author: Smith, J.

text:
    H. G. Pugh & Co. v. Ahrens.
    Opinion delivered November 5, 1928.

      Walter M. Purvis, for appellant.

      Fred A. Isgrig and Philip McNemer, for appellee.
   Smith, J.

Appellee sued the appellant, a corporation, of which H. Gr. Pugh' is president, for the premiums due on two policies of insurance on the life of its president.

In support of his cause of action appellee testified that he wrote two policies of insurance on the life of EL Gr. Pugh, payable to the company of which Pugh was president, for $5,000 each, with the understanding that appellee would pay the insurance company the premiums and would accept from the appellant goods, wares and merchandise in which- appellant dealt, in payment for the premuims, and that, pursuant to this arrangement, the policies were issued and delivered to appellant and retained by it for nine months, when appellant returned the policies to the insurance company and caused them to he canceled; that, upon issuance of the policies, the premiums therefor were charged to appellee, and he became responsible therefor to the company, and that ho later made a settlement of this and all other accounts due by him to the company by executing to it a note for the net balance due by him, the same to be repaid out of annual renewals in which he had acquired an interest through his agency as district agent of the company issuing the policies.

But, as the trial court directed a verdict in appellee’s favor, we must give to the testimony offered in appellant’s behalf its highest probative value, and must assume that the jury would have accepted that testimony as true. As thus viewed, we summarize the testimony offered in appellant’s behalf as stated in its brief. Mr. Pugh testified that he gave appellee an application for a policy which was to be issued on his life in favor of the appellant company. The premiums thereon were to be paid for in office equipment in which appellant dealt. Two policies, each for $6,000, were written upon the same terms, and of these Mr. Pugh testified, “We decided to take one of the policies when the policy arrived, the other one having been written for our approval. ’ ’

As to the second policy, he testified: “The second policy was held in abeyance. 11; was on my desk for a good while. There was "nothing done. We received no premium notice, had no dealings from the company, and we were looking for payment to be made on this trade. There was no transaction in connection with the trade and no payments made of merchandise furnished. ’ ’

He further testified that, about the first of June (after -the issuance and delivery of the policy in February), witness wanted to know the status of the policies, and wrote the company, and received a reply signed by C. W. Nugent, as general counsel for the company, in which a detailed report was promised to be made at a later date, but that appellee came in and assured him that the policy was all right and “the deal would be all right, and we then — I believe it was at that time— we decided to take the two.”

The witness further testified that the company did not comply with his request to advise him as to the status of the policies. “They delayed, and gave excuses for not replying the entire year up to within a few days of the time of the due date of the second year.” Witness returned the policies to the company on October 26, and received a letter from the company advising that they had been canceled.

On August 1 witness received from the company the following letter:

“Pear Mr. Pugh: On account of the fact that Mr. J. D. Ahrens of Little Rock has severed his connection with.the company, any matters pertaining to your policy No. 142710, either premium payments or otherwise, should be taken direct with the home office.

“Hoping that we many continue to serve you from the home office in an efficient manner, I beg to remain,

“Very truly yours,

“W. J. Barr,

“Manager renewal department.”

The credit man of the appellant company testified that appellee did not order .supplies in payment of the premiums, but he also testified, “I had a suspicion that the insurance had not been settled for, and I didn’t care to let the furniture go out, because I would have to look to Mr. Ahrens personally for payment.” While appellee was testifying as a witness in his own behalf, he stated that the premiums on the two policies had been paid, and that they were paid by being charged to witness’ account with the insurance company, and that the statements received by him of his account from the company showed this to be a fact. Appellant objected to this testimony, and asked the court to withdraw the submission of the case, to permit it to take testimony to show that the insurance company had never treated the premiums as being paid. The court overruled the. motion to withdraw the submission upon the ground that this was lan issue raised by-the pleadings which appellant should have been prepared to meet.

The original complaint was filed March 2, 1926, and an amended complaint was filed March 31,1926, in which the appellee specifically alleged that Ms cause of action was based upon the failure of appellants to • pay the premium on the two policies, and these allegations were made" more specific in response to a motion to that effect, which response was filed January '22, 1927.

Appellant filed an answer and cross-complaint on May 20, 1927, in which it was alleged, in effect, that the policies were at all times void for the reason that appellant had never accepted them. In its cross-complaint appellant prayed judgment for the sum of $70.60 due it by appellee on op.en account. The trial from which this appeal comes was had February 14, 1928.

In support of the motion for a withdrawal of the submission and a postponement of the trial a letter was exhibited, dated May 26, 1926, written to appellant’s counsel land signed by Frank S. Anderson, written on the stationery of the general counsel of the insurance company, in which it was stated that the premiums had never been paid, and the opinion was expressed that the appellee had no right to maintain this suit.

The court properly treated this letter as hearsay, and did not abuse its discretion in refusing to permit the submission to be withdrawn to permit appellant to take depositions. As we have said, the letter was dated May 26, 1926, which was more than a year before the trial, land related to the point in issue, which was whether appellee was entitled to receive these premiums.

Pugh testified that he returned the policies in October'because he was uncertain whether they were in force, and one of the reasons for his uncertainty was that he had received no premium notice from the company, nor did he receive a binding receipt. There was, however, no reason to expect a notice in regard to the premiums if appellee had paid them, as he at all times insisted he had done, and there was no necessity for a “'binding receipt,” when the policies themselves had been delivered.

The only letter from the insurance company properly identified was the one dated August 1, copied above, advising that appellee had severed his connection with the company, and, while it refers to only one of the policies, it refers to it as a. subsisting contract. But, even after the receipt of this letter, when appellant had already been in possession of the policies since February, appellant continued to hold them until the latter part of October, and, in so doing, appellant must be held as a matter of law to have accepted both policies. The law on this question was declared in People’s Savings Bank v. Raines, 175 Ark. 1155, 2 S. W. (2d) 20, and cases there cited. In that case the insured had kept in his possession a policy of insurance delivered to him about the first of February until some time in April, when it was returned. But the court held that this constituted an unreasonable delay, and that the insured must he held as a matter of law to have accepted the policy for the reason, as was there said, “it was the duty of the insured to examine the policy in a reasonable time after its delivery to him — that is, in .such a time as he could have done so — and to reject it if it was not what he had contracted for, and, if he failed to do this, he will be deemed to have accepted it, and cannot avoid liability for payment of the premium note. ’ ’

Here the policies were retained for a much longer period of time, and the court, in directing a verdict in flavor of appellee, permitted a recovery of such portion of the annual premium as covered the time during which the insurance had been in force, until the insured voluntarily canceled it, and from- that amount deducted the sum claimed by the appellant in its cross-complaint.

The judgment of the court below appears to be correct, and it is therefore affirmed.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Hethcox v. Stewart.
    Opinion delivered November 5, 1928.

      Pinnix S Pinnix, for appellant.

      Tom Kidd, for appellee.
   Humphreys, J.

This suit was brought by appellee against appellant, in the circuit court of Pike County, to recover compensatory damages in the sum of $10,000 and punitive damages in the sum of $5,000 for slander.

It was alleged particularly in the complaint that appellant, A. L. Hethcox, did, on or about the 20th day of November, 1927, in the town of Grlenwood, Pike County, in the presence of A. J. Ligón, H. C. Lawless, C. F. Stewart and divers others persons, unlawfully, falsely, and maliciously speak, utter and publish of and concerning the appellee the following false, malicious and defamatory words, in the presence of A. J. Ligón: “That Stewart had stole a yearling or steer, and that he had been trying to catch him for two years, and that he had him this time;” and in the presence of H. C. Lawless: “That Stewart went down in his field and drove one of Brown & Lawless’ steers off and made away with it, and that they searched the fields and pasture and had been unable to find the yearling or steer, and he had been trying to catch him for two years, and had two witnesses that saw him; ’ ’ and in the presence of C. F. Stewart and divers other persons: “That Stewart had butchered one of Brown & Lawless’ steers, and three of us saw him, and the thing to do is to settle it, and I will dodge the grand jury. Now, he stole the steer, for three of us saw him.”

The complaint contained allegations and prayer for compensatory damages in the sum of $10,000 and punitive damages in the sum of $5,000.

The appellant answered, and made, general denial, and pleaded the language used by him was privileged.

The cause was submitted upon the pleadings, the testimony, and instructions of the court, which resulted in a verdict and consequent judgment against appellant in favor of appellee for $500, from which is this appeal.'

Appellant contends for a reversal of the judgment on the alleged ground that, although the communication was defamatory, the undisputed testimony discloses that the words were not maliciously spoken, but spoken in good faith, touching a matter in which appellant had an interest, or in reference to which he had a duty, and to persons having a corresponding interest or duty, and were therefore qualifiedly privileged.

Of course, if the undisputed testimony reflected these facts, it would have been the duty of the court to direct a verdict for appellant. The record does not, however, disclose, according to the undisputed testimony, that the communications were made to persons having an interest in the matter. There is testimony in the record to the effect that it was made to parties who had no interest in the steer or yearling appellant charged appellee with stealing. We refer to the following excerpts from the testimony of A. J. Ligón and H. C. Lawless:

“A. J. Ligón: Q. State whether or not you heard a conversation in Grlenwood, Pike County, Arkansas, on or about November, 1927, made by Mr. A. L. Hethcox about Mr. Stewart, had stole a yearling or steer, and that he had been trying to catch him for two years, and that he had him this time? A. Yes sir. Q. You heard him make that statement? A. Yes sir. Q. How many people were standing there? A. Several. I don’t know how many. Q. State what you saw and heard there? A. I just heard him say that Stewart stole a yearling — somebody stole a yearling, and I asked him who, and he said Mr. Stewart. Q. He said Mr. Stewart had stole a yearling? A- Yes sir.”

“H. C. Lawless: Q. I will ask you if, in that conversation, Hethcox stated that Stewart went down in his field and drove one of Brown & Lawless’ steers off and made away with it, and that they searched the field and pasture and had been unable to find the yearling or steer, and that he had been trying to catch him for two years, but they had him now, and had two witnesses that saw him? A. Yes sir, something to that effect. Q. Did he make the statement? A. Yes sir.”

The record also reflects that appellant told C. F. Stewart that appellee had stolen a steer and butchered it; that three of them saw him, and that if they would give him $40 he would compromise with Brown and skip the grand jury. The record also shows that he stated to J. P. O’Connor that appellant had taken the steer, stole the steer, and drove it direct to his slaughter-pen and butchered it.

None of these witnesses had any interest in the steer, and none of them were connected in any way with the theft.

In view of this testimony, it cannot be said that, under the undisputed evidence, appellant was entitled to an instructed verdict on the theory that what he said to the witnesses at the time and place he spoke the words were qualifiedly privileged communications.

Appellant also contends for a reversal of the judgment because the court submitted the question of whether the words spoken by appellant to the jury, at the time and place he spoke the words, were qualifiedly privileged communications, under erroneous instructions.

Appellant failed to abstract all the instructions given by the court in the trial of the cause, so this court must presume on appeal that the court submitted the issue involved under correct instructions. U. S. Auto Co. v. Arkadelphia Milling Co., 140 Ark. 73, 215 S. W. 641; Covill v. Gerschmay, 145 Ark. 269, 224 S. W. 609; Ermon v. Thomason, 149 Ark. 669, 235 S. W. 54.

No error appearing, the judgment is affirmed.


text:
    Conlee v. Love.
    Opinion delivered November 5, 1928.

      Tom F. Digby, for appellant.

      Earn T. Poe, Tom Poe and McDonald Poe, <for appellee.
   Humphreys, J.

Appellee obtained a decree for money against A. B. Cox, in the chancery court of Yell County, and was unable to find any property belonging to him in said county upon which to levy an execution to satisfy the judgment, whereupon he caused' an execution to be issued on said judgment directed to the sheriff of Pulaski County. The sheriff of Pulaski County levied the execution upon the Oakland coupe automobile as the property of A. B. Cox. Before the sale thereof, Cox-Ellis Lumber Company, a corporation, instituted an action of replevin for the automobile against the sheriff, and obtained the possession thereof on delivery bond signed by itself ;as principal and S. C. Ellis and the appellant herein as sureties.

Appellee intervened, and defended the suit in his own right and in the name of the sheriff. The intervener and sheriff prevailed in the trial of the cause, and a judgment was rendered against the principal and sureties on the delivery bond in the alternative in favor of the sheriff, for the benefit of appellee herein, either for the return of the automobile or the payment of $700, its value.

Cox-Ellis Lumber Company appealed the case to this court, and stayed further proceedings thereunder by the execution of a supersedeas bond, signed by itself as principal and S. C. Ellis as ¡surety. The appellant herein did not sign the supersedeas bond. Almost a year thereafter the judgment was affirmed by the Supreme Court. Appellee then procured an alias execution on his judgment against A. B. Cox in the chancery court of Yell County, directed to the sheriff of Pulaski County. The sheriff found said automobile in the possession of the Cox-Ellis Lumber Company, where it had remained during the pendency of the appeal from the judgment in the replevin suit, and levied upon and sold it for $100. During the pendency of said appeal, both the Cox-Ellis Lumber Company and ¡S. C. Ellis became insolvent. Appellee herein then brought suit against appellant herein on an alleged breach of the condition of the delivery bond given in the replevin action to return the automobile in like good order and condition as when levied upon under the first execution. The suit was based upon tbe alleged right of appellee herein to recover from the surety, appellant herein, by reason of damages sustained in the depreciation in value of the automobile while it was wrongfully withheld from the sheriff and sale thereof prevented.

Appellant filed an answer, denying' the material allegations of the complaint, and, by way of an affirmative defense, pleaded a release from liability on the delivery bond by reason of the execution of a supersedeas bond on the appeal from the judgment in the replevin suit.

The cause proceeded to a hearing, and at the conclusion of the testimony appellant requested the court to instruct the jury to return a verdict for him, which request was refused, over his objection and exception. The trial of the cause upon the pleadings, testimony and instructions of the court resulted in a verdict and judgment in favor of appellee for $500, from which is this appeal.

We deem it unnecessary to discuss and determine the questions presented by appellant for a reversal of the judgment, or to allude to the reasons assigned by appellee for an affirmance thereof, because the delivery bond sued upon, or made the basis of this action, had already merged into a judgment in favor of appellee against appellant before this suit was instituted. In the replevin suit, in which the delivery bond was given, the court rendered a judgment against appellant in favor of appellee for the return of the automobile or $700, its value. The automobile was never returned by appellant or those who signed the delivery bond with him. It was levied upon and sold under a general alias execution, after the affirmance of the judgment in the replevin suit, issued out of the chancery court of Yell County, on appellee’s original money judgment against A. B. Cox, and only brought $100, on account of its depreciated condition during the pendency of the replevin suit on appeal in the Supreme Court. The judgment was rendered against appellant in favor of appellee under § 8643 of Crawford & Moses ’ Digest, and, by tbe execution of that bond, appellant became a party to the replevin suit, and it was proper to render a judgment against him in that action for the return of the automobile, if to be had, and if not, for the value thereof. Glenn v. Porter, 68 Ark. 320, 57 S. W. 1109; Walker v. Files, 94 Ark. 453, 127 S. W. 739. The judgment was binding upon all the parties to the replevin suit, and, after the bond had merged into judgment under § 8656 of Crawford & Moses’ Digest, it could not be made the basis of a subsequent suit between the same parties for depreciation in value of the property seized during the pendency of an appeal from the judgment in the replevin suit. Appellee’s only remedy was to enforce the judgment he already had against appellant by execution, and not by bringing a second suit against him on the same delivery bond.

On account of the error indicated the judgment is reversed, and the cause is dismissed.

Hart, C. J., not participating.


text:
    Hamilton v. Hamilton.
    Opinion delivered November 5, 1928.

      W. R. Donham and Morris <& Barron, for appellant.

      Creed Caldwell and Chas. A. Walls, for appellee.
   Humphreys, J.

The circuit court of Lonoke County adjudged, on ¡appeal from the probate court, admitting a written instrument to probate, dated November 17, 1926, as the last will and testament of Fannie Nobles, deceased, that said instrument was her last will and testament. From the verdict and judgment of the circuit court finding said instrument to be the last will and testament of Fannie Nobles, deceased, appellants, heirs at law of the deceased and contestants of the will, have duly prosecuted an appeal to this court.

Appellee, a nephew of the deceased, to whom she bequeathed the bulk of her estate, was the proponent of the will.

There were no written pleadings filed either in the probate court or in the circuit court on appeal, so appellants maintain that the cause proceeded to a trial on the general issue of will or no will, in accordance with § 10525 of Crawford & Mioses’ Digest, which reads in part as follows:

“When the proceeding is taken to the circuit court, all necessary parties shall be brought before the court, and, upon the demand of any of them, a jury shall be impaneled to try which or how much of any testamentary paper produced is or is not the last will of the testator.”

Appellee maintains that the only issue presented by the testimony was whether the will was genuine or a forgery.

The testimony introduced by appellants tended to show that the will was a forgery. The expert witnesses introduced by them, when shown the genuine signatures of the testatrix and C. M. Acklin, one of the attesting witnesses, testified that, in their opinion, the signatures of both were traced f orgeries. The whereabouts of C. M. Acklin between November 10, 1926, until his death in February, 1927, was accounted for by the testimony of relatives and acquaintances, and, according to their testimony, he was not at the home of the testatrix in England during the time and was not physically able to have ridden in an automobile from Humphrey to England and back at any time between those dates to attest the will. There were many circumstances in the case tending strongly to support the alleged forgery of the will.

The testimony introduced by appellee tended to show that the will was duly executed on or about the 28th day of November, 1926, by the testatrix, at her home in England. Expert witnesses introduced by appellee, when shown the genuine signatures of the testatrix and Acldin on other papers, testified that, in their opinion, their signatures to the will were genuine, and not forgeries. Appellee ¡and E. M. Harrington, one of the attesting witnesses to the will, testified that, in company with O. M. Acldin, they drove from Humphrey to England, by way of Stuttgart, and stopped at the home of the testatrix in the town of England, and witnessed the (execution of the will, and then returned, reaching Humphrey aibout 2 o’clock in the afternoon. Appellee thought the will was executed about the 28th of November, and Harrington thoug’ht it was executed some time in November, 1926. The will on its face shows that it was executed on the 17th day of November, 1926, according to all of the statutory requirements, and both appellee and Harrington testified that it was. There are a number of circumstances in the record tending to support the testimony of appellee and Harrington to the effect that the signatures to the will were genuine. There is no testimony in the record tending to show that the will was not executed in accordance with all statutory requirements, except the testimony tending to show that the signatures of the testatrix and C. M. Acklin were forged.

Appellants contend for a reversal of the judgment on the ground that the evidence is insufficient to support the verdict. Appellants argue that the witnesses introduced by appellee should not be credited or any weight attached to their evidence on account of contradictory statements made by some, the unreasonable story of others, and the certain and complete alibi established for C. M. Acldin at the time the will was executed.

We cannot concur in the interpretation placed by appellants upon the testimony introduced by appellee. The testimony introduced by him is not entirely unbelievable. The character of his witnesses was not assailed. Witness Harrington, one of the attesting witnesses, gave positive testimony to the effect that he was present when the will was executed, and that he saw the testatrix sign the will, ¡and saw Acldin sign same as an attesting witness, and that he signed it himself; that they all signed it in the presence of each other, and that he and Acldin signed it at the request of the testatrix. This witness was not impeached, and, as far as the record discloses, he had no interest whatever in the matter. Appellee corroborates his testimony in every particular, and there are other circumstances to support the testimony of both. One of the strong circumstances was that appellee had lived with the testatrix and her husband on their farm for about eight years, coming to their home when he was fifteen years old and remaining with them until he enlisted in the World War. This will was in tenor and effect like one the testatrix had theretofore made. The credibility of witnesses and the weight to be attached to their testimony are questions for juries, and not for courts. Courts will not invade the province of juries and pass upon the credibility of witnesses and the weight of their testimony, unless wholly and entirely unbelievable. There is substantial testimony in the record supporting the verdict of the jury in the instant case.

Appellants also contend for a reversal of the judgment upon the ground that, at the request of appellee, the court eliminated the issue of whether the will was executed according to statutory requirements by giving instruction No. 8, which reads as follows:

‘ ‘ Gentlemen of the jury, the plaintiffs, W. T. Hamilton et al., are contesting the will in controversy upon the sole ground that the two signatures to the will are a forgery. There are no other issues for you to decide in this case. Therefore, if you find from the evidence in this case that the will in fact was executed by Fannie Nobles, and that the signatures attached thereto are the signatures of Fannie Nobles, deceased, and C. M. Aoklin, then your verdict in this case will be for the contestee, W. E. Hamilton.”

This, instruction did send the case to the jury upon the sole issue of whether the signatures’of the testatrix and the attesting witness, C. M. Acklin, were forgeries or genuine signatures; 'but the instruction was responsive to the issue joined by the evidence. It is true that the court instructed, at appellants ’ request, upon both issues of whether the signatures were forgeries and whether the will was executed in accordance with statutory requirements, but the latter issue was abstract, and more favorable to that extent to appellants than they were entitled to. Instruction No. 8, which correctly submitted the only issue made by the evidence, conflicted with the instructions given at appellants’ request, submitting both issues, but the conflict related to an issue not in the case, and was not therefore prejudicial.

That part of the instructions requested by appellants and given by the court, submitting the issue of forgery to the jury, did not conflict with instruction No. 8, given. iat the request of appellee. If appellants had introduced any evidence tending to show that the will was not executed in accordance with the statutory requirements, other than the evidence tending to establish that the signatures were forged, then it would have been proper to have submitted that issue to the jury, but, not having done so, the submission of that issue at appellants’ request was abstract, and in no sense prejudicial to them.

Appellants also contend for a reversal of the judgment because the court gave appellee’s requested instruction No. 7, on the ground that it was incomplete in failing to tell the jury that a will must be attested at the request of the testator. This is a statutory requirement, but the testimony did not present that issue, so it would have been abstract to have instructed the jury to that effect. It is true that the instruction purported to cover the entire case, and should not have omitted any issue presented by the testimony. Temple Cotton Co. v. Skinner, 176 Ark. 17, 2 S. W. (2d) 676; Dickerson v. St. Louis & San Francisco Ry. Co., 177 Ark. 136, 5 S. W. (2d) 943. The instruction covered the entire case presented by the testimony when it submitted the issue of whether the signatures to the will were forgeries.

Appellants also contend for a reversal of the judgment upon the ground that the court told the jury, in instructions Nos. 5, 9 and 13, that the burden of proof was upon appellants. In cases involving the issues of insanity, incompetency and undue influence, this court has ruled that the burden rests upon the contestants of the will, when it appears upon its face to have been executed in accordance with the statutory requirements and when properly proved and probated. McCulloch v. Campbell, 49 Ark, 367, 5 S. W. 590; Smith v. Boswell, 93 Ark. 66, 124 S. W. 264; Miller v. Carr, 94 Ark. 176, 126 S. W. 1068. Section 10514 of Crawford & Moses’ Digest provides that a will so proved, recorded, and signed by the clerk of the court of probate and attested by the seal of office, may be read as evidence, without any further proof thereof. In, other words, when such a. will is introduced, 4t makes a prima facie case which must be overcome by the proof introduced by the contestants of such a will. We are unable to see why the rule thus established, when the issues mentioned were involved, should not apply to issues of fraud and forgery as well. The Supreme Court of Nebraska, in the case of Re O’Connor’s Will, 179 N. W. 401, seems to have decided otherwise, but we-do not think the Nebraska case is in accord with the general rule. It is stated in Remsen on Preparation and Contest of Wills, page 385, that: “Where the issue is based on forgery, the line of'contest is substantially the same as similar issues in general litigation. ’ ’

In the cases of McDonald v. McDonald, 142 Ind. 55, 41 N. E. 336, and Mears v. Mears, 15 Ohio State 90, and Behrens v. Behrens, 47 Ohio State 323, 25 N. E. 209, 21 Am. St. Rep. 820, the rule is announced that contestants have the burden of proof under an allegation that the will was forged.

Appellants also contend for a reversal of the judgment because the court refused to give instruction Ño. 5, requested by them, to the effect that the intention of the alleged testatrix was entitled to no consideration in determining whether or not the purported will was properly executed. We think a will executed in accordance with the declared intention of a testator would 'be a very strong circumstance tending to show the genuineness of a will assailed on the ground that the signatures thereto were forgeries. We cannot think of a stronger circumstance tending to establish the genuineness of a will under such circumstances. The case of Johnson v. Hinton, 130 Ark. 394, 197 S. W. 706, cited by appellants in support of their contention on this point, is not applicable. In that case the' issue was whether the will had been properly executed in accordance with the statutory requirements. Of course, the intention of a testator under such circumstances could have no effect. The testator, in order to give validity to his will, must execute his will in accordance with statutory requirements, irrespective of what his declared" intention might or might not have been. The court did not err in refusing to give appellants’ requested instruction No. 5.

Appellants also contend for a reversal of the judgment on the ground that the court erred in giving instruction No. 9 at appellee’s request. Instruction No. 9, in part, is as follows:

“A number of witnesses have testified as experts upon the question as to whether or not the signature to the will is the signature of Fannie Nobles, deceased. Under the law, the opinions of expert witnesses are admissible in evidence, and are to be given such weight and value as the jury may think right and proper under the circumstances. The value of expert testimony depends not only upon the qualifications and experience of the witness, but upon the facts which he takes into consideration, and upon which he bases his opinion. If the facts assumed, and which are made the basis of the opinion, are not established by the proof, then the opinion would have no basis upon which to rest, and would be of no value; and, in weighing such opinion, the jury must look to see whether the facts assumed ¡are established by the proof or not; 'and you cannot take the facts assumed by the witness to be true simply because they are so assumed, but you will look to the proof to determine whether they are proved or not. ’ ’

It is argued that the instruction is an incorrect declaration of law applicable to the testimony of expert witnesses, because in the instant case the experts did not testify from an assumed state of facts, but from evidence admitted to be true.

Documents 'bearing the genuine signatures of the testatrix and Acklin were introduced in evidence and used by the experts as a basis for ascertaining whether the signatures on the will were forgeries. Their respective opinions were formulated by a comparison with the genuine signatures on the documents. It is true that the instruction was abstract in the sense that it told the jury that the facts as a basis for formulating opinions by expert witnesses must be proved in order to give value to their opinion, but we are unable to see how this harmed or prejudiced appellant. Reasonable intelligence must always be accorded to jurors, and, if that be done, certainly the jury was not induced by the instruction to give less weight to the opinions of the expert witnesses based upon ¡admitted, rather than assumed, facts which have to be established by proof. The instruction is the one usually given when hypothetical questions are propounded to expert witnesses, and may be characterized as a slight misfit where the foundation facts are considered and not assumed, but it did not result in rendering the opinions of the expert witnesses less valuable' or prejudicial to appellants. We do not think the instruction was one on the weight of the evidence, as it applied alike to the opinions expressed by all the expert witnesses testifying' in the case. The instruction did not single out or emphasize the testimony of any particular expert witness.

No error appearing, the judgment is affirmed.


author: Kirby, J.,

text:
    Saliba v. Saliba.
    Opinion delivered November 5, 1928.

      Moore, Gray & Burrow, Reid <& Everard and Everett B. Gibson, Jr., for appellant.

      Bruce Ivy and J. T. Cost on, -for appellee.
   Kirby, J.,

(after stating the facts). It is insisted, first, for reversal, and the question was raised by both the demurrer and the answer, that the court was without jurisdiction to try the cause, it being against a citizen and resident of the other judicial district of the county. The process, however, was issued and served upon the defendant in the district of the county where the suit was filed, and the fact that defendant was a resident and citizen of the other judicial district of the county did not deprive the court of the district where the suit was brought and the defendant was found of jurisdiction of the action, which was ¡a transitory one. It is true the act creating the two judicial districts of Mississippi County, act 81 of 1901, and the amendatory act 468 of 1919, contain the .provision, § 4 of the original act and § 1 of the amendatory act, that “no citizen of either the Osceola or the Chickasawba District of said county shall be liable to be sued in any action in said courts, in the other district. ’ ’ But § 6 of the original act provides that, in order to ascertain the jurisdiction of actions cognizable in the circuit and chancery courts, “the said districts for all purposes * * * shall be considered as separate and distinct counties, and the mode and place for trying suits and determining causes shall be' determined by the general law applicable to different counties.” If is further provided that certain processes shall run through the whole county, but that none, except subpoenas for witnesses, criminal processes and executions issued from the circuit court and chancery court of the Osceola District, shall be served on any citizen or resident of the ■Chickasawba District. If there were no provision in the act except the one of the fourth section, that no citizen of either of the districts shall be liable.to be sued in any action in the courts in the other district, appellant’s contention would not be without merit, but, construing the whole act together, and especially said § 6, which specifically provides that the jurisdiction of actions shall be determined as between the two districts as though they were separate and distinct counties, it cannot be sustained. The cause of action for damages, being a transitory one, could be brought in any county in the State where the defendant could be found, and his having been served with process in the district in the county where the suit was brought gave that court jurisdiction to determine the cause.

The court correctly declared the law requiring the exercise of ordinary care by the driver of the car to prevent injury to appellee, who had been expressly invited by him to help push the car in getting it out of the ditch. We have held the owner or driver of the ear is bound to the exercise of ordinary care in operating it to prevent injury to invited guests . riding therein, and certainly one who, at the express invitation of such driver or operator of an automobile, gets in behind the car to assist in removing it from a ditch, is not a volunteer in any sense that would reduce the degree of care required to be exercised by the operator of the car to prevent injury to him to less than ordinary care.

No error was committed in not including a definition of contributory negligence in the instruction No. 1 complained about, wherein the court declared the law and told the jury, if they found such condition to exist, that plaintiff was entitled to recover, unless he was guilty of contributory negligence, contributory negligence being defined in other instructions.

It is next insisted that the court erred in giving instruction No. 2, which, it is claimed, was abstract, there being no allegation of the complaint or testimony in support of it; It is true that the negligence was alleged to consist in suddenly and carelessly reversing the lever or gear of the car and increasing the supply of gasoline, thereby causing it to lurch and roll backward, creating the necessity for plaintiff’s protecting himself against it. Some of the witnesses testified that the injury resulted from the negligence as alleged. Dr. Saliba, who was in the oar with appellant, stated that he stood on the rig'ht of it, and the appellee and the others walked around to the rear of the car for the purpose of pushing and helping him out of the ditch, and “he placed his car in gear and started forward, and with their and my assistance had his car almost out of the ditch, when suddenly, and without warning, he reversed his car and ran backward toward them at a very rapid rate of speed. It seemed that he reversed the car and suddenly pressed his foot on the accelerator, and that, together with the weight of the car, ran it back very suddenly.” One witness testified the car rolled back rapidly, but did not come back suddenly like it had been thrown in reverse, and, as it came back, the plaintiff put his hands under the glass, and they slipped and crashed through the glass. This was the only testimony contrary to that of the plaintiff in proof of the allegation of the negligence that caused the injury, and it was unobjected to. Of course it only created an inference that the injury might have been caused by the failure to put on the brakes at the proper time, but, since the negligence in fact consisted in allowing the ear to lurch and roll suddenly backward without warning, the instruction relative to the failure to apply the brakes cannot be regarded ás abstract, in view of the undisputed testimony disclosing that the injury might have occurred because of that fact.

No error was committed in the giving of instruction No. 4. It was objected to only as inherently wrong. The instruction as given related to either party, and told the jury that, if either party had withheld any evidence under his control, the law presumed that it would foe against him if it had been introduced. The defendant in the suit, who was driving the car, and who knew whether the injury was caused as alleged by putting the car in reverse, was present in court at the trial, and made no statement about it, and it was disclosed that only one of the four boys who saw the accident testified, stating the car did not appear to jerk as though it hai been reversed, but rather to have rolled suddenly backward. The appellant’s testimony would not have been trivial and could not have been considered as merely cumulative, and appellee was not bound to take a chance in calling upon him to testify about the transaction. The question as to whether the car was reversed was am important one of fact, and the fact rested peculiarly within the knowledge of appellant, who was driving the oar, and he failed to give his version of it as a witness on the stand. The court did not err in giving said instruction to the jury. Miller v. Jones, 32 Ark. 346; Ramey v. Fletcher, 176 Ark. 196, 2 S. W. (2d) 84; Hollon v. Ry., 133 N. Y. Supp. 206; Kirby v. Talmage, 160 U. S. 383, 16 S. Ct. 379, 10 R. C. L. 886.

Instruction No. 5, authorizing the jury to allow interest in its verdict from the time of the injury rather than the judgment, should not have been given. 8 R. C. L. 533; Western Union v. Davis Cotton Co., 170 Ark. 506, 280 S. W. 977. The most of the damage was unliquidated, land, although the jury might have taken the delay in consideration as an element of damages in fixing the amount of the recovery, it should not have added the interest to the amount of the verdict, but, since that is a definite amount, and the judgment can be reduced accordingly, the error will be rendered harmless. The amount of the interest, as shown by the verdict, can be deducted from the amount of the judgment, relieving against any prejudice that could have resulted from the giving of the instruction. The verdict is not otherwise excessive. It is true the testimony showed that appellee is receiving the same salary in compensation for his services now as he did before the injury occurred, but this was a severe injury, which has permanently disabled him, the hand being virtually useless henceforth, and may be the cause of pain-and suffering to appellee in the future. Then, too, it was shown that $1,500 had been expended for medical attention.

We find no other errors in the record, and the judgment will be modified by the reduction of the amount of the interest found in the verdict, interest being recoverable only upon the amount of the judgment from its rendition, and, as modified, will be affirmed. It is so ordered.

Smith, J., dissents.


author: Kirby, J.

text:
    Rural-Dale Consolidated School District No. 64 v. Carden.
    Opinion delivered November 5, 1928.

      W. A. Utley, for appellant.

      N. A. McDaniel, for appellee.
   Kirby, J.

This appeal challenges the correctness of a decree of the chancery court of 'Saline County holding invalid and enjoining the 'collection of a tax levied for building purposes in the G-arland County territory of a consolidated school district.

It appears that School District No. 53 of Saline County was duly consolidated with School District No. 8 of Garland County, after which the directors of the consolidated district held an election for the purpose of voting on various other matters and a tax for a building fund.

It was alleged that the tax was illegal and void because no notice had been given of the holding of the election as required by law, and also that the district was not properly consolidated. A demurrer was filed, challenging the jurisdiction of the court and the complaint as insufficient and not stating’ a cause of action.

The evidence was in slight conflict as to whether the notices of the election and the matters to be voted on had been posted the time required, allowing the 15 days before the election held and of the place where it should be’ held. It was shown, however, that the notices were written and posted 15 days before the date of the holding of the election. The ones in the territory formerly the old School District No. 8 of Garland County provided that the school election was to be held at the Baptist Church, which, it was claimed, is insufficient, there being two Baptist churches in that territory,, and rendered the election void, as the chancellor held. Some of the witnesses testified that, when they saw the notices of the election posted, the time of it appeared to have been changed from 2 o’clock p. m. to 9 o’clock a. m. The secretary of the board testified that the form for notices of elections in common school districts had been used, and the time for' the holding of the election changed with a typewriter, before the notices were issued, to 9 o’clock a. m., and the preponderance of the testimony showed that the notices were posted in time to allow the 15 days ’ notice required by law. The testimony also showed that the •school elections since the burning of the schoolhouse, as well as the schools of the old district, had been held in the .Baptist Church at Lonsdale, where this called election also took place,- that the place for school elections was well 'known, and of the 60 voters shown to be residents and qualified electors of the ¡Garland County portion of the district, from, the list of voters prepared by the collector of the county in accordance with the law, 55 had voted at the election so held, and all but-10 of them voted for the tax for the building- fund. It was not shown that any elector who desired to vote was denied the privilege or failed to have an opportunity for casting his vote because of the place of holding the election not being more definitely fixed. ‘There was no question about the regularity or result of the election held in the Saline County territory of the consolidated district, the court holding only that the tax voted for the building fund in the other portion of the consolidated district, formerly District No. 8 of Garland County, was invalid because of the place of the election not being properly designated.'

In Hodgkin v. Fry, 33 Ark. 716, the court said: “It is the duty of the directors to designate the place of the annual meeting, and notice'of the time and place is essential to the validity of a tax voted at such meeting.” In Bordwell v. State, 77 Ark. 161, 91 S. W. 555, it was decided that an election held at a place other than, but near by, the place designated for the purpose, was valid. The court said: ‘ ‘ Election was not void because, instead of being held at the place lawfully fixed for that purpose, it was held at another place near at hand, if persons attending the latter place could be seen from the former place, and it did not appear that any one was misled. ” It is true there is nothing in the testimony indicating the nearness of the other Baptist Church in the territory of the old,district of Garland County to the Baptist Church at Lonsdale, intended to be designated as the place for holding it, where this election was held, and where the schools of the district had been taught and the elections had been held since the destruction of the schoolhouse by fire two years before, but the general expectation was, as stated by some of the witnesses, that the election would be held at the Baptist Church in Lonsdale, where the other school elections had been held, and a great majority, 55 of the 60 electors of the district, voted at the election, and it was not shown that any elector .desiring to vote had been deprived of the right and privilege of doing1 so because of the uncertain designation of the place for holding the election. Such being the case, the designation of the place for the holding of the election cannot have had effect to obstruct the free and intelligent casting of the votes of the electors- of that portion of the district, and the court erred in holding the election invalid on that account. Wallace v. K. C. S. Ry. Co., 169 Ark. 905, 279 S. W. 1.

The demurrer did not raise the question of the jurisdiction of the .chancery court to determine the eauáe of the election having been held in the territory of Garland County, and, since the consolidated district was a legal entity, we see no objection to the Saline Chancery Court’s jurisdiction to determine the question raised, even though it had been objected to on that account. It appears to be conceded that no error was' committed in the court’s finding and holding that the .consolidation of the district had been duly effected, and no question is made on that point here.

For the error designated the decree will be reversed, and the cause remanded with directions to dismiss the complaint for want of equity. It is so ordered.


author: Mehaffy, J.

text:
    Hatfield v. School District No. 58.
    Opinion delivered November 5, 1928.

      R. W. Robins, for appellant.

      J. C. <É Wm. J. Clark, for appellee.
   Mehaffy, J.

School District No. 58, in Faulkner County, Arkansas, inhabited principally by negroes, entered into a contract with appellant, Lester Hatfield, for the erection of a school building for $12,949. The officials of the school district had given notice by publication, and Hatfield was the only bidder. Two of the directors were colored and one white. The contract was as follows:

“This agreement, made this the 26th day of May, 1925, by and between Lester Hatfield, hereinafter called the contractor, and the school directors of District No. 58, in the county of Faulkner, State of Arkansas, hereinafter called the owner, witnesseth: That the contractor and the owner, for the consideration -hereinafter named, agree as follows:

“Article 1. The contractor agrees to furnish all necessary material and labor with which to construct a school building’ according to the plans and specifications as furnished by the State Department of Education of the State of Arkansas, and to do everything required by the general conditions of the contract, the specifications and the drawings.

“Article 2. The owner agrees to pay the contractor in current funds, for the performance of this contract, the sum of $12,949, subject to additions and deductions as provided in the general conditions of the contract; provided any and all changes, additions, or deductions shall have been agreed to and signed by both parties; and to make payments on account thereof as follows: 85 per cent, of the value of all material and work put into the building, as the construction progresses.

“Article 3. That contractor agrees to complete the building ready for occupancy in..................working days from the date of contract.

“Article 4. The contractor and the owner agree that the general conditions of the contract, specifications, and the drawings, together with this agreement, form the contract, and that they are fully a part of the contract as if hereto attached.

‘ ‘ The contractor and the owner, for themselves, their successors, executors, administrators and assigns, hereby agree to the full performance of the covenants herein contained.

“In witness whereof they have hereunto set their hands and seals, the day and year first written above.

“Lester Hatfield, contractor.

“Jacob Brame.

“Troy C. Hill, owner.

“Lewis Mason.”

Hatfield was paid $1,100 through the Rosenwald fund, and $867 out of the district’s building fund, and when the building was completed the district issued and turned over to him school warrants amounting to approximately $10,987. The warrants were all in the same form, and the following- is a copy of one of them:

“District School Fund, District No. 58

“No. 22. August 21, 1925.

“Treasurer of Faulkner County, Arkansas:

“Pay to Lester Hatfield, or order, the sum of twenty-five ($25) dollars, for the construction of schoolhouse, . out of the building funds.

(Signed) “Jacob Brame,

“Troy C. Hill,

“L. N. Mason,

“Directors.”

Suit was brought by the appellee to prevent and restrain the contractor from collecting any warrants held by him and to restrain him from disposing of any warrants, and to enjoin the treasurer from paying the warrants, and asking judgment against Hatfield for the sum of $4,082.70. Appellee alleged that, while the contract mentioned the sum of $12,949, the bid of the contractor was for $6,500 cash, but that it was the understanding that he would be paid in school warrants over a period of 21 years.

The school district issued and delivered to Hatfield 21 warrants for $500 each, 18 warrants for $25 each, and one warrant for $32. The building was constructed and accepted by the district, and the payments of $1,100 and $867 were paid to the contractor upon the completion of the building. After the building was completed the district obtained two policies of insurance for $9,500. The district gave a mortgage to Hatfield to secure .the payment of the warrants or the balance due for constructing the building.

The building was thereafter destroyed by fire, and Hatfield learned that the school directors had taken no steps to collect the insurance, and he employed an attorney and prepared proof of loss, which was signed by the directors.

The insurance companies declined to pay, and suit was filed against each of them. The suits were removed to the Federal court, and, after the removal to the Federal court, a compromise was effected whereby the insurance companies paid Mr. Hatfield $8,525. His attorney’s fees were $850. When the settlement was made the insurance companies made their checks payable to the district and Mr. Hatfield jointly. Therefore, in order to get the checks cashed, it was of course necessary to have them indorsed by the district, and, at the request of Mr. Hatfield, the president and secretary of the school board indorsed the checks and Mr. Hatfield received the money.

The plaintiffs alleged that Mr. Hatfield offered to construct the building for $6,500 cash, or for said sum plus 10 per cent, interest on deferred portions thereof; that it was estimated that the payment of said sum would have to be distributed over a period of 21 years, and that the accruing interest, at 10 per cent., would approximate $6,449'; that in drafting the contract it was, by mistake, oversight or fraud, stipulated that the consideration for the performance of the contract to be paid Hatfield was $12,949.

The appellant filed his answer, denying all the material allegations in plaintiff’s complaint. Thereafter an amendment to the complaint was filed, alleging that the Cleburne County Bank and Loyd’s Investment Company, of Little Rock, were claiming some interest in the warrants, and asked that they be made parties, defendant.

Appellee’s witnesses testified that the price of $12,-949 was the cash price plus interest, and that the appellant gave them an estimate or made a bid of $6,500 cash. In addition to that, the county superintendent testified that he showed the plans to Hatfield, and that Hatfield bid $6,500 cash, and some other witnesses testified to the same effect. It is also shown that two or three houses similar to the one constructed by appellant cost approximately $6,500 each.

■ Troy C. Hill, one of the directors of District 58, testified that the minutes of the meeting at which bids were opened showed that Hatfield’s bid was $12,949, and this was to be paid out of the building fund now on hand and out of the Rosenwald fund, and to be in warrants extending over a period of 21 years. The minutes also showed that a resolution was adopted to issue to Lester Hatfield 21 warrants in the sum of $500 each, 18 warrants in the sum of $25 each, and one warrant for $32, in full settlement of the balance due him. That the warrants were duly issued and signed by each member of the board, and turned over to Hatfield, and were numbered one to forty, inclusive, the first 21 warrants being for the sum of $500 each. There is no dispute about this testimony nor about what the minutes show.

Hatfield testifies that his 'bid did not show that it was to be paid out of warrants extending over 21 years.

Appellant’s witnesses testify that there was never a bid of $6,500, and that the only bid made was for $12,-949, and that that is what the contract shows.

The court, after hearing the evidence, entered a decree that plaintiff’s complaint praying for reformation of contract and for money judgment against Hatfield, was denied, and dismissed for want of equity, but restrained Hatfield,. and the other persons who were made parties, from cashing or attempting to cash the school warrants in their possession, and ordering and directing them to surrender the warrants to the treasurer of Faulkner County. The treasurer of Faulkner County was ordered to cancel the warrants. From this decree this appeal was taken.

It is first contended by the appellant that the appellee sought to reform a written contract, and that the evidence was not clear, convincing and decisive, and, for that reason, the contract could not be reformed. Appellant cites numerous Arkansas cases where it has been held that the evidence to show fraud or mistake must he clear, unequivocal and decisive, but the chancellor did not reform the contract and did not undertake to reform it. What the court did was to construe the contract. If the board of directors had authority to make this contract and did make it, the law became a part of the contract.

“A school district or township can contract only in its corporate capacity, and has the power of entering into such contracts, and such only, as are expressly or impliedly authorized by a statute, and as are authorized by legal votes passed at a regularly called district meeting.” 35 Cyc. 949.

If the board of directors passed a resolution authorizing the making of this contract, according to the undisputed testimony, that resolution provided for the payment of $12,949 over a period of 21 years. There can be no dispute about this. The testimony shows that this is what the minutes showed. It is also undisputed that 21 warrants were issued. The minutes record the action of the directors as a board. They provide for the payment over a period of 21 years. This is a limit on the authority of the directors to make a contract; a limit on the authority of the directors to make a contract and a limit of which the contractor must take notice.

“All persons dealing with district boards, committees or officers are bound to ascertain the limits of their authority as fixed by statutory or organic law, and are therefore chargeable with notice of any limitations thereon, as in respect to the amount they are authorized to expend.” 35 Cyc. 951.

“The power of a district board, committee, or other officers to enter into a contract for the construction of a school building is controlled (by statute, under which it is usually provided that a school board may enter into a contract for the erection of a sehoolhouse only upon the petition or authority of the voters of the district, at an annual meeting on a designated day, and then only within the limits of the power so conferred; that such contract can be entered into only to the extent of funds provided and available for that purpose; or that no contract can be made relative to the erection of a school building, the cost of which will exceed the amount appropriated therefor or which will exceed a given amount. ’ ’ 35 Cyc. 951.

The contractor was bound to know and did know the amount of funds the district had on hand. He was bound to know the limit of the tax that could be levied and collected in the district, and was therefore bound to know that $500 annually was approximately the school revenue of the district for building fund.

“The directors have charge of the school affairs and educational interests in their districts, and the care and custody of schoolhouses, grounds, and other property belonging to the district. But they have no power to purchase or lease in the corporate name a schoolhouse site, or to hire, purchase or build a schoolhouse with funds provided or to be provided by the district, unless thereunto authorized by a majority vote at the district meeting.” Arkansas National Bank v. School Dist. 99, 152 Ark. 507, 238 S. W. 630.

Again, the warrants accepted by the contractor himself showed on their face.that the payment was to be made out of the building fund. This building fund, or the amount of it, as the contractor was bound to know, was limited. Again, when the contract was completed, there was issued to and accepted by the contractor warrants payable out of the building fund, which could not have been paid for something like 20 years. It is true that the contractor says that the board of directors intended to organize a special school district so that they could borrow money, but, in the first place, they might have been unable to form a special school district, and, in the next place, there was no certainty that they could borrow the money if they did. And we are therefore of opinion that 'the contract itself, taken in connection with the law and the minutes of the board of directors, shows that the contractor did 'not expect, and that it was not the intention of the parties, that .all of the warrants should be taken up at once or that the price should be paid in cash.

There are two important rules that it is well to keep in mind in construing any contract. One is that the intention, of the parties is to be given effect, if it can be done consistently with legal principles; and another well established rule is that the construction that the parties themselves put on the contract is entitled to great weight. Temple Cotton Oil Co. v. Southern Cotton Oil Co., 176 Ark. 601, 3 S. W. (2d) 673.

“For the law is that, when the parties to a contract have given it a particular construction, such construction will generally be adopted by the court in giving effect to its provisions, and the subsequent acts of the parties showing the construction they have put upon the agreement themselves are to be looked to by the court, and, in some cases, may be controlling.” Webster v. Telle, 176 Ark. 1149, 6 S. W. (2d) 28; 9 Cyc. 588; 6 R. C. L. 862.

Our conclusion is that the chancellor properly construed the contract. It is contended, however, by cross-appellants that they have overpaid the contractor, and that the chancellor therefore erred in refusing to enter' a decree against the contractor for the amount claimed. Whatever payment was made was voluntarily made by the school board, and at the time it was made probably neither party had made any calculation as to its correctness.

It is the contention of the school district that the cash price agreed on was $6,500, and that the balance was interest calculated over a period of 21 years. So that, according to their own contention, what they are seeking to recover is interest that has already been paid to the contractor. The rule applies here that, where interest is paid in advance and the principal is paid before the time at which it was to be paid, no part of such interest can be recovered back.

“Where interest is given in advance on a note, and the principal is voluntarily paid during the period for which the interest was paid, no part of such interest can be recovered back,'in the absence of a promise by the payee to return the unearned interest, or of a reservation of the right to bring suit within the time for which interest has been paid.” 15 R. C. L. 13.

We have reached the conclusion that the decree of the chancellor is correct, and it is therefore affirmed, both on the appeal and cross-appeal.


author: Hart, C. J.,

text:
    Stevens v. Shull.
    Opinion delivered November 12, 1928.

      Frcmlc S. Quinn, for appellant.

      J, M. Carter and B. E. Carter, for appellee.
   Hart, C. J.,

(after stating the facts). ¡Section 5666 of Crawford & Moses’ Digest, providing for the payment ¡and collection of assessments in municipal improvement districts, contains the following:

“Provided, no single improvement shall be undertaken which alone will exceed in cost twenty per centum of the value of the real property in such district as shown by the last county assessment.”

The words “last county assessment” were construed by this court in Board of Improvement v. Offenhauser, 84 Ark. 257, 105 S. W. 265, and in Watson v. Boydstun, 141 Ark. 184, 216 S. W. 721, to mean the last completed assessment in force, with additions made by the board of equalization, at the time of. the passage of the ordinance levying the assessment of benefits. The court said that the statute was a general and continuing one for the organization of improvement districts in cities and towns.

The correctness of this construction of'that statute is conceded by counsel for plaintiff, but it is contended that the rule has been changed by act No. 395 of the Acts of the General Assembly of 1921, and by act 184 of the Acts of 1925. See General Acts of 1921, p. 416, and Acts of 1925, p. 548.

' Act 184 amends act 395 so as to read as follows:

“The petition for such improvement, signed by a majority in value of .the owners of real property in the district, shall specify what percentage of the value of the real property in the district, as shown by the last county assessment, the said improvement shall not exceed in cost; provided, no single improvement shall be undertaken which alone will exceed in cost fifty per centum of the value of the real property in such district as shown by the last county assessment; but, in determining what shall be fifty per centum of the value of the real property in the district, interest upon borrowed money shall not be computed :as a part of the cost. Provided, further, an improvement may be made which does not exceed 100 per cent, of the assessed value determined as above if 75 per -cent, of the property owners, in value, in said district petition therefor.”

It will be noted that this' section provides that the petition signed by the majority in value of the owners of real property in the district shall specify what percentage of the value of the real property as shown by the last county assessment the improvement shall not exceed in cost. Following this is a proviso that no single improvement shall be undertaken which alone shall exceed in cost fifty per centum of the value of the real property in the district as shown by the last county assessment. Now, the last county assessment, as used in the first part of the section, manifestly means the assessment in force at the time the majority petition is circulated. Hence it is contended. that this county assessment should also govern in determining whether the estimated cost of the improvement will exceed in cost fifty per centum of the value of the real property in the district. We do not agree with counsel in this contention. The use of the words, “the last county assessment,” is merely a method of procedure in determining the value of the property at the time specified.

In Improvement District No. 1 v. St. Louis Southwestern Ry. Co., 99 Ark. 508, 139 S. W. 308, in construing the provision of the statute providing that, in ascertaining whether the petition is signed by a majority of the property owners in value, the council shall be concluded by the last county assessment on file, the city council was concluded by the last county assessment, and could not consider omitted property. The court recognized that it was jurisdictional to obtain the majority in value of the property owners, and that this was in the nature of a condition precedent for the exercise of the power of forming the district by the municipial council. It was held that it was lawful for the Legislature to prescribe a reasonable method of procedure to determine that value. The court said that it was a matter of common knowledge that it was difficult to determine the value of property, and that intelligent individuals frequently differed in estimating its value. It was considered that the use 'of the last county assessment was a proper and reasonable method of fixing a uniform valuation of all the real property in the improvement district. .At that time the last county assessment might have been different when a majority in value of the real property owners was to be determined from the one in force when the assessment of benefits was made and the estimated cost of the improvement was fixed by the council.

We have already seen that the court construed the words, “the last county assessment,” as used in reference to the assessment of benefits, to be the one in force at the time the council passed the ordinance levying the assessment to pay for the improvement. We do not think that the present statute changes the rule. If the lawmakers intended to fix, as the basis of the cost of the improvement, the last county assessment existing at the time the petition for the improvement signed by a majority in value of the real property owners of the district should govern, it would have stated that fact in plain terms, and not merely have used the words “as shown iby the last county assessment.” The act provides that no single improvement shall be undertaken which alone will exceed in cost fifty per centum of the value of the real property in the district as shown by the last county assessment. According to the interpretation of these words, “the last county assessment” means the assessment in force at the time the acts required to be done are performed. If a different meaning was intended and the meaning now contended for should govern, it would have been very easy to have said that no single improvement shall be undertaken which alone will exceed in cost fifty per centum of the real property in the district as shown by the assessment on file at the time the petition purporting to be signed by a majority in value of the real property owners was filed. In other words, the court having held that the words, “the last county assessment,” means the assessment in force at the time the acts required to be done are performed, this construction should govern, unless the Legislature should plainly and unequivocably manifest a contrary' intention.

As we have already seen, under the former act, as construed, one county assessment might be used in determining whether a majority in value of the owners of real property in the district had signed the petition for the improvement and another county assessment might be used in determining whether the cost of the improvement exceeded fifty per centum of the value of the real property. This having become a rule of construction, we do not think it should be changed by amending the statute so as to require the majority petition to signify the percentage of the value of the real property which the improvement should or should not exceed in cost.

The undisputed facts show that the estimated cost was less than fifty per centum of the value of the real property in the district as shown by the last assessment in force when the assessment of benefits was made and the estimate of the cost of the improvement filed with the council. Therefore the decree is affirmed.


author: McHaney, J.

text:
    Hatch v. Lowrance.
    Opinion delivered November 5, 1928.

      R. G. Davies, for appellant.

      C. T. Cotham and Geo. P. Whittington, for appellee.
   McHaney, J.

Appellant purchased from appellee Lowrance, lot 6, block 24, of South Hot Springs Addition to the city of Hot Springs, for a consideration of $3,000, on January 4, 1927. Appellee Price held a deed of trust against said property, executed by Lowrance, on which there was a balance due of $1,564.58. The deed of trust provided that,- when the indebtedness secured by it was paid, the property should be released from the deed of trust by the mortgagee or grantee, at the expense of the grantor. The Arkansas National Bank was the trustee in the deed of trust, and appellant, at Price’s direction, paid the Arkansas National Bank the balance due on account of the mortgage, and at the same time paid Lowrance the difference between the purchase price and the amount due on the mortgage, receiving from Lowrance a warranty deed to the property. Price, being a nonresident, executed a release deed, reciting the payment of the balance due, and releasing the lien of the deed of trust in satisfaction of said indebtedness, forwarded it to the Arkansas National Bank, who, in turn, delivered it to Lowrance to be placed of record. Lowrance took it to appellant, who refused to receive it and have same recorded at an expense of $1.50, for the reason that, as he contends, it was the duty of Lowrance to have the instrument recorded and satisfy the record, which Lowrance refused to do.

Appellant also demanded that appellee Lowrance pay the amount of taxes due for 1926 on the property, in the sum of $18.35, which Lowrance refused to pay, and appellant was compelled to pay same to protect his property from sale. He thereafter brought this action, which we will treat as the chancellor apparently did, as a suit to remove a cloud on title. A decree was entered canceling the mortgage of record, and rendering judgment in favor of appellant against Lowrance, the sum of $1.50, and dismissing the complaint as to appellee Price, at the cost of appellant.

The court was correct in dismissing the action as to Price. The undisputed proof shows that, upon payment of the balance due on his note and deed of trust, he immediately executed a release deed and caused the same to be delivered to Lowrance, whose clear duty it was to put same of record, under his agreement to pay the expense of satisfying the record contained in the deed of trust. It was not appellant’s legal duty to record the release deed, nor to pay the $1.50, but it was his duty to minimize any damages he might sustain by reason of §§ 7395 and 7396, C. & M. Digest. The real basis of his action in the chancery court was to recover the statutory penalty provided by § 7396, as he claimed in his complaint a large amount of damage. By paying the recording fee and having the release deed recorded, he would have eliminated any damages that he might have sustained by reason of the refusal of Lowrance to record the instrument. He would then have had a cause of action against Lowrance to recover $1.50, the amount of the recording fee.

The court sustained a demurrer to that part of appellant’s complaint claiming damages for neglect to satisfy the record, and there was therefore no error in this regard. The undisputed evidence shows that the sale of this land was made and executed after the first Monday of January, 1927, and that there was no agreement between appellant and appellee, Lowrance, regarding the payment of the taxes for the year 1926. Under § 10023, O. & M. Digest, as between grantor and grantee, the lien for taxes attached on the first Monday in January, 1927, which was January 3. The sale not having taken place until the next day, January 4, there was a valid lien subsisting on said property for the taxes for the year 1926, and, under Lowrance’s warranty deed, he was liable to appellant for the taxes in the sum of $18.35. The court correctly canceled the lien of the deed of trust as a cloud on appellant’s title, and there will therefore be no-necessity of recording Price’s release deed.

The decree will therefore be modified by giving appellant a judgment here for $18.35, with interest at 6 •per cent, from April 10, 1927, the last day for payment of taxes, and the judgment for $1.50 in appellant’s favor will be set aside. In all other respects the decree is affirmed.


text:
    Bethel and Wallace v. State.
    Opinion delivered November 5, 1928.

      O. H. Hurst and E. E. Alexander, for appellant.

      H. W. Applegate, Attorney General, and John L. Carter, Assistant, for appellee.
   McHaney, J.

Appellants were separately indicted, jointly tried by consent, on a charge of rape committed on the person of Mrs, Pearl Jordan, on Sunday evening, April 1, 1928, were convicted, and sentenced to death by electrocution.

Only two questions are presented for our consideration and determination, as follows:'

1. That the court erred in permitting Dr. McCall to testify for the State, over the objections and exceptions of appellants, that on Monday, the day after the crime is said to have been committed on Sunday night, at the request of the sheriff’s office he made a. physical examination of both defendants, and found Bethel afflicted with acute gonorrhea and Wallace with chronic gonorrhea.

2. That the court erred in permitting the State to prove, over the objection and.exception of appellants, the good reputation of the prosecutrix for virtue and chastity.

1. Discussing these assignments of error in this order, we find as to the first point, when objection was made to Dr. McCall’s testimony, the court ruled as follows: “It is proper for the State to show any circumstances connected with the alleged offense; the condition of the defendants at the time, together with everything else that was connected with the commission of the alleged offenses. The evidence is competent to show, if the State can, that, at the time of the alleged offense, they were suffering with a venereal disease, if they were.”

In support of the ruling of the court the State’s attorney cites the case of People v. Glover, 71 Mich. 303, 38 N. W. 874. But in that case ¡statutory rape was charg-ed, the prosecutrix being only eleven years of age, and the physician, who testified that the defendant, a short time after the commission of the offense, was suffering with gonorrhea, made the examination at the suggestion! of the prosecuting attorney, because it had developed that-his ¡child victim was suffering- with the same disease a short time after the offense was alleged to have been committed. The only evidence of sexual relations with her was her testimony, the defendant denying the same.

The case of State v. Mills, 45 S. D. 633, 189 N. W. 941, is also cited in support of the admissibility of this testimony. On the original hearing appellant’s conviction was affirmed, but on rehearing, 45 S. D. 439, 188 N. W. 49, it was reversed, because the trial court had refused to permit appellant’s witness, a physician, to testify as to whether, in his opinion, the appellant had gonorrhea at the time he was examined by the witness for the purpose of ascertaining that fact. This was evidence offered by the appellant, and not by the State. This was another case of statutory rape. We think these cases have no ■bearing upon the subject here under investigation, as the crime charged is not statutory rape, and the identity of the accused is not in question. They freely admitted the sexual intercourse declared by the prosecutrix, but denied that it was done by force and violence, and asserted that it was with her full consent.

Mr. Jones, in his commentaries on the law of evidence, vol. 3, § 1391, states the rule as follows:

“The principle is firmly ingrafted upon our Federal and State Constitutions that no accused person shall be compelled to give evidence against himself in any criminal case. But there is a line of authorities which hold that, in a criminal action, the accused may be compelled to furnish evidence by being compelled to submit in some degree to the inspection of his person for the purpose of ascertaining identity. Thus, a defendant has been compelled to exhibit his bare arm to the jury to ascertain whether certain tattoo marks, concerning which testimony had been given, existed. In other cases accused persons have been compelled by officers to submit to such experiments as having the foot placed in tracks to which the testimony related, or to other similar experiments; and the officers or other persons have, under such circumstances, been allowed to state the result. These cases proceed on the view that the constitutional provision to the effect that no person shall be compelled in a criminal case to be a witness against himself is to be construed merely to mean that the defendant cannot be compelled, in the strict meaning of the term, to ‘testify’ against himself. A far more liberal and, in the opinion of the author, a better construction has been placed upon the eionstitutional provision in other eases where this class of testimony has been rejected on the ground that the court could not compel a witness to furnish evidence against himself. But, even under such authorities, the right of the accused to refuse to submit to such an inspection is waived when he voluntarily furnishes such evidence, in the same manner that he waives his constitutional privilege when he voluntarily gives testimony that may criminate himself.”

In a case quite similar to this one, State v. Horton, 247 Mo. 657, 153 S. W. 1051, except that it was a charge of statutory rape committed by a colored school teacher in Kansas City on one of his pupils, eleven years of age, the court said:

“Defendant insists that the physicians who examined him ’ while he was in custody should not have been ¡allowed to testify to the fact that he was suffering from a venereal disease. To meet this insistence, the State contends that the examination complained of was made with defendant’s consent. We have read the record carefully, and find that the ‘consent’ consisted of the failure of defendant to object to the physical examination. When a man is under arrest, without counsel, and, speaking metaphorically, is standing in the shadow of a policeman’s club, it requires something much more substantial than silence to justify an invasion of his constitutional right not to be compelled to furnish evidence against himself.”

The case was not reversed on this account, because the court held there was no proper objection to the testimony.

In State v. Newcomb, 220 Mo. 54, 119 S. W. 405, it was said:

“We think the circuit court should have excluded all this testimony of Dr. Crowe and the sheriff as to this examination. We had occasion to examine the law on this subject in State v. Young, 119 Mo. 495, 24 S. W. 1038, and the authorities are collated there.- The facts of this case bring it clearly within the reasoning of that case, and, upon the authority of that decision and those cited and approved therein, this testimony was incompetent and inadmissible, and violative of defendant’s constitutional right not to be compelled to testify against himself. See also State v. Height, 117 Iowa 650, 91 N. W. 935, 59 L. R. A. 437, 94 Am. St. Rep. 323. ’ ’

As heretofore stated, Dr. McCall made the examination a short time after appellants were put in jail, and at a time, so far as this record discloses, when they were without counsel. An examination was made, not at their suggestion, but at the suggestion of the sheriff’s office, and, at the first opportunity presented, they objected to such testimony. There is a provision in both the Constitution of this State and of the United States that no person shall be compelled in any criminal case to be a witness against himself. j3ee 5th article of amendment to the Constitution of the United ¡States and § 8, article 2, Constitution of 1874. This testimony did not tend to prove the crime charged, but only tended to prejudice, degrade and humiliate them before the jury.

A majority of the court is of the opinion that the court committed reversible error in admitting the testimony of Dr. McCall.

2. The court also committed reversible error, in the opinion of the majority, in permitting the ¡State to prove the good reputation of the prosecutrix for virtue and chastity, when her general reputation therefor had not been attacked by appellants. True, they had testified that she had yielded to their lascivious desires freely and voluntarily, conditioned that they would use “rubbers” as a protection against pregnancy, which they did, and which she admits one of them, at least, d-id. They further testified that she told them, as a reason for requiring such protection, that she had such relations with a man once before without protection, and, as a result, had to spend some weeks in the hospital. It was further testified to, on behalf of appellants, that, while riding in a Chevrolet roadster with these young men (neither of whom, she ¡admits, she had ever seen before) she sat on the lap of the one not driving.

The State insists that this evidence on their part put her reputation for chastity in issue. In so far as this testimony of appellants relates to her consent to the sexual transaction with them and the* actual copulation, the majority is of the opinion that her prior reputation for chastity was not pnt in issue, and that this case in this regard is ruled by the case of Smith v. State, 150 Ark. 193, 233 S. W. 1081. There Smith was charged with the crime of assault with intent to rape, and “the defendant admitted that he had intercourse with the prosecuting witness on the night in question, but claimed that it was with her consent. He described in detail their conversation during the ride, and said that there was no resistance whatever on the part of the prosecuting witness.” It was there said: “It is next insisted that the judgment should be reversed because the trial court erred in permitting the State to introduce testimony tending to show the good character of the prosecuting witness for chastity, over his objections. We think counsel for the defendant is correct in this contention. In a prosecution for assault with an intent to rape, the character for chastity of the injured party may be impeached, not to justify or excus'e the offense, but to raise a presumption of her consent. Pleasant v. State, 15 Ark. 624, and Jackson v. State, 92 Ark. 71, 122 S. W. 101. It is only when the accused attacks the chastity of the prosecuting witness by evidence of reputation for unchastity that the prosecution may introduce evidence of her reputation for chastity to discredit such testimony. Underhill on Criminal Evidence (2d ed.), § 418, p. 702.

“In The present case the defendant did not introduce any evidence as to the reputation of the prosecuting witness for unchastity, or of illicit intercourse on her part. Hence the court erred in admitting the State to prove the reputation of the witness for chastity, because her reputation in that respect had not been assailed by the defendant.”

What the court meant by the statement that “the defendant did not introduce any evidence as to the reputation of the prosecuting witness for unchastity, or of illicit intercourse on her part,” was that there was no attack made on her chastity by the proof of her general reputation for unchastity prior to the admitted occurrence, nor of particular acts of illicit intercourse with other men. And this is the exact state of the evidence in the case at bar. Appellants admit the intercourse, but did not attack her reputation otherwise. Neither do we think the other testimony, as to what they say she said about her conduct with another man, and the position she occupied while riding with them in the car, sufficient to constitute an attack by them on her general reputation for chastity or proof of other illicit intercourse. In other words, whatever was said or done by any of them at the time of the occurrence did not constitute an attack on her reputation for chastity.

Because of these errors the judgments must be reversed, and the cause remanded for a new trial.

Mr. Justice Smith dissents.


author: Mchaffy, J.

text:
    Wisconsin & Arkansas Lumber Company v. Otts.
    Opinion delivered November 5, 1928.

      John L. McClellan, for appellant.

      Glover, Glover & Glover, for appellee.
   Mchaffy, J.

Clarence Otts, a minor, by his father and next friend, brought suit in the Hot Spring Circuit Court against appellant, seeking to recover damages in the sum of $3,000 • for injuries alleged to have been received by Clarence Otts on the 8th day of August, 1927, while in the employ of the appellant lumber company.

He alleges that he is a minor, and that Marion Otts is his father; that in August, 1927, he was in the employ of appellant, and that it was the duty of appellant to exercise ordinary care to furnish him a reasonably safe place, machinery and appliances with which to work, and that appellant, its agents, servants and employees, negligently failed to exercise such care, and, on account of its negligence, he was injured; that at the time he was injured he was working under the orders and directions of appellant’s foreman, in its mill at Walco, Arkansas, and that he was ordered by his foreman to run a machine known as a molder; that defendant was negligent in operating the machine with a defective, old and worn belt, and that, while he was operating this machine, this belt broke, and struck him, knocking him several feet to the floor, rendering him unconscious; that the appellant was also negligent in operating the machine with a defective belt without a guard; that he had requested a guard to be placed on the machine, and his foreman stated it was not necessary; that he had also complained of the belt, and his foreman assured him it was safe; that, when the belt broke, it struck him with such force and violence that it severely injured him in the back and spinal cord, and from said injury he was left in an exceedingly nervous condition; that before the injury he was earning $2.75 a day, but since his injury he has been unable to do hard manual labor, and his earning capacity has been permanently impaired.

The defendant answered, denying all of the material allegations in the complaint with reference to negligence, and alleged that the injury was caused by appellee’s own negligence, and that he assumed the risk. The fact that the belt broke and injured plaintiff is not disputed, and it is not disputed that the machine was being operated without a guard, and all agree that a guard is a necessary protection; that it would have prevented the belt from striking him.

There was a trial, and judgment for the plaintiff in the sum of $400, whereupon appellant filed its motion for a new trial, which was by the court overruled, exceptions saved, and appeal prosecuted by appellant.

The testimony was conflicting, and appellant’s first contention is that the court should have directed a verdict in its favor, because it is contended that the undisputed testimony shows that the appellee knew of and fully appreciated all of the dangers incident to the work he was doing.

This ease was tried in January, and appellee testified that he was twenty years old in the preceding November, and that the injury occurred in August.

Appellant relies on the testimony of the plaintiff himself, who testified, when cross-examined, that he knew that the machine was dangerous to operate without a guard, and that he asked for a guard, and knew he was liable to get hurt because they did not have it. He testified that he had worked at this machine approximately two months. Some of the witnesses testify that he had worked at this machine somewhat longer than that, but anyway it is contended that his own testimony showed that he appreciated the danger, and therefore assumed the risk.

It is tiue that, where the danger is so obvious that a knowledge of it and appreciation thereof should be imputed to the servant, it would be the duty of the court to declare as matter of law that the servant was not entitled to recover. If the danger was so obvious that a prudent person would not have continued to work there, as the appellant did, it would then be a risk assumed by him, and he would not be entitled to recover. But a young man 19 or 20 years old would not have and would not be expected to have the same judgment and appreciation about dangers of this kind that an older person would have.

The appellee testified that the appellant had a belt so old that they, changed it and put another one on, and that it broke; that he asked the belt man for a belt, and the belt man said there wasn’t anything over at the supply house, and they took one from another machine; that he asked the belt man for another belt, and the belt man said they did not have any other at the supply house, and, when appellee asked him if it wasn’t liable to break and hurt him, the belt man said it would not hurt him if it did break. He testified that there was no guard there at any time he worked there, and that he would not have run the old belt unless the foreman had told him it was safe, and would not break.

A number of witnesses testified about the belt and about the guard, and the undisputed proof shows that the edges of the belt had become frayed, and the belt man cut about an inch off from one side before puting it on this machine.

While the testimony is conflicting, and the testimony tending to show that appellee did not appreciate the danger is not very strong, yet we think it was sufficient to take the question of assumed risk to the jury. The smallness of the verdict, $400, indicates that the jury found that the appellee was guilty of contributory negligence, and took this into consideration in fixing the amount of his damages. The questions of negligence, contributory negligence and assumed risk, under the facts in this case, were all proper questions for the jury, and the jury’s-verdict, if there is any substantial evidence to sustain it, cannot be disturbed by this court.

This court has said: ‘ ‘ The charge of the court submitted the questions of negligence, contributory negligence, and assumed risk, upon instructions that were exceptionally free from error. The charge as a whole evinced a clear comprehension of the law in such cases, as it has been declared by authorities generally and the numerous decisions of this court.” St. Louis Stave & Lumber Co. v. Sawyer, 90 Ark. 473, 119 S. W. 830.

In the above case the court also said in its statement of facts that the appellee in that case was an illiterate young man, about nineteen years of age, and had never worked around machinery like that before. He had been around another stave mill about two or three weeks. That the superintendent knew that, if the belt came off the pulley and down on the line shaft, the ravelings were likely to take hold of it. He did not tell appellee that, if they let the belt get down on the line shaft, the ravelings were likely to get caught on it.

The appellee in this case .testified that he would not have continued work if his foreman had not told him that the belt was safe, and of course, in this case, if the belt had been safe there would have been no injury. It certainly could not be -said then that he appreciated the danger of the belt breaking and striking him.

This court, speaking through Chief Justice Cockrill, said:

“But service about the unblocked rails was attended with danger, and the knowledge of the fact that the rails were unblocked did not necessarily imply knowledge of the attendant danger. Knowledge of the danger was itself a question of fact; and, if the jury believed that the deceased, by reason of his youth and inexperience, did not know of or appreciate the danger incident to service about the unblocked rails, and that the company had exposed him to the danger without warning him of it, they should have found that the risk was not one he had assumed by entering the service.” Davis v. Railway, 53 Ark. 117, 13 S. W. 801, 7 L. R. A. 283.

Assumed risk is based on contract, either express or implied, from the circumstances of the employment. It is a risk which the employee agrees to assume. In other words, he agrees that he will discharge his duty at the particular employment at liis own risk. But, under the decisions of this court, he does not assume the risk of the negligence of the master nor the risk of the negligence of any other servant of the master, unless he either knows that it exists or unless it is so obvious that a prudent man would not continue the work.

We think there was substantial evidence to go to the jury on the question of assumed risk, since the appellee testified that he would not have continued the work if the foreman had not told him that it was safe.

Appellant calls attention to many decisions of this court on the question of assumed risk. These decisions clearly state the law. It is well settled in this State, as contended by appellant, that, when it appears to be clear that the servant had knowledge of and appreciated the danger incident to his work, or if the danger was so obvious or apparent that knowledge of the danger and appreciation thereof should be imputed to him, then the court should declare as matter of law that the servant is not entitled to recover. But, after a careful consideration of all the evidence-in this case, we have reached the conclusion that there was sufficient evidence to take the question of assumed risk to the jury.

It is next contended by appellant that the court erred in permitting appellee’s attorney to ask leading questions. The trial court has much discretion in the examination of witnesses, and we do not think in this case there was any abuse of discretion.

It is next contended that the court erred in giving instructions to the jury. We have examined all of the instructions very carefully, and we think that the instructions given by the court fully and fairly submitted the issues to the jury, and the jury’s finding on questions of fact is conclusive here.

The judgment is therefore affirmed.