text:
    Davis v. State.
    Opinion delivered July 14, 1930.

      Henry Donha/m, for appellant; Davis and Grover T. Otvens, S. Lasher Ehrman and John M. Lofton, for appellant Long.

      Hal L. Norwood, Attorney General, Robert E. Smith and Pat Mehaffy, Assistants, ¡for appellee.
   Smith, J.

Willie Joe Davis, Roosevelt Davis and Eddie Long were jointly indicted for the murder of J. W. Weed, it being alleged that the crime was committed "after deliberation and premeditation, and with the felonious intent then and there to rob J. W. Weed.” * * * There was a severance, and Willie Joe Davis and Eddie Long were separately tried and each convicted of murder in the first degree, and they have appealed from judgments sentencing them to death. Separate trials were had, and separate appeals have been prosecuted, but the questions presented are sufficiently similar to be disposed of in a single opinion. It does not appear whether Roosevelt Davis has been tried.

A demurrer was interposed to the indictment at each trial, which was overruled in each instance. The indictment is almost an exact copy of the one held good in the case of Washington v. State, 181 Ark. 1011, 28 S. W. (2d) 1055, except the difference in the names of the parties, and as we have not changed our view as to the sufficiency of that indictment, it will suffice to say that the indictment was not demurrable.

The sufficiency of the testimony to sustain the convictions is not questioned, and reversals are asked upon other grounds. We shall, therefore, discuss only so much of the testimony as will be required to dispose of the assignments of error upon which reversals are asked.

It was the theory of the prosecution that the parties named in the indictment went to the place of business of J. W. Weed, a merchant in North Little Eock, to rob him, and, while engaged in this attempt, killed him. As tending to identify appellants as the persons who killed Weed, and as showing the purpose for which they went to his place of business, Joe Lee testified that between seven and eight o’clock of the night Mr. Weed was killed and within a few blocks of Mr. Weed’s place of business, three men held witness up and robbed him. They even took his shoes. Lee recognized appellants as two of the robbers, and so testified in each trial. In admitting this testimony over the objections of appellants, the court admonished the jury that the testimony could be considered for the purpose only of identification, and upon the question of their intent in entering Weed’s place of business. The indictment alleged that Weed was killed in an attempt to rob him, and it was this unlawful intent which rendered it unnecessary for the State to prove that deliberation and premeditation which would otherwise be required to establish the crime of murder in the first degree. It was pointed out in the Washington case, supra, and in the cases there cited, that our statute has modified the common law, so that murder committed in the perpetration, or the attempt to perpetrate, certain named felonies, including robbery, is deemed murder in the first degree, and a showing of deliberation and pre- ■ meditation is not required.

It was essential for the State to show that appellants were in Weed’s place of business for the purpose of committing the crime of robbery. Weed was killed about eight o’clock, and Lee’s testimony is to the effect that just a short time before this and at a place near the scene of the killing appellants, robbed him, and were armed when they did so. The testimony was, therefore, competent to show the business in which appellants were engaged that night, and the probable purpose for which they went to Weed’s place of business soon thereafter.

It is well settled that if testimony tends to prove the commission of the crime charged in the indictment, it is not to be excluded because it also tends to show the commission of another or different crime. Cain v. State, 149 Ark. 616, 233 S. W. 779 ; Hall v. State, 161 Ark. 453, 257 S. W. 61 ; Stone v. State, 162 Ark. 154, 258 S. W. 116 ; Warford v. State, 175 Ark. 878, 1 S. W. (2d) 23.

In the trial of appellant Davis it was not contended that he was not present at the time of the killing of Mr. Weed, and the testimony fully sustains that finding, and the testimony of Lee tends to show that, if Davis was present, Long was present also, as they were together a short time prior to the killing’. We therefore conclude that no error was committed in admitting the testimony of Lee. The relevancy of Lee’s testimony will be made more apparent by other facts which will be stated.

At the'trial of appellant Davis testimony was offered to the effect that, because of a syphilitic infection from which he had long suffered, his mentality had been impaired to the extent that he was not responsible for his conduct, and certain physicians who qualified as experts gave testimony tending to support that contention. Opposing this contention the State offered the testimony of Morris Logan, Lon Barnard, J. R. Parris, J. H. Miller, and S. A. Hamilton, who were non-experts, to the effect that in their opinion Davis was sane, and they were permitted to express that opinion over the objection of appellant Davis.

Medical experts are not the only persons who may express their opinion upon the sanity of a person whose mental condition is the subject of judicial inquiry. But, for the non-expert to be allowed to do so, he must state the facts upon which his opinion is based, and must, as a condition precedent, show that he has known the alleged insane person for such a length of time, and has had such opportunities to observe him, as to furnish a reasonable basis for the opinion expressed. It is always a preliminary question of fact for the trial court to say whether the witness has qualified himself in this respect, and the trial'court should exclude the testimony of the non-expert witness who does not show that he has had opportunities for observation, and who does not state the facts upon which he bases his opinion. The value of such testimony depends, in a large measure, upon the intelligence of the witness and his opportunities for observation, but these are matters to be weighed and considered by the jury after the testimony has been admitted upon the prima- facie showing that the witness has had such acquaintance with and opportunities to observe the person whose sanity is in question as to furnish a reasonable basis for the opinion expressed.

The law of this subject has long been settled by numerous decisions of this court, and need not be further reviewed. A late case on the .subject is that of Thurman v. State, 176 Ark. 88, 2 S. W. (2d) 50.

Under this test we think no error was committed in permitting the non-expert witnesses named to express the opinion that appellant Davis was sane. All of these witnesses had frequently seen Davis over a period of from one to three years, except Hamilton and Farris, who were the jailers having Davis in custody since his arrest. Confinement in jail covered a period of about five months, and the jailers testified that they saw Davis daily, and conversed with him frequently, and, that he spent his time like the other prisoners, that he answered all questions coherently, and knew what was going on, and conducted himself like the other prisoners, and had done nothing to make them suspect that he was insane. We conclude therefore that the testimony was competent.

An instruction was asked in each case to the effect that appellant could not be convicted of the crime of murder in the first degree unless it was found that the killing was done after deliberation and premeditation. It sufficiently appears from what has already been said that this instruction was properly refused.

The .court refused in each case to charge upon the lower degrees of homicide, and submitted to the jury the question only of the guilt of appellants of the crime of murder in the first degree. The same question, upon similar facts, was raised in the Washington case, supra, and there decided adversely to the contention here made, that decision being to the effect that, if the evidence on behalf of the prosecution shows that the defendant, if guilty at all, was guilty of murder in the first degree, and there was no evidence tending to reduce the degree of the homicide, no error was committed in refusing to charge upon the lower degrees.

The appellant Long became a witness in his own behalf, and admitted that he had spent the afternoon preceding the killing- of Weed with appellant Davis and his brother Roosevelt Davis, and that shortly before eight o’clock all of them went to Weed’s place of business. He did not enter, but the Davis brothers did. They said they were going in to buy a sandwich. He walked to the street corner, and started back to remind the Davis brothers of a dance they had all arranged to attend, but before reaching Weed’s place he heard shooting and, knowing that he had been seen in company with the Davis brothers, he ran away, that he knew nothing about the shooting, and did not know what it was about or who did it. It was shown that Long had pawned a 32-caliber pistol after the shooting, and that Weed was shot with a pistol of that caliber. Long testified that the pistol belonged to Roosevelt Davis, and that he had pawned it for him and had given him the money.

Katie Davis, the wife of appellant Davis, testified concerning statements made to her or in her presence by appellant Long, the purport thereof' being that appellant Long was an active participant in the murder of Weed, and other witnesses gave testimony to the same effect.

Appellant Long, as a witness on his own behalf, testified that the police in North Little Rock beat him up after arresting him, and that; if he made any statements which appeared to connect him with the crime he had done so only because of the fear that he would be beaten again.

On his cross-examination the prosecuting attorney asked Long about several of these statements, and Long either denied having made the statements, or said that they were untrue and had been made only because officer Hendricks, of the North Little Rock police force, had beaten him up, and that he had made the statements under the influence of the fear thus engendered. The prosecuting attorney questioned Long concerning his whereabouts shortly before the killing and asked him if he had not told officer Hendricks that he and the Davis brothers had robbed Lee and had taken his shoes away from him, and he denied making the statement. Hendricks was called in rebuttal and testified that he had not participated in the arrest of Long, but was in Memphis at the time, and that he did not offer any violence to Long at any time, and that Long did make the statement to him, or in his presence, set out above, which, as a witness, Long denied having made.

The testimony of the witness Hendricks was admitted over the objection of appellant Long, but we perceive no reason why it was not competent. Its relevancy and materiality are apparent. Appellant Long did not request the court, as a preliminary matter, to hear testimony as to whether these statements, which were in the nature of a confession, had been freely and voluntarily made.

The practice in such cases has been defined in numerous decisions of this court. It is to this effect. When testimony in the nature of a confession is offered, the accused has the right to object to its admission, upon the ground that the alleged confession was not voluntarily made, in which event the trial court should hear testimony as to the circumstances under which the alleged confession was made, and should exclude the confession if it was not voluntarily made. If the testimony is conflicting on that question, the jury should be told to disregard the alleged confession unless they found that, it was, in fact, voluntarily made, but, if it appeared to have been voluntarily made, to consider it in connection with all the other evidence in the case.

No such request was made, nor were any instructions asked upon that question. Statements in the nature of a confession are not to be excluded for the reason only that they were made to an officer having the accused in custody, and, if Long voluntarily made these statements to, or in the presence of, the witness Hendricks, there is no reason why he should not have been allowed to testify concerning them. The law of this subject was recently very thoroughly considered and the authorities reviewed in the case of Bell v. State, 180 Ark. 79, 20 S. W. (2d) 618, and no' useful purpose would be served by again reviewing them.

We have carefully considered the records in both cases, and as we have found no error in either, the judgments in both cases must he affirmed, and it is so ordered.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Ehlers v. Rose.
    Opinion delivered July 14, 1930.

      Joe T. Robinson, G. E. Morris and J. W. Barron, for appellants.

      C. T. Cotham and Houston Emory, for appellee.
   Smith, J.

J. E. Hicks, a citizen of England, Arkansas, died testate on February 13,1928, and by his will disposed of a large and valuable estate. Devises were made to numerous relatives, friends and charities, after which a paragraph provided that his sisters should be residuary legatees for their natural lives for all property not otherwise disposed of. This followed the recital that it was the purpose and desire of the testator “to make a complete will and disposition of all my property. ’ ’

A very considerable portion of the whole estate was included in this residuary clause, a part thereof being an apartment house in the city of Hot Springs known as the Kevin Apartments, and referred to by the witnesses as the Kevin.. This apartment, at the time of the testator’s death, was in the possession of Mrs. Julia Rose, and when she refused, after demand, to surrender possession, a suit in unlawful detainer was brought by the executors and the sisters of the testator, the residuary legatees, to recover possession.

Mrs. Rose filed an answer and cross-complaint, in which she asserted title to the Kevin Apartments under a contract which she alleges was made with Mr. Hicks whereby he agreed to devise the apartment to her. This contract contemplated that Mrs. Rose should devote as much of her time and attention to Mr. Hicks as he might desire. A choice room was reserved in the apartment for him, and Mrs. Rose alleged and testified that it was agreed that she would become Hicks’ companion when he wished, that she would nurse him when .he was sick, and prepare special food at his order during his frequent visits to Hot Springs, and that she fully complied with her contract. That in view of this contract Hicks bought the Kevin Apartments, and turned it over to her. The building required renovation and repairs, which work was superintended by Mrs. Rose, and she thereafter occupied it pursuant to Hicks ’ agreement to devise it to her, and she testified that Hicks told her that he had made a will under which the apartment had been devised to her.

The court found the fact to be that Hicks had contracted with Mrs. Rose to devise the Kevin Apartments to her, but that it was not such a. contract as the court would order tó be enforced. The court further found that, in reliance upon this contract to devise, Mrs. Rose had rendered Hicks valuable services, and had improved the property, and had been induced to sell her lease on the Chicago Hotel and Cafe at a loss for the purpose of taking over the Kevin Apartments. The court charged Mrs. Rose rent on the apartment for twenty-nine months at $75 per month, but credited her with $30 per month for the room reserved for Mr. Hicks. There were twenty-three rooms in the entire apartment, in addition to the halls and bathrooms. After balancing the accounts, the court ordered the possession of the apartment to be delivered to plaintiffs, and rendered judgment for Mrs. Rose in the sum of $4,193.26. Plaintiffs have appealed, and Mrs. Rose has perfected a cross-appeal.

It is insisted that the contract which Mrs. Rose seeks to enforce, even if made, was an immoral one and contrary to public policy, and therefore void, for the reason that, although she was not living with her husband, she was, nevertheless, a married woman, and her husband, and he alone, was entitled to her consortium, and she could not contract the right thereto to another.

We do not decide this controversy for the reason that, in our opinion, the testimony fails to establish a contract to devise the apartment to Mrs. Rose. A number of witnesses gave testimony in Mrs. Rose’s behalf which corroborates her contention to some extent, but only Mrs. Rose herself and two men gave testimony of a character sufficient to show that there was a contract to devise. The relation of these two men to the defendant is such that their testimony deserves but little consideration, and it is very questionable whether Mrs. Rose’s testimony was admissible at all. Section 4144, C. & M. Digest.

But, pretermitting these questions, we are of the opinion that the testimony fails to establish a contract to devise. There was unquestionably a contract between the parties which induced Mrs. Rose to sell her lease of the Chicago Hotel and Cafe to assume charge of the Kevin, and, pursuant to this contract she performed services for Hicks in the way of nursing him and preparing special foods for him.

It so happens that Mrs. Rose and Mr. Hicks had a written contract in regard to the Kevin, and we think its recitals and the conduct of the parties in the discharge of its provisions negatives the idea that Hicks had given her the apartment or that he had contracted to devise it to her.

This lease contract was made on the.........day of March, 1926, and provided that Mrs. Rose should pay a monthly rental “of one-half of the gross income, after the light and water bills have been deducted therefrom.” Mrs. Rose was required to furnish a monthly statement of receipts and expenses. It was further provided that “either party may terminate this contract by giving the other party fifteen (15) days’ notice. In case of a sale of this property covered by this contract, the lessee will immediately vacate without any notice.”

Other provisions of the contract were as follows:

“If a sale of the property is made after the expiration of twelve (12) months, but within two years from date hereof, the lessor will pay to the lessee out of the profits derived from the sale of $1,000. If a sale of the property is made after two years from date hereof, the lessee will receive one-half of the profits derived therefrom. The profits will be ascertained 'by deducting the purchase price paid by the vendor and the cost of any improvements made to or placed on the property from the sale price. The profits promised herein to the lessee are made with the understanding and upon the condition that she is occupying the property at the time of the sale, and the further condition that this contract shall not have been terminated. For the purpose of terminating this contract, it is not necessary that the party terminating it advance any reason or make any explanation to the other for his or her act in bringing this contract to an end. The beginning of this contract will be on April 1, 1926, at which time the leased premises will be given unto the lessee’s possession.
“In witness whereof, the parties have hereunto set their hands in duplicate on the day and date first above written. ’ ’

A number of remittances were made by Mrs. Rose for rent under this contract, but she later complained that the contract was unfair, in that Hicks should pay half of all the expense of operation, whereas the contract required him to pay only one-half of the light and water bills. In the voluminous correspondence between the parties set out in the record she did not appear to have made any other complaint about the contract or to have suggested that it did not fully recite the agreement of the parties in regard to its subject-matter.

A large amount of testimony was taken as to the nature of the services rendered by Mrs. Rose and their value, but there appears in the record a letter which we think should be conclusive of this question.

Mrs. B. N. Florence, a practicing attorney at Hot Springs, testified that Mrs. Rose was referred to her by an acquaintance, and that Mrs. Rose conferred with her in regard to this controversy. She agreed to represent Mrs. Rose if the matter could be compromised and settled without litigation, and accepted employment with the understanding that she would not prosecute any litigation if this became necessary. Pursuant to this authority she wrote Mr. Hicks a letter, which the plaintiffs offered in evidence. This, letter enumerated Mrs. Rose’s demands, including the remodeling of the Kevin Apartments. The letter referred to the sale of the Chicago Hotel and Cafe, and concluded with the statement that a total of $1,000 was due Mrs. Rose, and demand was made for its payment. Hicks answered this letter and denied that he owed Mrs. Rose anything, and this terminated Mrs. Florence’s connection with the case.

, The testimony of Mrs. Florence appears to have been admitted without objection, although the introduction of the letter was objected to. Mrs. Rose testified that this letter was written without authority, but we accept as true Mrs. Florence’s statement to the contrary. The objection to the letter is that it was a professional and confidential communication, .and therefore privileged. We do not think so. The letter was written to Hicks, a third party, and there was no relation of attorney and client between Mrs. Florence and Mr. Hicks. Vittitow v. Burnett, 112 Ark. 277, 165 S. W. 625 ; Vanness v. Vanness, 128 Ark. 543, 194 S. W. 498 ; Kilgo v. Continental Casualty Co., 140 Ark. 336, 215 S. W. 689 ; Blackburn v. Blackburn, 170 Ark. 823, 281 S. W. 391.

The letter was not objectionable as an offer of compromise. It did not propose to take less than the whole amount due in satisfaction of the demand. It stated the total amount due to be $1,000. This letter was written at a time when the relation between Mrs. Eose and Hicks had become somewhat strained and was evidently approaching the breaking point. This is evidenced by the correspondence about this time. The letter was written on the 11th day of January, and Hicks died on the 13th of the following month. There is no intimation in this letter that Mrs. Eose claimed any interest in the apartment itself, nor is there any intimation in any of the numerous letters passing between Mrs. Eose and Hicks that she claimed any interest except that evidenced by her lease.

We.have carefully considered the excellent briefs which have been filed in this case, and have concluded that equity will be done by balancing accounts between Mrs. Eose and Mr. Hicks after allowing her claim as of the date of his death in the sum of $1,000, and, as she appears to have paid the 1929 taxes amounting to $143.26, she will be allowed that credit also. Against the total of these amounts, aggregating $1,143.26, she will be charged rent on the apartment at $75 from the date of Mrs. Hicks’ death, as she gave bond to retain possession, and will be charged at that rate up to the date of the surrender of the possession of the apartment.

The decree awarding plaintiffs possession of the building will be affirmed.

Upon a consideration of the entire testimony, we have concluded that it would be equitable to assess the costs in the court below against plaintiffs, and those on the appeal against the defendant, Mrs. Eose.


author: Humphreys, J.

text:
    Ritchie Grocer Company v. Texarkana.
    Opinion delivered July 14, 1930.

      Jones <& Jones, for appellant.
   Humphreys, J.

This suit was brought in the circuit court of Miller County by appellant against appellee to recover $422.80, which amount represented city taxes collected for the years 1926 and 1927', and which were paid-,to appellee by the tax collector of Miller County, same being collected upon an alleged erroneous assessment of appellant’s notes, credits and accounts. The alleged error consisted in the failure of appellant to deduct from the value placed upon said notes, credits and accounts it owed to others which exceeded in value the value of the notes, credits and accounts listed by appellant. The action is bottomed upon § 10180 of Crawford & Moses’ Digest, which is as follows:

“In case any person has paid, or may hereafter pay, taxes on any property, real or personal, erroneously assessed, upon satisfactory proof being adduced to the county court of the fact, the said court shall make an order refunding to such person the amount of the county tax so erroneously assessed and paid, and, upon production of a certified copy of such order to the auditor, he shall draw his warrant on the ¡State Treasurer for the amount of State tax erroneously assessed and paid.”

The complaint alleged that appellant presented its petition and proof to the county court of Miller County showing the erroneous assessment and collection of said taxes, and obtained an order upon appellee to refund same to it, and that it presented a certified copy of the order to appellee and demanded a return of said taxes, repayment of which was refused. A copy of the petition and order were attached and made a part of appellant’s complaint.

Appellee filed a demurrer to the complaint which was sustained, and upon appellant’s refusal to plead further, the court dismissed the complaint, from which is this appeal.

The question presented by the appeal for determination is whether appellant’s complaint stated a cause of action. The demurrer concedes that appellant failed to deduct from the valuation of its notes, credits and accounts listed with the assessor for said years, the value of the notes, credits and accounts it owed, to others. This deduction is allowable when assessing one’s notes, credits and accounts under one of the provisions contained in § 9792 of Crawford & Moses’ Digest. The net result of the failure of appellant to make this deduction amounted to an excessive valuation of its notes, credits and accounts. Section 10180 of Crawford & Moses’ Digest, quoted above and made the basis of this action, does not relieve by way of a refund against excessive assessments, but only against erroneous assessments. This court has defined the distinction between an excessive assessment and an erroneous assessment as used in § 10180 of Crawford & Moses’ Digest. In the case of Clay County v. Brown Lumber Co., 90 Ark. 413, 119 S. W. 251, it was said that “the term, ‘erroneous assessment,’ as there used, refers to an assessment that deviates from the law and is therefore invalid, and is a defect that is jurisdictional in its nature; and does not refer to the judgment of the assessing officers in fixing the amount of the valuation of the property. If the property paid on. was exempt from taxation, or if the property was-not located in the county, or if the tax was invalid, or if there was any clear excess of. power granted, so as to make the assessment beyond, the jurisdiction of the assessing officer or board, then the provisions of Kirby’s Digest, § 7180 ('Crawford & Moses’ Digest, § 10180) give the owner a remedy for a refund of such taxes thus erroneously paid. But a remedy is not given by this section to the party aggrieved by reason only of an excessive assessment or overvaluation of his property.” If appellant had listed notes, credits and accounts with the assessor which it did not own or control, then the assess.ment would have been erroneous. It, however, owned the notes, credits and accounts it listed and overvalued them by failing to deduct credits to which it was entitled. This failure did not constitute an erroneous assessment of them under § 10180 of Crawford & Moses ’ Digest.-

No error appearing, the judgment is affirmed.


author: Kirby, J.

text:
    Phillips v. Siloam Springs.
    Opinion delivered July 14, 1930.

      W. L. Curtis, for appellant.
   Kirby, J.

This appeal challenges the validity of an ordinance of the city of Siloam Springs requiring all sellers of bread not resident within the city, and transporting same by vehicle of any Irind about the streets to pay an inspection fee of $2.

Appellant was convicted in the municipal court for violation of the ordinance, and, upon appeal to the circuit court upon a hearing upon the agreed statement of facts with a copy of the ordinance attached, was again convicted and from such judgment prosecutes this appeal.

Appellant is a salesman of the Shipley Baking Company engaged in the manufacture and making of bread, cakes and pies in the city of Fayetteville, Washington County, under the supervision and rules of the State Board of Health, County Health Officer of Washington County and the Board, of Health of the city of Fayetteville. It transports the products from its plant at Fayetteville among other places in the State to the city of Siloam Springs, Arkansas, for sale there. Its driver, appellant, takes the bread and pastries delivered to him at the bakery at Fayetteville in a closed vehicle or truck to the city of Siloam Springs, and sells and delivers wholesale to its various customers, merchants, restaurants and grocery stores for resale to the ultimate consumers. Pursuing his usual custom on the 10th day of December, 1929, he made sales of goods to merchants and restaurants receiving pay therefor without paying the inspection fee required by the city ordinance or receiving a certificate of inspection as provided in said ordinance 326 of the city of Siloam Springs, approved September 26, 1929. He was convicted in the municipal court and appealed to the circuit court.

The ordinance introduced in evidence No. 326, according to its title provides for the inspection of “ * * * bread, pastries, cakes, etc. * * *” and section 1, defines the term “vehicle” to mean wagon, automobile, auto truck and any other vehicle and the words “food or foods” to mean “* * * bread, pastries, cakes, etc. • • Section 2 makes it unlawful for any person or corporation not having an established place of 'business in the city, without complying with the provisions of the ordinance, to sell or offer for sale in the city of Siloam Springs for use as foods either directly to the consumer or to the retailer and wholesaler for resale any bread, pastries, cakes,- “when the same are brought into the city of Siloam Springs and transported upon the streets of said city in a wagon, automobile or other vehicle.” Section 3 requires the person bringing into the city and selling over the streets the specified goods or fruits to submit same for inspection to the chairman of the board of health of the city or some member of the board or to some officer designated for the purpose “the vehicle in which said foods are being transported and the foods therein,” inspection being made at the city hall, and, if the food is found not suitable or in proper condition to be used as food, it is so certified, and, if he finds no objection upon inspection to the condition of the food and the vehicle, he shall so certify and deliver a certificate in writing to the person in charge of the foods who may sell the same at will. If the officer certifies the vehicle to be in an unfit condition and the foods unfit for human consumption, it is made unlawful to offer same for sale or sell same either directly or indirectly.

Section 4 of the ordinance requires persons bringing food regularly into the city shall submit the vehicle and foods transported for inspection at least once a week, prescribing a charge of $2 for each certificate of inspection to be collected by the inspector and paid into the treasury of the city to the credit of food inspection fund out of which appropriations are made to pay the expenses of the inspector. Sections 5, 6 and 7 make it a misdemeanor to offer for sale any food condemned on inspection, to fail or refuse to submit food or vehicle for inspection as required by the ordinance, and to sell any food without having the same and the vehicle in which same is contained or transported inspected as provided with a fine for offenses not to exceed $25.

Appellant insists tliat the ordinance is void, being beyond the authority of the city to make, that it is discriminatory and in effect but an unauthorized revenue measure.

Under act 96 of 1913, §§ 5125-5162, C. & M. Digest, a State Board of Health is created and given general supervision and control of all matters pertaining to the health of the citizens of the State. Power is given said State Board to make all necessary and reasonable rules and regulations of a general nature for the protection.of the public health “and for the general amelioration off the sanitary and hygenic condition of the State.” Such regulations are required to be printed and promulgated and distributed. The board is required to equip and maintain a laboratory for making analysis of foods and drugs for the purpose of enforcing the pure food and drug act. The expenses legally incurred by the board, for protecting the people outside of the cities and towns are to be paid for by the counties where incurred, and out of the treasury oif the cities and towns in which work is done.

Any one violating the law or any of the orders, rules or regulations made in pursuance thereof is guilty of a misdemeanor punishable by a fine of not less than $10 or more than $100 or by imprisonment, etc. Section 5153, C. & M. Digest, provides for appointment and the qualifications and duties of the county health officers, salaries to be fixed by the county judge and payable out of the county treasury. Section 5154, C. & M. Digest, provides the method of establishing boards of health in cities and towns and the qualifications of members. If a city health officer is not named by the local authorities in the act, then the State Board of Health has the power to appoint one. Section 5159, C. & M. Digest, defines the duties of the city health officer. Section 5160 prescribes the method of compensation. The State Board of Health has prescribed and promulgated rules and regulations, (sections 194-208, rules and regulations of the State Board of Health of Arkansas, promulgated November, 1928, regulating the operation of bakeries). Sections 194 and 208 read as follows: ‘ ‘ Every place used as a bakery shall be kept in a clean and sanitary condition as to its floors, sidewalks,, ceilings, woodwork, fixtures, furniture, tools, machinery and utensils.”

“All bread offered or intended for sale shall be suitably wrapped, each loaf separately, in paraffin or other clean paper, in such a manner as to completely protect the bread from dust, dirt, flies or any vermin, said wrapping to 'be done at the shop' or plant where said product is made.” ,

The city of Siloam Springs is not given power to require the inspection of bakeries nor the regulation of the sale of their products, all such power being conferred upon the State Board of Health under said act 96 of 1913. It is conceded that the products of the plant or bakery sold or offered for sale by appellant “are produced and manufactured under the supervision and rules of the State Board of Health, the county health officer of Washington County and the Board of Health of the city of Fayetteville,” both as to the condition of the plant and the method of wrapping and sealing each separate item of its products and the rules and regulations of the State, and city boards in the manufacturing and handling of its products are at all times fully complied with. Before the beginning of this prosecution the city unsuccessfully attempted to penalize the defendant by collecting from him or his company a tax of the nature of a license or occupation tax. The ordinance complained of only attempts to levy a charge for inspection of breads, cakes and pies transported over the streets of the city for sale in vehicles, wagons or automobiles, and does not prevent the shipping of such products by train, nor does it require an inspection thereof. The products were carried in a closed truck or automobile from the place of their manufacture under the rules and supervision of the State and city boards of health in the city of the location of the manufacturing plant, wrapped and sealed as required by the regulations of such boards. There could certainly be no further protection to the health of the inhabitants of the city of Siloam Springs, where the bread and cakes were delivered to the purchasers for resale to the public, by another inspection by the city under the provisions of this ordinance, and if such were the case there could be no reason for discrimination against the seller of these products so transported, requiring this second inspection thereof, which is not required of the same kind of products transported and delivered by railroad carriers. Neither is there any good reason for requiring a weekly inspection of the oar or vehicle and the products transported which are allowed to be sold and delivered daily. Such provision clearly indicates that it is an arbitrary one, and that necessity does not really exist for the inspection prescribed, .since it is required of only one delivery out of seven, and brands it rather as an unrecognized method for raising revenue since the inspection charges would amount to $104 per year at the very least, and appears to be imposed rather as a discrimination against merchants and bakers not living in the city.

Power has been given to the State Board of Health for making all necessary rules and regulations for the protection of the peoples of the counties and cities, the regulations have been made by such boards and appellant’s employer having manufactured and sealed its products under the inspection and in accordance with the rules and regulations prescribed by the State and city •boards of health in the city of the manufacture of its products could not be required to pay for the inspection for the sale of its products so manufactured in other towns and cities of the State, in the absence of a showing of the necessity therefor and power in such city to prescribe such, regulation and require, such inspection. All necessary power having- been given to the State Board of Health for the regulation and operation of bakeries in the manufacture and sealing of their products for sale and delivery, any power upon the part of cities and towns of the 'State to regulate the sale of such products in their limits upon an inspection made and charged for will not be implied as incident to the power granted, and, since none has been expressly granted, none can be held to exist. The city was without power to make such ordinance and charge, and it is void and of no effect.

The judgment is accordingly reversed, and the cause dismissed.


author: Mettaffy, J.

text:
    Missouri Pacific Railroad Company v. Coxwell.
    Opinion delivered July 14, 1930.

      Thomas B. Pryor and Harvey G. Combs, for appellant.

      C. T. Carpenter, for appellee.
   Mettaffy, J.

M. L. Coxwell was in the sanitorium at Booneville, Arkansas, for treatment for tuberculosis, and while there at four o’clock in the morning of May 21, 1929, was stricken with acute appendicitis. He was advised by the doctor in charge of the sanitorium that he had appendicitis, and that he would have to g'o to some other hospital for an operation, and asked him where he wanted to go. Appellee told him he wanted first to go home and consult with his family doctor. His home was at Corning, Arkansas. The bookkeeper of the sanitorium got in communication with appellee’s family physician, Dr. Lattimer, who arranged for appellant’s train No. 2 to stop at Corning to let appellee off, and sent appellee a telegram to that effect. At eleven o’clock that night appellee took the train at Booneville for Little Rook. At Little Rock he was transferred to the depot of the Missouri Pacific; the train was in and appellee boarded it. He first went to the conductor and presented to him, his .ticket and a teleg'ram and told him he wanted a Pullman. The conductor pointed out the Pullman further back, appellee went back to the Pullman, presented his ticket and telegram to the Pullman conductor, who took them and told appellee to get on. The Pullman conductor sold and issued to appellee a Pullman ticket tb Corning. When appellee paid his fare, he told the conductor he wanted to be notified in plenty of time to get off, and also that he wanted ice for his ice pack. He was told by the conductor to' ask the porter for what he wanted and told the porter to notify appellee in time to get off. Appellee’s condition was serious, and he was suffering great pain and ice packs were used to reduce the inflammation and P'ain. At Knobel, six miles from Corning, the porter notified appellee to get ready to get off at Corning. The train did not stop at the depot, but ran by the station about three-quarters of a .mile and stopped. Appellee told the conductor that the doctor and his family were waiting for him at the depot and he could not go on to Poplar Bluff. The conductor refused to take him back to Corning, and appellee was left to make his way back to Corning, and the walk intensified his suffering and made the pain much more severe. Appellee’s family and doctor were waiting* for him at the depot at Corning with a car, but when the train failed to stop .at Corning they went back home and appellee had to walk home. It took him about an hour to walk home. He was compelled to stop and rest three or four times, and he kept the ice pack on his side all the way. It was about eight o’clock when, he got home, and Dr. Lattimer was called to see him. He advised an immediate operation, and he was carried to Poplar Bluff and operated on. .

There is some conflict in the testimony as to what took place between appellee and the conductor, but there is no dispute about the fact that the train ran by the station, and that the conductor refused to take appellee back to the station. Numbers of witnesses testified, including physicians, but the above are substantially the facts. Physicians testified to- the 'Suffering and also that appellee’s having to walk home and being in an upright position, increased his pain. The conductor offered to take him on to Poplar Bluff, and told him there were hospitals and doctors there, but he declined to go and went home.

Appellant first contends that the evidence is insufficient to support the verdict, and that there is no substantial evidence to sustain the verdict. We do not agree with appellant in this contention. The railroad company accepted appellee’s ticket to Corning and agreed to stop the train there. They knew he wanted to get off at Corning, and the porter at least knew his condition, and appellee testified that the porter told the conductor about appellee’s serious condition. ■ The conductor, however, denies this, hut he says he told, appellee he was not going to back up but would take him. to Poplar Bluff and send him back or he could walk buck. It was 27 miles from Coming to Poplar Bluff. While the conductor says he did not know about him having appendicitis, he' did testify that when he got off the train he had his hand on his side, and when the conductor asked him what was the matter he told him that his appendix was hurting him, and then was when the conductor told him he had better go on to Poplar Bluff. Appellant argues that, because appellee refused to be carried on to Poplar Bluff but elected to get off, his getting off' the train was not the proximate cause of his injury, and that his having to walk back the distance he did was caused by his refusing to be carried to Poplar Bluff, and any extra suffering was not the fault of the appellant. The wrongful conduct of appellant put the appellee where he had to decide at once whether to go on to Poplar Bluff or consult with his family and family physician, and he had a right to make the choice and had a right to consult his family and family physician before having the operation, and whatever suffering and inconvenience was caused by appellant’s failure to put appellee off at the station was caused by the wrongful conduct of the appellant, making it liable in damages to appellee. The appellant, having wrongfully carried him beyond the station and put him off, could not require him to go to Poplar Bluff or anywhere else, and could not relieve itself from liability by offering to take him on to Poplar Bluff. The wrongful conduct of appellant was the proximate cause of the injury complained of.

There is no error in the court’s instruction. Appellant argues that that part of the instruction which would authorize a jury to find for increased illness is too abstract, and that there is no evidence to show or from which the jury could reasonably infer that-there was additional illness. The court did not say additional illness, but said increased illness, and all of the proof shows that his suffering was increased because of his having to walk back to the station and to his home. It is insisted by appellant that the damages, if any, should have been only nominal, and that it cannot be said that appellant was guilty of negligence. We do not agree with appellant in this contention. There was increased or additional pain and suffering because of the negligence or wrongful conduct of appellant. The undisputed evidence shows that appellant had agreed to stop this train at Criming and did riot do so, but it negligently and wrongfully carried appellee beyond the station.

It is also urged that the amount of damages found by the jury is excessive. We do not think so. The verdict was for $1,000, and, when the condition and suffering of appellee is taken into consideration, together with the negligence of appellant which caused it, the amount awarded by the jury appears to be fair.

Appellee has prosecuted a cross-appeal. After the verdict was rendered, appellee asked judgment for a reasonable attorney’s fee, which the court did not allow. Appellee contends that the-railroad company is liable for attorney’s fee because the appellant violated the statute. Corning was not a stop for this particular train; appellant had the right to operate this train without stopping at Corning; it however entered into a special agreement to stop there to permit appellee to get off and violated this agreement. We think it did not violate the statute, and that the statutory provision for attorney’s fee has no application here. K. C. Sou. Ry. Co. v. Marx, 72 Ark. 357, 80 S. W. 579 ; Midland Valley Ry. Co. v. Horton, 112 Ark. 125, 165 S. W. 266 ; K. C. Sou. Ry. Co. v. Town, 102 Ark. 20, 143 S. W. 597 ; St. L. S. W. Ry. Co. v. Knight, 81 Ark. 429, 99 S. W. 684 ; St. L. I. M. & S. R. Co. v. Evans, 94 Ark. 324, 126 S. W. 1058.

We find no error, and the judgment is affirmed, both ' on appeal and cross-appeal.


author: Mehaeey, J.

text:
    Lesser-Goldman Cotton Company v. Merchants’ & Planters’ Bank.
    Opinion delivered July 14, 1930.

      Frcmenthal, Sherrill $ Johnson, for appellant.

      Bridges, McGaughy S, Bridges, for appellee.
   Mehaeey, J.

This appeal is prosecuted to reverse a decree of the Jefferson Chancery Court. The appellant is a corporation organized for the purpose, among other things, to purchase and sell cotton and to engage in and carry on the business of buying and selling cotton. It had been engaged in the business in Pine Bluff many, years prior to 1926. 'Charles White was its local manager, and C. E. Shank was auditor and assistant manager. The Merchants’ & Planters’ Bank, the appellee, was engaged in the banking business and in advancing money to various cotton buyers in Pine Bluff. A short time prior to September 9, 1925, Charles White and C. E. Shank went to the cashier of the Merchants’ & Planters’ Bank and told him, that they wanted to move the R. L. Willun-s & Company cotton account from the Simmons National Bank to the Merchants ’ & Planters ’ Bank, and wanted the Merchants’ & Planters’ Bank to pay the checks of R. L. Wilkins & Company, and that the Lesser-Goldman Cotton Company would guarantee the account to them. They told the cashier that Wilkins would buy ootton for them for that year for the Lesser-Goldman Cotton Company, and that the checks in payment of the ootton would be signed 'R. L. Wilkins & Company, but they would guarantee the payment of the checks. The agreement was verbal. The first money advanced under this agreement to Wilkins & Company was on September 9,1925. During the year of 1925 the bank advanced as high as $110,000 at one time on this account. ' From September 9 to December 3, 1925, the bank paid for over thirty lots of ootton ranging in sums from $232.40 to in excess of $10,000. White’s- signature and Shank’s and R. L. Wilkins’ were all authorized -on the account. So far as the cashier knew, Wilkins bought cotton for the Lesser-Goldman Cotton Company. R. L. Wilkins had been buying cotton for Lesser-Goldman, and the cashier was told that he would buy that year for Lesser-Goldman. All the accounts of R. L. Wilkins & Company were paid by Lesser-Goldman Cotton Company except the amount sued for herein. The cotton, which was purchased and not paid for by the Lesser-Goldman Company, is called the Gocio cotton. The practice was for Wilkins to advise the office of the class of the cotton, and the St. Louis office would then fix the price. As to the Gocio cotton, the St. Louis office fixed a price of 17 cents and Wilkins paid 18 cents, but he testified that he was directed by Shank, who was in charge of the office at Pine Bluff, not to let this cotton get away, but to buy it, and he- had to pay 18 cents to get it. Wilkins was at this time, and had been for a long while, buying cotton for Lesser-Goldman Cotton Company on a commission. When Wilkins bought cotton, the Merchants’ & Planters’ Bank would pay his checks and thereafter the bank would be paid by Lesser-Goldman Cotton Company.

Several witnesses testified, and the evidence is quite lengthy, but the above statement of facts, together with such evidence as may be mentioned in the opinion, will be sufficient without copying all the evidence.

The agreement referred to between the agents of the Lesser-Goldman Cotton Company and the bank was verbal. However, it is contended that, as to every other lot of cotton except the Gocio cotton, there was a letter written by the Lesser-Goldman Cotton Company, and that there was no letter written with this, and appellant’s first contention is that there was no proof that appellee had any letter from Lesser-Goldman, Cotton Company covering the Gocio cotton.

Jim McLellan, cashier of the bank, testified that to the best of his recollection a letter was given in the Gocio purchase. It is, however, immaterial whether a letter was given with this purchase or not. The Lesser-Goldman Cotton Company was authorized by its charter to engage in the cotton business, and had been engaged in this business in Pine Bluff for many years. Charles White was its local manager at Pine Bluff, and C. E. Shank was auditor and assistant manager,. The Merchants’ & Planters’ Bank was engaged in advancing money to various cotton buyers in Pine Bluff. The cashier of the bank had known the management of the Lesser-Goldman Cotton Company (by reputation prior to September 25, 1925. A short time prior to 'September 9', 1925, Charles White and C. E. Shank went to the bank and told the cashier that they wanted to move the R. L. Wilkins Company account from the Simmons National Bank to the Merchants’ & Planters’ Bank. They wanted the bank to pay the checks of R. L. Wilkins & Company, and they stated that the Lesser-Goldman Cotton Company would guarantee the account. White and Shank told the cashier that Wilkins would buy cotton for them that year for the Lesser-Goldman Cotton Company. During the year large amounts had been advanced by the bank, and the bank was afterwards paid by the Lesser-Goldman Cotton Company. The first advance was made September 9, and the last December 3,1925.

It is contended by appellant that, because there was no letter with this purchase, the Lesser-Goldman Cotton Company was not liable because it was an attempt to charge the appellant upon a specific promise to pay the debt of another, and that, unless there was an agreement in writing, this promise under the statute of frauds was not binding. We do not agree with appellant in this contention. In the first place, the purpose of the provision in the statute of frauds forbidding the bringing of any action to charge any person upon any specific promise to answer for the debt, default or miscarriage of another was not to effectuate a fraud or wrong but its purpose was to prevent fraud. It has never been held to apply to promises in respect to debts created at the instance and for the benefit of the promisor, ,but only to those by which the debt of one party is sought to be charged upon and collected from another. In the instant ease, this was not a promise to pay the debt of another, was not a guarantee to pay the debt of another, it was a promise of appellant to pay its own debt created by its agent that it had at least clothed with apparent authority to make the contract. The business of the Lesser-Goldman Cotton Company was to buy and sell cotton. The agents in charge of its business at Pine Bluff stated to the bank that Wilkins was buying cotton that year for the Lesser-Goldman Cotton Company. The only way Lesser-Goldman Cotton Company could buy cotton was through an agent. Therefore, when this arrangement was made with the bank, it was an agreement to pay the checks drawn by appellant’s agent for cotton purchased for appellant, and the statute of frauds has no application. Davis v. Patrick, 141 U. S. 479, 12 S. Ct. 58. This arrangement was made with the bank in the interest and for the benefit of the Lesser-Goldman Cotton Company through appellant’s agent. 27 C. J., p. 136; Robinson & Son Contracting Co. v. Twin City Bank, 103 Ark. 219, 146 S. W. 523 ; United Walnut Co. v. Courtney, 96 Ark. 46, 130 S. W. 566, Ann. Cas. 1912B, 443 ; Brown v. Morrow, 124 Ark. 480, 187 S. W. 449 ; Hinson v. Gillespie, 131 Ark. 240, 199 S. W. 97 ; Colbath v. E. D. Clark Seed Co., 112 Me. 277, 91, Atl. 1007 ; Kelly Handle Co. v. Crawford Plumbing & Mill Supply Co., 171 N. C. 495, 88 S. E. 514 ; Cascaden v. Bell, 257 Fed. 926 ; Cincinnati Traction Co. v. Cole, 258 Fed. 169.

It is said, however, that "White and Shank did not have authority to borrow money or guarantee the accounts of others. It is conceded that they did have authority to buy cotton for Lesser-Goldman Cotton .Company; they had been doing this for years, and the Lesser-Goldman Cotton Company had been paying the accounts, and there is no question in this case of guaranteeing the accounts of others. It is merely a question of paying for the cotton bought for the appellant by its agent, and therefore the question of ultra vires argued by appellant has no application here. We therefore conclude that the Lesser-Goldman Cotton Company was liable for the accounts made because of the purchase of cotton by its agent, whether there was any letter written or not.

Appellant also contends that lit was unlawful to charge it with 8 per cent, interest compounded monthly, and in this contention we agree with appellant. Mr. H. M. Bennett, a witness for appellant, testified with reference to the account that, ignoring the credit balance of November 23, and taking the two lots of cotton account and figuring the interest at 8 per cent, per annum, there would be a balance due the bank of $879.67 as of October 6, 3927. This calculation by Mr. .Bennett appears to us to be correct, and the appellee is entitled to recover $879.67 with interest from October 6, 1927, at 6 per cent, per annum. The decree of the chancery court is therefore modified and a decree entered here for $879.67 with interest from October 6,1927. It is so ordered.


author: McHaney, J.

text:
    Fine v. Moses Melody Shop.
    Opinion delivered July 14, 1930.

      Louis Tarloivshi and J. W. Barron, for appellant.

      E. Charles Eichenbaum and Barber & Henry, for appellee.
   McHaney, J.

On October 15, 1928, appellee sold appellant Model 10-70 Victrola macbine and a Model 9-55 combination radio and Victrola at a price of $1,810, of which $110 was paid in cash, and for the balance a title retaining mote was given payable in seventeen equal monthly installments of $100 each, the first to become due and payable urn November 1, 1928, and monthly thereafter. Appellant paid three of the installments and defaulted on the others. This suit was instituted to recover the balance due with interest and to impound the property subject to the orders of the court. The trial resulted in a verdict and judgment in favor of appellee for the full amount sued for, and a lien was fixed on the property which was ordered sold to satisfy said judgment.

No question of fact is involved in this case. It is urged that the court committed reversible error in permitting appellee to play and demonstrate the Victrola machine in the presence of the jury without first showing that the Victrola was in substantially the same condition as it was when taken from appellee, and also that the court erred in its oral instructions to the jury. Appellant defended the action on the ground that the machine purchased was wholly unfit for his purposes. He filed a cross-complaint seeking to recover the $410 in cash payments he had made.

As to the first ground for reversal above mentioned, regarding the playing of the Victrola in the presence of the jury, we think no error was committed in this regard. The proof showed that the Victrola was in substantially the same condition it was when taken from appellant. It was repossessed on April 12 by the sheriff’s office, and to save storage it was placed in: the storehouse of appellee. It was sealed and wired at that time and remained in that condition until November 16, when the seal was broken for the purpose of demonstrating it to witnesses intended to be used to testify at the trial the next day. At that time they found it necessary to replace the tension spring which had fallen down and to make some adjustment of the reproducer, all requiring about ten minutes. Otherwise the machine was shown to be in the same condition as when taken by the sheriff. It was within the discretion of the court to allow a demonstration of the Victrola before the jury. In permitting the demonstration to be made the court necessarily found that the machine was in substantially the same condition as when taken from appellant. St. L. I. M. & S. Ry. Co. v. McMichael, 115 Ark. 101, 171 S. W. 115 ; 22 C. J. 776.

It is next said the oral instructions of the court were erroneous. The court told the jury in the instructions complained of that where a sale is made the purchaser has two rights regarding the property, if it is not reasonably fit for the purpose intended: first, to rescind the contract, surrender the property and recover his money; and, second, retain the property and recoup his damages for the deficiency in the property, when sued for the purchase price; that appellant elected to pursue the second remedy, and that, if they found the property was reasonably fit for the purpose intended, they would find for the appellee. On the other hand, if they found that it was not reasonably fit for the purpose for which it was intended, not substantially according to the contract, then they would find for the appellant on his claim for damages, not mere minor adjustments or defects, but substantial defects that would make it unfit for use; that the measure of damages, if they found for appellant, was the difference between the value in good condition as represented and the value in its deficient condition, if it was deficient, and to render a judgment for the appellant for such difference. They were further told that, if they found that appellant was entitled to damages on his counterclaim, then they would reduce the amount due on the note, $1,400, by the amount of damages they found due him, and if the damages equalled the whole $1,400 they would find for the defendant. Several complaints were made against this instruction, but we think it unnecessary to take them up and argue them separately, as we have concluded the instruction as a whole states the law correctly. One complaint is that it precluded appellant from recovering the $410 paid in cash on the machine. Conceding this to be true, appellant cannot be prejudiced by it, for the jury were permitted to offset appellant’s damages up to the amount of $1,400. It found he was not damaged at all. It evidently found that appellant failed to make out a case an its cross-complaint.

. We find no error, and the judgment is affirmed.


text:
    American Insurance Company v. School District No. 23.
    Opinion delivered July 14, 1930.

      R. W. Robins and Robert Lee Bartels, for appellant.

      C. A. Holland and Geo. W. Clark, for appellee.
   McHaney, J.

Prior to July 14,1923, appellee applied to appellant for a policy for fire and tornado insurance in the sum of $1,000, through appellant’s soliciting agent, W. O. Kemper. The policies were issued, effective July 14,1923, for a term of three years, expiring July 14,1926. Before the expiration of the policies Kemper solicited and obtained from appellee an application for renewal of same and a warrant ivas issued to him covering the amount of the premium thereon. Renewal policies were never issued by appellant. On Thanksgiving night in November following, the property covered by the old policies was destroyed by tornado.- Appellee demanded payment of its loss, which was refused, and this suit followed.- There was a verdict and judgment for appellee.

Kemper was a mere soliciting agent. He had no authority to write policies of insurance for appellant or to make oral contracts for insurance on behalf of appellee. His authority was limited to taking applications for insurance, forwarding them to appellant, countersigning them and delivering the policies when issued and sent to him by appellant -and collecting the premium therefor. The application which he took from appellee for the second policy contained this clause: “It is understood and agreed that this -application shall not be construed as a contract of insurance against said company until the same shall he approved by the said officers of said company, which approval shall be evidenced by the issuance and delivery of its policy.” The form of receipt furnished by appellant to Kemper to be issued and delivered by him to applicants for insurance at the time of taking the application contained this concluding sentence: “If you should not receive a policy within ten days, please notify R. M. Henry, Manager, Memphis, Tenn.” More than four months intervened between the taking of the application and the loss, but no inquiry was ever made to the company or its manager at Memphis regarding the policy. Kemper testified that he forwarded the application and appellant’s share of the premium to it, but never heard any more from it. Appellant’s testimony was to the effect that it never received either the application or the money and had no information regarding same. For the purposes of this case we will assume as a fact, which the jury has evidently found by its verdict, that Kemper did send the application and the money to appellant.

Under an almost identical state of facts, this court held in National Union Fire Ins. Co. v. School District No. 55, 122 Ark. 179, 182 S. W. 547, L. R. A. 1916D, 238, that there was no liability on the part of the insurance company until the policy was actually issued. The application for the policy in that case contained the identical clause above quoted, and with reference thereto the court said: “Under the express terms of this proposal on the part of appellee for insurance it is stipulated that there shall be no contract of insurance until the company shall approve the application and evidence its approval by the issuance of a policy.” In that case the application and the money covering the premium were not forwarded by the agent to the company, which was done in this case and constitutes the only differences in the facts in the two cases. With reference to this the court said: “Under this stipulation of appellee, even if the soliciting agent had promptly forwarded the application to the company, the latter was under no legal obligation to issue the policy to appellee. The authority of the soliciting agent to receive and forward the application if strictly followed did not impose upon the appellant any legal duty.

“If the application had been promptly transmitted and received, appellant would' not have been liable until the policy was actually issued. Cooksey v. Mutual Life Ins. Co., 73 Ark. 117, 83 S. W. 317, 108 Am. St. Rep. 26 ; Peoples Mut. Life, Accident & Health Ins. Co. v. Powell, 98 Ark. 166, 135 S. W. 823.” Again it said in the same case: “The better reason ancf the decided weight of authority support the doctrine that mere delay in passing upon an application for insurance cannot be construed as accepting such application and consenting to be bound for the insurance sought by it, nor can a cause of action for negligence be grounded upon such delay.”

We are therefore of the opinion that this case is ruled by that, and that instruction No. 2 given by the court over appellant’s objections is directly contrary to the holding in the case. To the same effect is Interstate Business Men’s Accident Assn. v. Nichols, 143 Ark. 374, 220 S. W. 477, citing and following the National Union Fire Ins. Co. case, supra.

Appellant requested a peremptory instruction in its favor, which, as we have already shown, should have been given in so far as any liability for the destruction of the school property is concerned. The undisputed proof shows, however, that on July 5, 1926, appellant’s agent collected from appellee $53.75, for which no policy was issued. Appellant is liable to the district for this sum of money with interest from said date at 6 per cent. Judgment will therefore be entered here for said sum, together with all costs. In all other respects the case is reversed and dismissed.


author: Butler, J.

text:
    Duckworth v. Stephens.
    Opinion delivered July 14, 1930.

      Pryor, Miles & Pryor and Warner S Warner, for appellants.

      Partain $ Agee, for appellee.
   Butler, J.

At a point on highway No. 64, connecting Van Burén with Alma, two miles from the first named city, the highway is surfaced with concrete eighteen feet wide, spaces being on either side between the concrete and ditches four or five feet wide, called shoulders. At this point the highway is straight for a half mile or more. About midnight on October 12, 1929, two women and a young man were traveling east in a one-horse buggy. "When they reached the point above described, the young man, who was seated on the left, drove the buggy to the extreme right of the highway with the right wheels well out on the shoulder and stopped the buggy for the purpose of alighting and proceeding to his home nearby, it being the purpose of the women to continue further east in the buggy to their homes. Just as the man reached the ground a Ford coupe, also traveling east, struck the buggy violently from the rear demolishing it, killing the horse and severely injuring the man and the women. There were four persons in the Ford coupe, two men and two women. After striking the buggy the Ford continued on without pausing for some further distance. One or two persons followed in another car which had appeared on the scene and overtook the Ford coupe a short distance away as it was turning around, and from there followed it back, passing the point of collision and into Van Burén, where the driver was stopped and arrested. It was then discovered that the car belonged to the appellants, and the driver was one Duckworth, who was their employee.

Out of the occurrence above narrated has arisen this litigation which resulted, on a consolidation of the cases in the court below, in a verdict for each of the parties injured. From that verdict and judgment is this appeal.

It was and is the theory of the appellees that the driver was negligent in driving his car off the concrete and along the shoulder of the highway and in failing to keep a proper lookout ahead, and that this negligence was the direct efficient cause of the collision. The appellants’ (the employers of Duckworth) liability is predicated on the theory that the driver, Duckworth, was their servant, and his negligence occurred, from which the injury resulted, while he was engaged in the service of his masters. Appellants defended on the ground that Duck-worth was in the exercise >of due care at the time of the collision, and that this occurred because of the contributory negligence of the appellees in traveling at night without a light on their buggy and in stopping same on the side of the highway Avithout having a light attached to it in the manner and of the kind required by the highway traffic statutes. As a further defense, appellants contend that while Duckworth was in their employ and the automobile used by him was their property and given to him for use in their service, at the time of the collision he was on a mission purely personal to himself, and in no way connected with the discharge of any service or duty for them.

At the trial testimony was introduced by appellees relative to the pursuit and capture of Duckworth over the objection and exceptions of the appellants. The admission of this testimony is here assigned as error. At the time of its admission the court limited its consideration solely to the purpose of identification of the car and its driver and admonished the jury not to consider it for any other purpose. If the driver’s conduct in failing to stop at the scene of the collision and continuing on until forced to stop was no part of res gestae and inadmissible as tending to establish his want of care, it was clearly competent for the purpose to which it was limited by the court, even though the identification might have been established by other evidence. The admission of this testimony Avas therefore not error.

The physician who treated Stephens (the man who was injured) when he was first carried to the hospital testified as to the character and extent of the injuries. He stated that they were of a painful and serious nature and gave it as his opinion that the skull was fractured at the base, and from this and the accompanying symptoms he concluded the injuries might occasion insanity, epilepsy, or death. At the time of his testimony he had not seen Stephens since he left the hospital some months before. Stephens had testified that his ear was still discharging pus, and the physician testified that, if this were true, Stephens’ condition was still serious. On cross-examination the physician stated that he did not know what the final outcome of the injuries would (be, and that he did not mean to state what his condition might or might not be later; that possibly none of the results he anticipated and to which he testified might occur. At the conclusion of the physician’s testimony the appellant stated to.the court: “As I understand Dr. Taylor’s tesr timony, he is not willing to state the conditions and extent of the injuries to Stephens or even a probability, but that it is merely a possibility and may not happen. Therefore we move to exclude all of the testimony of Dr. Taylor in so far as that is concerned.” This motion was overruled, and appellee excepted and here urges the action of the court as reversible error, and in support of their position cite and rely on the case of St. L. I. M. & S. R. Co. v. Bird, 106 Ark. 177, 153 S. W. 104. In that case the court held that the testimony of the physician was too vague and uncertain to be a sufficient basis upon which the jury might assess damages for permanent injury. In holding the evidence insufficient, the court said: ‘ ‘ The testimony, viewed in its most favorable light in favor of the appellee, does not make it reasonably certain that Wharton Bird was permanently injured. Unless there is testimony tending to show with reasonable certainty the injury is permanent, the court should not permit the jury to assess damages for a permanent injury.'” The court, by its instruction No. 9, in effect eliminated the testimony of Dr. Taylor regarding possible future conditions and permanency of the injury, but the appellants contend that the instruction did not cure the vice inherent in the court’s action in refusing to eliminate the doctor’s testimony in these particulars entirely from the consideration of the jury. But the doctor had testified positively to the condition of Stephens when he was brought to the hospital that he was unconscious and remained so for about five days, suffering and bleeding from the left ear and a fracture at the base of the skull, and that any injury of this character was serious. He remained at the hospital until his doctor’s bill and hospital fees amounted to $197.60. The testimony of Dr. Taylor in this case is distinguishable from that of the physicians in the Bird case, supra, in that the physicians in that case did not testify as to any physical injury. Their testimony, and the opinions they gave, were based on a history of the case and on certain symptoms they observed in the person injured after the alleged injury. One of them testified: “I do not find any physical injury about him. You have to take the whole assembly of symptoms together with a history of the case to find out whether you have a case of traumatic neurasthenia. I cannot say that he had a single symptom pointing to a permanent injury.” Another physician also testified' only from symptoms observed subsequent to the alleged injury, and in concluding his testimony he said: “Taking this child’s case, I could not say that the probabilities of its recovery are greater than that it will not recover in a reasonable time. It is a doubtful case. I would not be sure that it is permanent or not. ’ ’ And the court, in commenting on this testimony and in holding that it of itself was insufficient and a matter of speculation only as to the permanency of the injury, said: “But to fulfill the requirements of the law there must be affirmative testimony to the effect that the injury was permanent before the jury would be authorized to'find that such was the fact, *'*■* where the witnesses themselves áre uncertain as ■' to whether there would be any permanent injury, and where the nature of the injury per se does not show that the injury was permanent.” In the instant case we have the testimony of the physician that Stephens was brought to the hospital bleeding from the left ear, unconscious and remaining so far a long time, and that it was his opinion that the skull was fractured, and that this was necessarily a serious condition. Stephens testified -some months later at the trial that his ear was still discharging pus an;d that he was still suffering great pain. The injury itself speaks and of itself indicates its. permanency, which fact, considered with all the other evidence relating to the injury, we think sufficient to submit that question to the jury.

The jury returned a verdict in favor of Stephens for $3,000. This clearly indicated, in view of the expense to which he had been put, his loss of time and the suffering Which he had endured and was still enduring, that the verdict was uninfluenced by passion or prejudice, and its amount was amply warranted. On these matters alone, without taking into consideration “his future diminished power to earn a livelihood, if any,” as stated in Stephen's ’■ instruction on the measure of damages,' it is reasonable to believe that the admonition of the court in instruction No. 9: “You are instructed that in determining the extent of the injury to either of the plaintiffs you are not to consider any merely possible damages or results or conditions, if any, and you will disregard all testimony-as to any possible future'developments,” was duly considered by the jury and rendered innocuous the admission of the testimony and the reference in the instruction on the measure of damages to- his diminished capacity to earn a livelihood, if any. •

It is further insisted that the court erred in giving .plaintiffs’ requested instructions Nos. 1A and 3A. To both of these instructions certain specific objections were made by the appellee, and the court,, before giving them, modified th'em to meet the objections raised. Therefore there was no error unless the instructions were inherently wrong. By instruction No. 1A the court submitted to the jury , the question as to whether Duckworth operated his car so far to the right of the highway as to .be off the concrete surface and partly on the shoulder, and if so, "Whether the same was negligence causing the injury. It further submitted the question as to whether' in operating the car Duckworth was acting within the scope of his employment under the instructions of the appellants and as their servant and on a mission for them “which was not a mere incidental purpose to the journey.” Instruction No. 3A is identical with No. 1A except the question of negligence submitted was whether Duckworth was negligent in failing to keep a proper lookout. Appellants insist that instruction No. 1A is erroneous because there was no evidence that Duckworth drove his car so far to the right as to be off the concrete and. partly on the shoulder. In this the appellants err. The testimony of several witnesses was to the effect that the wheel marks of Duckworth’s car showed several feet to -the right of the concrete and oh the shoulder before it reached the point where it collided with the buggy.

Further complaint is made that the instruction wholly omitted the question of proximate cause and submitted as the only question whether or not Duckworth negligently operated his car off the concrete highway. In St. L. I. M. & S. R. Co. v. Bird, supra, disposing of a similar complaint, the court, at page 187, said: “The specific ground of criticism is because the instruction does not say that the negligence of appellant must be the proximate cause of the injury. If the injuries resulted from appellant’s negligen.ee, then there is .no question in the evidence ibnt what such negligence was the proximate cause of the injury. Therefore there is no prejudicial error because the instruction did not contain the qualification that appellant insists on. The undisputed evidence shows that the proximate cause of the' injury was the collision of appellant’s train with the appellee’s wagon, and, if this collision was caused by appellant’s negligence, then such negligence was the proximate cause of the injury. ’ ’

In the instant case the fact is undisputed that the appellees were injured by being struck by appellants’ car driven by Duckworth, and there is therefore no question as to the proximate cause of the injuries. Gates v. Plummer, 173 Ark. 27-31, 291 S. W. 816.

It is also insisted that instruction No. 3A is erroneous in submitting to the jury the question of Duckworth’s negligence in failing to keep a proper lookout, since it is undisputed that the buggy carried no lights in violation of the law, and that therefore his failure to keep a lookout would not constitute actionable negligence, as he rested under no duty to keep a lookout for unlighted vehicles and those traveling therein. As authority for this contention the appellants cite the case of Coca-Cola Bottling Co. v. Shipp, 174 Ark. 130, 297 S. W. 856. We cannot agree with the appellants as to the correctness of the rule urged, nor that the case cited supports such view. It is true, that case cites the case of Murphy v. Hawthorne, 117 Ore. 319, 244 Pac. 79, which appears to support the appellants ’• contention; but, from a careful examination of the original opinion in the ;Shipp case and the opinion on rehearing, there appears to be nothing which would support the view that the case of Murphy v. Hawthorne was adopted and approved by this court in its entirety. The most this court decided, and the rule it there laid down was that one driving an automobile at night too fast to stop within the range of his own lights in case of a collision is not guilty of negligence as a matter of law, but that each case must be considered in the light of its own peculiar state of 'facts and circumstances, the test being what an ordinarily prudent person would have done under circumstances as they then appeared to exist; and that whether it was negligence to leave a car parked in the nighttime without lights was also not negligence per se but was a circumstance to be considered with the other attendant circumstances in determining whether it was negligence or not. We have frequently held that(violations of the State traffic statutes are merely evidentiary of negligence and not conclusive of the issue]) Pollock v. Hamm, 177 Ark. 348, 6 S. W. 541 ; Maps v. Ritchie Gro. Co., 177 Ark. 35, 5 S. W. (2d) 728. And in the case at bar the failure of appellees to light their buggy was a question for the jury whether under the circumstances Duckworth was, or was not, guilty of negligence in failing to discover the appellees, and whether appellees were guilty of contributory negligence in stopping the buggy without displaying tail lights. These questions were submitted to the .jury under proper instructions. In these particulars the failure to attach lights to the buggy was a matter of proper consideration, but it did not relieve Duckworth from the duty of acting as a reasonably prudent person in the operation of his car and of keeping such lookout as prudence for his own safety and humanity for the safety of others would dictate. We therefore hold that the court did not err in its declaration in this regard.

Appellants complain of the refusal of the court to give a number of instructions requested by them and of modifying other instructions and giving them as modified. We find that the court gave twenty-two instructions at the request of the appellants which fairly presented (and indeed more favorably in some than they were entitled to) appellants’ several defenses, and the instructions refused were either peremptory in their nature or had been fairly covered by those given. We do not set out the several instructions given and refused and refrain from commenting further upon them- because it would serve no useful purpose and would unduly extend this opinion to do so.

The principal question involved in this ease and the one urged as error in the instructions given at plaintiffs ’• request, and upon which its request for a directed verdict was based, is that the testimony fails to show that Duck-worth at the time of the collision was in the .service of his co-appellants, but rather that it shows that he was upon a mission of a purely personal nature and in no wise connected with the' duties of his employment. The testimony may be said to fairly establish the fact.that Duck-worth was- in the -general employ of his company (appellants ),- a partnership engaged in the,-sale of electrical refrigerating devices among- other things, and that it was his duty to repair and keep in proper operation the articles sold by-his employers, in which duty he had been engaged for approximately ten years. For this purpose he was furnished with an automobile and with such tools as were necessary for the performance of his work. He kept the car in his possession, and, while, as a usual thing he was given a half-holiday ,on Saturday, it was his duty, whether called from the office or notified in any other way, to go day or night for the purpose of adjusting or otherwise.keeping the articles sold .by his employers in proper working condition. He frequently would perform these services at different hours of the night and without respect to the day of the week. The-main-question' therefore is, was he engaged -in the service of the master at the time of the collision? Duckworth testified that he was. His employers had sol-cl a Frigidaire — a 'refrigerating device and- its' container — to' an individual at Alma who operated aplace of business where soft drinks and other commodities of like' character were' sold to the 'public?: This place of business .was '-kept - Open- frequently after •twelve-until two O’clock'iñ the night, according to the"requirements of the trade. The refrigerator had been repaired by Duckworth at some time prior to the night of the accident. The proprietor testified that he was unable to state whether it had. been two months or two weeks before the date of the collision.. Duckworth testified that a young man employed at said place of business at Alma had notified him a few days prior to October 12,-1929, that the Frigida'ire, was not functioning properly, and asked him to come down at his convenience and adjust it. Duckworth stated that this request had passed out of his mind for a time, but that on Saturday night, October 12, 1909, he remembered it, and, as his services' would be -required at other places on the first days of the following week, he decided that he would go to Alma on that night, and, as he knew the method of the conduct of the business there, he reasonably expected the place to be open-after midnight on Saturday. He invited some friends of his to accompany him, and after leaving Van Burén at or about midnight and proceeding on the highway toward Alma for the purpose aforesaid, he ran into and demolished the buggy of appellees without ever having seen it. Although he testified that he was acting with due care at the time of the collision .and that he failed to see the buggy because of the blinding lights of an approaching car and swerved to the right immediately before the collision in an endeavor to. avoid the same, all of the circumstances, as well as the testimony of others, tend to negative his care and caution and to show that his conduct at the time of the collision was grossly negligent.

There' were a number of circumstances tending strongly to rebut the statement of Duckworth regarding his mission on the night in question and to indicate that, under the influence of liquor, he was spending the evening in disporting himself without thought or care for his duties, and that his contention that he' was proceeding to Alma in the service, of his employers was a mere afterthought and perhaps an endeavor to extricate himself from an unpleasant predicament. These matters, however, were questions for the jury, and, while we may think the testimony of Duckworth unreasonable and his statements unworthy of belief, we are not the judges of those matters. If there was any substantial testimony, and we say that there was, the question of the credibility of the witnesses and the weight to be given their testimony is the sole .province of the jury, which we have no authority to override or disturb.

We feel that there was no substantial error committed in the conduct of the trial, and that the evidence was sufficient to submit the questions at issue to the jury, and its verdict must therefore be sustained. The rule announced is so well settled that no citation of authority is warranted.

Affirmed.

Smith, Humphreys and Kirby, JJ., dissent.


author: Per Curiam.

text:
    Jones v. State.
    Opinion delivered July 14, 1930.

      Hal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   Per Curiam.

Mrs. Elmer Jones prosecutes this appeal to revérse the judgment of conviction of voluntary manslaughter in which the jury fixed her punishment at two years in the State penitentiary. According to the evidence adduced by the State, in May, 1929, a difficulty occurred between the husband of the defendant and Bud Maynard in Baxter Oounty, Arkansas. Maynard and her husband agreed to fight, fist and skull, and her husband threw his knife on the ground. Mrs. Jones was on a mule and got off of it and struck Maynard two licks in the back with her husband’s knife which she had picked up from the ground. Maynard died about a week and a half or two weeks after the fight. Maynard and Jones did not seem to be hurting each other at the time Mrs. Jones stabbed Maynard. According to the evidence of physicians, they found a stab wound apparently from a knife blade between the sixth and seventh rib on the right of Maynard’s back. This caused traumatic pneumonia and Maynard died as a result of the knife wound.

According to the testimony of Mrs. Jones, she picked up her husband’s knife and during the fight between tier husband and Maynard, the latter staggered back against her and ran against the knife and was stabbed accidentally.

The evidence for the State fully warranted the verdict. Storms v. State, 179 Ark. 1158, 16 S. W. (2d) 468.

The next assignment of error is that the judgment should be reversed because special counsel for the State, in his closing argument to the jury, stated that the defendant “might thank her lucky stars that she had some henchman on the grand jury which caused an indictment only for manslaughter to be returned against her.” The circuit court at once admonished counsel that he should not have made any such statement to the jury and told the jury that it was instructed to disregard the statement and to base its verdict upon the testimony introduced and the law given by the court.

The case was tried upon competent evidence and upon instructions which fairly and fully guarded the interests of the defendant. The judgment is correct, and it is therefore affirmed.


text:
    Bigstaff v. State.
    Opinion delivered July 14, 1930.

      Hal L. Norwood, Attorney G-eneral, and Robert F. Smith, Assistant, for appellee.
   Per Curiam.

Mary Bigstaff prosecutes this appeal to reverse a judgment of manslaughter against her in which the jury fixed her punishment at two years in the State penitentiary. According to the evidence adduced by the State, Mary Bigstaff killed Homer Parker on October 6, 1929, in Pike County, Arkansas, by shooting him with a pistol. Mary Bigstaff and Homer Parker had lived together for some time but were not living together at the time of the killing. According to a witness who was present, the defendant commenced shooting the deceased and fired two shots in his body without any cause whatever. Witness stated that Homer Parker was his uncle and that he was not drinking on the evening that he was killed.

A physician who examined the body of the deceased testified that he found two wounds on the body, either one of which would have caused death.

According to the testimony of the defendant, Homer Parker and his nephew came to her house drunk and threatened to break into the house and stomp her to death. Witness had an automatic pistol and fired through the screen to scare Parker and to keep him from killing her with a rock. In short, she testified to a state of case which showed that she shot the deceased in self-defense. She stated that Parker and his companion were both drunk.

Both the State and the defendant introduced evidence tending to show that the defendant and the deceased had, on different occasions prior to the night of the killing, each made threats against the life of the other. The evidence for the .State was sufficient to warrant a verdict of guilty.

The next assignment for a reversal of the judgment is that the court erred in permitting the introduction of a steel jacket bullet with which the deceased was killed because this varied from the indictment which alleged that the deceased was killed by a leaden bullet. There was no merit in this contention. Vaden v. State, 174 Ark. 950, 298 S. W. 323.

The appellant has not filed any brief, but the record shows that the case was tried upon competent evidence and that -the instructions given by the court fully and fairly covered the theory of the defendant as to the killing. We have carefully examined the record and find no prejudicial error in it. The judgment is therefore affirmed.


author: Hart, C. J.,

text:
    Crawford County v. Bushmaier.
    Opinion delivered September 22, 1930.

      C. M. Wofford, for appellant.

      Partain é Agee, Ed B. Downie and Ilill, Fitzhugh & Brizsolara, for appellee.
   Hart, C. J.,

(after stating the (facts). In Clark County v. Spence, 21 Ark. 465, this court held that the county court had the authority, if it chose to exercise it, in its general oversight of the interests of the county, to make an allowance to the sheriff for so much as was expended by him for fuel, paper, blanks, and candles for the use of the sheriff’s office. In Leathem & Company v. Jackson County, 122 Ark. 114, 182 S. W. 570, Ann. Cas. 1917D, 438, this court held that the county court was the general fiscal agent of the county, and, in the exercise of its supervisory powers, had the implied power to employ an expert accountant to audit the official accounts and public records of county officers. In the case of Penix v. Shaddox, 165 Ark. 152, 263 S. W. 389, this court held that the county court has exclusive authority in the matter of assigning' offices in the courthouse to the several county officers.

In the application of these principles, the court is of the opinion that the county court in its discretion might furnish the office of the sheriff and the jail with telephones for the benefit of the county. Hence the county would be liable for the rent of the telephones just as any other subscriber would be.

It is conceded that the county was liable as a subscriber for the monthly rental of the telephones, but it is contended that it is not liable for the long distance calls which originated from the sheriff’s office, although they were made for the benefit of the people of the county in the administration of justice. We cannot agree with Counsel in this contention. In S. W. Tel. & Tel. Co. v. Sharp, 118 Ark. 541, 177 S. W. 25, L. R. A. 1915E, p, 323, it was held that telegraph and telephone companies may make rules and regulations which require that charges shall be paid ¡for a reasonable time in advance (by their subscribers, and ¡may enforce such regulations by the refusal of service to persons who do not comply therewith. It was further held that it was a reasonable rule for a telephone company to require that the telephone where long distance calls originate shall be responsible for the payment of the charges therefor and that the company has a right to enforce such rule. The reason is that the subscriber can easily control the use of his telephone by third persons, while it is impossible for the telephone operators to know and recognize the voices of all persons using ia telephone for long distance purposes, and to know to whom these calls should be charged in the absence of such- a regulation.

It is insisted that this rule or regulation should apply alone to private subscribers and not to public officers who have telephones installed in their offices. We cannot perceive any reason for such discrimination. Public officers are only required to keep their offices open during reasonable hours, and have just as much control over their telephones and the accessories to their offices as do private individuals or private corporations.

■ Therefore, we hold that the county, as the subscriber for the telephones, is bound by the regulations of the company in its' use just as other subscribers .are bound. It follows that the judgment must be affirmed.