text:
    Chicago, Rock Island & Pacific Railway Company v. Dawson.
    Opinion delivered March 12, 1923.
    1. Carriers — delay in shipment op livestock — evidence.—Evidence held sufficient to establish that a shipper made demand for diversion of a shipment of cattle, delayed by reason of a strike, to another route, and that, if the request had been granted, there would have been no further delay and no injury would have resulted.
    2. Carriers — duty to find open route for delayed shipment. — It is the duty of a carrier to use reasonable diligence to prevent in- • jury to delayed shipments by finding an open route, and it may not unreasonably delay doing so, though its contract exempts it from liability.
    3. Carriers — connecting roads — liability op initial carrier.— Under the Carmack Amendment (U. S. Comp. Stat. §§ 8604a-8604aa) an initial carrier is liable for failure of the connecting carrier to use reasonable diligence in forwarding a shipment of livestock over another route if its own is not open.
    Appeal from Lonoke Circuit Court; George W. Clark, Judge;
    affirmed.

      Thos. S. Buzbee, H. T. Harrison and C. L. Johnson, for appellant.
    On the question of the recovery of damages on account of delay, appellant pleads in bar to the action section 7 of the live stock contract, viz: “That the first-party shall be exempt from all liability for loss or dam-this contract, caused by mobs, strikes or violence from any source.” While the violent acts of a mob may not exonerate the carrier where the goods are destroyed, 60 Ark.’ 381, still such acts may exonerate the carrier from liability for loss resulting from delay, even though the mob is composed of employees of the company who have engaged in a strike, if the acts of the strikers are of such character as to prevent the operation of the road, and if the company has exercised care and diligence to move its trains. 13 S. W. 191; 7 N. E. 828; 235 S. W. 913; 4 R. C. L. 744, par. 212.

      J. B. Reed, Thos. C. Trimble and Thos. C. Trimble, Jr., for appellee.
    1. The burden was on the appellant to show that the loss arose from an act of God, or of the public enemy, or public authority, etc. 174 S. W. 1187; 177 S. W. 401. There is no evidence in the record to show that it was impossible for appellant to comply with the terms of its contract.
    2. Demand was made to divert the shipment to a line that could have delivered it promptly. Appellant did not exercise due diligence.
   McCulloch, C. J.

This is an action instituted by appellee against appellant to recover damages alleged to have accrued on account of delay in the transportation of eleven carloads of cattle which appellant undertook, as the initial carrier, to transport from Hazen, Carlisle and Lonoke stations to Fort Worth, Texas. Damages were alleged arising from the killing and crippling of a certain number of the cattle of the value of $434.07, and damages in the sum of $650 for overcharge for feed during the period of unnecessary delay, and the sum of $1,900 for shrinkage in weight and depreciation in the grade of the cattle, and the further sum of $900 on account of loss by reason of the decline in the market during the period of the delay.

Liability for the sum claimed on account of killing and crippling the cattle is conceded, but liability for the other items is disputed.

On the trial of the cause the court excluded from the jury the question of liability on account of decline in the market, but submitted the issues to the jury as to liability for damages from other causes mentioned. There was a verdict in favor of appellee in the sum of $2,339.50, and an appeal has been duly prosecuted from the judgment.

Appellant accepted the carloads of cattle at its stations at Hazen, Carlisle and Lonoke, and gave through bills of lading over its own line to North Little Rock, thence over the line of the Missouri Pacific Railroad Company to Texarkana, and thence over the line of the Texas & Pacific Railway Company to Port Worth. The bill of lading contained a stipulation that the carrier should “be exempt from all liability for loss or damage to person or persons or live stock covered by this contract caused by mobs, strikes, or violence from any source.”

The sole defense made below was that the delay in the shipments was caused by a switchmen’s strike on the Texas & Pacific Railway Company, which caused an embargo to be laid on all shipments over that road for the period during which the delay in these shipments occurred.

The cattle were received and the movement thereof started on the morning of April 10, 1920, and reached North Little Rook about 7 o’clock on the evening of that day, and were delivered to the Missouri Pacific Railroad Company. Shortly after the cattle were received at North Little Rock, the Missouri Pacific received notice of an embargo being placed by the Texas & Pacific Railway Company on account of a switchmen’s strike, and the cattle were unloaded and placed in stock pens in North Little Rock, and remained there until the evening of April 16, when the embargo was raised and the cattle were reloaded and went forward, reaching destination on April 19, 1920.

It is not contended on behalf of appellee that the exemption clause in the bill of lading on account of delay caused by strikes is invalid, but liability is sought to be imposed on the carrier on the ground that, the shipment could have been diverted at Little Rock to the St. Louis Southwestern Railway Company (Cotton Belt Route) and forwarded through to destination without delay, it being claimed that there was no strike on that line.

Appellee testified that on April 12, 1920, he received a telegram from his broker at Port Worth informing him that the Cotton Belt Route was open, and that he at once presented this telegram to the proper agents of the Missouri Pacific Railroad Company at North Little Rock and requested diversion of the shipment over the Cotton Belt. Appellee testified that he repeatedly made demand on these agents that such diversion be made over that route. There was other proof adduced tending to show that there was no strike on the Cotton Belt Route and that the shipment could have been forwarded without delay if there had been a diversion in accordance the request of appellee.

We think there was proof sufficient to show that appellee made demand for a diversion of the shipment on April 12, and that if his request had been granted the shipment would have gone through without any further delay and the injury would thereby have' been averted.

The case was submitted to the jury upon the issue whether or not there could have been a diversion of the shipment over another route so as to avoid the strike and the consequent delay therefrom.

Without questioning the validity of the contract concerning the exemption from liability on account of the strike, yet it was the duty of the carrier to exercise reasonable diligence to prevent injury by finding another route over which safe and undelayed transportation might be had. The carrier had no right, even though exempt from liability, to withhold the shipment indefinitely when other means of transportation of the same character could be found.

The negligence in failing, to divert the shipment was that of the Missouri Pacific Railroad Company and connecting carrier, but appellant is responsible, under the Federal statute, for the negligence of the connecting carrier. 34 stat. 584, chap. 3591.

The Carmack Amendment, supra, declares the liability of the initial carrier for “any loss, damage or injury to- such property caused by it or any common carrier, railroad or transportation company to which such property may be delivered or over whose line or lines such property may pass,” and we perceive no reason why there should not be liability under this statute on the part of the initial carrier for negligence of the connecting carrier in failing to adopt available means for forwarding the shipment over another route.

It is contended further that the proof fails to establish injury and the extent thereof on account of the delay, but we are of the opinion that there is enough evidence to warrant the jury in finding that the delay caused damages by reason of shrinkage in weight of the cattle and the additional cost of feed during the period of delay up to the amount of the -award of the jury.

Finding no error in the record, the judgment is affirmed.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    First National Bank v. Dalsheimer.
    Opinion delivered March 12, 1923.
    1. Judgment — recitals of notice — presumption.—On a direct attack recitals in a judgment that defendants, though served with summons as provided by law, failed to appear, etc., were prima facie evidence of the facts stated, and must be taken as true unless there is testimony to contradict them or tending to show - to the contrary, under Crawford & Moses’ Dig., § 6290, subd. 4.
    2. Judgment — proceeding to 'aside default. — In a proceeding to set aside a judgment by default for want of service of process or other notice, it is not sufficient to show that there is no record evidence of service of process, but it must also be shown that the judgment defendants had no actual notice of the proceedings against them.

      3. Pleadings — evidence.—Where a verified complaint is denied, its allegations are not testimony, and cannot be accepted as facts proved.
    Appeal from Lee Circuit Court; J. M. Jackson, Judge;
    reversed.

      Bogle & Sharp, for appellant.
    1. There is no positive evidence of want of service. There is at best only circumstantial evidence from which the court is asked to infer that no service was ever had. In the absence of direct proof to the contrary, the natural inference would be that appellees were served. There is no justification appearing in the record for vacating a judgment. 49 Ark. 397; 136 Ark. 546.
    2. The allegations of the complaint were denied by the answer, and appellees introduced no evidence to support their allegation of meritorious defense. The court was not justified therefore in finding that appellees had a meritorious defense. 123 Ark. 447; 104 Ark. 449.

      John I. Moore and Daggett & Daggett, for appellees.
    A recital in a judgment that notice has been given is merely prima facie evidence of the fact stated. This is nothing more than a statutory presumption which may be overcome by proof of contrary facts or circumstances. Crawford & Moses’ Digest, §6329; 63 Ark. 513; 72 .Ark. 265. In this case the fact of want of service is sufficiently shown in the proof.
   Wood, J.

The appellant obtained judgment in the circuit court of Lee County against the appellees, which recites as follows: “Now on this the 11th day of April, 1921, the same being a regular day of the April, 1921, term of said court, this cause coming on to be heard, the plaintiff appeared by its attorneys, Bogle & Sharp, and the defendants, although having been duly served with summons, in manner and form as provided by law, failed to appear, plead, answer or demur, but wholly made default, whereupon the cause is submitted to the court upon the complaint and the original note sued upon, and, after being well and sufficiently advised in the premises, doth find that plaintiff is entitled to recover on said notes the sum of $2,498.23 from said defendants.” Then follows the formal entry of the judgment in favor of the appellant against the appellees.

The present action was instituted by the appellees against the appellant to set aside the above judgment. The appellees in their complaint set out the judgment, and alleged that the same was obtained against them by the appellant through fraud, in that appellant represented to the court in which the judgment was rendered “that due .and legal summons had been served, giving these plaintiffs, defendants in said suit, notice of the pendency of such action, when, as a matter of fact, neither of said defendants in said action, plaintiffs here, were ever at any time served with proper summons or any notice whatever giving them notice of the pendency of such suit against them on the part of the First National Bank of Manchester, Iowa, defendant herein, but these plaintiffs now further aver and allege that at no time was the notice of the pendency of such suit given them in the manner provided by law, or in any other manner.” Then follow allegations which it is unnecessary to set forth at length, but which -set out that the defendants had a meritorious defense to the action in which the judgment was rendered against them.

The appellant, in its answer, admitted that it obtained the judgment for the sum alleged. It denied that plaintiffs had no notice of the pendency of the action, and that no legal service was had on them, and denied the other allegations of the complaint, and set up that it was an innocent purchaser of the notes upon which the judgment in its favor was rendered. The appellees introduced the original docket entries, which show the following: “Complaint filed and process issued 16th day of November, 1920, service had........................day of........................ ........................, 19.......” The sheriff of Lee County,- Arthur Cotter, at the time the original action of the • appellant against the appellees was instituted, and whose duty it was to serve the summons, kept a record in his office in which he entered the process for service received by him from the clerk of the circuit court for the period beginning Nov. 15, 1920, and ending Jan. 2, 1921. This record did not show any receipt of summons in the original action by the appellant against the appellees in which the judgment here sought to be set aside was rendered.

The appellees also introduced one G-alloway, who testified that he was the then sheriff of Lee County. He assumed the duties of the office January 17, 1921. He did not, until the April term, 1921, serve a summons on the appellees in the original action by the appellant against them. He did not find the original summons in' that case in his office, but a copy thereof, and there was no return service on the copy. He did not know whether the sheriff who preceded him served the summons or not.

The appellant introduced one of its attorneys in the original action, who testified that on the day the judgment was taken the court was in session, and he asked the court for judgment by default against the defendants in the original action, and the court rendered a judgment in accordance with his request, and he prepared the precedent of the judgment, as disclosed by the record.

Upon the above facts the court found that the defendants in the original action were not served with process and did not have notice of the pendency of that action. The court further found that the plaintiffs (appellees in the present action) had a meritorious defense. Thereupon the court entered a judgment setting aside the judgment of April 11, 1921, in favor of the appellant against the appellees rendered in the original action. The appellant duly prosecutes this appeal.

This is a direct attack by the appellees upon the judgment of the circuit court rendered in favor of the appellant against tbe appellees on April 11, 1921, under § 6290 of Crawford & Moses’ Digest, subdiv. 4th. But the recitals in the judgment that the defendants, “although having been duly served with summons in manner and form as provided by law, failed to appear,” etc., were prima facie evidence of the fact's stated and must-be taken as true, unless there is testimony to contradict them, or tending to show to the contrary. Sec. 6239, C. & M. Digest; White v. Smith, 63 Ark. 513; Love v. Coffman, 72 Ark. 265.

The original docket entry in the case made by the clerk shows that the complaint was filed and that process was issued on the 16th day of November, 1920. Sec. 3280 of Crawford & Moses’ Digest provides that “the entry on the law docket shall also show whether or not the summons has been fully served in due time for trial, and whether or not the issue has been formed.” There is no entry by the clerk showing that the summons had been served in time for trial. The absence of such entry by the clerk on the law docket which he is required to keep, to be sure, is evidence to be considered in determining the issue as to whether or not the summons was served on the appellees in the original action in which judgment was rendered against them. Likewise the fact that no original summons was found with the return of the sheriff showing service, nor any return on the copies that were in evidence, are to be considered in determining the issue as to whether or not the defendants in the original action were served with summons. Conceding, without deciding, that these facts, with the presumptions attending them that the officers had performed their statutory duty, might be sufficient, if there were nothing else in the record to sustain the finding of the trial court that the appellees were not served with process in the original suit, nevertheless appellees have failed to sustain their cause of action because they have utterly failed to show that they did not know of the proceedings in the original action in which judgment was rendered against them in time to make a defense. This was essential. In State v. Hill, 50 Ark. 458, Judge Cockrell, speaking for the court, said: “One who is aggrieved by a judgment rendered in his absence must show not only that he was not summoned, but also that he did not know of the proceeding in time to make a defense.” This language was also quoted by us in the case of Moore v. Price, 101 Ark. 142-145.

The appellees alleged in their complaint that “neither of said defendants in said action were ever at any time served with proper summons, or any notice whatever giving them notice of the pendency of such suit against them,” and further, “that at no time was notice of the pendency of such suit given them in the manner provided by law, or in any other manner.” The appellant specifically “denies that the plaintiff had no notice of the pendency of the action and that no legal service was had on them.” It will be observed that the appellees did not allege in their complaint that they did not know of the pendency of the action in which judgment was rendered against them in time to make a de fense thereto, and there is no testimony in the record to show that the appellees did not know of the pendency of the action and the proceedings that were had therein in time to make defense. It is a very significant fact in this record that none of the appellees testified that they did not know that the action was pending and of the proceedings had therein. Their verified complaint was denied, and therefore its allegations are not testimony and cannot be accepted as facts proved, even if it had been therein stated that the appellees did not know of the pendency of the action.

The findings and judgment of the circuit court are therefore erroneous. The judgment is reversed, and the cause is remanded for a new trial.


text:
    Brown & Hackney, Inc., v. Stephenson.
    Opinion delivered March 12, 1923.
    1. Certiorari — remedy by appeal — want op jurisdiction.— Certiorari .cannot be used in any case where there has been a right of appeal unless the opportunity of appealing has been lost without fault of the petitioner, or unless the court in the proceedings sought to be reviewed acted without, or in excess of, jurisdiction.
    2. Certiorari — special appearance — remedy by appeal. — Where defendant entered a special appearance and moved to quash the service of summons on it, the trial court had jurisdiction to dedermine that issue, and appeal afforded a complete remedy if the court erred.
    Appeal from Chicot Circuit Court; Turner Butler, Judge;

    affirmed.

      Hughes & Hughes, for appellant.
    1. Certiorari was the proper remedy in this case. The rule that where an appeal is or has been available to an aggrieved party, the right thereto not having been unavoidably lost without fault on his part, he cannot have the proceeding reviewed on certiorari, does not apply to instances where the trial court has acted without, or in excess of, its jurisdiction. 68 Ark. 205; 103 Ark. 571; 116 Ark. 310; 139 Ark. 400; 114 Ark. 304; 94 Ark. 54. ,
    2. The trial court was without jurisdiction. The cause of action, if any, grew out of a contract which was both made and performed in the State of Louisiana. A foreign corporation doing business in this State, after compliance with the statutes prescribing the terms of its admission, is subject to be sued in the courts of the State only upon causes of action arising within this State. Acts of 1917, p. 744; 56 Ark. 539; 84 Term. (16 Lea) 275; 46 Vt. 697, 706; 76 Ala. 388; 83 Ala. 498; 122 Ala. 149; 145 Ala. 317; 204 U. S. 8; 236 IT. S. 115; 226 Fed. 893; 42 Sup. Ct. Rep. 84; Id. 210.

      Streett, Burnside & Streett, for appellee.
    For the constitutional provisions and the statutes applicable to the issues involved, see art. 12, § 11, Const.; Crawford & Moses’ Digest, §§1826, 1827, 1829. It affirmatively appears that appellant has qualified itself, under our statutes, to do business in this State. It thereby voluntarily submitted itself to the jurisdiction of the State courts. 222 Fed. 148; 18 How. 404; 70 L. ft. A. 513, note 1; 106 U. S. 350 (Law ed.); 147 U. S. 591; 37 L. ed. 292; L. ft. A. 1916-F., 407; 243 U. S. 93; 61 L. ed. 610; 163 111. App. 621; 132 Mass. 432; 143 S. W. 483; 31 So. 172.
   Wood, J.

The petitioner, Brown & Hackney, Inc., was sued by the respondent, John C. Stephenson, in the circuit court of Chicot County, upon the following complaint:

“Comes the plaintiff, John C. Stephenson, and for cause of action against the defendant, Brown & Hackney, Incorporated, states: ‘ ‘ That the defendant, Brown & Hackney, Incorporated, is and was on the 7th day of March, 1921, a foreign corporation and incorporated under the laws of the State of Tennessee and authorized to do business in the State of Arkansas, and is and was on said date engaged in the business of buying logs and manufacturing same into lumber, and has a designated agent in said State upon whom service of process,may be had. That on said 7th day of March, 1921, at Kilbourne Louisiana, the defendant purchased of and from the plaintiff two hundred and sixty-six logs, amounting to 61,525 feet, at an agreed price of $1,540.62; that said logs were bought by defendant f. o. b. cars Kilbourne, in said State, and, pursuant to said contract, the plaintiff immediately delivered said logs to the defendant at said place; that said logs were accepted by said defendant; that same were loaded on cars and consigned to defendant at Little Bock, Arkansas, where they were refused. That defendant refused and still refuses to pay plaintiff therefor. Wherefore, plaintiff prays judgment against the defendant, Brown & Hackney, Incorporated, for the sum of $1,540.62, interest, costs, and all other proper relief.”

Summons Avas issued in said cause for the defendant therein, the petitioner here, and on the 16th day of January, 1922, was served on R. B. Hackney, the agent for service designated by said Brown & Hackney, Inc., in the State of Arkansas.

At the March, 1922, term of said court, the defendant appeared especially for the purpose of questioning the jurisdiction of the court, and for that purpose filed its motion to quash the service, as follows:

“Comes the defendant, Brown & Hackney, Incorporated, and, not entering its appearance, but for the purpose of quashing the service in this case alone, says: That plaintiff is a citizen and resident of the State of Louisiana; that defendant is a corporation organized under the laws of the State of Tennessee, and domiciled in Memphis, Tennessee; that the plaintiff claims that the alleged contract, upon which this action was founded, was entered into in the State of Louisiana; that the defendant is not incorporated in the State of Arkansas, but is doing business in the State of Arkansas as a foreign corporation only; that the defendant is not subject to answer to such an action as this in the courts of the State of Arkansas; that to require it to answer, to submit to a trial and a personal judgment'in such an action as this in this court, will deny to the defendant the equal protection of the laws and due process of law afforded to the defendant by the Constitution of the United States. Wherefore, defendant asks that this cause of action be dismissed'as to it, and that it be no longer threatened or imperiled with such unlawful process.”

On the hearing of the motion the same was overruled, and the defendant, declining to further plead, judgment was on March 15, 1922, rendered by said court in favor of the plaintiff in said cause against the said defendant for the sum of sixteen hundred thirty-four and 85/100 ($1,634.85) dollars.”

On July 18, 1922, Brown & Hackney, Incorporated, filed in this court the petition now before the court for a writ of certiorari to bring before this court the record of tbe proceedings had in the cause 'between the parties in the circuit court of Chicot County for review and for the purpose of determining whether the judgment of that court was rendered without jurisdiction.

The petition sets out the facts disclosed by the foregoing complaint and motion to quash, and alleges that the circuit court of Chicot County was without jurisdiction of the person of the defendant therein or of the cause of action upon which the judgment was there rendered; that the enforcement of said judgment would deprive this petitioner of its property without due process of law, in contravention of the 14th Amendment to the Federal Constitution.

It further avers that the petitioner here is without remedy to obtain a review of the proceedings of said circuit court other than by writ of certiorari.

We are met at the threshold with the issue as to whether or not certiorari will lie to correct the ruling of the circuit court in refusing to quash the service had in that case upon Brown & Hackney, Incorporated (hereafter called petitioner). The petitioner contends that the circuit court was without jurisdiction of the person of the petitioner, and also had no jurisdiction of the cause of action upon which the judgment of the circuit court was rendered.

An examination of the allegations of the complaint filed by Stephenson (hereafter called respondent) against the petitioner in the circuit court will discover that the complaint states a cause of action which is transitory in character. The circuit court of Chicot County therefore had jurisdiction of the subject-matter of the action, and the only issue here is whether or not it had jurisdiction of the petitioner. The circuit court did not exceed its. jurisdiction in determining* the issue as to whether or not service of summons could be had upon the petitioner in Arkansas upon the cause of action stated in the complaint. It was peculiarly within the juris'diction of the circuit court to determine whether the service could be had upon the petition in this State, and the decision on that issue raised by the motion to quash the service, if erroneous, could and should have been corrected by appeal. The doctrine is well established by numerous decisions of this court “that a writ of certiorari cannot be used in any case where there has been a right of appeal, unless the opportunity of appealing has been lost without the fault of the petitioner; or unless the court, in the proceedings which the petitioner seeks to have reviewed and quashed by certiorari, has acted without, or in excess of, its jurisdiction.” Lamb & Rhodes v. Howton, 131 Ark. 211; Hilger v. J. R. Watkins Medical Co., 139 Ark. 400, and other cases cited in Cumulative Sup. Crawford’s Ark. Dig., title Certiorari, §§ 4,12; Stroud v. Conine, 114 Ark. 304-09; Caroline v. Caroline, 47 Ark. 511; Gregg v. Hatcher, 94 Ark. 54; Griffin v. Boswell, 124 Ark. 234; and numerous oases cited in 1 Crawford’s Digest, p. 908 (Certiorari).

After the petitioner entered its special appearance and moved to quash service, it was certainly within the jurisdiction of the trial court to determine whether the petitioner had been duly served with process, and, if the court erroneously decided that issue, the petitioner had a complete and adequate remedy, to correct the error by appeal. But, while the petitioner concedes that it would have had a remedy by appeal, it nevertheless contends that such remedy is not as efficient as the remedy by certiorari, and hence' petitioner is entitled to the latter remedy, the trial court having exceeded its jurisdiction. Petitioner unquestionably would be correct in this contention if, as petitioner assumes, the trial court had exceeded its jurisdiction in deciding that petitioner had been served with summons. See Stroud v. Conine, and Gregg v. Hatcher, supra. But the issue here is hot whether certiorari would afford a more or less effectual remedy than appeal. The question is whether the trial court had jurisdiction to decide that petitioner had been served with summons in the action against it by respondent. Having concluded that the circuit court had jurisdiction to determine that issue, we do not reach the interesting question, so ably argued in briefs of counsel, of whether an action can be maintained in this State by a nonresident against a foreign corporation doing business in this State, upon a cause of action of a transitory nature arising in a foreign State. Petitioner rested on its motion to quash the service, and allowed judgment final to be entered against it. It follows from what we have said that such judgment must be affirmed. It is so ordered.


author: Hart, J.,

text:
    Bolton v. Missouri Pacific Railroad Company.
    Opinion delivered March 12, 1923.
    1. Railroads — federal control. — Under the Federal Control Act (U. S. Comp. Stat. Ann. Supp. 1919, §§ 3115%a-3115%p.) suits might be brought and prosecuted against a railroad company for a cause of action which had become vested before the Director General of Railroads took charge.
    2. Railroads — liability of purchaser of railroad. — One who has not recovered judgment against a railroad company or the receiver thereof operating the railroad at the time the inj'ury complained of was received, cannot recover from a railroad which subsequently obtained possession by purchase under decree of a chancery court.
    Appeal from White Circuit Court; J. M. Jackson, Judge;
    affirmed.
    STATEMENT OF FACTS.
    On the 20th of June, 1919, Clifton Bolton, a minor, by his next friend, sued Walker D. Hines, Director G-eneral of Railroads, for damages for personal injuries received by him on the -6th day of July, 1916.
    His complaint alleges that he was injured while returning from work, by the negligence of one of the brakemen of.the railroad company shoving him off of one of its trains while it was running at a high rate of speed.

      This court held that the Federal Control Act gave the exclusive management of railroads to the Director General, but that it never contemplated that the government would be liable for causes of action against railroads which had become vested before the Director General took charge of them. Hence it held that the plaintiff could not maintain his action against the Director General for the negligence of the railroad company which occurred before the Director General took charge of the railroads under the act of Congress. Bolton v. limes, 143 Ark. 601.
    On May 17,-1920, the plaintiff sued the Missouri Pacific Eailroad Company for damages for the same injury. The former suit against the Director General of Eailroads was pleaded by the railroad company as a bar to the action. The plea was sustained, and upon appeal it was sought to affirm the judgment on the ground that on the date of the alleged injury the railroad was being operated by the St. Louis, Iron Mountain & Southern Eailway Company, and that subsequently the railroad was sold under the decree of the Federal court, and the Missouri Pacific Eailroad Company became the purchaser at the sale. It was insisted that this court would take judicial notice of these proceedings. This court held that it could not take notice of the records of other courts, and held further that an adjudication in favor of the Director General of Eailroads was not an adjudication of the right of the plaintiff to sue the railroad itself for an injury which occurred before the government assumed control of the railroad. Bolton v. Mo. Pac. Rd. Co., 148 Ark. 319.
    Upon a remand of the case the Missouri Pacific Eailroad Company filed a motion to require the plaintiff to make his complaint more definite and certain. He was asked to state in his complaint who was operating the railroad at the time his alleged injury was received. The plaintiff filed an amended complaint in which he alleged that the St. Lquis, Iron Mountain & Southern Railway Company was operating the railroad at the time his injury was received, and that later B. F. Bush, receiver, operated the railroad at the tipie it was purchased by the Missouri Pacific Railroad Company. The defendant, Missouri Pacific Railroad Company, demurred to the complaint on the ground that the plaintiff could not maintain a cause of action against it for injuries received while the railroad was being operated by the St. Louis, 'Iron Mountain & Southern Railway Company, or by B. F. Bush as receiver of said company.
    The court sustained a demurrer to the amended complaint, and 'the plaintiff elected to stand upon his amended complaint.
    From a judgement in favor of the defendant the plaintiff has duly prosecuted an appeal to this court.

      Oscar H. Winn, for appellant.

      Thos. B. Pryor and Ponder & Gibson, for appellee.
    No cause of action against the appellant was stated. The case should be governed by this court’s decision in Williams v. Railroad Company, 134 Ark. 366. See also 136 Ark. 193; 18 Am. St. Rep. 460; 69 Id. 206; 22 Id. 56; 74 Ark. 368; 1 Elliott on Railroads, § 526; 33 Cyc. 338.
   Hart, J.,

(after stating the facts). Under the Federal Control Act the rights and remedies against common carriers enjoyed at the time the railroads were taken over by the President, except in so far as such rights or remedies interfered with Federal operation, were preserved to the general public. Under the act suits might be brought and prosecuted against the railroad company for a cause of action which had become vested before the Director of Railroads took charge of the common carriers under the act of Congress. Mo. Pac. R. Co. v. Ault, 256 U. S. 554.

- According to the allegations of the complaint, the Missouri Pacific Railroad Company purchased the railroad which was the alleged cause of the injury to the plaintiff, some time after the injury occurred. Hence the plaintiff’s cause of action had become vested before the purchase was made of the railroad by the Missouri Pacific Railroad Company.

The complaint does not contain any allegation that the plaintiff had recovered judgment against the company operating the road at the time he received his injury, and that on this account a judgment against the operating railroad company would bind its property in the hands of another company purchasing it. In the absence of an allegation in the complaint that the plaintiff had recovered judgment against the company, or the receiver thereof operating the railroad, at the time the plaintiff received his injury, the Missouri Pacific Railroad Company, which subsequently obtained possession of the road by purchase under a decree of a chancery court, is not liable, and no lien can be fixed against its property. Williams y. Mo. Pac. Rd. Co., 134 Ark. 366, and C. R. I. & P. Ry. Co. v. McBride, 136 Ark. 193.

The complaint does not. allege that any suit was filed against the St. Louis, Iron Mountain & Southern Railway Company or against the receiver of such railway company and judgment obtained thereunder. The complaint does show that the injury was received by the plaintiff while the St. Louis, Iron Mountain &• Southern Railroad Company or its receiver was operating the road.

Therefore the court properly sustained a demurrer to the amended complaint, and the judgment must be affirmed.


text:
    Bank of Gillett v. Botts.
    Opinion delivered March 12, 1923.
    1. Landlord and tenant — lien for supplies. — Under Crawford & Moses’ Dig., §§ 6889, 6890, a landlord who signed a note for his tenant to procure hags to preserve the rice crop, being primarily liable on such note, though signing as surety, upon paying such note was entitled to a lien for supplies furnished.

      2. Landlord and tenant — conversion op crop. — Where an. action was begun in time to enforce a landlord’s lien, and a receiver was appointed to take charge of the crop, and thereafter a mortgagee of the crop seized and sold it, more than six months thereafter, and made a party to the original action, as against such mortgagee’s claim that the lien of the landlord was lost by not bringing suit within six months after the rent was due, held that the mortgagee’s act in selling the crop was a conversion, and the six-months’ statute was inapplicable.
    Appeal from Arkansas Chancery Court; John M. Elliott, Chancellor;
    affirmed.
    STATEMENT OF FACTS.
    On the 20th of December, 1920, G. W. Botts brought this suit in equity against L. K. Menard to enjoin him from selling rice grown by said Menard and his codefendants on the land of the plaintiff, without paying the rent. The codefendants of Menard had previously filed suits in the justice court claiming a laborers’ lien on said rice.
    A temporary injunction was granted as prayed for in the complaint, and Menard was appointed receiver to take charge of the rice, and was directed to allow it to remain in the Gillett warehouse until the further orders of the court. Subsequently the Bank of Gillett took charge of said rice, without any order of the court, and sold it at private sale for the purpose of satisfying a mortgage which it held on the rice crop grown by Menard.
    L. K. Menard was a witness for the plaintiff. According to his testimony, he grew a crop of rice on the land of the plaintiff in the Southern District of Arkansas County, Ark., during the year 1920. The landlord was to receive one-third of the rice for his rent. After the rice was threshed it was stored in the-Gillett Warehouse Company. The Bank of Gillett had a mortgage on Menard’s share of the crop. The plaintiff did not waive his landlord’s lien on the crop. The witness never gave the bank any authority to take charge of the rice and sell it. The plaintiff never gave Menard permission to authorize the bank to take charge of the rice and sell it. The rice had not been divided at the time the bank took charge of it and sold it.
    G. "W. Botts, the plaintiff, was a witness for himself. According to his testimony, he was to receive one-third of the rice grown by L. K. Menard as rent. The rice was grown on the farm of the plaintiff by Menard and delivered by the latter to the Gillett Warehouse Com-, pany to be kept in storage. The plaintiff never gave the Bank of Gillett authority to take charge of the rice and sell it, nor did he authorize Menard to do so. The plaintiff thought that the rice was being-held in the warehouse by Menard as receiver in the suit filed by the plaintiff against Menard and others in the chancery court. Soon after the plaintiff found that the bank had disposed of the rice crop, he made it a party defendant to the present action.
    The plaintiff signed the note of Menard to the Homo Bank of DeWitt for $250. The signature is “ G. W. Botts, surety.” But the plaintiff signed this note to procure some sacks in which to put the rice after it was thrashed. It was necessary to put the rice in sacks to preserve it. The plaintiff in reality furnished these sacks to Menard as supplies to be used in gathering and preserving the rice crop. The plaintiff paid the note on June 1, 1921. The plaintiff’s testimony in this respect is corroborated by that of Menard. Menard did not pay the- plaintiff any of the rent or any .part of the amount of the note given to procure money with which to purchase the rice bags.-
    According to the testimony of the Bank of Gillett, it had a valid mortgage on Menard’s share of the rice, and no part of .the mortgage indebtedness had been paid. Menard gave the bank authority to take- the rice, sell it at private sale and apply the proceeds towards the satisfaction of the mortgage. The sale of the rice was made by the bank more than six months after the 20th day of December, 1920.

      The chancellor found the issues in favor of the plain- • tiff, and a decree was accordingly entered in his favor for the amount of the rent and supplies due him.

      T. J. Moher, for appellant.
    1. Where the landlord furnishes necessary supplies to his tenant, or causes such supplies to he furnished the tenant, binding himself primarily therefor, he has his lien; but if he signs an obligation therefor only as surety, he has no lien. 83 Ark. 118; 80 Ark. 243.
    2. Appellee is barred by the statute of limitations. O. & M. Digest, § 6889'; 67 Ark. 455, 463.

      Botts & O’Daniel, for appellee.
    L Appellee filed his suit to foreclose his landord’s lien within six months after the crop was harvested. Moreover appellant, a wrongdoer, is in no attitude to invoke the statute of limitations pertaining to landlords’ liens. It was not a purchaser. Appellee would have three years to bring suit against it.
    •2. There is no dispute that appellee signed the note, that the rice bags were necessary for harvesting the crop, and that appellee paid off the nóte in full. He has his lien as landlord, and prior to the lien of the mortgagee, 62 Ark. 435; 143 Ark. 320, 327; 96 Ark. 268, 271.
   Hart, J.,

(after stating the facts). Sec. 6889 of Crawford & Moses’ Digest gives the landlord a lien upon the crop grown upon the demised premises in any year for rent. Sec. 6890 gives the landlord a lien for any necessary supplies, either of money, provisions, clothing, stock, or other necessary articles advanced to the tenant with which to make and gather the crop. The section further provides that the lien shall have preference over any mortgage of the crop made by the tenant.

The bank insists, however, that it is only liable to the plaintiff for the amount of the rent due him,. and is not liable for the note signed by the plaintiff, because the plaintiff signed the same as surety for the tenant. Hence they claim that the ease falls within the doctrine of Kaufman v. Underwood, 83 Ark. 118, where it was held that the landlord may not claim a lien as for supplies furnished to his tenant where the tenant purchased a horse for whose purchase price the landlord went security.

On the other hand, the plaintiff relies upon the case of Walker v. Rose, 153 Ark. 599. In that case it was held that where a landlord directed a merchant to furnish supplies to the tenant for which the landlord agreed to pay, and subsequently paid, the landlord, in effect, furnished the supplies to the tenant, and was entitled to a preference lien therefor. In that case, as here, a bank had a valid mortgage on the crop of the tenant, but knew that the tenant was raising the crop on the land of the plaintiff. The landlord had also become responsible to a mercantile company in the amount of certain advances made by it of money and supplies which were used by the tenant in the cultivation of his crops. The court held that the facts justified a finding that the money and supplies furnished through the mercantile company were ill reality furnished by the appellee. Hence it was held that it was not a case of a landlord becoming a mere surety for his tenant, but that the facts warranted the conclusion that the landlord himself was primarily responsible to the mercantile company.

In the instant case, according to the testimony of the plaintiff, he in reality furnished the money to the tenant with which to buy the rice bags for the purpose of preserving the rice. It was absolutely necessary to put the rice in bags after it was thrashed' in order to preserve it. Although the note shows that Botts, the plaintiff, signed it as surety, yet, under the attending circumstances, the chancellor was warranted in finding that Botts was primarily liable for the money, which was used in purchasing the rice bags to preserve the crop. The landlord paid the note at the bank, and the purchase of the rice bags inured to the benefit not only of the landlord but his tenant, and to the bank, which was the tenant’s mortgagee. The bank knew that the rice was grown on the land of the plaintiff, and therefore it is liable to plaintiff for its value to the extent of the landlord’s lien for rent and the supplies furnished by him, which was established by the proof.

It is next insisted that the judgment should be reversed because the suit was not brought within six months after the rent was due and payable*. The bank was not made a party to the suit until the 2nd day of September, 1921, and it is insisted that the rent Avas at least due at the end of the year 1920.

It will be remembered, however, that this suit was commenced by the landlord against the tenant and some laborers who were attempting to assert laborers’ liens on the rice crop. The object of the suit was to establish the landlord’s lien as superior to that of the laborers for the rent, and also the money advanced by him for supplies. Menard, the tenant, was appointed receiver by the chancery court to take charge of the rice and hold it in a designated warehouse until the further orders of the court.

It is true that the bank testified that it took the rice from the warehouse and sold it under authority given by the tenant. The court was warranted, however, in finding from the evidence of the plaintiff and the tenant that no authority Avas given to the bank to take charge of the rice and sell it under its mortgage. The action of the bank therefore amounted to a conversion of the rice which was in the hands of the court. Hence the limitation of six months provided by the statute for the continuance of a landlord’s lien after the rent shall become due has no application.

It folloAvs that the decree will be affirmed.


text:
    Jonesboro, Lake City & Eastern Railroad Company v. Maddy.
    Opinion delivered March 12, 1923.
    1. Carriers — notice of claim of injury to livestock. — A provision in a contract of shipment of live stock that, as a condition precedent to a claim for loss or injury during transportation, notice thereof should be given by the shipper or agent in charge thereof before removal of the livestock has no application where a shipment of hogs was not in charge of the shipper or his agent, and it was not delivered to the consignees, and was never carried to the destination.
    2. Carriers — negligence.—In general, a carrier is liable for the negligence of its servants during the course of their employment, and if they go on a strike, abandoning the performance of .their duty and causing delay, the carrier is liable.
    3. Commerce — interstate shipments. — Interstate shipments are governed by the acts of Congress and the decisions of the United States Supreme Court construing same.
    4. Carriers — liability for losses. — At common law carriers were liable for any loss or damage which resulted from human agency, or from any cause not the act of God or the public enemy; but a carrier may by fair and reasonable agreement restrict its liability to losses which are the proximate result of strikes on its own road, or that of connecting carriers, where the loss is not occasioned by its negligence or where it could no't by reasonable diligence have prevented the loss.
    5. Carrier — exemption against negligence. — A carrier cannot exempt itself from liability on account of its own negligence.
    6. Carriers — exemption from liability- — instruction.—In an action against an initial carrier for loss to an interstate shipment of hogs never delivered to consignee but turned over by -an intermediate carrier to another, it was error to limit defendant’s contract right to exemption from liability by reason of strikes to a finding that delay was occasioned solely by a strike of employees of- a terminal carrier, as a strike on any of the connecting carriers would, under the contract, release the initial carrier from liability except in cases of negligence with regard to averting the loss on its part or on the part of any of its connecting carriers.
    Appeal from Craighead Circuit Court, Lake City District; W. W. Bandy, Judge;
    reversed.

      'STATEMENT 0f FACTS.
    C. P. Maddy sued the Jonesboro, Lake City & Eastern Railroad Company to recover damages on account of the negligent delay and misdelivery of a carload of hogs shipped over the defendant’s line of railroad to East St. Louis, 111.
    C. P. Maddy, the plaintiff, was a witness for himself. According to his testimony, in 1920 he lived at Lake City, Ark., and was engaged in buying and shipping live stock. On the 6tli day of April, 1920, he shipped a carload of hogs over the Jonesboro, Lake City & Eastern Railroad Company from Lake City, Ark., to Davis & Daley, at East St. Louis, 111. There were 114 hogs in the car, and they were in good condition. The plaintiff .loaded the hogs in the car carefully, and they should have reached their destination two days after they left Lake City. The hogs never reached their destination. The Swift Packing Company took charge of them on the 21st of April, 1920, and sold them on the 22d inst. The plaintiff was charged $142.50 for the feed of the hogs in transit, and if they had gone to destination without delay a proper feed bill would have been only $5. One of the hogs died in transit, and the others fell off in weight on account of the delay in their shipment. The plaintiff went on a passenger train to St. Louis, Mo., and learned that the hogs were at Dupo, 111. Nine or ten days after they were shipped, the railroad company wanted to deliver the hogs to the consignees at Dupo and have them bring them to their destination in trucks. The consignees declined to receive them at Dupo, and the railroad company then took the hogs to Valmeyer, about twenty miles below Dupo.
    J. E. Davis and Mike Daley, the consignees, were also witnesses for the plaintiff. Their testimony was substantially the same. According to their testimony, a representative of the Missouri Pacific Railroad Company asked them if they could accept the hogs at Dupo and carry them to their destination in trucks. They told the railroad company that they could not do this and could not accept the hogs at Dupo. Dupo is a station about ten or twelve miles out from the National Stock Yards in East St. Louis, and Yalmeyer is a station on the Missouri Pacific Railroad.’ The hogs were never delivered to consignees, but were finally delivered by the railroad company to Swift & Company in East St. Louis, 111. The railroad company said that the delay in shipment and the misdelivery of the hogs was due to a strike of the switch-men on the Terminal Railroad Company and some other railroads which connected with it. The Terminal Railroad Company makes 90 per cent, of all the deliveries to the National Stock Yards in East St. Louis, and would have made the delivery of the hogs in question had they been delivered to the consignees according to the terms of the bill of lading. The amount of the shrinkage of the hogs and the value due to their delay in carriage was established by the plaintiff.
    According to the testimony of the defendant, the Missouri Pacific Railroad Company carried the hogs to Dupo, which is the connecting point between its road and the Terminal Railroad Association. The delay in the shipment and the misdelivery of the hogs was due to a strike of the switchmen of the Terminal Railroad Association and on the Missouri Pacific Railroad Company. The railroad company made every effort to deliver the hogs to the consignees. The Terminal Railroad Association was the carrier which would have delivered the hogs to the consignees had the strike not prevented it. The delivery was prevented because the Terminal Railroad Association could not get sufficient switchmen.
    The particular provisions in the contract of shipment involved in this appeal are paragraphs 6 and 8, which are as follows:
    “Paragraph six. The shipper hereby assumes and releases the company from risk of injury or loss which may be sustained by reason of any delay in such transportation of said stock, or injury thereto, caused by any mob, strike, threatened or actual violence to real or personal property, or by the refusal of the company’s employees to work or otherwise, or the failure of machinery, engines or cars, or by injury to tracks or yards, storms, washouts, escape or robbery of any of said stock, overloading oars, fright to animals, or' crowding one upon another, or from any and all other causes whatever, the liability of the carrier or any fact essential thereto in any instance or case shall not be presumed, hut the burden of establishing such liability is assumed by the shipper in the event of a suit.”
    “ Paragraph eight. In order that any loss or damage to be claimed by the shipper may be fully and fairly investigated and the facts and nature of such claim or loss preserved beyond dispute and by the best evidence, it is agreed that, as a condition precedent to his right to recover any damages for any loss or injury to said stock during the transportation thereof, or at any place or places where the same may be loaded or unloaded for any purpose on the company’s road, or previous to loading thereof for shipment, the shipper or his agent in charge of the stock will give notice in writing of his claim therefor to some officer of said company, or to the nearest station agent, or if moved from the place of destination above mentioned, or from the place of delivery of the same to the consignee, and before such stock shall have been slaughtered or intermingled with other stock, and will not move such stock from said station or stockyards until the expiration, of three hours after the giving of such notice; and a failure to comply" in every respect with the terms of this clause shall be a complete bar to any recovery of any and all such damages. The written notice heretofore provided for cannot and shall not be waived by any person except a general officer of the company, and he only in writing. Nor shall any such damage be recoverable unless written claim therefor shall be presented to the company within ninety-one days after the same may have occurred.”

      The plaintiff did not give the notice to the railroad company contemplated by paragraph 18 of the shipping contract.
    The jury returned a verdict for the plaintiff in the sum of $508.50, upon -which judgment was rendered.
    The defendant railway company has duly prosecuted an appeal to this court.

      Eugene Sloan, for appellant.
    Giving notice of damage to live stock before removal from destination is condition precedent to recovery. St. L. é S. F. Bd. Co. v. Pierce, 82 Ark. 353; K. 5 A..V. Bd. Co. v. Ayers, 63 Ark. 331; St. L. S S. F. By. Co. v. Hurst, 67 Ark. 407; Hofer v. St. L. S. By. Co., 101 Ark. 310; M. é N. A. Bd. Co. v. Ward, 111 Ark. 102. Court should have directed verdict under paragraph 6 of contract, a reasonable requirement and evidence being undisputed. So. Express Co. v. Caldwell, 21 Wad. 264; 22 U. S., L. ed. 556; O. C. & S. F. B. Co. v, Levi, 76 Tex. 337; 8 L. R. A. 323; Pittsburgh etc. B. Co. v. Hasen, 84 111. 36; 25 Amer. Rep. 422; 4 R. C. L., pp. 743, 212; 10 O. J. pp. 293, 415. Instructions 2 and 3 for defendant should have been given. Others argued incorrectly given, especially No. 3, releasing carrier from liability if injury caused from strike on one road but liable if from combined strike on two.

      J. F. Johnson and Basil Baker, for appellee.
    Shipping contrast ho more than receipt for shipment under facts of case and terms and conditions fixed' by law. Bailway v. Cravens (1892), 57 Ark. 112; St. Louis-S. F. By. Co. v. Wells (1907), 87 Ark. 469; St. L. é S. W. By. Co. v. Hayme (1915), 120 Ark. 26. No notice required of claim for damages, shipment never having been delivered at destination nor to consignee at all. Cases cited by appellant distinguished. Interstate shipment controlled by Federal law. Barnes’ Federal Code, § 7976, 1921 supp. Carrier is not allowed to contract against liability for its negligence.
   Hart, J.,

(after stating the facts). It is first insisted by counsel for the defendant that the court should have directed a verdict in favor of the railway company because the notice required by paragraph 8 of the live stock contract of shipment was not given by the plaintiff.

The live stock contract in question involves an interstate shipment of hogs. The Supreme Court of the United States has held that a stipulation in a contract which is governed by the Carmack Amendment for the interstate transportation of live stock releases the carrier from all loss or damage unless a written claim therefor is made on the carrier’s freight claim agent within ten days after unloading the live stock. St. L. I. M. & S. R. Co. v. Starbird, 243 U. S. 592; Erie Railroad Co. v. Stone, 244 U. S. 332, and Southern Pacific Company v. Stewart, 248 U. S. 446.

We do not think, however, the facts and circumstances as they appear from the record bring this case within the principles of law decided in the cases just cited. In the present case the hogs were not in charge of the shipper or his agent, and they were never delivered to the consignees. The undisputed evidence shows that the railroad company delivered the hogs to another company than the consignees, and that they were never carried to their destination. Hence the provisions of paragraph 8 of the contract of -.shipment do not apply, under the facts presented by the record.

It is next contended that the court erred in giving instruction No. 3, which is as follows:

“You are instructed that, if you find from the evidence that the delay in the delivery at St. Louis was occasioned solely by a strike on the part of the employees of the Terminal Railroad Company in St. Louis, then your .verdict should be for the defendant. But, on the contrary, if you find the delay was the result of the combined strike of the employees of the Terminal Railroad Company and the employees of the Missouri Pacific Railroad Company, then that would be no defense in this action on the part of the railroad, and your verdict should be for the plaintiff.”

The contention of counsel for the defendant that the court erred in giving this instruction is based upon paragraph 6 of the contract of shipment, which is copied in the statement of facts.

There is no evidence in the record tending to show that the negligence of the railroad company in failing to deliver the hogs was due to any violence on the part of the strikers on the terminal carrier or any connecting carrier. Hence it is not necessary to decide whether or not violence on the part of the strikers would excuse the railroad company. It is sufficient to say that the general rule is that the carrier is liable for the negligence of its servants during the course of their employment, and therefore if its employees go on a strike, abandoning the perf ormance of their duty and causing the delay in the transportation of goods, the carrier is liable. 10 C. J., par. 414, p. 293, and Railway Co. v. Nevill, 60 Ark. 375.

But, as we have already seen, the shipment was an interstate one, 'and is governed by the provisions of the-act of Congress and the decisions of the United States Supreme Court construing the same. In addition to the authorities above cited, see Chicago & E. I. R. Co. v. Collins Produce Co., 249 U. S. 186.

In the case of Adams Express Co. v. Croninger, 226 U. S. 491, the court said: “That a common carrier cannot exempt himself from liability for his own negligence or that of his servants is elementary. York Mfg. Co. v. Illinois Central Railroad, 3 Wall. 107; Railroad Co. v. Lockwood, 17 Wall. 357; Rank of Kentucky v. Adams Express Co., 93 U. S. 174; Hart v. Pennsylvania Railroad, 112 U. S. 331, 338. The rule of common law did not limit his liability to loss and damage due to his own negligence, or that of his servants. That rule went beyond this, and he was liable for any loss and damage which resulted from human agency, or any cause not the act of God or the public enemy. But the rigor of this liability might be modified through, any fair, reasonable and just agreement with the shipper which did not include exemption against the negligence of the carrier or his servants. The inherent right to receive a compensation commensurate with the risk involved the right to protect himself from fraud and imposition by reasonable rules and regulations, and the right to agree upon a rate proportionate to the value of the property transported.”

It follows that the carrier may, by fair and reasonable-agreement, restrict its liability to losses which are the proximate result of strikes on its own road, or that of its connecting carrier, where the loss is not occasioned by the negligence of the carrier in the premises, or the carrier could not, by reasonable diligence, have prevented the loss. Paragraph 6 of the contract of shipment is the clause which releases the company from liability by reason of delay in the transportation of live stock caused by strikes on its line or on the line of any of its connecting carriers. But, as we have already seen, the railroad company could not exempt itself from liability on account of its own negligence, and the court should have submitted to the jury that question.

It also- follows that the court erred in limiting the right of the defendant to exemption from liability to a finding that the delay was occasioned solely by a strike of the employees of the Terminal Railroad Company. The Interstate Commerce Act extends to all terminal facilities and instrumentalities. Chicago Junction Railway Company v. United States, 226 U. S. 286. That case also holds that the duties of a common carrier in the transportation of live stock begin with -their delivery to be loaded and end only after unloading and delivery, or offer of delivery, t-o the consignee. It follows that a strike on any of the connecting carriers, singly or together, would, under the terms of the contract, release the initial carrier from liability, except in case of negligence with regard to averting the loss by reason of the strike on its own part or on tlie part of any of its connecting' carriers.

Therefore the court erred in giving instruction No. 3 as set forth above, and for that error the judgment must be reversed, and the cause remanded for a new ‘trial.


author: Smith, J.

text:
    Gillette & English v. Carroll & Hogan.
    Opinion delivered March 12, 1923.
    1. Brokers — right to commission.. — Where there was testimony tending to prove that defendants promised to pay a broker’s commission to plaintiffs if the latter’s subagent was instrumental in procuring an exchange of lands, such a contract would be binding though the subagent represented the other party to tlie exchange; but in such case defendants were entitled to know who their agent was and who was the procuring cause of the exchange; and if there was a divided allegiance, they were entitled to know which principal the agent professed to represent.
    2. Brokers. — agent representing both parties — compensation.— An agent who represents an adversary principal also can re-, cover compensation only when there has been a full disclosure to each of all the fa.cts.
    3. Brokebs — commission—instruction^—In an action!, for a broker’s commission, an instruction that plaintiffs were not entitled to a commission if defendants made the sale unless plaintiffs, by finding and introducing a purchaser to whom the sale was made, were the procuring cause of the sale, was properly refused where it left out of account the contention of plaintiffs that a commission was to be paid, not merely if plaintiffs found and introduced a purchaser to whom a sale was made, but also if one of the subagents found a purchaser with whom defendants traded.
    Appeal from Benton Circuit Court; W. A, Dickson, Judge;
    reversed.

      McGill & McGill, for appellant.
    Owner had right to make sale of property unless made to purchaser procured by brokers. Harris S White v. Stone, 137 Ark. 23; McCombs v. Moss, 121 Ark. 533; Hardwick v. Marsh, 96 Ark. 23; Nerakorick v. Union

      Trust Go., 89 Ark. 412; Hill v. Jebb, 55 Ark. 574; Englishv. Wm. George Go. (Texas) 117 S. AY. 996. Instruction No. 2, only one presenting'appellant’s theory of case, should have been given. Broker entitled to commission if “procuring cause”, but not where agent of purchaser effected sale. Scott v. Patterson, 53 Ark. 49; Hinton v. Marshall, 76 Ark. 375; Pinkerton v. Hudson, 87 Ark. 506; Branohe v. Morse, 85 Ark. 462; Stilwell v. Lolly, 89 Ark. 195; Moiv v. Irwin, 89 Ark. 289; Porter v. Hall, 97 Ark. 23;’Hodges v. Boyley, 102 Ark. 200; Simpson v. Blewitt, 110 Aik. 87; Meyer v. Holland, 116 Ark. 271; Horton v. Beall, 116 Ark. 273; Brannon v. Poole, 142 Ark. 48. A broker cannot act for both parties without disclosing fact to principals'. Murphy V. WilUs, 143 Ark. 1; Featherstone v. Stone, 82 Ark. 381; Taylor v. Godbold, 76 Ark. 395. Utmost good faith required. Taylor v. Godbold, 76 Ark. 395; Balias v. Moseley, 150 Ark. 210; Wright v. Burnett, 150 Ark. 154. Bight to commission for sale effected by another broker or third person. Nance v. Smyth (Tenn.), 99 S. AY. 698. Hurxt-hal y. Dolby (Mo.), 153 S. AY. 1066, 9 C. J. 914; Rich v. Robertson (Conn.), 7 A. L. B. 81.

      Lee Seamster, for appellee.
    Appellant cannot complain of court’s failure to instruct on point not having requested a correct instruction. Breioitt y. State, 150 Ark. 279; Wharton v. Jackson, 87 Ark.' 528; Holmes v. Bluff City Lbr. Go., 97 Ark. 180; Hayes v. State, 129 Ark. 325; Gunter v. Williams, 137 Ark. 530. Question of lack of good faith not raised here first time. Matlock v. Stone, 77 Ark. 95. Exceptions not argued abandoned. Hams v. Smith, 133 Ark. 250; Holland v. Boke, 135 Ark. 372; Taylor v. Walker, 149 Ark. 134.
   Smith, J.

Gillette and English owned a ranch in the State of Oklahoma, with certain personal propertv thereon, which they decided to sell or exchange, and with that purpose in view they prepared a circular letter descriptive of their property, which they mailed to a large number of real estate agents. One of these letters was received by Carroll and Hogan, partners as Carroll & Hogan, residing at 'Bentonville, in this State, and engaged. there in the real estate business.

Gillette represented himself and English in the transaction out of which this litigation arose, and Carroll represented himself and Hogan.

Carroll testified that he and Gillette met and discussed the letter, and Gillette listed the ranch with him to be sold or exchanged, and he told Gillette that he would list the ranch with-a number of subagents' who were cooperating with him in selling and in exchanging lands, and that if he, or any of those subagents, negotiated a sale or an exchange of the ranch, he would expect a commission of two and one-half per cent., and Gillette assented and agreed to pay the commission.

Among the other real estate brokers notified by Carroll of this arrangement was R. O. Leeper, of Spring-dale, Arkansas, who agreed to find a purchaser or some one with whom an exchange could be made, and Carroll accompanied Gillette to Springdale and introduced him to Leeper as a man who would negotiate a sale or exchange, and some time thereafter, and pursuant to this understanding, Leeper found one McClinton, with whom Gillette made an exchange for the property of McClinton, and a commission is claimed, on the theory that, by virtue of the introduction of Gillette to Leeper, Carroll & Hogan thereby became the procuring cause of any sale or exchange of the ranch to any customer Leeper might find and himself represent in making a purchase or exchange for the ranch, although Carroll & Hogan might have nothing else to do towards bringing about the sale or exchange. The theory of the case was that Leeper could be, and was to be, the agent of Carroll & Hogan to procure a purchaser for Gillette, and also to be the agent of such purchaser in making an exchange with Gillette.

Shortly before the consummation of the exchange with McClinton, Carroll wrote to Gillette that.if he (Gillette) traded with McClinton, a commission would be expected on the theory stated above. The deal with McClinton was closed, and Gillette refused to pay a commission, and this suit was brought to recover it, and there was a judgment as prayed, from which is this appeal.

Carroll did not claim to have an exclusive agency, or any agency for any given time, and the right of Gillette to make the sale was not questioned. The insistence is that Gillette promised to pay a commission if Carroll & Hogan themselves, or if they, through one of their sub-agents, negotiated a sale or an exchange; and this latter thing they did through Leeper.

The court submitted the case to the jury under instructions to find for the plaintiffs if the facts were found to be as contended by Carroll, and we think no error was committed in so doing, as one may agree to pay commissions for services of almost any character. At least, there is no legal objection to his doing so. It is insisted, however, that the instructions did not properly present the theory of Gillette’s defense, and we think that contention is well taken.

The testimony shows that Carroll accompanied Gillette to Springdale and introduced Leeper and Gillette, and Carroll endeavored to exchange the ranch for a hotel owned by a customer of Leeper, but this deal failed, and thereafter Carroll admittedly did nothing further towards selling or exchanging the ranch, except in so far as Leeper represented the firm of which C'arroll was a member.

Leeper testified on behalf of the plaintiffs, and it is quite obvious from a reading of his testimony that he was highly friendly to the plaintiffs. He testified that he told Gillette that Carroll would expect a commission if the McClinton deal was consummated, yet he admitted that in all his negotiations with Gillette he was representing McClinton, and that Gillette was without representaion. .He further testified that the MeClinton deal hung fire for a period of several months, and finally MeClinton himself took charge of the negotiations, and thereafter no one acted for either Gillette or MeClinton, but when the exchange between them was closed MeClinton paid him the agent’s commission agreed upon.

Gillette testified that Carroll was never at any time his agent, and had no more right to claim a commission than any one of the other hundred or more real estate brokers to whom he sent his circular letter, which was nothing more than an inquiry whether any of the persons to whom the circular was sent had a customer who might become interested in purchasing or trading for the ranch. He testified that, for a period of several months, negotiations proceeded between himself and Leeper, and, so far from ever being advised that Leeper was his ag-ent and was attempting to procure him a purchaser, he at all times regarded Leeper as his adversary, with .whom he was trading at arm’s length. He denied that Leeper told him that Carroll was expecting a commission if the McClinton deal went through. He admitted receiving the letter from Carroll & Hogan in which they stated they would expect a commission if the MeClinton deal was made, but he dismissed it from consideration on the ground that there was no agreement to support the claim.

An instruction numbered 2 was asked by the defendants, which, in our opinion, should have been given, but which the court refused. It reads as follows:

“If you find from the evidence that defendants mailed a description of their property to plaintiffs for sale or exchange, and that the plaintiffs thereupon made out copies of such description and mailed them to other real estate agents in Benton County and other counties, and, among others, R. C. Leeper, a real estate agent at Springdale, Arkansas, for the purpose of finding other agent who might have property of others for sale or exchange and to enable them in that way to exchange defendant’s property through a deal with such other real estate agents for property which they might have for exchange, in which case each agent would collect the commission from his own client, and that plaintiffs explained this arrangement to the defendants, and thereafter said Leeper notified plaintiffs that he had certain property of one Hart in Springdale for exchange, and that plaintiffs thereupon took defendant, Gillette, to Springdale for the purpose of endeavoring to make such exchange, and introduced him to Leeper, and that plaintiffs, then representing the defendants, endeavored to make an exchange of their property, hut that the sale was never consummated, and that Leeper then told Gillette he would endeavor to get other property for exchange for his ranch, and afterwards notified Gillette that he had the property of one McClinton for exchange for other property, and to come down to Springdale, and that Gillette went down to Sprindale, and Leeper introduced him to McClinton and entered into negotiations with him as McClinton’s agent for the exchange of McClinton’s property for the ranch of defendants, and that Leeper and McClinton finally carried through a deal with Gillette for the ranch of defendants; that neither Leeper nor plaintiffs notified defendants that plaintiffs were having anything to do with the negotiations for said deal, and that plaintiffs did not, in fact, do or offer to do anything whatever toward bringing about or procuring the exchange for McClinton’s property, but only kept informed through Leeper of the progress of the deal, of which fact defendants were not notified, then I charge you that plaintiffs could not be considered in law as the procuring cause of the exchange which was finally consummated by Gillette himself with Leeper and McClinton, and. plaintiffs would not be entitled to a commission, and you will find for the defendants.”

This instruction is open to the objection that it is rather long, but it is not at all obscure, and is a concrete statement of the defendants’-contention, and we think should have been given.

It is true Leeper’s testimony connects with that of Carroll and corroborates Carroll’s contention that a commission was promised and would be expected if he (Leeper) was instrumental in closing the McClinton deal; and we know of no legal reason why a property owner should not be held bound by an agreement of that character, if he made it.

But this instruction declares the law to be that Gillette was entitled to know who was assuming to act for him, or who his agents were, and that he would not be bound unless he was so advised.

Here, according to plaintiffs’ contention, Leeper was acting in a dual capacity. He was McClinton’s agent, without question, and, according to Leeper’s own testimony, was assuming to act for no one else. As such, Leeper no doubt talked up McClinton’s property, and talked down that of Gillette. Certainly loyalty to McClinton required him to endeavor to induce Gillette to make the concessions necessary to get the parties together on a trade. As we have said, Gillette had the legal right to contract to pay a commission for the services of having an adversary in a trade produced with whom he might make a trade, and under the case of Meyer v. Holland, 116 Ark. 271, a person is liable who does so contract when a purchaser is produced.

But, we say again, one is entitled to know who his agent is, and who is the procuring cause in a sale or an exchange of property, and, if there is a divided allegiance, he is also entitled to know which principal the agent is professing to serve.

The law does not look with favor upon contracts of agency where one agent assumed to represent the adversary principal in a contract of any'kind, and only permits an agent who has done so to recover his compensation for such services when there has. been a full disclosure to each principal of all the facts. Murphy v. Willis, 143 Ark. 1; Featherston v. Trone, 82 Ark. 381; Taylor v. Godbold, 76 Ark. 395.

We conclude therefore that the instruction set out above should have been given.

An instruction numbered 1 was requested by the defendants, which reads as follows:

“If you find from the evidence that defendants listed their ranch with plaintiffs for sale or exchange, this would not preclude the defendants from making a sale or exchange of the property themselves, and they would not be liable to plaintiffs for a commission if they made such sale, unless plaintiffs, by finding and introducing a purchaser to whom the sale was made, were the procuring cause of the sale.*”

This instruction would be a correct declaration of the law except for the fact that it leaves out of account the contention of the plaintiffs that a commission was to be paid, not merely if plaintiffs found and introduced a purchaser to whom a sale was 'made, but a commission was also to be paid if one of plaintiffs’ subagents found a purchaser with whom defendants traded, and for that reason it was properly refused.

For the error in refusing to give instruction No. 2, set out above, the judgment is reversed and the cause remanded.


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    Jefferson Standard Life Insurance Company v. Smith.
    Opinion delivered March 12, 1923.
    1. Insurance — suit to cancel policy after insured’s death. — A suit brought after insured’s death to cancel the policy for fraudulent representations in the application should have been dismissed, though brought within the contestable period named in the policy, instead of being transferred .to a court of law for consolidation with a subsequent action on the policy begun after the expiration of such period, as the death of insured fixed the rights and liabilities of the parties.
    2. Insurance — incontestable clause. — Where insured died within a year after issuance of a policy containing a one-year incontestable clause, the latter clause did not apply, and it was error to direct a verdict upon the ground that the action on the policy was brought after the year had expired.
    Appeal from Greene Circuit Court, First Division; W. W. Bandy, Judge;
    reversed.

      Fuhr & Futrall, for appellant.
    When courts have concurrent jurisdiction the first to take acquires exclusive jurisdiction. If circuit court had jurisdiction, it erred in not submitting issues of fact stated in complaint in equity to jury. Dunbar v. Bourlaoid, 88 Ark,. 153. Chancery court first acquired jurisdiction, which became exclusive. 1 Pomeroy Equity Jurisprudence, §§ 138, 177; Manilla Supply Co. v. Tiger Bros., 126 Ark. 105; Dunbar v. Bourland, 88 Ark. 153; Kastor v. Elliott,, 77 Ark. 148.; Devers v. State, 34 Ark. 188; B-ently v. Dillard) 6 Ark. 79; Conway v. Ellison, 14 Ark. 360, and cases in Crawford’s Ark. Digest, § 16, 'p. 1865,1920 Supp., pp. 231-2. Jurisdiction is right to hear and determine, and must be tested by allegations of complaint. Rose v. Christinet, 77 Ark. 582, Const. 1874, Chancery Courts; Belloios v. Cheek, 20 Ark. 424; Ry. v. Perry, 37 Ark. 164; Estes v. Martin, 34 Ark. 410. Court erred in consolidating oases and directing verdict. Case’not properly transferred to law court under § 6156, C. & M. Dig.; Hester v. Bourland, 80 Ark. .145; 95 Ark. 621. Some cases hold remedy by cancellation available, but chancery should not take jurisdiction when remedy at law adequate. Rankin v. Amazon Ins. Co., 23 A. S. R. 462; Metropolitan Life Ins. Co. v. Freedman, 32 L. R. A. (N. S.) 298; 12 L. R. A. (N. S.) 881 and case note; 48 L. R. A. (N. S.) 265. Allegations of complaint warranted cancellation of policy. Incontestable clause bars all defenses to policy in suit brought one year after date. Metropolitan Life Ins, Co. v. Peeler, 6 A. L. R. 441, case note p. 448. National Annuity Association v. Carter, 96 Ark. 495. Also 14 R. C. L. 1199. ' Chancery court erred in transferring case, and circuit court in consolidating. C. & M. Dig., § 1076.

      Jeff Bratton, for appellee.
    No exceptions saved to order consolidating' causes. 90 Ark. 482. Suit on policy within jurisdiction-of law not chancery court. C. & M. Digest, § 6156. Question of misrepresentation, false answers, for jury. 137 Ark. 374:; Calle v. U. S. Ufe Ins. Co., 191 TJ. S. 288. No cancellation of policy for fraud in procurement after loss occurs. 9 C. J. 1173; Cable v. TJ. 8. Life Ins. Co., 191 IT. S. 288; Shandhon v. Illinois Life Ins. Co., 100 111. A281; Biermann v. Guaranty Mut. Life Ins. Co., (Iowa) 120 N. W. 963; Globe Mid. Life Ins. Co. v. Beals, 79 N. W. 202; Bes Moines L. Ins. Co. v. Seifer, 112 111. A. 277; Biggs v. Union Ufe Ins. Co., 129 Fed. 207. Policy construed most strongly .against insurer. 84 Ark. 431; 90 Ark. 88; 90 Ark. 256; 97 Ark. 522; 105 Ark. 519. Law providing trial hy jury part of policy, § 6156, O. & M. Dig.; 13 C. J. 560; 25 Ark. 625; 25 Ark. 261; 21 Ark. 85; 58 S, 994, 113 111. A. 140; 84 Neb. 422; 180 Ind. 335. False statement not alleged part of contract of insurance. Flake v. Hill, 130 Ark. 257; Hubbert v. ill. P. By. Co., 136 Ark. 18¡8. Agent taking application was fully informed.of insured’s previous ailments, and company bound by his knowledge. 108 Ark. 511; Walker v. III. Bankers’ Ufe, 140 Ark. 197.
   Smith, J.

On April 15,1920, the appellant insurance company issued and delivered to appellee :Smith, as beneficiary, a policy of insurance for one thousand dollars on the life of Smith’s wife. The application for the policy of insurance contained certain answers to questions which, by the recitals of the application, were declared to be material by the company in determining whether or not a policy would issue, and, among others, that the applicant had never suffered from any ailment or disease of the skin. The policy, when issued, contained an incontestable one-year clause reading as follows: “After this policy shall be in force for one full year from the date hereof, it shall be incontestable for any-cause except for nonpayment of premiums.”

The insured died on March 5, 1921, and on April 13, 1921, the company brought suit in the chancery court to cancel the policy on the ground that its issuance had been procured by the fraud of the insured, in that she had suffered from a disease of the skin, to-wit., pellagra, but had falsely and fraudulently denied that fact in her application.

It will be observed that the suit to cancel was brought two days before the expiration of the year after the issuance of the policy, but slightly more than a month after the death of the insured, as the suit on the policy was commenced June 30, 1921.

The chancery court transferred the suit to cancel to the circuit court, over the company’s objection, and it was there consolidated with the suit on the policy, to which action the company also objected and excepted.

At the trial of the cause conflicting testimony was offered as to whether Mrs. Smith had pellagra, and as to her answers made to the examining physician in regard thereto, but at the conclusion of all the testimony the court directed the jury to return a verdict for the beneficiary, on the ground that a year had expired before the suit thereon was brought. Judgment was rendered accordingly, and the company has appealed.

Instead of transferring the suit to cancel the policy to the circuit court, that suit should have been dismissed, for the reason that the death of the insured fixed the rights and liabilities of both the insurer and the insured'. Joyce on Insurance, § 1650b; American Employers’ Liability Ins. Co. v. Fordyce, 62 Ark. 562; Porter v. Mutual Life Ins. Co. of N. Y., 41 Atl. 970.

But, inasmuch as the insured died before the year had expired, the incontestable clause did not apply, and the fact that the suit was not brought until after the first anniversary of the policy is unimportant, for, as we have said, the rights and liabilities of the 'parties under the insurance contract had been fixed by the death of the insured.

The court should not therefore have directed a verdict, but should have submitted the question of the alleged breach of the warranty, the law of which question has been announced in many cases.

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


text:
    Wood v. State.
    Opinion delivered March 12, 1923.
    1. Indictment and information — duplicity—election between COUNTS. — While one may in separate counts be charged with a crime and with being accessory before the fact thereto, in which case no election by the State is necessary, the rule is different where separate counts charge one with committing a crime and with being an- accessory after the fact, in which case the State should be required to make an election between them.
    2. Criminal law — election between counts. — Where no testimony was offered in support of a count charging defendant with being an accessory after the fact, and the jury were instructed to consider only the question of his guilt of the crime charged in another count, no prejudice resulted from the court’s refusal to compel the State to elect between the counts, and a motion in arrest of judgment was properly overruled.
    3. Criminal law — evidence of similar offense. — In a prosecution for robbery, a police officer’s testimony as to defendant’s arrest on a charge of robbery occurring 5 months previously, also as to a conversation with defendant while under arrest, and as to a search of his room and automobile, in which a mask, pistol and sandbag belonging to him were found, was incompetent, though the court instructed the jury not to consider such testimony unless they found that such articles were possessed by defendant for the purpose of robbery and had something to do with the robbery about which the witness testified.
    4. Criminal law — indorsement of witness’ name on indictment, — Refusal to require the State to indorse the name of a witness on the indictment, as required by Crawford & Moses’ Dig., § 3010, is not error where it does not appear that he testified before the grand jury or introduced any issue of fact which took defendant by surprise.

      5. . Criminal law — hearsay—corroboration, op witness. — In a prosecution for robbery the prosecuting witness cannot be- corroborated by proof that after the robbery he told a police officer that he recognized defendant as one of the men who robbed him.
    6. Criminal law — instruction as to circumstantial evidence. — Where the State did not rely wholly on circumstantial evidence, an instruction as to the sufficiency of testimony to support a conviction on such evidence was properly refused.
    Appeal from Mississippi Circuit Court, Chiekasawba District; R. E. L. Johnson, Judge;
    reversed.

      M. P. Huddleston, for appellant.
    Demurrer readies defect of misjoinder. Sec. 3066, C. and M. Digest. Harris v. State, 140 Ark. 46, overruling Gramlich v. State, 135 Ark. 243; Cox v. State, 149 Ark. 387. Accessory -after fact separate offense. Gill v. State, 59 Ark. 442; 12 Cyc. 192. State v. Jones, 91 Ark. 5; Barrel v. State, 80 Am. Dec. 95. Evidence inadmissible which shows -accused has -committed a crime wholly independent -of one for which he is on -trial. 23 E. C. L. 1157-8, § 24; Johnson v. State, 152 Ark. 218, 1937 L. E. A. D. 383 note; 10 E. C. L. 939, 940; People v. Romano, 84 App. Div. 318, 17 N. Y. Crian. Eep. 385, 82 N. Y. Supp. 749. Not admissible to show identity of accused. Boyd v. United States, 142 U. S. 450; 35 L. ed. 1077; Lancaster v. State (24), 200 S. W. 167, 3 A. L. E. 1533, note. Evidence that burglars’ tools were found on accused when arrested not admissible, it not appearing they were used in commission of offense charged, nor of stolen property when. People v. San-some, 24 P-ac. (Cal.) 143; Williams v. State, 71 N. W. (Neb.) 729; State v. Sullivan, 17 A. L. E. (Idaho), 907. See also Miller v. State (Okla.), L. E. A. 1917-D', p. 383; People v. Molineaux, 62 L. E. A. 193; People v. Fitzsimmons, 128 N. Y. S. 996; Com. v. Coyne, 3 A. L. E. 1209 (Mass.), 117 N. E. 337; Williams v. U. S., .42 L. ed. 514. Witness incompetent where name not indorsed -as indictment. Sec. 3010, C. & M. Digest; State v. Johnson, 33 Ark. 174. Not corroborated by showing former statement. Testimony not sufficient to convict. State v. Campbell, 29 N. W. (Iowa) 604; People v. Fitzsimmons, 128 N. T. Supp. 996.

      J. S. Utley, Attorney General, and Elbert Godwin and Wm. T. Hammock, Assistants, for appellee.
    Indictment not void. Conceding two separate offenses charged misjoinder. Baker v. State, 4 Ark. 56; State v. Jourclan, 32 Ark. 203. Good on either count, standing -.alone. Crawford & Moses’ Digest, §§ 2410, 2310. State v. Jones, 91 Ark. 5. No error committed in overruling motion to quash. Demurrer' .and motion properly treated as motion to require election. Tnoe v. State, 77 Ark. 428. Testimony all directed to proof of first count, and no prejudice resulted, even if misjoinder, which there was not; the two offenses grew out of same transaction, and could be charged in separate counts of one indictment. Baker v. State, 4 Ark. 59; § 2313, Crawford & Moses’ Digest; Ince v. State, ’ll Ark. 426. Testimony of witnesses relative to previous arrest of defendant on similar charge, and certain wearing apparel, coat, hat, mask and sandbag found in his possession, properly limited by court’s instructions. Parker v. State, 136 Ark. 562; Nettle v. State, 144 Ark. 564; Blumenstiel v. State, 148 Ark. 421; Cain v. State, 149 Ark. -619; Casteel v. State, 152 Ark. 69; Johnson v. State, 152 Ark. 218. No error in allowing witness to testify, though name not indorsed on indictment, nor in instructions given, and the testimony is sufficient to sup-. port verdict.
   Smith, J.

Appellant was arraigned on an indictment containing two counts. The first count charged that he had robbed E. J. Mason. The second count charged that Jim Wise had robbed Mason, and that-defendant had concealed the crime and had harbored and protected the criminal, thereby becoming an accessory after the-fact.

There was a demurrer to the indictment, and a motion to require the. State to elect, both of which were overruled, and exceptions saved. The testimony was directed entirely to an effort to prove the allegations of the first count, and no testimony- was offered in support of the second count. At the conclusion of all the testimony, and upon the submission of tlie case to the jury, an instruction was given in which the jury was advised that the State elected to stand on the first count alone, and did not ask a conviction upon the second count. Defendant was found guilty on the first count, and his sentence fixed at five years in the penitentiary. He thereafter filed a motion in arrest of judgment, in which he again called into question the sufficiency of the indictment, because it contained the two counts.

These counts should not have been joined, and the court should, at the beginning of the trial, have compelled the State to elect, because the offenses charged are not the same, and there is no statute authorizing them to be joined. One may be charged with having committed a crime himsélf, and as being an accessory before the fact to its commission, in different counts of the same indictment, and no election in such cases will be required; but this is true because the crime charged is the same, and the counts merely allege different methods by which it was committed. Harper v. State, 151 Ark. 338; Gill v. State, 59 Ark. 423.

When one becomes an accessory after the fact, a second crime is committed. It is a crime which is committed by one who has full knowledge that a first crime has been committed, and who, with such knowledge, conceals it from the magistrate, or harbors and protects the person charged with, or found guilty of, the crime. Sec. 2310, C. & M. Digest; Joyce on Indictments, § 394.

But, inasmuch as no testimony was offered in support of the second count, and the jury was instructed to consider only the question of defendant’s guilt of the first count, no prejudice resulted, and the motion in arrest of judgment was properly overruled.

Defendant assigns as error the action of the- trial court in admitting, over his objection, the testimony of Charles Craig, chief of police of Jonesboro, as to an arrest of defendant on a charge of robbery occurring in April, 1922, five months previous to the robbery of Mason, and detailing a conversation he had with defendant while he had him under arrest. Craig testified that while he had defendant under arrest he searched his room, and found an old hat, doubled up in the pocket of a coat, which defendant admitted was his. He also found a mask in one of the pockets of the coat, and a pistol'under the pillow on the bed, and in the pocket of one of the doors of defendant’s automobile he- found a sandbag, but defendant denied knowing that the sandbag was in the car. Craig further testified that a sandbag was an instrument used by hold-up men in cases of robbery, the victim being struck with it and rendered unconscious without being killed. Craig exhibited to the jury the hat, mask and sandbag* referred to.

We think no testimony should have been admitted in reg’ard to the commission of the first robbery, as there was no relation whatever between it and the robbery of Mason; and the majority think, for the same reason, that testimony should not have been admitted in regard to the hat, mask and sandbag.

In 23 R. C. L., p. 1157, it is said: “On the trial of one indicted for robbery, as in the case of other criminal prosecutions, the general rule is that evidence is not admissible which shows, or tends to show, that the accused has committed a crime wholly independent of the offense for which he is on trial. Under this rule, therefore, evidence of another separate and distinct robbery, committed the preceding night, by the defendant u-pon another person, in the same neighborhood, in much the same way, is not admissible in evidence against one who is being* tried for robbing a pedestrian on the street in a city by pointing* a pistol at him. Such is not an exception to the.rule that evidence of matters other than those charged in the information are inadmissible. It is only when the testimony as to the separate offense will have some tendency to prove the offense charged in the information that it is admissible. It must therefore have' some logical connection with the offense charged.”

In the opixxioxx of the writer, the testimoxxy about fixxdixxg the mask axxd sandbag was competent, for the reasoxx that the instrumexxts mexitioxxed are those of crimixxals, used ixx the commission of crime, axxd proof of their possessioxx tended to show that defexxdant was equipped axxd prepared to commit the crime charged. It was a circumstaxxce of probative value on the question of idexxtity, ixxasxnuch as the defexxse offered was that defexxdaixt had xxot beexx sufficiently idexxtified as the robber, the robbers being masked at. the time the crime was committed, although there was no proof that a saxxdbag had beexx used in robbixxg Masoxi.

Ixx admitting the testimoxxy of Craig, the prosecutixxg attorxxey said he would ask the couxd to instruct the jury that it was to be eoxxsidered for xxo purpose unless the jury fouxxd that these articles were possessed by dcfexxdaxxt for the purpose of robbeiy, axxd uxxless they further fouxxd that they had somethixxg to do with the robbeiy at Jonesboro about which Craig had testified, and the court limited the testimony as requested. But, as thus limited, it was not rendered competent, for the consideration of the testimory involved a determination by the jury of the question whether defendant had anything to do with the robbery at Jonesboro, a circumstance which the State had no right to prove for any purpose.

The court permitted the State to introduce and examine Ed Carey, whose name was not indorsed on the indictment. We considered this question in the recent case of Cole v. State, 156 Ark. 9, and held that the court should, on the application of the accused, require the State to indorse the names of the witnesses on the indictment, or to furnish the accused a list thereof. In that case, as in this, there was xxo showing that the witness in question had testified before the grand jury, and we held that § 3010, C. & M. Digest (the statute requiring the names of witnesses examined before the grand jury tó be indorsed on the indictment) was directory, and in this case, as in that, no effort was made to show that the witness in question introduced any issue of fact which took the defendant by surprise. .

The court permitted Craig to testify that when Mason returned to Jonesboro, where he lived, Mason told him he recognized defendant, who also lived in Jonesboro, as one of the men who had robbed him. This was error. In the case of Rogers v. State, 88 Ark. 451, the syllabus reads as follows: “In a prosecution for robbery the prosecuting witness cannot be corroborated by proof that, two hours after the robbery, lie stated to a police officer that defendant committed the robbery, nor is such testimony admissible as part of res gestae.”

An instruction was asked on the subject of the sufficiency of testimony to support a conviction where the State relied wholly on circumstantial evidence to secure the conviction, but the court refused to give it, and an exception was saved. A sufficient reason for refusing to give this instruction was that the State did not rely wholly on circumstantial evidence. Nordin v. State, 143 Ark. 364.

For the errors indicated the judgment will be reversed and the cause remanded for a new trial.