on this amount from the time she received, it until her husband’s death, and that the interest should be added to the principal and the whole sum counted as belonging to her. If she had lent out the money and received interest on it, of course, it would belong to her, but there is no proof in the record that she ever put her money out at interest, and we cannot rely upon surmise or conjecture in the matter. Before she would be entitled to interest, she is required to prove that she had received interest, and the administrator of her estate has failed to meet the burden of proof in this respect. She did expend, however, $400 in erecting a monument over her husband’s grave. His will directed that all his just debts be paid by his executrix. The monument on his grave was a proper charge against his estate. Credit should be allowed for a reasonable expenditure for a tombstone or monument for decedent. 24 C. J. 93, and cases cited.

A reading of the cases cited shows that it is quite generally held in the case of solvent estates that the necessary cost of a reasonable tombstone placed at the grave of a deceased person is properly classed as funeral expenses, or expenses of administration, which may be allowed to an executor or administrator in settlement of his account. Therefore in arriving at the sum which Martha L. Dickey received from her husband’s estate, under his will, the amount of money which' she owned, $800, and the $400 for the monument, making a total of $1,200, should be deducted from the money which she deposited in the bank. One thousand two hundred ($1,200) dollars taken from $9,350 leaves $8,150. To this amount should be added $565.90 on deposit by her husband when he died, making a total of $8,715.90, which she received under her husband’s will and which went into the hands of her administrator at her death.

It is fairly inferable from the evidence that she had no money or property except the $800, as above stated, and it is also fairly inferable that she received the rest of the money, which she put into the bank shortly after her husband’s death, from his estate.. The result of our views is that the chancellor properly held her accountable for the amount of money which she received from her husband’s estate, and which, after deducting all proper allowances, we find to be the sum of $8,715.90.

J. W. Dickey had a policy of insurance in which Martha L. Dickey was the beneficiary. She collected this policy, and was entitled to it. It does not appear, however, that this was any part of $8,350 or the $6,000 deposited in bank. Both these deposits bear date of Oct. 25, 1907, and the proceeds of the life policy bear date of Jan. 3, 1908.

The learned chancellor erred in requiring her to account for any part of the income or rents derived from the real estate or interest on the money of her husband which she had loaned out.

It follows that the decree will be reversed, and the cause remanded with directions to render a judgment in favor of the plaintiff against the defendant for said sum of money, together with 6 per cent, interest thereon from the date of the decree in the court below, which was on the 12th day of October, 1922.

It is further ordered that the costs in the court below and of this appeal be paid by the plaintiff.


author: Smith, J.

text:
    Lipscomb v. Blanz.
    Opinion delivered February 25, 1924.
    1. Municipal corporations — improvement district — removal of name from petition. — In a suit to enjoin street improvement proceeding's on the ground that an insufficient number of property owners petitioned for the improvement, the chancellor’s finding that a certain property owner requested removal of her name from the petition held not against the preponderance of the evidence.
    2. Municipal corporations — improvement district — signature to petition. — A. property owner in a proposed improvement district may direct another to sign her name to the petition for such improvement.
    3. Municipal corporations — improvement district — authority to sign petition. — An instrument reciting: “I hereby assign my interest in my father’s estate to my mother to do as she pleases during her lifetime,” held insufficient to authorize her to fix a lien, which might extend beyond her lifetime, by signing her son’s name to a petition for a street improvement, which had not been suggested when the instrument was executed.
    4. Municipal corporations — improvement district — ratification of unauthorized signature. — Ratification of an unauthorized signature of a property-owner’s name to a street improvement petition after passage of the improvement ordinance did not cure the lack of original authority.
    Appeal from Pulaski Chancery Court; - John E. Martineau, Chancellor;
    reversed.

      J. C. Marshall, for appellant.
    Mrs. Long was entitled to have her name removed from the petition, the same still being in circulation, and not having been vet presented to the council. 70 Ark. 175; 11 L. R. A. (N. S.) 372. The name of C. Y. Edrington, signed to the petition, was without authority. 108 Ark. 141; 111 Ark. 314. Ratification after the matter liad ¡been passed upon by the council was too late. 156 Ark. 356.

      Melbourne M. Marlin, for appellee.
   Smith, J.

Appellants are property owners in Street Improvement District No. 350 of the city of Little Rock, and they seek by this suit to enjoin further proceedings looking to the construction of the proposed improvement. There are various grounds of attack, among others that a majority in value of the property owners did not petition for the construction of the improvement. As we think the appellants aré correct in this contention, we do not consider the other grounds of attack, for the one sustained is fatal to the district.

The court below sustained the organization of the district, but found that the name of Mrs. Long, an owner of property in the district, should be stricken from the petition, on the ground that, before it was filed, she asked that her name be removed. The court found that the name of O. Y. Edrington should be counted in determining whether a majority in value had signed, and, if this name is counted, the petition contained the necessary majority.

On behalf of the district it is insisted that the court erred in striking the name of Mrs. Long from the petition, and it appears that, if either name is counted, the petition contained the necessary majority, whereas if both names are stricken from the petition the necessary majority was not obtained. It becomes necessary therefore to determine whether either name should be included.

Mrs. Long testified that she had signed both the first and second petitions under a misapprehension 'or misrepresentation, as she states, in regard to the cost of the improvement, and that she signed the second petition either on a Thursday or a Friday night, and that she discovered her mistake the following morning, which was either Friday or Saturday, and that she went the next morning about ten o ’clock, after discovering her mistake, to the attorney who presented the petition to her for her signature, and asked him to remove her name. The attorney told Mrs. Long that the petition was then in the possession of the gentleman who had accompanied him in securing signers. Mrs. Long assumed that her name had been or would be removed, and, when she found that the petition as filed contained her name, she filed a petition with the city council to remove her name, but the prayer thereof was not granted. There is some conflict in the testimony of Mrs. Long and the attorney, but he did not categorically deny that Mrs. Long requested the removal of her name, and we think the finding of the chancellor that the request was made, and before the filing of the petition, is not against the preponderance of the evidence.

In regard to Mr. Edrington the facts are as follows: His father owned, at the time of his death, three and one-half lots in the district, and the property descended to the son and a daughter, Mrs. Wilson, who was the only other child, subject to the marital rights of the widow, the mother of the son and the daughter. Edrington removed to Kansas City, Missouri, where he now resides, and left his mother to look after the property. After removing to Kansas City he executed and acknowledged, on January 13, 1923, the following paper writing: “To whom it may concern: I hereby assign my interest in my father’s estate to'my mother, to do as she pleases during her lifetime, as I believe her capable of handling same in proper way, as father would have done. (Signed) C. Y. Edrington, 1037 Shawnee Avenue.”

Under the authority of this instrument Mrs. Edrington occupied and managed the property.

Edrington’s name was actually signed to the petition by his sister, Mrs. Wilson, but this was done under the following circumstances: The petition was presented to Mrs. Wilson in her mother’s presence for her own signature, and she signed her own name. It was then presented to Mrs. Edrington for the signature of her son. Mrs. Edrington did not sign her son’s name, but directed Mrs. Wilson to do «o, and 'this Mrs. Wilson did in the presence of her mother.

Mrs. Wilson had the right, of course, to sign her own name, as she owned property in the district, and we think the direction from Mrs. Edrington to her to sign Mr. Edrington’s name was not such a' delegation of authority as rendered the signature void on that account.

The Constitution of the State requires that the consent of a majority in value of the property owners must be first obtained to organize improvement districts in cities and towns, under such regulations as may be prescribed by law; and the statute has prescribed that such districts shall be organized if, within three months after the filing of the preliminary petition, the requisite number of property owners “adjoining the locality to be affected shall present to the council a petition praying that such improvement be made.”

There was no delegation here of her agency by Mrs. Edrington in directing her daughter to sign her son’s name. The act of the daughter was in fact the act of the mother.

At § 208 of Meehem on Agency (2d ed.) vol. 1, page 152, it is said: “Thus where a person about to perform a certain act, himself determines upon all of the elements of it which essentially belong to it, he may avail himself of any mechanical or ministerial agency which may be convenient in giving physical form or manifestation to the act. Human instrumentalities may be employed for this purpose, as well as inanimate ones. If I wish to sign my name to a document, I may use a pen, typewriter, rubber stamp, or the hand of a third person, indifferently. Inasmuch as, in such a case, I .furnish the consciousness, the volition — the will — and cause the act to be done under my immediate direction and control, it is my act, whether I employ an inanimate tool to make the visible mark, or an animate one. Such a tool so used is not an agent, and the rules governing the appointment of agents do not apply to its use.”

But a more important question is whether Mrs. Edrington herself had this right. The court helow appeared to have proceeded upon the assumption that, if Mr. Edrington had not originally authorized his mother to sign the petition, he had subsequently ratified her act in doing so. This appears from the remark of the chancellor when the authority of Mrs. Edrington was questioned. The remark of the court was that the signature might have been ratified, although it was not originally authorized. Thereafter, before the trial was concluded, a telegram from Mr. Edrington was offered in evidence in which he stated that he ratified the act of his mother in signing his name. The attorney for the district admitted that he had sent Mr. Edrington a telegram requesting a telegram, which he worded, be sent, and the one received came in response to his own telegram.

Parol testimony was offered tending to show that the power of attorney set out above was intended to confer such control over the property as was essential for Mrs. Edrington to possess to authorize her to sign her son’s name. But if this testimony was competent for that purpose — which we do not decide — it was insufficient to accomplish that result. It will be observed that Mrs. Edrington did not sign as the owner of any interest conveyed by the instrument itself. What she did was done as the agent of her son, and the oral testimony was to the effect that Mrs. Edrington lived on the property, and it was found necessary to make certain improvements on it, and the consent of Mr. Edrington was thought necessary to have this done. We gather from the testimony that these were mere improvements affecting the use or rental of the property. The purpose of the instrument evidently was to authorize Mrs. Edrington to make the improvements necessary to rent or occupy the property. The writing contains no authority to sell or incumber the title to the property .by fixing a lien which might extend far beyond the life of Mrs. Edrington, and the interest or control released to Mrs. Edrington was expressly limited to her own lifetime. The oral testimony shows that the construction, of the proposed improvement was not an improvement contemplated by the parties at- the time of the execution of this instrument, as the promotion of the proposed improvement had not then been suggested and was not undertaken for several months thereafter.

This second petition, the one under consideration, was filed on the 12th day of May, 1923, and the city council soon thereafter granted the prayer thereof, while the telegrams were not sent and received for some time thereafter — not, indeed, until the trial of this suit was being heard in the chancery court, which was on October 29, 1923. This alleged ratification might have been made, and would liave been sufficient if made before the passage of the ordinance, but, as the ratification did not occur until after the passage of the ordinance, this subsequent ratification did not cure the lack of original authority on the part of Mrs. Edrington.

In the case of Lewis v. Forrest City Special Improvement Dist., 156 Ark. 356, we held that a corporation might, by a course of conduct in permitting its executive officers to manage its affairs, confer implied authority to sign a petition for the organization of an improvement district, but that such implied authority must exist before the petition was signed, and that, if the power did not so exist, the board of directors could not, after the enactment of the ordinance pursuant to the petition, validate the signature by ratification, for the reason that there must be a majority in value of the property represented by authorized signatures before the council can pass the ordinance.

The attempted ratification by the telegram was therefore unavailing, because it was sent long after the council had passed the ordinance, and, as the power of attorney itself did not confer the authority on Mrs. Edrington to sign her soil’s name, it follows that his name was signed without authority, and, this being true, and it also being conceded that this suit was brought in apt time to raise these questions, it follows that the council had no authority to pass the ordinance creating the district, and the commissioners should therefore be enjoined from attempting to proceed under it.

It is therefore ordered that the decree of the court below be reversed, and'the cause remanded with directions to enter a decree canceling the ordinance of the city creating said district, and the commissioners of the district will be enjoined from further proceedings thereunder.


text:
    National Union Fire Insurance Company v. Kent.
    Opinion delivered February 25, 1924.
    1. Insurance — question of fact. — Whether defendant fire insurance company’s agent knew, before a policy was written and delivered, that the insured was not the sole owner, as the application stated him to be, held under the evidence to he a question of fact.
    2. Insurance — sole ownership — waiver.—Where an insuránce agent who wrote a policy of fire insurance knew at the time of its issuance that the insured’s interest wás .not sole and unconditional, the policy requirement that insured be the sole owner was waived.
    3- Insurance — issue raised. — Where, in an action on a policy of fire insurance, the sole defense was that the policy was void, no issue as to the amount of recovery was raised.
    4. Insurance — total loss — liability.—In the case of a total loss of property insured, the statute (Crawford & Moses’ Dig., § 6147) makes the insurer liable for the full amount of insurance.
    Appeal from Independence Circuit Court; Dene H. Coleman, Judge;
    affirmed.

      J. A. Wathins, for appellant.
    1. The breach of warranty with reference to sole and unconditional ownership rendered the policy void. 63 Ark. 201; 72 Ark. 51; 43- S. E. 52; 45 N. E. 804. The burden of showing a waiver of this provision of the policy was on the plaintiff. 67 Ark. 584. And he failed to discharge that burden, as appears by the evidence. .
    2. The court erred in giving judgment for 12 per cent, penalty and $100 attorney fee.

      Sam’l M. Casey, for appellee.
    1. The finding of the trial court, sitting as a jury, that the agent who wrote the policy knew, at the time, that plaintiff’s ownership was not sole and unconditional, is conclusive on appeal. The company was hound by his knowledge, and therefore waived that requirement. 134 Ark. 52; 128 Ark. 92; 133 Ark. 202.
    2. Plaintiff was entitled to the penalty and attorney fee under the statute.
   Smith, J.

This suit was brought to collect from the appellant insurance company a thousand dollars, the face of the policy, which had been written to cover a barn and the feed and grain and seed stored therein. Eight hundred dollars of the insurance was on the barn, $100 on the grain and seed, and $100 on the hay and fodder.

The answer denied liability on the ground that appellee, the insured, had falsely represented himself to be the sole owner, whereas he was in fact the owner of only an undivided interest as tenant in common with his mother and brothers and sisters, the deed to the land having been made to the mother and the four children jointly. The land covered by the deed was a small tract of land near the town of Sulphur Bock, in Independence County, Arkansas, and there was situated on it a residence in which the owners of the property lived, in addition to the barn covered by the policy of insurance.

Notwithstanding the fire occasioned a total loss, an issue was made by the adjuster over the value of the barn, and a proof of loss was prepared and agreed to which allowed $400 for depreciation in the value of the barn, and the insured agreed to accept $700 in full settlement of the company’s liability. In the proof of loss the insured was recited to be the sole owner of the property insured, and the adjuster told the insured that the sum agreed upon would be paid upon production of evidence of ownership. This appellee said would be furnished by production of the deed under which his title had been derived, and the deed was sent to the adjuster. Upon examination of the deed it was disclosed that the insured was not the sole owner, but was a tenant in common with his mother and. three brothers and sisters, they each owning an undivided one-fifth interest in the land. Thereupon the insurance company denied liability under the policy. Hence this suit.

The cause was heard by the court sitting as a jury, and, without making or being asked to make specific findings, the court made a general finding in favor of the insured, and rendered judgment accordingly. Thereafter judgment was rendered for the statutory penalty, with an allowance for attorney’s fees.

It is insisted that no recovery should have been permitted because of the breach of the warranty that appellee was the sole owner, and it was further insisted that no penalty or .attorney’s fees should be allowed because the proof of loss presented a claim for a sum less than the face of the policy. The testimony showed that the actual value of the property destroyed was $1;268.73.

The testimony shows, however, that the agent who wrote the policy knew the state of the title and had known it for several years. He had written a previous policy of insurance in the name of the mother, who lived with her children in the residence located on the small tract of land. As has been said, the barn and residence were on this same tract of land, and the same agent had written both policies, the one on the residence being in the name of the mother and that on the barn and its contents being in the name of appellee, and the agent, in writing the second policy, knew that there had been no change in the title, at least the testimony on the part of appellee was to this effect. Appellee stated that, before the policy was written, he discussed with the agent who wrote it how it should be written, and it was agreed that, inasmuch as he had charge of the business, and none of the other heirs objected, the policy should-be written in his name alone. The insured did not sign the application which stated that he was the sole owner of the property, but he knew that the agent had written his name in the policy as owner.

After the fire, appellee and the agent discussed the matter, and the agent was reminded how the deed had been prepared, and the agent said, “Yes, I understand it.” The appellee thereafter signed the proof of loss in which he was represented to be the sole owner, and unsuspectingly sent to the adjuster the deed, which showed the contrary to be true, thinking the matter was understood and that the discrepancy was unimportant. The agent denied knowing the state of the title before writing the policy; but this was, of course, a question of fact for the jury.

It is obvious that the question in the case is the one of fact, whether the agent of the insurance company knew, before the policy was written and delivered, that the insured was not the sole owner, as the application for the policy stated him to be.

In the case of Georgia Home Ins. Co. v. Bennett, 134 Ark. 52, we said that the requirements of a policy in regard to sole and unconditional ownership' are valid and binding, and are warranties the breach of which would cancel a policy, but that, inasmuch as these provisions were inserted for the benefit of the insurer, they could be waived, and will be held to have been waived if the agent who issued the policy had knowledge, at the time of its issuance, that the insured’s interest, which must be an insurable one, was not sole and unconditional. See also Camden Fire Ins. Ass’n v. Grubbs, 133 Ark. 202, and Westchester Fire Ins. Co. v. Smith, 128 Ark. 92, and cases there cited.

Under the testimony of appellee, which was evidently accepted by the court as the truth of the matter, the agent knew, when he wrote the policy, that appellee, although an owner, was not the sole owner, and the warranty to that effect must therefore be held to have been waived.

As to the amount recovered, it may be said that the pleadings raised no issue in regard thereto, as the company defended on the sole ground that the policy was void. Moreover, the attempted settlement with the adjuster was in the nature of an offer of compromise, which the company itself refused to carry out by paying the sum agreed on, and it is therefore in no position to complain that the judgment was rendered as for a total loss on the barn, this being the only part of the property about which there was a controversy as to value. Section 6147, C. & M. Digest.

The judgment is affirmed.


text:
    Sullivan v. State.
    Opinion delivered February 25, 1924.
    1. Juey — no right to services op particular juror. — Accused has no right to the services of a particular juror, but only to a trial before a fair and impartial jury, and the fact that several jurors were excused, and that their places were taken by jurors from a special venire, was not ground for objection.
    2. Jury — discretion to summon special veniremen. — The trial court has wide discretion in summoning special veniremen to avoid unnecessary delay and expense, and the fact that special jurors were summoned before the trial began was not error.
    3. Homicide — evidence op previous crimes. — In a prosecution for murder of police officers, where the State’s theory was that accused and his companion were professional criminals who, because of their crimes, were apprehensive of arrest, evidence that they had committed burglaries and that accused’s companion had killed a man in another State was admissible to show motive in killing the officers.
    4. Homicide. — ■ incompetent evidence — harmless error.— In., a prosecution for murder, an instruction that evidence that a codefendant had previously killed a man could not be considered against defendant removed any prejudice to defendant in admitting the testimony and in refusing to suspend the trial to enable codefendant to obtain testimony to support an alibi as' to such previous homicide.
    5. Homicide — admissibility of dying declarations. — Where evidence as to whether statements by a deceased police officer were made under consciousness of impending death was conflicting, the question was properly submitted to the jury.
    6. Criminal law — evidence as to location op wounds. — Where two police officers were killed at the same time, testimony .by a surgeon who performed an autopsy on the body of one them was properly admitted in a prosecution for the murder of the other officer, to prove the location of the wounds.
    7. Criminal law — instruction as to commission of other crimes.
    • — In a prosecution for the murder of two police officers based upon the theory that accused and his codefendant were professional criminals who, because of such fact, were apprehensive of arrest, an instruction that defendant’s commission. of other crimes should not be considered was properly refused.
    8. Criminal law — repetition of instructions; — A refusal to instruct on matters fully covered in other instructions was not error.
    9. Criminal law- — burden of proof. — The State is not required to prove each circumstance tending to show guilt beyond a reasonable doubt; it being sufficient if, upon a consideration of the testimony as a whole, it is sufficient to convince, and does convince, the jury beyond a reasonable doubt of the guilt of the accused.
    10. Homicide — instruction.—Refusal to charge that, if appellant did not do any of the shooting, or if the jury had reasonable doubt thereof, they must find him not guilty of the homicide, was not error, for, though he did not fire a shot, he was liable if he stood by and aided or abetted his codefend-ant in doing so.
    11. Homicide — instruction.—An instruction that, before defendants could be convicted of murder in the first degree, the proof must be sufficient to satisfy the jury beyond a reasonable doubt that the death of the police officer was the ultimate result sought by the concurring will, deliberation, malice and premeditation of the defendants or either of them, held correct; the use of the word “must” for “shall” -being merely matter of emphasis.
    12. Criminal law — instruction singling out testimony. — It is not the province of the court to emphasize the value or relative bearing of any testimony, but this is the peculiar province of the jury.
    13. Homicide — sufficiency of evidence. — In a prosecution for murder in first degree, evidence held to sustain a conviction.
    Appeal from Pul-asld Circuit Court, First Division; John W. Wade, Judge;
    affirmed.

      T. M. Mehaffy, M. E. Dunaway and E. L. McHaney, for appellant.

      J. 8. TJtley, Attorney General, John L. Garter, Wm. T. Hammock, Darden Moose and J. 8. Abercrombie, Assistants, for appellee.
   Smith, J.

Appellant, Joe Sullivan, and one Emory Connell were indicted by the grand jury of County on July 3, 1923, for killing L. C. Hays, and also for killing George Moore, both of whom were killed at the same time and place. The case in which the killing of Moore was alleged was set for trial on July 30, 1923, at which time a.special venire of a hundred men was ordered. The case was reset for August 1, but was then reset for August 20, and the special veniremen, being in court, were ordered to report again for duty on September 17, at which time the State elected to go to trial on the indictment charging the killing of Hay. Thereupon the defendants announced ready for trial, but first moved to quash the special venire on the ground that it had been summoned without authority, and that the act of the court in ordering the special venire to report at the times reset for the trial was unauthorized and prejudicial. It is insisted that, on account of the facts hereinafter recited, the special veniremen had imbibed the general prejudice which existed against the defendants, or had at least been subjected to influences which were hostile to them.

The various continuances were either asked by the defendants or consented to by them, and no objection was made to the summoning of the special veniremen, or to the act of the court in ordering the return, until the case was called for trial on the day the actual trial began, at which time the motion aforesaid was filed.

During the adjournment stated, which covered a portion of what would ordinarily have been a part of the summer vacation, the court had, for.causes not shown, excused a number of the members of the regular panel, so that, when the case was called for trial, only fifteen members of the regular panel of the petit jury responded to the call of their names. Thereupon the court ordered the sheriff to summon jurors to become members of the resudar panel, and a sufficient number of persons were called from the special venire and qualified for that purpose so that when the drawing of the jury began, which the defendant demanded, there were twenty-four jurors in the box. An exception was saved to the action of the court in thus filling the jury.

We think no error was committed in the respects stated. These were matters over which the circuit judge must necessarily have a wide discretion. It is thoroughly settled that a defendant has no right to the services of any particular juror. He may only demand that he be tried before a fair and impartial jury, and it is difficult to imagine a case where the judge had excused a juror from further service on the regular panel which would afford any defendant just cause of complaint.

In the matter of summoning the special veniremen the trial judge is also necessarily vested with a wide discretion. He is charged with the duty of dispatching the business on his dockets, and should, of course, do so in a way to avoid either unnecessary delay or unnecessary expenses. Many cases recognize the right of the trial judge to order special jurors to be summoned before the actual trial begins, that they may be available without involving the delay of waiting for this to be done after the trial has begun. The necessity for the action here taken is shown by the fact that the jury was not completed until both the regular panel and the special venire had been exhausted, and opportunity was, no doubt, afforded by the examination of each venireman on his voir dire to ascertain whether, on account of the continuances, or for other reasons, he was not qualified to serve at the trial, and there is no assignment of error that the defendants were compelled to accept any juror who was in fact disqualified for any reason.

It was the theory of the State that the defendants were professional criminals, who, because of their crimes, were apprehensive of arrest at any time. That Connell had only recently killed a man in Sapulpa, Oklahoma, and that he and Sullivan had, on the night before they killed Hays and Moore, committed three separate burglaries, in one of which they had stolen a Ford touring car, in another they had stolen a Ford coupe, and in a third had broken into a private home, where they had stolen some laee dresses and other wearing apparel and various articles of jewelry and silverware, which, the owner testified,, were worth, or had cost, about two thousand dollars. That -defendants knew these crimes would be investigated and an effort made to arrest the culprits who had committed them, and that they had prepared to resist any effort to effect their arrest, and, as a means to this end, they were armed with a .45 caliber pistol and two automatic .32 caliber pistols, and that, as soon as they were advised that Hay and Moore were officers, they commenced firing, to prevent the arrest which they supposed the officers had come to make. According to the State’s theory, defendants thought the officers were about to arrest them, and they killed the officers to prevent this being done. Many witnesses gave testimony tending to support this theory of the case.

According to defendants, they were tourists who had been taking the baths at Hot Springs. Upon being advised by one McDonald that he had two cars to sell, they went to Pine Bluff, where the cars were, and, about midnight, after their arrival in Pine Bluff, they purchased the cars from McDonald and paid him for them, and then proceeded in the cars thus purchased to Little Rock, on their way back to Hot Springs. The presence of the articles stolen from the residence in one of the cars was admitted by the defendants, but was explained as having been inadvertently left in the car by McDonald, to whom they intended to return the package, which had been examined by them -only casually, when they next saw him. That, upon their arrival in Little Rock, they sought to raise money on a diamond ring, for which -Connell had paid between seven and eight hundred dollars in New Orleans, and, for this purpose, telephoned a negro man named Waddell, and made an appointment to meet Waddell at his house. The conversation in which the appointment was made occurred over the telephone, and Waddell inauired who they were, but, without revealing their identity, he was told that he would know tliem when he saw them, and so he did when they came to his house, about seven o ’clock in the morning. Waddell was still in bed when they arrived, and they asked an advance on the ring, which Waddell did not make, but their suspicions were aroused by Wad-dell’s conduct, and they began to suspect that he was delaying them for some purpose, and about that time a white man in citizen’s clothes came to the house and looked in the window and said, “Hello, Rube!” (that being Waddell’s given name), and, without knocking, this man and another white man, who was also dressed in citizen’s clothes, entered the house, without invitation so to do. Thereafter, without disclosing that he was an officer, Hay walked over to Connell and took hold of his hand, whereupon Connell freed himself from the man, whom Connell regarded as his assailant, and sprang to the bed, about which time the shooting commenced, the first shot fired striking Connell in the leg, after which Connell commenced firing, and continued to do so until he had emptied his pistol, after which he ran from the room, Sullivan having preceded him, without firing a shot, by jumping through a window when the first shot was fired. The defendants testified that Connell fired only after he had been shot, and that he did so to protect himself from what he regarded as a murderous assault.

Upon the issues thus joined we think no error was committed in permitting testimony showing that the defendants committed the burglaries, nor that Connell had killed a man in Oklahoma, for the reason hereinafter stated, and that they were fugitives from justice. This testimony tended to prove motive, and had probative value in determining the issues of fact as to the circumstances of the killing. The court, in several instructions, told the jury that this testimony was admissible for the purpose only of showing motive for the killing, and we think it was admissible for that purpose. The brief of the Attorney General cites a number of eases decided by this as well as by other courts, holding such testimony admissible for the purpose of showing motive.

When the testimony of the chief of police of Sapulpa, Oklahoma, was offered, showing that Connell had killed a man in that city and had fled, counsel for Connell objected, and, on his objection being overruled, asked the suspension of the trial for sixty days in order that. he might take testimony to establish an alibi, as Connell claimed to have been in Kansas City, Missouri, at the time that killing occurred. This request was not granted, and, on behalf of the State, it is insisted that the motion was taken under advisement by the court and was not again called up, and no formal ruling thereon was made or requested.

We consider it unimportant whether the record sustains this contention or not, for the following reasons: The trial resulted in a verdict of guilty of murder in the first degree, and both defendants were sentenced to death. They prayed and perfected an appeal, pending which Connell escaped, and was killed in the effort to recapture him. His appeal was therefore dismissed, and only the appeal of Sullivan is now pending. But the court told the jury, in one of the instructions given, that the killing of the officers could not be considered against Sullivan for any purpose, and this instruction removed the prejudice, if any, in the admission of this testimony and in refusing to suspend the trial to enable Connell to offer testimony in support of an alibi.

There was offered in evidence what purported to be a dying declaration made by Hay, and this testimony was objected to upon the ground that the affirmative showing was not made that Hay had despaired of recovery at the time he made the statement offered in evidence. A number of witnesses testified on this question, and there are several contradictions of a minor nature in regard thereto. We set out only a summary of this testimony, from which it will appear that the court properly submitted the question to the jury whether a dying declaration had in fact been made.

The court set out fully in the instructions, to which no objection is urged, the conditions under which a dying declaration may be offered, in evidence, and the jury was told that,, if these conditions had not been established, the statement of Hay was only hearsay testimony, and •should not be considered for any purpose. Other instructions, to which no objections are urged, told the jury how to weigh this testimony, if they found it admissible. This was the proper practice, and accords with the decision of this court in the recent case of Alford v. State, 161 Ark. 256. See also Freels v. State, 130 Ark. 189.

The testimony on the part of the State showed that Hay said to the other officers who hurried to the scene of the shooting, that they (the defendants), had killed Moore and had got him, too. He said, at another time, that he had been shot to pieces, and knew he was done for. After he had been carried to the hospital he stated that he knew he was slipping. The prosecuting attorney and his stenographer called at Hay’s room, and the prosecuting attorney told him he wanted to take his statement, and asked Hay if he knew the purpose of his visit. Hay stated that he realized his condition fully, and then made a statement, which the stenographer undertook to reduce to writing in shorthand.'

On the part of the defendants, testimony was offered that Hay’s nurse, his pastor and his surgeon encouraged Hay and made statements calculated to sustain and inspire him and to induce the belief on his part that he would recover. But it is not shown that he made any statements about the killing after these conversations occurred. The nurse testified that she told Hay, just as he was placed on the operating table, that they were not going to let him die, and the surgeon stated that neither the wounds nor the operation which the wounds made necessary would ordinarily have produced death, and that he did not expect Hay to die from either, but that Hay did die from an embolism, this being defined as a blood clot, traveling through the circulation, reaching a vessel which was not sufficient to carry it off.

Under this testimony and the instructions relating to it the jury might have found, that Hay had not despaired of hope of recovery; but we do not think this finding was the only one warranted by the testimony. There was a question for the jury, and the testimony was submitted to the jury under proper instructions.

Over the objection of the defendant, the surgeon who performed the autopsy over Moore’s body was permitted to describe the wounds which he found. This testimony was objected to as incompetent, for the reason that the defendants were not on trial for that killing. We think the testimony was admissible on the following theory. The shooting occurred in a small room, ánd there is a conflict in the testimony as to Sullivan’s participation therein. Both he and Connell testified that Sullivan had no part therein, and that, as soon as the firing commenced, Sullivan jumped through, a window, and saw only the first shot fired, and that it was firéd by Hay, and wounded Connell. There is some conflict as to the location of the participants. It is the theory of the State that Hay and Connell were at all times facing each other, and that Hay was struggling to keep Connell from shooting him, as is evidenced by the fact that Hay was shot in both legs, the shot in the fight leg being between the ankle and the knee, and that Hay at no time faced Sullivan, yet he was shot in the left buttock. It is the theory of the prosecution that this wound was inflicted-by Sullivan, and that, from his position, Sullivan must also have shot Moore, it being insisted that the location of Moore’s wounds gave support to that theory. Moore was killed before he could draw his pistol, and, upon examination of his pistol, it was found that he had never fired it. Hay stated, in the alleged dying declaration, that he himself - only commenced firing after he had been shot down, and, that he fired three shots at Connell, one of which, he thought, had taken effect, and so it had, as Connell’s leg was shattered to such an extent that amputation later proved necessary, and it was on account of Connell’s condition, thus caused, that the various postponements of the trial occurred.

The court gave full, fair and correct instructions, which submitted the issues of fact to the jury. Forty-two instructions were given, and the jury was told in several instructions, predicated upon the theory of the defense, to acquit the defendants if the facts were as contended by them, or if a reasonable doubt was entertained as to their guilt.

The court gave a number of instructions requested by the defendants, but refused to give instructions numbered 1, 2, 3, 4 and 5, and exceptions were duly saved to this refusal.

Instruction numbered 1 dealt with testimony in regard to the other crimes with the commission of which the defendants were accused, and, if given, they would have directed the jury that, in “arriving at a verdict in this case, you are in no wise to consider the guilt or innocence of either of these defendants with reference to any other alleged offense.” This was properly refused, for the reason we have stated, that the testimony sought to be excluded tended to show motive for the killing and to explain the conduct of the parties thereto.

Instruction numbered 2 told the jury not to consider any evidence as to the killing of a man in Oklahoma ; but, as we have said, this testimony was expressly confined by another instruction to Connell, and his appeal is not now pending.

Instruction numbered 3 would have instructed the jury not to consider any evidence as to the stealing of the cars as in any way tending to prove the .guilt of either of the -defendants: What we have said about instruction numbered 1 disposes of this objection.

Instruction numbered 4 stated hypothetically the salient features 'of the defense, and told the jurv that, if the officers did not disclose their identity as such; and were apparently committing, or about to commit, an assault on the defendants; who believed themselves to be in danger of being killed or of receiving great bodily harm, and that, acting under this belief, Hay was killed, to find the defendants not guilty. This instruction was given as instruction 38-A. Moreover, the proposition there announced was fully covered in several other instructions which were also given.

Instruction numbered 5 would have told the jury, if given, that, if the defendant Sullivan “did not do any of the shooting, or if you have a reasonable doubt as to whether he did any of the shooting, then in either event you must find Sullivan not guilty.”

This instruction was properly refused, for two reasons. In the first place, the State is not required to prove each circumstance tending to show guilt beyond a reasonable doubt. The evidence is legally sufficient for that purpose if, upon a consideration of the testimony as a whole, it is sufficient to convince, and does convince, the jury beyond a reasonable doubt of the guilt of the accused. Lasater v. State, 77 Ark. 468; Starnes v. State, 128 Ark. 302.

The second reason is that Sullivan might have been guilty, even though he had not fired a shot, and he was guilty if he stood by and aided or abetted Connell to do so. Notwithstanding this fact, the instruction, if given, would have told the jury to acquit the defendant Sullivan if he fired none of the shots.

Moreover, in instruction numbered 29, the jury was told that they could not convict the defendant, Joe Sullivan, on the indictment against him, of any offense unless it was found from the evidence, beyond a reasonable doubt,' that he fired one or more shots at L. C. Hay, or that he stood by aiding, abetting or assisting the defendant 'Connell in the shooting of Hay.

The defendant asked an instruction reading as follows: “You are instructed that, 'before you can convict the defendants, or either of them, of murder in the first deg'ree (that it is indispensable) that the proof adduced shall be sufficient to satisfy the minds of the jurv, beyond a reasonable doubt, that the actual death of L. C. Hay was the ultimate result sought by the concurring will, deliberation, malice and premeditation of the defendants, or either of them. The material inquiry, then, for the jury is, was the killing of L. C. Hay wilful, deliberate, malicious and determined on or before the act of killing? If it was not, then you cannot convict of murder in the first degree.”

This instruction was given after it had been modified by striking out the phrase, “that it is indispensable,” inclosed in the parentheses, and by striking out the word “shall,” italicized in the instruction as set out above, and inserting in lieu thereof the word “must. ”

This instruction was based on the discussion of the court in the ease of Bivens v. State, 11 Ark. 455, which was quoted with approval in the case of Harris v. State, 119 Ark. 85. It appears, however, that this language, substantially taken from those opinions, was followed by another paragraph, containing qualifications not incorporated in the instruction, to the effect that the intent to kill might be formed in an instant, and that there was premeditation if such intent existed at the time the killing occurred.

The words inclosed in the parentheses are mere words of emphasis, but, as given, the instruction required that the minds of the jury be satisfied, beyond a reasonable doubt, that there was deliberation, malice and premeditation, before a verdict of guilty of murder in the first degree could be returned. The instruction as modified is sufficiently emphatic and is a correct declaration of the law.

"What we have just said disposes, in principle, of defendant’s instruction numbered 12, which was given as requested, except that the word “must,” apnearing in two places, was stricken out and the word “may” inserted. This instruction, as well as several others which were also given, dealt with the right of the defendants to resist what they may have regarded as an assault being made upon them by private citizens. These facts were by no means undisputed, indeed, they are of the essence 'of this case, and they were not entitled to any consideration if the jury dicl not find that the theory of the defense was true, it is not the province of the court to emphasize the value or relative bearing of any testimony, as this is the peculiar province of the jury, and the jury was clearly told to base their finding upon all of the testimony which they credited and believed.

It is finally insisted that the testimony is not legally sufficient to support the conviction of Sullivan. We think the contrary appears from what we have said. Sullivan testified that he not only fired none of the shots, but that he was unarmed, and that his pistol had been left in a car, which they had driven into the woods several miles from Little Rock, on their way to that city. On the other hand, there is testimony placing the number of shots fired as hig-h as fifteen. Moore did no shooting, Hay only fired three shots, and Connell only emptied one pistol, which he said held ten cartridges. Moreover, witnesses for the State, who saw defendants leave the house where the shooting occurred, described them as a large man, who proved to be Sullivan, and a small man, who proved to be Connell, and that the large man had a pistol in each hand as he made his way to the car. One witness testified that he saw the large man with two pistols, and that he thought the large man had arrested the small man and was carrying him to the car.

After leaving Little Rock in the coupe, the defendants abandoned it when they came to where the touring car was. This was done because of Connell’s suffering, which by that time had become very acute. The agony increased, and he could proceed no further, so he climbed out of the car and hid in the woods while Sullivan went in search of a surgeon. On his way to Sheridan, looking for a surgeon, Sullivan was arrested by the sheriff of Grant County and his posse, who had been notified of the shooting of the officers. Sullivan at first denied his identity, but, when the car in which he was driving was identified as one of the stolen cars, he admitted that he was one of the men for whom the officers were searching. The sheriff testified that he asked Sullivan if lie took part in killing those men, and Sullivan answered, “Yes, the whole damned thing was uncalled-for.” This statement was explained in part and denied in .part by Sullivan, but its truth, of course, was for the jury.

Certain other questions are discussed in the brief for appellant, but we think they have been disposed of by what we have already said.

Finding no error, the judgment is affirmed.


author: Humphreys, J.

text:
    Cummins v. State.
    Opinion delivered February 25, 1924.
    1. Criminal law — corroboration of accomplice. — Testimony of an accomplice held sufficiently corroborated to sustain a conviction of murder in the first degree.
    2. Criminal law — instruction as to corroboration of accomplice. —In a prosecution for murder, an instruction that testimony corroborating that of an accomplice must be such as the jury believes to be true beyond a reasonable doubt, held properly refused, as applying the doctrine of, reasonable doubt to a single item of the testimony tending to establish guilt.
    3. Criminal law — instruction as to presumption of innocence.— In a prosecution for murder, where the testimony conflicted as to whether defendant fired on and killed deceased with justification, or whether defendant was an innocent bystander, an instruction that, if the facts were susceptible of two interpretations, one of innocence and one of guilt, the former must be adopted, was properly refused as inapplicable, as the question was which witnesses should be believed.
    Appeal from Nevada Circuit Court; J. E. McCollum, Judge;
    affirmed.

      Steve Corrigan and J. O. A. Bush, for appellant.
    J. S. Utley, Attorney General, John L. Carter, Assistant, for appellee.
   Humphreys, J.

Appellant was indicted, tried, and convicted of the crime of murder in the first degree, in the circuit court of Nevada County, for killing Fred Murrah, a deputy sheriff, who, with other officers, was attempting to capture a still and gang of moonshiners, and, as punishment for the crime, was adjudged to serve a life term in the State Penitentiary. He has prosecuted an appeal to this court from the judgment of conviction, and seeks a reversal thereof upon three grounds.

His first alleged assignment of error is that he was convicted upon the testimony of an accomplice without corroborating evidence. It is provided by § 3181 of Crawford & Moses’ Digest that “a conviction cannot be had in any case of felony upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the. offense; and the corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof.” The record reflects that, about three-thirty a. m. on September 26, 1923, the sheriff and several deputies located a still in said county, and, while consulting as to the best plan to pursue, were fired upon by two of the moonshiners. The sheriff and his posse returned the fire. The firing then became general, and, according to the State’s witnesses, seven or eight moonshiners were shooting at them from as many directions with pistols, Winchesters, and shotguns. The sheriff and one of his deputies were wounded, and another, Fred Murrah, was killed. Several on the opposite side were wounded, appellant being one of them.

Noah 'Charles, the chief prosecuting witness, testified that, when he arrived at the still, about eight-thirty p. m. on the night of the 25th, in comoany with Llovd Cummins, he found the following’ men there, armed with guns: Lark 'Butler, Eugene Butler, Tom Henry, and appellant; that, after directing’him to drink out of a barrel containing mash, they all sent him to the top of the hill to watch, where he remained until about midnight; that he then returned to the still, where the last run was being cooked off; that appellant urged Eugene Butler to hurry, because he thought he heard something; that in a short time appellant again said he heard something, whereupon they all ran up the hill, with their guns, in the direction he claimed to have heard the noise; that in a short time the firing began.

The undisputed testimony reveals that appellant was shot in the fleshy part of the back, near his shoulder blade, whereupon he fled from the scene of the tragedy, and remained about a week amongst his kinsfolk before he surrendered to the sheriff; that, instead of calling a physician to remove the bullet from his wound, he extracted it himself, with the aid of his father; that, when he surrendered, he stated that he went to the still unarmed, in company with Lloyd Cummins, for the purpose of getting whiskey, and that he did not participate in the battle between the officers and moonshiners.

We think that the length of time that he remained at the still, the manner of the attack made by the moonshiners upon the officers, appellant’s flight, and the extraction of the bullet without calling in medical aid, are strong circumstances tending to corroborate the testimony of the State’s witness. The testimony of the accomplice was sufficiently corroborated to support the verdict and judgment.

Appellant’s next alleged assignment of error is the refusal of the trial court to give the following instructions upon reasonable doubt: “When you are told that a conviction cannot be had in any case of felony upon the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense, you are to understand that the corroborating testimony must be such as you believe to be true beyond a reasonable doubt.”

The requested instruction was erroneous in attempting to applv the doctrine of reasonable doubt to a single, item of the. testimony g’oing to make up the proof of guilt, instead of attempting to apply it to the whole evidence tending to establish guilt. This court said, in the. case of Lasater v. State, 77 Ark. 468, that “the jury must believe beyond a reasonable doubt, from the evidence, that the defendant is guilty, and there must be corroboration of the testimony of the prosecuting witness, but there is no requirement that the corroboration be proved beyond a reasonable doubt.”

Appellant’s next and last assignment of error is the refusal of the court to give the following instruction:

“You are instructed that the facts relied upon to show the defendant’s guilt must not only be consistent with and point to his guilt, but must be inconsistent with his innocence; and if such facts are susceptible of two interpretations, one of innocence and one of guilt, the interpretation of innocence must be adopted in the defendant’s behalf, and you must acquit him.”

The requested instruction called for a construction of the testimony by the jury upon the theory that the same testimony was susceptible of two constructions, one of innocence and the other of guilt. The testimony introduced by the State was to the effect that appellant, with others, fired upon and killed an officer of the law, without justification. The testimony introduced by appellant was to the effect that he was an innocent bystander, and was accidentally shot. The construction of the testimony was not a question before the jury. The question before the jury was which set of witnesses should be believed, and the court correctly instructed the jury as to how testimony should be weighed, and that reasonable doubts should be resolved in favor of appellant. The court did not err in refusing to give the instruction, as same was not applicable to the facts in the case. Cooper v. State, 145 Ark. 403.

No error appearing, the judgment is affirmed.


text:
    Shide v. Burns.
    Opinion delivered February 25, 1924.
    Appeal and error — incompetent testimony — waiver op objection.— By failure to object to incompetent but relevant evidence, a party will be held to have waived objection, and a verdict based upon such evidence will be sustained on appeal.
    Appeal from Mississippi Circuit Court, Chickasawba District; W. W. Bandy, Judge;
    affirmed;

      G. W. Barham, T. J. Crowder, for appellant.
    Julius Shide was not in the employ of his father at the time of the injury, and was engaged upon business of his own, not authorized by his father, and the father could not be held liable therefor. 133 Ark. 327.

      Cost on <& Coston, for appellee.
    The statement of Miss Shide to Mrs. Burns was competent as a part of the res gestae. 108 S. W. 1055. But, even if incompetent, it was not objected to, and a verdict based upon it would not be overturned on appeal. 12 Ark. 651; 7 S. W. 388. Where there is any evidence to sustain a verdict, it becomes conclusive upon appeal. 143 S. W. 93; 232 S. W. 756.
   Humphreys, J.

Appellee instituted suit against appellant and his son, Julius Shide, in the circuit court of Mississippi County, Chickasawba District, to recover damages for a personal injury received through the alleged negligence of Julius Shide in operating his father’s automobile while delivering goods for birn.

Appellant filed an answer, denying that the injury resulted through the negligence of his son in operating his car, or that he was making a delivery for- him when the injury occurred; also denying that appellees sustained damages in the amount claimed or in any other sum.

The cause was sent to the jury upon the issues joined, which resulted in a verdict and consequent judgment for $375, from which is this appeal.

Appellant concedes that the evidence is 'sufficient to support the finding that appellee was injured throug’h the negligent operation of his car by his son, but contends for a reversal of the judgment upon the alleged ground that there is no substantial testimony in the record tending to show that his son was using the car to deliver goods for him when the injury occurred.

Julius Shide testified that he had driven the car to town for the purpose of getting some material to be used in constructing a radio set for himself; that the injury occurred when he was backing the car out of the place where he had parked it. He was corroborated in this statement by appellant.

Appellee testified, without objection, that, immediately after the injury, Selma Shide, daughter and bookkeeper for appellant, came out of his place of business and told her that she was sorry the boy ran over her, but that she should realize that he was nothing but a child; that, at the time of the injury, he was in a hurry to deliver something for his father. While this testimony was hearsay, and perhaps inadmissible, no objection was made or exception saved to its introduction. By not objecting, appellant acquiesced in the admission of the testimony, and is in no position to claim that it was incompetent. It tended to prove the issue, and it was the duty of the jury to treat it as legitimate testimony for that purpose. Maine v. Gordon, 12 Ark. 651; Frauenthal v. Bridgeman, 50 Ark. 348. This relevant though incompetent testimony tended to show that the boy was serving his father at the time the injury occurred.

The judgment is therefore affirmed.