text:
    Arkansas Shortleaf Lumber Company v. Wilkinson.
    Opinion delivered June 20, 1921
    1. , MASTER AND SERVANT — INSTRUCTION AS TO MASTER’S.btlTY. — hi ah' ' action by a servant for a personal .Injury,' Alleged to' be1 due ’to1 ■ thé'master’s ñégligience in’'fáilif¡grtci ’inspect1 'lúiüb'er handled1 by; 'the servant, an instruction that it was,the master’s .-duty to pro, • '.-tect-the servant from -danger whil^.; in .thé, pgrf.onnancp of.hjs, , duty, and «.that the master was liable if negligent in „ making inspection, provided such ypgligence was the proximate cause of the "injury!'was erroneous in ignoring "the master’s contention ' '-’’that it'was the servant’s diity to inspect" the’ldmber."'!' ’*'• v ’’ ’>

    2. Master and ^servant — failure to instruct. — 'Wheré, in án'dc'tión by á ripsawyer ¡for a personal injury, it was the master’s '• 1 contention .that'it'liras'-the duty of the1 plaintiff, and not of: ¡a i fellow-sef.vánty .to ¡inspect1'boards fot defects.-for-the i>úrpose:of . , . protecting,,plaintiff’,. it was .error, to- refuse an .instruction which ■ woull haye, su.bmitt.ed .this issue to the jury.j , '•■ . '}■ -
    8, , , MASTER; AND SERVANT, — DUTY OF INSPECTION — INSTRUCTION;—III .ajl action by. a seryant for personal, injuries, where it was the duty , of a fellowAervant to inspect luihber.to see that the same was ’ 'fide from defects liable" to'injure pláintiff,' áhd such'fellow-serv-ini',ant'Wa's negligent' in"dlsáharge óf this duty,:'the master was liable!bo np m iU-tuiíMf *ji 1 i pc w > v-iru,'» ,iq-^¡¡p

      4. Master and servant — liability of corporate employer — instruction. — In a servant’s action against a master for personal injuries, an instruction as to the liability of a corporate employer which is a literal copy of Crawford & Moses’ Digest, § 7144, though abstractly correct, is erroneous and misleading when given without hypothetical statements showing how it would be applicable to the facts in the case; being tantamount to a peremptory instruction for plaintiff and in conflict with other instructions.
    5. Master and servant — assumed risk. — An instruction that a servant assumes only known risks, the danger of which is comprehended by him was erroneous where it ignored the issues (1) whether the injury was due to the servant’s failure to perform his duty of inspection, in which case he assumed the risk whether he knew of the danger resulting from his failure to perform such duty or not, and (2) whether he assumed the risk of the injury complained of because it was obvious.
    6. Master and servant — burden of proof — instruction.—In an action by a ripsawyer for injury to his eye struck by a splinter from defective lumber, an instruction was erroneous which placed on the defendant the burden of showing that the plaintiff knew and appreciated the danger; it being proved that he was an experienced employee of mature years.
    7. Master and servant — assumed risk.- — If a ripsawyer, injured by a splinter from a defective board, knew that the board was defective, or if the board was so obviously defective that a man of ordinary care must have known it, he assumed the risk, even if a fellow-servant neglected his duty to inspect the board.
    Appeal from Grant Circuit Court; W. II. Evans, Judge;
    reversed.

      Mike Danaher and Palmer Danaher, for appellant.
    1. There was misconduct of counsel for plaintiff in examining veniremen. The statements made were not true, and were prejudicial and resulted in an excessive verdict. 104 Ark. 3, 9; 38 Cyc. 1479.
    2. There was also misconduct of counsel for appel-lee in his opening statement to the jury which constituted reversible error. 81 Ark. 231. Counsel have no right to introduce matters foreign to the issues before the' jury. 38 Cyc. 1500; 43 A. L. R. 146, 451; 41 N. H. 325; 9 Am. St. Rep. 560.
    3. It was error to admit testimony as to mental anguish of plaintiff and as to appellee’s family. Such testimony was not admissible. 54 Ark. 354. Mental suffering cannot be proved directly by any one except the sufferer. 7 Allen (Mass.) 118-124; 169 Ala. 131; 53 So. Rep. ¡80. Appellee was also permitted to state that he was worried because he did not know how he was.'‘going to get by with his little children. ’ ’ This was clearly inadmissible. 89 Ark. 58. Mental suffering from apprehension as to the future of one’s family is not the natural results of the injury, but depends upon pecuniary conditions and social relations of his family in the future, and-this was a direct appeal to the sympathy of the jury, and prejudicial. 69 Tex. 694; 7 S. W. 77 ;■ 57 Kan. 40; 45 Pac. 60; 79 N. E. 685. Testimony as to the size of his family, and that he was its sole support, and that his wife was dead, etc., was clearly inadmissible. 74 Ark. 326; 100 Id. 535.
    4. Testimony of witness that he relied on inspection was erroneous and prejudicial and was not cured by the court’s remarks that it was not competent. 60 Ark. 76; 100 Id. 116. The testimony was wholly irrelevant. The testimony as to the reliance of the witness or appellee upon the inspection of others was not admissible. 22 C. J. 617; 97 Ill. App. 7; 12 N. Y. S. 306.
    5. The testimony of the optometrist as to the condition of plaintiff’s eye and the chance of improvement was incompetent, as he was not a physician or oculist and was not an expert, and his opinion was worthless and inadmissible.
    6. Doctor Crump’s testimony«as to what would happen to the other eye and plaintiff’s condition if the other eye were destroyed, was mere conjecture and inadmissible, as was also the testimony of W. H. Walker, the superintendent. Testimony regarding similar accidents is inadmissible. 58 Ark. 154; 130 Id. 491; 99 N. W. 114 ; 40 Cyc. 2420.
    7. Improper questions were asked Doctor Jones. A question in the form of an assertion suggests an affirmative answer and is objectionable. 40 Cyc. 2425. See, also, 40 Cyc. 2433 and 2517; 15 Ark. 252.
    8. Testimony as to the price of lumber was palpably irrelevant and hormfnl.
    9. Appellee’s testimony that he relied on another inspection and thought there was no danger. This was, by the use of glaringly leading questions, and was prejudicial and error. 97 Ill. App. 7; 12 N. Y. S. 306.
    10. Testimony as to what would have happened under circumstances which did not really exist was not admissible. 22 Cyc. 514.
    11. A question answered is properly excluded. 40 Cyc. 2437. Leading questions are improper and should not be allowed. 40 Cyc. 2422.
    12. Hearsay evidence is not admissible. 22 C. J. 199.
    13. The corporate existence of appellant was not proved. None of the testimony introduced by appellee to prove that appellant was a foreign corporation was admissable or sufficient for that purpose. 14 Cyc. 174. Our courts do not take judicial knowledge of the laws of other States. 71 Ark. 177. The evidence was wholly insufficient to show the existence of a foreign corporation.
    14. The court erred in its instructions to the jury, both in giving and refusing those asked. No. 1 was obscure and unintelligible and it further assumes certain facts as proved. 38 Cyc. 1600. It should have left it to the jury to find the facts, and not assumed them as true 38 Cyc. 1658 and Arkansas cases cited. No. 2 was also error, as it makes the master liable as an insurer of the safety of an employee and imposes, on him an impossible degree of care, ignoring the rule that he is required to exercise only ordinary care. 26 Cyc. 1102. The defenses of appellant were wholly ignored. 17 C. J. 1061.
    15. It was error to give the third request for ap-pellee. 99 Ark. 69-76. Also error to give the fifth instruction for plaintiff. The definition of contributory negligence on part of appellant is error.

      16. The seventh request of appellee was error, as it singles out and unduly emphasizes a proposition of law. 75 Ark. 76-86; 38 Cyc. 1680.
    17. Instruction No. 18 for appellee was a peremptory instruction and should not have been given. C. & M. Digest, § 7144; 63 Ark. 477-484. The interpretation of the language of statutes is for the court, and not for the jury. 102 Ark. 205-7.
    18. The ninth instruction for appellee was palpable error. It ignored the facts that only the present value of the reduction of future earnings should be awarded. 17 C. J. 906. Nor did it correctly state the rule as to the assumption of risk. 26 Cyc. 1204. And it further placed the burden of proof on appellant to show that appellee knew and appreciated the dangers, while the contrary is the rule — that the servant is presumed to know the ordinary risks of his employment. 82 Ark. 11, 17.
    19. The eleventh instruction for appellee was error. Appellee assumed the risk.
    20. The appellant’s instructions correctly stated the law, and it was error to refuse them. 26 Cyc. 1092,„ 1248, 1297; 60 Ark. 582; 5 Thompson on Negl. (12 ed.) 69, par. 5417; 32 So. Rep. 15. It was also error to modify instruction No. 11. 32 Cyc. 745.
    21. It was error to refuse appellant’s thirteenth request. A servant assumes all obvious risks of the work in which he is employed. 118 Ark. 304; 95. Id. 560. It was error to modify it as the court did. It is the absolute duty of a servant to observe patent defects. 58 Ark. 125-130. See, also, 41 Ark. 542-9 ; 81 Id. 346; 101 Id. 201; 135 Id. 480-9.
    22. Appellee assumed the risk of this accident, and the court erred in its instructions, given and refused. 135 Ark. 480-9; 26 Cyc. 1236; II. 1202-3; 97 Ark. 486-9.
    23. The verdict is not sustained by the evidence. 70 Ark. 385-6. " ‘ '

      T. M. Nall and Rowell & Alexander, for appellee.
    1. The opening statement of counsel for appellee was not prejudicial.

      1 • 2.' -' 'The teStitndhy áS*tó'rú'éñtaí anguish* óf" waW •withdrawn -by; :the óóúrt:* upoti? '■ rób$édt$óii!h !ÍÓ0* Abfc.l22i'' -v v u. hsiii'i’muí:' 'in noíiaoep ndT
    8. :,Thér*tóStiáióhy 'of •Mtnóss"that'']ie irdlied'OnXiiM, was not error. ’den bet •'*; c. dr! Jonfí
    4. Appellant’s^Óbje’d&BnáHó •'tlie'’;te'átSiio'¿y;i-ó$’lfhfe! optometrist-íáxo.’not1 ^w’elLutaken.;-¡i,Hbi'iWa's> dualáftdd to treat; the >vision • df ■,the-»eyep ¡and Clare;í wa's ■ ¡dulyrdi.cehsedi and bad, bé,en loniotbet. State bbárdc and ibis: GpPof£s¿iain> ip .recognized in cfórty-isix» States, and; npmpongC.otboi'i countries. He was a compoteixtfwitbess.innderiounvdfpi^j
    5. The testimony as to other; accideflfe3 ^s.^yjtgcl, by rquestions ■ asked-by appellant, and ,if error was invited, error. rÍ2,d Ark. 6Í5.;,¿37. Ja. 228.,Thé„decisions ckse.',íí’u
    6. Aó eíbór.in
    Af dj 7.a ‘ ‘ There *was ’’ iio ‘ ebrór1 lín! ‘{ib^yté^fíMófí^ ;á^íoe$Éí$ pbicAof lumber. ' ‘Títere wás’a ■4ispuie<:áís!to‘ itfe'^rade' of lumber.' 1 *"'• ^ííj ' :-’rh oí ííjti*od Wj
    A ror. Ahecases bít'edcby 'Ki>fi;ÜÚ&&p>ty&ih.ó¡£JWW$

    here, ,
    Ao’ltóAsky , , ■ «env v!'-.i ' n .f/.Ui'.'rao. yd <4 elui;n n ord shows.
    S.JXW..'HOé rdL^0a JArTfc. 9á1SiBH.3 s
    ■ has not properly'Set tions in his'atistractbr'bríéjf.’ ''We^db'-’ló',‘-’ál&Pnó bledéfrób-'appéáM iH'bdbó:!wbdíe:/J'ffi.ey‘'’Stk.té<-tbe't,ílLW of this' cáse:1 93 ' Ark.' 564;'5Í09 Tcl 283p 101 Td:* 197*; ;126 Aíkb449'.r'ig'io í,(U ,'d ! war na m? vnjtfimft -ta/ii
    ■; -i>f hAjudgínófii lof á’y^'éyfé'oh’rt^waíf'kidt-Tíe^é-ver’sk'dmpBii'th.’e'i^fei^ht’bftéyid'éñc’éHf thbrebAhtry le'gál evidence to support it; there must be a total failure of evidence to sustain it. 15 Ark. 540; 97 Id. 87; 97 Id. 442.
    The question of contributory negligence was for the jury, and their verdict, on proper instructions as here, is final. 143 Ark. 106. Similar cases to this are found in 102 Ark. 562; 85 Id. 503; 93 Id. 88.
    The act of 1907 applies to all corporations and the burden is on defendant to prove contributory negligence. 92 Ark. 502; 174 S. W. 222. It was for the jury to say how the injury occurred, and they have settled it by their verdict. 103 Ark. 476; lb. 61.
    14. The verdict is not excessive, and the evidence sustains it. 107 Ark. 512.
   Wood, J.

The appellant is a Missouri corporation operating sawmills in the State of Arkansas. Appellee was in its employ in the capacity of a“ ripsawyer. ’ ’ The appellee’s duties required him to take from a table near by boards of lumber that had been placed thereon and to feed these boards to the ripsaw; that is, to push the boards against the saw in order to rip them into narrow boards. When the saw thus passed through the boards, they were taken out by an employee at the other end who was called the “tailer.” The boards handled by the ap-pellee were first conveyed on endless chains from the downstairs of the plant, and as they reached the second floor they were taken off the conveyors by a negro employee called a “passer” or “puller,” and were placed on a table to be handled by the appellee.

On the 30th of March, 1920, about 2 o’clolck p. m., the appellee had pushed a board to the saw and was standing with another board ready to go through when the saw clicked and a splinter flew out, striking the ap-pellee in the left eye and severely injuring him.

The appellee brought this action against the appellant to recover damages for the injury, and he alleged that the injury was caused by the negligence of the agents and servants of appellant in charge of receiving lumber from the floor below in not inspecting the lumber and discarding that which was defective on account of splinters and knots, which it was their duty to do. The appellee alleged that it was his duty to run the lumber through the saw, one piece following another, without interruption, and therefore he did not have time other than to casually cast his eye to the table for a piece of lumber; that he had no time to inspect same for defects, and therefore, he did not know of this defect, but it was known, or in the exercise of ordinary care should have been known, to the servant whose duty it was to inspect the same before placing it on the table for handling by the appellee; that the failure of appellant’s servant to discharge his duty as alleged was the cause of appellee’s injury, for which he asked a judgment for damages in the sum of $20,000.

The appellant answered, denying all material allegations of the complaint and set up the defenses of contributory negligence and assumed risk on the part of the appellee.

The appellant testified, among other things, that when the lumber came from downstairs it was the duty of the man that stands by the chain and pushes the boards off on to the table, called the lumber passer, to inspect that lumber: Only high grade, first-class lumber, clear of knots and splinters, passed to the appellee’s saw. Any lumber that was not proper to go to that saw was passed back to the other machine or thrown aside — “that was what the ‘passer’ was supposed to do.” This passer was a colored man, who had been working at the job about a week. Witness heard Walker, the superintendent,' and Mitcham, who kept up the saws, tell the passer to inspect the lumber and to put nothing but the best lumber there for appellee to handle, and he relied on the passer doing his duty. In describing his own duties, appellee stated that it was his duty to keep the lumber cut, keep the machine going, and keep them in stock, and he did not have any time to inspect the lumber on the table, and it was not his duty to do so. He had to keep his eye on the machine all the time. Witness further explained that lie received bis injury on account of a shattered and splintered piece of board. The splinter came right out from the saw under the board. If the inspector had done his duty, a board with splinters could not get to the table from which the appellee took the lumber that he passed throiigh the saw. Appellee had once filled the position ©'f;“fiá!sM¿r,?’ and knew what his duties required. Appel-leé wasAOldAhat this colored passer was inspecting the hiibb'éiy and^appellee .relied on his performance of that diity>.(,tíOthér witnesses testified corroborating the above testiiñ'ony ?o'fi the /appellee as to the respective duties of tti¿ ripshwyer ahd«the'Cpasser,” and to the effect that ifothei'-ipasse'r’lhad.nxiercised ordinary care to inspect the lumberihe ■could'have déteoted a piece of lumber that had a large splinter on it, or a knot.

■e'J e.Oiüíthé.'/othfei?.hand',i there*was^tesfimony on behalf of theappellanb tending to showothatat'cyas the duty of the ripskwyer/¡himself í©’ánepectethAlumberÍ3before he put it through the ripsaw and “not to put through the saw áhy^(fiókr<M) 1 fltíát' Vebfe' not ¡fit 'ifi&ké itotibfhe.- stock he wa/s inákMg ;-;'’‘th;átapprell'é>e:wáS'i!nát¥1idtéd'3by appellant’s átíperi'hrt'efiden't rán'd Alsd'by'áppléllbé-lsYf bíÉfíáÉSndti'toerip áñ^thlifg' that -Will'd ííót1 miáké1 thf ée-dí^hths^'stfi.ff‡ ÍMt’it #as' tfié- dutybf^hé' hípsh\fyyef'itó‘‘hée4hki; iMepweiebrnni iiih|- clearr- lumllei '.6ü No*. 8-/ áiidjhn éasbrfhe;iofiftbddreffis frdiffthé'íóhsiin put1' stuff >.‘o;n.)4ppellee ’sAable/hhattiwasiffioi Suitable fdr the'fiooring/fo throW'ltJoüt.o'dbwaisAhé duty bfAhe-'liimbebiC'passer’ó.tóa^cerfaim'estfent-te'iiñspbctíthe lumb'ér-- aAhé'Ábbk .if 'off 't-hd'chaiii/'to'Lptitsiit-’ohAhebripi-Sawyer’s*-‘táíble/'aíñ,d'h%'shadr!l!Íó‘efií'ex*pected:ftoid:ói''¡;so..iílh,e only purpose ’in ?inStriicñn'gAhení¡tq piit >. g o oddumb er .on appbllee?s*tkble'-.'wa& toUget'theobest «stdekmiiefeéíra»[tibia ‘ tveáeeringífloóf ing. 1 ó»: .‘It wdsS ¡not ,tórp®ote®t tihM* appelleh iniany /why'.o; All-'df.Hthem’thátf pplíé&Ahéhbokrd^ i®S thé chain.dón¡th4 table'were toldAo' klwayfsdpickí the;-lfimbér amdí geti^dódí stñff'for-'that-’sawjríbutosóihefiipqsitheyísgot ¡a;!bad bieeeAñ there,'and they* told ifehe/'felloA'wlió was Tiippin’gr*fq throw;'it blit * if bit > wasm’oti> ihofoyrndke "fhiees -fei¿hthS'i¿biíffi'-e val h ni o.-Mitb’W .oiíií) oiD tin yniif-vim

There was also testimony on behalf of the appellee to the effect that lumber pullers were usually negroes. They ordinarily used inexperienced common labor for that job. There was also testimony adduced by the appellant tending to prove that the machine which the ap-pellee was operating was protected by a hood and guides so as to keep splinters and dust and particles from the saw from flying out and striking the operator above the waist line. The ripsawyer wore a leather apron to protect him against the splinters and knots that might fly from the saw and to help him hold the plank to the guide line. If he were in an erect position, it WQuld be impossible for a splinter from the saw to strike him in the eye. Appellee had been instructed not to stoop down and look in the machine while he was operating the same. At the time the appellee received the injury, he was stooping over looking into the saw and punching with a stick about twelve or fourteen inches long. The appellant’s superintendent had seen the appellee several times stooping down looking into the machine while operating the same, and he had cautioned him every time about that.

In instruction No. 1, given at the instance of the ap-pellee, the court told the jury in substance that, if appel-lee was injured by want of ordinary care upon the part of the servant of appellant in failing to properly inspect the lumber placed upon the table for the appellee to handle, and this failure to inspect was the proximate cause of the injury to the appellee, the appellant would be liable; that it was for the jury to say from the evidence whether the appellee was in the performance of his duty at the time of his injury, and whether the appellant failed to exercise ordinary care to protect the appellee from danger while in the performance of his duty, and whether such want of ordinary care, if shown, was the proximate cause of the injury to the appellee.

In instruction No. 2 the court told the jury that the duty rested upon the appellant to permit no act of negligence whereby its servants may suffer injury and to exercise ordinary care to protect Mm from danger; that if they believed the appellant failed to exercise ordinary care to properly inspect the lumber placed upon the table for the appellee to pass through his machine, and a piece of defective lumber was placed upon the table for appel-lee’s use which was the proximate cause of the injury to the appellee by causing a large splinter to be thrown therefrom, striking the appellee in the left eye, while he was operating the machine and using ordinary care for his own safety, without warning to him, and injured him, and that appellant thereby failed to exercise ordinary care to protect plaintiff from danger, and that the act of the servants of appellant in failing to properly inspect the lumber was the proximate cause of the injury to ap-pellee, they should find for him and assess his damages at such sums as they found from the evidence would compensate him for the injury received, unless they found that he was guilty of contributory negligence or had assumed the risk as defined in other instructions.

In instruction No. 8, given at the instance of the ap-pellee, the court instructed the jury that “ every corporation, except while engaged in interstate commerce, shall be held liable in damage to any person suffering injury while he is employed by such corporation resulting in whole or in part from the negligence of such corporation or from the negligence of any of the officers, agents or employees of such corporation.”

Instruction No. 10 is as follows: “No. 10. Before it can be said that plaintiff assumed the risk in this case, you must find from the evidence that plaintiff not only knew of the danger to which he was exposed by reason of the employment and service, and which caused the injury, but als.o comprehended and appreciated such danger, or ought to have appreciated and comprehended the same, and the burden of showing that the plaintiff did know of and did appreciate such dangers rests on the defendant, unless this fact is shown by the plaintiff’s own testimony or that of his witnesses.”

Among others the appellant asked the following instruction : ‘ ‘ No. 6. If you find from the evidence that the reason for instructing other employees to place on Wilkinson’s table only high grade boards was merely to select hoards suitable for the manufacture of a particular kind of finished lumber, and not for the protection of the operator, your verdict will be for defendant.”

The court modified and gave appellant’s prayer for instruction No. 18, the modification being indicated by the.words set forth in italics, as follows: “Even if you find from the evidence that another employee of the defendant was negligent in allowing a defective board, or a board of low grade, to reach Wilkinson, if you further find from the evidence that Wilkinson knew that the board he placed in the machine was of low grade, or defective, and that it was more likely to splinter than a board of high grade, or one not defective, or if these facts were so obvious that an ordinarily prudent person, in the circumstances, would have been aware of them, and appreciated them, your verdict should be for defendant, unless you find from the evidence that it was the duty of another employee of the defendant’s to inspect the board and that WilTcinson rel)v,ed on him so to do.”

The appellant asked the instruction without the modification, and objected to the ruling of the court in modifying, and giving it as modified.

The trial resulted in a judgment and verdict in favor of the appellee. From that judgment is this appeal.

1. The court gave an instruction to the effect that the jury could not single out any one instruction given by the court, but must consider all of the instructions together as the law of the case by which they were to be guided in arriving at their verdict. In Southern Anthracite Goal Company v. Bowen, 93 Ark. 140, 149, 150, we said: “Each instruction must be rea,d as a whole and all of its parts must be considered in determining its meaning, and when reference is made in one instruction to some other part of the charge, or when words are used in some instructions that are correctly defined in others, the other parts of the charge referred to and the other instructions must be considered in determining whether or not the particular instruction under consideration are correct.” The rule is well stated in St. L. S. W. Ry. Co. v. Graham, 83 Ark. 61, as follows: “It is generally impossible to state all the law of the case in one instruction; and if the various instructions separately present every phase of it as a harmonious whole, there is no error in each instruction failing to carry qualifications which are explained in others. ’ ’

Applying the above rule to the instructions of the court in the case at the bar, we find that the court’s charge, when considered as a whole, did not correctly declare the law applicable to the issues and to the facts which the testimony tended to prove. The appellee bottomed his cause of action on the alleged negligence of the appellant in failing to have the lumber which appellee was handling properly inspected. Appellee alleged that this duty devolved on a servant called the “passer,” and that he negligently failed to discharge that duty. The appellant defended the action on the ground that it was the duty of the appellee himself to inspect such lumber, and that such inspection as was required of the “passer” was not for the purpose of protecting the appellee, but to aid the ap-pellee in securing as the output from the ripsaw a certain quality of high grade lumber called “veneering flooring,” which it was the duty of the appellee to produce, and that appellee’s injury was therefore incident to the risk which he assumed and was caused by his own negligence. The appellee did not allege that the appellant was negligent in failing to exercise ordinary care to furnish him a safe place in which to work, nor appliances with which tc do the work, nor in the employment of unskillful or inefficient fellow-servants to aid him in the performance of his duties.

Such were the issues, and the testimony adduced warranted the court in submitting them to the jury. But the court erred in not submitting these issues in appropriate and correct instructions, and its charge as a whole was not harmonious and consistent, but was well calculated to mislead the jury. For instance, the court, in its first and second instructions given at the instance of the appellee, told the jury in effect that it was the duty of the appellant to protect appellee from danger while in the performance of his duty, and, if the appellant through its agents and servants failed to exercise ordinary care to inspect the lumber placed on the table to be handled by the appellee, and such failure was. the proximate cause of the injury to the appellee, then the appellant was liable. The instructions as thus framed wholly ignored the contention of the appellant that it was the duty of the appellee to inspect the lumber himself, and that no such duty was required of the “passer” in order to make appellee’s place of work safe and to afford protection to the appellee.

The court refused appellant’s prayer for instruction No. 6, in which appellant sought to have its theory on this phase of the case presented to the jury, and we do not find that any instruction was given covering appellant’s theory and contention. There was evidence to justify such contention, and the .court erred in ignoring it. On the issue of negligence, the court should have told the jury that if under the evidence it was the duty of the appellee to inspect the lumber to see that it was free from splinters, knots and other defects, and he failed to perform this duty which resulted in his injury, he assumed the risk, and the appellant was not liable; but on the other hand, if it was the duty of appellant’s servant, the “passer,” to inspect the lumber to see that the same was free from defects liable to produce the injury p to appellee and to afford him protection from such defects while passing the lumber through the ripsaw, and the passer negligently failed to discharge this duty, and such failure was the proximate cause of the injury to the appellee, then the appellant was liable.

If it was the duty of appellee to make the inspection, then the injury resulting from the failure to perform this duty was one of the ordinary risks of the employment which he assumed. But if the duty devolved on the appellant’s servant to inspect the lumber in order to afford the appellee protection, then the appellee did not assume the risk resulting from a failure on the part of the “passer” to perform that duty, unless such failure of the “passer” subjected the appellee to a danger which was so open and obvious that appellee was bound to know of and appreciate it in,the performance of his own duties and in the exercise of ordinary care to protect himself from the ordinary risks and dangers incident thereto.

Instruction Ño. 8, given at the instance of the appellee, is a literal copy in part of the statute, 7144, Crawford & Moses’ Digest. It is therefore correct as an abstract proposition of law, but the court erred in giving it without hypothetical statements showing how it would be applicable to the facts developed in the case. Without such explanation, it was calculated to mislead the jury, and was tantamount to a peremptory instruction in favor of the appellee, and is in conflict with other instructions. K. G. F. S. & M. Ry. Co. v. Becker, 63 Ark. 477, 484; St. L., I. M. & S. Ry. Co. v. State, 102 Ark. 205-207.

Instruction No 10, given at the instance of the appellee, was erroneous because it also ignored the theory of the appellant that it was the duty of the appellee to inspect the lumber for himself. If such were appellee’s duty, then lie assumed the risk, whether he knew of the danger resulting from a failure to perform such duty or not. He also assumed the risk of obvious defects. It is also erroneous because it placed the burden of proof upon the appellant to show that the appellee did know and appreciate the danger. The proof shows that appellee was an employee of mature years and experience. It is not alleged and not pretended that the appellant owed him any duty of instruction or warning. If it was his duty to make the inspection, the risk of injury from failure to perform this duty was one of the ordinary risks which he is presumed to know, C., O. & G. R. Co. v. Thompson, 82 Ark. 11.

The court erred in modifying appellant’s prayer for instruction No. 18 by adding the words in italics, for if the appellee knew that the board was defective, or, if the defect was so obvious that a man of ordinary care must have known it, then he assumed the risk, even if it was the duty of the appellant’s “passer” to inspect the boards. E. L. Bruce Co. v. Tax, 135 Ark. 480.

It would unduly extend this opinion to comment further upon the numerous specific assignments of error concerning the rulings of the court in giving and refusing prayers for instructions. It is believed that what we have already said will be a sufficient guide to the lower court in framing its charge on a new trial. We have already pointed out errors in this respect of which the appellant has the right to complain. There were other errors in some of the prayers for instructions, but they were not prejudicial to the appellant. There were sixty-two assignments of error as grounds of appellant’s motion for a new trial, but many of these rulings upon which error is predicated may not arise on another trial, and hence we do not comment upon them. For the errors indicated, the judgment is reversed, and the cause is remanded for a new trial.


source: Caselaw Access Project

author: Hart, J.

license: Public Domain

text:
    City Oil Works v. Helena Improvement District No. 1.
    Opinion delivered June 30, 1921.
    1. Eminent domain — damages to industrial track. — In an action - to condemn a right-of-way for a levee, an instruction limiting the damages to be recovered to the value of the land actually taken in the construction of the levee and denying defendant’s right to recover* on account of the levee being built across an industrial track to its oil mill was erroneous where- it was not shown that the practical use of the oil mill had been destroyed on account of its being left outside of the levee by construction of the new levee.
    2. Eminent domain — liability op levee district for failure to include land. — A landowner whose property is left outside of a levee is not entitled to damages because of the failure to protect his land, or because the levee as constructed: .may, prevent water from flowing off his land as it otherwise' wo.ylijl.^Qr, '.may deepen the water in an overflow of the land between the embankment and the river. '
    C. Eminent domain — liability FOR damages to property outside levee. — Although a levee district is not liable for damages inflicted by the river upon land situated outside of the levee, it does not follow that it should not be liable for damages produced by independent causes other than being outside of the levee, if these elements of damage are proper.
    4. Eminent domain — damages to industrial track. — Where the usefulness of ..defendant’s oil mill was not wholly destroyed by being left outside of a levee, it was entitled to recover damages for the building of a levee across its industrial tracks, rendering them useless.
    5. Eminent domain — damages—evidence.—In a proceeding to condemn property for levee purposes, evidence held not to show beyond dispute that the defendant’s oil mill was rendered valueless because the levee was constructed so as to leave it on the outside.
    6. Eminent domain — damages.—-In a proceeding to condemn land for levee purposes, where the evidence showed that the construction of the levee across defendant's industrial track prevented defendant from carrying freight to and from the oil mill over the industrial track, the damage so caused was not due to the oil mill being left outside of the levee, but was caused by the levee itself, and constituted a damage to the remainder of defendant’s property for which the defendant should be compensated.
    Appeal from Phillips Circuit Court; J. M. Jackson, Judge;
    reversed.
    STATEMENT OP PACTS.
    This action was brought in the circuit court by Helena Improvement District No. 1 against the City Oil Works to condemn a right-of-way over property belonging to the defendant in Helena, Ark., for the construction of a levee. Subsequent purchasers Pf the property from this defendant were also made defendants.
    They answered, setting up damages by reason of the actual taking of a part of the land and the injury to the remainder.
    The board of commissioners for the levee district and the engineers were witnesses for it at the trial of the condemnation proceedings. According to their testimony, the levee was first constructed in front of the oil mill of the defendants, and the levee protected the mill from the high waters of the Mississippi Eiver. There was a subsidence in the levee. By this is meant that the levee sank down, and the cause of it was the soft foundation. The subsidence was in that part of the levee in front of the mill. The commissioners of the levee district expended about $20,000 in trying to repair and maintain the levee in front of the oil mill. They were unable to do so, and, after the levee had sunk down again and a part of it had caved into the river, it was deemed advisable to construct the levee behind the oil mill. In doing this, they used about six-tenths of an acre of the land on which the oil mill was situated and built the levee across an industrial railroad track which had been extended from the main track of the railroad company to the oil mill for the purpose of carrying freight to and from the mill. This left the .oil mill in front of a levee sixty feet high and without means of carrying its freight from the mill to the tracks of the railroad company. The value of the land upon which the mill was situated was $1,000 per acre.
    According to the testimony of G-. W. Willey, the president and manager of the oil mill, his company was engaged in crushing cotton seed and in the cotton seed oil business. It is impractical to operate an oil mill of that size without an industrial track. After the levee was constructed behind the oil mill, it destroyed the industrial track so that the company was unable to move its freight to and from the mill to the railroad. It was impractical to operate the mill after the levee had been constructed across its industrial track, so that cars could not be brought from the railroad track to the mill for the purpose of loading and unloading. The value of the plant before the levee was constructed behind it was $70,000. After that its value was practically destroyed, and it was necessary to sell the machinery piece by piece.

      He further stated that this -would have been prevented if the old levee had been permitted to remain. According to his testimony, also, the construction of the new levee made it impossible to operate the plant. The reason given was that the levee occupied that portion of the ground that had been formerly used for trackage purposes, and .the construction of the levee, which was sixty feet high across the industrial track leading into its mill, damaged the property the whole value of the mill. The reason that the taking deprived them from . operating the mill was because it was impossible tb maintain thereafter a railroad connection. In short, the taking of the particular piece of land and the building of the levee across the industrial track practically destroyed the value of the mill, and made it impracticable to operate it.
    No subsidence has occurred in the old levee in front of the mill since the construction of the new levee behind it. Accretions are forming in the river in front of the mill and willow trees are growing up there.
    The jury returned a verdict for the plaintiff and assessed the value of the land taken by it in the sum of $60.
    From the judgment rendered, the defendants have duly prosecuted an appeal to this court.

      Moore & Vineyard and W. G. Dinwing, for appellants.
    1. The court erred in overruling appellants’ exceptions to the competency of certain jurors. Residents and taxpayers of a municipality are disqualified as jurors in actions affecting the interests of the municipality. 60 Ark. 221; 119 Ind. 368; 5 L. R. A. 253; 81 Kan. 616; 28 L. R. A. (N. S.) 156; 115 La. 757; 5 Ann. Cases 920; 57 Ore. 236; Ann. Cases 1913-A, 117. The jurors objected to were not qualified jurors in this case.
    '2. The improvement district is liable to appellants tor the damages caused to their property as a whole by the building of tbe levee across a portion of their lands. Private property can not be taken ¡or damaged for public use without just compensation therefor. Const., art. 2, § 22; Id., arC 5, § 32, and art. 12, § 9. This court has settled the law as to the elements of damage arising in favor of landowners by reason of eminent domain proceedings. The owner is entitled to recover all damages caused by increased difficulty of ingress and egress caused by the construction of a railroad. 41 Ark. 431. The manner in which a railroad cuts up the land, the amount and location of the land taken, the inconvenience to the owner in passing from one part of his land to another, the absence of proper crossings and the overflow of the land, are proper elements of damage. 44 Ark. 360; 51 Id. 330. See, also, 39 Ark. 167. The measure of damages for taking the land for right-of-way is the market value of the land taken and the damage to the remaining land from the building of the road across it and from floods and overflows caused by its construction. 78 Ark. 83. See, also, 88 Ark. 129 ; 94 Id. 206; 5 A. L. R. 723, 727. The court below ignored the well-known rule of these cases, and prejudicial error resulted to appellant. The measure of damages and amount of recovery is not limited by the provisions of C. & M. Digest, § 3940. The provisions of said section, in so far as they attempt to deprive the owners of property in this State of the rights guaranteed by our Constitution, are void. The owner is entitled to full compensation for all the damages done by taking his land. The appellants attempted to have all the issues submitted to the jury by asking a number of instructions, but the court erroneously refused to give them. The error was prejudicial.

      P. B. Andrews and J. G. Burke, for appellee.
    1. The overruling of exceptions to the competency of certain jurors on the ground that they were owners of land in the district has never been passed on by this court, but see 43 Ark. 324. See, also, 94 Ark. 563. Under the rulings of this court the jurors were not disqualified. ;

      2. As to tbe measure of damages and recovery is limited by C. & M. Digest, § 3940.
    3. There was no error in the instructions given or refused. The principles were settled in 95 Ark. 345-51. That case is conclusive of this. See, also, 230 U. S. 34. There was no error in refusing to submit the issues raised by the instructions to a jury.
   Hart, J.

(after stating the facts). There is no conflict in the testimony that it was necessary to construct the new levee in order to protect the lands within the district from the overflow of the Mississippi River. It is conceded that the commissioners acted in good faith in locating and constructing the new levee, and that this was within the power of the commissioners under the act creating the improvement district.

The evidence shows that the levee, as originally constructed, was between the oil mill of the defendants and the Mississippi River. So it may be said that the oil mill was on the inside of the levee. By the construction of the new levee the oil mill was placed outside of the levee. In other words, the oil mill of the defendants is between the new levee and the Mississippi River. There was an industrial track extending from the oil mill”of the defendants westward to the main line of a railroad. The levee was constructed across the industrial track on a part of the land of the oil mill. The levee as constructed was sixty feet high and destroyed entirely the use of the industrial track .of the oil mill. So that communication from the mill with the railroad by cars operating on the industrial track was entirely cut off.

In instructing the jury at the request of the plaintiff, and in refusing to give instructions asked by the defendants, the court limited the damages to be recovered to the value of the land actually taken in the construction of the levee, and denied the defendants the right to recover on account of the levee being built across the industrial track running from the main line of the railroad to the oil mill of the defendants. This was error. The ruling .on this point -would have been correct if the un-contradicted evidence had shown that the practical use of the oil mill had been destroyed on account of its being outside of the levee by the construction of the new levee.

In McCoy v. Bd. of Dir. of Plum Bayou Levee Dist., 95 Ark. 345, the court held that a levee district may rightfully build its levee across depressions, swales and low places so as to prevent the escape of flood water from a river into surrounding low lands sought to be protected, though it has the effect of raising the water higher on lands between the levee and river, without becoming liable to the owner of such interevening lands so damaged.

The court further held that a levee district, which builds a levee so as to protect lands from overflow of the waters of a stream at flood time, will not, under article 2, § 22, of the Constitution of 1874, providing that private property shall not be “taken, appropriated or damaged for public use without just compensation therefor,” become liable for injuries to land lying between the levee and the river resulting from the flood water being raised higher between the levee and the river than before the levee was constructed.

In Jackson v. United States, 230 U. S., p. 1, and Hughes v. United States, 230 U. S., p. 24, the court held that the United States is not responsible for damages by overflow or for failure to construct additional levees along the Mississippi Eiver so as to afford increased protection from increased overflow caused by the levees that were constructed by State and Federal authority at other points; nor do such damages amount to taking the land overflowed for public use within the meaning of the Fifth Amendment.

Under the rule announced in those cases, the landowner is not entitled to damages because of the failure to so construct the levee as to protect his land from the waters of the Mississippi, or because the levee as constructed may prevent such water from flowing off as it otherwise would, or- it may deepen the water in an overflow on the land between the embankment and the river. The intention of the Legislature was to protect the lands in the improvement district against the waters from the Mississippi River by constructing a levee for that purpose, and, if it was necessary to construct the levee so as to leave property between it and the river, this would in the very nature of things be unavoidable. Hence it has been held that the landowner must submit to the consequent loss resulting to him as his misfortune to be borne for the general good.

Therefore, the levee district is not liable for damages inflicted upon the land by the Mississippi River. But it does not follow that the levee district should not be liable for damages produced by independent causes other than being outside of the levee, if these elements of damages are proper in other condemnation proceedings. This rule is supported by the decisions of the Supreme Court of the State of Mississippi. A section of the Constitution of that State excludes compensation for damages accruing to land “because it is left outside the levee.” The court said that the words used in the Constitution presents the idea of defenselessness against the ravages .of the Mississippi River.

In Duncan v. Board of Mississippi Levee Comm’rs (Miss.), 20 Sou. 839, the court said: “All damages, therefore, which accrue to lands from the ravages of the river because not protected against it by the levee are not to be compensated for. But damages produced by independent causes other than being left outside the levee, if, in their nature, allowable within the rules of law, are still recoverable. ’ ’

Again in the case of Richardson v. Levee Comm’rs (Miss.), 9 Sou. 351, the court held that the landowner is not entitled to compensation because the construction of the levee renders the land lying between it and the river practically worthless for agriculture and necessitates the removal of houses to the protected side of the levee, as these are consequential damages. In discussing the ques-

tion the court said: “The landowner is not entitled to damages because of a failure to so place levees as to protect his land from the water of the Mississippi, or because the levee may prevent such water from flowing off as it otherwise would, and may deepen the water in an overflow on the land between the embankment and the river. These are consequences of the situation, and the authorized effort to promote the general good by the construction of levees, and must be borne, because they are unavoidable in the nature of things. The legislative scheme is to protect against water from the Mississippi River by an embankment sufficient for the purpose, and it is to be put where the board intrusted with the execution of the scheme may determine; and the landowner must submit to any inconvenience or disadvantage or loss resulting to him consequentially as his misfortune, to be borne for the general good, to which individual convenience must be subordinated, except where it is otherwise provided. Commissioners v. Harkleroads, 62 Miss. 807.” * # * “That damage caused by the success of the scheme in confining the water of the river is excluded seems clear, and has already been announced. That all other damage which is not remote, and arises directly from the taking of part for levee purposes, resulting to the owner’s adjacent land immediately from the constructing of the levee, is to be compensated for, seems as clear as the denial .of damage by the river. This is consonant with natural justice, and it may be assumed that it was the legislative purpose to secure to the owner whose land is taken for a levee, indemnity for all damage done him as to the adjacent land he owns, not arising from the accomplishment of the .object of the levee, and directly produced by depriving him of so much of his land as is taken from him, and converting it into such a shape as to do harm to his adjacent land. We are not willing to declare a rule more precise than this, for, while there may be a general resemblance in all cases of land near the river, there must be individual differences, and each, must be governed by its own peculiar circumstances, subject to the general rules announced.”

It results from these views that if the undisputed evidence had shown that the oil mill of the defendants had been rendered practically useless by the construction of the new levee so as to place the mill outside of the levee, and the mill could not thereafter be operated, the owner could not recover damages for the consequent depreciation in the value of his property or the cost of removing the mill and its machinery to another site where the mill could be operated. The reason is that the damages suffered under such a state of the record.would follow as an incident to the construction of the levee so as to leave the property outside of its protection.

The undisputed evidence in the case at bar, however, does not show that the oil mill was rendered valueless as an oil mill because the levee was constructed so as to leave it on the outside of the levee. It is true there is some confusion in the testimony on this point, but, when the evidence is given its strongest probative force in favor .of the defendants, it does not appear to us that the oil mill could not be operated at all because the construction of a new levee placed it between the levee and the Mississippi River.

The evidence does show that the oil mill was greatly depreciated in value on this account. According to the testimony of the defendants’ witnesses, it was rendered impractical to operate it because the new levee was constructed across the industrial track leading from the railroad to the oil mill, and thus the oil mill company was prevented from carrying cars over the industrial track to and from its mill for the purpose of loading and unloading freight. The evidence for the defendants shows that it was impractical to operate the oil mill without this connection. According to their testimony, however, it was not wholly impractical to operate the oil mill because it was on the outside of the levee. To sum up, the evidence shows that? before the new levee lyas constructed, the oil mill was worth $70,000. Suppose the uneontradicted evidence had shown that the construction of the new levee rendered the property valueless as an oil mill, and that it could not be operated as such on account of the ravages of the waters from the Mississippi River, then the defendants would he only entitled to recover the value of the land taken, and the instructions given by the court would have been correct.

It is fairly inferable, however, from all the evidence, that, while the oil mill property was materially injured by being placed outside of the new levee, still it was practical to operate it, if its industrial track had not been destroyed by the construction of' the new levee. This shows that the construction of the new levee across the industrial track was an independent cause which rendered the oil mill property valueless as such and made it impracticable' to operate it.

The error in the instructions of the court evidently arose from the fact that it considered the construction of the levee across the industrial track as a mere incident instead of an independent cause producing damages. It is true the only practical way to construct the new levee was to build it across the industrial track. The evidence for the defendants shows that such construction damaged their oil mill property because it prevented the defendants from carrying cars of freight to and from the oil mill over the industrial track. Manifestly this was not damage accruing because of the oil mill property being left outside of the levee, but the damage accrued because of the construction of the levee over the industrial track. In short, this damage was caused, not because the property of the oil mill company was unprotected by the levee, but it was caused by the levee itself. "Whether inside or outside of the levee, the damage to the oil mill in this respect was caused by the building of the levee itself, and not by reason of the fact that the oil mill was left outside of the levee. The facilities afforded by the industrial track for the transportation of freight between the railroad and the oil mill was a valuable property right which belonged to the oil mill company, and its injury by the appropriation of the land on which it was situated and the construction of the levee across it constituted a damage to the remaining property for which the defendants should be compensated. Chicago, S. F. & C. Ry. Co. v. McGrew (Sup. Ct. of Mo.), 15 S. W. 931, and N. Y., N. E. & E. R. R. R. Co. v. Blacker (Mass.), 59 N. E. 1020.

. In the latter case the court in discussing a similar question said: “The fact that his land was situated on the line of the railroad, and at a level with it, so that spur tracks could be (as they were) built, running onto it, made it valuable for any business which could be economically carried on by having freight delivered to it directly from the cars without the expense of handling and carting. That was an element which in fact gave, or might have given, value to this land, and which could properly be considered in determining what the fair market value of it was. ’ ’

The holdings in those cases are in accord with our own decisions. In K. C. So. Ry. Co. v. Boles, 88 Ark. 533, the court held that, although several lots of land sought to be condemned for railway purposes are separated by an alley, they may be treated as parts of a single tract for the purpose of determining the damages if the testimony shows that they are used as a unit.

In St. L., Ark. & Tex. B. Co. v. Anderson, 39 Ark, 167, the court held that the elements of damages in condemnation proceedings are not alone the market value of the land actually appropriated, but include also the injury to the owner of the remaining land arising from the increased difficulty of communication between the parts of the several tracts, etc.

It follows that the court erred in not submitting to the jury as an element of damages the loss suffered by the defendants on account of the levee having been constructed across the industrial track so as to cut off connection between the oil mill and the railroad -by means of the industrial track.

For this error the judgment must be reversed and the cause remanded for a new trial. •

Smith, J., dissents.


text:
    Bothe v. Noack.
    Opinion delivered June 20, 1921.
    1. Specific PERFORMANCE — right of beneficiary of contract. — One for whose benefit a contract for the sale of land was made is entitled to enforce it according to its terms, though he never signed the contract.
    2. Specific performance — right of third party to. — Where a contract for the sale of land between plaintiff and one defendant provided that another defendant should sign the purchase notes, the latter, by signing the notes, accepted the terms of the contract, namely, that if he paid the notes he should be substituted to the other defendant’s rights and have specific performance.
    3. Vendor and purchaser — forfeiture for nonpayment of first note. — Where a contract for the sale of land provided that a third person should sign the purchaser’s notes, and that, in the event the purchaser should i'c unable to complete the payment of the purchase price, the third person should pay the notes and be substituted to all the rights' of the purchaser, a failure of the purchaser to pay the first note when due was not such a breach of the contract as would prevent him from having specific performance; the contract not providing for such substitution upon default as to the first note only, and there being no provision that upon default on one note all should become due.
    4. Vendor and purchaser — right to specific performance.— Where a contract for the sale of land provided that, if the purchaser should be unable to complete the payment of the purchase notes which were payable on or before a certain date, a third person who signed the purchaser’s notes should pay the notes and be substituted to the purchaser’s rights, the purchaser had the right to have specific performance if he paid the notes on or before the maturity of the last note.
    5. Tender — sufficiency.—Where a contract for the sale of land provided that if the purchaser should be unable to complete the payment of the purchase notes, which were payable on or before a certain date, a third person who signed the purchaser’s notes should pay them and be subrogated to all the purchaser’s rights, and the third person paid all of the notes before the last one became due, a tender by the purchaser of the full amount paid by the third person before maturity of the last note was sufficient, without the amount being paid into court.
    6. Counterclaim and set-off — when counterclaim allowed. — In an action by a purchaser for specific performance of a land contract defendant can not set up a counterclaim for the recovery of money growing out of an independent transaction; as a counterclaim is allowed only in actions for recovery of money and must tend in some way to diminish or defeat plaintiff’s recovery.
    Appeal from Arkansas Chancery Court, Northern District; John M. Elliott, Chancellor;
    affirmed.
    STATEMENT OE FACTS.
    B. F. Noack brought this suit in equity against H. Bothe and Chas. Scheuer and Martha Scheuer, his wife, to cancel a deed executed by the Scheuers to Bothe to 170 acres of land in Arkansas County, Arkansas, and to have specific performance of a contract in writing by Chas. Scheuer to him to the same land.
    Bothe defended the suit on the ground that Noack had breached his contract with Scheuer and was not entitled to the specific performance of it, and that under its terms he was entitled to a deed to the land from Scheuer.
    The contract which is the basis of this lawsuit wa3 in writing and was signed by Chas. Scheuer and Martha Scheuer and B. F. Noack on the 26th day of July, 1919. The body of it is as follows:
    “Parties of the first part have this day sold to second party under conditions hereinafter named the following lands situated in the Southern District of Arkansas County, Arkansas, towit: (Here follows description of the.lands.)
    “The purchase price is to be paid as follows: $100 cash in hand, the balance as follows: Second party hereby assumes the payment of one certain mortgage given to the American Investment Company, of Oklahoma City, Oklahoma, for the sum of $3,500; first parties are to pay the interest upon $3,500 to the first day of August, 1919, and second party is to pay all interest accruing after the first day of August, 1919. Second party shall pay the remainder of the purchase price as follows: $2,000 January 5, 1920, and $2,900 January 5, 1921. However, it is agreed between the parties hereto that, in the event the year 1920 be a poor crop year, or if second party does not make an ordinary crop, and is unable to pay the sum of $2,900 January 5, 1921, then he is hereby given the option to pay the sum of only $1,450 upon said 5th day of January, 1921, and in the event he only pays $1,450 on January 5, 1921, then he shall pay the other remaining $1,450 on the 5th day of January, 1922. That part of the unpaid purchase price which is to be paid directly to the first party shall bear interest from this date until paid at the rate of eight per cent.
    “First parties hereby warrant that they have a fee simple and merchantable title to the aforesaid land, and when that part of the purchase price due to them is paid in full' they will make to second party a good warranty deed to said land, and will release and relinquish unto him all rights of dower and homestead in and to said lands, and to that end the said Martha Scheuer, wife of Chas. Scheuer, does release said dower rights and homestead.
    “Second party shall execute to the first parties his promissory note for that part of the purchase price which is to be paid directly to first parties, and the said notes are to be signed by H. Bothe. In the event second party should be unable to complete the payment of the purchase price, then Mr. Bothe is hereby given the right to pay the aforesaid notes, and, in the event he does so pay said notes, he shall be substituted to all rights of second party under this contract, and he shall be entitled to have from first parties the said warranty deed.
    “First parties agree to deliver to second party full and complete possession on or before the 5th day of January, 1920.

      “Second party agrees to install a rice well, pump and fixtures, and have tlie same ready for operation for the pumping season of 1920.
    “Two notes of $1,450 each shall be executed to secure the payment of $2,900 aforesaid, these notes shall be due and payable January 5, 1921, unless second party is unable because of poor crop to pay both of said notes at1 that time. In the event that he is unable to pay both of said notes January 5,1921, then he shall only pay one of said notes on said date, and the other note shall be paid January 5,1922.”
    According to the testimony of B. F. Noack, he paid Scheuer $15 to bind the contract for the purchase of the land before the written contract was executed. Bothe paid the balance of the $100 recited in the contract as having been paid upon the date of its execution. The first note described in the contract for the purchase of the land was for $2,000 due January 5, 1920. Noack did not receive notice from the bank which held the note for collection that it was due.. The first Noack thought of it being due was on the 14th day of Janaury, 1920, when Bothe asked him where he was going to move. Noack responded that he was going to move on the place that he had bought from Scheuer. Bothe then said that he had paid the purchase price of the land, and that the land was his. Noack tried to get him to go to DeWitt with him so that he could get the money and pay off the notes given to Scheuer for the purchase price ,of the land. Bothe refused to go with him, saying that Noack would not be able to get the money. Noack told him that he could borrow the money. Afterward Noack borrowed $5,400, the balance of the purchase price due on the land and tendered it to Bothe. Bothe refused the tender. Gfartus Mumsen lent the money to Noack with which to pay for the land. His testimony corroborated that of Noack to the effect that the money was tendered to Bothe, and he refused the tender.
    H. Bothe was a witness for himself. According to his testimony, the bank demanded payment of him of the $2,000 note due January 5,1920, and, No a-at having failed to pay the note, Bothe paid it. He knew that Noack had no money or property, and that nothing* could be made out of him by suit. On January 14, 1920, Bothe paid off the remaining notes and demanded a deed to the property from Scheuer. The two remaining notes were made payable on or before a certain date. Bothe knew that Noack was not able to pay these notes and he elected to pay them off before they became due to stop interest. Noack had not taken possession of the land at this time. Noack at that time was a tenant on Bothe’s land and owed him a supply account of $639.44, which has not been paid. The land in question has greatly increased in value since the execution of the contract copied above.
    Chas. Scheuer and Martha Scheuer, his wife,, executed a deed to the land to Bothe when he paid off the purchase money notes. Subsequently B. F. Noack entered into possession of the land and has held possession of it since.
    The chancellor found the issues in favor of B. F. Noack, and it was decreed that the deed from Chas. Scheuer and Martha Scheuer, his wife, to H. Bothe should be canceled and the title to the land in controversy was divested out of H. Bothé and vested in B. F.
    . Noack. Bothe was given a lien upon the land for the sum of $5,355.21, the amount of the purchase price of the land paid by him. Noack was given ninety days within which to pay Bothe said sum of money, and in the event of nonpayment, the land was ordered sold for the payment of the same. To reverse that decree H. Bothe has duly prosecuted this appeal.

      Botts & O’Daniel, for appellant, Bothe. •
    ' 1. Every part of a written contract must he taken into consideration in construing it; no part of it or provision of the contract must be disregarded. The whole contract should be considered as an entirety. 104 Ark. 475; It. 573. The written contract provides that all the notes were to be signed by H. Bothe, and further provides, “in event the party of the second part should be unable to complete the payment of the purchase price, then H. Bothe is given the right to pay the notes and be substituted to all the rights of the second party under the contract and shall be entitled to have from the first parties a warranty deed.” This provision must be given effect to under the contract, and Bothe had the right.to be substituted as purchaser and obtain the deed under the contract. 84 Ark. 160.
    A tender of money is insufficient unless the tender is kept good by putting the money in the registry of the court. See 90 Ark. 266; 30 Id. 505; 33 Id. 300; 34 Id. 582. In this case the complaint does not even allege that the tender was kept good, or that plaintiffs are willing to keep it good. The written contract and the uncontra-dicted evidence show that the contract was made between the three parties, and that Noack had the right to the deed under one condition, and that Bothe had an equal right to this deed under a condition. Bothe, as well as Noack, was a principal maker in the notes. They were joint notes, and the written contract provides that under certain conditions the deed should be made to Bothe. Bothe paid substantially the first payment of purchase money, and Noack had not paid a cent, and did not intend to pay the notes. The deed should stand, and the complaint should be dismissed.
    2. Plaintiff demurred to the cross-complaint of defendant, and the cross-complaint sets up a good cause of action under our statute of 1917. The old provision relative to setoff and counterclaim was amended by act 207, Acts 1917, p. 1441. This is a very broad provision and speaks for itself. The whole object and purpose of this provision was to give an opportunity to settle all matters in’ dispute between the parties no matter how they arose. 134 Ark. 311 (314). The contract and facts here are entirely different from those in 135 Ark. 531. The decree of the lower court is not sustained by the law or evidence and should be reversed.

      Chaplins & Morrison, for appellee.
    The cross-complaint does not ask for a money but for specific performance of a contract. Since the passage of the act of 1917, the law is that a cause of action, either upon a contract or in tort, may be the subject of a counterclaim in any action to recover money. 134 Ark. 314; 135 Id. 535. The cross-complaint does not grow out of the contract and is inapplicable to this suit. The demurrer to the cross-complaint was properly sustained. 26 R. C. L. 643; 38 Cyc. 132. The decree is right, and should be affirmed.
   Hart, J.

(after stating the facts). The correctness of the decree of the chancellor depends upon the construction to be given the contract for the purchase of the land signed by Noack and Scheuer on the 26th day of July, 1919.

On the one hand, it is claimed by Bothe that Noack committed a breach of the contract by failing to pay the note for $2,000 due on January 5, 1920, and that therefore he was not entitled to a specific performance of the contract.

Counsel for Bothe contend further that the contract was made for the benefit of Bothe, and that Bothe, having paid the $2,000 note when it fell due and knowing further that Noack could not himself pay the remaining notes, had a right to pay them off before they became due and to take a deed to himself to the land.

On the other hand, counsel for Noack claim that Noack had the right to pay the purchase money at any time before the last note fell due and demand the execution of a deed to himself to the land. He claims that Bothe had no rights under the contract until all'the purchase money notes fell due and Noack failed to pay them.

Although Bothe did not sign the contract, it was made for his benefit, and he was entitled to the performance of it according to its terms the same as if he had signed it. The contract between Scheuer and Noack provided that the notes for the -purchase money of the land should also be signed bv H. Bothe. Bothe signed these notes, and thereby became bound to pay them and accepted the terms of the contract. Thereafter he became interested in the contract and was entitled to have it performed according to its terms.

We are of the opinion, however, that the contract does not mean that, upon the failure of Noack to pay the first note when it became due, he had committed such a breach of the contract as would prevent him from having specific performance thereof. There is nothing in the contract providing that, upon the nonpayment of one note, all should become due. Neither does the language used indicate that the parties regarded time as the essence of the contract. The contract provides that Noack should assume the payment of a mortgage on the property for the sum of $3,500. Noack is designated in the contract as the second party, and Chas. Scheuer and Martha Scheuer are called the first parties. That part of the contract upon which Bothe relies is as follows:

“Second party shall execute to the first parties his promissory note for that part of the purchase price which is to be paid directly to first parties, and the said notes are to he signed by H. Bothe. In the event second party should be unable to complete the payment of the purchase price, then Mr. Bothe is hereby given the right to pay the aforesaid notes, and, in the event he does so pay said notes, he shall be substituted to all the rights of second party under this contract, and he shall be entitled to have from first parties the said warranty deed. ’ ’

It will be noted that the language used is that, if Noack should be unable to complete the payment of the purchase price, then Bothe is given a right to pay the purchase money notes and be substituted to the rights of Noack. The contract does not give the right of substitution to Bothe upon the payment of the first note merely. It is true that the last two notes are payable on or before a certain date, but that fact, merely, could not give Bothe the right to be substituted in the place of Noack. It only gave him the right to pay off the notes. Noack had the right to have the specific performance of the contract if he paid the purchase money notes off before they all finally became due. It did not make any difference that he did not have the money himself. He had the right to borrow the money with which to pay the purchase price. This he did, and made a tender of the amount due to Bothe before the last two notes fell due.

We hold that under the terms of the contract Bothe had the right to pay the last two notes on the 14th day of January, 1920, because they were made payable on or before a certain date, but the fact that he paid them before they became due did not give him the right to be substituted for Noack, for the reason that Noack had until all the notes became due before he lost his right to have ¡Specific performance of the contract. He made a tender of the amount due which had been paid by Bothe and Bothe declined the tender. Therefore, it was not necessary that Noack should deposit the money in the registry of the court. He stood ready to pay the amount at any time, and the court protected the rights of Bothe by giving him a lien on the land for the purchase money paid by him. Strickland v. Clements, 83 Ark. 484.

By way of cross-complaint, Bothe asked for judgment against Noack in the sum of $639.44 which* Noack owed him on account. Noack was a tenant of Bothe on another tract of land and owed Bothe this amount for supplies furnished him. This was not the proper subject of counterclaim. The suit of Noack was for the specific performance of a contract with Scheuer to convey him a tract of land. We have held that a counterclaim is allowed under our statutes only in actions for the recovery of money, and that the counterclaim must tend in some way to diminish or defeat the plaintiff’s recovery.

The suit of Noack for specific performance could in no wise be affected by the recovery of a judgment by Bothe against him for supplies. The two transactions could have no relation whatever to each other and the court properly denied Bothe the right to recover on his counterclaim. Smith v. Glover, 135 Ark. 531.

It follows that the decree will be affirmed.


author: Smith, J.

text:
    Grady v. Dierks Lumber & Coal Company.
    Opinion delivered June 20, 1921.
    1. Frauds, statute of — promise to pay another’s debt. — In determining whether a particular undertaking to pay for goods furnished to a third person is original or collateral, the intention of the parties at the time it was made must be regarded, and in determining such intention the words of the promise, the situation of the parties, and all the circumstances attending the transaction should be taken into account, the purpose of the inquiry being to determine to whom the credit was originally given.
    2. Frauds, statute of — promise to pay another’s debt — jury question. — Whether an oral promise to pay for supplies to be furnished to a third person was an original or collateral promise held a question for the jury.
    Appeal from Sevier Circuit Court; James 8. Steel, Judge;
    reversed.

      Johnson & Shaver, for appellant.
    The court erred in directing a verdict for defendant. A verdict should not be directed except in cases where, conceding the credibility of the witnesses and giving full credence and full effect to every legitimate inference that may be deduced therefrom, it is plain and certain that plaintiff has made out a case sufficient in law to entitle him to recover. 118 Ark. 432; 107 Id. 158.
    There was a question for a jury as to whether the credit was originally extended to appellee and was an original undertaking, and it should have been submitted to a jury under proper instructions. Plaintiff’s recovery was not precluded by the statute of frauds. C. & M. Digest, § 4862. The intention of the parties governs, and this does not altogether depend upon the expression used but largely upon the situation of the parties. 25 R. C. L., §§ 65-72. See also 20 Cyc., § 5, p. 163; 141 U. S. Reporter 479; 50 N. E. Rep. 529; 87 Ill. App. 409. The promise here was an original undertaking, and not within the statute of frauds. 5 Ky. 63; 16 Ky. L. Rep. 447; 35 Mass. 369. The credit was given to the one promising and not to the one receiving the goods. 19 N. W. 130 It was an original undertaking and not a collateral one. 75 N. D. 901; 72 Pac. 367; 13 Pa. Superior Ct. Rep. 77; Speers v. Knarr, Pa. Sup. Ct. Rep. 80, Pa. Sup. Ct. Rep. 581. It was not a promise to answer for the debt of another. 69 N. W. 1004; 215 S. W. 590; 40 Ark. 429; 76 Id, 292; 931 d. 277. See also cases cited. 31 Ark. 613; 12 Id. 174; 45 Id. 67; 76 Ark. 292.
    There is no better way to interpret the meaning of a contract than by the acts of the parties under it. 46 Ark. 529 ; 52 Id. 65; 55 Id. 414; 78 Id. 202; 78 Id. 418; 80 Id. 542; 91 Id. 350.
    The question' should have been submitted to a jury under proper instructions as to the statute of frauds.

      Lake •& Lake and Abe Collins, for appellee.
    The court properly directed a verdict for defendant. The oral undertaking to stand for the account is within the statute of frauds and could not be enforced and there was nothing to submit to a jury. 12 Ark. 174.
    The promise was collateral in form, and the credit was extended to the parties to whom the goods were delivered. The judgment is sustained by the authorities. 141 U. S. 479; 60 W. Ya. 320; 70 Id. 475; 102 Ark. 435, etc. Holcomb’s statement that he extended the credit to the men is conclusive of this case. 31 Ark. 613; 88 Id. 594; 12 Id. 174; 153 Mich. 361; 116 N. W. 1090'; 67 Wash. 264. Under the law and the evidence, the judgment is clearly right.
   Smith, J.

Appellant is the successor in business of the firm of Holcomb & Grady, a copartnership, and brought this suit to recover a sum alleged to be due by appellee. Appellee is a corporation, and had-given its employees, Sanders and Cheshire, a contract to get out logs by the thousand, and later made a similar contract with one McWhorter. It became necessary for these men who were to do the logging to have advances of goods, wares and merchandise, and such advances were made by Holcomb & Grady.

At the conclusion of all the testimony the court gave the jury the following peremptory instruction: “Gentlemen of the jury: Under the law, as the court sees it, there is no question to go before the jury in this case. We have a statute in our State, enacted by our Legislature, almost at the beginning of statehood, requiring that what we call a collateral undertaking shall be evidenced by writing, or where any one contracts to stand for the debt of another, it must be in writing; and under that law there is nothing to go to the jury, because there is no question here; no writing was signed up by any one at all, and in cases of that ldnd the statute says a contract made to stand for a debt, default or miscarriage of another must be signed in writing, and unless this is done it is void.”

It is apparent that the instruction is a correct declaration of the law; but it is very earnestly insisted that the court erred in holding that there was no question of fact for the jury; and we have concluded that appellant is right in this insistence.

Inasmuch as the verdict was directed against appellant, we must give to the testimony that view of it most favorable to him, and if the testimony and all reasonable inferences deduci'ble therefrom, thus viewed, have made a case for the jury, the judgment must be reversed.

There is some conflict in the testimony as to how the accounts were carried on the books of Holcomb & Grady, and it is admitted that the accounts were paid only on the approval of the person to whom the goods furnished had been charged. Appellee insists that these circumstances are important for their bearing on the proposition that both Holcomb & Grady expected nothing more from the appellee than to see that the accounts were paid in so far as what the men earned could pay them, and that any balance remaining after crediting the account of each man with what he had received on each pay day was carried, not by appellee, but by the firm of Holcomb & Grady.

Grady, who kept the books, testified that the accounts were kept in the name of appellee by the particular person who bought the goods. But, as appellee contends, these book charges of appellant stand on no higher footing than the form of the promise or the situation of the parties.

It must he confessed that there are isolated statements of both Holcomb and Grady which, standing alone, appear to indicate that the credit was extended to the men themselves, and it was induced solely by the promise of McCurry, appellee’s superintendent and agent, to stand for the accounts.

Grady, in his. redirect examination, was asked these questions :

“Q. In response to a question by Mr. Lake (counsel for appellee) yesterday, you stated that the Dierks people (appellee) were standing for this account.' What did you mean by that phrase ? ’ ’

“A. Mr. McCurry told us to charge it to the Dierks Land & Coal Company, and that they would see that these accounts were paid.

“Q. Did they say they would see that they were paid or would pay them?

“A. That they would pay these accounts.”

The negotiation for the opening of these accounts was conducted between McCurry and Holcomb, who stated that the contract under which the goods were furnished was as follows: “He (McCurry) called me up and said it was Mr. McCurry, with the Dierks people, and that he would have a couple of men down to go logging down at the Reunion grounds, and he would like for us to make arrangements to furnish them, and I told him we would be glad to have the business, and he told me who the two men were, and in a few days the men came down and went to logging and went to trading with us. Q. What did he say about the way for you to carry these accounts? A. He said for us to charge them to Mr. Sanders and Mr. Cheshire, and send the bills to them at Dierks, and the Dierks people would send us a check for the money. ”

At that time the witness Holcomb, with whom Mc-Curry was conversing over the phone, did not know, and had never seen, the men to whom the goods were to be furnished.

In detailing the contract made with McCurry, Grady testified: “He told us to furnish these men and make out a statement on the fifteenth and first of each month, and send it in to the Dierks Lumber & Coal Company, and they would pay these bills.” And, further, that “Mr. Sanders started trading with us about the last of August, and traded with us until he left the country, and they kept paying his accounts off every time we would send in a statement. ’ ’

There is an almost unlimited number of cases dealing with the question of whether a particular undertaking to pay for goods furnished to a third person is original or collateral. There is an extended case note to the case of Mankin v. Jones, 60 S. E. 248, 15 L. it. A. (N. S.) 214. A great many cases are collected and cited in this note. But it is unnecessary to review the authorities on this subject, as the law is well settled 'by the decisions of our own court. In the case of Millsaps v. Nixon, 102 Ark. 435, the court said that, in determining whether an oral promise is original or collateral, the intention of the parties at the time it was made must be regarded, and in determining such intention the words of the promise-, the situation of the parties, and all the circumstances attending the transaction, should be taken into account, the purpose of the inquiry being to determine to whom the credit was originally given. And when that has been done in the instant ease, we think there was a question for the jury as to whether or not the credit had not been originally extended to appellee, and that question should have been submitted to the jury.

In announcing this conclusion we have, of course, taken into account only that testimony which tends to support that contention, and have not considered any question of probability or of preponderance of the testimony, as these are properly questions for the jury.

Por the error in directing a verdict the judgment of the court below must be reversed and the cause remanded for a new trial.


author: Smith, J.,

text:
    Powell v. State.
    Opinion delivered June 20, 1921.
    1. Criminal law — harmless error. — If it was error for the presiding judge to testify in a criminal case, such error was harmless where his testimony related to a circumstance about which there was no dispute.
    2. Criminal law — sufficiency of evidence to sustain conviction. —The jury in a criminal case are not bound to accept as true all of the testimony of the State nor of the defendant, but may find the truth to be partly on one side and partly on another.
    3. Criminal law — harmless error. — It was not prejudicial error to refuse to charge the jury that defendant was not guilty of rape where the jury found him guilty of carnal abuse.
    • 4. Rape — conviction of carnal abuse under indictment for rape. —Under an indictment for rape of a female under sixteen years of age, a conviction of carnal abuse may be had.
    5. Criminal law — order of examination of witness. — It was within’ the trial court’s discretion to permit the State to recall a witness for further examination after the State had closed its case.
    6. Rape — profert of infant. — It was not error to permit the prose-cutrix in a rape case to produce the child alleged to be the result of the intercourse with defendant where the age of the child was an important circumstance, and its appearance would have a probative value in determining that question.
    7. ' Criminal law — evidence—competency.—It was not error to . permit the prosecuting attorney, on cross-examination of defendant, to ask him whether he had not illegally cohabited with his first wife before he married her, where the court limited the competency of such testimony to the defendant’s credibility.
    8. Criminal law — argument of prosecuting attorney. — Where it was the theory of the State that the child of the prosecutrix was begotten as the result of her illicit intercourse with defendant, it was not error for the prosecuting attorney to refer to the baby • as the defendant’s.

      Appeal from Crittenden Circuit Court, Second Division; R. E. L. Johnson, Judge;
    affirmed.
    STATEMENT OE EAGTS.
    Appellant was indicted at the February, 1921, term of the Crittenden Circuit Court for the crime of rape, alleged to have been committed 'by forcibly and carnally knowing one Myrtle Johnson, a female under the age of sixteen. The presiding judge was subpoenaed as a witness for appellant, and on March 3, the day of trial, appellant filed a motion to disqualify the judge on that account. The court overruled the motion, and, in doing so, stated, that he had previously advised counsel for appellant that T. W. Davis,-a former prosecuting attorney, knew every fact in the case known to the judge, and that the said Davis was at the time a resident of an adjoining cp-unty. Thereupon a motion for a continuance was filed in order that the attendance of Davis might be had.
    The motion for continuance was overruled, and, after th° conclusion of the State’s testimony, counsel for appellant examined the presiding judge as a witness in the case, after duly saving exceptions to the action of the court in refusing to vacate the bench.
    At the conclusion of all the testimony in the case appellant prayed an instruction directing the jury-to return a verdict of not guilty, and, when that prayer had been refused, asked another instruction directing the jury to find him not guilty of the crime of rape. This instruction was also refused, and exceptions saved.
    Other assignments of error relate to the admission of testimony and the argument of the prosecuting at-t ornoy: but it is finally, and most earnestly, insisted that the testimony does not support the verdict, in which appellant was found guilty and his punishment fixed at twenty-one years in the penitentiary.
    Appellant is the stepfather of Myrtle Johnson, who lived with him as a member of his family at the time of ■the alleged acts of sexual intercourse. At the trial she exhibited her baby which she said was the son of appellant Tom Powell. She did not say when the baby was born, but she did testify that “they say it is two years old now, g’oing on three.” This witness, was very ignorant. ’ She testified that she was fifteen years old in September before the trial, that she had never gone to school, and had never kept company with boys. She further testified that no' one had ever had sexual intercourse with her except appellant. That on an occasion about three years before the trial appellant gave a dance, at which time he had a keg of beer with which he regaled his guests. That, early in the next morning after the dance appellant came to the bed in which she was sleeping with appellant’s little girl, that she did not consent and told him not to do it, and she called for her mother, but her mother did not answer, and appellant proceeded to accomplish his purpose.
    Myrtle Johnson’s statement that the act of intercourse had occurred about three years before the trial would roughly or approximately correspond with a possible date of conception’. In the cross-examination of this witness she was indefinite and uncertain about the time of the intercourse, except that she said it occurred the morning following the Fourth of July.
    . Appellant denied his guilt and testified that he had never given 'but one dance on the Fourth of July, and had not given a dance since that date, and that the Fourth of July dance was given in the year 1914. Appellant and witnesses who attended this dance stated that they were sure of the year, because it was the year in which the World War began. Myrtle Johnson further testified that she became unwell for the first time the night after appellant first carnally knew her, and that he repeated the act a few days later.
    The trial judge testified in the case, and in response to questions by appellant’s counsel, stated that at the preceding term of the court the grand jury had under investigation the question of Myrtle Johnson’s ruin, and that the grand jury came into open court with her and reported to the court that the said Myrtle Johnson had refused to disclose the name of the father of her child, but, on the contrary, had testified that no one had ever had sexual intercourse with her.
    Other facts will he stated in the opinion.

      Hugh Haden and Berry & Wheeler, for appellant.
    1. The State failed to prove that the offense occurred within three years, beyond a doubt. 110 Ark. 170; 135 Id. 224. It was the affirmative duty of the State to show this, and the burden was not met.
    2. There is no legal evidence to support the verdict. Well known facts concerning the phenomena of life need not be proved. Courts take judicial notice of the ordinary period of gestation. 23 C. J. 146, §1969.
    3. The presiding judge was disqualified; he can not be both judge and witness. G-reenleaf on Ev. (16 ed.) 395; Jones on Evidence Civil Cases 95-8; Wigmore on Ed. 25, 26; Chamberlayn on Ev. 745; 44 Cyc., p. 2234; 17 Am. & E. Enc. Law & Proe., p. 724-5; 144 Pac. 725; 87 S. E. 1005; 178 N. W. i883; 59 N. Y. 374; 44 Pac. 117; 55 Atl. Rep. 644.
    4. It was an abuse of discretion by the trial court to refuse a continuance.
    5. The opening remarks of the State’s attorney were prejudicial and reversible error.

      J. 8. Utley, Attorney General, and Elbert Godwin and W. T. Hammo'ck, Assistants, for appellee.
    1. The evidence fully sustains a conviction for rape or carnal abuse. 103 Ark. 119; 76 Id. 267. Conceding for argument that the evidence is not sufficient to show the crime of rape, if there was error it was not prejudicial. 73 Ark. 280; 69 Id. 76.
    2. The evidence sustains the verdict.
    3. There was no error in the judge testifying as a witness; no objections were made by defendant. 60 Ark. 76; but, if error, it was invited error, as appellant requested him to do so. 5 Ark. 41; 33 Id. 180 ; 115 Id. 392.

      4. It was not error to allow the recall of the prosecuting witness after the State had closed to exhibit the child to the jury. 28 Ark. 531; 96 Id. 552.
    5. There was no error in the ruling of the court in the admission of testimony. 114 Ark. 239; 91 Id. 555.
    6. There is no error in the instructions, and on the whole ease the judgment is correct. Defendant had a fair and impartial trial, and there is no reversible error.
   Smith, J.,

(after stating the facts). Counsel for appellant cite a number of authorities to the effect that the trial court cannot serve both as a witness and the court in the same trial. In the instant case the trial court might well have refused to testify, for the incident about which the judge was interrogated occurred in open court at the preceding term, and in the presence of the 'entire grand jury and many witnesses, including, it seems, counsel for appellant. ÍWhat we have said about the judge is equally applicable to the former prosecuting attorney. The proof of the statements of Myrtle Johnson about the paternity of her child could have been made by numerous witnesses; but there was no necessity for making this proof by the judge or any other witness, for the reason that Myrtle Johnson, at the trial, admitted making the false statements before the grand jury. The circumstances about which appellant desired to examine the judge and the former prosecuting attorney stood as an admitted, undisputed fact at the trial. The witness herself admitted, at the trial from which this appeal comes, that she had swiorn falsely before the grand jury; but we cannot, on that ground, say her testimony at the trial should be discarded. She made the explanation that appellant had threatened to whip her with his razor strop if she told the grand jury about him.

Neither can we say that the testimony of Myrtle Johnson as to the time and place and circumstance of the acts of sexual intercourse cannot be credited by the jury. The jury was told that there could be no conviction unless they were convinced beyond a reasonable doubt that appellant had had intercourse with Myrtle Johnson within three years of the finding of the indictment. Testimony on appellant’s behalf appears to show that the only dance given by him on July 4 occurred in the year 1914. But we do not stop to reconcile the contradictions in the testimony of the witnesses. In July, 1914, Myrtle Johnson was only nine years old. Her own age, as well as that of her baby, make it certain that the baby was not begotten at that time.

This court, in the case of Cooper v. State, 86 Ark. 30 — which was a seduction case — :said that the jury was not bound to accept as true all of the testimony of the State, nor of the defendant, but might find the truth to be partly on one side and partly on another. So, the jury here may have accepted portions of the testimony, and rejected other portions. Myrtle Johnson testified that appellant was the father of her child, and that the intercourse occurred in July about three years before the trial. This testimony is legally sufficient to support the verdict, and we need make no further recital of the contradictions which appear in the testimony. Oakes v. State, 135 Ark. 221; Moore v. Thomas, 132 Ark. 97; Rose v. State, 122 Ark. 509.

No error was committed by the court in refusing to charge the jury that appellant was not guilty of the crime of rape, for if it'be conceded that the testimony was not legally sufficient to support a conviction of that charge, it may be said that he was not convicted upon that charge. The jury acquitted him of the crime of rape, and no error resulted, therefore, in submitting that question to the jury. Easley v. State, 109 Ark. 130 ; Kil-gore v. State, 73 Ark. 280; Rogers v. State, 60 Ark. 76; Baine v. State, 132 Ark. 416; Hays v. State, 129 Ark. 324; Tolliver v. State, 113 Ark. 142.

The indictment in the case charged appellant with the commission of the crime of rape, and that of carnal abuse as well. It was permissible thus to indict him. Peters v. State, 103 Ark. 119; Henson v. State, 76-Ark. 267; Rose v. State, 122 Ark. 509. He was acquitted of the first charge, and was convicted upon the second, on testimony which, we have said w;as legally sufficient to snis-tain the conviction. No prejudice resulted, therefore, in thus submitting the case to the jury.

Complaint is made of the action of the court in permitting Myrtle Johnson to he recalled for further examination after the State had closed its case. The order of procedure’ rests largely in the discretion of the trial court, and the action complained of does not appear to constitute an abuse of that discretion.

The child was exhibited to the jury. But this was not error. Cook v. State, 96 Ark. 552. The age of the child in this case was a highly important circumstance, and its appearance would have probative value in determining that question.

The court permitted the prosecuting attorney, in the cross-examination of appellant, to ask him if he had not illegally cohabited with his first wife before he married her, and appellant answered that he had. In admitting this testimony the court told the jury that the testimony could not be considered upen the question of guilt or innocence of the accused, and expressly limited it to the credibility of the witness. As thus limited, the testimony was competent. Hunt v. State, 114 Ark. 239; Ware v. State, 91 Ark. 555.

It is insisted that reversible error was committed when the court permitted the prosecuting attorney - to refer to the baby as “Little Tom Powell.” This was not error. There was a baby, and the theory of the prosecution was that it had been begotten as a result of the illicit intercourse with which -appellant stood charged, and the prosecuting attorney was within the bounds of legitimate argument in referring to the baby as the child of appellant. No error appearing, the judgment is affirmed.