author: "Wood, J.

text:
    Gates v. Ritchie.
    Opinion delivered February 18, 1924.
    1. Bills and notes — failure of consideration — burden of proof. —Where the maker of notes admits their execution, the burden is on him to prove failure of consideration.
    2. Appeal and error — conclusiveness of verdict. — A verdict sustained by substantial evidence will not be disturbed on appeal.
    3. Appeal and error — weight of evidence. — The Supreme Court will not pass on the weight of the evidence or the credibility of witnesses; but where the testimony is undisputed, and all reasonable minds must read the same conclusions from it, the trial court should, and the Supreme Court will, declare as a matter of law what such conclusions of fact are.
    4. Appeal and error — effect of findings. — The Supreme Court must give the evidence its strongest probative force in favor of the trial.court’s findings.
    5. Corporations — sale of stock — consideration of subscription. —Where a note was given for an undivided one-third interest in a corporation under a contract whereby the payee agreed to pay the corporation’s outstanding debts and take up all the outstanding stock before the maker should be required to" pay for his stock, the consideration was entire, and on the payee’s failure to take up all the stock there was a failure of consideration for the note.
    6. Contracts — intent.—There must be a meeting of minds in every contract, and the intention of the parties must be gathered, not from what they mentally resolve, but from what they express.
    7. Bills and notes — failure of consideration. — A failure of consideration, either in toto or pro tanto, is a good defense to a suit on a note.
    8. Bills and notes — -failure of consideration — recovery.—Where the consideration of a note fails, but the maker is compelled to pay an innocent purchaser, he is entitled to recover from the payee.
    Appeal from Pulaski Circuit Court, Third Division; A. F. House, Judge;
    reversed.

      Emerson & Donham, for appellant.
    There was a total failure of consideration for the notes, and appellant is not liable thereon. 67 Ark. 962; 117 Ark. 552; 94 Ark. 282; 99 Ark. 458; 118 Ark. 548; 23 Ark. 196; 58 la. 656; 1 Randolph on Commercial Paper, No. 538; 3 R. C. L. No. 142 p. 946; 120 Cal. 511; 23 Ark. 546; 58 Me. 146; 96 Ind. 481; 197 111. 6Ó0; 49 Atl. 854. Appellant was entitled to recover the amount which he paid on his note, held by an innocent purchaser. 1 Randolph on Commercial Paner, p. 90 No. 551; 55 N. W. 580.

      Gaughan é Sifford, for appellee.
    A finding of fact by a trial court has the same sanctity as a finding -by a jury, and will not be overturned if there is any substantial evidence to support it. 140 Ark. 360; 148 Ark. 156. In the absence of proof to the contrary, a party to a contract is presumed to have performed his part. 190 S. W. (Ark.) 113.
   "Wood, J.

This action was instituted by the appellee against the appellant on two promissory notes of $500 each, dated October 15,1914, bearing interest at the rate of eight per cent, per annum from maturity until paid. The appellant, in his answer, admitted the execution of the notes, and set up in defense that, at the time he executed the two notes sued on, he also executed another note to the appellee in the sum of. $1,000. Appellant alleged that all of these notes were given for the purchase price of an undivided one-third interest in the telephone system at Hampton and Banks, Arkansas, and connecting lines; that the appellee represented to the appellant that this property was free and clear of all incumbrances and indebtedness, except certain items of indebtedness, which the appellee stated he would pay and discharge. The appellant alleged that there were certain debts and incumbrances against the property which the appellee failed to discharge, and that the property was finally sold under a judgment, which the appellee agreed to pay; that the appellee failed to.discharge the obligations which he agreed to discharge at the time the appellant executed his notes, and that therefore the consideration for the notes had failed, and that he was not indebted to the appellee in any sum. He alleged that the appellee contracted to have all stock in the company taken up and owned by him and B. O. Powell, in order that the manage • meut might be entirely controlled by them and their associates, but that appellee failed to comply with his agreement in this respect. He set up, by way of cross-complaint, that the appellee had transferred the note of $1,000 for value before maturity, and that the appellant was sued on this note, and judgment was obtained against him, which he was compelled to pay. He therefore asked judgment against the appellee in the sum of $1,000, with interest.

The cause was, by consent, tried by the court sitting as a jury. When the testimony was concluded, the appellant asked the trial court to declare that, under the facts, the appellee was not entitled to recover on his complaint and that the appellant was entitled to recover on the counterclaim, and also asked the court to declare,, in effect, that, if the appellee, as a consideration for the execution of the notes, was to deliver to the appellant one-third of the stock of the Hampton Company, unincumbered, and, if he failed to do so, they should find that the appellee was not entitled to recover on the notes; and further that, if appellant paid the note of $1,000 and the stock was not delivered by the appellee to the appellant, and the debts existing- against the Hampton Company at the time of the execution of the notes were not paid, appellant should have judgment on his counterclaim for $1,000, with interest at the rate of eight per cent, per annum from the. time of the execution of that note.

The trial court refused to so declare the law, but, instead, rendered judgment in favor of the appellee. The appellant duly excepted to these rulings of the court, and brings this appeal.

1. The issues involved are mainly those of 'fact, and the correctness of the judgment of the trial court depends upon whether or not there is substantial testimony in the record to justify a finding that the notes in controversy were based upon a consideration which had not failed. The appellant having admitted the execution of the notes, the burden of proof was upon him to show a failure of consideration for the notes, which are the foundation of the action by appellee, and also a failure of consideration for the $1,000 note which the appellant paid, and upon which alleged failure of consideration he grounds his cross action against the appellee.

This court, in the case of Fowler v. Hammett, ante p. 307, re-announced familiar rules which govern here in determining whether or not the evidence was sufficient to sustain the findings of the trial court. Those rules are: That this court will not disturb the verdict where there is any substantial evidence to sustain it, and will not pass on the weight of the evidence nor the credibility of witnesses, which is the peculiar province of the jury; and, where the testimony is undisputed and all reasonable minds must reach the same conclusion from it, the trial court should, and this court will, declare as a matter of law what the conclusions of fact are which the undisputed testimony proves.

In Thomas v. Thomas, 150 Ark. 43, we said: “It has been uniformly and repeatedly held that the findings of fact by a circuit court are as conclusive as a verdict of a jury, and' will not be disturbed on appeal unless the evidence is legally insufficient to support them;” In International Harvester Co. v. Layton, 148 Ark. 156, we held that, even though a finding of the trial court be against the decided preponderance of the evidence, it is not our province on appeal to determine where the preponderance lies. Under the often-announced rule of this court we must give the evidence its strongest probative force in favor of the court’s findings. Simms v. S. E. Mo. Trust Co., 140 Ark. 365.

2. Now, applying these very familiar rules to the facts of this record, we are convinced that the trial .court erred in its findings and judgment. The appellant testified that the contract between him and the appellee was that he was to give the appellee $2,000, evidenced by the notes, for one-third of the stock in the Hampton Company. Appellee agreed that he would pay the outstanding debts of the Hampton Company before appellant should pay for the stock, and that one-third of all the stock should be procured and transferred to appellee and his associates. In a letter of January 5, 1915, a little more than two and a half months after the notes were executed, appellant wrote the appellee, restating his contract with the appellee, as follows: “You and Mr. Powell were to deliver to me one-third of the stock of the Hampton Telephone Company, free from all incumbrance. Not only was the stock to be free from all incumbrance, but the debts of the company were to be paid, and you and Mr. Powell were to take care of all of the debts of the company up to the time that I purchased the interest.” Two other witnesses, one of whom stated he was present when the agreement was made, and another who stated that he heard appellee say what the agreement was, corroborated the testimony of the appellant as to what the contract was.

But the above testimony of the appellant and his witnesses would not be sufficient, under the above rules, to establish that such was the contract and overturn the finding of the trial court, if the appellee had testified to the contrary. In answer to appellant’s letter of January 15, 1915, the appellee wrote the appellant, saying, among other things: “Your explanation that you are to have a one-third interest, or one-third of the stock, free from all debt up to the time you come in, is exactly correct. This is the contract that we will carry out.” And in his testimony the appellee stated that, as to the stock, appellant was to get one-third, and that, as to the debts of the Hampton Company at that time, they were to be paid by the appellee. True, in some places in his testimony appellee states that he was to take up all the outstanding shares of stock that were really issued and paid for — • what he designates as the “valid” stock — but, when he was asked specifically whether or not his contract with appellant was that he should take up all the stock that was valid, he answered, “No sir; that I would take up all the stock that was issued'.” Therefore we conclude that the undisputed testimony shows that the consideration for the notes executed by the appellant to the appellee was that appellee should take up all the outstanding stock of the Hampton Company, and pay all debts of the Hampton Company in existence at the time the notes were executed, and deliver to appellant one-third of the stock of the Hampton Company.

Appellant further testified1 that the contract with the appellee was that appellee, after getting in the outstanding stock and paying the debts of the Hampton Company at that time, was to finance the company, that is, arrange for the money necessary to conduct the business until the then existing debts were paid and the outstanding stock taken up, and the plant built up and put, in shape for consolidation with the Grant Company, which consolidation both parties contemplated1, but, as to the terms of consolidation, no final agreement was reached. This testimony of the appellant is corroborated by the testimony of Bailey.

The preponderance of the evidence supports the appellant in his contention that appellee' contracted to finance the Hampton Company until its debts existing at that time were paid and the stock collected in and a third of it delivered to the appellant. It cannot be said, however, that the testimony of the appellant establishing this as a part of the consideration for the contract is undisputed, for the testimony of the appellee was to the effect that, after the notes were executed, until the outstanding debts were paid by appellee and the stock gathered in, and thereafter, the appellee, appellant, and Powell were to finance the Hampton Company, making such improvements as were necessary to keep it going. The testimony of the appellant himself shows that, after executing the notes in controversy, he signed other notes with appellee and Powell, attempting, for a while, to assist them in financing the operations of the Hampton Company.

But the testimony in the record, that appellee was to pay the debts of the Hampton Company existing at the time the notes in controversy were executed, and that he was to get in all the outstanding certificates of stock as a consideration for the notes, and deliver a, third of the stock to the appellant, free from incumbrance, is absolutely undisputed. The appellant testified that such was the contract, and the testimony of the appellee, when scrutinized and analyzed, is to the same effect. It does not conflict with the testimony of appellant that such was the contract.

3. The next question is, were the certificates of stock all taken up by the appellee in compliance with his contract? The undisputed evidence shows that they Avere not. The testimony of Baxter sIioavs that he held certificates of stock to the amount of about $300, and knew of at least $50 more that,the appellee did not take up. Appellee, in his testimony, does not dispute this testimony of Baxter, but, on the contrary, in answer to Baxter’s letter endeavoring to get appellee to take up this stock, the appellee concedes that Baxter’s clients had the stock, and states that those AAdio liad paid for same would fare the same as he did. But he did not accept the offer of Baxter’s clients to sell their stock at fifty cents on the dollar. On the contrary, appellee, in his testimony, only says that he took up all the outstanding stock that was valid — all that had been paid for — and he contended that the outstanding1 shares of stock held by Baxter and others had not been paid for, and, when asked why the same were not valid, his only reply was that the stub-book turned over to him by Mason showed that it was not paid for, and that Mason and others told him that it was not paid for. In answer to questions, he stated that he never talked to any of the persons named in the certificates as owners of the stock, and could not swear whether or not they paid for it. While it was marked on the books that the stock was not paid for, he didn’t know whether Mason received the money for it or not, and didn’t know whether the stock-book was true or not. And, in answer to a direct question, he stated that his agreement with the appellee was to ialte up all the stoeli that was issued. He also stated, in answer to a direct question, that he didn’t give appellee the stoeli that he agreed' to give Mm. True, he qualified his answers and explanation by stating that-what he meant was that he was to take up all the outstanding stock that was valid, but he still didn’t dispute the testimony of the appellant and his witnesses to the effect that the contract was that he was to take up all the outstanding stoeli. Appellant’s testimony concerning- this is that they contemplated a consolidation of the Hampton and Grant companies, and that such consolidation could not be effected with any of the Hampton Company stock outstanding.

It occurs to us that the testimony of appellant is exceedingly reasonable, and his testimony, as well as the testimony of Savage, shows that the consolidation with the Grant company could not be effected until all of the outstanding stock of the Hampton company was taken up. As long as there was a considerable amount of outstanding stock in the hands of those claiming to be the owners thereof, these parties holding the certificates cquld not be ignored, in any effort at consolidation, without the probability of lawsuits, which appellant doubtless, by his contract, intended to make impossible. At any rate, appellant testified that he would not have entered into the contract — “would not have touched it” — except upon the consideration mentioned, aiid this taking* up of all outstanding* stock entered into it. A close scrutiny and analysis of the appellee’s testimony shows that such was the contract, and that he had not complied with it because he mea/nt, at the time, only to take up and deliver to the appellcmt stock which the appellee conceived to be valid. But appellee’s mental reservations could not change, or in any manner affect, the contract. There must be a meeting of minds in every contract, and the intention of the parties must be gathered not by what they reserve, but by what they express. Appellee confesses that such meaning* was not expressed in the contract between him and the appellant.

Learned counsel for the appellee contend, in their brief, that, upon a reorganization, appellee would have been in a' position to have issued appellant a sufficient amount of stock to cover his third interest in the company. But, even if this were conceded, it would not be, by any means, a compliance with the terms of the undisputed contract. We conclude therefore that the undisputed evidence shows that the appellee did not comply with the terms of the contract upon which the notes were executed, in regard to gathering in all of the outstanding stock of the Hampton 'Company and delivering a third of the stock of that company, free from incumbrance, to the appellant. Our conclusion in this particular makes it unnecessary to determine whether the appellee complied with his contract to pay all of the debts of the Hampton Company in existence at the time appellant executed his notes. For, as we view the contract, under the undisputed evidence the consideration was. entire, and, unless appellee not only paid the debts, but also took up all of the outstanding certificates of stock, the entire consideration— the foundation upon which the notes were bottomed— falls, and there can be no recovery on the notes.

Here there was a total failure of consideration, because no stock was delivered by the appellee to the appellant, and, under the undisputed evidence, could not be delivered under the terms of the contract until all of the outstanding certificates of stock issued by the Hampton company were gathered in by the appellee, which the undisputed evidence shows he had not done. Appellant had the right, under his 'contract, to insist that this be done, and he could not have been compelled to accept a third of the stock of the Hampton company until it was done. The law is well settled that a failure of consideration pro tanto or in toto is a good defense to a suit on a note executed upon such consideration, to the extent'Af the failure of the consideration, whether in whole or in part. Pettillo v. Hopson, 23 Ark. 196; Gale v. Harp, 64 Ark. 462; Cornish v. Friedman, 94 Ark. 282; Webster v. Carter, 99 Ark. 458; Ozark Diamond Mine v. Towne, 117 Ark. 552-555.

The appellant executed his notes to the appellee in consideration that all of the things mentioned in the contract should be carried out before the notes, as between appellee and appellant, constituted any binding obligation upon the appellant. Therefore a failure upon the part of the appellee to perform any of the things specified for him to do under the contract constituted a total failure of consideration, which bars a recovery by the appellee. Miller v. Wood, 23 Ark. 546. See Hedge v. Gibson, 58 Iowa 656; 1 Randolph on Commercial Paper, § 538, and § 543, at p. 877, and § 551, at p. 888; 3 R. C. L. § 142, p. 946.

4. It follows also, from the above authorities cited in the appellant’s brief, that the appellant is entitled to recover the amount of the note which the appellee had sold for value to an innocent purchaser, and which note the appellant was compelled to pay. This note and the other two were executed for a consideration which, under the undisputed evidence, as we have seen, has failed. 1 Randolph on Commercial Paper, § 551, p. 890; Foley v. Machine Company., 55 N. W. 580. Tlie judgment is therefore reversed, and, inasmuch as the cause seems to have been fully developed, judgment will be entered here dismissing the appellee’s complaint, and in favor of the appellant on his cross-complaint against the appellee in the sum of $1,000, with eight per cent, interest from October 15, 1914.


source: Caselaw Access Project

author:
Wood, J.
      Smith, J.

license: Public Domain

text:
    Wilson v. State.
    Opinion delivered February 18, 1924.
    1. Assault and battery — deadly weapon. — The shoes which a person wears as a part .of his ordinary apparel are not “deadly weapons,” within the meaning of the statute relative to aggravated assault.
    2. Assault and battery — reduction op punishment__In a prosecution for mayhem, a verdict finding accused guilty of an aggravated assault and assessing his punishment at a fine of $150 and imprisonment for 60 days, will be modified by remitting the imprisonment where there was no evidence that the battery was committed with a deadly weapon.
    Appeal from Johnson Circuit Court; J. T. Bullock, Judge;
    modified.

      G. O. Patterson, for appellant.

      J. 8. Utley, Attorney General, John L. Carter, Wm. T. Hammock, Darden Moose and J. 8. Abercrombie, assistants, for appellee.
   Wood, J.

The appellant was indicted by the grand jury of Johnson County for the crime of mayhem, as follows:

“The said Oscar Wilson, in the county and State aforesaid, on the 5th day of July, 1923, did wilfully, unlawfully, knowingly, maliciously, feloniously and of his malice aforethought and with premeditation, commit an assault upon one Dr. J. L. Post, and the ribs and nose of said Dr. J. L. Post did then and there break and disable * * * by striking, beating and stamping, with the unlawful and felonious intent then and there to disable and maim the said Dr. J. L. Post,” etc.

There was testimony for the State tending to prove that appellant came up behind. Dr. Post and struck him behind the ear, knocked him down, kicked him in the face and in the ribs, broke his nose and some of his ribs, and inflicted severe injuries on the side of his head and ear. Witnesses for the State testified that they did not see appellant with any weapon. He inflicted the injuries by striking and kicking Dr. Post.

The appellant testified that he met Dr. Post face to face, and Post rubbed against appellant with his shoulder, and at the same time shoved appellant and struck at him. Appellant then knocked Post down and hit him three or four licks, and some one walked up and told appellant not to hit him any more, and about that time Post raised up on his left hand and went with his right hand as though he was going into his pocket, and, when he did that, appellant kicked his hand. After appellant knocked Post down he desisted from further attack until Post turned over and reached for his hip pocket. Appellant had no weapon of any kind. He Hit Post with his fist.

The cour-t declared the law of the case in instructions to which the appellant here offers no objection. The jury returned a verdict finding appellant guilty of an aggravated assault, and assessed his punishment at a fine of $150 and sixty - days in jail. Judgment was' entered against appellant in accordance with the verdict, from which is this appeal.

The only contention of appellant is that the evidence was not sufficient to sustain the verdict. The undisputed testimony tends to show that the appellant inflicted the injuries by striking and beating Post with his fist, and by kicking him in the face and side. Appellant contends that this testimony does not sustain the verdict finding the appellant guilty of an aggravated assault, for the reason that no deadly weapon was used. Appellant is correct in this contention.

In the case of Warren v. State. 88 Ark. 322. the proof tended to show that Warren kicked a man by the name of Tardy while he was down, and a physician who examined the wounds testified that one or two of the wounds could have been caused by a man’s shoe. Warren was convicted of an aggravated, assault, and his punishment assessed at $100 and imprisonment for one hour in jail. The court said: £ £ There was no evidence to show that Warren assaulted Tardy with a deadly weapon, instrument, or other thing, and he therefore could not have been legally convicted of an aggravated assault. The evidence, however, was sufficient to convict Warren of an assault.” That case rules this, and shows that, where one attacks another, using no other weapon than by striking with his fists, or kicking, he does not use a deadly weapon in the sense of the statute. The shoes which a man wears as part of his ordinary apparel, in the common acceptation of that term, are not deadly weapons within the meaning of the statute. At least, such is the interpretation of the above case. Evidently the court, in the above case, thought that the statute was leveled against assaults made by deadly* weapons other than a man’s feet or hands, or by the ordinary wearing apparel — that is, by such deadly weapon, instrument, or other thing as, in the ordinary acceptation, is calculated, or likely, to produce death or great bodily injury. Shoes, as articles of ordinary wearing apparel, according to the decision of Warren v. State, supra, do not come within that category. A powerful man — a Dempsey or Firpo— might kill one by striking with the fist or kicking with the foot, but a great bodily injury by .this means would not be an assault with a deadly weapon, instrument, or other thing, in the sense of the aggravated assault statute. The indictment in this case, however, was sufficient to charge an assault and battery, the punishment for which is by fine in any sum not exceeding $200. The testimony was sufficient to justify a verdict finding appellant guilty of assault and battery and punishing him in the sum of $150 for that offense. The judgment therefore will be modified by remitting the imprisonment adjudged against the appellant, and, as thus modified, the judgment is affirmed.

Smith, J.

(dissenting). It is true appellant testified, and offered some testimony in corroboration of his own, that lie struck Dr. Post in necessary self-defense, and did not kick him until the doctor attempted to draw a pistol. But, inasmuch as the jury did not believe this testimony, and found appellant guilty of-an aggravated assault, we should, in accordance with the,well-known rule which governs in such circumstances, test the sufficiency of the evidence to support the verdict by a consideration of the testimony which tends to support it.

Here the testimoii3r of Dr. Post and that of a number of witnesses — men, women and a boy — was to the following effect: Appellant walked up behind Dr. Post and, without warning, struck and, while the doctor was lying helpless and unconscious, appellant jumped on the prostrate body and commenced kicking with his heel, and broke four of the doctor’s ribs. Two women and1 some, men, prompted by the dictates of humanity, seized hold of appellant and pulled him away, but he struggled loose from them and returned to his helpless victim, saying, as he did so, that the first round was not over, and resumed kicking Mm. With one kick he broke the bones of the doctor’s nose and flattened it out on his face, and with another kick he burst the doctor’s eardrum. Dr. Post testified that he did not know who hit him, as the first blow rendered him unconscious, and that he did not fully regain consciousness for three or four days later, when he found himself in the hospital at Port Smith. He first knew that his nose was broken by applying his hand to it, thus dislocating some bones, which his act required to be reset. That he was in the hospital for sixteen days, and was disabled at his home for two weeks additional, and that it was six weeks before he was able to resume the active practice of his profession as a physician. He further testified that he had lost his hearing in the injured ear, and .that one of his ribs had never healed, and still caused him pain.

This testimony may not be true, but this was, of course, a question for the jury, and, if it is true, who can say that appellant might not actually have kicked or stamped his victim to death before he had spent his fury or had exhausted himself?

It is said in the majority opinion that the case of Warren v. State, 88 Ark. 322, affords the authority and imposes upon ús the duty of holding that this testimony is not legally sufficient to support a conviction for an aggravated assault.

I shall not attempt to differentiate this case on the facts from the-Warren case — which I think might be done — but content myself with saying that; if such is the purport of that case, it is wrong, and should be overruled, and we will never be afforded a better opportunity to overrule it, or at least to qualify it, than is now afforded. No rule of property is involved, and a decision which renders it impossible to mete out punishment in some measure commensurate with such an assault as the testimony recites shows was committed by appellant should not be permitted to stand.

This result is arrived at because a man’s shoe is a part of his wearing apparel, and cannot therefore be called1 a deadly weapon. But the law does not read that an aggravated assault can be committed only with a deadly weapon. The statute reads as follows: “If any person assault another with a deadly weapon, instrument or other thing, with an intent to inflict upon the person of another a. bodily injury, where no considerable provocation appears, or where the circumstances of the assault show an abandoned and malignant disposition, he shall be adjudged guilty of a misdemeanor, and, on conviction, shall be fined in any sum not less than fifty nor exceeding one thousand dollars, and imprisoned not exceeding one year.” Section 2334, C. & M. Digest.

Certainly this testimony lacks no element of being an aggravated assault except that it was not committed with a deadly weapon. According to this testimony, there was an intent to inflict a bodily injury upon the person of another, no considerable provocation appeared, and1 the circumstances of tlie assault showed, an abandoned and malignant disposition.

But, as appears from the statute which I have quoted, aggravated assaults are not limited to those only which are committed with a deadly weapon. They may be committed with a deadly weapon, instrument, or other thing. It may be conceded that the rule of ejusdem generis applies, and that, in its application, the words, “instrument or other thing,” must be construed to mean some article or object which could be and was used as a weapon. To give these words, “instrument or other thing,” less meaning would be to deprive them of any meaning. These words should therefore be construed to mean some object or article which, although not a weapon, was one which could be and was used as such. How much more injury could be inflicted with knucks on one’s hands than with the toe and heel of one’s shoe or boot? '

The use of a deadly weapon ordinarily indicates that the user had a purpose to inflict a bodily injury, because the weapon was intended for that purpose and had no other use, but no court has ever held, so far as I am advised, that one cannot be guilty of murder even unless he used some weapon designed to produce death in the commission of the homicide. Death or bodily injury can be inflicted not only with weapons but with an infinite number of “instruments or other things,” when properly used to accomplish that purpose. This is a matter of such common observation that the citation of any of the numerous authorities so holding is unnecessary, but, as typical of many other cases, I quote from the decision of the Supreme Court of Kansas in the case of State v. Bloom, 136 Pac. 951, the following statement of the law: “The definition given in 30 Am: & Eng. Enc. Law, 443, and in 2 Words and Phrases1 Judicially Defined, 1828, 13 Cyc. 257, and some other law writers, of a ‘dangerous weapon,’ being taken from the decisions of various courts, is one calculated or designed to, inflict death or great bodily harm, or, by the manner in which it is used, is likely to produce death or great bodily harm. Some courts, also, give practically the same definition to the word ‘weapon.’ All of the courts, however, recognize that a weapon may be dangerous from the very design of its make, as a gun or a sword, while any object that may be used to inflict injury upon another, offensively or defensively, may be a dangerous weapon in the manner in which it is used. For instance, one authority (State v. Norwood, 115 N. C. 789, 20 S. E. 712, 44 Am. St. Rep. 498) holds that a pin thrust down the throat of an infant, causing death, constitutes a killing with a deadly weapon. It is said that where a weapon is in itself a dangerous weapon, it is ‘province of the court to so tell a jury in a criminal trial, whereas, if the weapon is or is not dangerous according to the manner of its use, it is a question for the jury. It is evident that our Legislature, in defining the two crimes, wherein practically the only distinction is that the killing in the one should be by a dangerous weapon and in the other by a weapon, recognized the distinction that in one case the weapon should be dangerous in itself and in the other that it became dangerous only as used. The manner of the use is clearly to be determined as a fact by the jury.”

With all deference to my associates, who probably feel that the rule of stare clecisis binds them, I insist that, if the Warren case affords authority for the holding in the instant case, it is so fundamentally unsound that it should be overruled, as it involves no rule of property, and I submit that the rule of stare clecisis does not require us to follow a previous decision which contravenes ordinary principles of justice and stands as an impediment in affording the citizens of the State adequate protection from assault of this character.

I therefore dissent.


author: Wood, J.

text:
    Eisenkramer v. Eck.
    Opinion delivered February 18, 1924.
    1. Negligence — setting out fire. — In an action against an adjoining proprietor for destruction of a barn by fire, evidence held sufficient to warrant submission of the question of defendant's negligence in allowing weeds to grow and rubbish to accumulate in his back yard so close to the barn as to constitute a menace thereto in case the same should be set on fire, either accidentally or negligently.
    2. Master and servant — act of servant in causing fire — jury question. — In an action against an adjacent proprietor for causing the destruction of a barn by fire, evidence held sufficient to warrant submission of the question whether one alleged to have set fire to weeds and rubbish in defendant’s yard was a servant of defendant and acting within the scope of his employment, and whether the fire was caused by his negligence.
    3. Trial — repetition of instructions. — Where the court sufficiently covered an issue by its instructions, it was not error to refuse additional requests for instruction on the same issue.
    4. Trial — refusal of peremptory instruction. — In an action against an adjacent proprietor for destruction of a barn by fire, an instruction that, if one to whom defendant gave a contract to cut grass and clean up his yard, set fire to the grass, which ignited plaintiff’s bam, such act was not that of the defendant, held properly refused, as being peremptory, and as ignoring issues which the testimony tended to prove.
    Appeal from Jefferson Circuit Court, JoJim W. Wade, on exchange Judge;
    affirmed.

      Reinberger & Reinberger, for appellant.
    There was no proof showing- negligence on the part of appellant. Conjecture and speculation cannot supply the place of proof. 113 Ark. 353; 114 Ark. 112. The negro was an independent contractor. The burning of tiie trash was not within the scope of his employment. He was hired to haul the trash away. See 26 Cyc p.-1534; Instruction No. 21 requested by appellant should have been given, as it defined what an independent contractor was. 77 Ark. 551; 76 Ark. 227. Instruction No. 22, stating under what condition the independent contractor would be liable, should have been given. 53 Ark. 503.

      Caldwell, Triplett <& Boss, and Powell <& Alexander, for appellees.
    Appellant was negligent in the matter of setting out the fire, and is liable for the resulting damages. 81 Ark. 15; 80 Ark. 597; 99 Ark. 600;' 64 Ark. 307; 81 Ark. 13; Cooley on Facts, p. 589. Where there is evidence to support a jury’s finding, it will not be disturbed on appeal. 145 Ark. 273; 144 Ark. 402.
   Wood, J.

Mr. and Mrs. F. W. Eck were the owners of a certain lot in the city of Pine Bluff, Arkansas,, on which was situated a barn containing property of the value of $168.40. This barn, with its contents, was destroyed by fire on August 11, 1922. The barn was insured in the Fire Association Insurance Company (hereafter called company), and it paid to Mr. and Mrs. Eck the sum of $152.82 for the loss they sustained.

These actions were instituted by Mr. and Mrs. Eck and by Mrs. Kate Eelc and by the company against William Eisenkramer. It is alleged in the complaint that Eisenkramer owned a home adjoining the property of Mr. and Mrs. Eck, and that he allowed a large amount of rubbish to accumulate in his back yard, on the property line next to the barn of plaintiffs; that they requested the defendant, several times, to remove the rubbish and weeds, informing him that same was liable to catch fire and burn plaintiff’s barn; that the defendant was notified by the city authorities to remove the rubbish, weeds and trash from his premises; that, on the day of the fire, the plaintiffs were absent in the city of Monticello, which fact the defendant knew; that on that day the defendant caused the weeds and rubbish 'in his back yard to be set on fire, and the sparks therefrom ignited the barn of the plaintiffs and totally destroyed the same, with its contents; that the destruction of .the plaintiff’s property was thus caused through the negligence of the defendant; that the contents of the barn were worth $168.40, for which sum the plaintiffs prayed judgment.

The company, in its complaint, alleged that' it had issued a policy to F. W. and Kate Eck, and had paid the sum of $152.88 to them for their loss on account of the fire; that the company was subrogated to the rights of the Ecks in the damages caused, by the burning of their barn through the negligence of the defendant. It prayed judgment in the sum of $152.88.

The defendant, in its answer, denied all the material allegations of the complaints.

The testimony on behalf of the plaintiffs tended -to sustain the allegations of their complaints. Mrs. Eck testified that she was the owner of the barn mentioned in the complaint, and that it was destroyed by fire on the 11th of- August, 1922, while she was in Monticello. The barn was close to defendant’s fence, and some of the fence had burned. The barn was burned from the side next to the fence. She did not know how the barn caught on fire. The contents of the barn destroyed were worth $168.40. They were insured with the company, and the company settled with her for the destruction of the contents of the barn on the 19th of August, 1922, and she subrogated her rights to the company by agreement, which was introduced in evidence.

Mrs. W. M. Hardister testified that she lived in a house owned by Mr. and Mrs. P. W. Eck, and that there was a barn in the rear of the house, which was destroyed by fire from trash burning in the defendant’s lot. She discovered the flames in the roof of the barn, and turned in the fire alarm. There was a fire in the defendant’s yard at the time, and same had been burning there all morning. The barn burned about 1:30 p. m. There was a colored man in defendant’s back yard, who was standing there, with his back to the barn, looking north, away from the barn. He made no effort to put out the flames. He had been in-the back yard all the morning. It was shown that a reasonable market value of the contents of the barn destroyed was- $168.40. An insurance agent estimated the loss of the barn at $189.85. The company paid to Mrs. Eck the sum of $152.88. The policy was introduced in evidence, and the subrog’ation agreement between Mrs. Eck and the company, which showed that the company had paid her the sum of $152.88, as she testified. There was no insurance on the contents of the barn.

The defendant testified that he made a contract with an old negro man, named Smith, to clean his yard, for $2.50, and told him to pile the weeds and trash up and haul it away. He didn’t exercise any authority over the negro as to the manner in which lie should clean the yard, except that he was to clean it and haul the trash away; that it was not necessary for him to burn the trash. His contract was to haul the trash away, and beyond that the negro was to use his own judgment in cleaning the yard. The witness didn’t authorize the negro to burn the trash, and didn’t exercise any supervision over him. His yard was not in a bad condition. There was' a small pile of trash, and some grass and weeds that had grown up. Witness was sure that he told the negro to haul the trash away. The negro had never worked for him before. He had paid the negro fifty cents on the job.

In rebuttal, Henry Smith testified, on behalf of the plaintiffs, that he was employed to clean defendant’s garden, in the back of his house, in August, about the lime the barn next door was burned. Defendant hired witness to clean the yard, and clean it good. Defendant did not tell witness to haul the trash away, but just told him to clean it up. Witness didn’t have a horse and wagon. He had been cleaning yards for nineteen years. Ho did the job as he thought it ought to be done. Defendant did not tell witness to burn the trash. Witness did not burn the barn. The fire was there when witness got there — papers and stuff burning in the yard. Witness was in the garden, and not in the yard, at the time of the fire, and didn’t set the trash on fire. Defendant had nothing to do with it, except he told witness to clean the yard good. Witness didn’t know what caught the barn on fire. Didn’t know it was on fire until a lady across the street hollered. The trash witness took out of the yard didn’t catch on fire, and he didn’t set the trash on fire. There was a fire further over from where witness was, and the barn must have caught from that fire, but witness didn’t know how it caught. There was some fire in papers and trash, and children playing around in the yard.

Mrs. Hardister testified that she didn’t see a fire in the defendant’s yard before the negro got there, but there was -a fire there after he got there. She heard defendant say to his wife that she ought to have gone out and made the negro put the fire out. The pile of trash near defendant’s fence was burning, and the negro kept piling trash on the same.

Mrs. Eck also testified, in rebuttal, that she heard defendant say that the negro ought to have put the fire out, and that there was a pretty good wind blowing that day — not a hard wind.

There was testimony to the effect that there was rubbish in the back yard of defendant at the time the fire occurred, which was dangerous if a fire started, but that the same condition existed in other yards.

The court, in prayers for instructions given at the instance of the plaintiffs, told the jury, in substance, that, if the defendant was negligent in the manner in which the fire started, or in failing to use reasonable care and diligence to prevent its spreading and doing injury to the barn of the Ecks, and that such negligence was the proximate cause of the destruction of the barn, they should find for the insurance company for the damage done to the barn, not exceeding the amount paid the Ecks by the company in settlement of the said damage; that, if the defendant had rubbish and trash on his premises in his back yard burned, it was his duty to use ordinary care to see that the fire did not spread, and tliat, if he failed to use such care, and, on account of his or his servant’s negligence, the fire spread and burned the barn of plaintiffs, they should find for the plaintiffs; that the master was responsible for acts done by the servant in obedience to the master’s express or implied orders and in execution of the master’s business, within the scope of his employment; that it was for the jury to say, under the evidence, whether or not Smith was the servant of the defendant, and whether or not the burning of the trash was within the scope of his employment, and, if so, the defendant was liable for the negligence of Smith, if any; that, if the defendant burned the rubbish in his back yard in such a careless and negligent manner that the fire ignited the barn of plaintiffs, destroying the contents thereof, the jury should find for the plaintiffs such damages as would'' compensate for the actual damages sustained, if any, as appears from the evidence.

The court, in prayer for instruction No. 16, given at the instance of the defendant, told the jury, in substance, that, if they believed from the evidence that the defendant employed a person to cut and clean up his yard, which required the setting out of a fire, or for a stipulated compensation, and didn’t reserve control over the action of said party, then the party is an 'independent contractor, and the defendant was not liable to the plaintiffs for any fire that said contractor may have set out.

The appellant presented prayer for instruction Nó. . 19, which told the jury to find for the defendant. Also, prayer for instruction No. 21, which was to the effect that, if the defendant employed a person to clean his premises, and said person undertook the work, using his own means and methods, and the defendant retained no right or power to control such person in his work, they should find for the defendant. Appellant presented prayer for instruction No. 22, which was to the effect that, if the defendant entered into an ag;reement with a person, for a stipulated sum, to clean his premises, but did not authorize the person to burn the rubbish, and that the cleaning of the premises was not necessarily dangerous, the jury should find for the defendant; and in prayer No. 23 that, if the party to whom the defendant gave the contract to cut the grass and clean up the yard lighted a match and set fire to the grass, which ignited the barn of plaintiffs, such act was not the act of the defendant.

The court refused to grant appellant’s prayers for instructions Nos. 19, 21, 22 and 23. The appellant duly excepted to the rulings of the court as above set forth. The jury returned a verdict in favor of the Ecks in the sum of $168.40, and in favor of the insurance company against the defendant in the sum of $152.88. Judgments were rendered according to the verdict, from which are these appeals.

1. The appellant contends that there was no evidence to show negligence on his part, but we cannot concur in this view of the testimony. There was testimony from which the jury might have found that the appellant allowed weeds to grow up in his back yard and rubbish to accumulate therein in a large quantity. These were in such proximity to the appellees’ barn as, of themselves, to constitute a menace thereto in case the same should be set on fire, either accidentally or negligently. There was testimony from which the jury might have found that the appellant was warned that, on account of this condition of his back yard, the appellees’ barn was endangered thereby, and that they requested him to correct the same, but he failed to do so until the day the fire occurred. Also, there was testimony to warrant the finding that appellant had had a fire on his premises before which had threatened to destroy appellees’ barn, and also testimony to warrant the finding that the appellees’ barn was destroyed by fire about 1:30 p. m., and that fire had been burning in appellant’s yard all the morning. These and other facts warranted the court in submitting the issue to the jury as to whether or not the appellees’ property was destroyed through the negligence of appellant, as alleged in the complaint, regardless of whether the negro, Smith, in cleaning up the yard, set out the fire or not. The court’s declarations correctly submitted the issue of negligence.

There was also testimony from whicli the jury might have found that the negro. Smith, was employed by the appellant to clean his yard; that Smith was the servant of appellant, in so doing, and was acting within the scope of Ms employment, and that the fire was caused through his negligence in setting fire to the rubbish, and that this aegligence was the negligence of the appellant. These issues were also submitted to the jury under correct declarations of law.

2. The appellant further contends that the negro, Smith, was an independent contractor, and that, if the fire was caused through his negligence, the appellant was not liable therefor. If it be conceded that the testimony warranted the submission to the jury of the issue as to whether or not the' negro, Smith, was an independent contractor, the court gave appellant’s prayer for instruction No. 16, which defined an independent contractor, couched in language chosen by the appellant, and submitted that issue to the jury. Having given tliis instruction, the court did not err in refusing appellant’s prayers for instructions Nos. 21 and 22, which related to the same subject, and were sufficiently covered by instruction No. 16, already given.

Instruction No. 23 is peremptory in character, and ignored issues in the ease which the testimony tended to prove. The court did not err in refusing same. Upon the whole, we find no error in the rulings of the trial court prejudicial to the appellant, and the judgments are therefore affirmed. '


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    Ray v. Arkansas Fertilizer Company.
    Opinion delivered February 18, 1924.
    1. Appeal and error — appeal from judgment on directed verdict. — On appeal from a judgment on a directed verdict, the evidence must he given its strongest probative force in appellant’s favor.
    2. Bills and notes — jury question. — In an action on a note given for fertilizer, as collateral security for which defendant was to transfer to plaintiff the notes or accounts of the farmers to whom defendant sold the fertilizer, evidence held insufficient to warrant submission of the question whether the parties subsequently entered into another contract, under which defendant «claimed certain credits on the note.
    Appeal from Grant Circuit Court; Thomas E. Toler, Judge;
    affirmed.

      Isaac McClellan, for appellant.
    The court ought not to have taken the case from the jury, as there was evidence to support the defendant’s contention, and it is error to direct the verdict where there is conflict in the evidence. 35 Ark. 147; 36 Ark. 451; 37 Ark. 580 ; -62 Ark. 63; 63 Ark. 94; 71 Ark. 445; 76 Ark. 468; 77 Ark. 556; 84 Ark. 57; 96 Ark. 451; 99 Ark. 490. The evidence should be viewed in the light most favorable to the party against whom the verdict was directed. 73 Ark. 561; 89 Ark. 368.

      R. R. Posey, for appellee.
    Cases cited by appellant have no application here. If he had a contract, it was a written one. The alleged contract relied on ivas never signed and approved by the fertilizer company. The minds of the parties never met. 76 Ark. 237; 145 Ark. 394; 97 Ark. 613, 121 Ark. 150; -90 Ark. 131; 95 Ark. 421. The suit is based upon a promissory note, the execution of which is admitted. The contract set up by the defendant was no defense, as it was never executed. Moreover, it was no part of the note sued on and could not be set up as a counterclaim or set-off. 129 Ark. 354; 99 Ark. 224; 128 Ark. 433; 129 Ark. 346; 158 Ark. 75.
   Wood, J.

This is an action by the appellee against the appellant on a promissory note in the-sum of $612, bearing date of Auril 29. 1921, and due Nov. 1, 1921, with interest at the rate of 10 per cent, from maturity until paid. The appellee alleged that there was a credit of $115.61, and a balance due of $530.13, for which amount it prayed judgment.

The appellant, in his answer, admitted the. execution of the note, and set up that he Avas entitled to two credits on the note, leaving a balance due th.e aupellee of $283.39. Appellant alleged that for the year 1922 the appellee sold appellant six tons of fertilizer, which it was to ship to appellant at Sheridan, Arkansas; that appellee failed and refused to ship such fertilizer, to appellant’s damage in the sum of $600. Appellant prayed1 that he have the credits as alleged, and that he have damages in the sum of $600, and that these sums be offset against the note, and that appellant have judgment for the balance. The appellee attached to its complaint and introduced in evidence the note in controversy, which contains many provisions which it is unnecessary to set forth in detail, the effect of which was a contract between the appellee and the appellant by which the appellee sold to the appellant fertilizer for year 1921. As collateral security for the notes executed for this fertilizer, appellant was to transfer to the appellee the notes or accounts of the farmers to whom the appellant sold the fertilizer. After the note became due, the appellee and appellant had a ]ongthy correspondence concerning same, which is brought into the record, and is substantially as follows:

On December 23, 1921, the appellee wrote the appellant asking him when it could expect payment of the balance due on his note, and stating that it expected full payment. Appellant answered on December 28, giving at length the reasons why he could not pay, and concluding by saying that he could not pay the balance due until he made and sold another crop, unless appellee would let him sell fertilizer for it for the coming season, and stating that he would like to sell on a commission basis per ton, appellee to deliver f. o. b. cars at appellant’s station, and appellant to sell and deliver to the customers and take notes in the name of the appellee, appellant’s commission to be applied on what he owed appellee until payment was made in full. Appellee replied to this letter, December 30, asking appellant if he could not give security for the balance due, in form of the signature of some of “your friends or relatives who are willing to help you over this difficulty, or by mortgaging some of your chattels or crop,” and stating, “give us a statement of your position in this regard, and we will be able to write you. fully as to what we can do relative to carrying this over for you.”

On February 4,1922, appellee wrote appellant, referring to a letter of appellant of the 2d, which is not in the record, but in which, from the appellee’s letter, appellant evidently had told the appellee that some one else was offering him fertilizer at a cheaper price than the appellee. In the letter of February 4 appellee states the prices offered appellant by others were higher than'appellee’s prices. This letter concludes by saying: “Kindly sign the inclosed1-contract and return to us for our records, so that we can arrange to protect you, as we do all of our old customers at all times.”

The contract referred to in this letter was brought into the record. It is too long to set forth at length, but it, in substance, provided that appellee' agreed to sell to appellant fertilizer on the conditions therein named, attaching a full list of prices and the terms upon which the fertilizer was to be sold by the appellee to the appellant, which contract was substantially the same as that under which the note sued on was executed. This contract concludes as follows: “Not valid until approved at the office of the Arkansas Fertilizer Company. Approved, this the......day of.............................., 192....... Signed this 7th day of February, 1922. J. J. Bay, buyer. Arkansas Fertilizer Company, by................................., vice president.” The appellant signed the contract, as above stated, on the 7th of February, 1922, and returned it to the appellee. On February 16 appellee wrote appellant, inclosing some joint notes, and, referring to appellant’s letter of December 28, 1921, stated: “You are not saying anything to me, Mr. Bay, about carrying you over for this, other than you are not able to pay it. Now, I am not satisfied with that kind of a statement. I want security, and, if I can get security, I am willing to furnish you additional fertilizer this season on another note, or on a note combining what you need this season with that we are having to carry you from last season, and give you the extended time and an opportunity to pay.” And further, “with reference to the order for fertilizer, which you have sent to us, I am not going to book it at all until I hear from you, and I want you to get your farmer friends to go on one note to cover this order. If they are not willing to do that, Mr. Ray, you certainly cannot afford to have them give you their individual notes. * * * Tu the meantime, you furnish us with some kind of security that will justify us in carrying the balance that you are due us, and we will be glad to give you an opportunity to pay up and get even; but I am not going to do it, Mr. Ray, on just a plain or a past-due note; so we may as well get together and get our affairs up.”

The appellant wrote the appellee, February 20, 1922, in which letter he states, among other filings: “In regard to my past-due note, will say that I have a pair of mules that cost me $800 about a year ago. There is a mortgage on them for $150, which is to be paid next fall. I can give you a second mortgage on them to secure that note.” Appellant stated that, in regard to the season’s business, he was giving his time, interest and energy in securing orders for tonnage, and getting the best men in the county, but that it would be useless to ask them to sign a joint note for the fertilizer they ordered. He concluded this letter by saying: “I am inclosing an additional order for 27 tons, and I leave it up to you to fill them, or say no. There is no time to lose, for the farmers are getting ready to begin for this season’s crop, and I must fill these orders now or lose them.”

Appellee wrote appellant, in answer to this letter, on February 25, stating: “We do not care to depart from our rule of having a joint note, properly approved, before shipment is made, and if you cannot get these parties, to make up order in that way, we will be compelled to decline to fill the order which you have sent in.” In this letter appellee inclosed a new note, and a mortgage to be executed on appellant’s mules.

On March 21, 1922, appellant wrote appellee, inclosing a list of farmers who wanted fertilizer, and an order for the amount wanted by them, and stating, “I hope you will be able to fill same, for it is very necessary in order for me to pay the note which you hold against me. I am very sorry indeed that you saw fit not to fill my orders. For I could easily have sold enough fertilizer to have paid my note which you hold.” A postscript follows: “P. S. Order calls for 24 tons Standard Fertilizer No. 8. ” On April 10 appellee wrote appellant, stating that it had not received the new note and mortgage which appellant liad agreed to sign, and asking appellant to give the matter prompt attention. On April 15 appellant wrote appellee, stating that he had not signed the note and mortgage for the reason that appellee had not furnished the fertilizer unless all the farmers would make and sign a joint note, which proposition was unreasonable, and beyond appellant’s power to compel them to do, and further reminding appellee that appellant could not pay because appellee had cut off his only resource for obtaining revenue with which to pay, in not filling the orders he had sent in, and stating that the opportunity was then past and gone for the year, and he would have to leave the matter with the appellee to do the best it could.

On April 19 appellee wrote appellant, among other things, saying: “We would interpret your letter to mean that you refuse to consider that you owe us anything. We inclose stamped envelope for your reply. ’ ’ On April 22 appellant wrote the appellee, saying: “I do not refuse to pay you. I do not pay you because I cannot. I cannot because I have not got the money, and I cannot get it. I charge you for the profit on 71 tons, the actual amount that I have taken orders for and sent to you, and you refused to fill, making a total amount of $213, at $3 per ton.” Appellee wrote the appellant, on April 24, stating, in substance, that it had not agreed to extend the appellant credit, and asking if appellant was willing to give the security he offered, and saying, “If you are, you will execute the note and mortgage as recently sent you, and' return to us, and, unless we hear from you within the next very few days, we shall understand your silence to mean that you want us to resort to other means to collect.”

On May 22 appellee wrote the’ appellant, demanding a settlement with either the money, or a new note and the proper security, and requesting appellant to reply at once. May 27 appellant wrote the appellee, stating, among other things, "Now, gentlemen, the facts are these: You agreed to extend me credit for this year for fertilizer to sell and to use, and the profits were to be applied on my note, and on the strength of that agreement I was to give you security for the 1921 note and $501.39, which agreement I stood ready to execute, but you refused to furnish the fertilizer except under the conditions that was impossible for me to comply with, and those conditions were not mentioned until you refused to fill my orders, so I shall hold you responsible for mv commission on 71 tons of fertilizer you refused to fill. With that credit I will renew the note, but I am not in a position to secure it without further protection to myself.”

June 7 appellee wrote appellant, denying, in substance, that it had entered into the agreement referred to in appellant’s last letter, and saying that appellant had-not, under any form of contract, worked for appellee on a commission basis, and denying that it had agreed to pay the appellant the commission, and expressing willingness to adjust the matter, if it could be done, but •stating that, if it could not be, appellee would immediately take it into court, and telling appellant, if he wanted to talk it over further, appellee would be glad to do so. The appellant did not reply to this Teller.

The oral testimony for the appellee and the appellant was substantially the same as that set forth in the above correspondence. At the conclusion of the testimony the appellant asked that the issue of fact be submitted to the jury on proper instructions. This request the court refused, but instructed the jury to return a verdict in favor of the appellee. The appellant duly excepted to this ruling of the court. The jury returned a verdict in favor of'the appellee in the sum of $530.13. Judgment was entered accordingly, from which is this appeal.

1. Since the' court directed a verdict against the appellant, the evidence must be given its strongest probative force in his favor. Jones v. Lewis, 89 Ark. 368. But, when this is done, we are unable to find any testimony in the record which would have justified the court in submitting to the jury the issue as to whether or not the appellant and the appellee had entered into a contract by which the appellee was to ship to the appellant fertilizer to be sold' by the appellant on commission, or a profit of $3 per ton, as he claims. On the contrary, the undisputed evidence shows that there was no contract of this kind between the appellant and appellee. The trial court ruled correctly in so holding and in directing the jury to return a verdict in favor of the appellee. The oral testimony of appellant does not show that any different contract was entered into from that, the form of which was sent by the appellee to the appellant, as set out above. The testimony of the parties did not establish any facts different from those disclosed in the correspondence above set forth. There is nothing in the oral testimony, or in the letters, that would justify a finding that there was a meeting of the minds of the parties on the terms of the contract, such as appellant contends was entered into. The written form of contract inclosed by the appellee in a letter to the appellant, by its own express terms, did not become a valid and binding- contract until it was approved at the office of the appellee. It was never signed by the appellee, and never so approved. After appellant had1 signed the proposed contract and returned the same to the appellee, the letters of the appellee advised the appellant promptly, and in unmistakable terms, that it would not book his orders until he had given security for the note in controversy and agreed to comply with the conditions specified for future sale — that is, until the purchasers had executed joint notes with the appellant for the fertilizer furnished appellant by the appellee. Appellant failed to comply with these terms and conditions. He did not execute the mortgage, as additional security, and he refused to agree to have tile parties who purchased fertilizer to sign joint notes, stating that it was impossible for him to obtain same.' But the reasons given are immaterial. This testimony only goes to prove that there was no contract by the appellee with the appellant which would warrant the court in allowing the latter the credit which he claims on the note in controversy.

The judgment of the circuit court is therefore correct, and it is affirmed.


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    Darnell v. Lea.
    Opinion delivered February 18, 1924.
    1. Limitation of actions — seduction.—A civil action for seduction sounds in tort, and may be brought within five years, under Crawford & Moses’ Dig., § 6960.
    2. Limitation of actions — saving in favor of infant. — Under Crawford & Moses’ Dig., § 6961, providing that persons entitled to bring an action who are under 21 years of age “shall be at liberty to bring such action within three years next after full age,” held, where an action for seduction by a minor was dismissed for failure to prosecute, a subsequent action by such minor brought within three years after attaining her majority was not barred because not brought within one year after dismissal of the original suit.
    3. JUDGMENT' — -res judicata. — Dismissal of an action for failure to prosecute is not a judgment on the merits, so as to bar a subsequent action.
    Appeal from Pulaski Circuit Court, Second Division;. Richard M. Mann, Judge;
    reversed.

      X. O. Pindall and Oscar H. Winn, for appellant.
    1. Plaintiff is not barred, even if she is held to have reached full age at eighteen years. C. & M. Digest, § 6961; 95 Ark. 74. The one-year statute of limitations does not apply. 125 Ark. 77.

      2. The dismissal of the action brought by the next friend is no bar to this action. 96 Ark. 181; 47 Ark. 120; 121 Ark. 454.
   Wood, J.

This action was instituted by the appellant against the appellee on January 5, 1921. The appellant alleged in her complaint that she was a minor at the time of the alleged injuries of which she complained; that she is now of age, and brings the suit in her own name; that appellant became sixteen years of age on the first of April, 1916; that before that time the appellee, who was a married man, and a man of 'wealth and1 influence, committed a tort upon the appellant; that the parents of appellant were tenants on the plantation of the appellee, and appellant was living with them at that time; that appellee took advantage of the fact that he was the landlord and employer of her father and mother, and, by his promise of love and affection, did1 entice and beguile her, and seduce her, to the damage of her reputation and to the impairment of her health to the extent that she had to be placed in a hospital; that, before the appellee debauched the appellant, she had the confidence and respect of her acquaintances and friends, and was held in high esteem by her neighbors and acquaintances, but that, since that time, by reason of such debauchery, she had lost same, and they had1 forsaken her; that thereby her mother had been deprived of her services and companionship, and that appellant had now become an object of charity; that the medical services, hospital bill and nurse hire in connection with the treatment of appellant, and the expenses incurred in providing her with a home at the house of friends, amounts to $500; that, on account of humiliation, mental anguish and suffering caused directly by the appellee’s misconduct toward appellant, she liad been damaged in tlie sum of $24,500. She prayed for judgment in the sum of $25,000.

The appellant alleged that the Twin City Bank has in its possession money, the property of the appellee, in the sum of $500, and filed interrogatories and asked for a writ of garnishment against the bank, which was duly issued, and served on the garnishee bank.

The appellee, in his answer, denied all the material allegations of the complaint, and set up that the statute of limitations barred the appellant’s cause of action, if any existed. He alleged that the appellant was- immoral from the time she first came into the neighborhood; that the aiDpellee complained of her immorality to appellant’s father, in an effort to maintain a quiet and peaceful neighborhood. He alleged that the suit was actuated for ■ the purpose of blackmail; that several suits of various characters had been filed'and dismissed' by her, and the entire -scheme of the appellant was one of blackmail, with no justification whatever. In an amended general answer the appellee alleged that, on March 29, 1917, the appellant, by her guardian, Thad Walker, and her mother, Mrs. Mattie Patterson, as her' next friend, instituted a suit against the appellee on the same cause of action as set forth in the complaint herein; that said complaint was dismissed for failure to prosecute, on October 11, 1917; that on October 27 the appellant filed a motion to reinstate, which motion was, on November 3, 1917, overruled. A copy of the original complaint was attached and made an exhibit to the a[3pellee'’s amended answer, the number of the original complaint being No. 11,628, and that, by reason of the filing of the present complaint on the same cause of action which had been theretofore dismissed, the dismissal of the original complaint was res judicata of the last action, which was No. 14,292. The amended answer concluded with a prayer that appellant’s complaint be dismissed.

• The appellant replied to the amended answer, in which, among other things, she set up that, since the dismissal of the original complaint, she had become of age, and that the suit she had instituted was a separate and distinct suit from the original complaint, filed in three years after her disability of nonag’e was removed; that she did not become eighteen years of age until April, 1918, and did not become twenty-one years of age until April, 1921, and that she instituted the present action on January 5, 1921, within the statutory period from the time her disability of minority was removed by operation of law. Appellant denied that she was barred by the statute of limitations, and denied1 that the dismissal of the original action by her guardian and next friend was res judicata of her present action.

The court treated the amended answer of the appellee as amotion to dismiss the appellant’s cause of action, and sustained' the motion. Judgment was entered dismissing the appellant’s cause of action, from which is this appeal.

The court, on motion, heard the testimony of the clerk of the court, which was to the effect that the dates of the filing of the pleadings as set forth in the amended answer were correct, and it was admitted as a fact that the appellant became sixteen years of age on the first of April, 1916, as alleged in her complaint. The court thereupon sustained the motion, and entered1 a judgment dismissing the appellant’s complaint, assigning as a reason therefor that the original suit filed by appellant’s guardian and next friend had been dismissed on the lltli of October, 1917, because of failure to prosecute the same, and the present action could not therefore be maintained, because it was not filed within one year from the date of the dismissal of the original cause of action. From that judgment is this appeal.

The present action by the appellant is one sounding in tort for personal injuries, to which the one-year statute of limitation does not apply, but is one governed bv the five-year statute of limitation. See § 6960, Crawford & Moses’ Digest; Breining v. Lippincott, 125 Ark. 77. The bill of exceptions shows that the court dismissed appellant’s action for failure to prosecute on the 11th of October, 1917, and' held that the' action could not be maintained because it was not filed within one vear from the time the original suit was dismissed. In this ruling the court erred. Section 6961 of Crawford & Moses’ Digest provides: “If any person entitled to bring an action under any law of this State be, at the time of the cause of action, under twenty-one years of age, * * * such person shall be at liberty to bring such action within three years next after full age, or such disability may be removed.” Females of the age of eighteen years shall be considered full age for all purposes. Section 4986, C. & M. Digest; Brake v. Sides, 95 Ark. 74.

Appellant’s cause of action was instituted within three years after she became of age. She was therefore not barred from maintaining same. The cause of action was dismissed for a failure of appellant to nrosecute the same. It was not heard on its merits. Therefore the dismissal of the original cause of action was not res judicata of the present action. Appellant was not bound by the action of her guardian and next friend in instituting the original action, which was dismissed, and she is entirely within her rights, under § 6961 of Crawford & Moses’ Digest, in instituting the present action. Floyd v. Skillern, 121 Ark. 454, and cases there cited.

The judgment of the trial court is therefore reversed, and the causé is remanded with directions to reinstate the cause.


text:
    Rinehart v. State.
    Opinion delivered February 18, 1924.
    1. Criminal law — repetition op instructions. — Where the court correctly charged upon the presumption of innocence, it was not error to refuse to give an additional instruction upon that subject.
    2. Intoxicating liquors — intent in manufacturing. — To authorize conviction of making and fermenting mash, wort and wash fit for distillation or manufacture of alcoholic liquors, in violation of Gen. Acts 1921, p. 372, the State need not prove that defendant intended to use .such mash, wort or wash for making intoxicating liquors for beverage purposes.
    3. Intoxicating liquors — proof of intoxicating state. — In a prosecution for making and fermenting mash, wort or wash fit for distillation, in violation of Gen. Acts 1921, p. 372, it is not necessary to prove that the mash had reached the alcoholic or intoxicating state of its manufacture.
    4. Intoxicating liquors.- — Evidence held sufficient to sustain a conviction of making mash, wort or wash fit for distillation or the manufacture of alcoholic liquors.
    - Appeal from Hempstead Circuit Court; James H. McCollum, Judge;
    affirmed.
    No brief for appellant.

      J. S. Utley, Attorney General; John L. Carter, W. T. Hammock, Darden Moore and-J. 8. Abercrombie, for appellee.
   Wood, J.

The appellant was convicted' under an indictment which, in good form, charged him with the crime of making- and fermenting mash, wort and wash fit for distillation or for the manufacture of alcoholic liquors, on the first of October, 1923, in Hempstead County, Arkansas, contrary to the provisions of act No. 324 of the Acts of 1921.

The testimony was to the effect that a deputy sheriff and others searched the premises of appellant, and found in his smokehouse a barrel full of sweetened water in a big goods-box, a washtub full of fermented mash or malt, a little over half a sack of sugar, and shorts, by the side of the box. They took up the floor, and there were two pits, about a foot apart and four feet deep, just large enough to set a barrel down in. They found some whiskey buried in his potato patch, about thirty or forty feet from the back door of his house. In the dining-room they found a five-g-allon keg- that had contained whiskey. It had about a quart of water in it then. The mash or malt was working. It contained bran, shorts and water, and could have been used for hog feed. The water found in the keg in the house had a whiskey taste. The appellant said that he put the water in the keg and also in the barrel to keep them from falling down.

One of the witnesses said that he never saw such a quantity of shorts and chops as he found there, mixed with water, for two pigs. The appellant said that it was hog feed. Witness called it mash. They asked appellant how often he put his hog feed up, and he said every morning. In examining around the place where the whiskey was they found a trail leading directly by the whiskey and crossing the potato patch out into the field. They found three or four places, on the right of the trail, dug down in a furrow, and little trenches that looked like there had been fruit jars buried there. Beer or whiskey could be made from the stuff in the tub, which was fermented1 and ready for use. It was working, so that the sample they took with them’had to be thrown away to keep it from bursting the jar. They also found a still northeast from appellant’s house, about a quarter of a mile, just outside appellant’s field, on a branch. This plane had been vacated. There were six pits there, three of which contained barrels at that time. There were three empty -barrels in appellant’s barn which had contained mash.

One witness testified, on behalf of the appellant, to the effect that he lived at appellant’s house about May 30, 1923, and was there the day the officers came and searched the premises. .Witness helped appellant about the place, and fed his stock. Appellant used the tub of shorts and chops to feed his hogs. Witness went in the smokehouse and- got shorts and water. Witness didn’t know about the whiskey that they claimed to have found in the potato patch. Witness saw some barrels in the barn, which didn’t look as if there had been any mash in them. There was some cotton seed in one, and witness didn’t know what was in the other. He didn’t see any keg of beer in the house, and didn’t know of any whiskey being manufactured on the place during the six months witness lived with the appellant. Witness testified that, the next day after the search by the officers of the appellant’s premises, he observed an unusually large track going down in the direction of the house — coming from appellant’s house across the field. Witness measured, the track, and it was a nine or ten shoe, about thirteen inches in length. Appellant’s foot was much smaller than this 'track. Witness had1 seen the old still down there. The pits looked like they were old ones — about three years old. Witness used some of the cotton seed in the barn for planting. Three other witnesses corroborated the testimony of this witness for the 'appellant.

The appellant has not favored us with a brief, but the Attorney General lias made a full abstract of the record. The appellant, in his motion for a new trial, does not assign as error the rulings of the court in the instructions given, but only complains of the ruling of the court in refusing appellant’s prayers for instructions. Nevertheless, we have examined the instructions that were given, and find that the court declared the law in conformity with the law as announced by this court in Logan v. State, 150 Ark. 486, and Burns v. State, 154 Ark. 215. The appellants, in those cases, had been convicted under the same statute now under review, and the statute was there construed.

The appellant complains because the court refused to give his prayer for instruction No. 4 on the presumption of innocence, but we find that the court correctly declared the law on that subject in an instruction which the court gave.

Appellant also complains because the court refused to give his prayer for instruction No. 5, as follows: “Sou are instructed that, if you find from the evidence that the mash, wort or wash testified about by the witnesses was manufactured by the defendant, still you cannot convict him unless you find from the evidence, beyond a reasonable doubt, that the defendant manufactured such mash, wort or wash with the intention of making alcoholic or intoxicating liquors therefrom for beverage purposes.” The court modified this instruction by striking out the words “for beverage purposes,” and gave it as thus modified. The appellant duly objected, and excepted to the modification.

This ruling of the court in striking out the words “for beverage purposes” was not erroneous. Under the statute it is not essential to conviction that the State prove that the accused manufactured the mash, wort or wash with the intention that same be used in making alcoholic liquors for beverage purposes. It is only necessary for the State to prove that the accused made or manufactured a mash, wort or wash with the intention of making distilled alcoholic or intoxicating liquors, regardless of whether such liquors were for beverage purposes or for some other purpose. In the case of Logan v. State, supra, the court uses this language: “And, when thus viewed, the conclusion is reached that the legislative inhibition is against the making of a mash, wort or wash intended as preliminary processes in making distilled, alcoholic or fermented beverages.” The word “beverages,” as there used, is synonymous with the word “liquors,” and should be construed as meaning liquors. Likewise, in the case of Milliner v. State, 154 Ark. 611, the word “beverages,” as used in the sentence containing the words “distilled, alcoholic and-fermented beverages,” means liquors. For it was the intention of the lawmakers, by the act under review, to prohibit the making or manufacture of mash, wort or wash as preliminary processes in making distilled, .alcoholic and fermented liquors. See Burns v. State, supra; Neal v. State, 154 Ark. 327; Dickerson v. State, 161 Ark. 60; Williams v. State, 161 Ark. 383.

The appellant also urges that the court erred in lefusing to give his prayer for instruction No. 7, as follows: “You are instructed that, before convicting ihe defendant, you must find that, if the mash was made for an illicit purpose, it had, in fact,,reached the alcoholic or intoxicating state of its manufacture.” There was no error in the ruling of the court in refusing to grant appellant’s prayer for instruction No. 7. In Logan v. State, supra, we said: “In the practical enforcement of the prohibition law it has been found difficult, in many cases, to prove that the mash, wort or wash, which was admittedly intended for an illegal use,' had in fact reached, in the process of its manufacture, the alcoholic or intoxicating stage. * * * This act of the Legislature was obviously designed to relieve the State of the necessity of making such proof, by making it illegal to make a masli, wort or wash fit for the distillation or manufacture of beer, wine, distilled spirits, or other alcoholic liquor.” See also Brown v. State, 154 Ark. 604.

We find no error in the rulings of the court in admitting certain testimony of which appellant complains, aiid we deem it unnecessary to discuss this assignment. The testimony is fully set forth, supra, and it was sufficient to sustain the verdict. The judgment is affirmed.-


author: Hart, J.

text:
    Brackett v. Queen.
    Opinion delivered February 18, 1924.
    1. Master and servant — assu risk. — In an action by a servant for personal injuries, if it ars to be clear that the servant had knowledge of and appreciated the danger incident to his work, or the danger is so obvious or apparent that the knowledge of the danger and appreciation thereof should be imputed to him, then the court should declare as a matter of law that the servant is not entitled to recover.
    2. Master and servant — assumed risk. — Assumption of risk is not predicable upon knowledge alone of the conditions, but it must further appear that the danger was or should have been appreciated by the servant in order that it may be said that there was an intelligible consent on his part.
    3. Master and servant — assumed risk — jury question. — Where an employee, 18 years old and wholly uneducated and inexperienced, was injured while operating the bull-wheel in'a sawmill, the question whether he assumed the risk was properly left to the jury.
    Appeal from Poinsett Circuit Court; W. W. Bundy, Judge;
    affirmed.

      John W. Seobey, for appellant.
    Plaintiff’s injury was the direct result of his own contributory negligence. The.court should have directed a verdict for the defendant. 147 Ark. 95; 135 Ark. 563; 125 Ark. 480; 107 Ark. 341. The injury occurred, not by reason of any defect in the machinery, nor by attending to the duties in the manner he was directed to do, but by reason of plaintiff’s adopting’ a plan different from the way in which the wheel was to be operated. 125 Ark. 480, 484.

      J. J. Mardis, for appellee.
    The cases relied on by appellant have reference to injured employees of intelligence and experience in the particular in which they were engaged; but here there is no evidence that the employee had experience, but on the contrary that he was only 18 years old when hurt, uneducated, illiterate and inexperienced, had worked at a sawmill only two weeks, and was not advised that it was dangerous to work about the bull-wheel. 147 Ark. 253. Appellee neither assumed the risk nor was guilty of contributory negligence. 158 Ark. 379; 157 Ark. 245; 86 Ark. 587; 82 Ark. 558; 79 Ark. 490; 61 Ark. 141.
   Hart, J.

W. P. Queen sued J. M. Brackett to recover "or personal injuries occasioned by the plaintiff’s foot being caught and crushed by a bull-wheel which he was operating for the defendant, and which injuries were 'aused by the failure of the defendant to warn him of the dangers incident to the work.

• The case was tried before a jury, which returned a verdict for the plaintiff, and from the judgment rendered in his favor the defendant has duly prosecuted an appeal to this court.

The only assignment of error relied upon for a reversal of the judgment is that the evidence is not sufficient to support the verdict. Therefore it is only necessary to abstract the evidence in favor of the plaintiff.

W. P. Queen, the plaintiff, was the principal witness fer himself. According to his testimony, he was injured while in the employment of the defendant, J. M. Brackett, in August, 1918, and at that time he was eighteen years old. The plaintiff had been working at the sawmill of ’he defendant for about two weeks at the time he was iruured. The defendant first put the plaintiff at work tailing the edger, and later at operating the cut-off saw. ’Tie man that was operating the bull-wheel became sick, and the defendant told the plaintiff to operate the bull-wheel and clo the best he could until he could get some one else. At first it was the duty of the plaintiff to operate the bull-wheel, and another man was down in the river whose duty it was to lioolc the cable attached to the bull-wheel to the logs floating* in the river. When the cable was attached to a floating log, a signal would be given to the plaintiff, and he would -turn the lever so that the bull-wheel revolved and pulled the log from the river up the incline to the place where it was to be urn loaded. Then he would stop the bull-wheel, and roll the log over on the saw-carrier. On the day the plaintiff was injured there was no one to help him. The plaintiff went down to the river and fastened the cable to a log. A Mr. Smothers happened to be on the bank near the bull-wheel, and he ran the lever. The plaintiff came up with the log, and it passed the place where it ought to be stopped, about six inches. The plaintiff jumped over the log to reach the lever and stop it. In doing so he set his foot upon the bull-wheel, and -one of the spokes-of the wheel -caught his toe and ground his leg up. The plaintiff did not procure Smothers to turn the lever of the bull-wheel. The plaintiff is unable to read and write, and is wholly uneducated. The defendant came to see him after he was hurt and after his leg had been amputated. The defendant told the plaintiff that he knew that the bull-wheel was unsafe; that he was pulling a log out of the river one day, and a fellow had- his foot where the plaintiff got his caught, and it had pinched his foot. The defendant further stated that -he had intended to fix the bull-wheel, but had not -done so. The bull-wheel was about four feet in diameter, and about .two and a half or three feet of it was above the floor of the mill.

On cross-examination the plaintiff stated that there was a little platform above -the floor, and that -he went around Smothers to get to the lever. In his hurry to get to the lever and stop the log, he set his foot up in the bull-wheel, and it was caught. No one had given the plaintiff any instructions about his duties in operating the bull-wheel or tolcl him of any danger attached to its operation. It was shown that, if any one stood in front of the bull-wheel to operate it, there was no danger of being caught in it.

In ashing for a reversal of the judgment upon the evidence for the plaintiff, counsel for the defendant relies upon the doctrine laid down in Hunt v. Dell, 147 Ark. 95. In that case a young man twenty years of age brought suit for injuries received while helping to turn two flywheels to be used in starting an engine. The two flywheels were attached to the engine, and were about three and a half feet apart. The engine was a sixty-horsepower gasoline engine, and it was started by turning the fly-wheels by hand. It was dangerous to stand between the fly-wheels, because they were so close together that if the person who was turning them slipped there was no way to get out. It was held in that case that the plaintiff, as a matter of law, assumed the dangers incident to his work. The court said that the danger in going between the fly-wheels to assist in turning them was an obvious and patent danger, under the circumstances. The master had not instructed the servant in that case of the danger in going between the wheels io turn them, but the servant himself had often gone between the wheels to assist in starting the engine in the same position he was in at the time the injury occurred. Hence it was said that the law attributed to him a knowledge and appreciation of the danger incident to the work in which he was engaged.

The rule is well settled in this State that, when it appears to be clear that the servant has knowledge of and appreciates the danger incident to his work, or that the danger is so obvious or apparent that knowledge of the danger and appreciation thereof should be imputed to him, then the court should declare, as a matter of law, that the servant is not entitled to recover.

It is equally well settled that assumption of risk is not predicable from knowledge of the conditions alone. It must further appear that the danger was or should • have been appreciated by the servant in order that it may be said that there was an intelligent consent on his part. While, the appreciation of the danger is often inferred from complete knowledge on the part of the servant, yet, if the knowledge possessed by the servant is not such as to necessarily make him appreciate the danger of his work, his action for injuries will not be barred.

In the application of the rule stated to the facts in the case at bar, with all legal and reasonable deductions therefrom, it cannot be said, as a matter of law, that the plaintiff: was not entitled to go to the jury in this case. He was required to do the work which was usually done by two men. He was only eighteen years of age, and was wholly uneducated. He had only been at work at the mill for about two weeks, and had been operating’ the bull-wheel for a much less period of time. He was not warned about the dangers incident to his work. We do not think that it can be said, as a matter of law, that he knew and fully appreciated the dangers incident to operating the bull-wheel. It is one thing to say .that he knew that he would be hurt if any part of his body was caught in the revolving wheel, and another to say that he was bound to know that it was dangerous to work near the bull-wheel. He had been told to do the best he could, by the defendant, who had employed him. As we have just seen, he was trying to do the work of two men, and, when the log was carried beyond the point where it should have been stopped and unloaded, it was the natural impulse of the plaintiff to try to get to the lever and stop the passage of the log. He had hurriedly run around Smothers in order to do this, and we do not think it should be said, as a matter of law, that he knew and fully appreciated the dang’er. He had a right to rely, to some extent, upon the advice of his master, who told him to g’O ahead and do the work as best he could until he could get some one else. This view is strengthened when we consider that the defendant went to see the plaintiff, after he was injured, and told him that- he knew the bull-wheel was unsafe, because, some time before that, another man had got his foot pinched in it while running it.

Therefore we are of the opinion that tlie court did not err in refusing to instruct a verdict for the defendant, and the judgment will be affirmed.