text:
    Pendergrass v. State.
    Opinion delivered March 5, 1923.
    1. Criminal law — demonstration by spectators.- — Applause by some of the spectators at the close of an argument by one of ths State’s attorneys, and even participation therein by a deputy sheriff, which was not general on the part of the spectators, was not so prejudicial to the rights of the accused as to be beyond the power of the court .to cure, -and its injurious effect was cured where the demonstration, was promptly suppressed by the court, who instructed the sheriff to arrest any one whom he saw applauding and admonished the jury not to allow the applause of the audience to influence them in any way.
    2. Criminal law — manifestation in court of popular sentiment. —A manifestation of popular sentiment in -court for the purpose of influencing the decision of a criminal ease in a manner calculated to create an abiding bias or prejudice entitles the -accused to a new trial.
    3. Criminal law — demonstration in court — discretion of court-—Where the trial court refuses to grant a new trial because of the misconduct of the public at the trial, the Supreme Court will bé slow to control his discretion, and will not do so unless it has been abused, resulting in a miscarriage of justice.
    4. Criminal law- — argument of counsel. — A reference by one of the State’s attorneys to a demonstration in the court room as being a spontaneous outburst of the honest hearts of the people was improper, but was not so flagrant that its prejudicial effect could not have been removed by appropriate directions to the jury, and does not call for a reversal where accused did not object to the remark nor ask for an instruction to the jury not to consider it.
    5. Criminal law — newly discovered evidence — collateral matter. — In a prosecution for murder, where ill feeling between the parties grew out of the deceased’s belief that defendant had seduced his daughter, newly discovered evidence relating to intimacy and familiarity in -conduct between the daughter and another man, and to statements of the daughter alleged to show a blackmailing scheme, was collateral and irrelevant to the issue on trial as to whether the accused killed deceased in self-defense, and does not require the granting of a new trial.
    6. Criminal law — newly discovered evidence. — Newly discovered evidence which goes only to impeach the credibility of a witness is not ground for a new trial.

      7. .Criminal law — newly discovered evidence — Newly discovered evidence which was merely cumulative of other evidence-adduced »t the trial does not call for a new trial.
    8. Criminal law — newly discovered evidence — discretion.—Motions for a new trial on the ground of newly discovered evidence are addressed to the legal discretion of the trial judge; and, unless it appears that there has been an abuse of that discretion, the refusal of a new trial will not be reversed.
    9. Criminal law — discretion of court — disqualification op juror. — Where accused filed the affidavits of two nonresidents that they had heard a certain juror state that accused ought to be hanged, such juror on his voir dire having stated that he had not expressed any opinion, and the juror made affidavit that he had no recollection of having made such a statement, the court’s discretion in refusing a new trial will not be reversed.
    10. Homicide — instructions—prejudice.—In a murder trial, where evidence on behalf' of the State showed a premeditated killing while that on behalf of the defense showed self-defense, and there was no evidence tending to reduce the offense to manslaughter, any errors in giving instructions on manslaughter or any refusal to instruct thereon were harmless.
    11. Criminal law — multiplication op instructions — Though a requested instruction that, if deceased at the time of the killing was in the act of making a murderous assault upon defendant and attempting to take his life, defendant would not be required to retreat before he was authorized to kill deceased, if need be, lo prevent him from killing or doing great harm to defendant, was a correct statement of the law, refusal to give it was not error where the court instructed the jury fully and correctly upon the law of self-defense.
    Appeal from Logan'Circuit Court, Northern District;-. James Cochran, Judge;
    affirmed.

      Robt. J. White, John II. White, W. B. Rhyne, G. C. Carter, John P. Roberts, and Evans & Evans, for appellant.
    1. The court erred in refusing to grant the appellant a new trial on account of the demonstration in the court room by the spectators -and the deputy sheriff who selected find summoned the talesmen on the jury, and on account of the argument of the State’s attorney in urging the jury to convict the appellant because of the demonstration. 108 S. E. 290; 166 Calif. 357, Ann. Cases, 1915-B, 881, and case note at .p. 894; Ann. Cas. 1913-E, p. 806, case note; 112 Mo. 277, 20 S. W. 461; 16 Texas Ct. App. 473, 49 Am. Rep. 826.
    2. The court erred in refusing to grant a new trial on account of newly discovered evidence. 34 Ark. 632.
    3. It was error to refuse a new trial on account of the misconduct and disqualification of the juror Girard. 20 R. C. L. 242-3, § 27; 41 Fed. 676; 12 Am. Dec. 157; 46 Ore. 342, 80 Pac. 660, 114 A. S. R. 873; 69 W. Ya. 244, 71 S. E. 609, 50 L. R. A. (N. S.) 958, case note; 19 Ark. 156; '72 Ark. 158; 131 Ark. 404; 150 Ark. 555.
    4. The court erred in its instruction on the subject of manslaughter, and in refusing to give the instructions on that subject requested by the appellant. 50 Ark. 545; 74 Ark. 460; 52 Ark. 345; Id. 45; 116 Ark. 588; 69 Ark. 134; 82 Ark. 503; 87 Ark. 281.
    5. It likewise erred in failing and refusing to’ correctly instruct the jury on the duty of the defendant to retreat. 62 Ark. 306; 50 Ark. 545.

      J. S. Utley, Attorney General, and Wm. T. Hammock, Assistant, for appellee.
    1. The prompt and vigorous reprimand of the audience by the court, his directions to the sheriff and his admonition to the jury, removed any prejudice that might have resulted from the applause. 104 Ark. 162. No objections were made to the argument of the attorney based on the applause, and appellant cannot now complain. 79 Ark. 25; 84 Ark. 128; 120 Ark. 562; 125 Ark. 339; 109 Ark. 159; 120 Ark. 530; 126 Ark. 354. See also 65 Ark. 475; 95 Ark. 321; 94 Ark. 548; Í00 Ark. 232.
    2. There was no error in refusing to grant a new trial on account of newly discovered evidence. .Such evidence, where it goes only to impeach the credibility of a witness, is not a ground for new trial. 72 Ark. 404; 90 Ark. 435; 91 Ark. 492; 96 Ark. 400; 114 Ark. 472; 99 Ark. 407. Motions for new trial on the ground of surprise or newly discovered evidence are addressed to the sound legal discretion of the trial court, and that discretion, in the absence of abuse, will not be controlled. 41 Ark. 229 ; 54 Ark. 364; 116 Ark. 558.
    3. There was no error in refusing a new trial on account of the conduct of the juror Girard. 19 Ark. 156; 72 Ark. 158; 143 Ark. 178; 133 Ark. 16.
    4. Under the testimony the defendant was guilty of murder in the first degree, or the killing- was in self-defense, and therefore justifiable. Having been convicted of murder in the second degree, he cannot complain of instructions on the subject of manslaughter. 59 Ark. 431; 91 Ark. 224; 37 Ark. 238; 77 Ark. 247; 105 Ark. 367; 91 Ark. 589; 80 Ark. 495; 104 Ark. 606.
    5. The court’s instruction covered the 'Subject of the duty to retreat, and it was not required to multiply instructions. 116 Ark. 588.
   Wood, J.

On Friday, January 13, 1922, appellant shot and killed Clay McIlroy on the northeast corner of the public square in the town of Ozark, Franklin County, Arkansas. McIlroy at the time was armed with a twelve gauge choke-bore shotgun loaded with B B shot. The appellant used a small automatic pistol. On the northeast corner of the square is situated the People’s Bank building. It is a two-story building, the lower story being devoted to the banking- business and the upper story containing offices. The appellant, with another lawyer,, had an office on the second floor. The stairway leading to the second story was immediately west of the bank building. The appellant fired the shot that killed McIlroy from this stairway. Appellant at the time was some eight or ten steps up the stairway.

A nineteen-year-old unmarried' daughter of MaIlroy had become pregnant and given birth to a baby on January 23, 1922, in Oklahoma City. She claimed that the appellant was the father of the child, and that she went to Oklahoma City at his suggestion and upon his promise that he would defray the expenses of the trip. Miss McIlroy was staying at her home in Ozark at the time she had sexual intercourse with the appellant. After she became pregnant she notified him of her condition, but' did not tell her father. Her father ascertained her condition after she reached Oklahoma City. She did not tell her father that the appellant was the author of her ruin.

It was the contention of the State that the appellant, without provocation, waylaid McIlroy and killed him at a time when the appellant was in no danger of death or great bodily harm from McIlroy. There was testimony to warrant such contention on the part of the State. On the other hand, it was the contention of appellant that McIlroy knew that his daughter had accused the appellant of being the father of her child, and that because of this McIlroy had threatended the life of the appellant and had taken his gun to the People’s Bank, where he transacted his business, and had left the same there to be used by him when the opportunity presented for shooting the appellant; that the appellant had been informed of these threats of McIlroy; that on the day of the killing McIlroy saw appellant standing unarmed, as he believed, near appellant’s car in front of the People’s Bank; that McIlroy thereupon went and got his gun, and came out of the bank with the gun in a shooting position, and was seeking appellant to take his life; that when the appellant saw McIlroy come out' of the door with the gun he left the man with whom he was talking at the edge of the sidewalk and ran up the stairway in an effort to get away from McIlroy; that he lost his footing after he had ascended eight or ten steps, and fell or sank down; that McIlroy pursued along the sidewalk in a trot or run until he. came in front of the stairway with his gun in a shooting position, and just as he was in the act of bringing his gun toward the appellant to shoot, the appellant fired the fatal shot in order to save his own life. There was testimony to support this contention of the appellant, and we deem it unnecessary to set forth in detail the testimony in support of the respective contentions.

The' appellant was indicted by the grand jury of Franklin County of murder in the first degree for the killing of McIlroy. The venue was changed to the Northern District of Logan County, where the trial was had, resulting in a verdict of guilty of murder in the second degree, and a judgment sentencing the appellant to imprisonment in the State Penitentiary for seven years, from which judgment is this appeal.

We will dispose of the alleged errors in the rulings of the trial court in the order in which they are presented in the brief of learned counsel for appellant.

The appellant contends first that the court erred in refusing a new trial on account of a demonstration in the court room by the spectators and the deputy sheriff who selected and summoned the talesmen on the jury, and on account of the argument of Hon. Steel Hays in urging the jury to convict the defendant because of the demonstration. To sustain the above assignment of error, which was made one of the grounds of the motion for a new trial, the appellant attached several affidavits. One of the affidavits stated, in substance, that he heard the argument made by Mr. Wolf, one of the attorneys for the State, and that at the close of his argument a great many persons in the audience engaged in a noisy demonstration by clapping their hands, stamping their feet, and hollering in loud voices; that he saw Guy Lipe, who was sitting on a bench near to, and in plain view, of the jury. He had his hands raised above his head, and was clapping them, and stamping his feet, and in that manner assisting and engaging in the demonstration. Lipe is the chief deputy sheriff of B. B. Foster, sheriff of Logan County. Other affiants corroborated the above statement as to the character of the demonstration in the court room.

Two of the appellant’s attorneys stated, in an affidavit in support of the above ground for a new trial, that they were present and heard the argument of Steel Hays, one of the-counsel for the prosecution, who- stated in liis argument with reference to the demonstration by the audience the following: “It was the spontaneous outburst of the honest heart of the people of this county —of'-your friends and neighbors.”

The court put into the record the following statement: “At the conclusion of the speech of Otha Wolf, an attorney representing the State, there wasi a sudden outburst of applause by a small portion of the audience located near the east front door and extended to other portions of the audience, but by no means a general applause. Immediately the court rapped vigorously for order, and order was almost immediately restored. The court rebuked the crowd severely for the outburst, directed the sheriff to arrest any one whom he saw applauding and bring them before the court, and directed the sheriff, if another applause occurred, to clear the room of spectators, and admonished the jury that they must not allow the applause of the audience in any way to influence them in their verdict, and said to them that, should they do so, they would be unworthy as jurors, and ought not to be allowed to sit in any case. If the Honorable Steel Hays made the statement in his address to the jury that it was the spontaneous outburst of the honest hearts of the people of this county, of your friends and neighbors, the statement was not called to the attention of the court, and no exceptions were saved to such statement.”

The statements of the presiding judge with reference to the character of the demonstration in the court room following the argument of the attorney, Wolf, must be accepted as the facts concerning such demonstration and the rulings of the court concerning the same. The statements show that the outburst of applause was by no means general, and that the trial judge immediately took vigorous action, by way of reprimand to the audience and instructions to the sheriff and admonitions to the jury, to correct any prejudicial effect in the minds of the jury that might have been caused by such demonstration. The demonstration that was made by the audience was exceedingly reprehensible, and if the court had not promptly, and on its own motion, taken the steps indicated to counteract the prejudice which such demonstrations were calculated to produce in the minds of the jury, we would not hesitate to reverse because of the probable prejudice which might have resulted from such improper exhibition of public sentiment in favor of the prosecution. But the demonstration, as evidenced by the statement of the court, was not of so flagrant a character that any prejudice occasioned by it in the minds of the jury could not be completely removed by the efforts which the trial judge made to eliminate the same. The conduct of the deputy sheriff in .charge of the jury was, to be sure, the most culpable of all, because he was a sworn officer of the law, whose duty it was to preserve the utmost impartiality in his conduct before the jury. However, we are convinced that the instructions of the presiding judge to the jury not to allow the applause in any way to influence them in their verdict, and telling them that, if they did so, it would show them unworthy to sit as jurors in any case, were adequate to eliminate from the mind of any sensible and honest juror whatever prejudice might, for the moment, have been lodged in his mind. The manifestation of popular sentiment in a court of justice for the purpose of influencing the decision of a cause is always to be deprecated, and, where such sentiment is voiced in a manner calculated to create an abiding bias or prejudice which enters into the determination! of a cause, then the only possible method of obviating the failure in the administration of justice caused by such undue influence is to award a new trial. To anticipate and to prevent such occurrences presents a serious problem, and one ofttimes most difficult, and even impossible, to solve. It would not do to invalidate trials because of some sudden outburst of popular feeling which it is impossible for the presiding judge to control. Much must be left to his judgment and discretion in such cases, and, where he fails to grant a new trial because of such misconduct on the part of the public, this court will be slow to control his discretion, and will not do so unless it is manifest that same has been abused resulting in a miscarriage of justice. The facts of this record as evidenced by the statements of the trial judge do not warrant us in coming to that conclusion.

Concerning the remarks of counsel for the State in regard to the demonstration, such remarks were, of course, calculated to accentuate in the minds of the jury any prejudice which the demonstration might have produced, but these remarks also were not so flagrant that their prejudicial effect could not have been removed by appropriate directions to the jury. The statement of the trial judge shows that his attention was not directed to these remarks, and counsel for the appellant at -the time saved no exceptions to them and did not ask the court to instruct the jury not to consider them. Such being the case, appellant cannot now take advantage of a failure of the trial judge to exclude such remarks, or to reprimand counsel for having made the same. Smith v. State, 79 Ark. 25; Bell v. State, 84 Ark. 128; Wilson v. State, 126 Ark. 354.

The appellant next contends that the court erred in refusing to grant a new trial on account of alleged newly discovered evidence. He brings forward to sustain this ground of his motion for a new trial the affidavits of William Bearden, John McCormick, and Mrs. Godwin Lewis. The affidavit of William Bearden shows that he on one occasion observed an intimacy and familiarity in conduct between L. M. Guthrie and Edna Jane McIlroy, which counsel .for appellant contends would tend to show that appellant was the victim of a blackmailing scheme on the part of Edna Jane McIlroy, to which Guthrie was a party. The affidavit of Mrs. Lewis shows that she would testify to facts which would tend to prove that Edna Jane McIlroy told her that she had never had intercourse with any man except the appellant. and that appellant forced her to such intercourse at the point of a gun, and that Miss McIlroy wrote to the appellant demanding money, and that Miss McIlroy’s father saw the letter. Such testimony as the above was wholly collateral and irrelevant to the issue as to whether or not the appellant killed McIlroy in self-defense. Moreover, the testimony of these witnesses, even if relevant, was only for the purpose of impeachment. Newly discovered evidence which goes only to impeach the credibility of a witness is not ground for a new trial. Dewein v. State, 114 Ark. 472.

The affidavit of McCormick shows that he would testify that he witnessed the killing; that “he saw McIlroy come out of the. door of the People’s Bank with a shotgun in his hand and heard McIlroy say as he came out, -‘I am going to kill the son-of-a-bitch!’ That appellant ran from where he was talking with a party across the sidewalk into the stairway; that McIlroy changed the gun from his right hand to his left, put the gun to ids left shoulder and ran along the sidewalk with the gun to his shoulder, and as he got in front of the stairway he was bringing the muzzle of the gun around into the stairway when he was shot and fell.”

The above testimony was but cumulative of the testimony of several witnesses adduced at the trial which tended to show the circumstances of the rencounter to be substantially as disclosed by the alleged newly discovered evidence of McCormick. Under numerous decisions of this court a new trial will not be granted on the ground, of newly discovered testimony which is but cumulative in character. Hays v. State, 142 Ark. 587; Huchaby v.. Holland, 150 Ark. 85, and many cases cited in 4 Crawford’s Arkansas Digest at page 3819.

Motions for a new trial on the ground of newly discovered evidence are addressed to the legal discretion of the trial judge, and, unless it appears from the record that there has been an abuse of that discretion, the ruling of the trial court refusing a new trial for such ground will be sustained. Anderson v. State, 41 Ark. 229; Arm strong v. State, 54 Ark. 364. The court did not abuse its discretion in overruling the motion for a new trial on the ground of newly discovered evidence.

Appellant contends that the court erred in refusing a new trial on account of the misconduct and disqualification of juror Joe Girard. The record shows that Girard was selected on the jury that tried the appellant. He was a member of the regular panel, and on his voir dire he qualified himself to sit on the jury by stating that he did not know anything about the facts of the case, and had not formed or expressed an opinion as to the guilt or innocence of the appellant, and that, if selected, he would try the case fairly and impartially according to the law and the testimony, and that he was not prejudiced against the appellant. The affidavit of one of the attorneys for the appellant shows that appellant and his counsel did not know at the time Girard was accepted by them as a juror that he had expressed the opinion that the appellant ought to be hung. To sustain this ground of his motion for a new trial, appellant also brought forward the affidavits of two parties to the effect that during the August term of the court, 1922, at which the trial of the appellant was had, and before the trial began, they heard Joe Girard say that he knew Pendergrass and McIlroy, and knew enough about the ease to know that Pendergrass ought to be hung for killing McIlroy. To rebut the statements made by the two affiants as to what Girard said, the State adduced the affidavit of Girard in part as follows: “I have read the affidavit of Walter Leach of the county of Wagoner, State of Oklahoma, as the same is eorcied in the application for a new trial in the case of State of Arkansas v. Willard Pendergrass, and I -have no recollection of making such statement to any one.” Tt arc-pears that the affidavits tending to show the prejudice of juror Joe Girard were made by parties who lived in Oklahoma. These affidavits do not state the occupation of the affiants, and no facts are set up that would tend to advise the court as to the identity of the affiants and the credibility that should be given their affidavits. It is not shown that appellant asked that they be brought before the court for observation and personal examination.

As we have already stated, it was shown by the affidavit of one of appellant’s counsel that the juror Girard qualified himself under oath as a juror by answering that he had not expressed any opinion as to the guilt of appellant, and the affidavit of Girard states that he had no recollection of making sudh statement to any one as was attributed to him in the affidavit of Walter Leach. The affidavit of Walter Leach as to what he heard the juror Girard say was in substance and effect the same as the affidavit of Walter Smith, so the denial by Girard that he made such statement to any one was tantamount to a denial of both affidavits. The answers to the questions propounded to him on his voir dire were in effect a denial that he had made such statements prior to the trial as were attributed to him in the affidavits of Leach and Smith. The court had personal observation of the juror Girard while he was making his answers with reference to his qualification to sit as a juror.

In the early case of Meyer v. State, 19 Ark. 156, we had under consideration the incompetency of a juror on account of prejudice alleged to have been discovered after the trial and conviction, and among other things we said: “If, in this case, the juror Beard 'had really and seriously expressed the determination, before the trial, to convict the prisoner at all events, he was guilty of a fraud upon the law, and upon the prisoner’s rights, in hypocritically taking upon himself the solemn oath of a juror, and falsely assuming to act as an impartial arbiter .of the life or liberty of the prisoner. But it would not be safe to hold that the prisoner, after ¡conviction, could take the ex parte affidavits of persons' out"’ O.f doors, to establish the prejudice of the juror, and, bringing them into court, claim a new trial,- absolutely, and as a matter of right, upon such affidavits, as insisted by the counsel of the prisoner in this case. Such a practice might open the door for corruption and perjury.”

The above case is the leading case in our reports on the subject now under review, -and contains a learned and thorough discussion of the same. In that case the court held that where the competency of a juror is challenged on the ground of prejudice which was not discovered until after the trial, the trial court might consider the affidavits of parties tending to show such prejudice, and might have the affiants and juror brought before the court for examination concerning the alleged prejudice, and that, after ascertaining all the facts, the court would necessarily have to exercise a sound legal discretion in disposing of the motion. In that case there was nothing in the record to discredit the affidavits tending to show prejudice on the part of the juror. .The juror himself whose conduct was impeached was not examined, nor his afidavit taken in rebuttal of the alleged fraud and misconduct practiced upon the court in the concealment of his prejudice.

Such being the state of that record, this court held that the competency of the juror had been impeached, and' that a new trial should be had on that account. Chief Justice English concluded by saying: “In this case, nothing appears of record to discredit the affidavits of Addy and Tune, and the court below, perhaps, overruled the motion for a new trial, under the impression that, under our statute, the competency of jurors could, in no case, be impeached after the trial.” But in the case at bar the juror whose conduct was questioned made an affidavit in rebuttal or contradiction of the charges made against him. It occurs to us that the statement contained in his affidavit was an absolute contradiction of the alleged misconduct set forth in the two affidavits that were filed by the appellant in support of his motion. Th.e court considered these affidavits in connection with the affidavit of the juror Girard, and held that the competency of the juror had not been impeached. We are convinced that the trial court did not abuse its discretion in holding that the integrity of the trial was not impaired by any alleged concealment or prevarication on the part of Girard in imposing himself upon the panel. See Vowell v. State, 72 Ark. 158. “On motion for a new trial on the ground that a juror was disqualified by reason of having formed and expressed an opinion that the accused was guilty, a finding of the court, on conflicting evidence, that the juror was not disqualified, is conclusive.” Sneed v. State, 143 Ark. 178. Wright v. State, 133 Ark. 16; Van Houser v. Butler, 131 Ark. 404.

The appellant next urges that the court erre! in its instructions given on the subject of manslaughter, and erred in refusing to grant prayers by the appellant in regard to manslaughter. It is a sufficient answer to this contention to say that the appellant cannot complain of error, if any, in the rulings of the trial court in giving or refusing prayers for instructions on the subject of manslaughter, for, as we view the record in the ease, there was no testimony to justify instructions on the subject of manslaughter. Counsel for the appellant, in their statement of the case, correctly say that their contention at the trial was that the appellant'“was running to the stairway and up the stairway in an effort to avoid the deceased and to prevent the deceased from shooting and killing him, and that the deceased followed, or went along the sidewalk in front of the bank, in a trot or run, with his gun in a shooting position, until he came in front of the stairway up which the apnellant was trying to escape, and just as deceased was in the act of bringing his gun in the stairway toward the apnellant to shoot, the appellant fired a shot which resulted in the death of the deceased, and that he fired the shot for the sole and only purpose of saving his own life from being taken by the deceased.”

As we have already stated, there was testimony to sustain this contention, but there was no testimony whatever to warrant á finding that the appellant voluntarily shot and killed McIlroy in a sudden, heat of passion caused by a provocation apparently sufficient to make the passion irresistible. Nor is there any testimony on behalf of appellant, if believed by the jury, that would warrant the inference that appellant was careless in reaching the conclusion that it was necessary to take the life of McIlroy and acted too hastily in doing so. Appellant either shot and killed McIlroy in his -necessary self-defense under the circumstances as detailed by himself and witnesses in his behalf, or else he killed McIlroy, as the State contended, and as the testimony tended to pr-o-ve, without any provocation whatever, and with malice aforethought, and after deliberation and premeditation. The verdict of the jury has settled the issue thus made by the facts against the appellant by finding him guilty of murder in the second degree, showing that, under the evidence, they believed him guilty of that grade of homicide. If they had not so believed, they should, and doubtless would, have acquitted him, for, if the evidence tending to prove the contention of appellant were believed by the jury, they could not have convicted him of any offense. In this state of the proof the appellant is in no attitude to complain because the court -submitted instructions on the subject of manslaughter, which,- even if erroneous, would have permitted the jury to find him guilty of a lower grade of homicide than that of which he was guilty under the evidence, if 'he was guilty at all. The instructions on manslaughter were therefore more favorable to the appellant than he was entitled to under the evidence, which tended to prove that, if guilty at all, he was guilty of murder and nothing less. Beatty v. State, 77 Ark. 247; Cook v. State, 80 Ark. 495; Sexton v. State, 91 Ark. 589; Hamer v. State, 104 Ark. 606; Wilkerson v. State, 105 Ark. 367.

Appellant urges, as a ground for reversal of the judgment, that the court erred in failing and refusing to correctly instruct the jury on the subject of the duty of the defendant to retreat. The appellant prayed for instructions which, in effect, declared that if Mcllroy, at the time of the killing, was in the act of making a murderous assault upon the appellant and attempting to take his life, under such circumstances appellant would not be required to retreat before he was authorized to shoot and kill Mcllroy, but -that he had the right to stand his ground, and, if need be, kill Mcllroy to prevent him from killing, or doing great bodily harm to the appellant. In this connection the court gave the following instruction :

“15. No one in resisting an assault made upon him in the course of a sudden brawl or quarrel, or upon a sudden encounter, or in a' combat on a sudden quarrel, or from anger suddenly aroused at the time it is made, is justified in taking the life of the assailant, unless he is so endangered by such assault as to make it necessary to kill the assailant to save his own life, or to prevent a great bodily injury, and he employed all the means in his power, consistent with his safety, to avoid the danger and avert the necessity of killing. The danger must apparently be imminent and actual, and he must exhaust all means within his power, consistent with his safety, to protect himself, and the killing must be necessary to avoid the danger. If, however, the assault is so fierce as to make it apparently as dangerous for him to retreat as to stand, it is not his duty to retreat, but he may stand his ground, and, if necessary to save his own life, or to prevent a bodily injury, slay his assailant. ’ ’

The appellant offered only a general objection to the above instruction, and the appellant’s prayers raised only the objection that the instruction given by the court did not correctly declare the law applicable to the testimony adduced by the appellant, which tended to prove that McIlroy, at the time appellant shot and killed him, was making a murderous assault upon the appellant. Appellant’s prayers for instructions in this connection were correct declarations of the law, but we are convinced that the law embodied in these prayers was fully and correctly declared in the instructions which the court gave.

The concluding portion of instruction No. 15, given by the court as above set forth, correctly stated the proposition of law which the appellant contends the court should have stated, for it tells the jury in substance that, if the assault upon appellant was so fierce as to make it apparently as dangerous for him to retreat as to stand, it'was not his duty to retreat, but that he could -stand his ground, and, if necessary to save his own life or to prevent great bodily harm, slay his assailant, McIlroy. This certainly accurately declared the law safeguarding all the rights of the appellant, if the jury should find that a murderous assault was made upon appellant by McIlroy, and thus fully covered the evidence tending to sustain his theory that the killing was done in his necessary self-defense. After the court had fairly and fully declared the law applicable to the facts which the testimony adduced by the appellant tended to prove, then it was not error to refuse to multiply instructions covering the same subject. Stevens v. State, 117 Ark. 64-70; Dickerson v. State, 121 Ark. 564-70.

The record presents no reversible error in the rulings of the trial court, and its judgment is therefore affirmed.


source: Caselaw Access Project

author: Hart, J.

license: Public Domain

text:
    Roberts v. State.
    Opinion delivered March 5, 1923.
    1. Criminal law — instruction as to credibility op witness.— The credibility of a witness who knowingly testifies falsely as to one or more material facts is wholly for the jury, and it is an invasion of their province to tell them that they may disregard a witness’ entire testimony when they believe he has testified falsely as to a material fact.
    2. Criminal law — instruction as to credibility op witness.— An instruction on the credibility of witnesses that, if the jury find that any witness has wilfully sworn falsely to any material facts, “you may disregard their whole testimony if you believe it to be false, or believe that part which you think true, and disbelieve that part which you regard to be false,” is not erroneous as telling the jury that if they find that any witness has wilfully sworn falsely to any material fact they may disregard all the testimony of such witness.
    Appeal from Sebastian Circuit .Court, Fort Smith District; John Brizzolara, Judge;
    affirmed.

      Cravens & Cravens, for appellant.

      J. S. Utley, Attorney General, Elbert Godwin and Wm. T. Hammock, Assistants, for appellee.
   Hart, J.

Jack Roberts prosecutes this appeal to reverse a judgment of conviction against him for the crime of selling intoxicating liquors in the Fort Smith District of Sebastian County, Ark., on the 15th day of July, 1922.

His only assignment of error is that the court erred in giving instruction No. 2, which is as follows:

“You are the sole judges of the credibility of the witnesses and the wieght that should be given to their testimony. It is your duty to reconcile the statements of these different witnesses, so as to believe as much of this testimony as you can, but if you cannot do so on account of contradictions, then you have the right to believe the witnesses whom you think the most worthy of credit, and disbelieve the witnesses who you believe from the evidence to be the least worthy of credit. And if you find any witnesses have wilfully sworn falsely to any material facts in: this case, you may disregard their whole testb mony if you believe it to be false, or believe that part which you think true, ana disbelieve that part which you regard to be false. And in weighing a witness’ testimony you may take into consideration his candor or lack of candor, his knowledge about the thing he testifies, the reasonableness or unreasonableness of his testimony, and his interest', if any be shown, in the result of your verdict.”

Counsel for the defendant claim that the instruction is open to the objection that it tells the jury that, if it finds that any witness has wilfully sworn falsely to any material fact in. issue, it may disregard all the evidence of such witness, if it sees fit to do so, and rely upon the decision of Mangrum v. State, 156 Ark. 306, and cases cited for a reversal of the judgment.

We do not think that the instruction is of similar import to any of the instructions referred to in those cases. While we do not approve the form of the instruction, we do hold that it is free from the criticism of the instructions in the cases cited.

The object of all testimony is to establish the truth, and the jury is the judge of the credit to be given to the witnesses. The true rule is that the credibility of a witness who knowingly testifies falsely as to one or more material facts is wholly a matter for the jury. It may believe or disbelieve his testimony as to other facts according as it deems such testimony worthy or unworthy of belief. Hence it is an invasion of the province of the jury to tell it that it may disregard the entire testimony of a witness whom it may believe to have testified falsely as to a material fact.

The present instruction is not open to that criticism because it tells the jury that, if it-believes any witness has testified falsely to a material fact, it may disregard his whole testimony if it believes it to be false, or it may believe that part which it thinks true and disbelieve that part which it regards false. By this the court meant to tell the jury that, if it found a witness to have wilfully testified falsely on a material point, it might disregard his whole testimony if it believed the whole of it to be false.

Therefore the instruction was technically correct, and an instruction in'substantially the same language has been recently approved in the case of Bryant v. State, 156 Ark. 580.

It follows that the judgment will be affirmed.


author: Hart, J.,

text:
    Missouri Pacific Railroad Company v. Pugh.
    Opinion delivered March 5, 1923.
    Carriers — jewelry as baggage. — Jewelry suitable to the condition in life of the passenger and intended for personal use on the journey is “baggage,” and an interstate carrier cannot limit the meaning of that term by rules and regulations filed with the Interstate Commerce Commission so as to exclude articles included in the generally accepted meaning of that term.
    Appeal from Pulaski Circuit Court; Second Division; Guy Fulk, Judge;
    affirmed.
    STATEMENT OF FACTS.
    This was an action by Dorothy Pugh against the Missouri Pacific Railroad Company to recover the value of her baggage lost by the said railroad company.
    According to the allegations of her complaint, on December 30, 1920, the plaintiff purchased from the defendant at Hamburg, Ark., a railroad ticket from that place to Asheville, N. C. The railroad company also checked her trunk as baggage on the ticket. "When the plaintiff delivered the trunk to the defendant as baggage, among other articles of wearing apparel it contained a gold pin set with precious stones worth $50 and two lavallieres each set with a small diamond worth $75 each.
    It is alleged that these articles were carried by the plaintiff for her own use on her journey. The trunk having- been lost upon the journey, the plaintiff brought this action to recover damages for the value of the trunk and its contents.
    The railroad company defended on the ground that it had complied with the tariff rates and rules and regulations affecting baggage promulgated by the Interstate Commerce Commission.
    It also claimed that under the rules of the Interstate Commerce Commission jewelry is not baggage. The rule on this point is as follows:
    “Money, jewelry, negotiable papers and like valuables should not be inclosed in baggage to be checked. The carriers issuing and concurring in this tariff will not be responsible for such articles in baggage. ”
    The plaintiff filed a demurrer to the answer of the defendant.
    The circuit court sustained the demurrer to the answer, except to that part setting up the $100 limitation of value.
    The defendant elected to stand upon its answer, -and refused to plead further. "Whereupon the court rendered judgment in favor of the plaintiff against the railroad company for the sum of $100.
    The defendant has duly prosecuted an appeal to this court.

      E. B. Kmsworthy and R. E. Wiley, for appellant.
    1. The tariff regulation prohibiting the carriage of jewelry as baggage is reasonable and lawful, and should be enforced. 74 I. C. C. Rep. 238; 132 Ark. 582; 233 U. S. 97; 100 U. S. 24; 3 Wall. 107.
    2'. In the absence of a showing that complaint of the unreasonableness of the regulation had been heard and determined by the Interstate Commerce Commission, the court was without jurisdiction to abrogate or hold it unreasonable. 4 Fed. Stat. Ann. 337 et seq.; Supp. of 1920, Fed. Stat. Ann., 93 et seq.; 4 Fed. Stat. Ann. 2d ed., 406, § 6; 36 Stat. 539-546; IT. S. Comp. Stat., Supp. 1911, chap: 309, p. 1288; 4 Fed. Stat. Ann. (2d ed.) p. 359, Snpp. 1920, p. 95; sub-paragraph 7 of § 6 of the act, p. 421; Supp. 1920, p. 304; § 10 of act, p. 439; Supp. 1920, p. 105; § 13 act, p. 453; Supp. p. 106; § 14 act, p. 457; Supp. p. 107; § 15, act, p. 458 uurl sub-paragraph 7, p. 468; Supp.- p. 107; § 16, act, p. 475 and sub-paragraphs, Supp. 3 920, p. 116; 204 IT. S. 426; 51L. ed. 553; 222 IT. S. 506; 56 L. ed.. 288; 234 IT. S. 338; 58 L. ed. 1255; 230 IT. S. 247: 57 L. ed. 1472; 240 IT. S. 43; 60 L. ed. 517; 231 Fed. 405.
   Hart, J.,

(after stating the facts). In the case of Bush v. Beauchamp, 132 Ark. 582, the court held that, inasmuch as the term “baggage” has a generally recognized meaning, the carrier cannot, by rules and regulations, limit its meaning so as to exclude articles which are usually included in the generally accepted meaning of the term.

In that case, following its earlier decisions, this court also held that jewelry suitable to the condition in life of the passenger and intended for personal use on the journey is baggage.

We are now asked to overrule that decision upon the authority of a ruling of the Interstate Commerce Commission. This we decline to do.

It follows that the judgment will be affirmed.


text:
    Wilson v. Overture.
    Opinion delivered March 5, 1923.
    1. Garnishment- — judgment against garnishee. — Under Crawford & Moses’ Dig'., § 4916, final judgment may be rendered against a garnishee upon default made by him, or when, on trial, the court finds that he is indebted to the defendant in the original judgment.
    2. Garnishment — pleading—No special form of pleading is required in garnishment proceedings.
    3. Judgment- — default judgment. — A default decree in a garnishment proceeding upon a complaint alleging that plaintiffs are informed and believe that the garnishee is indebted to defendants in a certain sum, and that he has money, property and effects belonging to defendants, is not based upon a complaint which states a good cause of action under Crawford & Moses’ Dig., § 1187, and is therefore erroneous.
    4. Pleading—default judgment on insufficient pleading.—A default judgment after service of summons admits only the allegations of the complaint, and, if they are insufficient to support the judgment, it will be reversed.
    Appeal from Crittenden Chancery Court; Arche% Wheatley, Chancellor;'
    reversed.
    STATEMENT OF FACTS.
    This is an appeal by a garnishee from a decree by default against him. H. C. Overturf, trustee, for the use and benefit of Aaron McMullin, brought suit in equity against Mrs. Charles Eddins Owen and Mrs. 1.1. Biles to foreclose a deed of trust on certain lands in Crittenden County, Ark., given by Mrs. I. I. Biles to secure an indebtedness of $7,000 owed by her to Aaron McMullin. The complaint alleges that Mrs. I. I. Biles sold the mortgaged land to Mrs. Charles Eddins Owen, and that the latter is now in possession of it; that, she is allowing the land to grow up in noxious weeds and undergrowth, and that there has been a failure to pay the mortgage indebtedness or any part thereof. The complaint also contains allegations as follows:
    “Plaintiffs are informed and believe that B. W. McCulloch is indebted to the defendant Mrs. I. I. Biles and Mrs. Charles Eddins Owen in the sum of $11,775; that he has money, property, or effects belonging to the defendant Mrs. I. I. Biles of the value of. $11,775, and plaintiffs propound to the said B. W. McCulloch the following interrogatories, to-wit-:
    “1st. Are you indebted to Mrs. I. I. Biles of Memphis, Tennessee, and Mrs. Charles Eddins Owen, and, of so, state the amount of such indebtedness, the nature thereof, whether evidenced by a promissory note, and, if so, whether said notes are secured by mortgage or deeds of trust? State fully.

      “2nd. Have you in your possession or under your control any moneys, goods, chattels or effects of Mrs. I. I. Biles of Memphis, Tennessee, and Mrs. Charles Eddins Owen, and, if so, state the nature of the same and the value thereof.”
    The complaint prays for a foreclosure of the mortgage, and also for a writ of garnishment against B. W. McCulloch. A writ of garnishment was duly issued, and personal service was duly had upon B. W. McCulloch. On final hearing of the case, there was a decree of foreclosure in behalf of the plaintiff against Mrs. I. I. Biles and Mrs. Charles Eddins Owen, and a personal Judgment was rendered against them for the amount of the. mortgage indebtedness.
    A decree by default against B. W. McCulloch as garnishee was also entered in the sum of $8,014.30, being the amount for which judgment was rendered against Mrs. I. I. Biles and Mrs. Charles Eddins Owen.
    Subsequent to the rendition of the decree, B. W. McCulloch died intestate, and an appeal to this court has been duly prosecuted by the administrator of his estate.

      Berry & Wheeler, for appellant.
    The allegations of the complaint are not sufficient to warrant or support a judgment against the garnishee. 94 Ark. 572; 41 Ark. 42; 44 Ark. 56; 58 Ark. 39; 68 Ark. 263; 107 S. W. 179; 82 Ark. 455; Knapp v. Gray, 153 Ark. 160.
    J. F. Gautney, for appellee.
    The service on the garnishee was by personal service of summons, and he failed to answer. Judgment by default was authorized under the garnishment act of 1889 as amended, Acts of 1905. 70 Ark. 128; 96 Ark. 1. Allegations and interrogatories are not necessary prerequisites to the validity of judgments against garnishees. 133 Ark. 579, 582.
   Hart, J.,

(after stating the facts). Sec. 4916 of Crawford & Moses’ Digest in effect provides that if any garnishee upon whom personal service has been had shall neglect or refuse to answer the„ interrogatories exhibited against him, the court before whom the matter is pending shall enter judgment against such garnishee for the full amount specified in the plaintiff’s judgment against the original defendant, together with costs. Under this act final judgment may be rendered against a garnishee upon default made by him, or when, on trial, the court finds that he is indebted to the defendant in the original judgment. Norman v. Poole, 70 Ark. 128; and Tiger v. Rogers Cotton Cleaner & Gin Co., 96 Ark. 1.

In the instant case, judgment by default was rendered against the garnishee. The only question raised by the appeal is whether the allegations of the complaint are sufficient to support the decree entered upon the default of the garnishee. Koons v. Markle, 94 Ark. 572, and cases cited.

It is claimed 'by counsel for the garnishee that the complaint is defective in that it did not charge as a fact that McCulloch was indebted to the defendants. *

It will be noted from our statement of facts that the complaint only alleges that plaintiff is informed and believes that B. W. McCulloch is indebted to the defendants in the sum of $11,775.' We -think the defect is fatal unless this form of pleading is allowed by our Code. There is no special form of pleading required in garnishment proceedings, and we must therefore look to our general Code provisions on the question.

Under § 1187 of Crawford & Moses’ Digest the complaint must contain a statement in ordinary and concise language, without repetition, of the facts constituting the plaintiff’s cause of action. This provision requires that the facts relied upon should be directly and positively alleged and not stated by way of argument, inference, or belief. The statute requires the facts to be alleged so that an issue may be made thereon. The statement in the pleadings should be made in direct and positive terms, so that, if it be necessary for the other party to respond to them, he may be able to do so in terms equally direct and positive. The issue tendered by the complaint is not as to the existence of the fact of whether or not the garnishee was indebted to the defendant, but as to the plaintiff’s information and belief on this matter.

Therefore the decree was not based upon a complaint which showed a good cause of action, and was erroneous.

A default after due service of summons admits only the allegation of the complaint, and, if they are insufficient to support the judgment, it will be reversed. Chaffin v. McFadden, 41 Ark. 42; Benton v. Holliday, 44 Ark. 56, and American Freehold Land Mortgage Co. v. McManus, 68 Ark. 263.

As supporting the views herein expressed see also Nichols & Sheppard Co. v. Hubert, 51 S. W. 1031, where the Supremo Court of Missouri held that a petition in a creditor’s suit, which avers that plaintiff is informed and believes certain facts, thereafter recited, which are essential to plaintiff’s case, is demurrable, as it does not allege the existence of the facts.

It follows that the decree must be reversed, and the cause remanded for further proceedings in accordance until the principles of equity and not' inconsistent with this opinion.


author: Smith, J.

text:
    Cox v. Thane.
    Opinion delivered March 5, 1923.
    Public lands — effect of holding certificate to swamp lands.— Where, in an action to quiet title to swamp land, defendant claimed through a holding certificate issued in 1852, and plaintiff through a patent issued in 1920 on the assumption that the holding certificate had been surrendered and a refunding certificate issued therefor, which was evidenced by a pencil notation in the column headed “Remarks,” a finding that defendant’s title was valid will be upheld.

      Appeal from Chicot Chancery Court; E. G. Hammock, Chancellor;
    affirmed.

      Joe H. Thompson and J. S. Utley, for appellant.
    1. The burden of proof was on appellee to overcome the presumption in favor of appellant raised by the issuance of the swamp land patent. 55 Ark. 286; 75 Ark. 419; 94 Ark. 221. The effect of the pencil notation on the original records showing that Ferguson surrendered his holding certificate, and accepted in lieu thereof'a refunding .certificate, cannot be ignored. Crawford & •Moses’ Digest, §§ 6610, 6613-14, 6766-69, 6774-75, and 9858.
    2. The State will not be estopped by the unauthorized acts of her officers in listing the lands for taxes, etc. 93 Ark. 490; 54 Ark. 251; 48 Ark. 426; 42 Ark. 118; 40 Ark. 251; 39 Ark. 580.

      Streett, Burnside & Streett, for appellees.
    1. The pencil notation can have no effect as a record, and, in the light of the evidence in this case, it can have no probative force. 135 Ark. 238.
    2. This court has consistently held to the doctrine of presumption of grant from the sovereign, where there was a legal commencement of possession by the claimants, and that possession together with payment of taxes has been long continued and uninterrupted. 114 Ark. 62; 135 Ark. 232; Id. 353; 149 Ark. 189.
   Smith, J.

Appellant filed a bill in the chancery court of Chicot County, alleging that he was the owner of two quarter sections of land there described situated in that county. He claimed title under the swamp land grant to the State from the United States, approved September 28, 1850, and a swamp land patent to him from the State dated April 16, 1920. There was an allegation that the lands were wild and unimproved, and that Henry Thane, the defendant, claimed some interest in the land, to the plaintiff unknown, and there was a prayer that the plaintiff’s title to the land be quieted and confirmed.

Thane filed an answer disclaiming any interest in the land; but the Desha Bank & Trust Company filed an intervention and cross-complaint, in which title thereto was asserted. The intervener claimed title as follows: That a patent issued from the United States to the State of Arkansas on January 3, 1880. That on February 21, 1852, William T. Ferguson purchased said land from the State of Arkansas, and paid the purchase price in full and received a certificate of purchase therefor designated as a holding-certificate. That immediately after this sale to Ferguson, the State caused the lands to be listed for taxation upon the taxbooks of Chicot County, and the State has since continuously assessed and attempted to collect the taxes thereon. That the lands were included in the overdue tax suit on account of the nonpayment of certain taxes, and were sold under the provisions of that decree to D. H. Reynolds. This sale was duly confirmed, and Reynolds received the commissioner’s deed, which was also confirmed, and, by mesne conveyances, the Desha Bank & Trust Company has acquired the Reynolds title. There was a prayer that the plaintiff’s title be canceled, and that relief was awarded, and this appeal is from that decree.

The records of the State Land Office were care-, fully examined by the witnesses, and from the depositions and stipulations the following facts appear from those records. . A holding certificate was issued February 21, 1852, to Williams T. Ferguson for the lands in question. That certificate evidenced the fact that Ferguson had paid the purchase price demanded for the lands and was entitled to a patent from the State as soon as the State itself obtained a patent from the United States. Coleman v. Hill, 44 Ark. 452. But, as has been said, the State itself had not at that time obtained a patent from the United States.

The record showing the issuance of a holding certificate to Ferguson is the “ Record of Certificates of Purchase,” and was made in ink. In the column headed “Remarks,” after the entry showing issuance of a holding certificate to each of the tracts of land in litigation, there appears a pencil notation to the following effect: “Refunding certificate July 6, 1863.”

The law permitted one to surrender a holding certificate and to take, in lieu thereof, a refunding certificate, which certificate entitled the holder thereof to enter a corresponding amount of swamp land; and when one took a refunding certificate for a holding certificate, that action operated to cancel the holding certificate.

The State Land' Department acted upon the assumption that the pencil notation evidenced the fact that Ferguson had surrendered his holding certificate, thereby canceling his entry of the land, and leaving it vacant and subject to sale; and, upon this assumption, issued to ‘Cox the patent upon which he bases this suit. Was this assumption warranted under the facts of this record?

These are as follows: The tax records of Chicot County from 1853 to 1869 are missing from the office where they should be kept; but the certificate of the .county clerk shows that the lands have been continuously listed for taxation since 1869. The lands were included in the overdue tax decree, and were sold under its provisions.

Although, as we have said, the law provided for the surrender of a holding certificate and the acceptance of a refunding certificate in lieu thereof, there is no showing as to the authority by which the notation was made that a refunding certificate had issued except its appearance under the head of “Remarks.” There was a record then in use, and still in use, in the State Land Office in which the issuance was noted of all refunding certificates; and if a refunding certificate was in fact issued to Ferguson, an. entry thereof should have been' made in this record, but none appears. Refunding certificates were numbered as issued, and the pencil notation makes no reference to any number.

There was testimony to the effect that in 1915 a deputy land commissioner and a clerk in that office prepared an abstract of all the records of the State Land Office concerning swamp and overflow lands in Chicot County for an abstracter residing in that county. An official certificate was then made attesting the correctness of this copy of the records. The deputy who made this copy and certificate was asked if his copy showed this pencil notation, and he stated that it did not. When asked why he did not show it on his copy of the records, he answered that there might have been two reasons. One was that, if the notation was on the record at the time the copy was made, it was disregarded as not being a permanent record on account of its being made in pencil. The other reason was that the notation might not then have appeared on the record. He had no independent recollection whether that was true or not. He also testified that, if the holding certificate had been surrendered, and the refunding certificate issued in lieu thereof, a notation should properly have been made in ink, giving the date of the certificate and its number, so that it could be referred to by number. And, as we have said, there was also a permanent record in which entries were made showing the issuance of such certificates; but this record contains no entry indicating that a refunding certificate issued in lieu of the holding certificate.

Ferguson died March 19, 1863, which was, of course, prior to the date on which the notation shows the refunding certificate issued. It is true these certificates were assignable, and Ferguson’s assignee might have surrendered the holding certificate and have obtained the refunding certificate; or his legal representatives might have done so; but the fact that the assignee of the entryman, or his legal representatives, rather than the entryman himself, surrendered the certificate, would .appear to make it more probable that some record would have been made of that fact, if this had been done.

There was testimony tending to show that the land was in actual cultivation many years ago, before the location of the levee was changed leaving the land on the outside of the levee and unprotected from the overflows of the Mississippi River. And it was also shown that, with the exception of a few omissions, the taxes had been paid since 1869, and since 1885 have not been delinquent, and since 1894 have been paid without a break by appellee and its predecessors in title.

The court found from these facts that the probative value of this pencil notation was not sufficient to overcome the authentic records of the Land Office showing that Ferguson had entered the lands, and had obtained a holding certificate therefor, and that the 'State’s title now stood as it did when the holding certificate issued, and that appellee, as the owner of the Ferguson title, was entitled to a patent; and, upon this finding, canceled the patent to appellant as a cloud upon appellee’s title.

We cannot say this finding is clearly against the preponderance of the evidence. In the case of State v. Taylor, 135 Ark. 232, we had occasion to consider the effect to be given a pencil notation similar to the one under consideration here. In that case, as in this, there was no showing when or by whom the notations were made, nor any statute providing that such notations should be evidence of the matters contained in them. We held that, although the notation had no force as a record, still the entry was not without probative force. So here the pencil notation does have probative value, but that value is overcome by the other evidence in the case, and the decree of the court below is affirmed.


text:
    Wynne, Love & Company v. Bunch.
    Opinion delivered March 5, 1923.

      1. Factors — guaranty as to price — A guaranty by a factor that cotton shipped to him would be sold for a sum not less than the advances made by him on the cotton, made as a consideration for the shipment, is enforceable.
    2. Evidence — inference from collateral writing. — Where a letter put in evidence is not a part of the contract, but is merely offered for the purpose of showing an extrinsic fact, it is for the jury to say what-inference of fact is to be drawn from it.
    S. Factors — liability on price guaranty. — Where cotton was delivered to a factor on consideration that he would guaranty that it would be sold for a sum equaling the advance then made as a consideration for the shipment, the seller could not hold the factor on such guaranty unless the factor had authority to sell in good faith at the best price obtainable.
    4. Factors — duty toward principal. — A factor has the right and it is his duty to exercise good faith, due diligence, and ordinary discretion in selling the. goods consigned for sale.
    5. Guaranty — material alterations. — A material alteration in the obligation of a guarantor, made without his consent,. releases him.
    Appeal from Mississippi Circuit Court, Chickasawba District; W. W. Bandy, Judge;
    reversed.

      V. G. Holland, for appellant.
    1. Tbe defense of negligence on tbe part of appellants is refuted by uncontradicted proof that the opportunity to sell the cotton in May was the first demand for cotton after they received appellee’s lot, and they handled his cotton the very best they could, and got the most out of it that they could for appellee. The market value of cotton at that time in appellee’s locality was no evidence of the market in Memphis, Tennessee. 78 Ark. 402.
    2. The evidence of the guaranty is too indefinite. 23 Ark. 63; 6 B. C. L. 657, § 61; 9 Cyc. 248.
    Tf there was any guaranty to sell for as much as was advanced, the agreement was rescinded by appellee. If appellant guaranteed to sell for a certain price, and saw iliat cotton was declining, it not only liad the legal right to sell, bnt it was its duty to do so. 11 B. C. L. 767, § 19; 19 Cyc. 129, § C.
    By the sale of May 18, 1920, appellant performed its part of the contract, and if appellee refused same he rescinded the contract, and the parties were left in the situation of consignor and factor with instruction to sell for enough to pay out. 22 Ark. 258; 41 Ark. 532; 88 Ark. 422; 80 Ark. 469; 114 Ark. 312; 1 Cyc. 367.

      R. A. Nelson, for appellee.
    1. The guaranty contract is not so indefinite but that it may be enforced. 9 Cyc. 250, 251; 70 Ark. 568. There was substantial proof that appellant guaranteed to get the amount advanced out of the cotton. Appellee was entitled to have that evidence presented to the jury. 87 Ark. 245; 98 Ark. 609; 134 Ark. 36.
    2. Appellant, as is shown by its own joroof, failed to exercise due care for the protection of appellee. 134 Ark. 580. The issue as to whether appellant exercised the care and diligence required of a factor was a jury question. Id.

    3. The letter of May 24, 1920, did not constitute an account stated. 74 Ark. 277; 150 Ark. 197.
   Smith, J.

Appellant is a corporation doing business as a cotton factor in Memphis, Tennessee, and appellee is a farmer residing in Mississippi County, Arkansas. During the season of 1920-1921 appellee shipped to appellant fourteen bales of cotton to be sold for appellee’s account. There were three consignments of this cotton. There were nine bales in the first shipment, two in the second, and three-in the third. Appellee and one Martin shipped a few bales of cotton later for their joint account, but that cotton is not involved in this litigation.

Appellee testified that at the time of the first shipment he visited the office of appellant, and talked with Mr. Wynne, its president, and explained to him that he had taken the cotton over in settlement with his sharecroppers, with whom lie must settle for their interest, and that he explained to Wynne that, while he wanted the largest advance that could be made on the consignment, he- did not want an advance which would exceed the price the cotton would bring. In other words, after settling with his share-croppers, he did not want to be put in position where he would have to call on the -sharecroppers to return money he had paid them for their interest in the cotton.

Appellee testified that Wynne told him that advances of $125 per bale were being made on cotton at that time, and would be made on the nine bales appellee had ready for shipment, and that Wynne also stated he would guarantee to sell the cotton for a sum not less than the amount advanced, and that there would be money coming to appellee after the cotton was sold. He further testified that, in reliance upon this guaranty, the nine bales were shipped, and an advance of $125 was made on each bale. When the next two bales were shipped an advance of $100 per bale was made; and-when the last three were shipped an advance amounting to $250 was made, and appellee testified that he was told by Wynne that the same guaranty -would apply to the remaining shipments. Appellee is substantially corroborated by the testimony of one Kinmann, who accompained him to appellant’s office before the first shipment was made.

The cotton was finally sold by appellant, and lacked $1,104.(87 of bringing the amount of the advances, and appellee was sued for this difference.

Two defenses were set up: the first that the cotton had been shipped under the guaranty stated; and the second that appellant had negligently failed to sell the cotton when it could have been advantageously sold, and the loss incurred was a result of this negligence;

Both of these defenses were submitted to the jury in a single instruction, and there was a verdict for appellee — the defendant. It does not appear upon which defense the jury found for the defendant; hut it does not appear to us that either defense was established, for the reasons hereinafter stated.

Upon the defense of the guaranty, that appellant could, and would, sell the cotton for a sum not less than the advances made thereon, it may be said that if, in fact, the cotton was shipped under the guaranty that it could, and would, be sold for a sum equaling the advance then to be made, as a consideration for the shipment, we know of no reason why that agreement should not be enforced. Pugh v. Porter Bros. Co., 118 Cal. 628. But appellee’s own testimony shows that he did not rely on this guaranty contract, and that he abrogated it.

Appellant insists, however, that the testimony, in its entirety, shows that no such agreement was made, and that the cotton was shipped to it, to be sold by it as a cotton factor, in the usual and ordinary course of business; and it may be said that the correspondence between the parties strongly supports that view.

It is insisted that a particular letter from appellee is an admission of the indebtedness, sued on, and constitutes an account stated. Appellant had sold, on May 18, 1920, six bales of the cotton for sixteen cents a pound, and five bales for twenty cents. Appellee was notified of this sale in the usual manner, and declined to accept that price for his cotton. Appellant canceled the sale except as to one bale, which had brought twenty cents and had been prematurely delivered to the purchaser through error. After appellee repudiated the sale, appellant wrote to appellee advising that it could not continue to carry this advance, and if the sale was not to be confirmed a deposit of $500 would be required to cover the decline in price, and an anticipated future decline. In reply, appellee wrote appellant the following letter dated May 27, 1920: “I received your letter of 24th. I am not able to send you any money. I am expecting my cotton to pay itself out of debt. I saw in paper the Memphis market where blue stained cotton was all the way from eighteen to thirty-five cents, and you sold mine for sixteen and twenty cents, and it is not satisfactory at all, so hold my cotton for better price. Now, I would love to send you check to cover all I owe you but I am not able, and I am expecting the cotton to pay itself out of debt.”

Appellee explained this letter by saying that what he meant was that he would have been glad to have returned the advance and have taken possession of his cotton, but he was not able to return the advance, and he was not therefore in position to demand that appellant surrender the cotton to be sold by some other cotton factor. The letter admits the amount advanced; but this was not in dispute.

The letter was not, however, a part of the contract; but was merely evidentiary of it, and its interpretation was therefore for the jury in connection with appellee’s explanation of it. The rule in such cases is stated by Mr. Thompson as follows: “Where a writing thus put in evidence is-not a dispositive instrument, but is merely offered for the purpose of showing an extrinsic fact, it will be for the jury to say what inference of fact is to be drawn from it.” Thompson on Trials, § 1098, and cases cited; Barker v. Lewis Pub. Co. (Mo. App.), 131 S. W. 929.

It appears, however, that, even though the testimony is legally sufficient to support a finding that there was a guaranty on appellant’s part as to the price for which the cotton would be sold, appellee could not hold appellant liable as a guarantor unless appellant had authority to sell in g’ood faith at the best price obtainable. The rights and duties of a factor in regard to the sale of cotton consigned for that purpose are fully discussed by Judge Battle in the case of Wynne v. Schnabaum, 78 Ark. 402, the appellant there being the appellant here. And when we speak of the rights and duties of a factor we mean as there defined, and they need not be restated here.

It is obvious that appellee seeks to hold appellant liable as occupying the .dual relation towards him of factor and guarantor, and, this being true, appellee would have had no right.to speculate at appellant’s expense by holding the cotton for a higher price than the sum advanced if appellant believed the price would not go higher, and that the best price obtainable had been offered. If appellant, acting with due diligence, in good faith, and with the ordinary discretion required of a factor, believed, at the time the first sale was made, that the best obtainable price had been offered, then it had the right to accept that price and account to appellee for the difference between that price and the guaranteed price.

The factor has the right, and it is his duty, as stated in Wynne v. Schnabaum, supra, to exercise good faith, due diligence, and ordinary discretion in selling the goods consigned for sale; and, if appellant did this in making the first sale, appellee should have acquiesced therein, holding appellant accountable for the difference between the sale price and the guaranteed price, and if, under the circumstances stated, appellee failed to do so, he released appellant from the obligation of the guaranty.

This is true because it is a well settled principle of the law of guaranty that a material alteration in the obligation assumed, made without the assent of the guarantor, discharges him, and it would have been an alteration of the contract to deprive appellant of the right to sell the cotton. See § 35 of the article on Guaranty in 12 R. C. L. p. 1083, and the numerous cases cited in the text; J. R. Watkins Medical Co. v. Montgomery, 140 Ark. 487; Snodgrass v. Shader, 113 Ark. 429, and numerous cases therein cited.

We think there was no testimony to warrant- the submission of the question of negligence on the part of appellant in selling the cotton.- It -appears from the undisputed testimony now before us that, upon the receipt of the cotton in Memphis, it was stored in the warehouse of the Memphis Terminal Company. This is a large cotton warehouse designed for the storage of cotton, used by appellant and a number of other cotton factors for that purpose. Upon placing the cotton in the warehouse, a sample of each bale was obtained and rolled in a piece of paper, upon which the marks and number of the bale from which it was taken were written. The warehouse number was also placed thereon to enable the warehouse company to identify it, and under that number the shipper’s mark and number were also placed. After that the sample thus wrapped was placed on the sample table, in the salesroom, and each bale was sold on its merits by those samples. Buyers were shown these samples, and sale were made from them when possible.

Wynne testified — and there is no contradiction of his testimony — that there was but little demand for cotton from and after the time of the receipt of appellee’s cotton, and the prevailing' quotations could not be obtained because of the lack of demand. This lack of demand was accentuated by the constant decline in price, and the first sale made, on May 18, was the most advantageous one that could have been made under all the circumstances. The cotton was finally sold on January 30, thereafter, or at still later dates, for the following prices: Two bales for 16 cents; four bales for 11 cents; two bales for 10 cents; one bale for 15 cents; one bale for 16 cents; two bales for 11 cents; one bale for 12 cents.

The fact that there was a guaranty did not alone deprive the appellant of the right to sell below the guaranteed price, and appellee had no right to impose an arbitrary price and thereby deprive appellant of the right to make an advantageous sale. Appellee was afforded the opportunity to repay the advances and retake the cotton, and declined to do so. Refusing to do this, he had no right to arbitrarily fix the price he would accept for the cotton and continue to hold appellant liable under the guaranty. 2 Mechera on Agency (2d ed.) § 2527.

Wynne was asked if he had made any special effort to sell this cotton, and he answered that the same effort was made to sell all the cotton consigned to his company. Appellee insists that this was negligence, as special effort should have been made to sell the cotton in view of the declining market. We do not think so. As a factor, appellant owed the same duty to all consignors, and had no right to make any concession at the expense of some other consignor in order to sell appellee’s cotton, and the testimony shows that equal and customary attention was given to the sale of all the cotton.

We conclude therefore that, if appellee desired to rely on appellant’s guaranty, he should have done so. He had the right to do so. He could have accepted the proceeds of the first sale and have required appellant to account to him for the difference between these proceeds and the guaranteed price, thereby extinguishing his debt for the advances. But he had no right to enlarge the guaranty by depriving appellant of its right to sell if that right was exercised by appellant in good faith, and we find no testimony to the contrary. The undisputed proof shows that the best price was received which could have been obtained, and it is not shown that the second sale was not made at the best price then obtainable. The loss resulted from a collapse in the price of cotton, for which the appellant was not responsible, and the judgment of the court below must therefore be reversed and judgment rendered here for the sum sued for.


text:
    Atkinson Improvement Company v. Nakdimen.
    Opinion delivered March 5, 1923.
    1. Appeal and error — former opinion as law Of the case. — An opinion on a former appeal in a case is binding' on all the parties on a new trial and in the Supreme Court on a subsequent appeal.
    2. Appeal and error — construction of opinion on former appeal. —The opinion of this court on a former appeal should be construed in the light of the facts there stated and the directions therein contained.
    3. Contracts — value of elevator service. — Under an agreement for the joint use of the elevator, stairway and lobby of a building' in connection with an adjacent building about to be erected and for the joint use of the elevator of the new building, which agreement provided for a stipulated monthly rent for a term of 10 years, and for a renewal and for an arbitration as to the rental payable for the next 10 years, on the owners of the new building refusing to arbitrate, held that the court should determine the rental payable for such period, taking into consideration the whole premises, including the elevator, and in doing so should give weight to the value fixed by the parties originally, though such valuation is not controlling.
    Appeal from Sebastian Cbaneery Court, Fort Smith District; J. V. Bourlcmd, Chancellor;
    modified.

      Hill & Fitzhugh, for appellant.

      Warner, Hardin & Warner, send'James B. McDonough, for appellees.
   Smith, J.

This is the second appeal in this cause, and reference is made to the opinion on the former appeal for a full statement of the facts and issues. Nakdimen v. Atkinson Improvement Co., 149 Ark. 448.

The litigation arose out of the interpretation of a lease which the parties hereto had entered into, and that contract, which was in writing, is set out in full in the former opinion. The facts essential to an understanding of the issues presented on this appeal may be briefly summarized as follows. The Atkinson Improvement Company, hereinafter referred to, for brevity, as the company, owned a building in the city of Fort Smith, and Nakdimen owned a lot adjacent thereto, and, desiring to erect a building oil his lot, he entered into the contract referred to above, whereby the Nakdimen.building should be so constructed that the tenants of the two buildings might make common use of the lobby, stairway and hallways of the company’s building, and of the elevator in that building, and also of the elevator which was to !be installed in the Nakdimen building. Nakdimen sold an interest in the building to certain associates, who were made parties to the former case, and we use his name to include his associates.

Under the contract as construed in the former opinion, the original lease covered a period of ten years, with the reciprocal privilege of a renewal for another ten-year period. Nakdimen construed the contract as being a lease for a ten-year period only, and at the. expiration of that time declared the contract at an end'and refused to operate the elevator in his building. The company took the position that the contract was one in perpetuity, and sought to obtain a decree compelling its specific performance by Nakdimen. 'We held that the contract was not one which the court would compel the parties to specifically perform, but we also held that, as the contract had not expired damages would be awarded for its breach, and the court would fix the rental value, as the parties had failed to do so, under a provision of the contract quoted later.

The lease contract provided that Nakdimen should pay tlie company $25 per month during the entire ten year period as rent for the privilege and concession there granted. It also provided “that at the expiration of said period of ten years, the rental to be paid by the party of the first part to the party of the second part for the concession and privilege herein granted, as herein granted, as herein set out, shall be fixed by a board of arbitrators, three in number, one to be named by each of the parties hereto, and the third to be selected by the two so named by the parties hereto, and that the award of any two of said arbitrators shall be final and conclusive upon the parties hereto.”

Tlie company alleged in its complaint tliat Nakdimen had refused to name an arbitrator as required by tlie section of the contract quoted, and was refusing to operate the elevator in his building, and there was a prayer that the court fix the rental value of the premises and damages for failure to operate the elevator.

The case presented to us, as we viewed it, was that the parties were making joint use of the premises as the contract contemplated they should do, but the provision of the contract determining the rent to be paid by Nakdimen had expired by the limitation of the contract, and Nakdimen had failed to comply with the stipulation in regard to the appointment of arbitrators, to determine that question, and, in addition, he was also refusing to operate the elevator in his building as the contract required him to do.

At the time of the rendition of our opinion on the former appeal, it appears that Nakdimen, after having suspended the operation of his elevator from September, 1920, to April, 1921, had resumed its operation under an agreement that lie should not be prejudiced thereby in the assertion of what he regarded as his rights and obligations under the contract. We were not advised that the elevator was being operated, and, as it was held that the court would not decree specific performance of the requirement that Nakdimen operate his elevator, we directed the court to find damages for this breach of the contract. Tlie court made a finding assessing the damages for failing to operate .the elevator during the time its operation was suspender!, and neither party complains of this finding.

The court below interpreted our opinion on the former appeal as directing him to find the rental value of the stairway and lobby of the company building, and in determining the rental value the court took into account nothing else. Much testimony was offered of the rental value of the hallways and elevator in the company building, but the court refused to take any of this testimony into account, for the reason, as stated, that the court was of the opinion that the rent was to he fixed only on the stairway and lobby.

The opinion on the former appeal, in which the contract was construed, is the law of the case, and is binding on all parties, and ourselves as well. We need not, therefore, inquire what the contract meant, as the decision of the questions presented on this apneal depends upon the interpretation of the former opinion, in which we, construed the contract and gave directions to the trial court as to the rights of the parties thereunder.

The opinion is, of- course, to be construed in the light of the facts .there stated and of the directions there contained. After holding that the court below had erred in granting specific performance of the contract requiring the Nakdimen elevator to be operated, we said that upon the remand of the cause it would be the dutv of the court to settle the damages which resulted to the company from the breach of the contract bv Nakdimen. We also said that, in fixing the damages to be allowed the company for the breach of the contract by Nakdimen, it would be necessary for the court to consider and fix the rental value of the “premises.” The court .’below hsd fixed the rental value at $25 per month; but we directed a new finding to be made on that question and gave both parties permission to take additional testimony, and this privilege was very freely used, as we have an additional record as large as the original record.

The former opinion contained this direction to the court below: . “It will be the duty of the court moon the remand of the present case to fix the amount of damages suffered by appellee (the company) by the breach of the contract upon the part of appellants (Nakdimen), and, inasmuch as it will be necessary for the court to know the rental value of the premises for the renewal period of ten years in fixing the damages, it will be necessary for the court to fix the rental value for the elevator service, for the reason that appellants refused to proceed under the arbitration clause looking to that end, as above stated.”

An elaborate opinion was prepared by the chancellor, and, after making it perfectly plain that he had taken into account only the rental value of the stairway and lobby of the company building, he fixed the rental value thereof at $25 per month. It appears from the opinion of the court below that he reached this conclusion because, as he interpreted the contract, rént was to 'be paid only on the stairway and lobby, and he was evidently controlled, in a large measure, in fixing the rental value, 'by the fact that the parties, when contracting in regard to the rental for a period of ten years, fixed $25 per month as the rental to be paid.

We think the court below did not correctly interpret the opinion. Our direction was not to fix the rental value of the stairway and lobby only but “to consider and fix the rental value of the premises.” It is true that we gave no specific direction to take into account the elevator service rendered by the company building in fixing the rent. One reason for this omission is that the elevator was a part of the “premises,” and was included in that designation. The second reason was the fact, as it then appeared to us, that Nakdimen was not operating his elevator, and we had refused to compel him to do so. This refusal imposed upon the company elevator the service which the parties contemplated the two elevators should perform. Nakdimen had breached his contract, as we found, and this breach was to be compensated by way of damages. The other privileges conferred by the contract, such as the use of the stairway, lobby and hallways, were being jointly used by the parties as the contract contemplated, and the value of these privileges was to be considered in determining the rental value.

The Nakdimen elevator is now being operated, ami the parties are getting what they mutually contracted for originally. It appears the parties then contemplated there would be a difference of opinion as to the rental value after the ten year period, for they provided for an arbitration of that question without requiring the parties' to first consider it.

The reciprocal privileges for the ten-year period were identical with those for the first ten-year period, and “the rental to be paid by the party of the first part to the party of the second part for the concession and privilege herein granted, as herein set out,” was the matter which the contract provided the arbitrators should determine, but, as Nakdimen failed and refused to name an arbitrator, as there provided, it became the duty of the court to make the finding which the arbitrators should have made, and the direction given to the court below was to make this finding after compensating the company for Nakdimen’s refusal to operate his elevator.

As we have said, the court below was largely controlled, in fixing the rent at $25 per month, by the fact that the parties had themselves fixed it at that amount, and it is insisted that we, too, should reach the' same conclusion, for the reason that conditions have not substantially changed since the execution of the contract, and the parties were the best judges of the reciprocal value of the contract to each other.

The fact mentioned is, of course, very significant, but it is not controlling. It now appears that the company elevator carries ninety-seven per cent, of the traffic, with the consequent cost of its operation, which the owners of that 'building must pay. This results chiefly from the more convenient location of the company elevator, and from the fact that -it is more modern. ' In other words, it now appears that the company is largely furnishing the elevator service which the contract contemplated should be jointly furnished.

The testimony developed this and other facts which the numerous witnesses mentioned in testifying as to the rental value of the contract to Nakdimen. This testimony is voluminous and in many respects conflicting. This might well be expected, as the basis of most of it is the opinion of the witnesses as to rental value. No useful purpose would be served by setting this testimony out. We have liad mueli difficulty in determining- what tlie fair rental value is as shown by the testimony, and after carefully considering- this testimony and reconciling our own views in regal'd to it, we have concluded that the rental value should be fixed at $33.33 per month, and the decree of the court below will be modified to accord with that view.


text:
    Chicago, Rock Island & Pacific Railway Company v. Comer.
    Opinion delivered March 5, 1923.
    1. Appeal and error — conclusiveness op verdict — In determining whether the verdict in a personal injury case was excessive, the testimony must he viewed in the light most favorable to the plaintiffs.
    2. Carriers — personal injury to passenger — evidence.—In an action for personal injury to a passenger, evidence held to sustain a verdict in favor of the passenger.
    3. Damages — excessiveness.—In an action for personal injuries, in which plaintiff suffered an injury to her side resulting in a miscarriage, and was confined to her bed for seven days, and was rendered very nervous, a verdict for $2,000 was not excessive.
    4. Damages — recovery by injured passenger’s husband. — Where, on account of an injury to a wife, she was unable to perform household duties for nine days, and the husband spent $60 for medical services and hired the family washing done for two weeks, but there was no permanent impairment of her ability to assist her husband after the injury, a verdict of $500 will be reduced to $100.
    Appeal from Jackson Circuit Court; Dene H. Coleman, Judge;
    modified in part.

      T. S. Buzbee and H. T. Harrison, for appellant.
    A verdict in favor of Lois Comer of $2,000 where there was no proof o£ permanent injury, she having-been confined to her bed for only seven days and within less than four weeks able to do arduous work, was grossly excessive; likewise a verdict of $500 in favor of B. F. Comer, where the only damage suffered, hy him was the payment of doctors’ bills of $10 to one doctor, and $50 to another, was manifestly excessive. 82 Ark. 61; 87 Ark. 109; 89 Ark. 9; 98 Ark. 425; 36 So. 676.

      Boyce & Mack, for appellees.
    As to Lois Comer, the verdict was not excessive. The single case of injury resulting in miscarriage cited by appellant as an excessive verdict, and in which a remittitur from $2,500 down to $1,000 was required, was an exception to the general rule. The courts generally sustain verdict in such cases, even for larger amounts than returned here. L. R. A. 1917-A, 394; 17 L. R. A. (N. S.) 598; 128 N. E. 513; 35 L. R. A. 252; 6 Thompson on Negligence, §§ 7348, 7352; 8 Am. & Eng. Enc. of Law, 2d ed., 629. The B. F. Comer verdict was not excessive. 6 Thompson on Negligence, § 7341; 13 R. C. L. 1411; Id. 1422; 7 L, R. A. (N..S.) 545.
   Smith, J.

B. F. Comer and Lois, his wife, instituted separate suits against the Chicago, Rock Island & Pacific Railway Company, to recover damages on account of alleged injuries to Lois Comer on August 7, 1921, while she was preparing to hoard one of the defendant’s trains. The cases were consolidated by consent and tried together.

The complaint alleged that, as Mrs. Comer, with two small children, was hoarding a passenger train, the company negligently caused the train to start, and she was suddenly and violently thrown and jerked against the end of the coach and against the railing of the' platform to the entrance of the coach, and as a result thereof she suffered a nervous shock, was injured and bruised in her right side, her right arm and back were bruised, and by reason thereof she was caused to suffer a miscarriage on the 11th day of August, 1921.

Mr. Comer alleged that he 'had been caused to expend large sums of money on account of his wife’s injuries, and had been deprived of her services and society, and he prayed damages on that account.

• There was a denial of liability and of injury; but the jury found for the plaintiff in each case, and assessed Mrs. Comer’s damages at $2,000 and her husband’s at $500, and judgments were rendered against the railroad company for those amounts.

The railroad company has appealed, and the only assignment of error argued for the reversal of the judg ments is that they are excessive.

We must, of course, view the testimony in the light .most favorable to the plaintiffs; otherwise the judgments would have to be reversed as being excessive, as the clear preponderance of the testimony is that Mrs. Comer was not seriously injured. On the day following the injury Dr. Bradford was called to attend Mrs. Comer on account of the injury to her wrist. She made no complaint of any other injury, and the doctor regarded the wound which he treated as of small consequence.

Mrs. Comer testified that she was injured in the manner alleged in her complaint; that she was pregnant at the time of her injury, and had been since June; that prior to her injury she had been in excellent health. That she was thrown violently against the railing of the platform, and bounced back, and was injured between her ribs and side. That soon after her injury her arm felt numb, and her side became sore. She was injured on Monday, and the pain continued and increased, and she went to bed on Wednesday, and suffered a miscarriage the next day. She saw a doctor on Monday and Tuesday, and he treated her arm, but gave her no treatment for her side. Wednesday night the pains in her side became more severe, and she was very nervous, and the doctor was called, and she was given relief. Later she again became very nervous, and suffered a miscarriage, and was thereafter in bed for seven days, and did not resume her household duties until the ninth day.

Mrs. Pierce, Mrs. Baker and Mrs. Comer, a sister-in-law of the plaintiff, gave testimony affording substantial corroboration of the plaintiff’s testimony in regard to her illness and its consequences.

A doctor who attended plaintiff described her nervous condition, and stated that the patient told him, as a part of the history of her case, that she liad suffered a miscarriage, and she pointed out a sheet on the bed with blood spots on it. The sheet was folded, and he did not know to what extent it was saturated with blood. He “could not say there was anything about her condition to indicate she had suffered a miscarriage”; that while he would not say definitely that she liad miscarried, it is clear that in his opinion the case was one-of delayed menstruation.

Doctor Bradford, who made a digital examination of Mrs. Comer on August 27th, testified that the appearance he then found indicated that there had -been no miscarriage.

Still another doctor, who also examined the plaintiff on October 6th, testified that, if there was a miscarriage, it was caused by the plaintiff’s injury and fright. He testified that at the time of his examination he found a retroversion of the womb, with a slight enlargement and-a tendency for a slight prolapse, and that her temperature and reflexes were exaggerated. 1 le also testified that her nervousness had improved, and she had about recovered from her injury' and the miscarriage.

We think the testimony legally sufficient to support a finding that Mrs. Comer had suffered a miscarriage, and she testified that she suffered acutely during the nine days she was confined in bed, and had suffered less severely for some time thereafter. Under these circumstances we do not feel disposed to say that the evidence does not support the judgment recovered by her.

The verdict in Mr. Comer’s favor we think is clearly excessive. He expended $60 for medical services. Mrs. Comer was unable to perform her household duties for a period of only nine days, When she was able, she did the family washing, but during- her illness her husband hired this done for two weeks. She testified that' she had also worked with her husband in the field, but since her injury she had done less of this work. We think, however, the testimony does not show any impairment of Mrs. Comer’s capacity to assist her husband as she did before her injury, and we have concluded that a judgment for a hundred dollars would fully compensate any damage sustained by him on account of his wife’s injury, and the judgment in his favor will be reduced to that amount. The judgment in Mrs.' Comer’s favor will be affirmed.