text:
    Murphy v. Clayton.
    Opinion delivered March 25, 1929.

      Henry Stevens, for appellant.

      Paul Crwnpler and McKay & Smith, for appellee.
   Hart, C. J.,

(after stating the facts). The first assignment of error is that the evidence is not legally sufficient to sustain the verdict. Under this assignment of error it becomes necessary to consider the question of the defendant’s negligence and of the plaintiff’s contributory negligence. Drivers of automobiles and pedestrians both have a right to the street, but the former must anticipate the presence of the latter, and exercise reasonable care to avoid injuring them. 'Care must be exercised commensurate with the danger reasonably to be anticipated. What is ordinary care is á relative term dependent upon the facts and circumstances of each particular case. The question of contributory negligence is one for the jury whether the pedestrian, in crossing the street at an established crossing, has exercised such care as a person of ordinary prudence would exercise for its own safety under the circumstances. Millsaps v. Brogdon, 97 Ark. 469, 134 S. W. 632, 32 L. R. A. (N. S.) 1177; Minor v. Mapes, 102 Ark. 351, 144 S. W. 219, 39 L. R. A. (N. S.) 214; Texas Motor Co. v. Buffington, 134 Ark. 320, 203 S. W. 1013; Gates v. Plummer, 173 Ark. 27, 291 S. W. 816.

In the last case cited it was expressly held that the facts proved by the plaintiff were sufficient to take the question of the defendant’s negligence and the plaintiff’s contributory negligence to the jury. The plaintiff was an eleven-year-old boy, and the court held that, in determining his contributory negligence in attempting to cross a highway in front of an approaching automobile, he should be held to exercise the care and prudence of a boy of that age, and cannot be expected to exercise the same care that an adult should under the same circumstances.

According to the contention of counsel for the defendant, this is a case where, a child suddenly darted out in the street from in front of a parked car, without warning, and defendant struck her with her car, after doing all-in her power to check the speed of the car after seeing the plaintiff. Such a finding on the part of the jury would have been conclusive on appeal, but we do not think that the ease can be regarded “wholly as a darting-out case.” It is not a case where a child wa.s in a place of safety on the sidewalk and roade no move,ment to leave nntil the automobile was so close upon it that it could not be stopped when the child ran out in the street.

According to the evidence adduced by the plaintiff, the defendant’s car was going east at the rate of twenty or twenty-five miles an hour, at the time of the accident. Another witness for the plaintiff testified that the car was going fast, and this attracted her attention. It was at the noon hour, and the grammar-school children were accustomed to cross the street there in going to lunch. The view of the driver of the car was not obstructed except 'by the car of Mr. Talley, which was parked on the north side of the street, facing east, and which was the direction in which the defendant’s car was going. Some of the -witnesses for the plaintiff say that she was lying in the street on the south side after she- was struck. Other witnesses say that the car of the defendant was on the right-hand, or south, side of the street at the time of the accident. The plaintiff was on the right, or south, side of the defendants car when it hit her. According to the evidence of Mr. Talley, the plaintiff was about twenty feet from his car when he picked her up. He did not see the child pass in front of his car. The child was to his right and a little southwest of his car when he picked her up. Other witnesses for the plaintiff stated that the defendant’s car was going fast at the time it struck the plaintiff. One of the schoolboys testified that the plaintiff was about fifty steps from Talley’s car when the automobile struck her.

Of course all this testimony is contradicted by that of the defendant and her two companions, but the .jury were the judges of the credibility of the witnesses. In the exercise of this right, the jury might have believed such part of the testimony of any of the witnesses that it believed to be true and rejected such part as it believed to be false. In doing this it might have found that the defendant was driving along the street at an hour of the day when schoolchildren would cross the street at the grammar-school, and that she was going at a fast rate of speed. The street was straight at that point, and there were no obstructions, except the car of Mr. Talley. The street was thirty-five feet wide, and the body of the child was lying on the south side of the street after the accident. She had nearly passed the car of the defendant at the time it struck her. She was picked up a little to the south of Talley’s car, and from these circumstances the jury might have found that it was hot a case where a child was standing on the sidewalk in a place of safety, and suddenly darted out in the street in front of an approaching automobile. Such a rate of speed as testified to by the plaintiff’s witnesses, near a sehoolhouse, at an hour of the day when small schoolchildren are accustomed to cross the street in g'oing home, was evidence for the jury to consider in determining the defendant’s negligence, and it cannot be said that, under the particular circumstances adduced in evidence by the plaintiff, the court should have told the jury as a matter of law that the defendant was not guilty of negligence.

On the question of the contributory negligence of the plaintiff, the jury had a right to consider her tender age, and also the tendency of children to run across the street near the sehoolhouse in going to and from school. It is claimed that, if she had looked, she was bound to have seen the approaching car. With equal'confidence it might be said that, if the defendant had been looking, she was bound to have seen the child crossing the street. Under the plaintiff’s evidence this is not a case where a child suddenly darted out in the street without warning. The children were in the habit of crossing the street at that hour of the day in going home to' lunch. The plaintiff started to run across the street to join some other children on the opposite side. She was on her way home to lunch, and had a right to be on the street. The jury might have inferred that she did not run out into the street from in front of Mr. Talley’s car. He did not see her, and picked her up a little to the south of his oar, near to the south side of the street. One of the schoolboys said that she was about fifty steps from Talley’s car at the time she was struck. In any event she had got nearly across the street, and the jury might also have considered the fact that the defendant did not know that her car had struck the plaintiff. In other words, the jury might have found that the plaintiff was keeping a watehout commensurate with that required of one of her age, under the circumstances, and that the defendant was not keeping the watehout required of her under the particular circumstances of this case. As sustaining the rule here announced we cite the following cases: McFadden v. Anderson Motor Co., 118 S. C. 309, 108 S. E. 919 ; Frank v. Cohen, 288 Pa. 221, 135 Atl. 624; Rankin v. Ward Baking Co., 272 Pa. 108, 116 Atl. 58; Silberstein v. Showell, Fryer & Co., 267 Pa. 298, 109 Atl. 701; Mulhern v. Philadelphia Home-Made Bread Co., 257 Pa. 22, 101 Atl. 74; Lampton v. Davis Standard Bread Co., 48 Cal. App. 116, 191 Pac. 710; Wong Kit v. Crescent Creamery Co., (Cal.App.) 262 Pac. 481; Tripp v. Taft, 219 Mass. 81, 106 N. E. 578; Emery v. Miller, 231 Mass. 243, 120 N. E. 655; Davicki v. Flanagan, 231 Mass. 243, 145 N. E. 449; Gaulin v. Yagoobian, 261 Mass. 145; 158 N. E. 352.

It is nest insisted that the court erred in instructing the jury that the burden was on the defendant to establish the contributory negligence of the plaintiff, and that, in determining the question of the plaintiff’s contributory negligence, the jury was instructed that she would only be required to exercise that degree of care that a child of her age and intelligence would ordinarily exercise under similar circumstances. This instruction is in accord with the principles of law decided in the oases above cited, and in many others which might be cited. But it is contended by counsel for the defendant that the instruction is erroneous because the court did not tell the jury that the burden of proof would not be on the defendant to establish contributory negligence if it was shown by the plaintiff’s own evidence. It is plain that, when the whole charge is considered, the court did not intend by the instruction complained of to tell the jury that the defendant must introduce evidence to show contributory negligence, even though it was shown by the evidence of the plaintiff. At the request of the defendant the court gave, as modified, an instruction on contributory negligence, and in it told the jury that, if it should find from the evidence that the injury complained of was caused or contributed to by the failure of the plaintiff to exercise a degree of care that a child of plaintiff’s age and intelligence ordinarily exercised under the same or similar circumstances, and but for which acts the injury complained of would not have occurred, then the verdict should be for the defendant. Under this instruction the jury might have found from the evidence of the plaintiff, as well as from that adduced by the defendant, that the plaintiff was guilty of contributory negligence upon the whole evidence in the case. If the defendant thought otherwise, a specific objection to the instruction should have been made. St. L. I. M. & S. Ry. Co. v. Sparks, 81 Ark. 187, 99 S. W. 73.

It is next insisted that the court erred in giving an instruction on the measure of damages. That part of the instruction complained of reads as follows:

“Tour verdict will be for such sum as will reasonably compensate her for all pain and suffering, if any, both of body and mind, suffered by plaintiff on account of the injuries received. ’ ’

It is contended that there is no evidence in the case of mental suffering for which compensation could have been had. It is insisted that the bodily injuries of the plaintiff were not permanent, and that there is no evidence of suffering of mind for which compensation could be asked or awarded. We do not agree with counsel in this contention. The plaintiff was attended by a physician, who considered it necessary to place her leg’ in a cast and keep it there for six weeks. 'She was suffering great pain after the accident. The plaintiff might have suffered in mind by reason of the accident. She might have thought that the fracture in her leg would not heal up so that her leg would be straight and normal in the future. Here again, if counsel for the defendant had thought that prejudice would result from the form of this instruction, a specific objection should have been made. Prairie Creek Coal Mining Co. v. Kittrell, 106 Ark. 138, 153 S. W. 89; Ferguson & Wheeler Land, Lumber Handle Co. v. Good, 112 Ark. 260, 165 S. W. 628; Mills v. Franklin, 130 Ark. 80, 196 S. W. 928; Arkansas Short Leaf Lumber Co. v. Wilkinson, 154 Ark. 455, 243 S. W. 819.

Complaint is made that the court refused to give certain instructions asked by the defendant. We do not deem it necessary to set out these instructions or comment upon them at length. We have examined the instructions given by the court and those refused by it. The instructions given fully and fairly covered the issue óf the negligence of the defendant, as well as the contributory negligence of the plaintiff. The requested instructions were either covered by the instructions given for the plaintiff or they were not in harmony with the principles of law decided in the cases above cited.

Finally, it is insisted that the verdict is éxcessive. We cannot agree with counsel in the contention that a verdict of $400 is excessive, under the proof made.by the plaintiff. According to her own testimony she 'suffered great pain. She took four' morphine tablets to make her sleep after the injury, and they did not ease her. According to the testimony of her mother, she did not rest, but cried all the time for four or five days after the injury. It was- ten days before they could put the cast on her leg, and she Wore the cast six weeks. She was on crutches two and one-half months. According to the testimony of the physician who attended her, the injury was to the hone, and she suffered for several days a great deal. There was a fracture in the hone, and it was necessary to place her leg in a cast after the raw area had been healed up. At the time of the injury her leg was raw, bruised, and swollen. The injury was to the ankle of her right leg, at the part that makes the joint at the end of the large hone in the leg. These circumstances, if believed by the jury, warranted it in returning a verdict of $400 for the plaintiff.

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


source: Caselaw Access Project

author: Hart, C. J.,

license: Public Domain

text:
    Caldwell v. Dodge.
    Opinion delivered March 25, 1929.

      H. B. Stubblefield, for appellant.

      Sam T. Poe, for appellee.
   Hart, C. J.,

(after stating the facts). This court has uniformly held that the office of the writ of prohibition is to restrain an inferior tribunal from proceeding-in a matter not within its jurisdiction, but it is never granted unless the inferior tribunal has clearly exceeded its authority and the party applying for the writ has no other adequate protection against the wrong that shall be done by such usurpation. Macon v. LeCroy, 174 Ark. 228, 295 S. W. 31.

Again, in Merchants’ & Planters’ Bank v. Hammock, 178 Ark. 746, 12 S. W. (2d), 421, the court held that the writ of prohibition is never granted unless the inferior court has clearly exceeded its jurisdiction and the party applying for it has no other adequate protection against the wrong that shall be done by such usurpation of authority.

In each of these eases the writ was denied because the lack of jurisdiction in the chancery court did not appear upon the face of the record. In each case the jurisdiction of the chancery court depended upon a finding of fact upon proof made relative to certain allegations made in the complaint on the one hand and a denial thereof in the answer on the other.

We are of the opinion that the material facts in the present proceeding, as they appear from the face of the record, show that the chancery court has no jurisdiction over the person of the petitioner in the alimony case and could acquire none within the principles of law decided in Order of Railway Conductors v. Bandy, 178 Ark. 694, 8 S. W. (2d), 448. In that case we held that the circuit court acquired no jurisdiction of a suit ou a benefit certificate issued, delivered and made payable at the office of the insurer in another State, by the attempted service of summons on the Insurance Commissioner under our statute authorizing such service, where the insurer had no property in this State and had not attempted to do business within the State. The court pointed out that, if the defendant had appealed from the order of the circuit court denying its motion to quash service of summons, this would have made it a party to the case, and, under our settled rules of practice, it would have had to follow the case throughout all subsequent proceedings. The same principle was also recognized and applied in the ease of Ferguson v. Martineau, 115 Ark. 317, 171 S. W. 472, Ann. Cas. 1916E, 421, where it was held that, when the want of jurisdiction on the part of the chancery court to restrain the execution of a criminal judgment of the circuit court appears on the face of the proceedings, a writ of prohibition to quash and to restrain the enforcement of the order of the chancery court will be issued. That principle controls here, and the court, is of opinion that it appears from the face of the record in this proceeding that the chancery court has-no jurisdiction over the person of Guy Stanley Caldwell, Jr., the petitioner herein, in the alimony proceeding in the chancery court, and' could acquire none. It does not concern us here which one of the parties deserted the other, or whether the petitioner' should be required, in. a proper proceeding, to support his wife and, child. The allegations of the wife in her proceeding for alimony in the Pulaski Chancery Court were that the defendant was a nonresident of the State of Arkansas and had no property in this State. She also specifically alleged that he had refused to provide his wife and child the necessaries of life, and declared that he would leave the State and never return in order to prevent the payment of alimony here or the costs of the alimony proceeding. This brings us to the question whether the chancery court obtained jurisdiction of the person of the petitioner by service of summons while he was under arrest in the municipal court of Little Rook, charged with the statutory crime of wife and child abandonment, or whether he entered his appearance to the alimony suit by executing a bail bond in order to escape a jail sentence for not complying with the temporary order for alimony made by the chancery court.

In Stewart v. Ramsey, 242 U. S. 128, 37 S. Ct. 44, it was held that a district court sitting in one State cannot acquire personal jurisdiction over a citizen and resident of another State through civil process served upon him while in attendance upon such court as plaintiff and witness, and while he is returning from the court room after testifying. The court said that the State courts, with few exceptions, have followed the rule, and among the illustrative cases cited is Martin v. Bacon, 76 Ark. 158, 88 S. W. 863, 113 Am. St. Rep. 81, 6 Ann. Cas. 61. In that case the court held that a party cannot be lawfully served with civil process while he is in attendance on a court in a State other than that of his residence, either as a party or a witness, or while going thereto or returning therefrom. It was also held that, where a nonresident was attending court in order to avoid a forfeiture of his bail bond, service on him by process in a civil suit will be quashed.

In the later case of Hogue v. Hogue, 137 Ark. 485, 208 S. W. 579, it was held that, where a suit for divorce was pending in another State, and the husband and wife came into the State of Arkansas for the purpose of taking depositions, the hushand was protected from service of summons while in the State in an action by the wife against him.

Again, it is insisted that the writ should not be granted because of a question of fact presented by the proceedings before us as to whether the criminal process of the municipal court was used as a pretense. According to the allegations of the petition, the wife of the petitioner caused him to be arrested in the municipal court of Little Rock in order to detain him here and secure service on him in the alimony suit which she subsequently filed. He alleges that he gave his wife no cause to abandon him, and that she willfully left him in the 'State of Texas and came to Arkansas without his consent. He alleges that he came into the- State of Arkansas for the purpose of seeing his wife and child and talking over their marital differences with a view to getting his wife to return to the State of Texas. On the other hand, the wife< alleges that she was compelled to leave the defendant in the State of Texas because of his cruel and unbearable treatment of her, and that she came to Arkansas to live with her mother because she had no other place to go. She alleges that her husband came into the State of his own accord, and that she had nothing whatever to do with his arrest in the municipal court. We are of the opinion that this conflict as to the facts on this point has no bearing upon the issue before us.

In a case-note to 14 A. L. R. 781, it is said that the authorities are unanimous that, where the attendance is procured by an arrest caused for the sole purpose of securing jurisdiction so that the defendant may be served with civil process, the court will set aside the service. It is said that the conflict in the authorities is only as to 'the right of a nonresident defendant in a criminal case to immunity from service of civil process. As we have already seen, this court has held that a nonresident of the 'State is exempt from service of civil process while Ms presence in the State is in compliance with the conditions of a bail bond. Martin v. Bacon, 76 Ark. 158, 88 S. W. 863. Other cases adopting this view may be found in a case-note to 14 A. L. B-. at 775. The reason is that the exemption from the service of civil process while under arrest or to avoid the forfeiture of a bail bond is not simply a personal privileg’e but is a protection granted to the party or witness by the court as a matter of public policy. Under the decisions of our own court above cited the party is afforded full protection from all forms of civil process during his attendance at court and for a reasonable time in going and returning.

The record shows that service of summons in the alimony case was had upon the petitioner while he was under bond to- appear in the Little Bock Mumcipal Court and answer the statutory charge of wife and cMld abandonment; and, under our decisions, it does not make any difference whether the criminal process was used as a pretense or was instituted by the proper officers of the State in good faith.

This bring*s us to a consideration of the question whether the chancery court acquired jurisdiction of the petitioner here in giving a bail bond in that court for his appearance. Without any valid service upon the petitioner, the court made an order of temporary alimony against him,' and the sheriff of Pulaski County was ordered to take him into custody and to commit him to jail, in default of giving bond with proper security to pay said temporary alimony. This order was made bn the 1st day of December, 1928, while the petitioner was still under arrest under process issued by the Little B’ook Municipal Court. He executed the bond in order to secure his release, and this could in no sense be said to be a voluntary entry of appearance by him in the chancery court proceeding. ' '

It is also alleged that the petitioner represented to the municipal court that he had voluntarily entered into bond to pay the alimony in the chancery court, and thereby secured his release from custody. This does not ¡make any difference. As we have already seen, the service of summons was had upon him while under arrest in the municipal court, and, under our decisions above cited, no service of summons could be had upon him in the chancery court. We assume that the wife acted in entire good faith and that the procedure, in the municipal court was not a device to secure the presence of the defendant within the territorial jurisdiction of-the courts of this State. In the view we take of the case, the motive of the petitioner, who was the defendant in the alimony case, or the motive of the plaintiff in the alimony suit, is of no importance. Neither do we regard the conduct of the petitioner in the municipal court as having any bearing on the issue presented here. The fact remains, as disclosed upon the face' of the record, that service was had upon the petitioner in the alimony suit while he was under arrest on a statutory charge in the Little Rock Municipal Court. He was exempt from the service of process for the commencement of a civil action against him in this State,-and was protected while coming and returning’, provided he acted without unreasonable delay. The record shows that he acted promptly, and that any delay in the matter was not occasioned by him. .,

Petitioner brings himself within the rule approved in Roberts v. Tatum, 171 Ark. 148, 283 S. W. 45, to the effect that objection in the lower court to its exercise of .jurisdiction is not a jurisdictional fact upon which the power to issue a writ of prohibition depends, but is discretionary and unnecessary where it would obviously be futile and would result in unnecessary or hurtful delay.

It follows from what we have said that a writ of prohibition will be awarded restraining the judge of the chancery court of P-ulaski County from further proceeding in said alimony suit or from • exercising any jurisdiction over the person of the petitioner in said suit. Ill awarding this writ we do so without in any way impugning the motives of the judge of the chancery court. We believe that he was perfectly honest and sincere in assuming jurisdiction in the alimony suit, and considered it his duty to do so. Matters of this sort often give rise to questions of grave doubt. The result of our views, however, is that the writ of prohibition should be granted as prayed by the petitioner, and it is so ordered.


author: Wood, J.

text:
    Cook v. State.
    Opinion delivered March 25, 1929.

      8yd Reagan- and John E. Harris, for appellant.

      Hal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   Wood, J.

O. L. Cook was indicted in the Union Circuit Court for the crime of murder in the first degree in the killing" of one Freeman Scott. The indictment was valid. The defendant was put on trial for the offense charged, and the jury, after hearing all of the evidence, the instructions of the court and the argument of counsel, retired to consider their verdict, and afterwards returned into court the following verdict: “We, the jury, find the defendant guilty of murder in the first degree, as charged in the indictment.” The defendant, by the judgment of the court, was sentenced to be put to death by electrocution, from which judgment he duly prosecutes this appeal.

1. Appellant’s counsel contend that the evidence is not sufficient to sustain the verdict of murder in the first degree. It would serve no useful purpose to set out the testimony in detail. 'Suffice it to say the confession of the appellant, made out of court, which was shown to be free and voluntary by the officer who heard it, and which was corroborated by other evidence of the killing, was sufficient to warrant the verdict of the jury. See Johnson v. State, 135 Ark. 377, 205 S. W. 646; Henry v. State, 151 Ark. 620, 237 S. W. 454; Borland v. State, 158 Ark. 37, 249 S. W. 591; Standridge v. State, 169 Ark. 294, 275 S. W. 336.

2. Counsel for appellant also contend that the court erred in not instructing the jury that it had a right, in case it found the appellant guilty of murder in the first degree, either to impose the death penalty or life imprisonment in the penitentiary at hard labor. Upon examination of the bill of exceptions we find that the trial court gave the following instruction:

“You are instructed that, if you find from the evidence in this case, beyond a reasonable doubt, that the defendant, O. L. Cook, in Union County, Arkansas, and before the return of the indictment herein into court, did unlawfully, feloniously, willfully, of his malice aforethought and after premeditation and deliberation, kill Freeman Scott by cutting him -with a knife, as alleged in the indictment, you will find the defendant guilty of murder in the first degree.”

The hill of exceptions does not show that the court instructed the jury that it had the right, in case it found the defendant guilty of murder in the first degree, to. fix his punishment at life imprisonment at hard labor in the State Penitentiary. At the instance of the State, the clerk of this court issued a certiorari to the clerk of the Union Circuit Court, suggesting a diminution of the record in omitting an instruction given by. the trial court advising the .jury that, in the event the defendant was convicted of murder in the first degree, the jury could, under the statute, fix the punishment at life imprisonment. In response to the certiorari the clerk of the circuit court of Union County sent up the following:

"Gentlemen of the jury, if you find the defendant guilty of murder in the first degree, your verdict will be, 'We, the jury, find the defendant guilty of murder in the first degree, as charged in the indictment.’ This verdict carries with it the death penalty; or you may return a verdict in about these words,- 'We, the jury, find the defendant guilty of murder in the first degree, as charged in the indictment, and assess his-punishment at hard labor in the 'State Penitentiary for life.’
"State of Arkansas, county of Union. I, Walter F. Cawthon, official stenographic reporter for the Thirteenth Judicial Circuit Court of the State of Arkansas, do hereby certify that the above instruction was given to. the jury, at the conclusion of argument of counsel, in the case wherein the State of Arkansas was plaintiff; and O. L. Cook was defendant, the same being tried in the Union Circuit Court. In witness whereof I have hereunto set my hand on this the 13th day of March, A. D. 1929. Walter F. Cawthon.”

The clerk of Union Circuit Court certified that the above was a full, true and complete transcript of the diminution suggested. Neither the official stenographer of the Union Circuit Court nor the clerk thereof is authorized to authenticate the hill of exceptions. Only the circuit judge himself, trying the cause, could do that. See Beecher v. State, 80 Ark. 600, 97 S. W. 1036; Abbott v. Kennedy, 133 Ark. 105, 201 S. W. 830; Blackford v. Gibson, 144 Ark. 240, 222 S. W. 367; Mo. Pdc. Ry. Co. v. Brewer, 154 Ark. 96, 241 S. W. 864. There is nothing in the transcript of the record before us, including the certiorari and response thereto, to show that the above instruction which the official stenographer certified was given by the trial court was included in the bill of exceptions signed by the trial judge, and there is nothing in the transcript to show that the circuit clerk of Union County omitted to copy the alleged instruction from the bill of exceptions. There is no call for such instruction in the bill of exceptions. We can only determine whether certain instructions were given or refused by an examination of the bill of exceptions. The judgment roll or record proper does not show the rulings of the trial court on the prayers for instructions. Prayers for instructions granted or refused by the trial court must be shown in the bill of exceptions, and the bill of exceptions must be authenticated by the trial judge. Therefore there is no properly authenticated bill of exceptions brought into this record showing that the trial court instructed the jury that it had the right, in the event it found the appellant guilty of murder in the first degree, to assess his punishment at hard labor for life in the State Penitentiary. The Attorney General has not asked for further time to correct the bill of excep.-tions, if same could be done, therefore we must take the record as we now find it.

Since it does not appear from the bill of exceptions' that the trial court instructed the jury as to its right to render a verdict of life imprisonment at hard labor in the State Penitentiary, the court erred in not so instruct ing the jury. But this error can bé cured by modifying the- judgment of the lower court so as- to reduce the punishment of the appellant to life imprisonment at hard labor in the State Penitentiary. It was so held in the recent case of Crowe v. State, 178 Ark. 1121, 13 S. W. (2d) 606. That procedure will be followed here. Accordingly the judgment of the trial court will be modified as above indicated, and, as so modified, will be affirmed. It is so ordered.


author: Smith, J. Mehaffy, J.

text:
    St. Louis-San Francisco Railway Company v. Harmon.
    Opinion delivered March 25, 1929.

      E. T. Miller, E. L. WestbrooJce, Jr., and E. L. West-broohe, for appellant.

      Oscar E. Ellis, for appellee.
   Smith, J.

This appeal is from a judgment in ap-pellee’s favor for the value of a dog which was killed by one of appellant’s trains. No witness who testified on behalf of appellee saw the dog struck, but the testimony on appellee’s behalf was sufficient to. support the finding that the dog had been run over by a train, and appellee relied upon the statutory presumption of negligence arising from the fact that a train had struck the dog. The question for decision is therefore whether the undisputed testimony overcomes this presumption. We think it does.

The only witness who 'knew how the train came to strike the dog was B. EL Nelson, who testified as follows: Witness was the rear brakeman on the local freight train which struck the dog. About 8 p. m. on January 17 the train was standing on the main line track, when witness, who was on the rear end of the ealboose, gave a signal for the train to back up. Witness testified that he “took the engine and caboose and started backing up, and saw the dog was standing between the tracks, and, as the caboose was passing the dog, it ran under the rear end, and was run over.” The dog was about four or five feet from the caboose when it started across the track under the caboose. Witness did not see the dog as it started across the track, but ‘ ‘ saw the dog standing there as we started to pass, but was not looking at the dog when he started under. When I heard the dog yelp I looked, and saw it kick back out from under the train.” There was .nothing he could have done', or that could have been done by the train crew or engine crew, that would have prevented the injury to the dog, as the caboose was being backed up in the yard, and the dog ran under the caboose from the side, and was run over. No witness disputed or contradicted this testimony or testified to any fact which even tended to contradict the brakeman’s testimony or to afford any just ground for the inference that the brakeman had not told the truth as to the manner in which the dog was injured.

We have said many times that the jury is the judge of the weight of the testimony and the credibility of the witnesses; but we have also said that the jury has no right to arbitrarily disregard the testimony of any witness, and we think it was arbitrary for the jury to disregard Nelson’s testimony. It is consistent in its entirety, and no fact or circumstance was offered in evidence which contradicts it or conflicts with it. It was therefore arbitrary for the jury to cast this testimony aside. Davis v. Porter, 153 Ark. 375, 240 S. W. 1077; Kansas City Sou. Ry. Co. v. Griffin, 141 Ark. 625, 217 S. W. 801; Kansas City Sou. Ry. Co. v. Whitley, 139 Ark. 255, 213 S. W. 369; Steptoe v. St. Louis, I. M. & Southern Ry. Co., 119 Ark. 75, 177 S. W. 417; St. Louis, I. M. & Sou. Ry. Co. v. Belcher, 117 Ark. 638, 175 S. W. 418; St. Louis, I. M. & Sou. Ry. Co. v. Spillers, 117 Ark. 483, 175 S. W. 517; St. Louis, I. M. & Sou. Ry. Co. v. Humbert, 101 Ark. 532, 142 S. W. 1122; St. Louis, I. M. & Sou. Ry. Co. v. Ramsey, 96 Ark. 37, 131 S. W. 44, Ann. Cas. 1912B, 383; Paragould & M. Ry. Co. v. Smith, 93 Ark. 224, 124 S. W. 776; St. Louis S. W. Ry. Co. v. O’Hare, 89 Ark. 120, 115 S. W. 942; St. Louis & S. F. Ry. Co. v. Minor, 85 Ark. 121, 107 S. W. 171; Kansas City Sou. Ry. Co. v. Lewis, 80 Ark. 396, 97 S. W. 56; Kansas City Sou. Ry. Co. v. Cash, 80 Ark. 284, 96 S. W. 1062; Lane v. Kansas City So. Ry. Co., 78 Ark. 234, 95 S. W. 460; St. Louis, I. M. & So. Ry. Co. v. Landers, 67 Ark. 514, 55 S. W. 940; Kansas City, F. S. & M. Ry. Co. v. King, 66 Ark. 439, 51 S. W. 319; Railway v. Shoecraft, 53 Ark. 96, 13 S. W. 422.

According’ to Nelson’s testimony, lie saw the dog in a place of safety between the tracks and four or five feet from the track on which the caboose was standing. Nelson saw the dog standing there as the engine and caboose started backing np. He was keeping a lookout, and Was keeping it efficiently; indeed, he was the only person on the train who conld have kept it. Witness did not see the dog start across the track, but he heard it yelp, and, as he looked, he saw it “kick back out from under the train.”

The case is governed by that of Nelson v. Missouri Pacific R. R. Co., 172 Ark. 1053, 292 S. W. 120. In that cáse a dog ran, according to the finding of the .jury, under a train after the engine had passed it. In that case the plaintiff had requested the court to charge the jury that, if the dog was killed by the train, it was immaterial as to what part of the train struck the dog. In affirming the action of the trial court in refusing this instruction we said: “Under these circumstances (that of a dog running under a moving train) it would not do to say that it was immaterial that cars following the engine killed it, for no lookout, however constant or effective, could have prevented the dog from running under the train. To hold otherwise would render a railroad company liable for any animal killed, regardless of the circumstances under which it was killed, and the law has never been so declared. ’ ’

The judgment must therefore he reversed, and the cause will he remanded for a new trial.

Mehaffy, J.

('dissenting). As stated in the opinion by the majority, the question for decision is whether the undisputed testimony overcomes the presumption of negligence arising from the fact that the train had struck the dóg.

It is true, as stated in the opinion, that Nelson testified that he took the engine and caboose and started backing up and saw the dog was standing between the tracks; and, as the caboose was passing the dog, it ran under the rear end and was run over, but it is perfectly plain from his own testimony that he did not see the dog run under, and that he could not, according to his own testimony, know whether the dog ran in front of the caboose and was killed or ran under the side. He says: “I saw the dog standing there as we started to pass, but was not looking at the dog when he started under.” The dog was standing between the tracks four or five feet from the track on which this train was operated; was standing there when the train started. This witness also says that he did not stop to pay any particular attention to the dog. It appears from this witness’ testimony that when he started the train up he saw the dog within approximately four feet of the track; that he did not look at it any more and paid no further attention to it. There is no testimony that he gave any alarm or did anything to prevent killing the dog or to frighten it away. If the brakeman told the truth, after seeing the dog, he paid no further attention to it; did not sound any alarm; did not know whether the dog had started across the track or not, and did not testify to having done anything or having taken any precaution at all to avoid injuring the dog or to see whether it was going on to the track.

I agree with the statement in the opinion of the majority that the jury has no right to arbitrarily disregard the testimony of any witness, hut I do not agree that it was arbitrary for the jury to disregard Nelson’s testimony. There is nothing in the record to show that they disregarded it, either arbitrarily or otherwise. If everything Nelson told was true, it is not, in my judgment, sufficient to overcome the statutory presumption of negligence.

It is stated in the majority opinion that no fact or circumstance was offered in -evidence which contradicts or conflicts with Nelson’s testimony. Nelson’s testimony does not undertake to show that any care was exercised at all, and while it is true that we have many times held that the jury cannot arbitrarily cast aside the testimony of any witness, it is also a well-established rule that the credibility of a witness and the weight to be given to his testimony is a question for the jury and not for the court.

In reversing this case, I think the court has passed not only on the credibility of the witness, but the weight to be given to his testimony. The majority opinion said that Nelson was keeping a lookout and keeping it efficiently. On the contrary, his own testimony shows that, if he saw the dog there, he paid no further attention to it, and if he looked out at all, there is no evidence tending to prove that he did. He doesn’t say so, and no other witness testifies with reference to this matter. If he had been keeping a lookout, he would have been bound to see the dog when it started across the track. It may be that the brakeman could not have avoided killing the dog, but the testimony does not show this, and I think in this case that, the credibility of the witnesses and the weight to be given to his testimony being for the jury, the jury had a right to determino whether the presumption of negligence was overcome by the testimony of the brakeman, who himself said that he paid no attention to the dog after he saw it between the tracks. Mo. Pac. Ry. Co. v. Edwards, 178 Ark. 732, 14 S. W. (2d) 230.

I therefore think that the case should be affirmed.

Justice Humphreys agrees with me in this conclusion.


author: Smith, J.

text:
    Johnson v. Flynn.
    Opinion delivered March 25, 1929.

      Price Shofner, for appellant.

      Carmichael & Hendricks, Wallace Townsend and 8. S. Jefferies, for appellee.
   Smith, J.

W. H. Singleton entered into a contract with the commissioners of a street improvement district in the city of Little Rock to do certain construction, and, in order that he might be able to make the bond required, Henry Johnson, who had sold him the cement to be used on the job, wrote the Southern Surety Company, which later made the bond, advising that, if the bond were made, he would “not hold the Southern Surety Company liable for anything’ he may owe us,” and, “this release is given for the express purpose of inducing the Southern Surety Company to execute the above mentioned bond fcr W. H. Singleton. ’ ’

As a further inducement to the surety company to execute the bond, C. M. Flynn, who was not interested in the- enterprise except to aid Singleton in securing the contract, executed an indemnifying bond in favor of the surety company. To further aid -Singleton in meeting his payroll and in securing the- material until he had received an estimate on work done from the commissioners, Flynn indorsed Singleton’s note at the bank for a thousand dollars. The bank took, as additional security for this loan, an assignment by Singleton of funds coming to him from the district under his construction contract, which assignment was in writing, and was duly accepted by the commissioners of the district. Flynn was compelled to pay the note to the bank, and when he did so he took over the assignment given the bank by Singleton. In addition to this, Flynn advanced Singleton $350 in cash. When the improvement had been completed, there was not due Singleton a sum sufficient to pay all persons who had made advances to him on his contract, and this litigation arose over questions of priority, the- commissioners having paid into court the balance due on the contract.

Johnson claimed a priority by reason of the fact that he had sold the contractor material which entered into and was consumed by the construction of the improvement, predicating his claim upon an analogy to the mechanics’ lien statute; while Flynn claims a priority by virtue of the assignment of the funds due the contractor. The other creditors deny that either Johnson or Flynn have any valid claim to priority, and they insist that all the creditors should share- in proportion to their accounts in the distribution of the fund in court.

The court held that Flynn was entitled to first collect the thousand dollars assigned to the. bank by Singleton, and that he and Johnson and all other creditors should share proportionately in the distribution of the balance, and this appeal is from that decree.

It appears to be conceded that Johnson was the only creditor whose account was for material which had entered into the construction of the improvement and for whose use an action might have been maintained on the bond of the surety company. Pierce Oil Corporation v. Parker, 168 Ark. 400, 271 S. W. 24; Heltzel Steel Form Co. v. Fidelity & Deposit Co., 168 Ark. 728, 271 S. W. 325; Southern Surety Co. v. Simon, 172 Ark. 924, 290 S. W. 960; Goode v. Ætna Casualty & Surety Co., 178 Ark. 451, 13 S. W. (2d) 6. It is therefore insisted that Johnson has a valid claim to priority. It is the contention of appellant, Johnson, that he has a statutory lien against ihe street improvement for the amount of the material furnished by him, but that he has no method of enforcing the lien, and that a court of equity should therefore impress this lien upon the fund in court, because he alone, of all the contractors, had a lienable claim, or one which could be enforced against the surety on the contractor’s bond under the above cited cases.

If Johnson had a lien, it would be under § 6906, C. & M. Digest; but he has no lien. Oliver Construction Co. v. Williams, 152 Ark. 414, 238 S. W. 615. He could have none, because his -material entered into the construction of a public street, and it is because there can be no lien in such cases that § 6913, C. & ML Digest, was enacted, which requires the contractor who engages to construct public improvements to execute a bond conditioned to pay “all indebtedness for labor and material furnished in the construction of said public building, or in making- said public improvements.” Johnson might have maintained an action on the bond executed by the contractor, but he waived this right as an inducement to the surety company to make the bond. He has therefore no rights superior to any other creditor, and the court was correct in so holding-.

We are also of the opinion that the court was correct in ordering the claim of the bank, which Flynn took by subrogation, to be first paid. Flynn was compelled to pay a note on which he was secondarily liable, and he is therefore subrogated to all the rights of the payee. Briscol v. American Southern Trust Co., 176 Ark. 401, 4 S. W. (2d) 912. One of these was the right to collect the order given upon and accepted by the commissioners of the district for a thousand dollars before the other creditors had become creditors.

The decree of the court below appears to be correct, and it is therefore affirmed.


author: Humphreys, J.

text:
    Hightower v. Stillwell.
    Opinion delivered March 25, 1929.

      Gustave Jones and J. H. Wharton, for appellant.

      Fred M. Picltens, for appellee.
   Humphreys, J.

This is a suit in replevin brought before R. W. Bandy, J. P., of Union Township, in Jackson County, to repossess a motor-boat taken up by appellants on the morning of December 16, 1927, under § 8733 of Crawford & Moses Digest, which is a part of the salvage act of Arkansas. The section referred to is as follows:

“"When any boat, vessel, raft or other property shall be lost or wrecked, and in a perishable condition, upon any river in this State, or making a boundary of this State, any person may take up and secure the same at or near the place where found. ’ ’

On the trial in the magistrate’s court judgment was rendered in favor of appellants, from which an appeal was taken to the circuit court of Jackson 'County, where, upon trial de novo, the circuit court instructed a verdict for appellee, and rendered a judgment in accordance therewith, from which is this appeal.

Appellants testified, in substance, that they captured the boat floating down the river about three and one-half miles from Newport, but were unable to tow it upstream with their small boat, so pulled it into an adjoining overflowed field and tied it to a trée; that they went home for breakfast, and, after eating, returned and pumped the water out of the boat, and ran it by its own power back to Newport, and tied it up above the ferry; that, after tying it up, one of the appellees, Sylvester Stillwell, appeared and claimed it, but refused to pay salvage for the recovery thereof; that they told him not to move the boat, and went to the office of the justice of the peace and made an affidavit as takers-up of the boat under the salvage act; that, upon their return, Sylvester Stillwell had taken possession of the boat and removed it to the other side of the river, and tied it to his houseboat; they then brought replevin to recover possession thereof, but Sylvester Stillwell furnished cross-bond and retained it. Their testimony was corroborated by other witnesses introduced by them.

Sylvester Stillwell testified that the boat was owned by D. A. Pox, but that he had had it in charge himself for over a year' by agreement with Pox; that, preparatory to taking a trip in the boat on December 16, 1927, he cleaned it up and filled the gasoline tank the day before; tliat when he got up the following morning the boat had disappeared, and that he employed D. H. B.obbit, who owned a gasoline boat, to take him in search of it; they went down the river about twenty miles, and, not finding it, returned, and found it tied up above the ferry; he told Hightower it was his boat, and asked him how much he charged for bringing it back; that Hightower said he wanted one-tenth of its value, which he refused to pay, but offered him five or ten dollars for his trouble, which Hightower refused to accept; that Hightower and Bobbit then got into a dispute on the bank over capturing the boat, during which time he untied same and took it across the river and tied it to his houseboat; that appellee then brought suit for the boat.

At the conclusion of the testimony each party requested a peremptory instruction in his favor and requested no other instruction. The only question therefore presented by the .appeal for determination is whether the verdict of the jury, directed by the court, is sustained by any substantial- evidence. Although salvage seizures entitle the salvor to retain possession of a boat until salvage is paid, the boat must be “lost or wrecked, or in a perishable condition.” It is practically undisputed that it was neither lost nor wrecked nor in a perishable condition at the time of its capture. It had only drifted about three and one-half miles from its mocring, was in a g-ood state of repair and able to run by its own motor power as soon as the water had been pumped out. The party who had it in charge was in dose pursuit of it, and would have caught it had appellants not towed it into an adjoining field, where it could not be seen from the channel of the river. It does not appear that it was leaking sufficiently to have sunk. Certainly il cannot be said that the undisputed evidence showed that the boat was lost and in a perishable condition when captured. Whether the boat was lost was at least a disputed question of fact within the meaning of the salvage act, and appellants are bound by the adverse verdict upon that point, as there is substantial evidence in the record in support thereof.

No error appearing, the judgment is affirmed.


author: Kirby, J.

text:
    Arkansas National Bank v. Price.
    Opinion delivered March 25, 1929.

      J. V. Walker and B. R. Davidson, for appellant.

      W. A. Dickson and W. N. Ivie, for appellee.
   Kirby, J.

The appellees, judgment debtors, and their grantees of the lands sold at the execution sale necessarily sold and purchased same subject to the lien of the judgment. The appellant had the right accordingly to the execution of his judgment against the said lands levied on, notwithstanding their sale or transfer. The court below recognized such right, and refused to enjoin the sale of said property under the execution, but did order corrected and amended the execution first issued by appellant, reducing the judgment to the balance due after crediting thereon the amount shown to have been paid. The fact that the court ordered the clerk to issue and deliver to the sheriff “a specific execution directing the sheriff,” and also ordered him to levy said execution on all real estate owned by the debtors or either of them in the county at the the timé of the rendition of the judgment and any real estate acquired by them thereafter prior to 4 months before the date of their adjudication in bankruptcy, in no wise changed the nature of the writ as an execution, so far as the right of redemption thereunder is concerned. The execution was levied and the property sold under the procedure prescribed for the sale of property under execution, and the judgment debtors and their grantees purchasing the property subject to the judgment lien, were entitled to redeem same from the execution sale thereof, as the court correctly held. Sections 4329 and 4330, C. & M. Digest, 23 C. J. 714, § 27; 10 R. C. L. 1346, § 138; Beard v. Wilson, 52 Ark. 290, 12 S. W. 567.

The appellant had the right to control the execution, to stop the sale of the property upon which it was levied, at any time, and his right to bid and purchase was in no wise limited or destroyed by any representations the judgment debtors or their grantees made at the execution sale challenging the validity thereof. It admits that it only made one bid in order to start the bidding, that it did not desire to purchase the land, and was entirely willing and desirous of its bringing its reasonable value at the sale, and even offered, in its suit to enjoin the officers and grantees of the judgment debtors from completion of the redemption and execution of the conveyances, to allow a credit upon the judgment of from three to four and five times the amount bid on the property, conceding the same to be the reasonable value thereof at the time of the execution sale.

The purchasers under their conveyances from the judgment debtors acquired all the interest owned by such debtors, subject only to the lien of the judgment and the execution thereof against it. They had the right as grantees of such judgment debtors to redeem the property from the sale under the execution in accordance with the terms of the statute providing therefor, and, having done so by payment of the required amount to the clerk, in accordance with the statute, they acquired all the interest in the land, free from any incumbrance of the judgment, lien, which was satisfied, so far as they were concerned, by the execution sale. If therefore the judgment creditor, having the right-to subject this property to an execution sale for satisfaction of his judgment, failed to realize the value of the property sold by bidding only a nominal amount because of its redemption by the grantees of the judgment debtors for the price at which the property was sold, it was his own fault, since he knew what his rights were, and failed to bid more than the amount for which the lands were sold under execution.

The lands were sold under execution according to the undisputed proof, and it can make no difference here that it was claimed to have been a specific execution, since it was not a judicial sale within the meaning of such term, from which no redemption could be had.

We find no error in the record, and the judgment is affirmed.


text:
    Coffman v. Bottoms.
    Opinion delivered March 25, 1929.

      Jackson & Schoonover, for appellant.

      Smith & Blackford, for appellee.
   Kirby, J.

This appeal is prosecuted from a judgment on a promissory note against appellants, on appeal from the justice court. The note was for $200, made November 20, 1926, due twelve months after date, payable to the order of W. G-. MeClamroch Company, bearing 10 per cent, interest from date until paid,’the interest to be paid semi-annually, and to become part of the principal and bear interest if not paid when due. The note was joint and several, signed by Alice Coffman and Gr. A. Davies as makers. It was indorsed by the payee by W. O. Johnson, for value received, to Dock Bottoms, ap-pellee herein, without recourse.

Appellants admitted the execution of the note, but denied liability thereon, alleging that they were induced to execute same by the representations of appellee, the owner of the note, that he would protect them from any liability thereon. In support of their contention they introduced in evidence a written memorandum dated December 21, 1926, directed to W. G-. Johnson, signed by Alice Coffman, signature witnessed by G. A. Davies, stating she owed'H. G. Tate the sum of $200' on a note signed by her, past due, which she was unable to pay, and that, if Johnson would satisfy Mr. Tate for the sum, he was authorized to add same to the amount owed Johnson, with an agreement to pay 10 per cent, interest, “and you can add the same to the mortgage you have against my land, which same shall be secured by said mortgage the same as if mentioned therein. ’ ’

Davies testified that Bottoms came to him, about the time the note became due, and told him that Griff Tate owed him some, and that he owed the McClamroch Company some; that he wanted to get his money out of Tate if he could, and asked him and his brother about signing a renewal note to Tate. Witness ’ brother refused to sign a renewal note, and witness told Bottoms that he did not care to' sign it. Bottoms told him that, if he would help him fix it so he could get his money out of Tate, he would fix it so witness could get his money,- and be safe; that McClamroch held a mortgage on Mrs. Coffman’s land, and that Johnson would take a lien on the property to secure the note, and that witness signed the note with this understanding. He would not have signed it if it had not been for the fact that Dock Bottoms told him he would see that he was protected on it; that the statement to Johnson was written and presented to him before he signed the note. When the note became due, Bottoms told witness, Davies, that he would have to pay the note, but to take this statement or order of Mrs. Coffman’s to Johnson, and go to Cunningham, who had bought the place, and get his money. That Bottoms had the order from Mrs. Coffman with the note to Grover Johnson. The order from Mrs. Coffman to Johnson was brought to appellants by Tate when they executed the note sued on, in renewal of a note held by him'.

The court held that appellee was a bona fide holder of the note sued on, that the obligation of it could not be varied or contradicted by a separate written order introduced in evidence, apparently relating to it, nor by parol testimony, and directed a verdict for appellee, and rendered judgment accordingly.

The undisputed testimony shows that the note sued on was executed in renewal of a. note' by the makers due to the said Tate, to MoClamroch Company, his debtor for a like amount, and appellee became the holder thereof in due course before maturity. Such being the case, no error was committed in directing a verdict against appellants, and the judgment is affirmed.


author: Mehaffy, J.

text:
    Shaw v. Conway.
    Opinion delivered March 25, 1929.

      Terry & Morrow, for appellant.

      George F. Hartje, for appellee.
   Mehaffy, J.

The appellant filed suit in the Faulkner Chancery Court, stating that he was a master plumber engaged in the general plumbing business in the city of Little Bock, Arkansas, under the firm style and name of Shaw Gras & Plumbing’ Company; that he is an experienced plumber, and employs experienced and high-class men, and, in compliance with the laws of the State of Arkansas, city of Little Bock, paid privilege tax for 1928, and obtained license from the city of Little Bock, which gave him a right to maintain an office in said city, to do a general plumbing business during the year. That he obtained a contract from the city of Conway, and that the city of Conway, through its mayor, demanded a privilege tax or license fee of $25 before permitting him to do the work; and they informed Shaw that he or.any of his men proceeding to do the work without paying the $25 would be arrested under the city ordinance.

Neither party sets out the 'Ordinance in the abstract, but they set out certain portions of it, showing that the ordinance requires that all persons, firms or corporations engaged in the plumbing business shall first pay to the city collector a license fee of $25 per annum, payable the first day of each year, and that any person or corporation failing or refusing to comply with the requirements of the ordinance shall be deemed guilty of a misdemeanor, and, upon conviction, fined in any sum not less than $5 nor more than $25.

It is alleg’ed in the complaint that the ordinance is arbitrary, unworkable, contrary to and conflicting with the laws of the State of Arkansas; that the city of Conway is without authority and power to pass said law, which is unenforceable and without effect, and restricts the right to engag-e in the occupation of plumbing, and is not an ordinance for the protection of the health and welfare of the city; was passed with the idea and expectation of obtaining revenue, not for the benefit and protection of the city; that the ordinance does not provide for a board of inspectors or public health officers. It is also alleged that the examination and inspection are not to regulate plumbing in any way for the health and benefit of the city, but for restraint of an occupation, and does not protect the public health; that Shaw does not maintain an office in the city of Conway, and is not attempting to open one; that he has no remedy at law, and asks that the mayor and the city of Conway be enjoined from hindering him with his work.

The response to the petition alleged that Conway was a city of more than 6,000 people dependent upon the water and sewer systems, and that it was necessary to regulate and supervise the installation of plumbing in the city; that it had an inspector to supervise same, whom it paid $125 per month, and that the ordinance complained of was passed for the purpose of regulating the installation of plumbing, and, for the purpose of assisting and defraying the expenses and superintending the same, a fee of $25 per annum was charged.

The testimony of Replogle showed that he had .worked at his trade practically all his life; was a master plumber, and that he 'did the work for Shaw in Conway on two jobs; maintained no office in Conway; that Shaw paid a license or privilege tax in Little Rock, and that the city of Conway refused to give him a permit until he had paid the $25 license fee to operate in Conway. They did not require an examination; did not try to ascertain whether he was qualified or to find out what his experience was, but simply told him he would have to pay the $25.

The mayor of Conway testified that the ordinance was passed for the regulation of plumbing; that Conway has no occupation tax; that there are four plumbers in the city, but the city does not attempt to say who shall engage in plumbing business. The plumbing inspector 'inspected all plumbing before it was covered up. Conway had no city board of health. The inspector was not a plumber, and there was no board to examine plumbers in Conway. The inspector was paid a salary of $125 a month.

Jones, the inspector, testified that his previous occupation was carpenter; that he had been working around buildings about twenty years; took special training- in Little Rock under the State Board of Health; that there were five plumbers in Conway; some months their inspection fees and licenses paid his salary; he inspected all plumbing done in Conway; made three trips. He was sanitary inspector, but had no connection with the board of health. There was no board of examiners for plumbing.

The clerk and recorder testified that he issued licenses, but did not attempt in any way to ascertain the ability of applicant as to his knowledge of plumbing. The city has no board to examine applicants.

Mr. Replogle, in rebuttal, testified that he knew sanitary plumbing; knew when it was put in whether it was sanitary or not; takes years of experience to know sanitary plumbing.; requires four years to become journeyman plumber, and would take more study of, plumbing and heating, and he should take an examination and belong to the master plumbers of the State to be a master plumber.

The appellant’s first contention is that the city of Conway did not have the right to charge the $'25' fee or tax; that, since Shaw paid his privilege tax in the city of Little Bock, and was not attempting to open an office in Conway, the city of Conway had no right to demand the $25 fee; and, among other things, relies on § 7618 of Crawford & Moses ’ Digest, which reads as follows:

“Provided, no person, firm, individual or corporation shall pay a license fee or tax mentioned in this act in more than one city in this State, unless such person, firm, individual or corporation maintains a place of business in more than one city, and the license charged and” collected shall be for the privilege of doing business or carrying on a trade, profession, vocation or calling in the city where such trade, profession, vocation or calling is situated.”

It is therefore contended by appellant that, since he paid the tax in Little Bock, he was not required to pay it in any other city. And it is also contended that the ordinance of the city of Conway was in conflict with and contrary to act 166 of the .Acts of Arkansas of 1925, and was therefore void; and for that reason the city of Conway had no authority to demand an inspection fee of $25.

Act 166 of the Acts of 1925, which appellant contends makes the city ordinance of Conway invalid, is an act to secure the registration of plumbers and the supervision and inspection of plumbing and drainage in cities having a system of sanitary sewerage. It provides, among other things, that, in every city having a system of sanitary sewerage, a board of examiners shall be appointed consisting of four members, two of whom shall be master plumbers and two journeymen, and that there shall be added to the board of health of every city not having a board of examiners as herein provided, four members, all of whom shall be plumbers, two of whom shall be master plumbers and two journeymen plumbers. It also provides for an examination of every applicant by the board, to ascertain his competency or fitness, and also provides for the appointment by the mayor of one chief plumbing inspector. Section 1 of the act provides that hereafter any person engaged in or working at the business of plumbing in a city having a system of sanitary sewerage, either as a journeyman or master plumber, or any person installing or placing any plumbing fixtures or materials, shall first receive a certificate in accordance with the provisions of the act. The act provides that the examination shall be of such a character as to thoroughly test the applicant’s ability or knowledge of the plumbing trade.

There is no ordinance of the city of Conway requiring any examination at all; there is no privilege tax; no requirement that any person shall pay a tax or license fee for engaging in the trade; but the ordinance of the city of Conway simply provides for inspection of all plumbing work done in the city, and provides for a fee of $25 from each person who engages in the trade in the city, for the purpose of paying the expenses of inspec-. tion. It is not in conflict with act 166, above referred to, and the ordinance does not require the person who works at'the trade in Conway to pass any examination or have any knowledge of plumbing, but it is purely a regulation and requirement for inspecting the work done by any plumber in Conway.

“As the business of plumbing is so intimately connected with the public health, especially in the crowded urban centers, where scarlet fever, typhoid fever, diphtheria, and kindred diseases, may become epidemic, the sound view is that such occupation is obviously a proper subject of reasonable police regulation.” McQuillin on Municipal Corporations, 2d ed., § 1117.

Section 7494 of Crawford & Moses’ Digest, among other things, proyides, in speaking of the power of the city to make and publish ordinances: ‘ ‘ They shall have power to make and publish such by-laws and ordinances, not inconsistent with the laws of this State, as to them shall seem necessary to provide for the safety, preserve the health, promote the prosperity and improve the morals, order, comfort and convenience of such corporations and the inhabitants thereof.”

It is not disputed that plumbing is a proper subject of reasonable police regulation, but it is contended that, if one has license to follow the trade of plumbing in the city of Little Rock, he can do work in any other city in ‘the State of Arkansas without being required to pay any fee for the inspection of the work.

Section 7684 of Crawford & Moses’ Digest provides, among other things, that the city shall have power to prevent or regulate the carrying on of any trade, business or vocation of a tendency dangerous to morals, health or safety, or calculated to promote dishonesty or crime.

Of course, a city in Arkansas could not pass any ordinance unless the law authorized it to do so. There is ample authority, however, in the law authorizing cities in Arkansas to pass laws requiring inspection of plumbing, and they may charge a fee to any person who follows the trade of plumbing, or does any work of that character in any city, to help pay the expenses, of inspection. The uncontradicted proof in this case shows that the purpose of the ordinance is to inspect all plumbing done in the city for the protection of the inhabitants of the city, and not for the purpose of revenue. The city could not pass an ordinance like this for the purpose of raising revenue.

This court has said: “The amount the city council has a right to demand for a license fee depends upon the extent and expense of supervision made necessary by the business in the city or town where it is licensed. A fee sufficient to cover the expenses of issuing the license and to pay the expenses which may be incurred in the enforcement of such police and sanitary inspections as may be lawfully exercised oyer the business, may be required. The amount necessary to meet all expenses cannot in all cases be ascertained in advance, and expenses reasonably anticipated may be included. In fixing the fee the city may take notice of local conditions and the extent and character of police regulation required.” Newport v. Young, 173 Ark. 785, 293 S. W. 711; Fayetteville v. Carter, 52 Ark. 301, 12 S. W. 573, 6 L. R. A. 509; Texarkana v. Hudgins Produce Co., 112 Ark. 164, 164 S. W. 736; Kirby v. Paragould, 159 Ark. 29, 251 S. W. 374; North Little Rock v. Kirk, 173 Ark. 554, 292 S. W. 993.

This court has also said: “In exercising the power conferred upon it under the general welfare clause of the statute, the city council has broad discretion to determine what is necessary for the public welfare, safety, comfort and convenience of the inhabitants of the city. The city council likewise has a similar discretion in determining what character of structure may be erected and maintained upon, over, or under the streets, alleys and sidewalks of the city, so long as such structure does not constitute per se. a common nuisance. * * * And, unless such discretion was exercised in an arbitrary, discriminatory and unreasonable manner, or in such manner as to invade the constitutional rights of property, the court will not interfere and declare the ordinance void.” Sander v. Blytheville, 164 Ark. 434, 262 S. W. 23.

The city of Conway not only has more than 6,000 population, but it has three colleges, with approximately 2,000 students, and there can be no question about the necessity for supervising and inspecting the plumbing work done in such a city.

As stated in McQuillin on Municipal Corporations, plumbing is intimately connected with the public health, and especially in crowded centers, or schools or colleges like they have in Conway, the inspection of the plumbing, in order to protect the health of the inhabitants, is important, and certainly a proper subject of police regulation.

The ordinance of the city of Conway is a valid ordinance, and not in conflict either with the statute referred to or the Constitution. And, under the statutes of Arkansas, the city was authorized to pass the ordinance in question. •

The decree of the chancellor is affirmed.


text:
    Johnson v. State.
    Opinion delivered March 25, 1929.

      J. 8. McKnight and Elbert Godwin, for appellant.

      Hal L. Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee.
   Mehaffy, J.

The appellant was indicted for murder and convicted of voluntary manslaughter, and sentenced to three years in the penitentiary. To reverse this judgment he prosecutes this appeal.

The deceased, Leroy Barter and .Arthur and Howard Porter had been drinking some, and they were with the appellant before the difficulty occurred, and apparently were all friendly. The difficulty occurred in the rear of the drugstore, and the deceased had knocked the appellant down, and appellant struck deceased with a knife, inflicting a wound, causing Barker’s death.

We do not set out the testimony, because appellant does not contend that the evidence is not sufficient to support the verdict, and he does not complain or object to the instructions given to the jury. He urges a reversal of the judgment on the sole ground alleged in his sixth assignment of error in his motion for a new trial, which reads as follows:

“ Because the court erred in refusing to permit the following question to be propounded to B. Hollingsworth, a witness for the defendant: ‘What did he (Johnson) say to you immediately after you went in there ? ’ And erred further in refusing to permit said witness to answer: ‘He said the boys were back there, and had a crowbar and a hammer after him, and had threatened his life.”

When Hollingsworth was being examined, appellant asked him: “Did you see Clarence Johnson immediately after the fight? A. Yes sir. Q.' Where? A. Standing in front of the counter in the drugstore. Q. What was he doing? A. Crying. Q. What did he say to you immediately after you went in there ? ’ ’

The attorney for the State objected, and the objection was sustained. Defendant’s counsel then said: ‘ ‘ The witness would testify, if permitted, ‘He said the boys were back there, and had a crowbar and hammer after him, and had threatened his life’.”

Thereupon the court asked the witness: “Did you ask him what was the matter before he made this statement? A. Yes sir. Q. That was his reply? A. Yes, sir.”

The attorney for the State objected to witness’ statement: “He said the boys were back there, and had a crowbar and hammer after him, and had threatened his life.”

The appellant insists that the court erred in refusing to admit the above testimony, first, because it is contended that it was a part of the res gestae. Just how long this was after the fight or difficulty is not shown by the evidence. The evidence shows that the place where witness was when he saw the appellant after the difficulty was approximately 30 feet from the place where the difficulty occurred. The fight occurred in the back part of the drugstore, and this statement was made after the fight and after the appellant had come in to the front of the drugstore.

Time is not necessarily the controlling element in the matter of res gestae. The general rule is that a declaration sought to be proved must have been contemporaneous with the event established as the principal act. The declaration need not be precisely coincident in point of time, but it must be a part of the transaction, tend to explain it, and must be voluntary and spontaneous, and made at a time so near as to preclude the idea of deliberate design. But a declaration made, no matter how soon after the transaction, that is not voluntary and spontaneous, but which is merely a narrative of what had occurred, is not a part of the res gestae. 10 R.. O. L. 978.

After the fight was. over, and the parties were entirely separated, the deceased and his associates being in the back part of the drugstore and the appellant in the front of the drugstore, witness Hollingsworth asked him what was the matter, and, in response to this question by Hol-lingsworth, he made the statement, which was simply a narrative of what had occurred; not spontaneous, not a part of the transaction, and was not admissible in evidence. Nó hard and fast rule, can be laid down as to the admissibility of evidence as a part of the res gestae. This is true because the circumstances presented in different cases vary so widely that the courts must determine the admissibility of such evidence from the circumstances as presented by the particular case under consideration.

In order to constitute' a statement or declaration part of the res gestae, it must accompany and be contemporaneous with the act of which it is alleged to be a part. Otherwise it amounts to nothing more than a narrative of what has been done. 22 C. J. 448 et seq.

Counsel for appellant cite and rely on Outler v. State, 154 Ark. 598, 243 S. W. 851. The court in that case said, speaking of the conduct and declaration of appellant and his brother:

“It was competent for the State to show the joint conduct and declarations of appellant and his brother immediately after the blow was struck. The evidence showed that the men walked into the room immediately after the blow was struck, and that they were cursing and declaring that deceased had drawn a gun. These declarations were competent as a necessary part of the transaction under investigation. ’ ’

And, in support of the rule announced and declarations in the above case, the court cited Childs v. State, 98 Ark. 430, 136 S. W. 285, another case relied on by appellant. In this case, Childs v. State, the court said, in discussing the admissibility of the testimony to the effect that the brother of defendant struck deceased over the head:

“The testimony was competent. There was sufficient evidence, we think, to justify the conclusion that defendant and his brother were acting together in making the assault upon deceased. Besides, the evidence was a part of the res gestae, and it was necessary to make this proof to fully and correctly detail and set out the facts of the assault. The defendant’s brother was present the whole time, and struck deceased as soon as the defendant ceased shooting him. It was all a part of one transaction, and it would be difficult to give a connected and correct account of the occurrence without stating all that was said and done concerning it. Under the law, all that occurred at the time and place of the shooting which had reference thereto or connection therewith was part of the res gestae

In the Childs case it will be observed that the striking and shooting was held by the court to be all a part of one transaction. Certainly, the statement made by the appellant in this case, after he had left the other parties, and in response to a question by Hollingsworth, could not be said to be a part of the one transaction. And certainly there would be no difficulty in giving a connected and correct account of the occurrence of the fight in the back of the drugstore without the testimony as to what appellant said when he went up to the front of the drugstore. Neither of the cases relied on supports the contention of appellant.

The other authorities cited by appellant are cases where the facts are different from the facts in this case, and in those cases the testimony admitted as part of the res gestae was. a part of the transaction, and the circumstances were such that it would have been difficult to give a connected and correct account of the occurrence without the testimony which was admitted as a part of the res gestae.

Any act or declaration which is done or said after the fight was over is not a part of the res gestae and not admissible as a part of the transaction. State v. Ramsey, 48 La. 407, 20 Sou. 904, Spivey and Lynch v. State, 114 Ark. 267, 169 S.W. 949.

Appellant next insists that the evidence was proper in rebuttal or in explanation of the testimony of W. H. Tobin, Jr. It certainly did not rebut the testimony of Tobin, because there is nothing in the statement of .Hol-lingsworth that contradicts anything that Tobin said. And the only way that it could be said to explain Tobin’s testimony was that Hollingsworth said, when appellant came up to the front of the store, “he said that the.boys back there had a crowbar and a hammer after him, and had threatened his life. ’ ’ This, however, does not either contradict or explain Tobin’s testimony. Tobin doesn’t say that these things did not occur, but he says that he went back when he heard a noise, and, just as he got to the back of the drugstore where the parties were,h.e saw the appellant strike the deceased with a knife; that he did not see anything in deceased’s hand. At the time the blow was struck, Tobin testifies that he saw the parties, but immediately turned and went back; he does not say that they did not have a hammer or crowbar, but he testifies that the crowbar back there was about four feet long, and the hammer a ¡common clawhammer. There is therefore no merit in the contention that this testimony would rebut or explain any of the testimony of To'bin.

The testimony offered was not only not a part of the res gestae, but was a self-serving declaration, and for that reason was not admissible. 1 R. C. L. 470; Richardson v. State, 123 Miss. 232, 85 Sou. 186; Spivey and Lynch v. State, 114 Ark. 267, 169 S. W. 949; Greenleaf on Evidence (15 ed.), § 108.

In the case of Walker v. State, 138 Ark. 517, 212 S. W. 219, it was said:

“There was no. error in the ruling refusing to permit a witness to testify that appellant said, immediately upon his return after chasing Bryant across the street, that ‘he followed him to prevent him from getting a club/ .This declaration by the appellant was not a spontaneous emanation growing out of the act of stabbing Bryant. The fight was then over, and, although but a few moments had passed, appellant had had time to reflect, and the declaration, under the circumstances, was in the nature of a' self-serving declaration, and it could not be properly considered as a part of the res gestae. Res gestae are the acts talking for themselves, not what people say when talking about the act. In other words, they must stand in immediate causal relation to the act —a relation not broken by the interposition of voluntary individual wariness seeking to manufacture evidence for itself.'’ Walker v. State, 138 Ark. 517, 212 S. W. 219; 1 Wharton on Evidence, § 259; Elder v. State, 69 Ark. 648, 65 S. W. 938, 86 Am. St. Rep. 220; Baker v. State, 85 Ark. 300, 107 S. W. 983.

The court did not err in its refusal to admit the testimony offered, and the judgment of the circuit court is affirmed.