text:
    St. Louis-San Francisco Railroad Company v. Pearson.
    Opinion delivered March 29, 1926.
    1. Master and servant—burden op proving negligence.—In an action against a railroad for the negligent killing of a locomotive fireman, brought under the Federal Employers’ Liability Act, the burden of proving the master’s negligence was upon the plaintiff.
    2. Trial—direction op verdict.—It is never proper to direct a verdict against the plaintiff except in cases where, conceding the credibility of the witnesses and giving full effect to every legitimate inference that may be deduced from their testimony, it is plain that he has not made out a case sufficient in law to entitle him to a verdict and judgment thereon.
    8. Master and servant—negligence—evidence.—In an action for the negligent killing of a locomotive fireman, evidence held to justify a finding that he met his death in a derailment caused by a broken switch point on the east side of defendant’s track.
    4. Master and servant—negligent killing of servant—instruction.—In an action for the negligent killing of a locomotive fireman in a derailment of the engine, the court’s instruction properly limited the consideration of the jury to the only ground of negligence relied upon by the plaintiff for a recovery, and left it to the jury to determine whether the evidence established this ground of negligence.
    5. Trial—general objection to instruction.—A general objection to an instruction was insufficient to raise the objection that it used the word “injury”, instead of “death”, in reference to plaintiff’s intestate.
    6. Master and servant—damages for negligent killing—instruction.—An instruction to the effect that, if defendant’s negligence caused an employee’s death, the jury may find such damages as will fully compensate therefor, was not objectionable as failing to limit the damages to the financial loss sustained where another instruction stated the proper measure of damages.
    7. Master and servant—employers’ liability act—joinder of actions.—Under the Federal Employers’ Liability Act, the right to recover for pecuniary loss to the widow and children of a deceased employee and for conscious pain and suffering endured by the deceased may ibe had in one action.
    8. Death—evidence of pain and suffering.—Evidence held to justify submission to the jury of the question whether plaintiff’s intestate endured conscious pain and suffering after receiving the injuries which resulted in his death.

      9. Death—damages—excessiveness.—W here decedent was 36 years old, with an expectancy of life of 31 years, had an earning capacity of $200 per month, left a widow and two sons, had devoted his life and earnings to the care and support of his ■family, an award of $30,000 for the pecuniary loss suffered by his family and for his conscious pain and suffering was not excessive.
    10. Master and servant—federal employers’ liability act—posthumous child.—The Federal Employers’ Liability Act, authorizing a recovery in case of death for the benefit of the surviving widow and children of an employee, held to include a posthumous child.
    11. Master and servant—federal employers’ liability act—authority of administratrix.—An administratrix appointed by the clerk in vacation was authorized to sue under the Federal Employers’ Liability Act for the negligent killing of her intestate, though her appointment was never acted upon by the probate court.
    12. .Venue—action for tort.—An action to recover damages for a wrongful death is in tort, and transitory, and as a general rule may be maintained wherever the wrongdoer can be found.
    Appeal from Lawrence Circuit Court, Eastern District; Dene II. Coleman, Judge;
    affirmed.
    STATEMENT BY THE COURT.
    This suit was brought under tbe Federal Employers’ Liability Act by Eunice Pearson, tbe widow, as administratrix of tbe estate of J. L. Pearson, deceased, for the benefit of herself and two minor children against tbe St. Louis-San Francisco Railway Company, to recover damages for tbe negligent killing of her husband, a locomotive fireman on an interstate passenger train. ' The cause of his death was a derailment which occurred while the train was passing over a switch.
    On the 11th day of November, 1923, J. L. Pearson was a fireman on a passenger train from Fort Smith, Arkansas, to Springfield, Mo. The train consisted of an engine, tender, baggage car, combination mail and smoker, chair car, cafe car, and two sleepers. The train left Fort Smith about. 5:30 a. m., and the derailment occurred at Meadows, a flag station, six miles north of Van Burén, in Crawford County, Ark. The train was running at the rate of 35 miles an hour, and left the track while going over a switch. The engine ran 305 feet from the switch point after it left the track before it came to a stop. The derailment caused the death of Pearson by his receiving a blow on the head and injuries on his body. The steam pipes in the engine burst and scalded him. Pearson was 36 years of age, and died within a short time after receiving his injuries. He left surviving him his widow, Eunice Pearson, Lloyd Pearson Jr., nine years of age, and Jack Edward Pearson, who was born about six months after the death of his father. It was the theofy of the plaintiff that the derailment was caused hy a broken switch point on the east rail on the switch at Meadows.
    W. R. Willis, a man 51 years of age, was the principal witness for the plaintiff. He was engaged in the real estate business at Van Burén, Ark., but had formerly been a conductor on a railroad for many years. He heard about the wreck of the passenger train soon after it occurred by receiving a telephone message from his sister, who lived near by, and he immediately got in his car and drove there. On account of being an old railroad man, he made an examination for the purpose of trying to determine the cause of the wreck. He looked under one of the cars and found a piece of switch point about six or eight inches long' lying at the east rail, right where the point of the switch was. He found the switch point broken off, lying right down by the side of the rail on its east side. The switch point was off of the rail that was on the east side of the track. There was a coach standing at that point, and he knew from the indications of the ground that the train had left the track right about that point. There was a little new break on the top of the switch rail, and there was an old break. The switch point was rusted where it showed it had been cracked from the bottom towards the top. There was about an inch or maybe a little more of the new break. At this point we quote from his testimony the follow-

      “Q. Now then, Mr. Willis, I will ask you to explain to the jury if that rail was broken in that manner, and when it was broken, that left exposed what kind of piece there? A. That left exposed a piece of rail. A piece of switch point with a stub end. And when the train was coming down would naturally—the flange of the other wheel would catch this stub end and mount this switch point and go between the two. si detracks. Q. Instead of the rail coming to a feather edge, then, it presented a stub face there, and the flange of the wheel pressing against the other rail would strike that stub and mount it, or split the switch? A. Yes sir. Q. That would be the logical effect in the operation of a train over the track in that condition? A. Yes sir.”
    The witness then stated that he had been engaged in railroading for twenty years, and made the examination just to satisfy himself as to what caused the accident. He laid the piece of switch point which he found under the coach on the switch stand. He does not know what became of it. Both switch rails were torn up. He noticed another piece of switch rail about two feet long that was jammed through the engine truck or baggage-car truck on the west side. It was jammed right through the bolster of the truck.
    Tom Meeks was also a witness for the plaintiff. He went to the scene of the wreck about an hour after it occurred. The witness lived at Van Burén, Ark., and saw W. R. ¡Willis, who also lived there, with a piece of switch point which he had picked up by one of the trucks. Willis said that this was the cause of the wreck, and laid the piece of the point on the switch stand over on the west side of the track. The piece of switch point was about six or eight inches long. He noticed that the under part of the switch rail had an old crack in it, and that there was a fresh break of about an inch or more at the top. He could tell that the bottom crack was an old one by the rust on it.
    S. C. Grogg, a farmer who lived near the scene of the accident, was also a witness for the plaintiff. He saw the broken switch point lying near the switch stand, and said that it was six or eight inches long. He took his cane and pushed it around a little, and a part of it looked bright and new, and part of it looked as if it were rusted and an old break. He did not know what became of the switch point.
    The evidence for- the plaintiff on the question of whether the decedent suffered conscious pain and suffering will be stated under an appropriate heading in the opinion.
    After the wreck occurred, the employees of the defendant took charge of the track and repaired it. Quite a number of witnesses were introduced by the defendant who' testified that the switch point on the east side of the track was not broken, and that the same switch rail which was there before the wreck was put back when the track was repaired. They testified positively that the point of the switch rail on the east side was not broken off. They also testified that the switch rail on the west side of the track was broken in three or four pieces, and that they could not find one of the pieces, and that the missing piece must have been six or eight inches long.
    In this connection it may be stated that the engineer of the train was not called as a witness, and that the railroad company did not have any theory of its own as to what caused the derailment. As above stated, the theory of the plaintiff was that the derailment was caused by the switch point on the east side of the track being broken off, and the defendant introduced evidence tending to show that this was not the case.
    The jury returned a verdict in favor of the plaintiff in the sum of $30,000, and from the judgment rendered the defendant has duly prosecuted an appeal to this court.

      E. T. Miller and W. J. Orr, for appellant.

      Pace é Davis, for appellee.
   Hart, J.,

(after stating the facts). When the plaintiff’s intestate was killed, he was engaged as locomotive fireman on an interstate passenger train, and.the cause of his death was a derailment which occurred while the train was passing over a switch.

The only allegation of negligence relied upon for a recovery by the plaintiff is that the defendant negligently permitted the east switch point at the place where the accident occurred to become defective, thereby causing the engine and cars of the train to be derailed.- The suit was brought under the Federal Employers’ Liability Act, and the burden of proof to establish the negligence of the defendant was upon the plaintiff. New Orleans & Northwestern Rd. Co. v. Harris, 247 U. S. 367, and St. Louis S. W. Ry. Co. v. Rogers, 166 Ark. 389.

The principal ground relied upon by the defendant .for a reversal of the judgment is that the evidence is not legally sufficient to support the verdict. Under our judiciary system it is the province of the jury to determine the credibility of the witnesses and the weight of the evidence, under proper instructions as to the principles of law applicable thereto. And the court is never justified in directing a verdict except in cases where, conceding the credibility of the witnesses, and giving full effect to every legitimate inference that may be deduced from their testimony, it is plain that the party has not made out a case sufficient in law to entitle him to a verdict and judgment thereon. St. L. S. W. Ry. Co. v. Ellenwood, 123 Ark. 428, and St. L. S. W. Ry. Co. v. Rogers, 166 Ark. 389.

The case of Railway Co. v. Morgart, 56 Ark. 213, and other cases of like character relied upon by counsel for the defendant, are not controlling under the facts of the case at bar. In the Morgart case, the stringers of a bridge had been raised from four to six inches, and this raised the rails off of the embankment next to the bridge. In other words, the rails at the end of the bridge were swinging, so that they were clear of the ground. The jury might have inferred, from the testimony of an experienced railroad man who arrived at the scene of the accident after it occurred, that the swinging rails at the south end of the bridge were the proximate cause of the wreck.

The court said that it was contrary to common observation and experience that the tender and engine with all the cars of the train could have passed over these swinging rails, and any of the cars remained on the rails south of them afterwards. The court said that the testimony carried on its face evidence of its falsity, and could not in'the nature of things be true. This was but another way of saying that it was a physical impossibility for the train to have passed over the swinging rails, and any of the cars to have remained on the track, and that the testimony of the witness was contrary to the laws of nature. Such is not the case here. There is nothing in the evidence relied upon by the plaintiff to establish negligence which is contrary to the physical facts, and the most that could be said of it is that the decided weight of the evidence tends to show the improbability of the truth of the testimony of the witnesses for the plaintiff.

W. E. Willis, a railroad man of twenty years ’ experience, was the principal witness for the plaintiff. According to his testimony, he went to the scene of the accident soon after it occurred, and, on account of his experience in working on railroads, he was prompted to try to ascertain the cause of the wreck. He had observed that the engine had left the track at the switch point on the east side of the track, and that the cars which had been derailed were on the east side of the unain track. He crawled under a coach at the point where the engine had left the track, and found a piece of switch point about six or eight inches long. It was rusted at the bottom, and there was a new break about an inch or maybe a little more at the top. This piece of switch point was lying right where it had been broken off on the east side of the track. This left a piece of the switch rail with a stub end. When the train came to this stub end, the flanges of the wheels of the engine would naturally catch on this stub, and mount on top of the switch point. This would cause the wheels to press down between the rails of the two tracks, and make what is known as a split switch. This would cause the engine to leave the track, and carry with it the rest of the train. Willis left the piece of switch point which he found on the east side of the track on the switch stand which was on the left side of the track, and does not know what became of it.

It is true that several witnesses testified that the east switch point was not broken. Evidence was also adduced by the defendant tending to show that the engine could not have run 305 feet after it had left the track at the east switch point in question, and also to show that, even .if the east switch point had been broken off as testified to by Willis, this would not have caused a split switch when the engine reached that point, and the wheels of it came upon the stub end of the switch rail. The testimony, however, of these witnesses does not go-to the extent of showing that it was a physical impossibility that the engine could not have been run 305 feet after it left the track, and that the mounting of the engine wheels upon the stub end of the switch point could not have caused a split switch.

Willis testified that the appearance of the ground showed that the engine had left the track at the east switch point. He is corroborated in this fact by the .attending circumstances. The engine and the derailed cars are all on the east side of the main track. The rails were torn up on the west side of the track at the point where Willis testified that the engine left the track. This would tend to show that as the engine left the track on the east side it pulled the cars in the direction in which it was going, and this would naturally tear up the rails on the west side of the track. It is true that the switch rail on the west side of the track was broken into three or four pieces, and one of these pieces about six or eight inches long was missing’. The jury migiit have found, however, that, if the derailment of the train had been caused by the west switch rail breaking, the engine would naturally have dropped down on that side, and the wrecked engine and cars would have been on the west side,' instead of the east side of the main track.

It is earnestly insisted that the piece of switch point testified to by iWillis was a piece of the west switch rail. The undisputed evidence, however, shows that any railroad man of experience would know the difference between a switch point for the east rail and one for the west side of the track. This would be just as discernible as would be the difference between a right and left shoe. Besides this, Willis testified that he found the piece of switch point on the east side of the track right where it had broken off, and that it fitted into the stub end of the switch rail remaining’ there. It can not be said that it was a physical impossibility for the wheels of the engine to have mounted on the stub end of the switch point, and by pressing’ down upon the rails have caused a split switch. It is a reasonable inference that, if the switch point had not had a stub end, the wheels of the engine would have gone upon it smoothly, and there would have been no occasion for them to have exerted any pressure betweén the east rail of the main track and the east switch rail. On the other hand, if there was' a stub end, the wheels would naturally mount the stub end with a jerk, and this might have the effect to pry apart the main rail and the switch rail, and thereby cause a split switch. In other words, when the wheels of the engine mounted the stub end of the switch point, the jury might have found that the sudden jar or jerk pried apart to a certain extent the rail on the main track and the switch rail, and that the continued downward pressure of the wheels of the engine and tender caused the opening between the rail on the main track and the switch rail to be further widened, and that the natural result of the continued pressure of the wheels at this point would be to cause a split switch and the consequent derailment of the engine or tender. The result of either of these running’ off of the main track or the switch track might carry with it the whole train. The fact that the engine, tender and derailed cars were found on the right side of the main track shows that the derailment was caused by some defect on that side of the track. and the jury might have deduced as a legal inference from the evidence given for the plaintiff that the derailment was caused by the broken switch point on the east side of the track in the manner testified to by the witnesses for the plaintiff.

It is next insisted that the court erred in giving instruction No. 2, which reads as follows:

“In this case you will find from a preponderance of the evidence that the deceased, J. L. Pearson, was injured while in the employ of the defendant, St. Louis-San Francisco Eailway Company, and while in the performance of his duty as a fireman on one of its engines, assisting in the operation of one of its passenger trains running from Fort Smith, Arkansas, to Springfield, Missouri, by the engine and .some of the cars leaving the track near Meadows, in Crawford County, Arkansas, and that said injury was due to the fact that the east switch point on one of the rails of the switch had been broken after having been cracked and imperfect for a period of time, causing said train to derail, and that the condition of said switch point was known to the defendant, or could have been known to it before the accident, by its making a reasonably careful inspection of this switch point before the injury, and that the condition of the switch point was unknown to the deceased, J. L. Pearson, and that said defendant thereby was guilty of carelessness and negligence that caused the injury’ to the deceased, and that the defective condition of said switch point (if you find it was defective) was the proximate cause of the injury, you will be authorized to find for the plaintiff, and assess such damages as will fully compensate for said injuries to said deceased.”

Counsel for the defendant made a specific objection to the instruction, because there is no evidence to support ■ it. What we have just said with reference to the alleged error in refusing to instruct a verdict for the defendant answers this objection.

The second specific objection to the instruction is that it indirectly tells the jury by excluding certain other allegations that this particular allegation has some evidence to support it. We do not think so; The court properly limited the consideration of the jury to the only ground of negligence relied upon by the plaintiff for a recovery, and it properly left it to the jury to determine whether the evidence established • this ground of negligence.

The third objection to the instruction is that it is a comment on the evidence and leaves the jury to decide a question of law. What we have already said answers this objection.

Finally, the instruction is objected to'because as a whole it is not a correct statement of the law under the pleadings and evidence in the case. 'This amounts to nothing more than a general objection to the instruction.’ Under this head, it is insisted that the instruction is erroneous because it uses the word “injury,” instead of “death,” with reference to J. L. Pearson. We can not see how any prejudice could have resulted to the defendant in this respect. The undisputed evidence shows that Pearson died as the result of the accident soon after it occurred. It is perfectly evident that the court used the word “injury” in its broadest sense, and that it included death. If counsel for the defendant thought otherwise, they should have made a specific objection to the instruction on this account, and, not having done so, it can not be said that the instruction was inherently wrong, calling for a reversal of the judgment under a general objection to the instruction.

It is also earnestly insisted that, under repeated decisions of the United States Supreme Court, the recovery in cases like this must -be limited to compensating those relatives for whose benefit the administrator sues as are shown to have sustained some pecuniary loss; that the damages recoverable are limited to such loss as results to them because they have been deprived of a reasonable expectation of pecuniary benefits by the wrongful death of the injured employee. In short, that the damage is limited strictly to the financial loss thus sustained Michigan Central Rd. Co. v. Vreeland, 227 U. S. 59; American Railroad Co. v. Didrickson, 227 U. S. 145; Gulf, Colorado and Santa Fe Ry. Co. v. McGinnis, 228 U. S. 173; North Carolina Rd. Co. v. Zachary, 232 U. S. 248; Norfolk v. Western Ry. Co. v. Holbrook, 235 U. S. 625; and K. C. Sou. Ry. Co. v. Leslie, 238 U. S. 599, and same case in 112 Ark. 305.

We do not think the instruction is subject to this interpretation and that it thereby violates the rule laid down by the Supreme Court of the United States. It is not an instruction on the measure of damages at all. It is an instruction on the question of whether or not the defendant was. guilty of negligence in the matter alleged by the plaintiff and relied upon for a recovery.

Instruction No. 3 immediately follows instruction No. 2, and is an instruction on the measure of damages. It reads as follows: “If the .jury find for the plaintiff they will assess damages for the widow, Eunice Pearson, and the minor children, Lloyd Pearson Jr., and Jack Edward Pearson, at such a sum of money as will reasonably compensate them for the loss of pecuniary benefits of which they were deprived by the death of J. L. Pearson, as is shown from the evidence in the case, reducing said sum to its present cash value. Also you will assess further damages for the widow, Eunice Pearson, and the minor children, Lloyd Pearson, Jr., and Jack Edward Pearson, such a sum as will reasonably compensate for the physical pain and mental anguish suffered and endured by the deceased as a result of said accident, if any, from the time of the alleged injury until his death. ’ ’

It will be observed that this instruction on the measure of damages is in accord with the rule on the question announced by the Supreme Court of the United States in the cases just cited.' If counsel for the defendant thought that instruction No. 2 was likely to confuse or mislead the jury on this point, they should have made a specific objection to it on this ground. The fact that they made several other specific objections tends to show that they did not think that instruction No. 2 was calculated to mislead the jury in the respect now contended for. When instruction No. 2 is read in connection with No. 3, which immediately follows it, we do not see how-the jury could have been misled in the respect now contended for, and we are of the opinion that, having failed to make a specific objection to instruction No. 2, the defendant is not now in an attitude to complain. St. L. I. M. & Sou. R. Co. v. Rogers, 93 Ark. 564, and Kelly Handle Co. v. Shanks, 146 Ark. 208. Therefore we hold that this assignment of error is not well taken.

Under the Federal Employers’ Liability Act it has been held that the right -to recover for pecuniary loss to the widow and children and for conscious pain and suffering endured by the deceased may be had in one suit. St. L. I. M. & S. R. Co. v. Craft, 237 U. S. 648; and K. C. S. R. Co. v. Leslie, 238 U. S. 599.

It is next insisted by counsel for the defendant that the evidence is not legally sufficient to have warranted the court in submitting the question -of conscious pain and suffering to the jury, and this we consider a very close question. S. 'C. Horn was the conductor of the train, and at the time of the derailment was in the front end of the head coach. That is to say, the car that has a mail end to it. After the derailment he went back and looked into all the coaches of -the train to see whether or not any of the passengers were hurt. He did not find any one hurt, and then went up to the engine to see whether any of the employees were hurt. He found the engineer, who said that he was not hurt, and he then asked the mail clerk and baggage man. They replied that they were not, but told him that the fireman was injured. He then went to where they were getting the fireman out of the wreck, and he was alive. He just breathed • a couple of times after the conductor got to him.

J. H. Hamilton was the principal witness for the plaintiff on this point. He was twenty-three years of age, aiid was attending the University of Arkansas, at Fayetteville. He had been to Dallas, Texas, and was on his way back to the University. The witness was asleep in his berth when the accident occurred. He got up and dressed and went to the head of the train. He saw Pearson after he had been removed from under the engine. Pearson had very little life, yet he had life. His lips, mouth and tongue were white. He seemed to be badly scalded. We quote from his testimony the following:

“Q. What was his condition as you saw it at that time? A. Very little life, yet he had life. Q. Did yon notice any effort on his part to speak, or what evidence of life did you see? A. He was breathing, trying to talk, or gasping for breath, and his lips and mouth were moving. Q. Was his tongue swollen out of his mouth? A. Swollen out some-—looked like a bunch of cotton. Q. Do you know how long he lived? A. No, I left almost instantly. Q. How long would you say, from the time you first awakened and got up to the head of the train and saw Mr. Pearson. A. I don’t remember. I was excited. I went the length of those cars. Q. What is your best judgment about the length of time, Mr. Hamilton? A. I would say between five and ten minutes. I don’t know exactly. ’ ’

C. E. Wilkins, another university student, was also a witness on this point. We quote from his testimony the following:

“Q. Did you see Mr. Pearson after he had been removed from the wreck? A. Yes sir. Q. What was his condition at that time? A. There was still some signs of life. He was moving his mouth and tongue—his chest made three or four moves. Q. In -other words, he was breathing? A. He was trying to breathe; at least he made struggles. Q. Did you notice his condition, as to whether or not he was -scalded or badly burned? A. Yes, because we was white at the time, and in a few minutes turned black as could be. Q. How long from the time you felt the impact until you arrived or saw Mr. Pearson after he had been taken out? A. Five or ten minutes, possibly it might have been longer.' I don’t think it was longer than ten minutes. Q. Did you remain there until Mr. Pearson died? A. He was dead before I left, yes; a few seconds after I arrived he died. Q. Was he scalded by the steam, and burned pretty badly? A. I imagine he was scalded—he was burned pretty badly.”

In determining the length of time Pearson lived after being injured, the jury might have taken into consideration the things done by the witnesses as well as their estimates of time. -Hence it might have found that Pearson lived longer than the period of time testified to by the witnesses.

It is fairly inferable from the testimony of Hamilton and Wilkins that Pearson died as the result of being scalded by the escaping steam. From the nature of his injuries and the description of his efforts to speak, the jury might have legally inferred that he suffered great agony in the short time he lived.

Both of the university students appear to have been intelligent young men, and not to have had any interest whatever in the present suit. Hamilton testified that Pearson was breathing, trying to talk, or gasping for breath, and that his lips and mouth were moving. We think the jury might have legally inferred that Pearson was conscious, and -that he suffered conscious pain, and not merely such pain as is incidental to death. It is true that the length of time was short, but, when the testimony is considered in the light most favorable to the plaintiff, it can not be said that it was not legally sufficient upon which to predicate an instruction on conscious pain and suffering. St. Louis S. W. Ry. Co. v. Rogers, 166 Ark. 389.

It is next insisted that the verdict is excessive. Upon this point the testimony shows that decedent was 36 years of age, and had an earning capacity of $200 a month. He had been working for the defendant for a number of years. His personal expenses when away from home amounted to between $25 and' $30 per month. He left surviving him his widow, one son nine years of age and another who was born about six months after his death.' The testimony showed Pearson to have been a very energetic man, and to be very devoted to his family. He was in all respects a good citizen, and devoted his life and earnings to the support and care of his family. His life expectancy was shown to be 31.1 years. While the age of his wife was not shown, she was a witness in the case, and the jury could judge her age to some extent by her appearance, and other facts and circumstances in the record tend to show that she was a young woman. Under these circumstances it can not be said that the jury took into consideration something which they ought not to have taken, or failed to take into consideration something which they ought to have taken, in fixing the amount of damages.

Hence we do not think that it is a case where the verdict should be set aside merely on the ground that the damages appear excessive.

It is next insisted that the court erred in allowing a recovery for the benefit of J. E. Pearson, who was not born until six months after the death of his father. The Federal Employers ’ Liability Act gives a right of action in case of death to the personal representative, “for the benefit of the surviving widow or husband and children of said employee.” We think it would be too narrow a construction to say that the children meant by the act were those living at the time of the death of the employee. But we think that the word “children,” as used in the act, means all children who were the fruits of the marriage of the deceased employee and the surviving spouse, and who are dependent upon such employee. There would at least be as much necessity for providing for a child born after death as for those who are already in existence at the time of the death of such employee. The purpose of the statute was evidently to provide for those who were dependent upon the employee, and a child born after death would naturally fall within this class.

It is next insisted that the record shows that Eunice Pearson was appointed administratrix of the estate of J. L. Pearson, deceased, by the clerk in vacation, and that there can be no recovery because the record does not show that the vacation appointment was confirmed by tbe probate court when it next convened. Our statute provides that it shall be the duty of the courts of probate in term time, or the clerics- thereof in vacation, subject to the confirmation or rejection of the court, to grant letters testamentary and of administration. Crawford & Moses’ Digest, § 4.

Letters of administration granted in vacation are not, under the terms of the statute, limited in point of time, so as to continue only to the succeeding term and then expire, unless confirmed by the court. They are subject to the confirmation or rejection of the court, and it is the duty of the court to pass upon them; but they are valid until they are rejected. Potter v. Adams, 24 Mo. 159; Macey v. Stark, 116 Mo. 481; and Rayburn v. Rayburn (Sup. Ct. of Appeals W. Va.), 12 S. E. 493. After taking the oath, and giving bond as required by statute, Eunice Pearson became temporary administratrix of' the estate of J. L. Pearson, deceased, and as administratrix of right as well as in fact, for the time being, she could exercise all the powers and perform all the duties required of her by law until her appointment was rejected by the probate court.

Again, it is insisted that no recovery can be had because the record shows that J. L. Pearson resided at Springfield, Missouri, at the time of his death. That his death occurred in Crawford County, Ark., and the letters of administration were issued in Sebastian -County, Ark. As we have already seen, the Federal Employers ’ Liability Act in the case of the death of an injured employee provides that the action may be brought by the personal representative for the benefit of the surviving widow or husband and children of such employee. The existence of concurrent jurisdiction in the State courts is clearly established. Second Employers’ Liability Cases, 223 U. S. 1; Kansas City Sou. Ry. Co. v. Leslie, 238 U. S. 599; St. L. & S. F. R. Co. v. Conarty, 106 Ark. 421; and Midland Valley Rd. Co. v. Lemoyne, 104 Ark. 327.

An action to recover damages for wrongful death is a tort, and is not local but transitory, and can as a gen eral rule be maintained wherever the wrongdoer can be found. Stewart v. Baltimore and Ohio Rd. Co., 168 U. S. 445, and, Little Rock & Ft. Smith Ry. v. Townsend, 41 Ark. 382.

The personal representative of the decedent is merely a nominal plaintiff, and the damages recovered are for the benefit of the surviving spouse and the children of the deceased employee. The fruits of the judgment are distributed under the provisions of the statute in this case to the widow and children of the deceased employee. The relation of the administrator to the fund, when recovered, is not that of the representative of the deceased, but he is a mere trustee for the widow and children. Hence there is no merit in the contention that the deceased was not a resident of the State of Arkansas or Sebastian County at the time of his death.

It follows that the judgment must be affirmed.


source: Caselaw Access Project

author: Per. Curiam.

license: Public Domain

text:
    Cain v. CarlLee.
    Opinion delivered April 5, 1926.
    1. Costs—enforcement on appeal.—A judgment for costs entered in the Supreme Court on appeal may be enforced at any time by execution issued by the clerk, even though the mandate was not filed in the lower court, as provided by Crawford & Moses’ Dig., § 2177.
    2. Costs—retaxing on appeal.—The Supreme Court on appeal has no authority to retax the costs which accrued in the circuit court, even those which are involved in making the record of the lower court for the appeal; hut, in making the transcript of the record in order to certify it to the Supreme Court, the clerk of the circuit court acts as an officer of the Supreme Court, and his costs therefor may he retaxed in the higher court.
    3. 'Costs—jurisdiction to retax on appeal.—The Supreme Court has no jurisdiction to retax the costs of the court stenographer in the preparation of the record for appeal, as the stenographer acts, as an officer of the circuit court.
    4. Costs—delay in moving to retax.—The right of a party to have the costs retaxed must be seasonably asserted; and, where the appellee in a case which has been twice appealed to the Supreme Court waited more than a year after filing of the mandate of the Supreme Court on the first appeal therein and more than three months after filing of the second mandate, the right will he denied.
    Appeal from Woodruff Circuit Court; E. D. Robertson, Judge;
    motion to retax costs denied.
   Per. Curiam.

There have been two appeals in this case, which is a contest instituted by appellant against appellee for the office of county judge of Woodruff County, and the judgment of the circuit court has, on each appeal, been reversed and the cause remanded for a new trial. Judgment was rendered in each instance in favor of appellant for the costs of the appeal. The mandate of this court was filed, on the first appeal, in the lower court on March 17, 1925, within a short time after the decision was rendered, and the mandate on the last appeal was filed in the lower court on December 22, 1925. Executions were thereafter issued by the clerk of this court in favor of appellant for the costs which accrued on each appeal. The writs of execution were issued to the sheriff of Woodruff County and by him levied on property of the appellee. The fee bills for the costs of the appeal were certified in the transcript by the clerk of the lower court, and the executions issued by the clerk of the Supreme Court embraced only the items of cost certified up by the clerk of the lower court and the additional costs which accrued here after the transcript was lodged. In other words, the clerk of the trial court on each appeal certified the cost of the transcript and the cost of the bill of exceptions and also the cost of the transcript of the proceedings furnished by the court stenographer.

There is a special statute applicable to the First Judicial District, which provides that the stenographer shall, upon application, furnish a transcript of the oral proceedings and a carbon copy thereof, one of which shall be used by the clerk in the transcript sent up to this court. A controversy has arisen as to the amount of the stenographer’s fees for making the transcript— the contention of appellee being that the amount certified up by the clerk is excessive. After the execution was issued, appellee applied to the circuit court to retax the costs by reducing the stenographer’s fees to the correct amount as claimed by appellee, and the circuit court made an order reducing those fees. Appellee has also filed in this court a motion to retax the costs on each appeal and to quash the executions as to the excessive amount of costs. No other items are involved in the cost bill except those relating to the stenographer’s fees for making the transcript.

It is contended in the first place that the clerk of this court had no authority to issue execution, and counsél rely upon the following statute in support of that contention:

“■Section 2177. The Supreme Court may reverse, affirm or modify the judgment or order appealed from, in whole or in part, and as to any or all parties, and, when the judgment or order has been reversed, the Supreme Court may remand or dismiss the cause and enter such judgment upon the record as it may in its discretion deem just. Provided, when a cause is reversed and remanded the mandate must be taken out and filed in the court from which the appeal was taken by the plaintiff within one year from the rendition of the judgment reversing the cause; and immediately upon the expiration of the period of one year after the judgment of reversal is entered, when the mandate is not taken out, the clerk of the "Supreme Court shall, upon application of the party entitled thereto, issue an execution for all costs accrued up to the date of reversal in the Supreme Court and in the court from which said cause has been appealed.” Crawford & Moses’ Digest.

Counsel construe this statute to mean that the authority of the clerk of this court to issue an execution m favor of an appellant for the costs of appeal, where there has bepn a reversal of the judgment, is limited to instances where the appellant fails to take out a mandate within one year from the date of the reversal, and that, if the mandate is taken ont and filed in the lower court within one year, execution upon the judgment for costs of the appeal must be issued from the lower court. This is not a correct interpretation of the statute. The judgment for costs of the appeal is the judgment of this court, and remains such and can be enforced here at any time •by execution issued by the clerk of this court. The purpose of the statute quoted above was to authorize the issuance of an execution from this court, even though the mandate is not filed within a year. But it does not lessen the power of the clerk to issue an execution in the enforcement of the judgment of this court at any other time. The decision of this court in Sturdivant v. Reese, 86 Ark. 452, while not directed to the particular question now under consideration, supports the views now expressed.

This court has no authority to retax the costs which accrued in the circuit court, even as to those costs which are involved in making the record of the lower court for this appeal. The clerk of the lower court, in making the transcript of the record in the circuit court in order to certify it to this court, acts as the officer of this court, and is under our control; therefore this court has the authority to tax or retax such costs. The court stenographer, however, acts altogether as. an officer of the circuit court, and his services are limited to the preparation of the record for that court. His fees in making the transcript are included in the costs of the appeal, but his service is performed in making the record of that court. Therefore the jurisdiction to tax or retax the costs of the stenographer is in the trial court.

Appellee applied to the circuit court, and an order was made reducing the costs of the stenographer, and that order is presented to us with appellant’s petition, but this court has reached the conclusion that appellee has forfeited the right to have the costs retaxed and the certificate of the clerk to that extent modified by waiting for a considerable lapse of time and until after the execution is in the hands of the sheriff. It is the duty of the party to act promptly in order to secure such a right. The certificate of the clerk is presumptively correct, and, if not deemed correct, an adjudication of the matter should he sought within a reasonable time. Appellee has waited more than a year after the filing of the first mandate of this court and albout three months after the filing of the last mandate. A neglected right of this kind must be treated as an abandoned right, and as one which should be denied when not seasonably asserted.

The motion in each of the petitions of appellee is therefore overruled.


author: McCulloch, C. J. Hart, J.,

text:
    Jones v. State.
    Opinion delivered April 5, 1926.
    1. Venue—contempt proceeding.—A proceeding to punish for contempt one alleged to have violated an order restraining certain unlawful acts in connection with a strike of coal miners is not an action “for an injury to real property,” which must be brought in the county where the land is situated, but is a transitory action which may be brought in any court having jurisdiction of the subj ect-matter.
    2. Conspiracy—evidence.—Evidence held insufficient to establish a conspiracy between defendant and others to commit unlawful acts in violation of the court’s injunction.
    3. Contempt—modification of sentence.—Where appellant led a large number of striking miners and their wives, with banners having slogans inscribed thereon, in technical violation of an injunction prohibiting such congregating upon the mine property, .but without any acts of violence,- an order punishing appellant by a fine of $500 and imprisonment for three months was excessive, and will be modified by reducing the punishment to a fine of $50.
    Appeal from Sebastian Chancery Court, Fort Smith District; J. V. Bourlancl, Chancellor;
    judgment modified.

      B. P. Freeling, C. E. B. Cutler and Q. L. Grant, for appellant.

      H. W. Applegate, Attorney General, John L. Carter, Assistant, Webb Covington and Evans & Evans, for appellee.
   McCulloch, C. J.

This is a proceeding for punishment for civil contempt in violation of an injunction issued by the chancery court of Sebastian County, Fort Smith District, the record having been brought up here both by appeal and by certiorari.

On June 19, 1925, three coal mining companies owning and operating separate mines in the Greenwood District of Sebastian County—Greenwood Coal Company, Mammoth Vein Colliery Company, and Backbone Coal Company—jointly filed a complaint .in the chancery court of Sebastian County, Fort Smith District, seeking to restrain the appellant (petitioner) and others from interfering with the operation of the mines. After alleging the ownership and operation by the plaintiffs of the separate mining properties and setting forth the controversy between the plaintiffs and the defendant concerning the scale of wages to be paid in the operation of the mines, it was charged in the complaint that the defendants were interfering with the operation of the mines and causing great injury to the business of plaintiffs by using violence towards their employees so as to intimidate them into refraining from working in the mines. There are also allegations in the complaint that depredations were being committed upon the mining properties and injuries to the property being done. The prayer of the complaint was that defendants be restrained “from destroying or attempting to destroy any of the property or property rights of these plaintiffs, and from going upon their property and from intimidating or interfering with any of their agents, representatives or employees in any manner, and from coercing or attempting to coerce, in any manner, any person in the employ of these plaintiffs, or any one seeking employment, or with any person or persons having declared an intention to seek employment in the mines of these plaintiffs, and from doing or performing any act, or attempting to do or perform any act, tending to interfere with’ the operation of-their said mines, or the conduct of their business in any respect whatever.” The suit was against the organization of miners known as District No. 21, United Mine Workers of America, and certain local organizations thereof in Sebastian County, and also against numerous defendants, including appellant, Comer Jones, who was at that time vice-president of District No. 21, United Mine Workers of America.

The controversy between the mine operators and the union miners arose over the wage scale. It appears that the mines were then in operation under a scale of wages adopted in the year 1917, referred to as the “1917 scale.” In the year 1924 a new scale was adopted, allowing higher wages to the miners, and there was operation under that scale for a short time, but, in the early part of the year 1925, the operators discarded the 1924 scale and went back to the 1917 scale. The unions refused to recognize or abide by the 1917 scale, and a strike resulted, the operators insisting on the 1917 scale of wages, and the union miners insisting on the 1924 scale. At the commencement of the action, the chancery court issued a temporary injunction, which was immediately served on the officers of District No. 21 and also upon each of the individuals named as defendants. The order contains six clauses, and appellant is charged with violating two of them, which read as follows:

‘ ‘ 2. From intimidating or indulging in any conduct calculated to intimidate the officers, agents or employees of the plaintiffs or any person or persons seeking employment of the plaintiffs, and from following or surrounding the officers, agents or employees of the plaintiff or persons seeking employment of the plaintiffs, for the purpose of annoying or interfering with any such person or persons, while such person or persons are engaged in the performance of their duties for the plaintiff, or otherwise.
“4. From congregating in large or small numbers at, or near, the place of business of the plaintiffs, or the home or abode of any of its officers, agents or employees, or any person or persons seeking employment of plaintiffs, or on or near any of the property owned and controlled by plaintiffs, as described and set forth in the complaint herein, and from congregating upon any road or highway, traveled by the officers, agents or employees of plaintiffs, for the purpose of intimidating, through force of numbers, any officer, agent or employee of the plaintiffs, of any person or persons seeking employment of the plaintiffs, and thereby preventing them from continuing in the service of plaintiffs or from entering their employ. ’ ’

Appellant and certain other defendants in the original action were cited for contempt upon the affidavit of R. A. Young, the superintendent of plaintiff companies, filed on August 3, 1925, alleging violation of the injunction by appellant on August 1, 1925.

It is alleged in the affidavit that appellant "wilfully and knowingly violated paragraphs two and four of said restraining order, and that the said Jones headed a procession of about one hundred and fifty women and marched to the mine of the plaintiff, Greenwood Coal Company, located near the town of Greenwood, Arkansas, and with intent to violate ■said restraining order, entered upon the premises owned and controlled by the said plaintiff,- and, for the purpose of showing his contempt for the orders of the court, entered upon said premises and led said procession to the mine and place of business of the said plaintiff, and in doing so the said Jones fully intended to and did intimidate the officers and employees of the said plaintiff, all in violation of the restraining order as aforesaid, and in violation of the rights of plaintiff. ” It is also alleged in the affidavit that on August 1,1925, the appellant and one Robertson, acting in concert, violated the injunction by causing one Frank Price to commit certain acts in intimidation of the agents and employees of the plaintiffs.

Appellant appeared before the court on the day to which he was cited to appear and filed an answer containing a plea to the jurisdiction of the court in the original action, and also containing appropriate denials of the charge of contempt in violating the injunction. The court treated appellant’s plea to the jurisdiction as a demurrer and overruled the same, and the trial proceeded upon the issues as to the alleged act of appellant in violating the injunction of the court.

After hearing the testimony, the court made a finding that appellant was guilty of violating the injunction, and imposed punishment of a fine of $500 and confinement for three months in the county jail.

There is first presented the contention of appellant that the chancery court in the Fort -Smith District of Sebastian County was without jurisdiction, for the reason that the property of the plaintiffs was situated in the Greenwood District. Counsel rely upon the statute (Crawford & Moses’ Digest, § 1164, 4th sub.) fixing the venue “for an injury to real property” in the county in which the subject-matter, or some part thereof, is situated. In other words, counsel contend that this is an action to recover on account of “anInjury to real property”-—-an action to prevent injury to real property— and that, the two districts of Sebastian County being the same as separate counties for the purpose of determining the jurisdiction of the courts (Jewett v. Norris, ante p. 71), the chancery court __ of the Fort Smith District was without jurisdiction. TCounsel are entirely mistaken in their estimate of the subject-matter of the litigation. It is true that the complaint contains allegations concerning injury to plaintiff’s real property, but this is alleged merely as an effect upon the operation of the business of coal mining by the plaintiffs, and the primary purpose of the suit is to restrain the unlawful interference with plaintiff’s business of coal mining.) The effect of the court’s final decree, when rendered, will act in restraint of the -defendants in their personal conduct towards the business and property of the plaintiffs; hence it is a personal action and not one to recover for an injury to real property. In other words, plaintiffs are not suing to recover for a trespass upon land, but they are seeking' equitable relief against an alleged unlawful interference with tbeir business. No citation of authority is necessary to support the obvious principle that the action is transitory, and that any chancery court which obtains jurisdiction of the person of the defendants acquires jurisdiction of the subject-' matter.

The theory of the prosecution was, and is, that there was a conspiracy on the part of the officers of District No. 21 and the other union miners to make use of violence and intimidating methods towards the officers and agents of the coal companies and the non-union miners working in the mines, so as to compel the coal companies to accede to the demands of the unions and to restore the 1924 wage scale. The chancellor permitted the testimony to take a very wide range, so as to cover the conduct of the striking miners in two of the States covered by District No. 21— Arkansas and Oklahoma. The prosecution was permitted to introduce testimony concerning acts and conduct of the miners in and about the coal mines in both States. There was evidence establishing the fact that the strike was on at all the mines in Arkansas and Oklahoma, and that there were unlawful acts of intimidation and depredation committed at many of the mines. There were public gatherings of union miners which women and children largely attended, and speeches were made inciting the miners to firmness and aggressiveness in insisting upon their claims. Public prayer meetings were held, it seems, for the purpose of giving expression to the insistence of the union miners in regard to their asserted rights. There were street processions with banners bearing mottoes which indicated the purpose of the strike and the attitude of the miners towards it. There was evidence that on some occasions the miners and the women and children, in sympathy with them, flung insults at the non-union miners working in the mines. There were two nonresident speakers brought into the territory by the unions, one man named Fowler, from Pennsylvania, and another man named Michael, who made speeches at various meetings and used, it is claimed, inflammatory language calculated to incite union miners to violence. Some of these meetings were at mines in Sebastian County and some in Franklin and some in Johnson County. The witnesses testified that these two men,' in their public speeches, advised the miners to “put the women forward” as the effective method of enforcing their demands, and advised that the men support the women in their efforts. All of the witnesses who testified, however, concerning the speeches of these two men, testified that they stated that they had respect for the courts and for the law, and advised the miners not to disobey the injunction. Neither of these two men were arrested on the charge of contempt, and it appears that both of them left the State before warrants could be served. There is no proof that appellant Jones attended any of the meetings or that he participated in any gatherings or processions or in any acts of violence or advised or encouraged any of them, the testimony against him being confined to his participation in a meeting and the procession at Greenwood on Saturday, August 1, 1925.

We are of the opinion that the prosecution has failed to establish a conspiracy between the appellant' and other persons to commit unlawful acts in violation of the court’s injunction. We have often decided that conspiracy to commit unlawful acts may be proved by circumstantial evidence as well as by direct testimony, and that a conspiracy may be inferred from proof that two or more persons pursued the same unlawful objects, each doing a part, so that their acts, though apparently independent, were in fact connected. Chapline v. State, 77 Ark. 444; Parker v. State, 98 Ark. 575; Sims v. State, 131 Ark. 185; Pritchett v. State, 160 Ark. 233. Those decisions' were in criminal prosecutions where the court was testing the legal sufficiency of the evidence, but in the present case we are trying the facts de novo as they appear in the record for the purpose of determining whether or not the decree of the chancery court is supported by the evidence. In other words, we are now ascertaining not only the legal sufficiency but the weight of the evidence in determining whether or not appellant should be punished for contemptuous conduct in disobedience of the temporary injunction issued by the chancery court. 'Conceding that a bare .inference might in some degree be indulged that appellant joined all the other officers of District No. 21 and the union miners generally in' a common undertaking to adopt means whereby the operators could be induced to restore the 1924 scale, yet the testimony is not sufficient to connect appellant with ■ the remotely disconnected conduct of individuals who are shown to have exceeded the limits placed upon their activity by the court’s injunction. There is no proof, as we have already seen, that appellant actually participated in any act or declaration of violence, unless it be found in his conduct at Greenwood on August 1, 1925, which will be discussed later, and it would be, we think, an extreme inference to say that he joined in a conspiracy to do those things in the absence of proof that he-was present at any of the other meetings or at any time when acts of violence were committed.

On August 1,1925, there was a meeting of the miners, and especially of the women, at Greenwood, near which place the mine of the Greenwood Coal Company is situated. The meeting was held on the public square in the town of Greenwood, and there was a very large crowd in attendance. Appellant Jones made a speech at the meeting from the platform. The meeting was held about 4 -.30 in • the afternoon. Several witnesses were introduced who testified concerning this meeting, but none of them heard appellant’s -speech, and there is no testimony in the record at all as to what he said or did on that occasion, further 'than the fact that he was observed speaking from the platform. There is no testimony that any other speeches were made at the meeting except that of appellant. Nor is there any evidence of any violent conduct or declarations at that meeting.

J. G. Puterbaugh, the president of the plaintiff coal companies, and R. A. Young, the superintendent, in anticipation of violent or disturbing conduct on tbe part of tbe miners, both went to Greenwood on the day in question, and they invited tbe sheriff of tbe county to go for tbe purpose of preventing violence. Shortly after the meeting disbanded a procession was formed, composed of about two hundred women and a few men, and this procession, carrying banners, was led by appellant to one of tbe mines near Greenwood. According to tbe testimony, appellant carried a United States flag, and others carried a large banner, or streamer, with tbe name “United Mine ¡Workers of America” on it, some of tbe banners bearing the slogan, “Down with tbe 1917 scale,” and various other legends, and one of tbe banners was inscribed, “No scabs for us.” The sheriff testified tliat, as this procession was being formed, be spoke to several of tbe men and requested them not to go to tbe mines; that some of them asked him about tbe parade, and be told them that, so far as he knew, that would not constitute, a violation of tbe injunction, but be advised tbe men not to go on tbe mine property. He testified that be did not have any conversation with appellant Jones that day. Tbe parade passed along tbe public road in tbe direction of the mine, and when it reached to a distance of about a quarter or an eighth of a milfe from tbe mine tbe procession baited for a few moments and then turned into tbe mine property, along a private road used as an approach to tbe mine. There is no proof of any demonstration of tbe participants in tbe parade except tbe carrying of tbe banners as before stated. Both Puterbaugh and Young were at this mine at tbe time, and, as the procession approached, Young went inside of tbe wash-room to use the telephone in communicating with tbe sheriff. Puterbaugh remained on tbe outside and waited for tbe procession to come up. All tbe testimony as to what occurred there comes from Mr. Puterbaugh, who was introduced as a witness by tbe prosecution. He testified that tbe procession came up to within about one hundred feet of the tipple of the mine, and that appellant, when be came in speaking distance, bowed to Puterbaugh, and made the following inquiry, “Where is Robert?” meaning Mr. Young. Puterbaugh replied that Young was in the engine house, and added (speaking to appellant), “You have no right on this property. You are violating the law and the court’s injunction by coming on this property with a crowd of people.” Appellant then asked Puterbaugh whether objection was made, and Puterbaugh replied to appellant that he was trespassing on the company’s property. Appellant immediately, and without any one speaking further, turned the procession across the railroad track and back to town. Puterbaugh testified that there was nothing else said or done.

The proof thus establishes the fact that appellant led the procession onto the property of the coal company. It will be observed from perusal of the paragraphs of the injunction hereinbefore copied that there is no restraint from merely congregating at or near the place of business of the plaintiffs, or on or near the property owned and controlled by the plaintiffs, but the inhibition is against the doing of those things “for the purpose of intimidating through force of numbers any officer, agent or employee of the plaintiffs, or any person or persons seeking employment of the plaintiffs, and thereby preventing them from continuing in the service of plaintiffs or from entering their employ. ’ ’ The striking miners had the legal right to make use of peaceful means to give publicity to their claims and to induce support in their own behalf. Local Union No. 313 v. Stathakis, 135 Ark. 86. In the interpretation of the temporary injunction issued by the chancery court we must assume that that court did not intend to deny the union miners the exercise of their legal rights as declared by this court. Hence we construe the meaning of the court’s order to be that the miners were restrained from going upon the property of the operators in a menacing attitude, so as to intimidate the employees there at work. The entry upon the mine property by the procession, composed of union miners and their ..women .’sympathizers carrying banners with the slogans and legends inscribed thereon, was, in fact, in the nature of a menace, and constituted a violation of the injunction—-only a technical violation, we think,—but the conduct of the appellant and the other participants, in the entire absence of menacing words or other acts than the mere entry upon the land, negatives any actual intention to commit an act of violence in disobedience of the injunction. The participants are theoretically presumed to have intended what their conduct indicated, an intention to induce, by the use of epithets, an acquiescence in their claims, hence there has been, as before stated, a technical violation of the injunction. But we think, that the proof shows that there was no actual intention to intimidate, and that therefore the technical violation of the injunction does not call for severe punishment. The evidence, as*we have already seen, shows that nothing in the way of actual intimidation was attempted. Nothing else was done by any member of the crowd except to carry the banners. Appellant, in approaching Mr. Puterbaugh, did so in a most respectful manner, according to Puterbaugh ’s testimony. He bowed, and asked for Mr. Young, with whom, it seems, he was well acquainted. The testimony of Mí. Puterbaugh does not indicate that the inquiry for Young was made in any threatening manner, and, as soon as appellant was informed where Young was at the time and objection was made to his presence at the mine, appellant immediately led his crowd away. There is proof that, later during the day and after the procession had disbanded, other persons at Greenwood used insulting language towards officers and agents of the company, but there is no proof to connect appellant therewith. On the contrary, it appears that appellant had left the scene when those things happened.

The chancellor was correct in finding that his injunction had been violated, and, of course, even a technical violation called for some degree of punishment. We are of the opinion, however, that the punishment was too severe, there being no actual intention to show disrespect of the court or its process, Our conclusion is that the imposition of a fine of fifty dollars would be sufficient punishment for the technical violation of the injunction, and the decree is modified to that extent. It is so ordered.

Hart, J.,

(dissenting). Gomer Jones was a party to the injunction proceedings, and was vice president of District No. 21, United Mine Workers of America. The record shows that he knew what he was about, and that he was guilty of wilful disobedience to the order of injunction, if in fact he disobeyed it, and the punishment would not be excessive. In passing, it may also be ’said that, in contempt proceedings for violating an injunction, I believe it is better to follow the rule laid down by the Supreme Court of the United States, to the effect that the guilt of the defendant must be established 'beyond a reasonable doubt, because it is a criminal contempt. Gompers v. Buck Stoves, etc, Co., 221 U. S. 418, 34 L. R. A. (N. S.,) 874; Gompers v. United States, 233 U. S. 604, Ann. Cas. 1915D, p. 1044; and Staley v. South Jersey Realty Co., 83 N. J. Eq. 300, 90 Atl. 1042, Ann. Cas. 1916B, p. 955.

My dissent, however, is based upon the ground that there is nothing in the record to show thacfc Jones was guilty of contempt by violating the order of injunction. It is true that the order is very broad and comprehensive; but I do not think it was intended, or that the words used indicate, that the defendants were enjoined from going upon the premises of the plaintiffs except for the purpose of intimidation or injury to their employees or property. Upon this point, the order of injunction comprises six sections. Section one enjoins the defendants from assau¡j±ng, attempting to assault, threatening or using offensive language toward any employee of the plaintiffs or any one seeking employment from them.

Section two enjoins the defendants from intimidating or indulging in any conduct calculated to intimidate the employees of the plaintiff, or from following or surrounding them or any person seeking* employment from the plaintiffs, for the purpose of interfering with any such person or persons in the discharge of their .duties as such employees.

Section three enjoins the defendants from following any employee of the plaintiffs, or any person seeking employment from them, to their homes, against their will; for the purpose of annoying or intimidating them with respect to their employment by the plaintiffs.

Section five enjoins the defendants from enticing the employees of the plaintiffs, or any person seeking employment from them, by force, threats and intimidation, to leave or refuse to enter the service of the plaintiffs, upon the ground that plaintiffs are not conducting their business as desired by the defendants.

■Section six enjoins the defendants from destroying or attempting to destroy property of any kind of the plaintiffs, and from attempting to destroy or interfere with, in any manner, any such property.

I do not think that the record shows that the provisions of any of these sections were violated by Jones.

Section four reads as follows: ‘ ‘ From congregating in large or small numbers at or near the place of business of the plaintiffs, or the home or abode of any of its officers, agents or employees, or any person or persons seeking employment of plaintiffs, or on or near any of the property owned and controlled by plaintiffs, as described and set forth in the complaint herein, and from congregating upon any road or highway traveled by the officers, agents, or employees of plaintiffs, for the purpose of intimidating, through force of numbers, any officer, agent or employee of the plaintiffs, or any person or persons seeking employment of the plaintiffs, and thereby preventing them from continuing in the service of the plaintiffs or from entering their employ.”

A careful consideration of this section leads me to the conclusion that Jones did not violate any of its provisions. In reaching this conclusion I believe that the words, “for the purpose of intimidating, through force of numbers, any officer, agent or employee of the plaintiffs, or any person or persons seeking employment of the plaintiffs,” modify and refer to each of the preceding- clauses in the section, and not merely to the clause next preceding the words quoted.

The learned chancellor certainly did not intend to enjoin them from congregating in large or small numbers near the place of business of the plaintiffs or near the homes of its employees or the homes of persons seeking-employment from the plaintiffs, regardless of their intention in so doing. This would place the order of injunction in direct conflict with the principles decided in Local Union No. 313 v. Stathakis, 135 Ark. 86; and it cannot-be assumed that the learned chancellor had any such intention. Every situation which could result in harm to the employees of the plaintiffs or persons seeking employment from them, or in injury to their property, was met in the injunction, and I cannot think that the learned chancellor meant to - enjoin the defendants from congregating- in large or small numbers at or near the business of the plaintiffs or their homes, for a peaceful or lawful purpose. It will be noted that the injunction is directed with equal force against large or small numbers and at places near the business place of the plaintiffs and the abodes not only of its employees but of those seeking employment. In short, I think the injunction was only against such assemblages when they were for the purpose of intimidation or interference with the business of the plaintiffs; and I find no proof in the record of any such purpose on the part of Jones.

Mr. Justice Humphreys authorizes me to state that he concurs in the views here expressed.


author: McCulloch, C. J.

text:
    Norsworthy v. Hicks.
    Opinion delivered April 5, 1926.
    Reformation of instrument—mistake—evidence.—Under th'e rule that the mistake which will entitle a party to have a deed reformed must be established toy clear and convincing evidence, held that the plaintiff has failed to establish such mistake.
    Appeal from Union Chancery Court, Second Division; George M. LeCroy, Chancellor;
    affirmed.

      Betts & Betts, for appellants.

      Mahony, Yocum & 8aye, for appellee.
   McCulloch, C. J.

Appellant instituted this action in the chancery court of Union County to establish and quiet his title to a lot containing one acre in the city of El Dorado. The action was instituted against John Bradley, appellant’s stepson, but, after Bradley filed a disclaimer, appellee Hicks was made defendant as Bradley’s grantee.

Appellant is a colored man, and, prior to the year 1898, he intermarried with a woman named Mandy, who was the mother of John Bradley by a former marriage. The'lot in controversy was purchased from B. B. Bras-well, and a conveyance was made by Braswell to appellant’s wife, Mandy, on November 11,-1898. The consideration for the deed was the sum of $12.50, recited in the deed as having been paid. The contention of appellant is that he purchased the land from Braswell and paid the consideration, hut that he is illiterate, and that the deed was made to his wife, either by fraud or by mistake. Appellant and his wife occupied the premises until the latter’s death in the year 1918, and appellant continued to occupy the premises until his right to do so was challenged by appellee Hicks, who was the grantee of John Bradley, and then appellant instituted this action in April, 1921.

Appellant testified that he purchased the land from Braswell, and paid the consideration of $12.50, and that he and his wife, Mandy, and Braswell went to the office of the circuit clerk to get W. J. Pinson, then circuit clerk, to prepare the deed, and that the deed was prepared by Pinson. He testified that, while Pinson was preparing the deed, he sent him (appellant) to the bank to get a revenue stamp to put on the deed, and when he returned with the stamp the deed had been prepared, and that, as he could not read himself, he did not know that the deed was made to his wife, and that he did not ascertain that fact until after his wife’s death and the oil boom began at El Dorado. He testified that he had always paid the taxes on the land since it was purchased, and built a house on it.

Braswell was introduced as a witness, and testified that he sold the lot to appellant, but does not know why the deed was made to appellant’s wife—tÉat he does not remember about that, but that appellant bought the lot and paid the money.' The witness stated tha-t he could not remember what, if anything, was said as to who should be the grantee in the deed.

Other witnesses testified at the instance of appellant as to conversations with Mandy, in which she directed them to go to her husband with reference to matters pertaining to the property.

"W. J. Pinson testified concerning the execution of the deed, and stated that he had no present recollection at all of the transaction, but recognized the deed on account of its being in his own handwriting. He testified also that, while he had no recollection as to the execution of the deed, he knew that he would not have made the deed out to Mandy, appellant’s wife, unless he had been instructed by the proper parties to do so, and that it was his invariable custom to read deeds over to parties and explain them, and he presumed that he did so in this case.

Upon this testimony the chancellor found in favor of appellee, and dismissed appellant’s complaint for want of equity.

Appellant’s grounds for relief are based on the charg*e that there was either fraud or mistake in the preparation of the deed, or that he is entitled to have the land impressed with, a resulting trust by reason of the fact that he furnished the consideration. Before he is entitled to relief at all on either of those grounds, he must establish his right thereto by evidence which is clear and convincing. Welch v. Welch, 132 Ark. 227. There is no proof whatever of actual fraud in the execution of the deed. Appellant himself does not contend that there was any fraud perpetrated on him, and the testimony of Braswell and Pinson, while of a negative nature, is sufficient to show that no fraud was perpetrated. Nor is the testimony sufficient to establish a mistake in the execution of the deed to Mandy instead of to appellant, at least the testimony is not clear and satisfactory. Braswell does not remember any details of the transaction except that he sold the land to appellant, and that the latter paid the small amount of consideration, but the inference from his testimony is that he made the deed, or intended to make it, to the person to whom he was directed to make it. Pinson has no present* recollection on the subject, but his testimony tended to show that he made no mistake in the preparation of the deed, and prepared it in accordance with his instructions and read it over to the parties. Appellant does not testify that he told either Pinson or Braswell to make the deed out to him and not to his wife. His testimony is silent on the subject, and he merely says that he did not know that it was to be made to his wife, or that it had been made to her, until after her death. If the deed was not the result of fraud or mistake, then there is no resulting trust established, for, even though appellant paid the price, if he consented for the deed to be made to his wife, the presumption is that he intended it as a gift. It devolved on him to establish, by clear and satisfactory evidence, that he did not advance the money as a gift.

¡We cannot say that the chancellor erred in finding that appellant’s claim was not supported by sufficient evi dence. .

Affirmed.


text:
    State v. White.
    Opinion delivered April 5, 1926.
    1. Statutes—implied repeals.—While implied repeals of statutes are not favored, there will he an implied repeal either where the provisions of two acts are in irreconcilable conflict, to the extent of such conflict, or where the Legislature takes up the whole subject anew and covers the entire subject-matter of the prior statute.
    2. Convicts—working felons on county roads.—Acfs 1909, p. 607, relating to the working of felons on the county roads, was repealed by Acts 1913, p. 1238 (Crawford & Moses’ Dig., §§ 5375, 5398); the latter act covering the subject-matter of the prior act. ^
    Appeal from. White Chancery Court; John, E. Martineau, Chancellor;
    reversed.

      E. W. Applegate, Attorney General, and Brooks Eays, Assistant, for appellant.

      John E. Miller said Culbert L. Pearce, for appellee.
   McCulloch, C. J.

This appeal involves the question of the right of White County,- organized as a' special district under a general statute enacted in 1909 (Acts 1909, p. 607), to hold and work on the public roads the felony convicts in that county.

It is conceded by those representing the county that the right to hold the convicts depends upon whether or not the statute referred to is still in force. The contention on the part of the State is that the act of 1909, supra, has been repealed by a later statute enacted by the General Assembly in the year 1913. Crawford & Moses’ Digest, § 5375 et seq. Both sides concede that White County was organized as a district under the act of 1909, supra, but that it was not, and, as a single county, could not have been, organized under the later statute, for the reason that there was no provision in the later statute for the organization of a single county into a district for the purpose of working the felony convicts.

The act of 1909 provided, in substance, that the county judges of any two or more counties lying contiguous to each other may form such counties into a road and convict district for the purpose of working the convicts, both for misdemeanors and felonies, on the public roads in the district, and that, in case any county is unable to join in a satisfactory agreement with a contiguous county, the county court of that county may declare such county to be a road and convict district of itself for like purposes as above stated. The statute provides a scheme for working the convicts after organization of the district. A warden was to be employed by the county courts in the district, and the convicts were to be worked under his direction in the several counties. There is a provision that each county shall furnish supplies and suitable quarters or camps for the use of the convicts while being worked in that' particular county. The statute contains seventeen sections, and, as before stated, provides a complete scheme for working the convicts on public roads. *

The act of 1913, supra, provides that the county judges of the counties composing any judicial district, or any contiguous portion, are authorized to meet ht the-most convenient point to adopt the provisions of this act “by unanimous vote of the county judges of the counties adopting the same. ’ ’ There is no provision in this statute for a district to be formed in a single county. This statute, too, provides a complete scheme for working the convicts in a district organized thereunder. The statute contains twenty-four sections, and there are provisions similar to and others in addition to the provisions in the former statute.

There are certain well settled rules to determine whether or not a former statute has been repealed by a later one, but there is always some difficulty in applying these rules in determining whether or not a repeal has been effected in a given instance. It is a rule of universal application that implied repeals are not favored, and yet it is equally well settled that there is an implied repeal where there is found irreconcilable repugnance between the two statutes, and also when the Legislature appears to have taken up the whole subject -anew and covered the entire ground of the subject-matter of the former statute. In a recent decision we undertook to cover this subject in the following statement: . “It is a principle of universal recognition that the repeal of a law merely by implication is not favored, and that the repeal will not be allowed unless the implication is clear and irresistible; but there are two familiar rules or classifications applicable in determining whether or nor there has been such repeal. One is that, where the provisions of two statutes are in irreconcilable conflict with each other, there is an implied repeal by the later one which governs the subject, so far as relates to the conflicting provisions, and to that extent only. * * * The other one is that a repeal by implication is accomplished where the Legislature takes up the whole subject anew and covers the entire ground of the. subject-matter of a former statute and evidently intends it as» a substitute, although there may be in the old law provisions not embraced in the new.” Babb v. El Dorado, ante p. 10. In the application of those principles, the following cases may be considered with profit: Lawyer v. Carpenter, 80 Ark. 411; Western Union Tel. Co. v. State, 82 Ark. 302; Hampton v. Hickey, 88 Ark. 324; C. R. I & P. Ry. Co. v. McElroy, 92 Ark. 600; Carpenter v. Little Rock, 101 Ark. 238; Eubanks v. Futrell, 112 Ark. 433; Massey v. State for Use of Prairie County, 168 Ark. 174; Mays v. Phillips County, 168 Ark. 829; Farelly Lake Levee District v. Hudson, 169 Ark. 33. Applying those tests to the statute now under consideration, we are of the opinion that, in enacting the last statute, the Legislature took up the whole subject anew as a substitute for the former legislation on the subject, and that it operated as a repeal of the former statute.

The language of the caption of a statute is not controlling, but it has some force in interpreting the meaning of the lawmakers when otherwise in doubt, and the language of this caption leads to the conclusion that the lawmakers intended it as a substitute for former legislation, which recites that it is the purpose to provide a “compíete system for working the county convicts of the State on the public roads and various counties of the State.” It not only appears that the last statute was intended to cover the whole subject and exclude former statutes; but there are also found .irreconcilable conflicts between the two statutes. Under either statute two or more counties could be organized into a district, but, under the last statute, the whole territory must be embraced within the same judicial district. Now, if both statutes are. in force and a district is organized composing two or more counties in the same judicial district, as might occur under either statute, there are conflicting provisions for the operation thereunder. Under one statute it is left to the warden to determine how much work shall be done in each county, and in the other statute the requirement is that an equal amount of work shall be done in. each county of the district. Under the last statute there is authority to employ an engineer, but no such authority is found in the first statute. Under one of the statutes each county is to provide equipments and maintenance for the convicts, whereas under the other statute this is done by the district as a whole. There are other differences in the management and operation under the two statutes, and these provisions conflict with each other.

The difference in the two methods of implied repeal are that, where there are merely conflicting provisions and nothing more, the repeal operates merely to the extent of the conflict, but, where the subject is taken up anew by the lawmakers and the repeal is by substitution, the whole of the former statute is repealed. In this case we have both elements of implied repeal—that is to say, repugnant provisions and substitution of a new statute covering the whole subject. Learned counsel for appellees rely upon our decision in the comparatively recent case of Eubanks v. Futrell, supra. We do not think that the case cited is applicable to the present case, for the statute under consideration in that case related to methods of organization of school districts, whereas the present statutes relate not only to the methods of organization, but also to tbe operations thereunder, most of the conflicting provisions having reference to the operation. Suffice it to say that, after careful consideration of this subject and of the prior decisions of this court, it follows, from the application of the principles announced in those decisions, that there was an implied repeal of the statute under which White County had been organized into a district. Hence the organization was not valid, and the county has no right to hold the felony convicts.

'The decree of the chancery court is reversed, and the cause remanded with directions to render a decree in accordance with this opinion.

Hart and Smith, JJ., dissent.

Hart, J.,

(dissenting). The rule of implied repeal of statutes by revision or substitution has been so long and steadily adhered to by this court that the rule itself is no longer open to question. The difference between the judges in particular cases arises from the application of the rule to the record in the case under consideration. To my mind, there is no inconsistency or repugnancy between the two acts, nor is there any language in the later act which is calculated to show that it was intended as a substitute for the former act; but the two acts supplement each other, and the former act may be in force when the later one cannot be put in operation because all the county judges do not agree, as provided in § 1 of the act.

I think the two statutes present a situation like that which formerly existed with reference to working convicts in misdemeanor cases. The Legislature of 1877 passed an act entitled, “An act to provide for the employment and hiring of county convicts.” The act was approved March 10,1877, and is very comprehensive, containing 16 sections. Acts of 1877, p. 73. Section four of the act became § 1213. of Mansfield’s Digest, and provides, in effect, that when any one shall be convicted of a misdemeanor, the court trying him shall render judgment against him, which judgment shall direct that he be put to labor in any manual labor workhouse, or on any bridge or other public improvement, or that he be hired out to some person as provided in the act. Succeeding sections provide for the person hiring him to give bond, etc. The Legislature of 1881 passed an act to reduce the expenses of enforcing the criminal laws of the State. The act was approved March 22, 1881, This act also contained 16 sections, and was very full and complete. Acts of 1881, p. 148. Section one of the act is § 1226 of Mansfield’s Digest, and provides that the county court of each county is authorized and empowered to make a contract with some responsible person or persons for the maintenance, safekeeping and working of persons committed to the jail of the county.

In Griffin v. State, 37 Ark. 437, George W. Griffin, as sheriff, was convicted of misfeasance in, office, and assigned as error a ruling of the circuit court in allowing to be read in evidence the judgment in the case of Bud Burns for Sabbath-breaking. The concluding part of the judgment entry is that the sheriff is ordered to hire out the defendant according to law. The court held that there was no good reason why the entry of the trial and judgment should not have been admitted. Chief Justice English, speaking for the court, said:

“So much of the judgment as ordered the sheriff to hire out Burns for the payment of the fine and costs, if they were not immediately paid, at not exceeding one day for each seventy-five cents thereof, followed the last clause of § 6 of the act of March 10, 1877. Acts of 1877, p. 74. The act of March 22, 1881 (Acts of 1881, p. 148), which provides that if any person, convicted of a misdemeanor in the circuit court, etc., shall fail to pay immediately, or secure to be paid within thirty days, to the satisfaction of the sheriff, etc., the fine and costs, such person shall be committed to the county jail, and by the jailer delivered to the contractor, who shall keep and work him at the rate of twenty-five cents per day, etc., though passed before the judgment against Burns was entered, manifestly applies to counties in which the county courts have contracted for the keeping and working of persons committed for fines and costs. It must be presumed that no such contract had been made in Conway County at the time Burns was sentenced, as the court, in rendering the judgment against him, followed the act of March 10,1877, instead of the act of March 22,1881.”

Thus we have an express holding that the act of March 10, 1877, which provides for the hiring' of each convict, .is in force when the county court has not made a contract for the hiring of all the convicts under the act of March 22, 1881. That the first act was not repealed by the subsequent one was again directly recognized in Murphy v. State, 38 Ark. 514. Chief Justice English delivered the opinion, and said:

“At the time the plaintiff in error was convicted, however, the act of March 22, 1881, was in force, and by the 5th section of that act it was the duty of the sheriff, if the fine and costs were not immediately paid or secured, as therein provided, to commit him to jail, to be by the .jailer delivered to the public contractor, if a contract had then been made for keeping and working such convicts by the county court of Chicot County, as provided by the act. But, no contract had been made, the court should have made the direction in the judgment required by the act of March 10, 1877. Griffin v. State, 37 Ark. 437.”

So here, as there is no necessary inconsistency between the two acts, and, rio purpose to repeal clearly expressed or indicated in the last act, they should both be permitted to stand, and have their full effect, according to the well-established principle that a statute will not be repealed by implication, if a reasonable construction will enable it to stand consistently with the alleged repealing act.

So, when the act of 1913 cannot be put in 'force because the county judges cannot unanimously agree, as provided in the act, a county judge of a single county may work the prisoners under the provisions of the act of 1909. In this way the two acts will supplement each other and operate as a harmonious scheme for the working of the convicts.

Mr. Justice Smith concurs in this dissent.


text:
    Easley v. Vaughan.
    Opinion delivered April 5, 1926.
    Bills and notes—consideration.—Where sureties on a note, which had been transferred by the payee- as collateral -security to a bank, as sureties signed a note of the payee to the bank upon condition that a certain credit should be allowed on the first-mentioned note, the joining of the sureties in the new note to pay the debt of the payee to the bank was sufficient consideration to support a new contract between the sureties and the payee, of the first note concerning such credit.
    Appeal from Craighead Chancery Court, Eastern District; J. M. Futrell, Chancellor;
    affirmed.

      J. F. Jolmston'&nd Gautney é Dudley, for appellant.

      Basil Balter, for appellee.
   McCulloch, C. J.

Appellant instituted this action in the circuit court ag’ainst appellees Vaughan, Perciful and Wilkerson, to recover on a promissory note, but the cause was later transferred to the chancery court apparently without objection, and proceeded there to a final decree in favor of appellees.

The note sued on was for the sum of $250, executed to appellant on January 1,1920, by Joe Melton as principal and by appellees Vaughan, Perciful and Wilkerson as sureties, and was payable November 1,1920, with interest. Appellant borrowed money from-the bank at Black Oak and assigned the note to the bank as collateral security. When the note became due, Melton had absconded, after making a payment of $44 on the note. The bank demanded payment from appellant, but agreed to extend the time of payment if appellant would execute a note for the amount borrowed with the three appellees herein as sureties. Prior to that time appellant had executed his note to one Hall for $200 to cover the price of a lot of corn purchased from Hall, and this note ' was assigned by Hall to Melton, who continued to be the holder thereof until he left the country, and it remained in a lock-box in a bank with other notes which belonged to him. Appellees signed appellant’s note to the bank as sureties, and, when that note became due, appellant paid it off, which discharged his debt to the 'bank, and the canceled note, together with the other note sued on, executed by Melton and appellees to appellant, which had been retained by the bank up to that time, was at the same time surrendered by the bank to appellant.

The defense of appellees is based on the contention that they were induced to sign appellant’s note to the bank by the express agreement of appellant to credit on the Melton note the amount of the Hall note held by Melton as a set-off against the latter and thereby extinguish the Melton note, except a small balance remaining unpaid, which appellees agreed to pay. Appellant denied that he had made any such agreement, .and that was the only issue of fact involved in the trial.

Appellees testified in support of their defense that appellant had expressly agreed with them that, if they would sign the note to the bank, he would credit the amount of the Hall note on the Melton note, which is the subject-matter of this suit. This was denied by appellant in his testimony.

Before the present suit was commenced, appellant and one of the appellees,' Mr. Wilkerson, became indebted to a man named Tates on a promissory note which they had signed as sureties for Melton. They paid off the Yates debt, and then instituted an action at law against Melton to recover the amount paid out as his sureties on the note, and caused an attachment to be issued and levied on the Hall note and certain other notes held by Melton and found in the safety box in the bank, and appellant, instead of crediting this amount on the original Melton note, credited the same on his claim against Melton for the amount paid out on the Yates note.

Tt is assumed that the chancellor found in favor of appellees upon the issue of fact as to whether or not appellant had made the agreement attributed to him by appellees to credit the amount of the Hall note on the note in suit. The evidence justified the finding, and it was in accordance with the clear preponderance of the test!mony. It is contended by counsel for appellant that tbe alleged agreement with appellees, if made as claimed by them, was void and unenforceable for tbe reason that it was without consideration, and they invoke the rule of law that a new agreement to do what the promisor is already under legal obligation to do is not sufficient consideration for a new contract. They rely on the decision of this court in Feldman v. Fox, 112 Ark. 223, where it was held (quoting from the syllabus), that, “where the parties to a contract undertake to enter into an additional contract, if in the latter no benefit is received by the obligee except what he was entitled to under the original contract, and the other party parts with nothing except what he was already bound for, there is no consideration for the additional contract.” The rule relied on by counsel is sound, but it has no application to the present case. It must be remembered that the note executed by appellees as sureties for appellant was not a renewal of the Melton note then held by the bank under assignment from appellant. It was a new obligation of appellant and appellees to pay the debt to the bank, and the latter continued to hold the Melton note as collateral security until appellant’s obligation to the bank was to be paid. Appellees were under no obligation to pay appellant’s debt to the bank,, and their joining in the new note to pay that debt constituted sufficient consideration to support a new contract between appellees and appellant concerning the credit to be placed on the Melton note.

The chancellor was therefore correct both in his finding of fact and his application of the law, and the decree is affirmed.