author: Smith, J.

text:
    Raines v. Bolick. Raines v. Meyer.
    Opinion delivered July 13, 1931.

      Wallace Townsend, for appellant.

      Carmichael <& Hendricks, A. L. Botenberry, H. M. Jacoway and Lee Miles, for appellee.
   Smith, J.

It was stipulated by the parties to this litigation in the trial of the causes in the court below as follows: Mabelvale Road Improvement District No. 29 of Pulaski County, Arkansas, was organized under the provisions of act 126 of the Acts of 1923 (General Acts 1923, p. 84), and the commissioners of the district assessed the benefits of the proposed improvement against the lands therein, and, after so doing, entered into a contract with Pulaski County, through C. P. Newton, the judge of the county court, for the construction of the improvement, and certain work was done under this contract. Judge Newton was succeeded in office by Judge W. F. Sibeek, who refused to carry out the contract made by his predecessor unless the district would pay $20,000 more than the contract price of the work, which additional sum was to be used in tbe construction of tbe necessary bridges in the district. Having- refused to further comply with the contract except upon the condition stated, the county has waived its claim for compensation for the work done by it under the contract.

Litigation arose over the power of the commissioners of the district to issue and sell bonds to promote the improvement, and on March 9, 1931, this power was upheld in the opinion of this court delivered that day in the case of Moreheart v. Mabelvale Road Imp. Dist. No. 29, ante p. 411, but it has been stipulated by the parties in the instant ease that this power had not been exercised.

At the 1931 session of the General Assembly an act was passed, which has been numbered 231 and which was approved by the Governor on March 26, 1931, which was entitled, “A bill for an act to be entitled £An act to repeal Mabelvale Road District Number '29’.” This act reads as follows:

“Be it enacted by the General Assembly of the State of Arkansas:
“Section 1. That Mabelvale Road District Number 29, Pulaski County, Arkansas, created by order of the Pulaski County Court on the 10th day of October, 1927, and recorded in county court record 42, page 203, of Pulaski County, be, and .the same is, hereby repealed.
“ Section 2. That all laws and parts of laws in conflict, herewith be, and the same are, hereby repealed.”

Upon the authority of this act certain landowners in the improvement district brought suit to restrain the commissioners of the district from further proceeding towards the construction of the proposed improvement, and they prayed that a receiver' be appointed to wind up the district’s affairs.

In the answer filed to this complaint it was alleged that the act of 1931 was void, but the court below held it was a valid enactment and abolished the district, and the commissioners were ordered to make a full and final report of all funds on hand, to the end that the district might be dissolved and its affairs wound up, and the commissioners have prosecuted this appeal.

The question for decision is whether the act of 1931 violates Amendment No. 12 to the Constitution. This amendment reads as follows: “The General Assembly shall not pass any local or special act. This amendment shall not prohibit the repeal of local or special acts.”

In support of the decree of the court below upholding act 231 as valid and dissolving the district, the following argument is presented. Prior to the adoption of Amendment No. 12 the General Assembly had power to create improvement districts by special acts, and it had the power also to dissolve them. Since the adoption of the Amendment the General Assembly has been deprived of the power to create districts by special acts, but retains the power to abolish them. In the brief of learned counsel for the property owners who oppose the district and seek its dissolution it is insisted: “If the Legislature is vested with authority under Amendment No. 12, to repeal a road district or similar districts created by special act, it therefore has authority under said amendment toj repeal any local district created upon petition. If the Legislature can create a road district, it therefore can repeal a road district, unless prevented by Amendment No. 12.” Are counsel correct in this proposition?

What is the effect of amendment No. 12 upon the act of 1931? This amendment consists of two sentences, and contains two provisions. By the first sentence all future sessions of the General Assembly are inhibited from passing any local or special act. By the second any future General Assembly was authorized to repeal any local or special act.

It was held in the case of Gregory v. Cockrell, 179 Ark. 719, 18 S. W. (2d) 362, that the power to repeal a local act in its entirety conferred the right of partial repeal, even though the exercise of that power rendered a local act more local in its nature by making it apply to an even smaller portion of the State than it formerly did. But the act which accomplished that result was a repealing act.

The caption of that act reads that it is “An act to repeal in part act No. 136 of tlm General Assembly of the State of Arkansas, approved February 17, 1921, entitled, ‘An act to provide for a stock law and to regulate the operation of the same in Chicot County and all that part of Ashley County lying east of Bayou Bartholomew, Arkansas, and for other purposes,’ so far as it is applicable to that part of Ashley County lying east of Bayou Bartholomew.” The recitals in the body of the act conform to its caption and make clear the purpose that only a partial repeal was intended. It was provided “That this act shall not be construed so as to repeal or amend any part of said act 136 as it is applicable to any part of Chicot County.”

It appears from both the majority and the dissenting opinions in the case of Gregory v. Cockrell, supra, that there was no question as to the intention of the General Assembly. The point of difference in the two opinions was whether the General Assembly had the power to do what it obviously intended. The intention of the General Assembly was there expressed to be to repeal a local law in part, and the law to be repealed in part was described by its number, by the date of its approval, and by its title, so that the legislative intent might certainly appear. There is in the act of 1931 an entire absence of any reference of any kind to any act of any number, date or title. It would appear therefore that in the passage of the act of 1931 there ivas no legislative intention to repeal any prior act, either general or special. Certainly, some of these methods of identification which are usually employed would have been employed had there been an intention to repeal an existing law, whether that law was general or special or local in its nature.

It was said in the Gregory case, supra, that the legislative power is the authority to make laws and to alter or repeal them, and it is just as elementary to say that the courts, in construing laws passed by the Legislature, to ascertain the legislative intent, are limited to a consideration of the language -which the Legislature has employed. We have therefore no authority, whatever the power of the Legislature may be, to say that a law has been repealed, because the power to repeal exists, where the Legislature has employed no language to indicate an intention to exercise that power.

Of course, the Legislature can repeal a local law. It can repeal either local or general laws, but there is nothing about the act of 1931 to indicate an intention to repeal the act of 1923, whether it be local or general. The question is not therefore what the Legislature may do, but is rather what the Legislature has done.

If the act of 1931 has repealed a law, either general or local, it is valid legislation, for the General Assembly has this power, but it has not exercised that power. On the contrary, the obvious purpose of the General Assembly by the act of 1931 is to abolish Mabelvale Road District No. '29 in Pulaski County, Arkansas, and to vacate the order of the Pulaski County court made on the 10th day of October, 1927, which order of court was recorded in county court record 42, page 203, and no other purpose is manifested. The General Assembly was content to pxercise this power, and this power alone, without repealing the act under which the district had been organized, whether that act be general or local or special.

Without attempting to repeal any law, general or local, the General Assembly has passed an act, which is, itself, local or special. It has vacated a court proceeding which applied to a small part of a single county of the State. The act of 1931, by its express terms, applies only to the territory embraced in Mabelvale Road District No. 29, and not to any other portion of the State. It abolished the road district and does not purport to do anvthing else, and it does this without repealing the act under which the district was created. The act applies to a portion of the State, much less than the whole thereof, and must therefore be itself a local or a special act.

Conceding that, the General Assembly had the power, in the absence of amendment No. 12, to enact this legislation, that amendment deprived it of the power, because the act of IDS! changes the relation of the property in the district to the district, and no other territory in the State has been affected, and this has been done without repealing or attempting to repeal any existing law, local or special or general. Nothing is done or attempted by the act of 1931 except to repeal or abolish an improvement district, which the parties have stipulated was organized under the provisions of the act of 1923 by an order of the county court, which is itself particularly described.

Had there been any intention to repeal the act of 1923, the simplest and easiest thing to do would have been to say so, but this ivas not done. The ordinary procedure to repeal a law, general or special, is to recite in the repealing act that a particular act, so described as to definitely and certainly identify it, is thereby repealed. But this was not done. No prior legislation, general or special, was definitely described or otherwise referred to in the act of 1931, and, as we have said, there has been no repeal of any law, but only an enactment changing the status of a small area to a general law. The act of 1931 is therefore a local or special act, within the inhibition of amendment No. 12, and is void for that reason.

The decree of the court below will therefore be reversed, and the cause will be remanded, with directions to enter a decree conforming to this opinion.


source: Caselaw Access Project

author: Hart, C. J.,

license: Public Domain

text:
    Merchants’ & Planters’ Bank & Trust Company v. Ussery.
    Opinion delivered May 25, 1931.

      Bridges, McGaughey •& Bridges, for appellant.

      E. W. Brockman, for appellee.
   Hart, C. J.,

(after stating the facts). The original decree was entered of record on May 9, 1930, which was a regular day of the April term of the Jefferson Chancery Court. The motion of the defendants to vacate the decree was filed on the 19th day of November, 1930, which was a day of the November term of said court. Acts of 1923, p. 376.

A court with terms fixed by law has no power to vacate a judgment or decree after the lapse of the term at which it was rendered except for causes named in § 6290 of Crawford & Moses’ Digest. Terry v. Logue, 97 Ark. 314, 133 S. W. 1135; Robinson v. Citizens’ Bank of Pettigrew, 135 Ark. 308, 204 S. W. 615; Feild v. Waters, 148 Ark. 325, 229 S. W. 735; and American Investment Co. v. Keenehan, 172 Ark. 832, 291 S. W. 56.

Where a defendant was prevented, without any fault on his part, from appearing or making his defense to the action, iris case comes fairly within the spirit of the seventh subdivision of § 6290 of Crawford & Moses’ Digest. Henton v. Euper, 63 Ark. 323, 38 S. W. 517; and Karnes v. Ramey, 172 Ark. 125, 287 S. W. 743. In each of these cases, it was held that where a party was not served with summons and did not know of the pendency of the action in time to make a defense, his case falls within the seventh subdivision of the section which provides for vacating a final judgment or decree after the expiration of the term for unavoidable casualty or misfortune preventing the party from appearing or defending.

Mrs. Virginia Ussery does not allege that she was not served with summons but claims that her case falls within the seventh subdivision of the section above cited because one of her children told her that she would at once see counsel and advise her what defense he might make, and that she relied upon his promise to do so, and that he failed to carry out his promise. Her excuse was not sufficient. In the case of Blackstad Mercantile Co. v. Bond, 104 Ark. 45, 148 S. W. 262, the court said that negligence on the part of one’s own attorney is not sufficient to justify setting aside a judgment. The reason is that when a. party employs an attorney at law to defend his suit in the courts of the country, he presents him 1 o the court as his accredited agent, and, as such, he must be concluded by any acts or omissions where no fraud or unfairness is made to appear. That principle controls here. Mrs. Virginia Ussery made her son her agent to procure counsel and conduct her defense to the action. He failed to do so, and she must be bound by his negligence or failure, which was not occasioned by any misleading conduct on the part of the opposing party or misleading statement made by any officer of the court. Her failure to make a defense was due entirely to the negligence or omission of her own agent, and she must he hound by his misconduct. It was the duty of the defendant to keep herself informed of the progress of the case and obtain relief on the ground of unavoidable casualty under the statute, she must have shown that she was not guilty of negligence and cannot have relief if the taking of the decree against her appears to have been due to her own carelessness. Trumbull v. Harris, 114 Ark. 493, 170 S. W. 222.

As to the defendant, Cassie B. Ussery, but little need be said. The original decree finds, and the return of the sheriff of Jefferson County shows, that this defendant was duly served with summons in the manner prescribed by law. No' denial of this fact is made by this defendant. He does not state or allege that any fraud was practiced on him nor that any unavoidable casualty prevented him from answering or making his defense to the original action. Therefore he does not even allege any ground for opening the decree under the provisions of § 6290 of the Digest.

We now come to the defendant, Sally Ussery Nor-wood. She alleges that she was not served with summons and sets up a defense to the original action. In an action to vacate a judgment rendered at a former term of court on the ground that there was no service of process, the burden of proof is upon the party asserting it because the officer’s return of service is prima facie true. Holman v. Lowrance, 102 Ark. 252, 144 S. W. 190; and Karnes v. Ramey, 172 Ark. 125, 287 S. W. 743.

In this case, the return of service of summons by the sheriff in the original suit shows that the defendant, Sally Ussery Norwood, was duly served with summons in Jefferson County, Arkansas, on the 17th day of April, 1930, by having a true copy of the summons delivered to her by the sheriff. The return was filed with the clerk of the court on the 18th day of April 1930. A decree was entered of record on May 9,1930. It recites that service of summons was duly had on Sally Ussery Norwood by the sheriff serving her with summons in the manner prescribed by law. In the application to vacate the decree, this defendant contents herself with mailing her affidavit to the petition to vacate the decree. The burden was upon her to show that no service of summons was had on her, and we do not think that her affidavit merely was sufficient to overturn the return of the sheriff as to the service of summons, when considered in connection with the attendant cifcumstances in the case.

Therefore we hold that the court erred in vacating the original decree and in allowing the defendants to interpose a defense to the action. The order of the chancery court opening the decree rendered at the former term of the court will be reversed, and the cause will be remanded with directions to the chancery court to overrule the application of the defendants to vacate the decree under the provisions of § 6'290 of Crawford & Moses’ Digest.

It is so ordered.


text:
    Faulkner County Board of Education v. Common School District No. 103.
    Opinion delivered May 25, 1931.

      J. Wendell Henry and R. W. Robins, for appellant.

      G. A. Holland, for appellee.
   Smith, J.

Electors residing in Rural Special School District Number 2, Common School District Number 37, Rural Special School District Number 49, Common School District Number 103, and Conway Special School District Number 1 petitioned the county board of education of Faulkner County, in which county all of said districts were located, pursuant to act 156 of the Acts of 1927 (page 549), to abolish the four districts first named and to consolidate them with the Conway district.

A remonstrance was filed by the directors of Common School District Number 103, but the prayer of the petition was granted by the board of education, from which order an appeal was duly prosecuted to the circuit court.

The practice upon such appeals is defined in the cases of Board of Education of Van Buren County v. Suggs, ante p. 535, and School District No. 26 v. School District No. 32, 177 Ark. 497, 6 S. W. (2d) 826. See also School District No. 14 v. County Board of Education, 177 Ark. 734, 7 S. W. (2d) 798.

Pursuant to the practice defined in the cases cited, the circuit court heard testimony and modified the order of the board of education by excluding district 103 from the consolidated district, which had been designated Conway Special School District Number 1, and from this order and judgment the Conway district and the board of education have appealed.

We think the court was in error in the order made. The consolidated district, as established by the circuit court, was not the district petitioned for and established by the board of education. The court should either have granted the prayer of the petition or have denied it entirely, and should not have adjudged that the consolidated district be established after excluding district 103. Rural Special School District No. 21 v. Common School District No. 87, ante p. 329; School District No. 26 v. Baxter County Board of Education, ante p. 295.

The judgment of the court below will therefore be reversed and the cause remanded, with directions to the circuit court to adjudge, upon the trial de novo which the statute contemplates, whether the district petitioned for shall be established, including all the five districts.


author: Humphreys, J.

text:
    Bourland v. Caraway.
    Opinion delivered May 25, 1931.

      James B.'McDonough, for appellant.

      Partain <& Agee, for appellee.
   Humphreys, J.

This is an appeal from separate judgments obtained by appellees against appellant in actions for personal injuries received in an automobile collision, which causes were .consolidáted in the circuit court of Crawford County for trial. The issue joined by the pleadings was whether appellees were injured by the negligent driving of appellant or through the negligent driving of appellee J. D. Caraway, with whom appellee Isham Burrow was riding as a guest.

Wheu the jury was being impaneled to try the case, counsel for appellees was allowed, over the objection and exception of appellant, in order to ascertain whether any of them were interested, to propound to the jury upon their voir dire the following question:

“ Any gentleman who may be called upon this jury, interested in any way, as an employee, agent, or stockholder in any liability insurance company for the protection against automobile accidents. ’ ’

The collision occurred late in the evening on the 7th day of July, 1929, about half way between Alma and Van Burén, when appellant, who was driving west, turned from the north side of the road to the south side thereof to pass automobiles in front of him. He passed one and intended to pass another and return to the north side of the road but the automobiles in the line of traffic on the north side were too close together for him to do so, and observed appellees, who were traveling east on the south side of the road toward him, and in an effort to prevent the collision, he threw on his brakes and turned his car south or toward the ditch on the left in the hope that appellees might pass between his car and the traffic on the north side of the road. The road was only 24 feet wide, including shoulders on each side of the concrete, which -was only 18 feet wide. Wlren the brakes were applied, appellant’s car skidded some 25 to 45 feet in an angling position across the road before it stopped, and, although appellees turned to the left in order to avoid striking appellant’s car, they struck it near the door, and the impact threw all of them out onto the pavement, rendering them unconscious.

The record reflects that Burrow, in addition to being rendered unconscious for several hours, sustained three large gashes on his forehead, a cut beside his eye, which left scars, and bruises on his knee, arm, and shoulder; that sixteen months after the accident he suffered severe headaches and kidney trouble and that he lost 25 pounds, which he never regained; that he was unable to work at his occupation from the date of the injury until September 1st; that he expended $17.50 for hospital bills and $37 to the Cooper Clinic.

The record also reflects that, in addition to being rendered unconscious, J. B. Caraway sustained a cut on his forehead, which left a scar, cuts and bruises on his knee, and a gash across his shin bone; that his front teeth were knocked loose, and that he remained in the hospital for several days; that he expended over $100 for doctors and hospital bills; that he was unable to return to his work for 46 days; that the ligaments in his knee were permanently injured.

The jury awarded damages to Burrow in the sum of $2,000, and to Caraway in the sum of $1,200 for their respective injuries.

The testimony introduced on behalf of appellees tended to show that appellant was wholly to blame for the collision; whereas that introduced on behalf of appellant tended to show that the fault was entirely with appellees.

The first contention for a reversal of the judgment is that the court erred in permitting counsel for appellees to ask the jurors if any of them were interested in any liability insurance company for protection against automobile accidents. It is argued that the only purpose of asking the question was to leave a false impression upon the minds of the jurors that appellant was protected by insurance against the accident, so that they would the more readily return a verdict in favor of appellees. The argument is not supported by the record. In answer to a question asked by the court, counsel for appellees stated that the question was propounded to obtain information. They were entitled to the information in order to intelligently exercise their right of challenge under the rule announced in the case of Smith-Arkansas Traveler Co. v. Simmons, 181 Ark. 1024, 28 S. W. (2d) 1052, and followed in the case of Ellis and Lewis v. Warren, 183 Ark. 613, 32 S. W. (2d) 167.

The second contention for a reversal of the judgment is that the court erred in giving each of nine instructions requested by appellees because they authorized a recovery without a finding of fact responsive to the declarations of law and responsibilities of drivers of automobiles required by the instructions. In other words, the instructions are assailed as being abstract or inherently wrong because not hypothetical. The instructions are not subject to such an attack and could not be unless they were without support in the evidence. Upon examination, we find that each of them was responsive to or touched upon some phase of the evidence. Correct declarations of law embodied in instructions are not abstract and inherently wrong simply because they do not require the jury to make a specific finding of fact before applying them. It was appellant’s privilege to request that the instructions be amended so as to make them concrete and hypothetical, and, had he done so, it would have been error on the part of the court to refuse the request, but the appellant contented himself with making a general objection to each of the instructions. The law of negligence and contributory negligence was correctly declared and given by the court, so it cannot be said that the instructions were inherently wrong because they did not tell the jury that, before they could find for appellees, they must find that appellees themselves were in the exercise of due care. The undisputed fact is that the injuries resulted from the collision, and that the collision was the result of either the negligence of appellant or appellees; and, as the court correctly declared the law of negligence and contributory negligence, the instructions were not inherently wrong because they failed to tell the jury that they could not find for appellees unless they found that appellant’s negligence was the proximate cause of the injury.

The third and last contention for a reversal of the judgment is that the verdicts were excessive. The extent of their injuries are set out above and fully warrant a verdict in favor of J. D. Caraway for $1,200 and Isham Burrow for $2,000.

No error appearing, the judgment is affirmed.


author: Hart, C. J.

text:
    Smith v. National Life & Accident Company.
    Opinion delivered June 1, 1931.

      Smith & Fitzsimmons, for appellant.

      Boy Penix, for appellee.
   Hart, C. J.

Two separate actions were brought to recover upon policies of life insurance issued by the National Life So Accident Insurance Company upon the life of Helen Draper Green. The first suit was for $154, and the second was for $90. The defense was that the amount of the recovery should be reduced on account of an erroneous statement of the age of the insured, and the amount due under the true age of the insured was deposited in court to fie tendered to the beneficiary.

By agreement of the parties, the two eases were consolidated, and the jury found, under instructions to which there were no objections, that Helen Draper Green gave her correct age of thirty-five years to the agent of the defendant company at the time of her application for insurance, instead of twenty-five years as stated in the application. The court rendered judgment against the defendant in favor of the plaintiff for the sum of $180, which was the amount that the premiums paid by the insured, Helen Draper Green, would have purchased for a person of the age of thirty-five years at the time of the application, and it was agreed between the parties that the insured, Helen Draper Green, was thirty-five years of age at the time of the application for insurance; and upon this appeal it is agreed that the only issue raised is as to the correctness of the ruling of the court in construing the clauses of the policies of life insurance in rendering the judgment above referred to.

The first policy contained a clause which reads as follows:

“If the age of the insured has been misstated, the amount payable hereunder shall be such as the premium paid would have purchased at the correct age.”

The second one contains a similar clause which reads as follows:

“In case of mistake or misstatement in the age the company will only be liable for the amount of benefits payable according to its table at the proper age.”

Counsel for appellant rely upon the case of Walker v. Illinois Bankers’ Life Association, 140 Ark. 192, 215 S. W. 598. In that case the policy contained a stipulation that, in the event of misstatement of age, the amount payable on the policy shall be such as the premium would have purchased at the correct age except where the true age was beyond the age limit at which insurance would have been granted by the association. In the latter case, the liability of the company ivas not to exceed the premium paid with four per cent interest. The age of fifty-five years was fixed as the limit upon which policies would be issued by the company. In the application tbe agent stated Barger’s age to be fifty-four years when in fact Barger was sixty-four years old. Barger did not read the policy and supposed that the agent had the right to issue it in accordance with the application which was written by the agent upon Barg'er correctly stating his age to him. There the court properly held that the insurance company was responsible for the conduct of its own agent, and that that part of the policy concerning the misstatement of age and providing that the amount to be recovered should be based upon the amount the premiums paid would have purchased at the correct age, has no application because the company had no authority to issue a policy upon the life of Barger at his correct age, because it was not authorized under its constitution and by-laws to issue policies upon the life of persons of that age. Consequently, the court held that the clause with regard to a misstatement of age had no application where the insured was over age and the policy had been procured by an agent of the company, who, by his own misstatement, had imposed on Barger and led him to believe that he had a valid policy.

In the very nature of things, it is manifest that clauses of the kind under consideration can only be applicable and enforceable when there is a valid and binding contract of insurance between the parties which has not been procured by fraud, and where there is only an innocent misstatement of age. This is made clear by the reasoning in the case of Lincoln Reserve Life Insurance Co. v. Smith, 134 Ark. 245, 203 S. W. 698. In that case, the clause in the policy provided that, if the age of the insured had been misstated, the amount payable thereunder should be such as the premiums paid would have purchased at the correct age, provided that age, at the time of the insurance, was not over sixty. There a full recovery of the amount of the policy was allowed, notwithstanding an innocent misrepresentation by the insured that he was fifty-three instead of fifty-nine. The reason was that, in order to obtain the benefit of the provision in the clause, the insurer must show that there was a purchasable policy according to the plan adopted at the true age of the insured. The court said that, according to the terms of the policy, there was liability for the amount named in the policy unless it could be lessened so as to be reduced to such an amount of insurance as the premium paid would have purchased at the correct age; and, unless that premium would have purchased a policy for a less sum, the liabilit}^ for the full amount continued. It was further said that it devolved upon the company, in order to obtain any advantage under this clause, to show that there was a purchasable policy at the true age of the insured, which the company failed to do. As stated by the court in that case, any other construction would nullify a provision concerning innocent misstatements of age where the true age of the insured exceeded the limit beyond which the company declined to write policies, and instead of giving the insured a policy for such a sum as the premium would have purchased at the correct age, it would result in giving him nothing at all.

Here the facts are essentially different. The age of the insured is stated in the application as twenty-five years, and the correct age of the insured at the time the application for insurance was made was thirty-five years of age. The parties agreed that that was the correct age of the insured at the time of the application for insurance, and the amount of insurance for which judgment was rendered according to the premiums paid was for a person thirty-five years of age. In other words, the recovery allowed by the court was based on the amount the premiums paid would have purchased at the correct age of the insured, which was thirty-five years.

The provision under consideration in each policy is substantially the same and provides that, if the age of the insured has been misstated, the amount payable under the policy shall be such as the premiums paid would have purchased at the correct age. It is evident from the language used that the policy referred to a mistake of fact, or innocent misrepresentation of the age of the insured, and means that, in (‘ases where the age of the insured shall have been understated by mistake, the amount of insurance will be reduced to the amount the premium would pay at the true age. This was precisely what was done in the present case. Therefore the judgment must be affirmed.


text:
    Carr v. Maryland Casualty Company.
    Opinion delivered June 1, 1931.

      P. S. Seamans, for appellant.

      Gockrill & Armistead and Harry T. Wooldridge, for appellee.
   Humphreys, J.

This is an appeal from a purported decree rendered in the chancery court of Desha County dismissing appellant’s complaint for the want of equity. Under rule 9 of this court adopted in aid of the dispatch of business, an appellant is required to file an abridgment of the transcript, setting forth the material parts of the pleadings, proceedings, facts, and documents upon which he relies, together with such other statements from the record as are necessary to a full understanding of all questions presented to this court for decision. The abstract should contain full reference to the pages of the transcript. No effort has been made by appellant to comply with this rule; so, in order to understand the questions presented by the apueal, it would be necessary to explore the transcript. This court has consistently refused to explore transcripts to determine issues involved on appeals because to do so would greatly retard the dispatch of business. Rule 9 is of long standing, reasonable, and wholesome, and, for that reason, has been, rigidly enforced by this court. Grimes v. McKee, 162 Ark. 197, 258 S. W. 134. Should we depart from the rule, it would result in a congested condition of the docket in a very short time. The motion to affirm the decree for failure to comply with rule 9 must therefore be sustained.

Decree affirmed.


text:
    Neal v. Arkola Bauxite Company.
    Opinion delivered June 1, 1931.

      N. A. McDaniel, Fred A. Isgrig and Elmer Schoggen, for appellant.

      W. A. Utley, for appellee.
   Humphreys, J.

This suit was brought by appellant, widow of Oabe Neal, against appellee, to recover damages in the sum of $25,000 on account of the death of her husband resulting* from an injury received by him through the alleged negligence of appellee in operating a steam shovel with which it was excavating dirt from its bauxite mine in Saline County.

The defenses interposed to the complaint were a denial of negligence on its part, contributory negligence on the part of appellant, and that at the time of the injury deceased was in the employ of R. Y. Walker, who was engaged in excavating dirt for appellee as an independent contractor. The cause was submitted to the jury upon the pleadings, testimony introduced by the respective parties, and instructions of the court, which resulted in a verdict for appellee and a consequent judgment dismissing appellant’s complaint, from which is this appeal.

The testimony was conflicting upon all the issues joined; so the questions for determination on this appeal turn on the correctness of the instructions submitting* the issues.

Appellant contends for a reversal of the judgment upon the alleged ground that the court erred in admitting testimony upon the issue of whether R. Y. Walker was an independent contractor, claiming that the written contract between appellee and R. Y. Walker clearly reflects that he was an employee and not an independent contractor. We think the written contract is ambiguous in this respect, and that the testimony complained of tended to explain rather than contradict the written instrument.

Appellant also contends for a reversal of the judgment upon the alleged ground that the court erred in declaring the law applicable to the issues involved. The alleged egregious errors in instructing the jury consisted in giving appellant’s requested instruction No. 2 and in modifying instruction No. 5, requested by appellant, and giving same in its deleted form.

•Instruction No. '2, given at appellee’s request, is as follows:

“The burden of proof in this case is upon the plaintiff to establish her right to recover in this action by a greater weight of the evidence. The law presumes that the defendant company was not guilty of any negligence whatever, and this presumption attends throughout the trial in favor of defendant and is of itself sufficient to justify you in returning a verdict for the defendant unless such presumption is overcome by the evidence to the contrary. If you find that the greater weight of the evidence is in favor of the defendant, or if you find that it is evenly balanced as between the plaintiff and defendant, then in either event your' verdict will be for the defendant. ’ ’

Appellant made the specific objection to the instruction that it placed an undue burden on her as to proving the alleged negligence of appellee. According to the rule announced in the case of Kirkpatrick v. American Railway Express Co., 177 Ark. 334, 6 S. W. (2d) 524, such an instruction erroneously imposes the burden of showing negligence analogous to the presumption of innocence which attends one accused of a crime, and, if given over specific objection, calls for a reversal of an adverse judgment.

Instruction No. 5, requested by appellant, is as follows:

“An independent contractor is one who, in the course of an independent occupation, prosecutes and directs the work himself, using his own methods to accomplish it, and represents the will of the employer only as to the result of the work; unless such .employer either exercised, or reserved the right to exercise, control over the work being done by such contractor or had the power to choose, direct or discharge the employees of such contractor. [So, in this case, you are instructed that the method by which compensation was paid for the work done is not conclusive as to the relationship of the parties, but the question as to whether or not "Walker was an independent contractor must be determined by you from all the circumstances in proof.] ”

The instruction in the form requested was a correct declaration of law as applied to the facts in the case. The court deleted the last sentence, the effect of which was to deprive appellant of his right to have the law dedared upon request with reference to the particular facts in the case.

On account of the errors indicated, the judgment is reversed, and ihe cause is remanded for a new trial.


author: Mehaffy, J.

text:
    Scottish Union & National Insurance Company v. Wilson.
    Opinion delivered June 1, 1931.

      A. II. Scott, for appellant.

      Edward Gordon, for appellee.
   Mehaffy, J.

Appellees are the only heirs at law of B. P. Wilson, deceased, and in their complaint alleged that they are the owners of the property involved in this suit. At the death of their father, the property was left to their mother for life, and the remainder to appellees. The mother died in January, 1928.

The property insured was a dwelling house on lots 8 and 9 in block 6, Irving’s Addition to the city of Morrilton. On the 14th day of February, 1930, the property was insured by appellant in the sum of $800.

One of the clauses in the policy was as follows: “Permission is given for the premises to be vacant or unoccupied for a period not to exceed 60 days, either in any one policy year or consecutively at any one time.”

The property was totally destroyed by fire on April 19,1930. The building became vacant February 22,1930. Appellees had executed a mortgage to the National Savings & Loan Association, and the appellant filed a demurrer to the complaint, stating that the National Savings & Loan Association was a necessary party, and' thereafter the appellees filed an amendment to their complaint making’ the National Savings & Loan Association a party.

The appellant admitted issuing the policy and admitted that permission was given for the premises to remain vacant or unoccupied for a period of 60 days, but alleged that a rider had been attached to the policy under the terms of which appellant would not be liable for exceeding two-thirds of the amount of damage if the property was destroyed by fire during such vacancy. It therefore contends that it is not liable, but that it was liable for only two-thirds of the $800. The policy contained a mortgage clause payable to the National Savings & Loan Association.

There is no dispute about the property having been destroyed by fire, and it had not been vacant 60 days when so destroyed.

Appellant insists that the judgment should be reversed because the suit was originally begun by the heirs of B. F. Wilson, and the insurance policy was issued in the name of the estate of B. F. Wilson. It is insisted that the suit should have been brought by the administratrix and not by the heirs. The administratrix was made a party, and no objection was made by appellant to making the administratrix a party, and no objection was made in the lower court on account of any defect of parties or improper parties.

Our statute provides: ‘ ‘ The defendant may demur to the complaint where it appears on its face that the plaintiff has not legal capacity to sue.” Crawford & Moses’ Digest, § 1189.

The policy having been issued in the name of the estate, this defect, if it was a defect, appeared on the face of the complaint, but if it did not appear on the face of the complaint the statute also provides: “When any of the matters enumerated in § 1189 do not appear upon the face of the complaint, the objections may be taken by answer. If no such objection is taken either by demurrer or answer, the defendant shall be deemed to have waived the same except only the exception to the jurisdiction of the court over the subject of the action, and the objection that the complaint does not state facts sufficient to constitute a cause of action.” Crawford & Moses’ Digest, § 1192.

The appellant filed a demurrer to the complaint alleging that the property was mortgaged and that the National Savings and Loan Association was a proper party. There was no suggestion in this demurrer or in the answer that the appellees were not proper parties or that there was any defect other than that pointed out by the demurrer that the National Savings & Loan Association was a necessary party.

The statute provides: ‘ ‘ The demurrer shall distinctly . specify the grounds of objections to the complaint; unless it does so, it shall be regarded as objecting only that the complaint does not state facts sufficient to constitute a cause of action.” Crawford & Moses’ Digest, § 1190.

It therefore does not appear either in appellant’s demurrer or answer that there -was any defect of parties, except that the mortgagee should be made a party.

The objection that appellees did not have legal capacity to sue must be made in the manner provided in the statute. Gaither Coal Company v. Le Clerch, 182 Ark. 466, 31 S. W. (2d) 750; Murphy v. Myar, 95 Ark. 33, 128 S. W. 359, Ann. Cas. 1912A, 573; Love v. Cahn, 93 Ark. 215, 124 S. W. 259; Ry. Co. v. Watson, 97 Ark. 560, 134 S. W. 949; Texarkana Gas & Electric Co. v. Orr, 59 Ark. 215, 27 S. W. 66, 43 Am. St. Rep. 30.

The objection, not having- been made in the manner provided by statute, was waived. The appellees were interested in the suit, and, while they may not have been necessary parties, they were proper parties. If the objection had been made in the court below, appellees mig’ht have shown that they were the only parties in interest. At any rate, the objection, not having- been made in the court below, must be deemed waived.

The appellant in its motion for new trial, among other things, stated: ‘ ‘ The court erred in overruling defendant’s motion to dismiss as the plaintiffs were not the proper parties in that the property belonged to the estate of B. F. Wilson, and said suit should have been filed in the name of the administratrix, and there was nothing-before the court.”

The record, however, does not show that appellant made any such motion, and it must have been made in the court below, even if the appellees had not been proper parties.

The appellant next contends that the court erred in holding that the rider was not effective, and that it does not bind the appellees. It is contended that to the policy was attached a two-thirds vacancy permit, and that the company, while admitting its liability for two-thirds of the $800, was not liable for anything in excess of that. This rider was sent to the mortgagee with a request to attach it to the policy. No such provision as this rider contained was in the original policy, but in' the original policy permission for the property to be vacant or unoccupied for 60 days was given, and the company reserved the right to cancel this policy on 5 days’ notice. The undisputed evidence shows that it never gave any notice, and the undisputed evidence also shows that no one interested in this contract agreed with the insurance company that this rider should be attached. Mrs. Presley testified that she had a conversation with a representative of the appellant, but that he did not notify her anything* about a vacancy clause. She stated she knew she had 60 days and he knew it, too. Mr. Helium testified that he never did notify Mrs. Presley; that he never sent her a copy of the two-thirds vacancy clause, and that he did not give her any notice whatever. He testified that he attached the clause to his record only, but without notice to the assured. This witness testified that he discussed with Mrs. Presley the fact of the house being vacant, that he asked her once or twice if she had gotten a renter, and told her that he was going to have to attach the clause if the house was not occupied, but he says that he does not believe he told her unless it was occupied at once. But he told her if she did not get a renter he would have to attach it; but did not give her any notice and did not tell her when he would attach it. He testified that after that he asked her once or twice if she had gotten a renter, and still did not tell her that he was attaching the two-thirds vacancy clause.

It is contended by the appellant that the court’s ruling that the rider was not effective and did not bind the plaintiff had the effect that the contract could not be modified. We do not agree with appellant in this contention. The ruling of the court was to the effect that the contract had not been modified. Of course, parties to a contract could modify it or cancel it or amend it in any way they might think proper. But the modification cannot be made by one party alone, but both parties must agree to the modification.

The undisputed evidence in this case shows that the insurance company alone agreed to the modification. It was plainly written in the policy that permission was given for the property to remain vacant 60 days. This was the contract that the parties made. This contract all agreed to, and if the parties other than the insurance company had agreed to the modification, this modification would have been binding on them. AVe therefore do not think there was any evidence tending to show that there had been a modification of the contract.

It is contended by the appellant that the statute authorizing attorney’s fees and damages is unconstitutional and void. This question, however, was not raised by appellant in the lower court and cannot be considered here.

The court did not err in directing a verdict, and the judgment is therefore affirmed.


author: Kirby, J.,

text:
    Sutton v. Webb.
    Opinion delivered June 1, 1931.

      Joseph R. Brown and James B. McDonough, for appellant.

      Hardifi, <& Barton, for appellee.
   Kirby, J.,

(after stating the facts). It is first insisted that the court erred in permitting the jurors to be questioned on their voir dire as to whether any of them was connected, as employees or otherwise, with any insurance company writing automobile liability insurance. It being apparently the sole purpose in asking the question to create a false impression upon the minds of the jurors that appellant was protected by insurance against damages from such injuries, so that they might the more readily render a verdict against him therefor. Counsel for appellee, however, had the right to inquire of the prospective jurors whether they were related to either of the parties and whether they had been in the employ of any insurance company writing liability insurance, in order to more intelligently exercise appellee’s right of challenging the jurors, under the rule already announced by this court in Bourland v. Caraway, ante p. 851, and cases cited there.

Neither was error committed in the giving of certain instructions complained of, in which it was claimed that the jury was permitted thereby to find against appellant without consideration of appellee’s alleged contributory negligence. There was no substantial testimony tending to show any contributory negligence on the part of appellee, nor warranting the jury’s consideration of such issue; and the court also gave, at appellant’s request, a correct instruction on contributory negligence, wljich was not in conflict with the other instructions as expounded.

The court’s instruction on the measure of damages to appellee’s car was not erroneous as contended by appellant. Appellant had attempted to have appellee’s damaged car repaired and reconditioned, and showed the amount of the cost of such repair. The instruction complained of correctly declared the measure of damages to the car “would be the difference between its value before and after the accident, or after any repairs which the defendant placed on it,” allowing the jury to take into consideration the cost, if any shown by the evidence, of repairing the ear, “along with the other evidence in the case.” This only allowed the jury to take into consideration the testimony about the necessary cost of reconditioning and repairing the car and to find, if the evidence warranted its doing so, any amount of damages more than the cost of the repairs made by appellant, and no specific objection was made to the instruction, which, if not as clearly stated as might have been, would doubtless have been corrected to meet any objection on that account. The instruction is not in conflict with the law as announced in Madison-Smith Cadillac Co. v. Wallace, 181 Ark. 715, 27 S. W. (2d) 524.

There was no error in the giving of the instruction quoting the statute and showing the rate of speed allowed for driving motor vehicles on the highway, or on the wrong side thereof, since the jury was specifically directed that if they believed from the evidence that appellant violated the statutes referred to in the instructions, or either of them, “then you are instructed that such violation or violations, if any, are evidence of negligence and may be considered by the jury together with all the other facts and circumstances as disclosed by the evidence in the case in arriving at whether or not the defendant was guilty of negligence.” The instruction only told the jury that the violation of these statutes, if shown, was only evidence of negligence that might be considered with all the other facts and circumstances as disclosed by the evidence in determining whether the defendant was guilty of negligence. Herring v. Bollinger, 181 Ark. 929, 29 S. W. (2d) 676.

Neither was error committed in the giving of the instruction numbered 9, relating to the measure of damages for pain and suffering of body and mind. St. L., I. M. & S. Ry. Co. v. Dallas, 93 Ark. 215, 124 S. W. 259; Ward v. Blackwood, 48 Ark. 407, 3 S. W. 624; and Simms Oil Co. v. Durham, 180 Ark. 366, 21 S. W. (2d) 861.

We are also of the opinion that the verdict is not excessive for the personal injuries shown to have been sustained by appellee, although the testimony does show that she suffered from arthritis, preventing to some extent the free and proper use of the injured arm, before the collision, but the jury could have found from the evidence that the injury was sufficient to have caused the impaired condition of the arm without regard to the affliction which was not merely an aggravation thereof. Moreover, appellee was entitled to recover damages for the injury inflicted by appellant’s negligence without regard to whether the damage might not have been so great hut for the arthritis with which she was afflicted.

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


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    Williams v. State.
    Opinion delivered May 18, 1931.

      Geo. W. Emerson and Dillon & Robinson., for appellant.

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

The undisputed testimony in this case shows that appellant, Virgil Williams, and another man shot Neil McDermott, a policeman, while they were engaged in robbing George Chance, and that nine days later McDermott died from the effects of this wound. Upon his trial under an indictment charging him with the crime of murder committed in the perpetration of a robbery, appellant was convicted of murder in the first degree and given a sentence of death, and has prosecuted this áppeal to reverse the judgment on account of the errors of the trial court in admitting certain incompetent testimony over his objection.

The State was permitted, over appellant’s objection, to show that shortly before coming to Little Bock, the scene of the killing of McDermott, appellant had been confined in the penitentiary in Oklahoma, and that he came to Little Bock in a stolen car; that, shortly after reaching Little Bock he had robbed a drug store; he was arrested for this crime, confined in the county jail; that he escaped from the jail, and, in doing so, stole the pistol with which he later killed the officer who attempted to arrest him while robbing Chance.

There is no connection between these various crimes and the killing of McDermott, and the only, and the necessary, effect of this testimony was to show the desperate character of appellant as a confirmed criminal. There was no question as to the purpose for which appellant held up Chance, and that he robbed him, and that while still at the scene of the crime he killed the officer who attempted to arrest him. He was therefore guilty of murder in the first degree. Clark v. State, 169 Ark. 717, 276 S. W. 849; Harris v. State, 170 Ark. 1077, 282 S. W. 680; Washington v. State, 181 Ark. 1016, 28 S. W. (2d) 1055.

It is insisted by the State that, although the admission of the testimony as to the previous criminal conduct of appellant may have been erroneous, as having no relation to the killing of McDermott and not explanatory thereof, the error was not prejudicial, for the reason that the undisputed evidence shows that appellant was guilty of the crime for which he was convicted, and the jury could not, under the law, have returned any verdict except that of guilty as charged in the indictment.

The law is settled, indeed, is declared by the statute, that this court will not reverse except for an error prejudicial to the defendant, § 3014, C. & M. Digest. But it is also settled that evidence improperly admitted must be treated as prejudicial unless there be something to show that it was not. Brock v. State, 171 Ark. 282, 284 S. W. 10; Moon v. State, 161 Ark. 234, 255 S. W. 871; Elder v. State, 69 Ark. 648, 65 S. W. 938, 86 Am. St. Rep. 220.

There appears to be no question but that the admission of the testimony showing the commission of other crimes having no relation to the robbery of Chance and the killing of the officer, and not explanatory thereof, was error. The law upon this subject has been declared in many cases, and is well stated in the case of Ware v. State, 91 Ark. 555, 121 S. W. 927, where it was said:

“It is uniformly held that the prosecution cannot resort to the accused’s bad character as a circumstance from which to infer his guilt. This doctrine is founded upon the wise policy of avoiding the unfair prejudice and unjust condemnation which such evidence might induce in the minds of the jury. If such testimony should be admitted, the defendant might be overwhelmed by prejudice, instead of being tried upon the evidence affirmatively showing his guilt of the specific offense with which he is charged. 1 Greenleaf on Evidence (8th ed.), § 14 b, § 14 q; Wigmore on Evidence, § 57.
“And so, too, it is held that one offense cannot be proved by the evidence of the commission of another offense, unless the two are so connected as to form a part of one transaction. But, as wholly independent acts, the commission of one offense cannot be shown by evidence of the commission of another. And the introduction of such testimony is also inadmissible because it raises another and different issue which would call for the introduction of other testimony upon such issue, and thus would involve the true and specific issue presented to the jury for its determination, whether the defendant was guilty of the specific crime charged in the indictment. Dove v. State, 37 Ark. 261; Endaily v. State, 39 Ark. 278; Ackers v. State, 73 Ark. 262, [83 S. W. 909]; Allen v. State, 68 Ark. 577, [60 S. W. 956.]”

But, inasmuch as the undisputed evidence shows that appellant was guilty of the crime of murder in the first degree, was the error prejudicial! We are constrained lo hold that it was.

Under the law a jury which has convicted an accused person of the crime of murder in the first degree may, in its discretion, impose the death penalty or a sentence of imprisonment for life. Both are punishments authorized by law for the commission of the crime of murder in the first degree, and the trial jury has the discretion to impose the one or the other. But, while either life imprisonment or the death sentence may be imposed, the law recognizes that there is a difference in these degrees of punishment and that the first named is less than the latter.

Prior to the enactment of § 3206, C. & M. Digest fact 187, Acts 1915, page 774), authorizing the alternate punishment, bail was not allowed upon an appeal to this court from a judgment convicting an accused of the crime of murder in the first degree. But in the case of Walker v. State, 137 Ark. 402, 209 S. W. 86, 3 A. L. R. 968, which arose after the passage of the act of 1915, the appellant was given a life sentence upon a conviction for murder in the first degree, and it was held in that case that he ivas entitled to bail upon his appeal, for the reason, there stated, that the severest punishment of the law Avas not imposed and that bail would be granted AAdiere the punishment imposed was a life, and not a death, sentence.

The court again recognized that there was a difference in severity between a life and a death sentence in the case of Davis v. State, 155 Ark. 245, 244 S. W. 750, where it was said: “In construing this latter statute” (§ 3206, Crawford & Moses’ Digest) “in Walker v. State, 137 Ark. 402, 209 S. W. 86, the court referred to the jury fixing the punishment in a capital case at life imprisonment as imposing the lesser penalty provided by the statute.” This Davis case expressly declares the law to be that, while the technical guilt of murder in the first degree is always the same, the law now imposes a greater or lesser punishment for the commission of that crime.

So, therefore, while the undisputed testimony shows appellant guilty of the crime of murder in the first degree, and the jury could not, under the law, have returned any other verdict, there has been imposed the greater, rather than the lesser, punishment for that crime. Were it the law that one, a certain and no other, punishment might be imposed, we would be justified in holding that no prejudice resulted in the imposition of the death sentence, because we could say that the jury could not, under the law, have returned any verdict except that of guilty and could not have authorized the imposition of any sentence except that of death. But we cannot say this for the reason that the .jury might, under the law, have imposed another and the lesser punishment, althoug’h they must necessarily have found appellant guilty of murder in the first degree as charged in the indictment. We are therefore unable to say that the admission of the incompetent testimony was not prejudicial, for the reason that a greater sentence was imposed than might otherwise have been imposed, had the incompetent testimony not been admitted.

It does not follow, however, that, because the judgment imposed cannot be permitted to stand, the cause must be reversed for a new trial. The error affected only the degree of punishment which might be imposed, and the practice in such cases was declared by Mr. Justice Riddick in the case of Vance v. State, 70 Ark. 272, 68 S. W. 37, where the defendant had been convicted of murder in the first degree and given a death sentence. In that case certain testimony was erroneously excluded which, if admitted, might have had the effect of reducing the degree of the crime and, consequently, the extent of the punishment, and upon these facts it was there said: “Having reached the conclusion that the' error of the circuit court above referred to was only prejudicial in so far as it may have affected the finding of murder in the first degree, we have now to consider what should be the judgment of this court. In the case of Simpson v. State, where a conviction of murder in the first degree was reversed because the evidence was not sufficient to support it, Chief Justice Cocerill, who delivered the opinion of the court, said: ‘In this case the jury have found the prisoner guilty of murder; but, having found a degree of murder which the proof does not warrant, the verdict stands for the offense of murder, and fails as to the degree. It is then as though the jury had found him guilty of murder, but failed to assess the punishment.’ The court thereupon ordered the prisoner be sentenced for murder in the second degree. Now in that case the evidence was not sufficient to sustain the finding of murder in the first degree, while here the evidence is sufficient, but the conviction as to murder in the first degree must be set aside because of the exclusion of material evidence bearing on that point. It is then within our discretion to reverse the judgment and remand the case for a new trial on the whole case, or, as the exclusion of the evidence referred to could have affected the degree of murder only, we can set aside the judgment for murder in the first degree, and allow the verdict to stand for murder in the second degree. The verdict would then fail as to the degree, but stand as to the offense of murder, and the situation of the case would be the same as if the .jury had found the defendant guilty of murder in the second degree, but failed to assess the punishment, and we would remand the case with an order to sentence the defendant for murder in the second degree. Simpson v. State, 56 Ark. 19, [19 S. W. 99]; Routt v. State, 61 Ark. 594, [34 S. W. 262]; Ballew v. U. S., 160 U. S. 187, [16 S. Ct. 263].”

In that case the judgment was reversed and the cause was remanded, with directions to the circuit court to sentence the defendant for murder in the second degree. But in the case of Simpson v. State, 56 Ark. 5, 19 S. W. 99, the court recognized the right of the State to elect whether the judgment shall be reversed or modified, and that practice was approved in the case of Warren v. State, 88 Ark. 322, 114 S. W. 705, where it was ordered that the judgment should he modified unless the Attorney General should, within fifteen days, ask that it be remanded. See also, Noble v. State, 75 Ark. 250, 87 S. W. 120; Harris v. State, 119 Ark. 94, 177 S. W. 421.

But, unless the request is made by the Attorney G-eneral for the reversal of the judgment, rather than have it modified, we may cure the error by the modification of the judgment. In the case of Crowe v. State, 178 Ark. 1121, 13 S. W. (2d) 606, the appellant had been convicted of murder in the first degree, but the trial court had committed the error of not advising the jury that they had the discretion to impose a life sentence, and we cured this error by modifying the judgment ourselves without remanding the cause for that purpose. "We there said: “The court did not instruct the jury as to its right to render a verdict of life imprisonment in the State Penitentiary, at hard labor, in accordance with the provisions of § 3206 of Crawford & Moses’ Digest. Under this section of the statute the jury had the right to fix the punishment of the defendant at life imprisonment at hard labor in the penitentiary. 'This was the lesser penalty provided by the statute, and the court erred in not so instructing the jury. There is no other error, however, in the record; and the error in this respect can be cured by modifying the judgment of the lower court by reducing the punishment from the death penalty to life imprisonment in the State Penitentiary at hard labor. This is accordingly done.”

Unless, therefore, the Attorney General shall, within fifteen days, elect to request that the cause be remanded for a new trial, the judgment of this court will be that the sentence of death be reduced to that of imprisonment for life, and it is so ordered.

Humphreys, Mehaepy and McHaney, JJ., dissent.


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    Missouri Pacific Railroad Company v. Beard.
    Opinion delivered May 18, 1931.

      11. E. Wiley and Richard M. Ryan, for appellant.

      1). D. Glover and W. H. Glover, for appellee.
   Humphreys, J.

Appellee brought this suit in the circuit court of Hot Spring County against appellant to ref-cover damages in the sum of $3,000 for the loss of a leg alleged to have been sustained, when attempting to board a work train, through the negligence of appellant in providing a defective freight car with which to work and an unsafe place in which to do so. The particular negligence alleged was that appellant furnished the men with whom appellee was working a work train to ride on and carry their supplies, which contained a freight car with a defective stirrup or foothold on which to stand when getting on and off the train while engaged in the performance of their duties and also placed loose gravel on its right-of-way over the Main Street crossing in the city of Malvern, Arkansas, over planks that stuck up in a way to trip men when getting on and off the train.

Appellant filed an answer denying the material allegations of the complaint, and, in addition, pleaded as a complete defense and bar to appellee’s alleged cause of action that he assumed the risk’ of whatever danger there may have been in attempting to board the train.

At the conclusion of the evidence, appellee was permitted to amend his complaint, over appellant’s objection and exception, to the effect that, after appellant discovered the peril of appellee in attempting to board the train, it negligently failed to stop its train and thereby prevent the injury.

The cause was submitted to the jury upon the pleadings, testimony, and instructions of- the court, resulting in a verdict and consequent judgment for $3,000 against appellant, from which is this appeal.

Appellant first contends for a reversal of the judgment upon the alleged grounds that no liability was shown on account of negligence, and, if so, that the risk incident to boarding the moving train was assumed by appellee. These grounds are not sustained by the undisputed evidence in the case. The evidence, viewed in its most favorable light to appellee, reflects the following facts: Appellee was one of a crew of about twenty men employed by appellant to load and distribute rails and ties along its tracks between Malvern and Donaldson onto and from a train of cars furnished for that purpose. In loading and unloading ties, the work was usually done while the train was moving. The men would jump off, pick up, and load the ties and jump back on the train while it was in motion. Owing to the length of the rails, the train would stop for the men to do that work. The men were instructed by the foreman to keep up with the train, meaning to get on and off the train, even when moving if necessary. It ivas the custom of the crew, including the foreman, to get on and off the train when running in order to keep up with it and be ready at any place it might be to perform their duties. On the 18th day of April, 1930, the train was on the side track in Malvern where the crew was working. Some of the men, including appellee, were directed by the foreman, TJ. G-. Heath, to transfer some angle bars from one car to another. When they had completed that particular work and were climbing down out of the car, the engine, with one car attached, moved north to do some switching, and then it backed into the main line and south toward the depot at a speed not to exceed ten miles an hour, pushing three cars. As it passed along, two of the men, who were standing with appellee, boarded the first and second cars, and appellee attempted to board the third car or the one next to the engine. He caught the handhold and started to put his foot in the stirrup, but it was bent five or six inches under the car, and, on that account, he missed it and ran along with the car until he reached the Main Street crossing, where he stumbled on a board sticking up out of loose gravel on the right-of-way and fell under the train, the wheel of which ran over and crushed his leg, necessitating the amputation thereof .just below the knee. During the time appellee was holding to the handhold and running along with -the car, the fireman observed him but said nothing to the engineer about stopping the engine until appellee stumbled on the plank and fell, at which time he- called to the engineer, who immediately stopped the engine but too late to prevent the injury. The fireman testified that it was not unusual for an employee to catch the handhold and run along with the moving train in order to board same, and that he did not regard appellee’s position as perilous until he stumbled. In the course of the introduction of testimony, the court, over the objection and exception of appellant, admitted evidence to the effect that on other days the crew loaded and unloaded ties while the train was moving, and that the men got off and on the moving train while doing the work; also that the engineer would blow the high-ball blast for the men to board the train whenever he started to leave a place, and that some of them would get on before the train started and others after it started if it was not going too fast.

The testimony detailed above is of a substantial nature and sufficient, when accepted as true by the jury, to sustain the verdict and judgment. It cannot be said, as a matter of law, under the facts that appellant was not guilty of negligence or that appellee assumed the risk of boarding the moving train. It was the duty of appellant to furnish cars without substantial defects such as bent stirrups and to remove planks calculated to trip men when boarding slowly moving trains in the performance of their duties. The train was not moving so rapidly that it can be said, as a matter of law, appellee assumed the risk in attempting- to board same in the discharge of his duties.

We have carefully read the instructions given and those refused and have concluded that the court fully and correctly declared the law of negligence and assumption of risks applicable in the case.

Appellant also contends for a reversal of the judgment because the court admitted testimony relative to loading and.unloading ties while the train was moving, blowing of high-balls, etc., at other days and places, but, as the testimony related to the movement of the same train for the convenience of employees engaged in the same kind of work, the evidence was admissible.

Appellant also contends for a reversal of the judgment because the court submitted the issue of discovered peril to the jury for determination. The instruction submitting- this issue to the jury was based upon the testimony of the fireman to the effect that he saw appellant holding by the handhold and running along with the moving train without notifying the engineer to stop same. According to appellee’s own theory of the case, this is what the crew was directed and expected to do in boarding cars in the performance of their duties.

The fireman testified that he did not regard appellee in danger until he tripped and stumbled on the plank sticking out of the loose gravel on appellant’s right-of-way at the Main Street crossing; whereupon he called to the engineer, who immediately applied the emergency brakes and stopped the train. Appellant was not required, under the doctrine of discovered peril, to stop the train until appellee was actually discovered to be in a perilous position. The testimony was not sufficient to show this at the time the fireman first discovered appellee, and so there was no evidence to justify or warrant the submission of that issue to the .jury.

On account of the error indicated, the judgment is reversed, and the cause is remanded for a new trial.


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    Texarkana Special School District v. Ritchie Grocer Company.
    Opinion delivered May 18, 1931.

      Willis B. Smith and Pratt P. Bacon, for appellant.

      Jones & Jones, for appellee.
   Kirby, J.,

(after stating the facts). Appellant insists that the order erroneously refunding the taxes to appellee was void as having been made by the county judge and not the court, and that the demurrer admits the allegations of the complaint showing such fact, and that the court therefore erred in sustaining the demurrer.

It is true the complaint alleges that the order was made on a certain day, “which was neither an adjourned nor regular term of the county court of Miller County, Arkansas, the county judge, pretending to be sitting as a court, made a void order and judgment, etc.” to refund to appellee the sum claimed, taxes paid on the alleged erroneous assessment. It is also true that the allegation is that the order was made on a day, which was neither an adjourned or regular term of the court and that the county judge, “pretending to be sitting as a court, made a void order, etc.”, but no fact is stated showing the order to have been void, and the allegation is that “the county judge, pretending to be sitting as a court, ’ ’ made such void order. This is but a legal conclusion not admitted to be true by the demurrer, which does not admit that the county judge made the order on a day or at a time when the court was not in session. A demurrer admits only those facts, which are well pleaded; and in determining whether a demurrer to a complaint should be sustained, every allegation made therein together with every inference, which is reasonably deducible therefrom, must be considered. Hudson v. Simonson, 170 Ark. 243, 279 S. W. 780; House v. Road Imp. Dist., 158 Ark. 330, 251 S. W. 12; Pierce Oil Corp. v. Hope, 127 Ark. 38, 191 S. W. 405, S. C. 248 U. S. 498, 39 S. Ct. 172; Brown v. Arkansas Central Power Co., 174 Ark. 177, 294 S. W. 709; Moore v. North College Avenue Imp. Dist., 161 Ark. 323, 256 S. W. 70.

The court did not err in sustaining the demurrer, and the judgment must be affirmed. It is so ordered.


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    Barnett v. State.
    Opinion delivered May 18, 1931.

      Oscar Barnett, for appellant.

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

The grand jury of Hot Spring County on April 8, 1930, returned an indictment against the appellant charging him with transporting liquor in said county. The appellant filed a demurrer to the indictment, stating- that the facts alleged did not charge or constitute a public offense or any violation of the law of the State of Arkansas.

The court overruled the demurrer, and the appellant saved his exceptions.

The evidence showed that about the 1st day of February, Howard Stewart, Edwin Stewart, Ray Ross, and three girls were in aii automobile riding- on the streets of Malvern and drove out to Rockport, about two and a half miles from Malvern, for the purpose of getting- some liquor. They failed to get the whiskey and drove back to Malvern and stopped in front of the Sanitary Cafe.

Ray Ross, one of the parties in the car, went into the cafe and returned in about twenty minutes. It was then about 10:30 o ’clock. The appellant was there, and, according to one of the witnesses, said that he had made arrangements with the Tates boys to get some liquor, and would give them some if they would take them home, which was about fourteen miles from Malvern.

The Tates boys and appellant got in the ear and were driven out to the Tates boys’ home where they obtained a half gallon fruit jar of whiskey, put it in the car and drove back to Malvern. On the way back the boys drank some of the whiskey, but the girls did not drink any. They stopped in front of the Sanitary 'Cafe, and it was then about 12:15 a. m.

Before going to the Sanitary Cafe after returning with the whiskey, they drove to the ice plant, and one of the boys got out and hid the whiskey. They left the Sanitary Cafe about 12:15 and started to Hot Springs, and they went by the ice plant, and one of the boys got out and got the whiskey and got back into the car.

After they had left for Hot Springs, the brother of one of the girls went to the night marshal, and he and the marshal learned that the appellant and others had left in the car for Hot Springs, and followed and overtook them and took the girls back home, but did not arrest any of them.

Before the car stopped the officer heard one of the occupants of the car say, “Pour it out,” and some one poured the contents of the fruit jar out on the ground, and some of it fell on the running board of the car. The officer said it smelled like whiskey, and he asked what it was, and appellant said it smelled like corn liquor.

The appellant was not in the party at first when they stalled after whiskey, but was with them when they took the Yates bojes home and was with them until the officer took the girls home.

The evidence tends to show that, when they went out to the home of the Yates boys, they intended to get whiskey and drink it while there, but they could not get the driver to stop, and while they drank some of it there, they kept the jar in the car, had it in the ear when they got back to Malvern, and it was in the car when the officer overtook them, and somebody poured the whiskey out.

When the officer overtook them, somebody in the car said, “Step on it,” and appellant reached over and turned the switch key and stopped the car, and appellant asked the officer if they were under arrest, and the officer said, “No, we .just want to get the girls.”

The appellant’s testimony is to the effect that when he went with them they were to get some whiskey to drink, hut it was not his understanding that they would transport it or take it away with them, and that he tried to keep the party from going on to town, and it was the agreement that they would drink the whiskey where they got it and would not bring it back. He said if he had known they were going to bring liquor back he would not have gone with them; that he had no control over the ear.

The jury returned a verdict of guilty and fixed appellant’s punishment at a fine of $100, and .judgment was entered accordingly. A motion for a new trial was filed, overruled, and exceptions saved. The case is here on appeal.

Appellant first contends that the judgment should be reversed because the indictment showed on its face that the crime, if committed at all, was committed on the first day of February, 1931, and appellant was tried in January, 1931, and that the indictment does not charge that the liquor was transported from one place to another in Hot Spring County. It is therefore insisted that the court should have sustained the demurrer to the indictment.

'The indictment charges specifically that the grand jury of Hot Spring County, in the name of and by the authority of the State of Arkansas, accused Oscar Barnett, Jr., of the crime of transporting intoxicating liquors, and that he, in the county and State aforesaid, etc. The indictment therefore charges that he transported the liquor in Hot Spring County. The indictment was returned by the grand jury in April, 1930, and charged that the offense was committed on the first day of February, 1931, and it is urged that on this account the demurrer should have been sustained.

It is apparent that the date, 1931, was a clerical error, because the indictment charged the commission of a crime and the date mentioned in the indictment was a future date and it is perfectly clear that, this was a clerical error.

The circuit clerk was called by the prosecuting attorney, and testified that the indictment was returned on April 8,1930. This court has many times held that a late or impossible date after' the indictment is an obvious error and does not affect the validity of the indictment. Conrand v. State, 65 Ark. 559, 47 S. W. 628; Duncan v. State, 181 Ark. 603, 27 S. W. (2d) 99; Cooper v. State, 145 Ark. 403, 224 S. W. 726; Carothers v. State, 75 Ark. 574, 88 S. W. 585; Hunter v. State, 93 Ark. 275, 124 S. W. 1028; Grayson v. State, 92 Ark. 413, 123 S. W. 388, 19 Ann. Cas. 929.

It is next contended by appellant that the parties had no intention of transporting whiskey, but were all looking for whiskey to drink, and that the driver of the car, over the protest of all of them, brought the whiskey back to town. But it is admitted that the whiskey was hidden at the ice plant, and the party drove by the ice plant, and appellant says Howard Stewart got out and got the whiskey from where he had hid it, and they went on their merry way to Hot Springs.

There was no protest by appellant or any one else, and no- objection made to stopping at the ice plant, getting the whiskey, and carrying it on in the car. It is true appellant says he had no control over the car, and that the liquor belonged to .the Stewart brothers, and that, if anybody was guilty of transporting liquor, Howard Stewart was, and the evidence shows that he was not indicted.

Appellant contends that the judgment ought to be reversed because some -of the others were not prosecuted, and he says the prosecuting attorney made a statement to the jury that he did not intend to prosecute the girls.

If appellant violated the law, it was the duty of the prosecuting attorney to prosecute him. The fact that the others in the party were as guilty as appellant is no defense. The failure of the prosecuting attorney or other authorities to properly enforce the law or to enforce the law against some and not against others is no defense in a prosecution. Riggs v. Hot Springs, 181 Ark. 377, 26 S. W. (2d) 70.

The validity of a law does not depend on a completely successful enforcement, nor does it depend on the good faith of the officers whose duty it is to prosecute. One who violates a law cannot be discharged merely because it is shown that there are other violators who have not been convicted, or that those whose duty it is to perform the duties required by it have fallen short or refused to perform their duties for any reason. People v. Gardner, 143 Mich. 104, 106 N. W. 541; City of Centralia v. Smith, 103 Mo. App. 438, 77 S. W. 488.

“Appellants prosecute this appeal upon the theory, among others, that if other people in Houston had violated the ordinance as to the erection of fireproof buildings, this would license them to violate it by erecting buildings contiguous to those of others and to preclude the latter from any remedy to protect their property. We know of no principle upon which to found such a proposition.” Chimene v. Baker, 75 S. W. 330.

A person charged with a criminal offense cannot escape punishment by showing that others were also guilty.

The appellant contends that the remarks of the prosecuting attorney were prejudicial. The prosecuting attorney said he was not going to prosecute the girls; that he believed in starting at the top and coming down. There was no error in this statement that was in any way prejudicial to appellant. Clarkson v. State, 168 Ark. 1122, 273 S. W. 353; Hall v. State, 161 Ark. 465, 257 S. W. 61.

Appellant contends that the judgment should be reversed because it did not find him guilty as charged in the indictment. The verdict of the .jury was: “We, the jury, find the defendant guilty, and assess his fine at $100.”

A verdict of guilty implies a finding of every element essential to constitute the crime as charged, and the verdict is sufficient if from its language no doubt can arise as to the offense of which he is convicted. Wallace v. State, 180 Ark. 627, 22 S. W. (2d) 395.

It is contended that the court erred in its refusal to give instructions 1 and 2 requested by the appellant. Each of these instructions was erroneous, because each in substance told the jury they could not find the defendant guilty unless he knew when starting out that they were g’oing on a trip for the purpose of transporting liquor. It would make no difference what their understanding or intention was when they started out if they afterwards transported liquor in violation of law. If they transported whiskey in violation of law, they would be guilty even if they started out with the intention to not transport it.

It is contended that there is no evidence tending to show that the appellant transported the liquor. We think the evidence was sufficient to submit the question to the jury, and the jury’s verdict, where there is any substantial evidence to support it, is conclusive here for the reason that it is the province of the jury, and not this court, to pass on the credibility of the witnesses and the weight to be given to their testimony.

It is finally contended by appellant that the facts in this case are similar to the facts in the case of Locke v. Ft. Smith, 155 Ark. 158, 214 S. W. 11. In that case it was held that the evidence was not legally sufficient to warrant a verdict of guilty. The appellant in that case, at the earnest solicitation of a friend, got into the latter’s car for the purpose of riding about the streets of Ft. Smith. Locke ascertained that his friend had been drinking and formed the intention of getting him home as soon as he could. They were not going after whiskey, but Locke was trying to get his friend home. He put one of the bottles of whiskey he found on the seat in his pocket. He did not get into the automobile for the purpose of carrying or assisting his friend to convey liquor, but his purpose was to get his friend home and not the purpose of carrying whiskey.

We think there was sufficient evidence to submit the question to the jury, and the judgment is affirmed.


author: Butler, J.

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    Cypress Tank Company, Inc., v. Weeks.
    Opinion delivered May 18, 1931.

      Walter L. Goodivin, for appellant.

      J. B. Milham, for appellee.
   Butler, J.

This suit was brought in the justice court by the appellee to recover wages alleged to be due and a penalty for the nonpayment thereof under § 7125, Crawford & Moses’ Digest. This statute is applicable under the last clause to all companies and corporations doing business in this State and to all servants and employees thereof who shall be discharged or refused further employment and who shall request or demand the payment of any wages due. The statute provides that, if payment be not made within seven days from such discharge or refusal to longer employ, the employee may recover the unpaid wages and, as a penalty, an amount equal to the wage per day for each day during the continuance of the refusal to further employ or pay.

Weeks was a carpenter and had been in the employ from time to time of the appellant company engaged in the erection and repair of its tanks. On the morning of the 14th of February, 1930, appellant, through its manager at El Dorado, employed the appellee at $6 per day to work on a tank at a point in Louisiana about seven or eight hours distant from El Dorado by regular motor travel. It was necessary to secure others to help in the work, and a delay was thereby occasioned, so that appellee was not able to leave El Dorado until about six o’clock on the evening of the day he was employed. He left in a car procured by Roach, the manager of appellant at El Dorado, and in company with two others who were also to engage in the work for which appellee was employed. On reaching the point of destination on the following day, they wore informed by the appellant’s agent at that place that they would not be needed, and thereupon returned by way of. Shreveport to El Dorado, reaching there some time on the evening of the 16th. The appellee was put to work the next day on one of appellant’s tanks in what was called the Urbana field. He was given no other employment, and a disagreement then arose as to the amount due for his previous employment beginning on February 14, and from this difference this suit resulted.

There were only two witnesses who testified in the trial of the case in the justice court and on appeal to the circuit court, the appellee testifying for himself and Roach on the part of the appellant. In the justice court there was a judgment for the appellee for $10 without a penalty, and on appeal to the circuit court there was a judgment for $10 balance wages due, and $114 penalty. By appeal to this court that verdict and judgment is sought to be reversed.

Weeks claimed that because of his employment on the 34th, and his trip to Louisiana in accordance with snch employment, the time consumed -in returning to El Dorado, and for the one day’s work he actually performed on the 17th, he was entitled to pay at $6 per day, contract price, for the 14th, 15th, 16th and 17th of February, and made demand on or about the 19th of February for his wages as claimed. He had been paid $34. The appellant at first allowed him only one day’s pay for his trip and return from Louisiana and one day’s work on the 17th and claimed a balance of $2 due it on account of the $14 that had been advanced to appellee. After other demands had been made by Weeks and some correspondence had been between him and the appellant, it finally agreed to allow him one day more and on the 8th of March tendered him a check for $4 as settlement in full for his claim. This was rejected by Weeks, and he brought this suit.

The sole question presented for our determination is as to the amount due Weeks on the 19th day of February at the time he demanded settlement. At that time the company was contending that Weeks was only entitled to one day’s pay for his trip to Louisiana, and that, with the work on the 17th, he had still been overpaid the sum of $2. Appellant failed and refused for moré than seven days after demand to pay appellee for his time, but on the 8th of March tendered the check for $4. Weeks testified that the car furnished by the appellant was not working properly, and that on account, of the condition of the roads they were from six o’clock on the evening of the 14th until seven o’clock on the morning of the 15th in reaching their destination, and that upon their arrival they went to the place appointed to report for work, but were unable to find the agent of appellant there and did not find him until 1:30 in the afternoon; that they were then informed that there was no work for them; that, because of their being up all night, they were not able to get further on their return trip than Shreveport where they stayed all night, and that it required until the evening of the 16th to complete the return trip to El Dorado. Because of this Weeks claimed that he was entitled to three days’ full pay and with the day made on the 17th that he was entitled to $24. Roach testified that he refused to continue the appellee in the work he was engaged in on the 17th because he had only employed him from day to day, and that his services were no longer needed after the 17th. The jury by its verdict found that the appellee was entitled to four days’ full time, and in the circumstances above narrated as disclosed by the evidence is found substantial testimony to support the verdict.

From the 17th of February to the 8th of March inclusive, the day on which the tender was made, totals nineteen days, which, at $6 per day, would be $114, that being the amount awarded by the jury as a penalty. March 8 was the day the first offer to pay the balance of the wages and therefore, under any view of the case, if the statute applies, the amount found by the jury is correct. This statute was interpreted in the case of St. L. I. M. & S. Ry. Co. v. Bryant, 92 Ark. 429, 122 S. W. 996, and the construction there placed upon it makes it applicable to the instant ease, for we there said: ‘ ‘ The plain object and purpose of this statute is to secure for the employee the prompt payment of wages due.” It is the contention of the appellant that, because of the dispute as to the ariiount of wages actually due, the penalty statute has no application. Doubtless eases may arise in which there might be a difference of opinion between the employer and employee as to the amount due Avhen a recovery of a penalty would not be justified Avhere an employee fails to call special attention to the items demanded or to make demand therefor. But in this case the information was equally aAmilable to both. parties, and specific demand was made for the days claimed. Therefore, this case does not come within the rule announced in Hall v. C., R. I. & P. Ry. Co., 96 Ark. 634, 132 S. W. 911.

It is insisted by the appellee that the undisputed evidence shows that at no time was there a tender of the amount found to be due until the date of the trial in the justice court on April 4, 1930, and to that time the amount of penalty due would have been $264. Appellee further insists tlaat the recitals in the docket entries made by the justice of the peace refute the claim made that $10 was tendered in the justice court; that in fact no tender was made until the trial in the circuit court Avhen the accrued penalty amounted to the sum of $1,308, and that he should have judgment here for said sum plus the amount of Avages due. This contention cannot be considered here because the appellee has not appealed from the judgment of the court beloAV.

It is insisted by the appellant that the court erred in its declaration of law. Only a general objection and exception was made, and in that part of the instruction submitted to us we find no inherent error. The case must therefore be affirmed. It is so ordered.