author: Humphreys, J.

text:
    Gillis v. Gillis.
    Opinion delivered June 2, 1924.
    1. Homestead — abandonment.—The question whether one who removes 'from his homestead has abandoned it is one of intention, which must be determined from the facts qnd circumstances attending each case.
    2. Homestead — abandonment.—To avoid abandonment of a homestead by removal therefrom, there must be a constant abiding intention to return from the time of removal.
    3. Homestead — abandonment.—One who leaves his home and acquires another, where he resides for a considerable time, will be presumed to have abandoned his old home, in the absence of convincing testimony to the contrary.

      4. Homestead — abandonment.—Evidence held to show that one removing from a homestead and purchasing another home, where he resided for ten years and died, did not retain a constant abiding intent to return, and hence abandoned his former homestead.
    Appeal from Mississippi Chancery Court, Chickasawba District; Archer Wheatley, Chancellor;
    affirmed.

      Kmcannon é Kineannon, for appellant.
    The question whether or not the owner of a homestead in removing therefrom abandoned his homestead rights therein is conceded to be one of intent, to be determined by the facts and. circumstances attending each case. In this case we think it is shown that J. B. Grillis held to the intention; during all of his absence from his old homestead in search of health, to return to it. 101 Ark. 101; 55 Ark.' 55; 141 Ark. 177.

      Little, Buck é Lasley, for appellees. ■
    Counsel argue to the contrary as to proof of intention, and cite 60 Ark. 262; 137 Ark. 240; 134 Ark. 207.
   Humphreys, J.

This suit was brought in the chancery court, Chickasawba District, by appellant in her own right and as next friend for her minor son, Alvin Grillis, against appellees for the assignment of homestead and dower rights in- the lands of her deceased husband, J. B. Gillis, situated in said district and county.

Appellees, Henry Grillis, Jesse Grillis • and Joseph Grillis, stepchildren of appellant, filed a separate answer, admitting the right of appellant to a dower interest in said land, but denying that she and her minor son had a homestead right in any of said lands, and alleging that J. B. Grillis, deceased, abandoned his homestead right in said lands long before his death..

The cause was submitted to the court upon the pleadings and testimony introduced by the respective parties, which resulted in a finding and decree that appellant and her minor child were not entitled 'to a homestead right in any of said lands, and that appellant was entitled to a dower interest in all of said lands, and appointed commissioners to assign her a one-third interest therein for life.

From the decree denying appellant and her minor child a homestead interest in said lands an appeal has been duly prosecuted to this court.

The facts revealed by the undisputed testimony are as follows: Henry, Jesse,, and Joseph G-illis are children of J. B. Gillis, deceased, by his first wife, and Clarence and Alvin his children by appellant, who was his second wife. While living with his first wife, J. B. Gillis became the owner of 120 acres of land in said county, and impressed same as Ms homestead. After his marriage to appellant they resided on said tract of land for five years, during which time he became ill with chronic malaria. In 1914 he rented his home in said county to one of his sons, and went to Oklahoma on account of ill health. He remained there for six years. He did not regain his health, and moved to Booneville, Arkansas, where he remained for three months. He then bought and removed1 with his family to a farm near Magazine, where he resided for about ten years, and upon which he died. During the time he lived in Oklahoma and on his farm near Magazine he returned at intervals to Mississippi County for the purpose of renting his old farm place. He depended on the income from this farm for a living, and refused to sell it several times.

There is a conflict in the testimony 'concerning statements made by him relative to 'his intention about returning to his old home in Mississippi 'County.

■Some of the witnesses introduced by appellant testified that he stated to them that he intended to return ■to his old home in ¡Mississippi County at some future time, but a number of them said he qualified his statement by saying he intended to return if his health sufficiently improved to justify Mm in doing so.

The witnesses introduced' by appellees testified, in substance, that he stated to them that he had abandoned any idea of ever returning to his old home in said county.

The question of whether one who removes from his homestead has abandoned same is one of intention, which must be determined from the facts and circumstances attending each case. In order to avoid an abandonment, where one moves away from his home, there must not only be a present but a constant, abiding intention to return from the time of removal. Gray v. Bank of Hartford, 137 Ark. 232. One who leaves his home and acquires another, where he resides for a considerable time, will be presumed to have abandoned his old home, in the absence of convincing testimony to the contrary. Wolf v. Hawkins, 60 Ark. 262.

Our analysis of the testimony in the instant case does not convince us that the court erred in finding that J. B. Gillis abandoned his homestead in Mississippi County. We think that the weight of the evidence reflects that he did not retain a constant, abiding intention to return to his old home. The length of time he remained away, and the fact that he purchased another home and resided thereon for ten years, where he died, strongly corroborates his statements that he had abandoned any intention to ever return, and, when taken all together, outweighs the testimony tending to show an unconditional intention to return. In fact, the larger part of the testimony introduced by appellant tending to show an intention to return was based upon the contingency that he should regain his health. He never entirely recovered his health before he died. Again, the circumstances that he refused to sell the old home place and depend upon the income therefrom for a support may be reconciled as well with an intention not to return as to return.

The decree of the chancellor, being supported by the weight of the evidence, is in all things affirmed.


source: Caselaw Access Project

author: ■Smith, J.

license: Public Domain

text:
    Pritchard v. W. T. Rawleigh Company.
    Opinion delivered June 2, 1924.
    1. Guaranty — validity of contract. — Where, in a contract employing an agent' to sell medicines and extracts upon which defendants became guarantors, there was nothing contemplating that the principal would ship or that the agent would receive or sell articles manufactured or shipped in violation of law, in a suit on the guaranty the fact that the principal shipped misbranded goods would not render the guaranty contract void, though the agent had the right to return such goods.
    2. Guaranty — defenses.—In an action on a guaranty of the contract of a selling agent, the defense that the contract allowed the return of unsold goods, and that plaintiff should have allowed credit for goods returned or tendered by the agent, was concluded by the judgment in a suit against the agent.
    3. Guaranty — sufficiency of answer. — In an action on a guaranty of the contract of a selling agent, an answer denying that the guarantors were bound by a judgment against the administrator of the estate of the agent because his estate was insolvent and the administrator was indifferent whether judgment was rendered against the estate, held insufficient to charge fraud or collusion in procurement of the judgment.
    4. Guaranty — conclusiveness of judgment against principal.— Where guarantors agree to be bound by any judgment against their principal, they are precluded from raising defenses which might have been available to the, principal.
    Appeal from Pulaski Circuit Court, Second Division; Richard M. Mann, Judge;
    affirmed.

      Carmichael & Hendricks, for appellant.
    The answer stated a good defense. It alleged that the goods sold to Ott were misbranded and violated the act of Congress of June 30, 1906. The demurrer admitted this allegation. The contract was therefore void, as the goods were not salable by law. Sec. 8335 Barnes Federal Code of 1919A; 91 Ark. 69. Appellants are not cut off by the contract from the introduction of proof to show the truth of the transaction. See Stearns on Suretyship (3rd. ed.) p. 300, 175-176. While a judgment against a principal is prima facie evidence against the surety, such, judgment may be set aside by showing fraud or collusion. 89 Ark. 384; 10 Mete. 301. The effect of the allegations of the answer is to charge collusion, and the judgment against the principal is of no binding effect. Black on Judgment, vol. II, §§ 186, 592; Spencer on Suretyship, § 254, p. 356, 40 L. R. A. (N. S.) 698; 12 R. O. L. § 51, p. 1096.

      Sherrill & Mallory, for appellee.
    When one binds himself by contract to be bound by the judgment against his principal, a judgment against the principal is conclusive against the surety. 53 Ark. 330; 52 L. R. A. 312; 14 Cal. 202; 51 Minn. 474 ; 86 Iowa 136; 86 111. 236.
   ■Smith, J.

This is a continuation of the case reported in 151 Ark. 390. It is a suit by a foreign corporation engaged in selling goods and merchandise, and the complaint filed by it alleged that on January 5, 1915, it entered into a written contract with A. S. Ott for the sale of merchandise to him, and, at the time of the execution of this contract, A. L. Pritchard and W. L. Davis joined therein for the purpose of becoming guarantors of Ott for the payment of all amounts due thereunder. The' sureties pleaded the statute of limitations in bar of the plaintiff’s right to recover against them, and the court sustained the plea and rendered judgment in their favor, but judgment was rendered in favor of the plaintiff against the estate of Ott, and no appeal was prosecuted from that judgment. But we held that the cause of action was not barred against the sureties, and that the court had erred in so holding, and the cause was remanded for a new trial.

Upon the remand the sureties filed an answér which contained the following allegations: They admitted the execution of the contract sued on, but denied they were indebted to the company in any sum. They alleged that the goods sold Ott were manufactured and sold in violation of the Federal Pure Food and Drugs Act, and that medicines sold were misbranded and wrongly labeled, in violation of law. That the plaintiff had pleaded guilty to a charge of violating the law in misbranding and wrongly labeling the same character and class of medicines and articles that had been sold to Ott, and that' plaintiff had pleaded gnilty during the period of time it was selling goods to Ott, and had in fact violated the law in selling the very articles to Ott covered by the account sued on.

It was further alleged that, at the time of Ott’s death, he had in his possession a considerable quantity of the goods, which he and these sureties had the right to return to the plaintiff and have credit allowed therefor, but the plaintiff failed and neglected to take the goods back, although requested so to do. It was also alleged that Ott’s estate was insolvent, and his administrator was indifferent whether a judgment was rendered against the estate or not, and the sureties denied they were bound by the judgment which had been rendered against Ott’s administrator.

The plaintiff demurred to this' answer, and the demurrer was sustained, and, as defendants stood on their answer, judgment was rendered against them for the amount of the judgment against Ott and the interest which had since accrued. This appeal is from that judgment.

The agency contract upon which the sureties became guarantors contemplated that Ott should retail certain medicines, extracts and other products manufactured by the plaintiff. There is nothing about the contract itself which is alleged to be in violation of the law. There is nothing in the contract which contemplates that the plaintiff would ship or that the agent would be expected to receive and sell any article manufactured or shipped in violation of law. Had any such articles been shipped as is alleged in the answer were shipped, Ott had the right to return them, and the right undoubtedly existed to defend upon the ground that articles had been shipped in violation of law, if such was the case. The plaintiff may, as alleged in the answer, have shipped misbranded goods, but this did not render the agency contract void, as it contemplated no such action on the part of the plaintiff.

The contract did authorize the return of unsold goods, and plaintiff should have allowed credit for such goods as were returned or properly tendered; but this was also a matter of defense which should have been litigated in the suit against Ott, if goods were shipped which Ott was not required to receive, or, if goods were tendered in return which the plaintiff should have accepted, these were matters of defense which should have been litigated in the proceeding from which the appeal in 151 Ark., supra, came.

There is no allegation of fraud or collusion in the answer of the sureties in the procurement of the judgment against Ott’s estate. There is an allegation of insolvency and of indifference, but this does not charge fraud in the procurement of the judgment. On the contrary, the sureties were advised of this suit, and were parties to it, and the pleading filed by them was not an answer setting up these defenses, but a plea of the statute of limitations in bar of the suit against them. The court sustained this plea as to the sureties, but rendered judgment against the estate of the principal in the contract.

Attached to the agency contract, as a part of it, is the following obligation, which was signed by Pritchard and Davis: “For and in consideration of the extension of further time to the above named second party (Ott) in which to pay his account for goods previously bought by him from the company, and in further consideration of the W. T. Eawleigh Medical Company extending further credit to said second party, we, the undersigned, do hereby jointly and severally guarantee unto said the W. T. Eawleigh Medical Company, unconditionally, first, the payment in full of the balance due said company on account, as shown by its books at the date of the acceptance of this contract, and second, the full and complete payment due said company of any and all indebtedness incurred under the terms of the above and foregoing instrument by the second party named as such therein, to which terms and conditions we fully assent, waiving acceptance of this contract of guaranty and all notice. and agree that the written acknowledgment by said second party of the amount due on his account, or that any judgment rendered against him for moneys due the company shall in every and all respects bind and be conclusive against the undersigned. And we further agree that, in any suit brought on this contract of guaranty by the company, no other or further proof shall be required of it than to establish the amount or sums of money due and owing to it from the said second party, and, when so proved, shall be conclusive and binding upon us, and that any extension of time shall not release us from liability under the contract of guaranty. ’ ’

It is obvious, from a consideration of the facts recited above, that the question in the case is the effect to be given this obligation. Are the sureties precluded from setting up in their answer the matters of defense there alleged? "We think they are, for such appears to be the condition of the obligation which they signed.

In Robinson v. Baskins, 53 Ark. 330, the court said: “Mr. Freeman in his work on Judgments (§ 184) says: ‘Covenants to indemnify against the consequences of a suit are of two classes. 1. Where the covenantor expressly makes his liability depend on the event of a litigation to which he is not a party, and stipulates to abide by the result; and '2, where the covenant is one of general indemnity, merely, against claims or suits. In cases of the first class the judgment is conclusive evidence against the indemnitor, although he was not a party, and had no notice; for its recovery is the event against which he covenanted. In those of the second class, the judgment is prima facie evidence only against the indemnitor, and he may be let in to show that the principal had a good defense to the claim. ’ The indemnitor can in either class show collusion for the purpose of charging him.”

There are a vast number of cases on this subject, but it would be without profit to review them.

The annotator’s note to the case of Ballantine & Sons v. Fenn, 40 L. R. A. (N. S.), extending from page 698 to page 749, collects many of them. The annotator makes the following summary of the cases: “The decisions seem to be in great conflict as to the evidential value of a judgment against the principal in an action against his •surety. It is not always possible to tell what the language of the obligation involved in the particular suit is, and, without this, it cannot be said how far two cases may be out of harmony. The wording of the instrument is everything in this class of cases. There is nothing to prevent a surety from contracting to be bound by a judgment against his principal, if he choose, and, if that .is the fair import of his agreement, he will be concluded by such a judgment. It is simply a case of what the surety has said he will do. In an ordinary contract of indemnity, the surety is brought in by notice.”

A number of other annotated cases .are cited in the notes to § 129 of the article on Principal and Surety in 21 R. C. L. 1088, and we quoté from that section the following statement of the law: “Moreover where, from the nature, purpose and wording of the bond, it appears that the surety has contracted in reference to the conduct of one of the parties in some proceeding in the courts, as that he shall pay a particular judgment, or shall pay the costs, or has agreed to answer for the principal in respect to some charge which the law lays on him, or has otherwise agreed to abide the decree or judgment of a court against the principal, it has been held that the recovery of the judgment is in itself the happening of the contingency on which the surety was to become bound, and that consequently, in the absence of fraud or collusion, the judgment is conclusive proof not only of the breach of the bond but of the quantity of the damage resulting therefrom, and this even though the surety had no notice of the suit. There is no reason why parties should not be allowed to obligate themselves to abide by the result of a suit between others; andj if the contract * * * can be fairly construed as imposing such an obligation, there is no hardship in enforcing it. Such an obligation does not. arise out of the mere relation of principal and surety, but springs from the express stipulations of the agreement.”

We are of opinion that the language of the obligation signed by the sureties bound them to pay any judgment rendered without fraud or collusion against their principal, and, as there is no allegation here of fraud or collusion, the demurrer to the answer was properly sustained, and the judgment of the court below is accordingly affirmed.


author: Smith, J.

text:
    Gazette Publishing Company v. Cole.
    Opinion delivered June 2, 1924.
    Principal and surety — release of surety. — Sureties on a .bond which guaranteed payment by a partnership of any sums due by such firm are released where there is a change in the personnel of the firm or where, according to the terms of the bond, one of the sureties gave timely notice of his desire to be released therefrom.
    Appeal from Pulaski Circuit Court, Third Division; Marvin Harris, Judge;
    affirmed.

      8.am T. ■& Tom Poe, and Louis Tarlowslci, for appellant.
    The sale by Smith of his interest in the agency without giving thirty days’ notice of his intention to sell, was a breach of the contract of agency, and fixed the liability of the sureties by virtue of their agreement to be responsible for any loss or damage sustained by appellant on account of “any violation of the above agreement on the part of H. N. Owens and R>. A. Smith.” 32 Cyc. 83; 226 Fed. 653, 661; 224 TJ. S. 376; 65 N. W. 796; 221 S. W. 699, 701; 68 S. W. 942; 169 Pac. 130; 48 N. W. 194; Id. 416; 44 Pac. 442; 59 Pac. 342, 245.

      R. W. Robins, for appellee.
    This court has always adhered to the rule that any material alteration in the terms of such a contract discharges the surety, if he has not consented to the change, and releases him even though the alteration be for his benefit. 65 Ark. 550; 73 Ark. 473; 74 Ark. 600; 93 Ark. 472; 113 Ark. 429; 122 Ark. 522. The general rule as to the liability of a surety or guarantor of joint principals is aptly stated in 32 Cyo. p. 82, as follows: “A surety of joint principals is not liable for one of them acting independently; or when changes are made in the membership of the firm, or by dissolution thereof, notwithstanding the obligee is not aware of the dissolution.” See also 7 T. R. 254; 3 East 484; 4 Russ. Chy. 154; 50 Ont. Rep. 189; 16 Johns 100; 3 Texas 199; 39 Neb. 123; 69 Atl. 209; 1 Brandt on Suretyship, § 134; 21 R. C. L. 1061; Spencer on Suretyship, § 198; 5 Mees. & W. 571; 148 111. 453 34; L. R. A. 861. 'So, it appears that the rule is well established that the withdrawal of one member of a firm, with or without the knowledge of the obligee, will release a surety or guarantor of the firm.
   Smith, J.

Appellant, hereinafter referred to as the company, is engaged in publishing the Arkansas Gazette, a daily newspaper, and on December 30, 1920, appointed H. N. Owen and R. A. Smith, who were partners as Owen & Smith, as its agents for the distribution and sale of the Gazette in the .city of Conway. A surety bond was exacted of Owen & Smith, which guaranteed the prompt payment of any and all sums of money due the company by its said agents, which was signed by W. D. Cole, C. H. Newbern and Howard A. Terry as sureties. By the contract of agency Owen & Smith agreed to use their earnest endeavor to create and establish a regular sale and demand for the Gazette, and that, prior to giving up the business, they would endeavor to secure a successor, and would give the company thirty days’ notice of such intention.

The bond signed by the sureties, which was in the sum of $500, contained the following provision: “We further agree to be responsible individually and jointly for any loss or damages sustained by the Gazette Publishing Company on account of any violation of the above agreement on the part of said H. N. Owen and R. A. Smith, and that we will give the Gazette Publishing Company thirty days’ notice in writing should we at any time elect to terminate this contract or wish to be- relieved on this bond.”

Pursuant to this contract, the company began furnishing papers to Owen & Smith on January 1, 1921, and on January 8 Smith sold his interest in the agency to J. F. Caldwell. At the time this was done Smith was sent by the company to Forrest City and put in charge of the agency for the company in that city.

Owen & Caldwell operated the agency for a short time, when Caldwell was removed, and one O’Brien was substituted, and this appears to have been done by the State subscription agent for the company.

Smith had been employed by Terry, one of the sureties, before accepting this agency as a partner of Owen, and, upon retiring from the partnership, Smitlp notified Terry that he had done-so, and Terry immediately wrote the company, asking to be relieved from the surety bond.

The company admitted that this letter was received in due course, and, on January 11, it prepared for execution a new bond' to be executed by sureties for the new partnership of Owen & Caldwell, hut this bond was never executed. The company’s superintendent of agencies testified that he did not press the execution of the new bond, as he assumed that it was satisfactory with the sureties for the new partnership to continue the agency. The only reason given for this assumption was that he had heard nothing to the contrary from them. Cole and Newbern, the other sureties, both testified that they had no notice or information of any change in the firm until they were sued as sureties on the bond of Owen & Smith.

Upon the trial judgment was rendered in favor of the sureties, and the company has appealed.

By the terms of the contract all bills were payable on the 15th of each month for the papers furnished during the preceding month,' and on the 8th of January, when Smith retired from the firm, the amount then due for papers furnished was $91, and on February 11 a payment of $190 was made on this account. • '

The court gave, over the objection of the company, an instruction numbered 2, which reads as follows: “You are instructed that, if you find from the evidence that Smith, with or without the knowledge of the plaintiff, withdrew from the firm of Smith & Owen and sold out his interest in the agency to another party,- then the defendants would not be liable for any default after this occurred; and if you find that the account up to that time has been paid, then your verdict will be for the defendants.”

A discussion of this instruction will dispose of the questions of law involved in the case, as it in effect directed a verdict in favor of the sureties. The instructions asked by the company were also of a peremptory character and would, if given, have directed a verdict in its favor.

It may be said, in the first place, that it is undisputed that the company knew that Smith had retired from the partnership, and it is therefore unimportant that the instruction told the jury that, if this was done with or without the knowledge of the -company, the sureties would not be liable for any default which occurred thereafter. The company had this knowledge, and it is unnecessary therefore to consider what difference, if any, would exist in the relation and obligation of the parties if this change had been known to the sureties and unknown to the company. Moreover, as we have said, the sureties, dole and Newbern, testified that they had no notice or information concerning the change.

It may also be said that no objection was made to this instruction on the ground that it made an application of the payments to the oldest items of the account. This, however, would, have been the effect of any payments made on the account, in the absence of a direction or agreement as to its application, and the first remittance was more than enough to pay the balance due when Smith retired, or to pay the sum due on January 15, when the first remittance should have been made.

Here two things occurred: (1) The personnel of the partnership -changed by the retirement of one partner and the introduction of a new one, and this appears not only to have been known to, but to have been done by, the company itself. (2) One of the .sureties gave notice to the company on January 8 of his withdrawal from the bond, and this was done pursuant to the provisions of the bond, which gave the surety the right so to do.

Either of these events would ordinarily suffice to release the sureties, because the effect of each was to materially alter the contract of suretyship. It is true, the obligation signed by the sureties required a' notice of thirty days before the release of the surety who asked to be released became effective, and it may be true that, until the expiration of the thirty days, the surety was liable for the papers furnished during that time, if they were not otherwise discharged from liability, and it is true that papers were furnished during this period for which the company has not been paid.

This is unimportant, however, for the reason that the personnel of the partnership changed on January 8 by the retirement of Smith, and this change operated to release the sureties, and, as we have said, the testimony shows that the payment on account made on February 11 was sufficiently large to extinguish the sum due on January 8.

At § 104 of the chapter on Principal and Surety, in 21 R. C. L., page 1061, it is said: “The rule that any material change in the obligation, whether prejudicial to the surety or not, will discharge him from liability, has been very generally applied by the courts in cases where there has been a release or change of principals. If a surety engages for an individual, the engagement is understood to extend to the acts of that individual alone, and will not continue if he takes in a partner; in other words, the surety for a single individual is not liable for a partnership of which such individual is a member. So a surety who guarantees that a firm composed of particular individuals will do certain acts or discharge certain duties cannot be held liable where there is a change in the firm, although the firm name is not changed, and although the obligee is not aware of the change. As the surety’s liability is strictissimi juris, and cannot be extended by construction, his guaranty to a partnership is extinguished if any partner is taken into, or retires from, the partnership, unless it appears from the terms of the instrument that the parties intended the guaranty to be a continuing one without reference to the composition of the firm. A party may be induced to become surety for the individuals who compose a firm because of his confidence in their integrity, prudence, accuracy, and ability as business men; but he cannot be presumed to have intended to become responsible for the possession of such qualities by some third person, who may 'be afterwards taken into the firm without his knowledge or consent, or for the retention of such qualities to the same degree by the firm after the retirement of one of its members. This principle has been applied where a partnership was a principal to the obligation, and it was dissolved by the death of a member of the firm.”

The notes to the text quoted cite a number of annotated cases, which collect numerous cases fully supporting the text quoted.

A similar .statement of the law appears in 1 Brandt on Suretyship, § 134, and Spencer on 'Suretyship, § 198.

A number of cases, both American and English, are cited in appellees’ brief which fully support the ‘rule announced in B. C. L., supra.

The following cases by this court are also in point: Southwestern Surety Ins. Co. v. Terry, 122 Ark. 522; Snodgrass v. Shader, 113 Ark. 429; Berman v. Shelby, 93 Ark. 472; Singer Mfg. Co. v. Boyette, 74 Ark. 600; Lawhon v. Toors, 73 Ark. 473; O’Neal v. Kelley, 65 Ark. 550.

It is finally insisted that the company should be allowed to recover damages for the breach of the contract. Several answers might be made to this contention. One is that, if there was a breach, the company was privy to it, in fact had committed it by taking Smith away from the partnership and sending him to Forrest City. A second answer is that the suit was not brought to recover damages, but the sum alleged to be due under a contract.

It follows that no error was committed in giving the instruction set out above, and it appears from the undisputed evidence that the defendant sureties were entitled to a directed verdict, and, this being true, it would be unimportant if the instructions were in fact erroneous, as the jury found in appellees’ favor. The judgment is affirmed.


text:
    Missouri Pacific Railroad Company v. Kellogg.
    Opinion delivered June 2, 1924.
    1. Master and servant — torts of servant. — A master is liable for the torts of his employees, if committed in the prosecution of the master’s business.
    2. Damages — humiliation-—instruction.—In an action against a railroad company for assault and battery of a passenger by an employee, in which plaintiffs were asking for damages for injured feelings, it was proper for defendant to introduce evidence that plaintiffs were drug addicts, as such testimony tended to show that the acts complained of would not humiliate their feelings, and an instruction limiting such evidence to impeachment of the plaintiffs as witnesses was erroneous.
    Appeal from Greene Circuit Court; W. W. Bandy, Judge;
    reversed.

      Thomas B. Pryor and Gordon Frierson, for appellant.
    Instruction No. 4, given by the court of its own motion, was erroneous. The liability of a master for a tort committed by an employee depends not upon whether it was committed during the existence of the servant’s employment, but whether or not it was committed in the prosecution of the master’s business. 148 Ark. 227; 75 Ark. 579; 146 Ark. 104; 152 Ark. 335. Instruction No. 10 given was error, and it was likewise error to refuse an instruction requested by appellant to the effect that the character of the appellees might be considered as affecting the question of damages by way of humiliation and mental suffering. The following authorities sustain appellant’s contention that such an instruction as it requested was proper: 22 C. J. p. 417, § 563; B. C. L, vol. 10, p. 947, § 117.

      J. M. Futrell and Jeff Bratton, for appellee.
    A common carrier is liable to a passenger for insult and injury inflicted by its employees. 67 Ark. 402; 82. Ark 289; 121 U. S. 637; 99 Ark. 235. The actions and apparent duty of the one designated as an employee were such as to mark him as one. 48 Ark, 180.
   Humphreys, J.

Appellees instituted separate suits against appellant in the circuit court of Clay County, ¡Western District, to recover damages in the sum of $3,000 each for mistreatment alleged to have been received by them at its depot in Knobel, after purchasing tickets and while waiting for their train.. As amended, each complaint set up two grounds as a basis for. recovery; first, mistreatment received at the hands of a freight hustler employed around the depot; and second, a failure on the part of appellant to protect appellees, while waiting at the depot for their train, from mistreatment at the hand of third parties. The complaint of W. E. Kellogg, as amended, alleged that said employee, in company with divers other persons unknown to him, used violent, abusive and insulting language to him, assaulted and forced him to leave the depot- at Knobel and walk, in the night time, to Stonewall to take the train; that appellant’s station agent was informed of the mistreatment being administered to him, but refused to protect him. The complaint of Irene Kellogg contained the same allegations, except she did not charge therein that the parties assaulted her.

Appellant filed an answer to each complaint, denying the material allegations contained therein.

The causes were tried together upon the pleadings, the testimony introduced by the respective parties, and the instructions of the court, which resulted in separate verdicts and judgments in favor of appellees, from which is this appeal.

The testimony introduced by appellees was, in substance, to the effect that, on the night of January 28,1923, appellees bought tickets from appellant’s station agent at Knobel, entitling them to transportation to Paragould, and, while waiting at the depot for their train, a freight hustler around the depot, who was an employee of appellant, in company wjith others,- who were not employees -of appellant, -called1 W. E. Kellogg out of the waiting room, and, after abusing and beating him, forced him and his wife to walk to Stonewall; that said parties used violent, abusive and insulting language to Irene Kellogg; that, when they called W. E. Kellogg out onto the platform and began to abuse and beat him, Irene Kellogg asked the station agent to protect them, which request was refused. Appellees admitted they were dope fiends, and that they had been frequently arrested, excluded from Memphis, and notified by officers to leave other towns.

The testimony introduced by appellant was, in substance, to the effect that its freight hustler offered no indignities to appellees; that he had not participated in the abuses and assault, and that the station agent knew nothing of the indignities offered or the assault made upon them; that Irene Kellogg had not called upon him to protect her and her husband; that the freight hustler had nothing to do with preserving’ order in and around the depot; that his only duties were to pump- water, handle baggage and shovel coal.

Appellant contends for a reversal of the judgments upon the ground that the court erred in giving instruction No. 4, which is as follows: “Now, the duty that the defendant railway company owes the passenger for protection against certain employees of the company itself is of a different nature. The railroad company owes the passenger the duty, so far as employees are concerned, the absolute protection against any wilful or wanton assault or abuse on the part of an employee, if that employee is in the performance of the business of the company, and the performance of that business and the duties that go with it bring him or may bring him in contact with passengers in their depot or on the premises about the depot or the platform. And you are instructed1 that, if you find from the proof in this case, by a preponderance of the evidence, that these plaintiffs were abused or assaulted or mistreated by any employee of the defendant railway company, and that, at the time of the assault, if you find there was an assault or mistreatment, if you find there was any, that the employee was engaged in the business of the company and was acting in carrying out the duties of his employment, and in doing that he came in contact, or might have come in contact with these passengers or any other passenger, if his duties were such as to bring him in contact with passengers at any time or anywhere, not only these passengers but any other passengers, and any employee of that nature made a wilful assault or wilfully or wantonly abused these plaintiffs, then your verdict should be for the plaintiff.”

The testimony introduced by appellees tended to show that a freight hustler employed around the depot to pump water, shovel coal and handle baggage, participated in the abuses and assault. There was no evidence introduced by appellees tending to show that any employee of the appellant abused or assaulted appellees when in the line of his duty, actual or apparent, and growing out of the business he was transacting for appellant. The law is that a master is liable for the torts of his employees if committed in the prosecution of the master’s business. St. L. I. M. & S. R. Co. v. Grant, 75 Ark. 579; Wells Fargo & Co. Express v. Alexander, 146 Ark. 104; American Ry. Exp. Co. v. Mackley, 148 Ark. 227; Mo. Pac. Rd. Co. v. Gregory, 152 Ark. 335. The rule of law announced in the cases cited was incorrectly stated' by the court in said instruction, and, if it had been correctly stated, the instruction would have been abstract, as there was no evidence tending to show that the acts complained of were committed by the freight hustler in the prosecution of appellant’s business.

Appellant also contends that instruction No. 10, given by the court, was erroneous and prejudicial. It is as follows:

“Now there has been testimony introduced here in regard to the character of these plaintiffs. That evidence is introduced, gentlemen, for the purpose, and the only purpose it could be introduced for, was in the way of impeachment of these witnesses, these plaintiffs as witnesses, but the court tells you that, whatever their character may have been, whether good or bad, they were entitled, after they became passengers, to proper treatment by the defendant railway company. I mean to tell you, gentlemen, that they would owe these plaintiffs the same duty and the same care they would owe any other passenger.”

The damages claimed by appellees embraced injury to their feelings, and it was proper for appellant to introduce testimony tending to show that the acts'complained of would not ■ humiliate them. The instruction was erroneous in limiting the testimony as to their characters to purposes of impeachment only.

On account of the errors indicated the judgments are reversed, and the causes are remanded for a new trial.


text:
    Stout v. State.
    Opinion delivered June 2, 1924.
    1. Criminal law — corroboration of accomplice. — Under Crawford & Moses’ Dig-., § 3181, requiring the testimony of an accomplice to be “corroborated by other evidence tending to connect the defendant with the commission of the offense,” it was not error to refuse to instruct the jury that “the corroboration must be such as to establish the commission of the offense by the defendant,” as it is not required that the corroborating evidence be sufficient of itself to establish guilt.
    2. Criminal law — sufficiency of corroboration of accomplice. —Evidence held to be a sufficient corroboration of an accomplice.
    Appeal from Jackson Circuit Court; Dene H. Coleman, Judge;
    -affirmed.

      Gustave Jones, for appellant.

      J. S. Utley, Attorney General, and John L. Carter, Assistant, for appellee.
   Smith, J.

Appellant was convicted of possessing’ a still, and lias appealed. The testimony on the part of the State was to the effect that some officers raided an old unoccupied house about eleven o’clock one night, and there arrested appellants, Walter Richards and Walter Rudd. Two other men who were in the house at the time of the raid escaped. The officers found a primitive still in operation in one room, and in another room they found a sixty-gallon barrel of mash about two-thirds full. There was a fire in the stove for the purpose of boiling the mash, and the room smelled of whiskey.

Richards testified that he and appellant owned the still, and they had set it up to try to make some whiskey. They found the mash was not ready to run, so they poured a tubful of it back into the barrel out of which they had poured the portion they attempted to use, and sat down and commenced playing cards, and were so engaged when they were raided. Richards testified that the other men, except appellant, were mere visitors. He also testified that some coal oil was needed to make a light, and that he waited at one Blankenship’s house until appellant went to a Mr. Field’s house and procured the oil, and, after getting the oil, appellant joined him at Blankenship’s house, and they went together to the house where the still was found.

Appellant admitted that he was in the house at the time of the raid, but explained his presence there by saying that he had been to Mr. Field’s house to borrow some oil, and, on his return, saw a light in the old house, and just went by to see what the light meant, and, upon entering, he was invited to play cards, and had been so engaged for about two or two and one-half hours when the officers came and made the arrests.

' It is insisted for the reversal of the judgment that the court erred in giving an instruction numbered 2 on the subject of the sufficiency of testimony to corroborate an accomplice, and in refusing to give an instruction numbered 2 requested by appellant on that subject.

The instruction given reads as follows: “Now, gentlemen, I instruct you that the defendant could not be convicted on the uncorroborated testimony of the witness Richards, from the fact that the law makes him what is known as an accomplice, and the defendant could not be convicted on the uncorroborated testimony of the witness Richards. Before you would be authorized to find him guilty upon any of the testimony of Richards, there should be some other circumstances in corroboration, not necessarily another witness to testify, but the evidence of some state of facts, which you may consider as a corroboration; it must be such a corroboration as the circumstances or facts, outside of the testimony of this witness, Richards, shall tend to establish the offense charged; and if, from the testimony of Richards, together with these circumstances, if you find any such circumstances that tend to establish the guilt of the defendant, and his evidence, together with this corroboration, if you find there was such corroboration that convinces your mind, beyond a reasonable doubt, of his guilt, you would be authorized to find him guilty. ’ ’

The instruction refused reads as follows: “It is not enough corroboration by the circumstances to show that an offense was committed, but the corroboration must be such as to establish the commission of the offense by the defendant.”

We think the instruction given is a fuller and more correct declaration of the law than the one refused.

The statute to which the court referred requires that the corroboration of an accomplice must tend to connect the defendant with the commission of the offense, and that it is not sufficient if the corroboration merely shows that the offense was committed and the circumstances thereof. Section 3181, C. & M. Digest; Earnest v. State, 120 Ark. 148; Cheek v. State, 155 Ark. 500.

The instruction given told the jury there must be facts and circumstances outside of the testimony of Richards which tended to establish the guilt of the defendant, and this is all the law requires, whereas the instruction requested by appellant declared the law to be that “the corroboration must be such as to establish the commission of the offense by the appellant.”

This instruction would have required the jury to find that the corroboration itself must be such as to establish the commission of the offense by the defendant, which is not the law. If it were, the testimony of an accomplice would be of little value, as a conviction could not be had unless the corroborating testimony was itself sufficient to establish guilt.

As was said in the Earnest case, supra, the corroborating testimony must be of a substantial character — having probative value — which tends to show the guilt of the accused, and, if there is such corroboration, the requirement of the law is met.

Does the testimony here meet that requirement? We think that it does amply. Richards’ testimony that appellant went for the oil is corroborated1 by appellant himself, although he assigned a different purpose for its use, but there was a light for which some one had furnished oil. Appellant was present, watching the processes then going on, and he admitted that he had been there for more than two hours, during all of which time appellant and Richards were beguiling their watchful waiting with a game of cards, made possible by the oil which some one had furnished.

We think this is substantial testimony which tends to connect appellant with the-crime charged, and, as no error appears, the judgment is affirmed.


text:
    Missouri Pacific Railroad Co. v. Warrick.
    Opinion delivered June 2, 1924.
    1. Trial — instruction—general objection. — Where the court instructed the jury to find for the plaintiff if defendant’s negligence “caused or contributed to cause” plaintiff’s injuries, the words “contributed to cause” were surplusage, and could not be reached by a general objection.
    2. Trial — instruction—time for objection. — A specific objection to an instruction cannot be raised for the first time in a motion for new trial.
    3. Appeal and error — instruction—harmless error. — Where assumed risk was not an issue, no prejudice could have resulted to appellant on account of instructions submitting that issue to the' jury.
    4. Trial — repetition op instructions. — It was not error to refuse requested instructions covered by instructions given by the court.
    5. Appeal and error — waiver of objection. — In an action by a trainman for personal injuries received in a train collision, defendant filed a cross-complaint asking judgment against plaintiff for damages to its equipment caused by plaintiff’s negligence; on the court’s refusal to admit evidence of such damage,’ defendant took a voluntary nonsuit as to its cross-complaint. Held that defendant waived objection to exclusion of the evidence.
    Appeal from Franklin Circuit Court, Charleston District; James Cochran, Judge;
    -affirmed.

      Thos. B. Pryor and Vincent M. Miles, for appellant.
    1. The most grievous error on the part of the trial court was in the failure to properly submit the issue as to whether or not the negligence of the appellant in failing to give the appellee a caution card from Yian to Sallisaw was the proximate cause of the injury. It was of vital importance that the court properly submit to the jury the issue as to which of the various things in evidence would constitute the proximate cause of the injury, hence, in giving instructions 4 and A-4, the court committed incurable and prejudicial error. For, while a case is conceivable where the words “cause, or contributed to cause’-’ might be treated as one phrase, meaning “cause,” where there is only one ground of negligence relied upon, yet that is not this case. On the contrary the whole gist of this controversy resolved itself around which one of several things was the proximate cause of the injury, and the main inquiry addressed to the jury demanded a finding by them as to what actually was the proximate cause. 84 Ark. 421; 87 Ark. 576; 86 Ark. 289; 91 Ark. 261; 97 Ark. 160.
    2. Instruction No. 5 given by the court on the subject of assumed risk is directly contrary to the decisions of this court on that subject, in telling the jury that, under no circumstances, did the appellee assume the risk of any negligence of the -appellant or of its officers, agents or servants. Moreover this suit was brought under the Federal Employers’ Liability Act, and this court has recently held that a servant assumes -the risk of negligence of his fellow-servant when he knew and appreciated the danger therefrom. 161 Ark. 122.
    3. There was no competent evidence to prove that the train was backing that appellee’s train ran into. The alleged statement of Tom Murray, the brakeman, made in Yan Burén, after the accident occurred,'was competent only to impeach his testimony, and was not competent to prove that the train was backing up. 52 Ark. 78; 57 Ark. 287; 58 Ark. 168; 67 Ark. 147; 78 Ark. 381; 97 Ark. 160; 105 Ark. 247; 137 Ark. 107; 143 Ark. 565.

      Chew & Ford, for appellee.
    1. The act of -Congress under which this suit was brought, of April 22, 1908, U-. S. Comp. Statutes, 1918, §§ 8657, 8659, gives the employee an- absolute right of recovery for any injuries he may receive through the negligence, in whole or m part, of the carrier, through its agents, officers and employees, although it may be shown by the proof that the employee was himself guilty of some act of negligence that, cooperating with the negligence of the carrier, brought about the injuries to the employee while he and the carrier were engaged in an act of interstate commerce. 233 U. S. 42; 229 U. S. 114; 127 Ark. 170. The only questions, therefore, presented for the jury to determine were: First, was appellant guilty of any acts of negligence, in whole or in part, that caused or brought about the injuries complained of? Second, was appellee guilty of any act of negligence cooperating with appellant’s negligence that contributed to defeating his recovery, but for the purpose of enabling the jury to diminish the amount of his recovery? The verdict of the jury has determined both of these questions against the appellant.
    2. A servant, as we understand the doctrine of assumed risk, on entering the employ of a master, assumes all of the risk that is ordinarily incident to the employment, but he does not assume any risk growing out of the negligence of the employer through the negligence of any of its agents or officers. '238 U. S. 507; 235 U. S. 375; 118 Ark. 49; 102 Ark. 562; 106 Ark. 25; 85 Ark. 503; 67 Ark. 209; 161 Ark. 122; 252 U. S. 18.
    3. In passing upon the instructions, they will necessarily be read and construed as a whole, and, when that is done, it will be seen that there was no reversible or prejudicial error in any of them. Instruction 4 declares the law as defined by this court. 129 Ark. 530; 124 Ark. 118.
   Humphreys, J.

This suit was brought in the circuit court of Franklin County, Charleston District, by appellee against appellant, to recover damages under the Federal Employers’ Liability Act, on account of personal injuries received through the alleged negligence of fellow-servants. The alleged acts of negligence contained in the complaint are as follows: That, in operating its trains under the block .system between Coffeyville, Kansas, and Yan Burén, Arkansas, for the protection of its employees, it violated the rule of the system by permitting extra six south, a freight train, to enter the block and occupy the main track between Yian and Sallisaw, Oklahoma, without furnishing an order or caution.eard to appellee or his conductor, Charles Keith, advising them to proceed with their train, extra 1806 south, under control against said extra six south to Sallisaw, but, in lieu thereof, delivering them an order or caution-card advising them to proceed with their train from Gore to Vian under control of said extra six south; that appellant, through its agents at Yian, lowered the arm of the semaphore post and displayed the green light from the board thereof, which indicated that the main track between Yian and Sallisaw was clear, and that they could proceed with safety; that, about two miles south of Yian, said extra six south was stopped and backed toward the train being operated by appellee, in violation of rule No. 99, requiring that, when trains are stopped on the main track for any cause, a flagman be sent back from the rear end of said train with flags and signals a sufficient distance to insure full protection to approaching trains; that a box-car was attached to the caboose of said extra six south, which obstructed the lights on the rear end thereof from view.

Appellant filed an answer denying seriatim the alleged acts of negiig'ence, and pleading the assumption of risk by appellee in bar of a recovery, and contributory negligence to diminish the amount of any recovery. Appellant also filed a cross-complaint claiming damages in the sum of $1,800 against appellee for driving the locomotive operated by him into the caboose and several boxcars attached to the rear end of said No. 6 south, through his alleged carelessness and negligence in failing to maintain a lookout, in failing to heed signals to stop his train, and in exceeding the maximum speed limit of thirty miles an hour, fixed by order of appellant..

Appellee filed an answer to the cross-complaint, denying’ each allegation of negligence contained therein, and pleading specifically that, whatever damage resulted from the collision was caused by the carelessness and negligence of appellant, as set out in appellee’s complaint.

The cause was submitted to a jury upon the pleadings, testimony, and instructions of the court, which resulted in a verdict and consequent judgment for $10,000 against the appellant, from which is this appeal.

According to the undisputed testimony in the record, appellant operated a railroad under the block system between Van Burén, Arkansas, and Coffeyville, Kansas, passing through the State of Oklahoma. Appellant and its employees were engaged in interstate commerce at the time of the collision of the trains Nos. 6 and 1806 extra south, which resulted in the injury of appellee. The block system was one by which the conductors and engineers operating trains between certain stations were apprised of trains in front of or following them, and directing them, by caution-cards, to operate their trains under control with reference to particular trains in front of them. The movement and control of all trains between Van Burén and Coffeyville were under the control of appellant’s train dispatcher at Van Burén, who directed the movement of all trains between said points 'by telegraph and telephone orders. The main line track was cut up into blocks. There was a block between Gore and Vian and between Vian and Sallisaw. Appellant maintained a semaphore board at V'ian. It consisted of a board' and arms attached to a post. When the arms were pointing downward and a green light was exhibited on the board, it was a signal to approaching trains that the track was clear, and to proceed; but, if a red light was displayed, it was a signal to stop for telegraph or telephone orders. When train No. 1806 extra south, operated by appellee and his conductor, C. R. Keith, pulled into Gore'the-night of January 31, 1921, the agent at that station handed them a caution-card directing them to operate their train between block stations Gore and Vian under control against train No. 6 extra south, which was in front of them in said block. This caution-card became ineffective, or, in railroad parlance, died at Vian. The caution-card given appellee and his conductor contained an incorrect order. The order sent by the dispatcher to • the agent at Gore to deliver to appellee and his conductor was to proceed with their train under control against extra six south from Upson, a station between Gore and Vian, to Sallisaw. The caution-card containing the correct order was never given to them. In obedience to the order contained in the caution-card given them by the agent at Gore, appellee and his conductor proceeded with their train under control against extra six south to Vian. As they approached Vian they observed the arms of the semaphore post pointed downward and the green light exhibited on the semaphore board, so, under the belief that extra six south had passed Sallisaw, they entered the block between Vian and Sallisaw and proceeded southward without stopping at Vian. There was a railroad bridge 603 feet long, including the trestle work, about a mile south of Vian. The south 459 feet of the bridge was on a slight curve. The ■ curve continued for about 450 feet after leaving the south end of the bridge before the track straightened out. Prom the center of the curve south of the bridge the track was straight and slightly up grade for 1,782 feet, or to the point where the engine operated by appellee collided with the rear end of extra six south. Appellee was in possession of a bulletin issued by the superintendent that the office at Vian would be closed from 11 o’clock p. m. to 3 o’clock a. m. It was a rule in the block system that block stations should remain open until the main track in the block was clear of trains. There is a conflict in the testimony as to whether a superintendent’s bulletin would supersede the block rules and close 'a block station without authority of the dispatcher. There is also a conflict in the testimony as to whether appellee was guilty of negligence in passing Vian without stopping in the event the office was open. While all the witnesses interpreted the green light on the semaphore board as' a signal to approaching trains that the track was clear and to proceed, they differed as to whether the engineer should stop for orders if lights were on in the office. The testimony responsive to all other allegations of negligence pro and con was conflicting. A number of witnesses testified on each side, and to attempt a summary of the testimony of each would extend this opinion to a great length, so only a general summary of the evidence will be attempted.

The testimony adduced by appellee tended to show that he kept a constant lookout as he proceeded south from Vian, and that he could have seen a flagman signaling to him if he had been at mile-post 536, or anywhere near the south end of the bridge or the south end of the curve, in time to have stopped his train before it ran into the rear end of extra six south; that he was running 25 or 30 miles an hour, but was not exceeding the maximum speed limit of 30 miles an hour fixed by appellant; that the first intimation he had that a train was in the block ahead of him was while his train was in the curve south of the bridge; that his fireman then told him to stop, as a red light was ahead of them; that he immediately shut off the engine, put the air into emergency, and opened the sander; that this was all that could be done to stop the train; that, as he came around the curve onto the straight track, he first observed the red light on the side of the track near the right-of-way fence, in the hands.of Tom Murray; that, at the time, Murray was some fifteen or twenty car lengths from him and about the same distance from the rear end of extra six south; that Murray had a white light also, but had no fusee; that a fusee flares up and makes a light twenty feet high, and that he saw no light of that kind anvwhere that night; that he saw a stop-signal light on the right-of-way between the caboose and engine of extra six south as he approached that train, which indicated that they had lain down on the hill and were baching up to get a run over the hill; that he remained at his post, until his engine was within six or eight car lengths of the rear end of extra six south, and, being unable to stop his train, the speed of which had been reduced from 25 or 30 miles to about 8 miles an hour, he jumped to save his life, and permanently injured himself.

The testimony adduced by appellant tended to show that extra six south was stopped to fix a hot-box; that, just before stopping, a fusee was thrown off by the brakeman, which flared up and burnt properly; that the flagman, Tom Murray, who was carrying a red and white lantern and a fusee, jumped off the train and ran back to mile-post 536, near the south end of the bridge, and attempted to flag appellee by waving the fusee at him; that appellee did not answer, and passed by him without slackening the speed of his train; that he turned and ran along the train, shouting and shaking the fus'ee'; that when the engine hit the caboose of extra six south, the entire train operated by appellee had passed him; that, at the time of the impact, extra six south was not backing ; that the flagman went back a sufficient distance and signaled to have fully protected appellee had he been keeping a lookout and had he made proper effort to stop his train.

During the progress of the trial appellant introduced M. J. Crotty, its division superintendent on the division where the injury occurred, who estimated the damage to appellant’s equipment resulting from the collision, which he had made up from reports received by him from the master mechanic and from the permanent records of the appellant on file, showing damage to . equipment. This testimony was excluded, on motion of appellee, over the objection and exception of appellant, and the exception was preserved in its motion for a.new trial.

All the issues of fact presented by the pleadings and testimony, except as to the value of the property of appellant destroyed in the collision, was presented to the jury and determined against appellant.

Appellant contends for a reversal .of the judgment mainly upon alleged erroneous instructions given by the court. It is conceded by appellant that there was a dispute in the testimony as to the proximate cause, which made that issue of fact a question for determination by the jury and not by the court. It is insisted therefore that instructions Nos. 4 and A-4, under which the issue of proximate cause of the injury was submitted to the jury, are improper declarations of the law. The instructions are as follows:

“4. Should you believe from the evidence that it was the custom or rule of the defendant to give to locomotive engineers in its employ orders or notice of the presence of trains preceding them upon the main line track of defendant, and that plaintiff was, at the time of the injuries he complained of, if any such injuries have been shown, in charge of one of defendant’s locomotives, following a train just ahead of plaintiff’s locomotive and train, and that the defendant negligently failed to notify plaintiff that said train was ahead of him, occupying the main line track of the defendant, and that such failure of the defendant to give plaintiff said notice caused, or contributed to cause and bring’ about, to plaintiff the injuries he complained of, if any such injuries have been shown, then your verdict should be for the plaintiff.”
“A-4. Should you believe from the testimony that appellant’s train dispatcher, Westmoreland, sent a caution-card to plaintiff, at Gore, Okla., advising or notifying him to proceed from Upson, Oklahoma, to Sallisaw, Okla., with his train under control against train extra 6 south of Sallisaw, Okla., and that the agent at Gore failed to deliver to plaintiff the caution-card advising him to proceed from Upson to Sallisaw; and that defendant’s agent, Mr. Mattox, at Gore, failed to deliver to plaintiff said caution-card, and in lieu thereof said1 agent delivered to plaintiff the caution-card in evidence, then this was an act 'Of negligence, and, should you believe from the evidence that this act of negligence caused, or contributed to cause, plaintiff to proceed with his train from Vian to Sallisaw without his train being under control, caused or brought about the injuries complained of, then your verdict should be for the plaintiff, unless he is prevented from recovery under other instructions given herein. ’ ’

The alleged vice contained in the instructions consists in the use of the language “or contributed to cause,” following the word-“cause.” It is argued that the use of this language permitted the jury to find for appellee if appellant’s failure to give him a caution-card contributed in any degree to the injury, even if the injury was the result of appellee’s own negligence in failing to heed a flagman that was sent back for lii-s own safety, or in failing to look to see the red lights on the rear of the caboose, or in failing to stop his train within the distance of 1,782 feet after being apprised of the red light ahead of him. The evidence was in conflict -as to whether he could have stopped his train within that distance. Appellee testified that he made every effort to stop it within that distance, and failed to do so. Tests were made afterwards with trains containing the same number of cars loaded in the same way, and stops were made in very much shorter distances. We think the instructions complained of deal solely with the alleged negligence of appellant in failing to give appellee a caution-card and, in effect, told the jury, if that act of negligence caused the injury, they should find for appellee. The jury were told in other instructions that, if -appellee’s own acts of negligence were the proximate cause of the injury, they should find for appellant. We think the words “contributed to cause” meant cause, and were mere surplus-age. Prescott & N. W. Ry. Co. v. Henley, 124 Ark. 118. If appellant thought these additional words immediately following the word “cause” were not synonymous with the word “cause,” and that such words would confuse or mislead the jury, a specific objection should have heeu made to them at the time the instructions were aWen. -A general objection onlv was made to the instructions at the time they were given. A specific objection was not made -until a motion for a new trial was filed. This was too late to enter a specific objection.

■Appellant next contends for a reversal of the judgment bécause the court gave instruction No. 5, relative to assumption of risk by appellant. It is argued that the instruction, in effect, told the jury that appellee did not assume any risk growing out of the negligence of appellant or any of its employees, when the law is that the employee assumes the negligence of his employer and his fellow-servants if he is aware of the negligence and appreciates the danger. Appellee contends that the instruction conforms to the law as thus announced. Under our view of the facts in the record, the doctrine of assumed risk had no place in the case, and no prejudice could have resulted to appellee on account of instructions submitting that issue to the jury. The undisputed facts show that appellee was permitted to enter the block between Vian and Sallisaw without knowledge that extra six south was on the main track in front of him; that appellant’s agent at G-ore had failed to give him a caution-card which the dispatcher had sent for the purpose of apprising him that said train was in the block between Vian and Sallisaw. The undisputed evidence is that a green light on the semaphore board was notice that the track was clear ahead, and to proceed. The issue of whether the office at Vian was open or closed had relation to whether appellee was negligent in failing- to stop for orders, and had no relation whatever to the assumption of risk. The subsequent conduct of the respective parties also relates to issues of negligence and contributory negligence, and not to the assumption of risk.

Appellant next contends for a reversal of the judgment because the court refused to give instructions Nos. 8 and 15, which are as follows:

“8. You are instructed that there is no proof that the train which was struck was backing up, and your verdict must be for the defendant on this allegation of negligence. ’ ’
“15. You are instructed that there is no evidence that extra six south was seen to back up or move in a northerly direction toward plaintiff’s locomotive and train of cars, and you are instructed that you are to find for the defendant on this allegation of negligence in plaintiff’s complaint. ’ ’

It is argued that one of the grounds of negligence relied upon by appellee to recover was that, when appellee’s train was coming down the track from Vian, extra six south was being negligently backed up in a northerly direction toward appellee’s train, and that there was no evidence, except the hearsay statement of Murray, several days after the accident, which tended to establish said act of negligence. This was not the only evidence in the record bearing upon that point. Appellee testified on redirect examination as follows: “I saw a stop signal given ahead of'me on the train ahead of me. That light was between the caboose and engine, and was given by Holland’s train. That indicated, to my mind, that they had lain down on the hill and were backing up to get a run to go over the hill. ’ As there was competent evidence in the record tending to show that extra six south was backing when appellee’s engine struck the rear end of said train, the court properly refused both instructions.

Appellant’s next contention for a reversal of the judgment is that the court erred in refusing to give its requested instruction No. 13 and the latter part of its requested instruction No. 21. Request 13 was covered by instruction No. 12, and the latter part of request 21 was covered by instruction 20 given by the court. It was not error therefore to refuse these requests.

Appellant’s next and last contention for a reversal of the judgment is that the court erred in excluding all of the evidence of witness Crotty with reference to the damage to the equipment of the appellant, thereby forcing it to take a nonsuit. It is a sufficient answer to this contention to say that appellant was not forced to dismiss his cross-complaint by the exclusion of this evidence, Appellant insisted that this evidence was competent, and that the court erred in excluding it. Appellant objected and excepted to the exclusion thereof, and it could have tested the correctness of the ruling of the court in excluding this testimony, if it had not waived its objection and exception by voluntarily dismissing its cross-complaint. In view of this waiver,'the court cannot pass upon the alleged error of the court in excluding the testimony-.

No error appearing, the judgment is affirmed.


author: McCulloch, C. J.

text:
    Mosson v. Woodmen of Union.
    Opinion delivered June 9, 1924.
    1. Insurance — benefit certificate — right to sue. — In a suit by-plaintiffs as heirs of their mother on a benefit certificate issued to her, in which defendant denied that plaintiffs were children of the insured, it was error to direct a verdict for the defendant where one of the plaintiffs testified that he was one of .insured’s children, though no evidence was introduced as to who the other children were.
    2. Insurance — conflicting provisions. — Where there is a conflict between the benefit certificate and the by-laws of a benefit society, in that the benefit certificate provides that assessments are payable on the first Monday in each month or thirty days thereafter, and the ¡by-laws provide that they are payable within fifteen days after the first Monday in -each month, the former will control.
    3. Insurance — forfeiture—waiver.—Under the evidence held to be a question for the jury whether the defendant waived a forfeiture of a benefit certificate.
    Appeal from Phillips Circuit Court; E.D. Robertson, Judge;
    reversed.

      Sheffield & Coates, for appellant.

      W. C. Dinning, for appellee.
   McCulloch, C. J.

Appellee is a fraternal benefit society collecting assessments and paying deatb benefits, and -on June 15, 1917, it issued to Della Mosson (or Mason) a benefit certificate payable to her husband, Ben Mosson. Ben Mosson died in June, 1920, and Della Mos-'son died on July 20, 1922. This is an action instituted by the children and heirs at law of Della Mosson on the benefit certificate issued to her.

The first paragraph of appellee’s answer contains a denial of the issuance of the benefit certificate, and also a denial, in general terms, that the plaintiffs are the children of Della Mosson. The language of the answer with respect to the relationship of appellants to Della Mosson is as follows: “They know nothing as to whether or not the plaintiffs are the children of Della. Mosson, and therefore deny same.” The second paragraph of the answer contains a denial of the allegations concerning notice and proof of death, and pleads a forfeiture by reason of failure to pay monthly assessments.' There was a trial before a jury, but the court gave a peremptory instruction in favor of appellee.

Counsel for appellee defend the ruling of the court in giving the peremptory instruction, first, on the ground that the proof was insufficient to show that appellants were the children of Della Mosson or that they were entitled to recover under the benefit certificate or the by-laws of the order. P. H. Mosson, one of the appellants, testified that he was one of the children of Ben Mosson and Della Mosson. He was introduced to testify about the payment of assessments for his mother, and this testimony was drawn out as an introductory statement,'and he was not asked who the other children were, either on direct examination or cross-examination. This was all the testimony introduced on the subject. This testimony was sufficient at least to show that P. H. Mosson himself was one of the children and entitled to sue according to the allegations of the complaint, and, as there was no other proof on the subject, the case should not have been taken from the jury on the ground of entire failure of proof.

Appellee did not, in its answer, or by demurrer or otherwise, raise the question below as to the legal capacity of appellants to sue, except that it denied that they were the children of Della Mosson. Appellants declared upon the benefit certificate and asserted the right to recover thereunder, and the answer tendered no issue as to the-legal capacity of appellants to sue if they were the children of Della Mosson.

The benefit certificate itself contained no provision concerning substitution of beneficiary or the devolution of the right in the event of the death of the named beneficiary, and the by-laws on this subject, if any, were not introduced. In fact, the record is entirely silent in that respect, which shows that the question of the right of. appellants to sue on the policy was not raised in any manner below. It is not proper therefore to determine the case here on that issue. If any such question should be raised on the remand of the case for a new trial, the following decisions of this court may be consulted: Baker v. Mosaic Templars of America, 135 Ark. 65; Metropolitan Life Ins. Co. v. Fitzgerald, 137 Ark. 330; Mosaic Templars of America v. Hearon, 153 Ark. 568; Henry v. Knights & Daughters of Tabor, 156 Ark. 165.

The benefit certificate recites that assessments were payable on the first Monday in each month, or thirty days thereafter. The by-laws introduced showed that assessments were payable within fifteen days after the first Monday in each month. There being a conflict between the provision in the benefit certificate and the by-laws, the former must control.

The forfeiture is claimed by appellee on the ground of nonpayment of assessments for February, March, April and May preceding the death of Della Mosson, and there is an issue in the case as to whether these assessments were paid in apt time and to the proper officer.

One Whitfield was the local officer, known as the financial secretary, and the by-laws introduced in evidence showed that he was to collect assessments and forward them to Webb, the supreme custodian, at Hot Springs. There is evidence also to the effect that the whole local lodge to which Della Mosson belonged (Rising Star Lodge No. 467), including Whitfield, the collecting officer, was suspended in January or February for nonpayment of assessments. P. H. Mosson testified that lie paid each of the assessments for February, March, April and May to Whitfield, and he produced receipts. Whitfield also testified that the assessments were paid to him and that he gave the receipts, but stated that he accepted the payments conditional upon the furnishing of a health certificate so as to procure a reinstatement of the policy, and that he did not forward the funds to Webb, the supreme custodian, on that account. According to the testimony adduced, P. H. Mosson, on July 12, 1922, forwarded to Webb, the supreme custodian, at Hot Springs, a remittance of two dollars by money order to pay the assessments for June and July. The remittance was made in the name of Della Mosson, and Webb replied in a letter dated July 18, 1922, as follows:

“ * * * Your last assessment paid February 27, 1922, and I cannot give you credit for the amount you sent until I can hear from you. I am ashing that you send your receipts for February, March, April and May, and if you áre holding these receipts, I will give you credit in this office for same, but it is necessary that you have some proof of paying your assessments', and We will give you credit and then straighten the matter with the financial secretary. I am holding the amount until I can hear from you, and if you send proof I will credit the $2 for June and July, otherwise you will have to pay all back assessments and send same, with medical statement. This is favoring you, as members have to renew when three months behind, -but, since there is some misunderstanding about your assessment, you will be allowed to pay all back dues.”

Webb’s letter was addressed to Della Mosson, and was received at her home on the day she died, and, two days later, P. H. Mosson, one of the appellants, forwarded to Webb the receipts for the payments made to Whitfield, and also gave notice of the death of Della Mosson. Appellant then denied liability on the ground that the assessments had not been paid in time or to the proper person. 0

Webb was a general officer of appellee, and there conld be a waiver of forfeiture by his acts. His letter distinctly recognized the authority of the financial secretary to collect assessments, and he retained the amount sent to cover the June and July assessments and agreed to credit the same, thereby keeping the policy alive if the receipts for the February, March, April and May assessments were sent in so as to show payment of those assessments. This condition was performed by sending in the receipts, and we think that the acceptance and retention of the money sent in constituted a w(aiver of the prior forfeiture if the preceding, payments were made to Whitfield within the time required by the contract. If, as testified by Whitfield, the payments were accepted by him merely for the purpose of reinstating the suspended member on furnishing a health certificate, and were accepted out of time as monthly assessments, the production of the receipts would not be a performance of the condition stated in Webb’s letter to Della Mosson, and would therefore be no waiver of the forfeiture. But if the payments were made in apt time to Whitfield, the production of the receipts as called for in Webb’s letter would estop appellee to claim a forfeiture. This issue should have gone to the jury, and we are of the opinion that the court erred in giving a peremptory instruction.

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


text:
    H. V. Beasley Music Company v. Cash.
    Opinion delivered June 9, 1924.
    Sales — enforcement of vendor’s lien. — Where the vendor of a chattel sued to recover the purchase money, and asked for the enforcement of his vendor’s lien by specific attachment, as provided by Crawford & Moses’ Dig-., §§ 8729, 8730, the action constituted an election to treat the sale as absolute, and the vendor is entitled to judgment for the amount of the unpaid purchase money, and to have his lien enforced as provided by the statute.

      Appeal, from Pike Chancery Court; J. G. Pinnix, special chancellor;
    reversed.

      McMillan & McMillan, for appellant.
    Appellee withdrew his motion to transfer, and the case, by agreement, was submitted to the chancery court. The case is therefore not ruled by Olson v. Moody, 156 Ark. 319. Appellant had the right of election to affirm the sale and sue to recover the debt, and that right, by this .action, the appellant exercised. 78 Ark. 569; 117 Ark. 469. Its choice to pursue this course is not inconsistent with the rights given it as a vendor under C. & M. Digest, chap. 156, §§ 8729-30.

      Featherston & Featherston, for appellee.
    The statement in appellant’s complaint, viz: “plaintiff has and claims a vendor’s lien on said piano,” is inconsistent with its assertion of title in its exhibit to the complaint, and must give way to such assertion to title. 99 Ark. 218. It is the statement of facts, and not the prayer for relief, which constitutes the cause of action, and any relief warranted by the facts pleaded may be granted. 90 Ark. 241. The Olson case, 156 Ark. 319, is controlling here.
   McCulloch, C. J.

Appellant sold to appellee a musical instrument known as a “piano player,” and took appellee’s promissory notes, three in number, aggregating the sum of $600, for the balance of the purchase price. Each of the notes contained a stipulation that the title to the piano player should remain in the vendor until payment in full of the note. •

Appellant instituted this action against appellee in the chancery court of Pike County in October, 1922, alleging that the sum of $592.07 was due and unpaid on the notes, and praying judgment therefor. The complaint contains an allegation that appellant “claims a vendor’s lien on said piano to secure the payment of said indebtedness,” and the prayer of the complaint is for the recovery of said amount due and unpaid on the notes, and that the same be decreed to be a lien on the piano, and “that an order be embodied in the summons herein directing the 'sheriff to take the said property and hold the same subject to the orders of the court.” At the commencement of the action an order was issued in accordance with the prayer of the complaint, directing the sheriff to take the -piano player and hold it subject to the orders of the court. This order was issued pursuant to the statute which provides that, in any action for the recovery of money contracted for property in possession of the vendee, “the court or clerk shall issue, on petition of the plaintiff, duly verified, describing the property and stating its value, at or after the commencement of such action, an order, which may be embodied in the original summons, stating the name of the court and the style of the action, and directing the sheriff or other officer to take the property described in the petition and hold the same subject to the orders of the court.” Crawford & Moses’ Digest, §§ 8729, S730.

Appellee gave bond to retain possession of the piano player, and filed his answer pleading payment of the notes, and also pleading fraudulent misrepresentations on the part of appellant’s agent in making the sale of the instrument. Appellee also filed a motion to transfer the cause to the circuit court for trial, but afterwards withdrew the motion, and, by consent, the cause was finally .submitted in the chancery court.

There was evidence adduced concerning the circumstances attending the sale of the instrument to appellee by appellant’s agent, and conversations and representations made at that time concerning the condition of the piano player, and there was also testimony introduced on the plea of payment of the notes. The testimony was, to some extent, conflicting as to the amount paid by appellee.

The court found that the allegations of fraudulent misrepresentations were not sustained by the evidence, but decided that appellant was only entitled to recover possession of the piano player, or its value (which the court found to be the sum of $300), as in an action at law for the recovery of possession of personal property, and accordingly rendered a decree to that effect in favor of appellant.

The action is to some extent similar to that instituted in the case of Olson v. Moody, Knight & Lewis, 156 Ark. 319, but in that case objection was made to the jurisdiction of the chancery court, and we decided that the objection was well founded, and that the action was not cognizable in equity, and reversed the decree with directions to transfer the cause to the circuit court. In the present case, however, the objection to the trial in chancery court was waived by express consent to a trial in that court. That eliminated the question decided in the Olson case, supra.

The trial judge was in error in concluding that this action was, in effect, one for the recovery of possession of personal property. Such is not the case, for the prayer of the complaint wias for the recovery of the balance due on the notes. It is true that there was a prayer in the complaint for a lien to be declared on the property sold, but this did not change the nature of the action as one to recover the price.

The complaint also contains a prayer for the issuance of an order at the commencement of the action directing the sheriff to take the property and hpld the same, and this prayer clearly evinced an intention to take advantage of the statutory remedy heretofore referred to, which is available in actions brought for the recovery of purchase money “contracted for property in possession of the vendee.” Crawford & Moses’ Digest, § 8729.

In the Olson case, supra, speaking of the remedies of a vendor of personal property who has retained the title as security for the purchase money, we said: “He may treat the sale as canceled and bring suit in replevin for the property, or he may treat the sale as absolute and sue for the unpaid purchase money, and, in aid thereof, attach the property, under §§ 8729 and 8730 of Crawford & Moses’ Digest.” Appellant’s complaint constituted an election to treat the sale as absolute and to recover the purchase price and enforce it under the statutory remedy referred to above. The court erred therefore in forcing upon appellant tbe other relief, which appellant had elected not to seek.

The chancery court made no finding as to the amount of the balance due on the notes, and we' will not undertake to make a finding here.on that subject, in advance of the finding of the trial court.

The decree is therefore reversed, and the cause is remanded with directions to the chancery court to ascertain from the proof the amount of the balance due on the notes, and to render a decree in favor of appellant against appellee for the recovery of said amount, and enforce the same in the method provided by law. It is so ordered.