text:
    Roath v. State.
    Crim. 3791
    Opinion delivered June 13, 1932.

      Floyd Terral, for appellant.

      Hal L. Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee.
   Butler, J.

Luther Lindsey was killed about three miles out of the city of North Little Rock between eight and nine o ’clock on the evening of August 8, 1931. Clyde S.. Roath, the appellant, and Mrs. Mary A. Griffin were jointly charged with his murder. A severance was granted, and the appellant placed on trial, which resulted in the conviction of the appellant and sentence to imprisonment in the State penitentiary for life.

The testimony introduced on the part of the State, independent of that of Mrs. Griffin, tended to establish the following facts: Mrs. Griffin was in the employ of Dr. Roath as an assistant in his office, and had been so employed for several years. She was a married woman, but was separated from her husband.

Mrs. Griffin had an appointment with Luther Lindsey to meet him near a school house in North Little Rock, the time for the meeting being eight o’clock, p. m. About eight thirty p. m., Mrs. Griffin was discovered a distance from North Little Rock walking on the highway in the direction of the city. Four young men who were driving an automobile, seeing her, stopped their car, and Mrs. Griffin asked to be carried back to town, explaining that she had been out driving with two men; that they had tried to “get funny,” and she had gotten out of the car and started back to the city. One of the young men in the automobile noticed a purse Mrs. Griffin was carrying and testified that it appeared to be “bulging.” At her request she was driven to a drug store at 5th and Main streets, about six blocks from Dr. Roath’s office. She got out of the car there and left, walking in the direction of Dr. Roath’s office.

A short time after Mrs. Griffin reached Dr. Roath’s office and went in, Dr. Roath was seen to enter his office with his medicine case in his hand. About nine or nine-thirty p. m., Mrs. Griffin called her home, and told some one there to come to Dr. Roath’s office for her. After this, Dr. Roath called Mrs. Griffin’s home and said that they need not come for her — that he would bring her out himself. Dr. Roath received an emergency call and went to attend a child who was choking. He went to the home of the child’s parents in response to this call, reaching there about 9:40, and remained there some ten or fifteen minutes and, having given the child relief, left and entered his car. The child’s father followed him to the porch and saw a woman sitting in the doctor’s car whom he did not recognize.

Mr. Moore, the chief of police of North Little Rock, was away from his home after dinner until about eleven o ’clock p. m., at which time he returned. He then learned that several telephone calls had been received at his house from some one who wanted to speak to him, but no name was given. Soon after his return and after he had received the above information, the telephone rang again, and a man’s voice asked for permission to come out there. The name of the caller was not given, but just then another person spoke over the ’phone who said that she was Mrs. Griffin, and that her business with the chief was imperative. She was then given permission to come. Soon after that she arrived and entered Chief Moore’s house alone, and told the chief, among other things, that Dr. Roath had brought her out there, and that he was then outside waiting in the car. She told the chief about the killing of Luther Lindsey, and, at the chief’s suggestion, she was driven by Dr. Roath, first to police headquarters, and then led the way out to a highway beyond the city limits, and from thence to a point a few yards beyond what is commonly called ‘ ‘ The Gravel Pit.” There Lindsey’s car was found on the side of the highway, and his dead body in the car lying forward on the driver’s seat face downward. An examination of the body made soon thereafter disclosed that Lindsey had been killed by a thirty-eight calibre pistol bullet which entered the car from the rear breaking the back window and entering Lindsey’s back and penetrating his heart.

A considerable number of persons, members of the police force of North Little Rock, and some officers from Little Rock had accompanied Dr. Roath and Mrs. Griffin to the scene of the homicide. All of these were present when the dead body of Lindsey was found, and some of them began to question Mrs. Griffin in the presence of Dr. Roath. Dr. Roath appeared excited and nervous, and advised Mrs. Griffin in the presence of the officers not to tell the newspapers or the officers anything — that she could only be held for a time as a suspect, and that he would be down to see about it. This statement appears to have been made at a time when the officer had indicated that he was going to take Mrs. Griffin in charge and take her down to his office. As the officer and Mrs. Griffin were preparing to go, she extended her purse to Dr. Roath who reached for it- — -“snatched it,” the officer said. This officer, instead of letting Dr. Roath take the purse, took it himself, but it was -not shown that the purse contained anything out of the ordinary.

In addition to the above facts, about which there is' little, if any, dispute, two women employed at the Mayflower Dairy which was located in the same block as Dr. Roath’s office about two hundred feet away, testified that at about eight o’clock on the evening of the homicide they saw Dr. Roath and Mrs. Griffin in Dr. Roath’s car passing in front of the Mayflower Dairy. A man, the superintendent of the Mayflower Dairy, was said by the two women to have been with them standing or sitting in front of the dairy when Dr. Roath and Mrs. Griffin were seen together on that evening. This man testified as to having seen Dr. Roath in his car at about the time stated by the two women, which, he said, was about ten minutes before eight o’clock. This witness, however, was not positive that Mrs. Griffin Avas in the car Avith Dr. Roath.

Mrs. Griffin Avas an employee of Dr. Roath, and had been working in his office for two years or longer. She acted as his office girl, bookkeeper and as nurse for such of his patients as needed her services and would accompany the doctor and assist him in all obstetrical cases. She remained on duty in his office and in the discharge of her other duties every day and frequently in the evening. It was in evidence that Dr. Roath would be seen often with Mrs. Griffin in his car and would also be seen on a number of occasions going to or returning from Mrs. Griffin’s home; that at least on one occasion while at her home he appeared to become impatient or angry. One witness, Ralph Mara, when asked, in connection with his testimony about Dr. Roath coming to Mrs. Griffin’s while witness was there, if he had ever heard the doctor and Mrs. Griffin fussing, stated, “No, sir — the only thing I ever heard him say — he came there one night as we were getting ready to leave, he cursed and said, ‘God damn, ain’t you ready?’ ” Witness did not say what was the occasion for the doctor’s impatience or to whom he was addressing his remark.

A witness Mrs. F. A. Matthews, in addition to having testified that, on a few occasions when Mrs. Griffin was visiting at her house in the evening, Dr. Roath would come there for her and take her away. She also stated that one night when Mrs. Griffin visited her she had her neck bandaged up and there was a blue place on her arm.

Another woman, Mrs. Ruby Counts, stated that she had seen blue marks on Mrs. Griffin’s arm.

The above, in substance, is the evidence introduced on the part of the State, except it may be said that Lindsey’s pistol was found on the car seat under his body with three chambers carrying empty shells and that there was sand on the pistol which had been seen the afternoon of the day of the homicide in Lindsey’s possession, bright and clean, and with all chambers carrying loaded shells. There was further testimony on behalf of the State given by Mrs. Griffin’s daughter, to the effect that her mother dined at home on the evening of the killing, and after dinner, and a short time before eight o’clock, the witness, at her mother’s request, drove Mrs. Griffin to a point rig’ht near the Clendenning schoolhouse, where she got out of the car and walked to the schoolhouse.

There was additional testimony to the effect that it required ten minutes to drive a car from the gravel pit to Mrs. Robinson’s borne, where Mrs. Robinson testified that Dr. Roath was, at eight-thirty, visiting her sick child.

Mrs. Griffin testified at the trial of Dr. Roath in substance to'the following facts: that she had had intimate relations with Dr. Roath and with Lindsey, and that the doctor was jealous of Lindsey, and had on more than one occasion reproached her for her relations with Lindsey and did her physical violence because of Lindsey’s attentions to her. She stated that she told the doctor that she was going to a picture show that night, and he told her then that if she had a date with Lindsey it would just be too damn bad, and that if she didn’t stop going with him some one would be killed; that when she and Lindsey arrived at the gravel pit they saw a car standing there which resembled a Buick sedan owned and driven by Dr. Roath, and that either in the act of getting in or out of the car was a man who had on a light colored hat, shirt and trousers; that the Doctor on that day wore a panama hat and was dressed in light colored garments ; that as they approached and Lindsey saw the car, he said, “Somebody has beat us here, and we will go further,” so he turned his car and parked at another place. Just a few minutes after they stopped, and before they had gotten out, there was a little sound, and she looked back and saw a man standing back of the car. She screamed, “There is a man,” and Lindsey reached for his pistol and the man said “Stick ’em up,” and again said, “Stick ’em up, G............ d........... you,” and the firing began. Lindsey “grabbed himself and says, ‘They have got me’ and drew several breaths and leaned over on the steering wheel and fell right over against me and I eased out from under him and stood by the car. ’ ’ Mrs. Griffin was badly frightened. She stood there a few minutes,-and then left in the direction of the highway, and, as she passed the gravel pit, the car she had seen standing there was gone. She was unable to recognize the person who she saw at the car or the one who' appeared at the back of Lindsey’s car or to recognize his voice.

The defendant was not called to testify in his own behalf, but several witnesses were called for him, and testified that they were his- patients and called at his office at abont eight o’clock on the evening of the.homicide; that the doctor was in his office examining, and administering to his patients from eight to eight thirty p. m. on that night. Á Mr. and Mrs. Robinson testified-that they called Dr. Roath to visit- their child, and that he came at abont eight-thirty o’clock; that he stayed about a half hour at their house and left just a few minutes before nine o’clock. ■ ' .= .

The case was submitted to the jury on a number of instructions to which only general objections were made, but the court failed to give, ■ or the counsel for defendant to request, an instruction submitting to the jury the law by which they might weigh the testimony of an accomplice and telling them that a conviction could not be had on the uncorroborated testimony of an accomplice. The trial resulted in a verdict of guilty of murder in the first degree, and punishment was fixed at imprisonment in the State penitentiary for life.

- Subsequent to this trial and within the time given by the court for presenting defendant’s motion for .a new trial, Mrs. Griffin was placed on trial for the same crime. She testified and repudiated the testimony given in the trial of Dr. Roath to the effect, that he had maintained illicit relations with her, and that he was jealous of Lindsey, that he had threatened Lindsey and had struck or bruised the witness because of her associations with Lindsey. In a word, she recanted, all that part of her testimony which tended to show motive on the part of Roath for the commission of the crime, explaining how her statements were induced by the officers while she was held in jail and stating that none of these statements made on the trial of Roath were true; that the only times Roath ever spoke to her about her relations with Lindsey was when he objected to her-receiving Lindsey’s attentions while she was in the doctor’s office.

In the motion for a new trial filed by the defendant a number of alleged errors were assigned, among which (1) that there was no testimony independent of that given by Mrs. Griffin tending to connect the defendant with the commission of the crime, and (2) the recantation made by Mrs. Griffin presented such a state of case as would entitle him to have the verdict of the jury set aside and that he be granted a new trial.

After a painstaking consideration of the briefs filed by counsel and a careful reading of the entire testimony contained in the transcript, we have reached the conclusion that there was no substantial evidence independent of the testimony of Mrs. Griffin to connect the defendant with the commission of the crime. Mrs. Griffin, according to the State’s theory, admittedly was an accomplice indicted jointly with Dr. Roath, and, after his trial and conviction, was herself placed on trial for the murder. Therefore § 3181, Crawford & Moses’ Digest, applies, which is as follows: “A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not' sufficient if it merely shows that the crime was committed, and the circumstances thereof. Provided that in misdemeanor cases a conviction may be had upon the testimony of an accomplice.”

Counsel for the appellee have argued with great force and earnestness that all the circumstances “not only tend to connect the doctor with the commission of the crime, but without question show his guilt, and that is true without consideration being given to the testimony of Mrs. Griffin.” As stated, we have not only read the abstract of the evidence in the briefs, but have examined the testimony * of the witnesses in the transcript with anxious care, and we are unable to view the circumstances as does the prosecution.

What are the circumstances which counsel think so clearly indicative of guilt? Briefly re-stated, they are these: On a number of occasions Dr. Roath went to the home of Mrs. Griffin and on others to a neighbor’s house for her, and would leave with her in his car. Two of Mrs. Griffin’s neighbors saw bruises on her arm. Dr. Roath was seen with Mrs. Griffin a few minutes before 8 o’clock on the night of the homicide, in his car, passing in front of the Mayflower Dairy. A few minutes after nine o’clock on this same night, Mrs. Griffin went into the office of Dr. Roath, and he followed her in a few minutes. The murder was not reported until eleven o’clock. Between the time Mrs. Griffin left the car in which the four young men brought her to the city she walked to and entered the doctor’s office, and was with the doctor until the crime was reported to Chief Moore. Dr. Roath made an emergency call after 9 o’clock and before the crime was reported, and a woman was seen seated in his car in front of the house where this patient lived. At about eleven o’clock Chief Moore was called over the telephone by a man who did not give his name, seeking an interview, and, while he was talking, the telephone was taken by one who informed the chief of her identity and obtained permission from him to come to his house. Dr. Roath drove her to the home of Chief Moore and remained in the car while she went in. From there he drove her to police headquarters and from thence to the scene of the crime. While there he was nervous and, in the presence of the officers, advised. Mrs. Griffin not to talk, stating that she could only be held for a time as a suspect, and that he would see about it. He attempted to take Mrs. Griffin’s purse which she held out toward him, but was prevented by an officer, who took it himself. This purse was seen by the boys who picked Mrs. Griffin up, and it seemed to them to be filled or full of something.

It seems to us that these circumstances, when viewed impartially, create a mere suspicion at most as to Dr. Roath’s complicity in, or perpetration of, the murder. When examined in the light of the other facts surrounding these circumstances, they appear to be consistent with his innocence. It must be remembered that Mrs. Griffin was, and had been, in the employ of Dr. Eoath for a number of years occupying a more or less confidential relationship, and her presence in the discharge of her duties was required often and frequently at night. Hence it was not out of the ordinary that he should call frequently at her house or be seen often with her in his car. There was no independent testimony as to how the bruises which were seen on Mrs. Griffin’s arm were occasioned. Whether the doctor was actually seen with Mrs. Griffin in his car in front of the Mayflower Dairy at about eight o’clock on the night of the murder is extremely doubtful. The testimony of the two women by which this fact was sought to be established is in direct conflict and irreconcilable with the testimony of other witnesses who testified in behalf of the State, and the companion of the two women, the superintendent of the Mayflower Dairy, was not positive that Mrs. Griffin was in the car with Dr. Eoath. However, if the fact be true, it has no significance because the Mayflower Dairy was in the same block as Dr. Eoath’s office, not more than two hundred feet away and several miles from the scene of the crime, which must have been perpetrated around fifteen to thirty minutes after eight o’clock. Shortly after nine o’clock, a witness, whose place of business was near the office of Dr. Eoath, saw the doctor park his car about a fourth of a block from his office and get out of it with his satchel in his hand. Just a moment or two before this the witness had passed Mrs. Griffin, spoke to her and saw her go into Dr. Eoath’s office, and in a moment Dr. Eoath came by, and he too entered the office. Within a few minutes after Mrs. Griffin and Dr. Eoath met in his office at the time last mentioned, Mrs. Griffin told him of the assassination of Lindsey, at which time he showed great concern, and when asked by her what she should do he said that he must have time to think before advising. She had called her home and Eoath then called it and said he would bring Mrs. Griffin home, and, after a discussion, it was decided that it would be better to give the information to the chief of police, rather than to some one else, as he would know better what action to take than an ordinary officer. Dr. Roath attempted to get in communication with the chief at the latter’s residence by telephone, but the report was that the chief was.out. About that time Dr. Roath was called to attend a child who was very ill, and Mrs. Griffin, not wanting to remain alone, went with the doctor in his car and remained in the car while the doctor went in to administer to the child. They returned to the office and again attempted to communicate with Chief Moore and again were unable to find him at home. Just how many times they called the chief is uncertain, but he testified that he was informed that he had been called several times before his return home at eleven o’clock. ”

It is argued that because Dr. Roath permitted Mrs. Griffin to remain in his office for the timé she' did, go with him to visit his patient, call Chief Moore’s residence without giving his name, carrying Mrs. Griffin to Chief Moore’s home and remaining' outside in his car, then taking her in his car to the scene of the crime together with his nervous conduct while at the scene of the crime and his frequent warnings to her not to talk, and his attempt to take her purse are all highly indicative of guilt. It seems to us however that this would be the natural conduct of a physician where a woman who'had been in his employ for two or three years had suddenly-appeared in his office and informed him of the; tragic event of that night.' It was bound to have moved him; profoundly and excited his apprehension for the woman, and it was but natural for him to endeavor to advise her, and a reasonable thing that he should prefer.to communicate first with Chief Moore and to wait before disclosing the crime till this could, be done. He took her to the scene of the crime on the indication of the chief, and it is not remarkable that he was nervous, and that, seeing the woman alone and without friends, he should advise her not to talk. The fact that he gave her this advice in the presence of the officers to.our minds indicates an honest endeavor to give her proper advice, and was not at all an indication that he had guilty knowledge of the crime. The purse snatching is a trifling incident because the purse was taken by the officer, and, if it had contained anything unusual or which might tend to incriminate either Dr. Roath of Mrs. Griffin, certainly the officer would have given information as to its contents.

This court has recognized the rule that the corroboration of an accomplice may be sustained by circumstantial evidence, and it need not be of that degree which, of itself, would be sufficient to justify a verdict of guilty, but this evidence is not sufficient corroboration where it is equivocal or uncertain in its character. It must be such that legitimately tends to connect the defendant with the crime and of a material nature. Hudspeth v. State, 50 Ark. 534, 9 S. W. 1; Vaughan v. State, 58 Ark. 353, 24 S. W. 885; Scott v. State, 63 Ark. 310; Cook v. State, 75 Ark. 540, 87 S. W. 1176; Celender v. State, 86 Ark. 23, 109 S. W. 1024; Earnest v. State, 120 Ark. 148, 179 S. W. 174; Strum v. State, 168 Ark. 1012, 272 S. W. 359.

It will be remembered that the question of an accomplice was not presented to the jury, but it is proper for us to consider this question and- the nature of the evidence sought for its corroboration, for it goes to the sufficiency of the testimony. Redd v. State, 63 Ark. 457, 40 S. W. 457.

In considering the recantation made by Mrs. Griffin of her testimony in the case at bar, it may be said that it is the better rule that the recantation of testimony of a material witness made after the trial and verdict is not sufficient to authorize the setting aside of the verdict and granting of a new trial where the verdict is justified on other testimony than that of the recanting witness, and in such cases we have consistently refused to reverse for a new trial. Osborne v. State, 96 Ark. 400, 132 S. W. 210; Brown v. State, 143 Ark. 523, 222 S. W. 377; Little v. State, 161 Ark. 245, 255 S, W. 892. However it is equally well settled in cases where the material evidence upon which a verdict is grounded, and without which it would not have been justified, is given by a witness who subsequently repudiates this testimony, a new trial ought to be granted. Bussey v. State, 69 Ark. 545, 64 S. W. 268; Shropshire v. State, 86 Ark. 481, 111 S. W. 470; Meyers v. State, 111 Ark. 399, 163 S. W. 1177.

In this case, as stated, we have not found any substantial evidence other than that contained in the testimony of Mrs. Griffin which tends to establish the guilt of the accused, and because of this, even though she were not an accomplice, her recantation presents such a state of case that makes us believe that a grave injustice might be wrought by suffering the judgment based on her evidence to be sustained, and that the ends of justice would best be served by a new trial. Reversed and remanded.


source: Caselaw Access Project

author: Butler, J.

license: Public Domain

text:
    Morrilton v. Moose.
    4-2563
    Opinion delivered May 23, 1932.

      E. A. Williams, for appellant.

      W. P. Strait, for appellee.
   Butler, J.

On December 20, 1926, the city of Mo-rrilton by proper resolution designated the People’s Bank & Trust Company as the depository for the funds of the city, and on the 23d of December, following*, a depository bond in the sum of $10,000 was executed by the bank and signed by the appellees as sureties by which they obligated themselves that the principal, People’s Bank & Trust Company, should promptly pay. upon presentation all checks lawfully drawn upon such depository by the city treasurer or other proper officials of the city of Morrilton, so long as any funds of the said city should remain in said depository.

Without having passed any additional resolution or having executed any other bond, the city of Morrilton continued to deposit money in the bank until November, 1930, when the bank became insolvent and closed its doors. At the time the bank was taken over for liquidation, the city had on deposit the sum of $8,293.82. A short time thereafter the officials of the bank and other parties interested took up the matter of re-opening the bank, and it was agreed between them and the State Bank Commissioner that, if 65 per cent, of the depositors would agree to accept certificates of deposit payable in one, two and three years, bearing* three per cent, interest, the bank might be reopened. The city council, by proper resolution, accepted this proposition and certificates were issued to the city covering the funds it had on deposit at the time the bank closed. More than 65 per cent, of the depositors accepted the agreement, and had issued to them certificates payable in one, two and three years, and the bank reopened. The city of Morrilton, however, did not then or thereafter make any further deposits with that bank. The bank, as reorganized, began to do an active business accepting- deposits and paying checks until May 28, 1931, when it finally closed its doors and surrendered its assets to the State Bank Commissioner for liquidation.

An action was instituted by the city of Morrilton to recover on the depository bond and the sureties answered denying liability, on the ground that they were released by reason of the agreement for reopening the bank and the acceptance of time deposit certificates by the city. Other defenses were also pleaded.

An agreed statement of facts was entered into by which the facts above stated were admitted, and further that “the sureties upon the bond in question were not consulted by the city of Mor-rilton as to whether or not it should enter into any such agreement, accepting time deposit certificates, and' the matter of accepting said time deposit certificates was purely an act of the city of Morrilton, acting through its city council and mayor,” and that, “excluding the signing of the agreement and accepting time deposit certificates by the city of Morrilton for its deposits, more than 65 per cent, of other depositors signed the agreement and accepted time deposit certificates.” It was stipulated also that additional proof might be taken upon any issue not covered by, or included in, the agreed statement of facts.

The appellee, Mrs. J. J. Scroggin, in addition to the defenses of the other sureties, defended also upon the ground that she did not in fact sign the bond or authorize any one to sign it for her. Testimony was taken on this question and also to the effect that the interest received by the city of Morrilton on the daily balance of its deposits from the time that it first began to do business with the bank until the bank first closed its doors was from two to two and a quarter per cent.

The case was submitted to the court on the stipulation of facts, the testimony adduced and the pleadings. The court found in favor of the defendants, the sureties on the bond, and entered a decree dismissing the complaint as' to them, from which the appellant prosecutes this appeal.

A number of questions are presented and argued by counsel in their respective briefs which we find it unnecessary to determine, as we think the decree must be sustained on the defense interposed that the sureties were released by the action of the city in entering into the reorganization agreement and accepting certificates of deposit due in one, two and three years, bearing interest at the rate of 3 per cent., in lieu of its deposit in the hank at the time it first closed its doors.

The form of the certificate issued by the bank to the city of Morrilton pursuant to the agreement for the reopening of the bank is as follows:

“This is to' certify that city of Morrilton, Bond Retirement Fund, has deposited in the People’s Bank & Trust Company, of Morrilton, Arkansas, as a time deposit, one thousand, two hundred seventy-four & 65/100 dollars, due and payable by said bank to said depositor, or his order, on or before December 15, 1931, together with interest thereon at the rate of 3 per cent, per annum from the date of this certificate until paid, which said amount, with interest will be paid to the legal holder by the People’s Bank & Trust Company at the maturity thereof, and upon surrender of this certificate, said deposit not being subject to check.”

The other certificates are like the one copied except in amount and maturity dates. It will be observed that these certificates are negotiable, and are in effect interest-bearing promissory notes. It will also be remembered that the interest received on the deposits before the bank closed its doors did not exceed 2% per cent., while the certificates bore interest at the rate of 3 per cent. This, together with the agreed statement that the agreement fon the reopening of the bank and the acceptance of the certificates in lieu of the deposits, was made without the sureties having been consulted, and in our opinion discharged them from further liability.

“An extension of time of payment to the principal, without the consent of the sureties, operates as a discharge of the latter from further liability, but such extension must have been for a definite time, and upon valid consideration.” Colvin v. Glover, 143 Ark. 498, 220 S. W. 832.

In the instant case there was an extension of the time for payment of the deposits without thé consent of the sureties and a higher rate of interest was agreed upon than that received on the original deposits for which the sureties were liable. This was a sufficient consideration for the agreement and created a different obligation from that for which appellees were bound without their consent and for the convenience of the city of Morrilton. Union Indemnity Co. v. Benton County Lumber Co., 179 Ark. 761,18 S. W. (2d) 327; Colvin v. Glover, supra. See also Hill v. Trezevant, 123 Ark. 244, 185 S. W. 280; Berman v. Shelby, 93 Ark. 472, 125 S. W. 124.

The conclusion we have reached is not against the doctrine announced in Waterworks Imp. Dist., etc., v. Rainwater, 173 Ark. 523, 292 S. W. 989, relied on by the appellant. In that case there was no execution of a new contract as in the case at bar, but a mere extension of the time of the old, and that fact alone could not work to the disadvantage of the sureties and did not effect their release. In the instant case negotiable- instruments which might have been sold or transferred to a third party were taken in the stead of a checking account and created a new contract, not only in form, but in substance, which precluded the city of Morrilton from withdrawing its money from the bank either in whole or in part and placed the sureties in a position where they could not protect themselves.

The decree is affirmed.


text:
    Missouri Pacific Railroad Company v. Heard.
    4-2559
    Opinion delivered June 6, 1932.

      R. E. Wiley and Richard M. Ryan, for appellant.

      John L. McClellan, for appellee.
   Butler, J.

Mrs. Allie Heard, the appellee, who lives on a farm in the vicinity of Malvern, was visiting relatives in California in the month of December, 1930. When she desired to make the return trip home, she was informed by a railroad agent at Redlands, California, that, by purchasing a through ticket to Little Rock instead of to Malvern, she could get excursion rates and her fare would be cheaper, and that she would be put off at Malvern when she indicated that she wanted to do so. At the same time she was told what train to take and at what point it would be necessary for her to change trains. Appellee purchased a ticket as suggested by the agent and began her journey. She was not put off at Malvern or carried to Little Bock, but was put off at Arkadelphia.

Appellee brought suit against the appellant alleging a wrongful ejectment from the train at Arkadelphia, and that in ejecting her the conductor of the train was guilty of rude and insulting conduct; that he jerked her from the train to the sidewalk where she would have fallen had she not been supported by the negro porter who was standing there; that she was injured to such degree that a malady from which she had at one time suffered and of which she had been cured, recurred, and that she had never been well since that time. She further alleged that as a result of the insulting conduct of the conductor and the manner in which she was ejected from the train she was humiliated. She prayed punitive damages in addition to compensatory damages.

An answer was filed denying all the material allegations of the complaint, and alleging, as an affirmative defense, the negligence and carelessness of the appellee in getting on the wrong train when, by the exercise of ordinary care she would have known that the train upon which she elected to ride did not stop at Malvern.

The material evidence in the case in behalf of the appellee was contained in her testimony and that for the appellant in the testimony of the conductor who operated the train from Texarkana to Little Bock and his negro porter. The testimony was in direct and sharp conflict, but as the jury accepted the testimony of the appellee as true and rejected that of the conductor and porter where it was in conflict with that of the appellee, under the settled rule we must accept the judgment of the jury if there is any substantial evidence in support, of the conclusion reached.

The material testimony of the appellee, briefly stated, is as follows: She lives on a farm near Malvern, and visited relatives in California in the year 1930. About the 20th of December of that year, she went to the railroad office at Redlands, California, and told the station agent that she wanted to purchase a ticket from there to Malvern. She was informed by the agent that by purchasing a ticket through to Little Rock she could have the benefit of a special rate which would be considerably less than if she bought a ticket to Malvern. She was also informed at that time that she could get off at Malvern, notwithstanding the fact that her ticket read to Little Rock, and she was given instructions as to what train to take and where to transfer on her journey. It was necessary for her to change trains at El Paso, and there she informed the railroad officials of her intention of proceeding to Malvern, Arkansas, and was directed as to what train to take and again told that she would be put off at Malvern on indicating a desire to that effect. She made no further change after leaving Port Worth, but the train crew was changed at Texarkana, and from there on through Malvern and Little Rock the train was controlled by the conductor, Charles A. Guidici. When he made his first round after leaving Texarkana, the appellee presented her ticket and told him that she wanted to get off at Malvern. He left, and a little later came back and informed her that the train did not stop at Malvern, but that he would put her off at Prescott. Some argument ensued and the appellee refused to get off at Prescott. Later on the conductor told her that he was going to stop the train at Arkadelphia and put her off there. She told him of the instructions she had received in California and throughout her journey, explaining that her husband would be waiting* for her at Malvern and insisting that she be put off there. The conductor, however, continued to refuse to do so, insisting that she would have to get off at Arkadelphia. The appellee then said that if she was not allowed to get off at Malvern as she wanted to do, she would prefer to be taken on to Little Rook. The conductor became obstinate and insisted that he would put appellee off at Arkadelphia, and that he would neither let her get off at Malvern nor take her on to Little Rock.

Witness was traveling alone, and became perturbed by the domineering conduct of the conductor, and when Arkadelphia was reached, over her protestations, the conductor took her grips and bundles, took her by the arm and led her down the aisle displaying great ill humor and speaking roughly and insultingly to her in the presence of a number of passengers in the coach who heard her begging him to either let her off at Malvern or take her on to Little Rock. The conductor, however, continued to lead her down the aisle and through the door of the car on to the platform, and there seized her by the arm and violently jerked her downward as she was stepping off the train, causing her to fall and to suffer injury to her side. She would have fallen to the ground had she not been caught and upheld by the negro porter, who expressed concern for her situation and offered assistance, but the conductor reprimanded the porter and ordered him to board the train which continued on its way leaving appellee alone on the platform at Arkadelphia.

The agent at Arkadelphia offered her some assistance and advised her to go to a hotel and not to spend the night in the station. She explained to him why she was at Arkadelphia and told him that she had been compelled to get off there against her will. The agent called Little.Rock to ascertain why this was so, and, after talking a while, told the appellee “that things were all balled up that night, and he would have to find out about it later.” Appellee testified that the conduct of the conductor, while she was on the train and while she was being ejected from it, and his language frigiitened and greatly embarrassed her, and that, when she found herself in a strange town alone at night, her humiliation and fear increased; that she finally secured the services of a cab driver who first took her to a private dwelling where she hoped to spend the night; that she was denied admission there, and then was taken to a hotel where she spent a wakeful night in pain and much discomfort. After having paid for her lodging at the hotel and the price of a ticket hack to- Malvern, the appellee did not have sufficient money to buy her breakfast and left without eating. Her side gave her pain, and she continues to suffer. Prior to this occasion she had suffered from a disorder peculiar to her sex, but she had been cured and had had no symptoms of the disorder for more than a year. Immediately after her experience the malady recurred. Appellee and her husband are "people of moderate financial circumstances. She therefore administered her own remedies in her own way, depending on the experience she had gained when she was ill before. Not obtaining relief, she consulted with physicians, who prescribed for her, but she had not been relieved. Appellee is a housewife and accustomed to do all the-work, but since the recurrence of her illness she has been able to do only a part of it. These facts show that the appellee suffered an actionable wrong by being put off the train at Arkadelphia over her protest and against her will.

The appellant has assigned as error the introduction of that part of the appellee’s testimony in which she told of the information she had received in California and along the way by which she directed her conduct. It is insisted that this testimony was incompetent because the appellant company was not bound by any declaration of agents of other railroads in California, New Mexico and Texas. The court so told the jury. But it must be remembered that, in addition to the denial of the allegations of the wrongful conduct of appellant’s conductor, an affirmative defense was interposed — i. e., that appellee was herself negligent in purchasing a ticket to Little Bock, when her destination was Malvern, and in taking a train which did not stop at the latter point. The evidence, therefore, was competent for the purpose of showing exercise of ordinary care by appellee in purchasing her ticket and in the conduct of her journey. She remained on'the same train she took at Port Worth, at which place she had received instructions to the effect that traveling on that train she might get off at Malvern. The court limited the jury’s consideration of this testimony to the question of the exercise of ordinary care on the part of the appellee, and we are of the opinion that it was properly admitted for that purpose.

Objections were made and exceptions saved to that part of the testimony of appellee relative to the alleged wrongful conduct of the conductor in the presence of other passengers and the fact that she could hear their comments. This, of course, rendered the humiliation of appellee greater and was competent testimony on the question of punitive damages.

Objection was also made to questions being propounded the conductor and requiring him to return ansivers relative to any efforts he made to get in touch Avith his train dispatcher at Little Rock for permission to stop his train at Malvern after he learned that appellee Avas on the train through mistake and under the impression that she would be put off at Malvern. Some-of the questions Avere not ansAvered and others only in an indirect manner, but from the answers given the inference arose that no such effort was made, the witness explaining that he was under no duty to make any such effort, and that it Avas inconvenient for him to do so. The conductor testified regarding his customary effort to accommodate passengers and as to his politeness to them and to appellee. These questions were permissible on cross-examination as tending to negative the claim he made as to his conduct toward passengers generally and to appellee in particular.

Objections were saved to the giving of instructions requested by the appellee, the modification of certain instructions requested by the appellant, and to the giving of them as modified, and to the refusal to grant other instructions requested by the appellant. These objections are preserved and argued in appellant’s brief. It would serve no useful purpose, however, to discuss in detail the arguments advanced by the appellant to sustain its contention in these particulars. Suffice it to say that we have examined the instructions with care, and find no prejudicial error in any of them, as they fully and fairly presented the law governing the issues in the case.

The principal contention made by the appellant and the one we deem worthy of ¡most serious consideration is that the compensatory damages awarded were excessive, and that the evidence did not justify the award of exemplary damages. It is argued with much earnestness that the appellee was not injured but was just angry because she had to get off the train and spend the night at Arkadelphia. Doubtless the appellee was angry, but, if her testimony is true, and it has been accepted as true by the jury, it is not unreasonable that she was in this frame of mind. Her testimony as to her alleged injuries and their resultant effect, however, was not disputed by any evidence (except that she made no complaint of physical suffering to the cab driver or the hotel keeper that night), and goes much further than the suggestion of appellant indicates. This testimony has already been set out, and it is unnecessary to restate it. In our opinion it is sufficient to justify the damages awarded by the jury.

"Where the element of wilfulness or conscious indifference to the feelings of others is manifest, damages in addition to compensatory damages are justified by way of punishment for the willful misconduct, although the personal injury inflicted be but slight. Barlow v. Lowder, 35 Ark. 492. Where there are no circumstances which tend to mitigate or excuse insulting and profane language to another, malice will be implied, and where a personal injury is inflicted, although it be but slight, punitive damages are justified when the conduct attendant upon it shows a willful disregard of the rights and sensibilities of the person injured.

Here the evidence tends to show that the party injured was a woman traveling alone with no one to protect her, and that without any justification or excuse, but as a result of an ill-governed temper, the conductor in the presence of other passengers used language to, and about, the appellee calculated to embarrass and humiliate her, if not to put her in actual fear. This, coupled with the violence with which the conductor ejected her from the train, warranted the jury in concluding that the conduct of the conductor was willful and malicious and a wanton disregard of the safety of the appellee. Railway v. Davis, 56 Ark. 51, 19 S. W. 107. There is no fixed rule, nor indeed can there be, for measuring the amount of exemplary damages a jury may award. It must be left largely to their own judgment according to the circumstances of the case. In the instant case the trial court heard the evidence and observed the manner and demeanor of the witnesses upon the stand and refused to interfere with the verdict of the jury. We are therefore unable to say that such verdict was excessive or that the trial court erred in holding that it was not. There is substantial evidence to support the verdict, and, no error appearing, the judgment is affirmed


author: Hart, C.. J.,

text:
    Warren & Saline River Railroad Company v. Wilson.
    4-2594
    Opinion delivered June 13, 1932.

      Coleman & Riddick, D. A. Bradham and Clary <& Ball, for appellant.

      D. L. Purloins, for appellee.
   Hart, C.. J.,

(after stating the facts). The record shows that the consideration recited in the release agreement between Smith and the defendant was the sum of $4,000, which was paid to and received by Smith in full discharge and final settlement of his claim against said defendant in a damage suit brought by him against it for personal injuries in the circuit court.

It is earnestly insisted by counsel for appellant that to allow the attorneys to prove that there was an additional consideration that their fee should be paid would be in violation of the well-known rule that parol evidence is not allowed, in so far as the terms of the consideration are contractual, and the writing must control. They rely upon the case of Williams v. Chicago, Rock Island & Pacific Railroad Company, 109 Ark. 82, 158 S. W. 967, and on other eases decided by this court deciding a similar principle.

We do not think the cases cited are applicable under the facts of this case. In the case just cited, Williams settled a claim for damages with the railroad company for a stipulated amount of money and testified at the trial that the release merely recited a part of the consideration for the settlement, and that it was agreed that he was to have a lifetime job with the railroad company. The court held that this could not be done because the part of the consideration proved by parol was contractual in its nature and .tended to contradict the very terms of the settlement by the railroad with the plaintiff. The court recognized, however, the well-known rule that parol proof is admissible to establish the fact that other considerations not recited in the instrument of writing were agreed to be had where such proof does not contradict the terms of the writing. It was distinctly held that an additional consideration, based upon the same subject-matter, might be proved without varying the terms of the writing.

The admission of the parol proof of Smith did not tend in any way to contradict or vary the terms of the written release and settlement by himself with the defendant. It only recited an additional consideration that the defendant was to pay his attorneys whatever he had agreed to pay them.

Another reason why the testimony was admissible is that, under our statute, the attorney has a lien on his client’s cause of action, of which all the world must take notice, and any one settling with the plaintiff without the knowledge of his attorney does so at his own risk. It is true that the existence of the lien under the statute does not permit the plaintiff’s attorney to stand in the way of a settlement; but the lien operates as security, and, if a settlement is made in disregard of it, the court will interfere and give the attorney a lien for that percentage of the proceeds which his contract with his client entitled him to receive. St. Louis, Iron Mountain & Southern Railway Company v. Hays & Ward, 128 Ark. 471, 195 S. W. 128.

This view was again adopted in the case of Arkansas Foundry Company v. Poe, 181 Ark. 497, 26 S. W. (2d) 584. In the latter case, it was held that all of the cases recognize the rule that the amount for which the parties have in good faith agreed to settle is binding on the attorneys, but they disagree as to what this amount is. Some of the cases hold to the view that the amount paid the client is the amount on which the attorney’s percentage is to be computed where there is a contingent fee. Other cases hold that the amount paid the client is not the whole of the settlement, but only the client’s part thereof, and that the whole amount of the settlement on which the attorney’s percentage is to be computed is an amount bearing such a proportion to the amount paid to the client as the whole bears to the fraction represented in the client’s share. In other words, under our statute, if the defendants are required to pay the attorney’s fees as a part of the settlement, they will be deemed to have agreed to pay the plaintiff’s attorney the amount the latter was entitled to receive under the contract of employment. This was the view of the law adopted in the Poe case; and it was expressly held that, where a client agreed to pay attorney a fee of fifty per cent., the defendant, settling with the client for a stipulated sum and agreeing to pay the attorney, must pay the attorney a like sum.

The undisputed facts in this case are that the defendant knew at the time it made the settlement that the plaintiff had agreed to pay his attorneys a contingent fee on a percentage basis, and knew the terms thereof. Smith, the plaintiff in the damage case, testified that they- agreed to pay his attorneys on the basis on which he was paid. Now the release and settlement show that he was paid the sum of $4,000, and the court found that the attorneys were entitled to recover a like amount. The finding and judgment of the court shows that it did not take into consideration the fact that other sums in addition to the $4,000 were to be received by the plaintiff from the defendant in the settlement of the case. The court was at liberty to accept that part of the plaintiff’s testimony which it believed to be true, and to reject that part that it believed to be untrue.

We find no reversible error in the record, and the judgment will therefore be affirmed.


author: Hart, O. J.,

text:
    Owen v. Owen.
    4-2555
    Opinion delivered June 13, 1932.

      Wade Kitchens and W. II. Kitchens, Jr., for appellant.

      Henry Stevens, for appellee.
   Hart, O. J.,

(after stating the facts). This court is committed to the doctrine that, where a deed is executed in consideration of the agreement by the grantee to support the grantor, and this agreement is made by the grantee for the fraudulent purpose of securing the deed, and without intending to carry it out, and it has this effect, it constitutes a fraud vitiating the conveyance, and equity will set it aside. Salyers v. Smith, 67 Ark. 526, 55 S. W. 936; Boyd v. Lloyd, 86 Ark. 169, 110 S. W. 596; Edwards v. Locke, 134 Ark. 80, 203 S. W. 286; Jeffery v. Patton, 182 Ark. 449, 31 S. W. (2d) 738; and Federal Land Bank of St. Louis v. Miller, 184 Ark. 415, 42 S. W. (2d) 564.

We are of the opinion that, when all the attendant circumstances are considered, the chancellor should have found that the substantial consideration which was the inducement for the execution of the deeds was that the sons should take care of and support their father during his natural life. It is true that they deny that this was the consideration, but their testimony is contradicted by the attendant circumstances. They admit that their father resided on the land at the time he executed the deeds to them, and that he has continued to reside there ever since, a period of something over ten years. During all of this time he has had exclusive management of the land, and has collected the rents and otherwise used the land as still belonging to him. The sons testified that the rents and profits derived from the land were sufficient to support their father, and this was equivalent to them supporting him. It is not a case where the grantees have neglected or refused to carry out their part of the agreement hy refusing or neglecting to support their father.

In a transaction of this kind there is always an element of love and confidence reposed by the parents in their children, and they part with their property with the expectation-and belief that they will be supported and cared for by the children. If the children refuse to carry out their part of the agreement, equity will grant relief to the parent by canceling the deed. In the present case, the evidence does not justify cancellation of the deeds on account of the sons’ failure to support. In this connection it may be stated that if at any time in the future the sons should fail to carry out their part of the agreement and fail to support their father, equity will afford him relief by canceling the deeds.

We cannot agree with the contention of the sons that the consideration of the deeds was that the father conveyed the land to them in an effort to defraud his creditors. It is true that he stated that this had something to do with it, but it is evident that the substantial agreement was that his sons should support him. The deeds themselves recite that they are made subject to an indebtedness owed by the father to the Federal Land Bank. The deed to the home place also contains a covenant that the father is to remain in possession of that during his life, and that the deed should not become operative until his death. This was a valid covenant. Reynolds v. Balding, 183 Ark. 397, 36 S. W. (2d) 402.

The lands were of the value of $8,000, and the debt owed by the father was only $1,000. The debt was after-wards paid by the father. These circumstances strongly tend to show that the lands were not conveyed to the sons by the father in an effort to defeat his creditor in the collection of its debt, but that the consideration of support by the sons was the substantial inducement which caused him to execute the deeds.

The result of our view is that, as the case now stands, the chancellor erred in canceling the deeds. As above stated, the duty of support is a continuing one; and, if at any time in the future the sons neglect or refuse to support their father, he will have the right to bring another suit to cancel the deeds on that account. Therefore the decree will be reversed, and the cause will be remanded with directions to dismiss the complaint ■ for want of equity. '


author: Mehappy, J. Smith, J.,

text:
    Johnson v. Simpson.
    4-2595
    Opinion delivered June 13, 1932.

      F. O. Nolen and Lee £ Moore, for appellant.

      Jno. W. Moncrief and A. O. Meehan, for appellee.
   Mehappy, J.

The appellee, Jess Simpson, brought suit in replevin for the possession of certain stock belonging to. him and running at. large in Monroe County, Arkansas.

The stock were impounded by the appellant, Claudius Johnson, because it was claimed that the stock were running at large in violation of law.

On appeal to the circuit court, the case was tried on an agreed statement of facts, and the court held that act 205 of-the Acts of 1927 and act 99 of the Acts of 1929 were invalid for the reason that they were amendatory of local legislation, and in violation of amendment No. 11 to the Constitution of the State of Arkansas, and that the orders of the county court authorizing the holding of an election, and all orders of said court made in consequence of said illegal election are invalid and of no force and effect.

The Legislature of 1915 passed a local act restraining the running at large of stock, hut exempted from the provisions of the act twenty-three counties. We all agree that the exemption of the twenty-three counties made the act a local one.

In 1915 the Legislature had authority to pass a local act, hut in 1926 the people adopted the following amend1 ment to the Constitution: “The G-eneral Assembly shall not pass any local or special act. This amendment shall not prohibit the repeal of special or local acts.”

After the adoption of this amendment, the Legislature could not pass a valid local act. They could not' amend a local act, but they were given authority in the amendment to repeal local acts.

Act 205 of the Acts of 1927 amended § 321 of Crawford & Moses’ Digest. This section of the Digest is § 1 of the local act of 1915, above mentioned. It provides for the per cent, of qualified electors necessary for the county court to order an election and a vote by the people.

This was purely an amendment to the local act. It did not undertake to repeal any part of it, but amended it as to the manner of calling an election.

Act 99 of the Acts of the General Assembly of 1929 undertook to repeal act 5 of 1923 in so far only as it applies to Monroe County.

Act No. 5 undertook to amend § 332 of Crawford & Moses’ Digest. This was a section of the original local act of 1915 and simply applied to counties exempted from that act, and exempted twenty-one counties only. That left fifty-four counties under the provisions of the local act passed in 1915.

Act 205 of 1927 and act 99 of 1929 do not repeal any part of a local act, but act 99 of 19'29 undertakes to repeal so far as it applies to Monroe County. Monroe County was one of the counties exempted from the provisions of the local act. The effect of repealing the law as to Monroe County, if it had any effect, was to take Monroe County out of the exemptions, and leave it under the provisions of the local act, which would then apply to fifty-four counties, if this were a valid act.

In other words, they undertook to amend the act of 1915 so as to take Monroe County out of the exemptions, and this necessarily added it to the counties under the provisions of the local act.

The election was called, held, and the stock impounded under the provisions of the local law. Of course, the local law would have no effect unless the act in controversy, which repealed the law so far as Monroe County was concerned, had the authority to put Monroe County •under the provisions of the local law. If it did not do this, it did not accomplish anything, because there is no general law governing.

In other words, either the law repealing the local law as to Monroe County put Monroe County back under the provisions of the local law, or it was wholly ineffective. If it did not have the effect of putting Monroe County under the provisions of the local law, the election was void because it was held under the provisions of the local law; and if the election was void, the impounding of appellee’s stock was unlawful.

Appellant calls attention to the case of Smith v. Plant, 179 Ark. 1024, 19 S. W. (2d) 1022, and Wright v. Badders, 181 Ark. 1124, 29 S. W. (2d) 671, and argues that these cases hold that the acts now involved are valid. The question of whether the sections of the Digest mentioned in these cases was a local or general law was never raised. The sections were in the Digest and were therefore assumed to be general laws, and the attention of the court was not called to the fact that these sections were parts of the local law enacted in 1915.

We all agree that the act of 1915 is a local law, and all amendments thereto were local laws.

If the court’s attention had been called to the fact that these sections of the Digest were parts of a local law, we would have held then that the law was local, but it was not called to our attention, and, finding the sections in the Digest which is supposed to contain general laws only, and the fact that the attorneys did not call our attention to it, we assumed that the sections involved were parts of a general law.

Appellant calls attention to the case of Ewing v. McGehee, 169 Ark. 449, 275 S. W. 766, in which it was held that it was within the legislative power to amend a general statute by local and special acts. This case, however, was decided before the adoption of amendment No. 14, and, since the adoption of this amendment, the Legislature has no authority to pass any special or local act, although the Constitution gives the Legislature power to repeal local laws.

As it was held in Gregory v. Cockrell, 179 Ark. 719, 18 S. W. (2d) 362, the authority to repeal a local law includes the authority to repeal it in part. But the facts in the case of Gregory v. Cockrell, supra, are wholly different from the facts here, and the situation as to the instant case is exactly the reverse of the situation in that case. The Legislature of 19'21 passed an act for a stock law embracing all of Chicot County, and all that part of Ashley County lying east of Bayou Bartholomew. The Legislature thereafter repealed that part of this local law that applied to Ashley County, and the local law no longer applied to the territory in Ashley County, but such territory was thereafter under the operation of the general law. No one would contend that the Legislature could have added other territory to this local act after the adoption of amendment No. 14. No matter whether they called it repeal or amendment, it would have been the enactment of a special law.

Act 99 of the Acts of 1929 repeals act 5 of the Acts of 1923, in so far only as it applies to Monroe County. In the first place, the act did not apply to Monroe County. Monroe County was expressly exempted from the provisions of the act. Just how it could be said that this act applied to Monroe County, when Monroe County was exempted from its provisions, is difficult to see. The act meant that Monroe County was to be put under the provisions of the act, or it is meaningless.

The circuit court was correct in holding the acts mentioned invalid, and the judgment is affirmed.

Smith, J.,

(dissenting). I think the majority opinion has impaired the authority of the cases which it cites and has left the Stock Law in unnecessary confusion. I therefore dissent.

Who can say, in view of the majority opinion, what the present status is of the stock districts organized under the amendments of the act of 1915 (§ 321-332, Crawford & Moses ’ Digest) ? These are: Acts 1927, page 686; Acts 1929, pages 507 and 991; Acts 1931, pages 130 and 272.

What is the present status of districts organized under act 205 of the Acts of 1927, page 686? This act amends § 321, Crawford & Moses’ Digest, to read that “When ten per cent.' of the qualified electors of any county in the State of Arkansas * * * shall petition the county court for the privilege to vote on the question of restraining horses, etc., * * f from running at large within any county, the county court in which such petition is duly filed shall make an order for such election to be held at any general or special election of the county or State officers.” The statute which this act amended required the petition of 25 per cent, of the electors.

The majority say the case of Gregory v. Cockrell, 179 Ark. 719, 18 S. W. (2d) 362, has no application, because the effect of that case was to place Ashley County under the general Stock.Law. What general law if not the act of 1915?

Two statutes appear in the Digest where general laws are found upon the subject of the organization of stock districts. The first is the act of 1883, which appears as §§ 305-320, Crawford & Moses’ Digest. Under this act districts are created by petition. The second act is that of 1915 (§§ 321-332, Crawford & Moses’ Digest), under which such districts are created by election.

The act of 1883 is more local in its nature than the act of 1915. By its express terms it applies only to “* * * any county bordering upon a navigable stream and having territory in cultivation subject to overflow, or subdivision of a county consisting of not less than thirty-six square miles where said subdivision borders upon a navigable stream and contains territory in cultivation subject to overflow * *

In the case of Gregory v. Cockrell, supra, that portion of a local act (special act 42, Acts 1929, page 80) was held repealed which applied to Ashley County. Prior to the repeal of this act that portion of Ashley County affected by it was not governed by either the act of 1883 or the act of 1915. It was governed by the local act of which it was a part.

The act of 1915 was introduced in the General Assembly as a general law, but before its final passage it was amended so that its provisions did not apply to twenty-two counties, which were exempted from its operation. But for this exemption of certain counties, it would have been a general law. If the section exempting those counties were repealed, it would be a general law. Had this law, when it was passed, exempted only Monroe County, can it be doubted that the law could be made general by striking out that exempted county? It would thereafter apply to the whole State? And if it could be repealed as to one county, why not as to more than one?

Under the Constitutional Amendment of 1926, local laws cannot be passed, but they may be repealed, and, if they may be repealed altogether, why not in part? Uniformity is promoted, and this is one of the prime purposes of the amendment. If all the exempted counties were taken from the exemption clause, which makes the act local, we would then have a general law uniform throughout the State, and it appears to me that there is no question about the power of the Legislature to accomplish this result, under the Cockrell case, supra. The practical and correct construction of this amendment, as applied to the act of 1915, is just this: The Legislature is without power to add the name of any county to this exemption clause which makes the act local. It has the power to repeal or strike out the name of any county appearing in the exemption clause, because that action tends to make the act general, and if all counties were stricken from the exemption clause it would then be a general law applying to the entire State.

In the case of Gregory v. Cockrell, supra, an act was construed which originally applied to all of Chicot County and a portion of Ashley County. That act was, of course, local. It was amended by act 42, Acts 1929, by striking out the portion of Ashley County included in the original act. Special Act 42, which accomplished this purpose, was held valid as a repeal in part of a local law. It was held that the power to repeal wholly conferred the power to repeal in part, and I think that principle is applicable here.

It may be asked, what law how applies to that portion of Ashley County taken out of the operation of the special act 42, there repealed in part? It occurs to me that the answer to this question is that the act of 1915 applies, and that the act of 1883 would also apply to such of its territory as bordered a navigable stream and was subject to overflow, if there is such territory. If neither of those acts is applicable, I know of no legislation that does apply to the portion of Ashley County formerly included within the special act which the majority held in the Cockrell case had been repealed by a valid local act.

Ashley County was not included in the exemption section of the act of 1915, but that act did not apply to the whole of that county, because a portion of the county was included in the special act. Now, when this special act, applying only to a portion of Ashley County, was repealed, why does not the act of 1915 then apply to the whole of that county? In a sense this would be an amendment of that act, but it is an amendment which results from the repeal of the special act 42 in part, a thing which the Cockrell case held the General Assembly had the power to do.

The obvious and the expressed purpose of act 99 of the Acts of 1929 was to repeal that portion of the exemption section which made the act local in so far as it applied to Monroe County, thereby placing that county with the majority of the other counties under the provisions of that portion of the act of 1915 which would be a general law if there were no exemptions.

I think the General Assembly has the express power to repeal this exemption clause in whole or in part. Counties in the exemption clause may be taken out, but others cannot be added, and this is true because repeal to any extent is authorized by the amendment. Taking counties out of the exemption clause would be a partial repeal, and they may therefore be taken out. Adding counties would not be a repeal, and they may not therefore be added.

It is, therefore, my opinion, in which Mr. Justice Humphreys concurs, that Monroe County has been placed under the operation of the act of 1915, this result being accomplished by the repeal of that portion of the exemption clause which excluded that county from its operation. The judgment of the court below should therefore, in our opinion, be reversed, and we therefore dissent.


author: McHaney, J.

text:
    Harper v. Bankers’ Reserve Life Company.
    4-2626
    Opinion delivered June 13, 1932.

      Oliver S Oliver, for appellant.

      Dudley <& Barrett, for appellee.
   McHaney, J.

November 16,- 1926, Samuel Harper, deceased husband of appellant, made application to appellee for a policy of life insurance in-the sum-of $1,000, paying the premium therefor. The policy was issued bearing date January 8, 1927, in which appellant was named beneficiary. Twenty days later the insured died, and thereafter proper and timely proofs of death were furnished and demand made for payment, but appellee did nothing until June 29, 1927, when it sent its agent to appellee to effect a settlement. ■ On that date, accompanied by a notary public of Corning, Arkansas, said agent called upon appellant, told her the policy was void because her husband had misrepresented his physical condition in the application, that his statements in this regard were warranties, were false, and that, because of such false warranties, the policy was void. He offered to return the premium paid, about $29, which she refused, and he finally offered her $100, stating that if she refused that she would get nothing. She finally made the settlement, signed a release, and the agent departed. Thereafter, within the period of limitations, she brought this action to recover the balance due on the policy, charging fraud in the procurement of the settlement. A second count of the complaint sought to recover special damages for breach of the contract. In-this count she alleged that her husband's farm was mortgaged, and that he was induced to apply for this on the representation of the agent that in the event of his death the amount of the policy would take care of the mortgage, and thereby preserve the homestead for the widow and minor children; and that appellee had breached the contract of insurance by refusing to pay, and that she had lost the farm homestead through or oh account of such breach. Appellee demurred to the complaint. The court overruled the demurrer to the first count, but sustained it as to the second count. Appellant refused to plead further on the second count, and the court dismissed same. An answer was filed to the first count, denying the material allegations thereof. An affirmative defense was pleaded that insured had made certain statements in his application relative to his insurability which were false, known by him to be false, and made for the purpose of defrauding it.

The case proceeded, to trial, and at the conclusion of the testimony on behalf of appellant the court sustained a motion for a directed verdict in favor of appellee. Judgment was entered accordingly, and this appeal' followed.

We think the court erred in so doing. The trial court should not direct a verdict, thereby taking.the case, from the jury, unless there is no substantial evidence to support a verdict in favor of the other party. Of course, in a case where a verdict has been rendered which, in the opinion of the trial court, is against the preponderance of the evidence, it is the duty of the trial court to set it aside and grant a new trial on proper motion therefor; but the trial court is not authorized to take the case from the jury in the first instance, if there is some substantial evidence to support a verdict against the party making the request or in favor of whom it is directed. In determining the question here, we view the evidence in the light most favorable to the complaining party. Viewing the evidence in this light, the facts are substantially as follow's: Appellant is a woman of moderate education, not unlettered or ignorant, but inexperienced in business matters. She lived on a small farm at Palatka, Arkansas, with her husband and five small children, aged from 11 to 2, until his death. She made proof of death, but heard nothing from appellee until June 29, 1927, when its agent, Mr. Dow, and Mr. Arnold came to see her. She was not well at the time. Dow told her the company didn’t intend to pay the policy, and that he had brought the premium, about $29, and would pay that back, and wanted to take up the policy. She refused to take it. She asked to be permitted to go to town to consult with a friend, but was told that, if she refused to accept that, it was all she would get. He told her Mr. Harper had “lied” in his application, and that he had cancer of the rectum at that time, and the policy was null and void. She told him if she couldn’t collect the policy she would lose her home, and that he talked to her so she broke down and cried; told her again the return of the premium was all he would pay. She refused the offer, expressed the desire to go to town and advise with friends, and finally he offered to pay her $100, which she finally accepted and signed a release in the presence of Mr. Arnold. Other facts and circumstances appear, but we think it unnecessary to detail them. Appellant was fully corroborated by Mr. Arnold as to what Dow said and did. We think the effect of this evidence, when considered in connection with the fact that Dow’s attitude was dictatorial, domineering and insulting, was sufficient to go to the jury on the legality of the settlement and the release executed pursuant thereto. Moreover, he made false statements to her regarding the effect of the alleged false statements made by the insured in his application for insurance. The policy provides that “all statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties.” Dow made the statement to her that Mr. Harper had misrepresented the condition of his health, and that this would avoid the policy. Such is not the law under the above provision of the policy. If the applicant states what he honestly believes to be true regarding his physical condition, the fact that it turns out to be not true does not avoid the policy, as it is a representation merely. Of course, if his statements are false and known to him to be false, and are made fraudulently, they have the same effect as warranties. Union Aid Life Ins. Co. v. Munford, 180 Ark. 1048, 24 S. W. (2d) 966. It is true that appellant testified that insured had some rectal trouble, piles he thought, but probably hemorrhoids, which later necessitated an operation from which he died, but she also testified that it was not considered serious by them, and that he worked every day, made a crop in 1926 and harvested it. The question will be then were his statements made in good faith, if untrue, or were they made knOAving them to be false and for the purpose of defrauding appellee. See American Nat. Ins. Co. v. Chavey, ante p. 865. But the question here is, was the settlement conclusive of appellant’s rights as a matter of law under the evidence, or was it a question for the .jury? We think the question one for the jury as to Avhether the release was procured by fraud or coercion.

We think the court properly sustained the demurrer to the second count of the complaint.

Reversed and remanded for new trial.


author: Humphreys, J.

text:
    Decker v. State.
    Crim. 3796
    Opinion delivered June 20, 1932.

      E. E. Alexander and Geo. M. Booth, for appellant.

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

Appellant was indicted, tried and convicted for murder in the first degree of Manley Jackson, and adjudged to serve a life term in the State penitentiary as a punishment therefor, from which is this appeal.

The first assignment of error for a reversal of the judgment is that the trial court erred in allowing the prosecuting attorney to prove by Lige Dame, a witness for the State, that appellant had been engaged in the liquor business for several years. Even if improper to make this proof, appellant afterwards became a witness in his own behalf and admitted that he had engaged in the liquor business, so he was not prejudiced by the proof of the State in this respect.

The next assignments of error for a reversal of the judgment were the admissions in evidence of statements of witness, Lige Dame, to the effect that John Slayton had promised him $1,000 to kill Manley Jackson and $450 to burn a house, and had protected him in the sale of liquor in Pocahontas for a consideration, all in the absence of, and without the knowledge of, appellant. Objections were made and exceptions saved to the introduction of this evidence.

Such evidence could he admitted only on the theory that Lige Dame, who killed Jackson, was induced and encouraged to do so by John Slayton and appellant, or, to put it differently, that the three were conspirators in the commission of the crime.

Lige Dame testified that he killed Jackson at the instance and request of John Slayton and appellant; that John Slayton and Manley Jackson were opposing candidates for marshah.at Pocahontas, and that Friday before the killing on Saturday John Slayton offered him $1,000 to kill Manley Jackson, and that he agreed to do so; that on the next day, Saturday, appellant came and informed him that Manley Jackson was having illicit relations with witness’ wife, and advised that he kill him, and offered to help him do so; that, pursuant to the agreement, they induced Manley Jackson to go with them out in the country a short distance before daylight Sunday morning, where witness shot Manley Jackson four or five times in the back, and left him a corpse on the roadside.

The fact that both appellant and John Slayton approached Lige Dame for the same purpose within a few hours of each other and prevailed upon him to kill Manley Jackson tended to show that they conspired together to take his life. There being sufficient evidence from which to infer a conspiracy, the conduct and relationship of the conspirators, one to another, in lawlessness and crime was admissible as a circumstance tending to show the guilt of either in the particular crime charged.

The next assignment of error is that the court erred in allowing the State to show by George Promberger, Jr., and his father that appellant bought No. 45 calibre pistol shells at their hardware store about two months before Manley Jackson was killed. Manley Jackson was killed with bullets of that size, and for that reason the circumstance of the purchase was admissible.

The next assignment of error was the admission of appellant’s evidence, taken in shorthand and transcribed at the coroner’s hearing or examining trial, and also in a habeas corpus proceeding on application for bond by John Slayton. It is argued that the admission of this testimony was in plain derogation of § 3122 of ’Crawford & Moses’ Digest, which is as follows:

“In all cases where two or more persons are jointly or otherwise concerned in the commission of any crime or misdemeanor, either of such persons may be sworn as a witness in relation to such crime or misdemeanor; but the testimony given by such witness shall in no instance be used against him in any criminal prosecution for the same offense.”

The introduction of the testimony was not objected to on this specific ground, and no general objection was made to it, so we cannot pass upon the admissibility thereof on appeal.

The next assignment for a reversal of the judgment is that the court withdrew instruction No. 11 from the jury after the case had been submitted. The jury had returned to the court to ask that the instructions be read to them again. In reading the instructions, the court discovered that the subject-matter contained in instruction No. 11 was fully covered by instruction No. 15, which appellant had requested, and therefore withdrew instruction No. 11 from their consideration. We are unable to see where any prejudice resulted to appellant by the withdrawal of one instruction which was fully covered by another.

The last assignment of error for a reversal of the judgment is that the testimony of appellant’s admitted accomplice, Lige Dame, is not sufficiently corroborated to sustain the verdict and judgment of conviction.

The rule of evidence is that the corroboration of the testimony of an accomplice is not sufficient if it merely shows the killing and the circumstances thereof, but must connect the defendant with the commission of the crime. There are corroborating circumstances in the testimony tending to connect appellant with the murder of Manley Jackson, as follows:

A short time prior to the killing, appellant was arrested by Manley Jackson in a manner displeasing to him. In making the arrest, Jackson drew a pistol on him, and he stated in a heated argument with him that he had better never do that again.

Appellant purchased, about two months before the killing, cartridges the same size that were used in killing Manley Jackson.

There is testimony in the record tending to show that appellant told of'the killing before it was known in Pocahontas.

During -the investigation of the killing by W. A. Jackson, father of deceased, appellant, said to Joe Alphin, “Now listen; if you know anything, you had better keep your damn mouth shut.”

Immediately after the investigation, just after appellant had been interrogated concerning his knowledge of the crime, he said to Frank Jankersfeldt, “The sons of b............! Trying to find out something, and I am not talking.”

No error appearing, the judgment is affirmed.


author: Mehaeey, J.

text:
    Kirkpatrick Finance Company v. Stotts.
    4-2593
    Opinion delivered June 20, 1932.

      Roy Pemx, for appellant.

      Dudley Barrett, for appellee.
   Mehaeey, J.

On December 29, 1928, the appellee, W. E. Stotts, purchased a Ford automobile from the Jonesboro Machine Company, of Jonesboro, Arkansas. He traded in an old automobile and paid some cash. The amount allowed for the old automobile and the cash paid left a balance of $360 due as the cash price of the automobile that he purchased. He, however, signed a contract, which stated that the total time price was $793.50; that the down payment was 50 per cent., and the amount of the note $396.70. This amount was to be paid in monthly installments of $39.67 each. The first installment was due January 29, 1927. The agreement between the purchaser and seller was that, if paid in full within 30 days, the balance would be $360. The difference between the cash price and the time price was interest, carrying charges, and insurance.

The contract signed by Stotts showed the amount of payments and when due, and there, in the face of the note, was written the following in ink: “1/29/29 received of W. E. Stotts $360 on this contract. Jonesboro Machine Co., by N. B. Stroud.

The contract provided that payments should be made to appellant, Kirkpatrick Finance Company, St. Louis, Missouri. It also retained title of the automobile until paid.

Stotts paid the $360, which was the amount due, less carrying charges, interest and insurance, within 30 days after he purchased the automobile. He never at any time made a payment to the appellant. The Jonesboro Machine Company, however, made five payments of $39.67 each to appellant.

It appears from the evidence that the appellant transferred the contract to the Industrial Savings Trust Comany, and thereafter the Jonesboro Machine Company became insolvent, and the Kirkpatrick Finance Company repurchased the Stotts note on May 27, 1929.

On August 7, 1929, the appellant brought suit in the circuit court against "W. E. Stotts and J. Q. Lane as trustee in bankruptcy of the Jonesboro Machine Company, alleging that Stotts, in December, 1928, purchased, under a conditional sales contract, a Ford automobile for the sum of $793.50, of which he paid in cash $386.80, leaving a balance of $396.70, payable in ten equal monthly installments of $39.67; that Stotts executed his note and contract, in which title to the car was reserved; that, after the execution of the note and before maturity of any installments, the plaintiff purchased the note from the Jonesboro Machine Company; that thereafter the Jonesboro Machine Company was adjudicated a bankrupt, and 'J. Q. Lane became its trustee; that Stotts defaulted in the payment in June, and that the balance due at the time of bringing the suit was $198.35, principal and interest; that Stotts refused to pay the balance, and judgment was asked for the $198.35 ivith interest.

There Ayas a specific attachment and summons served, and Stotts executed a bond and retained the property.

W. E. Stotts filed answer admitting the contract, but denied that he had defaulted in the payment of any installment, and denied all the material allegations in the complaint, alleging that he paid $433.50 at the time the contract was entered into, and executed his note for a balance of $360; that on January 21 he paid the balance, $360, to Jonesboro Machine Company, which was the agent of the plaintiff for the purpose of receiving payments from defendant and sending same forward to plaintiff; that the Jonesboro Machine Company had authority to, and did, collect from the defendant and other purchasers under similar contracts, and that the Jonesboro Machine Company remitted plaintiff the first five payments on said contract.

There was a trial by jury, and a verdict and judgment for defendant. '

Appellant introduced in evidence the note and contract, and the contract showed that at the time it was entered into there was printed on the back of the note: “For value received the within note is indorsed to Kirkpatrick Finance Company, St. Louis, Missouri, without recourse. Jonesboro Machine Company, dealer, by N. C. Stroud, Pres.”

R. C. Duffin, the secretary-treasurer of the Kirkpatrick Finance Company, arid general manager of said company, testified that the Stotts note was bought by appellant January 4, 1929; that the balance due on purchase price was $198.35, and that appellant did not authorize the Jonesboro Machine Company to act as agent for the purpose of receiving payments on the Stotts note, and never gave any general authority to the Jonesboro Machine Company to act as agents on any other contract; that the Jonesboro Machine Company might have been’ given specific authority to collect on certain notes and contracts, but not on the Stotts note; that the appellant sold a group of notes, but not all of its notes, to the Industrial Savings Trust Company; that it afterwards repurchased the Stotts note May 27,1929, and is now the legal owner of same; that the first four payments on the Stotts note came to the appellant in the form of dealer checks; that the Jonesboro Machine Company did not make the, collections at the request of appellant; that appellant notified Stotts that it had purchased his note, and that payments should be made to it.

The appellant received four letters from the Jonesboro Machine Company, each inclosing checks for the sum of $39.67. The last of these letters was dated April 18, 1929. Witness testified that on May 31, 1929, appellant received a check for $39.67 in the form of a money order; that the record is not clear as to who sent this payment.

W. E. Stotts testified in substance that he purchased the automobile for $735 and paid $360 cash, and gave Ms note for the difference; that at the time he entered into the contract he toM Mr. Stroud, the agent of the Jonesboro Machine Company, that he would pay the differencé in less than 30 days. He did pay it off in less than 30 days, and introduced the receipt signed by Jonesboro Machine Company, showing the payment.

The first he learned that the Kirkpatrick Finance Company was expecting payment was after' the. Jonesboro Machine Company went into bankruptcy. He signed the note sued on with the understanding that, if paid off in 30 days, he was to get $36 and some cents knocked off. The Jonesboro Machine Company was to hold the note 30 days. He understood that, if the note went away, the Kirkpatrick Finance Company was to own it. He received notice from the Kirkpatrick Finance Company that it had the note. He received other notices from this company. When he paid the $360, Mr. Stroud had already sent the note to the finance company. He notified .the Industrial Savings Trust Company May IS, 1929, that he had paid the note in full and held the receipt.

After he made the last payment, he went to Mr. Stroud, and he told him not to worry about it. Stroud told him that, if he paid the note within 30 days, he would, knock off the carrying charges and interest. 'The difference between $360 balance due and the amount of the note was interest, carrying charges and insurance.

Mamie Lilly testified in substance that she was working for the Jonesboro Machine Company at the time Stotts bought the car; that during the years 1927, 1928 and 1929 the average monthly sales of the Jonesboro Machine Company of new cars was about 30 a month, and half of the notes for the balance of the purchase price of these cars was bought by the Kirkpatrick Finance Company; that practically 15 cars each month were financed by the finance company for the Jonesboro Machine Company; that of over half these contracts the purchasers would make their payments to the Jonesboro Machine Company, and it would forward the money to the finance company. This continued up to the time of the bankruptcy of the machine company. There was never any objection from the finance company to that method of handling the business. Mr. Stotts paid his account in full to the machine company. The machine company did business with the finance company from 1925 on. She saw Mr. Stotts make the $3G0 payment. She sent five checks for $39.67 each to the finance company to apply on the Stotts note. The machine company did not notify the finance company at the time it collected the $360. The machine company went into bankruptcy in May or June, three years ago.

Emery • Buttrey testified that he was present when Stotts paid the note.

The appellant requested the court to submit to the jury three questions, or special findings, and these requests were refused by the court. This was in the discretion of the court. Railway Co. v. Pankhurst, 36 Ark. 371.

'The appellant and appellee both made requests for numerous instructions, which the court refused. The court gave some instructions requested by appellant, but it is not necessary to set out the instructions here.

The court gave, on its own motion, the following instruction:

“The plaintiff sues the defendant on a certain promissory note introduced in evidence, which the defendant admits that he executed, and the testimony of the plaintiff is to the effect that there is now due on said note an unpaid balance of $198.35, with interest. The defendant states that the full amount of the indebtedness represented by said note was paid to the Jonesboro Machine Company, and defendant contends that the said Jonesboro Machine Company is the agent for the Kirkpatrick Finance Company, and authorized to accept his said payment.
“You are instructed that the execution of said note having been admitted, the burden of proof is on the defendant to show that the indebtedness represented thereby has been paid in such manner as to discharge him from further liability thereon. There is no evidence in this case of express authority given to the Jonesboro Machine Company to accept payment of the note in question. Your verdict will therefore be for the plaintiff for the sum sued for, unless you find by a preponderance of the evidence that the Jonesboro Machine Company’s collection of the payment, if any, from the defendant was ratified and confirmed by the plaintiff with full knowledge of all the facts.”

There was a motion for new trial filed and overruled, and the case is here on appeal.

It will be noticed from the instruction given by the court that the only question submitted to the jury was the question of ratification, and the jury found that the acts of the Jonesboro Machine Company were ratified by the Kirkpatrick Finance Company.

The undisputed evidence shows that the Kirkpatrick' Finance Company had been doing business with the Jonesboro Machine Company since 1925; that the machine company sold on an average 30 cars a month; that half of these notes were purchased by the Kirkpatrick Finance Company, that is, the notes .for 15 cars a month, at least during'the years 1927, 1928- and 1929, and that the purchasers, during these years, paid directly to the machine company, and it, after collecting the money, would pay it to the finance company. In other words, the evidence shows that the transactions with reference (o the purchase of the car by Stotts, and the payments for same, were the same as characterized their dealings for the last, several years. It is also undisputed that the purchase price of the car was $735, and that $360 of this was paid at the time of the purchase. Not only were these transactions and dealings carried on for years, but the printed contracts showed that the purchase price was to be paid at the office of the finance company in St. Louis, Missouri.

In dealing with the machine company for years, and permitting the machine company to collect for it, the finance company not only knew of the method of doing business, but ratified it. It was bound to know that the payments made by Stotts were made to the machine company, because all of the payments that it received were received from the machine company, and not from Stotts.

The evidence also shows that it was the agreement between Stotts and Stroud, of the machine company, that, if Stotts would pay the balance within 30 days, the balance would be $360. There is no dispute about this $360 being paid.

Stotts testified that the difference between the $360 and the amount named in the contract was for carrying charges, insurance and interest. If it were paid in cash or within 30 days, there would be no carrying charges, and the finance company would not have to carry insurance, and there would be no interest.

When all the facts and circumstances are considered, they show a ratification by the Kirkpatrick Finance Company of the acts of the Jonesboro Machine Company. The evidence shows that there was no objection at any time made by the Kirkpatrick Finance Company, and doubtless would have been none but for the bankruptcy of the Jonesboro Machine Company.

A principal cannot ratify a portion of an unauthorized transaction and not ratify the whole of it. He cannot avail himself of acts that are beneficial to him and repudiate the acts that are detrimental to him. '21 R. C. L. 923.

There need not be an express ratification, but ratification may be, and frequently is, implied from the acts of the parties, and when the facts justify the conclusion that the principal has ratified the acts, it is as effective as if there had been an express ratification.

Ratification, like agency itself, may be either established or disproved by the facts.

“In a great majority of the cases the ratification of unauthorized acts of an agent need riot be and is not made expressly, but is implied from the acts and words of the principal, except where the ratification is required to be in a particular form. * * * As between tbe principal and third person dealing with an agent, less is required to constitute a ratification than is required between tbe principal and tbe agent.” 2 C. J. 488.

Less is required because a principal is frequently bound by tbe acts of tbe agent not witbin tbe scope of bis authority. He may bind tbe principal if bis acts are witbin the apparent scope of bis authority. In other words, tbe act of tbe principal may be such as to lead third persons to believe that an agent has authority that in fact be does not have. In such case, tbe principal would be bound as to third persons.

• Tbe evidence was sufficient to justify tbe court in submitting to tbe jury tbe question of agency as well as ratification, but the appellant cannot complain at this not being done, because tbe instruction given by tbe court was as favorable to it as it was entitled to.

Under a certain - set of facts a jury might find that the relation of principal and agent existed, without finding there was any ratification. If this bad been submitted to tbe jury in tbe instant case, there would have been substantial evidence to justify a finding that tbe relation of principal and agent existed, but, as we have already said, tbe appellant cannot complain at this action of tbe court, and the appellee has made no objections to the court’s refusal to instruct on tbe question of principal and agent.

.Whether there was or was not a ratification was a question of fact for tbe jury. There is substantial evidence to support its verdict, and tbe judgment is affirmed.