text:
    Missouri Pacific Railroad Company v. Curcio.
    Opinion delivered May 19, 1924.
    1. Appeal and error — harmless error. — In an action against a carrier for injuries received by an employee of a traveling show while crossing defendant’s track to a sleeping car located in the defendant’s yards, a contract with the show company relating* to the defendant’s liability for injuries during transportation had no application and should have been excluded from consideration, so that error in construing the contract was not prejudicial.
    2. Appeal and error — conclusiveness op verdict. — Where plaintiff adduced substantial testimony on all the issues involved, the verdict of the jury will not be disturbed, though defendant’s testimony preponderates in the number of witnesses.
    3. Railroads — lookout statute. — Crawford & Moses’ Dig., § 8568, requiring trainmen to keep a lookout, applies to the switching* of cars in railroad yards, notwithstanding contributory negligence of the person injured.
    Appeal from Monroe Circuit Court; George W. Clark, Judge;
    affirmed.

      Thomas B. Pryor and Daggett & Daggett, for appellant.
    1. The contract between the show company and the railroad company is not void on the ground of public policy in that it permits the carrier to contract against liability for its own negligence. Such contracts are sustained on the ground that, in the performance thereof, the carrier is not acting as a common carrier. 5 R. C. L. § 668; 66 Fed. 506; 31 N. E. 650; 22 N. W. 215; 20 Sup. Ct. Rep. 385. As a matter of law, under the undisputed evidence, the plaintiff was charged with knowledge of the contract and all provisions therein, and was bound by it. 83 N. E. 710. The verdict should have been directed for the defendant. It was not proper to submit the question of the plaintiff’s knowledge of the contract to the jury in any form. .See also 130 Fed. 870; 66 N. Y. 313.
    2. If, as an invitee, plaintiff deviated from the ordinary and regular route of ingress and egress provided, and entered a portion of the yards in which it was unnecessary to go in order to reach the cars, he then became a trespasser, and within the protection accorded him by the “lookout statute”; but one in such position, regardless of the statutory duty, can claim no more than that the train shall not be operated negligently, and that he shall not be wantonly or wilfully injured if his peril is discovered in time to prevent.

      Bogle & Sharp and Emerson £ Bonham, for appellee.
    1. The contract is not valid nor enforceable. It was entered into in the State of Missouri, and is to be construed according to the laws of that State, and there a carrier cannot contract to relieve itself ■ against damages caused by negligence. 88 Mo. 239-244; Rev. Stat., Mo. 1919, § 10018. It is also void because prohibited by the laws of the United States. 159 N. W. 422; U. S. Comp. Stat. 1918, § 8604A. Plaintiff was not bound to know of the existence of tlie contract by reason of tlie circumstances with which he was surrounded, as contended by appellant. 34 N. Y. Supp., 1039; 26 N. E. 524; see also 159 N. W. 428; 166 Fed. 526; 87 Fed. 42. Plaintiff was in the position of a passenger for hire, and entitled to the high degree of care to avoid injuring him that is due to a passenger. 100 Pac. 833. As further sustaining the proposition that the contract is not enforceable, see 89 Atl. 87, 204 Pa. 304; 43 S. E. 930; 248 U. S. 361; 39 Sup. Ct. Rep. 108.
    2. Plaintiff was injured as the result of negligence on the part of appellant’s employees, and it is immaterial whether he was a trespasser, licensee or invitee, and the issue of negligence has been settled by the jury’s verdict. The lookout statute applies to moving trains in railroad yards and to switching cars therein. C. & M. Dig. § 8568'; 78 Ark. 22, 28; 83 Ark. 61; 88 Ark. 204-10; 96 Ark. -243-9; 111 Ark. 129; 80 Ark. 528, 535; 107 Ark. 431; 110 Ark. 444, 448; 108 Ark. 326; Id 396; 93 Ark. 127; 125 Ark. 507; Id. 223; 137 Ark. 595; 132 Ark. 431; 146 Ark. 236; 136 Ark. 310; 123 Ark. 94.
   McCulloch, C. J.

The plaintiff, Antonio Curcio, is a native of Italy, a naturalized citizen of the United States, and a musician by profession. While employed as a member of a band of musicians accompanying a traveling show, he came to Little Rock on October 7, 1922, for a week’s engagement. The entire outfit traveled in special coaches, which were stored in the railroad yards, and the members of the outfit lived in the coaches during their stay. There was a pathway along the track from the coaches to a nearby street, which afforded a way for the people occupying the cars to go in and out between the street and the cars, and one night during the stay in Little Rock plaintiff, along about midnight, left the coach, walked along the pathway to the street and thence to a restaurant, where he made a small purchase, and on his return, after having traveled down the track to a point opposite the cars, he turned across the track, and was knocked down and run over by a moving box-ear which was being switched in the yard.

The show train was brought to Little Rock over the line of the defendant, Missouri Pacific Railroad Company, under special contract with the show company; the cars were stored in the yards of the defendant company, and it was a car operated by defendant company being switched in the yard which struck and ran over the plaintiff. This is an action to recover damages for the injuries received. Plaintiff’s foot and ankle were so badly mangled that it was necessary to amputate the leg above the ankle, and there were two additional operations, shown to have been necessary on account of the original injury. Plaintiff recovered as damages a sum of money not claimed to be excessive, if he was entitled to recover at all.

Negligence of defendant’s servants is alleged in operating the train of cars, which was being switched in the 3rard without keeping a lookout and without giving any signal or warning of the movement of the cars. Appellant denied the allegations of negligence and also pleaded as a further defense the special contract with the show company, which contained a clause exempting the defendant from liability for damages caused by negligence of defendant’s servants or from any other cause.

The contract between defendant and the show company provided for transportation by the railroad company in cars to be furnished, some by each company, of the employees and paraphernalia and the wild and domestic animals of the show company, from place to place, for transportation charges specified in detail in the contract, and the clause of the contract under which defendant claims exemption from liability reads as follows:

“In consideration of the agreement of said party of the first part to run said regular or special train or trains as hereinbefore specified, and at and for the reduced rates aforesaid, and in further consideration of the fact that many of the animals to be transported as aforesaid are wild and ferocious, and not such as said party of the first part is by law required to receive and transport as a common carrier, it is ■further understood and agreed that the said party of the first part shall be, and is hereby, wholly released from responsibility for any and all damages, loss or injury which may accrue tp said party of the second part, and to the cars and coaches and to the show and property of said party of the second part and on account of death of or injury to the employees of said party of the second part or of or to all persons connected with said show in any capacity whatsoever, whether such damage, loss, death or injury result from the negligence of said party of the first part, its servants, or agents, or otherwise, but if, notwithstanding this exemption from liability, said party of the first part shall be held liable in any legal proceedings for loss or damage suffered by said party of the second part, then, and in that event, it is hereby agreed that such damages shall be and they are hereby liquidated and stipulated not to exceed the actual value of the animals or the property aforesaid, which, for the purpose of this agreement, is by said second party stipulated, agreed and represented in no case to exceed the sum per head for each animal as follows, to-wit: (Here follows a list of valuations).
The contract contained an additional clause whereby the show company undertakes to indemnify the defendant against any and all suits, claims and damages of all persons whomsoever alleging liability for loss or damage to cars or railway equipment, or to baggage or other property or damage resulting from any injury to or death of any person or persons employed by said party of the second part or connected with said WorthamWaugh-Hofer Greater Alamo Shows, or permitted by said second party, his servants or agents, to ride in, about or upon said cars and coaches, or to be transported as aforesaid, or to be upon and about the premises of said first party, whereby or by reason whereof such persons may be killed or injured while being transported in or upon said cars or coaches, or while they may be in or upon the premises of said first party.”

This contract was admitted in evidence over the objections of plaintiff’s counsel, and the court submitted the question of defendant’s liability, so far as it was affected by this contract, upon instructions which told the jury that plaintiff was not bound by the contract of exemption from liability unless he had notice thereof. It was contended below, and is contended now, that these instructions were erroneous, and that there should have been a peremptory instruction in favor of defendant under the undisputed evidence as to the execution of this contract.

The plaintiff testified that he was employed, not by the show company, but by one Miller, the leader of the band, who agreed to pay plaintiff a stipulated salary and pay his transportation. Plaintiff testified also that he had no notice of the' contract between the show company and the railroad company. Counsel for plaintiff contend that, under the circumstances which plaintiff’s testimony tended to establish, plaintiff was not bound by the contract without notice thereof and that the court properly submitted that question to the jury.

After consideration of the terms of the contract, we have reached the conclusion.that it has no bearing on the question of appellant’s liability, and should have been excluded from the consideration of the jury, for the reason that the subject-matter of the contract was transportation of the equipment, paraphernalia and employees of the show company, and had no relation to the question of liability for damage except such as arose during the period of transportation. The instructions given by the court were therefore too favorable to the defendant, and it cannot complain of the ruling of the court.

Many decisions in other States are cited by counsel on both sides, but they all relate to cases of injury to persons while being transported. No case has been brought to our attention which involves the application of a contract similar to this one exempting a carrier from damage resulting from negligence where the injury occurred, not during transportation, but while the injured person was in the yard or on the tracks of the railroad company. This contract related, as before stated, altogether to the matter of transportation. The storage of cars in the yard of the railroad company was an incident to the contract of carriage, and plaintiff’s injury on the track while returning to the car upon the implied invitation of the railroad company to use the approach to the stored cars had no relation to the contract of carriage and was not included in the exemption from liability.

If, as contended by the plaintiff, he was injured while crossing the track at a point which formed a part of the place of crossing between the street and the stored cars, he was an invitee and entitled to protection as such; or if, on the other hand, as contended by the defendant, plaintiff was injured at a point not forming a part of the place of egress or ingress, he would be a trespasser and entitled to the protection afforded by the lookout statute. The contract of carriage had no relation to plaintiff’s injury, and it was not embraced within the exemption. In other words, the exemption related to liability during transportation and not to liability arising at any other time, and the fact that the plaintiff was an invitee of the railroad company in crossing the track to reach the stored cars did not bring the liability within the terms of the exemption. We find it unnecessary therefore to discuss the question whether or not the exemption applied to plaintiff at all under any circumstances, or whether notice to him of the contents of the contract was essential to his being bound thereby. We pretermit those questions entirely, and hold that the contract, if applicable to plaintiff at all, was confined to the question of liability arising during transportation.

There is a conflict in the testimony as to the circumstances under which plaintiff was injured. The testimony adduced by the defendant preponderates in number of witnesses, but there was substantial testimony adduced by the plaintiff on all the issues involved, and under well settled practice it becomes our duty to leave the verdict of the jury undisturbed.

The injury occurred in the Little Rock yard of the defendant company known as the “east yard,” being situated in the eastern part of the city. Second Street runs east and west, and the yards lie south of that street, the tracks running in a southeasterly direction from the intersection with Second Street. There are storage tracks and switch tracks on both sides of the main track, the tracks on the east side of the main track being designated and known as the “new yard,” and the tracks on the west side of the main track being’ designated and known as the “old yard.” The show cars were stored on one of the tracks in the new yard, on the east side of the main track, and there was a pathway running northward along the tracks to Second Street. There is a conflict in the testimony as to which of the tracks the show cars were stored on. The testimony adduced by plaintiff tends to show that they were stored on the third of fourth track east of the main track, whereas the testimony adduced by defendant tends to show that the cars were stored on the second track east of the main track. There is also a controversy as to. the track on which plaintiff was injured. His testimony and that of the witness introduced by him tended to show that plaintiff walked down the main track from Second Street, and, as he attempted to cross the third track east of the main track, he was struck by a box-car which was being switched. Defendant’s witnesses testified that the switching was being done on the second track west of the main track. Plaintiff and the eye-witness introduced by him testified that the box-car which struck plaintiff was moving to the north when it struck plaintiff as he was crossing the track, and that there was no lookout kept and no warning given. It is not contended by any of defendant’s witnesses that a lookout was kept on the north end of the string of cars being switched, but the contention is that the cars were not moving northward at all but were standing on the track and were pulled south away down the track from where plaintiff crossed. There is no explanation attempted to be given by defendant’s witnesses as to how plaintiff’s injury occurred. It is undisputed that there was a sharp down-grade from the north end of the yard to the .south end and that when cars were stored there they had to be scotched, or brakes left on, in order to prevent them from rolling towards the south. Defendant’s witnesses testified that there were thirty-six box cars in the string of cars standing on the track, that a switch engine was connected with them, and that they were .all drawn southward, and that there was no movement of the cars at all toward the north. Defendant’s witnesses all testified that it was impossible for an engine of the type used on this occasion to push a string of thirty-six cars northward — that a force brought against the south end of the string of cars sufficient to move them upgrade to the north would tear out the draw-heads. All of this testimony adduced by the defendant directly conflicted with the statements of plaintiff and his witness to the effect that the box-ear on the north end of the string was uncoupled from the other cars, that it was pushed northward as much as a car-length or half a car-length, when it struck plaintiff, and then rolled back down the track. We must treat that conflict as settled in plaintiff’s favor by the verdict of the jury.

It has been decided by this court that the lookout statute is applicable to a train of cars being switched in the yard. Little Rock & H. S. R. Co. v. McQueeney, 78 Ark. 22; St. Louis S. W. Ry. Co. v. Graham, 83 Ark. 61; St. L. I. M. & S. Ry. Co. v. Staples, 111 Ark. 129. The statute.as it stands now (Crawford & Moses’ Digest, .§ 8568) applies, notwithstanding contributory negligence of the person injured, to failure of the servants of the railway company to keep a lookout, and the issue in this case was whether or not the failure to keep a lookout caused the injury. It is not contended on the part of the defendant that any lookout was kept on the north end of the string of cars, so the principal question for the determination of the jury was whether or not plaintiff was injured by a box-car moving northward. Unless the injury occurred in that way, there was no liability, for, if the train was not moving northward, there was no duty on the part of the servants of the company to maintain a lookout on that end of the train, and, as the switch engine on the south end of the train was manned by operatives who kept a lookout, there was no liability for injury caused by the movement of the train towards the south.

The vital issue in the case was submitted to the jury under proper instructions, and, as there was evidence to sustain the verdict, the judgment must be affirmed, and it is so ordered.


source: Caselaw Access Project

author: Hart, J.,

license: Public Domain

text:
    Meyers Stave & Mfg. Co. Indiana Lumbermen’s Mutual Insurance Company v. Meyers Stave & Manufacturing Company.
    Opinion delivered May 19, 1924.
    1. Appeal and error — opinion on former appeal. — The opinion of the Supreme Court on a former appeal is the law of the case.
    2. Estoppel — silence.—To constitute an estoppel by silence, there must not only be a duty to speak, hut the party relying- on the estoppel must have acted on the representations or silence of the opposing- party and have been misled to his prejudice.
    3. Insurance — estoppel to assert breach of warranty. — Under a policy insuring lumber, providing for a 200-foot clear space between the lumber insured and the mill, mere silence of an agent of the insurer when he saw the lumber stacked in a dry kiln within such space did not estop the insurer from asserting a breach of warranty where no claim that such lumber was covered by the policy was brought to his attention and nothing-occurred requiring him to speak.
    Appeal from Clay Circuit Court, Eastern District; W. W. Bandy, Judge;
    reversed.
    STATEMENT OF FACTS.
    Meyers Stave & Manufacturing Company sued tlie Indiana Lumbermen’s Mutual Insurance Company and other insurance companies on six policies of insurance in the sum of $3,000 each.
    The plaintiff was engaged in the manufacture of staves and lumber at Piggott, Arkansas, and the insurance policies in question covered its staves and lumber within a continuous clear space of 200 feet. On the 17th day of August, 1921, while the policies were in force, the plaintiff had staves of the value of $5,000 destroyed by fire. The staves were stacked in a dry-kiln at the'time they burned. The dry-kiln was located only 20 feet distance from the mill and engine-room, and there was.not maintained a clear space of 200 feet between it and the manufacturing establishment as defined in the policies.
    The plaintiff recovered judgment, and the case was appealed to the Supreme Court. In an opinion delivered on April 9, 1923, this court held that, under a fire insurance policy covering “staves, lumber and all other timber products” and warranting “that a clear space of 200 feet shall be maintained between the property insured and any woodworking or manufacturing establishment, and that said space shall not be used for the handling or piling of lumber thereon for temporary purposes,” except while, in transportation or being loaded or unloaded, the warranty excluded liability for staves which were burned in a dry-kiln only 20 feet distant from the mill and engine-room. Indiana Lumbermen’s Mutual Ins. Co. v. Meyers Stave & Mfg. Co., 158 Ark. 199.
    On the former appeal the court did not undertake to determine the legal sufficiency of the evidence to make out a case of waiver by estoppel. Upon the remand of the case the complaint was amended so as to state the grounds upon which a recovery was claimed on the basis of estoppel. At the trial of the case it was shown by the plaintiff that it owned 13 acres of land on which its plant is located. It had staves worth $20,000 stacked on its yards, and it is admitted by the insurance companies that these staves are covered by the policies sued on. The plaintiff also had staves worth something over $5,000 stacked in its dry-kiln. These were the staves which were destroyed by fire, and which are the subject-matter of this lawsuit. The staves in question were not placed in the dry-kiln for the purpose of being dried in the usual way, but were merely stacked there to preserve them, just as staves were stacked on the yards. The staves which were burned in the dry-kiln did not have a continuous clear space of 200 feet, as provided in the policies, and the dry-kiln was situated only 20 feet from the mill and engine-rooms. After the dry-kiln was erected, an agent of the insurance companies examined the plant and yards of the plaintiff and made a plat or sketch of the same. At this time the staves were stacked in the dry-kiln, and the agent of the insurance companies saw them stacked there. The sketch or plat of the plant was made with the view of the plaintiff’s obtaining insurance on its plant and fixtures. It already had insurance on its staves. The policies sued on were either in force at that time, or they are renewals of policies which were in force at that time. The agent of the insurance companies did not tell the plaintiff that the staves stacked in the dry-kilns were not covered by the policies then in force, nor does it appear that he was asked any questions with regard thereto.
    The jury returned a verdict for the plaintiff, and1 from the judgment rendered the defendants have duly prosecuted an appeal to this court.

      Harper E. Harb and Oliver & Oliver, for appellants.
    1. Under the evidence in the case, appellant was entitled to an instruction to the effect that, before the jury could find for the plaintiffs, they must find from a preponderance of the evidence that the plaintiffs were without knowledge of the fact that the staves, while in the dry-kiln, were not insured, and were without means of obtaining such knowledge. 21 C. J. 1119, § 122; Pomeroy’s Equity Jurisprudence § 805.
    2. The verdict should have been directed for the appellant. There is no evidence anywhere in the record sufficient to raise an estoppel. 97 Ark. 43; 21 C. J. 1139, § 139, and authorities cited.

      W. E. Spence and Gaubney & Dudley, for appellees.
    Any action on the part of appellant which led appellees honestly to believe that a forfeiture of the policies would not be incurred will estop the company from insisting on a forfeiture. 94 Ark. 222; 99 Ark. 476; 53 Ark. 495; 111 Ark. 229; 79 Ark. 315; 122 Ark. 243. Knowledge on the part of the appellants that the warranty of a continuous clear space clause did not represent the existing state of facts, and that there was no intent to change the situation, prevents a forfeiture of the policies for a breach of the warranty, where the company accepts the premium and issues or renews the policy without taking any steps subsequently to rescind it, though knowing of the breach of warranty. 94 Mich. 389, 22 L. R. A. 319. See also 122 C. C. A. 346, 204 Fed. 32; 52 Ark. 11; 342 Ark. 132; 131 Ark. 77; 53 Ark. 215; 26 C. J. 313, § 389.
   Hart, J.,

(after stating the facts). The main reliance of the insurance companies for a reversal of the judgment is that the verdict is without legal evidence to support it, and in this contention we think counsel for the insurance companies are correct.

It is sought to uphold the judgment upon the authority of Michigan Shingle Co. v. State Investment Ins. Co., 94 Mich. 389, 22 L. R. A. 319. In that ease it was held that the knowledge of an insurance agent that a warranty by the insured that ‘ a continuous clear space of 150 feet shall hereafter be maintained” between the property ■ insured and any woodworking or manufacturing establishment, did not represent the existing state of facts and .that there was no intent to change the.situation and that the insured could not control a clear space for that distance, prevents a. forfeiture of the policy for breach of the warranty, where the agent accepts the premium and issues the policy without taking any steps subsequently ,to rescind it, though knowing of the breach of the warranty, and it appears that, on account of the situation of the property, the manner of its use, and its proximity to water, he considered that the existing space was equivalent to that required.

In the first place we do not think that this case is applicable to the facts presented by the record in the case at bar. If the fire had destroyed the staves on the yards of the plaintiff and suit had been-brought under the policies to recover for their loss, the case would be in. point.

. In.the Michigan case the record shows that, although the clear space referred, to .was not 150 feet, as provided ..in the policy, yet that, on account of the situation of the .property, the manner of its use and its. proximity, to waterj.it was considered equivalent to that distance.by . insurance men, and the testimony .clearly, showed, that it •. was so-considered by the insurance .company’s agent who '.‘wrote the policy and placed the distance at 150 feet.

Under that authority, as applied to the facts in the present case, the insurance companies would be estopped from claiming that the staves stacked in the yards were not covered hy the policies, although there was- not a continuous clear space of 200 feet between the staves stacked in the yards and the working or manufacturing establishment.

In the second place, it may be said that the Michigan case could not in any event control the present case. Under the former opinion it was held that the insurance policies did not cover the staves stacked in the dry-kiln, and that opinion is the law of the case. -The case was remanded for a new trial solely on the question of whether there was a waiver by estoppel on the part of the insurance companies, but we fail to see any grounds upon which to base an estoppel upon the part of the insurance companies.

Silence is a species of conduct and constitutes an implied representation of the existence of the state of facts in question, and an estoppel based upon it is a species of estoppel by misrepresentation. To constitute an estoppel either by silence or by express representations, there must not only be a duty to speak, but the party relying upon the estoppel must have acted upon the representations or silence of the opposing party and have been misled to his prejudice.

“To constitute it (silence) an estoppel, there must be both the-opportunity and the duty to speak; and the action of the person asserting the estoppel, which was induced by it, must be the natural and obvious result of the silence, and the party maintaining silence must be in a situation to know that some one else is relying thereon, and acting, or about to act, as he would not had he spoken and asserted his right.” Rector v. Bd. Imp., 50 Ark. 116; L. R. Cooperage Co. v. Lanier, 83 Ark 548; Baker-McGrew Co. v. Union Seed & Fertilizer Co., 125 Ark. 146, and Wiser v. Lawler, 189 U. S. 260.

Putting the case on this point as strongly as the evidence would warrant us, it does not amount to an estoppel under the rule just announced. The agent of the insurance companies visited the plant of the plaintiff after it had insured the staves on its yard and policies of insurance had been issued on the same blank forms as the ones used in the policies sued on. Some of the policies sued on were in force at that time, and others are renewals of those which were in force at that time.

The agent of the insurance companies made a sketch or plat of the plant and fixtures with a view to insuring them. While examining the premises, he saw the staves stacked in the dry-kiln, but his attention was not called to the fact that the plaintiff claimed that these staves were covered by the policies sued on. His attention was not even called to the fact that the staves were simply stacked there. For aught that the record discloses, he may have thought that they were stacked there for the purpose of being dried and shipped out in the usual way. He was not called1 upon to speak in the matter at all, and the plaintiff was not in any way misled by his silence in the premises.

It is not claimed that he made any representations whatever about it. The agent of the plaintiff in charge of the plant did not ask him anything about the matter at all, and it does not appear that anything occurred which would make it incumbent upon him to speak. It does not appear that the plaintiff could have been misled in any way by his conduct or actions.

The result of our views is that the staves burned are not covered by the policies of insurance sued on, and the verdict of the jury is without evidence to support it.

It follows that the judgment must be reversed, and the cause of action of the plaintiff will be dismissed.


text:
    Southern Surety Company v. Penzel.
    Opinion delivered May 19, 1924.
    1. Insurance — construction of policies. — Insurance policies, being written on printed forms prepared by the insurance companies, are liberally construed in favor of the insured; but where the language of a policy is unambiguous, so that but one reasonable construction is possible, the policy should be interpreted according to the plain import of its language.
    2. Insurance — -total disability from date of accident. — Under an accident policy indemnifying insured against injury wholly disabling insured “from date of accident,” insured could not recover for total disability caused by blood poisoning developing three days after the accident.
    3. Insurance — construction of policies. — The whole policy of insurance should be construed together.
    4. Insurance — construction of policies. — A clause of an accident policy defining total disability as one accruing from the date of the accident and a clause providing that blood poisoning was covered by the policy should be construed together.
    Ajppeal from Pulaski Circuit Court, Second Division; Richard M. Mann, Judge;
    reversed.
    statement oe eaots.
    This is an action by Adam C. Penzel against the Southern 'Surety Company to recover on an accident policy issued to him by said company.
    According to the allegations of his complaint, he was injured on the 6th day of January, 1921, while in the act of removing a piece of meat from a butcher’s block in his butcher shop in the city of Little Rock, Ark. He pushed his right hand under the meat for the purpose of removing it- from the block, and1 the forefinger of his right hand was cut by coming in contact with a sharp knife concealed under the meat, the presence of which was unknown to him. On the 9th day of January, 1921, blood poisoning set up in the cut finger and rendered plaintiff totally unable to attend to his business. His total disability continued for twenty weeks, and he was partially disabled for a period of three weeks longer. As the result of the blood poisoning, he was confined in St. Vincent’s Infirmary, in Little Bock, for two weeks.
    The plaintiff gave defendant notice of his injury as required by the policy, and the defendant refused to pay him. The plaintiff prayed judgment against the defendant for the sum of $562.50 alleged to be due him under the terms of the policy, and for the penalty and attorneys’ fees allowed him by statute.
    The defendant denied that the plaintiff was entitled to recover for total disability, but admitted that he was entitled to recover one-half of the amount sued for on account of partial disability.
    The policy sued on was introduced in evidence, and was in force at the time the injury was received. The insuring clause reads as follows:
    “(1) The effects resulting, and exclusively of all other causes, from bodily injury sustained during the life of this policy, solely through external, violent and accidental means (excluding suicide, sane or insane, or any attempt thereat), .said 'bodily injury so sustained being hereinafter referred to as ‘such injury’.”
    The accident indemnities read as follows:
    “Part 2. Specific Losses. If ‘ such injury’ shall wholly and continuously disable the insured from date of accident from performing any and every kind of duty pertaining to his occupation, and during the period of such continuous disability, but within two hundred weeks from date of accident, shall result, independently and exclusively of all other causes, in any one of the losses enumerated below, or, within ninety days from the date of the accident, irrespective of total disability, result in like manner in any one of such losses, the company will pay the sum set opposite such loss; and in event ‘such injury’ results in death, the company will pay, in addition to the principal sum, weekly indemnity as provided in part 3, to the date of death; but only one of the payments named in part 2 will be made for injuries resulting from one accident.”

      Then follows the amount to he paid for loss of certain members of the body, and also defining what is meant by the word “loss.”
    “Part 3. Weekly Indemnity: . Total or Partial Disability. The company will pay accident indemnity at the rate per week specified in part 1, for the period of total loss of time commencing on the date of the accident, during which ‘such injury’ alone shall wholly and continuously disable and prevent the insured from performing any and every duty pertaining to any business or occupation. ’ ’
    “The company will pay one-half of the said weekly accident indemnity, if ‘such injury’ shall not, from the date of accident, wholly disable the insured, but shall, within thirty days thereafter, wholly and continuously disable him, or if ‘such injury’ alone shall, commencing on the date of accident or immediately following the total loss of time, continuously disable and prevent the insured from performing one or more important daily duties pertaining to his occupation; provided, however, that no such partial indemnity shall be paid for a longer period than twenty-six consecutive weeks.”
    “Provided, that indemnity under this part shall not be paid for any specific loss, except as provided under part 2.”
    Part 7 is as follows: “'Special Indemnity. Blood poisoning, sunstroke, freezing, hydrophobia, or asphyxiation due solely to ‘such injury’ (excluding suicide, sane •or insane) shall be considered as covered by this policy.”
    Part 8 of the policy provides for hospital expenses.
    ■ It was admitted that the injury occurred at the time and in the manner stated in the. complaint.
    The policy also provides that the insured is entitled to receive the sum of $25 per week for the period of total disability and $12.50 per week for the period of partial disability and a like sum for the period of confinement in a hospital as the result of the accident.

      The case was tried before the court without a jury, and the court found that the plaintiff was totally disabled for a period of twenty weeks and partially disabled for three more weeks, and that he was confined in a hospital as the result of the accident for two weeks.
    Judgment was therefore rendered in favor of the plaintiff against the defendant for the sum of $562.50, together with the statutory penalty of 12 per cent, and the attorney’s fee in the sum of $75. The case is here on appeal.

      Samp Jennings, for appellant.
    There is no ambiguity in the policy, and the courts cannot engraft on the policy a meaning contrary to that which the plain terms of the policy conveys. 62 Ark. 348; 111 Ark. 167; 142 Ark. 240. In the absence of some statutory or well-recognized ground of public policy prohibiting the making of conditions between the insurer and the insured, the parties have a right to make them, and are bound thereby. 122 Ark. 219; 122 Ark. 468; 133 Ark. 599. Since the period of total disability did not commence on the day of the accident, as provided within the policy, nor until three days later, appellee is only entitled to recover for a partial disability. Total disability must ensue within twenty-four hours of the accident, to come within the terms of the policy. 14 R. C. L. 1318, § 491. The words “at once” and “immediately,” as used in accident policies, referring to the time of such disability, do not mean within a reasonable time, but mean presently, or without any substantial interval between the accident and the disability. 175 Ala. 357; 16 N. W. 747.

      T. N. Robertson and A. J. ReMers, for appellee.
   Hart, J.,

(after stating the facts). The correctness 'of the- judgment of the circuit court depends upon the 'construction to be placed upon the policy. It'is admitted that the wound received by the plaintiff caused blood poisoning in his hand, and that this disability falls within the terms of the policy.

It is claimed by counsel for the insurance -company, however, that the court erred in finding that the plaintiff was totally disabled under the evidence introduced. The plaintiff was injured on the 6th day of January, 1921, and blood poison developed in his injured hand on the 9th day of January following: This was three days after he sustained the injury. The language of the policy is that, if such injury shall wholly and continuously disable the insured from the date of the accident from performing the duties of his occupation, the company will pay him for the period of total loss of time commencing on the date of the accident.

In this connection it may be stated that insurance policies are written on printed forms prepared by the insurance companies, and are liberally construed in favor of the insured. On the other hand, where the language of the policy is unambiguous, and but one reasonable construction of the contract is possible, it is the duty of the courts tp interpret the policy according to the plain import of its language. The language -of the clauses with reg*ard to total or partial disability is not ambiguous at all, and is susceptible of but one meaning. The words, “from date of the accident,” refer to the day on which the accident takes place. The words refer to a given point of time, and do not mean a period -of time three days afterwards.

This view is strengthened when we consider the language of the latter -section of “part 3,” which is copied in our statement of facts. It provides that the company will pay -one-half of the weekly accident indemnity, if such injury shall not, from the date of the accident, wholly disable the insured, but shall, within thirty days thereafter, wholly and continuously disable him. Manifestly, .this clause would have been omitted if the words, “from date of accident,” had not meant from the day the injury was received.

But it is contended that part 7 places blood poisoning and the other things mentioned therein in a class to themselves, and that they are exempt from the conditions of parts 2 and1 3.

¡We do not agree with counsel in this contention. The whole policy must be construed together, and there is nothing whatever to indicate that blood poisoning, sunstroke, freezing, etc., are exempt from the conditions specified in parts 2 and 3. Blood poisoning is caused by a foreign substance entering the blood, and the time when it develops will depend both upon the condition of the blood and the nature of the foreign substance entering it. When infection enters through the wound produced by the original accident, some time will elapse before blood poisoning develops, and the object of this clause of the policy is to bring blood poisoning, sun-stroke, freezing, hydrophobia or asphyxiation within the terms of the policy and to impose liability upon the insurance company when either one of these things results as an effect of the original injury. In other words, this clause makes the blood poisoning alleged and shown in this case a natural incident of the wound, and to be considered as’ an effect of the original injury, rather than as an independent or additional cause.

Therefore, the court erred in finding for the plaintiff for total disability. The plaintiff was injured on the 6th day of January, 1921, and the blood poisoning did not develop until the 9th day of January, following, which could not be considered from the date of the accident.

A construction of these words was involved in the case of Robinson v. Masonic Protective Assn. (Vt.), 88 Atl. 531, 47 L. R. A. (N. S.) 924, and the court said, that a construction making the words, “from date of the accident,” mean from the calendar date on which the accident occurred, would be so unreasonable in some cases as to render it almost certain that such a construction was not’ contemplated by the parties to the contract. The court pointed out, by way of illustration, that the insured might meet with an accident between eleven and twelve o ’clock at night, and yet, if that is the date contemplated by the policy, the total disability of the insured must begin within the same hour, and perhaps instantly, in order to entitle him to the benefits provided1 in the clause with regard to total disability. Continuing, the court said: “Assuming that this provision was inserted in the contract by the insurer with intentions reasonable and just toward the insured, we think the words, ‘date of the accident,’ as used in that clause, were intended to mean total disability from the day of the accident, reckoned from the time of the accident; that is, within twenty-four hours thereafter.” See also 5 Joyce on Ins. (2d ed.) § 3032 (e) where this construction is made a part of the text.

The result of our views is that the court erred in holding that, under the circumstances, the plaintiff was totally disabled within the meaning of the policy, and for this error the judgment must be reversed, and the cause will be remanded for a new trial, unless the plaintiff elects within 15 days to take judgment here for the amount conceded by defendant to be due.


author: Smith, J.

text:
    Johnson v. T. M. Dover Mercantile Company.
    Opinion delivered May 19, 1924.
    1. Alteration of instruments — jury question. — In an action on • a note, alterations on its face did not call for a directed verdict for defendant sureties where the evidence was conflicting as to whether such changes were made before or after the note was signed by them.
    2. Alteration of instruments — materiality of changes.— Changes in a note with respect to the name of the payee and the date from which interest is to run are material if made after the note was signed.
    3. Bills and notes — -acquiring title without indorsement. — ■ One acquiring title to a note by delivery without indorsement takes subject to defenses available against his transferrer.
    4. Bills and notes — holder not in due course — defense.—-Where a bank as payee took a note without notice that it was delivered in violation of condition imposed by sureties, and delivered it to another without indorsement, the defense of such violated condition was not available to sureties on the note against the latter holder, notwithstanding the latter was not a holder in due course.-
    5. Bills and notes — unauthorized signature — -ratification.— In an action on a note, testimony held insufficient to show ratification by sureties whose signatures Were affixed without authority.
    6. Bills and notes — ratification of signature. — -An offer by a surety to pay a pro rata share of a note, to which his signature had been forged, was not a ratification of the forgery, but a mere offer of compromise.
    7. Principal and surety- — erasure of surety’s name — instruction. — Where the holder of a note testified that, after its delivery, O. E. asked to -be substituted for his brother, W. T. E. as surety, and that he then drew a line through the first two initials of W. T. E’s. name, not to erase it, but as a memorandum of a proposition, subject to approval of the other sureties, which was refused, and that the line was subsequently erased, an instruction that drawing the line through W. T. E.’s initials relieved the other sureties was properly refused.
    8. Appeal and error — presumption that jury followed instruction. — Where, in an action on a note, the court instructed that, if the note was altered as shown on its face after it went into the hands of the payee, the jury should find for the defendant sureties, on appeal from a verdict for plaintiff it will be assumed that the alterations were made before the payee received the note.
    9. Bills and notes — failure of consideration. — Where, after delivery and maturity of a note, an additional surety signed it for the purpose of relieving another surety, but, on objection of other sureties, the latter’s name was retained, the consideration for the additional surety’s signature failed.
    10. Principal and surety — effect of release of sureties. — In an action on a note, where the names of three persons appearing as sureties were forged, the action as to them -must be dismissed, and the liability of the remaining sureties reduced proportionately, under Crawford & Moses’ Dig., § 8283.
    Appeal from Polk Circuit 'Court; B. E. Isbell, Judge;
    reversed in part.

      Lake & Lake and Minor Pipkin, for appellant.
    There was such an alteration within the meaning of C. & M. Dig,, § 7891, as to avoid the note. Change of payee is a material change. 2 C. J. 1215; 8 C. J. 728. See also 102 Ark. 302; 49 Ark. 40; 143 Ark. 292; 150 Ark. 85; 8 C. J. 730.
    Appellee is not a holder in dne course. 99 Ark. 459; 115 Ark. 44; L. R. A 1918F; C. & M. Dig. §§ 7815, 7824; 119 Ark. 334. The erasure of one of the signatures to the note without the knowledge or consent of the others is such an alteration as avoids liability of the nonconsenting parties. 88 Mo. A. 117. A| restoration of an instrument once materially altered is ineffective. 86 A. S. R. 119, note. The court should have instructed a verdict, in favor of J. C. .Allen, Gr. H. and F. L. Johnson, since their signatures to the note were proved to be forgeries.

      Norwood & Alley, for appellee.
    The name of the payee was not changed after delivery of the note, but, if so, the change as made was not such as to avoid the payment of the note by the appellants or any of them. See L. R. A. 1916F, p. 294; 139 Ala. 286; 48 Cal. 147; 143 111. App. 244; 62 Ind. 401; 3 Page, Cont., §§ 1514, 1515; 22 Min. 257; 187 Mo. App. 621; 46 Iowa 515; 80 Iowa 151; 130 Mo. App. 665; 74 Tex. 222; 83 Wis. 233; 127 Ark. 234; 131 Ark. 185. The name of W. T. Rowe was never stricken off the note. No mention of forgery was made in the answer of J. C. Allen, F. L. and Gr. H. Johnson, and they should be held to the issues tendered by the answer. 46 Ark. 129. It is no defense that the note was delivered without the security being given to the signers, and before all th§r sureties had been secured. 70 Ark. 512; 99 Ark. 319.
   Smith, J.

The T. M. Dover Mercantile Company, a corporation hereinafter referred to as the company, owned on and prior to July 10,1921, $3,600 in United States Grovernment bonds, which on that date it sold and delivered to L. H. Johnson and received in payment therefor the note upon which this suit is based. Johnson at the time was vice-president of the Bank of Hatfield, and he knew that the company had these bonds in the vault of the bank. Johnson had applied to the company several times to buy the bonds. He had no money to pay for the bonds, but proposed to give a note. Finally M. J. Dover, tlie president of the company, agreed to sell the bonds to Johnson upon the condition that Johnson could procure the indorsement of twelve or fifteen solvent sureties. Johnson prepared the note and proceeded to obtain the required indorsements. The note used was one of the printed notes which the bank kept in stock for its own use, and it named the bank as payee therein, and it read that it bore interest from maturity, the note evidently having been prepared in contemplation of the fact that the bank would deduct interest on any loan made by it in advance. Johnson proceeded to get signers on the note and reported progress to Dover, and he finally secured the signatures of fifteen persons, and the note was then considered sufficient.

R. B. Holder was the cashier of the bank at that time, and he delivered the note to Dover and took possession of the bonds for the account of Johnson and sold them and credited the proceeds of the sale to Johnson’s account, the principal portion thereof being us.ed to discharge an overdraft of Johnson’s outstanding in the bank at the time of the sale of the bonds. At the time of this sale Dover and the company were customers of the bank, but neither owned any stock or had any part in the management of the bank.

The note was not paid at maturity, and this suit was brought to enforce payment. In bringing the suit the company alleged that the note was originally made payable to the bank and was afterwards transferred to the company by delivery. The name of the bank as payee had been stricken out with a pen and the name of the company inserted as payee, and the word “maturity” had been erased and the word “date” inserted, the effect of these changes being to make the note payable to the company instead of to the bank and to bear interest from date instead of from maturity.

After instituting this suit the company was advised that the makers of the note intended to deny liability on the ground that there had been a material alteration in the note by changing the name of the payee, ■whereupon the company amended its complaint to allege that the note as executed was payable to the bank and that some one without authority changed the name of the payee, in which condition it was assigned to the company.

Dover,. who acted for the company in the matter, testified that he made no alteration of any kind, and that, so far as he was advised, no alteration had ever been made, as the note, when delivered to him, was payable to the company and bore interest from date instead of maturity, and, as the note should have been executed in this manner, he supposed it had been. According to Dover, the company acquired the note without notice that any alteration had been made, but the complaint was amended to meet the proof which Dover was advised the makers of the note intended to offer.

The answer denied that the company was the owner of the note and denied that the company acquired it in due course, and alleged that the note was void because of the alterations mentioned above; alleged that there had been a premature delivery of the note in that Johnson had agreed that he would, before the delivery of the note, indemnify the sureties by executing to them a mortgage on certain cattle he owned, but tins he never did; alleged that certain signatures were forgeries, and that, after the delivery of the note, the name of W. T. Rowe, one of the makers, had been erased from -the note and the name of Ober Rowe substituted therefor, and that this had been done without the knowledge or consent of the other makers of the note, and that the note had been prematurely delivered in that it was agreed that certain other signatures would be secured before the note was delivered.

Dover testified that the bank had no interest whatever in the transaction and that its name was brought into the litigation only because Johnson had used one of the printed notes of the bank, and there appears to be no doubt about tliis fact. Dover testified that he noticed the written changes that had been made, but he attached no significance thereto, as' there were changes which should have been made to conform the note to his contract with Johnson, and he assumed without inquiry, when Holder delivered the note to him, that they had been made before the note was signed. There was testimony on the part of some of the makers that the note was payable to the bank and bore interest from maturity instead of from date when they signed it, and that Johnson had agreed to execute a mortgage to indemnify them before delivering the note, and that certain other signatures were to have been procured before the note was delivered. There was no testimony that Dover knew, before receiving the note, of any of the conditions about getting other signers or giving a mortgage to indemnify those who did sign.

It is first insisted that the verdict should have been directed in favor of all the defendants for the reason that the note had been materially altered.

It may be conceded that a change of payee and of the date from which interest was to be computed were material changes (§ 7891, C. & M. Digest); but it does not follow that the verdict should have been directed in defendants’ favor on that account, for, according to Dover, no alteration of the note was made after its delivery to him for the company, and, if this is true, he acquired such rights as the bank had, and these rights will be discussed in connection with the instructions given in t'he case.

The makers of the note insist that there is no ques-. tion about the alteration of the note to submit to the jury, as the most casual observation would disclose an alteration, and they insist that, on this account, the verdict should have been directed in their favor. We do not so interpret the testimony. It is true the printed blank was changed as stated above, but these changes were not alterations at all within the meaning of the Negotiable Instruments Act, if they were made before the note was signed. Altering the blank note to conform to the agreement between Johnson and Dover before the note was signed would not be an alteration of the note itself, for the printed piece of paper with the interlineations did not become a note until it was signed, and the question whether the note was changed after it had been signed was one of fact which was submitted to the jury.

It is conceded that the company was not a holder in due course because the note was not indorsed by the bank to the company. The company acquired its title by delivery without indorsement, and therefore took subject to such defenses as were available against the bank. Secs. 7796 and'7797, C. & M. Digest; Webster v. Carter, 99 Ark. 458; Harrison v. Morgan-Curry Co., 115 Ark. 44; Hooten v. State, 119 Ark. 334.

By § 7894, C. & M. Digest, it is provided that, in the hands of any holder other than a holder in due course, a negotiable instrument is subject to the same defenses as if it were nonnegotiable, and, as we have said, there was no -testimony that either the bank or the company was advised that the note was not a completed instrument, ready to be delivered, at the time of its delivery to the company by Holder, although there is testimony that alterations were made after the note was signed.

Holder, the cashier of the bank, testified that L. H. Johnson told him the note was ready to be delivered, and that Johnson authorized him to deliver the note and to collect for it, and that, pursuant to this direction, he did deliver the note to the company, and he sold the company’s bond for Johnson’s account and applied the proceeds of the sale thereto. The jury evidently credited this testimony, as they had the right to.do, and, as the bank did not know there was a premature delivery — if this testimony is credited, as it was — then the bank did not know that the delivery was premature, and that defense is not available against the company.

“Where a surety signed a note as joint maker and left it in the hands of his principal, who procured it upon condition that it be first signed by a co-surety, but delivered it to the payee, who took in good faith without notice of such agreement, the surety is bound for its payment.” Williams v. Morris, 99 Ark. 319; Stiewel v. American Surety Co., 70 Ark. 512; J. R. Watkins Medical Co. v. Warren, 150 Ark. 542.

The court gave instructions telling the jury that it would he no defense to the note that Johnson represented to his sureties that he would execute a mortgage to indemnify them, or that he wlould secure .additional signatures, before delivering the note, unless these facts were communicated to the company at the time or before the note was taken over by the company, but would be a defense if the company was so advised. Under these instructions the verdict of the jury is conclusive that the company took over the note in ignorance of these conditions.

It is insisted that the verdict should have been directed in favor of J. C. Allen, Gr. H. Johnson and F. L. Johnson, whose names were signed to the note, for the reason that the testimony shows the signing of their names was a forgery. These three gentlemen all testified that they did not sign the note and did not authorize any one to sign their names, and L. H. Johnson admitted that he had himself signed their names, intending to secure their assent to this action before delivering the note, but he authorized the bank to deliver the note to the company before that consent was obtained, and without advising the bank that these signatures had been forged.

In instruction numbered 1 the court told the jury that,'if the names of these three persons were signed to the note by L. H. Johnson without authority from them so to do, they would not be bound on the note, unless the jury found from a preponderance of the evidence that, after their names were so signed, they consented thereto or ratified the same. It is urged that this instruction is abstract, as there was no testimony upon which the jury could have found that the signature had been ratified.

It is answered that L. H. Johnson testified that he had, with authority, signed the names of these gentlemen many times to negotiable paper, but that he had no authority to sign their names to the note here sued on. Allen was his brother-in-law, and the two Johnsons were Ms brothers, and, when Allen was advised by Dover, for the company, that his name appeared on the note, he wrote the company that he would call to see about it, and all three of these gentlemen proposed to pay their pro rata parts of the note if they were discharged upon doing so, but the company refused to accept such payment as a discharge of their liability.

We think this testimony is insufficient to support a verdict that Allen or either of the Johnsons ratified the signing of their names. The letter from Allen was a mere inquiry, and the proposition to pay a pro rata part was a mere offer of compromise which did not amount to a ratification of their signatures.

Among other signers of the note was W. T. Rowe, and it appears that Ober Rowe, a brother of W. T., asked to have his name substituted on the note for his brother W. T., and gave as his reason for desiring to have this done that W. T. Rowe was at the time in bad health and was worried about the note. It appears that Ober Rowe was equally as solvent as his brother, and Dover testified that he told Ober Rowe that he had no objection to this substitution if it did not affect the validity of tb° note and was satisfactory to the other signers, and that Ober Rowe thereupon signed the note, and he drew a line through the initials “W. T.” on the note, not for the purpose of erasing the name of W. T. Rowe from the note, but as a memorandum of the proposition of Ober Rowe, and that the line extended only through the initials of W. T. Rowe, and that, when the transaction was -.not approved by the other makers of the note, he erased-the line which he had drawn through the initials of W. T. Rowe, leaving his name on the note as one of the makers. Ober Rowe testified that he signed the note for the purpose of securing the release of his brother by substituting his name for that of his brother; but this conflict in the testimony was submitted in an instruction reading as follows: “The jury are instructed that, if they believe from the evidence that the name of W. T. Rowe was stricken from the note in question by the plaintiff' or some one representing the plaintiff, this invalidated the note as to all who signed or indorsed it before that was done, unless you find the striking of such name, if you find such name was stricken out, was done with the consent of the parties to the note.”

The defendants asked other instructions on this issue, which were refused. One of these instructions would, if given, have told the jury that, when Dover struck out the name of W. T. Rowe, he invalidated the note as to every one who had theretofore signed the note or indorsed it.

A sufficient reason for refusing this instruction is that it assumes that the name of W. T. Rowe was stricken from the note, whereas Dover testified that this was not done, and that the conditional arrangement to that effect never became effective.

Other instructions requested by the defendants on this subject also assumed that, if any part of the signature of W. T. Rowe was stricken out, it was done for the purpose of releasing him, and they were properly refused for that reason.

The instruction given told the jury as a matter of law that striking out the name of the bank as payee and the change of the date from which interest would be calculated were material alterations, which would invalidate the note if they were made by Dover; and the jury was also told, if the note was altered as indicated on its face before it went into the hands of the bank, to find for the defendants -who had theretofore signed it. But, as the verdict was in favor of the company, we must assume that the jury found that the alterations were made before either the company or the bank received the note. The testimony was legally sufficient to support this finding, as Dover so testified, and we need not therefore consider any question of the preponderance of the evidence on this issue of fact.

The verdict and judgment was against all the defendants, including Ober Rowe. In view of the facts which we have stated and the instructions given, the jury must have found that the name of W. T. Rowe was not stricken from the note, and, if this is true, the consideration moving Ober Rowe to sign the note failed. According to Dover’s own testimony, the name of W. T. Rowe was not stricken from the note. The name of Ober Rowe was signed after the maturity of the note, in fact it was the last name signed, and the consideration for his signature admittedly failed, and the judgment should1 not have been rendered against him.

The judgment against Ober Rowe, J. C. Allen, G. H. and F. L. Johnson must therefore be reversed, and the cause as to them will be dismissed; but, inasmuch as there were fourteen sureties who signed the note, it follows that, the release of Allen and the two Johnsons because their names were forged, operates to diminish the liability of the remaining sureties to the extent of three-fourteenths of the note (§ 8223, O. & M. Digest), and the judgment against them will be reduced to this extent, and, as thus reduced, will be affirmed.


text:
    Babers v. State.
    Opinion delivered May 19, 1924.
    1. Criminal law — hearsay evidence. — Testimony in a seduction case of the doctor who attended the prosecutrix at childbirth, that prosecutrix said that defendant was the father, is hearsay, even though he embodied such information in his birth report.
    2. Witnesses — impeachment as to collateral matter. — -Where a witness in a prosecution for seduction denied having made a statement as to his own intimacy with the prosecutrix, defendant cannot impeach him by showing by. another witness that he made such a statement.
    3. Seduction — admissibility op good reputation op prosecutrix.— Where defendant introduced evidence tending to prove improper relations between prosecutrix and another, such assault upon her character authorized testimony that her general reputation for chastity had previously been good.
    4. Criminal law — harmless error. — Admission in a seduction case of testimony of the previous good reputation of the prosecutrix for chastity was harmless, though her chastity had not been questioned, since, in the absence of such testimony, her chastity would be presumed.
    5. Seduction' — opinion of witness. — A witness in a seduction case, who testified as to the contents of a letter written by the prosecutrix, in which she referred to some one as her husband without stating who he was, could not state who he was, where such statement would be a mere statement of opinion.
    6. Seduction — admissibility of statement of prosecutrix. — A statement of the prosecutrix in a seduction case, made about the time of the alleged intercourse, that she was engaged to be married to another man, was admissible, as tending to disprove her testimony that her consent to intercourse with defendant was induced by a false express promise of marriage, and its exclusion was prejudicial.
    Appeal from Sevier Circuit Court; B. E. Isbell, Judge;
    reversed.

      J. 8. Utley, Attorney General, and John L. Carter, Assistant, for appellee.
   Smith, J.

Appellant was convicted of having seduced Era Zachary by virtue of a false express promise of marriage. According to the testimony on behalf of the prosecution, appellant and Miss Zachary became engaged in the summer of 1922, and she yielded her virginity at that time because of her. love for him and his promise to marry her. The testimony to this effect is sufficiently corroborated to support the verdict of guilty returned by the jury.

Appellant denied having promised to marry Miss Zachary, and he also denied having carnally known her, and he attempted to show that about the time the baby born to Miss Zachary was begotten he was not visiting her and was not engaged to her, but, on the contrary, she was receiving visits from Clyde Williams as an accepted suitor.

Dr. J. B. Anderson was called as the first witness for the prosecution, and he testified that he delivered the child on April 5, 1923, and that it was a normal child. He was then asked if Miss Zachary had stated to him who its father was, and the court sustained an objection to this question. Dr. Anderson was then asked if he was required under the Vital Statistics Act to report births of children, and if such report required him to name the parents of a child. He answered that he was, and the court thereupon permitted him to state who Miss Zachary had said was the father of the child, and that she stated appellant was its father.

This testimony was hearsay pure and simple, and the fact that Dr. Anderson embodied the information thus obtained in this report did not make it any the less so.

Clyde Williams was called as a witness for appellant and was asked if he had not stated at a designated time and place that he had a high time with Miss Zachary during the summer of 1922, and he denied making the statement. Appellant then called Truman Hill as a witness and proposed to prove by him that Williams had made the statement inquired about. The court refused to admit this testimony, and that ruling is assigned as error.

The law of this subject was reviewed, and a similar question held incompetent, in the case of Murray v. State, 151 Ark. 331. See also Doran v. State, 141 Ark. 442; Crofton v. State, 144 Ark. 164; Garrison v. State, 148 Ark. 370.

Certain witnesses were called on behalf of the State who testified that Miss Zachary’s general reputation for chastity had previously been good. This testimony was objected to on the ground that no attack had been made on Miss Zachary’s reputation. We think, however, that the attempt to prove an improper relation between Miss Zachary and Williams was itself an assault on her character. Moreover, we said in the case of Patrick v. State, 135 Ark. 173, that while such testimony, was incompetent where the chastity of the prosecutrix had not been brought into question, it was harmless error to admit it, as it only tended to prove a fact which the law presumed in the absence of proof to the contrary. See also Lockett v. State (opinion on rehearing), 136 Ark. 478.

Mrs. Lena Hill, a sister of appellant, was called as a witness in his behalf. She testified that, in the late summer or early fall, Miss Zachary showed her a letter which she had written in which she referred to her husband. The court permitted the witness to state the contents of the letter, but properly declined to permit the witness to state who the person was who was referred to as being Miss Zachary’s husband, as the letter itself did not reveal that fact, and her answer that Williams was the person referred to would have been a mere expression of her opinion, and the court properly refused to permit the witness to state that Williams was the person referred to.

This witness was asked, however, about a conversation she had had about the same time in regard to Miss Zachary’s engagement to Clyde Williams. Appellant offered to show by this witness that Miss Zachary stated to her that she and Williams were to be married, and that he had written to her to get a brown suit, hat and pair of shoes, that he himself had a brown suit, and that he would return in about three weeks, and they would marry, and that Miss Zachary did purchase a brown suit, hat and pair of shoes, and when Williams returned that summer he wore a brown suit.

The prosecuting attorney objected that any statement made by Miss Zachary was inadmissible unless it related to her chastity, and the court sustained the objection and excluded the offered testimony.

This ruling was erroneous and, we think, prejudicial. This testimony tended to show that, about the time when in the course of nature the baby was begotten, Miss Zachary was not engaged to appellant, but was in fact engaged to Williams. Appellant was charged with the crime of seduction, and it was essential for the State to show, not only that he had carnally known Miss Zachary, but that her consent thereto was induced by a false express promise of marriage. As we have said, appellant denied having had sexual intercourse with Miss Zachary, and denied having promised to marry her, and, if Miss Zachary was engaged to Williams at about the time of the alleged sexual intercourse with appellant, this was a circumstance bo show that, if she had had sexual intercourse with appellant, «he had not consented thereto because of a promise of marriage.

The instructions given by the court fairly submitted the issues to the jury under correct declarations of law, and the testimony is legally sufficient to sustain the verdict, hut, for the errors indicated, the judgment must he reversed, and it is so ordered.


author: Humphreys, J.

text:
    Hugus v. Sanders.
    Opinion delivered May 19, 1924.
    1. Contracts — defense at law. — Failure to perform the conditions of a contract on which the payment of money depends is a good defense at law against a recovery thereof.
    2. Trial — transfer of causes. — Causes are transferred from law to equity courts only where the issues are exclusively within the jurisdiction of the latter or the former cannot afford complete and adequate relief.
    3. Trial — right to transfer to equity. — Where the complaint alleged a sale of an oil lease to defendant, who deposited a check in escrow upon condition that plaintiff complied with the conditions of the contract, and defendant' alleged a breach of the agreement, and prayed for cancellation of such agreement and return of the money, the action was one at law for purchase money and not transferable to equity as a suit for specific performance.
    4. Appeal and error — harmless error. — In an action for the purchase price of land, where there was no dispute as to the validity of the title, an instruction to find for plaintiff if the title was good was harmless.
    5. Mines and minerals — right to have deed recorded — waiver.— Where the purchaser of an oil lease notified the vendor that the contract was ended and demanded the return of his money, he will be held to have waived the right to have a certain quitclaim deed recorded and included in his abstract furnished by the seller.
    6. Mines and minerals — jury question. — Whether a purchaser’s attorneys agreed to approve an abstract required to be furnished subject to their approval if the seller of an oil and gas lease would procure a quitclaim deed from others, and whether such deed was procured within a reasonable time, held for the jury on conflicting testimony.

      7. Trial — argumentative instruction. — An argumentative instruction singling out and emphasizing particular facts was properly-refused.
    8. .Customs and usages — evidence.—In an action for the purchase price of an oil and gas lease, testimony as to the customary time allowed in the oil business for vendors to perfect titles and abstracts to land was not error in the absence of a showing that the custom prevailed in the particular locality or of a showing as to what the witness’ testimony would be.
    Appeal from Hot Spring Circuit Court; Thomas E. Toler, Judge;
    affirmed.

      John L. McClellan and Gray, Burrow db McDonnell, for appellants.
    1. It was error to refuse to transfer the case to equity. The complaint demands specific performance, i. e., to compel the vendee to accept the lease which he had refused, and pay over the exact purchase money. 5 Pomeroy’s Equity Jur., 4th ed. 4875; 126 Ark. 339. That a complaint demands judgment for a sum of money only, does not necessarily stamp the action as one at law. 82 N. Y. S. 686. It is error for the court to require an equitable action to be tried as an action at law. 7 Wash. 431; 35 Pae. 138; 104 Ark. 322, 149 S. W. 101. Where a complaint states an equitable cause of action, or where a defense is interposed which is exclusively cognizable in equity, the case must be transferred to equity. 85 Ark. 208; 87 Ark. 206; Id. 142; 36 Ark. 228; 4 Pomeroy’s Equity Jur. 4th ed., p. 3461. See also 46 Ark. 272; 95 Ark. 118; C. & M. Digest, §§ 1034,1044,1045.
    2. The question of title to real property, or the validity of -same, is always a question of law for the court, when, as in this case, there is no dispute as to any facts or records constituting or evidencing leg’al title. 85 N. E. 1107; 71 S. W. 549; 44 C. C., 110.
    3. Appellants were entitled to a peremptory instruction. Appellee bound himself, and so admits, to furnish an abstract showing a record title, and we think, in the light of the evidence, that he failed in this. 73 Ore. 356, 144 Pac. 499; 134 Iowa 381, 105 N. W. 155; 119 Iowa 314; 93 N. W. 348; 173 N. W. 677; 214 S. W. 849; 7 A. L. R. 1162, note; 112 Minn. 388,128 N. W. 459; 153 S. W. 641. On the question of the attorney’s approval as a condition precedent, see 119 Ark. 418; 94 Ark. 263; 121 Ark. 482'; 151 Ark. 343; 124 S. W. 23; 95 Cal. 626, 30 Pac. 789; 76 Ya. 404; 68 Mr. App. 535; 26 N. Y. Supp. 48; 6 R. C. L. 956. An agreement specifying no time implies a reasonable time. 6 R. O. L. 896; 13 Carp. Jur. 791-2, § 1018; 116 Pac. 980; 154 N. W. 835; 63 So. 973; 147 N. W. 577; 223 Fed. 460; 254 Pa. 99, 98 Atl. 7.85.

      D. D. Glover, for appellee.
    The complaint stated a cause of action at law against both of the appellants, they both being made defendants therein. The Bank of Malvern did not ask that its defense be transferred to equity, at any time. Hugus alone, before filing an answer, moved' to transfer to equity, and, the next day following the overruling of that motion, filed an answer, and never thereafter asked to renew the motion or to transfer. C. & M. Dig. § 1035; 52 Ark. 411; 37 Ark. 185; 87 Alrk. 206; 104 Ark. 322.
   Humphreys, J.

Appellee instituted suit against appellants in the circuit court of Hot Spring County, to recover $1,200, the purchase money for an oil and gas lease, alleging that he had performed all the conditions for the sale and purchase of said lease.

Appellant, D. F. Hugus, filed a motion to transfer the cause to the chancery court of said county and a separate answer, alleging, in his motion, that the suit was in effect a suit for a specific performance of the sale and purchase of said lease, and, in his answer, that the lease and money were deposited in escrow with appellant, the Bank of Malvern, to be delivered upon condition that appellee furnish an abstract showing a record title to the land which would meet the approval of appellee’s attorneys, Reid, Gray, Burrow & McDonnell, or some member of the firm. That appellee had failed to perform the conditions of the escrow agreement. He prayed for a cancellation of the contract and for a return of the money deposited with the bank.

Appellant, Bank of Malvern, filed a separate answer alleging that it was holding the lease and money under an escrow agreement containing conditions not yet performed, and requested that it be directed to whom it should pay the escrow fund, and that, upon payment of same as directed, it be absolved from liability to either party. It did not join in or file a separate motion to transfer the cause to the chancery court. The court overruled the motion of appellant, D. F. Hugus, to transfer the cause to the chancery court, to which ruling an objection was made and exception saved, whereupon the cause was submitted to the jury upon the pleadings, testimony introduced by the respective parties, and the instructions of the court, which resulted in a judgment in favor of appellee, from which is this appeal.

The record reflects a sharp conflict in the testimony. That introduced by appellee was, in substance, as follows : On the 24th day of April, 1922, appellee agreed to sell an oil and gas lease he had purchased from C. H. Holcomb upon a twenty-acre tract of land in said county to appellant, D. F. Hugus. After the assignment of the lease had been executed by appellee, it was regarded as necessary for his wife to join in the assignment. The parties repaired to the bank where the lease was left, with direction to forward same to appellee’s wife, who was in Oklahoma, for her signature. At the time D. F. Hugus drew a draft for $1,200 on his home bank in Louisiana, payable to appellee, which was indorsed and delivered to the bank for collection. The bank was instructed, when the lease was returned and the draft collected, to turn the lease over to D. F. Hugus and to deposit the money to the credit of appellee. At the time the papers were drawn up and left with the bank, appellee was assisting Blaine Holcomb in drilling an oil well about six miles east of Malvern, and instructed the bank to allow his father, M. E. -Sanders, to act for him in winding up the lease transaction in case he could not be present. Appellee and his father admitted that he agreed to furnish an abstract showing record title to the land, which should be examined by the law firm of Reid, Gray, Burrow & McDonnell or any one of them, but denied that he was to do this before he received the purchase money for the lease. Appellee furnished the abstract, however, on the day of the transaction at the bank. They both testified that they did not receive or know of a letter written by Reid, Gray, Burrow & McDonnell to I). F. Hugus on April 29, 1922, pointing out defects in the title and making requirements necessary to perfect same. Blaine Holcomb testified that, after Mr. Burrow examined the abstract, he requested him to get a quitclaim deed from J. P. Allen and wife to himself to clear the title so he could approve same, and, pursuant to the request, he sent to Louisiana and got the deed; that he received it the 17th or 18th of May, 1922, but did not give it to appellee until the 6th day of June following; that he took it to Mr. Burrow’s office before that to give it to him, but he was not there; that Mr. Burrow made no other complaint about the title to him. M. E. Sanders testified that Blaine Holcomb told him that Hugus’ attorney had requested a quitclaim deed from J. P. Allen and wife, and Holcomb agreed to get it; that he talked to Mr. Burrow about the transaction a time or two and informed him that they were waiting and depending upon Holcomb to get the deed. Appellee testified that he obtained the Allen quitclaim deed from Blaine Holcomb on June 6, 1922, took it to the bank, and was instructed by the cashier to take it to Mr. Burrow; that he took it to his office and found it closed, and then left it at the bank. On June 10, 1922, appellee gave his father a check for $1,200 on the Bank of Malvern, which it refused1 to pay.

The testimony introduced by appellants was, in substance, as follows: the gas and oil lease in question, together with -the purchase money therefor, were deposited with the Bank of Malvern in escrow under agreement that the lease should be delivered to Hugus and the money to appellee when an abstract showing a record title should be furnished by appellee and approved by Hugus’ attorneys or one of them. The abstract -yas furnished and examined by the attorneys, who wrote a letter to D. F. Hngns on April 29, 1922, specifying the requirements necessary to perfect the title. Hugus testified that he delivered the letter and abstract to C. T. Riley, who was interested with him in the lease, with request that he give it to M. E. Sanders so that he might comply with the requirements. T. C. Riley testified that he delivered it to M. E. Sanders and requested him to comply with the requirements at once. The requirements had not been complied with on June 6,1922. On that date D. F. Hugus notified the bank that the deal was off and the contract canceled on account of the failure of appellee to comply with the escrow agreement. He demanded a return of the money. The bank immediately notified appellee in writing of the position assumed by Hugus. An oil boom was on in the vicinity of Malvern in April when the lease was placed in the bank, but it subsided in June when Hugus declared the deal off and demanded a return of his money. The oil lease market had been active during the interim.

In the course of the trial appellee was permitted, over the objection and exception of appellants, to testify that he knew the title to the tract of land1 in question was all right because he got another lawyer in Malvern, Henry Berger, to pass on it, and he said it was good; and to prove by Blaine Holcomb that he was acquainted with the title and abstract to the land, and, in his opinion, the same was good.

In the progress of the trial appellants offered to prove by D. F. Hugus, who was an experienced oil man, the customary time allowed in the oil business for vendors to perfect defective titles to lands upon which leases were bought and sold under contracts for abstracts showing-record titles. The court excluded the evidence, over their objection and exception.

Appellant’s first insistence for a reversal of the judgment is that the court erred in overruling- the motion of D. F. Hugus to transfer the cause to the chancery court. It is asserted that the 'suit is for the specific per-f ormance of a contract, and, in addition thereto, that the defenses set up by appellants are exclusively equitable defenses for -which complete relief could not be afforded in a court of law. The question presented must be settled on the face of the pleadings. There is no allegation in the complaint necessarily indicating that the suit is for the specific performance of a contract. The complaint alleges, in substance, that appellee sold and assigned an oil lease on a twenty-acre tract of land to D. F. Hugus for $1,200; that, in payment therefor, D. F. Hugus gave him a check for $1,200 on the Bank of Malvern, which he deposited with said bank to be placed to his credit; that, on the tenth day of June following, he drew his personal check on said fund in favor of M. -E. Sanders, his father, who indorsed and presented same for payment, which was refused; that he had complied with every condition of his contract with the said D. F. Hugus and the Bank of Malvern, and that he was entitled to a judgment for said amount of money. On the face of the complaint the suit was for the purchase money of an oil lease. The appellants interposed the defense thereto that the oil lease, together with the purchase money therefor, was deposited in the bank under an escrow agreement that the lease should be delivered to.D. F. Hugus and the money paid to appellee, when appellee furnished Hugus with an abstract showing a record title which would meet with the approval of his attorneys, Beid, Gray, Burrow & McDonnell, or any one of them, and that said condition had not been complied with. Hugus prayed for a cancellation of the escrow contract and a return of the money, and the Bank of Malvern prayed for direction as to whom it should pay the money and, upon payment of same as directed, to be absolved from liability to either.

A failure to perform conditions upon which the payment of money is dependent is a good defense at law against the recovery thereof. It is argued, however, that the law court could.not cancel the escrow contract, adjudge a return of the money and absolve the bank from liability to either party. The only ground upon which the relief is prayed is that the conditions of the escrow agreement were not performed by the appellee. The result of that issue must determine the course of the escrow fund. If appellee failed to perform the conditions within a reasonable time, a judgment against him of conditions broken would automatically operate to release his claim upon the fund and justify the bank in paying it to Hugus -without incurring any liability. If appellee complied with the conditions, a judgment in his favor would1 take the escrow fund and automatically release the bank from liability. In either event there would be no necessity for an order canceling the escrow contract and protecting the bank from liability. Causes are only transferred from courts of law to the courts of equity where the issues are exclusively within the jurisdiction of the latter, or, if concurrent, where the law court cannot afford complete and adequate relief. The allegations in the separate answers, in effect, present the same defense, are triable at law, and a judgment at law would afford adequate and complete relief to all the parties concerned. The court did not err in overruling the motion to transfer the cause to the chancery court.

Appellant’s next insistence for a reversal of the judgment is in giving appellee’s requested instruction No. 2. It is as follows: - “You are instructed that, ii you find from the evidence that the title to the lands was good as shown by the evidence in this case, and you find from the evidence that the plaintiff met the requirements made of him by the plaintiff at the time of the trade, your' verdict will be for the plaintiff for the sum of $1,200, with six per cent, interest from the date of the sale to this date. ’ ’

The instruction is assailed upon the alleged ground that it submits a legal question to the jury for determination. It is contended that there is no dispute as to any facts or records evidencing appellee’s title, hence the question of title was one for the court and not for the jury. We think the issue of title was eliminated by the undisputed evidence, so the submission of the sufficiency of appellee’s title to the jury resulted in no prejudice to appellants. According to the undisputed evidence, an abstract of title was furnished, examined and approved, subject to written requirements, the only important one being, according to the tone of the letter, that a quitclaim deed should be procured from J. P. Allen and wife. In fact, no contention is now made that the title itself is defective. The contention is that the quitclaim deed was not procured from Allen and wife within a reasonable time, recorded and included in the abstract. Appellants also complain at the admission of incompetent evidence relating to the sufficiency of the title, but the evidence was not prejudicial, as the sufficiency thereof was eliminated by the undisputed facts above referred to.

Appellant’s next- insistence for a reversal of the judgment is that the court erred in refusing to give appellant’s requested instruction No. 1, which is a peremptory instruction. It is argued that, because the quitclaim deed from Allen and wife was not placed on record, included in the abstract and approved by the attorneys, appellees breached the escrow contract to the effect that he would furnish an abstract showing a record title which would meet the approval of the attorneys. Appellant, Hugus, waived the right to have the quitclaim deed recorded and included in the abstract by notifying the bank and appellee that the contract was at an end and by demanding a return of his money. It would have been useless for appellee to incur the expense of complying with the requirement when appellee had refused in advance to receive the deed and abstract. There was a dispute in the testimony as to whether the attorneys had not agreed to approve the abstract if appellee would procure a quitclaim deed from Allen and wife, and whether the deed was procured within a reasonable time, so, for these reasons, the court properly refused' to give the peremptory instruction requested by appellants.

Appellants’ next insistence for a reversal of the judgment is that the court erred in refusing to give their requested instruction No. 6, defining what is meant by a reasonable time and bow the rule should be applied. The requested instruction was objectionable because it was argumentative, singled out and emphasized particular facts in the record. The court did not err in refusing to give it.

Appellant’s next insistence for a reversal of the judgment is because the court excluded the testimony of D. F. Hugus relating to the customary time in the oil business for vendors to perfect titles and abstracts to lands which they had sold under agreements to furnish abstracts showing record titles. The testimony was properly excluded, on two grounds. First, in qualifying Hugus said he was acquainted with the custom in oil fields in this regard1, but made no claim that such custom prevailed in the vicinity of Malvern. Second, it was not shown what his testimony would be upon the subject if permitted to testify.

Appellant’s next and last insistence for a reversal of the judgment was the refusal of the court to give their requested instruction No. 2, upon the issue of agency. The court struck out the word “omissions” in one part of the instruction, and appellants claim the effect of the modification was to hold a principal responsible for the acts of his agent but not for his omissions. Appellants are in error as to their construction of the instruction as modified and given. After the modification the instruction embraced the idea that a principal was responsible for the omissions as well as acts of his agent. The instruction as modified and given is as follows: “If you find from the evidence in this case that, during the negotiations and transactions leading up to the agreement between plaintiff and defendants, which is involved in this suit, and in performance of such agreement the plaintiff, B. S. .Sanders, was represented by M. E. Sanders, and that M. E. Sanders acted for him, then you are instructed that plaintiff, by bringing this suit, has ratified the actions of the said agent, M. E. Sanders, and is legally bound by such acts the same as if they were done or omitted by him personally. ’ ’

No error appearing, the judgment is affirmed.


text:
    Hudson v. State.
    Opinion delivered May 26, 1924.
    Intoxicating liquors — possession of unregistered stillworm.— An indictment for possessing an unregistered stillworm is sustained by proof of possessing a copper coil such as is used in stills; the burden being on the defendant to show that the still-worm was registered.
    Appeal from Randolph Circuit Court; J ohn C. Ashley, Judge;
    affirmed.
    STATEMENT OF FACTS.
    Alonzo Hudson was indicted for keeping in his possession a certain still and stillworm without registering the same with the proper United States officer.
    According to the evidence for the State, a deputy sheriff with three other persons went to the home of Alonzo Hudson, in Randolph County, Arkansas, to search his premises for a still and stillworm which they had been informed he had in his possession. While searching the premises they found a coal-oil can with a copper coil in it. The coal-oil can had two holes in it, into which the pipes of the copper coil would fit. The copper coil was such as was usually used in making corn whiskey. The deputy sheriff also found a two and a-half gallon jug of corn whiskey, four quart fruit jars of corn whiskey, and two half-gallon fruit jars of corn whiskey. He also found two fifty-gallon barrels of mash, which consisted of corn-chops and shorts, and which was in such a state that, in his judgment, corn whiskey could be made from it. The three men with the deputy sheriff corroborated his testimony.
    The jury returned a verdict of guilty, and fixed the punishment of the defendant at one year in the State Penitentiary. Prom the judgment of conviction the defendant has duly prosecuted an appeal to this court.

      Schoonover & Jackson, for appellant.

      J. S. TJtley, Attorney G-eneral, John L. Carter, Wm. T. Hammock, Barden Moose and J. S. Abercrombie, Assistants, for appellee.
   Hart, J.,

(after stating the facts). The indictment was returned, under the provisions of § 2 of an act passed by the Legislature of 1921, making it an offense to set up or operate a distillery in the State of Arkansas. G-eneral Acts of 1921, p. 372.

Section 2 provides, among other things, that no person shall keep in his possession any stillworm or still without registering the same with the proper United States officer.

The defendant was indicted for possessing a still and a stillworm. It is earnestly insisted by counsel for the defendant that the judgment should be reversed because the evidence is not legally sufficient to sustain the charge of possessing a still. It is insisted that the coal-oil can in which the copper coil was found could not be used as a retort for boiling the mash, and was therefore not a still within the meaning of the statute.

Conceding this to be true, the position of the defendant is not well taken. The court instructed the jury that it might find the defendant guilty, if he unlawfully kept in his possession a still or a stillworm at the time and place specified in the indictment, without having registered the same with the proper United States officer. The evidence for the State showed that the deputy sheriff found in the possession of the defendant at his home in Bandolph County, Arkansas,, within three years next before the finding of the indictment, a copper coil, and that this coil was such as was in general use among persons who were in the habit of being engaged in the unlawful manufacture of corn whiskey. One of the persons with the deputy sheriff stated that he had made many similar raids, and that the copper coil was like those in general use as a stillworm in that part of the country for making corn whiskey.

This testimony was legally sufficient upon which to base a verdict of guilty upon the charge of unlawfully keeping a stillworm. Rosslot v. State, 162 Ark. 340, and eases cited. In that case and the cases cited in it it was held that the wffrd “stillworm” applies to the tube or coil used for condensation of the vapor which is passed through it from boiling mash for the purpose of being distilled into whiskey.

It was further held that, in a prosecution for the unlawful possession of a stillworm, the burden is on the defendant to show that the stillworm found in his possession was registered as required by the statute.

Therefore the evidence was legally sufficient to support the verdict, and the judgment will be affirmed.