text:
    F. Kiech Manufacturing Company v. James.
    Opinion delivered April 28, 1924.
    1. Appeal and error — refusal of instructions — presumption.— Where appellant fails to set oiit all of the instructions given by the court, it will be presumed that, in so far as refused instructions correctly declared the law, they were covered by other instructions given.
    2. Trial — specific objection to instruction. — In a personal-injury action, where defendant pleaded a release signed by defendant as a defense, specific objection should have been made to an instruction which assumed that the doctor upon whose representations plaintiff claimed to have relied was defendant’s employee, if such question should have been submitted to the jury.
    3. Appeal and error — presumption where instructions not set out. — Where none of appellee’s requested instructions except one complained of by appellant were set out in appellant’s abstract, the presumption arises that correct instructions were given correcting the defect if it was curable.
    4. Release — when not binding. — Where plaintiff, injured in defendant’s employment, signed a release relying upon a mistaken opinion of the defendant’s doctor that his injury was not permanent, he was not bound thereby, notwithstanding the release recites that he acted on his own judgment, and that no representations were made upon which he relied.
    Appeal from Craighead Circuit Court, Jonesboro District; W. W. Bandy, Judge;
    affirmed.

      Cooley ■& Adams and Hughes & Hughes, for appellant.

      The release was a contract between the parties, and must be tested by the principles of law which govern the reformation or rescission of other contracts. Where cancellation is sought on the ground of. mistake of fact, it must appear that it was a.mutual mistake. 1 Black on Rescission and Cancellation, § 128, pp. 362-3; 2 Black p. 975. While this court is committed to the rule that an innocent misrepresentation of the facts of the releasor’s injury, made by the releasee’s physician, may be effective to avoid a release induced thereby (87 Ark. 614), it is equally true that, where a releasor relies upon the opinion of his own physician, which proves to be incorrect, there is no grounds for setting aside the release (20 Ann. Cas. p. 750). Citations on the two points are found at 136 Fed. 118; 156 N. W. 251; 34 Cyc. 1059; 23 R. C. L. p. 292; L. R. A- 1916B, p. 784; 110 Ark. 182; 115 Ark. 629; 121 Ark. 433; 128 Ark. 223; 1 Black p. 163; Id. p. 238-239. It was a disputed question as to whose agent Dr. McAdams was, and it was error to give appellee’s instruction No. 1, which assumed that Dr. McAdams was the agent of the appellant. Appellee is estopped to repudiate his release. 89 Ark. 321; 47 Ark. 335. No representation was made by appellant, and the release declares that the releasee was relying upon his own judgment. This case does not come within the class of cases found at 143 N. Y. 424, where false representations were made.

      J. F. Jóhnston and Gcmtney •& Dudley, for appellee.
    Appellant only made a general objection to instruction No. 1. The same instruction has been approved in 87 Ark. 614; 93 Ark. 589; 139 Ark. 69.
   Smith, J.

On March 1, 1922, appellee sustained an injury while working as an employee of the appellant company, at its manufacturing plant in Lake City, Arkansas. On the same day he was taken to Jonesboro and placed in a hospital, and remained there under the care of Dr. H. H. McAdams until May 7 following, when lie was discharged from the hospital by Dr. McAdams.

On May 9, 1922, a settlement was effected between appellant and appellee, pursuant to which appellant paid appellee $1,050 and took the following release:

“Release.
“May 9, 1922. For the sole consideration of one thousand, fifty and 00/100 dollars to me this day paid, I, for myself, my heirs, executors, administrators and assigns, do hereby release and forever discharge the F. Kiech Manufacturing Company of and from all claims or demands, damages, actions, or causes of action in law or \n equity, from any matter, cause or thing whatsoever prior to the date hereof, and on account of personal injuries, and all other loss or damage (including loss or damages to the property of the undersigned) resulting, or to result from an accident to myself, L. F. James, which occurred on or about the 1st day of March, 1922.
“To secure the payment of said sum, I hereby represent to the F. Kiech Manufacturing Company that I am twenty-one years of age, and that I rely wholly upon my own judgment, belief and knowledge of the nature, extent and duration of said injuries, disabilities and damage, and that no representations or statements about them have induced me to make this settlement.
“It is understood and agreed the consideration stated herein is contractual and not a mere recital; and all agreements and understandings between the parties are embodied and expressed herein.
“In witness whereof I have hereunto set my hand this ninth day of May, 1922.
“In the presence of: H. H. McAdams, F. M. James.”
his
“Lawrence F. x James (Seal),
mark
his
“L. F. x James (Seal),
mark. ’ ’

Thereafter, notwithstanding said release, appellee instituted this action to recover damages for his injury. Appellant interposed several defenses, and, among others, the release; and at the trial appellee sought to avoid the effect oí the release by showing that, on the day it was given, Dr. McAdams made to appellee certain statements relative to the nature, extent and probable duration of his injuries, which he believed to be true, but which, as it subsequently developed, were erroneous.

Dr. McAdams did1 not testify as a witness, but a statement of what his evidence would be if present was dictated into the record, which reads as follows:

“It is agreed by counsel for both plaintiff and defendant that Dr. H. H. McAdams, if present, would testify that he attended Lawrence James from the time he was injured until he was discharged from the hospital ; that at the time the purported settlement was made he was present and heard the settlement discussed1 between Lawrence James and Mr. Boydston and Mr. Bird, representing the F. Kiech Manufacturing Company; that he, McAdams, examined Mr. James’ injuries at the time, and stated to Mr. James, in the presence and hearing of Mr. Boydston and Mr. Bird, that the injuries were not permanent; that in a -short time, in the course of five or six months, he would recover the use of his arm, and could use it as g*ood as he ever did, except there might be a stiffness in the elbow; that, at the time he made this statement, he honestly believed his prognosis was correct, but, since that time, it has become necessary to perform an operation on the arm, and they amputated it, and that he, McAdams, assisted in the amputation. In the opinion of the witness, at the time James signed the release, he was not under the influence of narcotics, and, in the opinion of Dr. McAdams, Mtr. James knew and understood what he was doing, and was in full possession of his mental faculties at the time the release was executed.”

After appellee was injured, Hysmith, the plant foreman, directed Dr. Roberts to attend the injured man, and Roberts rendered first aid, and carried appellee to the hospital at Jonesboro. Dr. Roberts testified that, at the suggestion of Hysmith, he called Drs. Stroud and McAdams, physicians and surgeons, practicing their profession as partners at Jonesboro, to meet him at the hospital. That on the way he met C. M. Boydston, the manager of the company, or a Mr. Shauver, an officer of the company (he did not remember which one), who, on learning of the occurrence of the accident, told the witness to “take him on and do the best you can for him.” .Witness placed appellee in the hospital, and Drs. Stroud and McAdams assumed charge of the case, and witness advised Boydston the action he had taken.

Appellee testified that, while he was in the hospital, he was attended by Drs. Stroud and McAdams, principally the latter; that he did not know who engaged them, and that he was discharged from the hospital by Dr. McAdams on May 7. These physicians continued to treat appellee after he was discharged from the hospital until the 1st of September following, during the first month of which time he came into Jonesboro to their office for treatment every day. These visits were reduced to two a week, and later to one a week, but, as appellee did not get well, as had been anticipated, and continued1 to suffer, his arm was amputated, the operation being performed by Drs. Stroud and McAdams, assisted by Dr. Roberts.

During appellee’s illness the company paid all his expenses and advanced him small sums of money from time to time, and, by the terms of the settlement made between appellee and the company, the company was to pay the sum of $1,050, out of which was to be deducted the expenses paid, and the sum of $219.04 due' Drs. Stroud and McAdams, and certain drug bills, and the advances which the company had made in money.

On the day the settlement was made, as appears from Dr. McAdams’ statement copied above, appellee was examined by Dr. McAdams, in the presence of representatives of the company. This examination was made for the obvious purpose of forming a basis of a settlement, and appellee was given the assurance of Dr. McAdams that time would restore him, except a stiffness in the elbow. It does not appear that the charge of this examination was included in the doctors ’ bill which was to be deducted from the compensation agreed upon.

The jury was told, if there was a finding for the plaintiff, to deduct from the sum found the $1,050 paid, and there was a verdict in appellee’s favor for the sum of $3,962.18.

At the trial appellant asked instructions numbered 1, 2 and 9, which are set out in appellant’s abstract. The court refused to give any of these instructions, and this action is assigned as error. The other instructions asked by appellant are not set out, and we must therefore presume that, in so far as the requested instructions correctly declared the law, they were covered by other instructions which were given. Loose-Wiles Biscuit Co. v. Jolly, 152 Ark. 442; Christian & Taylor v. Fancher, 151 Ark. 102; Covill v. Gerschmay, 145 Ark. 269; U. S. Auto Co. v. Arkadelphia Milling Co., 140 Ark. 73; Morris v. Raymond, 132 Ark. 449; Greenville Stone & Gravel Co. v. Chaney, 129 Ark. 95; Barnett Bros. v. Western Assurance Co., 126 Ark. 562; Harrelson v. Eureka Springs Electric Co., 121 Ark. 269.

The court gave, at the request of appellee and over appellant’s objection, an instruction numbered 1, which reads as follows:

“No. 1. As a defense to this action, defendant pleads a release signed by plaintiff as a complete defense. The plaintiff admits the execution of the release offered in evidence, and the same is binding upon him, unless you find, from a preponderance of the evidence, that, at or before the time the consideration was paid for said release and the same was executed, the physician and surgeon employed to attend the plaintiff made an examination of the plaintiff’s injuries, and thereupon assured the plaintiff that his injuries were not permanent, but that plaintiff’s arm would be in as good condition as it ever was, within the course of four or five months, and that plaintiff, relying upon said statement as being true, executed said release, but that thereafter it was developed that plaintiff was permanently injured, and that he never would be able to perform labor in his line of employment, and that, at the time of making said statement, defendant’s physician and surgeon either knew that the plaintiff was permanently injured, and misrepresented that fact, or was honestly mistaken as to the extent of plaintiff’s injury, and misled plaintiff into signing said release, then and in either of said events plaintiff is not bound by said release, and yon will so find.”

The giving of this instruction is assigned as error, it being also insisted that it assumed that the doctor upon whose representations appellee claims to have relied was the company’s physician, whereas that question should have been submitted to the jury.

However, at the time the instruction was given only a general objection was made; and we think the objection now urged against the instruction, that it assumed a disputed fact, is one which should have been specifically made at the trial. The testimony set out certainly tends to show that Dr. McAdams was in fact acting for appellant, and, if appellant thought there was testimony from which the jury might have found otherwise, and desired that issue submitted to the jury, a specific objection should have been made, calling attention to the assumption of this fact.

Moreover, as none of the instructions requested by appellee, except instruction numbered 1, are set out in the abstract, a presumption arises from the failure so to do that correct instructions were given, curing this defect, if it is curable, and we third?: it might have been, by an instruction specifically submitting that question to the jury.

Thé testimonv of appellee, corroborated by the statement of Dr. McAdams, is sufficient to support the finding that appellee signed the release under a misapprehension of the extent of his injury, and that this misapprehension was induced by the representations of Dr. McAdams. No attempt was made to prove that any fraud was practiced upon appellee to induce him to sign the release, and it is admitted that Dr. McAdams acted in good faith in the expression of the opinion that appellee’s injury was not of a permanent character.

It is true the release recited that appellee, in signing it, was acting wholly upon his own judgment as to the nature and extent of his injury, and that no representations had been made in regard thereto upon which he relied. But this instrument was prepared by appellant, and all parties concerned knew that appellee had been examined by Dr. McAdams on the day the settlement was made for the sole purpose of ascertaining the nature, extent and probable duration of his injury, and that the purpose of this examination was to ascertain those facts so that the doctor might form an opinion ■thereon. This examination was made in the presence of representatives of the company, and the conclusion reached, as a result of -this examination, was communicated to appellee, and was accepted by him as true, and, on the assumption of its truth, he agreed to accept the sum recited as full compensation for his injury. Had these representations been substantially correct, appellee would have been bound by this release, although it might later have developed that he had settled for too small a sum. But it is now admitted that the doctor was mistaken, and, if he was in fact the company’s physician in making the examination and in reporting the result theréof, then appellee was not bound by the release. This is the effect of the holding in the cases of St. L. I. M. & S. R. Co. v. Hambright, 87 Ark. 614; St. L. I. M. & S. R. Co. v. Reilly, 110 Ark. 182; St. L. I. M. & S. R. Co. v. Morgan, 115 Ark. 529; Griffin v. St. L. I. M. & S. R. Co., 121 Ark. 433; C. R. I. & P. Ry. Co. v. Smith, 128 Ark. 223.

No prejudicial error appears, and the judgment is affirmed. ’ ' ' .......


source: Caselaw Access Project

author: Humphreys, J,

license: Public Domain

text:
    Harris v. McClintock.
    Opinion delivered April 28, 1924.
    1. Ferries — duty of ferryman to public.- — Crawford & Moses’ Dig., § 4703, relating to a ferryman’s duty to his passengers, does not apply to his obligations to the public generally, and, being a reenactment of the common law, creates an additional remedy, but not an additional right.
    2. Ferries — duty to public. — Where plaintiff’s decedent was drowned by the car in which he was riding being driven off the end of defendant’s ferryboat, no relation of carrier and passenger existing between decedent and the ferryman, the only duty the latter owed to decedent was that owed to the public generally.
    3. Ferries — duty to public. — The duty which a licensed ferryman owes the public is to provide against any contingencies which may be reasonably anticipated and to take all precautions to prevent any casualty which ordinary foresight could have prevented.
    4. Ferries — duty to public. — Where plaintiff’s decedent was drowned by driving off the end of a ferryboat at night, mistaking it for a bridge, the failure of the ferryman to anticipate •such a casualty was not negligence, it not being a contingency which could have been reasonably anticipated.
    Appeal from Prairie Circuit Court, Southern District; George W. Clark, Judge;
    affirmed.

      Murphy, McHaney & Dunaiuay and Isgrig & Dillon, for appellant.

      Gregory & Holtzendorff, Emmet Vaughan and Cooper Thweatt, for appellee.
   Humphreys, J,

Appellant, as mother and next of kin of Leon Harris, deceased, and as administratrix of his estate, brought suit against appellee in the circuit court of Prairie County, Southern District, to recover damages in the sum of $22,000, for the death of her intestate, who was drowned in "White Eiver, at DeValls Bluff, through the alleged negligence of appellee. It was alleged in the complaint that appellee was negligent in that: first, he had the ferryboat moored to the bank of White Eiver in the center of a much traveled highway, giving it the appearance of a bridge, to any person unfamiliar -with the location of White River or with said highway; second, that there were no chains, ropes, or any other obstructions across either end of the ferryboat; third, that he failed to keep any light or other danger signal on the ferryboat; fourth, that he failed to keep the ferryboat so attended as to pass appellant’s intestate in safety, and without detention, across White River.

Appellee filed an answer, admitting that the ferryboat was moored to the bank of White River in the center of a traveled road; that there were no ropes, chains, or other obstructions across either end of same; that there was no light or other danger signal on the boat; and that there was no attendant present at the time; but denied that the failure to take any of the precautionary measures aforesaid constituted negligence in the law, and further denied that the ferryboat would have the appearance of a bridge to one unfamiliar or unacquainted with the highway. By way of affirmative defense he also pleaded contributory negligence on the part of the deceased, Leon Harris.

The cause was submitted upon the pleadings and testimony introduced by the respective parties, which resulted in a directed verdict and consequent judgment for appellee, from which is this appeal.

The facts are practically undisputed, except in one particular. Appellee was a licensed ferryman, operating a ferryboat at a point- near DeValls Bluff, on White River. The only dispute is as to whether I. E. McCray, uncle of deceased, was driving the car in a rapid, reckless, and negligent manner, with the consent' of deceased, over the highway and onto the ferryboat, without due regard for their safety. The undisputed facts show that I. E. McCray, his brother, and deceased left Little Rock for Memphis about 2 o’clock p. m. on October 10. I. E. McCray was the owner and driver -of the car. They arrived at DeValls Bluff at about 6:30 o’clock p. m. It was a cloudy night, and dark. The road from DeValls Bluff to within 200 feet of the ferry is on a dump, ranging from six to twelve feet high, with a crown about sixteen feet wide. At that point it begins to rapidly decline through a cut, and curves first to the left and then sharply to the right until about one hundred feet of the ferry. From that point'it is straight, but declines until it reaches the river. The ferryboat was moored to the bank of the river, in the center of the road. It had an apron at the end, which laid down on the bank and formed an approach to the boat. It also had a railing on each side. The boat was made of wood, was twenty feet wide, and seventy-five feet long. There was no light on the boat, nor any chains, ropes, or other obstructions across the entrance thereto. The ferryman was in a little shack he occupied near the road. The water was from fifteen to twenty feet deep at the bank where the boat was moored. The automobile lights were in good condition, and turned on. The automobile was driven onto the ferryboat without any signal or direction from the ferryman, and off the other end of the boat into the river, without making a stop. The two McCrays succeeded in swimming out, but Leon Harris was drowned. The ferryboat was constructed in the usual way, and was being operated in the customary manner. During its operation, for seven or eight years, no accident of any kind had happened before this one, and no one had taken the ferryboat for a bridge.

The witnesses introduced on behalf of appellant testified that the automobile was driven onto the ferryboat under control of thé brakes. The two McCrays testified that they, took the ferryboat for a bridge, and,' on that account, did not stop before driving onto and over same.

The witnesses introduced by appellee testified that the car was driven down the decline onto and over the ferryboat at the rate of fifteen to twenty-five miles an hour, without making any appreciable stop at the entrance to or upon the boat.

The question arising upon this appeal for determina-' tion is whether appellee is exonerated from liability under the undisputed evidence in the case. The trial court so ruled, and the correctness of this ruling is drawn in question. Appellant relies mainly for a reversal of the judgment upon her allegation that appellee failed to keep his ferryboat so attended as to carry her intestate safely across the river. This allegation is based upon § 4703 of Crawford & Moses’ Digest, and relates to the ferryman’s duty to passengers. The section, however, has no application to the facts in this case. It relates to the ferryman’s duty to his passengers, and not to his obligations to the public generally. The undisputed proof in this case reveals that appellant’s intestate was not appellee’s passenger. He was not invited or directed to drive upon the ferryboat by appellee or his employees. The statute relied upon is a reenactment of the common-law liability. It creates an additional or cumulative remedy, and not an additional right. Wells v. Steele, 31 Ark. 219. As there is no statute in this State creating any liability against a licensed ferryman which the common law does not impose, appellant’s cause of action, if any exists, must arise out of the common-law liability. Under the common law a ferryman is a common carrier, and is held to the highest degree of care in transporting his passengers and their property. This relation did not exist between appellant’s deceased and appellee. The only duty therefore which appellee owed appellant’s deceased was the same duty he owed to the general public. The duty which a licensed ferryman owes the public is to provide against any contingency which might have been reasonably anticipated. It is his duty to take all precautionary measures to prevent a casualty which ordinary prudence and foresight could have prevented. The failure or omission to guard against such casualties would render the ferryman liable for negligence. We do not think the omission alleged in this case imposes any liability upon appellee. It was necessary for him to moor his ferryboat to the bank of the river, across the center of the road, to serve passengers. The boat was constructed and operated in accordance with the general custom. It had been operated for seven or eight years under like conditions, without the happening of any casualty. We do not think appellee could have reasonably anticipated that a man or men would drive an automobile onto and over the ferryboat into the river, in the belief that it was a bridge. . It was a contingency that could not have been reasonably anticipated. The death of appellant’s intestate was the result of the wholly unexpected act of the driver and his companions. It did not occur in the natural course of things, but was the result of exceptional circumstances. In support of the rule and application thereof see Loftus v. Union Ferry Co., 84 N. Y. 455; Scribner v. Long Island R. Co., 88 N. Y. 351; 29 Cyc. p. 432.

No error appearing, the judgment is affirmed.


author: Humphreys, J.

text:
    Childs v. Motor Wheel Corporation.
    Opinion delivered April 28, 1924.
    1. Contracts — exclusion of evidence. — In an action on an oral contract alleged to have been made after rescission of a prior written contract, where defendant testified that, except in one particular, the oral contract was the same as the written contract, it was reversible error to exclude the written contract.
    2. Appeal and error — decision on former appeal. — The decision of the Supreme Court on a former appeal is the law of the case on a second appeal.
    3. Appeal and error — decision on former appeal.— Where the court on a former appeal had determined that evidence presented a question for the jury as to whether or not an oral contract sued on contained the same terms as a previously canceled written contract, it was error for the court to take the case from the jury.
    Appeal from Calhoun Circuit Court; L. S. Britt, Judge;
    reversed.

      Wallace Townsend, for appellant.
    It was error to refuse to allow the plaintiff to state the circumstances leading up to the oral contract. 90 Ark. 272. The court erred in directing a verdict, since the evidence on this appeal is practically the same as in the first appeal, and the law of the case is settled by the first appeal. 153 Ark. 186. It was an invasion of the province of the jury to instruct a verdict under the clear, decisive and conclusive evidence of the plaintiff. 105 Ark. 136; 103 Ark. 401; 98 Ark. 334.

      E. L. Westbrook, for appellee.
    The contract was a car-to-car agreement. Under 88 Ark. 491, the contract was severable. When appellant refused to abide further by the oral agreement, appellee had the right to treat said agreement as terminated. 136 Ark. 507. There was no consideration for the additional contract. 112 Ark. 223. The conduct of appellant in wiring- appellee if they could use two more cars on same terms as last, constituted a waiver of the breach, if any. 135 Ark. 435; 88 Ark. 491; 105 Ark. 421; 102 Ark. 79.
   Humphreys, J.

This case is here a second time. On the first, appeal the judgment was reversed, and the cause remanded for a new trial upon the issues joined as to the terms of the oral contract entered into between the parties on the 20th day of August, 1920, the alleged breach thereof, and the alleged damages growing out of said breach. Motor Wheel Corporation v. Childs, 153 Ark. 178. The original written pleadings did not present these issues, but testimony was introduced, without objection, responsive to said issues, which constituted an election to treat the pleadings as amended to present said issues. Upon remand the pleadings were amended in writing so as to present said issues, after which the cause proceeded to a hearing. Over the objection of appellant, the court excluded the written contract entered into between the parties of date July 31,1920, and his testimony to the effect that the written contract expressed the terms of the oral contract except as to the place of inspection. With the exception of said written contract, the testimony introduced on the retrial of the case was, in substance, the same as that introduced in the first trial. For the statement thereof reference is made to the case of Motor Wheel Corporation v. Childs, supra. At the. conclusion of the testimony the court instructed a verdict for the appellant, and rendered a judgment in accordance therewith, from which is this appeal.

Appellant contends that the judgment should be reversed for two reasons; first, because the trial court refused to allow him to introduce the written contract of date July 31; and second, because he peremptorily, instructed a verdict.

Appellant offered to testify that the oral' contract of August 20 embraced, by reference and adoption, the terms contained in the written contract entered into by and between them on July 31, 1920, except as to the places of inspection of the materials sold and purchased. As the proffered testimony tended to show the terms and subject-matter of the oral contract, the court committed reversible error in excluding it from the jury. This testimony formed the foundation of appellant’s case, and should have been admitted.

(2) The trial court also erred in'taking the case from the jury, for the decision of the court on the first appeal became the law of this case. In rendering the opinion on the‘former appeal of the case the court said: “It was a question for the jury to determine what the contract made in Memphis on August 19 was — whether it amounted, as contended by appellee, to an agreement of sale according to the terms specified in the original written contract, or whether it was merely a contract, as contended by appellant, for the acceptance of such amount of material as appellee should see fit to ship.

“This state of the proof makes it a question for the jury to determine what the extent of the contract was that was entered into between the parties on the occasion named, and the case should have gone to the jury solely on that question and on the question of the alleged breach thereof.”

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


author: McCulloch, C. J.

text:
    Hughes v. Bartholomew.
    Opinion delivered May 5, 1924.
    1. Husband and wife — household goods — evidence as to ownership. — In an action by a deceased wife’s husband to recover household goods against one claiming as her heir, evidence held to warrant the jury in finding that the property belonged to the wife alone.
    2. Husband and wife — ownership of household goods — evidence. —In an action by a deceased wife’s husband to recover possession of household goods against an heir, testimony that the wife was operating a rooming-house when she married plaintiff and as to her earnings therefrom was admissible to show that the wife had sufficient funds to purchase the goods.
    3. Replevin — issues, proof and variance. — In an action to recover possession of household goods by a deceased wife’s husband against her heir, defendant’s testimony as to a division of the property between plaintiff and defendant, made after the wife’s death, though not pleaded in the answer, was admissible under her general denial of plaintiff’s ownership and allegation of her own right of possession.
    4. Trial — instruction as to credibility of witness. — An instruction that if the jury find that any witness has sworn falsely as to any material fact, they may disregard his whole testimony if they, believe it to be false, or believe that part which they believe to be true and disbelieve that part which they regard to be false, held correct, though awkwardly phrased.
    5. Trial — instruction ignoring issue. — In an action to recover possession of household goods, the principal contention being as to the original ownership between plaintiff and his deceased wife, an instruction that, if defendant was in lawful possession as daughter of the deceased wife, the verdict should be for her, was erroneous as ignoring the ownership issue.
    Appeal from Sebastian Circuit Court, Fort Smith District; Jolm E. Tatum, Judge;
    reversed.

      Cravens & Cravens, for appellant.

      A. A. McDonald', .for appellee.
   McCulloch, C. J.

Appellant instituted this action against appellee to recover a long list of personal property, consisting of household furniture and furnishing, alleging that he was the owner of the property and entitled to immediate possession, and that appellee was wrongfully withholding possession. Appellee answered, denying that appellant was the owner of the property, and setting up owneship in appellee herself. The issues were tried before a jury, and the trial resulted in a verdict in favor of appellee.

Appellant testified that he was the owner of the property, and that he purchased and paid for it with his own funds. Appellee claims that the property in controversy was owned by appellant’s wife, Mrs. Hughes, who was appellee’s mother by a former marriage, and that, at the death of Mrs. Hughes, it fell to appellee by inheritance.

The testimony of appellee and other witnesses tended to show that the property in controversy was owned by Mrs. Hughes. It appears from the testimony that, at the time of the intermarriage between appellant and Mrs. Hughes, the latter was operating a rooming-house in Fort Smith, and continued to do so until the time of her death, in the year 1921. The testimony tends to show that all of the property in controversy was purchased by Mrs. Hughes and was paid for out of her funds, earned in the operation of the rooming-house. It is also shown by the testimony that, shortly after the death of Mrs. Hughes, an arrangement was entered into between appellant and the appellee, Mrs.' Bartholomew, who then resided in Oklahoma, that the latter should come to Fort Smith and take charge of the rooming-house, assume all indebtedness and pay the bills, and that appellant would pay the rent as his part; that, under that arrangement, appellant remained there at the rooming-house from November until the following July, when he left, and there was a division of the property according to their respective claims of ownership. Appellee testified that appellant made a list of the things that he claimed to own, and that, after appellant left, he sent a drayman or transferman back with his list, and that all the things on the list were hauled away and delivered to appellant, and that the things in controversy were all articles which fell to appellee in the division of the property in the house between her and appellant.

There was sufficient evidence to warrant the jury in finding that the property in controversy belonged to appellee’s' mother, and the finding of the jury on that issue must be treated as conclusive.

There are several assignments of error in regard to rulings of the court in admitting testimony. Appellant objected to testimony to the effect that Mrs. Hughes was operating a rooming-house at the time of his intermarriage with her, and also to the testimony as to the gross earnings of Mrs. Hughes in the operation of the house. We think that this testimony- was competent, for the reason that the property in controversy was purchased after the intermarriage of the parties and while Mrs. Hughes was operating’ the rooming-house. Appellant contended that he purchased the furniture himself, and, for the purpose of showing that the house was operated by Mrs. Hughes and that the property in controversy was purchased as a part of those operations, it was competent to show that Mrs. Hughes was operating the rooming-house at the time of her intermarriage with appellant, that she continued to do so until her death, and that the operations were sufficiently profitable to afford her funds with which to buy the furniture. Appellant testified that he was working on a salary during the time, and that the furniture was paid for out of his salary. There was no error in admitting this testimony.

Appellant objected to that part of the testimony adduced by appellee to the effect that there was a division of the property between appellant and appellee after the death of Mrs. Hughes. The ground of his objection is that this alleged division and settlement of property rights was not set up in the answer. The testimony tended to establish the defense that appellee was the owner of the property in controversy, and was competent without having set it up specifically in the answer. The general denial in the answer of appellant’s ownership, and the general allegation of ownership and right of possession in appellee, were sufficient to tender an issue, and any testimony which tended to establish appellee’s ownership was competent as relevant to the issue raised in the pleadings. There was therefore no error committed by the court in admitting this testimony.

Error is assigned with regard to the following paragraph' in the court’s charge on the subject of credibility of witnesses: “If you find that any witness has sworn falsely to any material fact in this case, you may disregard his whole testimony .if you believe it to be false, or believe that part which you believe to be true, and. disbelieve that part which you regard to be false,” The contention is that the language of this instruction is to permit the jury to disregard the whole of the testimony of the witness because he has testified falsely to a material fact, even though they believe part of the testimony to be true. An instruction in the same language as the one now under consideration was given by -the trial court in the case of Bryant v. State, 156 Ark. 580, and the same objection was urged to it as is urged here now, but we held that the instruction was not open to the interpretation that the jury had a right to disregard any part of the testimony that they believed to be true, even though the witness testified falsely as to some material fact. The instruction is awkwardly phrased, but, when analyzed, it is not open to the interpretation claimed by appellant.

Error of the court is assigned in giving the following instruction at the request of appellee:

“If you find from the evidence that the defendant, as a daughter of the deceased, Mrs. Hughes, was in the lawful possession of the property in controversy, as a representative of the heirs of her mother, your- verdict should be for the defendant.”

This instruction is erroneous, for it entirely ignores the issue as to the ownership of the property, and directs the jury to find in favor of appellee if she was “in the lawful possession of the property in controversy as a representative of the heirs of her mother.” The principal controversy in the case was as to the original ownership of the property as between appellant and his wife, appellee’s mother. Appellant testified that the property belonged to him, that he bought it and paid for it with his own money. This instruction took that issue away from the jury, and was necessarily prejudicial. .

Appellee also contended that there had been a settlement between her and appellant as to their asserted rights in the property in the rooming-house, and that they divided the property. The jury might have found for the appellee on the ground that there had been a settlement of their dispute as to the ownership of the property and a division of the property, but the jury may not have based their verdict on a finding as to that issue — on the contrary, they may have based their verdict on the theory that Mrs. Hughes was the owner of the property, or they may have followed this instruction and found for appellee merely on the ground that she had been left in peaceable possession of the property, regardless of the question of ownership.

For the error in giving this instruction the judgment is reversed, and the cause is remanded for a new trial.


text:
    Root v. O’Brien.
    Opinion delivered May 5, 1924.
    1. Animals — exemption op township prom stock law. — Where a stock law created by special act (1923, p. 479), was adopted by the electors of the district, the right of exemption of a township, conferred by § 11 thereof, could not be exercised after the law went into effect on January 1, 1924.
    2. Animals — exemption not concluded when. — Where a petition under Special Acts 1923, p. 479, § 11, exempting townships from a stock law adopted by the district, did not contain the required majority of eléetors, its denial was not a bar to a later proceeding under a petition containing a majority, even though the original petitioners appeared among the petitioners on the second petition.

      3. Judgment — res judicata. — A judgment operates as a bar to subsequent proceedings only upon the same facts properly pleaded, and not to subsequent proceedings based upon different facts.
    4. Animals — pendency op petition for township exemption.— Each petition, under Special Acts 1923, p. 497, § 11, to exempt a township from a stock law is an independent proceeding; the sole question in each case being whether the petition contains a majority of the electors of the district, and it is immaterial that another petition is pending.
    5. Animals — construction of special stock law. — Special Acts 1923, p. 485, § 11, makes it compulsory on the county court to make an order exempting a township from a county stock law where a majority of the electors favor exemption; the word “may” in the statute meaning “shall.”
    Appeal from White Circuit Court; E. D. Robertson, Judge;
    reversed.

      John E. Miller, for appellants.
    Section 11 of the statute under consideration clearly gives the electors the right to file a petition to exempt a township at any time. The fact that a previous petition, which was found not to contain a majority of the electors, was filed, is no bar to the filing of a second petition. The word “may” as used in the statute should be •construed to mean * ‘ shall. ’ ’ Washington County v.- Davis, 162 Ark. 335.

      Gulbert L. Pearce and Eugene Cypert, for appellees.
    A former petition having been filed and acted upon, the matter was res judicata. While we have found no decisions directly in point, the following on the subject may be examined with profit: 20 Ark. 85; Id. 573; Id. 561; 134 Ark. 571; 135 Ark. 450; 141 Ark. 453; 156 Ark. 139; 159 Ark. 85; 97 Ark. 456; 116 Ark. 416; 83 Ark. 545; 91 Ark. 394; 96 Ark. 87; Id. 540; 15 R. C. L. 949 et seq., Res Judicata; 256 111. 213; 112 Fed. Rep. 705; 253 111. 625; 35 Conn. 526; 206 Ala. 169; 70 Wash. 670; 119 Iowa 512; 1913C Ann. Cas. 914; '20 A. L. R. 1133; 49 L. R. A. (N. S.) 108.
   McCulloch, C. J.

This controversy arises over the application of a stock law in White County. A special statute was enacted by the General Assembly of 1923 (Special Acts 1923, p. 479), creating two districts in White County, one embracing all of the territory in the county on the south side of Little Bed Biver, except Dogwood Township, and the other embracing all of the territory on the north side of Little Bed Biver. The statute provides for the calling of an election in each district, within fifteen days after the approval of the act, for the purpose of submitting to the qualified electors of the districts the question whether or not the statute should be put into operation in the respective districts; that, upon the returns of the election being.made, the county court shall make an order declaring the adoption or rejection in the respective districts, and that, if a majority of the votes cast at the election be in favor of the stock law, “then this act shall become effective * * * on the first day of January, 1924.” The statute further provides that, if the law be not adopted in a district at the first election, the question may be again submitted for adoption or rejection in said territory one year after the first election, and that, if a majority is in favor of adoption at the second election, “it shall become effective on the first day of January next after such election.”

The controversy arises under the application of § 11 of the statute, which reads as follows:

“After the adoption of this act as herein prescribed, if the qualified electors of any political township want said township exempted from its provisions, they may, after giving twenty days’ notice by publication, present a petition to the county court, signed by a majority of the qualified electors of said township, praying that said township be exempted from all or any part of the provisions of this act for a period of not more than five (5) years, and, upon a hearing in open court, if said petitions appear to have been signed by a majority of qualified electors, the court may enter an order exempting said township, according to the prayer of the petition, and shall cause said order to be published. Said order of exemption may be rescinded or modified at any time, upon petition of a majority of the qualified electors in the affected territory, as in the original petition for exemption. ’ ’

The elections were held, in accordance with the statute, and the majority voted in favor of the adoption of the law. Thereafter, on November 12, 1923, a petition was filed in the county court by qualified electors of Cypert Township, asking that the territory embraced in that township he exempted, in accordance with § 11 of the statute. A protest was filed ¡by other electors of the township, and, on the hearing by the county court, the petition was dismissed. An appeal to the circuit court was prayed by the petitioners and allowed, hut never prosecuted to judgment in the circuit court. On December 28, 1923, appellees, claiming to constitute a majority of the qualified electors of Cypert Township, filed a petition in accordance with the terms of the statute, and gave notice thereof, praying for an exemption of Cypert Township. This petition contained the names of many of the same persons whose names appeared upon the former petition, but the first petition was held to be insufficient because it did not contain the names of a majority of the electors, and the last petition purported to be a majority of the electors.

Appellees, who are qualified electors of Cypert Township, filed their protest to appellants’ petition in the county court, and pleaded former adjudication on the first petition as ground for denying the prayer of the last petition. The matter came on for hearing before the county court on January 7, 1924, and judgment was rendered denying the netition of appellants, and they appealed to the circuit court, where the cause came on for hearing on February 15,1924. The circuit court sustained the plea of appellees, and dismissed the petition of appellants, and the latter have duly prosecuted their appeal to this court.

A determination of the controversy calls for an analysis of the provisions of the statute so as to ascertain its effect, particularly as to § 11, under which this controversy arises. This section provides that the qualified electors of any township may petition for exemption after the adoption of the statute at the election authorized to be held, and that the order of exemption “may be rescinded or modified at any time upon petition of a majority of the qualified electors in the affected territory, as in the original petition for exemption.” But § 11 does not specify the limit of time within which the electors may petition for an exemption. The language used in that section does not necessarily imply that the qualified electors may, at any time, secure such an exemption, and there ought to be clear language in the statute giving that effect to the law before the court should so declare. When this section is read in the light of other sections, we think it is clear that the framers of the act did not intend to confer the right of exemption to be exercised by petition after the law goes into effect on January first of the year succeeding the election. The statute declares, on the contrary, that, if a majority of the votes cast in the election shall be in favor of the stock law, then the law shall be effective “in all portions” of the district on January 1, 1924. The reason for placing this limitation upon the exercise of the privilege of exempting townships is obvious, for such a law should operate with reasonable permanence, so as to avoid great expense and inconvenience to farmers and stock-raisers living in the territory, ancl it would not be good policy to permit frequent changes dependent upon the changing will of the majority.

Appellants filed their last petition before the law went into operation, and it was presented to the court as soon as it convened thereafter, hence the petition was filed within time, under the interpretation which we place on the statute.

Counsel for appellees defend the ruling of .the court in dismissing the petition on .the ground that the adjudication on the former petition was a bar to the last petition. We cannot agree to that conclusion, for the statute gives the right to exempt a township on petition of a majority presented at any time before, the law went into operation. A judgment operates as a bar to subsequent proceedings only upon the same facts properly pleaded, and not to a subsequent proceeding based upon different facts. Barrentine v. Henry Wrape Co., 113 Ark. 196. The former petition for exemption was found not to contain a majority, and tbe adjudication thereon could not, under any principle o“f law, operate as a bar to proceedings later, under a petition containing a majority, even though the original petitioners appeared among the petitioners on the second petition. Nor can the judgment of the circuit court be upheld on the ground that the original petition is still pending — if that be shown to be true — for each petition is an independent proceeding, and must be determined on the question whether or not it contains a majority of the electors of the district. The sole question involved is whether or not the petition contained a majority, for the statute makes it compulsory on the county court to make the order-upon finding that a majority favors exemption. The statute uses the word “may,” but it was obviously intended to be construed so as to mean “shall.” Washington County v. Davis, 162 Ark. 335.

The circuit court erred in dismissing the petition, and the judgment is reversed, and the cause remanded with directions to overrule the plea of appellees, and to proceed with a trial of the question whether or not the petition contains a majority of the qualified electors in Cypert Township.


author: Wood, J.

text:
    Rice-Stix Dry Goods Company v. Montgomery.
    Opinion delivered May 5, 1924.
    1. Bills and notes — fraud—jury question. — Whether defendant indorsed the note sued on because of the false and fraudulent representations of plaintiff’s auditor as to the maker’s solvency held for the jury.
    2. Trial — credibility of witnesses. — Where the testimony was conflicting, the credibility of the witnesses was for the jury.

      3. Fraud — right to rely upon representations. — Where the plaintiff’s auditor examined the books of a firm and knew that defendant was asked by one of the members of the firm to indorse its note to plaintiff, defendant had a right to rely upon the auditor’s representations concerning the firm’s financial standing.
    4. Bills and notes — fraud—burden of proof. — "Where an indorser, sued on a note, defends upon the ground that his indorsement was procured by fraud, he sustains the burden of proof by proving the fraud by a preponderance of the evidence, and is not required to establish same by clear, unequivocal and decisive proof.
    5. Trial — province of jury. — Where, in an action at law, there is any substantial evidence to sustain a proposition, it is the province of the jury to determine where the preponderance lies.'
    6. Appeal and error — trial court’s approval of verdict. — An appellate court will not reverse the ruling of the trial court in refusing to set aside a jury’s verdict sustained by sufficient evidence, even though such verdict may appear to be against the weight of the evidence.
    7. Trial — surplusage in instruction.' — Where an instruction correctly declared the rule as to the burden of proof, a concluding sentence, “A bare preponderance, however, is all that is necessary,” was surplusage, but did not make the instruction as a whole inherently defective.
    Appeal from Pope Circuit Court; J. T. Bullock, Judge;
    affirmed.

      Hawthorne, Hawthorne dp Wheatley, for appellant; Lyon S Swu-rts, of counsel.
    Fraud is never presumed, but must be proved. 144 Ark. 87; 33 Ark. 425; 9 Ark. 482; 22 Ark. 184; 37 Ark. 145; 55 Ark. 148; 92 Ark. 509; 82 Ark. 20; 40 Ark. 417. See also on the facts of the case 104 Ark. 395; 108 Ark. 350. A debtor is presumed to be solvent. 63 So. 687; Jones on Evidence, § 57; 80 Pac. 504; 85 S. "W. 761 (Ky.). Subsequent insolvency is not evidence of insolvency at a given past time. 85 S. W. 761; 157 Pac. 1179; 61 N. W. 942. Tlie law raises no presumption of knowledge from tlie mere fact that the representation is false. 27 C. J. 48. Failure to prove any one of the essential elements of fraud is fatal. 27 C. J. 47. The scienter must be proved. 22 Ark. 454. See also 143 Ark. 477; 27 Cyc. 44; 12 R. C. L. 350. This court will render judgment where one should have been directed by the trial court. 122 Ark. 451; 136 Ark. 52; 139 Ark. '294; 147 Ark. 402. See also 134 Ark. 543. A presumption of good faith prevails until fraud is proved. 45 Ark. 492; 22 C. J. 146; 27 C. J. 44; 111 S. W. 67. Instruction No. 2 was abstract, and calls for a reversal. 148 Ark. 278; 154 Ark. 547; 88 Ark. 454. Instruction No. 4 was erroneous. This instruction deals with the degree of proof required to show fraud. See 41 L. ed. 425; 106 N. W. 1074, 115 Am. St. Rep. 1010.

      A. S. Hays and J. B. Ward, for appellee.
    Different conclusions might have been drawn from the evidence adduced, and it was proper to submit same to the jury. 76 Ark. 88. See also 120 Ark. 206; 140 Ark. 356. The agent of appellant owed to appellee the duty to disclose such facts as were peculiarly in his possession, and not to do so was a fraud. 135 Fed. 621; 149 N. W. (882. Fraud vitiates a contract both at law and equity. 3 R. C. L. 318; 30 Ark., star p. 374; 22 Ark. 517. Appellant did not specifically object to any instruction given, nor did it ask a proper instruction, and it is now too late to complain. 78 Ark. 27-; 112 Ark. 477; 13 Ark. 341; 157 Ark. 609; 123 Ark. 119; 141 Ark. 346; 129 Ark. 95.
   Wood, J.

This is an action by the Rice-Stix Dry Goods Company, a corporation of Missouri, hereafter called appellant, against W. A. Montgomery, hereafter called appellee. The appellant alleged that the appellee is an indorser on a note executed by Gibson 'Bros., bankrupts, on November 10, 1920, for the sum of $1,797.12. The appellee answered, and admitted that he executed the note, but denied that he was liable, and averred that Gibson Bros., soon after the note was executed, were adjudged bankrupt; that the appellant filed its claim covered by the note in suit before the referee in bankruptcy. Appellee further averred that his indorsement of the note was procured by fraud and misrepresentation of the appellant, in that the appellant represented to the appellee, prior to securing 'his indorsement, that the firm of Gibson Bros, was solvent; that appellant was their just creditor, and that Gibson Bros, would be financially able to meet their obligations, thereby relieving the appellee of any liability because of his indorsement of the note; that appellee, relying on this statement of the appellant as to the financial ability of Gibson Bros., was induced to indorse the note; that the statements made by the appellant as to the financial condition of Gibson Bros, were false and fraudulent, and made for the purpose of procuring the signature of appellee to the note; that the appellant knew, at the time the statements were made, that they were false, and knew that Gibson Bros, were hopelessly insolvent and would not be able to avoid bankruptcy proceedings. The appellant introduced the note in evidence.

The appellee testified that he lived at Atkins. He signed the note. He did not owe appellant anything, and was not interested in the mercantile firm of Gibson Bros. Mr. Gibson asked witness to sign the note with him, but witness did not sign the note on Gibson’s mere request. Witness first had a conversation with a man by the name of Boldt with reference to witness’ signing the same. Witness refused to sign until he had talked with Boldt. Witness walked in (the business house of Gibson Bros.), and this conversation took place. Boldt said, “They say you are all right.” I said, “Well, I generally pay anything I owe,” and I further said, “You have gone over these books, and how is this business?” He said, “It is all right,” and so he wrote the note, and made the date the first of October, and he read it over, and I said, “Now in this cotton country sometimes it is a late fall, and that is too early to pay a debt — to collect money.” He said, “Well, I will make it the fifteenth.” I said, “That is all right — make it the fifteenth of October instead of the first. ’ ’ Witness signed the note. He would not have signed the note at that time, or at any other time, but for the representation of Mr. Boldt. Witness knew that a man by the name of Boldt was in there, making an investigation. Witness said to Boldt, “You have made an audit of these books, and they are all right, are they?” He said “Yes,” and I said, “How are the books?” and he said, “All right.” Witness had known the Gibson brothers twenty-six years. Witness had never loaned them any money and had never indorsed any paper for them before. It was late in the evening when this occurred. Just before train time. It was witness’ understanding that Boldt left on the afternoon train.

Sam Gibson testified that he had lived in Atkins thirty years. He was a member of the firm of Gibson Bros. The other brother was William Gibson, and he and his brother had been in the mercantile business in the town of Atkins two years. The note was executed on the 20th of October. Suit was filed against the firm on the last of November, and it was thrown into bankruptcy on the second or third of December following. At the time it was thrown into bankruptcy the firm owed about $40,000. Boldt, representing appellant, came to Atkins one morning, and was there until late the next evening — practically two days. He made a complete investigation of the business before he made the statements in regard to the business. He audited the books of the firm. There had been a dispute between the firm and the appellant about a shipment of goods, and witness thought Boldt’s business there was to see about that. Boldt audited the hooks two days. He said appellant was the biggest creditor. He said that the firm of Gibson Bros, was in good condition; that it was solvent. These statements were made after he had audited the books and before he asked the witness to get Dr. Montgomery or somebody to sign the note. Witness would not have tried to secure an indorsement on the note if Boldt had not stated that the firm was solvent. Witness went to appellee to secure his indorsement. Appellee talked to Boldt in the presence of witness. Appellee Walked into the office, and Boldt said to him, “You must have lots of confidence in those boys,” and appellee replied, “Yes, I have.” Appellee asked Boldt, “How is their husiness?” and Boldt replied, “It is all right.” Appellee said, “If the business is all right, I will sign the note.” Appellee knew at the time, and asked Boldt if he had audited the 'books. On that day Boldt took part of the goods out of the store, amounting to something over $1,000, for which he gave Gibson Bros, credit on their account for these goods, which were bought of appellant. Boldt didn’t tell appellee, before he signed the note, that he had taken these goods and given Gibson Bros, credit 'for same. The appellant filed its claim against Gibson Bros, with the referee in bankruptcy,- but appellant was hot permitted to participate in the division of the assets.

On cross-examination the witness stated that Boldt told us, after he had gone over the books, that if we would get out and do some collecting we would be all right; that our condition of affairs depended upon our collections and general business conditions in the fall. Witness told appellee what Boldt said — that the firm of Gibson Bros, was in good condition — was solvent.

The appellee, on being recalled, testified that, at the time he signed the note, he didn’t know that the appellant had taken out of the stock of Gibson Bros, twelve or fourteen hundred dollars’ worth of goods, for which appellant gave the firm a credit-of between $1,000 and $1,100.

■ Witness Huey testified, for appellant, that he was the bookkeeper for Gibson Bros, when Boldt went over the books. Boldt worked in the morning and most of the afternoon, and a few minutes the next morning, but he did it all practically in the afternoon.

Boldt testified, for the appellant, that he was its auditor and adjuster. He made no representation to the appellee to influence him one way or the other. Witness’ transaction was with Gibson Bros. They made the necessary arrangements with the appellee. The only conversation witness had with appellee was the usual greetihg of one man to another upon meeting. Witness "had entered into an agreement with Gibson Bros, whereby appellant was to -carry the amount covered by the note in question until tlie fall of 1921, provided they would give good security. They thought they could get the appellee to indorse the note. Witness went to the banks and made inquiry as to appellee’s financial standing, and satisfied himself that appellee’s indorsement would make a good note. Witness came back, and told Gibson Bros, that appellant would grant the extension requested upon.the appellee’s indorsement of their note. Up to this time witness had not seen the appellee. One of the Gibson brothers went out on the street, located the appellee, brought him into their office, and appellee indorsed the note. Witness was not in the presence of the appellee exceeding five minutes. He made no statement to the appellee regarding the financial standing of the Gibson brothers. The fact that witness wanted an indorsement on the extension of the credit of Gibson Bros, for a year carried with it a liability on the part of the appellee to pay if Gibson Bros, did not. The note was signed in witness’ presence. The appellant did not secure any dividends from the bankruptcy court on the note in controversy.

The appellant prayed the court to instruct the jury to return a verdict in its favor, which prayer the court refused, and to which ruling the appellant duly objected and excepted.

The court told the jury that the only issue for them to determine was whether or not the appellee was induced through fraud and misrepresentation to sign the note. The court further instructed the jury as follows:

“No. 2. If you find from the evidence that Gibson Bros, were in an insolvent condition at the time Mr. Boldt visited them, and that Mr. Boldt made an examination of their financial condition, and learned that fact, and then stated to Dr. Montgomery that they were all right, when asked for their condition financially by Dr. Montgomery, then the court tells you that that would be a fraud, if relied on by Dr. Montgomery, and' induced him to sign the note, and that he would not have signed it had it not been for that statement made by a man that he had a right to rely on, given to him as an assurance at that time.”
“No. 3. In considering the question whether or not this signature of Dr. Montgomery to this note was obtained through fraud and misrepresentation, take into consideration the good faith of the parties in their transaction; and in that connection you may consider all of the evidence, all of the circumstances in the whole case, and, if the plaintiff’s agent obtained this signature by misrepresentation and fraudulent statements, after he had known the true conditions, and they were not true at the time he made them, and he knew they were not true, then he cannot recover. On the other hand, Dr. Montgomery could not willingly place his signature to this note and then afterwards learn that Gibson Brothers were insolvent, and because he learned that, afterwards say, ‘ That I am going to kick out. I did not understand they were in that condition, or I would not have signed that note.’ He cannot do that. He is bound by his signature, unless, at the time he signed it, you find that he was induced to sign it through misrepresentation and fraud.”
“No. 4. Now, the burden is on Dr. Montgomery, the defendant, to establish that fact. To establish the fraud and misrepresentation. And he must establish that by a preponderance of the testimony — that is, an outweighing. The testimony on his side must outweigh the testimony on the other side. A bare preponderance, however, is all that is necessary.”

The appellant made a general objection to the above instructions. The jury returned a verdict in favor of the appellee. Judgment was rendered in his favor, from which is this appeal.

The appellant contends that there is no testimony to sustain the verdict, and that the court erred in refusing its prayer for a directed verdict in its favor.

In the recent case of Fowler v. Hammett, 162 Ark. 307, we said: “In testing whether the evidence be sufficient to sustain the verdict, this court must view the evidence in the light most favorable to the verdict. Where a motion for a new trial on the ground of insufficiency of the evidence to sustain the verdict has been overruled by the circuit court, this court will not disturb the verdict.if there be any substantial evidence to support it. This court will not pass on the weight of the evidence or the credibility of witnesses, for this is peculiarly the province of the jury, in the first place, and of the trial court, on motion for a new trial, in the second place. When a cause reaches this court, and the verdict is challenged, the only inquiry is whether there is any substantial evidence to sustain the verdict. Where the testimony is undisputed, and all reasonable minds must draw the same conclusion of fact from it, it is the duty of the trial court to declare as a matter of law the only conclusion or finding of fact to be reached from a consideration of such testimony, and to direct the jury to return a verdict accordingly. ’ ’ 'But otherwise the issue is one of fact for the jury.

Applying these familiar rules to the facts of this record, we are convinced that the issue of whether or not the appellee indorsed the note in controversy because of false and fraudulent representations made by Boldt was one of fact for the jury. The court therefore did not err in refusing to grant appellant’s prayer for a directed verdict in its favor. The court ruled correctly in submitting the issue to the jury, and it was submitted under correct declarations of law.

It could serve no useful purpose to argue the testimony. It is fully stated above, and speaks for itself. The credibility of the witnesses was for the jury, as the court informed them. Giving the testimony of the appellee and the witness Gibson its strongest probative value in favor of the verdict, it cannot be said as a matter of law that the jury was not justified in reaching the conclusion that the appellee indorsed the note in suit because of false and fraudulent representations made by the appellant’s representative, Boldt, to the effect that the business of the Gibson Brothers, at the time the appellee signed their note, was all right — meaning that the firm was solvent; that the appellee relied upon such representation, and had the right to rely on it, and that, but for such representation, he would not have signed the note; that such representation was false, and that the appellant’s representative, Boldt, knew such representation to be false at the time he made it. According to his own testimony, Boldt was the auditor and adjuster for the appellant, and had been sent to Atkins to adjust the Gibson Brothers’ account with the appellant. He had looked over the books of the firm, and the appellee had the right to rely upon his representation concerning the financial status of the firm. True, Boldt testified that he made no representation to the appellee concerning the financial standing of the firm of Gibson Brothers, but the testimony of the appellee, and also of Gibson, was to the contrary, and this presented a sharp conflict in the testimony, which it was the province of the jury to weigh and determine whom they would believe.

Learned counsel for appellant argue that, even if Boldt, in responding to the inquiry of the appellee concerning the business of Gibson Brothers, stated that, according to their books, the business was all right, there is nothing in the record to show that this answer was false, and that there is no testimony to show that Boldt made such .representation with the intention to deceive. •But we do not concur with counsel in this view. It was Boldt’s business to examine the books and ascertain what the-financial standing of the firm of Gibson Brothers was. The'appellee had the right to rely upon his statement that-he had done s'o and ascertained that the business was all' right — that is, that it was solvent. It is significant that' Bol'dt did not testify that, after his examination of •the'book's,-he found it to ben fact that the business was all right — that it was solvent. He only denies that he made- any' such representation. . He does not claim, in his 'testimony,'-that the business was in fact at that time sol■'vent'.". Tlier fáct'that the business soon thereafter utterly ■''collapsed,'-and that Boldt at that time- withdrew over a thousand dollars’ worth of the goods in order to reduce Gibson Brothers’ account, were circumstances, which the jury had a right to take into consideration in determining whether the business of Gibson Brothers, at the time the note was indorsed by the appellee, was in fact all right and solvent. So, if the representations were in fact made by Boldt, and the jury had the right to find that they were, from the testimony of the appellee and Gibson, then there is testimony from which the jury might have found that these representations were false. Counsel for appellant argue that the burden of proof on the appellee is the same as if he were seeking in equity to rescind his contract and cancel the note, so far as he is concerned, for fraud. They cite Cannon v. Jackson, 40 Ark. 417; Kincaid v. Price, 82 Ark. 20; Holt v. Moore, 37 Ark. 145; Fitzgerald v. Walker, 55 Ark. 148-152, and that line of cases. But the rule in these cases, to-wit, that, before equity will cancel, set aside, or reform a deed or instrument for fraud, the proof of the alleged fraud must be clear, convincing and unequivocal, has no application to actions like this at law. Here no affirmative relief of cancellation or reformation of an instrument is sought, but the defense is simply that of nonliability because of deceit and fraud in procuring the instrument which is the foundation of the action. While fraud at law, as well as in equity, is never to be presumed, and must be proved, yet, in actions at law, one who has the burden of proof to establish fraud meets the requirements of the rule when he proves the fraud only by a preponderance of the evidence. The same rule likewise prevails in equity, except in those cases where the rescission, cancellation, or reformation of a writing for fraud of one party and mistake of the other, or mutual mistake, is the relief sought, in which latter case, as we have stated, the proof of fraud or mistake must be clear, unequivocal, and decisive. Welch v. Welch, 132 Ark. 227-36. Where, in an action at law, there is any substantial evidence to sustain a proposition, it is the sole and only province of the jury, or judge trying as a jury the issue of fact, to determine where the preponderance lies. See Fowler v. Hammett, supra; Twist v. Mullinix, 126 Ark. 127,

As is said in the last cited case, at page 439; “Perhaps in the majority of courts of last resort in this country the rule obtains that, where the trial court has sustained the verdict of a jury, the court of review will not reverse the ruling of the trial court in refusing to set aside such verdict, where there is sufficient evidence to sustain it, even though, in the opinion of the appellate court, such verdict may be clearly against the weight of the evidence.” Certainly, it cannot be said as a matter of law that there was no substantial'evidence to sustain the verdict and to uphold the ruling of the trial court in overruling the motion for a new trial in this case.

The appellant contends that instruction No. 4 given by the court was erroneous because it used the language, “a bare preponderance, however,-is-all that is necessary. ’ ’

The court, in the first part of the instruction, had correctly declared the law as to the burden of proof, and the concluding sentence was unnecessary and surplusage. But the language of this sentence did not make the instruction, as a whole, inherently defective. The trial court doubtless would have eliminated -the objectionable language if its attention had been drawn to it by specific objection. The appellant failed to make such objection.

We find no reversible error in the rulings of the trial court, and its judgment is therefore affirmed.


text:
    Volentine v. Wyatt.
    Opinion delivered May 5, 1924.
    1. Master and servant — owner of automobile — -negligence of son. — Where plaintiff sustained injuries through collision with defendant’s automobile, operated by his son, it was error to instruct that defendant was liable for the negligence of his son, regardless of whether the son was agent or servant of defendant or engaged about defendant’s business.

      2. Master and servant — agency oe son as jury question.— Whether or not defendant’s son at the time of the injury to plaintiff was operating defendant’s ear as his agent or servant held, under the evidence, for the jury.
    3. Trial — argumentative instructions. — It was not error to refuse instructions which were argumentative in form.
    4. Trial — instruction assuming disputed fact. — It was error to give instructions which assumed a disputed fact.
    5. Damages — disfigurement of body.. — In an action for personal injuries it was not error to allow the jury to consider as elements of damages the disfigurement of plaintiff’s-.body where there was evidence that she did not have the use of her right arm and that she might lose the- use of that arm.
    6. Evidence — statement of defendant’s son.. — Evidence of statements made in the presence of defendant’s son, without denial by him, that at the time he collided with the automobile in which plaintiff was riding he stated that he intended to hit the automobile in the back, was incompetent as substantive evidence of negligence on his part.
    Appeal from Jackson Circnit Court; Dene H. Coleman, Judge;
    reversed.

      Geo. A. Hillhouse and Jno. W. & Jos. M. Slayton, for appellant.
    The court erred in holding as a matter of law that the son was appellant’s agent, which, appears to have been done mainly on the statement reputed to the son, that he was going to try the car out. While such statement does not' show agency, it is further true that the authority of an agent cannot be proved by his own declarations. 114 Ark. 300; 33 Ark. 251; 44 Ark. 213; 46 Ark. 222. Neither the statement attributed to Myatt Volentine nor the fact that, on previous occasions, he had been seen driving the car, are sufficient to establish an agency or the relation of master and servant. 149 Ark. 428. The son was not engaged on his father’s business, but had turned aside for purposes of his own, at the time of the accident. The case falls squarely within the doctrine laid down in 133 Ark. 327; 207 Mass. 435. Appellant’s requested instruction to the effect that there was no agency, merely because the automobile was furnished for family use, should have been given. 149 Ark. 428.

      Jeffery & Bengal, for appellee.
    The act of testing the oar being in furtherance of appellant’s business, the son was acting within the scope of his employment, and appellant cannot screen himself from liability by setting up private instructions given by him and their violation by his son. Wood on Master & Servant, 559; 47 N. Y. 247; 7 Am. Rep. 448; 7 Am. Rep. 293; 10 Am. Rep. 369; 19 N. W. 752; Ann. Cas. 1914A, p. 1097, and note.. Authority conferred, without special limitation, carried by implication authority to do all things necessary to its execution.. 130 Ky. 380; Huffcut on Agency, § 249. Doubt as to whether the act was within the scope of the employment is usually resolved against the master. Thompson on Negligence, cited in 113 S. W. 249; 18 L. R. A. (N. S.) 923; 132 Am. St. Rep. 304. There was no question for the jury. Where the facts are undisputed, the court must determine whether they create an agency. 100 Tenn. 524, 66 Am. St.' Rep. 761; A. & E. Ene. of Law, vol. 1 (2d ed.), p. 967; 45 S. W. 783; Mechem on Agency, § 105; 19 Ala. 165; 12 Col. App. 351.
   Wood, J.

Allie Wyatt, the appellee, a minor, by her next friend, J. L. Wyatt, instituted this action against the appellant to recover damages for a personal injury. It is .alleged in the complaint that, while J. L. Wyatt, with his daughter, Allie, who was ten years of age, was traveling in an automobile on the public highway, in the direction of Newport, the said automobile was struck by an automobile belonging to appellant; that appellant’s car, at the time it struck the ear in which the appellee was riding, was operated and' controlled by Myatt Yolentine, the minor son of appellant; that, at the time of the injury, appellant’s son was returning from Tuekerman, to which place he had gone, under the direction of appellant, to take the car for repairs; that appellant’s son, while acting as the agent and servant of appellant, negligently ran the car in which he was riding against the car in which the appellee was riding, with such great force as to hurl the car in which appellee was riding from the highway and to overturn the same, injuring the appellee severely. Appellee described her injuries, and alleged that she was damaged, as the result of the negligence of appellant’s agent and servant, in the manner indicated, in the sum of $5,000, for which she prayed judgment.

The appellant answered, and denied specifically the allegations of the complaint, and set up that, if the car in which the appellee was riding was struck by the car driven by the soil of appellant and overturned, appellee’s car was struck through the neglig’ence and recklessness of the driver of the car in which appellee was riding, and through no negligence of appellant’s son.

It could serve no useful purpose to set out and discuss the testimony bearing upon the issues of the alleged negligence of the driver of appellant’s car and the alleged contributory negligence of the driver of the car in which appellee was riding at the time of her injury, and the nature of the injuries sustained by the appellee. It suffices to say that these were all issues for the jury, under the evidence.

Inasmuch as the appellant’s car was being driven by appellant’s minor son at the time of the alleged injury to the appellee, the latter predicates her right to recover on the alleged fact that, at the time of the injury, appellant’s son was acting as his father’s servant and agent. To sustain this allegation, appellee relies upon substantially the following facts:

The appellant testified that his children, during the year the injury occurred, went to school at Tuckerman. A part of the time he took them there himself in his car, and would leave them and bring the car home. Part of the time the children had the car, and would take it and leave it over there. . His son, Myatt, drove it to and fro. He would just take, it when they went to school, and would use it. On Friday evenings he would bring his two little- sisters home from school..- Appellant lived at Estisco. “When they would go from Estisco back to Tuckerman, sometimes Myatt would take them in the car. He did this with appellant’s direction and for appellant’s benefit. Myatt used the car a few other times for appellant’s benefit, whenever appellant had some errand for him to do. He sometimes brought people to the farm for appellant. It was his custom to come home on Friday evenings with the girls, and during that time he would have full control of the operation of the car. Myatt had been driving the car about three years. He used it when he asked permission, or when appellant directed him or told him to use it. On the day the accident happened he had given Myatt directions in regard to the car. Appellant had made arrangements with one Homer Skinner about fixing the brakes on the car, and told Mjyatt to take the car to Skinner, and to stay and help him fix it, in' order to learn something about how to do it himself. He told Myatt that, when they were through, to have Skinner test the brakes and see if they were all right, and then to put the car up. Myatt had no authority to test the car himself, and he did not direct him to do so — did not direct him to drive the car down the road from Tuckerman towards Campbell that afternoon, and did not know that he was going to do so, or had done so, until after the accident happened. It was not done either by appellant’s authority or consent. Appellant told Myatt to take the care to the garage, and, when it was fixed, to take it back where appellant kept it, as Swan’s place in Tuckerman. If the appellant’s son had started the car to Estisco that day, he would have been going the way he was going at the time of the accident.

Myatt Volentine testified concerning his use of the car as follows: One morning about eight o ’clock his father sent him down to Homer Skinner to have the car fixed — overhauled. Homer and the witness ground the valves and put in new rings and new brake linings, and got the car done about two o’clock. Then witness and the mechanic drove the car down the rock road north of Tuckerman, and tried it out. It ran good — the brakes were good. Then they came back to Tuckerman. The mechanic turned it over to witness as finished, and witness went by the restaurant at Tuckerman, and there was a young man standing there by the name of Sam Campbell. Witness ashed Campbell if he wanted to go riding a little piece. Witness told Campbell that he was going-out to try the car. Witness stated that his father told him to take the car up there to the garage and fix it. Witness guessed that his father wanted him to try it out and then bring it home. When they were living at Estisco, and the children were going to school at Tucker-man, witness had occasion to go from Tuckerman to Estisco when his father told him to. He went in the car and drove it himself. Any time his mother wanted to come over to Tuckerman, she would write a letter and tell him to come, and he would go over and get her. In the meantime his father had the car part of the time, and witness had it part of the time, back of the house at Swan’s barn. Witness would go over there and get it — most of the time every Friday. Witness had driven the car ever since they had it, every time his father told him to. Witness was present when the work was done by Skinner, and helped supervise the work. Witness knew what was necessary to be done, and could make the ordinary repairs himself, if it was not out of witness’ line.

After defining the issues, the court, among- other instructions, gave the following: “No. 1-A. You are instructed that, under the evidence, the law makes the defendant, Yolentine, in this case liable for the negligence, if any, of his son Myatt, in operating his car at the time of the alleged injury.”

“No. 3. If you find from a preponderance of the evidence in this case that defendant’s son, whiie operating defendant’s car which caused the injury complained of, approached from the rear of the car in which plaintiff was riding, and undertook to pass said car, without giving- sufficient notice of his approach to the person operating plaintiff’s car that would enable him do appreciate the threatening danger from defendant’s car, and to turn aside from the course in which he was traveling before the collision occurred, then you would be authorized to find for the plaintiff.”

“No. 4. If you find from a preponderance of the evidence in this case that defendant’s son, while operating defendant’s car at the time of the alleged injury, approached from the rear the car in which plaintiff was riding, and, while attempting to pass it, negligently permitted his car to come in contact with said car, causing the injury complained of, you would be authorized to find for the plaintiff, unless you find that the driver of the car in which plaintiff was riding was guilty of negligence which contributed to the injury; and the acts constituting such negligence are to be determined from all the facts and circumstances in this case, which are defined by the instructions I have given you.”

Among other prayers for instructions the appellant presented the following:

“No. 1. You are instructed that, in order for the plaintiff to recover in this case, it must appear by a preponderance of the evidence:
“First. That the car driven by defendant’s son struck the car in which plaintiff was riding, and caused it to be thrown from the road, and inflicted the injury sued for.
‘ ‘ Second. ■ That, at the time said injury is alleged to have been sustained, defendant’s son was acting as defendant’s agent or servant in driving defendant’s car.
‘‘Third. That the striking of the car in which plaintiff was riding was due to the'negligence of defendant’s son.
“The burden of proof is upon the plaintiff to establish these facts, unless they appear from the defendant’s evidence. ’ ’
“No. 5. You are instructed that no liability can be imposed upon the defendant in this' case simply because he is' the father of the person who was driving his car at the time the injury is alleged to have occurred, and that, before you can find a verdict for the plaintiff in this case, it must appear, from a preponderance of the evidence, that defendant’s son, at the time the injury is alleged to have occurred, was the agent or servant of defendant, and that, in driving the car upon such occasion, he was engaged about his father’s business, and the burden is upon the plaintiff; to establish these facts, unless they appear from the evidence of defendant.
“No. 6. The mere fact that "the defendant is- the father of the person who was driving his car at the time the injury sued for is alleged to have occurred, together with the facts, that he had supplied the car for the use of his family, and at times permitted his said son to use said car for the son’s own purposes, would not, taken alone, be enough to establish, at the time of such accident, the relationship of master and servant or principal and agent -between defendant and his said son.
“No. 7. In determining whether the defendant is liable in this case, you should first find, from all the evidence in the case, whether or not the defendant’s son, at the time when and the place where the injury occurred, was using defendant’s car upon defendant’s business; and nest, whether or not said son was negligent in so using said car, and if you find from the evidence that, at such time, said son was using .said car, not about his father’s business, but solely for purposes of his own, then you should return a verdict for the defendant herein, without considering further whether or not said injury was due to the negligence of said son.”'
“No. 8. You are instructed that, if the defendant gave his son specific directions with reference to talcing his automobile to a repair shop and bringing it home after such repairs were made, and that said son, in -carrying out such directions, and before he complied therewith, departed from such instructions, and took said car out purely for his own purposes, and not in obedience to any direction from defendant, or in furtherance of defendant’s business, and, while so doing, the injury sued for occurred, then the defendant would not be liable therein, regardless of whether or not such injury was due to the negligence of said son.”

The court modified appellant’s prayer for instruction No. 1 by striking out the second subdivision, and gave the same as modified. The appellant duly excepted to the above rulings of the court. There was a verdict in favor of the appellee in the sum of $2,500. Judgment was entered in her favor for that sum, from which is this appeal.

The court erred in telling the jury as a matter of law that the appellant was liable for the negligence of his son, if any, regardless of whether or not the son of appellant at the time of the injury was the agent or servant of appellant and engaged about his father’s business, and erred in striking out the second subdivision of appellant’s prayer for instruction No. 1. Norton v. Hall, 149 Ark. 428. These were issues for the jury. We do not concur with learned counsel for appellant in the view that there was no testimony whatever tending to prove that appellant’s son at the time of the injury was acting as' the agent of his father in driving the automobile, and that there was no testimony tending to prove that he was acting within the scope of his agency, and that the court therefore erred, in not giving appellant’s prayer for a directed verdict in his favor. These issues should have been submitted to the jury. Under all the testimony in the record, it was for the jury to say whether or not the son of appellant at the time of the injury was acting as the agent and servant of appellant and engaged about his father’s business. If he was the agent and servant of his father, and at the time of the injury was acting within the scope of his employment — that is, engaged' about any business that his father had directed him to do — then the father would be liable, even though at the time of the injury the son and servant was not acting under the immediate orders or directions of his father and master, and even though at the time of the injury he might have been acting contrary to his father’s instructions. On the other hand, if Myatt Volentine was not the agent or servant of his father, or, if he was such agent or servant, but had stepped aside from his father’s business and was engaged purely in business or pleasure of Ms own concern, then his father and master would not be liable for his tortious act.

The rules of law applicable to the facts of this record are stated in Healey v. Cockrill, 133 Ark. 327, and cases there cited. The court should have submitted the issues, under the testimony, to the jury according to the doc trine there announced.

The court did not err in refusing to give appellant’s prayers for instructions Nos. 5 and 6, because these instructions were argumentative in form, but the law applicable to the facts was correctly declared in appellant’s prayers for instructions Nos. 7 and 8, and these should have been given. It follows, from what we have said, that the court erred in giving its instructions Nos. 3 and 4, as well as No. 1, because they assumed that appellant’s son was acting as his agent and within the scope of his employment at the time of the injury. Instruction No. 3 was also erroneous because it assumed that the appellant’s car caused the injury, and that appellant’s car threatened danger to the appellee. This instruction was erroneous in not submitting- these issues to the jury-

The appellant objects to the ruling of the court in giving instruction No. 6, on the measure of damages, on the ground that it permitted the jury to consider as an element of damages the disfigurement to appellee’s body, when, as appellant contends, there was no testimony tending to prove that appellee’s body was or would be disfigured by the injury. The doctor who had been treating the appellee testified that, for three months past, she did not seem to have the use of her arm that she should have, from a loss of nerve stimulus; that it was then in that condition. There was a loss in motion of the arm as a result of the injury. She did not have the same use of her right arm as of the left. No one could say what the outcome would be. Injuries done to the brachial plexus sometimes resulted in complete paralysis. She might have complete paralysis. There is a tendency iu that direction. If she had complete paralysis, she could not use her arm. This testimony justified the court in submitting tbe disfigurement of body as an. element of damage.

The court permitted tbe witness Alvis Jackson to testify, over tbe objection of appellant, that Sam Campbell, who was in tbe car with appellant’s son at tbe time of tbe collision, told witness, in the presence of appellant’s son, that tbe latter, before be got up to appellee’s car, said he thought it was a jitney, and told Campbell that he intended to bit tbe car in which appellee was riding in the back, and that appellant’s son did not deny this statement.

While counsel for appellant in .their argument have not insisted that tbe judgment should be reversed because of tbe alleged error in permitting tbe above testimony, yet, in view of a new trial, we deem it proper to say that tbe above testimony of Jackson would not be competent as substantive evidence of negligence on tbe part of Myatt Volentine. Itzkowitz v. Ruebel & Co., 158 Ark. 454-59.

We find no other reversible errors in tbe record, but, for those indicated, tbe judgment is reversed, and the cause is remanded for a new trial.