author: Hart, J.,

text:
    Stephens v. Neely.
    Opinion delivered November 19, 1923.
    1. Partnership — definition.—A partnership is a voluntary contract of two or more persons for joining together their money, goods, labor and skill, or either of them, upon an agreement that the gain or loss shall be divided proportionately between them.
    2. Partnership — evidence.—Participation in the profits of a business is of itself cogent proof that the person who does so is a partner, and, if unexplained, may be conclusive proof.
    3. Partnership — participation in profits. — While an agreement to share profits, standing alone, is sufficient to establish a partnership as to third persons, it is not conclusive; and where one is interested only in the profits of a business as a measure of compensation for services rendered, he is not a partner.
    4. Partnership — jury question. — In an action on a partnership note the question whether a defendant who participated in the profits of the company was a partner or received such share of the profits merely as compensation for his services, held for the jury under the testimony.
    5. Partnership — liability of incoming partner.' — An incoming partner is not liable for existing debts, unless he makes himself so by express agreement or by such conduct as will raise the presumption of a special promise.
    6. Partnership — implied agency. — The law of partnership is but a branch of the law of principal and agent; the ground of liability of one partner for the acts of the other being that of implied agency within the scope of the partnership.
    7. Limitation op actions — payment tolling statute. — Whether an incoming partner becomes liable on an existing note of the old partnership depends upon whether he assumed such indebtedness, and, in the absence of such assumption, he will not be bound by
      payments made by a member of the old firm, nor precluded from pleading the statute of limitations against such note, though he admits having signed it for accommodation.
    Appeal from Phillips 'Circuit Court; J. M. Jackson, Judge;
    affirmed.
    STATEMENT OF FACTS. '
    - ‘ H. Gr. Stephens and Gr. H. Friberg, as executors of the estate of Helena Hanks, deceased, brought this suit against Jack McDonald and M. Neely,, alleging that they were partners under the firm name of McDonald Bros., and seeking to recover upon a promissory note for $10,000 dated March 27, 1914, and payable to the order of Mrs. Helena Hanks, and signed by McDonald Bros.
    It is alleged and proved that this note was given as a renewal of a similar note for the same amount executed in 1910, payable to the same person and signed “McDonald Bros.”
    According to the evidence adduced in behalf of the plaintiffs, a firm composed of W. D. Reeves, Dan McDonald and Jack McDonald was organized in 1889, to operate a sawmill in Eastern Arkansas. The business prospered, and continued until some time in 1893, when W. D. Reeves withdrew from the firm. Some time in 1905 Dan McDonald died. His widow, continued in the business, and it was run in the partnership name until some time in March, 1914. At that time Mrs. McDonald sold out her interest in the business to Jack McDonald and M. Neely. After the purchase Jack McDonald had a three-fourths interest in the partnership and M. Neely a one-fourth interest in it. The note in this suit was given for money borrowed by the firm, and was a renewal note. When Mrs. McDonald sold her interest in the business, Jack McDonald and M. Neely executed their joint note to her for the amount paid her. After Mrs. McDonald'sold her interest, the name of M. Neely was placed in the letterheads of the firm.
    M. Neely was the principal witness -for- himself. According to his testimony, he was never interested in the partnership of McDonald Bros., but had only worked for the firm as an employee. He first began to work for Dan and Jack McDonald in 1887, in the State of Tennessee. He was employed by them as a lumber inspector. Afterwards they moved to Arkansas, and, in 1889, formed a partnership with W. D. Reeves. Neely came to Arkansas with them and continued to work for them as lumber inspector. The firm was dissolved in 1893 by the retirement of Reeves. Dan McDonald and Jack McDonald continued in the lumber business in Arkansas. Reeves offered Neely employment in a new business which he was organizing, and Dan McDonald told Neely that if he would stay with the -old firm he would give him an interest in the profits. In 1902 it was agreed that Neely should receive a stated salary and one-fourth of the net profits for his compensation. This agreement was not changed after the death of Dan McDonald, and continued until 1915. Neely helped in the management of the business, and stated that he subsequently allowed his name to be placed upon the letterheads of the firm, not because he was a partner, but because Jack McDonald told him that it would help the trade, because he was so well acquainted with the customers of the firm. When the widow of Dan McDonald sold her interest in the firm to Jack McDonald, Neely signed the note along with the brothers of Jack McDonald. He signed the note simply as an accommodation to Jack McDonald, and had no interest whatever in the firm. Neely admitted that sometimes he did not draw out all of his part of the profits, and allowed his share to be used by John McDonald in carrying on the business. He stated, however, that he allowed his share to remain in the business, not because he was a partner, but because he did not at the time need to draw out his share. His share of the profits was for -services rendered by him, and he had a right to draw out what the firm owed him at any time, regardless of its condition.

      The jury returned a verdict in favor of the plaintiffs against Jack McDonald, but found in favor of the defendant Neely. Judgment was rendered accordingly, and to reverse that judgment the plaintiffs have duly prosecuted an appeal to this court.

      W. G. Dinning, for appellants.
    1. The evidence, especially Neely’s admissions that, for a period of sixteen years, he received one-fourth of all the profits earned by the firm, that he reinvested the major portion thereof in the business for the purpose of increasing and expanding it, and that he received one-fourth. of all the profits earned by the increased operations of said business, shows such a community of interest in the capital employed, each sharing of the profits and joint management and operation of the business, as to prove the existence of a partnership. 20 R. C. L. 830; Id. 836; 8 H. L. Cas. 268; 65 U. S. 536; 107 Ya. 476; 18 L. R. A. (N. S.) 962; 106 Ya. 365, 56 S. E. 148; 87' Ark. 417; 63 Ark. 518, 525; 74 Ark. 442; 145 U. S. 611; 22 Howard, 330, 332; 138 Ark. 288; 144 Ark. 627; 143 Ark. 444.
    2. The question of the statute of limitations has no place in the case. If Neely was not a partner of the firm of McDonald Bros, at the time of the execution of the note, he is not liable for its payment. If he was a partner at that time, he was jointly liable with Jack McDonald for its payment, and payments made by the latter tolled the statute as to all the debtors. 142 Ark. 180. The' fact that these payments represented interest did not prevent them from stopping the running of the statute. 146 Ark. 64.

      J. G. Burke and'Coleman, Robinson & House, for appellee.
    1. On the question of partnership the court instructed the Jury, correctly defining the test of partnership, and the jury’s verdict must be taken as conclusive on that issue. As to the law defining these tests, see 93 Ark. 526; 143 Ark. 439; 63 Ark. 518; 74 Ark. 442; 44 Ark. 424; 138 Ark. 231; 137 Ark. 89. .
    2. Instructions given at appellee’s request were not abstract. An incoming partner in an existing business assumes no liability for previous debts of the concern, unless lie does so by express agreement, or so conducts himself as to raise the presumption of a special promise. 49 Ark. 457. On the question of limitations, the rule that the payment of interest would toll the statute could apply to Neely only in the event he was a partner when the debt was originally created. If he was not a partner at that time, but afterwards became a partner, he could not be held liable for the debt, except upon a special promise to pay it, and, if that promise was oral, the three-year statute would apply. 47 Ark. 317; 138 Ark. 602; 94 Fed. 468; 164 IT. S. 502.
   Hart, J.,

(after stating the facts). Jack McDonald made no defense to the action against him on the promissory note by the plaintiffs. It seems that the main purpose of the action in the circuit court was to charge M. Neely as a partner with Jack McDonald on the promissory note which the firm of McDonald Bros, had executed to Mrs. Helena Hanks in the sum of $10,000 on March 27, 1914. It appears that certain payments were made on the note by Jack McDonald from time to time until the 2d day of April, 1918, and that this suit was instituted on September 27, 1921, to recover the balance due.

It has often been said by judges and text-writers that it is not practical to give a definition of-partnership that will cover all cases. In defining a partnership in the early case of Howell v. Harvey, 5 Ark. 270, this court said:

“A partnership, in its most significant and extended sense, is a voluntary, contract of two or more persons for joining together their money, goods, labor, and skill, or either of them, upon an agreement that the gain or loss shall be divided proportionately between them, and having for its object the advancement and protection of fair and open trade.”

In later cases this court has said that a partnership may be defined as the relation existing between two or more persons who have agreed to carry on a business together, and to share the profits thereof as the joint owners of the business. This court has also held that participating in the profits of a partnership is of itself cogent proof that the person who does so is a partner, and that, if unexplained, this may be conclusive proof. Johnson v. Rothschilds, 63 Ark. 518; Herman Kahn Co. v. Bowden, 80 Ark. 23, and cases cited, and Mehaffy v. Wilson, 138 Ark. 28.

In these cases this court has recognized that, while the agreement to share profits, standing alone, is sufficient to constitute a partnership as to third persons, it is not conclusive, and that, where it is shown that the division of the profits was merely a measure of compensation, there is no partnership. Where one is only interested in the profits of a business as a measure of compensation for services rendered, he is not a partner. In short, the participation in the profits might make him a partner, but not necessarily so. It would depend upon the intention of the parties as expressed by the terms of the agreement.

In the present case it is not contended that there were any written articles of partnership. Therefore, whether such relation actually existed is a question- of fact to be determined from the evidence in the case, and upon the trial of that question there is no sound foundation requiring a jury to regard participation in the profits as a decisive test of the partnership which will render the participator in such profits liable for the debts of the partnership.

Here it must be admitted that there was strong proof to show that M. Neely became a member of the partnership áfter the widow of Dan McDonald sold out her interest therein. He 'signed a note to her for her share in the business, and he permitted his name to be used upon the letterheads of the firm. He also received a division of the profits. However, as above stated, this evidence was not conclusive.

Neely testified that he received a share of the profits under an agreement made with Dan McDonald in his lifetime. This agreement was made in 1902, and was not changed after the death of Dan McDonald. Neely continued to work under the agreement that he was to receive a salary and one-fourth of the net profits until he left the firm in 1915. He had the right to draw out any commissions that the firm might owe him at any time, and did so. His testimony is corroborated by that of the bookkeeper as to the manner in which the books showing his accounts were kept.

It is true that Jack McDonald testified positively that M. Neely bought an interest in the business, but his testimony is flatly contradicted by that of Neely. The testimony of Neely that he never became a partner in the business is a matter of which he had personal knowledge. He knows whether or not he made an agreement with Jack McDonald to buy out the interest of the widow of Dan McDonald and to become a member of the firm. His testimony, then, was of a substantive character, and, if believed by the jury, warranted it in returning a verdict in his favor.

It is next insisted that the court erred in giving the following instruction:

“If you find from the evidence that Neely was not a partner when the note was executed, but that he after-wards became a partner, and by special promise or agreement assumed liability for the debt evidenced by the note, then the court charges you as a matter of law that he is liable only on such special promise or agreement, and, if the promise or agreement was not in writing, the three years’ statute of limitations began to run thereon the 27th day of March, 1915.”

We cannot avree with counsel for the plaintiffs in this contention. There is no presumption that an incoming partner of an existing partnership assumes liability for the previous debts of the concern. He is not bound for such debts unless he makes himself so by express agreement, or by such conduct as will raise the presumption of a special promise. Ringo v. Wing, 49 Ark. 457. The promissory note signed by McDonald Bros, is the basis of this action. The law of partnership is but a branch of the law of principal and agent. The ground of liability of one partner for the acts of the other is that of implied agency within the scope of the partnership. If Neely was bound by the fact that McDonald had made payments on the note after he became a member of the firm, then he could not even show that he had not assumed the debts of the old firm. The credit of a new member of a firm does not enter into the consideration of the creditors of the old firm, and it would be manifestly unjust to hold the new partner liable unless he, by an express or implied agreement, assumed the debts of the old firm. Hence if Neely is liable at all in the present case, it is upon an express or implied agreement to pay the debts of the old firm. If his liability depends upon maldng such an agreement, he has the right to plead the statute of limitations in regard thereto, and his plea of the statute in bar of his liability could not be defeated by showing that his partner had made a payment on the old indebtedness since the time it is claimed he became liable therefor. In such cases it will be presumed that the partner made the payment in discharge of his own obligation, and the burden of proof would still be upon the creditor to show that the incoming partner has assumed the debts of the old firm. Hence this assignment of error is not well taken.

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


source: Caselaw Access Project

license: Public Domain

text:
    Missouri Pacific Railroad Company v. Hall.
    Opinion delivered November 19, 1923.
    1. Commerce — employers’ liability act — unloading ties. — A cause of action under the Federal Employers’ Liability Act arose when a railroad laborer was injured! on the main line of an interstate carrier, while unloading ties to be used in repairing the main track of said railroad.
    2. Master and servant — interstate! commerce — evidence.—Where a section-hand was injured while unloading ties on a work-train, evidence held to show that the injury was received while he was engaged in unloading ties on the main line of defendant, within the Federal Employers’ Liability Act (U. S. Comp. St. §§ 8657-8665).
    3. Master and servant — negligence in stopping train — jury question. — In an action for injury to a railroad employee while engaged in unloading ties, whether defendant was negligent in suddenly stopping the train, causing him to receive injuries, held a question for the jury.
    ' 4. Damages — instruction—In view of evidence from which the jury might have inferred that the injuries to plaintiff’s hand were permanent, held that it was not error to submit the question of their permanency to the jury.
    5. Master and servant — assumed risk — instruction.—In an action under the Federal Employers’ Liability Act for injuries received by plaintiff while engaged in interstate commerce, an instruction that plaintiff did not assume the risk of the negligence of fellow-servants was erroneous.
    6. Appeal and error — instruction—prejudicial error. — In an action for injuries received by plaintiff while unloading ties on a work-train, an instruction that plaintiff did not assume the risk of the negligence of fellow-servants was prejudicial, where the jury might have found that, from the experience plaintiff had previously had, he knew and appreciated the danger of stopping the train with a more sudden jerk than usual, and that he assumed the risk, therefrom.
    Appeal from Franklin Circuit Court, Ozark District; James Cochran, Judge;
    reversed.
    STATEMENT OF FACTS.
    James Hall sued tbe Missouri Pacific Railroad Company to recover damages for personal injuries alleged to have been received by Mm wMle in tbe employment of the defendant, and'to have been caused by the defend-, ant’s negligence.
    ’ It appears from the pleadings and the proceedings throughout the case that the action was based upon the statutory liability created under the act of Congress commonly referred to as the Federal Employers’ Liability Act.
    The plaintiff and several other employees who were working with him, and who witnessed the accident, testified in his behalf at the trial. It appears that the plaintiff was injured while he and another section man were throwing ties out of a box-car. A work-train was unloading ties between Mulberry and Fort Smith, Arkansas, for the purpose of putting the ties in the railroad track. The ties were being unloaded as the train moved along at a speed estimated from two, three, or four miles per hour. The work-train had been unloading ties for two or three days, and had gone from the Mulberry section to the Dyer section towards Yan Burén. The train would move forward a short distance, and stop. The section men kept throwing out the ties, whether the train stopped or was in motion. One of the section crew would take hold of the front end of the tie, and another the rear end of it, and then walk to the side door of the car and, after giving the tie a swing, would throw it on the ground. On the morning of the accident Hall was the front man, and just as they went to swing the tie out of the door, the train came to a stop, and Hall’s hand was caught between the end of the tie and the facing of the door of the car. The car was an ordinary box-car with side doors, so that the workmen could not tell when the train was going to stop. While Hall and his fellow-workman were in the act of throwing the tie from the car, after giving it a swing, the train was stopped with a sudden jerk, which caused his hand to be caught between the end of the tie and the door-facing of the car. Tbe work-train took up all slack when it was stopped. The jerk was of a more sudden and violent kind than was usual when the train was stopped.
    According to the evidence for the defendant, the work-train was stopped in the usual and customary way. There was no jerk which was more sudden and different from the ordinary jerk caused by the train’s being stopped. Other facts will be stated or referred to in the opinion.
    The jury returned a verdict for the plaintiff, and from the judgment rendered the defendant has appealed.

      Thos. B. Pryor and Vincent M. Miles, for appellant.
    A verdict should have been directed for defendant, since plaintiff did not prove that he was engaged in interstate commerce at the time he was injured, because his suit was based upon the Federal Employers’ Liability Act. 229 U. S. 146233 H. ,S. 473. The evidence showed that plaintiff assumed the risk, which is an absolute defense under the Federal Employers’ Liability Act. 233 U. S. 492; 241 IT. S. 229. See also 144 Ark. 227 on assumption of risk. Instruction number 3 was erroneous in that it told the jury that, under no circumstances, would a servant assume the risk of injury resulting from the negligence of a fellow employee. 135 Ark. 481. Instruction number 4 was erroneous in that it permitted an assessment of damages for permanent injuries, whereas there is no testimony that the injury is permanent. 109 Ark. 29; 106 Ark. 177.'

      George G. StocTia/rd, for appellee.
    Instruction No. 3 complained of was not specifically objected to nor the alleged error pointed out, and it is too late to complain on appeal. 76 Ark. 348; 95 Ark. 220; 93 Ark. 521; Id. 589; 104 Ark. 327.
   Hart, J.,

(after stating the facts). It is conceded that the action was brought under the Federal Employers’ Liability Act, and that in such cases it has been held by the Supreme Court of the United States, and by this court, that the work of repairing the roadbed and bridges of a railroad after they have become instruments of interstate commerce, and maintaining them in proper condition for the passage of interstate trains, is within the Federal statute. Pedersen v. Delaware, L. & W. R. Co., 229 H. S. 146; Illinois Central Railroad Co. v. Behrens, 233 U. S. 473; Southern Pacific Company v. Industrial Accident Commission of California, 251 U. S. 259; Erie Railroad Co. v. Collins, 253 U. S. 77; Long v. Biddle, 124 Ark. 127; Treadway v. St. L. I. M. & So. R. Co., 127 Ark. 211, and Kansas City Southern Ry. Co. v. Leinen, 144. Ark. 454.

'But it is insisted by counsel for the defendant that the evidence is not legally sufficient to sustain the verdict within the principles of law above announced. We cannot agree with counsel in this contention. The complaint alleges and the answer admits that, at ,the time the plaintiff was injured, and for several years prior thereto, the Missouri Pacific Railroad Company was a corporation engaged in the business of transporting passengers and freight for hire as a common carrier by railroad in interstate commerce from Coffeyville, Kan., to Little Rock, Ark. It appears from the testimony of two of the witnesses for the plaintiff that, at the time the plaintiff was injured, he was unloading ties from a work-train, and that the ties were to be used for the purpose of repairing the railroad track. The work was being done on the Mulberry and Dyer sections between Mulberry and Van Burén, in the State of Axkansas.

The section foreman of the defendant testified that he had been working for the defendant as section foreman for twenty-six years, and was with the work-train on the morning the defendant was injured. On cross-examination he was asked how long he had been working for the defendant, and answered twenty-six years. He was then asked this question: “On that same section?” and replied, “No sir, from Van Burén to Little Rock.”

. It is fairly inferable from this evidence that the defendant was injured on the main line of defendant’s road from Coffeyville, Kansas, to Little Rock, Arkansas, and that he was injured between Mulberry and Van Burén, Arkansas, while unloading ties to be used in repairing the main track of said railroad. This established a cause of action under the Federal Employers’ Liability Act, if the defendant was guilty of negligence.

It is also inferable from the testimony that the work-train where the plaintiff was working when he was hurt was stopped with a more sudden jerk than usual, and that this caused him to, in a manner,.lose control of his end of the tie, so that his hand was caught between the tie and the door-facing of the car. It appears that the plaintiff had been working there for two or three days, and the jury might have inferred that he was accustomed to the ordinary jars caused by the ordinary stoppage of the work-train and could take care of himself in that situation. According to his testimony, a different situation presented itself by the work-train’s being stopped with a jerk more sudden and violent than usual. This, as above stated, caused him to lose control of his movements to a certain extent, and caused his hand to be caught between the tie and the door-facing, just as he was preparing to help throw the tie out of the car, after having given it a swing. The testimony of the plaintiff then made a question for the jury as to the negligence of the defendant.

Again, it is insisted by counsel for the defendant that the court erred in submitting to the- jury the question of the plaintiff’s injuries being permanent.

We cannot agree with counsel in this contention. According to the testimony of the plaintiff, he was injured on July 8, 1921, and it appears from the record that the case was called for trial on the 28th day of September,' 1922. The plaintiff testified that his hand could not be used for five or six months after it was hurt, and that it was still swollen. He further stated that his thumb bends back in a way that is not normal; that he can work it with his other hand and can only close his hand in a certain way. He was further asked if he could use the hand that was injured now (meaning at the time of the trial), and he answered, “No sir, I can’t hold with it.”

From this evidence the jury might have inferred that the injury to his hand was permanent. Therefore we hold that this assignment of error is not well taken.

The next assignment of error is that the court erred in giving instruction No. 3, on the assumption of risk, which is as follows:

“No. 3. If you find that plaintiff was injured in the performance of his regular duties, and you further find that his injury was caused or contributed to by the negligence of his fellow-employees, you are instructed that he did not assume the risk arising out of the negligence of fellow-employees.”

In construing the Arkansas Employers’ Liability Act, which is virtually a copy of the Federal act, this court said that the statute was not intended to and does not deprive the employer of the right to set up the defense of assumption of risk by the injured employee, where such injury was the result of the negligent acts of a fellow-servant of which the injured employee had knowledge and the dangers of which he appreciated. E. L. Bruce Co. v. Yax, 135 Ark. 480.

Again, in construing the Federal Employers’ Liability Act in the same respect, this court referred to decisions of the Supreme Court of the United States speak-’ ing on the question, and said: Court, ‘the consequent danger was so obvious that an ordinarily careful person in Ms situation would have observed the one and appreciated tlie other.’ ” St. Louis-San Frascisco Ry. Co. v. Blevins, 160 Ark. 362.

“This interpretation of the Federal statute places the question of assumed risk with reference to the negligence of plaintiff’s fellow-servants upon the same basis as negligence, of the master himself, for, in either case, the servant is not deemed to have assumed the risk of the negligence of either the master or the fellow-servant, unless the plaintiff is aware of the negligence and appreciates the danger, or, in the language of the' Supreme

Tested by the principles of law announced in these cases, instruction No. 3, copied above, is erroneous because it does not take into consideration that, under the facts of this case, the plaintiff might have assumed the extraordinary risks caused by the negligence of his fellow-servant, if he knew and appreciated them.

The instruction is prejudicial because the Jury might have found that the plaintiff, from the experience which he had already had in unloading ties, knew and appreciated the danger of stopping the train with a more sudden and violent jerk than was usual, and that, if such a fact had been found by the jury from the evidence in the record, the plaintiff assumed the risk arising from the extraordinary danger.

For the error in giving instruction No. 3 the judgment must be reversed, and the cause will be remanded for a new trial.


author: Smith, J. McCulloch, C. J.

text:
    Altman v. Sproles.
    Opinion delivered November 19, 1923.
    1. Trial — discharge op surety — instruction.—A charge that a surety on a building contract was not discharged ujiless there was a material change in the construction or in the contract, that is, in the grade of lumber used, was erroneous as eliminating from consideration any question as to other material changes that might have been made.
    2. Appeal and error — instruction—harmless error. — Where an instruction contains error in appellant’s favor, a judgment will not be reversed on that ground alone.
    S. Appeal and error — instruction—prejudicial error. — An instruction which assumed that a change in the grade of lumber furnished under a building contract was a material variation therefrom, thereby discharging a surety on the bond of the contractor, was prejudicial error where there was a question as'to its materiality.
    4. Principal and surety — materiality op alteration — jury question. — Where the evidence was conflicting as to whether the cost of a building was increased by a change in the material furnished by the contractor, whether the change was so material as to discharge a surety on the contractor’s bond, held for the jury.
    5. Principal and surety — discharge op surety — changes in plan.— A stipulation in the bond of a building contractor that any alteration in the plans between him and the owner would not release the surety applied only to those changes which did not increase the cost of the building beyond the amount that the owner, by contract, had agreed to pay, there being no provision for his paying any more.
    6. Principal and surety — change op plans — liability op surety. —Under a stipulation in a bond of a building contractor that any alterations in the contract would not discharge the surety if there was no substantial change in the plans, the surety would be liable even if the building cost exceeded the contract price.
    Appeal from Phillips Circuit Court; J. M. Jackson, Judge;
    reversed.

      Bevens £ Mundt, for appellant.
    1. Under the stipulation and agreement in the bond with reference to changes and alterations, no changes or alterations shown in this case, whether material or immaterial, could release the surety. ' It permits any and all alterations and changes, not alone in the terms of the contract, hut also in the nature of the work to he done, and is not limited in any manner as to the character or nature of these changes. 21 B. C. L. 1012, § 60; *86 Ark. 212; 82 Ark. 247; 16 Ann. Cases, 348-349; 6 Cyc. 83; 32 N. X. Super. Ct. (2 Sweeney) 25; 98 S. W. 387; 152 Pac. 668; 256 Mo. 133; 165 S. ,W. 314; 34 Neb. 670; 73 Pac. 772. Therefore, appellant was entitled to a peremptory instruction.
    2. In any view of the case the court’s oral instruction was reversible error, in that it was a question for the jury whether or not the change in the grade of the lumber was a material change. 112 Ark. 207; 93 Ark. 472.

      W. G. Dinning, for appellees.
    Both the bond and contract having been prepared by the appellant, any ambiguities or uncertainties therein will be construed as unfavorably as their terms will admit against the appellant. 73 Ark. 338. The position insisted upon by appellant, viz: that the stipulation in ■the bond gave the contractor and owner carte blanche to make any and all changes in their contract that they might deem proper, is contrary to the decisions of this court. 66 Ark. 287, 290.
   Smith, J.

Appellant Altman employed appellee Sproles to build three dwelling-houses in the city of Helena. Altman prepared a memoranda of the agreement, but it is quite obvious that the writing which the parties signed did not embody the entire contract. The provision relating to the consideration to be paid reads as follows: “That the contractor agrees to building for J. L. Altman on his lot on the corner of Beech and York streets, in the city of Helena, State of Arkansas, three houses, as agreed, for the sum of $6,000, to be paid as follows: Pay-roll every week, and for materials as presented when O. K. by H. Sproles.” The houses were to each have four rooms and a bath, but nothing was said about closets, nor was anything said in the writing about the material, except that “the contractor agrees to build the houses in a first-class, workmanlike manner, and agrees to leave the lots in a clean condition.”

To indemnify the owner, the contractor executed a bond, with appellee Hightower as surety, to fully indemnify and hold the owner harmless against any and all loss, including laborers’ and mechanics’ liens and liens for materials furnished.

This bond contained the following stipulation: “Any alterations made by agreement by and between the said Henry Sproles (the contractor) and the said Julius Altman (the owner), in the terms of the contract, or the nature of the work to be done, or the giving to the said Henry Sproles, or his executors, administrators, or heirs, any extension of time for performing said contract, or any of the stipulations therein contained and on the part of the said Henry Sproles to be performed, or any forbearance on the part of the said Julius Altman to the said Henry Sproles, his heirs, executors, or administrators, shall not in any way release the said Henry Sproles or the surety in this bond. ’ ’

After the completion and acceptance of the buildings and the payment to Sproles of the contract price, a materialman filed a claim for a lien and recovered judgment for materials furnished amounting to $1,235.34, and Altman was required to pay the judgment, whereupon he sued on the bond which Hightower had executed as surety.

Altman testified that he and Sproles agreed on the plans of the buildings, and that he did not authorize any changes, and none were made; that there were some additions, but these he paid for, and that he authorized no changes in the materials, and none were made, and he denied that certain plans which Sproles offered in evidence had been agreed upon as the plans for the buildings.

Sproles testified that he prepared rough plans for the buildings, and Altman approved and accepted them. These plans did not provide for any closets, yet Altman directed that three be built in each house, and the cost of each closet was around $75. The plans called for a foundation of plain brick, but Altman required that the foundations be stucco. No. 2 lumber was to be used in the houses, but Altman directed that No. 1 be used, and there was a difference of between thirty and thirty-five dollars per thousand feet in the price. The contractor testified that the changes in the plans and materials which Altman ordered added $1,300 to the cost of the buildings. He also testified that the extras for which Altman paid him were fences, sidewalks and coal-houses, which were'not in the original contract at all.

The dealer who furnished the materials for the buildings testified that the price of the first estimate of the materials to be used in the buildings was $2,700, but that the materials actually used amounted to $3,500, and that the 'difference arose not only from the change in the grade of materials but also from the quantity used.

The court gave, at the request of Altman, instructions which, in effect, told the jury to find for him if they accepted his statement of the transaction as true; but the court declined to give an instruction numbered 2, reading as follows: ‘ ‘ You are instructed that any 'change or alterations in the original contract between Henry Sproles and J. L. Altman will not in any manner release the defendant, Carey Hightower, from liability on the bond sued on in this action. You are further instructed, in this connection, that any extension of time for performing the said contract, or any stipulations contained in the contract, will not in any way release the defendant, Carey Hightower, from his liability on said bond, for the reason that it is agreed in the face of the bond itself that any alterations made by agreement between Henry Sproles and Julius Altman under the terms of the 'contract shall not release the said Henry Sproles.”

At the defendants’ request the jury was told to find for the defendant surety if material changes were made without his consent.

Instructions numbered 2 and 3 were given at the request of the defendants, over plaintiff’s objections. These instructions read as follows:

“2. If you find from the testimony in this case that the class of lumber that was used in the erection of the houses by the defendant was changed from grade No. 2 to grade No. 1, and that such change was made after the bond upon which this suit is brought was signed and delivered, and if you find that such change in the grade of lumber was made without the consent of Carey Hightower, and that such change was material, then you will find for the defendant, Carey Hightower.”
“3. The jury is instructed that, in determining whether the changes in the building contract, if any, were material, yon are instructed that any change of a substantial nature in the plans of the buildings or the materials to be used, which said changes cause a substantial change in the cost of same, are material changes; and if you find that such changes were made in the building contract in this case without the consent of Carey Hightower, then you will find for the said defendant, Carey Hightower.”

After giving these instructions, the court charged the jury orally as follows: “Before you can find for the defendant in this case, you must find from the evidence that there was a material change in the construction or in the contract for the erection of these three buildings; that is, that the grade of material was changed from grade No. 2 to grade No. 1 with the consent of the plaintiff.”

There was a verdict in favor of the defendants, and judgment accordingly, and Altman appealed.

We think the giving of the oral instruction was an error which requires the reversal of the judgment. In the first place, it eliminates from the jury’s consideration any question about the foundation, or the -closets, and limits the jury’s consideration to the change of material from grade No. 2 to grade No. 1. In this respect it is more favorable to Altman than it should have been, as the jury might have found that there were changes in the foundation and in building the closets, and that these changes were material. Had there been no other error in the instruction, the judgment would not be reversed, as the error just indicated is in Altman’s favor. But the prejudicial error is in assuming that a change from No. 2 to No. 1 Was material. The jury might well have found that this change was material, but we have concluded this was a question of fact upon which the jury should have passed judgment,, under the instructions given by the court defining material changes. We have reached this conclusion because the evidence is uncertain as to the extent of the increased cost due to change of grade in materials. Much of the increase of cost might be accounted for by a -change in plans, or by the use of more material than the first estimate called for.

Appellant Altman insists the judgment should be reversed because the court refused1 to charge the jury, as requested by him, that any -change agreed upon between himself and Sproles, the contractor, would not release the surety. This contention is based upon the stipulation in the bond, set out above, that any alteration made by agreement between Sproles and Altman should not in any way release the surety.

In support of this contention appellant Altman cites numerous authorities to the effect that sureties on a builder’s bond are not released by substantial changes in the plans where the bond itself authorized those changes to be mads. Among the numerous other authorities cited is the case of Woodruff v. Schultz, 155 Mich. 11. This case is very extensively annotated in vol. 16 A. & E. Cases, p. 346, and a number of decisions of .this court are cited in the annotator’s note.-

It appears that there are many cases which have held that the surety may consent in advance that material changes may be made, and when he has consented he is not released from liability after they are made. But in all the cases which we have examined (and we are sure it must be true in .all others) there was provision that the contractor or builder -should be paid the increased cost, if any there was. In principle the recent case of Kerby v. Road Imp. Dist., 159 Ark. 21, was of that character. There it was provided that important changes or alterations might be made upon the written order of the engineer, but the contract also provided that “the price covering such changes or .alterations shall.be fixed by agreement between the engineer and the contractor. ’ ’ In the instant -case the contract obligates the owner to pay only $6,000, and there is no provision by which it might be ascertained that he should in any event pay more. The recital in regard to .the price or consideration which we copied above is the only provision in regard to payment. The owner does not contend that these changes might be made after he and the contractor had agreed upon the price, but, on the contrary, he plants himself on the proposition that the contract limits his liability to $6,000 in any event; and in this he appears to be correct, and upon this theory he has sued the surety for the excess over the contract price of $6,000. His whole case is predicated upon the assumption that $6,000 is the maximum sum he was required to pay for the buildings, and by his instruction numbered .2, set out above, he asks the court to charge the jury that he and the contractor might make changes ad libitum without releasing the surety, and the instruction makes no reference whatever to any additional compensation therefor. As the contract thus limits the owner’s liability, we conclude that the changes contemplated are those which do not involve a substantial increase in the cost of the buildings.

The doctrine of the case of Miller-Jones Furniture Co. v. Fort Smith Ice & Gold Storage Co., 66 Ark. 287, is applicable here. In that case the contract provided that: “It is further-agreed that the said party of the second part may make any alterations, deviations, additions or omissions from the aforesaid plans, specifications and drawings, or either of them, which they shall deem proper, and the said architect shall advise, without affécting or making void this contract, and in all such eases the architect shall value or appraise such alterations, and add to or deduct from the amount heretofore agreed to be paid to said party of the first part the excess or deficiency occasioned by such alterations.”

Extensive changes in the plans of the building were made, which, the court held, discharged the surety, notwithstanding the authorization, contained in the contract, to the owner to make any alterations, deviations, additions or omissions from the plans and specifications which he deemed proper and the architect advised, without affecting the contract or making it void. Because of this provision the owner sought to hold the surety, but the court, through Justice Reddick, said: “But we are of the opinion that the parties did not intend by this provision to authorize changes so extensive as the one complained of here. The provision referred to, which is set out in the statement of facts, permits such alterations to be made, even without the consent' of the contractor, and provides that the architect shall determine the amount to be paid or deducted therefor. We cannot suppose that the parties intended by this provision to permit the owner to make great and extensive changes in the plan of the building, and to force the contractor to complete it in conformity therewith, at such compensation as might be allowed by the architect. The fact that these alterations in the plan could be made without the consent of the contractor forces us to the conclusion that the alterations referred to were such minor changes as owners often wish to make in the plans of buildings while they are under construction, and which do not greatly affect the undertakings of the contractor. Dorsey v. McGehee (Neb.). 46 N. W. 1018; Consaul v. Sheldon (Neb.), 52 N. W. 1104.”

It thus appears that the court restricted the right to make changes to those which were not great and extensive, these terms being used, of course, in comparison with the subject-matter of the contract, because, as it was there said, it was not to be presumed that the contractor meant to give the owner and the architect the power to compel him to do any work the owner might desire done at such price as the architect might fix.

So here, it is not to be assumed that the parties were agreeing that the owner might have three buildings erected, upon such plans as he might finally adopt, without regard to the cost to the contractor and with a cost limit to himself of $6,000. From the testimony in this case the jury might have found that the contractor followed the owner’s direction in making the changes, under the belief that he would be paid therefor, but without any promise to that effect by the owner. Surely it was not the .purpose of the surety to guarantee the performance of such a contract, yet the owner, even now, contends that $6,000 was the full contract price to be paid by him, except, of course, for additions which were not covered by the contract at all. We think a more reasonable interpretation of the contract is that the surety consented in advance to any changes, however material, which were not so great and extensive as to cause a substantial increase in the cost of the buildings.

Of course, if there was no substantial change in the plans, the surety was liable for the increased cost, however much that excess might be over the contract price. But, on the other hand, we think the contract conferred no authorization to make substantial changes in the plans which materially increased the cost of constructing the buildings.

For the error in giving the oral instruction -the judgment is reversed, and the cause remanded.

CONCURRING OPINION.

McCulloch, C. J.

I agree with the majority in the reversal of the judgment on account of the error indicated in the opinion, but I do not agree to the limitations placed by the majority upon the liability of the surety in holding that, in order to bind the surety to the chánge, there must be an allowance of additional compensation to the principal contractor for any additional cost. The surety consented in advance for “any alterations’’.made by agreement between the principal contractor and the owner “in the terms of the contract or the nature of the work to be done,” and the authorities'cited in the brief of counsel for appellant sustain the view that this stipulation is binding on the surety.

The language of the contract means that the surety agrees in advance to abide by any alteration that the principal contractor may agree to with the owner. The contract d'oes not restrict the alterations to immaterial ones. Of course, the changes must be such as fall within the term “alterations,” and not be of so general a nature as to change the whole plan and scope of the work to be done under the contract. Nor would the surety be bound by an alteration so grossly disproportionate to the work originally contracted for and without compensation as to amount to a fraud on the surety. In the present case, however, there is no hint of fraud or connivance between the principal contractor and the owner to d'efraud the surety. Nor is it shown that the alterations were so extensive as to change the whole plan and scope of the work.

So far as additional compensation is concerned, the surety, by his contract, has undertaken to leave that to the principal contractor, and agrees in advance to abide by any alteration consented to by the contractor, regardless of compensation. I see no reason why a surety cannot make such a contract, and it seems to me that it has been done in this case, according to the plain language used.

In the case of Miller-Jones Furniture Co. v. Fort Smith Ice & Gold Storage Co., 66 Ark. 287, the court dealt with a contract which permitted changes, or alterations, to be made without the consent of the principal ‘contractor, and the court was constrained to hold, in interpreting the contract, that, inasmuch as additional work might be forced on the contractor without extra compensation, the language should be interpreted to refer only to immaterial changes. The contract in the present case is entirely different, for it do.es not force any additional work or alterations on the contractor against his own consent. ■ The contract expressly provides that the surety shall consent only to any alterations which may be agreed upon between the principal contractor and the owner. . .


author: Smith, J.

text:
    Hemmingway v. State.
    Opinion delivered November 19, 1923.
    1. Criminal law — judicial notice. — Courts take judicial notice of the statutory division of a county into judicial districts and of the location of towns in the county with reference to such districts.
    2. Criminal law — venue—evidence.—Where it was alleged and proved that defendant sold liquor behind a store in a certain town, which the court knows judicially was situated in the district and county of the venue, the venue was sufficiently established.
    3. Intoxicating liquors — sale—evidence.—In. a prosecution for selling intoxicating liquors, evidence held to warrant a finding that the sales were made prior to the finding of the indictment.
    Appeal from Mississippi Circuit . Court, Chickasawba District; G. W. Keck, Judge;
    affirmed.

      G. W. Barham, for appellant.

      J. S. Utley, Attorney General, John L. Garter, Wm. T. Hammock and Darden Moose, Assistants, for appellee.
   Smith, J.

Appellant was indicted for selling intoxicating liquor, and was found guilty as charged.

For the reversal of the judgment of the court sentencing him to the penitentiary, two errors are assigned; (1), that the venue was not proved; and (2), that the testimony did not show a sale-prior to the date of the indictment.

The testimony on the part of the State was to the effect that the sale was made behind Shaffer’s hardware' store, in the town of Manila. Now, the court knows judicially that by-act '81 of the Acts of 1901, page 136, Mississippi County was divided into two judicial districts, which were there called the Osceola District and the Chickasawba District; and we also know that Manila is in the Chickasawba District thereof; indeed, this fact appears from the act itself, as § 4 thereof provides that the citizens of the Chickasawba District should determine, at an election which the -act directed to be held for that purpose, whether the courts of that district should be held at the town of 'Manila or Blythe-ville. The indictment alleges the venue in the Chickasawba District of Mississippi County, and, as we have said, we judicially know that Manila is situated in that district. Bonner v. Jackson, 158 Ark. 526; Guerin v. State, 150 Ark. 295; Wells v. State, 151 Ark. 221.

The indictment was returned by the grand jury and filed in open court on April 6,1922, and the trial was had at the April term, 1923. One of the State’s witnesses did testify that the sale was made in the fall of 1922, but, upon being pressed to be definite, answered that the sale was made in 1921. Another witness, who was asked about the time of'alleged sales, answered that he bought liquor from appellant on Christmas eve. He was further asked: “Q. This last Christmas eve or the one before that? A. The one before that. Q. In the town of Manila? A. Yes sir.. Q. You don’t know whether that was in the Chickasawba District of Mississippi County or not, do you? A. No sir.”

"We think this testimony warranted the finding that the sales were made prior to, and not since, the date of the indictment.

No error appears, and the judgment is affirmed.


text:
    St. Louis Southwestern Railway Company v. Tucker.
    Opinion delivered November 19, 1923.
    1. Pleading — defective statement. — Where plaintiff’s testimony made out a case for damages, a judgment in his favor will not he set aside because his cause of action and the measure of his damages were defectively stated, in the absence of a demurrer or motion to make his complaint more specific.
    2. Carriers — duty of owner to receive damaged shipment. — It is the duty' of the owner to receive freight from a carrier, though damaged in transit, and to minimize the damages, if it can be done at a reasonable cost.
    3. Carriers — damaged freight — repairs.—Where the sum expended for repairs. to an article damaged in transit was less than the difference between the market value of the article in its damaged and its restored condition, the sum thus expended is reasonable.
    4. Damages — cost of restoration. — Where an article damaged by a carrier has actual value, but no market value, the cost of restoration is the proper measure of damages.
    5. Carriers — repairs to damaged freight — acquiescence.—Where plaintiff made no objection to the court fixing the cost of repairs as the measure of damages to an article injured in transit, he will be deemed to have acquiesced in the assumption that repairs restored the article to its former value.
    Appeal from Clay Circuit Court, Eastern District; W. W. Bandy, Judge;
    affirmed.

      Lamb Frierson, for appellant.
    The court erred in directing a verdict for the plaintiff. There was no legal measure of damages pleaded, and the court erred in allowing plaintiff to prove the amount required to repair the show-cases. 88 Ark. 594; 76 Ark. 542; 89 Ark. 518; 110 Ark. 49; 111 Ark. 521; 101 Ark. 172.

      Hunter $ Hunter, for appellee.
    The measure of damages was correct. 120 Ark. 264 ; 134 Ark. 430; 120 Ark. 119. Objections not raised in the lower court cannot be considered here for the first time. 130 Ark. 291; 133 Ark. 196; 154 Ark. 440.
   Smith, J.

The plaintiff in this case alleged that he shipped eight show-cases over the defendant railroad, and that “said show-cases were so badly damaged and broken when delivered that it cost plaintiff, on account of such damage and breaking, to repair the same, in actual cash the sum of $273.35, to his damage in that amount,” wherefore he prayed judgment in that amount.

The show-cases were second-hand, and plaintiff testified that he bought them at a bargain, and that he paid $442 for them and $100 freight,' and that he “figured their value at $750,” and in answer to a question from his attorney he stated the market value of the cases to be $750.

After describing the manner in which the cases were broken, the witness proceeded to relate how he had repaired them, and that the cost thereof had been $273.35, whereupon counsel for the railroad objected to this answer, because “ (1), there was no legal damage alleged in the complaint, and (2), because that would not be the measure of damage under the law, the true damage being the difference between the market value of the property at Center, Missouri (the point of shipment), and its value when tendered him. ’ ’

The witness was then asked the market' value of the show-cases in the condition in which they were received. He answered that the cases, in their crates, looked like a car of junk, and looked so bad he didn’t want to receive the shipment at all, but he did receive it because he realized he could get more out of it than any one else. He then .answered that the value was $200.

Under the direction of the court the jury returned a verdict for the plaintiff for $273.35, and the railroad company has appealed.

It is obvious that the plaintiff stated his cause of action and the measure of his damages defectively; but there was neither demurrer to the complaint nor motion to make it more definite, and his testimony made a case which entitled him to recover damages.

The plaintiff was right in assuming that it was his duty to receive the cases, notwithstanding their injured condition, and it was his duty to minimize the damage, if this could be done at a reasonable cost, and the sum expended for that purpose does not appear to have been unreasonable, in comparison with the value of the property in the restored condition.

In the case of St. L. I. M. & S. Ry. Co. v. Laser Grain Co., 120 Ark. 119, we said: “The rule for computation of damages for delay arid injury in transportation of goods is the difference between the market price of the goods at the time and place when and where they should ■ have been delivered and their value when and in the condition in which they were delivered. St. L. I. M. & So. Ry. Co. v. Tilby, 117 Ark. 163, 174 S. W. 1167.”

The -undisputed testimony in this case i^ to the effect that the plaintiff had paid $542 for the cases, including the freight, and- he stated the market value, at the time and place of delivery, to be $200, the difference of $342 being greater than the cost of restoration, for which amount the jury’s verdict was returned.

In some eases the cost of restoration is itself the proper measure of damages. This would be true in a case where the article damaged had actual value but no market value. In the case of St. L. I. M. & So. Ry, Co. v. Dague, 118 Ark. 277, the carrier lost a machine valuable to the owner, but without market value. We there quoted with approval from the case of Southern Express Co. v. Owens, 146 Ala. 412, 9 Am. & Eng. Ann. Cas. 1143, the following statement of the law: “In an action to recover for the loss of an article which had no market value, the measure of damages should be the value of the article to the plaintiff, and, in ascertaining this value, inquiry may be made into the constituent elements and the cost to the plaintiff of producing the article.” We further quoted from that opinion .as follows: ‘ ‘ Ordinarily, where property has a market value that can be shown, such value is the criterion by which actual damages for its destruction or loss may be fixed. But it may be that property destroyed or lost has no market value. In such state of the case, while it may be true that no rule which will be absolutely certain to do justice between the parties 'can be laid down, it does not follow from this, nor is it the law, that the plaintiff must be turned out of court with nominal damages merely. Where the article or .thing is so unusual in its character that market value cannot be predicated of it, its value, or plaintiff’s damages, must be ascertained in some other rational way, and from such elements as are obtainable.”

In volume 2, Moore on Carriers (2 ed.), § 4 of the chapter (XV) on Damages deals with the measure of damages against carriers where the shipment is only injured, and, after stating the ordinary measure of damages, it is there said: “Reasonable costs and expenses incurred in repairing damage and compensation for the loss of the use of the goods during such time * * * have been held to be recoverable, in addition to the actual loss, where the injury to the goods was lessened by the action of the plaintiff. The law, for wise reasons, imposes upon a party subject tó injury from a breach of contract the active duty of making reasonable exertions to render the injury as light as possible.”

We conclude therefore that there was no error in directing the jury to return a verdict in favor of the plaintiff for the cost of the repairs, because the sum thus expended was less than the depreciation in market value was shown to have been. The plaintiff made no objection to the court fixing the cost of repair as the measure of damages, and1, in the absence of objection on the plaintiff’s part, his attitude is that of acquiescing in the assumption that the repair of the cases restored them to their former value, and no prejudice resulted to the railroad in doing this.

No error appearing, the judgment is affirmed.


author: Humphreys, J.

text:
    Youngblood v. State.
    Opinion delivered November 19, 1923.
    1. Criminal law — reference to former conviction. — A statement by the prosecuting attorney, in opening a murd'er case, that defendant was convicted of second degree murder at the preceding term, and for that reason could not be convicted of murder in the first degree on second trial, was not reversible error, in the absence of a request for an instruction to the jury not to be influenced thereby in arriving at a verdict.
    2. Homicide — instruction as to self-defense. — In a prosecution for murder an instruction that, to establish self-defense, it must appear that the danger was so urgent and pressing that, in order to save his own life or prevent his receiving great bodily injury, the killing was necessary, and that the defendant must honestly believe, without fault or carelessness on his part, that the danger was so pressing, etc., was not objectionable as telling the jury that the defendant would not justify on the ground of self-defense, unless it appeared to the jury that the danger was so impending and urgent that it was necessary to kill the deceased to save defendant’s life, or save his body from great injury.
    3. Witnesses — impeachment.—A witness’ character cannot be impeached nor his testimony discredited by evidence that he had been indicted for a crime.
    Appeal from Boone Circuit Court'; J. M. Shinn, Judge:
    reversed.

      E. G. Mitchell and Worthington & Williams, for appellant.

      J. S. TJtley, Attorney General, Jno. L. Garter, Wm. T. Hammock and Harden Moose, Assistants, for appellee.
   Humphreys, J.

Appellant was indicted in the circuit court of Boone County for the crime of murder in the first degree for killing Ed Blevins. He was tried and convicted of murder in the second degree. The verdict of conviction was set aside, and a new trial granted. Upon retrial he was convicted of manslaughter and adjudged to serve a term of seven years in the State Penitentiary as punishment therefor. From the judgment of conviction an appeal has been duly prosecuted to this court.

The first assignment of error insisted upon for a reversal of the judgment is that the trial court permitted the prosecuting attorney, in opening the case, to make the following statement:

“Gentlemen of the jury, you will observe from the reading of this indictment that the defendant is indicted for murder in the first degree. He was tried at the last term of this court under this indictment and was convicted for murder in the second degree, which was, in legal effect, to acquit him of murder in the first degree. Upon motion of the defendant, on the grounds of newly discovered evidence, the court set aside the verdict of the jury which convicted him of murder in the second degree, and granted1 him a new trial on the ground of newly discovered evidence, and you cannot convict him for murder in the first degree, but are to try him for murder in the second degree. ’ ’

Appellant contends that the reference to the former conviction was a violation of § 3221 of Crawford & Moses’ Digest, and prejudicial to his interest. The section of the Digest referred to is as follows:

“The granting of a new trial places the parties in the same position as if no trial had been had1. All the testimony must be produced anew, and the former verdict cannot be used or referred to in evidence or in argument.”

The purpose of this statute is to protect the accused, upon a new trial, from the effect of a former conviction by use thereof in evidence or reference thereto in argument unnecessarily and improperly. It was necessary to tell the jury that appellant was upon trial for murder in the second instead of the first degree, and we do not think it was improper, as a part of the statement, to explain that the former verdict for murder in the second degree had automatically acquitted appellant of murder in the first degree. While the court or prosecuting attorney might have conveyed this information to the jury’ by simply saying that appellee was upon trial for murder in the second degree, any one of reasonable intelligence would have understood from the statement that a discharge from the highest crime specified in the indictment had been accomplished by a former conviction of murd'er in the second degree. This being so, no prejudice could have resulted, on account of the statement made by the prosecuting attorney, to the interest of appellant. If appellant thought otherwise, he should have asked the court to instruct the jury not to be influenced, in arriving at the verdict, by the fact of his former conviction. He would have been entitled to such an instruction, in view of the fact that the statement, in its entirety, was not absolutely necessary to apprise the jury of the charge upon which appellant was to be tried.

Appellant’s next assignment of error is that the jury was not properly instructed upon the law of self-defense. The law given by the court upon that subject is as follows:

“In ordinary cases of one person killing another in self-defense it must appear that the danger was so urgent and pressing that, in order to save his own life, or prevent his receiving great bodily injury, the killing of the other was necessary, and it must appear also that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further contest before the mortal blow or injury was given. To be justified, however, in acting upon facts as they appear, the defendant must honestly believe, without fault or carelessness on his part, that the danger was so pressing and urgent that it was necessary to kill his assailant in order to save his own life or to prevent his receiving great bodily injury. He must act with due circumspection. If there was no danger, and his belief on the existence thereof be imputed to negligence or carelessness, he is not excused, however honest his belief may be.”

It is contended that the instruction quoted above, in effect, told the jury that appellant could not justify the killing on the ground of self-defense, unless it appeared to them, .from the evidence, that the danger was impending and so urgent and pressing that it was necessary to kill the deceased to save his own life or to save his body from great injury. We do not think the instruction susceptible of that construction. When read as a whole, it means that appellant could justify the killing if it appeared to him that the danger was impending and so urgent and pressing that it was necessary to kill the deceased in order to save his own life or to prevent him from receiving great bodily harm. The instruction might have been made more definite and! certain as to whom it should appear that the danger was impending, etc., by inserting the words “to him” after the word “appear” in the second sentence.

Appellant’s last assignment of error is that the court permitted the prosecuting attorney to ask appellant, on cross-examination, if he had not been indicted in the Federal court for white slavery. The indictment is a mere accusation, having no probative force, therefore “the character of a witness cannot be impeached nor his testimony discredited for the purpose of impairing its weight, merely by evidence that he had been indicted for a crime. ” Anderson v. State, 34 Ark. 257; Carr v. State, 43 Ark. 99; Bates v. State, 60 Ark. 450; Alexander v. Vaughan, 106 Ark. 438; Johnson v. State, 156 Ark. 459. Johnson v. State, ante p. 111.

For the error indicated the judgment is reversed, and the cause is remanded for new trial.


text:
    Missouri State Life Insurance Company v. Witt.
    Opinion delivered November 19, 1923.
    1. Insurance — application.—Where an application for insurance advised the insurer that the applicant had submitted to an operation, and named the surgeon who attended him, the policy was not avoided by failure to mention that applicant was sick after the operation, as the insurer had an opportunity to satisfy itself as to whether the operation and illness incident thereto materially affected his health and longevity.
    2. Insurance — application.—An applicant for insurance, in answering questions as to illness, operations and injuries, is required to detail such only as materially affected his health or longevity.
    3. Insurance — application—nondisclosure of illness. — An insurance policy is not avoided where insured, in answer to a question as to illness, failed to disclose an illness occasioned by a fall from, a tree, from which the insured completely recovered.
    4. Insurance — nondisclosure of illness — burden of proof. — The burden is on the insurer to show that an illness not .disclosed by an applicant, and relied on as defeating recovery under the policy, had materially affected the health and longevity of the insured.

      5. Insurance — nondisclosure of disease — ignorance.—A nondisclosure of disease in an application for insurance not made a warranty, will not avoid the policy where applicant was ignorant of such disease.
    6. Insurance — misrepresentations in application. — W here answers in an application for insurance constituted merely representations, and not warranties, a misrepresentation will not avoid the policy unless wilfully or knowingly made with intent to deceive.
    7. Insurance — question for jury. — Where the evidence was conflicting as to whether insured had a high blood pressure before and at the time of examination for insurance,, and whether it •affected his health and longevity, such matters were for the jury.
    8. Evidence — statement by insured. — A statement by insured as to his physical condition, made a month after the policy sued on was issued, was inadmissible against the beneficiary, the policy constituting a contract between the company and the beneficiary.
    9. Insurance — instruction.—An instruction that, to avoid the policy sued on, the insured must have made representations as to his health with intent to “defraud” the insurer, was not erroneous; “defraud” being used in the sense of “deceive.”
    Appeal from Prairie Circuit Court, Southern District; George W. Clark, Judge;
    affirmed.

      C. E. Pettit and W. A. Leach, for appellant.
    Had the facts been disclosed, the policy would1 not have been issued. A fact is material to the risk when it is such that the insurer would not have issued the policy had it known it. 98 Atl. 498; 224 S. W. 177; 97 S. E. 874; 15 Cyc. 805. ■ The rule that the materiality of facts is for the jury should be qualified to this extent, that, while good faith and materiality are ordinarily a question for the jury, when such materiality is of doubtful character, still, if the evidence is clear and uncontrovertible, or if the statements relate to matters intrinsically, palpably and essentially material, or what is stated is so clearly material that reasonable minds cannot differ about it, or so clearly material that there is nothing left for the jury to pass upon, the question of materiality should not be submitted to the jury. Joyce on Ins., $ 3710-A; 57 S. W. 635; 116 Pac. 154; 94 N. iW. 599; 129 Ark. 43; 101 Atl. 608. See also 117 Atl. 323; 108 Md. 353; 117 Md. 259; 113 Md. 693; Phillips on Ins., § 342. False answers in an application for life insurance, as to matters of fact and not of opinion, render the policy void, whether applicant had any intention of deceiving or not. 25 Cyc. 801; 108 S. E. 896; 104 S. E. 121; 98 S. E. 424; 218 111. App. 230; 117 Atl. 323; 59. Atl. 117. The materiality of the misrepresentation and its proved falsity does away with the necessity of showing fraud. Joyce on Ins., § 1897; 35 Fed. 252'; 8 Am. Rep. 494; 18 Am. Rep. '681. The answers being false, the law will infer an intent to deceive, in the absence of explanation. 109 Atl. 22. Admissions or declarations to a third .party are competent to show his knowledge of his physical condition at the time of the application. 69 N. Y. 256; 94 Ya. 146; 115 Wis. 641; 73 N. E. 592; 20 Am. Rep. 522'; 36 L. R. A. 271.

      Bogle é Sharp, for appellee.
    The burden of proof was on appellant to show that the fall from the tree affected the physical condition of the insured and his longevity, which condition it failed to meet. 58 Ark. 537; 13 Wall. 222. A specific instruction on the subject was given, and the finding of the jury on the question of fact is final. 22 Ark. 207; 37 Ark. 238; 96 Ark. 495. A subnormal blood pressure (an indicatory sign of health) which had occurred before the application, was not a matter required to be related at that time, any more than one is required to state occasions since childhood when he showed a temperature. 96 Ark. 495. Appellant failed to discharge the burden of proof resting on it to show that the insured was not in good health at the time he made application. Ill Ark. 554; 101 U. S. 708; 17 L. R. A. (N. S.) 1018. Statements made by the insured, after the making of the application, cannot serve to vitiate the contract of insurance. 134 Ark. 245, and cases cited.
   Humphreys, J.

This is an appeal from a judgment obtained in the circuit court of Prairie County, Southern District, by appellee against appellant for $3,000, upon a life insurance policy issued by appellant to appellee’s husband, Charles A. Witt, on the twelfth day of October, 1921, including a twelve per cent, penalty and attorney’s fee of $500. The insured died on the twelfth day of March, 1922, and when proof of death was made, appellant refused to pay the policy, whereupon the beneficiary instituted this suit to recover thereon. Appellant interposed the defense that the insured made false answers to the questions propounded to him in the written application for the insurance.

The policy sued upon contained the following paragraph :

“Entire Contract. This policy and the application therefor constitute the entire contract. All statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties, and no such statement shall avoid the policy, unless it is contained in the written application therefor.”

The application referred to in the paragraph quoted contained the following statement, questions and answers, over the signature of the insured:

“I agree, on behalf of myself and of any person who may have or claim any interest in any policy issued hereon:
“(d.) That all statements and answers written herein, as well as those made and to be made, to the medical examiner in part II of this application, are full, true and complete.
“(5) Detail all illness, disease, operations, accidents or injuries you have had since childhood. (Give clinical history below).

Operation: appendicitis. Date: year, 1917; month, July. Duration: 2 weeks. Complications: none. Results: good. Name of medical attendant: Dr. J. P. Runyan, Little Rock, Arkansas.

“(6) (d) Has any physician ever expressed an opinion that your urine contained sugar or albumen or casts ? (Give details).
“ (6) (d) No.
“ (8) Are you now in good health? If not, what is the cause?
“(8) Yes.
“I certify that the above answers are full, correct and true, and agree that all of the above shall constitute part II of my application.”

Appellant contends for a reversal of the judgment upon three grounds: first, that the answers made by the insured in his application avoided the policy; second1, that the court erred in excluding a sworn statement made by the-insured to the Business Men’s Assurance Company on June 8, 1922, relative to his physical condition from November 22, 1921, to January 8, 1922; -and third, that the court erred in telling the jury that the burden was upon appellant to show that the representations made in the application were wilfully made with intent to defraud it.

(1) It is claimed that the testimony reflects that the answers made in the application were not full, correct and true, because appellant concealed the fact that he was confined to the house for over thirteen' weeks on account of sickness in 1918; that he was totally'disabled for fourteen weeks in 1920 on account of a fall from -a tree; that he had high blood pressure in February, 1921, and was under medical treatment on that account until the policy was issued; that he had nephritis and arteriosclerosis.

Concerning the illness in 1918, it appears from the testimony that it was the result of a malarial condition followed by an operation for appendicitis and adhesions. This operation was divulged to the company in the answer made, and the name of the attending physician was given, so the company had an opportunity to investigate- and satisfy itself whether the operation and the illness incident thereto had materially affected his health and longevity. It is the law that the insured, in answering such a question as that propounded1, is only required to detail such illnesses, diseases, operations, accidents or injuries which had materially affected his health or longevity. National Annuity Assn. v. Carter, 96 Ark. 495.

Concerning the illness in 1920, it appears that it was occasioned by a fall from a tree. The record does not disclose that any ill effects resulted from the fall. His recovery was complete. The burden was upon appellant to show that it had materially affected his health and longevity. No such showing was made.

Concerning the claim that the insured concealed the fact that he had kidney trouble and hardening of the arteries, it appears that he was ignorant of the fact, if it was a fact, that he had nephritis and arterio-selerosis. Dr. Murphy, who testified that he discovered the insured had this disease some time between February and October, 1921, was unable to say whether he ever imparted this information to him. This court is committed to the doctrine that “where answers in an application for insurance constitute merely representations, a misrepresentation will not avoid the policy unless wilfully or knowingly made with intent to deceive.” Metropolitan Life Ins. Co. v. Johnson, 105 Ark. 101.

Concerning the high blood pressure, Dr. Murphy testified that he examined the insured in February, 1921, and discovered that his blood pressure was 250; that he informed him of this fact, and advised him to refrain from any exertion of any kind, and placed him upon a diet; that the blood pressure was reduced to 200, and that, upon an examination of the nurse’s record, he found that it went down to 160; that from the time of his examination in February the insured was under his observation and treatment at intervals until his death. Dr. McKnight testified that he had occasion to test the insured’s blood pressure to ascertain whether it was feasible to administer gas to him for the purpose of extracting his teeth, and that he informed him that he had high blood pressure; that he could not remember when he made the examination, but that it was some time during the year 1921. Dr. Stout, appellant’s examining physician, who made a very complete and thorough examination of the insured on October 12, 1921, preparatory to issuing the policy, stated that his blood pressure was 135, or about normal; that he had no symptoms of .nephritis or arterio-sclerosis, and that he was in good physicdl condition. A large number of witnesses, who came in daily contact with the insured, stated that he was up and about his business practically all the time, and that apparently he was in the best of health. The evidence was therefore conflicting as to whether the > insured had high blood pressure before and at the time the examination was made and the policy issued, but if his blood pressure had been high, whether it' had affected his health or longevity. Under the evidence those things became matters of dispute for determination by the jury.

(2) . The sworn statement of the insured relative to his physical condition on and after November 22, 1921, more than a month after the policy sued upon was issued, was inadmissible under the rule announced in the case of Lincoln Reserve Life Ins. Co. v. Smith, 134 Ark. 245. The court said in that case: “The policy constituted a contract between the company and the beneficiary, either under an assignment or under the original designation in the policy itself, and it was not competent to prove, as ag’ainst the interest of the beneficiary, the declarations of persons whose life was' insured under the policy.”

(3) . Appellant admits that the instructions given by the court correctly placed the burden upon it to show that false, material representations, which induced the issuance of the policy, were made to it by the insured knowingly and wilfully, but contends that they are erroneous in telling the jury that they must also find that the insured made the misrepresentations with the intent to defraud the company. This court has said that the misrepresentations must be made with intent to deceive the insurer. Metropolitan Life Ins. Co. v. Johnson, 105 Ark. 101; Mutual Life Ins. Co. v. Owens, 111 Ark. 554. We think the word “defraud” was used in the sense of “deceive,” and that.the instructions, in substance and effect, conform to the law laid down in the two cases last cited.

No error appearing, the judgment is affirmed.


author: . Humphreys, J.

text:
    Chicago, Rock Island & Pacific Railway Company v. Stiles.
    Opinion delivered November 19, 1923.
    1. Railroads — care as to stock on track. — A railroad must keep a lookout for live stock, and, after discovering them upon its right-of-way, must use ordinary care to avoid injuring them; and circumstances may exist which require the trainmen to stop the train, in the exercise of ordinary care, to prevent an injury.
    2. Railroads — negligence—question for jury. — In an action for injuries to live stock, from running them over a cattle guard at a crossing, evidence held to raise a question for the jury as to whether the trainmen exercised due care after discovering the stock on the right-of-way.
    Appeal from Grant Circuit Court; W. H. Evans, Judge;
    affirmed.

      Thos. S. Busbee, George B. Eugh and II. T. Harrison, for appellant.

      D. D. Glover, for appellee.
   . Humphreys, J.

This suit was instituted by appellee against appellant, in the circuit court of Grant County, to recover damages in the sum of $825 to three mules and two horses, alleged to have been injured by the employees in charge of one of appellant’s trains, in negligently and carelessly running said live stock over a cattle-guard at a road crossing north of Leola.

Appellant filed an answer denying the material allegations of the complaint.

The cause was submitted upon the pleadings, testimony adduced by the respective parties and the instructions of the court, which resulted in a verdict and consequent judgment in favor of appellee for $300, from which is this appeal.

Appellant contends for a reversal of the judgment upon the alleged ground that the evidence is insufficient to support the verdict, either upon the issue of negligence or injury.

The live stock had entered the right-of-way of appellant, which was fenced, by passing over the cattle-guard. The cattle-guard was at the public crossing north of Leola. There was a long deep cut north of the cattle-guard, then a high fill on north to Wilson’s Creek. Wilson’s Creek was about .400 yards north of. the cattle-guard. The live stock came upon the dump near the creek, and were there observed by the employees of appellant on the southbound passenger train, who gave the usual alarm signal by blowing the whistle. The live stock ran at full speed down the dump, into the cut and across the cattle-guard, where, according to the testimony adduced by appellee, they were all severely injured by the sharp spikes on the cattle-guard, which pierced their feet to a considerable depth. The testimony on the part of appellees tended to show that, as a result from the injury, the feet and legs of the animals became sore and swollen to such an extent that they could scarcely walk around for several months, and that the market value of each was greatly reduced. Two of the witnesses testified to the difference in the market value of each, before and after the injury, which exceeded the amount of the verdict. Testimony is in sharp conflict as to whether the employees slowed down and stopped the train before reaching the cattle-guard. The employees testified that they not only slowed the train down but stopped it in the cut a considerable distance from the hindmost horse when he crossed the cattle-guard. One witness who testified for appellee said the train slowed down a little, but that it was only about thirty feet from the last horse that crossed the cattle-guard. The other ■witness who testified for appellee, and who saw the train from the time it came in sight of the animals, said that the horses ran as fast as possible, and that the train made no appreciable check in its speed; that it was right on the horses when they ran across the cattle-guard.

The law is that the railroad company must keep a lookout for live stock, and!, after discovering them upon its right-of-way, must use ordinary care to avoid injuring them. Kansas City Sou. Ry. Co. v. Ingram, 80 Ark. 269. Circumstances might exist which would require the employees of the railroad company to bring a running train to a complete stop, in the proper exercise of ordinary care, to prevent an injury. Paragould Sou. Ry. Co. v. Crunk, 81 Ark. 35.

If the jury believed the testimony introduced by appellee responsive to the issue of negligence, such facts made it the duty of the company to materially slow down the train, or stop it, in order to avoid the injury. 'According to appellee’s testimony, the horses were chased as rapidly as-they could1 go for 400 yards, upon a high dump and through a cut, over a cattle-guard. There was no escape for them until they reached the cattle-guard, where they were forced by fright to pass over it so rapidly they could not save their feet from injury. The jury may have reasonably inferred that, had the train slowed down sufficiently, or stopped, the animals would have slackened their pace and crossed the cattle-guard without serious injury. The facts in the instant case justified the submission of the issue to the jury of whether the trainmen, in the exercise of ordinary care, should have slowed down or stopped the train. Railway Co. v. Ferguson, 57 Ark. 16. There was substantial evidence to support the amount of the recovery.

No error appearing, the judgment is affirmed.


author: Wood, J.

text:
    United States Casualty Company v. Johnston Drilling Company.
    Opinion delivered November 12, 1923.
    1. Insurance — liability indemnity — ’Construction of policy. — A proviso in an employer’s liability insurance policy that the insured shall not “voluntarily assume” any liability before or after an accident to an employee did not relieve the insurer from liability for medical treatment and other expenses ordinarily incurred and paid by the insured on account of a person injured in his employ, for which he was liable.
    2. Insurance — liability for medical attention. — A proviso, in an employer’s liability insurance policy that the insurer should not be liable for such “immediate surgical relief as is imperative” contemplates relief that must be given immediately following an accident to prevent death or suffering, and does not relieve insurer from liability for surgical and medical attention incurred in the ordinary course of treatment of an injured employee.
    3. Insurance — -construction of policy. — Where there is a reasonable doubt as to the interpretation of a provision in'an insurance policy, it will be resolved against the insurer because of having written the contract.
    Appeal from Jefferson Circuit Court; John W. Wade, on exchange, Judge;
    affirmed.

      8am M. Levine and Coy M. 'Nixon, for appellant.
    The court erred in not directing a verdict for the plaintiff. An agency cannot be presumed,. but must be established by proof, and one dealing with an agent is bound to ascertain the extent of his authority. 234 S. W. 631; 55 Arle. 627; 92 Ark. 315; 94 Ark. 301; 132 Ark. 155; 140 Ark. 306.

      Powell, Smead é Knox, for appellee.
    Failure of the plaintiff to urge other assignments of error will be deemed a waiver here. 103 Ark. 391; 91 Ark. 427; 99 Ark. 490. The plaintiff was liable for medical expenses incurred on account of Barker, independent of agreement by its agent. 37 Ark. 519; 48 Ark. 397. The terms of an insurance policy must be ■ construed most strongly against the company. 54 Ark. 376; 94 Ark. 417; 113 Ark. 174; 103 Ark. 1. Where one deals with an admitted agent he has a right, without notice to the contrary, to treat him as a general agent. 90 Ark. 301; 142 Ark. 565; 55 Ark. 625; 142 Ark. 565; 48 Ark. 145. A principal is bound by the acts of his agent which are within the apparent scope of his authority. 103 Ark. 79; 93 Ark. 521; 96 Ark. 456; 144 Ark. 345.
   Wood, J.

The appellant instituted this action against the appellee to recover the sum of $1,312.83. It alleged that this was a balance due on the premium for a policy of employer’s liability insurance issued by the appellant to .the appellee. The appellee, in its answer, admitted the issuance of the policy and its acceptance by the appellee, but denied that it was indebted to the appellant in the specific sum claimed. It alleged, by w.ay of set-off or counterclaim, that the policy of insurance set up in appellant’s complaint was issued to the appellee to indemnify and protect it against loss on account of personal injuries that might be suffered by its servants and employees; that, while the policy was in force, one Barker, an employee of the appellee, in the performance of his duties sustained an injury resulting-in the loss of his eye; that it was necessary to provide him with hospital accommodations and nurse’s attention and to furnish him with necessary funds to meet incidental expenses while he was out of employment as a result of his injury; that appellee furnished to Barker for such purposes the sum of $829.09, all of which, except $50, was furnished for medical attention, nurse’s attention -and hospital fee. It alleged that' on whatever amount might be found due the appellant, if any, should be credited the sum of $829.09, and prayed that.it have judgment against appellant for that sum.

The appellant replied to the counterclaim, and denied all of its allegations.

At the trial the policy of insurance issued by appellant to the appellee was ■ identified and introduced in evidence. It developed that there was no issue as to the amount of premium due by the appellee to the appellant on the policy. It was also undisputed that Barker, an employee of the appellee, had been injured during his employment by the loss of an eye, and that appellee had expended the sum of $739.85 for medicine and medical treatment furnished Barker, so the only issue.presented was whether or not the appellant was liable under its policy to ¡the .'appellee for the sum thus expended.

The policy indemnified the appellee “against loss arising or resulting from claims upon the assured for damages on account of bodily injuries accidentally suffered or alleged tó have been suffered, while this policy is in force, by any employee or employees of the assured * * * by reason of the operation of the work of the assured.” The policy contained, among other conditions, the following: “Condition C. The assured; whenever requested by the company, shall aid in securing information and evidence, and the attendance of witnesses, and in effecting settlements, and in prosecuting appeals, but the assured shall not voluntarily assume any liability, either before or after an accident, nor shall he (without the written consent of the company previously given) incur any expense or settle any claim, except at his own cost, nor interfere in any negotiations for settlement or in any legal proceedings conducted by the company on account of any claim; except that the assured may provide, at the time of the accident (and at the cost of the company), such immediate surgical relief as is imperative.”

Indorsed on the policy as a “rider” thereto and expressly made a part thereof was the following: “In consideration of the reduced premium charged for this policy, it is hereby understood and agreed that this policy shall not cover the cost of immediate surgical relief referred to in condition C, anything in the policy to the contrary notwithstanding.

“Nothing herein contained shall be held to vary, waive, alter or extend any of the terms, conditions, agreements or declarations of the policy, to which this indorsement is attached, other than as herein stated.
“This indorsement becomes effective on the 18th day of April, 1921, twelve and one minute o’clock a. m., standard time, and terminates with the termination of the policy to which it is attached.”

Barker was injured in the fall of 1921. The appellant prayed the court to instruct- the jury to find in its favor in the sum alleged in its complaint. The court refused its prayer, to which ruling it duly excepted. The jury returned a verdict in favor of the appellant in the sum of $572.98, being the difference between the amount claimed by the appellant and the sum of $739.85 claimed by the appellee as a set-off. Judgment was rendered for the appellant against the appellee in the sum of $572.98, from which is this appeal.

1. The appellant contends that the court erred in not directing the jury to find in its favor for the full amount of its claim. It is conceded by the appellant that the appellee was liable in damages for the personal injury to Barker while in its employ, and that the appellant was liable to the appellee under its policy for the damages g’rowing out of the injury, but appellant contends that the expenses incurred by the appellee on behalf of Barker, such as it set up in its counterclaim, do not come within the terms of the policy, but, on the contrary, are expressly excluded therefrom, by the following provision indorsed on the policy, to-wit: “In consideration of the reduced premium charged for this policy, it is hereby understood and agreed that this policy shall not cover the cost of immediate surgical relief referred to in condition C, anything in the policy to the contrary notwithstanding.”

The effect of the above indorsement was to eliminate that provision of the policy which specified that appellant was liable for “such immediate surgical relief as is imperative.” But the provision of this rider indorsed on the policy did not have the effect of relieving the appellant of all liability to the appellee for such damages as the appellee had incurred by reason and growing out of the personal injury to Barker, which appellee did not voluntarily assume. Considering the rider provision in connection with “condition O” of the policy, it will lie observed that the appellant was not liable for any expense incurred by the appellee for such immediate surgical relief as was imperative, nor was the appellant liable to the appellee for any damages growing out” of the injury to Barker which the appellee voluntarily assumed. Therefore the issue, in its final analysis, is whether the amount claimed by the appellee as the set-off against the claim of the appellant was incurred1 for “immediate surgical relief,” and also whether the amount claimed by appellee was a liability which it voluntarily assumed.

Now, -the words, “such immediate surgical relief as is imperative,” as used in the contract of insurance, obviously contemplates emergency or “first-hand” relief. In -other words, such relief as must be given instantly or immediately following the accident to prevent impending death or to assuage nr prevent suffering. These words have no reference to such surgical and medical treatment and hospital charges and compensation for nurses and such other expenses as are incident to and necessarily incurred in the usual and ordinary treatment of the victim of the accident some time after the accident occurred, and which are continued in order to restore him, if possible, to his normal condition, and, by so doing, to lessen the damages for which the person causing the injury would be liable.

The contention of appellant, as we understand it, is not that the claim of the appellee is for such immediate surgical relief as was imperative, and therefore that appellant was not liable under the rider provision of the policy; but its contention is that it is not liable because of such provision for' such surgical and medical attention, hospital and nurse expenses as were incident to and necessarily incurred in the ordinary course of the treatment of the employee’s injury. 'This 'contention of the appellant cannot be sustained, because for such expenses the appellee was liable to Barker as damages which were the direct and proximate result of the injury caused by the appellee. Such expenses do not represent a liability voluntarily assumed by the appellee, but they are damages under the law which the appellee was bound to pay. St. L. I. M. & So. Ry. Co. v. Cantrell, 37 Ark. 519; St. L. I. M. & So. Ry. Co. v. Stell, 87 Ark. 308; St. L. I. M. & So. Ry. Co. v. Hydrick, 109 Ark. 231; see also 5 Elliott on Railroads, p. 917, § 2863.

Such we believe to be the plain and unambiguous meaning of the word “voluntarily” in condition C of the contract, and it occurs to us also that the words, “immediate surgical relief as is imperative,” cannot be construed to include expenses of the character set up in appellee’s counterclaim, and therefore the elimination of such words by the rider clause of the policy did not relieve appellant of liability for such expenses. Even if there were a reasonable doubt about such interpretation being correct, still it would be our duty to resolve such doubt in favor of the appellee as against the appellant, because the latter wrote the contract. American Bonding Co. v. Morrow, 80 Ark. 49-54, and cases there cited; Sun Insurance Co. v. Jones, 54 Ark. 376-383; Hope Spoke Co. v. Maryland Casualty Co., 102 Ark. 1-8; Industrial Mutual Indemnity Co. v. Hawkins, 94 Ark. 417-19; Maloney v. Maryland Casualty Co., 113 Ark. 174-181.

2. The above conclusion makes it unnecessary to set out the pleadings, the testimony, and the instructions on the issue as to whether or not appellant was liable to appellee for the amount claimed in its cross-complaint on an alleged contract between appellee and the agents of the appellant for the settlement of such claim. It follows from what we have said that the appellant, under its contract of insurance with the appellee, is liable to the latter for the amount in controversy. The court therefore did not err in overruling appellant’s prayer for a directed verdict. The judgment is correct, and it is affirmed.