author: Smith, J.

text:
    Chapman v. Claybrook.
    Opinion delivered April 18, 1927.
    1. Appeal and error — presumption as to jurisdiction. — Where an -action of replevin was transferred from a justice of the peace to the common pleas court, it will be presumed, on appeal from an order denying a motion to dismiss, in the absence of a showing to the contrary, that the venue had been changed by one of the parties as provided by Acts 1905, p. 364.
    2. * Justices of the peace — procedure in replevin. — It is not essential in an action of replevin in a justice’s court that the plaintiff file a complaint, but an affidavit complying with Crawford & Moses’ Dig., § 8640, is necessary to obtain an order of delivery.
    3. Justices op the peace — replevin—sufficiency of affidavit. — A verified instrument designated a “complaint” in an action of replevin in the court of a justice of the peace held to constitute an affidavit as required by Crawford & Moses’ Dig., § 8640, to- obtain an order of delivery, where the requirements of such section Were otherwise met, as the name of the pleading is not material.
    4. Justices of the peace — replevin-—-sufficiency of affidavit.— Failure of an affidavit in replevin to show the separate values of articles replevied, though error, in view of Crawford & Moses’ Dig., § 8641, is not ground for dismissal of the action, where the aggregate value was stated and was within the court’s jurisdiction, as the affidavit could have been amended.
    5. Replevin — order o-f delivery. — An action of replevin may be tried, though there was no order of delivery.
    6. Replevin — order of delivery. — Where there was no delivery in an action of replevin, the filing of an' affidavit w-as not a prerequisite to jurisdiction, as the cause could proceed as one to try the right to the possession of the property.
    Appeal from Crittenden Circuit Court, First Division; G. E. Keck, Judge;
    affirmed.

      W. A. Singfield, for appellant.

      W. B. Scott, for appellee.
   Smith, J.

The transcript on this appeal contains the transcript of the record made in the* common pleas court of Crittenden County, as certified to hy the clerk of the county court of that county, who is ex-officio clerk of the common pleas court. In the transcript as thus certified there is a complaint, duly verified, which contains all the allegations required by § 8640, C. & M. Digest, to obtain an order of delivery in a replevin suit. The jurat is dated January 5, 1923. There appears also an order of delivery dated January 5, 1923, signed by a justice of the peace of the county, commanding* the officer to whom it was directed to take from the possession of the defendant a mule, a two-horse wagon, and forty bushels of corn, more or less, all of the total value of $100, and to deliver possession thereof to the plaintiff upon his giving bond as required 'by law.

The complaint has the caption: “Before Gr. M. Coleman, justice of the peace for Bob Ward Township,” and alleges that the plaintiff was entitled to the possession of the property there described under the mortgage therein mentioned given by defendant to plaintiff on May 11, 1921. Attached to the complaint as exhibits thereto are, (a) an itemized statement of the account between plaintiff and defendant, and (b) a copy of the mortgage.

There appears also, a bond entitled: “Bond for replevin attachment, ’ ’ which was approved by the justice of the peace on January 5, 1923, conditioned as follows:

“We undertake that the plaintiff, John Claybrook, shall pay to the defendant, William Chapman, all-damages which he may sustain by reason of this action, if the order therefor is wrongfully obtained, and the cost of the action.”

There appears to have been a trial before the county judge, who is the presiding officer of the court of common pleas, and a judgment for the plaintiff was rendered for the possession of the mule and the wagon, or the value thereof, which was fixed at $100. The judgment contained no reference to the corn.'

An appeal was duly prosecuted from the judgment of the common pleas court, and, upon the coming on of the cause for trial in the circuit court, on the appeal, the defendant filed a motion to dismiss the cause of action, for the reason that “said suit purports to be an action for replevin, and originated in the justice of the peace court, but plaintiff failed to make the affidavit as required by § 8640 of Crawford & Moses’ Digest, and failed to comply with the law in any regard as provided by §§ 8642 and 8643, Crawford & Moses’ Digest, all of which was necessary to give the court jurisdiction.”

It thus appears that the suit was ’begun in the court of a justice of the peace, and that it was transferred to the common pleas court, although it does not appear upon whose application the transfer was made.

Act 149 of the Acts of 1905 (Acts 1905, page 364) created a court of common pleas in Crittenden County, and § 14 thereof reads as follows: “When any civil action or special proceeding is or shall be pending before any justice of the peace in said county, either party may, on motion, have a change of venue from such justice’s court to the court of common pleas, and, on the filing of such motion, the justice shall at once' suspend all further proceedings therein, and shall, at once and without delay, make out a certified transcript of his docket entries in the case and all costs therein accrued to date, and transmit the same, together with all the original papers in the case, to the clerk of said common pleas court, for which service the justice shall receive the sum of one dollar, to be paid by the party applying for change of venue, to be taxed as costs in the cause; provided that, where the change of venue is taken by the plaintiff, he shall at the same time pay all costs which may have accrued before such justice.”

It thus appears that either the • plaintiff or the defendant had the right, under the section quoted, to change the venue in any civil action from any justice .court of the county to the common pleas court of the county, and it must be presumed (and especially so in the absence of any showing to the contrary) that one party or the other had the venue of the action changed from the justice 'before whom the case was brought to the common pleas court.

It has been held that the affidavit to obtain an order of delivery is no part of the complaint (Donnelly v. Wheeler, 34 Ark. 111), and that the office of the affidavit is to procure the order of delivery, and, when that is accomplished, it has performed its office as an affidavit, and in the justice of the peace court serves as a complaint. Hawes v. Robinson, 44 Ark. 308.

It was not essential that the plaintiff file a complaint in the justice court, but it was essential that an affidavit complying with § 8640, C. & M. Digest, be filed to obtain the order of delivery. It appears, however, that this was done, although the instrument filed was designated a “complaint,” instead of an “affidavit,” but the name of a pleading filed is not controlling. The essential thing is that § 8640, C. & M. Digest, be complied with. This section defines the requisites of the affidavit, and the instrument designated “complaint,” which was duly verified, contained all the allegations required by that section.

We hold therefore that an affidavit was filed as required by law, and that this action was properly begun as a suit in replevin.

It is insisted that the complaint, if treated as an affidavit, is defective in that it does not show the separate value of the articles replevied. The affidavit does state the aggregate — and not the separate — value of the articles alleged to have been mortgaged to plaintiff by defendant, but the total value stated is within the jurisdiction of a justice of the peace. Section 8641, C. & M. Digest, provid.es that, where the delivery of several articles of property is claimed, the affidavit must state the value of each, and compliance with this section would, no doubt, have been compelled, had a motion to that effect been made. This defect was not ground to dismiss the cause of action, however, as the affidavit might have been amended in this respect, Higgason v. Braswell, 163 Ark. 348, 258 S. W. 983; Hanf v. Ford, 37 Ark. 544; Noland v. Leech, 10 Ark. 504; Strode v. Holland, 150 Ark. 122, 233 S. W. 1073.

As appears from the motion to dismiss, set out above, it is contended that the bond given by the plaintiff is not conditioned as required by law to obtain an order of delivery. Answering" this contention, it may be said that the return of the constable on the order of delivery reads as follows:

“I have served the within paper by reading the contents thereof to the defendant, William Chapman.” The order of delivery appears therefore to have been served as if it were a summons. It does not appear that the officer took possession of the properly, or that possession thereof was delivered to the plaintiff, and the judgment of the common pleas court orders that the plaintiff have and recover the possession of the property, or its value, from the defendant.

The case appears to have been tried as if there had been no order of delivery, and this is a permissible practice. In the case of United States Automobile Co. v. Deshong, 134 Ark. 392, 204 S. W. 103, it was said:

“It is true replevin is a possessory action (Spear v. Arkansas National Bank, 111 Ark. 29, 163 S. W. 508), but one may bring a replevin suit without asking a delivery of the' property previous to the trial. He may have the title to the property adjudged, even though he asks no immediate delivery of the property upon an order of delivery, which he may have upon making the affidavit and giving the bond required by law. The cause may proceed to judgment without any delivery of the property prior to the judgment. The nature of the suit is not affected by the failure to issue an order of delivery. Eaton v. Langley, 65 Ark. 448, 47 S. W. 123.”

In the case of Schattler v. Heisman, 85 Ark. 73, 107 S. W. 196, a pleading purporting to be an' affidavit was filed with a justice of the peace, but it was not verified. The court there said: “This paper, although not sworn to, was a sufficient complaint to give the court jurisdiction of the subject-matter in replevin; and the court could proceed to try the right to the possession of the property involved without the possession being ’changed. Sections 6853-54, Kirby’s Digest; Hanner v. Bailey, 30 Ark. 681; Hawes v. Robinson, 44 Ark. 308; Eaton v. Langley, 65 Ark. 448, 450, 47 S. W. 123. But, before an order of delivery can issue for the immediate possession of the property in advance of the trial of the rights of property, an affidavit contemplated by § 6854, Kirby’s Digest (§ 6854, Kirby’s Digest, is identical with § 8640, C. & M. Digest), must be filed. A failure to file such affidavit before the issuance of the order of delivery for the immediate possession is ground for quashing the writ. But it is not a prerequisite to the jurisdiction of the court to settle the rights of property without a change of the possession. Eaton v. Langley, supra.”

It appears therefore that § 8640, C. & M. Digest, was complied with, and, further, that, if it had not been (inasmuch as there was no delivery of the property), the cause might have proceeded as one to try the right to the possession of the property involved, and snch appears to have been the cause tried in .the common pleas court.

It is unnecessary, in view of what we have just said,to consider the effect of plaintiff’s failure to execute a bond conditioned as required by § 8643, C. & M. Digest. If it were, the case of O’Brien v. Alford, 114 Ark. 257, 169 S. W. 774, might be cited.

The motion to dismiss was therefore properly overruled, and, as no other question is presented, the judgment of the court below is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Cook v. State.
    Opinion delivered April 18, 1927.
    1. Intoxicating liquors — making mash — sufficiency of evidence. —In a prosecution for making mash suitable for distillation of alcoholic liquors, evidence showing probability that defendant was guilty held insufficient to sustain conviction.
    2. Criminal law — weight and sufficiency of evidence. — In order to sustain a conviction, the fact that there is a high degree of probability that defendant is guilty is insufficient, but his guilt must be established by substantial evidence to the exclusion of a reasonable doubt.
    Appeal from White Circuit Court; W. A. Davenport, Judge;
    reversed.

      Mehaffy & Miller and Culbert L. Pearce, for appellant.

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

Appellant was indicted for making mash suitable for the distillation of alcoholic liquors, was convicted, and has appealed. For the reversal of the judgment, it is insisted that the testimony is not legally sufficient to support the verdict, and we have concluded that this assignment of error is well taken.

The testimony, stated in the light most favorable to the State, is as follows: Witnesses Cowan, Smith and Ray searched appellant’s premises, and they fonnd a barrel buried in the ground behind a log. The barrel was covered with a tow-sack and some leaves, and was about two-thirds full of a mash, which was fermenting. Near by were some rocks, with ashes between them. Neither a still nor any part thereof nor any whiskey or other intoxicating liquor was found. The top of appellant’s house could be seen from the place where the barrel was found. The barrel was about 200 or 250 yards from appellant’s house, and, nearer still to appellant’s residence, a hole was found, into which mash had been poured, and a metal barrel was found on appellant’s premises, under which a fire had been'built, as was evidenced by the fact that the barrel, was smoked. The witnesses testified that the mash appeared to have been made of sour meal and shorts, and there was foam over the top of it, but none of the witnesses knew whether the mash was fit for the distillation of alcoholic spirits.

The barrel was not in appellant’s inclosure, but was found in his woodland, about 75 yards from his fence. There was no path to the barrel, but, just above where the barrel was found, there was a path leading to the house from the creek farm. The farm was on,.a creek. The barrel was not on the creek, but on a hillside towards the house. The home of a Mr. P’alvin was about the same distance from the barrel as„that of appellant, and that of a Mr. Jackson somewhat farther away.

From this testimony it is very probable that appellant made the mash, and that it was fit for the distillation of alcoholic spirits, although no witness stated as a fact that it was fit for that purpose. Appellant was not seen at the barrel, or in possession of it, and no liquor was found on his premises. No still was found, or instrumentality which could have been employed in making liquor, except the smoked barrel. The barrel of mash was on appellant’s land, but was not within his inclosure, and was as near the home of Palvin as it was to that of appellant. '

We think therefore that, while there is a high degree of probability that appellant was guilty, there is nothing more, and this is not sufficient.

In the case of Hogan v. State, 170 Ark. 1143, 282 S. W. 984, we reversed the judgment of conviction because of the insufficiency of the testimony, and, in doing is'o, said: “It devolves upon the State to establish his guilt by legal testimony of a substantive character, and matters of conjecture merely are not sufficient for that purpose.”

The judgment in the 'case of Reed v. State, 97 Ark. 156, 133 S. W. 604, was reversed on the ground of the insufficiency of the testimony, and in the opinion it was said: “There may be in this testimony some evidence of ' suspicion against defendants, but, at the most, -it is a circumstance of bare suspicion. But mere circumstances of suspicion are not sufficient upon which to base the conviction for a crime, which must be established-by substantial evidence to the exclusion of a reasonable doubt.” See also Jones v. State, 85 Ark. 360, 108 S. W. 223; France v. State, 68 Ark. 529, 60 S. W. 236.

We think the testimony set out does not measure up to this standard, and the judgment will therefore be reversed, and the cause remanded.

HxjmphReys, J., dissents.


text:
    Adams v. State.
    Opinion delivered April 18, 1927.
    1. CRIMINAL LAW — PRESUMPTION IN PAVOR OF VERDICT. — On appeal from a conviction of murder in the first degree, in passing on the assignment of error in submitting the question of guilt of •any degree of murder to the jury, evidence must be given its highest probative value.
    2. Homicide — murder—sufficiency of evidence. — In a murder trial, evidence held to justify submission to the jury of defendant’s guilt of murder in the first degree, and to support a conviction therefor.
    3. Homicide — refusal of instruction as to rights of officer. — In a prosecution for murder of a deputy sheriff the court erred in refusing to charge that, if the sheriff and his deputy did not go into defendant’s store to arrest defendant for a felony, the sheriff and his deputy had no other or better rights in the store at the time than any private individual.
    4. Homicide — refusal of instruction as to rights of officer. — An instruction in a murder case that, if the defendant, at the time of the shooting, when the sheriff and his deputy came into the house, was not disturbing the peace or was not attempting to commit a misdemeanor, or an assault of any kind upon any party, neither the sheriff nor his deputy had any righit to arrest him, and if they, or either of them, did shoot at the defendant, the party so shooting, whether the sheriff or his deputy, was violating the law and was aggressor in the fight.
    5. Criminal law — order of reception of evidence. — A conviction will not he reversed for the order in which the State’s testimony was introduced, in the absence of a showing of abuse of the-trial court’s discretion.
    6. Criminal law — order of introduction of evidence. — In a prosecution for murder in the first degree, testimony of the State’s witness, relied on to show malice and deliberation, should have been offered as a part of the main case, and not in rebuttal.
    Appeal from Lafayette Circuit Court; Jamies H. McCollum, Judge;
    reversed.

      Lulce Monroe, Searcy & Searcy, Carter S Carter and James D. Head, for appellant.

      H. W. Applegate, Attorney General, and John L. Carter, Assistant, for appellee.
   Smith, J.

Appellant was indicted for the crime of murder in the first degree, alleged to have been committed by shooting and killing one Bob Smith, and, upon his trial, was convicted of that charge and given a life sentence in the penitentiary. ■

Numerous errors are assigned for the reversal of the judgment of the court below, and, among others, that the undisputed testimony shows that appellant was not guilty of murder in either the first or the second degree, and that the court erred in submitting the question of his guilt of any degree of murder to the jury.

In passing upon this assignment of error, we must, of course, give to the evidence which tends to support that charge its highest probative value, and, when thus viewed, the testimony may he summarized as follows: In October, 1925, appellant, who had previously served as chief of police of the city of Texarkana, and Virgil Grigson, who was, at the time, constable of the township in which that city is located, were engaged in the retail meat and grocery business in Texarkana. Grigson had invested about $3,000 in the business and appellant about $160. They had disagreed and had quarreled, and, on and prior to the day on which Smith was killed, both had been drinking heavily.

On the morning of the killing appellant went to the home of Osborne Carpenter to get a large pistol, which he had previously exchanged with Carpenter for a smaller oné, and, in examining the pistol to ascertain whether it was loaded, it was accidentally discharged. Appellant told Carpenter he wanted the pistol to shoot beeves with, as he had only a single-action one, and, on one occasion, he had shot a beef with a smaller gun, and the -bullet had glanced off the head of the beef and came near hitting the man who was employed to help appellant butcher the beef. In addition to this pistol, Grigson had a Winchester rifle, which was kept at the store for the same purpose. Grigson and appellant had a quarrel in the store, and appellant and his sons took-Grigson’s pistol away from him. Appellant offered several times that day to fight, Grigson, but the challenge was not accepted.

Grigson attempted to telephone the police from the store, 'but appellant refused to permit him to use the telephone. Grigson directed his son to call the police, but the sons of appellant refused to permit him to do so. Grigson went to his car, but appellant took the key out of the car and would not permit Grigson to leave in it. Grigson then went to a filling station a block away from the store and attempted to call the police headquarters, but got no response. Grigson then called the sheriff’s office and requested the sheriff to come to the filling station where he then was. In a short time Lish Barber, the sheriff of the county, and Bob Smith, his deputy, drove up to tlie filling station in separate cars. Grigson told tlie officers about the difficulty he had had with appellant, whereupon the sheriff, his deputy and Grig-son drove to the store. It was admitted that appellant and his sons knew that Grigson had gone to call the officers. When the party reached the store- they walked in, Grigson leading, the sheriff next, and Smith behind, and, as they came into the store, Wallace Adams, a son of appellant, remarked, “Daddy, there is Lish Barber,” and appellant replied, “Damn Lish Barber — nobody is going to arrest me. ’ ’

The State’s testimony is to the effect that Allen Adams, a younger son of appellant, was also in the store when the officers caihe in, and that Adams £ind his sons placed themselves as follows: Wallace Adams was behind a counter, near the front door, armed with his father’s pistol; Allen Adams, the younger son, was in another corner of the store, armed with the Winchester rifle; and appellant was near the center of the store, behind a small counter, armed with a knife.' ituth Shumaker, a young lady whose home was near appellant’s store, testified that she saw Barber get out of his car, and that he spoke to her, and smiled.

Barber walked near the center of the store, and, in a friendly way, said, “Hello, Hendricks.” The testimony is sharply conflicting as to what then occurred, and the State’s version' was not developed until after the appellant had put on his testimony, and one of the errors assigned is the order in which the State was permitted to develop its case. We state this testimony at this time to preserve the proper chronology. According to appellant and his sons, who testified in their father’s behalf, Barber’s first remark was to inquire, “What is the matter with you and the big Irishman?” meaning Grigson. Appellant answered, “The big son-of-a bitch was trying to run me out of my business, and nobody can do that.” Appellant testified that, when he said this, Grigson jumped back and began to curse, and, as appellant turned towards Grigson, Barber shot appellant, the ball going through appellant’s arm, penetrating his body and lodging in his lung. Appellant further testified that, as soon as Barber shot him, Wallace Adams seized Barber’s pistol, and a scuffle for its possession ensued, and that Barber struck Wallace over the head with the pistol. Appellant then took the rifle from the hands of his younger son, Allen, and, as he dtd so, Barber threw Wallace from him and started towards appellant with his pistol drawn on him, whereupon appellant shot Barber with the rifle. Barber then turned and ran through the screen door, and this was the last appellant saw of Barber.

Grigson, who was called in rebuttal, and whose testimony was objected to upon the -ground that his testimony was not rebuttal, stated that, when Barber entered the store, Adams came from behind the counter with the knife in his hand, and advanced on Barber, who slowly retreated, pushing appellant back, and telling appellant to drop his knife, but appellant advanced, and struck at Barber with his knife, cutting Barber’s hand and left wrist to the bone, and, when.Barber drew his pistol, Allen Adams and Barber both fired, and Wallace Adams shot Smith, inflicting a slight flesh wound. All three shots were fired so near together that you could not tell who fired first. Grigson fell down behind the counter and went out the back door. .The shot fired by Allen Adams knocked Grig’son’s hat off his head. Appellant denied cutting Barber, and denied that Barber was cut, but several witnesses, including the undertaker who prepared Barber’s body for burial, testified to the existence of the knife wounds.

Grigson testified that Smith and Barber left the store, and appellant followed them, and, while Barber, who had got into the street, was backing away, appellant shot Barber just above the heart, and Barber died in a few minutes. Just as this fatal shot was fired, Smith, ■who was about two-thirds across the street, fired two or three shots at appellant as appellant was advancing on Barber. Smith then passed behind an automobile parked on the side of the street, and from there he went along the walk to the house of a man named "Whitney, through whose yard he walked, coming out at the rear of Whitney’s lot. Smith then went to the store of J. H. Scott, and appellant saw Smith enter the store. Appellant admitted that, after shooting Barber, he went back into the store, 'hut, in a short time, he came out again and started for Scott’s store with the rifle under his aiflh.. Some boys who saw appellant coming remarked, Yonder he comes, and he will kill all of us. ’ ’ Smith and Scott heard this remark, and they came to the door of Scott’s store, and Smith cried out to appellant, “Henry, I give up, I throw my gun away,” and as he said this he drew his pistol from his holster and pitched it in -the street .six or eight feet beyond the sidewalk. Appellant called Smith a vile name and said,.“ Yes, give your soul to God,” and shot Smith. Appellant denied hearing the remark Smith made about giving up, but two witnesses who were further from Smith than appellant was, testified that they heard the remark. Smith ran out of the store, and, as he was passing out the rear door, appellant again shot Smith, who died the following day. Scott remonstrated with appellant, who said, “I’ll kill every damn one of them.” !

It was appellant’s theory that Barber was the aggressor in the first shooting, and that, when Barber shot him, he became so greatly enraged that no cooling time intervened before he killed Smith, the man he was triéd for killing.

We are of the opinion that the testimony recited fully justified the court in submitting to the jury the question whether appellant was guilty of murder as charged, and that the testimony is legally sufficient to support the verdict returned.

The court gave an elaborate charge on both degrees of murder, and, at appellant’s request, gave the following charge on the subject of manslaughter:

“A. You are instructed that manslaughter is the unlawful killing of a human being without malice,-either expressed or implied; that manslaughter must he voluntary, upon a sudden heat of passion irresistible; and if you believe from the evidence that Barber assaulted deceased, Smith, was present aiding or assisting Barber in such assault, or was present for the purpose of aiding or assisting Barber in such assault, and that, while in this condition, and before a sufficient time had elapsed for his passion to cool, he armed himself, pursued unlawfully, and, without justification, killed the deceased, he would not be guilty of either degree of murder, but would be guilty of manslaughter only.”

Appellant requested an instruction numbered 6-A, which the court gave as modified, and appellant excepted to the modification. This instruction as amended reads as follows: “You are further instructed that, if you find the defendant was assaulted by the sheriff and his deputy, or either of them, with a murderous intent, the defendant was not bound to retreat, but might stand his ground against the one thus assaulting him and kill his assailant, if he honestlv believed, without fault or care- _ lessness, that it was necessary to prevent his assailant from taking his life or doing him great bodily harm. ’ ’

Appellant requested instructions numbered 7-B, 8 and 8-A. 7-B reads as follows: “You are instructed that, if you find from the evidence that the sheriff and or his deputy did not go into the store for the purpose of arresting the defendant for a felony, then you are instructed that the sheriff and or his deputy had no other or better rights in said store at the time than any private individual. ’ ’ The court refused to give this instruction, and appellant excepted.

Instruction numbered 8 reads as follows: “You are instructed that the sheriff and his deputy had no right, under the law, to attempt to arrest the defendant for any disturbance or row the defendant may have had with Grrigson prior to the time of the arrival of the sheriff or his deputy at the store where the shooting occurred, unless you find they had a warrant for him, and, if they or either of them attempted so'to do without a warrant, then you are instructed that, in such attempt, they were acting in violation of the law, and in violation of the rights of the defendant.” This instruction was also refused, and appellant excepted.

Instruction numbered 8-A as requested reads as follows: “You are instructed that, if the defendant, at the time of the shooting, when the sheriff and his deputy came into the house, was not disturbing the peace, or was not attempting to commit a misdemeanor, or an assault of any kind upon any party, neither the sheriff nor his deputy had any right whatsoever to arrest him or to attempt to do him any bodily injury, and if they or either of them, under such circumstances, did shoot at the defendant, then you are instructed that the party so shooting, whether the sheriff or his deputy, or both, was himself violating the law and was the aggressor in the fight, if you find a fight occurred.” The court refused to give instruction 8-A as requested, but modified it to read as follows: “You are instructed that, if the defendant, at the time the shooting began in Grigson & Adams ’ store, was not disturbing the peace, or was not attempting to commit a misdemeanor, or-an assault of any kind upon any party, neither the sheriff nor his deputy had any right whatsoever to arrest him or to attempt to do him any bodily injury, and if they or either of them, under such circumstances, did shoot at the defendant, then you are instructed that the party so shooting was himself violating the law.” Appellant objected to the modification and to giving instruction 8-A as'modified, and it was not given.

It is the opinion of the majority — in which Justices Wood and Humphreys and the writer do not concur— that instructions 7-B and 8 should have been given, and that the refusal to give these instructions, and especially instruction numbered 8, was prejudicial to appellant, inasmuch as no instruction was given which declared the law to be that, if the sheriff and his deputy were not acting in the capacity of officers of the law, with the right so to act, no account should be taken o'f the fact that they were officers. In other words, the fact that Barber and Smith were officers of the law was not a circumstance to he considered by the jury, unless the officers had the right to act in that capacity and were so acting, and- an instruction should have been given so advising the jury.

Justices Wood and Httmpheeys and the writer think that the case was properly submitted to the jury, and that there was no error in the record. As appears from the facts herein recited, the State insisted, and offered testimony tending to show, that appellant was the aggressor throughout. The testimony on the part of the appellant was to the effect that Barber was the aggressor, and shot appellant without provocation, and thereafter appellant was so enraged at Smith, who was present for the purpose of aiding Barber in such assault, that, without having time for his passion to cool, he killed Smith. The instructions declared the law applicable to these issues of fact, and the instructions given made no diminution of appellant’s right to defend himself because his assailants were officers, but the instructions fully declared the law to he that Bai'ber and Smith had no right to assault appellant and that appellant had the right to resist any assault upon him by them, or either of them, and the fact that Barber and Smith were officers could have given appellant no greater right than this.

We do not reverse the ease because of the time when the testimony of Grigs on was introduced. We have many times said that the trial court has a wide discretion in determining the order in which testimony may be introduced, and that we will not reverse on that account unless an abuse of this discretion is shown, and we think no prejudice was shown here. But, inasmuch as' the case is to be reversed and remanded for a' new trial, we take occasion to say that the testimony of Grigson should properly have been offered as a part of the State’s case in chief, and not as rebuttal testimony. It was proper and essential for the State to prove circumstances from which malice and deliberation might be inferred, if a conviction of murder in the first degree was asked, and, as this was the purpose of Grigson’s testimony, it should therefore properly have been offered as a part of the main case, and not in rebuttal.

Numerous other assignments of error are discussed, butano error is found except in the refusal to give instructions 7-B and 8 set out above, and, for the refusal to give these instructions, the judgment will be reversed, and the cause remanded for a new trial.


author: Humphreys, J.

text:
    Blakemore v. Covey.
    Opinion delivered April 18, 1927.
    Covenants — warranty op title — improvement tax. — Under Crawford & Moses’ Dig., § 1495, a general covenant of warranty in a deed will not be held to cover an improvement assessment which, subsequent to the execution of the deed, became a lien on the land.
    Appeal from Crawford Circuit Court; James Cochran, Judge;
    affirmed.

      R. 8. Wilson, for appellant.

      C. M. Wofford, for appellee.
   Humphreys, J.

This suit was instituted by appellant against appellee in the circuit court of Crawford County upon a covenant of warranty contained in a deed to lots 7 and 8, block 42, in the original town of Yan Burén, Arkansas, executed by appellees to appellant, to recover $63 paid out by appellant to satisfy an improvement district lien for taxes assessed and levied upon said property on account of expenses incurred in making a preliminary survey of Western Crawford Road Improvement District in which said land, with other lands, was located.

Appellees filed an answer, denying liability under the warranty clause in the deed, on the alleged ground that the lien for the taxes to pay the preliminary expenses of the district did not attach until January 19, 1925, the date of the last decree fixing the lien for said taxes and ordering the collection thereof.

The canse was submitted upon the pleadings, oral and documentary evidence, which resulted in a judgment dismissing appellant’s complaint at his cost, from which is this appeal.

The district in question was created by a special statute (unpublished) at the extraordinary session of the Legislature of the year 1920. The statute contained the following provision with reference to the payment of preliminary expenses:

“Section 25. In case, for any reason, the improvement Contemplated by this district is not made, the preliminary expense shall be a first lien upon all of the lands in the district, and shall be paid by levy of a tax thereon upon the assessed value for the county and State taxation, which levy shall be made by the chancery court of Crawford County, and shall be collected by a receiver to be appointed by said court.”

The covenant of warranty in the deed is as follows: “And we hereby covenant with the said J. E. Blakemore that we will forever warrant and defend the title to said lands against all lawful claims whatever.”

The district was abandoned, and, pursuant to the section of the act quoted, the commissioners of the district obtained an ex parte decree in the chancery court on November 3,1920, levying án assessment of 1.65 per cent, on the assessed valuation of all real estate in the district, as assessed for county and State purposes, to pay the preliminary expenses, amounting to $21,233. On the application of the Missouri Pacific Railroad Company and a number of other real estate owners in the district, the decree of November 3,1920, was set aside on January 27, 1922, by the chancery court, in order that they might be heard on their contention that the preliminary expenses were excessive, unjust and illegal. On March 8, 1922, the case was again tried, with the result that one claim of $300 for preliminary expenses was disallowed, leaving a total to be paid by the district of $20,611.80; and levying a tax of 2 per cent, on all real estate in said district, based upon tbe assessment of benefits to tbe property by tbe assessors of the district, on July- 30, 1920, from which an appeal was prosecuted to tbe Supreme Court, where tbe decree was reversed because tbe trial court ordered that tbe payments be made in proportion to tbe anticipated benefits assessed by the board of assessors, instead of upon tbe assessed value for county and State purposes. Upon remand of tbe case tbe decree was rendered in accordance with tbe directions of tbe Supreme Court, levying a tax of 2.10 per cent, against tbe real estate in the district according to its assessed value for tbe year 1920, to pay tbe preliminary expenses, and further ordering the collection thereof, not later than May 1, 1925.

The sole question presented for determination on the record before us, as detailed above, is whether tbe lien for tbe taxes required to pay the preliminary expenses of tbe district attached or became an incum-brance upon tbe lands in tbe district before tbe execution and delivery of said deed or after. The act creating the district is silent as to when tbe lien attached, but we have a general statute, § 1495 of Crawford & Moses’ Digest, which definitely settles tbe matter as to when tbe lien attaches between grantor and grantee. Tbe statute is as follows: “All lands, tenements and hereditaments may be aliened and possession thereof transferred by deed without livery of seizin, and tbe words '’grant, bargain and sell’ shall be an express covenant to the grantee, his heirs and assigns, that the grantor is seized of an indefeasible estate in fee simple, free from incumbrance done or suffered from the grantor, except rents or services that may be expressly reserved by such deed, as also for the quiet enjoyment thereof against the grantor, his heirs and assigns, and from the claim and demand of all other persons whatever, unless limited by express words in such deed; provided that, as between the grantor and grantee, neither the statutory nor general express covenant of warranty against incumbrances shall be held to cover any taxes or assessments of any improvement district of any kind whatever, formed under general statutes authorizing the assessment of lands for local improvements of any kind, or whether such improvement district be formed by public or private act of the Legislature, but the lien for any such local assessment or tax shall run with the land and be assumed by the grantee, and the grantee shall pay any and all.installments of such tax or assessment becoming due after the execution and delivery of the deed, unless otherwise expressly provided. ”

It will be observed that the statute is very broad, covering “taxes or assessments in improvement districts of any kind -whatever, formed under general statutes authorizing the assessment of lands for local improvements of any kind, or whether such improvement district be formed by public or private act of the Legislature. * * * > J

"We think the language -broad enough to include a levy ' made for the purpose of paying preliminary expenses of an abandoned district. At the time the deed was executed the question of the lien and the amount thereof was pending in the courts, and had not become a final and fixed lien for any specific amount until established by the final decre'e rendered on January 19, 1925. This is the only statute bearing upon the subject, and it contains no exception with reference to the assessment and levy of taxes against the property for the payment of preliminary expenses in'an abandoned district.

No error appearing, the judgment is affirmed.


text:
    Myers v. Hoeheimer.
    Opinion delivered April 18, 1927.
    1. PRINCIPAL AND SURETY — ABSTRACT INSTRUCTION. — In an action On a note against the makers, an instruction that, if a co-maker delivered a mortgage on personal property to secure the note, and such mortgaged property was lost through plaintiff’s negligence, the note should be credited with the value of the mortgaged property, held not warranted by the evidence.
    2. Principal and surety — notice To' sue principal. — To release a surety, notice to the holder of a note to sue the principal, under Crawford & Moses’ Dig., § 8287, 8288, must be in writing.
    Appeal from Polk Circuit 'Court; B. E. Isbell, Judge;
    reversed.

      Norwood & Alley, for appellants.
   Humphreys, J.

This suit was brought by appellant against appellee and G-. H. Johnson to recover a balance of $260.24 on a note executed by them and P. M. Morrison to him on December 22, 1919, for money borrowed by Morrison. The note, with the credits thereon, is as follows:

“Hatfield, Arkansas, 12/22/1919.

“One year after date, we or either of us promise to pay to D. E. Myers, or order, the sum of two hundred -twenty-five dollars, for value received, with interest at the rate of 10 per cent, per annum from date, payable at the Bank of Hatfield. All principal or interest not paid when due shall bear interest at ten per cent, per annum,, and failure to pay interest when due shall cause the whole of the note to become due and collectable at once. Should suit be commenced for the collection of this note, a reasonable amount shall be allowed as attorney fees and taxed with the cost, whether it goes to judgment or not, and holder may' sell at public or private sale, without notice, any and all collaterals held as surety for this note, at any time, and credit proceeds on this note, or collect collateral by law and apply proceeds as aforesaid. And the several makers, sureties and indorsers hereto hereby waive appraisement, notice of extension, nonpayment and protest, and agree that any extension of time made hereon, or renewal thereof, shall not affect their liability, whether they have notice of such extension or renewal or not.

“P. M. Morrison

“John C. Hoeheimer

“Q. H. Johnson.

“Credits: 10-30-22, $75.10, wagon and mules. 4-16-23, $17.50, cattle. 5-30-24, $3.60, estate.”

G. H. Johnson did not file an answer, and judgment was rendered against him for $276.40, the balance due upon the note with interest to November 14,1925, the date of isiaicL judgment. Appellee, John C. Hoeheimer, interposed the defense that, at the time the note was signed by him, a mortgage was also given 'by P. M. Morrison to appellant on a pair of anules, wagon and other chattels,' the value of which was in excess of the note; that the alleged mortgage was filed and became a lien on the property, but the lien and property covered by the mortgage which secured the note was lost because appellant permitted the property to be removed from the State without objection.

The cause was submitted to a jury upon the pleadings, testimony and instructions of the court, over the objection of appellant, who asked the court to instruct a verdict for- him. The jury rendered a verdict for $150 and costs against appellee, and a judgment was rendered in accordance therewith, from which is this appeal.

The court instructed the jury as follows:

“If you believe from a preponderance of the evidence that, when the note in controversy was executed by Morrison, and signed by the defendant,- Hoeheimer, as surety, the said Morrison executed and delivered to the plaintiff, Myers, a mortgage conveying to said Myers certain personal property to secure the payment of said note, and that such mortgaged property was lost through the want of diligence or through the negligence of said Myers, you will credit the note, if you find for the plaintiff upon said note, with whatever sum you may find the value of such mortgaged property to have been.”

This instruction, was not warranted by the testimony, and was therefore abstract and erroneous.

D. E. Myers testified positively that he did not take a mortgage from P. M. Morrison on chattels to secure the payment of the note; that, nearly two years after the execution of the note, he took a mortgage from Morrison upon chattels to secure another note which Morrison owed him, and a second mortgage on four cattle and a wagon as security on the first note, and realized $17.50 out of them, and credited the note with the amount.

Appellee testified that he was sure that Morrison gave Myers a mortgage upon personal property to secure the note in question at the time they executed it, but that, after searching, he failed to find it on file or any record o’f it having been filed. He pleaded in his answer that it was filed and became a lien upon the property. In order to verify the allegation and meet the issue presented by the positive evidence of Myers to the effect that no such mortgage was executed, he should have presented the mortgage or a record showing that it was filed, or, at least, have testified that such a mortgage was executed. He admitted that he never saw the mortgage, but he stated that he thought one was executed. His testimony on the point was not sufficiently definite to make an issue for the jury, and, for that reason, the court should have peremptorily instructed a verdict in favor of appellant for the full amount due upon the note, after deducting the credits which had been entered thereon.

Although the makers of the note appear to be principals, the record reflects that appellee and Johnson were in fact sureties. P. M. Morrison left the State after the maturity of the note, taking all of his property with him. Testimony was admitted in the trial of the cause relative to a request made by appellee to appellant to bring suit upon the note and to enforce collection thereof-against P. M. Morrison before he left the State. The evidence is conflicting upon the point, but the conflict did not present an issue for determination by the jury. Even if the fact had been undisputed, it would not have exonerated appellee from liability on the note. In order to bave escaped liability on this account be must have given written notice to appellant to commence suit against Morrison. Sections 8287 and 8288, Crawford & Moses’ Digest.-

On account of tlie error indicated the judgment is reversed, and judgment is directed to be entered here in favor of appellant against appellee for $276.40, Avitb interest at the rate of 10 per cent, per annum from NoAr ember 14, 1925.


author: Kirby, J.,

text:
    Sun Oil Company v. Hedge.
    Opinion delivered April 18, 1927.
    1. Pleading — necessity op replication. — In a suit for personal injuries, where defendant set up a release in defense, it was not necessary for plaintiff to file a reply alleging that the release was given under a mistake of fact induced by misrepresentations as to his condition made by defendant’s physician.
    2. Release — effect of misrepresentations of physician. — A release executed by an injured party, relying upon misrepresentations of the physician of the party responsible for the injury that it was slight and temporary, is not binding upon the party making it.
    3. Master and servant — jury question. — In an action for personal injuries, the question whether plaintiff’s physical condition- was caused by the injury sustained by him while employed by defendant was for the jury.
    4. Trial — instruction—assumption of facts. — An instruction that, if defenda'nt was injured while in defendant’s employ and was sent by defendant to a hospital to be treated by a physician, who assured him that he would be all right after a lapse of time, and that, relying upon such representation, which subsequently proved to be untrue, he executed a release, he would not be bound thereby, held not error as assuming that the physician, was defendant’s agent or that the physician made untrue representations.
    5. Trial — instruction—general objection. — In a suit by an employee for personal injuries, an instruction on damages for personal injuiries was not open to a general objection in failing to include the questions of comparative negligence and contributory negligence, no request therefor being made.

      6. Appeal and error — haemless ebeoe. — An instruction o-n assumed risk which spoke of the “defendant” assuming all risks incident to his employment could not have been prejudicial where it was apparent that the word “defendant” was inadvertently used for “plaintiff.”
    7. Master and servant — assumed risk. — A servant does not assume the risk of injury from the negligence of his fellow servants, which was unknown to him and the danger of which he could not appreciate.
    8. Master and servant — assume® risk — burden op proof.— Assumption of risk is an affirmative defense, and the burden of proving it rests upon defendant unless it is shown by plaintiff’s testimony.
    9. Release — instruction.—In a suit by an employee for personal ■injuries, an instruction that, if the employee executed a release without fraud or misrepresentation on defendant’s part, then •plaintiff could not recover, was properly refused, since the release was not binding if made under misrepresentations made by a physician furnished by defendant.
    10. Trial — abstract instruction. — It was not error to refuse an instruction not based on the evidence.
    11. Negligence — instruction as to contributory negligence. — In a suit by an employee for personal injuries, a requested instruction that, if plaintiff gave orders to lower the trap before the guy wires were released, thus causing his own injury, he could not recover, was erroneous, as, under Crawford & Moses’ Dig., § 7145, contributory negligence would not bar a servant’s right of recovery, but only required a diminution of damages in proportion to the amount of negligence attributable to plaintiff.
    Appeal from Lafayette Circuit Court; James E. McCollum, Judge;
    affirmed.
    STATEMENT BY THE COURT.
    This appeal is prosecuted by the Sun Oil Company from a judgment for $3,000 damages returned against it in favor of Ben Hedge, on account of a personal injury received by said Hedge while in the employ of the said oil company.
    Complaint alleges that plaintiff, with his crew of four other employees, was engaged in “throwing” a gas-trap, that is, stripping the flow-line connection from the gas-trap, the gas-trap being a pipe about 70 feet long, set on the ground in a vertical position, and used to separate the oil from the gas. It was held in position by four guy-wires fastened near the top and extending in different directions to the ground where they were fastened. That, to remove the trap, it was necessary to unfasten the guy-wires from the bottom and throw the trap in the direction in which it was to fall. That, to do this, it was necessary to hold the guy-wires after they were unfastened until a given signal from the plaintiff, when it was their duty immediately to release the guy-wires, so that the plaintiff could pull the trap in the direction in which it was to fall. Two of such traps had been removed, and plaintiff and his co-employees were engaged in removing the third when the injury complained of occurred. That the guy-wire to said trap had been unfastened at the bottom and plaintiff’s co-employees had hold of them when plaintiff gave the signal for them to release the guy-wires; that his co-employees failed and neglected to immediately release said guys as directed by plaintiff, and, as a result thereof, the trap was swerved from the course in which it was intended to fall, in a northerly direction, causing a tree to intervene between the point where the trap fell and where it should and would have fallen if plaintiff’s co-employees had released the guy-wires as they were directed and as it was their duty to do. That, by reason of the falling of the trap at the point where it did fall and the intervention of the tree between the point and the point where the plaintiff was standing and where the trap should have fallen, the • guy-wire which the plaintiff had hold of, and by which he was attempting to guide the fall of the trap, was drawn around and against said tree in such a manner that, when it was tautened, it struck the plaintiff in the abdomen and side, breaking two of his ribs and severely bruising and injuring him in the abdomen and side. That, if the plaintiff’s co-employees had released the said guy-wires as it was their duty to do, said trap, by the guidance of the plaintiff, would have fallen at a point where such an injury as occurred to plaintiff could not have happened, and that said injury was due solely to the negligence of plaintiff’s co-employees by failing tó release the wires which they held, as they were instructed to do.
    It states further that the defendant company caused him to be treated by its physician; that he remained in the hospital for four days, suffering severe pains in his abdomen and side; and that he was unable to work for thirty days, after which he was given a pumping job requiring no great exertion, and he continued at that work until the 15th of the following May. That thereafter he began to suffer severe pains in his bowels, and any exertion requiring the exercise of the muscles of the abdomen caused him intense pain, and that the condition finally became worse and became so aggravated that he was rendered incapable of performing any manual labor, and that he had to undergo an operation in order to get relief. He was operated on in January, 1925, when it was discovered that his-injury had resulted in adhesions of the liver, stomach, intestines and gall bladder. Since the operation he has only suffered slight and dull pains in the region of one of the floating ribs. That two of the ribs are crooked since healing to such an extent that they materially interfere with the normal operation of his body, and that he suffered much pain, lost 30 days from work following .the injury, and has ever since been incapacitated from performing his usual and customary work. That he was a strong, able-bodied man, 28 years old, earning $180 per month at the time of the injury, and had expended $500 on account thereof.
    The answer denies every material. allegation of the complaint. Denies that the guy-wires attached to the trap had all been unfastened at the bottom before plaintiff gave the signal'for the men to release them; denies specifically that allegation of the complaint relating thereto, that the injury occurred as stated, and that it was due solely to the negligence of the plaintiff’s co-employees by failing to release the guy-wire which they held as they were directed to do; admitted that plaintiff worked for the company subsequent to Ms injury until the 15th day ol' the following- May; alleg’ed that injury resulted from his own carelessness and negligence, being the foreman in charge at the time of his alleged injury, wholly failed to take the proper precautions in dismantling said gas trap, or in attempting to throw the said gas-trap to the ground; that he, the said plaintiff, did not require his men to unfasten the guy-wires which were wrapped around trees, eight or ten feet from the gas-trap, before ordering the trap to be thrown to the ground; also pleaded contributory negligence and assumed risk, and a full release from all liability, executed by plaintiff on, the 16th day of March, 1923.
    The testimony tends to show that plaintiff was the gang pusher of the pipe-line crew and foreman'to direct the work over the men, and, if necessary, to help in performing the labor; was engaged in throwing gas-traps, as alleged in the complaint, when the injury occurred, and had been engaged in that work for 12 or 15 days; had thrown two traps of the same kind as the one by which he was injured and two of other, styles. He described the occurrence as follows: “The trap we were working-on at the time I was injured consisted of an iron pipe about seventy feet high and held in position by four guy-wires fastened to -the top of the pipe and extending in four different directions to the ground, where they were fastened to stakes and trees. I was directed by Joe Tipson, foreman of the company, to do this work, and the only directions he gave me was to throw them down, turn-loose the guy-wires and throw them down in a manner to save them if I could. My only experience in throwing these traps consisted of about two days’ work altogether. In order to do this work, first we stripped the trees of everything, then we took the guv-wires loose from their permanent wrap. We kept one wrap to hold it until I got everything ready. The men were holding these wires where they -were tied to the trees and stakes, and, at a given signal, they were to release the wires, and, by pulling of the wire that I held, the trap was guided in the direction I wanted it to fall. I had personally seen that the wires had been released and were in position before I gave the signal. I gave the signal ‘ready,’ ‘let’s go,’ or something like that, and the man to my right failed to turn loose. He was out of my sight. There was nothing in the way to keep the men from releasing the wire, if they had obeyed instructions, if the man had released his wire, the trap would have fallen in the way I was pulling. The ones I had already thrown had fallen the way I intended. As the men to the left were slow in turning their line loose, this line on the trap had fallen four feet out of its course before these men to the right ever turned loose. "When the trap fell there was a tree here, and the cable went around the tree, and snapped back and hit me across the side and'back. Floyd Collins was holding the line with me. and helping me guide the trap — he was on the‘left side of the wire, and out of danger. There was no danger in my position if the men had turned their wire loose as directed. The trap weighed about 1,200 pounds-. The men understood what they were to do when the release call was given; they helped me to throw the other two traps. Immediately after I was knocked down by this guy-wire I just felt as if the breath was knocked out of me. That was practically all the pain I had at that time. I had cramps and pain. There was a little streak around my whole body, except a small place in front. I was about a mile from home; I walked this distance, and, while walking home, I had to creep and hold my abdomen as hard as I could with my hands. I cleaned myself up as best I could, and had a little supper. We sent for a doctor then. The company doctor came out .there about 11 o’clock. Jess Thomas went after the doctor; he saw Mr. Parks in town, and he went with him to Dr. Neiheuss. He came about 11 at night. The next time I sent for Dr. Neiheuss he sent an ambulance for me. I stayed in the hospital four days. The hospital belonged to Dr. Neiheuss. He bandaged me up, and the nurse gave me an enema. When I left the hospital, the doctor had not declared my condition. I was still wearing an adhesive tape bandage, which I kept on about ten days. After the bandage was taken' off, the doctor gave me a prescription for some medicine; he said it was for my spleen.”
    Plaintiff stated that the guy-wires had been released and unloosed, except just enough to hold until he gave the signal to let go; that all the other men were in sight but one when he gave the signal, and the signal was given so all could hear. When the pipe fell, it whipped the guy-wire around the tree, and the end struck plaintiff across the abdomen and side. He remained at the place of injury about 20 minutes, and was able to go home by himself. Later he was sent to the hospital by appellant company, and was under the observation of Dr. Neiheuss.
    Plaintiff admitted that no representations were made to him about his condition at the time he signed the release, and that he signed it voluntarily, understanding its effect; stated that Dr. Neiheuss had made representations to him before signing it, answering the question relative thereto ’ as follows: ‘ ‘ The day I brought the X-ray picture back to Dr. Neiheuss, he told me, he says, ‘ That shows no fracture. ’ I asked him in particular if it showed a rupture of the diaphragm. He said no, that the muscles around my ribs were out of place, and when they ■became normal they would be all right. ’ ’ He said he executed the release upon these representations about four months after they were made.
    Dr. Neiheuss stated that he operlated a hospital of his own at El Dorado, and treated appellee for the injury, and sent the bill to the oil company. That he saw appel-lee on the evening of the 16th or the morning of the 17th of November, 1922, and he came to the hospital on the 17th and remained there two days, and was discharged. He returned the 2d of December, and was treated again two or three times before being discharged. He remembered that plaintiff was injured by a guy-wire striking him on the side, lower abdomen or lower chest, over the ribs, and he had a bruised condition. The X-ray taken did not show any fracture of the ribs, and there were no symptoms of any severity that would indicate a fracture. His general condition was not sufficient to keep Mm in the hospital any longer than two days, and he told him that he thought he was ready for duty, and would he all right, as was usual in such cases, hut, if he did not get all right, to return for treatment. He never returned. Further stated that plaintiff made no complaint about any trouble with his gall bladder, and that, after his treatment of him at the hospital and the examination of the X-ray made, if he, in 1925, had adhesions affecting the gall bladder, witness would not have attributed it to that injury; that adhesions must be the result of an inflammatory condition; plaintiff had no symptoms, at the time he was treated for the injury, of any such trouble. Witness had never had a casé of adhesions involving the gall that was caused from an outside injury, and did not think any adhesion^ involving the gall bladder in 1925 could have been caused by the injury; that such inflammation of the gall bladder region is caused by infection, and none of these conditions existed at the time he made the examination and treated plaintiff.
    Other physicians testified to like effect, but one thought that the condition might possibly have developed from the injury, and plaintiff testified that it did.
    The court instructed the jury, giving, over appellant’s objections, instructions No. 2 and No. 3, and on its own motion gave No. 2 as follows:
    “No. 2. If you find from a preponderance of the evidence that the plaintiff was injured while in the employ of the defendant, and was sent by the defendant to a hospital to be treated; that he was treated by a physician or physicians employed in said hospital, and was by said physician discharged; that, later, he returned to the hospital for examination and information, and was assured by the physicians so treating him that there was nothing seriously wrong with him and it would only require time for the muscles and ligaments to heal and stretch, and, after a lapse of time, he would be all right; that the plaintiff believed said representations to be true, and, relying upon such representations, he executed the release offered in. evidence by defendant, and would not have executed said release but for such representations, and it turned out that such representations were untrue, the plaintiff would not be bound by such release, and you should find for him upon that issue.
    “No. 3. If you find for the plaintiff you will assess his damages at such sum as will compensate him for the bodily injury sustained, if any; the physical and mental anguish suffered and endured by him in the past, if any; and that which he will endure in the future, if any, by reason of the said injury; his loss of time, if any, and his pecuniary loss from his diminished capacity for earning money in the future, if any; and from these, ids proved from the evidence, assess such damages as will compensate him for the injuries received.”
    “No. 2. You are instructed that, while the defendant assumed all risks incident to his employment, yet you are further instructed that he assumed no risk incident to the negligence of his fellow-employees.”
    The court refused to give appellant’s requested instructions Nos. 4 and 5, as follows:
    “No. 4. If you find from the evidence that plaintiff, Ben Hedge, did, on the 16th day qf March, 1923, execute the release in the words and figures set out in defendant’s answer, without fraud and misrepresentation on the part of the defendant, its servants and employees, and for the consideration named in said release, then the plaintiff is bound by his release, and cannot recover, and your verdict will then be for the defendant.
    “No. 5. If you find from the evidence in this case that the plaintiff was foreman at the time and place of the injury, and that, as such foreman, it was his duty to see that the guy-wires were released before the trap was lowered, and that the plaintiff gave orders to lower the trap before the guy-wires were released, and that this was the cause of the injury complained of, and you so find from the evidence, you will find for the defendant. ’ ’
    And also to instruct a verdict in appellant’s favor.

      The jury returned a verdict against appellant, and from the judgment thereon this appeal is prosecuted.

      T. M. Clifford and Norwood £ Alley, for appellant.

      Lake, Lake £ Carlton, for appellee.
   Kirby, J.,

(after stating the facts). It is earnestly insisted by appellant that the court erred in not giving its instruction No. 1, directing the jury to return a verdict in its favor. It is true, as appellant contends, that plaintiff did not plead fraud, misrepresentations or mistake in the procurement of the release, -which appellee admitted that he signed voluntarily and understanding its effect, about four months after he had been discharged from the- hospital after treatment for the injury, and resumed work. It was not necessary, however, for plaintiff to file a reply alleging that the release was given under a mistake of fact as to his condition, brought about by the misrepresentations of the physician that had treated him, at appellant’s instance, at the time of his discharge from the hospital. The answer setting up the release as a discharge., from liability did not relate to a counterclaim or set-off, and is deemed controverted, in legal contemplation, as though by direct denial of the allegation or an avoidance of its effect, by such a statement of its procurement as was proved. Section 1231, C. & M. Digest.

This court has frequently held that a release executed by an injured party, relying upon the mistaken opinion of the physician of the party responsible for the injury that it was slight and temporary, and not permanent, is not (binding upon the party making it. St. Louis, I. M. & S. R. Co. v. Hambright, 87 Ark. 614, 113 S. W. 803; St. Louis, I. M. & S. R. Co. v. Reilly, 110 Ark. 182, 161 S. W. 1052; St. Louis, I. M. & S. R. Co. v. Morgan, 115 Ark. 529, 171 S. W. 1187; Griffin v. St. Louis, I. M. & S. R. Co., 121 Ark. 433, 181 S. W. 278; C. R. I. & P. Ry. Co. v. Smith, 128 Ark. 233, 193 S. W. 791; and Kiech Mfg. Co. v. James, 164 Ark. 137, 261 S. W. 24.

This release was executed more than four months after plaintiff was discharged from the hospital, and without any representations whatever made by appellant to appellee, at the time of its execution, relating to his condition and injury; but the jury apparently believed that appellee relied upon the statement made by the physician employed to treat him, at the time of his discharge from the hospital, that his injury was only temporary and not serious and permanent, and also that the serious condition which developed, necessitating the operation in 1925, was the result of it, notwithstanding the majority of the experts testified that such condition could not have resulted from an outside injury, and was caused from some infection. One physician, however, stated that it might have resulted from such an injury, and appellee testified that it did, and the evidence cannot be said to be undisputed, and the court did not err in refusing to direct a verdict.

No error was committed in the giving of instruction No. 2 complained of. It does not assume that Dr. Nei-heuss was an agent of the appellant, as is contended, but leaves to the determination of the jury the question of whether the appellee had been sent by appellant company, after his injury, to the hospital of Dr. Neiheuss for treatment, and also the question of whether or not the physician made to him the untrue representations that his injury was slight and temporary, and but for reliance upon which the release would not have been executed.

It is true that Dr. Neiheuss conducted an independent hospital, but treated, at the appellant’s instance, some of the persons injured in' its service, and the appellee, by its express direction, as the undisputed testimony shows.

Appellant next contends that the court erred in giving plaintiff’s requested instruction No. 3. Only a general objection was made to the giving of said instruction, however, and, if appellant had desired that it should have included the question of comparative negligence or for diminution of the amount of damages on account of the alleged contributory negligence of plaintiff, it should have made such specific objection thereto, or have asked a correct instruction including such phase of the law.

It is obvious, too, that the court, in instruction No. 2, given on its own motion, intended to instruct the jury that the plaintiff assumed all risk incident to his employment, instead of the defendant, as stated, but a specific objection would have doubtless resulted in the correction of this instruction, which would not have been misunderstood, anyway, it being apparent that the word defendant was inadvertently used instead of plaintiff. Under the law the servant does not assume the risk of injury from the negligence of his fellow-servants, which was unknown to him, and the danger of which he could not appreciate, and nothing had occurred, as shown by the undisputed testimony herein, in the conduct of appellee’s helper.before the falling of the pipe, to indicate that he was- not discharging and would not discharge the duty incumbent upon him, which appellee had the right to assume that he would do. C. R. I. & P. Ry. Co. v. Daniel, 169 Ark. 23, 273 S. W. 15; Bruce v. Yax, 135 Ark. 480, 215 S. W. 265.

Assumption of risk is an affirmative defense, and the burden of proving it rests upon the defendant, unless it is shown by plaintiff’s testimony. Central Coal & Coke Co. v. Burns, 140 Ark. 147, 215 S. W. 265.

No error was committed in refusing to give appellant ’ist requested instruction No. 4, this question being sufficiently covered and submitted by instruction No. 2, given at plaintiff’s request, and No.' 3, at the request of defendant, and the court’s instruction that the jury should consider all instructions together and as a whole. Then, too, the instruction is not an accurate statement of the law, under the circumstances of this case, since fraud and misrepresentation on the part of the defendant, its servants and employees, was not necessary to be shown in the procurement of the release in order to avoid it, but only the condition as disclosed in said instruction No. 2, given, resulting from reliance upon representations honestly made by appellant’s'physician, to whom appel-lee was sent for treatment, and relied upon as being true by appellee when making the release, and which later proved to be untrue.

There was no testimony upon which to base appellant’s requested instruction No. 5, refused, and, if it could be regarded, in effect, an instruction on contributory negligence, it was not a correct declaration, since contributory negligence would not bar the servant’s right of recovery, but only require the diminution of damages by the jury in proportion to the amount of negligence attributable to the injured employee, and no error was committed in refusing to give it. Section 7145, C. & M. Digest.

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


author: Mehaepy, J.

text:
    Campbell v. Parkin Home Bank.
    Opinion delivered April 18, 1927.
    1. Bills and notes — mistake in signing note. — Testimony of the maker of a note, in a suit thereon by the payee hank, that he knew all the facts at the /time he signed a note and that no facts were concealed from him, is conclusive against his contention that he .signed under a mistake of facts or under false representations.
    2. Bills and notes — fraud and misrepresentation. — In a suit by the payee of a note where the defenses of mistake of fact and false representations inducing the signing of the note were completely disproved by defendant’s testimony, the court properly directed a verdict for plaintiff.
    Appeal from Cross Circuit Court; G. E. Keck, Judge;
    affirmed.

      T. E. Lines, for appellant.

      Killough, Killough & Killougk, for appellee.
   Mehaepy, J.

The appellees filed suit in the circuit court of Cross County, alleging that the Parkin Home Bank is a banking corporation under the laws of the State of Arkansas, and that the defendants, including appellant, being indebted to plaintiffs on the 9th day of January, 1924, executed and delivered to plaintiff their promissory notes for $909.44, due and payable on the 15th day of January, 1924.

Albert Campbell, the. appellant, filed a separate answer, admitting that he executed the note, but denied that he owed the plaintiff anything. He alleged that, on the date of the execution of the note, he was confined to his bed with pneumonia and under the treatment of his physician, with high fever, and, under pain and misery as well as drugs, and, on account of his physical and mental condition on that day, he was not competent to transact business of any sort; that, while in such condition, the officers and employees or representatives of the bank came to his home and prevailed upon him to sign the note, representing to him that he had purchased a certain lot of cotton, and had not left with the plaintiff funds to cover the check that he had caused to be issued in payment of the cotton; that said representations were false in that defendant had left funds to cover said check; that such information was not at the disposal of the defendant, 'but was in the possession of the plaintiff; that plaintiff was defendants banker, and in a position of trust, and defendant had a right to rely upon his representations; that he signed the note on account of said representations and under the conditions he had described. He alleged that the representations were false, and known to plaintiff to be false, and made to the defendant for the purpose of getting his signature covering an overdraft of his codefendant, and with which this defendant had no connection; that this defendant relied upon such representations, acted thereon, and is injured to the extent of any liability that may be attached to said note; that, if there was no fraud, said note was signed by mistake, and is void; that the note should be canceled, and that he had no complete and adequate remedy at law, and asked that the cause be transferred to equity.

The physician testified, in substance, that he attended the defendant, who finally took his bed, and that he treated Mm during 'the month of January; that, on the 9th day of January, he was getting a little better from the pneumonia • he had after the grippe. He’- learned from defendant’s wife that he had signed the note that day. He was taking medicine that day. He had been sick about ten days, and was very much depressed, and had quite a bit of fever, but, at that particular time, he had a subnormal temperature; Dr. Smith said he was .giving him a stimulant and cough medicine. He had fever all along for 6 or 8 days. When in a subnormal condition, he would not be in condition to do business any more than when his temperature was above normal. He was not delirious, just depressed and weak.

The appellant himself testified, in substance, that he went to the bank and told Mr. Phillips that Max was going to buy some cotton for him, and to honor his cotton checks and he would take care of them. “I covered Max’s checks with Memphis checks; I did this nearly every day. I would check up the stubs we kept and the carbon copy, and would make a check to the Parkin Home Bank for the amount; those checks were made payable to the bank; the checks I gave Max for living expenses I made payable to Max; I did flot know and was not concerned how the bank was keeping the cotton account, and I do not know how many accounts Max had at the bank. The' cotton season closed in December, and I did not buy any cotton in January. Mr. Phillips and Mr. Hueman came into my room; I was sick in bed; I had been in bed a little over a week, with pneumonia; they said that Mr. Green was out there with a check that was given to Connor Brothers for this cotton, and there was no money to pay it. ' They wanted a note to cover the check. I had never had any of my checks go wrong or anything, and Mr. Hueman said Mr. Green was about to cut his throat, and Mr. Phillips asked me to sign the note, and I did. I really did not give the matter any thought. It was a question of my check going wrong, and I signed the note. I don’t suppose they were there over five minutes; I did not see Mr. Green or the check. They said he was out in front of the bouse. Mr. Phillips said he would pay the check if I would sign it with Mr. Hueman; neither said anything about the money having been there before to cover the check. Hueman had been buying cotton for me a month or six weeks; I had confidence in his ability to buy cotton; according to the agreement I had with Mr. Phillips, I was to take care of the cotton checks; they should have kept it so they could have told; the bank had authority from me to pay any checks that came in signed from Max Hueman and marked cotton; the bank did not know how many bales I had agreed for Max to buy; no one misrepresented to me the things when they came to the house with the note; they said Mr. Green was there with the check and there was no money to cover it, and I have since learned that that was true. ■ They had let Max draw the money out. I have never had any of my checks to go wrong, and, when they proposed that I sign the note, I signed it. If I had been well, I would have stated that I would not sign the note because I had already gone in and covered the check. I should have known that I had, prior to that time, covered the check, but it just struck me that this check was out there -and it was up to me to cover it. Whether I thought of it or not, I knew that I had covered this check. When I signed the .note, I knew that I was signing it; I guess there were no facts concealed by the parties when the note was signed. I was familiar with those facts, but there was the question of my check coming back. I thought I had covered everything; I relied on Mr. Phillips for keeping this cotton account at the time I signed the.note.”

Max Hueman testified with reference to the transaction, but we deem it unnecessary to set out his testimony, because appellant relies on two grounds only, and the testimony of this witness does not affect either proposition. In fact, the. testimony of the appellant himself, we think, is conclusive on the questions argued. The first contention of- appellant is that there was a mistake of facts. Of course, if there was a mistake of facts, and appellant signed the note with a misapprehension of fact, after using proper diligence to ascertain and know what the facts were, this would he a defense to this action. But- it appears from the record in this case that there were no facts that appellant did not know, and this court has recently said:

“The means of information as to the value of the land was as accessible to Pipkin a's it was to Reed. The facts of this record bring the casé well within the doctrine of the many cases of this court to the effect that, if the means of the information are equally accessible to both parties, they will be presumed to have information themselves, and, if they have not done so, they must abide by consequences of théir own carelessness.” Lone Rock Bank v. Pipkin, 169 Ark. 491, 276 S. W. 588.

But, as we have said, there were no facts in this case that the ¿ppellant did not know. The appellant himself testified:

‘ “Q.' But you knew those facts as well as any of those parties did, didn’t you? A. Yes sir. Q. At the time you signed this note, state whether or not you knew that you had deposited money in the bank to cover this particular check? A. Yes, I was under the impression that I had, but I signed this note to keep this check from going bad. That was what I wanted to do.”

Appellant again testified, as abstracted by himself: “Whether I thought of it or not, I knew that I had covered this check. I knew that I had covered all of them. When I signed the note I knew I was signing it. I guess there were no facts concealed by the parties when the note was signed. I was familiar with those facts, but there was the question of my check coming back. ’ ’

Again, in testifying about -the parties coming to him at the time he signed the note, he said: “I do not suppose they were there over five minutes. Mr. Phillips had the note, and went in the room and made it out; I did not see Mr. Green or the check; they said he was out in front of the house; Mr. Phillips said lie would pay the check if I would sign the note with Hueman; neither said anything about the money having been there before to cover the check.”

It therefore appears, from the appellant’s own testimony, that he knew all about the facts, and that there was no mistake of fact that caused him to sign the note.

His next contention is that there was a false representation of facts, but appellant’s own testimony completely answers this contention. He does not claim that there was any false representation of fact. He says in his testimony: “No one misrepresented to me the things when they came to the house with the note. They said Mr. Green was there with the check, and there was no money to cover it, and I have since learned that that was a fact; they had let Max draw the money out.” Then he said, as we have already quoted, that there were no facts concealed by the parties.

To affect the validity of any contract for false representation or misrepresentation, the misrepresentations must be material. The parties must be deceived, and must rely on the representations made. In this case it conclusively appears that there were no false representations made; that the appellant was not deceived; that no advantage was taken of him or sought to be taken of him, and he does not claim in his testimony that there was.

There was- therefore no question of fact to be submitted to the jury, and this court has recently said: “Hence there was no question to be submitted to the jury, and the court did not err in instructing a verdict for the plaintiff.” Mo. Pac. Rd. Co. v. Wellborn & Wells, 170 Ark. 469, 280 S. W. 18.

And we conclude in this case that there Avere no questions of fact to be submitted to the jury, and that the cou-rt did not err in directing a verdict for the appel-lees, and the case is affirmed.