text:
    Temple Cotton Oil Company v. Davis.
    Opinion delivered February 2, 1925.
    1. Appeal and error — final order. — An order sustaining a demurrer to a complaint is not a final judgment from which an appeal may toe taken where plaintiff did not stand on the sufficiency of the complaint.
    2. Pleading — limiting time for amendment. — Although plaintiff ■has a right, under Crawford & Moses’ Dig., § 1191, to amend his complaint upon a demfurrer toeing sustained thereto, it was not an abuse of discretion to limit the time for filing such amendment to 30 days.
    3. Pleading — striking amended pleading. — It was not an abuse of discretion to strike an amended complaint for failure to file within the time fixed, where no excuse for such delay waá offered in hearing of the motion, though an affidavit excusing the delay was filed after the final ruling on the motion.
    4. Limitation of actions — amendment adding new party. — Where the assignor of a cause of action is a necessary party plaintiff under Crawford & Moses’ Dig., § 1090, the assignment not being one authorized toy statute, the cause of action is barred where no offer to make the assignor a party is made until after the .period of limitation.
    5. Carriers — nature of action for damages for delay in transportation. — In a suit by the assignee of a cause of action for damages resulting from delay in transportation, where the complaint did not allege that the suit was on a bill of lading .assigned to the assignee, such allegation will not be read into the complaint, even under the liberal construction of pleadings required by the Code.
    6. Assignments — parties.—In an action .by the assignee of a cause of action for damages to goods from delay in transportation, not based on the bill of lading, the .assignor is a necessary party, under Crawford & Moses’ Dig., § 1090, whether the action is on contract or on the breach of public duty.
    Appeal from Columbia Circuit Court; L. 8. Britt, Judge;
    affirmed.

      Joe Joiner and Robert G. Knox, for appellant.
    The United Oil Mills was not a necessary party to the action, and the case relied upon by the trial court at 157 Ark. 333- 'does not govern the instant case. The bill of lading was assignable as was the cause of action arising therefrom. Sec. 475 C. & M. Digest, 87 Ark. 26; 85 Ark. 257. It was'not necessary to join the assignor as a party. 93 Ark. 215; C. & M. Digest, §§ 786 to 796. See also 48 Atl. 607.

      Henry Stevens, J. R. Turney, T. JGaughan, J. T. Sijford, J. E. Gaughan and E. E. Godwin, for appellee.
    The bill of lading itself was not assigned. Merely the action growing out of it, and the assignment does not fall within § 475, C. & M. Digest. The assignor was a necessary party. C. & M. Digest, § 1090; 151 Ark. 207; 157 Ark. 333. The assignor not having been made a party until nearly four years had expired, both the assignor and the assignee are barred by the statute of limitations. Sec. 6950, C. & M. Digest; 157 Ark. 333. The assignee is also barred by act of Congress known as the Transportation Act. 41 U. S. St. at Large, 446; 163 Ark. 452.
   Smith, J.

Appellant filed a complaint on January 26, 1922, containing the following allegations: Plaintiff is a domestic corporation, and is engaged in the manufacture of cottonseed oil, and is the successor of the United Oil Mills, and is the owner, by proper transfer and assignment, of all the property of the United Oil Mills, including the cause of action herein sued on.

That on October 22, 1919, J. A. Thomas delivered to the Louisiana & Northwest Railroad at Magnolia,, Arkansas, a carload of seed, the property of the United Oil Mills, consigned to that company at Hope, Arkansas. The seed at that time were sound and were worth $2,116. To complete the delivery of the shipment it was necessary for the L. & N. W. Railroad to transport the car of seed on its line to Stamps, Arkansas, where the shipment was delivered to the St. Louis Southwestern Railroad Company, a connecting carrier and by the last named carrier delivery was made to the consignee. At the time of said shipment both railroads were under the control of and were being operated by J. C. Davis, the Director General of Railroads. The distance between Magnolia and Hope is approximately fifty miles, and the delivery of the seed should have been made within about forty-eight hours after the receipt thereof, but, through the negligence of the carriers, delivery was not made until November 4, 1919. That, on account of this unreasonable and negligent delay and as a direct result thereof, the seed became heated and spoiled, and were worthless at the time of delivery.

Upon these allegations there was a prayer for judgment against both railroads and the Director General of Railroads, the suit having been brought against them ah.

. The defendants filed a motion to require the plaintiff to state how and in what manner and by what instruments the claim of the United Oil Mills was transferred and assigned to the plaintiff, and that plaintiff be required to set out, as a part of its complaint, the originals or copies of the conveyances, bills of sale or assignments under which it claims to own the cause of action sued on.

In response to this motion plaintiff filed, on August 22, 1923, an assignment reciting that, for a dollar and other good and valuable considerations, the United Oil Mills “does hereby transfer, assign, set over and deliver unto the Temple Cotton Oil Company * * * a certain claim and demand (then follows a particular description of the consignment),” and plaintiff requested that its assignor be made a party plaintiff.

Upon this amendment to the complaint being filed, the defendants severally demurred to the amended complaint upon the ground that it appeared that the cause of action accrued to the United Oil Mills more than three years prior to the date when the plaintiff offered to make its assignor a party plaintiff, and that “on account of the United Oil Mills being barred by limitations it cannot now be joined as a party plaintiff in this suit, and that plaintiff, Temple Cotton Oil Company, cannot maintain this suit without joining United Oil Mills, as a party plaintiff, and that the complaint as amended fails to state a cause of action against this defendant.”

On September 11, 1923, the court sustained the demurrers, and allowed the plaintiff thirty days in which to amend, to which ruling plaintiff duly excepted. The amended complaint was not filed within thirty days, but, at the succeeding February, 1924, term of the court, plaintiff filed an amended and substituted complaint, alleging the facts hereinbefore recited, and alleging further that the agent of the L. & N. W. Railroad Company, acting also for the Director General of Railroads, entered into a contract with the United Oil Mills, which contract was in the usual form of a bill of lading by the terms of which it was agreed that said shipment shouldi be efficiently and expeditiously transported “ * * * from Magnolia to Hope.” The amended complaint further alleged that on the —— day of ——, 1921, all the property of the United Oil Mills was foreclosed by an order of the Federal court for the Western District of Arkansas, and, under this decree, “ all the title and interest of the United Oil Mills in and to all of the property which it owned in the State of Arkansas, including choses in action, and including this claim, was sold to the Temple Cotton Oil Company. That said foreclosure and sale was for the purpose of reorganization of the United Oil Mills, and that the Temple Cotton Oil Company is, in truth .and in fact, the successor to and the continuation of the United Oil Mills; that, in order to protect the name of the United Oil Mills and preserve it, the charter of the United Oil Mills was not surrendered, and that, although said corporation exists, it is no longer active. That on the-day of ——, 19——, the proper officers of the United Oil Mills, in order to perfect and complete the claims of the plaintiff in and to the cause of action herein, executed an assignment, which has been heretofore filed in this cause, specifically assigning this cause of action to the Temple Cotton Oil Company, and that, as .such assignee and successor of the United Oil Mills, this plaintiff brings this suit.

“That this cause of action is founded upon a written contract for the delivery of property, to-wit: a bill of lading, and is an action ex contractu. That the United Oil Mills is not a necessary party, but that, in order to prevent delay, the United Oil Mills is joined as a party defendant by the plaintiff herein. That said bill of lading and contract is not now in the- possession of the plaintiff, by reason of the fact that it was necessary for the plaintiff to deliver same to the agent of the defendants before it could receive said shipment of seed, and that for said reason said contract cannot be attached as an exhibit to this complaint.’’

After further allegations of damage to the seed, there was a prayer for judgment.

On February 11, 1924, the defendants filed a motion to strike the amended and substituted complaint from the files, for the reason that it was not filed within the time allowed by the court. This motion was sustained on the day it was filed and presented, and the court ordered the amended and substituted complaint stricken from the files, to which action the plaintiff duly excepted.

On the day following this order of the court, an affidavit was filed on behalf of the plaintiff, in which the loss of the original papers in the case was assigned as the reason for the delay in filing the amended and substituted complaint, and the court was asked to vacate the order striking the amended and substituted complaint from the files. The court refused to vacate this order, and dismissed the complaint, and the plaintiff has appealed.

The first question which naturally arises is whether the court erred in striking the amended and substituted complaint from the files as not having been filed within the time limited.

As has been said, the court sustained demurrers to the original amended complaint. This action did not constitute a final order from which 'an appeal could have been’ prosecuted, as plaintiff did not stand on the sufficiency of the complaint. Had it done so, the court would no doubt have dismissed the complaint, from which action an appeal could have been prosecuted, But the court sustained the demurrer, allowing thirty days in which to file an 'amended complaint at that time. This thirty-day order was not made for 'the purpose of granting plaintiff the right to amend its complaint, as the statute provides that “if the court sustains the demurrer, the plaintiff may amend, with or without costs, as the court may order.” Section 1191, C. & M. Digest. Dickinson v. Hamby, 96 Ark. 163. But the order was made limiting the time within which the amendment might be filed for the purpose of expediting the hearing, and a reasonable time was allowed for that purpose; at least we cannot say that any abuse of the court’s discretion in this respect was shown.

At the time the court heard and disposed of the motion to strike, no excuse for the delay was offered. It is- true that, on the day after this order was made, an affidavit was filed which might or might not have been adjudged sufficient to excuse this delay; but this affidavit was not filed until after the court had ruled on the motion to strike and had sustained it. If the plaintiff wished to offer any excuse for the delay in filing the amended complaint, the excuse itself .should have been submitted to the court before the motion was finally passed on. Under these circumstances we are unwilling to say that the court abused the discretion which it must necessarily exercise to dispatch the business before it. Cumbie v. St. L. I. M. & S. R. Co., 105 Ark. 406.

It follows therefore that the amended and substituted complaint, the allegations of which are set out 'above, is not properly before us for review, and we can consider only the sufficiency of the first complaint and the amendment thereto filed before the demurrer was sustained

The amendment to the original complaint sets up an assignment of the cause of action sued on to the plaintiff by the United Oil Mills, and offers to make the assignor a party But this amendment was not filed, and this offer to make the assignor a party plaintiff was not made until August 23, 1923, and, as appeared from the face of the pleadings, this was more than three years after the cause of action had accrued.

It may be conceded, as contended by appellant, that it had the right to sue either ex contractu, counting upon the nonperformance of the contract to ship without delay, or to sue in form ex delicto, counting upon the violation of a public duty (St. L. & N. A. R. R. Co. v. Wilson, 85 Ark. 257), but the action in either form was barred when the offer to make the assignor a party plaintiff was made.

Plaintiff contends that this action is, in effect and in fact, a suit on the bill of lading, which was an agreement in writing that might be assigned, and which was assigned, and that the provisions of § 1090, C. & M. Digest, that, if the assignment of a thing in action is not authorized by statute, the assignor must be a party, as plaintiff or defendant, dc not apply.

The complaint before us does not so allege. Indeed, the amended and substituted complaint itself, if it were before us, alleges that the bill of lading was surrendered to the carriers upon the delivery of the seed.

We are required, pursuant to the provisions .of the Code, to construe pleadings liberally 'and to read into them, especially when considered upon demurrer, any allegations which, by fair intendment, they may be said to contain. But this rule of interpretation does not require us to read info a pleading an allegation which is entirely absent, 'and which, if present, would contravene the known course of business which would ordinarily have been followed by the parties in the matter out of which this litigation arose, that is, by surrendering the bill of landing to the carrier upon delivery of the car.

The complaint is one for damages, and it is nothing more, whether we interpret the cause of .action as a-suit for the breach of the contract of carriage, or for the violation of a public duty. The assignor' — 'the person to whom the cause of action accrued — would, in either event, be a necessary party, and, this being true, § 1090, C. & M. Digest, applies.

The offer to make the United Oil Mills a party came too late. The case of National Fire Ins. Co. v. Pettit-Galloway Co., 157 Ark. 333, is conclusive of this question. We there said that the refusal of the court to permit a new party to be brought in was not error where the cause of action as to him was barred.

We conclude therefore that the court properly sustained the demurrer to the complaint, and the judgment is affirmed.

Hart, J., dissents.


source: Caselaw Access Project

author: Hart, J.,

license: Public Domain

text:
    Black v. Bearden.
    Opinion delivered February 2, 1925.
    1. Dentists — right to recover compensation. — A dentist is entitled to recover from a patient the amount agreed to be paid, if there was an express contract; but, if no contract was made as to the amount, he would be entitled to recover a reasonable compensation for his services.
    2. Dentists — error in submission of issue of overcharge. — In a suit by a patient against a dentist to recover for an overcharge for professional services, it was error to submit the question of overcharge upon evidence that the patient paid the dentist’s charge voluntarily upon his representation that the amount charged Was reasonable, and that such charge was in fact unreasonable; there ibeing no evidence that the payment was procured through fraud or duress.
    S. Dentists — 'Fraud in overcharge. — Fraud in a voluntary payment of an overcharge for dental work was not established where no coercion of any sort was practiced on the patient.

      A. Dentists — testimony as to overcharge. — In a suit by a patient to recover for an overcharge, the patient’s testimony to the effect that another dentist offered to do the same work for a much smaller sum, which statement was denied by such dentist,, was not admissible to prove that an overcharge was made, but only to test the credibility of such dentist.
    5. Appeal and error — prejudice in submitting improper issue.— Where, in a patient’s suit to recover for malpractice and for an overcharge, the trial court erred in submitting the issue as to an overcharge, the error was prejudicial on appeal from a judgment for plaintiff, since the appellate court cannot tell whether the verdict was based on the count for overcharge or on that for malpractice.
    6. Dentists — malpractice—jury question. — In a suit by a patient for malpractice, the question whether the dentist was negligent in crowning one tooth and filling others held for the jury.
    7. Dentists — liability for malpractice. — The rules governing the duty and liability of physicians and surgeons in the performance of professional services are applicable to practitioners of the kindred branches of the healing art, such as dentists, oculists, and manipulators of x-ray machines.
    Appeal from Sebastian Circuit Court, Fort Smith District; John E. Tatum, Judge;
    reversed.
    STATEMENT OF FACTS.
    Fay Bearden brought this suit against M. D. Black, a dentist, to recover damages for the alleged negligent treatment of his teeth and for overcharge for doing this dental work, which was paid by Bearden to Black because of the misrepresentations made to him by Black as to the usual price for such services. Black denied the material allegations of the complaint in both counts.
    Fay Bearden was the principal witness for himself.
    According to his testimony, he went to Dr. Black’s office on November 15, 1922, and told him that he had three decayed teeth, and wanted him to crown one and fix the others. Dr. Black went to work on the crown, and told his assistant, Dr. Rosson, to fix the other ones while he was doing the crown work. When they got through, Dr. Rosson told him that he had filled five teeth and crowned one. Witness asked Dr. Black how much he owed him, and Dr. Black said that he would make him the rock bottom price of $150. Witness tried to get him to take a less amount, but Dr. Black said that was his regular price, and declined to ma'ks any deduction whatever. Witness then paid him $150. The crown came loose in less than three months, and cut his gums. In grinding his teeth, Dr. Rosson let the instrument that he was using slip off on his gums and injured them severely. His negligence in using the grinding instrument caused his gums to rise and made them very sore for a long time.

      J. W. Stroop, bookkeeper for Dr. Black, was a witness for bim.
    According to his testimony, Dr. Black told Bearden, before he started to work,- that he would charge him $150. Dr. Black told Bearden that he would fix his teeth and treat his gums for pyorrhea for $150. After the work was done, Bearden wrote out a check and paid Dr. Black $150.
    Dr. M. D. Black was a witness for himself.
    According to his testimony, Bearden came into his office on November 15, 1922, and asked him to look .at his mouth and teeth. He said that his mouth was in bad shape in general and that he was having trouble with his gums. Black told Bearden that it would cost him $150. to fill the cavities, grind his teeth, crown one tooth, and treat his mouth for pyorrhea. B.earden told Black to go ahead, and he took the measure of the cavities and told Dr. Rosson to fill them with alloy filling. After this was •clone, Black set the crown- on his tooth, and cleaned his teeth and treated them for pyorrhea. He gave him some medicine to use, and only charged him a reasonable price for the work. He paid Dr. Black that amount without protest. The work was done in a first-class manner.
    Dr. Mf. W. Pate was also a witness for the defendant.
    According to his testimony, Pay Bearden came to him and asked him to examine the dental work which had been done by Dr. Black. He examined Bearden’s mouth thoroughly, and the work looked like very fine work to him. On cross-examination he was asked if he had not made the statement to the plaintiff and his attorney that he would have been glad to have gotten the work for $13. Dr. Pate denied making any such statement.
    In rebuttal, both the plaintiff and his attorney testified that Dr. Pate, after examining the plaintiff’s mouth, said that he would have been glad to have done the work for $13.
    The record shows that Dr. Rosson had left the State before the trial was had,

      The jury retured a verdict for the plaintiff in the sum of $130, and from the judgment rendered the defend- and has duly prosecuted this appeal.

      G. L. Grant, for appellant.

      I). E. Epwell, for appellee.
   Hart, J.,

(after stating the facts). The -cause of action of the plaintiff is based upon two counts. The first was that there was no express contract between him and Dr. Black for the dental work in question. After Dr. Black and his assistant had done the work, Dr. Black represented to him that $150 was a reasonable price for the work, and he paid him that amount on the faith of this representation. He afterwards found that Dr. Black had -overcharged him, and he sued to re-cover the overcharge. In the second count the plaintiff alleged that the defendant had negligently and unskillfully performed the dental work and thereby -caused his gums to rise :and give him great pain.

On the other hand, it is the contention of the defendant that the plaintiff agreed to pay him $150 before he commenced the work, and that the work was done in a skillful manner.

It cannot be doubted that a -dentist is entitled to recover from a patient the amount agreed to be paid him for his -services under an express contract. If no express contract was made, he would be entitled to recover a reasonable compensation for his services. For example: if there was no express contract between the parties, and, after the- work was done, Dr. Black had demanded an unreasonable fee, Bearden might have refused to pay him, and in a suit Dr. Black would only be entitled to recover upon a quantum meruit. On the other hand, if Bearden paid the amount demanded, he could -only recover the overcharge on the ground that the settlement had been procured through fraud.

In the case of Guild v. Whitlow, 162 Ark. 108, the defendant -claimed that he was induced to agree to pay a surgeon a specified amount for an operation on his representation that such a sum was a reasonable charge. The court held that he could not set aside the contract on the ground of fraud simply because the fee was unreasonable.

The court further said that it is not sufficient to show that the contract was procured by fraud, to prove that the surgeon charged more than other surgeons charged for a similar operation in the same city. There must be some mental distress caused by the attending circumstances, which would amount to fraud in law, because the party seeking to enforbe his contract had taken an unconscionable advantage of one who, under the circumstances, had a right to rely upon his representation that the fee was a reasonable one. In that case the contract was made before the operation was performed.

Here the same principle applies. The services were performed before the fee charged by the dentist was paid. Barden was under no duress whatever. No coercion of any sort was practiced upon him. He made the payment of his own volition, simply because Dr. Black told him the charge was a reasonable one. As we have already seen, this is not sufficient to establish fraud. There is not even testimony- in the record sufficient to legally establish that the charge made by Dr. Black was unreasonable. It is true that the plaintiff testified that Dr. Pate told him that he would have been glad to have done the work for $13. Dr. Pate denied having made this statement. Hence the testimony of the plaintiff did not amount to affirmative testimony that the charge was unreasonable. Dr. Pate having denied making the statement, the testimony of the plaintiff to the effect that he did make it could only go to test the credibility of Dr. Pate as a witness.

We do not deem it necessary to set out the instructions given by the court. It is sufficient to say that, as a whole, they submitted to the jury the question of whether or not the plaintiff was entitled to recover on his count for overcharge, and, there being no testimony upon which to submit this question to the jury it was error to do so. The error was necessarily prejudicial, because this court cannot tell whether the verdict of the jury was based on the count for overcharge or the count for malpractice. Carrigan v. Nichols, 148 Ark. 337; Huddleston v. St. L. I. M. &. So. Ry. Co. 88 Ark. 454; Moore v. Moss, 117 Ark. 593; and District Grand Lodge No. 11, etc. v. Pratt, 96 Ark. 614.

The plaintiff’s own testimony was sufficient to enable him to go to the jury on question of whether the dentist had been negligent in his work of crowning one tooth and filling the other. He testified that the crown came loose within three months, and that the dentist, iii working on his other teeth, negligently permitted his instrument to slip and badly injure his gums, and thereby caused an abscess which gave him great pain.

In Dunman v. Raney, 118 Ark. 337, the court held that a physician .or surgeon is only bound to possess and to exercise that degree of skill and learning ordinarily possessed and exercised by members of his profession in good standing practicing in the same line, and in the same general neighborhood or in similar localities.

The court further said that he must use reasonable care in the exercise of his skill and learning, and must act according to his best judgment in the treatment of his patients.

The rules governing the duty and liability of physicians and surgeons in the performance of professional services are applicable to practitioners of the kindred branches of the healing art, such as dentists, oculists, and manipulators of x-ray machines. 21 R. C. L; § 31, p. 386, and cases cited. See also Runyan v. Goodrum, 147 Ark. 481.

We also call attention to the fact that, in the case of Dunman v. Raney, 118 Ark. 337, the court decided the basis for awarding damages in an action by a patient against a physician for improper treatment.

It follows that, for the error in submitting to the jury the question of overcharge, the judgment must be reversed and the cause remanded for a new trial.


author: McCulloch, C. J.

text:
    Griffin v. Whitaker.
    Opinion delivered February 2, 1925.
    1. Husband and wife — husband managing wife’s property.— 'The mere fact that a wife permitted her husband to manage her property and collect the rents does not necessarily imply that she was permitting him to hold it out to creditors as his own; it being a question for the court to determine whether the creditors and those dealing with the insolvent husband were reasonably warranted in believing that the property was his, and whether the wife’s conduct was such as to justify the belief that she permitted her husband to hold himself out •as the owner of the property.
    2. Fraudulent conveyance — evidence.—A conveyance by a husband to his wife is not shown to be fraudulent as to subsequent creditors where the deed was placed on record five years before he became insolvent, though he rented the property apd offered it for sale, and many people in the vicinity believed it to be his property.
    3. Appeal and error — conclusiveness of court’s findings;— Where a case is one that turns entirely upon the determination of questions of fact, a decree of the chancery court will not be disturbed if it is not against the preponderance of the evidence.
    Appeal from Boone Chancery Court; Ben F. McMahan, Chancellor;
    affirmed.

      G. A. Fuller, for appellant.
    Where the wife permits her husband to use her property in such a way as to obtain credit thereon on the faith of its being his own, and it is not .shown that she objected thereto, it is too late in an action to sequester the property in payment of the husband’s debts to assert her claim against the creditors of her husband. 50 Ark. 42; 62 Ark 32; 84 Ark 231; 86 Ark 488; 92 Ark. 320.

      Shouse & Rowland, for appellee.
    Equitable estoppel, being merely an instance of fraud, requires intentional deception, and, at least that gross negligence which is evidence of intent to deceive. 97 Ark. 43; 91 Ark. 141. One is not estopped by his conduct where the other party was not led thereby to do or to omit to do something. 103 Ark. 326. Fraud will not be presumed. 11 Ark. 37i8; 38 Ark. 419; 99 Ark. 45; 119 Ark. 78. The finding of the chancellor being supported by sufficient evidence will not be disturbed. 105 Ark. 626; 119 Ark. 386.
   McCulloch, C. J.

This is an action instituted against appellees by appellant in the chancery court of Boone County to subject certain real estate to the payment of appellant’s debt against appellee E. G. Whitaker on the ground that the legal title is held by appellee Pearl Pox, the daughters of E. G. Whitaker, in fraud of the latter’s creditors. Appellees answered denying the allegations of the complaint, and the chancery court, on the hearing of the cause, dismissed the complaint for want of equity.

The facts are that, prior to the year 1912, E. G. Whitaker was in the mercantile business at Alpena Pass, in Boone County, and was the owner of the real estate in, controversy, subject to a mortgage in the sum of $2,-500, which he had executed to secure his own debt. He sold out his mercantile business on account of ill health, and paid all of his debts except the mortgage debt mentioned above, and on May 13, 1912, he executed to his wife A. B. Whitaker, a deed conveying property subject to the mortgage, and this deed was immediately placed on record. A few years later E. G. Whitaker re-entered the mercantile business at Alpena Pass, but, in the year 1917, he became insolvent, and conveyed his stock of goods and other personal property to appellant, J. P. Grriffin. There was a failure to comply with the bulk sales law, and appellant was held liable to Whitaker’s creditors in the sum of $696, and he discharged the liability by payment of the amount in full. It is conceded that E. G. Whitaker is still liable to appellant for that amount, by way of subrogation of the rights of Whitaker’s debts which were discharged by appellant.

After the commencement of this action A. B. Whitaker conveyed the lands to Pearl Fox, who was her daughter.

It is not contended by appellant that E. G. Whitaker was insolvent at the time he executed the deed to his wife on May 13, 1912, nor that the deed in question was executed with, any' intention to defraud future creditors, but the contention is that, according to the proof in the case, Mrs. Whitaker permitted her husband, E. G. Whitaker, to use the property as his own and hold it out to creditors as a 'basis of credit. Counsel rely upon the principle announced by this court in the case of Briggs & Co.’s Bank v. Norwood, 50 Ark. 42, and subsequent decisions adhering to that rule.

According to the testimony adduced by appellant, E. G. Whitaker continued to manage the property, rent it- out and offer it for sale up to the time of the commencement of this action, and there is proof tending to show that, before he failed in business in the year 1917, he included this property in a written statement to a commercial agency concerning his financial condition, but Whitaker denied that he made the statement, and we cannot say that a finding by the court in his favor on that issue was against the preponderance of the evidence. The proof is sufficient also to show that Mfcs. Whitaker knew that her husband was managing the property and collecting the rents, but she contends that he was doing that merely as her agent.

This court has no disposition to disregard, or to depart from the wholesome rule announced in the decision referred to above, which has been so often followed in other decisions, but the mere fact that a wife permits her husband to manage her property does not necessarily imply that she is permitting him to hold it out to creditors as his own property. It is a question for the determination of the court in.a given case, on the evidence adduced, as to whether or not the situation is such as to reasonably warrant creditors and those dealing with an insolvent to believe that the property is his own, and whether or not the wife’s conduct was such as to justify the belief that she permitted her husband to do that. In the present instance the property in controversy was a building in town, and the deed was placed on record five years before Mrs. Whitaker’s husband became insolvent. The mere fact that he rented the property and offered it for sale does not necessarily imply that he was, with the knowledge of his wife, holding himself ont to be the owner. The fact that many people in the vicinity believed it to be his property does not compel the conclusion that the wife’s conduct justified such a belief.

After consideration of the whole testimony in the case, we cannot say that the inference drawn by the chancery court from the conduct of the parties was unjustified by the facts proved in the case. In other words, the decree is not against the preponderance of the evidence, and, the case here being one that turns entirely upon determination of the questions of fact the decree is affirmed.


author: Humphreys, J.

text:
    Missouri Pacific Railroad Company v. Johnson.
    Opinion delivered February 2, 1925.
    1. Railroads — negligence and contributory negligence as jury questions. — In an action against a railroad company for injury to a truck at a crossing, where there was substantial evidence that the trainmen were negligent in approaching the crossing without signal, and that the driver of the truck was unable to see the approaching train on account of obstructions until he reached the track, and that when he discovered the train he 'did all he could to avoid a collision, the questions of negligence and contributory negligence were properly submitted to the jury.
    2. Negligence — application op comparative negligence statute. — ' Crawford & Moses’ Dig., § 8575, establishes the rule of comparative negligence in actions for personal injury or death only, and does not apply to recovery of damages to property.
    3. Trial — instruction—sufficiency of ceneral objection. — An instruction applying the statutory rule of comparative negligence to an action against a railroad company for damages to property is inherently wrong, ¡and may be challenged iby general objection.
    4. Evidence — declarations of defendant’s employees. — Declarations by defendant’s employees, made after an accident has occurred, as to how it happened are inadmissible, being merely hearsay.
    5. Appeal and error — necessity of objection to evidence. — A party not objecting to hearsay evidence when introduced cannot complain on appeal.

      Appeal from White Circuit Court; E. D. Robertson, Judge;
    reversed.

      Thos. B. Pryor and Ponder & Gibson, for appellant.
    The verdict is against the weight of the evidence and should be set aside. 147 Ark. '206; 144 Ark. 227; 126 Ark. 427; 132 Ark. 97; 132 Ark. 588. The court erred in permitting evidence to be introduced as to what fireman Mequet said right after the accident. It was hearsay, and not a part of the res gestae. 57 Ark. 287; 78 Ark. 38; 97 Ark. 420; 105 Ark. 247; 61 Ark. 52; 137 Ark. 107.
    The court erred in giving instruction No. 7 as it had no application to recovery of damages to property, but is limited by its language to causes of action for personal injury or death.
    The court erred in refusing to submit to the jury the duty of a traveler at a public railroad crossing and the question of his regard thereto. 96 Ark. 366; 110 Ark. 161; 107 Ark. 431; '81 Ark. 368; 86 Ark. 306; 106 Ark. 390; 83 Ark. 300; 96 Ark. 394;-103 Ark. 226.

      John E. Miller and G. E. Yingling, for appellee.
    The testimony as to what the fireman Mequet said immediately after the accident was not objected to, and it is too late to object here for the first time. 123 Ark. 594; 128 Ark. 397; 130 Ark. 11. The admission of this testimony was not alleged as the ground for a new trial. 154 Ark. 440; 149 Ark. 55; 143 Ark. 376.,
    There was no proper objection made to the giving of instruction No. 7 requested by plaintiff. 143 Ark. 376 ; 38 Ark. 528; 106 Ark. 315; 111 Ark. 538; 119 Ark. 179.
   Humphreys, J.

Appellees brought suit in the circuit court of White County against appellant to recover $650 damages to a Maxwell truck, resulting from a collision with a fast passenger train which was operated by appellant. The collision occurred at the street crossing immediately south of the depot at Judsonia. It was alleged in the complaint that the truck was damaged through the negligence of the employees of the appellant, who were operating the train, by failure to give' the statutory signals of the approach of the train.

Appellant filed an answer denying the material allegations of the complaint, and, as a further defense, pleaded contributory negligence on the part of the driver of the truck.

The cause was submitted upon the pleadings, testimony adduced by the respective parties, and instructions of the court, which resulted in a verdict and judgment in favor of appellees, from which is this appeal

Appellant first seeks a reversal and 'dismissal of the action because the court refused to instruct a verdict for it. The contention was made that the undisputed evidence showed that appellant was not negligent in failing to give warning of the approaching train, and that appellee’s driver was guilty of negligence in driving upon the track without listening and looking for the approaching train. We cannot agree with appellant’s interpretation of the testimony.

The record contains substantial evidence tending to show that appellant’s train approached the street crossing without ringing its bell or sounding its whistle, and that the driver on the truck was unable to see the approaching train on account of obstructions until he reached the second track, although looking and listening, and that, immediately upon discovering the train, he did all he could to avoid a collision.

The dispute in the evidence justified the submission of the issues of negligence and contributory negligence to the jury.

Appellant’s next contention for a reversal'of the judgment is that, in submitting these issues, the court erroneously applied the statutory rule of comparative negligence to the cause of action. Instruction No. 7, given by the court, over the objection and exception of appellant, was based upon act 156 of the Acts of 1919, page 143 (<S 8575, C. & M. Digest), which provides for a recovery of damages growing out of personal injuries or death occasioned by the running of trains in this State. Instruction No. 7 given by the court is as follows:

“You are instructed that, if you find that the automobile of the plaintiff was struck by the locomotive pulling one of the defendant company’s trains, at a public road or street crossing, that the contributory negligence of the plaintiff, if any, will not prevent a recovery, if you find from the evidence that the negligence of the plaintiff was of a less degree than the negligence of the defendant’s employees in charge of the train and locomotive, provided you find said employees .were negligent as defined in these instructions; but the contributory negligence of the plaintiff, if any, would serve to diminish the amount of his recovery in proportion to the degree of such contributory negligence.”

The statute invoked and used as a basis for instruction No. 7 has no application to recovery of damages to property, but is limited by the language of the statute to causes of action for personal injury or death. Appellee suggests that a specific objection should have been made to instruction No. 7 in order to derive any advantage from the error committed by the court in giving the instruction. Not so, for the instruction was inherently wrong, and susceptible to challenge by a general objection which was made.

Appellant also insists upon a reversal of the judgment because appellees were permitted to prove by J. A. Ferguson that its fireman, Edward E. Mequet, stated immediately after the accident that the reason he did not see the approaching truck as the train neared the crossing was because he was putting in coal instead of keeping a lookout. It is true that declarations made by employees of a railroad company, after an accident, as to the manner in which it happened, are inadmissible as being hearsay merely; but in the instant case no objection was made by appellant at the time this piece of testimony was introduced. Having failed to object to the introduction of the evidence when introduced, it cannot now complain. Lisco v. Uhren, 130 Ark. 11.

On account of the error indicated the judgment is reversed, and the cause remanded for a new trial.


author: Smith, J.

text:
    Ware v. First State Bank of Corsicana, Texas.
    Opinion delivered February 2, 1925.
    Corporations — mortgage—execution by purported officer.— A mortgage executed by one who described himself as president of a corporation, though he was not shown to have bad authority to execute it, will be held to show prima facie right to possession in the mortgagee, where the mortgagor is a party and raises no question as to such authority.
    Appeal from Columbia Circuit Court; L. S. Britt, Judge;
    affirmed.

      Joe Joiner, for appellant.
    An officer or an agent of a corporation in order to bind the corporation by mortgage or pledge of its personal property, must have expressed, or apparent authority to do so. 188 S, W. 38; 7 R. C. 1. 645; 94 So. 502; 244 S. W. 26; 201 S. W. 544 ; 62 Ark. 33; 7 R. C. L. 452; 33 Ann. Cas. 519; 19 Ann. Cas. 619. Possession of personal property is prima facie evidence of title in the possessor. 233 S. W. 916

      McKay Smith, for appellee.
    The court did not err in permitting the introduction of the note and mortgage. 85 Ark. 269 82 Ark. 105; 121 Ark. 328; 131 Ark. 273; 1 Clark & Marshall, Private Corporations, § 164. Questions not raised in the pleadings cannot be raised here for the first time. 89 Ark. 445. This court only reverses for errors prejudical to the rights of the party appealing. 137 Ark. 387.
   Smith, J.

Appellant brought this suit against R. E. Jones to collect a sum of money alleged to be due him for the board of a crew of men who had been engaged in drilling a well for oil and gas, and who bad been employed by Jones and the Lone Star Drilling Company. Appellant attached 'an automobile) then in the possession of Jones. The Excelsior Motor-Car Company and the First State Bank of Corsicana, Texas, both Texas corporations, filed interpleas. The motor-car company claimed the attached property as its own, and the bank claimed the right of possession under a mortgage executed to it by the motor-car company. At the trial of the cause the court directed the jury to return a verdict in favor of the bank, and continued the cause as to' the motor-car company, and this appeal is from that judgment.

At the trial testimony to the following effect was offered: There was introduced in evidence a bill of sale from the Trinity Drilling Company to the Excelsior Motor-Car Company for an automobile, which was identified as the one attached. The secretary of the motor-car company testified that that company bought the automobile from the Trinity Drilling Company and received a bill of sale therefor, wihch was exhibited. This witness further testified that the mortgage from the motor-car company to the bank, which was also offered in evidence, had been executed by it. E. Jones as president of that company, but, on her cross-examination, stated that there was nothing in the records of the company to show that Jones was president of the company or that he had any authority from the board of directors to execute this mortgage. The question which elicited his answer, however, was this: ‘ ‘ Who are and have been the officers of the Excelsior Motor-Car Company for and during’ the last twelve months ? ’ ’ The date of the mortgage shows that it was not executed during the period of time covered by the question.

The mortgage was offered in evidence, and attention is called to the fact that it was not attested by the secretary and does not bear the seal of the corporation.

There was offered in evidence the articles of incorporation of the motor-car company, from which it appears that Jones was, in fact, one of the three incorporators, and that his name first appeared.

The motor-oar company is a party to this litigation, and does not dispute the existence or validity of the mortgage which Jones executed in its name, and has not appealed from the judgment of the court, which contained the finding that the bank is entitled to the possession of the car by virtue of this mortgage. The cashier of the bank testified that, at the time the loan was made to the corporation, Jones represented himself as being* its president, and executed and acknowledg*ed the mortgage as such, and after its delivery to the bank it was duly recorded in the county in which it was executed, and that the indebtedness secured by the mortgage had not been paid, and that the automobile h'ad been removed to this State without the knowledge or consent of the bank.

The undisputed testimony shows a sale of the automobile to the motor-car company, and the defendant in the attachment suit was not therefore its owner, and we think there was no question about the validity of the mortgage for the jury to decide. The mortgagor does not question its validity, and it was executed in its name by an officer who purported to act as its president. The pleadings in the case do not raise the question whether Jones had authority to execute the mortgage, which was referred to in the interplea, a copy of the mortgage being thereto attached.

We think the testimony is undisputed that the defendant in the attachment suit was not the owner of the attached property — the automobile — and, this being true, the question is whether the bank made a prima facie showing that if was entitled to its possession. We think this showing was made. The mortgage was a Texas contract, duly executed and recorded in that State. It was executed in the name of the motor-car company, by a person who professed to be its president. The motor-car company is a party to this litigation, and did not, and does not, question the validity of the mortgage. It is true, as we have said, that no showing was made that Jones was authorized to execute the mortgage by any action of the board of directors; but we do not think this failure of proof made an issue concerning its validity which should have been submitted to the jury.

In the case of Brownwood Ice Co v. York Mfg. Co., 37 S. W. 339, a chattel mortgage had been executed by the president of a corporation alone, and, in litigation which involved its validity, the Court of Civil Appeals of Texas said: “These mortgages were executed apparently by the authority of the defendant corporations. It is true, no by-law or resolution of the 'board of directors of these ice companies is shown authorizing the execution of the notes and mortgages, but they were executed by the president on behalf of the companies, and it will be presumed, in the absence of any evidence to the contrary, that he had authority to bind the companies in these particular instances. The law does not presume that these notes and mortgages were executed for purposes beyond the scope of the corporate authority of the companies. The presumption is that the notes and mortgages are valid and binding upon the companies; and, if such was not the case, the burden rested upon the corporations to show that they were executed for a purpose and under such circumstances as would not bind them, which was not done in this case. Therefore the judgment will be affirmed.”

The question was again considered by the Court of Civil Appeals of Texas in the case of Peyton v. Sturgis, 202 S. W. 205, where the court said: “The first contention is, in substance, that the mortgage is void because it appears that the person executing it was, at most, an officer or stockholder, and not authorized by the corporation to do that which he assumed to do. Confining our remarks and the application thereof to the precise facts of the present case, it must be conceded that, while a corporation may mortgage its property to secure payment of its debts when solvent (article 1162, Vernon’s Sayles’ Stats.), ordinarily that authority does not inherently exist in any officer of the corporation as such, but must in all cases be conferred by the board of directors. Article 1159, Vernon’s Sayles’ Stats.; Henderson Merc. Co. v. Bank, 100 Tex. 344, 99 S. W. 850. However, it is the rule that, when such acts are done by the president or vice president of the corporation, they are apparently authorized by the corporation, since such officers are the appropriate ones to exercise such functions, and their acts will be presumed to be corporate acts, in the absence of a showing that such officers were not so authorized. Ballard v. Carmichael, 83 Tex. 355, 18 S. W. 734; Brownwood Ice Co. v. York Mfg. Co., 37 S. W. 339.”

In that case the chattel mortgage had not been executed by the president, but by the secretary and treasurer, and, after saying that a mortgage so executed could not be said to have been signed with apparent authority, for the reason that the secretary and treasurer is not ordinarily the appropriate officer to perform such acts, the court found that the appellant was estopped to question the authority even of the secretary and treasurer, for the reason that the company, which had not perfected its corporate organization, had received the money which the mortgage was given to secure.

We conclude therefore that the verdict was properly directed in favor of the bank, and that judgment is affirmed.


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    Davis v. State.
    Opinion delivered February 23, 1925.
    1. Intoxicating liquor_possession op still — evidence.—Evidence held to warrant conviction of possessing a still, in violation of Acts of 1921, p. 372.
    2. Criminal law — harmless error. — In a prosecution for manufacturing liquor and for possessing a still, an instruction authorizing a conviction if defendant aided and abetted another in manufacturing liquor was neither abstract nor prejudicial where defendant was acquitted of manufacturing liquor and convicted only of possessing' same. ■
    Appeal from Mississippi Circuit Court, Chickasawba District; W. W. Bamdy, Judge;
    affirmed

      E. E. Alexander, smd Wils Davis, for appellant.

      II. W\. Applegate, Attorney General and Darden Moose, Assistant, for appellee.
   Smith, J.

Three indictments were returned against appellant, one charging him with manufacturing liquor, the second with making mash, and the third with possessing a still. With his consent he was placed upon trial on all three charges, and was convicted upon the charge of possessing a still, and was acquitted upon the other two charge.

For the reversal of the judgment pronounced upon the jury’s verdict, appellant insists (1), that the evidence does not sustain the verdict, and (2), that the court erred in giving an instruction numbered 4 to the jury.

Upon the first assignment of error it may be said that the testimony on the part of the 'State was to the following effect: The husband of a Mrs. Williams had been convicted of manufacturing liquor, and had been sent to the penitentiary. He left in his wife’s possession the still which he had used for manufacturing the liquor. Mrs. Williams was left in destitute circumstances, with the care of four children, one of whom was blind. Appellant moved Mrs. Williams to a house on his farm about fifteen feet back of the house in which he himself resided. The still was moved along with Mrs. Williams ’ other effects, although it was not shown certainly that appellant was aware of that fact at the time it was moved.

Officers of the law searched the house in which Mr®. Williams lived, and they found the still set up and in operation, and some white whiskey dripping from it. A quantity of mash from which whiskey was made was found, and the officers found in appellant’s home four gallons of whiskey in a tin bucket and about a gallon in some beer bottles and fruit jars. Appellant was drunk at the time, and told the officers that the outfit belonged to him.

At his trial appellant denied that he owned the still, and testified that it belonged to Mrs. Williams. He admitted, however, that he knew of the presence of the still, and that it was being operated and that he was drunk when arrested from drinking the whiskey distilled on his premises.

Mrs. Williams had been released! by the officers when appellant admitted the ownership of the still, and she had left the county and did not appear as a witness.

We think this testimony so connects appellant with this still and its operation that the jury was warranted in finding that he had possession of it within the inhibition of act 324 of the Acts of 1921, page 372, which prohibits any person from having a still in his possession. Ring v. State, 154 Ark. 250.

The instruction which appellant insists is error calling for the reversal of the judgment reads as follows: “The defendant here, in addition to the general plea of not guilty, has interposed a special defense here to the extent of claiming that he did not manufacture this liquor, but that another party did, and for that reason he is not guilty. On that proposition you are instructed, gentlemen, that, if you find from the proof in this case, beyond a reasonable doubt, that this woman, Mrs. Williams, manufactured liquor, and that the defendant was present while she was manufacturing the said liquor, and aiding or abetting, aided or abetted, or ready and consenting to aid and abet in the making of this liquor, then this defendant would be as guilty as Mrs. Williams; but the mere knowledge of the fact that she was making liquor, if he was not in fact present at the time Mrs. Williams was making liquor, would not be a violation of the law in this trial. And so, if you find from the proof that Mrs. Williams made the liquor, and that this defendant was not present while she was doing so, your verdict should be one of not guilty. But if you find she did in fact make the liquor and this defendant was present aiding, assisting, and abetting, or was present ready and willing to aid, assist, and abet, then your verdict should be one of guilty, and his punishment fixed at one year in the State Penitentiary.”

The argument is that one could not aid and abet another to possess an article. Whether this be true or not, it suffices to say that appellant was on trial for the crime of making whiskey as well as for possessing a still, and one could aid and abet another in that act, so the instruction was- not abstract. It is obvious that this instruction dealt with the charge of manufacturing liquor, and this instruction was appropriate and proper on that subject, and could not have been prejudicial, because appellant was acquitted of the charge to which it related.

No error appears, so the judgment is affirmed.


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    Courtney v. Fort Smith.
    Opinion delivered February 16, 1925.
    Municipal corporations — occupation tax — distributing samples.— One who, in connection with the solicitation oí orders for silk hosiery, distributes free samples of soap- flakes recommended for washing ¡such hosiery is required to pay an occupation tax under an ordinance imposing a municipal tax for distribution of samples or other advertising matter.
    Appeal from Sebastian Circuit Court, Ft. Smith District; John E. Tatum, Judge;
    affirmed.

      J. B. Karnopp, for appellant.
    Appellant’s occupation was that of a salesman, selling’ an article in interstate commerce and not subject to an occupation tax. 6 Words & Phrases, “Occupation,” p. 4907; 31 Tex. 277, 278
    The distribution of the soap was an incident to the sale of hose in interstate commerce and not subject to the ordinance imposing the occupation tax. 68 Law. Ed. (U. S.) 283; 227 U. S. 389; 57 L. Ed., 565; 12 C. J. 26, §§ 256-7; 227 U. S. 401, 57 L. Ed. 569; 117 G-a. 292; 43 S. E. 740; 232 IT. S. 665, 58 L. Ed. 786.

      Geo. W. Dodd, for appellee.
    The city had the authority under the statute C. & M. Digest, § 7618, to impose this tax, and under its general powers it has the authority to regulate and license any business which it is necessary to regulate in the interest of the prosperity, morals and welfare of the people. 217 S. W. 769. The question of interstate commerce does not enter into this case. There is no showing that the distribution of the samples was even incidental to the sale of hosiery, because they were distributed to prospective, as well as to actual, customers. The distribution of the samples, whether alone, or accompanied by advertising matter, violated the ordinance.
   McCulloch, C. J.

Appellant was convicted in the municipal court of the city of Fort Smith on the charge of violating a section of an ordinance of the city imposing an occupation tax. The section reads as follows:

“Item 10. Advertising: Distributors of circulars and samples or other advertising matter, $25 per annum, $10 per month, $1 per day.”

Another section of the ordinance imposes a fine for violation by carrying on business without payment of the tax.

The case was tried in the circuit court, on appeal, and resulted in appellant’s conviction. The ease was tried on the testimony of appellant himself, which is conceded to be true, and the only question presented is whether or not, under the facts as stated by appellant himself, he was carrying on the occupation or business mentioned in the section of the ordinance referred to above.

It is conceded that appellant did not pay the tax. It appears from the testimony of appellant that he was employed by a concern in Indianapolis, Indiana, known as the Real Silk Hosiery Mills; that he was superintendent of salesmen in Fort Smith, and maintained an office there, and had salesmen working under him, who took orders for silk hosiery, and the articles were shipped out from the factory at Indianapolis. Appellant testified that the hosiery thus sold was guaranteed by the manufacturer to give satisfaction in wear, and that the company found by experience that the use of strong soap would cut the fiber of the silk, and that a certain kind of soap, put up in the form of Hakes by a certain manufacturer of soaps, was the best to use in washing the hosiery. He testified that his employer furnished him, for distribution, samples of this soap, which were put up in paper cartons or boxes 3% x 2y2 x 1% in size, and contained on the outside of each package a statement of the name of the manufacturer and a particular description of the soap, together with a recommendation by appellant’s employer that, “after careful tests, we found this soap to be the very best for washing silk hosiery. ’ ’ The package also contained printed directions for the method of using the soap. Appellant testified that these samples were placed in the hands of salesmen under him, with directions to give them away to purchasers and prospective customers in Fort Smith. He stated that he received no compensation for giving away the samples of soap, and that it was merely an incident to the sale of hosiery.

The contention is that appellant’s business — that part of it which consisted of distributing sample packages of soap — does not come within the terms of the ordinance, and that, according to the uncontroverted evidence, appellant is not guilty of a violation of the ordinance. We do not agree with this contention. The ordinance taxes the occupation of distributing “circulars and samples or other advertising matter.” It is true that appellant received no compensation directly for distributing these samples and the accompanying advertising matter, and that such distribution was indirectly incident to his business, but he was nevertheless distributing the samples for advertising purposes, for he states that the samples were distributed to purchasers of hosiery and prospective customers for the purpose of inducing them to purchase and use the soap. It is not essential that appellant should have received compensation for this particular work, nor is it important that it Was an indirect - incident to his business. Nor is it essential that the distribution should have been without limit. If the distribution was for advertising purposes, it comes within the ordinance, and the undisputed evidence is, as before stated, that the distribution was to advertise the soap for proper use in cleansing silk hosiery and to induce the purchasers of such hosiery to purchase and use that particular brand of soap.

Judgment affirmed.


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    Batton v. Jones.
    Opinion delivered February 23, 1925.
    1. Customs and usages — admissibility to defeat c o n t e a c t.— Usages and customs -cannot foe invoked to- defeat the express terms -of a written contract, being applicable only where the contract is silent or its terms ambiguous.
    2. Customs and usages — -admissibility of local custom. — A local custom may be proved to remove ambiguities and uncertainties in a contract or to explain what is doubtful.
    3. New trial — conclusiveness of verdict. — While it is the duty of the trial court to set aside a Verdict considered to be contrary to the weight of evidence, the Supreme Court cannot set ■aside a verdict supported by evidence of a substantial nature.
    4. Evidence — 'competency.—Where plaintiff, in an action for rent, proved a custom that in case part of the land is overflowed the tenant may pay either the stipulated money rent or a part of the crop as rent, the defendant, in case of an overflow, may prove how many bales of cotton were raised on the land not overflowed, on the issue as to the value of the crop.
    5. Evidence — contradiction of written contract. — Where the parties to ,a contract define certain words therein foy language whose meaning is not doubtful, parol evidence is inadmissible to give the words a different meaning.
    6. Customs and usages — explanation of contract. — Parol evidence -of the customary local meaning of words “subject to the usual overflow clause,” in a farm lease which did not define them, was admissible, but it would be incompetent to show by parol evidence what the parties defined these words to mean in a prior contract.

      Appeal from, Little River Circuit Court, B. E. Isbell, Judge;
    affirmed.
    STATEMENT OE EAOTS.
    Lou T. Jones sued E. B. Batton to recover $300 alleged to be due for the rent of bis farm for the year 1923.
    According to the testimony of Lon T. Jones, he rented his farm to E. B. Batton for the year 1923. There were estimated to be eighty or ninety acres in cultivation. The contract was in writing, and provided that Batton should pay Jones $300 for the rent of the tract of land. The contract also contained a clause as follows: “It being understood and agreed that this contract shall be subject to the usual overflow clause, and no agreement not contained herein shall be binding on either party hereto.” The contract provided that the rent should become due October 1, 1923, and no part of it has been paid.
    According to the testimony of E. B. Batton, there were about eighty-five acres in cultivation, and all of the land overflowed in the spring of 1923, except about thirty-five acres. He did not grow any crops on the land that overflowed. After the water dried out, it was too late to plant a crop. Batton grew twelve bales of cotton and a remnant upon that part of the land which did not overflow. It was shown by the defendant that the words, “subject to the usual overflow clause,” meant that, whenever land was rented for a stipulated amount in cash, and part of the land overflowed, it was customary to pay as rent one-fourth of whatever crop that was grown on the overflowed land, and to pay the average price per acre on the land that did not overflow. To illustrate: If one-half of the land in controversy was overflowed during the year 1923, and the overflowed part was again planted, the tenant would pay one-fourth of the cotton, or a third of the corn that might be produced on the overflowed land. If it was too late to plant a crop on it, he would not pay rent on the overflowed land, and would pay at the average price per acre in cash for the land that was not overflowed.
    On the other hand, according to the testimony of the plaintiff, the word's, “subject to the usual overflow clause,” meant that, if any part of the land overflowed, the tenant had the right to pay the stipulated money rent provided in the contract or to pay one-fourth of the cotton and one-third of the corn raised by him, as rent. The value of one-fourth of the cotton raised by Batton on the rented premises during the year 1923 amounted to more than $300.
    The jury returned a verdict in favor of the plaintiff for $300, and to reverse the judgment rendered, the defendant has duly prosecuted an appeal to this court.

      June R. Morrell, for appellant.
    Contracts of doubtful purport should be construed most strongly against the party preparing them. 97 Ark. 522; 105 Ark. 518; 112 Ark. 1. Instruction No. 3 was error; also the testimony which left the jury to believe that appellant had made an enormous profit. If this testimony was admissible, then appellant should have been permitted to prove the expense and loss that he suffered iby reason of the overflow. Issues not in the pleadings should not be submitted to the jury and where proof is offered on matters not raised by the pleadings and objections are made, the pleadings are not to be treated as amended. 41 Ark. 394; 28 Ark. 500.

      Shaver, Shaver '& Williams, for appellee.
    The contract is controlling and cannot be varied by parol testimony. 102 Ark. 578.
   Hart, J.,

(after stating the facts). It is earnestly insisted by counsel for the defendant that the judgment should be reversed, because the weight of the evidence showed that, under the custom of the country, the words, “subject to the-usual overflow clause,” meant that, in case the land was overflowed, the tenant would pay a part of the crop for rent on the overflowed land and the average price per acre in cash for the land that was not overflowed.

It does not make any difference where the weight of the evidence on this point was. It is sufficient to say that there was testimony on the part of the plaintiff tending to show that the words referred to meant that, in case of overflow, the tenant had the option to pay the stipulated rent in cash, or a part of the crops raised by him on the whole place. Of course it is well settled that usages and customs of trade cannot be invoked to defeat the express terms of a written contract, being applicable only where the contract is silent or where its terms are ambiguous. Southern Coal Co. v. Searcy Transfer Co., 152 Ark. 471.

It is equally well settled, by the authorities cited in the case last mentioned, that a local custom may be proved in proper cases to remove ambiguities and uncertainties in a contract. Proof of a custom is also admissible to explain what is doubtful. Therefore it was proper in the case before us to receive testimony as to the meaning of the words, “subject to the usual overflow clause.”

Each party introduced evidence as to what was the meaning of these words in the particular locality where the land rented was situated, and the court submitted to the jury the question under proper instructions on the' subject. The jury returned a verdict in favor of the plaintiff, thereby -saying that it believed the evidence for the plaintiff on this point.

As we have frequently pointed out, under -our system of practice it is the duty of a trial court to set aside a verdict which is considered by it to be contrary to the weight of the evidence. The reason is that the circuit judge hears the testimony -of the witnesses, and has an equal opportunity with the jury to weigh their testimony. On the other hand, no such opportunity is afforded us, and this court cannot set aside the verdict of a jury where there is any evidence of a substantial nature to support it. St. Louis Southwestern Ry. Co. v. Ellenwood, 123 Ark. 428.

Again, it is insisted that the court erred in admitting the testimony of witnesses to the effect that the tenant raised twelve bales of cotton on the land that was not overflowed.

This testimony was competent. According to the evidence for the plaintiff, where land is rented for a stipulated price in money, and a part of the land is overflowed, the tenant has the option to pay the stipulated money rent, or a part of the crop as rent. Therefore it was competent to prove how many bales of cotton were raised on the land that did not overflow, in order that the jury might determine the value of the crop.

Again, it is insisted that the court erred in excluding from the jury certain testimony offered by the defendant. It appears that the defendant had rented the same land from the plaintiff the year before, and had inserted a provision in writing defining what was meant by the words, “subject to the usual overflow clause.” There was no error in excluding this testimony. Where the parties defined these words by particular language whose meaning was not doubtful, they fixed their rights under the contract, and parol evidence could not be introduced to give the words a different meaning from those agreed upon by the parties.

In the case before us they used the words, “subject to the usual overflow clause,” without defining them. It cannot be said that, because the parties had defined these words in a contract entered into between them the year before, this meaning should be given to a subsequent contract where the words were not defined. By omitting to define the words in the contract, it is evident that the parties meant that they should be given their customary meaning in that particular locality. Therefore it was competent to show by parol evidence what these words meant in that particular locality, and it would be incompetent to show that these words meant what the parties had defined them to mean in a previous contract. The definition given the words in the previous contract made it definite and certain, and the absence of such, definition in the contract before us rendered! the words ambiguous, so that parol evidence could be resorted to to determine their meaning’.

It follows that the judgment must be affirmed.


text:
    Moore v. McHenry.
    Opinion delivered February 23, 1925.
    1. Adverse possession — sufficiency of evidence. — Evidence held to sustain a claim of title to land by adverse possession of plaintiffs’ ancestor.
    2. Adverse possession — extent of constructive possession.— Where adverse possession is entered under color of title, the grantee in the instrument constituting color of title will be deemed in constructive possession of the entire body of land described in the instrument if .in the actual adverse possession of any part thereof.
    Appeal from 'Union Circuit Court; L. 8. ‘Britt, Judge;

    affirmed.

      Gaughan & Sifford, for appellats.
    The donation deed under which appellee claim was void, and was not color of title. Therefore, if it be true that appellee held possession of part of the land which was inclosed adversely for a sufficient time to acquire title, they did not thereby acquire title to the land that was uninclosed. 95 Ark. 60, 70. The cutting of firewood and fence rails on land is not sufficient to give actual possession. 88 Ark. 392; 81 Ark. 296; Id 258. Appellees’ holding was permissive, as evidenced by the payment of rent in order to keep from being moved off of the land, and by their remaining passive whenever any occasion arose when they should have asserted the hostile, adverse nature of their occupancy. 12 L. E. A. (N. S.) 1140. For requirements as to ¡character of possession necessary to establish title by adverse possession, see 43 Ark. 469; 97 Ark. 33, 35; 163 Ark. 571; 133 Ark. 589; 151 Ark. 44 The tenant cannot dispute the title of the landlord. 53 L. E. A. 941; 56 Neb. 648, 77 N. W. 80; 32 N. J. L. 124; 29 Ore. 354; 45 Pac. 904; 20 Pa. 80.

      Goodwin & Goodwin, for appellees.
    The questions of fact have been settled in favor of the appellees by the verdict of the jury. 148 Ark. 654; 133 Ark. 599; 18 S. W. 762; 164 Ark. 205. As to the actual, visible and notorious possession of Mary McHenry and her heirs, there can be no controversy, and the continuity of possession is not controverted. 138 Ark. 415. The purpose of color of title is merely to define the extent of the claim of an adverse occupant, and, under this principle, even if the deed to McHenry did. not constitute color of title, it was not necessary in this case. 50 Ark. 340; 6 Mete. 337; 39 Conn. 94; 32 N. J. Law, 239; 4 Allen, 425 ; 4 S. W. 453; Wood, Limitations, 539; 78 Ark. 99. The continuous actual possession of appellees after the State parted with its title in 1899 and 1904, under the claim and assertion of acts of ownership, has been for a period of more than seven years, and perfects the title in them. 149 Ark. 189. It is not necessary that the appellees should have paid taxes on the land in order to acquire title by adverse possession. 135 Ark. 231; 145 Ark. 211.
   Humphreys, J.

Appellees, heirs of Mary McHenry, deceased, instituted suit on July 19, 1922, in ejectment against appellants to recover an 80-acre tract of land in said county, alleging that they inherited it from their ancestor, Mary McHenry, who acquired title thereto by adverse possession.

Appellants filed ian answer denying the material allegations of the complaint, and alleging ownership 'in themselves by purchase through mesne conveyances from the State’s patentees, E. S. Crossett, who purchased one of the forties in 1899, and J. H. Hostetter, who purchased the other in 1904 from the .State as internal improvement land. The cause was submitted to the jury upon the pleadings, testimony 'and Instructions of the court, which resulted in a verdict and consequent judgment in favor of appellees for the land, from which is this appeal.

The first and main contention of appellants for a reversal of the judgment is that the undisputed evidence shows that appellees’ possession was permissive and not adverse. Mary McHenry obtained a donation deed from the State to the lands in controversy on June 4, 1885, reciting that said lands had forfeited to the State for the taxes for the year 1878. She, together with her husband and children, immediately moved upon and improved the land. They built three houses thereon, fenced and placed a part of it in cultivation. Mary McHenry paid the taxes thereon until 1898, when the collector refused to accept taxes because it was internal improvement land. Neither she nor appellees paid taxes on the land after that time. The place was originally known as the Mose McHenry place. After a time Mose McHenry died, and his widow, with their children, continued to reside upon the place. Mary McHenry died in 1908, but her children continued to live upon the property. Later, one or more of them died, and some of them married ’and moved away. One of them, Thomas J. McHenry, was living on the place when appellants moved thereon, and he continued to reside there until after the first suit for the property was instituted. The first suit for the property was brought in 1921, but was dismissed a short time before the instant suit was commenced.

The testimony on the part of appellees tended to show that, from the time their mother took possession of the land in 1885 until her death in 1908, she actually, openly, continually and notoriously occupied the land, claiming title thereto.

Appellants introduced testimony tending to show otherwise.

This issue of fact was submitted to the jury under proper instructions, and appellants are 'bound by the adverse finding of the jury.

It is true that, between the dates Crossett and Hostetter patented the land in 1899 and 1904 and the time this .suit was instituted, some of the grantees in the chain of appellant’s title cut the valuable timber off of the land and collected rent for a few years from two of the heirs, but the heirs explained that the timber was cut and the rents collected from them because they were afraid of the parties who cut and removed the timber and collected the rents. Appellants and their ancestors were ignorant negroes.

There is ample evidence in the record to support the finding of the jury that the possession of the lands by appellees and their ancestors was not permissive but, on the contrary, was adverse to the world.

The next and last contention of appellants for a reversal of the judgment is that appellees’ title by adverse possession must fail because the testimony did not reflect any definite description of that part of the land which they and their ancestors actually occupied, and that, in no event, could they claim that part of the land outside of the inclosure which they and their ancestor maintained upon the land. It is true that one claiming a prescriptive title to lands can only claim to the boundaries of his actual possession, but not so when he claims under an instrument in writing constituting color of title. In that event his possession extends to the boundaries designated in the instrument. Appellants argue that, because the donation deed was executed before the lands were obtained and while they were held by the State as internal improvement lands, the deed was void and was not such color of title as might be used by the grantees therein to mark the boundaries of their land. In support of this argument they cite the case of Brinneman v. Scholem, 95 Ark. 60. That case is not in point. The issue in that case was whether the two-year statute of limitations would be put in operation by a void donation deed executed before the title passed out of the State. We held that it would not, become the statute does not apply to a tax deed or donation deed based upon that kind of a sale. The two year statute of limitations has reference to the perfection. of void tax titles by adverse possession against the real owner of the land. The acquisition of title to lands under the seven-year statute of limitations has no relation to the perfection of void tax titles by adverse possion. The statute is put in operation by adverse possession only, either with or without color of title. The operation of the statute does not depend upon an instrument constituting color of title. The rule is that, if the adverse possession was entered under color of title, the grantee in the instrument constituting color of title will be deemed in constructive possession of the entire body of land described in the instrument if in the actual possession of any part thereof. The rule announced in Brinneman v. Scholem, supra, has no application whatever to the seven-year statute of limitations, and it is immaterial whether the color of title under which Mary McHenry took possession of the land in question was issued before or after the land was patented to E. S. Crossett and J. H. Hostetter. The instrument was color of title for the purpose of marking the boundaries of the lands claimed and occupied by her and her heirs. It follows that the court properly refused to instruct the jury that the donation deed acquired by Mary McHenry was not color of title, and that such adverse possession as she and her heirs held only extended to and Applied to the land which .she or they held under inclosure for the statutory period.

No error appearing, the judgment is affirmed.


text:
    Southwestern Bell Telephone Company v. Shelby.
    Opinion delivered February 23, 1925.
    1. Trial — .questions for jury. — A case should not be withdrawn from the jury unless the conclusion follows as a matter of law that no recovery can ¡be had upon any view which can be properly taken of the facts, which the evidence tends to establish.
    2. Telegraphs and telephones — liability for personal injuries. —In an action for injuries from falling into a hole caused by removal of a telephone pole near the sidewalk, where the defense was that the pole was not owned or removed by the defendant, evidence held to sustain a finding for the plaintiff.
    Appeal from Jefferson Circuit Court, T. G. Parham, Judge j
    affirmed.
    STATEMENT OE PACTS.
    Mrs. Selma W. Shelby brought suit against Southwestern Bell Telephone Company to recover damages on account of personal injuries sustained by her by falling in a hole which the defendant had negligently left unfilled after removing a telephone pole.
    On the trial of the case it was proved by the plaintiff that a telephone pole had been removed from a place near a sidewalk in Pine Bluff, Arkansas, where pedestrains were accustomed to walk, and that a hole was thereby left in the ground near the south side of the sidewalk. The hole was left right near the sidewalk on Pullen Street, about 30 or 40 feet from its intersection with Beech Street. Grass had 'been permitted to grow up around the hole, so that it was difficult to be seen by persons walking along the sidewalk. The plaintiff did not know that the hole had been left there. She proved the character and extent of her injuries. She also introduced evidence tending to show that the pole which had been removed belonged to the defendant.
    On the other hand, the defendant introduced evidence tending to show that the pole did not belong to it. Evidence on this phase of the case will be stated with more particularity in the opinion.

      The jury returned a verdict for the plaintiff in the sum of $500, and to reverse that judgment the defendant has duly prosecuted this appeal.

      Edward B. Dowme, Coleman & Gantt and Walter J, Terry, for appellant; J. W. Jamison, of counsel.
    The evidence does not justify the verdict. The “■scintilla doctrine” has never obtained in this. State. 39 Ark. 639; 57 Ark. 467. Tested by the rule in 97 Ark. 438 as follows: “after drawing all the inferences most favorable to the verdict that the evidence will reasonably warrant, is it sufficient in law to sustain the verdict?” the judgment in this ease falls for lack of sufficient evidence. See also 97 Ark. 442; 104 Ark. 267; 261 S. W. 325 (Ark.). The testimony of Mrs. House was not competent as substantive evidence. 158 Ark. 454. The court will take judicial knowledge that a telegraph and a telephone line of poles and wires look alike. 33 111. App. 91; 85 Fed. 302; 215 S. W. 255.

      Boioell & Alexander, for appellee.
    In case of conflict in evidence the case should be submitted to jury. 97 Ark. 438. The verdict o'f the jury will not be disturbed if there is any substantial evidence to support it. 261 S. ¡W. (Ark.) 325. Proof of alleged acts, etc., causing an injury is not sufficient to establish it as the cause, so long as other causes exist and were present which equally might have caused it. 116 Ark. 57. Direct proof of the fact itself is not required. 107 Ark. 486. In testing the sufficiency of the evidence, that view most favorable to the verdict should be taken 129 Ark. 280; 103 Ark. 65 129 Ark. 18; 134 Ark. 36; 134 Ark. 300; 130 Ark. 469; 131 Ark. 411.
   Hart, J.,

(after stating the facts). It is conceded by counsel for the defendant that there was sufficient evidence to go to the .jury on the question of whether or not the party removing the pole was guilty of negligence in leaving the hole unfilled right at the sidewalk, where people were accustomed to walk. They seek to reverse the judgment solely on the ground that the evidence was not sufficient to show that the pole which was removed belonged to the defendant, and contend therefore that the court should have directed a verdict in its favor.

It has been repeatedly held, and it is the settled rule of practice in this State that a case should not be withdrawn from the jury unless the conclusion follows, as a matter of law, that no recovery can be had upon any view which can be properly taken of the facts which the evidence tends to establish. St. L. S. W. Ry. Co. v. Ellenwood, 123 Ark. 428, and Rice-Stix Dry Goods Co. v. Montgomery, 164 Ark. 161.

According to the testimony of Mrs. Selma W. Shelby, she fell in the hole in question on July 26, 1923. It was a very large deep hole, partly covered with grass, and was just where a cement sidewalk would have been had there been one. The plaintiff also testified that she had moved from that neighborhood in January, 1922, and that there was a telephone pole at the place in question when she moved. The defendant did not attempt to contradict the evidence just stated, but introduced several of its employees, who testified in the most positive manner that the pole in question did not belong to defendant, and that it had not been removed by it.

Counsel for the defendant contend that the evidence for the plaintiff and all reasonable inferences which may be drawn from it do not contradict the defendant’s evidence on this point. In short, they claim that the evidence for the plaintiff to the contrary is only conjectural, and is not of a sufficiently substantial nature to warrant the trial court in submitting the case to the jury. We cannot agree with counsel in this position. The evidence for the plaintiff showed that the hole in question was the result of removing a telegraph, telephone, or electric light pole, and leaving the hole unfilled. An employee of the electric light and water company which operated in Pine Bluff testified that the pole in question did not belong to that company and was not removed by it. The verdict of the jury being in favor of the plaintiff, the question of whether the pole belonged to the electric light and water company is eliminated from the case. The evidence shows that the only other public utilities which operated along the street in question were the defendant and the Postal Telegraph Company. It was also shown that the defendant had bought all the poles of the Postal Telegraph Company when it ceased to do business in Pine Bluff. It is true that the defendant proved by several witnesses that its line of poles was located on the north side of Pullen Street, and that it had never taken over any poles of the Postal Telegraph Company on the south side of Pullen Street..

It cannot be said, however, that its testimony in this respect, however strong it may be, is uncontradicted. A°s we have already seen, the hole was caused by the removal of a telegraph, telephone, or electric light pole, and the electric light and water company is eliminated from the case by the verdict of the jury. The Postal Telegraph Company gradually went out of the telegraph business, and the defendant took over its poles. The city engineer of Pine Bluff exhibited to the jury a list of poles of the Postal Telegraph Company made upon January 12, 1915. This list showed that at Beech and Pullen,- on Pullen Street, there was pole No. 59 on the south side of Pullen Street and 60 feet east of Beech Street, and pole No. 60 on'the same side of Pullen street 60 feet west of Beech Street. Pole No. 59 was situated about where the accident occurred.

The jury might have found that this pole remained standing until some time after January, 1922, and the fact that there was a hole there indicated that the po]e had been dug up and removed by some one. It is legally inferable that this pole was dug up and removed by the servants of the defendant, and that the employees who testified that such was not the case were either mistaken, or had forgotten the facts in the premises.

The plaintiff testified that a pole was there in January, 1922, and it was not there when she was injured in July, 1923. A witness for the electric light and water company testified that the pole did not belong to that company. No other companies operated in that part of the city, except the defendant and the Postal Telegraph Company. Clearly, then, it is not a matter of conjecture to say that the pole in question belonged to one of the latter, two companies. The evidence also shows that the defendant bought the poles of the Postal Telegraph Company before the pole in question was removed. 'Therefore we do not think that the finding of the jury —that the pole belonged to the defendant- — was merely conjectural, but think that it was ia reasonable inference to be drawn from all the facts and circumstances in the case, when we consider that the jury were the sole and exclusive judges of the credibility of the witnesses.

It follows that the judgment must be affirmed.


author: Hart, J.

text:
    Yother v. State.
    Opinion delivered February 23, 1925.
    1. Criminal law — competency op infant witness- — discretion op COURT. — The competency of a witness under 14 years of age is ¡addressed to the legal discretion of the trial judge, and his ruling thereon is not reviewable, in the ¡absence of a clear abuse of such discretion.
    2. Witnesses — competency op infant. — ¡It was not an abuse of discretion to permit a ten-year-old girl to testify where, on a comprehensive -examination, it was fairly inferable that she fully comprehended the sanctity of obligation of an oath.
    3. Criminal law — testimony op infant witness- — instruction.— An instruction relating to the testimony of -a ten-year-old witness which told the jury to test her evidence by the same rules, applied to the testimony of other witnesses was not reversible error where the instruction -also told the jury to consider her tender years, childish nature and environment.
    Appeal from Johnson Circuit Court, J. T. Bullock,

    Judge affirmed.

      Paul McKennon, for appellant.

      R. W. Applegate, Attorney General, and John L. Garter assistant for appellee.
   Hart, J.

Wilson Yother was convicted before a jury for murder in the second degree, and his punishment fixed at seven years in the State Penitentiary. .The case is here on appeal.

The first assignment of error is that the court erred in permitting Beatrice Evans to testify in the case.

Wilson Yother was charged with having killed Joe Holmes by cutting him with -a knife, one night in May, 1924. The case was tried on the 23rd of October, 1924. Beatrice Evans was ten years old at the time of the trial, and had testified before the grand jury, which returned the indictment, and was examined before the circuit .judge on the application of the defendant for bail. Objection was made to her testifying as a witness, and we copy from her examination on this point the following:

“Q. How old are you, Beatrice? A. Ten. Q. Ten years old? A. Yes sir. Q. Were you a witness before the judge here one time about this matter? A. Yes sir. Q. You know what it is to swear — to hold up your hand and say you will swear the truth? A. Yes sir. Q. You know what will happen to you if you don’t? A. Yes sir.”

She then testified that both of her parents were dead, and that she had lived with Joe Holmes and his wife for four months before Joe Holmes was killed. We again quote from her testimony the following:

“By Court: Q. Beatrice, tell me — you were sworn here, were you? A. Sir? Q. Were you sworn here with the other witnesses? Did you hold up your hand and say that you would tell the truth, the whole truth, and nothing but the truth? A. Yes sir. Q. Well, now, suppose you tell a falsehood after you have taken that oath, what will happen to you? A. Put me in the reform school. Q. Put you in the reform school? A. Yes sir. Anything else that would happen to you that you know of? A. No sir. Q. What becomes of people that swear falsely? A. Put them in the penitentiary. Q. Do you know what becomes of them when they die? A. No sir. Q. You don’t know that? A. No sir.”

At the conclusion of her examination, the court permitted her to testify, over the objections of the defendant. She testified that she was present when the killing occurred, and was examined and cross-examined at great length. She stated in detail the circumstances attending the killing, and did so in a connected and intelligent manner. Being under fourteen years of age, the question of her competency as a witness was left to the legal discretion of the trial judge, and, in the absence of a clear abuse, the judicial discretion is not reviewable upon appeal. Crosby v. State, 93 Ark. 156.

According to the rule laid down in that case, an infant under fourteen years of age must not only have intelligence enough to understand what he is testifying about, but he must also have a due sense of the sanctity of an oath. In that case we held that the infant was not competent as a witness, because the examination was not sufficiently comprehensive. The boy stated that it was wrong not to tell the truth, but that he did not know what would be done to him if he did not tell the truth. He was not asked, and did not state, anything from which it could be inferred that he comprehended the danger of swearing falsely or appreciated the sanctity of an oath.

In the case before us the facts are essentially different. The examination of the witness was much more comprehensive. She first 'stated that she knew what would happen to her if she did not swear the truth. On further examination she stated that, if she did not tell the truth, she would be put in the reform school, and that people generally who swore falsely were put in the penitentiary. She did say that she did not know what became of such people when they died. But this is far from showing that she did not appreciate the sanctity of an oath. Her whole examination, taken together, shows that she knew that she would he punished. It was fairly inferable that she fully comprehended the sanctity and obligations of an oath. Therefore there was no abuse of discretion in the circuit court allowing her to testify as a witness in the case.

It is insisted that the court erred in giving instruction No. 4, which reads as follows:

‘ ‘ The court tells you to weigh the testimony of the witness that appeared to be a child of tender years, and you take the tender years and childish nature into consideration, together with the environment about the child and the probability or the improbability of its testimony having been influenced by any other person, and give to that testimony just such weight as you think it is entitled to have. Test it by the same rules that you do the testimony t>f other witnesses.”

It is true that the last sentence tells the jury to test the evidence given by the infant by the same rules as that of other witnesses; but, when the instruction is read as a whole, it left it to the jury to take into consideration the tender age, experience and environment of the child. Therefore the instruction was not inherently wrong, and no reversible error was committed in giving it.

No other assignments of error are relied upon for a reversal of the judgment, and it follows that the judgment will be affirmed.