author: Smith, J.

text:
    Taylor v. State.
    Opinion delivered July 11, 1927.
    1. Seduction — sufficiency of evidence. — In a prosecution for seduction under a promise of marriage, evidence held to support a finding- that the female alleged to have been seduced was an unmarried person.
    2. Seduction — corroboration of seduced female. — In a prosecution for seduction under a promise of marriage, evidence held sufficient to support a conviction as against the contention that the testimony of the seduced female was not corroborated, either as to promise of marriage or as to the act of sexual intercourse.
    3. Criminal law — refusal of instruction already covered. — In a .prosecution for seduction, refusal of instructions correctly declar- ■ ing the law as applied to the issues of the fact in the case held not error, where the instructions given fully and fairly declared the law applicable to all issues.
    4. Criminal law — argumentative instructions. — In a prosecution for seduction under promise of marriage, ah instruction that the prosecuting witness was presumed virtuous and defendant presumed innocent, but that the presumirtion of innocence was greater than the presumption of virtue, was properly refused as such being argumentative and confusing.
    5. Seduction — chastity of prosecutrix — burden of proof. — In a prosecution for seduction under promise of marriage, the burden of proof is on the defendant to show that the prosecuting witness was not virtuous.
    Appeal from Pike Circuit Court; B. E. Isbell, judge;
    affirmed.

      Tom Kidcl. and Pinnix & Pimvix, for appellant.

      II. W. Applegate, Attorney General, and John L.Carter, Assistant, for appellee.
   Smith, J.

Appellant was indicted for seducing Carrie Whisenliunt, an unmarried female, was convicted at his trial, and has appealed. The first insistence for the reversal of the judgment of the court sentencing him to a term in the penitentiary is that the testimony failed to show that the female alleged to have been seduced was an unmarried person. The testimony shows, however, that the woman alleged to have been seduced had been reared in that community, and the witnesses all called her Miss Whisenhunt, and she was referred to as the daughter of Bob Whisenhunt. Appellant and all the other witnesses who testified in the case had long been acquainted with her, and she testified that appellant courted her and agreed to marry her, and, by virtue of this promise, had carnal knowledge of her, and that she had never had sexual intercourse with any other man. This testimony, we think, sufficiently supports the finding that Miss Whisenhunt was an unmarried person.

It is also insisted that the testimony is not legally sufficient to support the conviction, in that the testimony of Miss Whisenhunt is not. corroborated either as to the promise of marriage or the act of sexual intercourse, both of which facts appellant denied.-

Miss Whisenhunt testified that appellant began to visit her the second Sunday in April, 1924, and that he called nearly every Sunday after that, and frequently spent Saturday evenings with her. That he courted her, and she foil 'in love with him, and that they became engaged on tlie second Sunday in May, and he asked her to have sexual intercourse with him, but she declined to yield, and he became angry and discontinued his visits for a few weeks, but he apologized for his request and resumed his visits, and they renewed their engagement. Appellant renewed his importunity that she have sexual intercourse with him, and insisted that it was not wrong, as they were going to marry, and she yielded because she loved him and believed he was going to marry her. This occurred the third Sunday in June, 1924. The acts of sexual intercourse were repeated, but always under and in reliance upon appellant’s promise to marry her. Appellant continued his visits until September, when Miss Whisenhunt told him that she had become pregnant. Appellant declined to marry her, and went to Texas, and did not return until December. He then went to Colorado, where he remained until he was brought back to this State by the sheriff.

Miss Whisenhunt was corroborated as to the atten-lions paid her by appellant, and that, during this interval, his attentions were exclusive. Miss Whisenhunt gave birth to a boy child March 5, 1925.

T. A. Morphew testified that appellant told him in May, 1925, that he had come to see his wife, referring to Miss Whisenhunt, and that he was going to see her and give her $75 and then leave the country. Appellant asked witness to deliver this money, but witness declined to do so. On his cross-examination witness testified that appellant said he had come to see his wife and Clayton Pen-son’s baby.

' J. W. Penson testified that he saw appellant after his return, and appellant asked him had I seen his boy; was he a fine boy; how did, he look? The child referred 1o was the baby to which Miss- Whisenhunt had given birth. This witness testified that appellant said he would not deny it being his boy, and was asking how did he look, and was he a fine boy. Witness told appellant the child was puny, and they did' not think it would live, and appellant answered that he did not give a d-if it would die.

B. A. Penson testified that appellant admitted to him that he told Miss Whisenhunt a lie when he promised to marry her.

Appellant admitted that he had loved Miss Whisen-hunt, and that, after the birth of the child, he had asked her why she was accusing him, and had also asked her if he was the father of the child, and that she had answered that it didn’t make any difference whether he was the father of the child or not, she was going to send him “over the road” anyway.

We think this testimony sufficiently corroborative of that of Miss Whisenhunt to meet the requirement of the law, that the testimony of a female alleged to have been seduced be corroborated by other evidence.

The court gave only one of the instructions requested by appellant, the one given being to the effect that, although appellant had promised to marry the prosecuting witness, yet if the engagement was broken and he afterwards had intercourse without renewing his promise to marry, he would not be guilty of seduction. We have already said that Miss Whisenhunt admitted the engagement had been broken, but she also testified that it had been renewed, and that she yielded under the renewed promise.

Of the other instructions asked by appellant, several might well have been given, as they were correct declarations of the law as applied to the issues of fact in the case, but it appears that the instructions given fully and fairly declared the law applicable to all the issues of fact presented by the testimony.

The instructions given by the court required the jury to find beyond a reasonable doubt, before convicting appellant, that he had obtained carnal knowledge of Miss Whisenhunt by virtue of a false express promise of marriage, and that, prior to.the act of intercourse, she was of chaste character, and the jury was directed to acquit the defendant if any reasonable doubt was entertained of the previous chaste character of the prosecuting witness, The jury was further instructed that it must he found beyond a reasonable doubt, before defendant could be convicted, that Miss Whisenhunt was induced to surrender her virtue through the promise of defendant to marry her, and that only, and that, if she had yielded her virtue for sexual pleasure, and not by reason of a promise of marriage, the defendant would not be guilty.

The court also fully and correctly charged the jury as to the necessity for corroboration both as to the promise of marriage -and the act of sexual intercourse, and gave other instructions on the question of reasonable doubt and the presumption of innocence.

Several witnesses testified, on behalf of appellant, to the effect that they had had sexual intercourse with Miss Whisenhunt prior to the time of her alleged seduction, but it is evident from the verdict returned under the instructions given that the jury did not believe this testimony.

Appellant requested an instruction numbered 15, which reads as follows: “You are instructed that the prosecuting witness is presumed to be chaste and virtuous and the defendant is presumed to be innocent, but the presumption of innocence is greater than the presumption of virtue.”

It is insisted that no other instruction given covered this phase of the case, and that it was error to refuse this instruction.

At § 61 of the chapter on “Seduction” in 24 R. C. L., page 777, it is said :

“Much conflict of opinion has resulted in determining whether, in the prosecutions for seduction, the burden of proof rests on the State to prove the chastity of the woman seduced, or on the defendant to prove her want of chastity. In favor of the former position, it is contended that the State must establish every element of the offense beyond a reasonable doubt, and the chastity of the woman is one of the essential elements. On the other hand, it is contended that a woman is presumed to be chaste until the contrary is shown. The majority rule favors the latter view; hence, the chastity of the woman is presumed in the first instance, and the defendant must introduce evidence of unchastity in order to take advantage of the defense. In support of this position it is contended that, while the law presumes the prisoner innocent until proved guilty, it does not follow that the State can use no presumptions.”

Our case of Caldwell v. State, 73 Ark. 139, 83 S. W. 929, 108 Am. St. Rep. 28, is cited as supporting’ what is there said to be the majority rule. This Caldwell case reviewed the authorities on the subject, and particularly the previous opinions of this court in the cases of Polk v. State, 40 Ark. 486, 48 Am. Rep. 17; McArthur v. State, 59 Ark. 431, 27 S. W. 628; and Walton v. State, 71 Ark. 398, 75 S. W. 1, in which last mentioned case it had been held that an indictment for seduction is bad which fails to allege that the prosecutrix was of previous chaste character.

This.holding in the Walton case was modified in the Caldwell case, where it was held that it was not essential to allege the previous chastity of the prosecutrix, nor prove it, as there was a presumption of chastity. The holding in the Caldwell case was that the lack of chastity was an affirmative defense which the defendant might offer, and that, when made, the burden was on him to establish it, because of the presumption of chastity.

Numerous later cases have held that it was not improper to charge the jury that there was a presumption of chastity, although there was also a presumption of innocence. Sutton v. State, 163 Ark. 468, 260 S. W. 409; Taylor v. State, 113 Ark. 520, 169 S. W. 341; Wilhite v. State, 84 Ark. 67, 104 S. W. 531; Rucker v. State, 77 Ark. 23, 90 S. W. 151.

There is no conflict in the two presumptions. The presumption of chastity relates only to the burden of proof. Chastity need not be alleged in an indictment, nor need it be proved at the trial, because it is presumed. It may be shown that it does not exist, and that burden is on the defendant who offers that defense, just as the burden of proof'of an alibi is on the defendant who interposes that defense. But the accused is clothed with a presumption of innocence, notwithstanding the burden of establishing an affirmative defense when he interposes it, but the fact that he is presumed to be innocent does not relieve him of the burden of establishing an affirmative defense.

The instruction is argumentative and is confusing, for the reason that it appears to tell the jury that the indulgence of the presumption of innocence relieves the accused of the burden of establishing the affirmative defense of a lack of chastity.

An instruction numbered 2, given by the court, reads as follows:

‘‘You are instructed that the prosecuting witness is presumed to be of chaste character, and the burden of proving that she was unchaste at the time of the alleged seduction is upon the defendant; but the burden is on the State upon the whole case to prove the defendant guilty from all the evidence in the case, beyond a reasonable doubt.' If you have a reasonable doubt that the prosecutrix was of previous chaste character, you will acquit the defendant. ’ ’

It thus appears that, while the jury was instructed that the burden was on the accused to show that the prosecutrix was unchaste, he was given the full benefit of the presumption of innocence with which the law clothed him.

There was no error in refusing to give this instruction.

We find no error in the record, and the judgment must be affirme/d, and it is so ordered.


source: Caselaw Access Project

license: Public Domain

text:
    Thompson v. Darr.
    Opinion delivered July 11, 1927.
    1. Boundaries — conclusiveness op chancellor’s finding. — In a' suit to enjoin the removal of a boundary fence between plaintiff’s and defendant’s land, the chancellor’s finding and decree fixing the line in accordance with the testimony of one surveyor held not against the preponderance of the evidence.
    2. Boundaries — fixed monuments.' — A surveyor cannot change the corners established by the Government survey, as such fixed monu- - ments prevail over both courses and distances under § 2396 of Bev. St. U. S. (U. S. Comp. St. § 4804).
    3. Boundaries — establishing lost corners. — The proper method of procedure in locating a lost corner is to start at the nearest known point on one side of the lost corner on the line on which, it was originally established; then measure to the nearest known ..corner on the other side on the same line, and, if the length of the line be in excess of that called for by the original survey, to divide it between the tracts connecting to such known points in proportion'to the length of the boundaries of such tracts on such line as given in the survey.
    Appeal from Conway Chancery Oonrt; W. E. Atkinson, Chancellor;
    affirmed.

      Edward Gordon, for appellant.

      ■Strait & Strait and E. A. Williams, for appellee.
   Smith, J.

Appellee Darr owns the southwest quarter of section 34 and the east half of the southeast quarter of section 33, township 7 north, range, 17 west* and appellant Thompson owns, the adjoining land on the west and the north, and this litigation involves the location of the true boundary line between these coterminous owners.

Appellee had a fence on what he says is the true line, and appellant removed it, and the litigation began as a suit to enjoin that action. Five surveyors testified in the ease, two on behalf of appellee and three on behalf of appellant. The court accepted as correct the survey made by E. A. Woolverton, and the decree which awarded appellee the relief prayed was based on the testimony of this witness. Woolverton testified that he had been engaged in surveying for fifty-three years, and that for twenty-six years of that time he was the county surveyor, although he was not holding that office at the time his deposition was taken. Pie testified that, in 1886, he had located the essential corners from the Government field-notes, as the bearing- trees were then standing, and that he had had occasion to survey the line running north and south between-the east half of the southeast quarter of section 33, owned by appellee, and the west half of that quarter section owned by appellant, three times, twice before either of the litigants became owners and once since appellee had purchased the interest he now owns, and that he had twice run the line between sections 33 and 34.

Woolverton testified that, when he surveyed appel-lee’s west line, he commenced at the quarter section corner between section 33, township 7 north, and section 4, township 6 north, range 37 west, and ran due east 20 chains and 20 links, and continued that line to the northeast corner of section 4, township 6-north, range 17 west, and found that it was 20 chains and 20 links to the section corner, and that this was correct, and, when he first made that survey, the bearing trees were at the corner established by the Government survey, and that his subsequent survey made by him coincided with the first survey, and was verified when he found an iron stake which he had previously embedded in the ground.

On his cross-examination Woolverton testified as follows: “I began at the southwest corner of the Thompson land because I knew that corner to be correct. I then ran east 20 chains and 20 links, and set the southeast corner of the Thompson land and the southwest corner of the Darr land, then I ran north 40 chains anid 36 links to the northeast corner of the Thompson land, which is the northwest corner of the Darr land. Now I will state that the Government field-notes only give one mile even on the south lino of section 33, but by actual measurement from corner to corner I find that it is one mile and 80 links. I therefore divided that into forty-acre tracts, giving to each forty 20 links on the south boundary of section 33. I did that when I surveyed the Cook land; Cook owned the land south of 33, and also owned the lands that Darr owns in 34, and in surveying that I surveyed from one corner of section to the other, and the witness trees at the corner were still standing. I found, as I stated, there were 80 links more in measure-, ment than the G-overnment field-notes give it, and that is why I made the division as I did, giving 20 links to each forty. My survey does not vary from the Government field-notes on the south side of section 33; I can explain that, I think, to your satisfaction. The law is, and that is the instructions that we get, too, where we find that our chain measures more than is given in the Government field-notes, we adjust our chain so as to make the measurement they do. Instead of changing my chain, I made the division by my chain as I measured it. We are compelled to accept the corners as established by the Government, and we have to adjust our measure to that. There are 80.8 acres in the east half of the southeast quarter of section 33.”

The fact that the south line of section 33 is one mile and eighty links in length, instead of an exact mile, is one of the facts out of which the differences in the surveys arise.

H. L. Wright, another surveyor, testified that Wool-verton’s survey was correct.

The surveys hv the other three surveyors give appellant the strip of land in controversy, hut there are certain differences in these surveys, which we will not set out, which make it very probable that they were not as accurate in the location of the essential corners as Wool-verton had been.

Woolverton’s testimony makes it clear that, if his survey is not correct, the boundary lines of adjacent lands, which have long been accepted as correct, are erroneous to the same extent that appellant claims the disputed line is in error.

After the depositions of a ■ large number of witnesses had been taken, the cause was submitted to the court in May, which was an adjourned term of the regular January, 1926, term of the chancery court. The cause was submitted under an agreement that respective counsel might file briefs and a final decree he rendered in vacation settling the boundary line, hut reserving the question of damages. A few days after the submission the court advised counsel in the case that he recalled that Woolverton testified that his last survey coincided with the one he had made thirty years previously, and that hé had decided to •sustain Woolverton’s survey. This decision gave the disputed strip of land to appellee.

The court directed counsel to prepare the decree in accordance with this finding, and, if they were unable to agree, to advise him.

The precedent for the decree was not prepared, and, when the regular June, 1926, term of the court convened it appeared that counsel for appellee had prepared a brief on the question of damages* which had been served on the former attorney for appellant but had not been served on the attorney then representing appellant, and the cause was set down for a later date to afford counsel for appellant an opportunity to file a brief on the question of damages, but, when that day arrived, appellee ■waived the damages, and a final decree was entered on the record in appellee’s favor.

At the same term of court appellant filed a petition to vacate the decree and to reopen the case and to hear further testimony, it being alleged that the original decree had been based' upon the testimony of Woolver-ton, and that Woolverton had conceded that his testimony was erroneous, and that the survey giving the disputed strip of land to appellant was correct. Accompanying this petition were the affidavits of S. Gr. Davies and B. F. Stermer, surveyors, who had originally testified in appellant’s behalf, to the effect that Woolverton had admitted the correctness of the surveys made by affiants.

The court announced that the case would not be reopened except for the purpose of determining whether Woolverton had admitted the inaccuracy of his survey, and the petition appears to have been treated as a proceeding under § 1316, C. & M. Digest, which provides that, when grounds for a new trial are discovered after the term at which the verdict or decree was rendered, application may he molde not later than the second term after the discovery to set aside the judgment or decree. It was agreed that the affidavits accompanying the petition should he treated as depositions, and Woolverton was orally examined before the court.

These affidavits were to the effect that, after the final submission of the cause, the affiants, accompanied by Woolverton, re-ran the lines in question, and this survey established the line for which appellant contends, and Woolverton conceded that this survey was correct and his own previous survey incorrect. These affiants recited various circumstances connected with the survey made in Woolverton’s presence, some of which Woolverton admitted, while others he denied.

The court refused to permit Woolverton to again testify as to the accuracy of his survey, hut did permit him to make the following explanation of his acquiescence in the survey of Stermer, which survey was made in the presence of himself and Davies: “At the time that Thompson was talking to me (about the survey made after the submission of the cause) I thought that Stermer had made the right division. After figuring on it that night I decided that he made the wrong division as to the line between Thompson and Darr, and next morning T went to talk with him, and learned he had gone to the bottoms. I then hunted up Mr. Davies and told him that we had made a mistake that evening before as to the location of the line between Darr and Thompson; that I wanted to go up there and check it over' from the nearest known corner and see if we had made a mistake. Mr. Davies claimed we had made no mistake, and he did not care about it, so I hired a man and went there and checked over the line from the same starting point, and I gave Thompson twenty chains and twenty links, as I did in the first survey, and I found that the iron stake that I had put up that time had been moved. I then called Thompson’s man on the farm np there and marked the. place where the line should be, at twenty chains and twenty links east of the quarter section corner on the south side of section 33, which' Stermer and Davies accepted as the true corner, and I measured east from the twenty chains and twenty links, marked the place, and called Thompson’s man down there and showed him Avhere the corner should be. ’ ’

Having thus explained his acquiescence in the Ster-mer survey, Woolverton stated that his rechecking located the corner as he had located it in his previous surveys, and that this established the line as originally testified by him, and that his former testimony was correct.

We think the finding and decree of the court fixing the line in accordance with Woolverton’s testimony is not against the preponderance of the evidence, and we are also of the opinion that the court was warranted in refusing to set aside its decree upon the ground that Woolverton conceded that his first testimony was erroneous.

In this connection it may be said that it clearly appears that the line contended for by appellee between the east and west half of the southeast quarter of section 33 has been apparently acquiesced in for many years. Appellee testified that he had lan agreement with appel-' lant’s predecessor in title as to the line under which he built the fence which appellant tore down on the line which appellee contends is correct.

It was also shown that at one time a German, whose name is not stated, was in possession of the west half of the southeast quarter section 33, and that he had cleared a strip of land along the east side thereof, and Woolver-ton testified that he made a survey at least twenty years before the trial of the line between the east and west half of this quarter section, and that it appeared from this survey that the German had cleared over the line, and the German accepted this survey as correct, and built a levee on the line as established by Woolverton, which did not extend, however, the entire length of this dividing-line.

It may be said also that Woolverton was correct in Ms apportionment of the excess of the 80 links more than the mile which the Government field-notes showed to be the length of the south line of section 33, the apportionment being the addition of 20 links to the south line of each 40-acre tract bounded by the south line of the sec-ti on.

The surveyor could llot change the corners established by the Government survey, as these fixed monuments prevail over both course and distance. Meyer v. Board of Imp. Pav. Dist. No. 3, 148 Ark. 623, 231 S. W. 12. Section 2396 of the U. S. Revised Statutes so provides. •

The Supreme Court of Wisconsin, in the case of Levis v Prien, 73 N. W. 654, 98 Wis. 87, said:

“The unvarying rule to be followed in such cases is to start at the nearest known point on one side of the lost corner, on the line on which it was originally established ; to then measure to the nearest known corner on the other side, on the same line; then, if the length of the line is in excess of that called for by the original survey, to divide it between the tracts connecting such two known points in proportion to the lengths of the boundaries of such tracts on such line as given in such survey.”

Upon a consideration of the whole case the decree appealed from does not appear to be against the preponderance of the evidence, and it is therefore affirmed.


author: Humphkeys, J.

text:
    Standard Oil Company of Louisiana v. Hydrick.
    Opinion delivered July 11, 1927.
    1. Appeal and'error — conclusiveness op verdict. — The jury’s verdict will not be disturbed on appeal, if there is substantial legal evidence to support it, when viewed in the light most favorable to appellee, and given its highest probative value, with all inferences reasonably deductible therefrom.
    2. Explosives — jury question. — Whether a fire was caused by heated sparks of carbon from the exhaust of a truck, where the driver filling the tank in a barn spilled gasoline^ on shavings and cranked the car, allowing the motor to run, held under the evidence for the jury.
    Appeal from Cross Circuit Court; W. W. Bmvdy, Judge;
    affirmed.

      Moore, Gray, Burrow & McDonnell, for appellant.

      Ogan & Shaver, for appellee.
   Humphkeys, J.

This is an appeal from judgments in favor of appellees, Gr. E. Hydrick, for $1,836.35, and Mrs. Gr. E. Hydrick for $163.65, against appellant, rendered in the circuit court of Cross County, for damages sustained by each for the loss of their home and certain personal property caused by fire resulting from the alleged negligence of appellant in making a delivery of gasoline.

Appellant denied the allegation of negligence contained in the complaint, and the cause was sent to the jury, over its objection and exception, on the issue of negligence. At the conclusion of the testimony appellant requested the court to direct the jury to return a verdict in its favor, upon the alleged ground that the proof failed to show, directly or substantially, that the fire which destroyed the property originated from sparks or heated pieces of carbon emitted by the motor of the truck in which the gasoline was delivered by appellant’s employee to appellees. The court refused to peremptorily instruct a verdict in its favor, and appellant contends for a reversal of the judgment on that account. The rule is that a verdict of a jury will not he disturbed by this court on appeal if there is any substantial legal evidence to support it, when viewed in its most favorable light to appel-lee and when given its highest probative value with all inferences reasonably deducible therefrom. Hall v. Jones, 129 Ark. 18, 195 S. W. 399; Arkansas Land & Lumber Company v. Fitzhugh, 143 Ark. 122, 219 S. W. 1022; Standard Oil Company of Louisiana v. Gill (Ark.), 297 S. W. 1020.

The testimony in the instant case, when viewed in its most favorable light to appellees and given its strongest probative force, is, in substance, as follows:

Appellees requested appellant to make a delivery of gasoline to the home of appellees, who sent A. L. Bridges, one of its drivers, with a Ford truck equipped with a gasoline tank to make the delivery. Upon arriving at the premises of appellees, Bridges found that the tank into which he was to deliver the gasoline was situated inside of appellees ’ barn, eight and one-half or nine feet from the entrance. He hacked his truck up to and about one foot inside the entrance to the barn and drew the gasoline from his truck tank through a faucet on the rear thereof into a 5-gallon gasoline can, and conveyed it to the container of appellees, which was a 54%-gallon standard oil drum. In filling the drum he ran it over, spilling about a quart of gasoline on the dirt floor, which sloped toward the front. He brought more gasoline than was ordered, and put what the mlain drum would not hold into an open-top bucket, which he also ran over, and placed it on top of the main drum, leaving the gasoline exposed. There were quite a lot of chips and shavings lying on the floor near the drum or tank. Bridges then cranked the car, and allowed the motor to run while he wrote a receipt and gave it to Eva May Hydrick, a littfe girl ten years old, who brought the check to him for the gasoline. Fire broke out in the barn about five or six minutes after Bridges drove away, which was discovered by Eva May Hydrick, who had been sent to the barn by her mother to see if the cow had been turned out.

William Baugh qualified as an expert, and testified as follows:

“A. Well I-have had a right smart experience— drove cars and drove tractors — and an engine that stands idle a-running for a while will throw out hot carbon and is liable to set anything afire. Q. Now, Mr. Baugh, where, in what part, and from what part of the car would those hot sparks and burning carbon come? A. Come from the exhaust. Q. You know where the exhaust is located .on a Ford truck? A. Yes sir, it- is near the rear axle. Q. Describe where is the muffler on that exhaust? A. The muffler is nigh'the rear axle. Q. I am speaking about the exhaust pipe! A. The exhaust pipe runs into the muffler. Q. Does the exhaust pipe run out of the muffler! A. No sir. Q. Did you ever look into one of those mufflers? A. Yes sir. Q. TIow are they constructed on the inside? A. That is double on the inside, and the exhaust has got to go through and make a return in there. Q. What makes sparks fly out of the back end of a Ford car? A. Carbon. Q. Suppose the carbon has been removed out of a car within a reasonable length of time, say a week or ten days, would carbon come out of that car! A. Yes sir, carbon will collect in any gasoline engine in a very short time. Q. I will ask you, Mr. Baugh, suppose a car was in proper condition, would those sparks have a tendency to drop straight down from the end of the muffler or would the explosion of the muffler have a tendency to throw them back? A. Well, that would depend on the way the motor was pulling. If the motor was pulling hard, the harder the motor was pulling the further back it would throw those sparks. Q. Suppose a truck, like the Standard Oil Company truck, was at á dead stand, and went to start on a» pull, would that engine be pulling harder to start than it would after it got started? A. It would be pulling harder when it started than when it got started. Q. Would it be more liable to throw.sparks back when it was pulling hard than when it was after it was moving off? A. It would be more liable to throw sparks when it was getting started than it would when it was moving off on the road. ’ ’

The testimony of William Baugh was corroborated by G-. E. Hydrick, who himself had had a great deal of experience in operating arid repairing automobiles and trucks.

No other believable theory of the origin of the fire was advanced and sustained by the proof.

In stating the case as favorably to appellee as possible, the writer has drawn largely upon the statement furnished by learned counsel for appellant, with the addition of William Baugh’s and Gr. E. Hydride’s testimony, which Avas not referred to by them. We haye added the testimony of these expert Avitnesses because their evidence furnishes a basis from which the jury might have reasonably inferred that the fire originated from sparks or heated pieces of carbon which could have been emitted by the motor through the exhaust pipe and muffler, when the car was started, which could have fallen on the chips and shavings, causing them to blaze and ignite the gasoline. Counsel for appellant earnestly contend that it is contrary to the very naturS of things that a spark thrown amongst rubbish saturated with gasoline would have smoldered for five or six minutes before causing a blaze. Chips or shavings saturated with gasoline will not blaze any quicker than if not saturated with gasoline. It takes a blaze to ignite gasoline. A spark or piece of heated carbon might not create a blaze in- a pile of shavings for some time. It might smolder until a gust of wind fanned it into 'a flame. We ciannot say that the verdict rests upon conjecture and speculation. No other believable theory was advanced for the origin of the fire. Bridges spilled gasoline on the floor that had shavings and chips on it, and left several gallons of gasoline exposed in an open-top bucket; he then cranked the car and allowed the motor to run while writing a receipt, after which he started the car. According* to the expert testimony, sparks and heated carbon may have been emitted when the car started that could have fallen into the shavings and chips and started the fire. This would haAre been a reasonable .inference, in view of the fact that the fire Avas discovered only five or six minutes after Bridges left and when no other belieAuible theory for the origin of the fire Avas proved.

We think there is sufficient legal evidence in the record to sustain the verdict. The judgment is therefore affirmed.


author: Kirby, J.

text:
    Nickel v. Dashko.
    Opinion delivered July 11, 1927.
    1. BROKERS — right TO compensation. — A broker cannot recover compensation for services voluntarily rendered without any request or employment, express or implied.
    2. Brokers — ratification of broker’s acts. — While a contract of employment may he implied from substantial acts of ratification on the part of the principal, he must say or do something tending to prove that he accepted the ¡broker as his agent in the matter, something more than merely selling to the party whom the broker, while acting as a volunteer, brought to him.
    3. ■ Brokers — chancellor’s finding contrary to evidence. — In ■ a broker’s suit for commission for assisting in the sale of a mining lease, the chancellor’s finding that there was no express or implied agreement to pay a commission held contrary to the preponderance of the testimony.
    4. Estoppel — silen'ce. — In a- suit by a broker to recover a commission for procuring a sale for a mining lease for defendants, the fact that plaintiff was present during a eoriversation wherein another broker stated to the buyer’s attorney that he did not expect a commission, held not to estop plaintiff from claiming a commission,' since the question was not addressed to him and did not! call for a reply by him.
    Appeal from Union Chancery Court, Second Division; George M. LeCroy, Chancellor;
    reversed.

      John Bruce Cox and J. B. Wilson, for appellant.

      Powell, Smead & Knox, for appellee.
   Kirby, J.

Appellant brought this suit for a broker’s commission for assisting in effecting a sale to the Southern Crude Oil Purchasing Coinpany of a mining lease, owned by John Dashko and others, for $250,000.

It is alleged that Nickel introduced John Dashko, who had authority to represent the other owners, to the officers of the Crude Oil Company, which resulted in its purchase of the property, and for his assistance in making such sale, under his agreement of employment, he was entitled to recover $12,500 for the services rendered.

Defendants denied all the allegations of the complaint, and that they had employed appellant, that he rendered no service whatever, beneficial to them, in bringing about the sale of the property, and ‘that they were indebted to him in any sum whatever. ,

During the trial, upon a question being asked Dashko the answer to which might have resulted in some disclosures about what had been done with the money realized from this sale and affect materially his defense of other suits, he was permitted to decline answering the question, upon giving a bond to pay any judgment that might be rendered in the case against him.

The chancellor found: “That the plaintiff is not entitled to recover for commission sued for, but that he performed services for which he is entitled to compensation, and is entitled to the sum of $500 for such services so performed, and the court so finds,” and entered a decree • against John Dashko for $500 and costs, from, which this appeal is prosecuted.

Appellant contends that the chancellor’s finding that he was not entitled to a broker’s commission for making the sale or assisting in bringing it about is contrary to the preponderance of the testimony and contradicted by his finding that he rendered such service in making the sale as entitled him to recover $500 compensation, which finding, he insists, is equivalent to holding that he was entitled to recover a commission, and that, upon such finding made, he is entitled to a decree for the customary commission in making such sales, which the. undisputed testimony shows to be 5 per cent., notwithstanding, the finding that no commission was earned.

Appellees insist that there was no contract of employment, and that, if an agreement was made to pay a commission, it was'without consideration, and that appellant is estopped to claim a commission.

It is settled law that a broker is not' entitled to compensation for services unless rendered pursuant to an express or implied request of his employer, and cannot recover compensation for services voluntarily rendered without any employment, express or implied, as said in 4 ft. C. L. § 43: “ While a contract of employment may be. implied from subsequent acts of ratification on the part of the principal, the owner must say or do something- tending to prove that he accepted the broker as his agent in the matter — something more than merely selling the party whom the broker, while acting as a volunteer, brought to him.” See also Johnson v. Garrett, ante, p. 682. We think that the preponderance of the testimony discloses that Dashko did something more than “merely selling” the parties the broker brought to him, and certainly the decree supported that view.

The evidence shows that Nickel learned, after the gusher was brought in on the Dashko lease, that the Southern Crude Oil Purchasing Company wanted to buy it; that Nickel was engaged in the brokerage business at El Dorado; and he went immediately to the location of the well to find Dashko, and was told by Roy Baker there that Dashko was at Camden, attending court, and Nickel went, on there, at the suggestion of Baker, taking Baker with him. He was unable to see Dashko till after court adjourned, and, calling him to the car, he talked with him. Dashko was much excited about the well, and had to go immediately to the lease to arrange for a new storage. Witness told him it was important that he should see him about a matter of interest to him, Dashko, and Dashko agreed to see him as soon as he got to El Dorado. Dashko came into the G-arrett Hotel with Roy Baker, where Edgar Black and witness were waiting for him. He walked over to Dashko and told him that he wanted him to come down to the Southern Crude Oil office, as they were in the market to purchase his lease. Dashko replied that “I have a.deal on with the Humble, and have an engagement with Mr. Motter at the present time,” but that, when he got through with Mr. Motter, he would go down there. . “Bender was with me at the time. We waited possibly twenty minutes, and Dashko had not come down, and I suggested to Bender that he go up and see if he was still engaged, which he did, and in a few minutes Dashko and Bender and Motter came down the elevator, and Dasliko said he was ready to go down to the purchasing company’s office.”

On the way down witness asked Dashko what kind of a proposition the Humble had made, and he replied something under $200,000. Witness told him it probably was worth more than that, and he thought he could get more, and they agreed on a price of $250,000, on the way from the hotel to the Southern Crude Oil Company. They met there Mr. Hardin, Mr. Woodruff, and Mr. Dillahunty, and Nickel introduced Dashko to them. Dashko immediately told them about his lack of storage, and Dashko and witness looked over their maps to see where their 6-inch pipe line ran closest to the lease, and Hardin told Dashko, if he found it necessary, it would not take long to run a line to them. Hardin then asked Dashko if he Avould sell the property, and what he wanted for it, and Dashko replied that he Avould take $250,000, and they talked about so much oil and so much cash. Hardin appeared to think the price was rather high. Dashko Avas firm as to the price, and Hardin said he Avould like to have until 6 o’clock the following night to get confirmation from Shreveport. Dashko told him that he could not give him that long, that he Avanted quick action. Witness (Nickel) saAv that Dashko Avas closing the door for any further negotiations along that line, and called him out into the" hall, not knowing that he had a deal on Avith the Humble at this time, and told him that the proper way to handle the transaction would he to go hack and tell Hardin that he had his Avord out to the Humble people, and it would be necessary for him to go’back and see its agent, Mr. Motter, and tell him the trade was off, and to ask Hardin where he could reach him or get in touch Avith him in the next 15 or 20 minutes, Avhich he did, and Hardin replied that he Avould be at the Bandolph Hotel. Witness told Dashko, out in the hall, that that was as much as he could expect to get out of the property, and much more than the Humble offer, and witness thought it best for him to go back in and explain the situation to Hardin, AAdfich he did. The witness, Dashko and Bender immediately left the offices, and, upon reaching the street, Dashko asked Bender and witness if we thought they were serious about the offer, to which we both told him we felt positive they would carry out the deal if given until 6 o’clock the following night.

Dashko was very much elated over the proposition at the time. “Upon reaching the corner of the Chamber of Commerce the question of commission came up for the first time. I talked to Dashko about paying me a commission if the deal was consummated. He assured me, in Bender’s presence, that he would take care of me for my commission, as, if it was not for his friends, he would not he able to do any business. We had. now reached the Garrett Hotel, Bender leaving us on the street. Dashko said he would go up and see Mr. Hotter, the Humble Company’s representative, and tell him the deal was off.” Witness told him he would wait for him, and, when he came down, would call Hardin up. When he came down they walked from the Garrett to the Randolph Hotel. •They met Roy Baker in front of the Garrett, who went with them. Dashko put in a call for Hardin, and told him that he would wait until 6 o’clock the next night to say yes or no. “Leaving the Randolph Hotel, we then walked to the sandwich shop to get something to eat, and Dashko was then feeling very .good, as the deal was practically assured of going through. He told Baker about what had transpired, and repeated practically the same statement he had made earlier in the evening in regard to my commission, and then said that I did not have to worry, that if the deal went through he would take care of me, and I told him that was perfectly all right.”

Baker testified that, when Nickel asked Dashko who he should look to for his commission on the sale of the property, Dashko said' that he would take care of him about the commission, and that he need not bother about the commission. He told him that he appreciated his friends’ help, and always took care of them. He figured he would not be able to do anything without his friends ’ help. Nothing definite was said about the amount of the commission. “The deal had not gone through yet, and Nickel wanted to be protected on the commission, and asked Dashko whom he was to look to for the work he had done in the sale.”

Dashko stated that he did not agree to pay Nickel a commission, during the transaction, of 5 per cent, or any other amount, saying:

“I never said anything about a commission,' and never had any intention to pay a commission to any one, but I did say to Bender and Nickel that I appreciated their friendly assistance in helping close the deal and for introducing me to the Southern officials, and for that I would never forget, meaning that I would reciprocate some of these days the same.” * * *
“Later, when we came out of the office we ran into Baker, and, as we were walking across the street, Mr. Nickel mentioned something about what he was going to get out of it. He didn’t ask if he was working for a commission, or intended to get a commission. He said, ‘For myself, I wonder what I am going to get,’ and my answer to him was ‘For the assistance you gave me I never will forget that. ’ That was the words I used. It was never the intention in my mind to give him a commission.”

Nickel’s statement showing the service rendered and Dashko’s agreement to take care of his commission, if the sale was made for $250,000, is corroborated by three other witnesses, and Dashko himself admits that, during the negotiations, Nickel asked him what he was going to get out of it, and he replied that, for the assistance given.him, he would never forget it, but that he did not intend to give him a commission when this remark was made.

The chancellor’s finding that there was no agreement to pay a commission or from which such an agreement could be implied is clearly against the preponderance of the testimony, in our opinion. Neither do we think there was any showing of a condition that estoppéd Nickel from ■claiming the commission earned. Before the contract was finally made, Dashko told the president and attorney of the Southern Crude Oil Purchasing Company that he would not take the $250,000 if he had to pay a commission. The attorney then sent for Bender, whom he had asked in the first instance to get in touch with Dashko, to see about the purchase of the property. Nickel came up with Bender, whereupon he told Bender that Dashko would not pay a commission, and asked him, Bender, if he expected a commission, to which Bender replied that he did not. The attorney did this because he did not know whether Bender might not expect a commission and might want the company to pay it, if it was not received from Dashko. While it is true that Nickel was present when the conversation occurred, hut the questions were not addressed to him, nor was there any reason to think that he was expected to reply, since he had no agreement or understanding whatever with the purchasers about a commission, and, having been assured by Dashko that he would, be taken care of on his commission, if the sale was made for $250,000, the circumstances ¡did not require him to speak or disclose whether he expected to receive a commission or not, and Dashko, having promised to pay him a commission, could not escape the obligation to do so after the service was rendered, by such a proceeding. If he intended to do so it was incumbent upon him, having had the conversation or agreement with Nickel about the commission, to sa37' then to Nickel that he would not pay any such commission, if he had changed his mind about it. .

The undisputed testimony shows that 5 per cent, of the contract or sale price was the usual commission paid for such services, and the preponderance of the testimony shows an agreement on the part of Dashko to pay, or circumstances from which an agreement for the payment of a commission would necessarily be implied.

The chancellor erred in holding otherwise, and the decree must bo reversed, and the cause remanded with directions to enter a decree in favor of Nickel for a commission of 5 per cent, of tlie sale price, $12,500, and also against the sureties on the bond given for the performance of the judgment for the amount thereof, and for such further necessary proceedings in accordance with the principles of equity and not inconsistent with this opinion. It is so ordered.


author: Mehaepy, J.

text:
    Stone v. Yount.
    Opinion delivered July 11, 1927.
    1. Landlord and tenant — enforcement of lien. — Where a tenant removed a portion of the crop without authority at a time when he was indebted to the landlord for rent, the landlord was entitled to attach crops grown on the premises by virtue of his lien thereon, under Crawford & Moses’ Dig., §§ 6889, 6897.
    2. Attachment — -damages. — Where attachment is sustained, there can be no- damages for its wrongful issuance or levy.
    Appeal from 'Washington Circuit Court;' W. A. Dickson, Judge;
    reversed.

      J. Wythe Walker, for appellant.
   Mehaepy, J.

Appellant instituted suit in the justice of the peace court in Washington County for rent amounting to $100 and interest, and alleged, not only the indebtedness, hut that Dan Yount and Mrs. Dan Yount had removed a portion of the crop without the consent of the landlord. Alleged that he had a lien on the crop, and an attachment was issued and served, attaching the prop, and the plaintiff had filed with his complaint a copy of the lease, showing a note for $100 for rent.

The defendants answered, denying indebtedness, denying that they were about to remove any of the crop, and filed cross-complaint, alleging that there were not as many acres as estimated, and that he was to pay a certain price per acre, which made $89.20 instead of the $100 mentioned in the note. Alleged a breach of the contract on the part of the landlord and damages to hay in the amount of $10, and further damage in the sum of $50.50, and claimed damage to the growing crops of $50, and then some other damages alleged, and the defendants further alleged that they had suffered damages in the sum of $120 by the wrongful obtaining and levying of the attachment. Prayed that the attachment be dissolved and that they have judgment against the plaintiff for the sum of $357.20, less $100, the amount of the note.

After trial in the justice court there was an appeal to the circuit court, where there was a judgment rendered in favor of the plaintiff. The plaintiff testified that ■ the defendant was removing the crop from the premises without paying the rent, and a part of the crop had already been removed, and the defendant himself testified that he had moved two loads of corn from the premises before the attachment was levied and before the attachment was issued.

It is unnecessary to set out the testimony in full, because the court found that the defendants were indebted to the plaintiff in a small sum for rent. The undisputed proof shows that they had moved some of the crop before the attachment was issued without paying this rent and without the consent of the landlord.

The statute provides: “Every landlord shall have a lien upon the crop’ grown upon the demised premises in any year for rent that shall accrue for such year, and such lien shall continue for six months after such rent shall become due and payable.” Crawford & Moses’ Digest, § 6889.

The statute also provides: “Any landlord who has a lien on the crop for rent shall be entitled to bring suit before a justice of the peace, or in the circuit court, as the case may be, and have a writ of attachment for the recovery of the same, whether the rent be due or not, in the following cases: (1) When the tenant is about to remove the crop from the premises without paying the rent. (2) When he has removed it, or any portion thereof, without the consent of the landlord.” Crawford & Moses’ Digest, § 6897.

Since the undisputed proof shows that he had removed a portion-of the crop and the court found that he was indebted in some amount for rent, he was entitled, under the statute, to an attachment, and the court should either have sustained the attachment itself or directed the jury to return a verdict sustaining the attachment. These sections of the statute have been construed many times, but it is unnecessary to cite authorities or to refer to them in this opinion, because the statutes themselves expressly provide that the landlord shall have a lien, and if there is any rent due him and the tenant has removed any portion of the crop, this is ground for attachment, and, as we have already said, the court should have sustained the attachment, and, of course, if the attachment was sustained there could be no damages for its wrongful issue or levy.

The appellees have filed no brief, and we only know what their contention is from the recitals in the record. For the errors above mentioned the case is reversed, and remanded for a new trial.


author: Mehaffy, J.

text:
    National Surety Company of New York v. Fox.
    Opinion delivered July 11, 1927.
    1. Insurance — forfeiture of policy. — Breach of a condition of ownership or occupancy, or change of circumstances, prohibited ” by burglary insurance policy, held to avoid a policy.
    2. Insurance — waiver of forfeiture. — Where an insurer waived the right to forfeit a burglary policy because of violation of its terms as to ownership or occupancy, it cannot defeat recovery on such ground.
    3. Insurance — .when forfeiture waived.. — Forfeitures are not favored, and any agreement, declaration, or course of action by ' insurer, leading insured honestly to believe that a forfeiture of ■the policy will not be incurred by conformity thereto, estops the insurer from insisting on a forfeiture for such cause.
    4. Insurance — waiver of forfeiture. — A burglary insurance company, whose general agent told insured that the latter’s rental of the house for a shorter time than vacancy period permitted by the policy was satisfactory, could not declare a forfeiture or defeat recovery on the policy because of such occupany by the tenant.
    5. Insurance — sufficiency of proof of loss. — A burglary insurer in objecting- to proof of loss because of failure to make a com- * píete inventory and state the original cost of each article and cash value thereof at the time of loss, and g-oing fully into such facts and other objections when insured was on the stand, held not excused from paying loss because of defects in such proof, though the valuations were arbitrary.
    6. Insurance — burden of proof as to loss. — In an action on a burglary insurance policy, the burden is on the plaintiff to prove that the burglary was caused by. burglary, theft or larceny.
    7. Insurance — sufficiency of evidence. — -In an action on a burglary insurance policy, evidence that certain articles were missing held to justify a finding that they were stolen.
    8. Insurance — burden of proof. — 'In an action on a burglary insur-ancy policy, plaintiff was not required to show who stole the articles missing, nor that the tenant did not steal them.
    Appeal from Pulaski Circuit Court, Third Division; Marvin Harris, Judg’e;
    affirmed.

      Rogers, Barber & Henry, for appellant.

      Joe Loeb, for appellee.
   Mehaffy, J.

The appellee brought suit against the appellant in the Pulaski Circuit Court for $314, the value of personal property claimed to have been stolen from appellee’s home during the month of July, 1925. The suit is based upon a policy of burglary insurance, executed by the appellant and delivered to the appellee October 10, 1924, covering household goods, furniture, wearing apparel, jewelry, and other personal property of appellee, situated and contained in the premises at 2107 Broadway, in the city of Little Rock, the place of appel-lee’s home.

The complaint alleged the issuing of the policy for the period of one year against loss by burglary, theft or larceny, for the goods mentioned above, while contained in the premises at 2107 Broadway. Alleged that in July, .1925, the premises were burglarized and property covered by the policy of the value of $314 was stolen. That notice and proofs of loss 'were furnished in compliance with the terms of the policy. Copy of the policy was attached as an exhibit to the complaint.

The defendant, appellant here, answered, denying that the premises were burglarized, and denied that it was indebted in the sum of $314 or any other sum. And, as a further defense, alleged that the policy covered loss by burglary, theft or larceny of the property insured thereunder from within the house occupied by the insured, as -described in the declarations, caused by any other person except one whose property was covered hereby. Defendant alleged that the premises, in July, were not occupied by appellee, but that the house was rented to a stranger named Yon Wetzen, and that Von Wetzen stole the property for which this action was brought. Defendant further alleged that suit was filed within 90 days after the loss, in contravention .of the terms of the policy, and that, if appellee should recover, he would not be entitled to penalty and attorney’s fees. Defendant filed an amendment to its answer, denying that appellee had complied with the terms of the policy with reference to notice and proof of loss.

The case was tried before the court sitting as a jury, by the consent of the parties, and the court rendered judgment for the plaintiff, appellee herein, for $314, together with statutory penalty of 12 per cent, and attorney’s fees of $.75.

Defendant filed motion for new trial, which was over-iuled, exceptions saved, and appeal prayed to the Supreme Court, and granted. The defendant thereafter filed its bill of exceptions within the time allowed by the court, and prosecuted its appeal to this court. ' ,

Appellant’s first contention is that the alleged loss did not occur while the premises were occupied by the appel-lee, and there was therefore no liability against the appellant. Appellant then, bearing directly upon the question involved and as affecting burglary insurance policies, cites the following cases: First, Lee v. Adsit, 37 N. Y. 78, but that case, as stated by the court, ivas not an action against the insurers or on the policies. The complaint alleged that plaintiffs received lumber in their lumber yard from defendants for sale on commission, etc., and plaintiffs were not to insure the lumber, but defendants took the risk of fire. It was therefore a controversy between these two parties, and has no application to the facts in' this case. ,

The next case relied'on .by appellant is the case of German Fire Insurance Co. v. Home Insurance Co., 144 N. Y. 195, 39 N. E. 77, 26 L. R. A. 591, 43 Am. St. Rep. 749, and the syllabus of that case reads as follows:

“Where a policy of fire insurance insuring the stock of goods contained a provision declaring it void in case of sale, transfer or change of title to or possesion of the property, and the insured, during the life of the policy, took a copartner, transferring to him an interest in the insured property, it held that this transfer rendered the policy void.”

In the above, case the policy expressly provided that it should be void in case of sale, transfer or change of title or possession. There is no contention that the insurance company was notified and consented to the change. It could have done so, and, if it had, the policy would have been binding. The sale made the contract void, as the court said, because it is a well-established principle of common law that every man has the right .to determine with whom he will enter- into contract obligation. And, among other thing's, the court said: “It would be a harsh rule to permit the things mentioned without having an opportunity to examine into the moral and business characters of the two strangers to the original contract.” However, the court expressly stated that, where one partner sold to another partner, this would not avoid the policy. But the Reason the policy was held void in that case was because there was an absolute violation of the provision contained in the policy with reference to sale and transfer without getting the permission of the insurance company to do so and without notifying the insurance company of the intention to do so.

The next case referred to is the case of Liss v. United States Fidelity & Guaranty Co., 103 Misc. Rep., 253, 169 N. Y. S. 1027, and this suit was upon a policy of burglary insurance. The policy in the above case was violated without. permission of the insurance company, the insurance company had no knowledge of the change of possession and conditions, and the court said that it had no power to proceed on the assumption that the insurance company would have assented to the change. If, however, the insurance company had been notified of the change and agreed to it or acquiesced in it, then it could not have declared a forfeiture. It is universally held that, where a condition of ownership or occupancy or change of circumstances prohibited by the terms of the policy is made, this avoids the policy. But it is also universally held that, if it waives its right to forfeit the policy because of any violation, it cannot thereafter defeat a recovery because of the violation of a provision in the policy which it waived.

Attention is called by appellant to Schwartz v. Fidelity & Guaranty Co., 199 N. Y. S. 270, 120 Misc. Rep. 323. A right of recovery was denied in that case because of concealments on the part of the assured, and this concealment was a violation of a warranty clause in the policy. The court said: “In my opinion, it was necessary for the assured to have revealed the fact in their statement or warranties that they occupied only part of the fourth floor and that the rear one-half was under a sub-lease, to another concern conducting an entirely different business.”

The above case also discusses the question of evi- ■ dence to prove burglary or theft.

Attention is also called to the case of Reese v. Fidelity & Deposit Co. of Maryland, 156 N. Y. S. 408, 93 Misc. Rep. 31. In that case allegation and proof was that the policy of insurance was procured by such misrepresentations as to make it void. But the case also held that, where the insurance company repudiated liability under a burglary policy on the. 'ground that it was obtained by fraud and misrepresentation, tlie plaintiff was not bound to abide by the condition in the policy that no action shall be instituted under three months until after the furnishing of the proof of loss.

The plaintiff, T. B. Pox, testified that he rented the house to a man named Von Wetzen, who was recommended to him as a desirable tenant, and that he was to let him occupy it while Pox was away in California. He testified that, at the time, he had a conversation with Mr. Newell, of the W. B. Worthen Company. The W. B. Worthen Company were the general agents, and Mr. Newell attended to that part of the business. He said he went in to see Mr. Newell, and told him that he had his house rented, and that Mr. Newell said that was a good rental, that was all right. Pox said that was the answer Newell gave him, that it was satisfactory, and he had no objections. He stated that he thoug'ht he had previously told Mr. Newell that he was going to rent the house, and that Mr. Newell had no .objections. The record shows that Mr. Newell had authority to issue policies, and that he had issued this policy.

The rule concerning forfeitures in insurance policies was considered by this court in the case of German Insurance Company v. Gibson, 53 Ark. 494, 14 S. W. 672, and is a>s follows:

“Forfeitures are not favored in law, and any agreement, declaration or course of action on the part of an insurance company which leads the insured honestly to believe that, by conforming thereto, a forfeiture of liis policy will not be incurred, followed by conformity on his part, will estop the insurance company from insisting upon the forfeiture. The rule thus announced has been steadily adhered to by this court.” Interstate Business Men’s Accident Assn. v. Green, 132 Ark. 546, 201 S. W. 799.

The above case cites many authorities on the question of forfeiture and cases upholding the rule above announced. But we do not deem it necessary to cite them here or to call attention to any additional cases. We have concluded that, when the insured notified the insurance company’s general agent and the agent made the statement that Pox testified he did make, the insurance company could not thereafter declare a forfeiture or defeat recovery because of the occupancy of the house by the tenant. It will he remembered that the agent does not deny that Mr. Fox told him what Fox testifies that he did, and does not deny that he made the statement which Fox says he made. It may be that the insurance company preferred to have a tenant rather than to have the premises unoccupied. The policy provides for the house to remain unoccupied for a longer period .than Fox intended to be away, and the insurance company may have preferred to have a tenant rather than to have it unoccupied. It may have thought that burglary was more likely to occur if the house was unoccupied than if it were occupied by a tenant. At any rate, the plaintiff swears that he notified the agent, and the agent does not dispute it, and the insurance company could not declare a foreiture under such circumstances.

It is next contended by the appellant that no proof of loss, as required by the policy, was ever filed with the company, and specifically states that the proof of loss shall state a complete inventory of the stolen próp-erty. This, we think, the insured did. At any rate, no objection was made to the proof of loss because of the failure to make a complete inventory, nor was there any objection because the original cost of each article was not stated and the cash value at the time of the loss. These facts, together with the other objections to the proof of loss, were gone into in the trial, when Fox was on the stand, and he testified fully with reference to them.

Appellant’s argument is that all the proof shown was the arbitrary valuation. But any valuation put upon them at all as to their cash value would, of course, have been an arbitrary valuation. We find nothing in the record that would justify or excuse the appellant from paying the loss because of any defect in the proof of loss. It seems, to have got all the information that it desired or that it asked for, and we think this was all it had a right to demand.

Appellant’s next contention is that there is no testimony to show that the alleg*ed loss was occasioned by burglary, theft or larceny, and it is argned that the burden is upon the plaintiff to make this proof. We think the insurance company’s contention that the burden is on the plaintiff is correct, but we do not agree with it in its contention that this burden was not discharged. The testimony shows that, when Fox returned from California, Wetzen, the tenant, was gone, and that he never saw him after that' time. That he notified the police of the loss of the articles stolen, and found that the tenant had stolen some of them and returned them.

Willie McAdoo, colored, testified that, while Fox was away, she went there every other day,- and that, when she went to the house on Wednesday, she found that all the doors were unlocked, the windows unlocked, and the inside doors open. The last time witness saw any of the tenants about the house was on Saturday, and on Wednesday the doors' and windows were all unlocked. Witness did not know when they left. ' Did not know how long the place had been unoccupied and the doors unlocked, but that the last time witness noticed anybody there was on Saturday, and on the following Wednesday the doors and windows were unlocked and the inside doors open.

When Fox returned he found that certain articles were gone. About the only proof that could-be made as to burglary or larceny ordinarily would be that the doors or windows were open and that articles that were in the house before were missing and could not be found. This was sufficient proof that they had been stolen, and we think that the proof that the tenant stole some of them does not warrant the conclusion that he stole the others. And while the burden was on the plaintiff' to show the larceny of 'the articles, he was not required to show who stole them, and was not required to show that the tenant did not steal them. When the plaintiff shows by evidence that the house was open and that the' goods that were in there prior to the time Fox left were missing, we think this is sufficient evidence to justify the court in finding that the articles were stolen.

There was sufficient proof to justify the finding of the court, and the judgment is affirmed.


author: Mehaeey, J.

text:
    Henderson v. State.
    Opinion delivered July 11, 1927.
    1. CRIMINAL law — accomplice depined. — Under Crawford & Moses’ Dig-., § 3181, providing that conviction of a felony cannot be had on’ the uncorroborated testimony of an accomplice, held that an accomplice is one who could himself be convicted of the crime charged against the defendant, either as principal or accessory.
    2. Criminal law — accomplice in possession of still. — A laborer hired to work at a still is not an accomplice in the crime of the owner of possessing a still, even if he was an accomplice in its operation.
    3. Intoxicating liquors — corroboration of accomplice. — Even if one hired to work at a still was an accomplice of the owner charged with possessing a still, evidence held sufficient to corroborate such laborer upon the question whether defendant wias guilty of possessing the still.
    . Appeal from Ou'achita Circuit Court, First Division; L. 8. Britt, Judge;

    affirmed.

      B. K. Mason and Powell, Smead & Knox, for appellant.

      H. W. Applegate, Attorney General, and Darden. Moose, Assistant, for appellee.
   Mehaeey, J.

Heinie Henderson, the appellant, was convicted at the April term, 1927, of the Ouachita Circuit Court of the crime of having a still in his possession, and the indictment charges that the crime was committed as follows: The said defendant, on the 18th day of April, 1927, in Ouachita County, Arkansas, did unlawfully and feloniously have and keep in his possession a still and stillworm, such as may be used for the manufacture of distilled spirits, without registering the still with the proper United States officer.

R,. D. Newton testified, in substance, that he was deputy sheriff of Ouachita County, and knew the defendant, and that, as deputy sheriff, he went to the home of Heinie Henderson with A. W. Ellis, S. W. Padgett, B. M. Milner and Zack Horton. That they had information that the defendant was engaged in the liquor business, and they went to his house, and it was just getting daylight. There was a negro sleeping in a tent back of the house, and by his bed were some old overalls, which made witness think he was running a still. Witness asked this negro what he was doing, and he said he was working for the defendant. The defendant and his brother came out of the house, and there was another man that witness did not know, and Slim Jackson. Witness said they made a search of the place and found a lot of empty fruit jars and some eight-ounce bottles and one or two kegs. The negro took them up to the still; took them through the woods around some trails a mile or two from the house. It was a copper still, would hold probably one hundred gallons, and there were 46 or 48 barrels of mash at the still, but they did not find any liquor. The still was complete • in every way. Witness said they then went back, and brought defendant and his brother and a negro to town. Did not see any houses but the defendant’s and his still.

A. W. Ellis, the sheriff, testified, in substance, to the same facts testified to by Newton. He testified about following the old negro and being taken by him to the still, and the old darkey told him he was working for the .defendant. That witness returned the following day to defendant’s house and made a search there, and found some burners like the one at the still. The still bore evidence of having been operated. The burners that they found were rusty. The tent that the negro was in was about 20 feet .from the corner of defendant’s house. It was furnished with two or three beds, a dresser, and an old rug. It was about 16 by 18 feet. Nobody was sleeping in there but the old negro.

Noah Goff, the old negro, also testified that, when Mr. Ellis and Mr. Newton came to the house, he was in the tent sleeping. That he had just come there. Had worked three days for the defendant. Defendant had hired him to work for him, and defendant was to pay him $4 a day for his labor, and he went to work for him at the' still. Defendant said it was his still. That he did not know how to run a still. That he was at the still Thursday, Friday and Saturday, three evenings, and was sent there by defendant, and defendant was paying him. He worked at the same still that he took Mr. Ellis and Mr. Newton to. Had never worked at a still before. He worked around the still, and put some mud around the still, and knew that they were making liquor there. He also cut some wood.

The above is the substance of the testimony introduced by the State, and it is unnecessary to set it out in detail.

The old darkey testified that he was employed by the defendant to work at the still, and did work at the still, and defendant told him that the still belonged to him. The officers testified, in substance, that the old negro showed them the still, and then in their search they found some burners, jars, kegs, etc.

Joe A. Scarboro, justice of the peace, and witness for the defendant, testified, in substance, that the defendant was tried in his court and bound over, and this witness stated that the old negro, Noah Goff, testified that he had been hired by defendant or some one to cut wood, and he started to work, and some time afterwards some one told him he would have to go over and work at the still, and he went to some still. That the person who told him to go was some one he did not know. The old negro testified that he was sure that the defendant had never mentioned the still to him. On cross-examination he said there was enough testimony to bind the defendant over. That he did it because he thought it ought to be investigated. Witness said lie did not reduce the old negro’s testimony to writing; that he was just telling what he remembered about it. Witness said he also bound the negro over, and, when time came for the examining trial, he asked about him, and nobody seemed to know, and some one told witness that the case against the negro had been dismissed.

John B. East, a witness for the defendant, testified that he had been a deputy United States Marshal about four and one-half years, and knew the defendant, and that, before the defendant moved to the place where officers searched, he had seen a number of fruit jars and beer bottles there. It looked like a typical beer joint. That was before defendant moved there. That after defendant moved there it did not look the same, but that he had seen liquor there. Defendant told witness that he was farming, and had a corn crop. His crop was mostly corn and beans.

D. A. Braswell, witness for the defendant, testified that he was constable, and that he had seen lots of %-inch pipe and quite a few bottles and jars around the place before the defendant moved there, and that he also saw them while the defendant lived there. It looked about the same after he went there. '

After the evidence was introduced and argument of counsel, the jury found the defendant guilty, and assessed his punishment at two years in the State Penitentiary. Thereafter the defendant filed motion for a new trial, which was overruled, and exceptions saved, and the defendant appealed to this court.

No objections are made to the instructions given by the court and no objections to the evidence, but the appellant insists that the ease should be reversed because Goff, the negro, was an accomplice, and that there was not sufficient corroboration of the testimony of - Goff to justify submitting the case to the jury.

The statute with reference to an accomplice is: “A conviction cannot be had in any case of felony upon the testimony of an accomplice, unless corroborated by other testimony tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof. Provided, in misdemeanor cases a conviction may he had upon the testimony of an accomplice.” Crawford & Moses’ Digest, § 3181.

While the evidence corroborating the testimony of the negro is very slight, still a.majority of the court is of the'opinion that, even if the negro witness'was an accomplice, the corroboration is sufficient to justify the court in submitting the question to the jury. • And the evidence for the State, if believed by the jury, warranted it in finding that the appellant was in possession of the still, and operated it.

An accomplice is one who could himself be convicted of the crime charged against the defendant, either .as principal or accessory. That means convicted of the crime being investigated — the crime of possessing a still. If the testimony of the negro is true, he was an accomplice in operating the still and manufacturing liquor, for he worked lat the still knowing that that was what they were doing, and he thereby aided and assisted in the operation of the still and the manufacture of whiskey. But certainly it cannot be said from the testimony in this case that the negro witness aided or assisted in any way in possessing the still. He was merely, according to the testimony, a laborer, and had nothing to do with the possession or control of the still. And, if this is true, he could not be convicted of possessing the still, and he is therefore not an accomplice.

This court has held that two or more persons may be indicted and convicted for possessing a still, but it has never held that one who was simply hired to do work and had no control of the still at all could be convicted of possessing a still.

‘ ‘ The general test to determine whether a witness is or is not an accomplice is, could he himself have been indicted for the offense, either as principal or accessory? If he could not, then he is not an accomplice. * * * A person who steals property and one who afterwards receives it from him knowing it to be stolen, are guilty of separate offenses, ancl, unless more than this be shown, neither is an accomplice in the offense of the other.” State v. Gordon, 117 N. W. 483, 105 Minn. 217, 15 Ann. Cas. 897.

This negro witness, if he were an accomplice in making the whiskey, in manufacturing whiskey, and in operating the still, this would be a separate offense from possessing the still. And, while he would be an accomplice if the defendant were charged with manufacturing whiskey, he is not an accomplice in the crime charged, that of possessing a still. And therefore the defendant could be convicted on his testimony alone, without any corroboration, if the jury believed his testimony.

Alice Boyd was convicted in the Kentucky court upon the charge of violating the Kentucky statute which made it a felony to write, print, sell, etc., lottery tickets and gift enterprises wherein money or other things of value were disposed or were pretended to be disposed of. She asked a reversal, among other things, because she contended that the evidence was not sufficient to authorize a conviction. And she contended that the court erred in giving an instruction, under the provision of the Code, to the effect that a conviction cannot be had upon the testimony of an accomplice, and the court said that that section had no application.

“An accomplice is one of several equally concerned in the commission of a felony, or one connected in some way with the crime charged. Jennie Doherty was guilty, under the statute, for buying a lottery ticket. She was in no wise guilty under § 2573, which prescribed appellant’s offense and punishment, and Jennie Doherty was made a competent witness by § 2579, and she was not an accomplice.” Boyd v. Commonwealth, 132 S. W. 423, 141 Ky. 247.

“As we said in People v. Coffey, ‘At common law the jury had the right to convict upon the uncorroborated testimony of an accomplice, and it is only by reason of the statute that it is not allowed here. The statute cannot be construed in a loose or popular sense, but must be interpreted and accepted as recognized by law writers, and as it was evidently intended by the Legislature when it made the bribe-taker and the bribe-giver each guilty of a different crime.” People v. Ruef, 114 Pacific 54, 14 Cal. App. 576.

‘The Court of Appeals of the Second Circuit stated:

“A majority of the court think that his presence and participation in the manufacture was not enough to show that he was in possession, either of the still or the alcohol. It is equally possible that a companion or third person was the boss, as he put it. A servant is not ordinarily in possession.” De Gregorio v. United States, 7 Fed. Rep., 2d Series, 295.
“Hired servants cannot be joined as co-defendants. Their services in manufacture do not convert the possession and control of their employer into the joint possession, custody and control of the servants and.the employer within the meaning of the law. The crime implies more than physical presence and the laying on of hands, and includes unlawful custody and control.” Blakemore on Prohibition, 3d ed. 520.

The only evidence in the record against the witness Goff is that he was hired by appellant to work for him. He was merely a servant. Nobody saw him at the still except when he took the officers out and showed it to them, and his services as a laborer or servant did not convert the possession or control of the appellant and did not make him an accomplice of the appellant.

An accomplice is one who assists or is concerned in some way with the crime charged, the crime being investigated. The crime being investigated in this case was the crime of possessing a still, and not the manufacture of liquor. The witness Goff was an accomplice in the manufacture of liquor, 'because he did work at the still and thereby aided and assisted in the manufacture of the liquor, But manufacture is a distinct crime from possession, and he did nothing, so far as the record shows, that indicated that he had any possession or control or that he did anything else except to work as a servant for the appellant.

It is not sufficient that a witness was engaged with 'the person charged in an offense other than the one for which he is being tried, but the evidence, in order to make him an accomplice, must show that he aided and assisted in the particular crime charged and being investigated, and not in some other crime.

■ The person who bought the lottery ticket violated the law, hut the crime of purchasing a lottery ticket was a different crime from selling a lottery ticket. A person was charged with receiving stolen property, indicted, and tried for it. Two boys testified that they stole the property and sold it to the defendant. They were guilty of the crime of stealing. Defendant was guilty of the crime of receiving stolen property,-but the court held that they were not accomplices because the crime they committed was larceny and the crime that defendant committed was receiving stolen property.

We therefore conclude-that the witness Groff was not an accomplice and that a conviction could be had against the appellant without any corroborating testimony if the jury believed the witness. We have already said, however, in this case that there was evidence sufficient to •corroborate the testimony of the witness Groff. The evidence in this case was sufficient to justify the jury in finding the appellant guilty as charged, and their finding of fact is conclusive, and the judgment is therefore affirmed.

Smith, J., concurring.


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    El Dorado Pipe & Supply Company v. Penguin Oil Company.
    Opinion delivered July 11, 1927.
    1. PLEADING — amendment op complaint. — In action on a note representing the purchase price of pipe, signed by defendant corporation as surety, in which defendant claimed that the attempt to become surety was ultra vires, refusal to permit plaintiff to •amend his complaint so as to sue on an account and show that the surety received and got the 'benefit of the property sold held error, in view of Crawford & Moses’ Dig., § 1239.
    2. Corporations — when ultra vires no defense — In an action on a note representing the purchase price of pipe, signed by defendant corporation as a surety, in which it claimed that the attempt to become surety was ultra vires, it was error to exclude the evidence showing that defendant received and got the benefit of the property sold, in view of. Crawford & Moses’ Dig., § 1234:
    3. Corporations — ultra vires contract. — Where an oil company purchased pipe and got the benefit of it, it is immaterial in an action on the note representing the purchase price, which it signed as surety, whether it had authority to make or indorse such note, since it would be liable for the purchase price, regardless of such authority.
    Appeal from Union Circuit Court, Second Division; W. A. Speer, Judge;
    reversed.

      E. W. McGough, for appellant.

      Mahony, Yocum & Saye, for appellee.
   Mehaffy, J.

This suit was instituted by the appellant, a corporation organized under the laws of Arkansas, against the defendants, John L. Nelson and Penguin Oil Company, on a note dated July 2, 1923, for the sum of $2,479.40, due 90 days after date, bearing interest from date until paid at the rate of 8 per cent, per annum, said note being signed.by John L. Nelson and Penguin Oil Company as surety, by P. K, Kelly.

No answer was filed by Nelson, and judgment was taken against him for the amount sued for.

The Penguin Oil Company filed an answer, denying liability under said note, and pleading that neither P. K. Kelly nor J. L. Nelson had any right to sign the name of Penguin Oil Company to said note.

The El Dorado Pipe & Supply. Company then amended its complaint and asked for garnishment against the First National Bank, making proper allegations and bond to entitle it to a writ of garnishment.

Stipulation was entered into by the attorneys, whereby $3,000 was deposited and the garnishment against the bank dismissed.

The Penguin Oil Company, as additional defense, stated that it was beyond the power of the Penguin Oil Company to enter into any contract or obligate itself in any manner whatsoever for surety for any other person, firm or corporation, and the attempt to become surety was ultra vires, and therefore null and void.

Plaintiff amended its complaint, stating that the note sued on was .executed for pipe sold and delivered to the defendant, Penguin Oil Company, and was later by'the said oil company delivered to Nelson, and, at the request of the Penguin Oil Company, plaintiff - accepted a note signed by John L. Nelson, with the Penguin Oil Company as surety.

The oil company filed answer to the amendment of the complaint, denying that the note was executed for pipe sold to it, and denying that it made any representations to plaintiff that it had sold to defendant, Nelson, any oil.

The proof showed that the president of the El Dora-do Pipe & Supply Company handled the transaction and that the note was executed in the manner set out in the complaint, and that Kelly, who signed the note for the: oil company, was the' representative of the oil company and in charge of its business, and the plaintiff offered to prove that he had sold to the Penguin Oil Company the pipe for which the note was given, which was to be paid for by the Penguin Oil Company and to be a cash transaction. It also offered to show that the Penguin Oil Company later diverted the pipe which it had bought to John Nelson;.that Kelly, at the time the contract was made and the note executed, represented to the plaintiff that the oil company had a deal with Nelson whereby they agreed to purchase a large amount of oil from him, and that it was to their interest that they have the pipe for Nelson’s use in producing more oil. That the pipe was primarily for the benefit of-the Penguin Oil Company, and that the El Dorado Pipe & Supply Company had performed its contract in full in good faith. That, after the pipe was purchased, the oil company stated to the plaintiff that it had delivered the pipe to Nelson, but that the oil company would pay the plaintiff, but requested it to accept a note in order that the oil company might collect from Nelson. That the oil company did collect from Nelson the interest on the note in question for the first six months or more.

The court refused to permit plaintiff to make this proof, and refused the request of plaintiff to amend its complaint so as to sue on account and show that the-oil company received and got the benefit of the property sold. The court, after refusing to permit an amendment to the complaint and refusing to admit the proof above mentioned, directed the jury to return a verdict for the defendant, the oil company, which was done under the directions of the court. And thereafter plaintiff filed its motion for a new trial, which the court overruled, and. plaintiff has appealed to this court.

The only questions involved in this appeal are whether the circuit court erred in refusing to permit plaintiff to amend and erred in its refusal to permit plaintiff to introduce testimony showing that defendant oil company received the pipe and got the benefit of it. "We think the court committed error in refusing to permit plaintiff to amend and also committed error in refusing to permit plaintiff to introduce the testimony offered.

The statute provides.:

“No variance between the allegation in a pleading and the proof is to be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. Whenever it is alleged that a party has been so misled, that' fact must be shown to the satisfaction of the court, and it must also be shown in what respect he has been misled; and thereupon the court may order the pleading to be amended upon such terms as may be just.” Crawford & Moses’ Digest, § 1234. •
“The court may, at any time, in furtherance of justice, and on such terms as may be proper, amend any pleadings or proceedings by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or á mistake in any other respect, or by inserting other allegations material to the case; or, when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved.” Crawford & Moses’ Digest, § 1239.

Under these sections of the Digest we think it was clearly the duty of the court to permit the amendments and permit plaintiff to introduce the evidence offered. The authorities construing these sections are cited in Crawford & Moses’ Digest under each section, and it would be useless to repeat them here.' It would be wholly immaterial whether the defendant oil company had authority to make a note or indorse a note, if it purchased the property, got the benefit of it, and used it, because, if it did this, it would be liable for the purchase price of the property, whether it had any authority to execute a note or whether the person who executed it had any authority. In other words, a corporation cannot take one’s property, use it for its benefit, and then escape' liability by pleading ultra vires or want of authority to sign the note. The contract, so far as the plaintiff is concerned, was executed. The evidence offered and rejected by the court was to the effect that the corporation got the benefit of the property, appropriated it to is own use, and, if it did that, it cannot be heard to say that it did not have authority to purchase it or to make the note.

For the errors above mentioned the case is reversed, and remanded with directions to permit plaintiff to amend its complaint and to introduce the evidence offered, and for further proceedings not inconsistent with this opinion.