author: 'Smith, J. Smith, J.,

text:
    Stallings v. Galloway-Kennedy Company.
    Opinion delivered April 12, 1926.
    Corporations — authority of officers to execute mortgage to themselves. — The authority of the officers of a private corporation to execute a mortgage for valuable consideration conveying the corporate property to themselves individually cannot be ques- • tioned by subsequent creditors of the corporation, where neither the stockholders nor existing creditors are complaining.
    Appeal from Monroe Chancery Court; John M. Elliott, Chancellor;
    affirmed.

      Gregory & Holtzendorff, Cooper Thweatt and Bogle & Sharp, for appellant.

      S. S. Jefferies and Lee & Moore, for appellee.
   'Smith, J.

Prior to 1914 F. M. Kennedy was engaged in the sawmilling business, with his wife as an equal partner, under the firm name of F. M. Kennedy Company. O. C. Galloway owned a sawmilling business which was operated under the name of the J. B. Galloway Company. In 1914 the Kennedy Company and the Galloway Company merged and formed a corporation, which was chartered under a corporate name of Galloway-Kennedy Company, hereinafter referred to as the company. The capital stock of the corporation was $20,000, of which Galloway and his wife each owned 22% per cent., and Kennedy and his wife each owned 25 per cent. The remaining five per cent, of the stock was owned by a brother of Galloway. The corporation prospered, and large dividends were earned, those for the year 1919 being between twenty and twenty-five thousand dollars. In 1918 the capital stock was increased to $75,000, which was owned in the same proportions as the original capital stock. In 1920 came the financial slump, which greatly disturbed the lumber market. The company had at that time thirty thousand dollars worth of timber on the river bank, all of which was paid for, much of which floated away, was stolen or rotted. In addition, a fire destroyed much property belonging to the company. This property was only partially insured, and all the insurance was not collected.

The company borrowed from the Merchants’ & Planters’ Bank of Clarendon, Arkansas, the sum of $20,000, and to secure the same executed a mortgage covering all the corporate assets. This mortgage was duly recorded. Later, and on the 10th day of February, 19'20, the company borrowed from Galloway ¡and Kennedy individually the sum of $18,000, and to secure the same executed a second mortgage on its corporate assets to Galloway and Kennedy, who had each loaned $9,000 to the company. This loan was evidenced by a note due one year after date and payable to O. C. Galloway and F. M. Kennedy. On November 14, 1921, Kennedy made the following indorsement on the back of the note: “As security for $11,233.33-, I hereby transfer to Carrie C. Kennedy my one-half interest in this note. ’ ’ And a little later Galloway made an indorsement on the note reading, “For value received, I hereby transfer this note to Emma Galloway.” Emma Galloway was the wife of O. C. Galloway and a sister of F. M. Kennedy, and Carrie Kennedy was the wife of F. M. Kennedy. On the dates the note was so indorsed Kennedy and Galloway ■ indorsed on the margin of the record where the mortgage was recorded a transfer of their respective interests in the mortgage to their wives.

The company became involved, and was sued by a number of its-creditors. The first of these suits was commenced November 4, 1921, by C. R. Stallings, who made both Galloway and Kennedy parties because of their failure, as officers of the company, to comply with § 1715, C. & -M. Digest, requiring officers of a corporation to file a verified annual report of the affairs of the corporation. The contract out of which this suit by Stallings arose was dated May 4,- 1920, and the corporation made no defense. Galloway and Kennedy answered, and alleged that they had complied with the statute by filing the report. Stallings recovered' judgment on December 7, 1921, against both the corporation and Galloway and Kennedy, and an appeal was prosecuted from that judgment to this court. It appeared that the report had been prepared and filed, but it had not been verified, and we held on the appeal that the filing of an unverified report did not comply with the law, and the judgment against Galloway and Kennedy was affirmed because of their noncompliance with the statute. Galloway v. Stallings, 154 Ark. 16. Later other creditors of the corporation, whose suits were commenced after the institution of the Stallings suit, recovered judgments against both the company and Galloway and Kennedy. The sole ground of liability asserted against either Galloway or Kennedy in any of these suits arose out of their failure to file the report required by § 1715, C. & M. Digest.

Stallings’ judgment amounted to $5,230, and upon this judgment he caused an execution to be issued, which was levied upon the corporate property and upon certain lands and town lots owned by Galloway individually in the city of Clarendon, and on certain other lands belonging to Kennedy individually. There was a sale under this execution, and ¡Stallings became the purchaser of most.of the lands sold, and among other lands purchased by him was the mill site,' for which he paid $500. The lands and lots sold at this execution sale lacked $734.66 of bringing enough to satisfy Stallings’ judgment, with the interest and costs. Mrs. Galloway took an assignment from Stallings of his interest in the unsatisfied judgment.

After this execution sale the Merchants ’ & Planters’: Bank filed suit to foreclose its mortgage, and all the judgment creditors were made parties defendant, as were also Galloway and Kennedy individually and the Galloway-Kennedy 'Company, and Mrs. Galloway and Mrs. Kennedy as the apparent owners of the second mortgage executed ¡by the Galloway-Kennedy Company to Galloway and Kennedy. This foreclosure suit was commenced August 16,1922, and a decree of sale was rendered. This mortgage was originally for the sum of $20,000, but had been reduced by payments thereon to $6,417.13, and for. this amount judgment was rendered. A commissioner was appointed to sell the mortgaged property, and at the sale made by the commissioner the property ordered sold was sold to Mirs. Kennedy for the sum of $9,800. The commissioner duly reported this sale, and when his-report came on for confirmation the judgment creditors filed exceptions thereto and objected to its approval. - It was alleged in these exceptions that bidding had been stifled, but no testimony was offered to support that charge.

By appropriate pleadings these creditors question the validity of the mortgage from the company to Galloway and Kennedy, and also the assignment of their respective interests to their wives, it being charged that there was no authority or consideration for the execution of this mortgage, and that the transfer by Galloway and Kennedy of their interests therein, if the mortgage was valid, was without consideration, and was done for the fraudulent purpose of cheating and defrauding the judgment creditors of Galloway and Kennedy. These judgment creditors prayed that the mortgage from the company to Galloway and Kennedy be canceled, and that the assignment thereof to Mrs. Galloway >and Mrs. Kennedy be declared void, and they asked the court to adjudge the priority of the judgment liens of the respective creditors. It is conceded, however, that it will not be necessary to adjudicate the question of priority if tbe mortgage from the company to Galloway and Kennedy, and the assignment thereof, be upheld, for the reason that the excess of the fund derived from the commissioner’s sale over the debt due the bank (and the company has no other assets) will not be sufficient to discharge the second mortgage.

All the parties who are attempting to enforce judgments against the company or Galloway and Kennedy individually were made parties to the foreclosure suit of the bank, and the final decree in that cause adjudicated the rights of the parties as follows: The court found that the mortgage from the company to Galloway and Kennedy was valid and constituted a lien prior and superior to any of the judgments, and that the transfer by Galloway and Kennedy of their interests in the mortgage and the note which it secured was not a voluntary, transfer but was made for a valuable consideration. The report of the sale of the corporate property to Mrs. Kennedy was approved, and the court decreed that the commissioner pay over to Mrs. Galloway and Mrs. Kennedy the excess in his hands, after paying the bank, derived from the sale, which Mrs. Kennedy had paid to the commissioners, one-half to each, and the judgment creditors have appealed. Other facts will be stated in the opinion.

The judgment of (Stallings is prior in time to all the other judgments, and under this judgment the corporate property was sold, subject to the mortgage of the bank, and subject also to the mortgage from the company to Galloway and Kennedy, if that mortgage is valid, as it was of record before the contract was entered into out of which the Stallings suit against the company arose.

The first question which naturally arises is whether the company mortgage to Gallowaly and Kennedy is valid. We think it is. The authority of the officers of the company to execute it is questioned; but, in answer to this objection, it may be said that no stockholder of the company has ever questioned the authority of the corporate officers to execute this mortgage, and none of the judgment creditors were creditors of the corporation when the mortgage was executed and placed of record. The court below specifically found the fact to be that the mortgage was based upon a valuable consideration, and of the correctness of this finding we entertain but little doubt. Certainly the finding is not clearly against the preponderance of the evidence.

It was shown by the testimony of the cashier of the Merchants ’ & Planters ’ Bank that separate accounts were kept in the bank with the corporation, and with Galloway and Kennedy, each of whom had an individual account. The cashier of the bank testified that the books of the bank show that on February 7, 1920, a charge of $9,000 was made against the personal account of Kennedy, and on the same date a charge of $9,000 was made against the personal account of Galloway, and the account of the company showed a deposit of $18,000, said deposit consisting of two items of $9,000 each, and on the same date the bank issued to the company a draft, payable to the White River Lumber Company, for $17,594.72. Galloway and Kennedy each explained how they obtained the money deposited to their individual accounts, and that the Galloway-Kennedy Company had a pending lawsuit with the White River Lumber Company, which was settled by paying that company the $17,594.72 evidenced by the draft above mentioned, and that they loaned the corporation the money for that purpose.

The next question which arises is whether the assignment of this mortgage to the wives of the mortgagees was fraudulent. The court below found that it was not, and we do not think that finding is against the preponderance of the evidence.

As an evidence of the fraudulent intent of Galloway and Kennedy, it is argued that their wives paid nothing for the stock of the corporation owned by them. As has been said, the corporation was organized in 1914, and, if it be conceded that Mrs. Galloway and Mrs. Kennedy paid nothing for their stock- — -a fact which they deny — we see no fraud in this. There were then no creditors. Both Galloway and Kennedy were personally solvent, and so also was the corporation itself. Indeed, it was very prosperous until the financial disaster of 1920 brought ruin to so many people. ' The booty of the corporation showed the ownership of this stock by Mrs. Galloway and Mrs. Kennedy, and there is iio contention that there was ever any attempt to conceal this fact. There was no reason why Galloway and Kennedy might not have given the stock to their wives, if the transaction was in fact a gift.

Mrs. Galloway and M¡rs. Kennedy each had separate bank accounts; and each owned separate property. Both Galloway and Kennedy show the money received by them from their wives within three years of the date of the assignment of the mortgage to them. We do not set out the testimony on this subject, as it would' serve no useful purpose, but both Galloway and Kennedy became indebted to their wives by the appropriation and use of the dividends paid on the corporate stock owned by their wivés. Cash money was borrowed, as is evidenced by checks drawn on individual accounts carried by these ladies.» Property was sold which, they individually owned, and each of these ladies owned G.overnment bonds, which their husbands sold and used the proceeds of these sales. In these various ways both Galloway and Kennedy had become indebted to their wives in amounts largely exceeding any sum these ladies may receive from the commissioner under the order of the court.

- In this connection it may be stated that there is no question in this case about the wives' of Galloway and Kennedy permitting their husbands to so use their property as that it was a basis of credit. Indeed, the undisputed fact is that Galloway and Kennedy themselves became liable, not because of any personal obligation on their part, but only because they had made an abortive effort to comply with the law in filing the annual report of the corporation of which they were the executive officers. ‘ Credit had been extended solely to the corporation. The obligations-which were reduced to judgments were those of the corporation for which Galloway and. Kennedy, became liable only through the omission to verify the report which they filed in an attempt to comply with the law. Galloway v. Stallings, supra.

We are cited to the numerous cases 'in which this court has held that transactions between husband and wife affecting the rights of creditors, especially when the husband is insolvent at the time of the occurrence, are to be scrutinized with care in passing upon the good faith of .the transaction. The case of Davis v. Cramer, 133 Ark. 224, is especially pressed upon our attention. In that case it was said: “A man must be just to creditors before he can be generous to relatives. Therefore where an insolvent debtor makes a voluntary transfer of his property, which is not exempt under the law from his debts, to those who are near of kin, whether he intends it as a fraud or not, it operates as a fraud on his creditors, for the reason that such a transfer hinders, delays or defeats them in the collection of their claims. Wilkes v. Vaughan, 73 Ark. 174; Simon v. Reynolds-Davis Gro. Co., 108 Ark. 164.”

Numerous other cases to the same effect are cited, but we do not decide anything which impairs the authority of those cases. We do hold, however, that they are not applicable to the facts of this case. It may be conceded’ that Galloway and Kennedy became insolvent by reason of the judgments rendered against them as officers of the Galloway-Kennedy Company by reason of their failure to file a report complying with the law. ¡But the assignment of the mortgage was not voluntary. On the contrary, the court below found — and we think that finding is not contrary to the preponderance of the evidence —that the assignment was based upon a valuable and sufficient consideration.

It is true this assignment to the wives of the assignors proved to be a preference of them as creditors against the other creditors of the corporation who later became judgment creditors of Galloway and Kennedy. But that fact does not defeat the assignment. The assignment was not challenged within the time and manner which would have defeated it as a preference of the wives over the other creditors.

In the case of Waters v. Merit Pants Co., 76 Ark. 252, this court said: “It is settled by the decisions of this court that an insolvent husband,.when justly indebted to his wife, may, without fraud, prefer her claim to that of other creditors, and make valid appropriation of his property to pay it, even though the result be to deprive other creditors of the means to satisfy their claims. But such transactions between husband and wife are viewed by the courts with suspicion, and the perfect good faith of the transaction must be established by proof. Where the wife asserts, as a consideration for conveyance of his property to her, a claim of debt against her insolvent husband for money loaned to him many years previous, no note or other written evidence of an agreement to repay being shown to have been executed, and the alleged debt having become stale by long lapse of time, as in this case, her bare statement should be corroborated by some other evidence of the existence of a valid debt, before the courts can accept it in support of the conveyance. For a discussion of the law on this subject reference is made to the recent case of Davis v. Yonge, 74 Ark. 161, and nothing need be added here on the subject.”

The demands here are not stale. None of the items comprising them were three years old, and some were only a few weeks old, and there are evidences of the genuineness of these items which cannot be disregarded, but which are in fact undisputed.

The various judgment creditors discuss the question of the priority of their liens. The court below held that .Stallings had ceased to be a judgment creditor, by-reason of the execution sale and his assignment of the balance due on his judgment to Mrs. Galloway, and upon this finding the other creditors, whose judgments were rendered at subsequent terms of the court, insist that they have prior and superior claims to the surplus in the commissioner’s hands.

We do not consider it necessary to decide the question of priority among these creditors, for the reason that the lien of the mortgage from the company to Galloway and Kennedy is prior and superior to these judgments, and the fund here in litigation is insufficient to discharge that lien, which we hold was acquired by Mrs. Galloway and Mrs. Kennedy for a valuable and sufficient consideration.

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

Smith, J.,

(on rehearing). It is insisted in the brief filed in support of the petition for rehearing that Galloway and Kennedy did not.assign their respective interests in the notes secured by the mortgage given by the Galloway-Kennedy Company to them until after judgments had been rendered against them,' and that therefore the assignees took subject to the right of the judgment creditors to subject the mortgaged property to the payment of their judgments. . ..

In answer to this contention, it may be said that Kennedy assigned his interest in the mortgage to his wife on the 14th day of November, 1921, which was prior to the rendition of the .judgment in favor of the appellant Stallings, which was the first of the judgments to be recovered; and Galloway assigned his. interest in the mortgage to his wife on June 3,1923, which was prior to the rendition of the judgment in favor of the appellant Thweatt, but subsequent to the rendition of the judgment in favor of the appellant Stallings.

Only two of the judgment creditors have appealed from the decree of the court below,- which is set out in the original opinion, these being Stallings and Thweatt, and it appears from that opinion that Mrs. Galloway .took an assignment from Stallings of his interest in the unsatisfied judgment in his favor. He therefore is in no position to complain, for Mrs. Galloway now owns such interest in that judgment as has not been satisfied; and, as to appellant Thweatt, it may be said that he did not recover his judgment until after both Galloway and Kennedy had assigned their respective interests to their wives; and, as also appears .from the original opinion, no creditor complained of this preference within the time when complaint might effectively have been made.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Kansas City Southern Railway Company v. Cecil.
    Opinion delivered April 26, 1926.
    1. Railroads — liability for damage by fire. — Under Crawford & Moses’ Dig., § 8569, a railway company is liable, not .only' for injury to or destruction of property by such extraordinary hazards as the operation of a locomotive engine, but also by the acts of its servants or employees, such as burning off the right-of-way or building fires thereon or in proximity thereto.
    2. Railroads — damage by fire — sufficiency of complaint. — Under Crawford & Moses’ Dig., § 8569, a complaint alleging that defendant railway company “caused and permitted fire to escape” from its right-of-way, is sufficient, in the absence of a motion to make the complaint more specific.
    3. Railroads — liability for damage by fire — negligence.—In an action under Crawford & Moses’ Dig., § 8569, against a railway company for damage to property by fire caused by the acts of its employees in permitting fire to escape from its right-of-way it was unnecessary to allege or prove negligence on the part of defendant or its employees.
    4. Railroads — liability for damage by fire — attorney’s fee.— In an action against a railway company for damage to property by fire under Crawford & Moses’ Dig., § 8569, it was proper to render j'udgment for a reasonable attorney’s fee as incident to a j'udgment for damages.
    Appeal from Polk Circuit Court; B. E. Isbell, Judge;
    affirmed.

      Jmnes B. McDonough! and Joseph R. Brown, for appellant.

      Lake, Lake <& Carlton, for appellee.
   Smith, J.

Appellee sued the appellant railway company, and for his cause of action alleged “that the defendant, the Kansas City Southern Railway Company, on the 3d day of October, 1922, through the negligence of its employees,- who were engaged in the operation and work of said railway company along its right-of-way, caused and permitted fire to escapé from the defendant’s right-of-way and spread- over on plaintiff’s land, on which his orchard was located, and to burn over same; the result of said negligence being- the burning and destroying of 406 peach trees and one-fourth of a mile of rail fence, to the plaintiff’s damage in the sum of $1,100.’-’

The answer of the appellant railway company denied specifically all the allegations, of the complaint;

The jury returned a verdict for appellee in the sum of $380, and, after this had been done, appellee filed a motion for the allowance of an attorney’s fee, and upon hearing this motion the court fixed a fee for appellee’s attorneys of $75, and judgment was rendered for -the damages assessed by the jury and the attorney’s' fee assessed by the court. ‘‘

For the reversal of this judgment, it is insisted that the complaint stated a cause of action under which it' was necessary for appellee to proVe that the fire which-destroyed- appellee’s orchard was caused by the negligence of some one of appellant’s employees, and that no negligence was shown, and that the judgment should be reversed for this reason;'and it is also insisted that, in no event, should an attorney’s fee have been allowed.

■Appellee insists that his causé of action was predicated upon § 8569, C. & M. Digest, which reads as follows: “All corporations, companies or persons, engaged in operating any railroad wholly or partly in this State, shall be liable fot the destruction of; or injury to, any property, real or personal, which'may be caused by fire, or result from any locomotive, engine, machinery, train; car or other thing used upon said railroad, or in the-operation thereof; or which may result from, or be caused by, any employee, agent or servant of such corporation, company or person upon or in the operation of such'railroad, and the owner of any such property, real or personal, which may be destroyed or injured, may recover all such damáge to said property by suit in any court', in the county where the damage occurred, having jurisdiction of the amount of such damage, and upon the trial of any such action or suit for such damage it shall not. be lawful for the defendant in such suit or action to plead or prove as a defense thereto that the fire which caused such injury was not' the result of negligence or carelessness upon the part of such defendant, its employees, agents or servants; but in all such actions it shall only be necessary for the owner of such property so injured to prove that the fire which caused or resulted in the injury originated or was caused by the operation of such railroad, or resulted from the acts of the employees, agents or servants of such defendant, and, if the plaintiff recover in such suit or action, he shall also recover a reasonable attorney’s fee, to be ascertained from the evidence in the case by the court or jury trying the same. Provided, that the penalty prescribed by this section shall apply only when such employee, agent or servant is in the discharge of his duty as such.”

This statute has several times been construed by this court, and it will be necessary only to call attention to the construction placed upon the statute in these prior decisions.

In the case of Clark v. St. L. I. M. & S. R. Co., 132 Ark. 257, which cited the case of Kansas City Sou. Ry. Co. v. Wilson, 119 Ark. 143, the statute was considered and construed.

We there said that, while" this statute was somewhat involved and ambiguous, it was the intention of the Legislature, in enacting it, to make railroads liable, not only for injury to or destruction of property caused by such extraordinary hazard as the operation of a locomotive engine, etc., but also for the damage by fire caused “by the positive affirmative act of the servants or employees of railway companies in the operation of the railroad,” and it was there also said that “the language (of the statute). is sufficiently broad to include such acts as the burning off and clearing up of the right-of-way or roadbed, or such acts as the building’ of fires on the right-of-way, or in proximity thereto, while engaged in the work of repairing the railroad track or roadbed for the operation of trains.” We there quoted with approval from the case of Missouri Pacific R. Co. v. Cady, 24 Pac. 1088, the following language from the Supreme Court of Kansas: ‘ ‘ The burning of dry grass, weeds and other combustible material which annually accumulates on the right-of-way is caring for the roadway and track.” See also Valley Lbr. Co. v. Westmoreland Bros., 159 Ark. 484.

Appellant insists that appellee did not allege, and did not prove, a cause of action under this statute, even as construed in the Clark case, supra, for the reason that it was not alleged that the Railway company had set out the fire; nor was that fact proved. We think, however, that the allegations of the complaint, copied above., should be construed as containing this allegation. The complaint does allege that the railway company “caused and permitted fire to escape from the defendant’s right-of-way. ’ ’ This allegation is not very definite or specific, but there was no motion to make it more definite and specific.

Concerning this allegation appellant says: “The complaint herein does not charge that the employees of the railroad company caused, or started, the said fire, which resulted in the damage complained of. It charges the employees caused and permitted fire to escape from the defendant’s right-of-way to the plaintiff’s land. It necessarily follows that a cause of action has not been stated under the statute referred to. The said statute applies only to a case where the employee has caused the fire. ‘Cause’ here is used as a verb, and is synonymous with the words ‘produce,’ ‘to bring about.’ ‘Cause’ means ‘to produce or bring in existence,’ says the Century Dictionary and Webster’s International Dictionary. The above meanings are also given the word in the following cases:” (which are cited).

We think the allegation that appellant ‘‘caused” the fire charged that appellant “produced it” or “brought it about,” that is, by some positive affirmative act the railway company caused the fire. The complaint does not state what this act was, hut, as we have said, there was no motion that this should be required.

It is true the complaint alleged that the railway company had “negligently caused and permitted fire to escape from the railroad’s right-of-way,” and the instructions given by the court submitting appellee’s theory of the ease required a finding of negligence, but this was an unnecessary allegation, and appellant was not prejudiced because this additional burden of proof was placed upon appellee.

The court gave, at the request of appellant, instructions which required the .jury to find, before returning a verdict for appellee, that the employees of the railway company, while engaged in the operation and work of the'railroad, caused and permitted fire to escape from the railroad right-of-way on to appellee’s land. The jury was also told that “if the fire did not originate from any act of negligence of the employees of the défendant in setting out a fire for the purpose of clearing up the roadbed or right-of-way, and, if there was no negligence on the part of the defendant, a verdict must be rendered for the defendant.”

In view of this instruction and the verdict returned by the jury in appellee’s favor, the jury must have found that the fire which destroyed appellee’s orchard was set out by the employees of the railway company while clearing up the right-of-way, and also made the unnecessary finding that this was negligently done.

Appellant insists that there is not only no testimony showing negligence, but that there is no testimony to support the finding that its employees set out the fire which destroyed the orchard. Passing upon this question we must, of course, give to the evidence which tends to support the verdict its highest probative value, and, when thus viewed, it may be stated as follows:

Jess Bass, who was twenty-one years old at the time of the trial, testified that he was a schoolboy when the fire occurred in, 1922, and that, as he was returning from school, he saw a fire southeast of the orchard, burning along the right-of-way, and that the fire was only about one hundred yards from the orchard, and that, when he passed again the next day, he saw that the fire had continued through the woods, to the orchard, and had burned the fruit trees.

Hal Barnes testified that he noticed where a pile of cross-ties had been burned on the right-of-way of the railroad, and that he saw some embers there freshly burned. These embers were about sixty or seventy-five feet from the point where the orchard cornered with the right-of-way fence, and the grass was burned from the point where the orchard cornered with the railroad right-of-way fence to the place where the pile of embers was on the right-of-way, and it looked as if it were recently burned.

The section foreman admitted that he had burned off the right-of-way, but he testified that the portion near appellee’s orchard had been burned off on September 30, which was three days before the burning of the orchard, which occurred on October 3, and that the pile of ties had been burned in August.

The questions of fact in the case have been passed upon by the jury, and there has been a finding adverse to appellant’s contention as to the origin, of the fire, and in our opinion the testimony is legally sufficient to support the verdict.

As to the attorney’s fee allowed by the court, it may be said that no complaint is made that the fee is excessive if the railway company is liable therefor, and on the question of liability it may be said that, inasmuch as we have held that the statute applies to damages resulting from a fire which the employees of a railroad set out on the right-of-way, and which is, allowed to escape therefrom, the court was not in, error in allowing the fee. In other words, if the statute applies, and the railroad is liable thereunder (and we have concluded that this liability was alleged, and the jury has found that it was proved), the party damaged has the right, as an incident to a recovery under the statute, to recover also a reasonable attorney’s fee, and it was therefore proper to render judgment for the attorney’s fee as well as for the damage itself.

No error appearing, the judgment is affirmed.


author: Wood, J.

text:
    Holt v. State.
    Opinion delivered May 10, 1926.
    1. Criminal law — harmless error. — On a trial for grand larceny, refusal of the court to require the sheriff to return money taken from defendant’s person at the time of his arrest was not prejudicial where he was represented at the trial by counsel of his own selection.
    2. Criminal law — placing accused in penitentiary. — An order directing the sheriff to place the accused in the penitentiary for safe-keeping with instructions to the keeper not to permit any one to visit accused except his attorneys without an order from the sheriff held not prejudicial.
    3. Criminal law — resetting case in defendant’s absence. — The resetting of a felony case is not such a substantive step in the trial of a case as requires the presence of the accused when it is made; and where it appears that accused was granted a further postponement of the case, no prejudice could have resulted from resetting the case in his absence.
    4. Criminal law — admissibility of statements by accused’s wife. — Statements made by accused’s wife in his presence, made at the time both were arrested on the charge for which accused was tried, with reference to her taking a package which he handed her, was admissible.
    5. Larceny — allegation of ownership. — An indictment for larceny in taking the property of S. is sustained by proof that it belonged to S. and wife jointly, tout was in the exclusive possession of S.
    Appeal from Garland Circuit Court; Earl Witt, Judge;
    affirmed.

      C. Floyd Huff, for appellant.

      H. W. Applegate, Attorney General, and Harden Moose, Assistant, for appellee.
   Wood, J.

Bob Holt was indicted and convicted of the crime of grand larceny. The indictment charged that he, in the county of Garland and State of Arkansas, in March, 1925, did feloniously steal, take and carry away the sum of $55,000 in gold, silver and paper money, the property of one Pete Sirbu. He was sentenced by judgment of the court to imprisonment in the State Penitentiary for a period of five years, from which judgment is this appeal.

Upon the arrest of the appellant there was taken from his person certain jewelry and other personal property and the sum of $147. Before his trial, and while the appellant was incarcerated in the Garland County jail, and before his case was set for trial, he moved the court to require the sheriff to return to him the money taken from his person at the time of his arrest. The court refused, and appellant makes this a ground of his motion for a new trial. There was no error in the court’s ruling. The record does not show that the appellant was prejudiced in the trial of the cause by reason of this ruling of the court. It does not appear that the appellant, because of such ruling, was not represented at the trial by counsel of his own selection, for, although the attorney who appeared for him and made the motion, notified the court that he desired to withdraw from the defense of the appellant after the motion was overruled, nevertheless the court appointed the same counsel appellant had employed, to represent him, and appellant was so represented at the trial.

Therefore, since the ruling could not have prejudiced appellant on the merits of the cause, it does not constitute grounds for reversal of the judgment. The court can only reverse for errors of the trial court prejudicial to the rights of the appellant on the trial of the merits of the cause.

It is next contended that the court erred in directing the sheriff of Garland County to deliver the appellant to the warden of the State Penitentiary for safekeeping from November 18, 1925, to January 24, 1926. But it appears from an agreed statement of facts set forth in the record that, at the time the court ordered the sheriff to deliver the.appellant to the warden of the State Penitentiary for safekeeping, the prosecuting attorney represented to the court that the facilities for safekeeping of the appellant in, Garland County were faulty. Thereupon the court made the order, with directions to the keeper of the State Penitentiary not to allow any one to visit the appellant except his attorneys without order from the sheriff of the county. 'Since the appellant, by -this order of the court, was not deprived of his constitutional right to confer with his counsel, appellant was in no manner prejudiced by the ruling of the court directing his incarceration in the State Penitentiary for safekeeping until such time as his trial might be had.

In the agreed statement of facts set forth in the bill of exceptions, it is shown that “shortly after the appellant’s case had been set for December 2, 1925, the circuit court was advised by the prosecuting attorney that it would be impossible for the State’s witnesses to be in Hot Springs on that date, and said cause was continued for resetting, and defendant’s attorney was notified thereof; that, prior to said continuance, C. Floyd Huff, as attorney for the defendant, was notified by the prosecuting attorney of the names of the witnesses to be. used by the State of Arkansas in the prosecution of the indictment for 'grand larceny, and was further advised that, if there were any witnesses whose testimony he desired taken, the State of Arkansas was ready at any time to cross any interrogatories that he might propound; that oh the date of the first setting of said case for trial in the circuit court, to-wit, the 2d day of December, 1925, for the reasons above set forth by the State of Arkansas for a continuance and resetting, the court held no session on that date; that thereafter, on the 11th day of January, 1926, the circuit court, in the absence of O. Floyd Huff, his attorney, set the trial of this defendant for the 25th day of January, 1926, and immediately served notice thereof upon .his attorney, C. Floyd Huff, of the setting of said ease for trial, and the defendant at the time' was in the walls of the State Penitentiary at Little Rock, Arkansas, where he remained until the night of January 24, 1926, as above stated.”

The appellant contends that the resetting of his case on the 11th day of January, while appellant was in the penitentiary, without notice to him. of the action of the court, and without his presence or the presence of his attorney, was a substantive step in the cause, and deprived him of a constitutional right. But we are convinced that the change in the date set for the trial, as evidenced by the above, recital of the record, did not result in any prejudice to the rights of the appellant. The date set for appellant’s trial was changed from December 2, 1925, to January 25, 1926, thus giving the appellant more time to prepare for his trial. Nevertheless, appellant, on the latter date, moved for a further postponement of the trial. Therefore it clearly appears that appellant could not have been prejudiced by the postponement of the trial from December 2, 1925, to January 25, 1926, as appellant was still asking for further time. The setting and resetting of cases are mere preliminary, steps for the trial. They are not substantive steps that require the presence of the, defendant and his counsel and such steps as necessarily result in his prejudice. In order to constitute-prejudicial and therefore reversible error, it would be necessary to show affirmatively that the' appellant’s rights were in some- manner prejudiced by the resetting of his case. In the case of Mabry v. State, 50 Ark. 492-498, we said: “We do not depart from the rule that the probability of prejudice by an order made in the absence of a defendant prosecuted for a felony is all that need be shown to reverse a judgment- of conviction (Bearden v. State, 44 Ark. 331, and cases cited), but adhere to its corollary, that we will not reverse for that cause when it is plain the defendant has lost no advantage by-his absence. ”

The above recitals of the record plainly show that the appellant lost no advantage by the postponement of Ms cause from. December 2, 1925,. to January 25, 1926, but, on the contrary, it appears, from appellant’s act moving for a further postponement, that the ruling of the court in resetting the cause was to appellant’s advantage rather than to his prejudice.

Garland Van Sickle, one of the officers who went to Detroit after appellant and his wife, after they had been indicted and arrested for grand larceny, testified that appellant’s wife, in appellant’s presence, stated that they knew the laws of Arkansas, and that “any time your husband hands you anything you have got to take it. ’ ’ She stated she had the package rolled up in a newspaper; that her husband gave her the package, and she took it and got in a taxicab and went to her apartment. She did not state what was in the package. Witness asked them, when they were sitting there in the little room, how they got out of Hot Springs, and one of the two spoke up and said, “We left in a hurry — we left our dinner cooking — we left a chicken cooking.” They said they drove the sedan car to Hope, and took the train there. The statements of appellant’s wife in the presence of appellant were not in the nature of testimony of a wife against a husband. In the recent case of Stotts v. State, 170 Ark. 188, we said: “What the appellant’s, wife said under the circumstances was not in the nature of testimony against her husband, but what was said and done by her was the same as if it had been said and done by some other person. ” That case rules this. The court did not err in admitting the testimony.

The appellant asked the court to instruct the jury as follows: “The court instructs the jury that, if you find from the evidence that the money alleged in the indictment as having been stolen from the prosecuting witness, Sirbu, was not the money of said Sirbu, but was the joint money of Peter Sirbu and his wife, Mary Sirbu, then you will find the defendant not guilty. ’ ’ The court refused tMs prayer, but gave the following’: “The indictment alleges that the property obtained by the defendant in this case was the property of the prosecuting witness, Peter Sirbn; if yon find from the evidence that tbe money alleged to have been taken was the joint property of Peter Sirbn and his wife, or that a part of the property taken was the property of the wife of Peter Sirbn, the proof of ownership in Peter Sirbu of the property alleged to have been taken will be sufficient, if you find from the evidence that, at the time said money was taken, the witness, Peter Sirbu, had the possession thereof, and the right to its exclusive use and control.” The court did not err in refusing appellant’s prayer, which was not an accurate statement of the law applicable to the facts of this record. The instruction which the court gave was a correct declaration, of law applicable to the facts. 'Sirbu testified that the money which his wife brought from Ohio was deposited in her name, but belonged to them both, and either could draw it out. When his wife arrived with the money he counted it, wrapped it in a newspaper,-and put it in his handbag, and later gave it to Hall and Franklin at the Hatterie Hotel. The appellant went under the name of Hall. The testimony was therefore sufficient to warrant the jury in finding that the money was in the exclusive possession and control of Sirbu at the time it was stolen by appellant. Monk v. State, 105 Ark. 12; Joyce on Indictments, page 489, § 427.

There are no reversible errors in the record, and the judgment is therefore affirmed.


author: Hart, J.,

text:
    Oil City Iron Works v. Bradley.
    Opinion delivered May 10, 1926.
    1. Frauds, statute of — promise to pay another’s debt — jury question. — If the evidence is in conflict as to whether a promise to pay another’s debt is independent or collateral, the question is for the jury.
    2. Frauds, statute of — promise to pay another’s debt — when not collateral. — Whenever the main purpose of the promisor is not to answer for another, but to subserve some pecuniary or business purpose of his own, involving either a benefit to himself or damage to the other contracting party, his promise is not within the statute, although it may be in form a promise to pay the debt of another, and although the performance of it may incidentally have the effect of extinguishing that liability.
    3. Frauds, statute of — promise to- pay another’s debt. — A finding that a promise by the vendor of an oil drilling rig to see that laborers employed in drilling an oil well got paid for their wages was independent and not collateral. is sustained by proof that the vendor was interested in having the well drilled, in order that it might collect the price of the rig.
    4. Principal and agent — scope of authority — evidence.—An agent may testify as to his agency and the extent of the authority with which he is clothed.'
    5. Principal and agent — scope of authority. — An agent having the exclusive management of a corporation dealing in oil well drilling rigs had apparent authority to bind the corporation to pay the wages of laborers employed in drilling an oil well where the corporation was interested in having" the well drilled in order to collect the price of a rig.
    Appeal from Hot Spring Circuit Court; Thomas E. Toler, Judge;
    affirmed.
    . STATEMENT OE EACTS.
    B. B. Bradley, D. W. Clark, Truman Works, Jim Coleman, Rufus Robbins and N. C. Phillips brought separate suits in. the justice court against the Oil City Iron Works to recover the amounts alleged to be due them for wages. Each one recovered judgment for the amount sued for, and the defendant appe'aled to the circuit court. The cases were consolidated and tried together in the circuit court.
    According to the evidence for the plaintiffs, they were employed by R.. C. Houston to drill an oil well near Princeton, in Dallas County, Arkansas, during the year 1923. Houston got behind in the payment of their wages, and H. Y. Miller, the agent of the Oil City Iron Works, came to the oil well where the plaintiffs were working and paid part of the plaintiffs in full and the rest óf them part of their wages. Houston again got behind with the wages of the plaintiffs, and they notified him.that they were going to quit work. Miller came to the well again with Houston, and told the plaintiffs that the Oil City Iron Works had sold Houston the drilling' rig and that Houston owed it á balance on the purchase price. Miller told the plaintiffs that, if they would continue work and finish the well,' the Oil City Iron Works would 'see that they got paid for their labor. Miller further told the plaintiffs that, in the event they failed to strike oil in the well that they were digging and Houston should remove the drilling rig and rent it out, the rents would be- paid through the Oil City Iron Works, and that it would see that their wages were paid out of the first rents received for the rig.
    ■’ Miller further stated that, in the event the drilling rig was sold, his company would pay the plaintiffs their wages out of the proceeds of the sale. The plaintiffs relied upon these representations, and returned to -work. They would not have continued to work if Miller had' not assured them that the. Oil City Iron Works would see' that they’got their money. They worked ón a few daysloiiger, and Miller came out one afternoon and gave them a'written notice as follows: •
    ' “You are hereby notified that all- the' drilling machinery, tools, derrick, and-so forth on this' location are the property of the Oil City Ironworks, and that the said Oil City Iron Works is in no wise liable for the payment of any labor bills that ihay hereafter accrue for labor done in and about this well, and you are especially notified that no claifia that you may hereafter'have against any person for any labor so done shall' operate as a laborer’s lien against the said Oil City Iron Works and the above mentioned property.”
    H. Y. Miller was a witness for the defendant-. According to his testimony, he was the agent for the Oil City-Iron Works, and sold the drilling rig in question to R. C. Houston-far $12,500. Five thousand dollars of this amount was paid in cash, abd Houston gave three notes for $2,500 each for the balance of the purchase price. The title in the drilling rig was retained in the' seller until the 'balance of the purchase price should he paid,; Houston made default in the payment of the first note, and Miller lent him $150 to pay the wages of his laborers operating the drilling rig in November, 1923. Miller told the laborers that, if he was in their place, he would work a few days longer, and, if Houston' did not pay them, he would quit. He promised them, if Houston moved the rig and rented it, that the money for the rent would have to come through his company, and he would see that Houston paid their wages.
    On cross-examination Miller admitted that he knew that the plaintiffs had a right to file a lien against the drilling rig for their labor, but stated that he did not make them any promises to keep them from doing so. He stated further that he thought Houston had a good chance to bring in the well that he was drilling.
    The jury returned a verdict for the plaintiffs in the amounts sued for, and from the judgment rendered the defendant has duly prosecuted an appeal to this court.

      G. W. Smith and B. H. Little, for appellant.

      D. D. Glover and John L. McClellan, for appellee.
   Hart, J.,

(after stating the facts). If the evidence is in conflict as to whether the promise is independent or collateral, the question is for the jury. Davis v. Patrick, 141 U. S. 479.

As was said in Emerson v. Slater, 22 How. (U. S.) 28, “whenever the main purpose and object of the promisor is not to answer for another, but to subserve some pecuniary or business purpose of his own, involving either a benefit to himself or damage to the other contracting 'party, his promise is not within the statute, although it may be in form a promise to pay the debt of another, and although the performance of it may incidentally have the effect of extinguishing that liability. ’ ’

Our cases on the subject support this rule. Grady v. Dierks Lumber & Coal Co., 154 Ark. 255; Black Brothers Lumber Co. v. Varner, 164 Ark. 103; and Moraz v. Melton, 167 Ark. 629.

According to the testimony of B. B. Bradley, H. V. Miller, the agent of the Oil City Iron Works, told the plaintiffs that, if they would continue on with the work and finish the well, his company would see that they got paid for their labor. This evidence, in the absence of other attending circumstances, would constitute a collateral contract to pay the debts of R. C. Houston, who had originally employed the plaintiffs to drill the well for him. The jury, however, had a right to interpret Miller’s promise in the light of the surrounding circumstances and his subsequent admissions, and in that light it cannot be said that the verdict of the jury in favor of the plaintiffs is without legal evidence to support it.

The evidence shows that the Oil City Iron Works had sold to Houston a drilling rig for $12,500. He paid $5,000 in cash and gave three notes for the balance of the purchase money. Houston failed to pay the first note, and Miller gave him further time on it. Houston told Miller that the laborers were about to quit work, and Miller lent him $150 with which to pay their wages. Miller went with Houston and saw him pay this money to the laborers. After the payment was made, Miller gave them the written notice which is incorporated in our statement of facts. He had already told the laborers that, if they would continue the work and finish the well, his company would see that they got paid for their labor. He told them further that Houston owed a balance on the purchase price of the drilling rig, and in substance told them that the payment of the purchase price was to be made out of the profits from drilling the well.

When these facts are to be considered, the jury might have found that the Oil City IronWorks was primarily to be benefited by the work of the plaintiffs in drilling the well, because in that way the debt of Houston 'for the purchase price of the drilling rig would be paid to the Oil City Iron Works. In other words, the jury might have inferred that the payment by Houston of the balance of the purchase price of the drilling rig, which amounted to $7,500, depended upon the continued and successful drilling of the oil well. The jury might have inferred from this that the promise of Miller in behalf of the Oil City Iron Works was not one purely collateral, but was made to advance tbe interest of Ms company.

Houston was apparently destitute of any other' prop-' erty, and the successful performance by the plaintiffs of their drilling'operations would enable the-Oil City Iron Works to obtain the balance of the purchase price of the drilling rig: Hence the' jury might have found that the agreement of Miller in’behalf of his company was not a ', collateral contract to the obligation of Houston, but that it was an original promise for the pecuniary benefit of the Oil City Iron Works.

• It is next insisted that, conceding the • promise of Miller to be an original one, it was not within the real or apparent scope of his authority to make it.

We' cannot agree with counsel in this .contention-. According to'the'testimony of H. V. Miller, the Oil City Iron Works was engaged in the business of manufacturing and selling oil and gas well-drilling rigs', supplies and equipment, and he was' ágenfi for' the company. He sold the drilling rig in question to Houston for $12,500. ‘ He received $5,000 in cash and took 'three notes for $2,500 each from Houston for the balance of the purchase money. The title to the'drilling'rig was also'retained in the seller' until the notes were fully paid. Miller had full authority to -sell and collect'for the’rigs and machinery'of the kind" sold to R. C.. Houston. He had the exclusive management and control in the State Of Arkansas of fhe'business of the Oil City Iron Works. Under these circumstances 'it was at least within the apparent, if not the real, scop'e Of his authority to have made a contract with the plaintiffs "to continue drilling the oil well in Order that his' company might be paid the balance of the purchase inonéy of the drilling outfit. ' ' ■ ' '

Ah agent may testify as to his ágency’and" the extent of the authority with which he was clothed. Pine Bluff Heading Co. v. Bock, 163 Ark. 237. As we have just seen,' Miller testified that' he had the exclusive management and control in' the State of Arkansas of the business of the Oil City''Iron Works. The general rule is that a principal is bound by all acts of a general agent which are within, the apparent scope of his authority, whether they have been authorized or not. Security Life Ins. Co. v. Bates, 144 Ark. 345; Battle v. Draper, 149 Ark. 55, and Bartlett v. Yochum, 155 Ark. 626.

It follows that the judgment must be affirmed.


text:
    Nowlin-Carr Company v. Cook.
    Opinion delivered May 10, 1926.
    1. Master and servant — independent contractor. — In an ¿ction ' against an alleged employer and employee for negligence causing injury to plaintiff, evidence held to establish that the alleged employee was in fact an independent contractor,, and that the alleged. employer was not liable for. the negligence of , such independent contractor.
    2. Master and servant — liability of independent contractor.— Evidence held to sustain a finding that plaintiff was injured by the negligence of an independent contractor.
    3. Appeal and error — affirmance of judgment. — Where, upon the same cause of action, the jury returned a verdict for $600 against an alleged employer and $400 against an alleged employee, and the former verdict was not sustained by the evidence, the verdict and judgment against the latter, being sustained by evidence that he was an independent contractor, will toe affirmed.
    Appeal from -Clark Circuit Court; James H, McCollum, Judge;
    reversed as to Nowlin-Carr..Company and affirmed as to Flanagin.

      McMillan <& McMillan and J. A. Sherrill, for appellant.

      W. H. Misc.l and H. B. Means, for appellee.
   Smith, J.

Appellee sued H. Flanagin and the Nowlin-Carr Company jointly for damages alleged to have been suffered by him by reason of the loss of a. finger while operating -an equalizer, saw at- a sawmill which appellee alleged was- operated by Flanagin for the Nowlin-Carr Company.

-The following verdict was returned by the jury: “We, the jury, find for the plaintiff, in the sum of $1,000 as follows: $600 against the Nowlin-Carr Company and $400 against H. Flanagin, ’ ’ Upon this verdict judgment was rendered against Flanagin for $400 and against the Nowlin-Carr Company for $600, and these defendants have appealed from that judgment.

The complaint filed in the case alleged that on August 4, 1923, appellants were engaged in the manufacture of staves, with Flanagin in charge of the mill for the Nowlin-Carr Company. That appellee, who was known to be without experience, was placed in charge of the equalizing saws, and, after working about fifteen minutes, the latch on the carriage, which had become worn, and which, on account of its worn condition, was likely to come loose, did come loose and permitted the carriage, on which appellee was required to place bolts of wood to be conveyed into the equalizing saws, to swing his hand into the saw, and cut off one of his fingers.

At the time of appellee’s injury Flanagin was operating the mill under the following contract for the output of the mill:

“Contract of Sale.
“Made at Arkadelphia, July 2, 1923, between H. Flanagin as contractor and Nowlin-Carr Company as the company.
“Conditions: The contractor sells to the company 400,000 pieces red and white oak staves, delivery to begin September 1 and be completed January 1, 1924; deliveries to be made in carload quantities; stock to be thoroughly seasoned and finished and manufactured so as to prevent shrinkage and dressing and pointing; price to be f. o. b. Arkadelphia, Arkansas, and ranging from $35 to $60.
“If it shall become necessary during the life of this contract to advance any funds to the contractor on stock undelivered, it is well understood that said advance is for the convenience of the contractor, who shall allow the company $10 for each advance ordered. Advances shall be determined on the following basis: The company shall count and measure the stock upon which advances are to be made, and the company will advance the contractor on each one thousand staves inspected on the yard, on which all claims have been paid or which will be paid with the funds advanced, not to exceed the following basis: Payrolls to be made every two weeks by the company on the basis of the actual cost of the labor at the mill and cutting and hauling of the bolts and buying the timber, on the basis of 75 per cent, of the value of the staves, whether on the mill-yard or on the yard at the railroad. No advances will be made on stock unless yarded. Positively no drafts will be honored nor advances made except as above outlined, and not oftener than twice monthly. The total amount of funds to be advanced or outstanding on undelivered stock on this contract shall not exceed $5,000. No funds nor credits derived from shipments or deliveries of staves shall be credited on securities until all unsecured advances have been paid.
“The right to defer advancing funds is reserved in case of strikes, panics, etc.
“The company reserves the right to require indemnity bonds at its own expense. Advances made shall constitute a lien on all stocks, and the contractor agrees to keep all stock free from other liens, and to maintain fire insurance payable to the company covering funds advanced, and to furnish the company with a lease covering the location of the stock for a period sufficient to protect the contract. The company reserves the right to sell the property in the event the contractor attempts to move or sell same without the company’s consent.
“To enable the contractor to perform his part of this contract, it is agreed that the company shall furnish rent-free to the contractor to be operated solely by the contractor without liability to the contractor, a boiler and engine to be furnished contractor f. o. b. loading point, who shall maintain a fire insurance policy in favor of the company, the premiums to be paid equally by the company and the contractor, and the machinery to be redelivered to the company, at Arkadelphia when this contract is terminated. This machinery is furnished to manufacture staves solely for the company. It is further agreed that the company shall be entitled to require delivery of the. staves called, for above and. to charge the. contractor $2.50 per thousand for the undelivered portion thereof, and any portion of said staves refused by the company shall be 'charged to the company, at $2.50 per thousand.”

It was shown in the testimony that the men employed at the mill.were.paid in the following manner: Checks

were furnished Flanagin by the Nowlin-Carr Company, which were filled out by Flanagin for the amounts due the employees to whom the checks were payable, and Flanagin wrote his name across the checks. The checks were then signed by a representative of the Nowlin-Carr Company, and were then delivered by Flanagin to the employees to whom they were payable, and were paid by the bank on which they were drawn, out. of funds belonging to the company.

A witness named McDaniel, who was employed at the mill, was asked for whom he was working, and answered: “Nowlin & Carr, I suppose.” An objection was made to this answer, when witness was asked to state for whom Flanagin was. working, if he. knew, and he answered, “Well, he (Flanagin) told me he was working for Nowlin & Carr just like myself. He was cutting these staves so much a thousand, and he was drawing so much a month there until he checked up.” On his cross-examination the witness testified: “I was working for Mr. Flanagin. He hired me.” He was then asked, “Well, you were not working for Nowlin-Carr?” and answered: “If I was to work fpr you and somebody else sent my checks, I am working for.you; no,matter where my money come from, I am. working..for you.”

. The testimony on the part of both appellants was to the effect that the contract set out above fully and truthfully. stated the relation- between Flanagin and the Nowlin-Carr Company; that Flanagin had sole charge of the operation of the mill; that he employed and discharged all the labor, and that Flanagin alone directed the men what to do and how to do it, and that no one connected with the Nowlin-Carr Company had any control or part whatever in the operation of the mill, except as stated in the contract. Flanagin denied that he had ever stated to McDaniel that he was' working for the Nowlin-Carr Company; but we must assume that the jury credited the testimony of McDaniel on this disputed question rather than that of Flanagin. However, proof of Flanagin’s declaration would not bind the Nowlin-Carr Company nor change the contract under which the mill was being operated.

This contract was in writing, and provided that the Nowlin-Carr Company should pay Flanagin a stipulated price per thousand for staves, and should advance the money to meet the payrolls of the employees, and the" method employed in issuing the checks was adopted in order that the Nowlin-Carr Company might know that there were no liens for labor against the staves on which the advances were made.

Flanagin testified that he bought the machinery from the Arkadelphia Milling Company, of Arkadelphia, and that it was his property, except the boiler and engine, which the Nowlin-Carr Company furnished free of rent.

We think the testimony set out above made no issue for the jury whether Flanagin was operating the mill' for the Nowlin-Carr Company. Certainly Flanagin, although he did not own everything about the mill, was an independent contractor. The law of the subject has been so frequently and thoroughly discussed by this court that we will not again discuss it here. The full discussion and review of the authorities in the very recent case of Moore Lumber Co. v. Starrett, 170 Ark. 92, renders this unnecessary.

We conclude therefore that the court was in error in submitting the question of the liability of the NowlinCarr Company for appellee’s injury.

The causé was submitted to the jury upon, two theories; first, that appellee was known to be an inexperienced man, and was placed at work without any instructions as to the manner in which he should perform the duties of his employment to protect himself from injury; and second, that the latch on the carriage had became defective through wear. We think there was sufficient testimony to carry both these issues to the jury.

Appellee testified that he was a farm-hand, and knew nothing about sawmilling. That he was employed on Tuesday and put to work in the woods, and worked there until Saturday morning, when he asked Flanagin what he had for him to do, and Flanagin told him to run the equalizer. Appellee testified that he told Flanagin he did not know anything about running the equalizer, but that he would try, and Flanagin answered, “Well, you can try, and if you can’t, that’s all a mule can do.” Appellee further testified that no one told him anything, and he just started to work. He had never seen a stave-mill before, nor a bolt equalizer, and his only instruction was to go to the equalizer and do the equalizing. There was a lever for letting the bolts on to the carriage, which carried them to the saws, and this he learned to operate without any instruction. There were two circular saws which sawed off and evened up the two ends of the bolts as the carriage on which the bolts were placed conveyed the bolts into the saws. No one told witness how to hold the bolts as they were conveyed into the saws. Appellee had been at work about fifteen minutes, when his hand came in contact with one of the saws, and he lost a finger. Appellee further testified that, if the latch had held in position, he would not have been injured. Appellee also testified that Flanagin said, immediately after the injury, that he had intended to instruct appellee, but had been busy and bothered about the boilers, and for that reason had not done so. That Flanagin carried appellee to a doctor, and on the way said, “I feel that I am to blame for it; you are the first inexperienced hand I ever put there.” .

Henry Cates, an experienced employee, who had worked at the equalizer, testified that “it seemed like the slide that went back over the rod might have been worn, and that’s what- caused it to jump off; that the weight of the bolt' naturally pulled the carriage into the saw,”

Appellee admitted that he observed the saws and knew the danger of coming in contact with them, but his duties required him to use the saws, and we think there was a question for the jury whether his employer was negligent in failing to instruct Mm how to perform his duties without incurring unnecessary risk of danger, and that there was also a question as to the defect in the machine. The testimony on the part of appellants was to the effect that there was no defect, but this was a question for the jury. We conclude therefore that the question of Flanagin’s liability was a question for the jury.

The judgment in this case against the Nowlin-Carr Company must be reversed, and, as the case has been fully developed, it will be dismissed as to that appellant.

Moreover, the judgment against Flanagin can only be affirmed for $400, for this was the amount of the verdict against him. There was only one cause of action; only one injury; and there could therefore be only one recovery. Of course, two or more persons might be liable for the injury, but the liability would be joint, and not several. Spears & Purifoy v. McKinnon, 168 Ark. 357.

It is true there was a verdict against the Nowlin-Carr Company for $600, and if this were the only verdict we would affirm the judgment pronounced thereon against Flanagin for that amount, but, for some reason not explained in the record, the jury returned a verdict against Flanagin for a smaller amount, and, as we hold that Flanagin is liable, we can affirm the judgment against him only for the amount of the verdict returned against him.

The judgment aguinst Flanagin for $400 is therefore affirmed; that against the Nowlin-Carr Company for $600 is reversed and dismissed.


author: Humphreys, J.

text:
    Knego v. State.
    Opinion delivered May 10, 1926.
    1. Criminal law — introduction of copy of writing. — It was not error to permit a witness to introduce a copy of a written instru- ■ ment where the original was not in the possession of the witness, and was not the basis of the prosecution.
    2. Criminal law — necessity of motion for new trial. — An objection to admission of evidence will not be considered on appeal where it was not included as a ground in appellant’s motion for ' new trial.
    3. False pretenses — .evidence.—In a prosecution for obtaining money from an insurance company by falsely pretending that a certain car with a particular motor number was stolen, it was ■ admissible to prove that defendant subsequently obtained a license in. another State upon the same kind of car having the . same motor number.
    Appeal from Pulaski Circuit Court, First Division; John W. Wade, Judge;
    affirmed.

      ' Reinberger S Reinberger, for appellant.

      H. W. Applegate, Attorney G-eneral, and Barden Moose, Assistant, for appellee.
   Humphreys, J.

Appellant was indicted, tried, and convicted in the circuit court of Pulaski County, First Division, for the crime of obtaining money under false pretenses, and was adjudged to serve a term of one year in the State Penitentiary as a punishment therefor, from which is this appeal.

The testimony introduced by the State showed that appellant traded an old automobile for a Star sedan car, motor No. 220694, to the Pine Bluff Motors Company, agreeing to pay a difference of $584.45 in ten monthly installments' of $58.45 each, which was evidenced by notes; that he signed a contract for the purchase of the car, which contained a charge of $77.50 for “ service charge and insurance”; that the purchase money notes were assigned to the Motors Finance Company, which insured the car on said written application of appellant with the National Union Life Insurance Company; that afterwards appellant procured another insurance policy upon the car from the Home Fire Insurance Company upon the representation that the car was fully paid for and was not insured with any other company; that the latter policy contained a condition that there could be no recovery if there was any other insurance on the car; that both policies insured appellant against loss in case the car should be stolen; that appellant afterwards reported to the Home Fire Insurance Company that the car had been stolen from him in front of the Blue Dragon Cafeteria in Little Rock, Arkansas, and, upon the representation that no other person had any interest therein and that there was no other insurance on- the automobile, he obtained $641.25 from the company in settlement of his claim; that later he made proof of his loss to the National Union Fire Insurance Company and collected $624 from it, which was paid to the Motors Finance Company in settlement of the purchase money notes which he had executed to the Pine Bluff Motors Company; that, after collecting the two policies of insurance, appellant secured a license in Illinois on a Star sedan with the same motor number.

In the course of the trial W. M. Snyder, who sold appellant the sedan, was permitted to testify, over appellant’s objection and exception, that appellant signed a contract for the purchase of the car, which contained an application for insurance thereon, and to introduce' a blank form of said application.

Pinehback Taylor, who was connected with' the Motors Finance Company, and who was local agent of the National Union Fire Insurance Company of Pittsburgh, and who wrote the insurance on the sedan car in that company, was permitted, over the objection and exception of appellant, to introduce an office copy of the application made by appellant for the insurance, the original having been attached to his daily report and sent to his insurance company in Pittsburgh, Pennsylvania.

Appellant testified in his own behalf, and the prosecuting attorney was permitted, over his objection and exception, to interrogate him concerning the destruction by fire of a Nash car in Aurora,‘ Illinois, which he owned, and upon which appellant collected insurance. Appellant’s testimony, in substance, was to the effect that he had no knowledge of an application for insurance being incorporated in the contract for the purchase of the sedan car or that the National Union Fire Insurance Company of Pittsburgh had written a policy upon it, until he was requested to make proof of the loss so that the Motors Finance Company could collect the insurance to pay the purchase money notes which it had bought. Appellant also testified that he applied for insurance in Illinois on the stolen car, believing that it would 'be found, and that he had never seen the sedan after it was stolen.

Appellant first contends for a reversal of the judgment because the trial court permitted witness Snyder to introduce a signed copy of appellant’s application for insurance without first showing that the original was not in existence. The original application had been assigned to the Motors Finance Company, and was not in the possession of the witness when testifying, and besides, this was a prosecution for obtaining ¡money under false pretenses and not a suit based upon the application for insurance. The testimony was competent.

Appellant next contends for a reversal of the judgment because the trial court permitted Pinchback Taylor to testify that appellant signed an application for insurance on the car to the National Union Fire Insurance Company of Pittsburgh, and to introduce a copy thereof, without showing that the original was not in existence. The testimony was admissible upon the same ground that Snyder’s testimony was admitted, and'for the additional reason that the original was in the possession of the insurance company out of the State. Ritter v. State, 70 Ark. 472.

• Appellant next contends for a reversal of the judgment because the prosecuting attorney was permitted to examine him relative to the burning of the Nash car in Aurora, Illinois. The objection and exception made to the examination of the prosecuting attorney was not included as a ground in appellant’s motion for a new trial, and cannot therefore be considered by this court bn appeal.

Appellant contends, lastly, for a reversal of the judgment upon the ground that testimony was wanting to show that the car was not stolen. The jury was warranted in drawing an inference that it was not stolen from the fact that appellant afterwards obtained a license on the same kind of a car with the same motor number in Illinois. The jury was not compelled to accept blindly appellant’s explanation that he obtained the license because he thought the car would be found at a later date. The explanation was not altogether believable.

No error appearing, the judgment is affirmed.


text:
    Murdock v. Sure Oil Corporation.
    Opinion delivered May 10, 1926.
    1. Mines and minerals — failure to drill oil well — remedy of lessor. — Where the lessees of an oil and gas lease were under obligation to drill eight offset wells, the lessors will not be entitled to declare a forfeiture for failure to drill the full number required if the lessees substantially developed the lease by drilling five offset wells around the inside and near the boundary lines, but the lessors will be remitted to their claim for damages.
    2. Mines and minerals — failure to drill oil well — remedy of] lessor. — Where the lessees of an oil and gas lease have proceeded to .develop the property in good faith and to pay the purchase price out of the oil produced from the lease, as agreed, it was not error to refuse to declare a lien upon the leasehold for the unpaid purchase price and to decree a foreclosure thereof because the lessees drilled only five offset wells instead of eight.
    3. Equity — jurisdiction.—The jurisdiction of equity is to be determined from an inspection of the bill.
    4. Equity — complete relief. — When equity acquires jurisdiction of a cause for one purpose under bona -fide allegations, all matters at issue will be adjudicated, and complete relief afforded.

      5. Mines and minerals — failure to drill wells — damages.—Where the lessors of an oil and gas lease were to he paid a proportionate part of the oil produced therefrom, and the lessees were to drill eight offset wells, but drilled only five, and a substantial portion of the oil was drained from the lease by wells on adjacent land, the lessors were entitled to recover damages thereby sustained.
    6. Appeal and error — directions on reversal. — Allegations of bill for cancellation of assignment of oil lease or declaration of equitable vendor’s lien on leasehold for balance of consideration due, because of breach of contract by not drilling necessary offset wells, being equitable in nature and cognizable in court of equity, cause will be remanded, on reversal of decree of dismissal, for determination of damáges, where such issue was not fully developed by evidence.
    Appeal from.Union Chancery Court, First Division; J. Y. Stevens, Chancellor;
    reversed.

      Kitchen & Harris, for appellant.

      Cravens •& Cravens, C. E. Cooper and McGuire & Marshall, for appellee.
   Humphreys, J.

Appellants instituted this suit against the appellee corporations in the chancery court of Union County to cancel the assignment of an qil lease to the SW14, SE%, section 16, township 16 south, range 15 west in said county, which assignment was executed by appellants and others to Sure Oil Corporation for a consideration of $200,000, to be paid out of the first 7/16 of the first oil and gas produced from the leased premises, which sold same to the Federal Oil & Marketing Corporation on condition that it would perform all the covenants contained in said assignments. It was alleged that appellee corporations had breached the provisions of the assignment by failing to drill the necessary offset wells and, by reason thereof, made it impossible for appellants to ever recover their proportionate part of the consideration, which had been extracted by wells on adjoining lands.

The bill contained, first, a prayer for a cancellation of the assignment and. damages for the value of appellant’s part of the oil which had escaped through wells on land immediately south of the leasehold; and second, a prayer .that, if the covenants had not been.breached to the. extent justifying a cancellation of the assignments, appellants be decreed an equitable vendor ’s lien on. the leasehold for the amount yet due on the total consideration for the assignment.

I. F. Ikard, who was one of the owners of the lease, was made a party defendant because he would not join as. a party plaintiff in the suit, and, by reason of that fact, appears now as one of the appellees, ,

Appellees, except. I. F. Ikard, filed answers denying the allegations of the complaint and challenging the jurisdiction of the court, on the alleged ground.that, if there was any breach at all, it was partial, and therefore exclusively cognizable in a court of law.

The cause was submitted upon the pleadings. and testimony, which .resulted in a decree dismissing appellant’s bill, from which is this appeal. The assignment of the lease, which constituted the contract between the parties, specified, a. consideration of $200,000 to be paid out of 7/16 of the first oil and gas produced from the leasehold premises, and- provided for the immediate development of the leasehold by drilling a well in the northeast corner and one in the northwest corner, and “to drill all necessary offset we.lls to. properly, protect said lease, provided.that it shall not be required to, .drill more, than a total of eight wells on the entire tract, and each of said offset wells shall be drilled with reasonable promptness, and not later, than thirty days after it becomes necessary to drill such offset well, unless delayed by some, unforeseen contingency or unavoidable delay. ’ ’

The record reflects the following facts: Prior to July, 1923, appellees drilled a well in each corner of the forty-acre tract and one equidistant between the wells in the northwest and southwest corners, making in all five wells.. The well in the southwest corner was numbered three and the one in the southeast corner numbered four. Th.ese two wells were 989 feet apart- The land adjoining the forty acres on. the south was covered- by two leases known as the Ramage and Bement, the Ram-age being south of the east and the Bement south of the west end of the forty. There was a well in the northwest corner of the Bement lease, numbered one, which was 150 feet south and 150 feet east of the southwest corner of the Sure lease. In July and August, 1923, wells were drilled in the northeast corners of the Bement and Ramage leases, designated as Bement No. 2 and Ramage No. 1. The distance between Bement No. 1 and Bement No. 2 is 356 feet. The distance between Bement No. 2 and Ramage No. 1 is 489 feet- The distance between Sure No. 3 and Bement No. 2 is 345 feet. The distance between Sure No. 4 and Ramage No. 1 is about 345 feet. Sure No. 3 is almost due north of Bement No. 1, and was intended as an offset of Bement No-1. If an offset were drilled due north of Bement Ño. 2, according to the customary distance that wells are drilled from the boundary line, it would be 400 feet from Bement No. 2. Ramage No. 1 was intended as an offset of Bement No. 4, but was not directly south of it. The location and distance between these wells discloses that two wells, Sure Nos. 3 and 4, were immediately north, and three wells, Bement Nos. 1 and 2 and Ramage No. 1, were immediately south of the line separating the forty-acre tract from the Bement and Ramage leases, through which oil was being extracted from the lands. Bement No. 2 and Ramage No. 1 came in with a production of 800 barrels each per day, which had decreased at the time the testimony was taken to an output of 150 barrels each per day- They were and are commercial wells. When Ram-age No. 1 and Bement No- 2 were brought in, appellants notified appellees to drill wells directly north of each well to prevent them from drawing oil from the forty-acre tract. This they refused to do, and this suit followed. A decided majority of the witnesses testified that there was no offset well on the Sure lease to Bement No. 2 and that there was no direct offset well to Ramage No. 1, and that such wells should have been drilled; and the testimony of nearly all the practical operators tended to show that the loss of production on account of a failure .to drill the wells was between 60,000 and 70,000 barrels, when considered in connection with the estimated amount of oil sold to various parties from the Bement and Ramage wells, which oil was probably worth $40,000. George L." Hess testified, in snbstance, that there had been a loss of only about 5,920 barrels of oil on account of the failure to drill direct offset wells to Bement No. 2 and Ramage No. 1. Offset wells would have cost $16,000 each. A large amount of oil had been extracted from the forty-acre tract through the five protection wells appellees had drilled upon it, and a large amount was being produced and sold at the time this suit was instituted and thereafter, but there was testimony tending to show that appellant would not be able to collect the entire consideration for the assignment of their lease unless offset wells were drilled to Bement No. 2 and Ramage No. 1. At the time C. E. Murdock testified that he had received $21,130.50 out of 7/16 of the oil produced through the live development wells, and E. R. Owen received $17,-360.71 prior to the institution of the suit and $3,279.92 after the institution thereof out of 7/16 of the oil produced.

Appellant’s first insistence' for a reversal of the decree is that the court erred in refusing to cancel the contract of assignment under the rule announced in the case of Blair v. Clear Creek, Oil & Gas Co., 148 Ark. 301, to the effect that, where a duty rests upon a lessee to drill protection wells to prevent the escape of oil and gas from the leased premises through wells upon adjoining land, and he refuses or fails to do so or to account for the oil and gas thus lost, the lessor may declare a forfeiture of the lease and obtain a cancellation thereof in a court of equity. In the case cited the lessee was draining the leasehold estate of gas through wells drilled upon adjacent lands, thereby destroying the leasehold estate. The breach in that case amounted to a complete failure to proceed under the terms of the contract- — so complete a breach that it was an abandonment of the lease; hence cancellation was the remedy. Not so in the instant case. On the contrary, the-lessees had substantially developed the property by drilling five wells around the inside and near the boundary lines.' In such cases equity will n,ot decree a forfeiture and cancellation of the lease, but will remit the lessor to his claim for damages. .

• .Appellant next contends for a reversal of the decree for the alleged reason that the court did not .declare a lien- upon the leasehold for the unpaid purchase price, of the assignment and decree a. foreclosure thereof, to satisfy .same. We are unable to discern in the evidence that appellants will be unable to collect full consideration for the assignment out of the 7/16 of the oil produced, if reimbursed for their part of the oil already lost or which-may .be lost on account of-drainage by Bamage. No. 1 and Bement No. 2. There is nothing in the evidence indicating an effort - on the part of the lessees to defraud, appellants, -but only a difference of opinion, between appellants-and appellees, and, for that matter, between the witnesses, as to whether it would be good business judgment to drill the.offset wells contended for. We think good faith on the part of appellees was manifested by the amount of money they expended in the development of the lease, and that this good faith should shelter them from the harsh .remedy .of being compelled to pay the whole consideration in cash on .account of a partial breach in failing to drill the offset wells demanded by appellants.

Lastly, appellants contend for a reversal - of -the decree of dismissal and a remand of the- cause for a determination of the damages they, have sustained on account of the loss of oil through drainage by Bamage No. 1 and Bement No. 2. Appellees attempt to-sustain the decree against this attack upon the ground that-the damages claimed were for a partial breach exclusively cognizable in a court of law. The jurisdiction of -the cause must be determined from an inspection of the bill. The allegations therein are equitable in nature and cognizable in a court of equity. There is no intimation therein that the failure to drill offset wells to Bamage No. 1 and Bement No. 2 constituted a partial breach of the assignment. When equity acquires jurisdiction of a cause for one purpose under bona fide allegations, all matters at issue will be adjudicated and complete relief afforded. Horstman v. LaFargue, 140 Ark. 558. The right of appellants to recover for a partial breach is founded on the protection paragraph of the written assignment. Our construction of that paragraph is that appellants were entitled to as many as eight offset wells, if necessary, to prevent the escape and loss of any substantial amount of oil from the leased premises, irrespective of the cost of drilling the wells. According to the terms of the assignment, appellants were to be paid out of 7/16 of the oil produced, and it was important to appellants for the oil to be conserved by offset wells. They contracted that eight should be drilled by appellants for this purpose', if necessary, and, as long as a substantial part of the oil was being drained by wells on adjoining land, they were entitled to the contract number of offset wells, irrespective of distances between them, and, not having obtained them all, were entitled to damages for a failure to drill any part of them. According to the decided weight of the evidence, a substantial part of the oil was lost on account of drainage through Bamage No. 1 and Bement No. 2. The trial court did not pass upon the amount of damages, and that issue was not fully developed by the evidence.

The decree is therefore reversed, and the cause is remanded for that purpose, with privilege to each side to take additional testimony upon that point.


author: McCulloch, C. J.

text:
    DuVal and Rice v. State.
    Opinion delivered May 17, 1926.
    Criminal law — proof of other crimes. — Proof of other crimes committed several years prior' to the commission of the offenses of which defendants were convicted was inadmissible, and was prejudicial where the evidence as to defendant’s guilt was conflicting.
    Appeal from Pulaski Circuit Court, First Division; John W. Wade, Judge;
    reversed.

      Frank B. Pittard, for appellant.

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

Appellants, Dave DuVal and Jethro Rice, together with George Seymore, were each indicted for the separate offenses of possessing a still-worm, for manufacturing mash, and for manufacturing liquor, and by consent all the cases against all of the defendants were tried together, resulting in the conviction of each of them for the offenses named, and DuVal and Rice have prosecuted their appeal to this court.

John Hopper and two other prohibition officers testified in substance that, after receiving information that a still was being operated on a certain farm about twenty-five miles east of Little Rock, in Pulaski County, they went to the place in an automobile; that, as they approached the house, they saw Rice open the door and look out, and then slam the door, and, as they speeded their car up and got close to the house, all three of the defendants jumped out of a back window and ran away, and were caught by two of the officers. The witnesses testified that, when they went into the house, they found a two hundred-gallon copper still, complete with a worm and cap, and that it was in full operation, and whiskey was coming out of the worm.

Witness Hopper was permitted to testify, over the objection of appellants, that he had seen them with large quantities of whiskey in their possession several years before this occurrence, and the State was permitted, over appellants’ objection, to prove by the court stenographer that appellant DnVal, in testifying in the trial of one Rudd in the Pulaski Circuit Court about two years prior to this occurrence, stated that he (DuVal) had theretofore been engaged in the business of selling liquor, but had quit the business. Hopper testified that he and other officers caught appellant Rice with twenty gallons of whiskey in a Ford car, several years before this occurrence.

The testimony in the case was sufficient to warrant the verdict of conviction, but we are of the opinion that the court erred in admitting testimony concerning appellants having whiskey in their possession several years before the occurrence under investigation. The court, in admitting the testimony, recognized the .rule of law on the subject to the effect that proof of illegal acts in the manufacture, sale or transportation of liquor at other times and places than the time and place of tlie comr mission of the offense under investigation must relate' to acts not too remote. But we think that the court failed to give proper application to that rule, for the evidence in this case related to acts several years prior to the commission of the offenses for which appellants were convicted. We have had many cases on this point, which are reviewed in the more recent ones of Noyes v. State, 161 Ark. 340; McMillar v. State, 162 Ark. 45, and Melton v. State, 165 Ark. 448, but in all the cases where we declared such testimony to be competent it related to acts which were close enough to the principal act involved in the investigation to treat the conduct as being so continuous as to throw light on the charge under investigation. In the present case there was no testimony tending to show illegal acts on the part of either of the accused between the acts involved in the present charge and those which the officers testified occurred several years prior thereto. It may often be a matter of discretion with the trial court to determine how close the acts must be in point of time to justify the admission of proof of distinct illegal acts of the kind under investigation, but, where there is au intermission of a year or two, it is clear that prior acts can have no bearing on the question under investigation as to the guilt or innocence of the accused.

It is the contention of the Attorney General .that the error of the court is harmless for the reason that each of the accused admitted the truth of the testimony of the officers concerning their prior acts, but these admissions did not render harmless the testimony previously introduced by the State. It was competent for the State to cross-examine the accused concerning prior unlawful or immoral conduct, regardless of time, for the purpose of testing their credibility, but this did not render harmless the error of the court in allowing the State to introduce independent testimony on the subject and to allow the jurors to consider the same for the purpose of determining the guilt or innocence of appellants of the crime charged in the indictment. If the jury had accepted the testimony of appellants, they would have exonerated them of the charge in the indictment, for they testified that they had nothing to do with the still found in the house by the officers, that they went out to the place to see Seymore on business, and did not go inside the house at all. If the jury had believed appellants, they would have acquitted them, and the jury may have been influenced by the improper testimony referred to above.

Reversed, and remanded for a new trial.


text:
    St. Louis-San Francisco Railway Company v. Sloan.
    Opinion delivered May 17, 1926.
    Railroads — negligence in killing dog. — Proof that defendant’s locomotive engineer could have seen plaintiff’s dog approaching the track 300 yards ahead of the train, in time to avoid killing him, held to sustain a verdict for the plaintiff.
    Appeal from Crawford Circuit Court; James Cochran, Judge;
    affirmed.

      E. T. Miller and Warner, Hardin $ Warner, for appellant.

      George G. Stoehard, for appellee.
   McCulloch, C. J.

Appellee sued appellant for the value of a dog killed by one of appellant’s trains at the station of Rudy, in Crawford County, Arkansas. The dog was killed by a northbound passenger train which did not stop at Rudy and was traveling at a speed of about forty miles per hour. It occurred just before sunset.

'There is a trestle 1,260 feet south of the station, and the track is-straight from that point northward beyond the station. The dog was killed on the track opposite the station platform, and a witness introduced by appellee testified that he saw the dog on the station platform, walking northward beside the track, but was “angling” toward the track; that the train at that time was crossing the trestle south of the station, and, just before the train reached the station platform, the dog walked onto the track and was struck and killed.

The evidence in the ease tends to show that the crossing whistle was blown at or near the trestle, and nothing else was done toward avoiding the killing of the dog. The engineer testified that he was keeping a lookout, but did not see the dog and knew nothing of the killing until it was reported to him afterwards. Another witness introduced by appellant testified that the dog was walking north on the platform a short distance east of the track, and that, when the train was thirty or forty steps south of the station, the dog started to cross the track, and was walking up the middle of the track when struck by the train. The jury returned a verdict in favor of appellee, and fixed the damage at the sum of fifty dollars.

.. The only question raised here is the legal sufficiency of the evidence. We have concluded, that the evidence is sufficient to sustain the verdict.. At a distance of about 1,260 feet the engineer either saw, or, if keeping a lookout, could have seen, the dog walking along the platform near the railroad track and in the direction of the track — “angling toward the track,” as stated by one of the witnesses, and nothing was done thereafter to avoid the injury. The perilous position of the dog was discovered, or could have been discovered, in time to have prevented the injury; at least the jury could have so found from the testimony.

Affirmed.