text:
    Missouri Pacific Railroad Company v. Bell.
    Opinion delivered March 24, 1924.
    1. Carriers — frozen potatoes — presumption op negligence.— Proof of delivery of a carload of sweet potatoes to the carrier in good condition and that they Were frozen on arrival at destination, where they were first inspected, raises a presumption of negligence justifying recovery, in the absence of explanation.
    2. Carriers — through contract of shipment. — A carrier accepting goods for shipment to a point on another line in another State is conclusively treated as having made a through contract.
    3. Carriers — duty op initial carrier. — The initial carrier; having accepted goods in good condition to he shipped to a point on another line, is charged with the duty of delivering them in the same condition or explaining why they could not do so, since it has the better means, and often the only means, of making such proof.
    4. Carriers — damage to shipment — evidence.—In an action against an initial carrier for injury to sweet potatoes frozen in transit, evidence held to sustain a verdict for shipper.
    5. Trial — weight op evidence — province op jury. — Where evidence as to a question of fact was conflicting, it was within the jury’s province to believe the plaintiff’s witnesses, and to draw all legitimate inferences from their testimony.

      6. Carriers — instruction as to measure of damages. — In an action for injury to a carload of sweet potatoes frozen in transit, an ' instruction stating’ the measure of damages as the difference between what they sold for at destination and what they would have sold for if undamaged, with 6 per cent, interest from date of arrival to present time, properly stated the law, and was not prejudicial where the proof .showed that they were badly damaged in transit, and that the damage awarded was much less than would have been justified.
    Appeal from Howard Circuit Court; B. E. Isbell, Judge;
    affirmed.
    STATEMENT OE-PACTS.
    Appellees sued appellant to recover damages to a car of sweet potatoes, which were allowed to freeze while being transported by appellant as a -common carrier.
    According to the evidence f.or appellees, J. W. C. Bell Jr. delivered to the Missouri Pacific Eailroad Company at Nashville, Arkansas, 622 bushels of sweet potatoes consigned to Fruit Supply Company, St. Louis, Mo. The potatoes were freshly dug, and were shipped in a standard ventilation car. The potatoes were delivered to the railroad company on Nov. 6, 1920, and arrived at St. Louis at 9:20 o’clock p. m. on Nov. 10, 1920. The consignee was notified of the arrival of the car by United States mail on the next day. The car was placed for unloading on the team track on Nov. 12, 1920, at 2:30 p. m. . Instructions were received diverting the shipment to Welch & Welch, Chicago, 111. The car of sweet potatoes was delivered to them on Nov. 20, 1920, and an inspection -of the car on that day showed that the potatoes on the bottom tier and at the end of the ear had been frozen. The consignees sorted out the rotten potatoes, and sold the balance of them to the best advantage possible. They realized $250.69 out of all the potatoes, and the market value of them on the day they arrived in Chicago, if they had been in good condition, was $2.25 ner bushel. The consignee at St. Louis had 48 hours after it was notified of the arrival of the potatoes within which to unload the same.

      The maximum and minimum temperatures in St. Louis from November 10 to November 18, 1920, were as follows:
    Nov. 10, 1920, maximum 43, minimum. 32'
    Nov. 11, 1920, 39, 23
    Nov. 12, 1920, 29, 19
    Nov. 13, 1920, 31, 19
    Nov. 14, 1920, 39, 25
    Nov. 15, 1920, 36, 26
    Nov. 16, 1920, 38, 34
    Nov. 17, 1920, 45, 24
    Nov. 18, 1920, 63, 36.
    According to the evidence for the appellees, the potatoes had never been frozen when they were delivered- to the railroad company at Nashville, Ark., for shipment, but when they arrived at Chicago, Ill., they were badly frozen.
    J. W. C. Bell Jr. duly assigned his claim for damages to the American Fruit Growers, Inc.
    According to the evidence for the appellant, the potatoes were shipped in a -ear which had standard ventilation, and the car was kept closed during the whole period the potatoes were in transit.
    Other facts will be stated or referred to in the opinion.
    The jury returned a verdict in favor of the appellees against appellant in the sum of $624.06. The case is here on appeal.

      E. B. Kinsworthy and R. E. Wiley, for apneTant.
    The court erred in instructing the jury on the burden of proof. 195 Pac. 109; 203 Mo. App. 100; 138 Fed. 997; Elliott on Railroads, ^ 1516; 174 S. W. 714; 241 U. -S. 319, 60 L. ed. 1022; 240 U. S. 34; 60 L. ed. 511; 249 TJ. g. 186; 63 L. ed. 552; 108 Ark. 115: 12 How'ard 27'2; 13 L. ed. 985: 11 Wallace 129: 20 L. ed. 160; 10 Wallace 176; 19 L. ed. 909: 222 N. T. 198; 118 N. E. 625; 116 Atl. 245; 110 N. W. 897; 240 U. S. 632; 60 L. ed. 632; 77 Ark 482; 52 Ark. 26; 64 Ark. 115. The court erred in 'instructing the jury on the measure' of damages and admitting-testimony on the measure of damages.

      W. P. Feasel, for appellee.
    Common carriers of merchandise are insurers of the property carried hy them and are liable for every loss or damage occurring to it, unless it was caused by the act of God, the public enemy, or by the shipper. 118 Ark. 398; 117 Ark. 451; 150 Ark. 312; 100 Ark. 269; '21 Wall. 1; 12 Wall. 262; 21 How.'7. The burden of proof was upon the carrier to show that -the loss or damage arose from a cause other than its negligence and for which it was not responsible. 1'Black 156; 22 How. 491; 21 Wall. 230; 12 How. 272. The measure of damages is the difference between what the potatoes would have sold for, if they had reached their destination in a sound and merchantable condition, and what they did sell for in their damaged condition. 129 Ark. 316; 147 Ark. 109.
   Hart, J.,

(after stating the facts). It was the contention of the railroad company that it furnished a car with standard ventilation and kept it closed in the proper manner during the whole period while the potatoes were in its charge for transportation. Hence it contends that the freezing of the potatoes was caused by the act of God, or the inherent nature of the goods shipped.

Counsel for appellant then earnestly insist that the court erred in instructing the jury that the burden of proof in these respects was upon appellant.

We cannot agree with counsel in this contention. According to the evidence for the appellees, the potatoes had not been frozen at the time they were delivered to the carrier for shipment, and were in good condition. They were badly frozen when they -arrived at their destination in Chicago, which was the first time they had b°en inspected from the time they had been delivered to the railroad cornu any for transportation. If no explanation whatever is given as -to how the injury occurred, a presumption of negligence arises as a matter of fact; which is sufficient to justify a recovery in cases where there is no other proof than that of the delivery of the goods to the carrier in good condition, and their arrival at the point of destination in a damaged condition.

Whenever the carrier accepts goods for shipment to a point on another line in another State it is conclusively treated as having been made a through contract. The burden of proof that the damage to the goods in transit resulted from some cause for which the initial carrier was not responsible, in law or by contract, is upon the carrier. The carrier and its agents, having received possession of the goods in good condition, were charged with the duty of delivering them in the same condition, or explaining why they could not do so. The reason is that the carrier not only has the better means, but often the only means, of making such proof. Galveston, Harrisburg & Sam Antonio Ry. Co. v. Wallace, 223 U. S. 481; Chicago & E. I. R. Co. v. Collins Co., 248 U. S. 186; St. L. I. M. & S. R. Co. v. Pape, 100 Ark. 269; and Chicago, R. I. & Pac. Ry. Co. v. Walker, 147 Ark. 109.

Counsel for appellant also objects to an instruction given at the request of appellees, submitting the negligence of appellant to the jury. But we do not deem it necessary to set the instruction out, for the reason’that the objection to it is based mainly upon an alleged lack of evidence to support it. In other words, it is claimed that the testimony for appellant overcomes any prima facie case made by appellees. We cannot agree with counsel in this contention. It is true that the testimony for appellant tends to show that it furnished a car with standard ventilation, and that it was closed in such a way that the sweet potatoes could not have frozen while the car was in the possession of the carrier for transportation; but this testimony can not be said to be undisputed. According to the evidence of appellees, the sweet potatoes were delivered to the carrier at Nashville on the 6th day of November, 1920, and had not been frozen up’to that time. They had only been dug á few days nrior to their shipment, and the weather was such that they could not have been frozen while lying in-the field after they were dug’. The car was placed for unloading on the team track in St. Louis on November 12. On that day the thermometer was down to 19 degrees, and on the nest day the temperature was the same. The jury might have inferred that the potatoes were frozen during these two days.

It is true that appellant introduced testimony tending to show that the car was kept closed on these two days, and that the potatoes would not have frozen while the car was kept closed in the proper way. The jury, however, might not have believed the witnesses in this respect. The potatoes were badly frozen when they arrived in Chicago, and it is evident that all the witnesses cannot be telling the truth about the matter. It is the theory of appellant that the potatoes had become frosted before they were shipped, and they were not frozen during the course of their transportation while in the hands of the carriers. The fact was that they were frozen, and it was within the peculiar province of the jury to believe the witnesses for appellees and to draw all legitimate inferences from their testimony. Therefore we are of the opinion that the evidence for appellees, if believed by the jury, was sufficient to warrant a verdict in their favor. In this connection it may be stated that the court submitted to the- jury, in an appropriate instruction, the theory of the appellant.

Counsel for appellant assign as error the action of the court in giving instruction No. 5 on the measure of damages. The instruction reads as follows: “If you find for the plaintiffs in this case you will assess their damages at such a sum as you find from the evidence would be the difference between what the potatoes sold for in Chicago and what they would have sold for on that market if they had reached there in a sound and undamaged condition, with 6 per cent, interest thereon from date of arrival to present time.”

We do not think any prejudice resulted to appellant from the giving of this instruction. According to the .testimony of the consignees at Chicago, Ill., the market value of sweet potatoes iu good .aoudition ou the day the sweet potatoes in question arrived there was $2.25 per bushel. There were 611 bushels in the oar. The potatoes were so badly damaged by freezing that they had to be rehandled. Four hundred and eight hampers of them had to be dumped. The consignees sold the balance to the best advantage possible, and were only able to realize $250.'69 out of them.

This, was the only testimony introduced on the measure of damages. The verdict of the jury was for $624.06, which was a much less amount than they might have found in favor of appellees. The instruction, when considered in .connection with the proof introduced, was in accordance with the principles of law laid down by this court in other cases. Chicago, R. I. & P. Ry. Co. v. Burkholder & Tuggle, 129 Ark. 316, and Chicago, R. I. & P. Ry. Co. v. Walker, 147 Ark. 109.

It follows that the judgment must be affirmed.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Robertson v. Adams.
    Opinion delivered March 24, 1924.
    1. Dowek — new acquisition. — Where the estate of an intestate, who died childless, was a new acquisition, the widow took nothing, as heir, but what she took was taken as dower.
    2. Dower — waiver of — homestead.—Where an intestate died childless, leaving 80 acres of land which was a new acquisition, his widow, by accepting one-half of the land as dower and the other half under an order of the probate court assigning it to her in fee under Crawford & Moses’ Dig., § 3536, which order was erroneous in view of the fact that there were debts of the estate, the widow will be held not to have waived her homestead rights in the latter half of the land.
    3. Executors and administrators — sale of widow’s homestead.— Where a widow had not waived her homestead rights to any part of her husband’s homestead, consisting of 80 acres, an administrator’s sale of part of such tract during the widow’s lifetime was void, and the court properly refused, at the purchaser’s instance, to cancel a lease executed by the widow during her husband’s lifetime.

      Appeal from Independence Chancery Court; Lyman F. Reeder, Chancellor;
    affirmed.

      Samuel M. Casey, for appellant.
    The lease was clearly unenforceable.
    See 158 Ark. 448.
   Smith, J.

The facts in this case are undisputed, and are as follows: Joseph Bailer, who was a patient at the State Hospital for Nervous Diseases, died in that institution on June 20, 1920, and was the owner, at the time of his death, of an eighty-acre tract of land described as follows: Southwest quarter northeast quarter section 13, township 13 north, range 5 west, referred to by the witnesses as the north forty, and the northwest quarter of the southeast quarter of the same section, referred to as the south forty. These two tfacts of land are, of course, contiguous.

On November 26,1919, Martha L. Bailer, the wife of Joseph Bailer, executed a mineral lease conveying both tracts to T. IT. Adams. As this lease was made in the lifetime of her husband, Mrs. Bailer had no interest in the land except her inchoate right of homestead and dower. The family residence was on the north forty, but, as the total acreage was only eighty acres, she had the right, upon the death of her husband, to occupy the entire tract as her homestead. The land' was an original acquisition on the part of Mr. Bailer, and he died childless.

On July 10, 1920, which was after the death of her husband, Mrs. Bailer filed in the probate court a petition, which she designated as an application for the assignment of dower.

The petition recited the fact that Mr. Bailer, had died intestate and without issue, .and that the land was á new acquisition, and was the only land owned by him, and “that the boundary lines of the northwest quarter of southeast quarter section 13, township 13 north, range 5 west, are established, and that said tract constitutes one-half of the lands owned by the said Joseph Bailer,” and prayed the court to make an order “vesting the last described tract in petitioner in fee, and also assignment of dower in .and to the southwest quarter of northeast quarter section 13, township 13 north, range 5 west.”

On the 12th of July the court made an order reciting the facts set out in the petition as having been found to be true by the court, and it was thereupon “ordered, considered and adjudged that the northwest quarter of the southeast quarter of section 13, township 13 north, range 5 west, be vested in fee in Martha L. Bailer, and the southwest quarter of the northeast quarter of said section be and is hereby allotted to her as dower, the said Martha L. Bailer to have a life estate therein.”

N. F. Harris was appointed administrator of this estate, and debts amounting to $162.90 were probated, and on June. 7, 1921, the administrator filed'a petition in the probate court for an order to sell the southwest quarter of the northeast quarter for the purpose of paying these debts. The court made the order as prayed, and on the 3rd of September following the land was sold, and S. N. Robertson became the purchaser. This sale was duly confirmed and the administrator executed a deed to Robertson, which the court approved and confirmed.

Thereafter Robertson brought this suit against Adams in the chancery court for the purpose of canceling the lease executed by Mrs. Bailer. The court canceled this lease as to the south forty, but decreed that Adams was the owner of a mineral lease in the north forty, this béing the land claimed by Robertson in the deed to him from the administrator.

It appears to have been the view of the chancellor that Mrs. Bailer liad waived her homestead right in the lands, and that, as .she had taken the fee title to the south forty as dower, it was'decreed by him “that portion of said order (of the probate court)'purporting to vest in her a life'estate in said southwest quarter of northeast quarter (the north forty) was void,” but the court held the widow was without the power in equity to deprive Adams of the benefit of the lease from her, and a decree was entered canceling the lease to the south forty but upholding it as to the north forty.

The effect of this decree was to deny Robertson any relief, as he was not interested in the south forty. Mrs. Bailer is not a party to this litigation, and we need not, therefore, consider the correctness of the decree in so far as it affects her.

It appears that the probate court assigned to Mrs. Bailer the south forty in fee and the north forty as dower. The probate court was evidently of the opinion, based upon the recitals of the order, that the estate was a new acquisition, and that, as the intestate had died childless, the widow took both as heir and as widow. This is not correct. She took nothing as heir. What she took was taken as dower. Barton v. Wilson, 116 Ark 400; McDaniel v. Byrkett, 120 Ark. 295; Jameson v. Davis, 124 Ark. 399; Arbaugh v. West, 127 Ark. 98; State v. Boney, 156 Ark. 169.

The probate court evidently attempted to assign the widow the interest given her by § 3536, C. & M. Digest. This .section provides that, if the husband die leaving a widow and no children, the widow shall be endowed of one-half the real estate of which her husband died seized, where the estate was a new acquisition, absolutely and in her own right, as against collateral heirs, but as against creditors she shall be endowed with one-third of the real estate in fee .simple, if a new acquisition.

When the probate order was made no debts had been probated, and the court assigned the widow a one-half interest in fee upon the assumption, no doubt, that there were no creditors whose claims would reduce her interest to one-third in fee, and, after assigning her one-half interest in fee, the court assigned her the other half interest as dower.

It is beyond our power to correct this erroneous probate court order, as it is'not before us for review, but we set it out for the purpose of showing’ that, in our opinion, the widow Waived no interest in the land. She may have been mistaken as to tbe character and extent of her interest, but she claimed it all, either in fee or for life, and had one-half of it assigned to her in fee and the other half for life. Neither her petition for the assignment of her interest in the land nor the order of the court made thereon contains any recital that Mrs. Bailer intended to waive, or had waived, her right to claim her homestead interest. Mrs. Bailer had the right therefore to occupy the entire tract as her homestead, and, in addition, she had the right to have one-third of the land set aside to her in fee as dower.

The state of the case therefore is that Robertson claims title under the deed of the .administrator conveying a part of the homestead, which was sold to pay debts during the lifetime of the widow, who had not waived here homestead right thereto. This sale was without authority and is void, and the court properly refused, upon Robertson’s prayer so to .do, to cancel the lease, as he would be entitled to this relief only upon the affirmative showing that he had such title to the land as entitled him to that relief, and this he has not done, as the deed under which he claims title is void. Ex parte Tipton, 123 Ark. 389..

The decree of the court is therefore affirmed.


text:
    Wilson v. Wilson.
    Opinion delivered March 24, 1924.
    1. Divorce — evidence as to husband’s property. — In a wife’s shit for divorce, evidence held not to support a finding that the husband had other personal property than what he took with him when he left the State to evade process in the suit which he knew she was about 'to bring against him.
    2. Divorce — fraudulent conveyance. — In a wife’s suit for divorce, evidence held to show that a conveyance fey the husband of a half interest in a lot, made in contemplation of such suit, was fraudulent iri so far as it affected her rights. '
    3. Divorce — disposition op husband’s property. — Where a husband, in contemplation of'his wife’s suit for divorce, fraudulently conveyed his land, and departed from the State, taking his personal property with him, the value of such property so taken should be considered in determining her share of his property, under Crawford & Moses’ Dig., § S511, and the same declared to be a lien on the land so fraudulently conveyed.
    Appeal from Garland Chancery Court; J. P. Henderson, ‘Chancellor;
    reversed.

      Martin, Wootton c& Martin, for appellant.
    A conveyance from a client to an attorney is not per se fraudulent, but is looked upon with suspicion and calls for strong evidence of its fairness. Bump on Fraud. Convy., § 67. The circumstances attending the transfer were unusual in many respects, and that is a badge of fraud. 27 C. J. 489-490; 27 Iowa 279. See also 27 C. J. 154; 32 111. 130; 133 Ark. 250. Dower should have been awarded in the personal property of appellee. Where a husband leaves the State, carrying with him his personal property, the wife may recover a judgment for one-third its value, and have a lien therefor upon the real estate of the husband. 143 Ark. 222; 151 Ark. 114. The situs of appellee’s personal property was Hot Springs. As-sustaining this contention see 2 Blackstone, 16; 25 Oh. St. 10; 41 La. Ann. 1015; 68 Ind. 247;. 131 Mass. 424; 75 Tex. 476; 1 Nev. 394; 100 U. S. 491; 12 Iowa 539; 16. L. R. A. 729; 78 Ark. 187; 106 Ark. 552; 94 Ark. 235; 105 Ark. 370; 126 Ark. 611; 55 L. ed. 762 (U. S.); L. R. A., 1915C, 903. Having shown the appellee was the owner of personal property of over $30,000 in value, the law presumes the ownership remains unchanged until the contrary is shown. 22 C. J. 90, 91; 25 Ark. 459; 131 U. S., 33 L. ed. 136; 7 Ark. 450; 22 Ark. 466; 34 Ark. 498; ■ 38 Ark. 181.

      Geo. P. Whittington, for appellee Geiíich.
    Appellee had the right to take the conveyance to himself from Wilson to protect his pre-existing debt. 65 Ark. 511; 67 Ark. 122; 42 Ark. 521.
   Smith, J.

Lulu Wilson and T. A. Wilson were married in this State on February 2, 1921, and on May 4,1922, she filed suit against him in the Garland Chancery Court for divorce and alimony. On July 12, 1922, she filed a second suit against her husband and Abraham L. Geilich, in which she alleged the pendency of her suit for divorce and alimony, and that her husband was the owner of an undivided half interest in a certain lot in the city of Hot Springs which he had fraudulently conveyed to Ms codefendant for the purpose of defeating her claim for alimony. Those cases were consolidated and tried together. Mr. Wilson filed no answer, but Mr. Geilich did, and, in his answer, admitted the conveyance to him, but denied that it was fraudulent, and alleged the fact to be that the deed was executed in payment of an outstanding indebtedness due-him from Wilson of $5,000, with an additional cash payment of $3,500, which last sum was paid by a check for $2,000 dated 4-28-1922, and a check for $1,500, date 5-11-1922.

The lot involved had belonged to Nathan Cohn, Mrs. Wilson’s father, who was suffering from cancer in an advanced stage at the time Mrs. Wilson married, and who died two weeks after the marriage. Cohn was a widower at the time of his death, and was survived by only two children, Mrs. Wilson being one, and her sister, Mrs. Oberdorfer, the other, who each inherited an undivided one-half interest. Wilson bought the undivided half interest of Mrs. Oberdorfer, and, by deed dated April 28, 1922, conveyed that interest to Geilich. Mrs. Wilson did not join in the execution of the deed, and this is the deed she attacks as having been executed for the fraudulent purpose of defeating her suit for her statutory interest in her husband’s property.

Mrs. Wilson alleged and attempted to prove that Wilson owned, in addition to the half interest in this lot, money and notes of the value of $32,000, and. she prayed that one-third thereof be assigned her upon a decree being rendered in her favor for divorce.

The court found that Mrs. Wilson was entitled to a divorce, and granted it. The court also found that the deed from Wilson to Geilich was a valid conveyance, but that it was made subject to Mrs. Wilson’s claim of dower, as she had not joined in the conveyance, and, having also found that the lot was not subject to partition, ordered it sold, and that the value of Mrs. Wilson’s-third interest for life be paid her out of the proceeds of the sale, but denied the prayer of the complaint that she be assigned an interest in the personal property, and from this decree Mrs. Wilson has appealed.

The testimony tending to-show that Mrs. Wilson was entitled to a divorce is fully abstracted, and appears to be amply sufficient to entitle her to a divorce, but we do not review this testimony, as there is no appeal from that part of the decree. Lance v. Mason, 151 Ark. 114.

Mrs. Wilson testified that her home was in Hot -Springs, and that she earned her living as a musician, and was employed as a pianist in -an orchestra and as organist at the Jewish Temple, and that appellant met her while she was so employed, and courted her with such ardor that she became convinced of the genuineness of his affection. He insisted that they be married -at once, and represented that he was a man of independent means and with an income sufficient to support her, without the necessity on her part of earning money by pursuit of her profession. According to her testimony, he gave her a list of secured notes which he owned, and she made a copy of this list at the time, which she made an exhibit to her deposition. He represented that he had other money, and owned real estate in New York, and that he also owned certain concessions at Coney Island from 'which he derived large sums -of money during the summer.

According to Mrs. Wilson’s testimony, her husband’s treatment of her was such that a separation was inevitable, and' she- threatened to sue for divorce and alimony some days before this suit was actually filed. On'May 8 she told her husband what she intended to do, and he said; “Your' divorce will not do you any good, because I have nut my nropertv here in my attbrnev O-eilich’s name.” Mrs. Wilson then said she would tell her attorney, and started to leave, but Wilson said, “Come on back; I was lying; I haven’t done any such thing.” She took him at Ms word, and did not go.

When Wilson obtained his deed from Mrs. Oberdorfer he wanted it executed in blank, with the grantee not named therein, but, when Mrs. Oberdorfer refused to execute the deed in that manner, Wilson’s name was inserted as grantee. Wilson testified that he desired this done, as he -contemplated filling in the name of his wife, but Mrs. Wilson insists that his plan was to have a deed that would serve the undisclosed purpose, which he then entertained, of putting the property beyond the reach of any claim she might assert against it.

It is insisted that Wilson, in fact, owned the notes and securities which he -claimed to own during his courtship. A strong circumstance is that this list embraced an accurate list of notes secured by mortgages on New York city property, and it appears that Wilson received remittances from New York shortly after the interest-paying periods- which corresponded exactly with the amounts of principal and interest due about the time these remittances were made. This is shown by the books of the bank in which Wilson deposited the remittances for collection for his own account.

It was shown, however, that these notes were secured by mortgages made to a Mrs. Tully, who resided in New York, at least one -of which was executed in 1920, before Wilson had even met Mrs. Wilson, and all the mortgages were executed before the institution of this suit, and the indebtedness secured by them corresponded with the list which Wilson had exhibited to Mrs. Wilson before their marriage, and Mrs. Tully testified that these mortgages and the indebtedness they secured belonged to her, and Wilson’s only connection with them had been as her -agent'.

The chancellor found that Wilson did not own these notes, and we are unable to say that finding is clearly against the preponderance of the evidence.

The testimony does show, however, that Wilson left Hot Springs hurriedly and without explanation to his wife, and it is fair to assume, and we find the fact to be, that he did so for the purpose of evading service of process in the suit which he knew his wife was about to file against him.

The testimony shows that, just before he left, he drew from the bank $1,825 which he had on deposit to his individual account, and that he drove out of Hot Springs in a new automobile, for which he had recently paid $3,000 in cash. The testimony leaves a strong impression that he had other money, but the testimony creating this impression is not sufficient to support that finding as a fact or to show the amount thereof.

The court found that the conveyance from Wilson to Geilich was' made in good faith for a valuable consideration, and refused to set it aside as having been executed in fraud of his wife’s demands against him.

A strong circumstance in support of this finding is that a check for $7,000 from Geilich to Wilson, offered in evidence, bore the date on which it passed through the clearing-house, and this date corresponded with the remittance of that amount made immediately after that time by the New York bank to the'bank in Hot 'Springs for the credit of the account of Wilson, and Wilson testified that the sum thus loaned him by Geilich was used in paying for the half interest in the lot which he bought from Mrs. Oberdorfer. Both Wilson and Geilich testified that Wilson repaid $2,000 of this loan, and that this interest in the lot was conveyed to Geilich in satisfaction of this debt, the additional consideration of $3,500 being paid as hereinbefore stated.

There is no explanation of this $7,000 transaction, except that offered by Wilson and Geilich, and, if their testimony is accepted as true, the deed was not fraudulent, and it operated to convey to Geilich the title to this half interest, subject, of course, to Mrs. Wilson’s inchoate right of dower, which was not relinquished. .

It must be remembered, however, that no one except Wilson and Geilich could explain this transaction, and it was to their interest to uphold it, and we do not accept their explanation,

The testimony shows that Wilson and Geilich were close friends, and that Geilich was Wilson’s attorney. It does not appear that Geilich took any security for his alleged loan to Wilson, or that he collected any interest on it, or that he attempted to collect any rent on the property which he claims to have bought, until after he was made a party to this litigation. Geilich does not claim to have made any investigation as to the value of or title to the property, except the statements of Wilson in regard thereto.

Wilson paid $8,500 for the property, and claims to have sold it to Geilich for that amount, although the conveyance to him was from a married man whose wife did not relinquish her dower. Geilich testified that he did not know Wilson was married, and that Wilson came into his office with a lady, who was introduced to him by Wilson as Miss Cohn. Mrs. Wilson admitted that this incident occurred and that she was the lady thus introduced, and that 'Cohn was her maiden name. She testified that she did not know why her husband did this, that she demanded an explanation of him as 'Soon as they left Geilich’s office, and that he made an explanation which was far from satisfactory.

Wilson’s deposition was taken on interrogatories, and he refused to answer a number of cross-interrogatories in regard to his private and past life, the answers to which might have been very elucidating.

Geilich testified that he relied upon Wilson’s reprer sentations as to the title and value and his promise to hold him harmless in both respects. The deed to Geilich does bear the same date as the first check which Geilich claims he gave Wilson as purchase money, but this check, with the indebtedness claimed to be due Geilich, did not equal the consideration recited in the deed as having been fully paid, and the $1,500 check was dated some days later.

The deed to Geilich was not sent by him to the recorder for record. On the contrary, Wilson brought it with him from New York, and admits that he filed it for record himself, but says he did so pursuant to his promise to Geilich to place it of record in Hot Springs.

It is true this deed was executed before the institution of this suit, but Wilson knew before its execution that the suit would soon be brought. The testimony shows that Wilson inquired whether, under the laws of this State, a man could 'Sell his wife’s interest in land. He did not make this inquiry personally, but had a friend to advise with an attorney on that subject.

Mrs. Wilson testified that she read a letter to her husband from Geilich, in which the latter referred to an indebtedness he then owed Wilson in the sum of a thousand dollars, and this letter was written at a time when, according to the evidence of Wilson and Geilich, the former had not paid his indebtedness to the latter. Moreover, this indebtedness of a thousand dollars was included in the list of assets which Wilson represented that he owned at the time this list was submitted.

Mrs. Roach, who was Mrs. Wilson’s neighbor and confidant during the time Mrs. Wilson’s marital infelicity was reaching its climax, testified that Mrs. Wilson showed her a letter which Wilson had received from Geilich, containing a blank deed,-and the latter stated that it was inclosed as per directions to that effect.

We think it is very 'dear that Wilson had determined to desert his wife some time before he finally did so, and that he intended to defeat any claim on her part to any portion of his property. The difficult question is as to what extent Geilich participated in the furtherance of that purpose.

We think the testimony shows that Geilich knew what Wilson was attempting to do. The $3,500 which he claims to have paid in cash was paid for a deed which he knew did not eontaiii a relinquishment of the wife’s dower. Geilich was not only Wilson’s attorney, but he was his close friend and associate, and it is our conclusion that the execution of the deed from Wilson was a collusive act to defeat Mrs. Wilson’s suit.

As has been said, the court decreed Mrs. Wilson a third interest in the half interest for life, she being- the owner of the other half interest in fee,. but the court refused to make any allowance on account of the personalty.

We have concluded that the testimony does not sufficiently show that Wilson was the owner of the securities covered by the list which Mrs. Wilson made an exhibit to her deposition. But we do find that the testimony shows that Wilson took with him, when he left this State, an automobile worth $3,000 and $1,825 in money, .and that he left and took this property with him to defeat the jurisdiction of the courts of this State in regard thereto. This finding brings this property within the ruie announced in the case of Austin v. Austin, 143 Ark. 220.

Mrs. Wilson is entitled therefore to have the value of the property thus taken out of the State, $4,825, taken into account in determining what allowance on account of the personal property should be made her under % 3511, C. & M. Digest, which is one-third, and amounts lo $1,608.35, and this sum is declared to be a lien on Wilson’s interest in the lot.

It is therefore ordered that the decree of the court below be reversed in so far as it disposes of the property involved, and the court below is directed to enter a decree declaring the deed from Wilson to G-eilich fraudulent in so far as it affects Mrs. Wilson’s rights, and that, from the proceeds of the sale which has been ordered, there shall be paid Mrs. Wilson, in addition to the value of her third interest for life in the land, the sum of $1,608.35.


author: Humphreys, J.

text:
    Lawson v. Road Improvement District No. 7.
    Opinion delivered March 24, 1924.
    1. Highways — liability of road district for torts. — Under Road Laws 1919, N,o. 292, creating Road Improvement District No. 7 of Little River County, such district is exempt from liability for torts, such as entering and appropriating land for construction of a road before it was declared a public road by the county court.
    2. Principal and agent — proof of agency by agent’s declaration. Agency cannot be established by the agent’s declaration.
    3. Principal and agent — evidence of agency. — In an action against a road improvement district for damages from construction of a road across plaintiff’s farm, evidence held sufficient to show that persons who offered to accept a stated sum in full settlement of plaintiff’s claim were his agents.
    4. Principal and agent — ratification.—A principal accepting the benefits of unauthorized acts of a reputed agent cannot after-wards deny his agency.
    5. Principal and agent — ratification.—Testimony that one suing for damages from construction of a road across his land never complained to the witness of what took place at a citizens’ meeting, at which an offer of settlement by persons claiming to' represent plaintiff was accepted, held admissible as tending to show ratification of their acts.
    6. Principal and agent — evidence of agency. — Testimony that an offer of a purported agent of a landowner, claiming damages from construction of a road across his land, to accept a certain sum in settlement of the claim, induced the witness to contribute to a fund raised for such purpose, together with proof of such landowner’s acceptance of such contribution, held admissible as tending to show that such purported agent was the landowner’s representative.
    7. Eminent domain — right to damages from construction of road. — A landowner may claim damages from construction of a road across his land, though he petitioned therefor.
    8. Appeal and error — harmless error. — In an action against a road improvement district for damages from construction of a road across plaintiff’s land, introduction of the petition for the road, which was signed by plaintiff, was not prejudicial error, where the court instructed . the jury to find for the plaintiff, unless he settled the claim as contended by defendant.
    Appeal from Little Biver Circuit Court; B. E. Isbell, Judge;
    affirmed.

      Lake & Lake and A. D. DwLcmey, for appellant.
    Appellee entered upon and appropriated the land in question without authority, as the entry was made before the county court made a proper order declaring the route selected to be a public road, and the order made was void for indefiniteness in description of the route. 66 Ark. 292; 29 C. J. 462; 135 Ark. 547. In taking more than a strip 50 feet in width, the district was a trespasser. 145 Ark. 578. Appellant’s instruction No. 1 should have been given. It is error to submit to the jury the determination of questions about which there is no dispute. 90 Ark. 439. Instruction No. 2, requested, should have been given. No novation was effected by what transpired at the citizens’ meeting, because appellee was not a party to the proceedings and had nothing to do with the meeting; appellant did not agree to release appellee from liability; that the promise of the citizens to pay was conditional. See 29 Cyc. 1136'; 125 Ark. 7; 147 Ark. 530. Appellant was not represented at this meeting, and was not a party to it. The authority of an agent cannot be established by his own declarations. 96 Ark. 505; 105 Ark. 446; 131 Ark. 197; 159 Ark. 109.

      Otis T. Gilleylen, for appellee.'
    The road was laid out in accordance with the petition signed by appellant, and he is therefore not damaged. 145 Ark. 578. If any one was liable for taking the property of the appellant, it was the county court, and he had his proper remedy. 134 Ark. 121; 110 Ark. 416. . Improvement districts nor its commissioners are liable for torts. 94 Ark. 380; 110 Ark. 416. When a principal accepts benefits accruing from the unauthorized agency of another, he cannot be heard to deny the agency. 124 Ark. 360. Especially is this true where no offer has been made to return the benefits. 28 Ark. 59; 29 Ark. 131; 55 Ark. 240; 114 Ark. 9; 31 Cyc. 1257. By retaining a part of the benefits he ratified the entire contract. 54 Ark. 220; 35 S. W. 444.
   Humphreys, J.

Appellant instituted' this suit against appellee in the circuit court of Little River County to recover damages in the sum of $1,850 on account of the .construction of .a lateral road across his farm. Appellee is a road improvement district created by act No. 292 of the special session of the General Assembly of the State of Arkansas for the year 1919, for the purpose of constructing roads and laterals in Little River County. It is alleged that, in constructing a lateral extending from Greenwood Shoals to a connection of the public road leading from Morris’ Ferry to Foreman, appellees wrongfully and unlawfully entered and appropriated a strip of land ranging from ninety-seven to two hundred feet in width across an eighty-acre farm owned by him; that it constructed a dump on the land appropriated, about twelve to fifteen feet high, thereby cutting him off from access to his crops and land, and in order to drain borrow-pits made by it negligently through a high'embankment which protected appellee’s land from high waters flowing through an adjacent lake; that it tore down his fences, and permitted cattle to enter, destroy his corn, and trample over his land; that the Various items of damage, including the value of the land appropriated, amounted to $1,850.

Appellee filed an answer, admitting’ its creation under said act of the General Assembly, but denying other allegations of the complaint, and, by way of affirmative defense, alleged:

That appellant and other property owners in the road improvement district petitioned appellee to construct a lateral along the route selected.

That, pursuant to the provisions of the act, appellant’s lands were duly assessed by the commissioners of the district with reference to the benefits and damages they would sustain by reason of the construction of said literal, and appellant failed to file a suit in the chancery court within the time allowed to question the findings of the commissioners.

That said route Was established as'a public road by the county court on the 17th day of'December, 1920,-upón the- petition of appellant and other property owners in the district.

That appellant presented a claim of $3,000 to the commissioners for crossing his land, and was advised that appellee would abandon the construction of the lateral unless.same was withdrawn, whereupon L. O. Shull a.nd others offered to pay him $1,250 in full of all items of damage contained in his complaint, which offer was accepted; that, in keeping with said offer and acceptance, Shull and others paid him $662.50 and were given time in which to pay the balance; that, when advised of the settlement, appellee proceeded with the construction of the lateral.

Th;at said commissioners, in their official capacity, contracted with C. A. Reese. & -Company to construct said lateral, and had no control -or direction in the construction thereof.

The cause proceeded to a hearing upon the pleadings, testimony, and instructions of the court, which resulted in a verdict and judgment for appellee, from which is this appeal.

At the conclusion of the testimony, appellant requested an instructed verdict upon the alleged ground that the undisputed evidence showed that appellee constructed a lateral across his farm without authority, and that he did not settle his claim for damages with Shull and others. Appellant contends for a reversal of the judgment because the-court refused to grant his request. In support of the contention it is argued, first, that the appellee entered upon the lands of appellant and partially constructed a dump before the county court of Little River -County made an order changing the route and declaring the route selected a public road; second, that the order made was void on account of the indefiniteness in description of the route; and third, that it was not relieved from liability as a trespasser on account of the purported settlement with L. O. Shull and others.

(1, 2). It is unnecessary to set out the order of the county court, the description of, the route .contained therein, and the testimony relative to entry and appropriation of the land, because the court,-in submitting the case to the jury, instructed them to find for the appellant if the entry upon and appropriation of the land preceded in point of time the order of the county court changing the route and designating the route selected as a public road, unless they found that appellant had settled his claim for damages with L. O. Shull and others. The instruction given by the court was more favorable than appellant was entitled to, in that appellant was permitted to recover from appellee for a tort. Under the provisions of the act creating appellee district appellee was exempt from liability for torts. It had no money, and could raise none by the levy of assessments out of which a judgment for tort could be paid. Bd. of Imp. of Sewer Dist. No. 2 v. Moreland, 94 Ark. 380; Wood v. Drainage Dist. No. 2, Conway County, 110 Ark. 416.

(3) The undisputed evidence does not show, as-argued by appellant, that he was not bound by the settlement for damages on account of the construction of the road across his farm made by J. S. Lake and W. W. Milwee -with L. O. Shull and other citizens of Horatio and DeQueen. The testimony introduced by appellee showed that, when appellant made a claim for damages to it for crossing his land in constructing the lateral, the commissioners of the district decided to abandon the construction from Greenwood Shoals to the connection with the public road leading from Morris ’ Ferry to Foreman, unless appellant would waive any claim for damages on account.of the construction of the road across his land. At the suggestion of L. O. Shull, citizens of Horatio and DeQueen met in a public meeting for the purpose of adjusting appellant’s claim for damages and raising enough money by subscriptions to pay same, so that appellee might be prevailed upon to proceed with the construction of the lateral; that, at the meeting, W. W. Milwee and J. S. Lake claimed to represent appellant, and offered to accept $1,250 in full settlement of all damages sustained by him on account of the construction of the road; that the citizens -of Horatio and DeQueen accepted the offer and subscribed the amount; that $662.50 of the amount was deposited in the bank to the credit of appellant, who accepted same; that the subscribers were given time to pay the balance; that, after the settlement, the contractors proceeded to build the road.

It is conceded that the subscriptions were made and that appellant received $662.50 in cash, but the claim is made that the mere declaration of ¡W. W. Milwee and J. S. Lake to the fact that they represented appellant at the meeting was insufficient to establish agency or authority to represent him. It is true that agency cannot be established by the agent’s declaration (Vaughan v. Hinkle, 131 Ark. 197), but there was other testimony besides the declarations of these gentlemen from which the jury might, reasonably infer that they had authority to represent appellant in the meeting. Appellant himself testified as follows:

“Q. Did W-. W. Milwee, who lives in Horatio, at any time, and does he now, represent you in connection with this claim of yours for damages as set up in your complaint? Did he ever have authority to talk or speak for you? A. Yes sir. Q. And Judge Lake likewise has had authority to speak for you at any time he may have spoken? A. Yes sir, after I— Q. After you employed him? A. Yes sir.”

J. S. Lake testified: “A few days before this meeting was held (speaking of the meeting of the citizens of Horatio on December 21, 1920), Mr. Lawson had been to DeQueen to employ me to collect his claim, or to represent him in his claim against this road improvement district for going across his land. * * * I wrote to Mr. Livesay, .who was the attorney for-the district, explaining to him what Mr. Lawson’s claim was, and Mr. Live-say has that letter now, if he hasn’t lost or destroyed it. * * * On the 8th of December I received a reply from Mr. Livesay.”

The meeting was public, and for the purpose of raising a fund with which to pay appellant’s damages. Appellant afterwards accepted a part of the fund which was raised for his benefit. These facts, when considered with all the other testimony in the case, were strong circumstances tending to show that W. W. Milwee and J. S. Lake were representatives of appellant at the meeting.

Aside from this, the acceptance of a part of the fund which was raised for his benefit tended to show that he ratified the contract made by W. W. Milwee and J. S. Lake for him. A principal who accepts the benefits of the unauthorized acts of a reputed agent cannot after-wards be heard to deny the agency. Daniels v. Brodie, 54 Ark. 220; Coffin v. Planters Cotton Co., 124 Ark. 360; Froug, Smulian & Co. v. Outcault Advertising Co., 114 Ark. 9.

Appellant next contends for a reversal of the judgment because the court admitted the testimony of G. B. Pride and Henry Pride. G. B. Pride testified that appellant never complained to him of what transpired at the citizens’ meeting. This statement was admissible as a circumstance tending to show ratification of the acts of W. W. Milwee and J. S. Lake in settling the damages of appellant. Henry Pride testified that W. W. Milwee’s testimony induced him to contribute to the fund and settle appellant’s claim for damages. This testimony, considered in connection with the fact that appellant accepted a part of the contribution, tended to show that W. W. Milwee was a representative of appellant in the meeting. Appellant’s next and last contention for a reversal of the judgment is that the court erred in permitting appellee to introduce in evidence the petition presented to appellee, on which appellant’s name appeared, for constructing the lateral. It is true that appellant could petition for the road and still claim any damages he might sustain in the construction thereof, but no prejudicial error resulted from the introduction of the petition, as the court instructed the jury to find for the appellant unless he settled his claim for damages with Shull and others.

. No error appearing, the judgment is affirmed.


text:
    Looney v. Potts.
    Opinion delivered March 24, 1924.
    Fraud — burden op proof. — -A suit to recover a sum alleged to have been obtained fraudulently by procuring plaintiff, who could not read, to sign a check for more than the intended amount, was not a suit on the check, but for deceit, and the burden of proof was on the plaintiff, under Crawford & Moses’ Dig., § 4113, placing the burden of proof “on the party who would be defeated if no evidence were given on either side.”
    Appeal from Benton 'Circuit Court; W. A. Dickson, Judge;
    reversed.

      Duty & Duty, for appellant..
    The money is alleged to have been received through fraud and false- pretenses; the burden of proof was on the plaintiff to show that the money was received by defendant and that he was entitled to recover. 11 Ark. 270. Fraud will never be presumed, and the burden is upon him who alleges it to prove it. 92 Ark. 509; 108 Ark. 415; 149 S. W. 1170; 167 M)o. App. 252; and it is error to hold that the burden is on defendant. 165 S. W. 315. In such case the burden is on plaintiff to show an implied promise to repay. 145 N. W. 932; 63 Atl. 392. Whether the action be in tort or upon an implied contract, the burden is on the plaintiff to show the fraud or deceit. 140 Ark. 509; 6 Fed. 852;' 141 Fed. 209; 73 Ark. 561; Bliss on-Code Pleading, § 15.

      J. Wythe Walker, for appellee.
    While the burden is on the plaintiff to establish the issue upon which he relies for recovery, it is also upon the defendant to establish his defense. 232 S. W. 572. Where the execution of a note is admitted, but fraud is alleged as a defense, the burden is on the defendant to establish that fact. 82 Ark. 331; 131 Ark. 299. The burden is on the party holding the affirmative. 107 Ark. 462; 121 Ark. 439; 119 Ark. 179; 124 Ark. 244. The burden is upon him who would be defeated if no evidence were given on either side.* 95 Ark. 593; 119 Ark. 175. Where the defense is that the account sued on has been paid, the burden is on defendant. 11 Ark. 442; 16 Ark. 243; 32 Ark. 593; 19 N. J. Eq. 164; 34 Ala. 86; 35 N. H. 474; 17 Cal. 569. In actions for money had and received, equitable principles apply. 59 Am. Dec. 751. Under the circumstances of this case, no presumption of the payment of the debt could arise from the delivery of the ■check. Ann. Cas. 1913D, 1203.
   Humphreys, J.

This is a suit for money alleged to have been obtained by appellants from appellee, through deceit and fraud, by writing a. check for $125 more than was intended. It was alleged that appellee could not read, but had learned to write his name; that he loaned appellants $350, for which .amount they executed a note to him, and he, not being able to write, requested J. W. Looney, to draw a cheek for the amount, which he signed, thinking it was drawn for$350; that, several months thereafter, he had his bank book balanced, and discovered that the check had been drawn for $475.

Appellants filed an answer denying that the check was drawn for more than intended, but alleging that it was drawn as directed by appellee to cover the loan of $350 and an item of $125 in cash which was advanced at the time by appellants to appellee.

The cause was submitted to the court, sitting as a jury, upon the pleadings and testimony, which resulted in a special finding that- the testimony introduced by the respective parties responsive to the issue joined was equally balanced, and a declaration of law that, while the burden of the whole case rested upon appellee, the burden shifted to appellants to show payment of the check when they admitted that they had received a check for the amount of $475. Being guided by this declaration of law, the court rendered a judgment against appellants for the amount claimed, from which is this appeal.

In maldng the declaration of law as to where the burden of proof rested, which served as. a guide in reaching the verdict, the court confused the gist of this suit, which was for deceit and fraud, with a suit for debt and plea of payment. This was not a suit upon a. check to which a plea of payment had been interposed, but was a suit by appellee against appellants to recover $125 alleged to have been obtained through their deceit and fraud. This character of case comes within the, statute which places the burden of proof “on the party who would be defeated if no evidence were given on either side.” Section 4113 of Crawford & Moses’ Digest.

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


author: McCulloch, C. J.

text:
    Cooper v. Hogan.
    Opinion delivered March 31, 1924.
    1. Municipal corporations — improvement districts — unity.—The statutes relating to the organization of municipal improvement districts contemplate that each improvement shall constitute a single project, and that wholly disconnected improvements cannot be joined in one district.
    2. Municipal corporations — conclusiveness of decision of council. — The determination of a city council in including property in an improvement ■ district as to the singleness and unity of the improvement project, as well as the selection of the property to be benefited thereby, is conclusive except for fraud or demonstrable mistake.
    S. Municipal corporations, — unity of improvement. — An ordinance creating a paving district which grouped together streets connected by means of other streets already improved through the agency of 'other paving' districts, held not invalid on its face ■ for lack of unity in the proposed improvement.
    Appeal from Mississippi Chancery Court; J. M. Futrell, Chancellor;
    affirmed.

      Max B. Reid, for appellants.
    The paving district is void because the portions of streets to be improved are so widely scattered that they cannot constitute a single district. The map exhibited with the complaint, as well as the evidence, discloses the fact that the district is not a district locality, but a series 'of special groups or separated portions of streets to toe improved. Constitution, art. 19, § 27; 52 Ark. 107; 39 Sí WV 660; 84 Ark. 257.

      Frank M. Douglas, Bose, Hemingway, Cantrell & Loughborough, for appellees.
    1. It is settled by tbe decisions of this court (1), that property adjoining tlie locality to be affected is any property adjoining or near the improvement which is physically affected, or the value of which is commercially affected, directly by the improvement, in some degree in excess of the effect upon the property in the city generally; and (2), that the action of the city council, in including property in an improvement district is conclusive of the fact that it is adjoining the locality to be affected, except when attacked for fraud or demonstrable mistake. 126 Ark. 172; 5'2 Ark. 107; 70 Ark. 451; 84 Ark. 257.
    2. It is no longer open to question that the system of streets in question constitutes a single improvement. 150 Ark. 127; 135 Ark. 524; 125 Ark. 325; 137 Ark. 354; 139 Ark. 595; 138 Ark. 549; 142 Ark. 552; 144 Ark. 46.
   McCulloch, C. J.

Appellees are the commissioners of a street paving district, designated as Paving District No. 2 of Blytheville, Arkansas, organized under the general statutes (Crawford & Moses’ Digest, § 5647 et seq.) for the purpose of paving certain designated streets; and appellants are the owners of real property within the boundaries of the district, which embraces the whole of the city of Blytheville. There are several streets and parts of streets to be paved through the agency of this district, and some of them are not connected with each other. It appears, however, from the plats and other portions of the record that all of the streets to be paved are connected together by other streets improved in like manner through the agency of other districts. It appears from the plat and from other portions of the record that all of the streets in a large portion of the city of Blythe-ville, including practically all of the business part of the city, have been paved through the agency of another district, and that the streets to be paved in the district now under consideration, though disconnected from each other, are connected up with the other paved streets, and, when all of the improvements are completed, it will constitute a solid area of paved streets in the city.

Appellants instituted this action in the chancery court against appellees to restrain the proceedings on the sole ground that the organization of the district is void (quoting from the complaint) “because the portions of streets to be improved are so widely scattered that they cannot constitute a single district. ’ ’ The validity of the ordinance is not assailed in any other respect, and the question of the amount or validity of the assessment of benefits is not involved. In other words, it is conceded that all of the statutory formalities with respect to the organization of the district have been complied with, and the attack is upon the face of the proceedings and on the ground mentioned above. We have therefore the single question whether or not the organization, on its face, purports to provide for the construction of disconnected projects without real unity, so that the real property in the city will be assessed in the same proportion for separate and distinct improvements.

It may be said, in the beginning, that our statutes on this subject contemplate the organization of districts to construct improvements which constitute single projects, and wholly disconnected improvements cannot be joined together in one district. This is so because special taxation for local improvements must be based upon special benefits to be derived from the construction of the improvement, and property in a given locality cannot be taxed for benefits confined to property in another locality — the benefits must result to the property to be taxed. Swepston v. Avery, 118 Ark. 294. However, this court laid down the rule many years ago that “the action of a city council in including property in an improvement district is, except when attacked for fraud or demonstrable mistake, conclusive of the fact that such property is ‘adjoining the locality to be affected’ by the improvement, within the meaning of the Constitution.” Little Rock v. Katzenstein, 52 Ark. 107. This rule necessarily implies that the determination of the city council as to the singleness and unity of the project, as well as the selection of the property to be benefited thereby, is conclusive, except for fraud or demonstrable mistake. The rule has been thus applied and followed in numerous later decisions of the court. Matthews v. Kimball, 70 Ark. 451; Board of Improvement v. Offenhauser, 84 Ark. 257; Freese v. Improvement District, 126 Ark. 172; Bennett v. Johnson, 130 Ark. 507; Tarvin v. Road Imp, Dist. No. 1 of Perry County, 137 Ark. 354; Van Dyke v. Mack, 139 Ark. 524; Booe v. Sims, 139 Ark. 595; Easley v. Patterson, 142 Ark. 52; Johns v. Road Imp. Districts of Bradley Co., 142 Ark. 73; White v. Ark. & Mo. Highway Dist., 147 Ark. 160; Arkansas Foundry Co. v. Stanley, 150 Ark. 127. The same principle was conversely applied in the case of Bottrell v. Hollipeter, 135 Ark. 315, where we held that the action of the city council in separating projects into different districts, which might in some respects appear to be single, was conclusive, in the absence of demonstrable mistake. Applying that rule to the present case, it cannot be said that the action of the city council in grouping together into a single district. the improvement of the streets designated in the organization of this district is invalid. In other words, lack of unity in the project is not so apparent as to manifest a demonstrable mistake which renders the organization of the district void.

The enlargement of the area of improved territory, which is to be accomplished by adding the improvement of the streets included in the present district, and the fact that the new improvement now contemplated will be connected together by other improved streets, presents a situation which fails to demonstrate a mistake in joining together the different parts of this improvement as a single one. The situation is one, rather, which the city council might, or might not, have treated as containing either a single or as several separate projects, according to the judgment of the members of the council, and the determination of the council should not, under those circumstances, be disregarded by the court as an arbitrary and demonstrable mistake.

We are not dealing- now with the question of assessment of benefits, for that must be dealt with in the manner prescribed by statute, where many considerations may be included, such as the proximity to streets to be improved, the fact that property has already been taxed to pay for improvement of intervening streets, as well as other things which affect the question of amount of benefits and uniformity of taxation.

Our conclusion therefore is that the chancery court was correct in its decree, aud the same is affirmed.

Wood and EArt, JJ., dissent.


text:
    Parnell v. State.
    Opinion delivered March 31, 1924.
    1. Criminal law — remarks of prosecuting attorney. — In a prosecution for selling intoxicating liquors, remarks of the prosecuting attorney calling the jury’s attention to other indictments against the accused, having no relevancy to the case, were prejudicial.
    2. Witnesses — impeachment.—It was error to permit the prosecuting attorney to question defendant on cross-examination concerning his being arrested on other charges.
    Appeal from Jefferson Circuit Court; T. G. Parham, Judge;

    reversed.

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

This is an appeal from a judgment of conviction under an indictment charging appellant with the crime of selling intoxicating liquor. There has been no brief filed on behalf of appellant, but the Attorney General confesses error on two grounds, and, if we sustain the confession of error, it is only necessary to discuss those two assignments.

One of these assignments -relates to a part of the opening statement of the prosecuting attorney, which is as follows:

“I feel lite you ought to know, gentlemen, that, at the time this defendant was tried before, a number of cases of burglary and grand larceny and one whiskey case was by me nolle prossed on an agreement with him and with his people; and he entered his plea of guilty, and he was sentenced in one case, and his plea was received in the other oases, and the case continued during good behavior. The case is in this attitude: He entered his plea of guilty to burglary and grand larceny in one case, and to other cases, and to one case of selling whiskey, and at the time no record was made, and the cases were nolle prossed. He had been out of the penitentiary, after serving four or five months, and was on parol, when he got mixed up in the whiskey business again, and was sent back to the penitentiary and served some more time. After serving that, he came back, and was not here long before this transaction took place about which we are trying him. That is a matter of record.”

Counsel for appellant objected to this statement at the time it was made, and asked the court to admonish the jury not to consider it, but the court overruled the objection, and an exception was saved.

These remarks of the prosecuting attorney had no relevancy to the'issues to be tried concerning the guilt or innocence of the defendant, and the only effect they could have had upon the jury was to bring to their attention the other indictments against appellant. The prejudicial effect was obvious. The prosecuting attorney had the right, if appellant saw fit to take the stand as a witness in his own behalf, to interrogate him concerning conviction of crime which might affect his. credibility as a witness, but the officer had no right to introduce independent proof of those facts, and, on the contrary, was bound by appellant’s answers: This is ••so, even as to convictions, and as to mere indictments for crime it would not have been proper to ask appellants concerning them. At any rate, the prosecuting attorney bad no right to narrate before the jury other charges against appellant.

The next assignment relates to the ruling of the court in permitting the prosecuting attorney to interrogate appellant, on cross-examination, concerning arrests on other charges. This was done over the objection of appellant, and exceptions were duly saved. We have frequently held that it is improper to permit a witness to he interrogated concerning mere accusations, or indictments for crime. There are so many of those decisions that it is unnecessary to cite any of them in support of this statement of the law.

The judgment is therefore reversed, and the cause remanded for a new trial.


text:
    Missouri Pacific Railroad Company v. American Fruit Growers, Inc.
    Opinion delivered March 31, 1924.
    1. Carriers — liability for damage to goods. — In the absence of an express stipulation in the contract to the contrary, a common carrier is responsible as insurer of goods received for shipment against all loss or damage, except such as is caused by the act of God, or the public enemy, or from inherent defects in the commodity shipped.
    2. Carriers — duty as to perishable goods. — When a carrier holds itself out as proposing to provide means of preserving perishable goods, it must exercise ordinary care' in the adoption of such means of transportation and in furnishing such equipment as will accomplish the purpose.
    3. Carriers — damage in transit — presumption.-—In the absence of proof to the contrary, damage to goods in transit is presumed to have occurred on the line of the delivering carrier; and this rule is not changed by the Federal statute making the initial carrier liable for an injury occurring over a connecting line of railroad.
    4. Appeal and error — harmless error. — One may not complain of a correct instruction which conflicted with one given at his request, and which was more favorable to him than he was entitled to.

      ' 5. Carriers — duty to ice perishable fruit — instruction.—In an action against a connecting carrier for damages to carloads of peaches caused by failure to ice the fruit properly, defendant was not entitled to an instruction that there was no duty to ice the cars before the shipment reached its first regular icing station, since there might have been an emergency requiring the cars to he re-iced before reaching that station.
    Appeal from Howard Circuit Court; B. E. Isbell, Judge;
    affirmed.

      E. B. Kinsworthy, R. E. Wiley, for appellant.
    Carriers are not obligated to furnish any special or protective service which is not specifically authorized by the tariffs filed with the Interstate Commerce Commission. There is a conclusive presumption of law that the contents of these schedules are known to and binding upon the shippers as well as the carriers. 240 H. S. 632, 60 L. ed. 632; 233 U. S. 173 (58 L. ed. 901); 241 U. S. 197 (60 L. ed. 948); 233 IJ. S. 97. The burden of proving negligence on the part of the appellant was upon the appellee. Elliott on Railroads, § 1516; 174 S. W. 714. Proof that the peaches were in good condition when shipped and in a damaged condition when delivered, does not prove negligence. Under the Carmack Amendment, the rights and liabilities of the parties are governed by the acts of Congress. 241 U. S. 319 (60 L. ed. 1022); 240 U. S, 34 (60 L. ed.-511); 249 U. S. 186 (63 L. ed. 552). On a claim based on negligence the plaintiff has the burden of proving negligence. 12 Howard 272; 11 Wallace 129; 10 Wallace 176; 222 N. Y. 198; 116 Atl. 245; 110 N. W. 897. It was incumbent- upon appellee to show that the icing and handling* provided by the regulations fell short of ordinary care and constituted neglect. Ill Ark. 196; 174 S. W. 714. The instructions given by the court on the burden of proof were conflicting, and- constituted reversible error. 94 Ark. 282; 88 Ark. 550; 87 Ark. 364.

      W. P. Feazel, for appellee.
    The law presumes the delivering* carrier to be the negligent one in the absence of a showing as to when and where the damage occurred. 86 Ark. 484; 73 Ark. 112; 118 Ark. 73. A carrier is responsible as an insurer except in certain specific instances, and the burden is on the carrier to show that the loss or damage fell within the exceptions. 100 Ark. 269; 118 Ark. 400; 150 Ark. 307; 117 Ark. 451; 100 Ark. 37; 35 Ark. 402; 147 Ark. 109. The .same rule obtains in the Federal Supreme Court. 226 U. S. 491 (33 S. Ct. 148); and is not changed or modified by the Carmack Amendment. 241 IJ. S. 319 (36 S. Ct. 555). Where the plaintiff, in an action under the Carmack Amendment, shows the merchandise was delivered to the initial carrier in good condition and. delivered to the consignee in damaged condition, he has made a prima facie case. Roberts, Fed. Liabilities of Carriers, § 340; 233 IT. S. 481 (32 S. Ct. 205).
   McCulloch, C. J.

This is an action instituted by appellee, a corporation, against appellant railway company, to recover compensation for damage to three carloads of peaches transported over appellant’s railroad from Nashville, Arkansas, to St. Louis, it being alleged that the damage was caused by delay and by failure to properly ice the fruit, which was shipped in refrigerator cars.

The shipment of each of the cars originated on the line of the Memphis, Dallas & Gulf Railroad Company, and was delivered to appellant as its connecting carrier at Nashville, Arkansas, and the transportation -and delivery were completed by appellant. One of the cars was shipped from Tokio on July 6, 1921, and the consignment reached St. Louis on July 7, 1921; another car was shipped from Tokio on July 16, 1921, and arrived at St. Louis on July 19; and the other car was shipped from Murfreesboro, Arkansas, on July 16, 1921, and arrived at St. Louis on July 19.

It is alleged in the complaint, and the proof tends to show, that the fruit, in good condition, was properly packed and loaded into iced refrigerator cars and delivered to appellant by the initial carrier at Nashville, but that, when the fruit arrived in St. Louis, it was soft, over-ripe, and unmerchantable, and had to be sold at g'reatly reduced prices. Appellee proved by witnesses who examined the fruit in St. Louis that the temperature in the cars was not sufficient to preserve the fruit, and that the damage had resulted from failure to keep the cars properly iced. Witnesses testified that the temperature of the cars was 58 degrees at the top and *48 degrees at the bottom, and that peaches would not be protected from deterioration at a temperature above 48 degrees — some of the witnesses said not above 45 degrees.

Appellant denied that it failed to transport the cars of fruit expeditiously or failed to keep them properly iced, alleging, on the contrary, that it re-iced the cars of fruit at all regular icing stations. It was proved by appellant that its regular icing station nearest to Nashville was at Gurdon, which is on the main line and about sixty miles distant from Nashville. Appellant introduced testimony to the effect that, when the cars reached Gurdon, they had a supply of ice in the bunkers, and were properly re-iced at that place, and again re-iced at other regular icing stations between there and St. Louis. Appellant also introduced proof tending to show that the deterioration of the fruit was caused by disease known as brown rot, -and not from any lack of refrigeration.

Appellee introduced testimony in rebuttal tending to show that the fruit in question did not have this disease, and showed no evidence of it, and that the damage was caused entirely by lack of refrigeration.

The verdict of the jury was in favor of appellee.

It is earnestly insisted by counsel for appellant that the evidence on the vital issues in the case is undisputed, and that the verdict is not supported by any substantial evidence. We cannot agree with that contention, for we think that the evidence showing the condition of the fruit .when it arrived in St. Louis, together with the expert testimony of witnesses who were familiar with fruit shipments, was sufficient to warrant the finding that the fruit, if in good condition when shipped and properly iced, was damaged on account of failure to keep the cars properly iced; and there was other testimony adduced to the effect that the fruit was in good condition, free from disease, and was properly packed when loaded into the refrigerator cars at points of shipment. The witnesses introduced by appellant testified positively as to the re-icing of the cars, and there was no direct contradiction of this testimony, but the other testimony as to the condition the fruit was in when shipped and when received in St. Louis, together with the testimony of the expert witnesses, necessarily constituted a contradiction of the testimony of those witnesses who stated that the cars were properly iced.

The law is well settled that a common carrier, in the absence of an express stipulation in the contract to the contrary, is responsible as insurer of goods received for shipment ag’ainst all loss or damage, except such as is caused by the act of God or the public enemy, or from inherent defects or weakness in the commodity shipped; and that, when a carrier holds itself out as proposing to provide means of preserving perishable goods, it must exercise ordinary care in the adoption of such means of transportation and in furnishing such equipments as will accomplish the purpose. St. L. I. M. & S. Ry. Co. v. Renfro, 82 Ark. 143; Gibson v. Railway Co., 93 Ark. 439; C. R. I. & P. Ry. Co. v. Lawton Refining Co., 253 Fed. 705.

Counsel insist that the court erred in giving an instruction placing the burden on appellant of showing that the injury to the fruit, if any, did not occur on its own line. We think this instruction was correct, for it told the jury that, if the cars of peaches were in good condition when delivered to and accepted by appellant for transportation, and were found on arrival at destination to be in damaged condition, “then the law presumes the damaged condition was. caused by the negligence of the defendant carrier.” Appellant was the delivering carrier, and it has always been the law that, in the absence of proof to the contrary, damage to goods in transit is presumed to have occurred on the line of the delivering carrier. St. L. I. M. & S. Ry. Co. v. Coolidge, 73 Ark. 112. This rule has not been changed as to interstate shipments by the Federal statute known as the Carmack Amendment. That statute merely makes the initial carrier responsible to the owner of the goods for damage occurring while in transit on any line of either of the carriers, but it does not relieve a connecting carrier on whose line the damage occurred from liability to the owner. Gibson v. Railway Co., 93 Ark. 439; Georgia, Florida & Alabama Ry. Co. v. Blish, 241 U. S. 190. The reason which the courts have given for raising the presumption which places the burden of proof on the carrier to clear itself of the charge of negligence is that the carrier has the best, and oftentimes the only, opportunity to determine when and how the injury occurred, and this reason still applies to a shipment of goods over connecting lines of railroad, notwithstanding the absolute liability of the initial carrier under the Federal statute. The presumption still prevails, in the absence of proof, that the damage occurred on the line of the delivering carrier, and the delivering carrier is liable to the owner, notwithstanding the absolute liability of the initial carrier.

The court gave another instruction, at the request of appellant (instruction No. 12), telling the jury that “the burden of proof is upon the plaintiff to prove by a preponderance of the testimony that the carrier was negligent in failing to use ordinary care to re-ice the peaches in transit.” It is insisted that the other instruction is in conflict with this, but the answer to that contention is that, if it is conflicting, the latter instruction was more favorable than appellant was entitled to, and it therefore cannot complain because the court gave the other one, which was correct.

Appellant insists that it was not bound, under the law, to re-ice the cars until they reached, in due course of expeditious transportation, the regular icing station at Gurdon, and was not responsible for failure to sufficiently ice the cars on the line of the initial carrier. Pursuant to that contention, appellant asked the following instructions, which the court refused to give, and error is assigned on that account:

“9. As to the cars of peaches, you are instructed that defendant was not required to re-ice the peaches at Nashville, but was only required to re-ice them at the first re-icing station on the line of defendant, which was at Gurdon; and, even if you should believe that the peaches were damaged by failure to re-ice, still, if you also believe from the testimony that such damage was caused on account of the failure to re-ice before the shipments reached Gurdon, then your verdict should be for defendant as to.such damage.

‘ ‘ 10. The court instructs you that, if any damage occurred to the peaches on account of the delay of the shipper in the'loading of the car and the melting of the ice during that delay, the defendant is not liable for any such damage, if you further believe from the testimony that this defendant iced the cars at its first icing station after leaving Nashville and at every regular icing station thereafter.”

Counsel for appellant base their contention on the authority of the decision of this court in Wright v. Midland Valley R. Co., 111 Ark. 196. The court, however, gave the following instruction requested by appellant:

“8. You are instructed that, as to the three cars of peaches, this defendant is not liable for any delay or failure to ice or any other mishandling, if any,' which occurred on the line of the M. D. & G. before the cars were delivered to the defendant; and, even though you should find from the testimony that damage occurred to the peaches on account of delay or failure to ice or properly refrigerate the shipment, still, if you also believe from the testimony that the delay or failure to re-ice or properly refrigerate, which caused the damages to the peaches, occurred before the cars were delivered to the Missouri Pacific Eailroad at Nashville, then your verdict should be for the defendant.”

We think that instruction No. 8 sufficiently covered the subject, and. that there was no prejudice in refusing to give the other requested instructions. It will be observed that instruction No. 8 made the liability of appellant depend entirely upon its own failure to re-ice the cars, and told the jury, in express words, that if the “delay or failure to re-ice or properly refrigerate, which caused the damage to the peaches, occurred before the cars were delivered to the Missouri Pacific Railroad at Nashville,” the verdict should, be for the defendant. Appellant was not entitled to an instruction specifically telling the jury that there was no duty resting upon it to ice the cars at Nashville, for the proof showed that there was an icing plant there, and there might have been an emergency which, in the exercise of ordinary care, called for re-icing of the cars.

Our conclusion is that the case was properly sent to the jury on the issues presented, and that there was sufficient evidence to support the verdict.

Judgment affirmed.


text:
    Jordan v. F. Burkhart Manufacturing Company.
    Opinion delivered March 31, 1924.
    Master and servant — negligence of fellow-servant — proximate cause. — In an action for personal injuries sustained by plaintiff while lifting bolts with a fellow-servant, the question whether the latter’s negligence in failing to give plaintiff a signal before lifting his end of the bolt was the proximate cause of the injury, held for the jury.
    Appeal from Greene Circuit Court, Second Division; W. W. Bandy, Judge;
    affirmed.

      D. D. Glover, for appellant.

      T. D. Wynne, for appellee.
    . A verdict of the jury based on conflicting evidence, will not be set aside on appeal, if there is any substantial evidence to support it. 33 Ark. 208; 69 Ark. 140; 69 Ark. 659; 71 Ark. 305; 67 Ark. 531; 65 Ark. 16; 67 Ark. 433;'101 Ark. 90; 107 Ark. 158; 119 Ark. 6; 113 Ark. 598.
   McCulloch, C. J.

Appellant sued appellee for damages on account of personal injuries alleged -to have been received while he was working for appellant at the latter’s manufacturing plant in Hot Spring County. Appellant alleged in his complaint that he was engaged with a fellow-servant in loading timber bolts on a wagon, and that the fellow-servant, by negligence, caused appellant, when lifting a heavy bolt, to get his finger mashed. He alleged that it was customary for'two of the men to work together in handling the bolts, and that, as they were ready to lift the bolt, a signal would be given by each to let the other know that they were ready to move the bolt, and that his fellow-servant, Harvey by name, lifted the bolt without giving the signal, which caused the weight of the bolt to fall on appellant’s finger and mash it.

Appellee answered, denying all the allegations of negligence of its servant, and also denied that appellant’s finger was injured.

Appellant testified in detail as to the manner in which he was injured, and his testimony was sufficient to sustain the allegations of the complaint, or at least to justify a submission of the issue to the jury. He testified that his fellow-servant, Harvey, raised one end of the bolt without giving the signal, and that he (appellant) was trying at the time to take hold of the bolt, and that, when it was lifted up, it caught his finger underneath and mashed it. He testified that his finger was severely bruised, which resulted in a bone-felon, and had to be lanced by a surgeon. ' There was testimony tend^ ing to show that the injury to appellant’s finger had permanently stiffened it.

Appellant introduced his fellow-servant, Harvey, as a witness, and another man who was present at the time, and both of these witnesses testified that Harvey raised his end of the bolt without giving the signal which it was customary to do,'and that appellant’s finger was mashed by the other end of the bolt. Harvey’s statement as to the method of the men working together was as follows: “Yes, we would usually say, ‘Let go,’ or would be looking at each other and would know that each was ready before one would lift it up. ’ ’ He stated further that he took hold of one end of the bolt and lifted it up before appellant was ready, and that this caught appellant’s finger between the bolt they were going to lift and the one below it. He stated that he was looking in another direction at the time, and lifted the bolt too quick, without giving the signal.

Appellee introduced the testimony of numerous witnesses, who stated that appellant told them that his finger was injured in playing baseball.

All of the issues with respect to negligence and contributory negligence, and the question whether, or not appellant was injured at all, were submitted to the jury by appropriate instructions requested by both sides, and the jury returned a verdict in favor of appellee.

Appellant made objections to the instruction given at the instance of appellee, and saved exceptions, but there is no attempt to show here that the instructions were erroneous. The sole ground for reversal of the judgment is that the evidence was undisputed, and was not sufficient to support the verdict of the jury in favor of appellee. In other words, the contention is that the undisputed evidence' shows that appellant was injured by negligence of his fellow-servant, and that, according to the undisputed evidence, there should have been a verdict in appellant’s favor for some amount of damag-es. We cannot agree with appellant in this contention. It is true that the testimony of witness Harvey, and another witness named Gray, is undisputed, and they testified that it was the custom for the workers to give a signal to each other when they were about to lift a bolt; that Harvey lifted the bolt in this instance -without giving the signal to appellant, and that appellant’s finger was mashed in attempting to take hold of the bolt or to raise it. This testimony did not, however, make an undisputed case of liability for the injury to appellant’s finger, because it depended largely upon the testimony of appellant himself as to whether or not the failure of Harvey to give the signal was the proximate cause of his injury. The parties were facing each other, and the process of lifting the bolt was a simple one, so the jury could have concluded from the testimony, and doubtless did conclude, that the failure to give the signal was not the cause of the injury to appellant’s finger, but was caused by his own inattention or lack of care in taking hold of the bolt as it was being raised by his fellow-servant. The process of handling the bolts was described in detail to the jury, and they, of course, had a right to exercise their judgment as practical men in determining whether or not the injury was caused-by the failure to give the signal.

It is also insisted by counsel for appellee that there was sufficient proof to show, by appellant’s own admission, that his finger was not injured in this way, but that it was injured in playing baseball. ¡We find it unnecessary to discuss that feature of the case, for we are of the opinion that it was a question for the jury to determine as to the negligence of the fellow-servant being the proximate cause of the injury.

Affirmed.


author: Hart, J.

text:
    McGowan v. Paragould.
    Opinion delivered March 31, 1924.
    1. Disorderly house — evidence.—In a prosecution for keeping a disorderly house, evidence held insufficient to sustain a conviction.^
    2. Disorderly house — evidence.—The fact that defendant permitted a man to visit her for immoral purposes did not constitute keeping a disorderly house.
    Appeal from Greene Circuit Court, Second Division; W. W. Bandy, Judge;
    reversed.

      Huddleston & Little, for appellants.

      Jeff Bratton, for appellee.
   Hart, J.

George McGowan and Jessie Beavers were separately tried and convicted in the municipal court in the city of Paragould for keeping a disorderly house in that city.

Each defendant prosecuted an appeal to the circuit court, and the cases were consolidated and tried together there. The jury found the defendants guilty and fixed their punishment at $10 each. Firom the judgment of conviction the defendants have duly prosecuted an appeal to this court.

It is earnestly insisted by counsel for the defendants that the testimony is not legally sufficient to. support the verdict. The law of the case is well stated in Thatcher v. State, 48 Ark. 60. Judge Battle, who delivered the opinion of the court, in discussing what constitutes keeping a disorderly house, said:

“The keeping of a common gaming-house, bawdy-house, disorderly ale-house or inn, or of any other disorderly house, is a common-law offense, on account, among other reasons, of its influence upon the public morals. The keeping of a disorderly house may 'Consist in allowing the place to be so noisy and disorderly as to disturb the public peace and annoy the neighborhood. But it is not necessary to show such noise in all cases, because the keeping of such house may consist in its drawing together idle, vicious, dissolute or disorderly persons engaged in unlawful or' immoral practices, thereby endangering the public peace and promoting immorality. Such houses are prohibited, not only on account of noise, but because of their tendency to promote immorality and lead to breaches of the peace. ‘If the doors of a house,’ it is said, ‘are practically open to the public, alluring the young and unwary into it, to indulge in or witness anything corrupting to their virtue or general good morals, the keeper cannot excuse himself by alleging that the public is not disturbed.”

The principal witnesses for the State were the chief of police and a night policeman of the city of Paragould. Each of them testified that he was well acquainted with the house where Jessie Beavers resided in the city of Paragould. George McGowan went there frequently, just after dark, and stayed until ten or eleven o ’dock at night. He was also seen by the witnesses there on several occasions in the daytime. On two occasions the chief of police heard George McGowan and Jessie Beavers having a quarrel. McGowan seemed to be mad at her because her sister was there on a visit. Each of the witnesses also saw other men in front of the house, in the nighttime, on several different occasions, but did not see them enter the house or create any disturbance around it.

One witness'testified that he hauled a load of wood to the home of Jessie Beavers every month or so, and that George McGowan paid him for it.

Another witness who lived in the neighborhood testified that he saw men pass his house in the night-time, going in the direction of Jessie Beavers’ house, but did not know whether any of them went into her house.

Tested by the rule laid down above, we think the evidence falls short of warranting a conviction by the jury. None of the elements of keeping a disorderly liou^e, as laid down by the decision above quoted, were established before the jury. It was not shown that the defendant allowed people to congregate in her house and to be so noisy and disorderly as to disturb the public peace. It is not shown that she permitted idle, vicious or disorderly persons, or any crowd of persons whatever, to, congregate in her home.

It is fairly inferable that Jessie Beavers allowed George McGowan to visit her for immoral purposes, but this of itself does not constitute the offense of keeping a disorderly house.

Then, too, some of the neighbors testified that her house had a bad reputation. But the witnesses said that they did not know whether or' not she permitted idle and immoral people to congregate in her house, and that they had never heard any noisy or disorderly conduct there. It is true that the chief of police heard McGowan and Jessie Beavers quarreling in the house on two occasions, but this was not sufficient to establish the fact that either of them kept a disorderly, house. In short, the proof has not established that either of the defendants keeps a disorderly house within the meaning of the law laid down in the opinion above cited.

It follows that the judgment must be reversed, and, as the facts seem to have been fully developed, no useful purpose could be served by remanding* the case for a new trial. Of course, a new charge might be based upon facts warranting it occurring since the date of the offense charged herein.'

Therefore the judgment will be reversed, and the charge against the defendants will be dismissed here.