author: McCulloch, C. J.

text:
    Brents v. State.
    Opinion delivered February 5, 1923.
    1. Homicide — sufficiency of evidence. — Evidence that accused and his brother conspired either to kill deceased or to compel him to leave town, and that the fatal shot was fired pursuant to the conspiracy, held sufficient to sustain a conviction of voluntary manslaughter.
    2. Homicide? — self-defense—instruction.—It was not error, in a prosecution for murder, to refuse an instruction that, if deceased first fired at defendant, that in itself would afford sufficient justification for defendant firing in return, regardless of all other circumstances.
    3. Criminal law — instructions.—'Defendant in a criminal case cannot complain that the charge given by the court was insufficient and that requested instructions were improperly refused unless the instructions requested by him were accurate.
    4. Criminal law — res gestae. — In a prosecution for murder, statements made by deceased immediately preceding the shooting that he “hated to be run off just like a dog,” and that “I am not doing anything or ain’t going to do anything if they let me alone,” were admissible as part of res gestae.

    5. Criminal law — evidence;—harmless error. — In a prosecution for murder, a witness for the State was asked by the prosecuting attorney: “How long after the examining trial was it that your house was burned down?” Objection to the question was sus-' tained. He was also asked whether he had not received a note to leave town, which he answered in the affirmative. Held that defendant was not prejudiced, in view of a charge directing the jury not to consider the questions or answers-
    6. Homicide — harmless error.- — -Where, in a prosecution for murder, a witness testified over defendant’s objection that -he and - deceased had served on a grand jury which had investigated charges that defendant had violated the liquor law, such testimony was not prejudicial error in view of the testimony of such witness -that no h-ard feelings had resulted between deceased and accused; the verdict having eliminated the question of malice.
    7. Witnesses — cross-examination.—Where, in a prosecution for murder, witnesses for the defense had testified that they had no hard feelings against’ deceased, it was not error to permit the State to -cross-examine them as to circumstances tending to show that there was cause for feeling against deceased; such testimony being admissible for -the purpose of testing the credibility of the witnesses.
    Appeal from Conway Circuit Court; A. B. Priddy, Judge;
    affirmed.

      W. P, Strait and Isgrig & Dillon, for appellant.

      J. S. Utley, Attorney General; Elbert Godwin and W. T. Hammock, Assistants, for appellee.
   McCulloch, C. J.

Appellant, John Brents, shot and killed one Leonard Hare in the town of Cleveland, in Conway County, on Saturday afternoon, June 24, 1922, and was indicted by the grand jury of that county for the crime of murder in the first degree. On the trial of the case the killing was admitted, but appellant claimed, and attempted to prove, that he acted in necessary -self-defense. The verdict of-the jury found appellant guilty of voluntary manslaughter, and -assessed his punishment at three years in the State Penitentiary. According to the testimony adduced by the State, trouble first arose between Hare and Marvin Brents, one of appellant’s brothers, and there was evidence tending to- show that appellant was in conspiracy with his brother to kill Hare, or compel him to leave town and stay away.

Hare and Marvin Brents met on the street in Cleveland, and Marvin ¡accused Hare of having interfered and prevented him from obtaining a school contract. Marvin struck Hare, and as the latter ran away Marvin drew his knife and started after Hare. The parties then separated without any further trouble at that time, and Hare went away in his car and returned in a short time with a rifle. Marvin also went away and returned with a gun, but both parties were disarmed by others, at least the rifles were taken away from them. Hare went into Frazier’s store, where Marvin and some of his intimate associates were, and shots were fired there, the proof tending to show that Hare had a pistol, and fired one or more of the shots, and that one of the shots hit Marvin. Appellant was not in the store at that time, but was on the outside. Hare ran out the back door of Frazier’s store, and as he ran across the street appellant, who was standing on the front porch of Frazier’s store, fired at Hare and killed him.

Some of the witnesses testified that during the time that Hare was in the store appellant took a position on the porch where he could command a view of both the front and rear exits from the store, and others testified that he walked up the street, but that as soon as the firing commenced lie ran back down to Frazier’s store and stood on the porch.

There is also a conflict in the testimony as to whether or not Hare had a pistol in his hand when he ran out of the store and across the street at the time appellant shot him. One or more witnesses to the encounter testified that Hare had a pistol in his hand, but that he did not fire at appellant nor make any demonstration. Others testified that Hare did not have a pistol at that time. Appellant himself testified that Hare bad a pistol in his hand, and fired at him before he fired the shot which killed Hare.

The testimony was abundantly sufficient to sustain ’the conviction of voluntary manslaughter; it was sufficient, if accepted in the strongest light against appellant, to have justified a conviction of murder in the first degree, for there was proof tending to show that appellant joined with his brother in a conspiracy either to kill Hare or to compel him to leave town, and that the shot was fired pursuant to the conspiracy.

It is conceded that the killing was intentional, and the verdict of the jury has eliminated all the elements of malice and premeditation by confining the findings to the degree of voluntary manslaughter. The court instructed the jury as to law concerning all the degrees of homicide, and there are no objections urged to the rulings of the court in regard to the instructions, except in refusing to give certain requested instruction of the appellant which related to the question of self-defense. We are of the opinion that the subject was fully and correctly covered by the court’s charge, and that there was no error in refusing to give those instructions on the 'subject which were requested by appellant.

It is especially urged that the court erred in refusing to give the following instruction on the subject of self-defense :

“4. You are instructed that if, at the time the defendant fired the shot which resulted in the death of the deceased, the deceased was in the act of firing, or had fired at defendant, or the defendant, in good faith, acting as a reasonable person, situated as he was, believed, and had reasons to believe, from the circumstances then surrounding him as he viewed them, that he was in imminent or immediate danger of receiving at the hands of the deceased some great bodily harm, or of losing his life, and, so believing, he fired the fatal shot, then such shooting would be justified under the law of self-defense; and if you find this to be true, or if you have a reasonable doubt relative thereto, then you should acquit the defendant.”

The instruction was erroneous in more than one respect, and was properly refused. In the first place, it stated the law to be that if deceased had first fired at appellant, that, in itself, would afford sufficient justification for appellant’s firing in return, regardless of all other circumstances. In the next place, the instruction was erroneous in failing to incorporate the idea of appellant himself being free from fault or carelessness. Even if the subject had not been fully covered by another instruction, appellant could not complain without having first requested an accurate instruction.

•We are of the opinion therefore that the case was submitted to the jury under instructions free from error, and that the court’s rulings on appellant’s requested instructions were correct.

There are numerous assignments of error with respect to admission of testimony.

J. H. Frazier, the owner of the store where the shooting occurred, was introduced as a witness by appellant, and he described that scene, and also told about, the rifle being taken from Hare. H© stated that he admonished Hare to go away and not have any trouble, and that Hare replied that he “hated to be run off just like a dog.” This testimony was admitted’ over appellant’s objection. There was likewise objection to the further statement of the witness that when the gun was taken away from Hare in Frazier’s store and he was told by one Holbrook, who took the gun, to “stay in there and behave"himself,” he said, “I am not doing anything or ain’t going to do anything if they let me alone.”

The first statement of Hare was immaterial, and it is clear that it could not have had any prejudicial effect. We are of the opinion, however, that these statements were part of the res gestae, and for that reason were admissible. They occurred after the first trouble between Hare and appellant’s brother. Marvin and almost immediately before the second encounter. They were a part of the second encounter, which occurred just before anpellant shot Hare on the outside of the store. The statements were close enough to the main incident to constitute a part thereof, and were, we think, admissible. 1 Byrd v. State, 69 Ark. 537; Childs v. State, 98 Ark. 430.

Dr. Stover was one of the most important witnesses introduced by the State, and he testified that he. saw the killing, and that deceased had a pistol in his hand, but did not fire at appellant nor make any hostile demonstration toward the latter. One of the attorneys for the prosecu-. tion asked the witness: “How long after the examining trial was it that your house was burned?” On objection being made to the question, the court stated that it- was not material. The witness did not answer the question, but the attorneys stated their respective contention with regard to 'this evidence, the prosecuting attorney insisting in his argument before the court that it was competent for him to show that witness’ house had been burned after he testified in the examining trial. The court ruled that the testimony was not admissible. The State’s attorney then asked the witness if he did not get a note to leave, and he replied that he had, whereupon objection was made, both as to the testimony and as to the statement of the prosecuting attorney concerning his reasons for insisting upon the admissibility of the evidence. The court directed the jury not to consider either the evidence or the statement of the prosecuting attorney. The rulings were all in favor of appellant, and were sufficiently emphatic to exclude the offered testimony and statement of the prosecuting attorney from consideration of the jury. We think there was no prejudice resulting from the incident.'

Oscar Holbrook was one of the important witnesses introduced by the State, who testified concerning circumstances attending the killing. The witness testified, in response to questions propounded by the State, that he and deceased had served recently on the ’grand jury which had investigated charges against appellant and his kinsmen for violations of the liquor laws. Objection was made to this line of examination, but the State was permitted to proceed for the purpose of establishing its theory that there was a conspiracy to do violence to deceased and Holbrook on account of their participation in the investigation by the grand jury. The witness was asked, after making’ the foregoing statement, whether his and deceased’s investigations upon the grand jury had resulted in bitterness and hard feeling between them and the members of the Brents family, and the witness answered that he could not say that there was any such feeling, and that he had seen no indications of it. In view of this answer of the witness, we cannot see that there -was any possible prejudice resulting from the admission 'of this testimony. Moreover, the prejudice, if any, has been removed by the verdict of the jury finding-appellant guilty only of manslaughter and thus eliminating all questions of premeditation and malice. The testimony, if it had any effect at all, only tended to show malice on the part of the accused.

Exceptions were saved to other rulings of the court in regard to the cross-examination by the State of witnesses concerning feeling aroused by Hare’s participation in the proceeding’s before the grand jury. These witnesses testified that they had no feeling towards Hare, but their statements tended to show that there was cause for feeling- against Hare, and the testimony was admissible for that purpose in order to affect the credibility of the witnesses. We think that, while these matters may not have been admissible as original testimony, it was competent to thus interrogate the witnesses themselves for the purpose of testing their credibility.

On the whole, we find no error in the record, and the judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Missouri Pacific Railroad Company v. Burnett.
    Opinion delivered February 5, 1923.
    1. Carriers — contract as to unloading live stock. — U. S. Comp. Stat., § 8651, requiring live stock to be unloaded for food or rest within a certain number of hours, operates as a restriction on the right of contract between a shipper and a carrier in an interstate shipment, and this restriction cannot be disregarded and contractual rights built on it, and a contract conflicting therewith is void, and there can be no recovery against a carrier therein.
    2. Carriers — agreement as to unloading live stock at destination. — An agreement of a carrier not to unload hogs in the public pens at destination does not violate U. S. Comp. Stat., § 8651, limiting the number of hours within which they may be carried without being unloaded for food or rest, as it was within the legal right of the carrier to perform an agreement not to unload at destination at any particular place or in any particular manner.
    3. Carriers — special damages — notice.—Where, a shipper of hogs explained to the carrier’s agent that he did not want the hogs unloaded in public pens at destination, because, if they were, he could not sell them for the price which the consignee had agreed to pay, this was sufficient to charge the carrier with notice of special damages which might arise, and to render it liable for violation of the agent’s agreement not to unload the hogs in public pens at destination.
    Appeal from Lonoke Circuit Court; George W. Clarh, Judge;
    affirmed.

      Thos. B. Pryor and Samp Jennings, for appellant.
    The court erred in refusing to give a peremptory instruction for- defendant. No agreement between the shipper 'and carrier relieves the carrier from compliance with'the statute. U. S. Comp. Statutes, 1918, §§ 8651 and 8653. See also 205 Fed. 337; 200 Fed. 597; 186 Fed. 541; 195 Fed. 241; 200 Fed. 406; 225 Fed. 676; 258 Fed. 289; 220 U. S. 94; 97 Ark. 82. The contract or bill of lading was binding. It could not be explained or varied by parol testimony. 8 Wall. 325; 19 L. ed. 455; 215 Fed. 886; 270 Fed. 426; 93 Ark. 537; 82 Ark. 353; 46 Ark. 236; 109 Ark. 537.

      W. E. Gregory, J. F. Eoltzendorjf and Trimble <& Trimble, for appellee.
    There was no fraud shown in procuring this special contract, and defendant was bound by its terms. 95 Ark. 150; 215 S. W. 596; 140 Ark. 231.
   McCulloch, C. J.

This is an action against a public carrier to recover damages alleged to have been sustained in the transportation of a carload of hogs. The plaintiff alleges that he shipped the hogs under a special contract of sale for a particular purpose and for a stipulated price largely in excess of the market price, and that, by reason of the act of the carrier in unloading the hogs at destination in pens where other hogs had been unloaded, the consignment was rejected by the consignee, and that loss was sustained thereby, the price being reduced to the market price. There were 147 of the hogs in the car, weighing an average of 111 pounds each, and plaintiff had a contract for the sale of the hogs at 9¼ cents per pound, the market price of hogs for commercial purposes being considerably less. . The aggregate value of the hogs, as per contract price, was $1,431.88, and the regular market price for ordinary purposes was $478.

On the trial of the cause the following state of facts was proved: Plaintiff was engaged in buying hog’s, and had on previous occasions sold what is termed “stocker” hogs to Black & Atchinson, of Kansas City, who operated a serum plant, and one of the requirements of the latter was that the hogs should not be unloaded at public yards or pens.

After securing the contract with Black & Atchinson, and after mailing purchases in the vicinity of Gurdon, the plaintiff applied to the railroad agent at Gurdon for terms of shipment, stating that he would not ship his hogs unless he could make an arrangement whereby unloading in transit could be obviated. The agent assured-plaintiff, so the latter testified, that such an arrangement could 'be made, and plaintiff gathered up the hogs and loaded them into the car, but when the bill of lading was made out there was nothing ‘in it about not unloading in transit. Plaintiff called the attention of the agent to this fact, and the agent stated that a notation would be made on the waybill, as it had no place in the bill of lading, and assured plaintiff that such a notation would be made for the instruction of the conductors and other trainmen. The agent informed plaintiff that it was necessary that he sign a waiver under the Federal -statute requiring live stock to be unloaded for food or rest within twenty-eight hours, whereupon plaintiff, signed the waiver, in accordance with the provisions of the statute permitting the time to be extended to thirty-six hours before unloading.

Plaintiff testified that he showed the shipping instructions to the agent, and told him that he would not be able to sell the hogs if they were unloaded in public stockyards or pens at Kansas City, which was the destination under the bill of lading.

According to the testimony adduced by the carrier, the shipment of a carload of live stock from Gurdon to Kansas City would be en route, under ordinary conditions, more than fifty hours. •

Defendant’s counsel objected to the introduction of the testimony about the agreement to put the notation on the waybill, on the ground that it was in conflict with the Federal statute requiring the unloading of live stock in transit.

There was no proof adduced tending to show whether or not the stock was unloaded prior to reaching its destination at Kansas City, but the proof shows that it was unloaded there, and that Black & Atchinson refused the consignment on that account, their contract with plaintiff to accept the consignment being dependent upon the stock not being unloaded in a public pen or at the stockyards. Mr. -Black testified that, under their method of doing business, they could not use hogs thus unloaded in public pens, for the reason that there was danger of exposure to disease.

There was a verdict for the plaintiff for the amount of damages named in the complaint, and the defendant has prosecuted an appeal to this court.

It is earnestly insisted that the court erred in the admission of testimony, and that, if the plaintiff be permitted to recover damages in the case, it will be, according to the undisputed evidence, upon an alleged agreement which is clearly in violation of the Federal statute. U. S. Comp. Slat. 1918, § 8651.

It must be conceded that, if the recovery ¡s-ought is based upon a contract which is in conflict with the Federal statute, the contract is void, and there can be no recovery. This principle has been recognized in one of our own decisions, though not expressly so decided. St. L. I. M. & S. Ry. Co. v. Davenport, 97 Ark. 82. See, also, Webster v. Union Pacific R. Co., 200 Fed. 597; B. & O. R. Co. v. United States, 220 U. S. 94. The statute operates as a restriction upon the right of contract between the shipper and the carrier, and this restriction cannot be disregarded and contractual rights built upon it. B. & O. R. Co. v. United States, supra. We think, however, that the right to recover is not based upon a contract in conflict with the statute, but is based upon the conduct of the carrier, which misled the shipper to his detriment. St. L. & S. F. R. Co. v. Vaughan, 88 Ark. 138; C. R. I. & P. Ry. Co. v. Butler, 132 Ark. 37; C. R. I. & P. Ry. Co. v. Stallings, 132 Ark. 446.

The plaintiff testified that the railroad agent told him that the shipment would go through to Kansas City without unloading, provided he would sign a release so that there would be no unloading within thirty-six hours. There is no proof that the plaintiff knew anything about the length of time it would take to complete the shipment through to Kansas City, and the conduct and statement of the agent necessarily constituted an assurance that there would he no occasion to unload before the shipment reached destination. Moreover, the proof does not show that there was any contract to disregard the requirement to unload within thirty-six hours, nor does it show whether or not the stock was unloaded before reaching Kansas City. The only proof as to unloading is that the hogs were unloaded in the public pens at the stockyards at Kansas City. Now, the agreement was that there should be no unloading at Kansas City, the destination, and this agreement constituted no violation of the statute, for it was within the legal right of the carrier to perform an agreement not to unload at destination, at any particular place or in any particular manner.

Plaintiff testified that he explained to the agent fully why he did not want the hogs unloaded in the pens at Kansas City, and he testified that he showed the agent the shipping instructions from the consignees.

The damages sought to be recovered in this case are special, but the carrier had notice of the circumstances upon which damages might arise, and is liable for violation of its duty. It constituted negligence on the part of the carrier to mislead the shipper to his detriment and to disregard the directions not to unload in the public pens at destination.

Our conclusion is therefore that there is no contract shown in violation of the statute, and that the plaintiff’s right to recover has been established by sufficient testimony:

The judgment is therefore affirmed.


text:
    Grand Lodge Ancient Order United Workmen v. Mode.
    Opinion delivered February 5, 1923.
    1. Insurance — suicide—evidence.—Evidence in an action on a fraternal benefit certificate held to sustain a finding that death resulted from suicide.
    2. Evidence — presumption.—There is a presumption against death by suicide.
    3. Insurance — death in delirium. — In an action on a fraternal benefit certificate reducing the amount payable in case of death by suicide, except in “delirium resulting from disease,” evidence held to show that deceased at the time he committed suicide was laboring under a delirium resulting from disease.
    Appeal from Faulkner Circuit Court; George W. Ciarle, Judge;
    affirmed.

      D. G. Beauchamp, for appellant.

      R. W. Robins, for appellee.
   McCulloch, C. J.

This is an action instituted against appellant, a fraternal benefit society, on a benefit certificate or policy of insurance, issued by appellant to Henry C. Mode, one of its members, the amount of the benefit being the sum of $1,000, payable on the death of the member to the appellees, three of his minor children, who sue by their guardian.

Henry C. Mode joined the society and received his benefit certificate on March 19, 1920, and came to his death on May 11, 1920, from a pistol shot wound which entered his right temple and went clear through his head.

The application for membership contained a stipulation, in accordance with the laws of the order, which reads as follows:

“I further agree that if, within two years after becoming a 'member, and the date of my certificate, my death shall occur by suicide, whether sane or insane, except in delirium resulting from disease, or while under treatment for insanity, then the only sum which shall be paid or which is payable to my beneficiaries named in my beneficiary certificate shall be the amount which I may have paid into the beneficiary fund of the order during the term of my membership. ’ ’

Liability on the part of the society is denied on the ground that Henry O. Mode came to his'death bv suicidal act which did not fall within anv of the exceptions stated above. In other words, the contention is that death resulted from suicide committed while not in delirium resulting from disease. On the other hand, the contention of appellees is that the evidence is sufficient to warrant the finding, in the first place, that death (lid not result from suicide, and that, even if it was suicide, the act was committed during “delirium resulting from disease.” It is conceded that the deceased was not under treatment for insanity, and that there had been no judicial declaration of insanity. There was a trial of the issues before a jury, resulting in a verdict in favor of appellees.

There is little, if any, conflict in the 'statements of the witnesses concerning the facts of the case, but there are conflicting contentions of the respective parties concerning the inferences which may be drawn -from the testimony. Appellees contend that the evidence warranted a finding that deceased did not take his own life, and that, if he did so, he was laboring under delirium resulting from disease. On the other hand, counsel for appellant contends that the undisputed evidence shows that deceased committed suicide, and that there was no evidence at all that he was laboring under delirium at the time.

Henry O. Mode and his wife resided in their own home at 1819 Louisiana Street, in the city of Little Rock, at the time his death occurred. Mode owned the property, and lived in the lower story, but rented the upper story to Mr. and Mrs. Chaney. About one o’clock on the day in question Mrs. Chaney was on her sleeping-porch, and heard two shots fired below. Other witnesses heard the shots, and when the house was entered Mrs. Mode was found dead in the doorway between the kitchen and the sleeping-porch, and Mode himself was found in a dying condition, lying on the bed on the sleeping-porch. Mrs. Mode was shot through the head, and Mode was, as before stated, shot through the temple. Mode had a .45 calibre army pistol in his hand when found, and died within a few minutes after his condition was discovered. The ‘pistol turned out to be one owned by Mr. Chaney, which was kept in a scabbard lying on top of a wardrobe trunk on the sleeping-porch upstairs. Mr. Chaney was not at home on the day in question, and did not testify as a witness in the case. Mrs. Chaney was a witness, and she identified the pistol as one belonging to her husband, and stated that she did not know how it came into the possession of Mode.

Mrs. Chaney testified that on the day in question she went up town for awhile, and on her return a little after noon she stopped in the rooms below for a few words with Mrs. Mode, the wife of deceased. She testified that before she left that morning Mrs. Mode stated, in a conversation with her, that Mr. Mode was angry, and the witness stated that when she returned she saw Mode sitting on a trunk on the sleeping-porch, and his appearance was such that it excited her fears, and that she went upstairs and locked herself inside the sleeping-porch. She said that Mode had a set, angry, or mean look, as she expressed it, on his face. She testified further that Mode was an automobile mechanic, but had not been at work for several days or longer. This witness testified that Mrs. Mode was ironing at the time with an electric iron, and, when the witness discovered the body, after the firing of the shots, the iron was found in the kitchen, on the board, still heated, and had burned through the cloth on which it rested.

Mrs. Chaney testified that, after the shots were fired, when she came out on the sleeping-porch, she found in front of her door a sealed envelope addressed to Mode’s brother at Conway, his former home; that she took the letter down stairs and' laid it on the railing, where menu hers of the police force, who came in a few minutes láter, found it and picked it up. Captain Pitcock of the police force testified that he ooened the envelope and found, a letter therein signed by H. C. Mode, and addressed to his brother at Conway. He read the letter, and he and another police officer who heard the letter read testified concerning its contents. Proof was made that the letter had been lost. Thev testified that, the letter snoke, in substance, of the writer preparing to commit some deed or leave for some place, and requested his brother to look after his children, and expressing the hope that they would meet in heaven. The witnesses also testified that there was an inside envelope, on which was written the words, “fragments of our trouble,” or “scraps of our trouble,” and that on tearing open this inner envelope it was found to contain writings torn to fragments and in such small pieces that the writing on the paper could not be deciphered.

The proof shows that the two shots were fired a few minutes apart, and there were no sounds of voices heard, though one of the witnesses testified that after the first shot was fired he heard a sound like a body falling on the floor. A bullet hole was found through the pillow and mattress on the bed on which Mode’s body was lying.

The shooting occurred, as 'before stated, in broad daylight, and the testimony of the various witnesses is conclusive of the fact that there were no other inmates in the house except Mode and his wife and Mrs. Chauev.

We are of the opinion that the proof is conclusive that the death of Mode resulted from his own act in firing a pistol shot through his head, immediately after having killed his wife.

There is, as we have often held, a presumption against suicide, 'but it is a rebuttable presumption, and we think that the presumption in this case has been entirely overcome by the undisputed proof. It is unnecessary to discuss in further detail the evidence in the case, but it would do violence to reason to «ay that, under the circumstances of this case, as proved, the death of Mode could have occurred in any other way except by his own act.

The further question arises whether or not there is enough testimony to warrant the conclusion that the act was committed by Mode while laboring under “delirium resulting from disease.”

There are many reasons for believing that the act was not prompted by a sane and balanced mind. There are no sufficient reasons, in the first place, shown for the tragic homicide and the suicide which immediately fob lowed. Little, if any,'motive is shown, even if the testimony as to Mrs. Mode’s statement to Mrs. Chaney, introduced by appellant, be held to be admissible. The man-' ner in which the man attempted to communicate with his brother and the fragments of the writing inclosed in the envelope afford strong circumstances tending to show that the man’s mind was unbalanced.

Insanity alone, however, is not sufficient to justify the suicide under the contract and to permit recovery on the policy. Whether sane or insane, the act must be done under delirium resulting from disease in order to justify recovery on account of death caused by suicidal act.

There is sufficient proof that deceased was suffering from the disease of diabetes. A physician at Conway, the former home of deceased, testified that he examined deceased about three weeks before the tragedy and found that he was suffering from diabetes. This physician also testified as an expert witness, and stated that the disease in question ordinarily affects the nervous, system and brain of the sufferer, that the subject becomes emaciated, loses appetite, and develops many complications; that it causes nervousness, loss of sleep, and affects -the eyesight. He stated that sometimes patients suffering from that disease will lapse into coma and frequently into delirium — that they have hallucinations. In other words, the witness stated that the disease frequently causes delirium and hallucinations.

According to this testimony, if the jury found that the deceased was laboring under delirium or some hallucination at the time he committed the suicidal act, it was the result of the disease described by the physician.

We must accept the word “delirium,” as used in the policy or benefit certificate, in its ordinary sense. The word is defined as follows: “A morbid condition, often the result of fever, in which mental action is abnormally rapid, incoherent, and characterized by illusions, hallucinations, or erratic fancies; wandering of the mind,” Standard Dictionary. In another dictionary it is defined as follows: “A more or less, temporary state of mental disturbance, which manifests itself by mental irritation and. confusion, more or less transitory, delusions and hallucinations, disordered, senseless speech, and motor unrest; mental aberration; a roving or wandering of the mind. It occurs in insanity, but usually results from a fever or some other disease, from intoxication, or from injury.” Webster.

• There was evidence sufficient to justify the conclusion that the deceased was laboring under a delirium resulting from disease at the time he committed the suicidal act. His own conduct at the time and immediately theretofore manifests the elements of delirium, illusions or hallucinations, which, according to the testimony of the physician, resulted from his physical disease. The testimony of Mrs. Chaney is not against the theory of delirium on the part of the deceased, but, on the contrary, it supports that theory. She testified that when she last saw Mr. Mode, as she stárted upstairs, he was sitting on a trunk and was “staring at Mrs. Mode;” that he had “a rigid expression,” and “looked mean, too.” The jury would have been justified in believing that Mrs. Chaney misinterpreted the emotions of deceased as manifested by the expression on his countenance, but it justified the conclusion that those emotions were unusual and manifested a state of mind not normal.

There is other evidence in the case tending to show that Mode had been a sick man for several weeks, and we are of the opinion that the inference was justified that he was in a state of delirium, within the meaning of the policy, at the time he committed the homicidal and suicidal acts.

The only question urged on this appeal is that of the lesral insufficiency of the evidence, and we are of the opinion that the evidence was sufficient to justify the finding of fact upon which the contract imposes liability. The judgment is therefore affirmed,


author: Wood, J.

text:
    Wilson v. Parkinson.
    Opinion delivered February 5, 1923.
    1. Equity — ancillary suit to enforce former, decree. — A complaint in equity against the Commissioner of State Lands, Highways and Improvements alleging that, in spite of a decree rendered in a suit by the State against plaintiff which quieted plaintiff’s title to certain lands against the State, the commissioner threatened to issue, sell and give deeds to the lands embraced in the former decree, and that any deeds so issued would becloud plaintiff’s title, with prayer that he be restrained from issuing deeds to any lands embraced in the former decree, held to state a cause of action within the jurisdiction of a court of equity to entertain a suit to enforce a decree previously rendered in order that complete justice may be done.
    2. Equity — jurisdiction of ancillary suit. — Where a decree is incomplete and ineffective for want of provision of any means for its execution, a bill in equity will lie to supply the imperfection so as to render the decree effective; and for the purpose of determining whether there is ground for equitable interposition the court may look to the real nature and character of the decree as it may appear in the light of surrounding circumstances.
    3. States — res judicata. — Although the State may not be sued, yet if a suit be instituted by the State, the judgment therein rendered against the State will have the same effect as res judicata against it and all its officers and agencies as would a judgment against a private person in an action by or against him.
    4. States — suit against land commissioner. — Where the rights of plaintiff and the State were adjudicated in a former suit by the State ag'ainst plaintiff, and, to render the decree therein effective, plaintiff sues the Commissioner of State Lands, Highways and Improvements because of his failure to act in conformity with such decree, the suit is not one against the State within the prohibition of the Constitution against suing the State.
    5. Venue — recovery of lands in several counties — Under Crawford & Moses’ Dig., § 1164, providing that actions for the recovery of real property must be brought in the county in which the subject of the action or some part thereof is situated, held that the statute applies to suits in equity to quiet title as well as to action of law, and that an ancillary action to enforce a former decree involving the title to lands situated in several counties may be brought in any county in which a part of the lands is situated.

      Appeal from Drew Chancery Court; A. G. Hammock, Chancellor,
    affirmed.

      J. S. Utley, Attorney General, Elbert Godwin and Wm. T. Hammock, Assistants, for appellant.
    An ancillary action is applicable to proceedings growing out of the original proceedings in the same court and dependent on such proceedings, and instituted for' the purpose of enforcing a judgment or rendering complete justice among all parties in interest. 106 Fed. 170; Words & Phrases, vol. 1, p. 384. The question of jurisdiction, therefore, goes back to the jurisdiction of the court in the original suit.
    1. Did the chancery .court have jurisdiction to adjudicate title to land not located within the chancery district? Also did the 'chancery court sitting in one county have jurisdiction to adjudicate the title to lands in another county, though in the same chancery district? See Crawford & Moses’ Digest, § 1164; 27 Ark. 482; 55 Ark. 442; 70 Ark. 346; 72 Ark. 376; 133 Ark. 250; 134 Ark. 337; 42 Ark. 442.
    2. Jurisdiction could not be conferred, if originally lacking, by consenting to the amendment of the original complaint so as to embrace lands in another county in the- same chancery district, and lands in another county in a different chancery district. 33 Ark. 31; 34 Ark. 399. See also, 5 Ark. 409; 29 Ark. 47; 90 Ark. 195; C. & M. §§ 3945, 3946, 3992-3; Id. §§ 4038-9; and 4048. We think that the venue statute should be limited in its application at least to the district constituting the court’s venue.

      Moore, Smith, Moore & Trieber, for appellee.
    1. The jurisdiction of a court of equity to give effect, upon ancillary complaint, to a decree of the same court as -the exigencies of the situation may require, is beyond question. 10 R. C. L. “Equity,” $ 106; 21 Corpus Juris, “Equity,” § 867 et seq.

    2. The principle of res judicata applies to the State and its officials. 15 R. O. L., Judgments, § 504,

      3. The ancillary proceeding is not a suit against the State. Relief is asked against the Commissioner of State Lands, Highways and Improvements, who is bound by the original decree, and his nets in disregard thereof are not acts of the State, but an abuse of the authority conferred on him by statute. 25 R. C. L., par. 50; 245 U. S. 541.
    4. The court in the original suit had jurisdiction of all the lands, although they were not parts of the same tract. C. & M. Digest, § 1164; 133 Ark. 250, 255. And it had jurisdiction of all the lands, although they were not all embraced within the same chancery district'. The limitation suggested by appellant is unnecessary, since, under the statute, C. & M. Digest, § 6283, a certified copy of a decree affecting title to lands must be recorded in each county in which the lands lie. Moreover, the adoption of the suggested construction would require to be read into the venue statute words which are not there. Venue does not, depend on the legal or equitable nature of the remedy sought, but solely on whether the action is in rem or purely in personam-, if in rem, it is a local action, and if in personam, it is a transitory action, regardless of whether the action is brought at law or in equity. 42 Ark. 422, 439; 55 Ark. 442, 445; Id. 454; 133 Ark. 250, 257.
   Wood, J.

In 1917 a suit was instituted by the State of Arkansas in the Drew Chancery Court against Mrs. Kate C. Parkinson. The object of the suit was to cancel the alleged title of Mrs. Parkinson to numerous tracts of land which she acquired from the State through mesne conveyances. The lands were situated in Drew, Ashley and Union counties. The chancery court entered a decree dismissing the complaint of the State for want of equity, and quieting the title to the lands in Mrs. Parkinson. No appeal was prosecuted from that decree. Some of the lands embraced in the decree Mrs. Parkinson still owns. Some she has sold, executing warranty deeds therefor. The records of the Commissioner of State Lands, Highways and Improvements do not in any manner refer to the decree of the Drew Chancery Court above mentioned. This action was instituted by Mrs. Parkinson in the Drew Chancery Court in November, 1922, against the Commissioner of State Lands, Highways and Improvements. She attached as an exhibit to, and made a part of, her complaint, the decree of the Drew Chancery Court; also certificates of the records of Drew, Ashley and Union counties, respectively, showing that the decree had been recorded in those counties, and also the order of the Drew Chancery Court showing that the appeal prayed therefrom had been dismissed. Mrs Parkinson alleged, among other things, that in spite of the decree and the proceedings had thereunder, as shown by the exhibit attached to the complaint, the Commissioner of State Lands, Highways and Improvements threatened to issue deeds to lands embraced in the decree mentioned, to those who might apply to him for the purchase of the same from, the State. Mrs. Parkinson alleged that the Commissioner was in receipt of applications, accompanied by the purchase price, from persons who,do not claim by, through, or under her, for the purchase of various parcels of land from the State as swamp lands. She alleged that any deeds which he might issue would cloud her title and the title of those to whom she might convey. She prayed that the Commissioner be required to show the decree of the Drew Chancery Court above referred to on the records of his office, and that he be enjoined from issuing deeds to any of the lands embraced in that-decree.

Herbert R. Wilson, Commissioner of State Lands, Highways and Improvements, was made defendant in the action. He, through the Attorney General, entered his appearance and demurred to the complaint, setting up, among other things, that the complaint failed to state a cause of action; that the court was without jurisdiction of the subject-matter. The cause was heard unon the demurrer, and, the defendant refusing to plead further, the court entered a decree perpetually enjoining the defendant from issuing deeds or other instruments of conveyance affecting the lands embraced in the decree' of the Drew Chancery Court entered January 4, 1917, and directing the Commissioner to execute to the plaintiff, Mrs. Parkinson, a deed or other instrument of conveyance in the name of the State of Arkansas, to each and all the tracts and parcels of land to which her title was quieted by the decree of January 4, 1917, and to enter upon the records of his -office a memorandum of the disposition made of such lands by the decree of the Drew Chancery Court of January 4, 1917, to the end that the records of his office might show that the State of Arkansas does not have or claim any right, title or interest in and to any of said tracts of land embraced in that decree. From the decree is this appeal.

This appeal is from the decree of the Drew Chancery Court between the same parties in interest and pertaining to the same subject-matter that was embraced in the original decree of the Drew Chancery Court of January 4, 1917. By this action the appellee seeks to enforce that decree, by enjoining the appellant from selling any of the lands involved in that decree, and by entering upon the records in his office a memorandum or notation showing the effect of the decree of the Drew Chancery Court as to the lands that were the subject-matter of that decree. The allegations of the complaint bring it well within the original and undoubted powers of a- court of chancery to entertain an action ancillary to the original proceeding in the same, or a different, court, and dependent upon such proceeding, and which has for its purpose the enforcement of a judgment or -decree previously rendered, in order that complete justice may be done to the parties in interest, as the exigencies of the case may require. 10 R. C. L. p. 357, § 10»; Coltrane v. Templeton, 106 Fed. 370-74, and cases there cited. 21 C. J., § 867.

“Where a decree is incomplete and ineffective for want of provision of any means for its execution, a bill in equity will lie to supply the imperfection so as to render the decree effective.- For the purpose of determining whether there is ground for equitable interposition, the court may look to the real nature and character of the decree as it may appear in the light of surrounding circumstances.” Gay v. Parpart, 106 U. S. 679-699. The chancery court unquestionably had jurisdiction of the subject-matter - of this action, and it had jurisdiction of the appellant, who was the Commissioner of State Lands, Highways and Improvements. The original action in which the decree of the Drew Chancery Court of January 4, 1917, was rendered, quieting title to the lands embraced and described therein in the appellee, was brought by the State, through her Attorney General and her special counsel, for that purpose. In 15 R. C. L., § 504, p. 1029, it is said: “Although neither the United States nor a State can be sued without its consent, yet if an action is instituted by the State or the United States, or against either, in a case where the law permits it to be sued, the judgment therein rendered will have the same effect as res judicata against it and all its-officers and agencies as would a judgment in an action against a private person in an action brought by or against him.”

The present ancillary action cannot be classed as a suit against the State. The rights of the State were adjudicated in the original chancery action. The decree in that action is now sought to be rendered effective by the present action because of the failure of one of the officers of the State to do certain things in order that the 'beneficiary of the decree in the original action may have that decree completely enforced so as to give her the relief to which she is entitled under it. Should the Commissioner of State Lands execute deeds to lands owned 'by the appellee, and whose title to which was quieted by the original decree, he would be performing an unauthorized and illegal act. The complaint alleges that he threatens, and will do so, because the effect of the original decree is not reflected by the records of his office; that, so far as the records of his office are concerned, title to the lands appears yet to be in the State, notwithstanding the decree; that, should he execute deeds to these lands, it would $:oud title of the appellee. The alleged threatened acts of the Commissioner of State Lands, if done by him, would be in contravention of any authority lodged in him by virtue of his office, and the present action is therefore one against him to prevent him from doing an illegal or unauthorized act, and to require him to make the necessary memorandum or notations of record to preserve the rights of the appellee secured to her by the original decree, and to make those rights effective.

As the title of the State has already been adjudicated, its Commissioner of State Lands, Highways and Improvements, by this action, can and should be required to do the things necessary to give the appellee the complete relief which she seeks and to which she is entitled under the original decree. As said in Johnson v. Lankford, 245 U. S. 541, “surety an officer of a State may be delinquent without involving the State in delinquency, indeed, may injure the State by delinquency as well as some resident of the State, and be amenable to both.” See also 25 R. C. L. § 50, p. 414. In this action no relief is sought against the State. It is not charged that the State owes to the appellee any duty or that there is any liability on the part of the State growing out of any obligation to the appellee. The suit is not against the State.

In the original action in the Drew Chancery Court that court had jurisdiction of all the lands mentioned and described in the complaint and the decree. Section 1164 of Crawford & Moses’ Digest provides as follows: “Actions for the following causes must be brought in the county in which the subject of the action, or some part thereof, is situated: First: For the recovery of real property, or of an estate or interest therein. Second: For the partition of real property. Third: For the sale of real property under a mortgage,, lien or other incumbrance or charge. Fourth: For an injury to real property.”

The cause of action, as shown by the allegations of the complaint, is single and entire. It affects all the lands embraced in the original decree in the same manner, although these lands were situated in different counties, and some of them not within the territorial boundaries of the chancery district where the action was instituted. Since the lands situated in Drew County constituted a part'of the subject of the action, the action instituted in that county drew to it, under the statute, jurisdiction over the lands situated in other counties. Under our decisions there is no distinction as to venue between the jurisdiction of courts of law and chancery. The jurisdiction of either cannot be made to depend upon the territorial boundaries of the district of which the particular court may be a part. So far as venue is concerned under the statute, it is the same whether the action be brought in the circuit court or in the chancery court. Cox v. Railroad Company, 55 Ark. 454.

The allegations of the complaint and the exhibits thereto show that the original action was brought in the chancery court of Drew County, where a part of the lands was situated. As between the State and the appellee, all of the lands embraced in the action, including those in Ashley and Union counties, as well as those in Drew were similarly affected by the decree, and the present action, which is ancillary to that, likewise involves and affects all of the lands in the same way. See Harris v. Smith, 133 Ark. 250-255. The subject of the action is the enforcement of the decree of the Drew Chancery Court. That decree was recorded in each of the several counties where the lands were situated, under the provisions of § 6283 of C. & M. Digest. As the subject-matter of this action involves all the lands embraced in the original action, and decree in the Drew Chancery Court in precisely the same manner, it is in the nature of a proceeding in rem operating directly upon the estate or title to the lands involved; and therefore a local action could have been brought in any county in which a part of the lands were situated. Jones-McDowell & Co. v. Fletcher, 42 Ark. 422-439 ; McLaughlin v. McCrory, 55 Ark. 442-445; Harris v. Smith, supra.

As we have shown, the action, having been ¡brought in the Drew Chancery Court, where a part of the lands were situated, drew to it and gave that court jurisdiction over all the lands similarly affected, although situated in different counties, that were described in the complaint and embraced in the decree of the Drew Chancery Court of January 4, 1917.

The decree is in all things correct, and it is therefore affirmed.


text:
    Kefauver v. Oakley.
    Opinion delivered February 5, 1923.
    Sales — breach op contract. — A contract for the sale of the seller’s entire apple crop, although severable in that the apples were to be delivered in car lots at so much per hundred, and were to be paid for as they were received by the buyer, was entire in the sense that if the buyer complied with its terms as to payment he could then have compelled the seller to deliver to him the remainder of the crop; but where the seller refused to pay for the apples as delivered, he violated the contract and was not entitled to delivery of the remainder.
    Appeal from Benton Chancery Court; Ben F. Mc-Mahan, Chancellor;
    affirmed.

      Sullins & Ivie, for appellant.
    . The contract was entire, although delivery of all the. apples was- not to be made at one-time. 115 Tenn. 610; 9 L. R. A. (N. S.) 979; 106 Ark. .310; 160 Calif.'324; 121 N. Y. 288. The contract did not state when payxnents should he made, and the refusal of appellee to deliver more apples because those first delivered had not been paid for constituted a breach of the contract by appellee. See 93 Ark. 478; 88 Ark. 491; 188 Ark. 422; 56 Ark. 320. Under an entire contract, failure to deliver all the goods purchased precludes recovery for that delivered. 21 N. Y. 397; 52 N. O. 290, 75 Am. Dec. 463; 243 Pa. 313. Where the contract is entire and no time stipulated for payment, it is to be made only after complete performance. 136 Ga. 693; 103 Atl. 417; 67 Pa. 182; 100 Am. Dec. 560; 49 N. Y. 552.

      John W. Nance and Vol T. Lindsey, for appellee.
    When the price to be paid is clearly and distinctly apportioned to different parts of what is to be performed, although the whole is in its nature single and entire, the contract is severable. 88 Ark. 496; 67 Ark. 158; 2 Parsons Cont. 577; 100 Pac. 236; 13 N. Y. Supp. 552; 104 Mich. 242. A contract will be construed most favorably against the party who writes it. 112 Ark. 1; 90 Ark. 88; 73 Ark. 338.
   Wood, J.

This is an action brought by the appellee against the appellant to recover the sum of $409.83, which the appellee alleged the appellant was due her on the following contract: “This confirms sale to W. E. Kefauver of my entire crop of Ben Davis and Gano apples in bulk, knots and rots out, delivered to Rogers, at $1.90 per cwt. (Signed) W. E. Kefauver. S. M. Oakley.” Appellee delivered to the appellant, under the contract, at various times, apples the total amount of which was 21,570 pounds. Appellant, after demand, refused to pay for the apples thus delivered.

The appellant answered, denying the material allegations of the complaint. By way of cross-complaint he alleged that he purchased of the appellee her entire crqp of apples for the year 1919, consisting of Ben Davis and Gano, as evidenced by the contract set up in the complaint; that the appellee delivered to the appellant several barrels of apples, which were accepted by the appellant and for which, appellant made payment to be .applied on the purchase price; that the apples delivered to the appellant by the appellee were inferior in quality, consisting principally of windfalls and drops; that, after delivering these faulty apples under the contract,, appellee wholly failed to carry out her contract with the appellant, by refusing to deliver to the appellant the remainder of her crop, which consisted of the best quality of apples, and which appellant believed would have amounted to 100,000 pounds, and for which appellant would have received seventy cents per hundred profit if the appellee had complied with her contract. Appellant further alleged that , he had incurred certain damages and expenses in a litigation between himself and the appellee which he had been compelled to institute on account of the breach of the contract by the appellee. The appellant alleged that the appellee, at the time of entering into the contract with the appellant, only intended to deliver to the appellant the inferior grade of apples from her orchard, and did not intend to deliver to appellant choice apples; that, by falsely representing that she would deliver to him the entire crop, she had induced the appellant to enter into the contract and to receive the inferior apples. The appellant prayed for a special master to state an account between himself and the appellee, and that the cause be transferred to equity, and that he have judgment for his damages and costs. The cause was tranferred to the chancery court.

The appellee testified to facts which tended to sustain the allegations of her complaint. It was agreed that she had delivered to appellant 21,570 pounds of apples which, at $1.90 per cwt., would amount to the sum for which she prayed judgment; that she had made demand upon the appellant three different times for the amount, and he refused to pay the same. On cross-examination she stated that, after the appellant refused to pay her, she sold what was left of her crop to another for the sum of $1,500. Before she sold the apples the appellant had paid her for the Jonathans that she had delivered to him early in the season in the snm of $180.14. This sale was a separate deal before the contract in suit was entered into. Each time the appellee made demand on appellant for the amount due, the appellant stated that he did not intend to pay for them until he got them all hauled. Appellant sent word to the appellee that he wanted to buy her apples. She went to his store on September 30th, and he told her that he was offering fifteen, cents more than any other person was paying. After appellee had sold her apples to the appellant, she ascertained on the same day that other parties were paying more. Men at the car offered her $2.25 per hundred. Appellee could have sold to them, but did not because she had offered to sell to the appellant, and, she says, “I stayed with it. ’

The testimony of the appellant was to the effect that he entered into the contract with the appellee as set up in the complaint; that the contract provided that the apples were to be delivered in bulk, and that the appellee asked the appellant to let her deliver some in barrels, and he told her she could deliver them in any way she preferred; that the contract specified so much per hundred in bulk. Appellant thought appellee could get more by barrels. The appellee did not comply with her contract to deliver the entire crop-for the year 1919. Appellant stated that the apples appellee brought in were under-sized, wormy and inferior. He took thje apples to keep her satisfied so she would deliver the apples under the contract. He received apples "from her that he would not have received from any one else. When the appellee demanded pay for the apples she had already delivered to the appellant, he told her that he had heard that she was trying to sell the apples for more money, aiid stated to her that if she would promise, in the'presence of the four or five men who were there, that she would deliver to appellant the balance of the apples under the contract, he would pay her in full. Appellee objected to that, and therefore appellant felt justified in withholding payment for the apples appellee had already delivered to him. Appellant further stated that lie did not cancel the contract when he found that the appellee was delivering to him inferior apples, because he knew that she had better apples, and thought that she would certainly bring in better apples than she had brought in; otherwise he would have canceled his contract in the first place. Appellant testified that his total loss, by reason of the failure of the appellee to deliver all the apples she had agreed to deliver under the contract, amounted to the sum of $522.20.

The above are substantially the facts upon which the trial court rendered a decree in favor of the appellee against the appellant for the sum of $409.83, with interest from October 28,1919. From that decree is this appeal.

In Harris Lumber Co. v. Wheeler Lumber Co., 88 Ark. 491-496, we held: “Where the price to be paid is clearly and distinctly apportioned to different parts of what is to be performed, although the whole is in its nature single and entire, the contract is severable. (Citing cases). * * * The contract in this case was entire in the sense that, if appellee had complied with its terms as to payment, it could then have compelled appellant to ship it the balance of the lumber, or else have responded in damages for its failure to do so. But here the uncontroverted proof shows that appellee was guilty of the first breach of the contract.” The doctrine of the above case is peculiarly applicable to the facts of this record. The contract here under review was severable in the sense that the apples were to be delivered in car lots at so much per hundred, and were to be paid for as they were received by the appellant, but the contract was entire in the sense that if the appellant had complied with its terms as to payment, he could then have compelled the appellee to deliver to him the remainder of the crop. But the appellant was guilty of the first breach in refusing to pay for the apples as they were delivered. The testimony warranted the court in finding that the appellee had not breached her contract at the time the appellant refused to pay for the apples which had already been delivered to him. On the other hand, the appellant breached the contract by refusing to pay for the apples that had been already delivered by the appellee, until she had delivered her entire crop. This the appellant had no right to do.

The decree is correct. It is therefore affirmed.


author: Hart, J.

text:
    Ottinger v. School District No. 25.
    Opinion delivered February 5, 1923.
    1. Schools and school districts — discharge of- teacher — justification. — It was no justification for discharging a teacher that he permitted the schoolhouse to become dirty where his uncontradicted testimony shows that it became dirty and littered with trash when the inhabitants of the district held box suppers and other entertainments in the house at night without his knowledge or consent, and that he always cleaned it as soon as possible thereafter.
    2. Schools and school districts — discharge of teacher — justification. — The fact that a teacher chewed tobacco and spit the juice through the screen windows of the school did not justify his discharge, especially where he had been employed by the school hoard to teach two previous terms and his personal habits were well known.
    3. Schools and school districts — discharge of teacher — justification. — Conduct of a teacher under a previous contract of employment is not ground for his discharge.
    4. Schools and school districts — wrongful discharge of teacher — damages—A teacher wrongfully discharged was entitled to recover as damages his salary for the unexpired term of his employment where he was unable to secure another school during that time.
    Appeal from Jackson Circuit Court; Bene H. Coleman, Judge;'
    reversed.

      E. F. Duncan and H. P. Cleveland, for appellant.
    The court should have instructed the jury as to any evidence that tended to prove a breach of his contract, which occurred under a previous contract. 1 Greenleaf on Evidence, p. 85. Evidence of a similar crime committed at some other time than that alleged does not prove the crime alleged. 7 Ark. 470 ; 7 Ark. 474; 39 Ark. 340. Proof of bad conduct cannot be proved by-specific acts. 67 Ark. 112. School board could not discharge for cause without notice and a hearing*. 57 Ark. 237; 68 Ark. 526; 27 Ark. 61; 81 Ark. 194; 14 Col. App. 311; 59 Pac. 385; 45 Ark. 124; 89 Ark. 258; 95 Tenn. 532; 32 S. W. 631; 150 Pa. St. 78; 24 Atl. 348; 238 S. W. 9; 170 S. W. 561. Defendant districts discharged the plaintiff. 194 S. W. 32; 78 Ark. 336; 79 Ark. 220; 68 Ark. 226; 51 Mich. 539. If the contract was invalid in the making, it was ratified. 81 Ark. 143. The court should have instructed the jury on the question of notice. 82 Ark. 179; 84 Ark. 415; 87 Ark. 607; 84 Ark. 4.

      Fred M. Pickens, for appellee.
   Hart, J.

A. E. Ottinger sued School District No. 25 of Jackson County, Ark., to recover $250 alleged to be due him for a ¡breach of contrast to teach school. The directors of the school district denied that they had committed a breach of the contract sued on.

It appears from the record that the school directors of School District No. 25 of Jackson County, Ark., entered into a written contract with A. E. Ottinger to teash a common school in said district for the term of seven months, commencing on the 5th day of July, 1920, and agreed to pay him therefor the sum of $125 for each school month. After Ottinger had taught the school for five months, the directors discharged him and refused to let him teach the remaining two months. Ottinger asked the directors upon what grounds they discharged him, and they refused to tell him. They told him that if he brought suit for the balance alleged to be due him, they would give their reasons for his discharge in defending the suit.

Ottinger was unable to secure another school for the remaining two months of his contract, and sued the district to recover his salary for two months.

The jury returned a verdict in favor of the defendant school district, 'and the plaintiff, Ottinger, has duly prosecuted an appeal to this court.

The main reliance made by the plaintiff for a reversal of the judgment is that the undisputed evidence shows that he was discharged without cause, and that he was entitled to a directed verdict in his favor.

The law applicable to cases of this sort was well stated by Judge Hemingway in School District v. Maury, 53 Ark., 471. In discussing a contract made by a school teacher with directors to teach a school, the learned justice said:

“If the defect arises from the failure of the teacher to carry out his undertakings, the keeping of the school in the way that the law contemplates demands that he be required to comply with his contract. This contract necessarily implies that he is competent to teach properly, and that he will conduct himself in a moral and skilful manner in discharging his undertakings. If he cannot or will not do either, he violates the contract, and its termination comes through his breach. We do not mean to say that every act of immorality would be a breach of the contract to justify its termination; but it would be such whenever, from the character or notoriety of the act, it impaired the services of the teacher in properly instructing or advancing the pupils. A teacher might properly instruct, yet his character for morality be so notoriously bad that he would lose the respect of his pupils and fail to advance them. He would not then be a competent teacher, though there were no defects in his'learning or facility to impart it.”

The undisputed evidence shows a valid contract to' teach the school for seven months, and that the plaintiff was discharged by the directors after he had taught five months. The directors seek to' justify their act in discharging the plaintiff on the grounds that he permitted the schoolhouse to become dirty, and also that he would chew tobacco during school hours and spit through the screen windows.

With regard to the first ground, the plaintiff testified that the inhabitants of the district would have box-suppers and other entertainments at night in the schoolhouse without his knowledge or consent, and that the schoolhouse would in this way become dirty and littered up with scraps of paper and boxes. He stated further that he always cleaned the schoolhouse as soon as possible after finding it in this condition. His testimony in this respect is uncoiitradicted.

He admitted that he chewed tobacco, but denied chewing it during school hours, or that he spit through the screen windows. Conceding that he did spit tobacco juice through the screen windows on the several occasions testified to by some of the pupils, we do not think that •his conduct in this respect was sufficient ground for his discharge. He had been employed by the school district to teach two schools prior to the execution of the contract in question, and his personal habits were well known. Besides, we do not think that this conduct would justify his discharge in the application of the rule above announced.. It might be a good reason for not employing him in the first instance, but it would not be a sufficient ground for his discharge after he had been employed.

Some other testimony was admitted as to remarks made by him while teaching his first school in the district. We do not deem it necessary to set out these remarks, for the reason they would not be grounds for the discharge of the plaintiff under the contract sued on. Matters which occurred under a previous contract would not be grounds for the avoidance of a subsequent contract.

It follows that, under the undisputed evidence as disclosed by the record, there should have been a judgment in favor of the plaintiff against the defendant for the sum of $250, his salary under the contract for two months. He was discharged the latter part of January, 1921, and had two more months to teach under his contract. This would have made his contract terminate the latter part of March, 1921, and the balance of his salary would have been due at that time. Hence the clerk is directed to enter judgment here against the district in his favor for the sum of $250, with interest thereon at the rate of 6 per cent, per annum from'April 1, 1921, until paid.

It is so ordered.


author: Hart, J.,

text:
    Moreland v. Youngblood.
    Opinion delivered February 5, 1923.
    1. Judgment- — decree on constructive service — vacation.—. Where a defendant who has been constructively served seeks a new trial under Crawford & Moses’ Dig., § 6266, he cannot have the judgment or decree vacated on motion, but it remains until the case is retried, -to be then confirmed, modified or set aside.
    2. Judgment — constructive service — new trial. — On application by defendant constructively summoned to set aside the decree, a meritorious defense must be shown by him.
    Appeal from Carroll Chancery Court, Eastern District; Ben F. McMahan, Chancellor;
    affirmed.
    STATEMENT OF FACTS.
    This is an application by Ella Moreland, a nonresident defendant, under § 6266 of -Crawford & Moses’ Digest, to have a decree foreclosing a mortgage on real estate set aside and to have the action retried.
    It appears from the record that W. H. Youngblood brought a suit in equity against Harrison Larkins, Ella Moreland, and others, to foreclose a mortgage on certain real estate in the Eastern District of Carroll County, Art. W. H. Larkins owned the land in his lifetime, and had executed a mortgage on it to W. H. Youngblood to secure him in the sum of $100, which he owed him. The mortgage was executed by W. H. Larkins and his wife, Amanda Larkins. W. H. Larkins died without having paid the mortgage debt, and W. H. Youngblood brought this suit against Harrison Larkins and others to foreclose said mortgage. He obtained personal service on Harrison Larkins and constructive service on Ella More-land and the other defendants as nonresidents of the State. It was alleged that Harrison Larkins, Ella More-land andothers were the children and sole heirs at law of W. H. Larkins, who had died intestate. The chancellor found the amount due under the mortgage, and a foreclosure decree was duly entered of record. The land was duly sold under the foreclosure decree by a commissioner in chancery appointed for that purpose. J. J. Erwin was the -highest bidder, and the land was struck off' and sold to him. The commissioner duly made a report of his proceedings, and the chancery court approved and confirmed his report, and ordered him to. make a deed to the land to the purchasers.
    Ella Moreland, one of the nonresident defendants, who had been constructively summoned in said foreclosure proceedings, made an application, under the statute, after the rendition of the decree, to have the action retried. She introduced evidence tending to show that she was-the only child and sole heir at law of W. H. Larkins, who had died intestate. For the reasons given in the opinion it will not be necessary to set -ou-t this testimony.
    Upon hearing her application the court found that no showing was made to set aside the decree,_and the petition of Ella Moreland was denied and dismissed 'for want of equity. She has duly prosecuted an appeal to this court.

      Johnson & Smpson, for appellant.
    Appellant filed motion and answer within two years of the original decree, and was entitled to have the case retried. 64 Ark. 126. '

      Festus O. Butt, for appellee.
   Hart, J.,

(after stating the facts). The practice in this State is that, where a defendant who has been constructively served seeks a new trial under the statute, he cannot have the judgment or decree vacated on the motion. The judgment or decree remains until the case is retried, to be then confirmed, modified, or set aside. Gleason v. Boone, 123 Ark. 523.

In the present case Ella Moreland showed no ground for setting aside the mortgage foreclosure proceedings. The proceedings themselves were regular in all respects. There was a valid mortgage and a subsisting debt due, which it was given to secure.

The court found the amount due under the mortgage, and ordered a sale of the land for the satisfaction of the debt secured by the mortgage. A commissioner was appointed to make the sale, and the land was duly sold by him. The sale was made in due time, 'and was also reported to the chancery court and 'approved and confirmed by the court. The court then directed the commissioner to execute a deed to the purchaser to the land, which was done. No showing was made by Ella Moreland to have these procedings set aside. She does not show that the foreclosure proceedings were erroneous in any respect. So far as the record discloses, -the mortgage was a valid one, and was executed by the father of Ella Moreland in his lifetime. He owned the land and owed the debt for which he mortgaged the land. Therefore the court was right in denying the- petition of Ella Moreland and dismissing it for want of equity. It did not make any difference whatever whether she was the sole heir of W. H. Larkins, deceased, or not. She would- have just as much right in the one case as the other to have the case retried; but in'either event she must show some meritorious defense to the action, and this she has failed to do.

It follows that the decree will be affirmed.


text:
    Parker v. Stephens.
    Opinion delivered February 5, 1923.
    1. Contracts — damages for breach — evidence—In an action by •a subcontractor to recover damages for breach of contract for hauling stone for the contractors of a road improvement district, evidence held to sustain a verdict for the plaintiff.
    2. Contractors — conolusiveness of engineer’s estimates.— Where, under a contract for hauling stone, it was the plaintiff’s duty to roll as well as haul the stone, in his action for stone hauled and for damages for breach of the contract, he was not concluded as to the amount hauled by him by monthly settlements based on the engineer’s estimates, if -they included only the stone that was rolled, and .not the stone that was hauled but not rolled.
    3. Appeal and error — modification of judgment. — Where a subcontractor of a road improvement district agreed to return certain trucks in good condition, in his action against the contractors for hauling stone and for breach of the contract, where the evidence was not conclusive that an amount paid by defendants for repairs of the trucks was necessary to place them in as good condition as when they were received, and it cannot be shown from the amount claimed by plaintiff and the amount of the verdict that the' whole of the repair bill was not allowed by the jury, the judgment will not be reduced in the amount of the repair bill.
    4. Appeal and ' error- — conclusiveness of verdict. — A verdict must be upheld on appeal if there is any evidence of a substantial character to uphold it.
    5. Contracts — breach—premature action. — Although a contract provided that a subcontractor should not be paid a retained percentage until the contract was completed, an action by him before its completion was not premature where defendants prevented him from performing the contract.
    Appeal from Logan Circuit Court, Northern District; James Cochran, Judge;
    affirmed.
    STATEMENT OF PACTS.
    John B. Stephens sued R. C. Parker and C. R. Lowery to recover a judgment in the sum of $9,i837.02 for an alleg’ed breach of contract for hauling stone by him for the defendants, to be used by them in constructing and improving a highway in Logan County, Ark. The defendants denied any breach of the contract on their part, and asked for a judgment against the plaintiff in the sum of $1,739.33 for damages sustained by them by reason of an alleged breach of the contract on his part.
    It appears from the record that the defendants, it. C. Parker and C. R. Lowery, made a contract with the commissioners of a road improvement district to construct and improve a road between Paris and Roseville, in Logan County, Ark. On Oct. 1, 1920, R. C. Parker and C. R. Lowery entered into a written contract with John B. Stephens whereby the latter was to do the work of hauling all the crushed stone to be used in constructing the Paris and Roseville Highway for the price of $1.50 per cubic yard, from any quarry selected by said contractors. Said contractors also -agreed to- pay Stephens at the end of each.month after the work began 75 per cent, of the total amount earned during the preceding thirty days, and to pay the remaining 25 per cent, at the conclusion -of the entire contract. Said 'contractors -also agreed to let to Stephens the hauling of all the sand required, at $2.50 per cubic yard, from any location within five miles of the place to be delivered. Said Stephens agreed to furnish trucks to remove the crushed stone from the station to location, and also to • roll the stone when spread on the roadbed, as required by the road engineer. Stephens also agreed to return to the county, in good condition, the government trucks which should be furnished to him with which to haul the crushed stone.
    John B. Stephens was a witness for himself. The written contract contained no provision for the measurement of the crushed stone which should be hauled by Stephens. According to his testimony, the crushed stone was to be hauled in government trucks which were furnished by the county judge for that purpose. Stephens was substituted for another person to whom had been let the contract for hauling the crushed stone by Parker and Lowery. It was understood by the parties to this suit that the amount of crushed stone hauled by Stephens under the contract should he ascertained by measuring the bed of the truck in which the stone was hauled. There were two trucks that had indentically the same size bed, and they measured to hold a fraction over two yards each. The other truck used in hauling the stone held three yards, according to measurement.
    According to the testimony of Stephens, he hauled 3,733 cubic yards of rock under the contract. Mr. Ellis and Mr. Kirkpatrick hauled for him, respectively, 684 and 1,564 yards. This made a total of 5,981 yards hauled under the contract. At $1.50 per cubic yard, the amount due would be $8,971.50. Stephens was paid $5,691.30, and this left the defendants owing him a balance of,something over $3,000. The defendants stopped Stephens from fulfilling his contract, and owed him over $1,100 damages on that account. Stephens in every way complied with the contract on his part.
    The above is a brief summary of the testimony of Stephens himself, and it is corroborated by that of other witnesses. In every particular the other parties whom he hired to haul stone for him corroborated his testimony as to the amount of stone hauled by them for Stephens, and also as to the amount hauled by Stephens himself. On the other hand, the evidence for the defendants tended to show that the amount of crushed stone hauled by Stephens under his contract was to be determined by the estimates furnished by the engineer of the road district. All the witnesses for the defendants said that a more accurate measurement of the stone hauled could be made after the stone was laid on the roadbed than by measuring the bed of the trucks in which the stone was hauled.
    The secretary of the road district was a witness for the defendants, and made a detailed statement of the monthly estimates of the crushed stone hauled by Stephens under the contract, and the various payments made thereunder. Stephens accepted these estimates and settlements as the amount due him under the contract. Other evidence will be stated or referred to in the opinion.
    The jury returned a verdict for t'he plaintiff in the sum of $2,783.87, and from the judgment rendered the defendants have duly prosecuted an appeal to this court.

      R. J. White and J. H. Carmichael, for appellants.
    1. Appellee, by his acceptance of the estimates and settlements, and his failure to show any other manner of settlement, is concluded'by the figures of the engineer. 'When tli ere is nothing to do but make additions of figures, and the verdict is contrary to the results so obtained, the verdict is not supported by the evidence. 79 Ark. 530.
    2. Under the contract appellant should have been allowed credit for the sum necessary to place the trucks in proper repair.
    3. The suit was prematurely brought. The road was not completed and the contract fulfilled, and the retained percentages were not due. 148 Ark. 192. See also- 90 Ark. 236.
    4. Appellee first breached the contract by not doing the work promptly, by not staying diligently on the job, and by not fulfilling contract in reference to rolling the rock. The party to a contract who commits the first substantial breach cannot maintain a suit upon the contract. 98 Ark. 160; 60 C. C. A. 623.

      Thos. H. Rogers and W. B. Rhyne, for appellee.
    Appellant’s contentions 1 and 2 are not supported by the record. They concerned disputed facts, and the verdict of the jury is conclusive. The question of the suit being premature, even if sustained by the facts, cannot be considered, for the matter was not urged in the trial court and cannot be presented here for the first time. 76 Ark. 48; 68 Ark. 71. The evidence shows that the contract was ended by consent of all parties.
   Hart, J.,

(after stating the facts). 'The main reliance of the defendants for a reversal of the judgment is that the verdict is not supported 'by the evidence. The evidence of the plaintiff as to the amount of crushed stone hauled under the contract is based upon the measurement of the beds of the -trucks in which the crushed stone was hauled. A measurement of the beds of two of the trucks shows that t-hey held a fraction over two yards each, and the other, three yards of crushed stone at a load.

The witnesses for the plaintiff testified that the beds of the trucks were well filled at each load.

It is contended by the defendants, however, that this method of measuring the amount of crushed stone hauled is not accurate. . They introduced evidence tending to show that a more correct method of ascertaining the crushed stone was to measure it after it had been spread on the roadbed. Hence they contend that the measurement made by the engineer of the road district in this way should govern. This may be true, but their contention is not conclusive. The -evidence for the plaintiff shows that the measurement of the truck bed was a correct and convenient way of ascertaining how much crushed stone had been hauled under the contract. The testimony of the plaintiff also showed th-at this method had been used by the party with whom -the first contract to haul rock had been made, and that, when lie was substituted for that party, it was understood that the amount of crushed stone hauled under the contract should be ascertained by measuring the truck beds and filling them up as each load was hauled. Hence the jury had a right to use this method in ascertaining the amount of stone hauled under the contract.

It is also contended by the defendants that the estimates made by the engineer of the road district were more accurate as to the number of yards of stone hauled. This may be true, but it cannot be said that the evidence of the plaintiff is not' of a 'substantial character, and therefore -cannot support- the verdict. He testifies in positive and definite terms as to the amount of stone hauled by himself and by two other parties for him. His testimony in this respect is corroborated by the two persons who hauled stone for him. The jury had a right to believe the testimony of these witnesses and to base its finding upon their testimony.

Again, it is insisted by the defendants that the plaintiff accepted the estimates made by the engineer of the road district, and, having received payment based upon the percentage he was to receive under the contract, he is concluded by the settlements, and the district is only liable to him for the retained percentage of 25 per cent. We do not think the testimony of the 'defendants on this point is uncontradicted. Under the contract it was the duty of the plaintiff to roll the stone after it was placed on the surface of the road. According to his testimony, the defendants would not pay him for stone which had been hauled by him and which had not been rolled at the time the monthly payments were made. In this way he accounts for the shortage in payment, and says that the defendants would not pay him for' stone which had been hauled and spread on the road but which had not been rolled at the time the settlement was made. Hence it cannot be said that', under the undisputed testimony, he is bound by the settlements made with the defendants as shown by the report introduced in evidence by the defendants.

Again, it is insisted by the defendants that the undisputed evidence shows that the defendants paid $800 to repair the government trucks borrowed from the county, and that it was the duty of the plaintiff to make these repairs. Hence they insist that the judgment should be reduced by this amount in any event.

There are two answers to this contention of the defendants. While it is true that the uncontradicted evidence shows that the defendants paid $800 to repair the trucks, still the uncontradicted evidence does not show that these repairs were necessary to place the trucks in as good condition as they were when they were received from the county. According to the testimony of the plaintiff, all that was necessary to place the trucks in as good condition as they were when received from the county would be to put in a missing differential in two of the trucks. This would not cost anything near the sum of $800. In the second, place, we cannot know but that the jury might have allowed the whole of the $800 in arriving at its verdict.

Besides the testimony -of the plaintiff, abstracted above, he testified that the defendants owed him $2,456.93, for the 25 per cent, retained by them under the contract. His testimony as to this amount is unequivocal, and he says that it is based on the actual .yardage of crushed stone hauled by him. In the same connection he testified that the defendants owed him an additional sum of $1,137 for stone hauled and for which they had made no settle‘ment with him. He also claims an additional amount for damages because they stopped him from completing hiscontraot, and thereby prevented him from earning a profit of something over $1,000 for stone which he was not allowed to haul.

But it is insisted by the defendants that the testimony of the plaintiff is inconsistent, and in some respects contradictory, and that this is shown by the fact that the verdict of the jury is not based on the estimates made by the plaintiff, but is in the nature of a compromise between the claim by the plaintiff and that made by the defendants.

The contention of the defendants in this respect cannot operate to reverse the judgment. If we were trying the case ele novo, it would be proper to consider it in order to determine whether the finding of facts made by the chancellor was against the weight of the evidence. This is an appeal from a judgment at law, however, and we can only review it for errors made by the circuit court in trying the case. We cannot undertake to determine whether or not the verdict of the jury is in all respects consistent. Under the settled practice in this testimony in this respect is contradicted by that of the State, the verdict of a jury must be upheld on appeal if there is any evidence of a substantial character to support it. We are not required, and indeed we are' not permitted, to inquire into the consistency of the verdict of the jury. The jury has the exclusive right to weigh the testimony and to accept all or any portion of it which it believes to be true.

While, according to the plaintiff’s. testimony, if accepted by the jury in its entirety, he. was entitled to a larger verdict, yet his testimony is of a substantive character and is sufficient to support the verdict for a less amount.

Finally, it is insisted' by the defendants that the suit was prematurely brought, and for that reason the judgment should be reversed. Their contention is that the record does not show that the road was completed at the” time the suit was brought, and that, under the contract, the defendants were not liable for the retained percentage until the road was completed.

This would he true if the defendants had allowed the plaintiff to complete his contract of- hauling. According to their testimony, the plaintiff breached the contract, but according to his testimony the defendants breached the contract and prevented him from completing it, and thus the contract was ended in so far as he was concerned. The plaintiff testified that he was not given the right to haul the sand as provided in the contract, -and, while his defendants, yet the verdict-of the jury in his favor is conclusive upon us. Hence it can not be said that the suit was prematurely brought.

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