text:
    Lefevers v. Dierks Lumber & Coal, Company.
    Opinion delivered November 12, 1923.
    Taxation — donation op deceased husband’s land by widow’s second husband. — Where land was forfeited to the State for taxes after the owner’s death, and the surviving wife subsequently moved on the land with her second husband, who thereafter took a donation deed to the land, with knowledge on the part of the surviving heirs that he was not acting as his wife’s agent but in his own right, such heirs could not claim the land as having been redeemed by the surviving wife.
    Appeal from Pike Chancery Court; James D. Shaver, Chancellor;
    affirmed.
    STATEMENT OP PACTS.
    Mrs. M. A. Lefevers and Mrs. Lue M. Garner brought this suit against the Dierks Lumber & Coal Company to have the title to certain timber divested out of the defendant and invested in them, and to enjoin the defendant from cutting down said timber.

      The defendant denied that the plaintiffs were the owners of the land, and averred that it had purchased the timber from the owner thereof.
    It appears from the record that Monroe Cannon formerly owned the land, which is situated in Pike County, Ark., and died between thirty-five and forty years ago, leaving surviving him his widow and two daughters, who are the plaintiffs in this action. At the time Monroe Cannon died one of his daughters was about four and the other six years of age. At the date of his death Cannon and his wife resided on a tract of land belonging to her father about two and a half miles from the tract in question. There was a small house and about six acres of cleared land on the 160' acres in question. The plaintiffs never conveyed their’interest in the land to any one.
    J. A. Tedder was the principal witness for the defendant. According to his testimony, he first received a donation certificate to the land on the 15th day of January, 1904; and-on March 16, 1907, the Commissioner of State Lands issued to him a donation deed. On the 17th of January, 1910, to correct a mistake in the first deed, the Commissioner of State Lands executed another deed to J. A. Tedder. The donation deed contained the recitation that the land was forfeited to the State for the nonpayment of taxes in 1888. J. A. Tedder says that he went into possession of the land four, five or six years before he donated it. A few years before he donated it he married the widow of Monroe Cannon, deceased. She was living with him as his wife at the time he moved on the land and at the time he made application to donate it. At the time Tedder donated the land he talked 'with Mrs. Lefevers about it, and told her that she and her sister might donate it if they wished to. Mrs. Tedder replied that they did not want it. Tedder did not talk with Mrs. Garner about the land, but she lived in the neighborhood, and knew that he had donated it, and that he had claimed it as his own ever since. The youngest of the plaintiffs was about twenty-five years of age at the time Tedder donated the land. Tedder executed a deed to the Dierks Lumber & Coal Company to the timber on part of the land on the 14th day of September, 1911. This deed was duly filed for record on the 22nd day of January, 1912. The donation deed of J. A. Tedder was filed for record •on the 3d clay of February, 1910'.
    The chancellor found the issues in favor of the defendants, and dismissed the complaint of the plaintiffs for want of equity. The plaintiffs have appealed.

      Feather stone & Palmer and Alfred Featherstone, for appellant.
    The land in question was the homestead of Monroe Cannon at the time of his death. 69 Ark. 596. His widow had a life estate, while the fee to the lands was in appellant. It was the widow’s duty to pay the taxes while she* remained in possession, and if the land was forfeited1, its repurchase amounted to no more than the payment of taxes. 128 Ark. 605. Appellants and Mary E. Tedder were cotenants, and, as such, appellants could not be charged with laches. 128 Ark. 605. The relation of J. A. Tedder to appellants was that of trustee by implication, and he could not acquire rights antagonistic to them. 49 Ark. 242. The homestead is created equally for the benefit of the widow and children, and neither can prejudice the rights of the other. 27 Ark. 280; 72 S. W. 994. Tedder acquired no rights in the land, hence he could convey none. 102 Ark. 611. Appellants, as remaindermen, have the right to prevent waste. 5 Pomeroy’s Eq. Juris., §§ 491-2; 95 Ark. 18. The statute of limitation does not run against the remainderman until the death of the life tenant. 97 Ark. 33.

      Abe Gollms and Lake & Lake, for appellees.
    The judgment of the trial court should not be overturned unless ag-ainst the clear weight of the evidence. 86 Ark. 212; 119 Ark. 133; 120 Ark. 37. The burden of proof is on appellants, who are seeking to establish a trust by implication. 102 Ark. 65; 105 Ark. 318; 118 Ark. 146. Such evidence must be full, clear and con-winning. 113 Ark. 207; 104 Ark. 104; 105 Ark. 318. No “implied trust” can be found in the transaction involved within the rule laid down in 103 Ark. 145. Fraud is not alleged or proved1, hence a trust ex maleficio cannot be relied upon. 114 Ark. 128; 113 Ark. 36. Tedder and appellants were not tenants in common. Burrell’s Law Diet.; 148 Ark. 548. The facts of the case show an abandonment by the widow of the homestead, and the statute of limitations began to run against appellants from the date of such abandonment. 65 Ark. 68. Tedder and appellants were in no way tenants in common, but, conceding they were, still appellants are barred of relief, as no contribution was ever offered or paid, as required by law, to avail themselves of the benefit of the adverse title purchased. 45 Ark. 177; 143 Ind. 467; 68 Neb. 459; 38 Cal. 125. Appellants are barred by limitations. C. & M. Digest, 6682, 10119; 124 Ark. 379; 118 Ark. 516.
   Hart, J.,

(after stating the facts). To reverse the decree of the chancellor the plaintiffs rely upon the principles of law decided in Inman v. Quirey, 128 Ark. 605. In that case the widow and one of the heirs at law of the deceased owner continued to reside on the homestead, and failed to pay the taxes thereon. The land was sold for the nonpayment of taxes, and was purchased by a person who reconveyed to the widow and heir at law in possession of it. It was held that it was the duty of the life tenants to pay the taxes, and that the reconveyance to them by the purchaser at the tax sale amounted to a redemption of the land by the widow and heir at law, and extinguished the tax title of the purchaser.

We do not think the facts of this case fall within the principles of law there decided. If Tedder had purchased the land as the agent of his wife, or to in any manner strengthen her title, the rule in that case would apply.

It appears from the record in this case, however, that the land was forfeited to the State for the nonpayment of the taxes in 1888. The widow of the deceased owner did not live on the land at that time. She subsequently married J. A. Tedder, and he obtained his donation certificate in 1904. He says that he had moved on the land with the widow of the deceased owner, whom he had married some four, five, or six years before this. Then at the earliest period'of time, according to his testimony, which is not contradicted, Tedder moved on the land in 1898, and married the widow of Monroe Cannon' some time in 1892. This was several years after the land had been forfeited for taxes. Tedder says that he only made application to donate the land after he had talked the matter over with one of the plaintiffs, who told him that they did not wish to donate it. He says, that the other plaintiff lived in the neighborhood and knew that he had donated the land, and made no objection thereto. Tedder built two box-houses on the land and cleared thirty-five acres of it. From the time he donated it until the present time he has claimed it as his own, and it is fairly infer-able from the evidence in the record that the plaintiffs knew that he was claiming to be the owner of the land in his own right, and did not donate it as agent of his wife, or to enable her to obtain title thereto.

Therefore the decree will be affirmed.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Mississippi Life Insurance Company v. Meadows.
    Opinion delivered November 12, 1923.
    1. Insurance — questions for jury. — In an action on a life insurance policy, defended on the ground of misrepresentation or breach of warranty of insured’s health, held that it is a question for the jury whether the insured signed the application containing the warranty, and whether he knew he had tuberculosis when he applied for the policy and represented that he was in good health. .
    2. Insurance — “warranty” and “representation” distinguished. —Statements in an application for a policy warranted to be true must be true, whether the applicant knew them to be true or not, but a false representation will not avoid a policy unless the applicant knew the falsity of the fact stated to be true.
    3. Insurance — statutory penalty and attorney’s pees. — Where beneficiary sued for an amount in excess of that due, the insurer was not liable for the statutory penalty and attorney’s fee.
    Appeal from Bradley Circuit Court; Turner Butter, Judge;
    reversed.

      Wilson <0 Martin, for appellant.
    It was error for the court to direct a verdict, as appellant introduced sufficient evidence to establish the issues it raised. 148 Ark. 66. Untruth of answers, which are warranted to be true, constitute a breach of the warranty, whether the insured knew the untruth or not. 103 Ark. 201, 48 L. R. A. (N. S.) 418. No recovery can be had for penalty and attorney’s fee where demand is made in excess of the amount entitled to be recovered. Section 6155, C. & M. Digest; 92 Ark. 378; 93 Ark. 84; 117 Ark. 71.

      Clary & Ball, for appellee.
    The court properly refused to permit the attending physician to violate the confidence of physician and patient. 103 Ark. 201. Appellant introduced no evidence to sustain its contention. It is only error to direct a verdict where there is evidence upon which reasonable mind's might differ as to the liability.' Ill Ark. 310; 148 Ark. 66. The circumstances point to the' fact that the card which contained the warranties relied upon by appellant was not in fact made out by the insured, but by the agent of the company, and therefore the policy would not be void upon the misrepresentation made by the agent. 53 Ark. 215. See also 64 Ark. 253; 65 Ark. 581. Appellee requested a larger amount than was due under the policy, through error, but, on trial, she amended the complaint to only ask for the correct amount. The circuit court so treated the matter, and the penalty and attorney’s fee were properly assessed. See 87 Ark. 424.
   Smith, J.

Appellee was the beneficiary'in a policy of insurance issued by the appellant insurance company on the life of Early Calvert, her brother, and by the terms of the policy only one-half its face could be collected if the insured' died within a year after the issuance of the policy. The policy .was issued on November 14, 1921, and the insured died February 14, 1922.

It appears that the insurance company required no examination of an applicant when the amount of insurance applied for was less than $300, but the applicant was required to submit a statement in regard to the condition of his health and to warrant that his answers to the questions in the application “are strictly correct, complete and truthful.”

A physician who had attended Calvert in a professional capacity testified that, some months prior to the date of the application for the policy, he examined Calvert and found him suffering from tuberculosis. On objection being made, this testimony was properly excluded; but the physician was then asked, as an expert, whether a man who died on February 14,1922, from consumption, was afflicted with that disease three months prior thereto, and the question was answered in the affirmative. The proof of death gave tuberculosis as the cause thereof, and there appears to be no question that Calvert died of that disease.

The court directed the jury to return a verdict for the plaintiff, and this was done, and the court then added the statutory penalty of twelve per cent, and fixed the fee of the attorneys at $50, and the insurance company has appealed.

On behalf of appellee it is insisted that there is testimony tending to show that the purported signature of Calvert to the application containing the warranty is not his signature, and that he did not in fact make any warranty as to the condition of his health.

We think the court erred in directing a verdict in favor of the plaintiff. There was a question for the jury whether the applicant signed the warranty. If he did, he was bound thereby, and the jury might have found from the testimony that Calvert did sign the warranty, and was suffering from consumption when he applied for the insurance.

The policy itself recites that it was issued upon the express representation of the applicant that he was then in good health, and that it might be delivered as a contract of insurance only on that condition, and appellee insists that, if there was a representation only that the applicant was in good health, the policy would not be avoided because the answer was false unless the applicant knew it was false. This difference does exist between a representation and a warranty. .The statements warranted to be true must be true, whether the applicant knows the truth or not, whereas a mere representation would not defeat the policy unless the applicant knew the falsity of the fact stated to be true.

But if Calvert did not sign the warranty, thereby warranting the truthfulness of his answers, we think there was still a question for the jury, as the jury might have found that Calvert knew he had consumption; at least we cannot say, as a matter of law, that the jury might not have drawn that inference from the testimony, considered in its entirety, so that, whether there was a warranty or only a false representation, we think there was a case for the jury.

We are also of the opinion that the court erred in assessing the statutory penalty, and in awarding an attorney’s fee. It is not now claimed that the insurance company is liable for more than $52.50, this being one-half of the face of the policy, yet the suit was brought for $55. This mistake is explained by showing that the plaintiff did not have possession of the policy when she made demand for its payment and brought this suit, and that she was under the impression that the face of the policy was $110, one-half of which being, of course, $55, and that she had no purpose of demanding any sum in excess of that portion of the face of the policy to which she was entitled.

In the ease of Illinois Bankers’ Life Assn. v. Mann, 158 Ark. 425, the beneficiary in a policy of insurance sued to recover $1,046, alleging that sum to be due, but judgment was rendered by consent for $1,000, whereupon the court, over the objection of the insurance company, rendered judgment for the statutory penalty and an attorney’s fee. On the appeal to this court in that case we held that the purpose of the statute was to require insurance companies to pay promptly the sums for which they are liable, and was not intended to require them to pay anything in excess of their just liability, and that one cannot claim the benefit of the statute whose demand exceeds this liability.

Appellee did not allege in any pleading filed by her in this case that she sued and prayed judgment for the amount only which was due on the policy. On the contrary, she sued for an amount in excess of the- sum due her, and she cannot, in such ease, recover the penalty and attorney’s fee. Queen of Arkansas Ins. Co. v. Bramlett, 103 Ark. 1.

For the errors indicated the judgment is reversed, and the cause remand'ed for a new trial.


text:
    Cash v. State.
    Opinion delivered November 12, 1923.
    1. Criminal law — incompetent testimony — harmless error. — In a prosecution for murder, testimony as to a conversation with defendant concerning a still stolen from a witness was not prejudicial where the court ruled that such testimony would be excluded unless connected with the killing, and the witness subsequently testified that he knew no facts connecting such testimony with the killing, and defendant made no request that the court’s ruling be made more clear and comprehensive.
    2. Criminal law — conclusiveness op verdict. — In testing the sufficiency of the evidence to. support a verdict of conviction, the Supreme Court views it, with all the inferences fairly deducible therefrom, in the light most favorable to the State.

      3. Homicide — sufficiency of evidence to sustain conviction.— Evidence held to sustain a conviction of murder in the second degree.
    Appeal from. Faullmer Circuit Court; George W. Clark, Judge;
    affirmed.

      P. H. Prince, for appellant.

      J. 8. TJtley, Attorney General, Jno. L. Carter, Wm. T. Hammock and Darden Moose, Assistants, for appellee.
   Smith, J.

Appellant was convicted of murder in the second degree, and from the judgment of the court sentencing him to the penitentiary on that verdict is this appeal.

There are only two assignments of error which appear to require discussion, the first being that erroneous testimony was admitted, the second that the testimony does not support the verdict.

The alleged incompetent testimony was that of A. J. McCormack, father-in-law of the deceased, the testimony being as follows: “Q. Did you have a conversation with this defendant with reference to a still or worm that had been stolen from somebody? A. Yes sir, previous to the killing. Q. How long before the killing? Counsel for defendant: I object to that. (No ruling by the court). Q. Was it as much as a month or a week? A. It was on the first Sunday in March. Q. And the killing was the 7th day of May? A. Yes sir. Court: Q. That conversation was with whom? A. With L. C. Cash. Counsel for defendant: We except to that. (No ruling by the court). Q. Tell what he said1 with reference to a worm or a still that had been found there. A. Well, I had a worm there supposed to be used in making whiskey, and he told me that he knew a fellow that would pin up a five spot if I would put it out where he could steal it, and the fellow would steal it if I would keep my mouth shut. Q. Where did you get this worm? A. Found it in the field. Q. Your neighbors knew you had it ? A. Yes sir. Q. What did you do with it ? Threw it in the yard for about six weeks, and then took it down to the shop. Q. That was at the time it was missing? A. Yes sir, in the back of the shop. Q. Tell the jury what you did with the worm, where it was at the time you missed it? Counsel for defendant: I object to that. By the court: Objection sustained. The prosecuting attorney : I am trying to show its connection with reference to this trouble. Court: Anything pertaining to the worm, unless you can connect it up, will be excluded. Q. Then after you made an investigation of the body do you know anything else about the case that would throw light on it to the jury? A. No sir, I don’t know anything; I never saw anything except the body.”

It was, of course, improper to prove, as an independent circumstance, anything in relation to this still, unless that circumstance had some connection with the killing, as showing the motive or otherwise explaining the conduct of the parties. But this appears to have been the view of the court, and the court so ruled. The effect of this ruling was to advise the jury that such testimony was incompetent and was not to be considered unless it was connected with the killing, and that connection was not made. The prosecuting attorney should not have examined the witness on this subject without being able to show its relevancy, but the court made a proper ruling in excluding the testimony, and if it was believed that the ruling was not sufficiently clear and comprehensive, a request to make it so should have been made.

The next and only question asked the witness on his direct examination,' after the ruling of the court had been made, established the fact that the witness was not in possession of any facts connecting the possession of the still with the killing charged in the indictment, and we conclude therefore that the court’s ruling, under the circumstances stated, removed the prejudice of the incompetent testimony.

In testing the sufficiency of the evidence to support the verdict, we of course view it, with all the inferences fairly deducible therefrom, in the light most favorable to the State, and, when thus viewed, the facts may be summarized as follows: It was the theory of the State that appellant killed deceased because of some previous trouble between them, and that appellant went to the home of deceased and called him out of his home and killed him. The wife of deceased testified that she spent the night before the killing at her father’s' home, which was about a quarter of a mile from her own. That she went home about ten or fifteen minutes after she heard the report of a gun, and when she arrived there she found both the front and back doors open, and two chairs were turned over near the front door. That the bed in which her husband had slept was still warm; and upon calling him, she heard some one run up a hill near the house. She then returned to her father’s house, and was there when the body of her husband was found.

Deceased’s body was found about thirty or thirty-five steps from his house. He was lying on his back, with his arms extended, the left arm being shot nearly in two, with a wound in the breast near the heart, and an empty shotgun shell was found about fifteen or twenty feet from the- body.

Appellant testified that he went over to deceased’s house early in the morning of the killing to employ him to do some plowing, and that he awakened .deceased when he went there, and when asked why he carried his gun, he answered that he was afraid some of deceased’s folks would get him. No one saw the killing except appellant, and, as a witness in his own behalf, he made a case of self-defense, his story being that he went to deceased’s house, to employ him to plow for him, and that he carried1 his gun thinking he might see a wolf. That deceased accused him of having led a mob to his house the preceding night, and made a murderous assault upon him. That he attempted to run away, and fired the fatal shot only when he saw he could not escape injury by flight. The jury evidently did not credit this testimony, and we cannot say that this was arbitrary.

No error appearing, the judgment is affirmed.


author: Humphreys, J. Hart, J.

text:
    Wimberly v. Road Improvement District No. 7.
    Opinion delivered November 12, 1923.
    1. Constitutional law — construction rendering act valid. — A construction of an act which would invalidate it should not be adopted if some other construction could be placed upon it, not inconsistent with any of its parts, which would enable it to take effect.
    2. ’ Highways — authority to commissioners to change route. — The . act of special session of 1920, No. 312, creating Special Road Improvement District No. 7, in Polk .County, by providing in section two that the road should follow, “as near as practical, what is known as the Mena-Cherry Hill public road,” authorized only immaterial changes in the road by the, commissioners, and therefore did not encroach upon the exclusive jurisdiction of the county court.
    3. Highways — private letting oh bridge contracts. — Constitution, art. 19, § 16, inhibiting the expenditure of. county funds for bridges except under contracts to the lowest bidder, applies only to the expenditure of county funds, and does not invalidate the act of special session of 1920, No. 312, authorizing the commissioners of Special Road Improvement District No. 7, in Polk County, to let bridge contracts without advertising for bids.
    4. Constitutional law — due process — review op assessments.— Acts of 1920, No. 312, creating Special Road Improvement District No. 7 in Polk County, held not to authorize taking of property without due process in that no appeal from assessment is provided for, where section 10 of such act provides that any person may “apply to any court of competent jurisdiction to set aside assessment list or to correct any void or erroneous assessment.” ' ' •
    5. Constitutional law — due process — notice of revised assessments. — Acts 1920, No. 312, creating Special Road Improvement District No. 7, in Polk County, held not to authorize, in section 11, relating'to revision of assessments, the taking of property without due process of law, in that no notice of such revision to the property owners is provided for, since section ten, providing for publication of notices of assessment, necessárily applies to revised as well as original assessment.
    6. Highways — continuance of board for maintenance. — Acts 1920, No. 312, creating Special Road Improvement District No. 7, in Polk County, is not invalid because it continues the board of commissioners for the purpose of repairing and maintaining the road after completion.

      7. Highways — attack on assessments — time.—In an action to enjoin the commissioners of a road improvement district from constructing the improvement, brought before the day fixed in the notice of the assessors for hearing of complaint against the assessment of benefits, attacks on such assessments cannot be heard, but should 'be presented by the property owners at the time and place designated.
    Appeal from Polk Chancery Court; James D. Shaver, Chancellor;
    reversed in part.

      Norwood & Alley, for appellant.
    The act is unconstitutional and void. It does not • make any provision for the approval by the county court of changes that may be made. 130 Ark. 507; 138 Ark. 549; 139 Ark. 277; 142 Ark. 52; 143 Ark. 203; 141 Ark. 247; 147 Ark. 469; 148 Ark. 365; 86 Ark. 231. Section 2 of the act as to building bridges is contrary to the Constitution, art. 19, § 16. Said section did not provide any plan for letting the contract to the lowest and best bidder. 54 Ark. 645. The act does not expressly or by implication require that a proper assessment be made. An assessment made on the wrong basis is tantamount to no assessment at all. 153 Ark. 587; 127 Ark. 310; 86 Ark. 1. The question of benefits is a question of fact. The location and surface conditions of the lands are matters to be considered in assessing the land. 141 Ark. 254. Section 11 of the act is unconstitutional because it makes no provision for notice to be given where revision is made by the county court. 240 U. S. 624; 16 Atl. 506; 174 U. S. 168; 60 Mo. 351; 121 Pac. 1094; 48 S. E. . 464. The act is in conflict with art. 7, § 28, of the Constitution because it authorizes the commissioners to keep in repair and maintain the improvements and make all necessary contracts for that purpose.

      Minor PipMn, for appellee.
    The act is constitutional. It is a rule of construction that the expression of one thing sometimes implies the exclusion of another. 38 Ark. 205. In construing a statute, the meaning must be gathered from the whole act. 31 Ark. 199; 102 Ark. 205. Courts should give to a statute such a construction, if possible, as will enable it to take effect. 63 Ark. 576. It is tbe duty of courts to seek to ascertain and carry out the intention of the Legislature in its enactment, and to give full effect to sucb intention. 69 Ark. 376. Article 19, § 16, of the Constitution requiring bridges to be let publicly has no application to tbe letting of bridges by improvement districts. As to tbe assessment of benefits, tbe statute provides a remedy by appeal, and the chancery court bad no jurisdiction to consider this part of the complaint, and properly dismissed it. Tbe board adopted a standard calculated to produce approximately correct results. Section 10 of tbe act provides for ample notice of assessment of benefits. The statement of the complaint that tbe cost of tbe improvement is confiscatory is nothing more than a conclusion, not supported by statement of particulars upon which the conclusion is based. 144 Ark. 632,
   Humphreys, J.

Appellants, real estate owners in Special Road Improvement District No. 7, in Polk County, instituted this suit against appellees in tbe chancery court of said county to prevent tbe commissioners from constructing tbe improvement. Tbe district was created by Special Act No. 312 of tbe General Assembly for tbe year 1920. • The basis of tbe injunction proceeding is tbe alleged invalidity of the act creating tbe district and the assessment of benefits made thereunder.

The constitutionality of tbe act is questioned; first, because no provision was made therein for tbe approval by tbe county court of changes that might be made in tbe route; second, because tbe act did not make provision for tbe construction of the bridges to be let to tbe lowest responsible bidder; third, because tbe effect thereof was to take property without due process of law; and fourth, because tbe commissioners were authorized to maintain tbe road after being built, and to make contracts for that purpose.

The validity of assessments is assailed, first, on account of the basis adopted in making them; and second, because arbitrary and confiscatory.

Appellees filed an answer denying all the material allegations of the bill for injunction, and the cause was presented for hearing upon the pleadings and- testimony of G-. L. Clement, one of the assessors for the district, whose testimony was agreed to as facts in the case and incorporated in the decree. The trial resulted in upholding the validity of the act, but enjoining the commissioners from making the improvement without advertising for bids, as being contrary to public policy. Both appellants and appellees have prosecuted an appeal from the decree in so far as same is adverse to them, and the cause is before this court for trial de novo. For convenience we have followed, and will continue to follow, the style of the case by referring to the property owners as .appellants and to the district and commissioners as appellees.

We first proceed to a consideration and determination of the several attacks made upon the constitutionality of the act in the order set forth in our statement of the ease. The principal attack is made upon section 2 thereof, which is as follows:

“Said district is hereby organized for the purpose of building, improving and maintaining the public road in Polk County, Arkansas, beginning near what is known as the Waltman place, or near the section line between sections nine and sixteen, township 2, south, range 30 west, thence in an easterly direction to the Montgomery County line, following as near as practicable what is known as the Mena-Cherry Hill public road. The said public highway extends to Ink, Egger, and thence to the Montgomery line. (Then follow the numbers of the townships through which it runs). Said highway is to be ■constructed of macadam or of such other materials as the commissioners deem best, or the same may be improved as, in the judgment of the commissioners, is best, without rebuilding all the way, and they are authorized to build such bridges and culverts as they may find desirable. Any bridges built shall be built and approved by the county court. In building and improving said highway, the commissioners may proceed by letting the work as a whole, or in sections, or they may build same, or a fractional thereof, by day labor, or they may use county and State convicts as may be conceded them by the State or by Polk County. In case bids are advertised for, the commissioners shall have the right to accept or reject any bid. ’ ’

(1) Appellants interpret § 2 of the act as giving permission to the commissioners of the road to materially deviate from the Mena-Cherry Hill public road, designated in the act as the route to be improved, and to construct a private road in part, which would impair the jurisdiction of the county court over same after completion for purposes of maintenance, etc., in violation of article 7, § 28 of the Constitution of 1874. This interpretation is placed upon the act because the commissioners are directed to follow as near as practicable what is known as the Mena-Cherry Hill public road in constructing the improvements between the points designated. This construction of the act would invalidate it, and should not be adopted if some other construction can be placed upon it, not inconsistent with any of its parts, which would enable it to take effect. Wells Fargo & Co. v. Crawford County, 63 Ark. 576; St. L. I. M. & S. R. Co. v. State, 102 Ark. 205. Effect may be given to each part of the act, and to the act as a whole, without creating any inconsistency between the parts, by construing it to mean that authority is vested in the commissioners to improve the Mena-Cherry Hill .public road, making only immaterial changes in the route thereof. The Legislature could confer this authority without encroaching upon the exclusive jurisdiction of the county court over public roads, and a careful reading of the whole act indicates that this was the intention of the Legislature. Of course, under this construction of the act, material changes cannot be made in the route unless made by an order of the county court. Bennett v. Johnson, 130 Ark. 507; Sallee v. Dalton, 138 Ark. 549; Summers v. Damascus Road Dist., 139 Ark. 227; Easley v. Patterson, 142 Ark. 52.

(2) The act provides for a private letting by the commissioners of a contract to build the bridges, and, for this reason, appellants insist that it is in conflict with § 16, article 19, of the Constitution of 1874, which in part is as follows:

“All contracts for erecting or repairing public buildings or bridges in any county, or for material therefor, * * * shall be given to the lowest responsible bidder, under such regulations as may be provided by law.”

The language used in the act conferring authority upon the commissioners to build bridges has been construed by this court to mean bridges incident to the improvement or necessary appurtenances thereto (Van Dyke v. Mack, 139 Ark. 524; Bullock v. Dermott-Collins Rd. Imp. Dist., 155 Ark. 176), so they are district improvements and not county improvements in the sense of being built with county funds. The section of the Constitution referred to is a limitation upon the expenditure of county funds for bridges, etc., in any county, and was not intended as an inhibition against districts building bridges incident to the main improvement, by pri-' vate contract.

(3) . The effect of the act is not to take property without due process of law, as contended by appellants. They argue that, because no provision is made for an appeal, their property is taken without due process of law. Ample provision is made in the act itself for a judicial review of the assessments made by the board of assessors. Section 10 of the act is, in part, as follows: “Any person, firm or corporation aggrieved by the action of the board of assessors fixing the assessment list, as herein provided, shall have the right for twenty days from the adjournment of said board of assessors sitting as a board of equalization, as before said, to apply to any court of competent jurisdiction to set aside assessment list, or to correct any void or erroneous assessments, and, after the expiration of twenty days, the said list shall become final and incontestable either in law or equity. ’ ’

Appellants also argue that, because no provision is made in § 11 for notice to them when assessments are revised by the assessors, their property is being taken without due process of law. Section 10 of the act provides that assessors shall make assessments of benefits when directed to do so by the commissioners, and, when such assessments are made, shall place same in the hands of the president of the board of commissioners, who shall thereupon cause notice to be published. This requirement in § 10 necessarily applies to revised as well as original assessments. As the notice provided for in § 10 applies to all assessments, we think it unnecessary to have repeated the direction for notice in § 11.

(4) The act is not void because it contained a provision continuing the board of commissioners for the purpose of repairing and maintaining the road after the completion thereof. This precise question was before the court in the case of Dickinson v. Reeder, 143 Ark. 228, and was decided adversely to the contention of appellants. The court said, in that case, “that maintenance is, after all, a local improvement, and is done for the betterment of the contiguous lands, and it does not interfere with the general authority of the county court over public roads. The two powers go hand in hand, that of the county court being superior in event of possible conflict. It is a mere choice in the form of the legislation as to whether the authority to maintain the road shall be embraced in the same statute and conferred upon the same agency as that which concerns the original improvement, and in neither case is the jurisdiction of the county court invaded.” See also Van Hook v. Wallace, 143 Ark. 203.

We next come to a consideration of the attack made upon the assessments of benefits. Ample provision is made in the act to defend against assessments upon all the grounds made the basis of attack in this proceeding., This suit was brought before the day fixed in the notice for the assessors to meet and hear complaints against the assessment of benefits. The property owner should appear at the time and place designated to show that his property is not benefited, or that the tax amounts to a confiscation thereof. Bush v. Delta Road Imp. Dist., 141 Ark. 247; Van Hook v. Wallace, supra.

The decree is affirmed, except in so far as it enjoined the commissioners from awarding any contract for the construction of the improvement, including bridges. In that particular it is reversed, and remanded with direction to dismiss the bill for injunction.

DISSENTING OPINION.

Hart, J.

While I am still of the opinion that, in regard to the specific subject of county bridges, the duties relating to them are laid upon the county court, under art. 7, § 28, of the Constitution of 1874, so that, in making contracts for bridges and in all proceedings relative to the same, the county court alone is the representative of the county, I do not think our f ormer holding to the effect- that county bridges -may be included in road improvement districts warrants the further holding that contracts for the construction of them may be let privately.

Section 16, art. 19, of the Constitution provides that all contracts for erecting or repairing public buildings or bridges in any county, or for materials therefor, shall be given to the lowest responsible bidder, under such regulations -as may be provided by law.

I am of the opinion that -this clause of -the Constitution refers to bridges across running streams and watercourses, and not to the ordinary culverts in the public road's for surface drainage. The constitutional provision was designed to secure economy in the line of the public improvements to which it relates, and to secure competitive bidding upon equal terms, to the end that extravagance and collusion between the officers authorized to construct the bridges and the bidders may be prevented. Fones Hardware Co. v. Erb, 54 Ark. 645. See also Woodruff v. Berry, 40 Ark. 251, where it was held ■that contracts for public printing must be let in conformity with the statute.

It is a well settled rule that public officers cannot ■ do by indirection that which they might not do directly. There is nothing in the section of the Constitution above referred to to exclude bridges which form a part of an improvement district from the provision of the section of the Constitution.

The restriction and prohibition of the Constitution against letting contracts for building county bridges privately are of no avail if they can be brought to naught by the indirect action of building bridges by private contract by improvement district methods. There is no' more reason why the county court should be forbidden to build a county bridge at private contract out of the general road taxes than that the commissioners of road improvement districts should be allowed to do so out of the taxes collected from the lands forming the improvement districts. The inhibition of the Constitution is not directed against the county judge particularly,- but it is directed against the method of building’ county bridges except upon competitive bidding.

Judge Wood authorizes me to state that he joins with me in this dissent.


author: Humphreys, J.

text:
    Floyd v. Booker.
    Opinion delivered November 12, 1923.
    Appeal and error — time for filing bill of exceptions. — Where a decree allowed no time for filing a hill of exceptions, and no such time was requested, a transcript of the testimony, which the parties agreed should become a part of the record, did not become such by being filed after the adjournment of the court.

      Appeal from Miller Chancery Court; James D. Shaver, Chancellor;
    affirmed.

      M. E. Sanderson, for appellants.

      W. H. Arnold, W. H. Arnold, Jr., and David G. Arnold, for appellee.
    The evidence' was not brought into the record by bill of exceptions filed within time fixed by the court, or in any other manner required by § 1323, C. & M. Digest, and is not properly before this court. 156 Ark. 473; 153 Ark. 587; 152 Ark. 452'.
   Humphreys, J.

Appellee instituted suit against appellant in the chancery court of Miller County to recover $4,712.65 borrowed money, upon five separate promissory notes, and to foreclose the several mortgages given upon personal property and real estate to secure same.

The cause was submitted to the court upon the pleadings, exhibits thereto, and the testimony taken ore tenus before the court, which resulted in a finding for appellees for the amount sued for and a decree of foreclosure and sale of the lands and chattels to apply upon the indebtedness. From this finding and decree an appeal has been duly prosecuted to this court. Appellees insist upon an affirmance of the decree because the testimony has not been preserved and properly incorporated in the record.

The testimony heard by the trial court and taken down in shorthand was transcribed by the stenographer, and an attempt was made to- bring’ a transcription thereof into the record five months after the rendition of the decree, by the following agreement of counsel.

“It is agreed by and between counsel of record for the plaintiff and defendant in the above entitled cause that the foregoing pages, numbered from one to seventy-one, contain all of the evidence heard or offered in the trial of said cause, and all the exceptions thereto, and all proceedings had and done in the trial of this cause, and that the same is correct, and that, when filed by the clerk of the chancery court, shall become a part of the record in said cause as fully, completely and effectually as if approved, signed and ordered filed by order of the judge trying said cause.

“Witness our hands this 12th day of February, 1923.

“W. H. Arnold, Jr.

“Counsel for plaintiff.

“M. E. Sanderson,

“Counsel for defendants.”

The decree did not allow appellant any time within which to prepare and file the bill of exceptions, and it does not appear that the request for time to do so was made. This privilege was accorded to them by § 1318 of Crawford & Moses’ Digest. The substance and language of the agreement set out above reflects that the oral and documentary evidence was attempted to be brought into the record as an agreed bill of exceptions by authority of ■§ 1323 of Crawford & Moses’ Digest, which is as follows:

“In all cases, except indictments charging a felony, where the parties to an action agree in writing upon the correctness of a bill of exceptions by indorsement thereon, „ signed by one or more counsel of record of the respective parties, it shall be the duty of the clerk of the court in which the case is pending to at once file such agreed bill of exceptions, and the same shall be a part of the record as fully, completely and effectively as though approved, signed and ordered filed by the order of the court or judge trying the cause. Provided, said bill of exceptions is filed within the time fixed by the court for filing the same. ’ ’

No time having been requested or obtained within which to file the bill of exceptions beyond the term at which the decree was rendered, the judge trying the case could not have approved, signed, and ordered the bill of exceptions to be filed as a part of the record after the adjournment of the court. Under our statute, in order for a bill of exceptions,'prepared and filed after adjournment of court, to become a part of tbe record, it was necessary .for a day certain to have been fixed for tbe filing of same and for tbe bill to bave been approved and signed by the trial judge or agreed upon by tbe parties, and filed .with tbe clerk within tbe tbe time allowed by the court. Watson v. Watson, 53 Ark. 415; Stinson v. Shafer, 58 Ark. 110; Springfield v. Fulk, 96 Ark. 316.

As tbe oral and documentary evidence was not brought into the record by any method recognized by our practice, and, as tbe errors, complained of arise out of the testimony, tbe decree herein must be affirmed, without determining tbe issues upon their merits.

It is so ordered.


text:
    Slay v. State.
    Opinion delivered November 12, 1923.
    1. Perjury — indictment—voluntary testimony. — An indictment for perjury alleging- that accused swore falsely on his examination before a justice of the peace, on a charge against himself, . is fatally defective in failing to allege that he voluntarily gave his testimony before the justice.
    2. Indictment and information — essential ingredients. — Essential ingredients of a crime must be alleged in an indictment, and will not be presumed.
    Appeal from Nevada Circuit Court; James H. McCollum, Judge;
    reversed.

      William F. Denman, for appellant.

      J. S. TJtley, Attorney General, and John L. Carter, Assistant, for appellee.
   Humphreys, J.

Appellant was indicted1, tried and convicted in tbe circuit court of Nevada County upon an indictment charging him with perjury, and, as punishment .therefor, was adjudged to serve a term of one year in tbe State Penitentiary. Sufficiency of tbe indictment was challenged by demurrer, which was overruled by the ' court, over the objection and exception of appellant. The indictment, omitting formal parts, is as follows:

1 “The grand jury of Nevada Couhty, in the name ' and by the authority of the State of Arkansas, accuses Mann Slay of the crime of perjury, committed as follows, to-wit: The said Mann Slay, in the county and State aforesaid, on the 7th day of July, 1923, A. D. 192— on his * examination as a witness before the justice of the peace within and for Nevada County, Arkansas, duly elected, commissioned, qualified and acting and being duly authorized and empowered to administer oaths to witnesses in said court, and said Mann Slay was duly sworn by said W. J. White, a justice of the peace as aforesaid, the said W. J. White, as justice of the peace, having jurisdiction to try said cause between the State of Arkansas, as plaintiff, and Mann Slay, as defendant, the said Mann Slay unlawfully, feloniously, wilfully, falsely and corruptly testified ‘that he did not have a bottle of whiskey in his hand or ip his possession in Nevada County, Arkansas, on the 6th day of July, 1923.’ The matter so testified to being material and the testimony being wilfully and corruptly false, and the "truth being that he, said Mann Slay, did, on the 6th day of July, 1923, in Nevada County, Arkansas, have in his hand and possession a bottle of whiskey, against the peace and dignity of the State of Arkansas.”

It is contended that the indictment is fatally defective because it failed to contain an allegation that appellant (accused) voluntarily gave the testimony before said justice of the peace upon which the indictment for perjury was predicated. Under the rule announced in the case of Claborn v. State, 115 Ark. 387, the trial court should have sustained the demurrer. In that case it was said (quoting syllabus 4): “An indictment for perjury based upon alleged false swearing in a criminal proceeding pending before the grand jury, against the person himself giving the alleged false testimony, is fatally defective unless it alleges that the accused voluntarily appeared 'before the grand jury to give the testimony upon which the indictment for perjury is predicated.”

Learned counsel for the State attempt to distinguish the instant case from the Claborn case, supra, on the ground that the presumption must be indulged that appellant testified voluntarily, in his own behalf, before the justice of the peace, whereas, had he been testifying before the grand jury on a charge against himself, such presumption would not have been indulged. Had the charge been pending before the grand jury for investigation against appellant alone, he could have claimed his exemption from testifying on the ground that the information elicited would incriminate him, so it might be presumed that, had he testified before the grand jury concerning his own case, he did so voluntarily. The same presumption could be indulged whether the charge against appellant was pending before the justice of the peace or the grand jury. Essential ingredients of the crime must be set out in the charge, and will not be presumed. In other words, presumption will not support criminal charges. Allegations are required.

Indictments for perjury, each of which did’not contain a clause that the accused appeared before 'the grand jury and voluntarily gave false testimony, were upheld in the cases of State v. Roberts, 148 Ark. 328, and Warren v. State, 153 Ark. 497, but in those cases the indictments did not show that the defendants were testifying on charges against themselves only.

For the error indicated the judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

Mr. Justice Smith dissents.


author: McCulloch, C. J.

text:
    Fonville v. Wichita State Bank & Trust Company.
    Opinion delivered November 19, 1923.
    1. Bankruptcy — discharged debt as consideration for new promise. — The fact that a renewal note was given to cover a debt discharged in bankruptcy does not show a. lack of consideration, since the moral obligation was sufficient to support it.
    2. Bills/ and notes — duress.—'Where the president of plaintiff bank induced defendant to execute a new note for his debt to the bank, which had been discharged in a bankruptcy proceeding, by threatening the bank’s ill will, and the note was renewed several times thereafter, the defense of duress was not established.
    3. Contracts — “duress” defined. — To make a contract void for duress, the threats and circumstances must be of a character to excite the reasonable apprehensions of a person of ordinary courage, and the contract should be made under their influence.
    Appeal from Washington Circuit Court; W. A. Dickson, Judge;
    affirmed.

      Sullins <£ Ivie and John Mayes, for appellant.
    There was a total lack of consideration to support the contract. The court erred in directing a verdict for the plaintiff. On appeal from a directed verdict, the' evidence must be given its strongest probative value in favor of the party against whom the verdict is directed. 136 Ark. 128; 132 Ark. 441; 147 Ark. 30; 146 Ark. 555; 144 Ark. 282.

      J. W. Grabiel and1 Preston B. Cox, for appellee.
    There was no error in directing a verdict for the plaintiff. A moral obligation is sufficient to support a new promise to pay the discharged debt. 3 B. C. L. 324, § 147; 220 N. Y. 162; 1 A. L. E. 1700. A conditional promise is binding if it is shown that the condition has occurred upon which the promise was to be performed. 3 E. C. L. 327; 82 Ala. 85; 60 Am. Eep. 733; 220 N. Y. 162; 1 A. L. E. 1700. There was no duress. 3 E. C. L. Supp. 860; 26 Ark. 280; 99 Ark. 588; 138 S. W. 981; 7 Wall. 205; 14 Wall. 314; 16 Wall. 414. The question of duress was properly submitted to the court. 9 E. C. L. 717, § 7; 33 Ark. 156; 52 Ark. 425. The acknowledgment of the validity of the note was a waiver of the duress and a ratification of the contract. 9 B. C. L. 725, § 15; 10 A. & E. Enc. Law, 337; 9 B. C. L. 717; 13 Mass. 371.
   McCulloch, C. J.

Appellee is a Texas corporation, engaged in the banking business at the city of Wichita, in that State, and it instituted this suit in the circuit court of Washington County against appellant to recover on a negotiable promissory note executed to it by appellant on July 5, 1919, for the sum of $6,152.32, due and payable six months after date.

Appellant pleaded.in his answer that the note was executed without consideration, and, in support of his plea, alleged the fact to be that he was originally indebted to appellee in a sum of money, but was discharged in bankruptcy, and that the note in suit was executed solely to cover the amount of said discharged debt and interest thereon. Appellant also alleged in his answer that the execution of the note was procured by threats and acts of intimidation on the part of appellee’s officers and agents.

Evidence was adduced in the trial before a jury, but the court directed the jury to return a verdict in favor of appellee for the full amount of the note in suit, which was done.

The only question presented on this appeal is whether or not there is ally dispute in the evidence which would justify a submission of the issue to the jury.

The plea of lack of consideration presented no defense, for, according to all of the authorities on this subject,-a discharge in bankruptcy only serves to wipe out the remedy, but leaves the debt as a moral obligation, which is sufficient to serve as consideration for a new promise to pay the debt. 3 B. C. L. 324.

On the issue as to duress in obtaining the note, the facts, according to the testimony of appellant himself, were as follows: Appellant originally resided at Wichita, Texas, and, after becoming.indebted to appellee, he filed a petition in bankruptcy, and was discharged. Later lie executed a note at the request of appellee hank. The note in suit was a renewal, and the first note was executed in the year 1916, shortly after the discharge in bankruptcy. That note was due and payable in six months, and was renewed'at, or shortly after, maturity, and the renewals were continued until the note in suit was executed, dated July 5, 1919. The note in suit was the last of five renewals of the first note executed after the discharge in bankruptcy.

Appellant testified that, shortly after the discharge in bankruptcy, he opened up a place of business within two doors of the bank, and that Mr. Ferguson, president of the bank, came into his place of business one day and insisted on his giving tó the bank a new note for the debt which had been discharged in bankruptcy. Appellant’s narrative of the transaction, as given in his own language, was as follows:

“He came into my little place where I was starting a new business, and wanted me to sign another note, and I told him, I said, ‘Mr. Ferguson, my attorney advises me not to sign any new note on this bankruptcy,’ and he says, ‘Well, you want to pay it, don’t you?’ I said, ‘Tes, I would be glad to pay it all right if I was able, but I cannot sign the note because my attorney told me not to.’ He says, ‘You don’t want the ill will of this bank next door to you, do you?’ I told him I didn’t want the ill will of anybody, and he says, ‘You sign this, or you will have the ill will of this bank,’ and I still insisted on not signing it, and he insisted that if I didn’t sign it it would give me trouble all the time on my credit, and I told him I- would do anything to keep from giving me trouble. I had trouble enough going through bankruptcy, and I signed the note under the pressure of Mr. Ferguson.”

Appellant further testified that he renewed the note from time to time because the bank “had a chain around my neck, * * * and there was nothing else for me to do only to sign it.”

Our conclusion is that this testimony was not sufficient to present an issue as to intimidation or duress in obtaining the execution of the note in suit. In the case of Bosley v. Shanner, 26 Ark. 280, the court made the following declaration as to the law on this subject:

“In order that a contract or statement shall be void, because of threats or menaces, it is necessary that the threats and circumstances should be of a character to excite the reasonable apprehensions of a man or person of ordinary courage, and the promise, contract or statement should be made under the influence of such threats or menace.”

This declaration of law was quoted with approval by the court in Gardner v. Ward, 99 Ark. 588, and it is directly applicable to the facts of the present case. It does not appear from appellant’s testimony that the officer of the bank made any direct or tangible threat, but merely held out to him that, by refusing to sign the note, he would incur the ill will of the bank. This is not sufficient to constitute duress such as would avoid the contract. The parties were dealing entirely at arm’s length,- and there was no such intimidation or coercion as was calculated to put appellant in fear either of his person or property. It is certainly too much to believe that appellant was laboring under any fear or apprehension of danger for a period of three years during which time the note was repeatedly renewed. There being no evidence sufficient to justify the submission of this issue to the jury, the court was correct in ' peremptorily directing a verdict.

Judgment affirmed.


author: Wood, J.

text:
    Central Coal & Coke Company v. Lockhart.
    Opinion delivered November 19, 1923.
    1. Master and servant — negligence—question for jury. — In an action for injuries to servant operating an electric motor in a coal mine, sustained in collision with a car which had become uncoupled by reason of a defective hook, evidence held insufficient to submit to the jury on the question of negligence in furnishing a defective hook, in the absence of any evidence as to how long the hook had been defective.
    2. Master and servant — negligence—burden of proof. — An employee suing his employer for personal injuries has the burden of prowng the latter’s negligence.
    3. Master and servant — negligence as to lights — jury question. —In an action for personal injuries to one operating an electric motor in a coal mine, the question whether the employer was negligent, in failing to provide sufficient lights held for the jury.
    4. Master and servant — defenses—jury questions. — In an action for injuries to a servant operating an electric motor in a coal mine, the questions of contributory negligence and assumed risk held for the jury.
    5. Trial — instruction—assumption of disputed “fact.. — In an action for personal injuries alleged to have been caused by defective lights in a coal mine, an instruction on assumed risk held not objectionable as against contention that it assumed that there was a promise to repair.
    6. Master and servant — assumed risk — reliance on promise to repair. — A servant does not assume the risk of working with defective lights, where he continues to work for a reasonable time after the master has promised to repair the lights.
    7. Appeal and error — instruction submitting two issues — objection. — Where an instruction submitted two issues, one of which only was unsupported by evidence, the defendant could not complain of the submission of both issues, where no specific objection was saved to the submission of the unsupported issue.
    Appeal from Prairie Circuit Court, Northern District; George W. Clark, Judge;
    affirmed.

      Pryor & Miles, for .appellant; F. E. Brown and J. W. Goolsby, of counsel.
    No defect in the car or goose-neck was proved, nor was it proved that a careful inspection would have discovered a defect. 133 Ark. 336; 82 Ark. 372; 79 Ark. 437. No obligation rests upon an employer to inspect simple tools and appliances. 108 Ark. 383; 99 Pac. 131; 82 S. W. (Tex.) 1026; 141 Ky. 40, L. E. A. (N. S.) 837; 88 Ark. 36; 130 Ark. 490. There was no suck promise to repair made as to the lights as would relieve appellee of the .assumption of risk in operating the motor in the manner which he did. The promise of the electrician was that he would try and get him better lights. He did not continue to work solely on such a promise. The danger of running at an excessive speed with dim lights was apparent to him, from appellee’s own testimony. See 101 Ark. 541; 88 Ark. 34; 127 Iowa 84. Appellee assumed the risk. Leivelling Const. Co. v. Longstreth, 156 Ark. 236; 96 Ark. 387; 135'Ark. 488; 134 Ark. 491. No statutory duty on the part of appellant was violated. See 220 U. S. 590; 241 U. S. 229. A verdict based upon surmise or conjecture is not warranted. 109 Ark. 206.

      A. M. Dobbs, Bogle & Sharp and G. L. Grant, for appellee.
    Under the evidence adduced, a directed verdict in favor of appellant was properly refused. 148 Ark. 74; 120 Ark. 208; 105 Ark. 526. The promise made to repair the lights justified the servant in remaining in service. 54 Ark. 289. It was a question for the jury, taking into consideration the circumstances connected with the promise to repair, the time intervening from the time complaint was made, etc., to say that the danger was such as a person of ordinary prudence would or would not have been justified in continuing the work. 4 Labatt, Master & Servant (2nd ed.), § 1345, p. 3862; 106 Pac. 917; 88 N. W. 35; 228 111. 246. . Since appellee did not assume the risks as a matter of law, it was proper to submit the question of assumption of risk to the jury. 81 Ark. 343.
   Wood, J.

The appellee instituted this action against the appellant to recover damages for personal injuries. Among other things he alleged in his complaint that he was in the employ of the appellant in its coal mine No. 6 near Huntington, Arkansas; that he was what was known as a “motor runner,” his duties being to operate an electric motor which was run upon a track in the mine and used for the purpose of hauling empty coal-cars from the bottom of the shaft to “partings” in the entry and there picking up and hauling loaded cars back to the bottom of the shaft. He alleged that there was a defective coupling between the two fear cars in the trip of loaded cars that appellee pulled from the parting to the bottom of the shaft immediately preceding his pulling the trip of empty cars which he was pulling at the time of the collision between the motor and the loaded car; that the loaded cars were coupled by means of a hook and.chain; that the hook had been in use for a considerable length of time and had become almost straight, so that it would not hold fast, and that, while the appellee was pulling the trip of loaded cars from the parting to the shaft, the rear car in the trip became uncoupled on account of the defective condition of the hook, and stopped on the track between the parting and the shaft, without the knowledge of the appellee; that the parting boss had negligently permitted the cars coupled with this hook and chain to be included in the trip and negligently failed to inspect said hook and to warn the appellee of its defective condition and the danger incident thereto; that the lights on the motor which appellee was driving were dim and defective in that they did not throw light sufficient to enable the appellee to see any distance ahead while running the motor, and that there were no other lights in the entry to enable the appellee to see the car on the track in time to avoiding colliding with it; that the appellant did not have an inspector in the mine to inspect the track over ' which the appellee ran the motor to detect any dangers that might arise and to which the appellee would be exposed while in the discharge of his duty as motor runner : that the appellee had requested the chief electrician in the mine and his assistant, who were employees of the appellant, to repair the lights and the electricity on the motor which appellee was driving so that it would throw the amount of light customary and necessary to enable the appellee to operate the motor; that these servants of appellant promised the appellee to repair the motor, and that, by reason of their negligence in failing to repair the electrical equipment and to furnish an adequate light, the appellee was unable to see the car of coal on the track ahead of him in time to avoid the collision. The appellee charged that, on account of the negligent acts thus enumerated, the appellant had failed to exercise ordinary care to furnish him a reasonably safe place in which to work, and by reason of such failure his injuries resulted. He described the injuries, alleged that they were serious and permanent, and on account of which he had been damaged in the sum of $25,000, for which he prayed judgment.

The appellant, in its answer, specifically denied the allegations of negligence in the appellee’s complaint and denied that he was injured at the time and place and in the manner alleged, and set up as affirmative defenses contributory negligence and assumed risk on the part of the appellee.

Under the testimony adduced at the trial the court instructed the jury that the appellee relied upon the negligence of the appellant in two respects; first, that there was a defective hook that straigiitened out on one of the cars attached to the train of coal cars that appellee was pulling; and, second, that appellant had failed to equip or maintain the motor with sufficient lights to enable appellee to see obstructions upon the track, and that, by reason of these acts of negligence, the collision occurred between the motor car that appellee was operating and a loaded coal-car that had become detached from the train, which collision resulted in the injuries of which appellee complains.

The court instructed the jury that the burden was upon the appellee to prove these alleged acts of negligence, and that, unless he established by preponderance of tbe evidence one or both of them, he could not recover. The appellant asked the court to instruct the jury that, under the law and the evidence, the appellee was not entitled to recover, which prayer for instruction the court refused, and the appellant duly excepted to such ruling. The jury returned a verdict in favor of the appellee for $15,000. Judgment was rendered against the appellant for that sum, from which is this appeal.

1. The appellant contends that there was no testimony to sustain the verdict, and that the court therefore erred in refusing its prayer for a peremptory instruction directing the jury to return a verdict in its favor. The first of the alleged grounds of negligence is “that the hook had been in use for a considerable length of time, and by constant use had become almost straight, so that it would not and did not hold fast.” The testimony of the appellee concerning this is as follows: “I examined the couplings on that car and found the hitchings were straightened out. By hitching I mean. a goose-neck pinned over like that. The goose-neck is hooked to the adjoining car by a link in one end of the car which is dropped down into the goose-neck. The goose-neck was straightened out. When the goose-neck is straightened out the car will come uncoupled.” Appellee was asked this question: “Can you tell what straightened it out?” And answered, “No sir.’’ Appellee demonstrated before the jury how the hitching on the end of the draw-bar had straightened up — 'sometimes the hooks were not fixed properly, and this one was not. In his testimony appellee stated that it was the duty of Frank McCormick to set the cars out when they came out and the hooks were bad.. He was the one to whom appellee reported when the cars were in defective condition. He didn’t tell McCormick that the car was defective and that it had a straight hook — did not say anything about the defective hook on the car. Appellee, after the occurrence, did switching and helped to clear the wreck.

The above is all of the testimony in the record concerning the alleged defective hook, and it is not sufficient to warrant a finding that the hook had .been in use a considerable length of time and by constant nse had become almost straight so that it would not hold fast. The burden was upon the appellee to pr’ove the negligence alleged, and he fails to prove any negligence on the part of the appellant in regard to the defective hook. It was the duty of appellant, of course, to exercise ordinary care to furnish appellee a safe place in which, and appliances with which, to do his work. But there was nothing in the testimony adduced by the appellee to prove that the alleged defect in the hook could have been discovered by the appellant by the exercise of ordinary care before, or at the time, the loaded cars were coupled together by this alleged defective.hook. The hook was shown to be defective only by the fact that, after the collision occurred, the appellee discovered that the hook on the car with which his motor collided had straightened out. The appellee argues that this physical fact was sufficient to prove that the appellant was negligent. But not so. The appellee does not prove how long the hook had been in use, or that it had become worn and weak by constant use. In other words, for aught that the proof shows to the contrary, the hook, at the time it was used in coupling the car, to all appearances might have been in perfect condition. Or there may have been some latent structural defect that the exercise of ordinary care of inspection would not have discovered. Appellee does not prove that the hook, at the time the coupling was made, was in such condition that the exercise of ordinary care would have discovered that it was defective. There is an utter absence of evidence to prove that the appellant did not exercise ordinary care to inspect the hook before, or at the time, the cars were coupled together, and an utter absence of evidence to show that the appellant was negligent in furnishing a defective hook. Export Cooperage Co. v. Ramsey, 133 Ark. 336, and cases there cited.

2. The other ground of negligence alleged in the complaint is as follows: “That the lights on the motor which plaintiff was driving were dim and defective in this, that they did not throw a light sufficient to enable the plaintiff to see any distance ahead while running said motor, and there were no other lights in said entry which would enable the plaintiff to see the car on the track in time to avoid colliding with it.” The appellee testified concerning this ground of negligence substantially as follows: “The lights on the motor were dim. There were not any lights on the motor at the time of the collision.” Appellee spoke to one Orrick, who was the proper man to speak to in regard to the lights, and also to one Daffron, who was the electrician Under Orrick. He told them that the lights were dim, and he would like to get better lights. They told appellee they would try to get him better lights. They hadn’t furnished appellee with any better lights up to the time appellee was injured. They didn’t tell appellee how long it would be before they would get the fights. The injury occurred “ two or three days, and maybe a day,” after they told appellee they would get better fights. Appellee made complaint to them “about two or three or four or five times— something like that.” If there had been the proper fight, appellee could have seen the car before he got to it, and had plenty of time to stop. There were no fights on the first west entry at the time appellee was injured, between the doors and- the first west door. Appellee had been operating the motor over two years — maybe three years —before, and they had the same fights on it all the time he was operating it; one at the front and one at the back. Appellee had complained to the electrician about the fights four or five times within the three days before he got hurt. He told him the fights were dim and getting dimmer all the time; that “they were not getting the proper amount of juice. The joints kept getting worse. They were getting dimmer a month or two and getting worse all the time. Sometimes the head of it would get to where it would pop kind o’ like a pistol.” The,accident happened within a day or two after appellee made complaint. Appellee was asked why he didn’t complain about the lights growing dim two or three months before, when he observed it, and answered that he had said something’ or other to him (the electrician) about the joints being fixed. He went and told him about the joints being fixed and complained to him about the lights being dim — about the joints. When the motor was operating the lights were dimmer, and when the'motor was standing still the lights were bright. Appellee was asked whether the same voltage went into the lights as in the motor resting on the rails, and answered that they couldn’t get the same juice because where the rail was so small it wouldn’t carry it. The appellee was asked what he meant by the “joint” of the lights, and answered, “A short piece of wire they used in different places,” and demonstrated before the jury what he meant. There was a clamp like a railroad wire where you put a splice in it, and this, wire is in under and connected with the rail on which the motor runs. The electricity comes down through the wire, and when these wires get loose there isn’t much motive power. The juice would not go through the wire. The joints had been getting loose that way for two or three months. They were getting bad— getting worse all the time. They were not dim that way when appellee first came back from the war. Appellee could see further then than he could at the time of the injury. There was one light right near the parting — ■ they called it on the parting. By that light the boys could see to work at that place.

Witness Orrick testified that he was the electrician for the appellant, and, among other things, he explained the system by which the mine was furnished with lights and power to run the motor as follows: “The system was what you would call a continuous return, because we had a continuous rail strung along by the side of the track, and this was a copper wire here, and then the rails at the joints had iron fishplates under them; strips of copper wire under the fishplates and bolted down with the fishplates, and about every 200 or 300 feet there was wire running off under these fishplates and connecting to this continuous wire by the side of the track, which made a continuous ground metallic circuit. The wire was used to conduct the current from the return of the motor. The wire conducted the electricity from the motor by coming in contact with the wheels of the motor. If wire got covered up with dirt and coal it would interrupt the current some and would have effect on the lights. If there was a great deal of dirt the lights would get dimmer or go out, depending upon the amount of dirt on the rail. On cross-examination the witness was asked the following question: “You have seen electric bulbs ■ — be sitting in a house, and the lights almost go out, and all that would be left would be a red wire in there, and it didn’t issue any light hardly; what is the cause of a condition of that kind?” And he answered, “Reduced voltage.” He was then asked: “ Could that same condition exist with reference to headlights on the motor and at the same time not affect the operation of the motor?” And answered, “Yes sir.” He further testified concerning the promise to repair, that the appellee had complained to him “about the trouble on the motor in July, and it was repaired” — that the lights were incandescent lights, and when broken they would be repaired; that no report was ever made by the appellee to him that the lights were constantly growing dimmer; that he put lights in the entry anywhere the plaintiff would ask for them.

The testimony of the appellee tended to prove that he was employed by the appellant as a “motor runner.” His duties as such were to operate the motor which was run by electricity, and this motor pulled empty cars from the bottom of the shaft to what is known as the parting in the entry, and loaded cars from the parting back to the bottom of the shaft. While appellee was performing this work, one of the loaded cars in the string of cars appellee was pulling out of the parting uncoupled itself, without the knowledge of the appellee, and stopped in a swag in the track along the entry. When appellee was returning with a string of empty cars his motor collided with this detached loaded car. At the time of the collision appellee was sitting sidewise. He demonstrated to the jury the position he was in. He stated he had his head turned back toward the entry. It was. dark there. He could see ten or fifteen, or maybe twenty feet, ahead, but couldn’t see good. He was maybe twenty feet from the car with which he collided when he first saw it. The motor was running at full speed, about fifteen miles an hour. He did all he could to prevent the motor from colliding with the car after discovering* it. He detailed the efforts he made, and stated that was the proper way to handle the car in an emergency of that kind. The motor struck the loaded car with full force, which caused some of the coal with which the car was loaded to strike the appellee in the back, injuring him severely.

There was testimony to the effect that the appellee had worked in and about the mines in almost every capacity ever since he was ten or eleven years old, and was experienced in the line of work he was performing. It was his duty as a “motor runner” to watch out for cars or .for any other obstruction on the track. At the time of his injury appellee was running at the-same rate of speed that he had been running the motor for two or three years. The speed could have been reduced and the motor run slower by putting the motor on resistance, but that had never been done.

Now, w.e are convinced from the above testimony that the issue as to whether appellant was negligent in failing to exercise ordinary care to provide sufficient lights, to enable the appellee to .perform his duties in safety, and the issue as to whether appellee had exercised ordinary care for his own protection and safety, and likewise the issue as to whether or not the appellee assumed the risk, were all issues for the jury. The court therefore did not err in refusing appellant’s prayer for a directed verdict in its favor.

The appellant does not contend here that there was any error in the instructions of the court in submitting the issues of negligence and contributory negligence to the jury. It only contends that there was no evidence to warrant the submission of these issues to the jury, and further contends that the court erred in granting the appellee’s prayer for instruction on assumed risk as follows:

“No. 8. If you find that it was proper for Lockhart to call upon the electrician to repair the electric equipment, in case it got out of order, and that he called upon said electrician to make such repairs, and the electrician in charge had the authority to make the repairs, without consulting the pit boss, and that the said electrician failed to make such repairs, or to have them made, within a reasonable time thereafter, and Lockhart continued to work, relying upon the promise that the same would be repaired, and that a reasonably prudent and cautious person would have done so, then the plaintiff would not be guilty of an assumed risk.”

The appellant now contends that the above instruction is fatally defective because it assumes that there was a promise to repair. While the definite article the ’ ’ before the word “promise” would justify that construction if especial emphasis were laid on the word “the,” yet it is obvious that, when the entire phraseology of the instruction is considered, and when the instruction is also considered in connection with instruction No. 7, given at the instance of the appellant, the trial court did not intend to assume that a promise of repair had been proved by the undisputed evidence, and did not intend to tell the jury to treat this as an established fact. The word ‘ ‘ the ’ ’ in connection with the other words in which the sentence is couched should be treated as a mere expletive used rather for euphony than for emphasis. If it had been omitted, or the indefinite article “a” substituted in its stead, the sentence and the sense would have been complete and would have as clearly expressed the purpose which the trial court evidently had in mind. ’Such purpose was to submit to the jury the issue as to whether or not it was proper for the appellee to call upon the electrician rather than the pit boss to repair the electric equipment and to tell them, if such was the fact, and if the electrician had the authority to make the repairs, and promised to make them, and failed to do so within a reasonable time thereafter, and if appellee continued to work relying upon such promise, then he did not assume the risk.

It occurs to us that, when the instruction is viewed in the light of the evidence, it should be read as though the subjunctive “if” with which the instruction begins should be treated as qualifying each distinct proposition embraced in the instruction, thus, in effect, telling the jury that the existence or nonexistence of such proposition as a fact was submitted for their determination. If, at the time the instruction was offered, counsel for appellant conceived that the use of the word “the” had the effect of assuming that there was a promise of repair and that it was the purpose of the court to invade the province of the jury and to treat as a fact established an issue that was open for dispute, as they now contend was the effect of the instruction and the purpose of the court, then certainly they should have -notified the trial court of their insistence by a specific objection. If counsel had done so, doubtless the court would have changed the phraseology by using the indefinite article, or by omitting the article entirely, which change would have corrected the instruction to meet appellant’s view. This is peculiarly a case where it was the duty of appellant to lay its finger upon the specific word which it now contends deprived them of the right to submit an important disputed issue of fact to the jury. Pekin Stave Co. v. Ramey, 108 Ark. 490; Rittenhouse v. Bell, 106 Ark. 321, and cases there cited. See also Castevens v. State, 79 Ark. 455; Pettus v. Kerr, 87 Ark. 396; St. Louis, I. M. & S. Ry. Co. v. Sparks, 81 Ark. 187; A. L. Clark Lumber Co. v. St. Coner, 97 Ark. 358; Strickland v. Strickland, 103 Ark. 183, and numerous other authorities cited in 1 Crawford’s Digest, Appeal and Error, page 166, §94 (4).

Instruction No. 8 was predicated upon the evidence adduced on the issue of assumed risk, and correctly declared the law in submitting that issue according to numerous decisions of this court. In St. L. I. M. & S. Ry. Co. v. Holman, 90 Ark. 555-565, we said: “The effect of a promise to repair by the master, and of the continuance in his service by the servant, in reliance upon the promise, is to create a new stipulation whereby the master assumes the risks impendent during the time specified for the repairs to be made. “Where no definite period is specified in which the given defects are to be remedied, the suspension of the master’s right to avail himself of the defense of assumption of the risk by the servant con- • tinues for a reasonable time. No matter how obvious the defects or how imminent the perils therefrom, the servant, pending the promise of the master to repair, does not assume the risk of the given defects by continuing in the master’s service in reliance upon his promise. For, as was said by the Supreme Court of Illinois in Swift & Co. v. O’Neill, 187 Ill. 337: ‘By the uromise of the master a new relation is created between him and the employee whereby the master impliedly agrees that the servant shall not be held to have assumed the risk for a reasonable time following his promise.’ ”

In the above case we also quoted from Judge Cooley as follows: “If the servant, having a right to abandon the service because it is dangerous, refrains from doing so in consequence of assurances that the danger shall be removed, the duty to remove the danger is manifest and imperative, and the master is not in the exercise of ordinary care unless, or until, he makes his assurances good. Moreover, the assurances .remove all ground for the argument that the servant, by continuing the employment, engages to assume the risk.” Cooley on Torts, p. 1157; see also Markham v. Three States Lumber Co., 88 Ark. 34, and numerous authorities cited in the above cases. There are many subsequent cases to the same effect.

The doctrine of the above eases is applicable to the facts of this record. It was an issue for the jury, under the evidence, as to whether or not there was a promise to repair and whether or not the appellee continued in the service of the appellant in reliance upon such prom- . ise. The jury has resolved these issues against the appellant, and its verdict is conclusive here.

3. “While the appellant objected to the ruling of the court in refusing its prayer for a directed verdict in its favor, it did not pray for an instruction telling the jury that there was no evidence to sustain the allegation of negligence as to the defective hook, nor did it object specifically to that part of instruction No. 1 in which the court told the jury that this was one of the alleged issues of negligence to be considered by them. The evidence did not warrant the submission of this issue, but it was submitted in an instruction which also submitted the issue as to whether or not appellant was negligent in failing to. equip and maintain the motor with sufficient lights. The latter issue, as we have seen, was proper to be submitted to the jury under the evidence, and was correctly submitted. Since the appellant did not make a specific objection to the court’s instruction No. 1, on the ground that one of the issues submitted was not sustained by the evidence, and did not pray for an instruction specifically telling the jury that there was no testimony to sustain this allegation of negligence, the appellant is not in an attitude to complain here because the court erred in failing to eliminate that issue from the consideration of the jury. The appellant made no such request. See Darden v. State, 73 Ark. 315; Bruder v. State, 110 Ark. 402-411.

The record presents no reversible error, and the judgment must therefore be affirmed. It is so ordered.

        7. The court instructs you that the mere fact, if a fact, that the plaintiff, while in the employ of the defendant, made complaint to the electrician or to his helpers with reference to the lights being dim on the car, but that no complaint was made to the pit boss, who was the agent in charge of the underground operations of said mine, then, under the law, such a complaint would not relieve the plaintiff of having assumed the risk of any injuries arising from the defective or dim light.”


author: Hart, J.

text:
    Johnson v. State.
    Opinion delivered November 19, 1923.
    1. Larceny — sufficiency of evidence. — Evidence held sufficient to support a conviction of grand larceny.
    2. Witnesses — impeachment of accused. — In a prosecution for stealing a heifer, cross-examination of defendant as to whether he had been indicted for stealing other cattle was reversible error.
    Appeal from Clark Circuit Court; James 3. McCollum, Judge;
    reversed.

      D. F. McElhannon and McMillan & McMillan, for appellant.
    J. S. TJtley, Attorney General, John L. Carter, Wm. T. Hammock and' Darden Moose, Assistants, for appellee.
   Hart, J.

J. E. Johnson prosecutes this appeal to reverse the judgment of conviction against him for the crime of grand larceny, charged to have been committed by stealing a heifer from J. B. Boyd, in Clark County, Arkansas.

The first assignment of error is that the evidence is not legally sufficient to support the verdict.

According to the testimony of J. B. Boyd, in the fall of 1921 he owned a spotted heifer about two and a half years old, marked with a crop and two splits off of the left ear and a split in the right ear. The heifer ran on the range, but was at Boyd’s home in Clark County, Arkansas, on Friday morning, about the 20thof October, 1921. On the next Friday morning Boyd found the heifer in the possession of Rube Gillam, a butcher and cattle buyer, in Hot Springs, Arkansas. Several other persons who knew the heifer identified her as the property of J. B. Boyd. Gillam. gave the heifer up to Boyd, and the latter drove her to his home in Clark County.

Rube Gillam testified that he had bought this heifer from J. E. Johnson a week or ten days previously. This evidence, if believed by the jury, was sufficient to support a verdict of guilty against the defendant. . But it is insisted that this testimony is overcome by the testimony for the defendant.

According to the testimony of the defendant himself and of other witnesses in his behalf, he bought the heifer in controversy from Cleve Turner in Clark County, Arkansas, during April, 1921. The heifer which the defendant bought from Turner was running on the range, and was allowed to run there until the latter part of October, 1921. At. that time the son of the defendant and another boy drove in the heifer as the one which the defendant had bought from Turner some time during the previous spring. The defendant was not certain whether the heifer was the one he had bought from Turner, and .sent for Turner to identify the heifer. The defendant and other witnesses for him testified that Turner identified the heifer as the one which he had sold to the defendant. The defendant then drove the heifer with other cattle to Hot Springs and sold them to Rfube Gillam.

Cleve Turner was a witness for the defendant. According to his testimony, he admitted going over to Johnson’s in the fall of 1921, and identifying a heifer which he had sold to Johnson during the previous spring. On cross-examination, however, he stated that, as soon as J. B. Boyd brought back the heifer in question from Hot Springs, he went to examine her, and found that the heifer was not the same one which he had sold the defendant.

The evidence of the defendant, if true, showed that he did not steal the heifer in question, but the evidence in his behalf did not conclusively overcome the evidence for the State. The jury might have believed that the , heifer found at G-illam’s in Hot Springs was the one testified to by Boyd as belonging to him, and that the. defendant took her off of the range and sold her to G-illam as his own, well knowing that she did not belong to him. The jury might have found that Turner was telling the truth on his cross-examination, when he stated that the heifer which Boyd brought back from Hot Springs was not the one which he had sold to the defendant during the previous spring.

It follows that the evidence for the State, if believed by the jury, was legally sufficient to support the verdict.

The next assignment of error is that the court erred in allowing the prosecuting attorney to ask the defendant if he had not been indicted in other cases for stealing other cattle up there.

The court, over the objection of the defendant, permitted him to answer the question in the affirmative, and stated to the jury that the evidence was admissible on the question of the credibility of the defendant as a witness. This assignment of error is well taken.

In the case of Bates v. State, 60 Ark. 450, this court held that it is error to permit the defendant in a criminal case to be asked on cross-examination whether or not he has been previously indicted for a felony, and that his answer that he was indicted but acquitted does not remove the prejudice that may have resulted. Again, in Hunt v. State, 114 Ark. 239, it was held that, where the defendant in a criminal prosecution offers himself as a witness, on cross-examination it is improper to ask him concerning an indictment or accusation against himself, but, for the purpose of testing his credibility, he may be asked about a judgment of conviction.

In this 'connection it may be said that the transcript in the case of Clayton v. State, 159 Ark. 592, shows that no objection was made by tbe defendant to bis cross-examination with reference to indictments against him for other offenses, and all reference thereto is considered as eliminated from that opinion as not being within thé issues raised by the appeal.

Fof the error in permitting the question and answer the judgment is reversed, and the cause remanded for a new trial.