author: Hart, J., Smith, J.,

text:
    Emerson v. Boyles.
    Opinion delivered March 1, 1926.
    Criminal law—control op court over judgment.—Where the accused in a felony case pleaded guilty and was sentenced to a term in the penitentiary, and had served a part of his term, the trial court had no authority at the same term of court to set aside the sentence and direct the case to he continued, as the effect would be to put the accused in jeopardy twice for the same offense.
    Certiorari to Pulaski Circuit Court, Third Division; Marvin Harris, Judge;
    judgment quashed.
    STATEMENT OE EACTS.
    H. A. Emerson, E. D. Chipman and R. L. Deal, members of the State Board of Charities and Corrections, and as such in charge of the Arkansas State Penitentiary and those confined therein, filed a petition for a writ of certiorari against J. M. Boyles to quash an order of the Pulaski Circuit Court discharging him .from custody, and commanding his immediate release from the Arkansas State Penitentiary.
    J. M. Boyles filed a petition in the Pulaski Circuit Court praying for a writ of habeas corpus to the members of the State Board of Chariúes and Corrections on the allegation that he was unlawfully imprisoned in the State Penitentiary.
    It appears from the record that on the 22d day of July, 1925, at a regular term of the Perry Circuit Court, J. M. Boyles entered his plea of guilty to the crime of manufacturing mash, and his punishment was fixed by the court at one year in the State Penitentiary. It was therefore ordered by the court that the defendant be transported to the State Penitentiary, and confined at hard labor, for the period of one year. J. M. Boyles was transported to the State Penitentiary, and began serving his sentence.
    On the 17th day of December, 1925, being an adjourned day of the same term of the court at which J. M. Boyles entered his plea of guilty and was sentexiced to the term of one year in the penitentiary, the circuit court of Perry County entered of record a judgment setting aside the sentence, which reads as follows:
    “On this day comes on for hearing this cause, and the court finds that the judgment entered in the cause herein should not have been entered, and it is accordingly ordered and adjudged that the judgment rendered in the above entitled cause, at the present term of this court, be and the same is hereby set aside and held for naught, and the commitment heretofore issued is recalled. The keeper of the Arkansas State Penitentiary is hereby ordered to release the said defendant, J. M. Boyles. The court deeming it best for the defendant, and not harmful to society, the case is hereby continued on condition, first, that the defendant pay the cost of this court within thirty (30) days from this date, and second, that his behavior shall hereafter be good, pending which time he shall be released on his own recognizance. It is further ordered that a copy of this order be served on the keeper of the State Penitentiary.”
    The members of the Board of Charities and Corrections, who had J. M. Boyles in their custody, in the State Penitentiary, at the time the foregoing order was made, refused to obey it, and on the 22d day of December, 1925, J. M. Boyles filed his petition for a writ of habeas corpus against the members of the Board of Charities and 'Corrections in the Pulaski Circuit Court. Upon the hearing on December 24, 1925, it was adjudged that the petitioner, J. M. Boyles, be discharged from the custody of the members of the State Board of Charities and Corrections, and that he be immediately released from the State Penitentiary.
    As above stated, the object of the writ of certiorari in this court by the Board of Charities and Corrections is to quash this order.

      E. W. Applegate, Attorney General, and John L. Carter, Assistant, for appellant.

      Frauenthal $ Johnson and Owens & Ehrman, for appellee.
   Hart, J.,

(after stating the facts). The first inquiry-presented for our consideration is the nature and extent of the power of the circuit court over its own judgments in vacating them during the same term at which they are rendered. The circuit court, in ordering the release of Boyles, proceeded on the theory that it is competent for the court to modify a judgment, in either a civil or criminal case, during the term at which the'judgment was rendered. It is a rule of universal application that, so long as a judgment or sentence of a court remains unexecuted or is not put in operation, it is, in contemplation of law, in the breast of the presiding judge of the court, and is subject to revision and alteration during- the same term at which it is rendered.

In the case at bar the circuit court set aside its judgment at the same term at which it was rendered, hut it was after the defendant had served a substantial part of the sentence. J. M. Boyles entered a plea of guilty to the crime of unlawfully making- mash,' and was sentenced to serve a year in the State Penitentiary on the 22d day of July, 1925. He was, in due time, transported to the penitentiary, and was serving oar his sentence when the court made the order setting it aside, on the 17th day of December, 1925. The authorities on the power of the court to set aside a sentence in a felony case after it has been partly executed at the same term are in -direct conflict.

In Bassett v. United States, 9 Wall. (H. S.) 38, in an opinion delivered by Mr. Justice Miller it was held that it is competent for a court, for good cause, to set aside, at the same term at which it was rendered, a judgment of conviction on confession, though the defendant had entered upon the imprisonment ordered by the sentence. To the same effect see State v. Butler (Md.), 18 Atl. 1105, and In the Matter of John, Brittain, 93 N. C. 587.

In Ex parte Lange, 18 Wall. (U. S.) 163, in an opinion delivered by the same learned judge, it was held that, the judgment of the court having been executed, so as to be a full satisfaction of one of the alternative penalties of the law, the power of the court as to that offense is at an end. In discussing the limit to the power of the court in such cases, it was said:

“The judgment of the court to this effect being rendered and carried into execution before the expiration of the term, can the judge vacate that sentence and substitute fine or imprisonment, and cause the latter sentence also to he executed? Or, if the judgment of the court is that the convict be imprisoned -for four months, and he enters immediately upon the period of punishment, can the court, after it has been fully completed, because it is still in session of the same term, vacate that judgment and render another, for three or six months’ imprisonment, or for a fine? Not only the gross injustice of such a proceeding, but the inexpediency of placing such a power in the hands of any tribunal, is manifest.
“If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offense. And, though there have been nice questions in the application of this rule, to cases in which the act charged was such as to come within the definition of more than one statutory offense, or to bring the party within the jurisdiction of more than one court, there has never been any doubt of its entire and complete protection of the party, when a second punishment is proposed in the same court, on the same facts, for the same statutory offense.”

If the court has no power to set aside a judgment which has been partly executed, and increase the punishment at the same term during which the original .judgment was rendered, it is as difficult to see upon what principle it would have the power to set aside the judgment and mitigate the punishment. When a judgment is reversed or set aside, it is just as if it had never been rendered, and the defendant in the case will be placed in jeopardy just the same, whether his punishment is increased or diminished, at the second trial. To illustrate : If a person should be indicted and tried for murder in the first degree, and found guilty of manslaughter, and his punishment fixed at the lowest term for that crime, there would he an implied acquittal of the higher degree of homicide, and he could not he tried for murder upon securing a new trial in the circuit court, or a reversal of the judgment in the Supreme Court. But, upon being retried, he could be again convicted of manslaughter, and his punishment fixed at the highest term for that offense. The reason is that, when he secures a new trial or a reversal of the judgment, as the case may be, the original judgment is set aside, and is in effect as if it had never been rendered. Hence no plea of former .jeopardy could avail him anything, so far as the trial for manslaughter is concerned. iWe think the better reasoning, as well as the trend of authority, is that where the defendant has executed or entered upon the execution of a valid sentence, thé court cannot, even during the term at which the sentence was rendered, set it aside and render a new sentence. 16 C. J. 1314.

In 12 Cyc. 783, it is said: “At any time during the term the court has power to reconsider the judgment, and to revise and correct it by mitigating and even by increasing its severity, where the original sentence has not been executed or put into operation; but, where the prisoner has paid his fine or his imprisonment has begun, the court has no power to recall him to revoke his former sentence and impose one which inflicts a greater punishment.”

And in 2 Bishop’s New Criminal Procedure (2d ed. § 1298), it is said: “The power of the court to alter its docket entries and records during the term wherein they are made includes the right within such time to revise, correct, and change its sentences, however formally pronounced, if nothing has been done under them. But steps taken under a sentence, for example, a substantial part execution thereof, will cut off the right to alter it, even during the term. And with the expiration of the term the power expires.” 'See also Wharton’s Criminal Procedure, 10th ed. § 1853; 8 R. C. L. 245; 25 Enc. of Law, 2d ed. 315, and 19 Enc. of Pleading and Practice, 493.

In State v. Cannon, 11 Ore. 312, Pac. 191, it was said that where a sentence has been passed upon the defendant, and the judgment has g'one into effect by the commitment of the defendant under it, the court has done all that it has the legal power to do under the proceedings in that case.

In Bradford v. People, 22 Col. 157, 43 Pac. 1013, it was said that it is well established that, where the defendant has entered upon the execution of a valid sentence, such a sentence cannot be set aside and a new sentence entered.

In re Jones, 53 N. W. 468, the ¡Supreme Court of Nebraska said that the power of a court to revise or change a judgment in a civil case is at an end after the same is in process of execution. It was likewise said that, while a district court has ample authority to correct a judgment in a criminal case at the term of court at which it was rendered, or a subsequent term, to make the same conform to the one actually pronounced, it has no jurisdiction to vacate a judgment in a criminal case after the same has g’one into effect by the commitment of the defendant under it, and substitute for it another sentence at the same term of the court.

In People v. Meservey, 42 N. W. 1133, the Supreme Court of Michigan said, in discussing a case where the original sentence had gone, into effect, that the circuit court had no power at that time to vacate the sentence, because the authority over the prisoners had passed out of its hands by its own order.

In Grisham v. State, 19 Tex. Ct. of Appeals, 504, the court said that in criminal cases the power of courts over their judgments during the term at which they are rendered does no't extend to cases where punishment has already been inflicted, in whole or in part, and that conviction, followed by an endurance of punishment, will bar a future prosecution for the same offense. See also Com. v. Weymouth, 2 Allen (Mass.), 144, 79 Am. Dec. 776; Brown v. Rice, 57 Me. 55, 2 Am. Reps. 11; Com. v. Foster, 122 Mass. 317, 23 Am. Reps. 326; State v. Crook, 115 N. C. 760; and State v. Meyer, 86 Kan. 793, 122 Pac. 101, 40 L. R. A. (N. S.) 90.

In United States v. Vayson, 27 Philippine Reps. 447, the court held: “Where a court, in passing sentence, has acted under a misapprehension of the facts necessary and proper to be known in fixing the penalty, it may, in the exercise of sound judicial discretion, and in the furtherance of justice, ex mero motu, before the judgment has become final, and before the original sentence has gone into operation, revise and increase or diminish such sentence within'the limits authorized by law.”

This holding is a recognition of the rule, well established, that, where the defendant has entered upon the execution of a valid sentence, the court loses jurisdiction over the case.

Reasoning by analogy, it may be said that the case is not unlike one where an appeal is taken to the Supreme Court at the same term during which the judgment is rendered in the lower court.

In Robinson v. Arkansas Loan & Trust Co., 72 Ark. 475, it was held that, when an appeal is granted and an authenticated copy of the record is filed in this court, the suit is thereby removed to the Supreme 'Court. When the transcript is filed, the jurisdiction of the Supreme Court is complete, and the lower court loses jurisdiction except to correct its judgment to make it-speak the truth, in aid of the jurisdiction of the appellate court. The same rule has been held applicable to criminal cases. Freeman v. State, 158 Ark. 262.

Thus it will be seen that, while the general- power of the court over its judgments, both in civil and criminal cases, during the term in which they are first rendered is undoubted, still there are well known exceptions to the general rule. If the trial court loses jurisdiction over the case when the statutory requirements for an appeal are complied with, and a transcript of the record is filed with the clerk of this court, it would seem that for a similar reason the trial court would lose jurisdiction of. the case when it had issued its commitment of the defendant to the State Penitentiary, and the defendant had been transported there, and was serving his sentence.

Reference has been made to the case of Williams v. State, 125 Ark. 287, and Davis v. State, 169 Ark. 932; but we do not consider that either of these cases has any direct bearing upon the decision of the case at bar. In the Williams case, the defendant was serving a term in the State Penitentiary for a felony, and, under the statute, was brought into court to testify in another case, and the court attempted to punish him for contempt by confinement in the county jail. It was held that the circuit court had no authority to set aside the judgment under which Williams was serving a sentence in the penitentiary, and confine him in the county jail for contempt. In the Davis case it was expressly held that the circuit court had no inherent power to suspend, indefinitely, the execution of a sentence against one found guilty of crime, nor did it have any such power under the provisions of the act of 1923, authorizing circuit judges to postpone.the pronouncement of final sentence, under certain conditions. The question of the power of the court to set aside a sentence which had been executed in part, was not determined or even considered.

It has been suggested that the act of 1923 just referred to, conferred upon the court the power to set aside the judgment and postpone the pronouncement of a new sentence in the case at bar. This makes it necessary for us to pass upon the constitutionality of this statute and to determine its application to the question under consideration. The constitutionality of the statute was, by implication, upheld in the Davis case, and also in Ex parte United States, 242 U. S. 27.

In a case-note to 26 A. L. R. 400’, it is said that, although the opposite view obtains in a few jurisdictions, by the weight of authority a statute is not unconstitutional because it confers upon the court the power to postpone the pronouncement of sentence indefinitely, in the discretion of the court, and many decisions from courts of last resort of the several States are cited in support of the text. In this connection, it may he stated that the cases cited sustain the constitutionality of such acts, and expressly hold that the power thus conferred upon the circuit court does not encroach on the constitutional powers of the executive to grant reprieves and pardons. We do not think, however, that the statute has any bearing on the main question. Section 1 provides that whenever, in criminal trials, in the circuit court, a plea of guilty shall have been accepted, or a verdict of guilty shall have been rendered, the judge trying the case shall have authority,. if he shall deem it best for the defendant and not harmful to society, to postpone the pronouncement of final sentence and judgment upon such conditions as he shall deem proper and reasonable, as to probation of the person convicted, the restitution of the property involved, and the payment of the costs of the case. Thus it will be seen that § 1 does not touch upon the power of the circuit court to alter or revise its own judgments during the same term, after such judgment has been put in operation and the defendant has begun to serve his sentence under it. Section 2 of the act deals entirely with the power of the court to revoke the postponement mentioned in § 1 and pronounce sentence. Section 3 deals with the question of costs. The act may be found in the General Acts of Arkansas, 1923, p. 40.

The result of our views is that the first judgment and sentence of the Perry Circuit Court did not remain in the breast of the presiding judge until the end of the term subject to revision, alteration or rescission, but that it passed entirely from the control of the court by its own action. When the court rendered a judgment sentencing the defendant to a term in the State Penitentiary, and issued its commitment, directing the sheriff to transport the defendant to the penitentiary for the purpose of serving his sentence, and when the defendant had served a part of the sentence, the court lost jurisdiction over the case, and could not, even at the same term, set aside its original sentence and postpone the pronouncement of sentence under the act of 1923, just referred to.

In other words, we are of the opinion that the commitment, after the record of conviction was made, and the defendant had served a part of his sentence, completely exhausted the power of the circuit court, and ousted it of jurisdiction to set aside its judgment, for the reason that, to permit the judgment to be set aside and another sentence to be imposed some time in the future, after the first sentence had been partially executed, would, in effect, put the defendant in jeopardy twice for the same offense.

It follows that the judgment of the Pulaski Circuit Court, ordering J. M. Boyles to be released from the State Penitentiary, should be quashed, and it is so ordered.

Smith and Humphreys, JJ., dissenting.

Smith, J.,

(dissenting). In directing that the judgment of the circuit court be quashed and that appellee be remanded to the penitentiary to serve the remainder of his sentence, the majority give as their reason for so ordering “that to permit judgment to be set aside, and another sentence to be imposed sometime in the future, after the first sentence had been partially executed, would, in effect, put the defendant in jeopardy twice for the same offense.” This solicitude for appellee’s welfare is not only misplaced, but is worse than wasted. The majority take no account of the fact that appellee not only consents to the order quashed, but is struggling desperately to have it enforced. The issue in the present appeal is, not whether appellee should be safeguarded against the possibility of being twice punished for the same offense, but is, shall this court compel the full execution of a sentence which the trial court has adjudged should be suspended?

It will be remembered that the order suspending appellee’s sentence was rendered at the same term of the court at which the judgment sentencing him to the penitentiary was rendered, and the majority have held that the fact that appellee had been confined in the penitentiary deprived the court of the jurisdiction to suspend the sentence, even during the same term of court. It follows, therefore, that, if a defendant should be convicted, and sentence pronounced, and the defendant committed to prison pursuant to the sentence, the trial court loses all control or power to correct any error which might later be made to appear. For instance, newly-discovered evidence might be found which would make it appear certain that the defendant had been improperly convicted. The trial court has been made impotent in such cases to grant relief, even though the evidence was newly-discovered before the adjournment of the term at'which the conviction was had.

In the case of Williams v. State, 125 Ark. 289, we held that “there seems to be no question about the power of the court to set aside a judgment of conviction before the convict has begun serving his sentence, nor is there any doubt that the court has the power at any time during the term to set aside a judgment for the correction of errors.” This broad statement of the power of the trial court to set aside a judgment of conviction to correct errors at the same term at which the judgment was rendered does not contain the limitation now placed upon the courts that this may be done provided the defendant has not commenced his sentence. Nor was any such limitation upon the power of the trial court recognized in the case of Holden v. State, 156 Ark. 521, where it was said: “There is no authority in law for the trial court to suspend the execution of a judgment of conviction in a criminal case from term to term. The court, during the term, to be sure, has power over its judgment and could set aside the same, but at the close of the term the conviction and judgment and sentence become final, and any order suspending the execution of same, when the defendant is in the presence of the court or in the custody of the sheriff, in the absence of a statute authorizing it, is yoid. The law contemplates that, upon a verdict of guilty, unless such verdict is set aside and a new trial granted, the court shall render a judgment of sentence which, in the absence of a statute duly authorizing its suspension, must be duly executed. See §§ 3203-4, Crawford & Moses’ Digest.” Of the language quoted above more will later be said. To the same effect, see the cases of Killian v. State, 72 Ark 137; Ashley v. Hyde and Goodrich, 6 Ark. 92; Wells Fargo & Co. v. W. B. Baker Lbr. Co., 107 Ark. 415. In the case last cited it was held (to quote the syllabus) that “where the trial court overrules defendant’s motion to set aside a default judgment rendered against him, the court retains jurisdiction, during the term, to set aside the judgment, even though an appeal has been prayed by defendant, and granted, so long as the appeal remains unperfected.” Many other cases in our reports to the same effect could be cited.

In the case of State v. Butler, 18 Atl. 1105, the Court of Appeals of Maryland considered a statute of that State providing that “no judgment upon, any indictment for any felony or misdemeanor shall be stayed or reversed for any matter or cause which might have been the subject of demurrer to the indictment.” The court there said: ‘‘ But we do not think that either this statute or the cases cited in any manner modify or limit the long-established principle that courts have power to set aside or change their judgments during the term at which they -are entered. It is not necessary to cite numerous authorities to support this doctrine. In his work on Judgments (section 90) Mr. Freeman says: ‘The power to vacate .judgments was conceded by the common law to all its courts. This power was exercised in a great variety of circumstances, and subject to various restraints. The practice in the. different States is in many respects so conflicting that few rules can be laid down as universally applicable. One rule is, however, undoubted. It is that the power of a court over its judgments, during the entire term at which they are rendered, is unlimited.’ The full extent of the control of courts over their own judgments in both civil and criminal cases, during the term, is fully recognized by this court in the case of Seth v. Chamberlaine, 41 Md. 194, in which Judge Alvery, delivering the opinion of the court, said: ‘The principle * * * is of every day application, in the practice of the courts of this State and elsewhere, that the court retains power over its own judgments and orders, in both civil and criminal eases, during the term at which they are entered or made, and will, during that time, set them aside, or change or modify them, as circumstances may require. ’ ” In that case it was held (to quote a syllabus) that “the court can so set aside a judgment sentencing defendant to pay a fine or stand committed, though the judgment may have been partly executed, by commitment and service for part of the time.”

In the case of In re John Brittain, 93 N. C. 587, the defendant had been sentenced to a year in the penitentiary, and had been confined for a period of eight days under his sentence, when he was ordered back into court at the same term and the unexpired portion of the sentence was remitted. The power of the trial court was questioned, but this power was upheld by the Supreme Court of North Carolina, and in upholding this power it was said: “It would be very extraordinary if this form of mitigating a punishment during the sitting in which it was imposed, was to be denied the court, and thus the sentence become irrevocable. Cannot the judge remit part or even all of a fine? If so, is his authority to reduce the term of confinement to be denied?”

The majority cite 16 C. J. 1314. In the section of the text appearing at that page appears the following statement: “It has been held, however, that where a sentence has been partly executed it may be revised and another in diminution or mitigation substituted for it during the term. ’ ’ The cases cited in the note to the text sustain the statement made.

The majority quote from 12 Cyc. 783, in which the statement appears that “where the prisoner has paid his fine or his imprisonment has begun, the court has no power to recall him to revoke his former sentence and impose one which inflicts a greater punishment.” As we have pointed out, there was no effort here to impose a greater punishment. On the contrary, the obvious purpose of the court was to mitigate the punishment.

In volume 3 Wharton’s Criminal Procedure (10th ed.) § 1853, it was said: “As a general practice, the sentence, when imposed by a court of record, is within the power of the court during the session in which it is entered, and may be amended at any time during such session, provided a punishment already partly suffered be not increased.”

Section 247 of the chapter on Criminal Law, 8 B. C. L., page 244, reads as follows: “Where a judgment has been fully satisfied by the defendant, the trial court has no power to amend it by increasing the punishment after the term at which the judgment was rendered, or even during the same term. The ends of justice will not be served by permitting the State, after the sentence of the law has been discharged, to open the case for any purpose, and least of all to insert an additional penalty. To permit this would be like punishing the delinquent the second time for 'the same offense. Thus it has been held that, where a court has imposed a fine and imprisonment when the statute confers power only to punish by fine or imprisonment, and the fine has been, paid, the court cannot, even during the same term, modify the judgment by imposing imprisonment instead of the former sentence, and, the judgment having been executed so as to be a full satisfaction of one of the alternative penalties of the law, the power of the court as to that offense is at an end. The rule seems to be well established that the trial court is without power to set aside a criminal judgment after it has been partly satisfied by the defendant, and impose a new or different judgment increasing the punishment, even at the same term of court at which the original judgment was imposed. And of course a judgment which has been partly satisfied by the defendant cannot be set aside by the trial court, and a new judgment increasing the punishment imposed, after the term of court at which the first judgment was rendered.”

In volume 25 A. & E. Ency. of Law (2d ed.) page 315, it is said: “Ordinarily the trial court may, at any time during the term at which the sentence was rendered and before execution has begun, amend or vacate the sentence, and render a new sentence in, accordance with law. As a general rule, where the defendant has executed or entered upon the execution of a valid sentence, the court cannot, even during the term at which the sentence was rendered, set it aside and render a new sentence. But it has been held that the court may, at any time during the term at which the sentence was rendered, modify it by remitting part of the punishment, even though its execution has already commenced.”

As is said by the majority, the Supreme Court of the United States, in the case of Basset v. United States, 9 Wall. 38, held that it is competent for the court, for good cause, to set aside, at the same term at which it was rendered, a judgment of conviction on confession, though the defendant had entered upon the imprisonment ordered by the sentence, and I submit there is nothing in the later opinion of the same court in Ex parte Lange, 18 Wall. 163, which impairs the authority of that case, and certainly not as applied to the facts of this case. -The quotation from that opinion found in the majority opinion in the instant case speaks for itself.

The texts from which I have quoted rather extensively cite a number of annotated cases which themselves cite a very large number of other cases, and it would be profitless to review these numerous cases. It may be conceded that there is a conflict in the authorities, but, in view of this conflict, it would be best, in my opinion, to follow the Supreme Court of the United States, and especially so as we have not heretofore decided the exact point in issue.

Thus far I have considered the question in issue as a common-law principle, but there is a statute which, in my opinion, should be taken into account, but which the majority appear to regard as inapplicable. This is Act 76 of the General Acts of 1923 (Acts 1923, page 40), entitled, “An act to authorize circuit .judges to suspend sentences upon certain conditions and for other purposes.” This act has á history which should not be disregarded in interpreting it.

The constitutionality of this act is conceded by the majority. If it were questioned, the annotator’s note to the case of State of Washington v. Starwich, 206 Pac. 29, would show that such acts have generally been held to be constitutional. The most common attack upon such legislation has been that it encroached upon the power of the Governor to exercise the pardoning power, but the cases cited by the annotator in 26 A. L. It. 393, where the case of Washington v. Starwich appears, show very conclusively that the legislation is not open to that objection.

But to return to the history of this act. In the case of Holden v. State, supra, from which I have already quoted, we said: “There is no authority in law for the trial court to suspend the execution of a judgment of conviction in a. criminal case from term to term. ’ ’

This opinion was handed down on January 22, 1923. The General Assembly was in session at the time this opinion was rendered, and the bill which became act 76 of. the Acts of 1923, supra, was immediately passed, and was approved by the Governor February 9, 1923. The obvious purpose of the act was to give the courts a power which we had just held they did not possess. By this act it was provided that whenever a plea of guilty shall have been accepted, or a verdict of guilty shall have been rendered, the judge trying the case shall have authority, if he deem it best for the defendant and not harmful to society, to postpone the pronouncement of final sentence and judgment, upon, such conditions as he shall deem proper and reasonable as to the probation of the person convicted, the restitution of the property involved, and the.payment of the costs of the case.

The first word appearing in this act is the adverb of time—“Whenever.” A new power was conferred upon courts, to be exercised “whenever” the courts saw proper. This word should probably be limited to any period of time while the term of court continues at which the plea of guilty was entered or the verdict of guilty'was rendered, but it occurs to me that it is a limitation of the new power there given to circuit courts to say that the beneficent provisions of the act may not be extended to any one simply because he has served some portion of his sentence, and certainly is this true when the person convicted waives any rig’ht—if such it may be called— growing out of the fact that he has suffered a portion of his sentence.

I think therefore that the judgment of- the court below should be affirmed, and especially so as we are not advised by the record before us as to the reasons moving the court to the action taken.

I am authorized to say that Mr. Justice Humphreys concurs in the views here expressed.


source: Caselaw Access Project

author: Hart, J.,

license: Public Domain

text:
    Marks v. F. G. Barton Cotton Company.
    Opinion delivered March 1, 1926.
    1. Equity—jurisdiction op cross-rill.—Where a factor brought suit in equity to recover an amount due on open account, and to have a lien declared on certain bales of cotton .belonging to defendants in the factor’s possession, and defendants filed a cross-bill asking for an accounting, the original and the cross-bill are but one cause, and equity properly retained jurisdiction.
    2. Factors—duty toward principal.—It is the duty of a cotton factor in transactions affecting the subject-matter of his agency to act with good faith and loyalty for the protection and advancement of his principal’s interests, and to obey the instructions of his principal where- they are definite and certain, and do not impair his security for advances.
    Appeal from White Chancery Court; John E. Martineau, Chancellor;
    affirmed.

      STATEMENT BY THE COURT.
    F. G-. Barton Cotton Company brought this suit in equity against F. K. Marks & Son to recover the sum of $2,675.85, and asked that the plaintiff have a lien on 56 bales of cotton in its possession belonging to the defendants for the payment of the same.
    According to the allegations of the complaint, the plaintiff is a cotton factor, in the city of Memphis, Tenn., and made advances to the defendants, and the defendants shipped 115 bales of cotton to be sold for them, and applied to the payment of said indebtedness.
    B. B. Barton, vice president of the F. Gr. Barton Cotton Company, a corporation, was its principal witness. According to his testimony, the plaintiff made advances to the defendants. The latter shipped to the former cotton from time to time, to be sold.and applied upon said indebtedness, and the 'balance, if any, to be paid to the defendants. On the 20th of January, 1922, the plaintiff rendered an. itemized account to the defendants, showing a balance due it of $2,675.85. The account showed that the defendants had shipped to the plaintiff altogether 115 bales of cotton, and had rendered an account of sale of 110 bales. This left five bales still on hand. On March 10, 1920, the defendants wrote to the plaintiff with regard to the re-weight of the cotton at Memphis, and stated that they trusted that they might soon receive a notice of sale of some of their cotton at 40 cents. On March 13, 1920, the defendants wrote to the plaintiff a letter which reads as follows:
    ‘‘Grentlemen: It seems to me that the present time is a good time to sell cotton. I wish you would put mine on the market, and sell as fast as you possibly can. If we should have a dry spring, as I look for, the prices will decline wonderfully. However prices are not up to normal yet, and I don’t expect them to get any better. Thanking you for any favors that you may show us, I am, very truly yours. ’ ’

      On March 15, 1920, the plaintiff wrote a letter in reply, which reads as follows:
    “Gentlemen: We have yonr letter of the 13th inst., and in reply wish to concur in your opinion that it is a good time to dispose of cotton. The demand, however, is limited to particular grades and staples. There is no buyer in this market who will purchase over 25 or 75 bales of cotton at one time, from one person, and he wants that purchase made on a sacrifice basis, except where there are particular cottons that are wanted badly. There is nothing to be gained in making these little sales of just a few bales where the price must be cut, because the next day the same buyer is aftc. 'ou again, with another cut. The only thing we can do under these conditions is to wait for a general demand, and, even though the market should decline some, we would still be able to get as good prices as are now offered. With kindest regards,'we are, yours very truly. ’ ’
    Cm the 17th day of March, 1920, F. K. Marks had a telephone conversation with R. B. Barton about the sale of the cotton. We quote from the record the version of the conversation given by F. K. Marks as follows:.
    “I asked Mr. Barton what did he consider a satisfactory price on the cotton—-we wanted a satisfactory price, and he said, ‘Cotton ought to be worth around forty to fifty cents.’ I said, ‘What is such class of cotton as mine bringing on the market now?’ He said, ‘From thirty-five to forty-five cents.’ I said, ‘I want you to sell my cotton if it don’t bring but thirty cents; I don’t want to carry it,’ and he said, ‘It will be hard to do.’ I said, ‘It won’t be hard to get thirty cents for it, I know.’ He said, ‘We will do the best we can.’ ”
    According to the testimony of Olga Doss, the stenographer of F. K. Marks, she heard the telephone conversation between Marks and Barton on March 17, 1920, with reference to the sale of the cotton. Her recollection of the conversation is that Marks told Barton to sell their cotton if he could not get more than thirty cents for it. R. B. Barton was recalled as a witness, and testified that he did not remember the conversation with Marks definitely, hut recollected that he used every possible effort to sell the cotton of the defendants, as well as that belonging to the other customers of the plaintiff. He stated that there was between thirty and forty per cent, of the crop of 1919 which was carried over in Memphis. The plaintiff made every possible effort to sell the cotton of the defendants, and' did sell it for them as soon as there was a demand, and at a price that the defendants did not object to. He was not able to sell the cotton for any price at the time referred to, for the reason that there were no buyers on the market.who would purchase more than from 25 to 75 bales of cotton at one time, and that the purchase in this kind of a case even was made by the cotton buyers on a sacrifice basis. The only thing under the circumstances that the cotton factors could do was to wait for a general demand for the cotton of their customers.
    On July 8, 1920, the plaintiff wrote to the defendants a letter in reply to a letter from the plaintiff requesting information about the payment of the taxes on the cotton shipped. On October 2,1920, the plaintiff wrote to the defendant a letter which reads as follows:
    “Gentlemen: Our books on this date show that you owe us $5,273, and that we have fifty-six hales of cotton in our hands to be applied to your credit. The new cotton season is opening, and we are expecting to hear from you with a shipment, and trust that we may receive a bill of lading soon, covering a shipment of your cotton. We have been carrying this cotton for some time, with the hope of getting a satisfactory price for it, and, as the new cotton is about to move, we feel that our shippers ought to send us in some new cotton to he sold and the proceeds credited to their account, and thus relieve the burden of carrying the old cotton to some extent. Please let us have a letter from you, stating when we may have a shipment, and how much we may expect. Tours very truly.”

      The chancellor found the issues in favor of the plaintiff, and a decree was entered in favor of the plaintiff in accordance with his findings.

      J. N. Rachels, for appellant.

      John E. Miller and Maim & Mann, for appellee.
   Hart, J.,

(after stating the facts). The defendants filed a motion to transfer the case to the circuit qourt, and duly excepted to the action of the chancery court in refusing to grant their motion.

It is first contended by counsel for the defendants that the allegations of the complaint were not sufficient to give the chancery court jurisdiction, and that the chancery court erred in not granting their motion to transfer the case to the circuit court. Conceding that the chancery court did not have jurisdiction under the allegations of the complaint, it does not follow that error was committed in refusing to transfer the case to the circuit court. The defendants filed a cross-complaint, in which it is alleged that the plaintiff had in its hands the exact date of all of the cotton shipped to it by the defendant, and was in possession of the market value of said cotton, upon the date of its arrival. They asked that it be required to state the date of the arrival and value of each bale of cotton, and its grade. They alleged that the plaintiff was ordered to sell the cotton immediately upon its delivery to it, and in effect they asked for an accounting by the plaintiff, and damages for failing to sell the cotton according to directions.

Their cross-bill was founded on matters clearly cognizable in equity, and this supplied any defect of jurisdiction, The original complaint and cross-bill were but one cause of action, and imposed upon the court the duty of granting relief to the party entitled to it. Cockrell v. Warner, 14 Ark. 345; Sale v. McLean, 29 Ark. 612; Radcliffe v. Scruggs, 46 Ark. 96; and Hall v. Huff, 114 Ark. 206.

The reason for the rule is clearly stated in Cockrell v. Warner, 14 Ark. 345, where the court closed a review of the authorities on the question with the following: “These authorities will suffice to demonstrate that the original and cross-ibill are but one cause; that both parties are as complainants, praying relief against each other, and having in view the object of bringing the whole controversy before the court, to the end that it may be finally settled on the merits, by such decree as the justice and equity of the case may require. In attaining this end, it must frequently happen that mere legal demands on, the one side or other, over which separately a court of equity would have no jurisdiction, have to be passed on, and relief afforded. But this, so far from being objectionable, is commendable, because it has a tendency to prevent a multiplicity of suits, in itself sufficient to give a court of equity .jurisdiction, although the subject-matter otherwise may be of a legal nature and of legal cognizance.”

Therefore the chancery court did not.err in refusing to transfer the case to the circuit court.

On the merits of the case, the chancellor found the facts in favor of the plaintiff, and his finding is borne out by the evidence in the record. On this branch of the case it may be stated, at the outset, that it is the duty of a cotton factor, in all transactions affecting the subject-matter of his agency, to act with good faith and loyalty for'the protection and advancement of the interests of his principal, and it is his duty to- obey the instructions of his principal, where they are definite and certain, and do not impair his security for advances. Burke v. Napoleon Hill Cotton Co., 134 Ark. 580; Joy Rice Milling Co. v. Brown, 167 Ark. 205; and Brown v. Southern Grocery Co., 168 Ark. 547.

Counsel for the defendants rely upon the telephone conversation between F. K. Marks and R. B. Barton, had on the 17th day of March, 1920. To come to a full understanding of the matter, it was uecessary for the chancellor to consider everything that passed between the parties. In transactions of this sort consisting of letters, accounts, and verbal communications, tbe written and parol evidence throw light on each other. This was the case here. The parties had made an. arrangement whereby the defendants were to ship cotton .to the plaintiff, and the latter was to make certain advances on the cotton shipped. In the telephone conversation, it is apparent that the defendants did not wish the cotton to be sold, unless all of it could be sold at not less than thirty cents per pound.

.According to the testimony of R. B. Barton, which is not contradicted in this respect, the plaintiff could not sell all of the cotton, or even the most of it, at that price. There was simply no market at the time for this grade of cotton. The plaintiff sold the cotton for the best price obtainable, and, so far as the record discloses,' acted in good faith throughout the whole transaction. His testimony in this respect is corroborated by the subsequent correspondence between the parties.

On July 7, 1920, F. K. Marks wrote to the plaintiff, asking for advice about paying taxes on the cotton, and whether' or not the plaintiff could pay them at Memphis. He closes the letter by asking for the outlook in the future on cotton. On the 2d of October the plaintiff notified the defendants that it still had' on hand fifty-six bales of cotton, and that their indebtedness amounted to $5,273. It reminded the defendant that it had been carrying the cotton for some time, and that some new cotton should be shipped in, and applied to the old account. On October 13, 1920, the defendant answered this letter as follows:

“In answer to your letter a few days ago in regard to shipping you some more cotton. In reply to same will advise you that we cannot ship you any cotton at the present time. However we hope to get in a position to ship you a little cotton, this season. But at the present time we have no money to pay.for cotton. The way we •are buying now is to sell in the morning, and buy during the day, however we are making about $150 a week. We have a long staple cotton in this country 3-16. What can you get on this cotton on your market at a ready sale? Now that will be the only way we can sell cotton for two or three months, that is ready sale, because, as slow as it is moving, from $600 to $1,000 a month is all we are making. As quick as you can move that cotton over here, I think we will all be 'better off. Do not feel shaky if our account over there falls behind. All the hard luck you will strike is being out of your money for awhile. Here’s hoping that this cotton will bring enough to pay expenses. Thanking you for the many past favors, I am. ’ ’

This letter shows conclusively that the defendants recognized that the plaintiff had been acting in good faith throughout the whole transaction,' and that its conduct with regard to the sale of the cotton, and the amounts due the plaintiff, was acknowledged and approved. It will be noted that the letter contains the following: “As quick as you can move that cotton over there, I think we will all be better off.” This is a direct and explicit recognition of the fact that the plaintiff had on hand fifty-six bales of cotton, to be applied to the credit of the defendants, and that its books showed that the defendant owed the plaintiff $5,273 on October 2,1920.

Upon the whole record, we think that it can not be said that the finding of the chancellor is against the preponderance of the evidence, and the decree will therefore be affirmed.


author: Smith, J.

text:
    Hunt v. Hurst.
    Opinion delivered March 1, 1926.
    1. Master and servant—injury from use of simple tool—jury QUESTION.—Where an employee, in using a hatchet which his foreman told him to use, lost an eye ¡by reason of a splinter from the head of the hatchet, proof that the hatchet ^had a “mushroomed” face, but the defect was not discoverable by casual observation on account of oil and dirt on the hatchet, held to' make -a case for the jury.

      2. Master and servant—liability in using simple tool,—An instruction which would relieve a' master in all cases from- liability to a servant where the instrument with which he was injured was a common or simple tool was properly refused.
    3. Master and servant—duty to furnish safe tools.—An instruction to the effect -that it is the duty of a master to use reasonable care to furnish safe tools to his servant, and that if the master furnished a defective hatchet whose condition was not discoverable iby the servant in the exercise of reasonable care, the master would be liable, held to' he correct.
    4. Appeal and error—harmless error—conflicting instructions. —It is no ground for objection to an instruction which is a correct declaration of the law that it conflicted with instructions which were more favorable to appellant than they should have been.
    Appeal from Ouachita Circuit Court; L. 8. Britt, Judge;
    affirmed.

      T. J. Gaughan, J. T. Sifford, J. E. Gaughan and. E. E. Godwin, for appellant.

      Jones, Ragsdale & Matheny, Harry E. Meek and L. B. Smead, for appellee.
   Smith, J.

Appellee was employed by appellant as a common laborer in constructing a derrick to be used in drilling for oil. He was what was known, in oil field parlance, as a “roustabout,” it being his business to help do whatever was required to be done. He had worked in a similar capacity for several oil companies. One morning, about an hour after appellee commenced work, he was directed by his foreman to take a hatchet, which was lying on the derrick floor, and nail a brace on the jack-post. Appellee picked up the hatchet and some twenty-penny nails, which were about five inches long, and got a piece of board 2x12, about a foot and a half long, for a brace, and started to nail the brace to the jack-post. He had driven one nail completely up in the brace, and started to drive another, and, as he struck the nail, something hit him in his left eye. The injury to his eye was very painful, and as a result of this injury the eye was later removed.

There was no other hatchet about the derrick, and appellee used it at the direct command of his foreman to drive the nail. The testimony shows that the hatchet had been used until it had become slightly “mushroomed,” as the witnesses expressed it, on the face used in striking nails, but the face of the hatchet was dirty and covered with oil so that its condition would not be observable except upon inspection.. Appellee had never used the hatchet before, and had been using it about a minute when he was injured. The defect in the hatchet had not therefore developed through his use of it. The foreman; later inspected the hatchet, and found that a piece about as large -as a match head had been recently broken off the face of the hatchet used in driving nails, and on further inspection the foreman discovered that the nail appellee was driving at the time of his injury was in good condition, and no part of the nail had been broken off.

Appellee recovered a judgment to compensate this injury, which is not complained of as being excessive, and this appeal is prosecuted to reverse that judgment.

The chief insistence for the reversal of the judgment is that a verdict should have been directed in appellant’s favor, under the facts stated, for the reason that the hatchet was a tool of such simple construction that there was no duty, of inspection. In other words, appellant invokes what is called the simple tool doctrine, and insists that, as applied to the facts in this case, there is no liability fór appellee’s injury.

In the case of Arnold v. Doniphan Lumber Co., 130 Ark. 486, Ae said: “This doctrine (simple tool), as such, has never had recognition by this court; yet the principles upon which that doctrine is based have been recognized in a number of decisions of this court. That is, the simplicity of a tool, and the skill or lack of it required in its use, have been treated as questions to be considered- in determining the degree of care to be used by the master in the selection of such tools for the purposes of his servant, and of the directions and instructions which should he given the servant in its use.”

A case very similar to the instant case is that of Chicago, R. I. & Pac. Ry. Co. v. Smith, 107 Ark. 512. The servant, who had there sued for an injury he had sustained, alleged that he was injured by the use of a hammer having a defective striking face, and it was there insisted on behalf of the master that the hammer was a simple instrument, which the master was not required to inspect, and that the verdict should, on that account, have been directed In the master’s favor. In affirming the judgment which“the servant recovered the court said: “There is no hard and fast rule that may be laid down as governing the liability of an employer for a defect in common tools. In view of this condition, we do not undertake to say what state of facts the rule of liability should embrace, and-what state o.f facts it should not.” After stating that the servant was not permitted to make his own choice of tools, the court further said: “It can not be said, as a question of law, that the defect in the face of the hammer was so open and obvious that they could have seen the defect by a glance or by such casual observation as it would be natural for plaintiff to have made *

So here, while it is not disputed that the hatchet was a simple tool, it is undisputed that appellee had no choice in its selection, but was directed by his foreman to use the only hatchet at the derrick, and was injured within a minute after he commenced its use. The hatchet was defective, in that it had a “mushroomed” face, and on account of the oil and dirt on the hatchet the defect was not discoverable by a casual observation. Under these circumstances, it is the opinion of the majority—in which the writer and Justice Hart do not concur—that the case made was one for the jury, and no error was committed in refusing to direct a verdict for the defendant. Royal v. White Oil Corporation, 160 Ark. 467; Wisconsin & Ark. Lbr. Co. v. Ashley, 158 Ark. 379; Ark. Central R. Co. v. Goad, 136 Ark. 467; Arnold v. Doni phan Lbr. Co., 130 Ark. 486; Fordyce Lbr. Co. v. Lynn, 108 Ark. 377; Chicago, R. I. & Pac. R. Co. v. Smith, 107 Ark. 512. See also Marcum v. Three States Lbr. Co., 88 Ark. 36.

' Appellant requested an instruction numbered 5 reading as follows': “You are instructed that a master is not required to inspect the common tools and appliances which are committed to the custody of a servant who has the capacity to understand their character and uses. Therefore you are told that if you believe from the evidence that, if plaintiff has the mentál capacity to understand the character and’use of the hatchet, then he cannot recover, and your verdict should be for defendant.”

The court modified this instruction by striking out. the second paragraph thereof, and gave the first paragraph as an instruction in the case, and appellant ■ excepted to this action.

It is the opinion of the majority that no error was committed in modifying the instruction. The part given was more favorable to appellant than it should have been, and the last paragraph would, in effect, have directed a verdict for appellant. The instruction as asked would relieve the master in all oases from liability to the servant if the tool with which the servant was injured was a common tool, and this doctrine has not, as we have said, been adopted in this State.

The court gave, over the-objection of appellant, the following instruction: “1. You are instructed that it was the duty of the defendant to exercise reasonable care in furnishing the plaintiff reasonably safe tools with which to work, the defendant being required in such respect to exercise the same degree of care and caution which would have been exercised by an ordinary prudent man under the same circumstances. • And if you find from a preponderance of the evidence in- this case that the hatchet furnished plaintiff for use in the performance of his duties was in a defective or dangerous condition, which condition would have been discovered by the employer in the exercise of ordinary care, and if you find that such defective or dangerous condition was not apparent to the plaintiff, and would not have been discovered by him in the exercise of reasonable care for bis own safety, and if you further find that the plaintiff suffered an injury on account of such alleged defective condition of the hatchet, then you are told, that the defendant was guilty of negligence. In other words, it is for you to determine whether the defendant was under obligation to inspect the hatchet in question before delivering it to plaintiff to be used by him; you being instructed that the duty of the defendant under such circumstances was to act as an ordinarily prudent man would have done under similar circumstances.”

This instruction presented the theory of the plaintiff in the case upon which a recovery was sought and was sustained, and the objection to the instruction istha't the duty to use reasonable care to- furnish reasonably safe tools does not apply to a tool as simple as a hatchet. But what has already been said disposes of that objection, for negligence may, in a proper case, be predicated upon this omission, the simplicity of the tool being in all cases -a proper circumstance for the jury to consider in determining wjiat, if any, duty the master should perform in regard to the- inspection, but not conclusive of the fact that -there was no such duty.

The instruction last set out was -also objected to on the ground that it was in conflict with other instructions given at the request of appellant to the effect that there was no duty o.f inspection. But these instructions were more favorable to appellant than they should have been, and, as the instruction set out is a correct declaration of the law, there was no prejudicial error in the fact that ■it conflicted with the instructions which were more favorable to appellant than they should have been. Clark v. Pickler, 168 Ark. 818.

No error appears, so the judgment is affirmed.


text:
    Bevers v. Bradstreet.
    Opinion delivered March 1, 1926.
    1. Evidence—secondary evidence.—In an action by a wife against another woman for alienating the affections of her husband, her testimony that she found. on the registry of a hotel in another State, where her husband, in his own handwriting, had registered by an assumed name with another woman as his wife, was not . inadmissible as not being the best evidence,-where such registry was not within her possession, and its production could not have been enforced by the court.
    2. Evidence—competency.—In an action by a wife against another woman for alienating the affections of her husband, her testimony that she found that her husband registered at a hotel under an assumed name with another woman as his wife was incompetent where there was no showing that defendant was the woman who was so registered.
    3. Evidence—hearsay evidence.—The -husband’s confession of adultery with defendant is hearsay and inadmissible in an action by a wife against another woman for alienating the affections of her husband.
    4. Husband and wipe—alienation of affections—conscious purpose.—In an action for alienating the affections of plaintiff’s husband, it was error to instruct the jury that defendant was liable if, by her conduct, she “won the attention and affection of plaintiff’s husband,” without imposing the requirement that there must have been a conscious wrongdoing on defendant’s part.
    5. Husband and wife—alienation of affections—adultery.—Where the alienation of a husband’s affections is by means of adultery, malice in law is inferred from such wrongful conduct.
    Appeal from Sebastian 'Circuit 'Court, Fort Smith District; John E. Tatum, Judge;
    reversed.

      ■Cravens & Cravens, for appellant.

      Chew & Ford, for appellee.
   Smith, J.

Appellee, who is the wife of T. W. Bradstreet, brought this suit against appellant, Mrs. Carrie Bevers, for the alleged alienation of her husband’s affections. The testimony on the part of appellee is to the effect that, after having been married to and after living with her husband for forty-four years, he left his home at Ramona, Oklahoma, and established his abode in a hotel at Bartlesville, Oklahoma, operated by appellant, and occupied a room in the hotel adjoining that of appellant. There was testimony, which it will serve no useful purpose to state, from vdiich the jury might have found that an immoral relation existed between appellee’s husband and appellant, and upon the trial from which this appeal is prosecuted there was a verdict and judgment in appellee’s favor for $4,000.

Appellee testified that, after her husband had ceased to live with her, she went to Kansas City, Missouri, and there examined the register of the Dixon Hotel, and found that on August 25, 1922, a Mr. and M,rs. Bradley had registered as man and wife, and that she recognized the handwriting of the man who wrote the names as that of her husband. Appellee also testified that she examined the register of a hotel at Abilene, Kansas, and found that on August 9, 1922, the name of W. O. Wilson and wife had been registered, and she recognized this writing as that of her husband.

An objection was made to this testimony, and it is now insisted that the testimony is incompetent, for the reason that the hotel registers should have -been produced. This objection is not well taken. These books were not in appellee’s possession, nor were they within the jurisdiction of the court, and their production in court could not have been enforced. Bozeman v. Browning, 31 Ark. 364.

The testimony was incompetent, however, for the reason that no showing was made that appellant was the woman who had been registered as the wife of appellee’s husband. The testimony was therefore irrelevant, and its admission erroneous. It did show an immoral act on the part of appellee’s husband, but it was essential, before the testimony became admissible, that it be also shown that appellant was the woman in the case.

While testifying as a witness in her own behalf, appellee offered in evidence an undated letter written on the stationery of the Hotel Dixon, Kansas City, Missouri, hddressed to no one, which she stated was handed to her by her husband, and which she testified was in his handwriting, reading as follows: “Between the 10th of August, and the 1st of''September, 1922, I registered at the Hotel Sexton at Kansas City, Missouri, under the name of Mr. and Mrs. Bradley. Mrs. Carrie Beavers of the Alameda Hotel in Bartlesville, Oklahoma, was the woman that stayed (with me there. T. W. Bradstreet.”

Objection was made to the admission of this letter in evidence; and we think the objection was well taken. The letter contains the statement that appellant was the woman who had registered as the wife of appellee’s husband. at the Hotel Sexton, in Kansas City, under the names of Mr. and Mrs. Bradley.

In the first place, this was hearsay testimony. It would also have been incompetent for Mr. Bradstreet to have given this testimony, had he been personally present. Section 4146, C. & M. Digest.

In holding a very similar writing to have been erroneously admitted in evidence, the Supreme Court of Indiana, in the case of Underwood v. Linton, 54 Ind. 468, said: “The paper thus admitted was clearly and palpably incompetent evidence against the defendant. Viewing the paper as containing express or tacit admissions of the alleged criminality, it contained but an admission or statement of the plaintiff’s wife, and this would be incompetent on general principles. If the statements of a wife were competent evidence against one charged with criminal conversation with her, the husband and wife, by collusion, might make out a case against the most innocent, without even incurring the danger of punishment for perjury.”

The case of Fratini v. Caslini, 66 Vt. 273, was an action for alienating the affections of plaintiff’s wife, and for criminal conversation with her, and it was there said: “In actions for criminal conversation it. is relevant to inquire into the terms on which the husband and wife lived together before her connection with the defendant, and it is usual to give 'evidence of what they have said or written to or of each other, in order to show their mutual demeanor and conduct, and whether they were living on good or -bad terms. It is, however, always required that proof should be given that the declarations or letters of the wife,-when the husband is the plaintiff, purporting to express her feelings, were made or written prior to the existence of any facts calculated to excite suspicion of misconduct on her part, and when there existed no ground to suspect collusion. I Phil. Ev., § 182; 1 Greenl. Ev., § 102; 1 Whart. Ev., § 225.” See also 3 Enc. of Evidence, page 87; Jones’ Commentaries on Evidence, vol. 4, § 738 (757); 3 Elliott on Evidence, § 1648; 13 B. C. L., page 1478, chapter Husband and Wife, § 577. The case of Melcher v. Melcher, 4 A. L. R. 492, contains a very extended annotated note on the subject.

The court gave, over appellant’s objection, an instruction numbered 3, reading as follows:" “Should you believe from the evidence that plaintiff and her husband were living together in such relation, and were happy and affectionate towards each other, and that the defendant, by her conduct, won the attention and affection of plaintiff’s husband, and that thereafter plaintiff’s husband showed to plaintiff no love or affection, became unhappy and discontented with plaintiff, brought on by reason of defendant Bevers’ attention toward plaintiff’s husband, then your verdict should be for the plaintiff, Bradstreet.”

This instruction is erroneous in that it requires only that “appellant, by her conduct, won the attention and affection of plaintiff’s husband,” without imposing the requirement that it be found that there was a conscious wrongdoing on the part of appellant.

In the case of Hodge v. Brooks, 153 Ark. 222, we said: “Without so intending, one might acquire or lose another’s affections. * * * The thing forbidden, and made actionable, is the entry of a home by a wrongdoer, and the consequent loss of consortium by the injured spouse; and it does not matter whether this entry is by physical violence or subtle influence; but it is essential that there should be a conscious purpose to do a wrongful act. One who does this has acted wilfully and wrongfully, and in bad faith to the injured spouse, and is liable to respond in damages therefor. ”

It is true, as said in § 515, chapter Husband and Wife, 13 R. C. L., page 1467, that “where the alienation of a husband’s affections is by means of adultery, malice in law is inferred from such wrongful conduct. ’ ’ But the instruction did not take the question of adultery into account. There was testimony 'from which the jury might have found that appellant and appellee’s husband had been guilty of adultery, but the jury may not have credited the testimony to that effect, and the instruction required the finding only that appellant, “by her conduct, won the attention and affection of plaintiff’s husband, ’ ’ who thereafter showed plaintiff no love or affection by reason of appellant’s attention to plaintiff’s husband, although there may have been no conscious purpose on appellant’s part to disturb the harmony of appellee’s domestic felicity, and the instruction was therefore erroneous. Rainwater v. Emberton, 158 Ark. 573; Boland v. Stanley, 88 Ark. 562; Roach v. Scott, 157 Ark. 152; 3 Elliott on Evidence, § 1643.

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


text:
    Helena Cotton Oil Company v. Harrington.
    Opinion delivered March 1, 1926.
    J. Master and servant—wrongful discharge—evidence of employment.—In an action by an employee to recover damages for his wrongful discharge, testimony that the plaintiff was employed for a term of years at a fixed salary by defendant’s general manager, and that for more than two years defendant paid his salary without question, held to justify a finding either that the employment was within the scope of the general manager’s authority or that the employment was ratified.
    2. Witnesses—control over examination.—Where appellant’s counsel excepted to the court’s order directing an adverse witness to stand aside, without requesting to be allowed to continue the cross-examination, no abuse of the court’s discretion is shown.
    Appeal from Phillips Circuit Court D. Robertson, Judge;
    affirmed.
    . Moore, Walker & Moore, for appellant.

      W. G. Binning, for appellee.
   Smith, J.

Appellee brought suit against appellant, a domestic corporation, for breach of contract. He alleged in his complaint that on May 31, 1920, he was employed under a written contract of employment to purchase cotton seed for the period of three years from August 1,1920, at a monthly salary of $150 and traveling .expenses, all to be paid monthly. After entering into said agreement, appellee began the performance of his duties, and continued in the performance thereof until November 1, 1922, at which time appellant, breached the contract by wrongfully discharging appellee, and that appellee was unable to secure employment during the unexpired period covered by his contract, wherefore he sued.

The testimony of appellee fully sustained the allegations of the complaint. The contract was offered in evidence, and was signed for appellant by E. B. Burke, the general manager, who was also the secretary and treasurer.

In its answer appellant alleged that Burke had no authority to make the contract, and that appellee had failed to discharge the duties for which he had been employed. This last defense, having been passed upon by the jury, is not insisted upon on this appeal.

The president and vice-president of appellant company testified that they had no knowledge of the execution of the contract in question until about the time appellee was discharged, and that Burke had no authority to employ appellee, except from month to month, and that only the directors of appellant company had this authority. There was no showing, however, that appellee had any knowledge that any such limitation had been placed upon the authority of Burke, as general manager of the appellant company.

No objection is made to the instructions under which the case was submitted to the jury, and we think the testimony, a brief summary of which is set out above, is legally sufficient to support the finding of the jury that the appellant company ratified the act of its general manager in executing the contract of employment. According to appellee, it was the custom of cotton oil companies like appellant to employ purchasing agents for a period of not less than a year, which begins and ends on August 1. Appellee’s salary was paid regularly until the time of his discharge. The directors and managing officers of the appellant company knew that appellee had been employed and was receiving a- salary, which was paid for more than two years of the time covered by the contract. No inquiry appears to have been made of appellee by the directors, or other officers of appellant, concerning the terms of his employment. ¡We conclude therefore that the jury was warranted-in finding that, if it was not within the apparent scope of the authority of appellant’s general manager to execute the contract sued on, the contract was ratified by the acquiescence of the officers possessing the authority.

During the cross-examination of appellee the following colloquy occurred between the court and counsel for appellant. The court inquired of counsel: “Have you anything further to ask the witness? Stand aside, we can’t wait all day.” Counsel said: “I except to the court directing the witness to stáhd aside.” The court said: “The court feels that the record will show that the court .excused the witness because attorneys for the defense declined to proceed further with the examination.” Counsel replied: “And further show that the attorneys were consulting with the client.” The court responded: “And among themselves.”

The record recites that: “To which action of the court the attorneys for the defendant excepted and caused said exceptions to be noted of record.”

We do not think it appears, from the facts set ont above, that there was any refusal on the part of the court to permit a reasonable and proper cross-examination of appellee as a witness. Counsel for appellant had asked, appellee a number of questions, when the examination ceased, and counsel for appellant conferred among themselves. It will be observed that the court did not order the witness to stand aside until after the inquiry had been made if counsel had any further questions to ask the witness, and counsel did not request to be allowed to continue the cross-examination, but contented himself by objecting and saving an exception to.the action of the court in directing the witness to stand aside. While it is, of course, the duty of a trial judge to permit a full, fair and reasonable cross-examination of any witness in a ease, the court has a discretion in the exercise of this right, and we think no abuse of this discretion was shown.

As no error appears, the judgment must be affirmed, and it is so ordered.


author: Humphreys, J.

text:
    Reed v. Trinity Drilling Company.
    Opinion delivered March 1, 1926.
    1. Master and servant—liability for servant’s acts.—The test of the master’s liability for the acts or omissions of his servant is whether the acts or omissions were committed in the prosecution of the master’s business or in effecting some independent purpose of his own. ■
    2. Master and servant—liability for servant’s tort—complaint. —In an action by a servant against’ his master for a tort by a fellow-servant, a compláint which alleged that, a fellow-servant, manager of defendant, while acting in the scope of his employment and in the act of discharging plaintiff, wilfully and without cause assaulted and struck the plaintiff, held defective in failing to allege that such manager had authority to discharge plaintiff.
    Appeal from Ouachita Circuit Court; L. 8. Britt, Judge;
    affirmed.

      Hardy é Machen, for appellant.

      T. J. Gaughan, J. E. Gaughan, E. E. Godwin and J. T. Sifford, for appellee.
   Humphreys, J.

Appellant instituted this suit on the fourth day of January, 1924, againgt appellee in the circuit court of Ouachita County, to recover damages for injuries received from an assault alleged to have been made by the superintendent of appellee, while engaged in the act of discharging appellant from further services for said company.

Appellee filed an answer denying the main allegations in the complaint.

On the 28th day of October, 1924, appellant filed an amended complaint, making the following allegation therein the gist of his cause of action:

“Plaintiff (appellant) states that on the said fifth-day of June, while in the employ of the said defendant (appellee), and while in the- discharge of his duties, and without cause or provocation, he was assaulted and struck on the head-with a hammer by one A- Tippadore, a field manager and'servant of said defendant (appellee), who was acting within the scope of his authority at said time, by being' in the act of discharging said plaintiff (appellant), and was severely injured, and from said blow on the head with said hammer the said plaintiff (appellant) suffered great pain and permanent injury, and was unable to do any work for thirty days thereafter. ’ ’

Appellee filed a demurrer to the amended complaint,alleging that he had not stated facts sufficient to constitute a cause of action. The court sustained the demurrer, and appellant, being allowed to amend, filed his second amended complaint, making the following allegation therein the gist of his cause of action:

“That the plaintiff (appellant) was in the employ of said defendant (appellee) and engaged in helping to drill an oil well in said county, on the above mentioned date, and working under authority and direction of the said A. Tippadore, manager and superintendent of said company, as above stated, and that on said date, while in the employ of said defendant (appellee), and assisting in the operation, of work on drilling of an oil well, while running in tubing of an oil well which was being run by said defendant (appellee), and acting under the direction and authority of the said A. Tippadore, in the performance of said work, he became engaged in an altercation with one............Pixley, who was also an employee of the said defendant (appellee),-and while thus engaged in said employment, and in carrying on said work, the said A. Tippadore, manager and .superintendent of said defendant (appellee), as aforesaid, while acting in the scope of his authority as such manager and superintendent, and in the act of discharging plaintiff, wilfully and without cause or provocation,, assaulted and struck the said plaintiff (appellant), on the head with a hammer, and severely injured him.”

To this second amended complaint appellee again filed its demurrer upon the same ground as before, which was sustained by the court. Appellant stood upon this complaint, and refused to plead further, whereupon the court dismissed the complaint, from which is this appeal.

The only question, presented for determination here is whether the complaint stated a cause of action. Appellant contends that it did. It is necessary to state facts which constitute a cause of action, and not merely a conclusion of law. The gist of the allegation was that A. Tippadore, acting within the scope of his authority, wilfully and without cause assaulted appellant while discharging him. It was not stated as a fact that authority had been conferred upon A. Tippadore by appellee to discharge appellant, and that, while engaged in the performance of this duty, he assaulted and injured him. On the contrary, it was alleged that A. Tippadore, acting within the scope of his authority, assaulted and injured appellant while discharging him. To allege that one is acting within the scope of his authority, is merely alleging a legal conclusion dependent upon the facts in a given case. The facts, when -disclosed, may or may not justify such a conclusion. The test of the master’s liability for the acts or omissions of his servant is whether the acts or omissions were committed in the prosecution of the master’s business, or in effecting some independent purposes of. his own. American Railway Express Co. v. Mackley, 118 Ark. 231. The material allegations of the complaint did not meet this test, so the court properly sustained the demurrer to it, and properly dismissed the complaint when appellant stood on the allegations thereof and refused to plead further.

The judgment is affirmed.


text:
    Tyson v. Mayweather.
    Opinion delivered March 1, 1926.
    1. Mortgages—construction of instrument—evidence.—Evidence held to sustain finding that plaintiff’s ancestor executed a mortgage, and not a deed absolute, to his grantee under whom defendant claims.
    2. Mortgages—limitation of actions—indorsement of payments on record.—Under Crawford & Moses’ Dig., § 7408, requiring that, as to third parties, payments on a mortgage be indorsed on the record by the mortgagee or trustee and attested -by the clerk, held that, as between the mortgagor and mortgagee, it is not necessary that payments on the mortgage debt be indorsed on the record, in order to- stop the running of the statute of limitation.
    3. Mortgages—description of land..—-Description in a mortgage of land as being in “section 35-13-17” is sufficient to describe land in Ouachita County, Arkansas, where it is clear ffom a reading of the entire instrument that the land is located in that county.
    4. . Mortgages—execution- of power of sale—-possession.—In the ex-ercise -of a power of sale by a trustee in a mortgage, it is unnecessary f-or the trustee -to take possession of the land before making a sale.
    Appeal from Ouachita Chancery -Court, Second Division; G-eorg’e M. LeCroy, Chancellor;
    reversed.

      Gaughan S Sifford, for appellant.

      C. I. Gotham and Houston Emory, for appellee.
   Humphreys, J.

This suit was brought in the chancery court of Ouachita County by appellees, who are the widow and heirs at law of E. L. Mayweather, deceased, against appellant, to cancel a deed of trust or mortgage executed by E. L. Mayweather and his wife, Mary May-weather, to J. W. Reynolds, trustee, on the 8th day of May, 1924, upon a 35-acre tract of land and certain personal property, to secure a note of $364.54, with interest thereon, and all other indebtedness due by the mortgagors to the beneficiary in the mortgage, also to cancel two trustee’s deeds executed to T. S. Tyson by the trustee in foreclosure proceedings under said mortgage, and a deed from T. S. Tyson to one of the appellants, Houston Oil Company of Texas; also to recover damages from said appellants for cutting timber and destroying fences on the land, praying in the alternative that appellees be permitted to redeem the land by paying the amount due under the mortgage if the court should find that there was a tona fide debt existing and secured by said mortgage. The muniments of title aforesaid under which Houston Oil Company of Texas claimed said 35-aere tract of land were assailed in the complaint for the following alleged reasons: First, the" instrument attempted to be foreclosed was invalid, and not intended to be executed as a mortgage; second, bar of debt by the statute of limitations; third, insufficient description of the land in the instrument; fourth, failure of the trustee to take possession of the land before the foreclosure; fifth, fraudulent conduct on the part of Tyson, which prevented appellee from redeeming the land from the sale within the statutory period; and sixth, trustee sale invalid on account of irregularities in making same.

Appellants filed an answer denying seriatim- the material allegations in the complaint. The cause was submitted to the court upon the ‘pleadings and testimony adduced by the respective parties, which resulted in a decree allowing all the appellees except Peter May-weather to redeem the land from the foreclosure sale under the mortgage by paying the amount of $508.94 to the Houston Oil Company of Texas, or into the registry of the court, same being six-sevenths of the principal and interest due upon the mortgage at the time of the trial, from which is this appeal.

The first contention for an affirmance of the decree is that the instrument executed by E. L. Mayweather and Mary Mayweather, parties of the first part, to J. D. Reynolds as trustee, party of the second part, and J. W. Reynolds, party of the third part, is and was intended as a deed absolute and not a deed of trust or mortgage. The instrument is lengthy, and for that reason will not be set out in this opinion. It purports on its face to be a conditional sale of real estate, the condition being that, if the party of the first part should pay the note and other indebtedness they owed the party of the third part, at the time the note became due, the deed should be void. The instrument contained a provision for the sale of the real estate to pay the indebtedness, in case default was made in the payment thereof. It is true that the signatures of the Mayweathers were made by mark without being attested by a witness, but they acknowledged executing and signing .the instrument before a notary public, which answered the requirement of law in this respect. It is also true that the Mayweathers separated and divided their real estate, and, pursuant to the division, E. L. May-weather conveyed the south forty of the eighty acres upon which they resided to Mary Mayweather, his wife, with the understanding that she would convey the north forty of said tract to .him. This agreement, however, could not and did not have the effect of converting the instrument in question, which has all the ear-marks of a mortgage, into an absolute deed. Mary Mayweather testified, on direct examination, that she thought she was executing a deed when she gnd her husband executed the instrument in question, but on cross-examination she admitted that she may have executed a mortgage. A careful reading of her evidence, and the other testimony in the case, has convinced us that the Mayweathers intended to execute a mortgage or deed of trust to J. D. Reynolds, as trustee, to secure their indebtedness to J. W. Reynolds. -

The next contention for an affirmance of the decree is that the debt was barred by the statute of limitations at the time of the foreclosure. The debt was due November 15, 1914. The following credits appeared on the margin of the record where the instrument was recorded:

“Credit on this D. of T. March 8, 1915, $27.33; January 6, 1916, $46.45; November 15, 1916, $36.45; November 20,1917, $36.45.”

It is argued that these credits on the margin of the record were not signed or attested in, the manner provided by § 7408 of Crawford & Moses’ Digest. The sec-, tion of the statute referred to was enacted for the purpose of giving notice to third parties of payments made on the mortgage indebtedness. As between mortgagor and mortgagee, it is not necessary that payments be indorsed on the margin of the record to fix a new date for the statute of limitations to begin to run. The widow and heirs of the mortgagor are not third parties. Their rights are derivative, and they stand in the place of the mortgagor. The payment itself, as between the parties, fixes a new date for the statute of limitations to begin to run. The trial court found that the payment of $36.45 was made upon the note on November 20, 1917. This was within five years next before the foreclosure under the power in the mortgage. We have read the evidence carefully,'and cannot say that the finding of the chancellor in this particular was against a clear preponderance of the testimony. E. L. Mayweather was alive at the time the payment was made, and, according to the testimony of Tyson, either he Or one of the heirs made the payment. If made by one of the heirs, the conclusion is irresistible that it was authorized by E. L. Mayweather.

• The next contention for an affirmance of the decree is that the description in the mortgage is void for uncertainty. The argument is made that the description is insufficient because it was not stated that the land is in Ouachita County. The description, as it appears in the mortgage is as follows: “The north 40 acres of land in the of the SE% section 35-13-17, less a five-acre strip off the west side of the north part, sold to the Ouachita Valley Fair Association, being seventy-five acres, land in section 35-13-17.”

The description itself recites that a five-acre tract in the forty was sold to the Ouachita Valley Fair Association. The mortgage recites that the land is the homestead of the mortgagors. It also recites that the cotton to 'be raised by them in Ouachita County, State of Arkansas, during the year 1914, is included as a part of the security for the debt. It also recites that E. L. May-weather £ £ covenants with the trustee that he has already planted (or will plant) in cotton 26 acres, and in corn 22 acres of land, in the county and State aforesaid.” The mortgage was acknowledged before a notary in Ouachita County, and recorded in said county. By reading the entire instrument, the conclusion is irresistible that the land in question is located in Ouachita County, State of Arkansas. Having determined that the land was located in said county and State, by the provisions contained in the mortgage, it follows as a necessary implication that “ section 35-13-17” means section 35, township 13 south, range 17 west, which renders the description definite and certain. Rogers v. Magnolia Oil & Gas Co., 156 Ark. 103.

The next contention for an affirmance of the decree was the failure of the trustee to take actual possession of the land before selling same under the power in the mortgage. It is true that the power in the mortgage provides for an entry and -sale of the land in case of default in the payment of the indebtedness. Under the law of this State, a mortgagee has the option of taking the possession of the land in case of default and paying the indebtedness out of the rents and profits, or, instead thereof, to sell the equity of redemption under the power to satisfy the debt. In the exercise of the latter option it is unnecessary for the mortgagee to enter before the sale/ The purchaser at the sale has the right to do this after obtaining his deed.

The next contention for an affirmance of the' decree is that Tyson, to whom the note and mortgage had ¡been assigned by the trustee, practiced fraud upon one of the heirs, which prevented them from redeeming .the property. It is claimed that he agreed to telephone one of the heirs before selling the land under the power in the mortgage. This was denied by Tyson, and he is strongly corroborated by the other testimony tending to show that he was more than lenient with the heirs and the widow, in extending time to them on various occasions. The evidence is insufficient to sustain the allegations of fraud.

The next and last contention for an affirmance of the decree is because of alleged irregularities in mailing the sale of the land under the power contained in the mortgage. Numerous irregularities are suggested,. each of which we have carefully considered, but all are without merit. It would extend this opinion to great length to write out the reasons for our conclusions. Suffice it. to say that the mortgage was foreclosed in accordance with the law.

In view of our conclusions upon the whole case the decree must be reversed, and the cause remanded with directions to render a decree in favor of appellants. It is so ordered.


author: McCulloch, C. J.

text:
    Huff v. Missouri Pacific Railroad Company.
    Opinion delivered March 8, 1926.
    Railroads—failure to keep lookout—contributory negligence.— Under Crawford & Moses’ Dig., § 8568, providing that, if any person or property shall he killed or injured hy the neglect of any employee of any railroad to keep a lookout, the company shall be responsible, notwithstanding the contributory negligence of the person injured, where, if such lookout had been kept, the employee could have discovered the peril of the person injured in time to have prevented the injury, held that the protection applies to property damage as well as personal injury, and that in the case of an injury to property the contributory negligence of the owner is not a bar to a recovery.
    Appeal from Miller Circuit Court; James H. Mc-Collum, Judge;
    reversed.

      J. M. Carter aud B. E. Carter, for appellant.

      E. B. Kinsworthy and B. E. Wiley, for appellee.
   McCulloch, C. J.

Appellant sues to recover the value of a motor truck, which was struck and demolished by one of appellee’s passenger trains near Homan, a station in Miller County, north of Texarkana. Appellant was driving the truck himself, but jumped off immediately before it was struck by the engine, and thus escaped personal injury. Negligence is charged against the servants of appellee in failing to keep a lookout, and in failing to sound an alarm after discovering appellant’s perilous position in proximity to the railroad track. Appellee answered denying the charge of negligence, and pleading contributory negligence on the part of appellant. On the trial of the issue, the court directed a verdict in favor of appellee.

There is an improved highway running parallel with the railroad track, about fifty feet distant, and appellant was traveling in his truck northward along that road. The road was being surfaced with gravel at the time, and appellant, with other persons, was engaged in hauling gravel to use in the work of surfacing the road. The gravel was shipped to Homan by rail, and was hauled out of 'cars standing on a spur track, which was situated across the main track from the public road. There was a crossing about one hundred feet south of the station, and the trucks crossed there in order to get to the gravel cars. Appellant’s truck was struck by a northbound passenger train as he was' crossing over to get to the gravel car.

Appellant testified that, when he came to the turn where the road crossed the railroad track, he looked up the track to the north, hut did not look to the south; that he heard no signals by bell or whistle; that there was a slight depression between the graveled road and the railroad track, and that, as he turned up from this depression to come upon the track, he discovered the near approach of the train, and, seeing that it would hit his truck before he could stop it, he jumped and escaped injury. Other witnesses testified, in corroboration of appellant’s statement that there was no signal sounded. The track was straight for a long distance south, and there was no obstruction of any kind. Appellant could have seen the train approaching if he had looked towards the south, and the engineer and fireman could have seen appellant driving his truck at any time if they had been looking. Appellee did not introduce any testimony.

Our conclusion is that, -upon this state of facts— according to it the greatest force that it reasonably justified—the court erred in taking the case from the jury by a directed verdict.

The jury might have found that the engineer and fireman failed to keep a lookout, as required by statute (Crawford & Moses’ Digest, § 8568), and that, if an efficient lookout had been kept, appellant’s position of peril could have been discovered in time to have prevented the injury by giving danger signals, and that no such signals were given. The' jury might have found also that the engineer or fireman actually discovered appellant ’s peril in time to have given him warning by whistle so as to prevent the injury. Appellant was traveling northward along the public highway, in full view of the approaching train, and the men operating the train had the right to assume that appellant would not drive upon the track ahead of the train; but, according to the evidence, there is a distance of about fifty feet from the main road over to the track, and they saw, or could have seen, appellant making the turn to cross the track, apparently oblivious of the approach of the train. It was within the province of the .jury to find that it constituted negligence on the part of the engineer or fireman not to'sound a warning blast of the whistle when he saw the truck turn towards the railroad crossing immediately in front of the engine. A loud blast of the whistle might have attracted appellant’s attention so that he could bring the truck to a stop before it reached the railroad track. Therefore the failure to keep a lookout or to sound the whistle was the proximate cause of the injury.

But it is contended by counsel for appellee that, according to the undisputed evidence, appellant was guilty of contributory negligence in attempting to drive upon the track without looking up and down the track for the approach of a train, and that this act of contributory negligence bars recovery of damage to property under, the lookout statute, supra. "We think that counsel are correct in the contention that the undisputed" evidence establishes negligence on the part of appellant in failing to look for approaching trains before attempting to cross the track. The injury occurred in broad daylight, the. track was straight, and there were no obstructions, and appellant could have seen the approaching train if he had looked towards the south. He was travelling northward, and could see up the track without effort, and it was his duty to look towards the south to see whether a train approached from that direction. It was his duty, in order to make his precautions effective, to look up and down the track (St. Louis-San Francisco Ry. Co. v. Crabtree, 69 Ark. 134), and there was nothing in the circumstances or surroundings to relieve appellant from the duty of looking to the south as well as to the north, hence he was guilty of negligence in failing to look. Such negligence does not, however, bar recovery under the lookout statute, and counsel for appellee are mistaken in their contention that it does so. The statute declares, in so many words, that “if any person or property shall be killed or injured by the neglect of any employee of any railroad to keep such lookout, the company owning or operating any such railroad shall be liable and responsible to the person injured for all damages resulting from neglect to keep such lookout, notwithstanding the contributory negligence of the person injured, where, if such lookout had been kept, the employee or employees in charge of such train of such company could have discovered the peril of the person injured in time to have prevented the injury, by the exercise of reasonable care, after the discovery of such peril.” The contention of counsel is that this applies to personal injury, and not to injuries to property, but such is not the effect of the statute. We have held that it applies to property damage as well as to personal injury. Blytheville, L. & A. So. Ry. Co. v. Gessell, 158 Ark. 569. In that case there was a property damage involved—the destruction of a truck, the same as in the present case—and in the opinion we said: ‘ ‘ This statute has been construed as imposing upon the railroad company the duty of keeping a constant lookout, and makes the failure to keep this lookout the proximate cause of such injuries as could and would have been averted had the lookout been kept, if the employees in charge of the train could have discovered the peril of the person injured by keeping such lookout, in time to have prevented the injury, by the exercise of reasonable care after the discovery of such peril, notwithstanding the contributory negligence of the person injured.” Even if a proper lookout had been kept, contributory negligence would not bar a recovery where the injury was caused by negligence in failing to exercise care on the part of the engineer or fireman to avoid the injury after discovering the peril. So contributory negligence was not a bar to recovery, either under the lookout statute or under the doctrine of discovered peril.

The judgment is therefore reversed, and the cause remanded for a new trial.