text:
    Chicago, Rock Island & Pacific Railway Co. v. Cobbs. Same v. Scott.
    Opinion delivered December 24, 1921.
    1. Removal op causes — when denied. — A suit brought in a State court by two plaintiffs, one a resident of the Federal district, and the other a non-resident, against a non-resident corporation is not removable to the Federal court where the plaintiff’s claims are not separable; and it immaterial that the cause of action is of a local nature, the statute requiring it to be brought’ in the county where the cause of action arose.

      2. Parties — interest in subject-matter. — Where insured property is destroyed by fire caused by the negligence of a third ". person, the insurance companies, by virtue of the assignment to them of a portion of the right of action, are possessed of an interest in the subject-matter of an action against such third person for damages, and therefore are necessary parties thereto.
    3. Assignments — parties.—Since, under Crawford & Moses’ Dig. § 475, only agreements or contracts in writing are assignable so as to vest a right of action in the assignee alone, in the case of an' assignment of a cause of action not based upon an agreement in writing, the assignor is a necessary party to an ■ action thereon.
    4. Railroads — pire prom locomotive. — Evidence held to sustain a finding that plaintiff’s property was destroyed by a fire negligently caused by a passing locomotive of defendant.
    Appeal from Hot Spring Circuit Court; W. IT. Evans, Judge;
    affirmed.

      Thomas 8. Buzbee and George B. Pugh, for appellant.
    1. The cause should have been removed. The facts requisite to Federal court jurisdiction existed. Comp. Statutes, § 991. Section 1010, Id., was fully complied with, and section 1033, Id. under the circumstances of the case would not justify the lower court in denying the petition. 265 Fed. 715; 261 Id. 697; 39 Id. 581; Í52 H. S. 634; 268 Fed. 610. The statute, § 8569, C. & M. Digest, on which this case is based, localizes the cause of action, so that is could be brought in a State court, only in Hot Spring county, and it -could, therefore, have been brought by the plaintiffs in the United States District Court in which that county is situated. 155 U. S. 404; 250 Id. 308.
    2. There is no sufficient testimony to justify the verdict. In none of railroad fire cases decided by this court, was there as little excuse for a finding that the fire was caused by the railway company as in this case. 67 Ark. 371; 76 Id. 132; 77 Id'. 434; 79 Id. 12; 82 Id. 3; 89 Id. 273; 92 Id. 569; 124 S. W. (Ark.) 771; 97 Ark. 54; 100 Id. 207; 105 Id. 374; 119 Id. 143; 121 Id. 585; 126 Id. 236; 142 Id. 41.
    3. Instructions 1 and 2 were argumentative and prejudicial in that they told the jury that the money awarded by them to tbe plaintiff would, to tbe extent of $8,329.84, be paid, to the insurance companies, and that he would get nothing unless the verdict was for a greater sum than that amount. This error was repeated in instruction 9. (82 Ark. 424; 120 Id. 1; 87 Id. 243; 124 Id. 588; 128 Id. 479.

      D. D. Glover and Cockrill & Armistead, for appellees.
    1. It is the duty of a State court to refuse to remove a cause to the Federal court, if the petition for removal shows on its face that the cause is not removable. 98 Ark. 507; 120 Id. 583; 75 Id. 116; 131 U. S. 240. The court properly refused to remove the cause. 107 Ark. 512; 129 Id. 550; 203 U. S. 449; 209 U. S. 490; 219 U. S. 363; 228 U. S. 278; 240 U. S. 97; 226 Fed. 615. The rule is that all the plaintiffs must be residents of the district to entitle-a non-resident defendant to removal. 133 IT. S. 315; 138 IT. S. 595; 106 IT. S. 191; 250 IT. S. 308.
    Our State statute does not localize the action; but if it does, that would not give jurisdiction to the Federal courts. Federal jurisdiction is controlled absolutely by Congress. IT. S. Comp. Statutes, vol. 3, pp. 2916 et seq. Unless this suit could have been brought originally by the insurance companies in the' United States court, it is not removable; Judicial Code, § 28, Comp. Stat. § 1010. A fire case, though localized by State statute, falls under none of the exceptions provided for in section 51, Judicial Code, Comp. Stat. § 1033.
    There is no separable controversy in this case. The insurance companies are parties in interest, and their presence as parties plaintiff destroys the right of removal. 248 Fed. 618; 247 U. S. 518; 218 Fed. 315; 202 Id. 648; 197 Id. 79; 7 Id. 257; 208 Id. 666; 8 N. W. 606.; 59 Fed. 984; 94 Id. 686; 93 N. W. 139; 116 Pac. 819; 76 Id. 1075; 66 N. W. 1144; 53 N. W. 394; 47 Pac. 450; 48 Id. 1045; 26 Id. 838; 39 Id. 690. See also C. & M. Digest, § § 1089, 1095, 1096, 1097; 38 Ark. 72; 56 Id. 116; 19 Id. 566; 14 Id. 603; 3 Id. 565; 93 Id. 447; 124 Id. 143. In any event the insurance companies had the right to join as plaintiffs, and having elected to sue jointly, the right of removal is destroyed. 176 U. S. 321.
    2. Appellant’s objections to the instructions given were general only. It is too late now to urge specific objections.
    3. Interest at 6 per cent, from date of loss is recoverable in cases of this kind. 50 Ark. 169; 63 Tex. 57.
   McCulloch, C. J.

These are actions instituted in the circuit court of Hot Spring County against appellant railway company to recover damages under the statute which makes such corporation liable for injury to property caused by fire communicated from a locomotive. Crawford & Moses’ Digest, § 8569. The cases were consolidated and tried together, and resulted in a judgment in favor of each of the appellees.

The first mentioned case was instituted by L. E. Cobbs, the owner of the destroyed property, and certain insurance corporation, which had .insured the property and paid the damage to the extent of the amount of the respective policies, and joined in the suit under a written assignment from the assured. The actual amount paid under the policies aggregated the sum of $8,200. In the complaint it was alleged that the total value of the property destroyed was $20,000, and there was a prayer for recovery of that sum by the plaintiffs jointly. In that case the verdict was for the recovery of the sum of $15,000 by all of the plaintiffs. Cobbs died during the pendency of the appeal in this court, and there was a revivor in the name of his administrator.

In the Scott case property is alleged to have been destroyed to the value of $250, and the recovery was in favor of appellee Scott for that amount.

The property of Cobbs which was destroyed by fire was the machinery and other equipment of a saw and planing mill, and lumber stored therein. The Scott property was logs and lumber at the mill.

Appellant filed in the Cobbs case, in apt time, a petition and bond for removal to the Federal court, and the refusal of the court to order the removal is one of the grounds urged for a reversal of the judgment. According to the allegations of the complaint and of the petition for removal, plaintiff L. E. Cobbs was a citizen and resident of Hot Spring County; the plaintiff insurance companies were foreign corporations domiciled, respectively, at Liverpool, England, and at Philadelphia, Pennsylvania; and the defendant, Chicago, Rock Island & Pacific Railway Company, is a corporation incorporated and domiciled in the State of Illinois but operating lines of railroad in Arkansas. The injury is alleged and shown to have occurred in Hot Spring County.

We have repeatedly decided this question of removability of a cause against the contention of appellant. St. L. & S. F. R. Co. v. Kitchen, 98 Ark. 507; C. R. I. & P. Ry. Co. v. Smith, 107 Ark. 512; Central Coal & Coke Co. v. Graham, 129 Ark. 550; Central Coal & Coke Co. v. Orwig, 150 Ark. 635. Section 28 of the U. S. Judicial Code (Compiled Statutes, § 1010) restricts the right of removal of cases from State to Federal courts to such cases of which the Federal courts are given original jurisdiction; and section 51 of the Code (Compiled Statutes, § 1033) provides that, with certain exceptions, where the jurisdiction is founded only on the diversity of citizenship, suit can be brought only in the district of the residence either of the plaintiff or defendant. In St. L. S. F. R. R. Co. v. Kitchen, supra, we held, following what we conceived to be the decisions on this subject of the Supreme Court of the United States in the case of Ex parte Wisner, 203 U. S. 449, that in a suit brought against a foreign corporation in a State court outside of the Federal district in which the plaintiff resided there was no right of removal under the Federal statutes on the ground of diversity of citizenship. The other eases cited have followed our original decision, and since that time there has been no additional ruling on the question by the Supreme Court of the United States. The United States Circuit Court of Appeals for the Eighth Circuit in Kansas Gas & Electric Co. v. Wichita Natural Gas Co., 266 Fed. 614, declared the law to the same effect and cited the Wisner case, supra, as authority. We find no reason for departing from our former decisions on the subject, for we are of the opinion that in those decisions we adopted the construction placed upon the Federal statute by the Supreme Court of the United States. It is contended, however, that the application of the Federal statute is different in the present case for the reason that the statute on which this suit is based makes the action a local one and requires it to be brought in the county where the injury occurred. We cannot see that this fact changes the application of the Federal statute, which must be looked to alone for the purpose of determining the jurisdiction of the Federal courts and the right of removal to those courts. In other words, the fact that the action is local does not change the effect of the Federal statute which fixes the jurisdiction, except in specified instances, not related to the present controversy, in the district of the residence of either the plaintiff or defendant. The territorial jurisdiction of the Federal court is entirely within the control of Congress, and, even if instances may be found where the right to remove is entirely denied by circumstances, it is a matter for Congress to provide a remedy, and it is not within the province of the courts to devise a method for removing causes which do not fall within the terms of the statute.

It is not shown in the petition or in the complaint that these are separable causes of action, nor is it contended that the causes of action asserted by the different plaintiffs are separable, and it is clear that they are not separable. The insurance companies by virtue of the assignment to them of a portion of the right of actions are possessed of an interest in the subject-matter in controversy, and are therefore necessary parties. Cobbs, the other plaintiff, was a necessary party, not only from the fact that he was the owner of an interest in the subject-matter of this controversy, but also for the reason that he was assignor of that part of the cause of action which was assigned to the insurance companies, and since it is a right of action not assignable under our statute (Crawford & Moses’ Digest, § 475), the assignor was a necessary party to a suit to recover. St. L., I. M. & S. Ry. Co. v. Camden Bank, 47 Ark. 541. Under the statute cited above, only agreements or contracts in writing are assignable, and the cause of action in the present instance was not based on an agreement in writing. The insurance companies succeeded, by the assignment, to the right ’ of action by Cobbs for the recovery of unliquidated damages on account of the wrongful act of the railway company. It follows, therefore, that the cause of action, for the reasons stated, are not separable.

It is next contended that the evidence is not sufficient to sustain the verdict, either with respect to the charge that the fire that destroyed the property was communicated from the engine being operated hy appellant or with respect to the amount of the damage. We are of the opinion that there is sufficient evidence to sustain the verdict on either of these issues.

The mill plant of Cobbs was situated near the railroad operated by appellant and the building faced the spur track on which trains were being operated on the day the fire occurred. The fire broke out about 11:20 o’clock in the forenoon, and was discovered a few minutes after the engine had passed out of the spur track on which it had gone for the purpose of taking out cars. While there was a conflict in the testimony as to the direction of the wind, several witnesses testified that the wind was blowing from the direction of the railroad track and toward the part of the mill plant where the fire broke out. None of the witnesses saw sparks flying from the engine. It being in the day time, it was hardly reasonable to suppose that live sparks could be observed. Witnesses introduced by appellant testified that the wind was blowing in the other direction; also that an examination of the engine showed that the spark arrester was in good condition, and sparks could not be emitted of sufficient size to set out the fire in the mill plant. As against this, one of the witnesses testified that one of the company’s engines, which was shown to be of the same type as this one, did set out fire in grass along the railroad track. There is no direct testimony that inflammable material was scattered about the mill plant, but it is fairly inferable that there was combustible material there. There is no cause shown for the communication of the fire other than that a spark from some source fell among the inflammable material. The gin plant, a short distance away, was in operation that day, but many of the witnesses testified that the wind was blowing in the other direction and carried the sparks from that plant away from the mill plant. Under repeated decisions of this court circumstances similar to those narrated by witnesses in the present case warrant the inference that the fire was set out by a passing engine. St. L. & S. F. R. Co. v. Dodd, 59 Ark. 317. That rule has been so often declared, following the decision in the Dodd case, that it is unnecessary to cite the numerous cases.

The evidence adduced by the plaintiff Cobbs was amply sufficient ■ to establish his right to recover the sum which was allowed by the verdict of the jury. It is alleged in the complaint that the value of the destroyed property was $20,000, and there was proof tending to show that the property was of that value.

The evidence is also sufficient to establish the amount recovered by appellee Scott.

The criticism of two of the instructions given by tbe court at the request of the appellees is, we think, unfounded, and this assignment of error is not of sufficient importance to discuss.

Finding no error in the record, the judgment in ■ each of the cases must be affirmed, and it is so ordered.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    Barrett v. St. Louis Southwestern Railway Company.
    Opinion delivered December 24, 1921.
    1. Trial — question por jury. — Where plaintiff delivered property to a carrier to be transported to a third person, pursuant to a contract of sale, it was a question for the jury whether the intention of the parties was that the transportation should be completed and the delivery made to the consignee before the sale is consummated.
    2. Carriers — right to notice of claims. — Under a stipulation in a bill of lading making an exception in the requirement of notice of loss “where the loss, damage or injury complained of is due to delay or damage while being loaded or unloaded, or damaged in transit by carelesness or negligence,” losses or damages in transit are excepted from the requirement of notice.
    3. Carriers — damage to freight in transit. — Evidence held sufficient to sustain a finding of negligence in the transportation of perishable freight.
    Appeal from Monroe Circuit Court; George W. Ciarle, Judge;
    reversed.

      JSogle & Sharp, for appellant.
    Plaintiff was not required to file a claim. 63 Ark. 332; 105 Ark. 406.
    The title never passed to the consignee. The question of the intention of the parties should have been submitted to the jury. Ill Ark. 524; 112 Ark. 117; 118 Ark. 21; 121 Ark. 290; 123 Ark. 67; 128 Ark. 128; 137 Ark. 401.

      Thos. B. Pryor; Lamb & Frierson and Daggett S Daggett, for appellees.
    The failure to file a claim as provided in the bill of lading is a complete bar to plaintiff’s right to recover. 36 Sup. Court Bep. p. 542; 148 Ark. 118.

      The plaintiff was not a proper party to bring the action. 105 Ark. 53; 128 Ark. 124.
   McCulloch, C. J.

This is an action to recover the value of a consignment of sweet potatoes delivered to the St. Louis Southwestern Railway Company at Keevil in Monroe County, Arkansas, for shipment to Helena, Arkansas. The said railway company as the initial carrier issued a bill of lading to appellant, and the consignment was to be transported over that road from Keevil to Clarendon and thence over the line of the Missouri Pacific Railroad Company to Helena. Both of the railroad companies were joined as defendants, also the Director Gteneral. It appears, however, from the testimony in the case that the transportation originated after the railroad lines passed, from under government' control. The case- was tried before a jury, but the court directed a verdict in favor of appellee.

The right of appellant to maintain the suit is challenged on the ground that he ceased to be the owner of the potatoes when he delivered them to the carrier for ‘ transportation. The evidence was sufficient to justify a finding that-, while the potatoes were delivered to the carrier pursuant to a contract of sale, yet the intention of the parties was that the transportation should be completed and the delivery made to the consignee before the sale was consummated. It is a question from thé evidence what the intention of the parties was, and it should have been left to the jury to determine that question, instead of taking it away from them by a peremptory instruction. Gibson v. Inman Packet Co., 111 Ark. 521; Kansas City Southern Ry. Co. v. Mabry, 112 Ark. 110; Warren & Ouachita Valley Ry. Co. v. Southern Lumber Co., 115 Ark. 221; Georgia Marble Finishing Works v. Minor, 128 Ark. 124.

It is next contended that appellant should not be permitted to recover because, according to the undisputed evidence, notice of the loss was not given in compliance witli the stipulation in the bill of lading. According to the language of the stipulation, there is an exception in the requirement for notice “where the loss, damage or injury complained of is due to delay or damage while being loaded or unloaded, or damaged in transit by carelessness or negligence.” It is seen from the language of -this stipulation that what is generally known as transit claims are exempted from the requirements as to notice. Appellant’s claim in this instance falls within that, class, and therefore notice was not required.

Finally, it is contended that there is no evidence in the record tending to show that the potatoes were injured while in the hands of the carrier and before delivery to the consignee. The potatoes were delivered by appellant to the carrier on the afternoon of March 18, 1920, and bill of lading was issued on that day. The shipment moved over the line of the initial carrier from Keevil to Clarendon on March 19. There was an indorsement on the bill of lading in the following words: “Beceived in good condition for account of consignee, 3-24, 1920.” (Signed) “Frank Frison.” There is no testimony in the record tending to show who Frank Frison was, or whether or not he was authorized to receive the potatoes and accept them for the consignee. Another witness, Mr. Love joy, introduced by appellant, testified that he was in Helena on March 27, 1920, and was present at the place of business of the consignee when the potatoes were received from the delivering carrier, and that he found them to be in a wet, soggy and damaged condition. He testified that all of the potatoes he saw were in bad condition, and the clear inference from the testimony is that they were worthless. This witness was a little bit uncertain as to- the precise date that he saw the potatoes, but he testified that they were being received at that time from the carrier by the consignee. Other testimony adduced by appellant established the fact that the potatoes were in good condition when delivered to the carrier. We think there was legally sufficient evidence to submit to the jury the issue whether or not the potatoes were injured while in the hands of the carrier. The evidence was abundantly sufficient to show that there was unnecessary delay in transporting them from Keevil to-.; Helena, which is only a short distance, and that the potatoes were exposed so as to become, wet while in transit. These issues should have been submitted to the jury.

In view of the new trial, attention should be called to the fact that under the statute, Crawford & Moses’ Digest, § 924, the initial carrier is liable for damages occurring, regardless of the particular line on which the injury occurred.

Reversed and remanded for a new trial.


text:
    Chicago, Rock Island & Pacific Railway Company v. National Fire Insurance Company.
    Opinion delivered December 24, 1921.
    Railroads — fires.—In the absence of direct and positive testimony as to the origin of a fire which consumed inflammable property situated near a railroad track soon after the passing of a locomotive, the inference may be drawn that the fire originated from sparks from such locomotive, and it is not essential that the evidence should exclude all possibility of another origin; it-being sufficient if all the facts and circumstances in evidence , fairly warrant the conclusion that the fire did not originate from some other cause.
    Appeal from Lonoke Circuit Court; George W. Clark, Judge;
    affirmed.

      Thos. S. Busbee, H. T. Harrison, for appellant.
    The evidence was not sufficient to support the verdict. Evidence which is reasonable and consistent cannot be arbitrarily disregarded by the jury. 151 S. W. 288; 96 Ark. 37.

      Trimble & Trimble and J. A. Watkins, for appellee.
    The evidence was amply sufficient to support the verdict. 77 Ark. 436.
   McCulloch, C. J.

This is an action against appellant railroad corporation to recover damages under the statute which makes such corporation liable for injury to property caused by fire communicated from a locomotive. Crawford & Moses’ Digest, § 8569.

The claim is based on the destruction by fire of a hay barn situated near appellant’s track in the town of Lonoke.

The only question raised on this appeal is as to the legal sufficiency of the evidence.

The building was constructed of galvanized iron— roof and walls — resting on a concrete foundation, and was situated about 90 feet from the north side of the track, several blocks west of the railroad station at Lonoke. It was filled with hay, and the door was closed. There were no openings except a space about five or six inches wide between the bottom of the door and the concrete floor, and there was a hole about the size of a man’s fist, which had been punched through the iron siding by the tongue of a wagon. Loose hay was scattered in front of the door. The fire was discovered about 1 o’clock in the morning of September 23, 1917, a few minutes after the east-bound passenger train on appellant’s road passed along. There is a conflict in the testimony as to whether or not the fire was discovered before the train passed. The engineer of the train and several other witnesses testified that they saw the fire as the train approached. There were other witnesses whose testimony tended to show that there was no fire about the barn until after the engine passed. This testimony is negative in form, but it warranted the finding that witnesses who passed along there immediately before the train approached did not see any fire there, and that they would have seen the fire if it had been burning then, as stated by the engineer and other witnesses on the train.

There is more or less conflict on the other features of the testimony. Por instance, some of the witnesses say that the wind was coming from the south, so that it would have carried the sparks from the engine over to the barn, while -other witnesses testified that the wind was blowing toward the south, which would have prevented the sparks being carried from the engine to the barn.

The engineer and other witnesses testified that steam had been shut off, and that the engine was merely rolling down to the station, and that under these circumstances an engine never throws sparks. There is testimony, however, to the effect that there was a slight up-grade there, and that the engine must have been working steam at the time. The testimony tends to show that an engine will throw sparks when working steam. Appellant also adduced' testimony that the engine had been inspected shortly before this fire oc-' curred and was also inspected shortly afterwards and was found to be in good condition with respect to the appliances for preventing the escape of sparks.

There was a light plant and gin about 150 feet west of the barn, but there is no affirmative evidence that these were being operated at the time of fire. All the testimony on the subject is that a witness spoke of talking with the night fireman. However, we think it was a question for the jury to determine whether, under the circumstances, even if the gin plant was being operated, the fire was communicated from that source or from a passing railroad engine. We have laid down the Hile and have adhered to it, that, in the absence of direct ‘■■nd positive testimony as to the origin of the fire which "'msumes inflammable property situated near a railroad t-ack soon after the passing of a locomotive, the inference might be drawn that the fire originated from sparks from tlie passing locomotive. Railway Co. v. Dodd, 59 Ark. 317. We have held that in order to be able to draw that inference it is not essential that the evidence should “exclude all possibility of another origin of the fire or that the evidence be undisputed, but it is sufficient, “if all the facts and circumstances in evidence fairly warrant the conclusion that the fire did not originate from some other cause.” St. L. I. M. & S. Ry. Co. v. Dawson, 77 Ark. 434. In the present case no witness testified that they saw sparks escaping from the engine, but the circumstances are shown to be such that a spark could have escaped, and the jury were warranted in finding that, since the fire was discovered immediately after the passing of an engine, it originated from that source. We are therefore of the opinion that there was evidence sufficient to support the verdict.

Judgment affirmed.


author: Wood, J.

text:
    Wells v. State.
    Opinion delivered December 24, 1921.
    1. Criminal law — judicial notice op geography. — The courts will take judicial knowledge of the county seats and of their location with reference to the boundary lines of their counties.
    2. Criminal law — instruction not objected to. — An instruction not objected to below will not be considered on appeal.
    S. Criminal law — harmless error. — The error of admitting improper testimony was not prejudicial where the court subsequently instructed the jury not to consider it.

      4. Homicide — indictment.—Where, according to undisputed testimony, deceased was killed with a blunt instrument, an allegation in the indictment that the exact nature of such instrument was unknown to the grand jurors, if untrue, was immaterial and could he treated as surplusage.
    5. Criminal law — order op introduction op testimony. — It rests within the sound discretion of the trial courts to permit testimony to he adduced out of time, and the exercise of that discretion will not he disturbed unless an abuse is shown.

      Appeal from Drew Circuit Court; Turner Butler, Judge;
    affirmed.

      J. G. Williamson, R. L. Veasy, 8. A. Jones and Letvis Rhoton, for appellant.
    The venue was not proved. There was no proof that the alleged crime was committed in Drew County 3 or even the State of Arkansas. The only proof on this point was that the crime was committed 8 or 9 miles from Monticello.
    Instruction No. 11 eliminated the plea of self-defense and was erroneous. No instruction was given which cured this error.
    The court erred in failing to exclude the evidence of witnesses Burks and Lawson at the time motion was made by appellant to do so, instead of waiting until other witnesses had testified.
    The allegation in the indictment as to the instrument with which deceased was killed being a “blunt instrument” was material and should have been proved. 13 Ark. 712; 16 Ark. 499.
    The admission of the testimony of Henry Carter, after both sides had closed, was error.
    No instruction was given the jury that they could fix the punishment of appellant at life imprisonment.
    J. 8. Utley, Attorney General, Elbert Godwin and W. T. Rammoch, Assistants.
    It is not necessary to prove the venue beyound a reasonable doubt. It is sufficient if proof is made by a preponderance of the testimony. 62 Ark. 497. Proof thereof may be made by circumstantial evidence. 68 Ark. 336; 73 Ark. 484; Guerin y; State, 150 Ark. 295. The court would take judicial knowledge that a point 9 or 10 miles northeast of Montieello was in Drew county. 75 Ark. 142.
    Objection to instruction No. 11 is made for the first time on appeal. The objection comes too late. 70 Ark. 348; 74 Ark. 557; 124 Ark. 599; Cegars v. State, 150 Ark. 648.
    It must be assumed that an intelligent jury would heed the admonition of the cpurt to disregard incompetent testimony, and the excluded evidence of witnesses Burks and Lawson worked no prejudice to appellant. 100 Ark. 437.
    A confession 'by the accused that it might be used against him, without so telling him, does not render it incompetent unless invalidated by statute. 114 Ark. 472; 107 Ark. 568.
    The proof made that the instrument used by appellant was a stick, club or iron rod, was sufficient to meet the allegation in the indictment. The language referring to the description of the instrument being unknown to the grand jury was superfluous and unnecessary. Surplusages will' be disregarded. 19 Ark. 578; 48 Ark. 45; 49 Ark. 499; 55 Ark. 365; 60 Ark. 521.
    It is within the court’s discretion to permit testimony to be adduced by the State after defendant has rested his case. 100 Ark. 180; 32 Ark. 585; 129 Ark. 180.
    Appellant did not request an instruction permitting the punishment to be assessed at life imprisonment, and cannot complain of the failure of the court to give such instruction. 47 Ark. 196; 75 Ark. 373; 67 Ark. 416; 125-Ark. 324.
   Wood, J.

The appellant was convicted in the Drew Circuit Court of murder in the first degree and sentenced to be electrocuted, on an indictment brought by the grand jury of that county, which, omitting formal parts, reads as follows: “That the said James Wells, in the county and State aforesaid, on or about the 18th day of May, 1921, did unlawfully, wilfully, feloniously and of his malice aforethought, and after deliberation and premeditation, kill and murder one Peter Trenz by striking him, the said Peter Trenz, with a certain blunt instrument, the exact description of which instrument is to the grand jury unknown, the said blunt instrument being then and there had and held in the hands of him, the said James Wells.”

The testimony, so far as is necessary to set it forth, is substantially as follows: Dr. Collins, the coroner of Drew County, Arkansas, sometime in May, 1920, examined the body of one Peter Trenz. Dr. Collins bad been a practicing physician for twenty-five years and had had considerable experience in examining wounds. The wounds he found on the body of Peter Trenz, in his opinion, caused his death. It was shown that Trenz lived about nine or ten miles northeast of Montieello, and that he was killed at his home.

It is unnecessary to set forth in detail the testimony on behalf of the State. It suffices to say that the testimony tended to prove that the appellant, a negro boy of about eighteen years of age, killed Trenz, and that his motive was robbery. The sheriff of the county, among other things, testified that two or three days after he had arrested the appellant he had a conversation with him. He asked the appellant why he killed the old man, and'the appellant said, because the old man had complained about his work and cursed and threatened to get his gun and kill the appellant. So h¿ (appellant) went up the road and got a stick and came back in the yard and got behind a stump. He did not want to let the old man see him. But the old man discovered him, and he got up and cut the old man in the head with a stick; that he reported the matter to a neighbor by the name of King. The sheriff stated that, after the arrest and while he was bringing the appellant to jail, he (witness) stated that old man Trenz was getting old, and there was considerable feeling against the person who did this. He told appellant and his brother, both of whom had been arrested, that if they did it he wanted them to say so, and if they didn’t do it he -jvanted them to say so; that he would carry them to Little Eock. The sheriff was asked if in his conversation he told them they had the right to keep silent, and he answered, “Yes, sir; I told them if they did it I wanted .them to tell the truth and if they didn’t do it I wanted them to say so.” He did not advise them that they had the right not to answer the question at all. They knew that he was the sheriff who had put them in jail. Walter Lawson, the deputy sheriff and jailer, testified to subsantially the same.

The appellant moved the court to exclude the testimony of Burks, the sheriff, on the ground that he had not advised appellant of his rights. The appellant was a witness in his own behalf. He testified that he and his brother, Calvin, who was about 16 years old, were working for Trenz doing farm work. He told of a previous quarrel he had had with Trenz in which Trenz had upbraided him for neglect of his work, and concluded by striking the appellant on the nose, causing same to bleed. He then says that he told his brother what had happened. He and Ms brother concluded that, notwithstanding their ill treatment by Trenz, they had to remain with him as they had signed a contract to do so; that his brother went to the house, and later he went to the house and asked Trenz where his brother Calvin was, and Trenz told him that Calvin had gone to the store. Appellant then said he wanted to go to the store, and Trenz said, “You are not going to the store. You all are going to make me kill you yet. ’ ’ Appellant then relates what took place as follows: “He had his gun and we tussled, and I hit him with a stick, and went and caught up with my brother, and we came back to the house, and my brother said, ‘There is no light in the house. I am going to get some one to see what is the matter.’ So we went up to Mr. King’s and told him there was something the matter with Mr. Trenz. I did not tell him what I had done to Mr. Trenz. At the time this happened Mr. Trenz was standing on the ground. After I told him' I wanted to go to the store, and he said I was not going, he ran out at me with a gun. We began tussling on the gallery and some on the ground, and there is where I hit him. I hit him one lick on the throat and one on the head. * * * I did not hit the old man with an iron. I had no knife, and the cut on the throat was made by the lick. * * * After we got off the gallery, we tussled on the ground until I got close enough to the stick to get it. I hit the first lick under the throat, and the second one on the head, and he fell. I left him lying on the ground. I do not know what he did with the gun. I did not think I had killed him; I did not think I had hit him that hard. ’ ’

1. The first contention of appellant is that the venue was not proved. The testimony of Dr. Collins to the effect that he was the coroner of Drew County and that he had made an examination of the body of Trenz and found him wounded unto death, and the testimony of Sheriff Burks to the effect that he was the sheriff of Drew County, Arkansas, and went to the place where Trenz lived nine or ten miles northeast of Montieello, where he found his dead body and arrested the appellant, taken in connection with the testimony that Trenz died of wounds he had received at his home, was sufficient to establish the fact that Trenz was killed in Drew County, Arkansas. The court will take judicial knowledge that the county seat of Drew County, Arkansas, is Montieello, and also that the boundary of Drew County in a northeasterly direction is more than ten miles from the town of Montieello. Guerin v. State, 150 Ark. 295; Forehand v. State, 53 Ark. 646; Scott v. State, 75 Ark. 142.

2. The appellant next contends that the court erred in giving instruction No. 11. It is unnecessary to set out this instruction, for no objection was made- to it in the court below. Such being the case, we cannot consider the alleged error predicated upon the court’s ruling in giving this instruction. Cegars v. State, 150 Ark. 648; Morris v. State, 142 Ark. 297, and cases there cited.

3. Counsel for appellant urges that the court erred in not excluding the testimony of witnesses Burks and Lawson at. the time appellant moved to have same excluded, instead of waiting until the testimony was all adduced. It is unnecessary to decide whether this testimony should have been excluded, for, treating the same as incompetent, the instructions of the court that such testimony was improper and directing the jury not to consider it, removed any possible prejudice against the appellant that may have been created in the minds of the jury by such testimony.

4. The indictment charged that the deceased was killed with a blunt instrument, the exact nature of which was unknown to .the grand jurors. The contention that it was error not to require proof of this allegation cannot be sustained. The nncontradicted testimony at the trial showed that Trenz was killed with a blunt instrument. The testimony of appellant, himself, was to the effect that he struck Trenz with a stick. In view of the above undisputed evidence, it is manifest that the above allegation in the indictment was wholly immaterial and should be treated as surplusage.

5. The fifth and last ground in the motion for a new trial is “that the court erred in permitting the State to call the witness Henry Carter and permitting him to testify in regard to finding the pocket-knife and keys on or near the premises after the State had closed its testimony in chief and after the defendant had closed his testimony.” “It rests within the sound discretion of the trial courts to permit testimony to be adduced out of time, and the exercise of that discretion will not be disturbed by this court unless an abuse is shown.” Walker v. State, 100 Ark. 180. No abuse of that discretion is shown. There is no error.

Let the judgment be affirmed.


text:
    Lindsey v. State.
    Opinion delivered December 24, 1921.
    Criminal law — instruction—general objection. — A general objection is insufficient to call attention to ambiguous language in an instruction.
    Appeal from Lonoke Circuit Court; George W. Clarke, Judge;
    affirmed.

      Trimble & Trimble and J. B. Reed, for appellant.
    The court erred in refusing to give instructions Nos. 1 and 2, as asked by defendant. 196 S. W. 922; 203 S. W. 703.

      J. S. Utley, Attorney General; Elbert Godwm and W. T. Hammoeh, Assistants, for appellee.
    Instructions that are obviously ambiguous should be specifically objected to. 131 Ark. 487; 92 Ark. 238.
    The verdict of the jury will not be set aside by a misleading instruction, when that instruction is made by other instructions given. 59 Ark. 422; 58 Ark. 353.
    It is contrary to the law to aid and assist in the purchase or securing of intoxicating liquor. Crawford & Moses’ Digest, § 6163. See, also, 114 Ark. 391; 124 Ark. 20.
    It was not error to refuse a requested instruction where the law was covered by other instructions given. 129 Ark. 75; 130 Ark. 204; 134 Ark. 197; 137 Ark. 111.
   Wood, J.

The appellant was indicted in the Lonoke Circuit Court under separate counts for selling intoxicating liquor and also for procuring for another intoxicating liquor. By agreement of counsel for the State and the defendant the indictments were consolidated for trial. The jury returned the following verdict: “We, the jury, find the defendant guilty of selling whiskey as charged in the indictment and fix his punishment at one year at hard labor in the Arkansas penitentiary. We, the jury, find the defendant not guilty of procuring liquor.”

The appellant does not contend here that the evidence was not sufficient to sustain the verdict, his only contention being that the court erred in giving the instructions on its own motion and in refusing his prayers for instructions. The court, among others, instructed the jury as follows:

“1. If you find from the evidence in this case beyond a reasonable doubt that this defendant was present aiding and abetting, encouraging or assisting any person in the sale of this liqnor, that would constitute a violation of the law, and that would constitute an unlawful sale, and you will find him guilty, and the punishment as prescribed for the unlawful sale of liquor is one year in the penitentiary, no more and no' less. If he only participated in the sale to the extent of assisting the buyer and not the seller, then he would be guilty of procuring liquor for another, and the lowest fine is $100 and the maximum fine is $500 on this charge. If he neither assisted, aided or abetted in these sales as the agent either of the buyer or seller, he would not be guilty of a violation of either provision of the statute. If he accepted money from the buyer alone and went to the seller and delivered to the seller the money and delivered to the buyer the whiskey and in doing that he was only assisting the buyer and not the seller, he would be guilty of procuring liquor for another, and the penalty would be not less, than $100 and not more than $500. It is not necessary, in order for him to be guilty under the law of a sale of intoxicating liquors, that he was to receive no direct pecuniary profit out of it, if his efforts were directed for the purpose and intention of aiding one in purchasing the liquor, if he had no interest in it himself, then that would constitute a violation of the law prohibiting the sale of liquor, and you will find him guilty and fix his punishment at one year in the penitentiary.”

The appellant saved only a general objection to tiie above instruction. He now urges that the effect of the last sentence of the instruction above set out was to tell the jury that if a person aided a purchaser of liquor, even though he received no direct pecuniary profit and had no interest in it himself, they should find him guilty. But, when the instruction is read as a whole, it is obvious that the last sentence is not susceptible of the meaning which the appellant seeks to give it. The court, in this sentence, was dealing solely with the sale of intoxicating liquor, and the offense that would be committed by one who aided the seller. It was the obvious intention of the court to tell the jury that one who directed his efforts to aiding the seller would be guilty of selling intoxicating liquor, even though he himself was to receive no direct pecuniary profit from the sale. This was the law, and the first and concluding portions of the sentence show clearly that it was the intention of the court to so tell the jury. Therefore, the word “purchasing” where it appears in the sentence was clearly a lapsus pennae — a clerical misprison. The context shows that the word intended was £ £ selling’ ’ instead of “purchasing.” It is necessary to substitute this word in order to give any meaning to the first and concluding portions of the sentence. With the use of the word “purchasing” retained therein, the sentence does not, as the appellant contends, instruct the jury that the one who aided the purchaser would be guilty. On the contrary, it does tell the jury that one who aided the purchaser would be guilty of violating the law prohibiting the sale of intoxicating liquors.

The phraseology of the instruction, because of the use of the word “purchasing” when “selling” was intended, renders the .sentence on its face ambiguous. It therefore devolved upon the appellant to call the attention of the court to the ambiguous phraseology by a specific objection. In other parts of the above instruction, and also in a separate instruction, the court told the jury that if it found that the defendant procured liquor for another and was acting solely as the agent of the buyer and not of the seller, and was intending to aid the buyer and render no assistance to the seller, then he would be guilty of procuring only. When the instruction itself is read as a whole and in connection with other instructions, it is clear that the court intended to use the word “selling” in the above paragraph where it used the word “purchasing.” In the absence of a specific objection, it must be held that there was no prejudicial error. Keirsey v. State, 131 Ark. 487; Derrick v. State, 97 Ark, 237.

The appellant objects to the refusal of the court to grant its prayers for instructions Nos. 1 and 2. These prayers were correct, but we find that they were fully covered by instructions which the court had already given. It was not error therefore to refuse these prayers.

The record presents no error. Let the judgment be affirmed.


author: Wood, J. McCulloch, O. J.,

text:
    Sovereign Camp Woodmen of The World v. Richardson.
    Opinion delivered December 24, 1921.
    1. Insurance — waiver and estoppel distinguished. — The distinction between waiver and estoppel in regard to insurance contracts, is that waiver- is a voluntary abandonment or surrender of a right while estoppel arises where one is misled to his prejudice by the act or representation of another.
    2. Insurance — representation op agent — estoppel.—While a parol executory agreement of an insurance solicitor to waive future breaches of the written agreement is not enforcible, yet where such agent, at the time a policy was taken out, represented that the “war clause” of the policy had not been and would not be enforced, and thereby induced the insured to take out the policy, the insurance company will be estopped to enforce such clauses.
    Appeal from Logan Circuit Court, Southern District; James II. Cochran, Judge;
    affirmed.

      T. E. Helm and Evans & Evans, for appellant.
    Appellant did not comply with the terms of this contract, by notifying the sovereign clerk and by the payment of an additional premium while serving in the army. This had the effect to merely suspend the operation of the contract, and did not render it void. 138 Ark. 442. However, the failure to comply with the conditions of his contract is a bar to any claim thereunder during this period. The policy provided against the waiver of any of the conditions of the policy by any officer, agent, etc., and such provisions have been uniformly upheld. 58 So. 100; L. R. A. 1915-E 152; 4 L. R. A. (N. S.) 421; 183 U. S. 308; 180 Pao. 2; 40 S. W. 553, etc. The power to make by-laws for fixing the duties of member's, etc., is expressly recognized by our statute, Acts 1917, act 462. On becoming a member of the order, Richardson agreed to be bound by such laws. Even conceding that Newberry made the statement ascribed to him, it was not such a positive statement that a prudent man could rely absolutely upon it. The contract of insurance is the measure of the rights of one and the obligations of the other party (71 Ark. 295) and relief must be granted, if at all, -according to its terms (52 Ark. 201). Not against public policy to make exemptions such as in this case. 138 Ark. 442.
    The war clause has been consistently upheld by the various courts. 106 S. E. 185; 181 N. W. 819; 230 S. W. 540; 106 S. E. 32; 107 S. E. 177; 89 Sou. 58.

      Kmcannon & Kincannon, for appellee.
    Appellant is estopped by the action of its agent New-berry to claim a forfeiture. It was in reliance upon such statement that deceased joined the order. 142 Ark. 132; 127 Ark. 133. There being a conflict in the testimony upon the question of waiver, it was for the jury to settle the matter. 109 Ark. 35. A verdict will not be disturbed where there is evidence legally sufficient to support it. 113 Ark. 471; 131 Ark. 362. The same is true of findings by the court. 89 Ark. 321; 93 Ark. 548; 111 Ark. 38; 113 Ark. 400.
   Wood, J.

The appellant is a mutual benefit society doing business in this State. Farrar Newberry was deputy manager of appellant in this State on March 16, 1918. His duties were organizing new camps, reviving old camps, and soliciting new members. On the day mentioned he was at Booneville, Arkansas, for the purpose of initiating a class of new members, and on that day a class was initiated into the order at his solicitation and under his direction, of which James W. Richardson was a member. Newberry was not an officer of the Sovereign 'Camp which has its domicile at Omaha, Nebraska. On April 3, 1918, the appellant issued to James W. Richardson a benefit certificate in which, his wife, Winnie May Richardson,' the appellee, was the beneficiary, insuring the life of Richardson for the sum of $1,000. The constitution and by-laws of the order are made a part of the contract of insurance, and, among others, the following provision was a part of the contract of insurance:

“In the event the holder of this certificate shall die while serving in any branch of the United States army or navy, either as an officer or enlisted man, outside of the boundaries of the United States of America, then the amount due under this certificate shall be such proportion of the amount thereof as the period he has lived since becoming a member bears to his expectancy of life at the time of becoming such member, determined by the National Fraternal Congress Table of Mortality; provided that, should the holder of this certificate so desire, he may within thirty days after entering the service in any branch of the United States army or navy as an officer or enlisted man, notify the sovereign clerk at the home office of the society, Omaha, Nebraska, United States of America, that he has entered such service of the United States of America, and pay in advance to the sovereign clerk, for the society, the sum of $37.50 per one thousand dollars insurance per annum in addition to the regular assessment prescribed by section 56 of the constitution and laws of the Sovereign Camp of the Woodmen of the World; and upon so doipg at the death of the member, or as soon thereafter as possible, the amount prescribed in this certificate shall be paid to his beneficiary or beneficiaries.”

The contract also contained a receipt signed by Richardson acknowledging that he had read the benefit certificate, and also a provision that Richardson would pay all the assessments and dues at such time and in such manner as were required by the constitution and laws of the order, and, in default thereof, his contract was rendered null and void.

Eichardson enlisted in the United States army May 27, 1918, and went to Prance where he was killed in battle November 4, 1918. He did not notify the sovereign clerk that he had enlisted in the army and did not pay the additional premium required by the contract to keep his insurance alive while he was engaged in the military service beyond the bounds of the United States. The appellee and her father paid his monthly dues regularly until the death of Eichardson. These dues were paid to the clerk of the local camp regularly as they became due. Neither the local camp clerk or the consul commander of the local camp informed the appellee or the father of Eichardson at the time of the payment of the monthly assessment that any additional sum was necessary in order to keep the policy alive. At the time Eichardson was initiated into the order, Newberry, in response to inquiries, told the members of the class that the provision of the contract requiring the payment of an additional premium of $37.50 for the increased risk of military service had not been enforced, and he did not think it would be necessary to enforce it; that there was nothing to that; that it would not bother the members then being initiated.

The appellee instituted this action against the appellant on the benefit certificate to recover the sum of $1,000. The appellant denied liability except for the sum of $13.50, the amount shown and conceded to be due under the policy if force were given to the war risk clause. Substantially the above facts were developed at the trial. The court, among others, instructed the jury as follows: “If you find from a preponderance of the evidence that witness Newberry stated to T. M. Eiley and Eiley stated to James ~W. Eichardson that there would be no extra dues or assessments charged for entering the army, and that statement was made to induce Eichardson to join the lodge and take out insurance in defendant’s company, and said statement did induce the said James W. Eichardson to join the lodge and take out insurance, then the company would be estopped from setting up a failure of Eichardson to pay additional dues or assessments as a defense to uns action, and if you so find, your verdict should be for the plaintiff for the sum of $962.50. If you do not so find from a preponderance of the evidence, you should find for the defendant.” ■

The appellant duly excepted to the ruling of the court in giving the above instruction and offered prayers for instructions to the effect that the undisputed evidence showed that the “war clause” of the contract was in force, and that the jury should return a verdict in favor of the appellant. The trial resulted in a judgment in favor of the appellee in the sum of $962.50, from which is this appeal.

This issue as to whether or not the “war clause” of the policy had been waived at the time of the death of Eichardson is settled by the recent decision of this court in Sovereign Camp W. O. W. v. Peaugh, 150 Ark. 176. The facts here with reference to the failure to notify the sovereign clerk that Eichardson had entered the military service of the United States and had failed to pay in advance the additional premium of $37.50 for the war risk are precisely similar in essential particulars to the facts of the above case. Therefore, if there were nothing more in this case than the simple issue of waiver, the cause would have to be reversed under the ruling in the above case.

But the testimony in the present case was sufficient to justify the court in sending to the jury the issue as to whether or not appellant was estopped by the conduct of its agent, Newberry, from setting up the failure of Eichardson to pay the additional premium called for by the war clause, in defense of this case. In the recent ease of Sovereign Camp W. O. W. v. Newsom, 142 Ark. 132, in the opinion on rehearing at page 157, in.-discussing the difference between the terms “waiver” and “estoppel,” we quoted from the opinion of Judge Chilton, speaking for the Supreme Court of Texas, among other things as follow's: “Waiver is the voluntary surrender of a right; estoppel is the inhibition to assert it from the mischief that has followed. Waiver involves both knowledge and intention; an estoppel may arise where there is no intention to mislead. * * * Waiver involves the acts and conduct of only one of the parties; estoppel involves the conduct of both. A waiver does not necessarily imply that one has been misled to his prejudice, or into an altered position; an estoppel always involves this element. * * * Estoppel arises where, by the fault of one party, another has been induced, ignorantly or innocently, to change his position for the worse in such manner that it would operate as a virtual fraud upon him to allow the party by whom he has been misled to assert the right in controversy.” The terms “waiver” and “estoppel” are often used interchangeably as if they were convertible terms, meaning’ the same thing. But such is not the case, and a failure to observe this clear distinction between them often leads to confusion. On the issue of estoppel, the present case under the facts comes wrell within the doctrine announced in the opinion on rehearing in Sovereign Gamp W. O. W. v. Newsom, supra, and well within the general doctrine which has been announced in many decisions of this court, which was well expressed by Chief Justice Bull, speaking for the court in the case of People’s Fire Ins. Assn. v. Goyne, 79 Ark. 315-326, as follows: “When a person does an act or makes a representation which leads another person to a certain course of conduct which he would not otherwise have pursued, the party causing this action is estopped to take any advantage of anything contrary in fact to his misleading conduct or misrepresentation.” See also Grand Lodge A. O. U. W. v. Davidson, 127 Ark. 133.

This case is clearly distinguishable from the case of Home Fire Ins. Co. v. Wilson, 109 Ark. 324, and all such cases where it is held that the executory agreement of the agent of the insurance company to waive future breaches, if such oocur, is not enforceable. Here the facts warrant a finding that, before the contract of insurance was entered into, and as an inducement to Eichardson to enter into the contract, Newberry represented that the “war clause” of the policy had not been, and would not be, enforced; that there was nothing to that clause; “it would not bother” the members that were then being initiated. The jury might have found that Eichardson, but for such representation, would not have entered into the contract. In all such cases as this where the agent, having express or apparent authority to take the application and initiate members into the appellant society, makes false representations which induce the members to join the order and which he otherwise would not have done, then the society, through its agent making such false representation, will not be heard afterwards to controvert their truth. For to do so would enable it to take advantage of its own wrong and perpetrate a fraud upon its members by installing them into the order and collecting dues from them upon false representations. The doctrine of estoppel, as announced in Sov. Camp W. O. W. v. Newsom, Home Fire Ins. Assn. v. Goyne, supra, and other cases, is clearly applicable to the facts of this record. That issue was correctly submitted to the jury under the court’s instructions. There is no error in the liilings of the trial court, and its judgment therefore must be affirmed.

McCulloch, O. J.,

(dissenting). An express waiver is the voluntary surrender of a right with knowledge of all the facts affecting the assertion of that right. Implied waiver is but another name for estoppel by inconsistent or misleading conduct. 7 Cooley’s Brief on Insurance p 2462.

If Mr. Newberry made the statement attributed to him (which I do not deem it necessary to discuss), there is still no element of estoppel or implied waiver involved, for his conduct and statement only amounted to an agreement that the society would not enforce the so-called “war clause.” If the statement amounted to anything at all, it was an express waiver, and, if it be enforced, it is tantamount to permitting a soliciting agent of such society to waive, in advance, an express provision of the by-laws. An implied waiver or estoppel by misleading conduct must, in order to be effective, relate to a present or past incident, for if it relates to future conduct it is necessarily promissory in its effect. Home Fire Ins. Co. v. Wilson, 109 Ark. 324. This distinction is clearly pointed out in the decision of the Supreme Court of the United States in Insurance Company v. Mowry, 94 U. S. 544. It was there claimed that an agent of the insurance company had made statements to the assured before the issuance of the policy in conflict with the recitals of the policy itself with respect to the method of payment of premiums, and this was asserted as a defense. Mr. • Justice Field, speaking for the court, said:

“The only case in which a representation as to the future can he held to operate as an estoppel is where it relates to an intended abandonment of an existing right, and is made to influence others, and by which they have ■been induced to act. An estoppel cannot arise from a promise as to future action with respect to a right to be acquired upon an agreement not yet made. The doctrine of estoppel is applied with respect to representations of a party, to prevent their operating as a fraud upon one who has been led to rely upon them. They would have that effect if a party who, by his statements as to matters of fact, or as to his intended abandonment of existing rights, had designedly induced another to change his conduct or alter his condition in reliance upon them, could be permitted to deny the truth of his statements, or enforce his rights against his declared intention of abandonment. But the doctrine has no place for application when the statement relates to rights depending upon contracts yet to be made, to which the person complaining is to be a party. He has it in his power in such cases to guard in advance against any consequences of a subsequent change of intention and conduct by the person with whom he is dealing. For compliance witli arrangements respecting future transactions, parties must provide by stipulations in their agreements when reduced to writing. The doctrine, carried to the extent for which the assured contends in this case, would subvert the salutary rule that the written contract must prevail over previous verbal arrangements, and open the door to all the evils which that rule was intended to prevent.”

In the ease of McCoy v. Northwestern Mutual Relief Association, 92 Wis. 577, Judge Marshall, speaking for the court, said:

“After a loss accrues, an insurance company may, by its conduct, waive a forfeiture; or by some act before such a loss it may induce the insured to do or not to do some act contrary to the stipulations of the policy, and thereby be estopped from setting up such violation as a forfeiture; but such conduct, though in conflict with the terms of the contract of insurance and with knowledge of the insured and relied upon by him, will not have the effect to broaden out such contract so as to cover additional objects of insurance or cause of loss. To illustrate the principle here laid down, a policy of insurance against loss by fire cannot have ingrafted upon or added to it, by way of estoppel or waiver, provisions for insurance against loss by any other cause; and no more can a policy of life insurance, expressly limited to payment of a sum of money in the event of death from causes other than suicide or self-destruction, be broadened out by the application of the law of waiver or estoppel so as to cover the cause excluded under the contract. While a forfeit-' ure of benefits contracted for may be waived, the doctrine of waiver or estoppel cannot be successfully invoked to create a liability for benefits not contracted for at all.”

The effect of the decision of tbe majority is to say that a soliciting agent of a mutual benefit society in this State may abrogate one of the by-laws of the society by a statement to a prospective member that the by-law bad not been, or would be, enforced. In other words, the effect is to hold that such an agent can do indirectly by a .false statement what he has no authority to do directly.

I have not been able to find any case where the doctrine of estoppel has been applied under facts similar to those in the present case. ' No authority to that effect is cited in the opinion of the majority. Mr. Newberry was not a general officer of the governing body of the society, but I think it is unimportant what position he occupied, for it seems to me that even the chief officer of the society did not have authority to abrogate the by-laws by a mere statement with respect to- the intenion of the society not to enforce them.

Smith, J., concurs.


author: Hart, J.

text:
    Seaton v. State.
    Opinion delivered December 24, 1921.
    1. Rape and carnal abuse — sufficiency of evidence. — In a prosecution for carnally knowing a female under 16 years of age, a conviction may be had upon the uncorroborated testimony of the prosecutrix alone.
    2. Criminal law — failure to object to evidence. — Alleged error in the admission of evidence will not be considered on appeal where no objection was made thereto in the court below.
    3. Criminal law — instruction as to credibility of witnesses.— An instruction that if the jury believe a witness has sworn falsely in part and truthfully in part, they may disregard his whole testimony or reject that portion which they believe to be false and accept that part which they believe to be true, will not be reversible error unless specific objection was taken.

      4. Criminal law — instruction—character evidence. — An instruction to the jury that if the proof convinces you beyond a reasonable doubt of the defendant’s guilt you should not consider testimony as to his previous good character, while not in good form, was not reversible error where the court also told the jury that they could not convict defendant unless his guilt was established beyond a reasonable doubt.
    5. Criminal law — improper argument. — An improper argument made by the prosecuting attorney will not be reversible error where the court directed the jury not to consider it, especially where the error was invited by the argument of defendant’s attorney.
    Appeal from Lonoke Circuit Court; George W. Clark, Judge;
    affirmed.

      Trimble & Trimble and Chas. A. Walls, for appellant.

      J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    The competency of evidence admitted without objection in the trial court will not be considered on appeal. 76 Ark. 276; 130 Ark. Ill; Cegars v. State, 150 Ark. 648.
    Where no objection is made to a misleading instruction, a reversal will not be granted on this ground. 93 Ark. 209; 111 Ark. 196; 136 Ark. 272’.
    The court instructed the jury to disregard that part of the prosecuting attorney’s argument which was objected to, and the presumption is that the jury obeyed the instruction of the court. 100 Ark. 437.
   Hart, J.

Calvin Seaton prosecutes this appeal to reverse a judgment of conviction against him under sec. 2720 of Crawford & Moses’ Digest for carnally knowing a female under the age of sixteen years.

At the trial below, the defendant denied that he had had sexual intercourse with the prosecuting witness, and now earnestly insists that the evidence for the State is not sufficient to warrant a conviction.

The prosecuting witness was the step-daughter of the defendant, and was past 14 years of age when she testified at the trial of the case in September, 1921. According to her testimony she was past thirteen years of age when the defendant, who was her step-father, had sexual intercourse with her. She had gone with her step-father to pick huckleberries near their home in Lonoke County, Ark., in July, 1920, when the offense was committed. She testified further that her step-father had intercourse with her in their pasture on another occasion. She also testified that her step-father had had intercourse with her once or twice a week at other times in Lonoke County, Ark.

On cross-examination she admitted that she was mistaken about this last statement, but reaffirmed her testimony to the effect that her step-father had had intercourse with her on the two occasions named in her examination-in-cMef.

Her testimony was sufficient to warrant a conviction. It is well settled in this State that in the prosecution for carnally knowing a female under sixteen years of age, a conviction may be had upon the uncorroborated testimony of the prosecutrix alone. Ragsdale v. State, 132 Ark. 210, and Jackson v. State, 142 Ark. 96.

The next assignment of error is that the judgment should be reversed because the court allowed a sister of the prosecuting witness to testify to statements made to her by the prosecuting witness.

No objection was made by the defendant in the court below to the evidence in this respect, and we cannot consider any alleged error on this account on appeal. Cegars v. State, 150 Ark. 648.

Error is also assigned with regard to the admission of testimony of the sister of the prosecuting witness as follows:

Q. Did Mr. Seaton ever exhibit any rubbers or condoms to you?

A. Yes, sir.

Q. How many did you ever see?

We object to that.

Court — Let her answer.

Exceptions saved by defendant.

Q. Did yon ever see him with any rubbers?

A. Yes, sir.

A. He bought some twice.

Q. Do you know what he did with them — tell the jury what he did with some of them.

Court — Not unless they were used with reference to the other witness, Maggie Mae Parker.

It will be observed that defendant objected only to the testimony as to the number. The witness never answered the question propounded to her relative to how many she saw. She did not tell what he did with them. All other questions and answers were not objected to, and defendant has no right to complain of the admission of the testimony at this time.

The next assignment of error is that the court erred in instructing the jury on the weight and credibility to be given to the testimony of the witnesses.

We do not deem it necessary to set out the instruction in the form given. The instruction was faulty, but this court has held that where an instruction in effect charges the jury that they are the judges of the credibility of the witnesses, although one of them'has been impeached, and, if they believe a witness has sworn falsely in part and truthfully in part, they may disregard his whole testimony or reject that portion which they believe to be false and accept that part which they believe to be true, it will not be held bad when objected to generally. Bruder v. State, 110 Ark. 402, and Johnson v. State, 120 Ark. 193.

In the instant case no specific objection was made to the instruction, and the language used was probably the result of oversight. In any event, in the absence of a specific objection, it does not call for a reversal of the judgment.

It is insisted .that the judgment should be reversed because the court erred in giving instruction No. 3. which is as follows: “It is not a question in this case whether the defendant was of good or bad character. Good character is no excuse for crime, neither would bad character authorize you to convict this man unless the proof establishes his guilt beyond a reasonable doubt. The only purpose this testimony is offered and permitted to go to the jury on the, question of good character is for you to determine whether or not a person of such good character, if there is grave doubt as to his guilt, would be likely to commit such a crime. If the testimony is equally or evenly balanced, good character can be considered and should turn the scales in favor of such person. If, however, the proof on the part of the State convinces you beyond a reasonable doubt that this defendant had intercourse with the prosecuting witness, and it occurred within three years before the return of this indictment and in the confines of Lonoke County, then you should not consider any testimony with reference to his previous good character.”

In a criminal prosecution, evidence of the accused’s general good character is admissible with regard to the particular trait involved in the nature of the charge. The traits of character which may be proved must depend upon the nature of the crime charged and the moral wrong which is involved in its commission. Kee v. State, 28 Ark. 155; Edmonds v. State, 34 Ark. 720; Ware v. State, 91 Ark. 555; and Whitley v. State, 114 Ark. 243.

Under this rule the defendant introduced several witnesses who testified as to his general good moral character, and evidence was also adduced by the State tending to contradict the evidence in support of the defendant’s good character.

It must be admitted that the instruction complained of is not in good form, but we do not think that the giving of it constitutes prejudicial error calling for a reversal of the judgment. In the first part of the instruction the jury are told that they were not authorized to convict unless the proof establishes the defendant’s guilt beyond a reasonable doubt. The jury are specifically told that in determining, this question they are to consider the evidence on character along with the other evidence in the case. It is true that at the end the court tells the jury that if the proof on the part of the State convinces them beyond a reasonable doubt of the defendant’s guilt, then they should not consider any testimony with reference to his previous good character. As we have already seen, when the instruction is read as a whole, it is evident that the court did not intend to instruct the jury on the weight of the testimony. In other instructions the court told the jury that they could not convict the defendant unless his guilt was established beyond a reasonable doubt by the evidence for the State. This was also made plain to the jury in the instruction complained of. Therefore, the instruction did not mean to tell the jury that the evidence of good character could not be considered.

On the other hand, the jury were expressly told to consider this testimony along with the other testimony in the case, and not to convict the defendant unless they were satisfied beyond a reasonable doubt of his guilt by the evidence for the State. See Woodall v. State, 150 Ark. 394, and Trimble v. State, 150 Ark. 536.

Finally, it is insisted that the judgment should be reversed because of the remarks made by the prosecuting attorney in his closing argument. We copy from the record the remarks of the prosecuting attorney complained of, and the statement of the court in response to the request of the defendant to strike the argument from the record. It is as follows:

“Gentlemen of the Jury, Mr. Thos. C. Trimble, attorney for the defendant, has stated in his argument, that a former jury had acquitted the defendant on a similar charge alleged to have been committed on the sister of the prosecuting witness; and the evidence in that case was stronger than the charge now on which he is being tried. In reply to this, I want to say, that when this jury returned to their homes, they could not with clear conscience look their wives and daughters in the face, and until they meet their Maker, their consciences would burn them for the part they had taken in thwarting justice. ’ ’ To which argument the defendant objected at the time, and asked that same be stricken from the record. Thereupon the court stated: “I have failed to hear the statement of Mr. Trimble, but, had I done so, I would have excluded same from the consideration of the jury. The jury has nothing to do with what any former jury did in another case; they are to make up their verdict upon the evidence and the law previously given them.”

It will be noted that the court specifically directed the jury to render its verdict alone upon the law and the evidence in the present case. We think the action of the court eliminated any prejudice that might have resulted to the defendant from the remarks of the prosecuting attorney.

Moreover, the error complained of was invited by the action of the defendant’s attorney in Ms argument to the jury. Therefore the defendant is not entitled to have a reversal of the judgment on this account.

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


text:
    Parsley v. State.
    Opinion delivered December 24, 1921.

      1. Homicide — assault with intent to kill — burden of proof. Crawford & Moses’ Dig. § 2342, providing that in homicide cases if the killing is established the burden of proving mitigating circumstances justifying or excusing the homicide shall devolve on accused, has no application in a case of assault with intent to kill, and the burden is on the State to prove every allegation of the indictment beyond a reasonable doubt.
    £. Homicide — admissibility of threats. — In a prosecution for assault with intent to kill, where there is doubt as to who was the aggressor, threats made by the prosecuting witness, unless too remote, would be competent to show his character for violence and his disposition of mind toward the defendant.
    Appeal from Lonoke Circuit Court; George W. Clark, Judge;
    reversed.

      Williams & Holloway, Trimble S Trimble and Guy E. Williams, for appellant.
    Instruction No. 5, given by the court, is in substance the same instruction given on a former trial, which was the error for which the case was remanded for new trial. Parsley v; State, 148 Ark. 518. The giving of this instruction calls for the reversal of the case.

      J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    We concede error in the giving of instruction No. 5.
   Hart, J.

Allie Parsley prosecutes this appeal to reverse a judgment of conviction against himself for the crime of assault with intent to kill.

This is the second appeal in the case, and the evidence is not materially different from that in the former appeal. Reference is made to the opinion for a particular statement of facts. Parsley v. State, 148 Ark. 518.

On the former appeal it was held that our statute providing that in homicide cases, if the killing is established, the burden of proving mitigating circumstances justifying or excusing the homicide shall devolve on the accused, does not apply to assault with intent to kill, and the burden is on the State to prove every allegation of the indictment beyond a reasonable doubt.

The judgment was reversed because the trial court had given an instruction embodying this statute in form and substance, and the cause was remanded for a new trial.

Upon the retrial of the case the court again gave substantially the same instruction, and for the reasons given in our former opinion, the judgment must be again reversed, and the canse remanded for the error in giving this instruction. The Attorney General confesses error in this respect.

It is also insisted by counsel for the defendant that the court erred in refusing to allow the defendant to prove that the prosecuting witness on the day preceding the killing had made violent threats and demonsfcrations against the defendant, and that the judgment should be reversed because of the failure of the court to allow this proof to go to the jury.

On the part of the State it is admitted ■ that the defendant asked questions looking to the introduction of testimony of threats made against the defendant by the prosecuting witness on the day preceding the shooting’, but it is insisted' that the exclusion of the testimony should not be considered on appeal because the defendant did not offer to show what the answer to the question would be, See Webb v. State, 150 Ark. 75.

Whatever may be the state of the record on this point, we deem it necessary to decide the question in view of another trial. The defendant, Parsley, was charged with shooting Prank Gassoway. The 'evidence on the part of the State and of the defendant was in direct conflict as to who was the aggressor. It is well settled in this State that threats, whether communicated or uncommunicated, are admissible when there is doubt as to who was the aggressor, and some evidence has been given which tends to show that the act was done in self-defense. Threats would be competent to show the character of Gassoway for violence and his disposition of mind toward Parsley, and thus be considered by the jury in determining who was the aggressor. Lee v. State, 72 Ark. 436; Harper v. State, 79 Ark. 549; Turner v. State, 128 Ark. 565; and Blackburn v. State, 135 Ark. 388.

Of course, where the threats were too remote both in circumstances and time to afford any reasonable presumption or inference of connection between the occasion when the threats were made and the difficulty under investigation, they are not admissible. Turner v. State, 128 Ark. 565, and Fowler v. State, 130 Ark. 365.

For the error in giving the, instruction as indicated in the opinion, the judgment must be reversed, and the cause remanded for a new trial.


author: Humphreys, J.

text:
    Arkansas Public Utilities Company v. Heber Springs.
    Opinion delivered December 24, 1921.
    1. Municipal corporations — notice to pay tax — validity.—Where a notice to pay a municipal pole tax for each of four quarters of the year was served before the last quarterly payment was due, the notice was good as to the three assessments which became due prior to that time.
    2. Municipal corporations — insufficiency of notice to pay tax-waiver. — The fact that a demand upon defendant for payment of a municipal pole tax was prematurely made was waived where the defendánt in his answer tenders the amount of such tax.
    3. Municipal corporation — pole tax — validity.—The contention that a municipal tax upon the poles erected in the streets of a town is designed to raise revenue and not to raise a fund for regulation will not he sustained where it does not appear what are the expenses of supervision.
    4. Municipal corporations — payment of municipal tax. — A municipal ordinance providing for payment of a pole tax in “cash” will be construed to mean either in money or in municipal orders, warrants or scrip, in view of Constitution of 1874, art. 16, § 10, making municipal taxes payable in town or city orders or warrants, and of Crawford & Moses’ Dig. § 1993, providing that such warrants shall be receivable for all taxes, except interest tax, and for all debts due to the municipal corporation.
    5. Municipal corporations — sufficiency of tender of tax. — A tender of municipal warrants in payment of a municipal tax after the penalty for non-payment had attached will not relieve from liability therefor.
    Appeal from Cleburne Circuit Court; J. M. Shinn, Judge;
    affirmed.

      George W. Reed, for appellant.
    The notice was premature and of no effect. Ordinance No. 119 is void, as it has for its purpose the raising of revenue and not supervision of poles. 34 Ark. 603; 43 Ark. 82; 52 Ark. 301; McQuillin on Municipal Corporations, sec. 1683. The salaries paid town officials was $72 per year, whereas the revenue demanded of appellant amounted to $106 per annum, and supervision of poles was in hands of mayor and councilmen. The case does not come within the rule in 72 Ark. 556.
    Tender of a debt due a municipal corporation may be made in warrants issued by said corporation. Const, art. 16, sec. 10; C. & M. Dig., .sec. 1993; 12 Ark. 721; 72 Ark. 27; 74 Ark. 498; 77 Ark. 250; 133 Ark. 90; 147 Ark. 374. When so tendered, the warrants are the same as cash. No municipal corporation shall be authorized to pass any laws contrary to the general laws of the State. Const., art. 12, sec. 4; 75 Ark. 458.

      M. E. Vinson, for appellee.
    Conceding that notice was premature as to the tax for the fourth quarter, it was still legal for' the three preceding quarters for which appellant was in arrears. However, the question is raised here for the first time, which cannot 'be done. 103 Ark. 70; 95 Ark. 168; 105 Ark. 367; 84 Ark. 95, etc.
    The ordinance gave the mayor and council power and authority to direct the marshal, street commissioners or street committee to supervise the maintenance of poles. None of the officers are paid, and it could not be expected that they would perform such services free. Police regulation of dangerous agencies using streets and alleys is highly important. 72 Ark. 556; 70 Ark. 549; 131 Ark. 306; 88 Ark. 263; 70 Ark. 28; 64 Ark. 152; 107 Ark. 174.
    Ordinances producing revenue, where for the purpose of regulation, are valid. 43 Ark. 82; 5p Ark. 301; 127 Ark. 384. See also 93 Ark. 612; 72 Ark. 556; 131 Ark. 306; 41 Ark. 485; 70 Ark. 549; 147 Ark. 320.
    Even though that feature of the ordinance requiring the payment of the tax in cash be void, still this would not render the whole statute invalid, nor exempt appellant from the payment of the penalty.
   Humphreys, J.

Appellant was convicted in the Cleburne Circuit Court, on appeal from a mayor’s court, of a misdemeanor for failure to pay taxes assessed against its electric light poles under ordinance No. 119 as amended by ordinance No. 148 of the town of Heber Springs, from which judgment of conviction an appeal has been duly prosecuted to this court. The ordinances assessed a tax of 25 cents per year on each pole erected, kept, maintained and used on the streets, alleys and public places in said town for business purposes to cover the expense of control and regulation thereof. Section 1 of ordinance 148 amended section 2 of ordinance 119, and reads as follows:

“That from and after the passage and publication of this ordinance there is hereby levied, for the purpose of the regulation as provided in section 1 of this ordinance, a tax of twenty-five cents per year on each pole kept, maintained or used in place on streets, alleys and public places in said town; and each and every person, partnership or corporation using or maintaining poles for the purpose aforesaid shall pay into the treasury of the said town to the credit of the street fund the sum of twenty-five cents in cash for each pole so maintained and used; such payment may be made in four equal installments as follows: On the first Monday in January, April, July and October of each year, and all moneys arising from such payments shall never be used for any other purpose than the inspection of the said poles and for work done or services done and materials furnished on the streets, alleys or public places of said town.”

Section 3 of ordinance No. 119 reads as follows:

“That any person or corporation failing or refusing to comply with the provisions of this ordinance or failing or refusing to pay any installment of such tax as provided herein, after ten days’ notice signed by the mayor, served by the marshal of said town, shall be deemed guilty of a misdemeanor and upon conviction shall be fined in any sum not exceeding $25.”

The cause was submitted to the jury upon the charge filed in the mayor’s court, the notice provided for in section 3 of ordinance No. 119, the summons, the ordinances aforesaid, and the following agreed statement of facts:

“It is agreed that the ordinance under which this prosecution is had may be considered as evidence and that they were regularly ordained by the town council of the incorporated town of Heber Springs, Cleburne County, Arkansas, and duly published as provided by law.

“It is further agreed that the defendant had not on the 2d of July, 1921, paid the pole tax prescribed by said ordinance. It is further agreed that such payment has not yet been made but the defendant tendered to R. R. Morton, town treasurer of said town, the amount demanded by said town and offered to pay said sum in the warrants of town, such offer and tender being made on the 30th day of July, 1921; that notice signed by the mayor of the town of the non-payment of the said pole tax was duly served on the defendant on the 2nd day of July, 1921; that such tender has been made or held good from the time it was made; that such tender was refused because not made in cash, and that most of the poles maintained and used by the defendant in Heber Springs were erected before the passage of the ordinances under which this prosecution is had.

“.It is agreed that the defendant has paid all pole tax due by it under the said ordinances up to and including the 30th day >of June, 1920; and that the amount tendered by it was for four quarter years ending June 30, 1921.

“It is further agreed that the five aldermen of Heber Springs were paid a salary of $12 per annum find the mayor of Heber Springs, up to April, 1921, was paid a salary of $12 per annum, and that since the 12th day of April, 1921, the mayor of said town is paid, a salary of $50 per month and that said salaries are paid out of the general revenue funds of the town; and it is agreed that there are no other officers of said town who are paid a salary.”

Appellant’s first insistence for reversal is that the notice provided for in section 3 of ordinance No. 119 as a prerequisite to the prosecution for failure to pay the assessment was premature because it was dated on July 1st and served on July 2, 1921, when the assessment was not due until the fourth Monday in July, 1921. If the notice were premature as to the quarterly assessment due on the first Monday in July, it was good as to the three quarterly assessments which became due prior to that time. Again, appellant waived the insufficiency of the notice as to the July or fourth quarterly payment by the following recitation in the agreed statements of facts: “It is agreed that the defendant has paid all pole tax due by it under the said ordinances up to and including the 30th day of June, 1920; and that the amount tendered by it was for four quarter years ending June 30, 1921.”

Appellant’s next insistence for reversal is that the ordinances are void because designed to raise revenue, and not to raise a necessary fund to pay the expenses of supervision or regulation of the poles. The proof does not show that the tax -imposed on the poles exceeds the necessary expense of supervision and regulation. The only proof upon the point in the record is that prior to April, 1921, the tax levied against the poles exceeded the salaries paid the aldermen and mayor of Heber Springs, and that those officers were the only salaried officers in the town. It is true the ordinance nlaces the direct control and supervision of poles used in the streets- and alleys by all persons for business purposes in the mayor and council; but the ordinance authorizes them, by resolution, to direct the town marshal, the street commissioners or street committee to supervise personally the erection, location, setting and placing and determination of the length and size of al) such poles to be used in said town. The authority to direct them implies the power to pay them. The evidence does not show the amount paid these parties for their services, and therefore fails to show that the assessment exceeds the amount necessary for supervision.

Appellant’s next contention for reversal is that the provision in the ordinance for the payment of the assessment in cash renders it void and of no effect. Article 16, § 10, of the Constitution of 1874 permits the payment of town and city taxes in town or city orders or warrants; and section 1993 of Crawford & Moses’ Digest provides in part that “all city warrants, scrip, acceptances or money shall be receivable for any taxes for city purposes, except for interest tax, and for all debts due the municipal corporation by whom the same are issued, without regard to the time or date of such issuance of such warrant, scrip, acceptance or money, or the purpose for which they were issued.”

The authority possessed by municipalities in this State is delegated power, which cannot be exercised contrary to the general laws of the State, but must be exercised in conformity thereto. It follows that in the construction of ordinances the laws of the State must be read into them if possible, so that they may be upheld as being in harmony with the general laws, and not stricken down as being in conflict therewith. The provision of the ordinance before us for the payment of the tax in cash may be conformed to the State law providing for the payment of municipal debts in municipal orders, warrants or scrip by construing the words “in cash” to include not only payments in currency, but in municipal orders, warrants or scrip. A cash payment may be made in any' authorized medium provided for the payment of debts and is not necessarily limited to money. We so interpret the ordinance.

Lastly, appellant contends that the judgment should be reversed because he made a tender of the tax in municipal warrants. The tender was made after the penalty attached, and consequently did not relieve appellant from liability.

No error appearing, the judgment is affirmed.