text:
    Harrison Electric Company v. Bumgardner.
    Opinion delivered June 1, 1925.
    1. MASTER AND SERVANT — INJURY IN LINE OP DUTY. — A Servant seeking to recover for personal injuries must show that he was injured while in performance of some work -in the line of his duty, and, if he were a volunteer undertaking to render a service which the company had no reason to believe he would attempt to perform, the company would not be liable.

      2. Master and servant — injury in line of duty — jury question. —In an action by a lineman’s helper for injuries alleged to have been received in the line of his duty, evidence held to make it a jury question whether he was injured in the line of duty.
    3. Master and servant — sufficiency of warning — jury question. — In a lineman helper’s action for injuries by being burned by an electric wire, whether a warning given that the particular wire was “hot” and dangerous on that account was a sufficient warning held for the jury.
    Appeal from Boone Circuit Court; J. M. Shinn, Judge;
    reversed.

      Marvin Hathcoat, for appellant.

      Shouse & Roivland, for appellee.
   Smith, J.

Appellee, who is a young man now twenty-one years old, sues for an injury which he sustained while only twenty. He was employed hy the appellant company, which generated and furnished electric lights for the city of Harrison. He was employed as a lineman’s helper, his immediate superior being Lucian Covington, and he testified that it was his duty to read meters, collect bills, to do cut-out work, and to assist the lineman. ’

On the day when appellee was injured he and Cov-ington had been engaged in collecting bills for the appellant company, and they reported to the appellant’s office about 4 p. m., and were there informed that there was a trouble call. The office girl, who was also the bookkeeper, and whose duty it was to receive these calls and to make a ticket thereof, which was placed on a file, was not sure of the location from which the call had come but thought it was from the "Wallace store on the south side of the square. Covington went to see what the trouble was,, but soon returned and said that he had found no one reporting trouble. Appellee said he would go to the store of another man, named Wallace, on another side of the square, and see if the trouble was there. Covington testified that he directed appellee to ascertain what the trouble was and to report back to him.

Appellee went to the store of the other Wallace, and found there a man named Keeton, and another man whose name was Bogart, and was told that they had called him. Keeton and Bogart were the linemen of the telephone company, whose wires were stretched on the same poles with the appellant light company’s wires. Keeton told appellee there was a “hot” wire which he wished removed from the pole. There were five cross-arms on the pole, and the top cross-arm was used by the light company, the wires of the telephone company being fastened to the lower cross-arms.

Appellee admits that Keeton told him the wire was a live one — indeed, that was the reason Keeton wished it removed- — but appellee testified that he thought Keeton was mistaken, and he said lie would climb the pole -and find out whether the wire was “hot,” as the witnesses expressed it, or not. He had with him some pliers, the handles of which were insulated, and appellee testified that he intended to test out the wire in question with the pliers, and he climbed the pole for that purpose, and as he reached out with the pliers, but before touching the wire, he was badly burned. Appellee was standing on the cable of the telephone company when he was burned and was unable to extricate himself until Keeton telephoned the light company to shut off the current, and in the’ meantime he was badly burned.

Appellee complains that the appellant light company was negligent in the following particulars: (1) Failure to promulgate reasonable rules for the safety of its employees; (2) failure to warn appellee, an inexperienced youth, of the dangers incident to his employment and how best to avoid them; (3) failure to disconnect the high-current wires where a ’transformer had been removed and to maintain effectual insulation. There was a verdict and judgment for appellee, which is not claimed to be excessive if there is liability, and the company has appealed.

Tlie instructions given cover many phases of the law of master and servant, beginning with the duty to promulgate rules to protect the servant. These we shall not review, as we think they submitted a number of questions which are not properly presented by the testimony, and we shall discuss only the law applicable to those issues which we think should be submitted to the jury.

It may be first said that it is insisted on the part of appellant that appellee was not engaged in the line of his duty at the time of his injury. That no one connected with the appellant company knew what appellee proposed to do, and that it was no part of appellee’s duty to work with the wires except as a helper to Covington, who should have been notified by appellee. Covington who was appellee’s immediate superior, testified that he directed appellee to ascertain the trouble and report to him.

It is, of course, essential to a recovery by appellee that he show that he was injured while in the performance of some work in the line of his duty, and if he were a mere volunteer, undertaking to render a service which the company had no reason to believe he would attempt to perform, the company would not be liable. But appellee testified that he was injured while engaged in the line of his duty, and this, of course, made a question for the jury.

Appellee was a high school graduate, and while in ' ’"ivy had graduated from the naval electrical school, but he testified that his training gave him no experience in handling wires, and that he did not know the dangerous character of the wire he attempted to remove, or, rather, was attempting to test for that purpose. He admitted that he knew that the wires conveying the high voltage were on the top cross-arm of the telephone pole, but he had not been given any instructions as to the manner of protecting himself against the current which they carried, and he supposed the insulation on his pliers would protect him from danger when he made the test to determine the character of the wire which the telephone lineman requested him to remove.

Appellee also testified that the light wire was not properly insulated; but' we do not think this was the proximate canse of the injury, and we do not understand that the testimony shows any duty on the part of the light company to insulate the wires at the point where appellee was injured.

In the recent case of Hines v. Consumers’ Ice & Light Co., ante p. 914 we had occasion to consider the duty to insulate, and we defined that duty by quoting and approving the following statement of the law from 9 R. C. L., at § 21 of the chapter on Electricity, page 1213, as follows: “'Section 21. Insulation at Particular Points or Places. It is only reasonable that the duty of providing insulation should be limited to those points or places where there is reason to apprehend that persons may come in contact with the wires, and the law does not compel electric companies to insulate their wires everywhere, but only at places where people may go for work, business, or pleasure, that is, where they may reasonably be expected to go.”

Here the light wires were placed on a cross-arm above the telephone wires, and the testimony does not show that the appellant light company was required to anticipate that any employee would come in contact with the wire where appellee was injured without being prepared to handle this wire with safety to himself. The method employed for this purpose was the use of rubber gloves, and the testimony shows that appellant had gloves for that purpose. Appellee admitted that he knew that gloves would be furnished for the purpose of removing that light wire, and that it was his intention to get the gloves before attempting to remove the wire, but he also testified that he was first endeavoring to determine whether the wire was a live one or not, and that he did not know that the use of a pair of insulated pliers to determine that fact would involve any danger to himself.

It is insisted that the admission of appellee that the telephone lineman had told appellee that the wire was “hot” and dangerous on that account, and that this was the reason why he wished it removed, was all the warning required or which any one could have given; but we are unwilling to say, as a matter of law, that this is true, because, as we have said, appellee testified that he was not attempting to remove the 'wire, but was only endeavoring to verify the statement of the telephone lineman before going after the gloves or reporting the trouble to Covington.

It must be said that this case is a close one whether appellee is entitled to have any issue in the case submitted to the jury, in view of his own admissions. But, on account of his age, his own testimony that he had only worked as an assistant lineman for three days in removing and repairing wires, although he had been employed by appellant company for a month in other work, and his testimony that he was ignorant of the dangers of his employment, and had been given no instructions or warning in that respect, we have concluded that the case should go to the jury on these questions, but we think no other theory of liability is presented.

For the errors in submitting other questions of negligence to the jury, the judgment is reversed, and the cause will be remanded for a new trial.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Whitmore v. Harper.
    Opinion delivered June 1, 1925.
    Mines and minerals — lien for labor on output of oil well. — Where the contract under which defendants assigned an interest in an oil and gas lease was executed and legal and equitable rights were vested before acts 513 and 615 of 1923, giving the contractor drilling an oil well a lien on the output of the well, became operative, plaintiff, who furnished labor and material under contract with the assignee, did not acquire a lien under such acts.
    Appeal from .Ouachita Chancery Court, Second Division; George M. LeGroy, Chancellor;
    reversed.

      J. W. Warren, for appellant.
   Humphreys, J.

This suit was instituted in the Chancery Court of Ouachita County by appellee against appellant, to have a lien of $5,639.70 declared and foreclosed upon the oil, gas, and mineral leasehold estate and interest of appellants in the E% of the NWi/t of the NWi/4 of the SE14 of section 28, township 15 south, range 16 west, containing five acres, in Ouachita County, Arkansas, for drilling an oil well upon said property under contract with one .Richardson, who had purchased an interest in the lease from Joseph Dansiger, to whom appellants had assigned an interest in their lease in consideration that he would develop same without cost or expense to them.

Appellants filed an answer denying that appellee had any right to have a lien declared on the interest reserved by them in the leasehold estate, which they assigned to Joseph Dansiger.

The cause was submitted to the court upon the pleadings and an agreed statement of facts, which resulted in a decree subjecting the % interest of appellant in the lease to the payment of appellees’ claim, from which is this appeal.

The agreed statement of fact is as follows:

“It is agreed by attorneys for the plaintiff, W. H. Harper, and the defendants, T. E. Whitmore, J. N. Mox-ley, R. L. 'Bennett, and W. F. Ault, that the facts in the above-styled cause are as follows:
‘ ‘ That on the second day of March, 1923, the above-named defendants were the sole owners of an oil and gas lease in usual standard form, on the lands described in the complaint, which lease reserved to the fee owner a % royalty and vested in defendants 7/8 of all oil produced from said land, with the usual rights and privileges for drilling, and specifically authorized the assignment of said lease by the lessees; that on said date the defendants entered into contract with Joseph Dansiger whereby they assigned said lease to him in consideration that he would develop said lease by drilling a minimum of two wells thereon for oil and deliver to defendants, in the pipe line to which he might connect his tanks or wells, free of cost to defendants, a 1/16 each of all oil produced and saved from said lease, a copy of which contract is hereto attached and made part of the state of facts herein agreed upon; that said contract was duly recorded in the record of deeds in the office of the recorder for Onachita County.
“That thereafter the said Joseph Dansiger assigned an undivided 1/2 interest in and to his rights under said contract to-Richardson, who in turn contracted with the plaintiff to drill a well on said lease, and that the plaintiff under said contract with said Richardson did furnish the materials and perform the labor for which he sues herein in drilling a well on said lease.
“The defendants were not parties to the assignment from Dansiger to Richardson nor to the contract between plaintiff and the said Richardson; that they have had no relations or dealings with plaintiff which would subject their rights under their said contract with Dansiger to payment of any part of plaintiff’s claim unless the state of facts as above set out had that effect.”

The lien was declared upon appellant’s % interest in the leasehold estate by virtue of the provisions of act 513 of the Acts of 1923, p. 430, and act 615 of the Acts of 1923, p. 499, which was clearly erroneous for the act did not become effective until appellant’s contract with Dan-siger had been executed. The legal and equitable rights of appellants growing out of their contract with Dansiger were vested before the passage of the acts, and the Legislature had no power to divest previously vested rights. The acts in question were not retrospective.

On account of the error indicated, the decree is reversed, and the cause is remanded with directions to dismiss appellee’s bill for the want of equity.


author: McCulloch, C. J.

text:
    Daniels v. State.
    Opinion delivered June 8, 1925.
    1. Receiving stolen goods — evidence.—'Evidence held sufficient to sustain a conviction of receiving stolen goods.
    2. Larceny — receiving stolen goods — unexplained possession.— Unexplained possession of recently stolen goods is legally sufficient to warrant conviction of either larceny or receiving stolen goods.
    3. Receiving stolen goods — weight of testimony. — The weight to be given to accused’s explanation of his possession of recently stolen goods, and of the inferences to be drawn therefrom are questions for the jury.
    4. Witnesses — cross-examination.—In a prosecution for receiving stolen goods, the accused may ¡be asked on cross-examination whether he had committed burglaries, for the purpose of affecting his credibility.
    5. Criminal law — judicial notice. — It is judicially known that the city of Little Rock is in Pulaski County.
    6. Criminal law — evidence of venue. — Evidence that property was stolen from a house of a certain street number in Little Rock establishes the venue as in Pulaski County.
    Appeal from Pulaski Circuit Court, First Division; Jolm W. Wade, Judge;
    affirmed.

      Sam Robinson, for appellant.

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

This is an appeal from a judgment of conviction of the crime of receiving stolen property, the alleged offense occurring in the city of Little Rock.

Appellant is a negro hoy, sixteen or seventeen years old, and is alleged to have received the stolen articles from another hoy named Davis. The State proved that a lot of different articles, including wearing apparel, jewelry and other things, were stolen from the home of Mrs. Gardner, and that immediately after the burglary some of the stolen articles were found in possession of appellant at his room in the city. A police officer testified that he found in appellant’s room the coat of a blue serge suit, and a “pin-striped suit of clothes,” some jewelry and other articles, which were said to have been stolen from Mrs. Gardner's residence. The proof was sufficient to show that these articles found in appellant’s room were the identical .articles which were stolen from the house named.

It is contended, in the first place, that the evidence was insufficient to sustain the verdict, in that it does not show that appellant knew that the property had been stolen. He testified that he roomed at the same house with Davis, and that, when the landlady required Davis and the girl with whom he was living to move out of the house, the girl turned the articles over to him (appellant) to keep as Davis’ property, and that he did not know that the property was stolen. He testified that all he knew about the property was that the girl turned it over to him to keep.

The rule has long been maintained by this court that unexplained possession of property recently stolen constitutes legally sufficient evidence to -warrant a conviction, either of larceny or receiving stolen property. Sons v. State, 116 Ark. 357; Mays v. State, 163 Ark. 232. The weight to be given to the testimony and the inference to be drawn therefrom are questions for the jury. It was a matter for the jury to determine the reasonableness and sufficiency of the explanation given by the accused of his possession of the stolen property.

After the appellant had testified in the case and stated that the articles were delivered to him as the property of Davis, the State introduced Davis in rebuttal, and he stated that he did not have anything to do with the property found in appellant’s room. He said that he owned a blue serge suit, and that the coat of the suit was at his house, but that it was not at the house of appellant, and that he had nothing to do with the property found at appellant’s house. This testimony tended to contradict the testimony of appellant and added to the weight of the evidence. We think that the evidence was sufficient to sustain a conviction.

The next assignment of error relates to the ruling permitting the prosecuting attorney to ask appellant on cross-examination whether or not he had committed other burglaries. This was competent, under well settled rules of evidence, for the purpose of affecting appellant's credibility as a witness. ...

It is also contended that the proof is not sufficient to establish the venue in Pulaski County. . The witnesses testified as to the home of Mrs. Gardner on a certain street in Little Nock from which the property was stolen, and also the location in the city of the house in which appellant roomed and where the stolen goods were found. It is judicially known that the whole of the city of Little Nock is in Pulaski County, and the mention of a street' number of a house in the city is sufficient to prove the venue. •

Judgment affirmed.


text:
    Lucas v. Reynolds.
    Opinion delivered June 8, 1925.
    1. Constitutional law — amendment 11 self-executing. — Amendment 11 to the Constitution, authorizing counties and cities to issue bonds, is self-executing.
    2. Counties — maturity of bonds — validity of contract. — The act of 1925 “to facilitate the funding of debts of counties,” etc., providing that county bonds should niot mature before September 1, 1926, was not violated by a contract providing for interest payments .prior thereto; the provision relating only to payments on the principal.
    3. Counties — issue of bonds in excess of indebtedness. — A contract for the sale of county bonds is not in excess of the county’s indebtedness where bonds were issued in contemplation of converting them into bonds bearing a lower interest rate if, when so reduced, the amount of bonds will be equivalent to the indebtedness to be discharged.
    Appeal from Conway Chancery Court; W. E. Atkinson, Chancellor;
    affirmed.

      Colvin & Sellers, for appellant.

      Ediuard Gordon, for appellee.
   McCulloch, C. J.

The county court of Conway county made an order ascertaining the amount of the county’s indebtedness at the time of the adoption of Amendment No. 11 to the Constitution, and entered into a contract with R. C. Helbron for the sale of bonds sufficient to pay off the indebtedness. The amount of indebtedness was ascertained by the court to be $80,380.84.

Appellant is a citizen and taxpayer of the county, and instituted this action in the chancery court to restrain the county judge from carrying out the project.

The General Assembly enacted a statute (unprinted as yet) entitled, “An Act to Facilitate the Funding of the Debts of Counties, Cities and Incorporated Towns.” The contention of appellant is, in the first place, that the county had no right to proceed under Amendment No. 11 until the enabling act was passed, and that the act was not in force for the reason that an emergency is not stated in the act so as to put it into immediate force. This point was decided against the contention of appellant in the recent case of Cumnock v. Little Rock, ante p. 777 where we decided that the portion of amendment Ño. 11 authorizing the issuance of bonds is self-executing. We found it unnecessary in that case to decide any other question, and the question as to when the act went into effect is still undecided so far as this court is concerned.

It is further contended that, if the enabling act is in effect and controls this proceeding in Conway Oounty, the terms of the statute have been violated, land that the county judge ought to be restrained for that reason.

Section 2 of the enabling act provides that the bonds to be issued under the amendment shall be “negotiable coupon bonds payable serially through a period of not exceeding forty years, and bearing a rate of interest not exceeding six per cent, per annum,” and that “none of such bonds shall mature before September 1, 1926.” The schedule agreed upon in the contract between the county and the bond purchaser provides for the first interest payment on October 1, 1925, and the first installment of principal is payable on October 1, 1926. It is thus seen that the terms of the statute, which applies only to the payment of principal not earlier than 1926, are not violated by the provision for the payment of interest. There is nothing in the Constitution or statute which forbids interest payments to be made semi-annually, and this was doubtless in contemplation of the framers of the enabling act when they provided that none of the bonds should mature before September 1, 1926. Acts 1925, No. 210.

It is next contended that the contract is for an amount of bonds in excess of the indebtedness as ascertained by the order of the county court, and that the terms of the enabling act were violated in this respect. It will bo remembered that the Constitution merely provides that the bonds shall bear interest not exceeding six per cent, per annum, and § 3 of the enabling act contains a similar provision, and also provides that “bonds may be sold at -six per cent, with the privilege of conversion into bonds bearing lower rate on such terms that the county, city or town shall receive thereon and pay therefor substantially the same amount of money as on six per cent, bonds at par; and the proceeds thereof shall be used only in payment of indebtedness of such county, city or town existing at the time of the adoption of said Eleventh Amendment to the Constitution.” The contract for the sale of bonds was made in contemplation of converting the bonds into those of a lower rate of interest, and the county will not, in fact, become liable on bonds in excess of the actual outstanding indebtedness existing at the time of the adoption of the amendment to the Constitution. In other words, when the amount of premium contracted for on six per cent, bond is reduced to the corresponding* value of bonds bearing a loiver rate of interest, the amount of bonds will be equivalent to tbe amount of indebtedness to be discharged. There is, therefore, no conflict between the contract and the terms of the statute. So, in any event, it is unnecessary to determine whether the statute went into immediate effect, for, as before stated, there is no violation either of the Constitution or of the statute.

Decree affirmed.


author: Wood, J.

text:
    Weakley v. State.
    Opinion delivered June 8, 1925.
    1. Homicide — instructions—manslaughter.—Where the State’s evidence was that defendant shot and killed deceased while in a state of voluntary intoxication and without provocation, .and the testimony of defendant tended to prove that defendant did not know what he wias doing at the time of the shooting, held that there was no room' for an instruction on manslaughter.
    2. 'Homicide — malice—killing while drunk. — As the specific intent to kill is unnecessary in murder in (the second degree under our statute, if one voluntarily becomes too drunk to know what he is about, and then without provocation by the use of a deadly weapon shoots and kills another, he commits murder in the same degree as if he were sober.
    3. Homicide — diseased mind — instruction.—Where, in a prosecution for murder in the second degree, the testimony of the defendant’s witnesses was to the effect that drinking so affected his mind that he did not know what he was doing during the period of his intoxication and for several days thereafter, but there was no testimony tending to show that he was afflicted with delirium ■tremens or any form of mental disease, and that the killing wias the result of such disease, it was not error to refuse to instruct the jury to find defendant not guilty if at the time of the killing he was laboring under such a defect of reason as not to know the nature of the act he was doing or was ignorant that he was doing what was wrong.
    4. Witness — cross-examination.—Where, on direct examination, defendant asked his witness as to defendant’s reputation for peace and quietude, it was not error on cross-examination .to permit the State to ask the witness whether there had been any complaint about dances, drinking parties and crap games at defendant’s house, and whether defendant’s reputation for morality was good or bad.
    5. Homicide — dying declarations. — A statement made 'by deceased after he was shot was inadmissible, in the absence of proof that the statement was made under a sense of impending death.
    Appeal from Arkansas Circuit Court, Southern District; George W. Glarh, Judge;
    affirmed.

      Botts & O’Daniels, for appellant.

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

The appellant was indicted by the grand jury of Arkansas County for the crime of murder in the second degree in the killing of one Den Garrison.

Witness Slim Huddleston for the State testified substantially as follows:

On the night of the shooting Den Garrison and others were at the appellant’s house. They had met there for a dance. After the dance broke up some' of them went upstairs and engaged in a crap game. Garrison borrowed some money from the defendant that night. The game broke up about four o’clock in the morning, and the crowd went down stairs. The defendant came down stairs and through the room where Garrison and others were, but did not at that time say anything. He went into the kitchen and came back with a gun and cursed and said, “Now, what do you want me to do?” He threw the gun on his wife who ran and picked up the baby and said, “Daddy, don’t shoot me, I have got the baby.” Albert Dallas and witness were the only men in the room at that time. Witness left the room and went about a hundred yards from the house and about that time a shot was fired. Witness went back to the house and found Den Garrison was shot. The defendant told them all to clear out, and some one took the gun away from him. Garrison was lying-on the floor with a wound about an inch or two across on the inside of his leg. Garrison asked the defendant why he shot him, and the defendant smiled a little bit and told Garrison that he had insulted his wife, but when Ms wife came in she said that Garrison had not insulted her. Garrison and defendant were friendly.

Witness Albert Dallas testified that he was at the dance at defendant’s home when the defendant came down stairs and got his gun and told the crowd to leave. Witness left and went down the road about a quarter of a mile when he heard a gun fire. Witness didn’t hear the defendant say anything to Garrison that night. They had no differences or words over money. Witness didn’t see or hear anything to indicate that the defendant and Garrison were on unfriendly terms. Witness didn’t hear the defendant cursing or going on — ■ no more than he told the parties to leave. Defendant didn’t point the gun at anybody. He did not make any complaint against any particular person. He came in swinging the gun around and told witness and the others to leave.

Lester Miller testified that he was at defendant’s home the night of the shooting. The defendant had been upstairs asleep and came down with a gun. He pointed the gun in at the door and ordered the crowd to leave. There were eight or ten in the room at that time. Garrison went out of the house and came in at the front and told the defendant, “For Christ’s sake, put that gun up before you shoot some one!” Defendant said something that witness did not understand, and Garrison turned about that time, and defendant shot, and Garrison fell up against witness. Witness asked him where he was hit, and Garrison replied, “He hit me in the leg.” About that time the light went out and witness ran. He returned in about five or ten minutes and some one had taken the gun away from defendant. Witness stated that defendant was in the game and had been winning a little and had loaned Den Garrison some money during the game.

Other testimony for the State was to the effect that Garrison was shot on Saturday night and lingered until the Wednesday following and died about six o’clock from the effects of the wound. One witness testified that lie saw Den Garrison on Saturday prior to the shooting; that witness and Garrison hauled rice together to DeWitt. When witness next saw Garrison, he was lying on a bed at defendant’s house ¡complaining of being shot. Witness saw a hole in his leg which was a fresh wound, and he stayed with Garrison from that time on until the following Wednesday about eleven o’clock. Garrison gradually grew worse from the time witness first saw him after he was shot until he died.

The defendant offered testimony by several witnesses to the effect that, .after the shooting and after Garrison had been removed to- a neighbor’s house, he made a statement which was written down by a party in the presence of the justice of the peace in which Garrison stated that the shooting was accidental; that Weakley was a good friend of his, and that he should not be punished for the shooting, and that he -did not want Weakley punished for it.

One of these witnesses, L. L. Brown, a justice of the peace, testified that he had known the defendant for many years; that he had never known him to be in any trouble except drinking; that his reputation for peace and quietude in the community in which he lived was good, and that ¡he lived within one block of the defendant for about fourteen years. On cross examination of this witness the following occurred:

“Q. What is the general reputation of the defend-, ant for morality? Mu. 'Botts: We- object to that; A. Good as far as I know. Q. Did you ever have any complaint, Squire, of him having these dances and drinking parties -anid crap games out there at his place? Me. Botts: We object to that. Couet: You have his reputation in issue? Me. Botts: I did n-ot put his reputation in issue for specific acts. Couet: .You have it in issue. Me. Botts: That is not competent testimony. Couet : I have p-assed. on it. [Exception saved by defendant.] A. I heard them talking about this -game up there. Q. You have had -complaint -about having these dances and drinking parties out there for young boys? Mr. Botts: We object to that. 'Court: Objection oyer-rulecl. [Exception saved.] Q. Basing your opinion on that, tell the jury whether or not you consider his reputation for morality, good or bad? A. From what I have heard from the general discussion it is not so very good. Q. You would not consider a man’s reputation good if he would permit young boys to come there and gamble all night? Court: That is common knowledge. Me. Botts : Defendant objects to these questions and remarks of the court.’’ Objection overruled and exceptions saved.

There was testimony to the effect that the appellant was a hard drinker; that during the time he was drinking and for several days thereafter he did not seem to know what he was doing. He was unable to work, easily excited and highly nervous. One witness testified that he saw the defendant a short time after the shooting, and he appeared as though he had been on a drunk; that for two or three days after the defendant had been drinking he would not act in his right mind— did not seem to know what he was doing and did not talk naturally; that he acted the same way on this occasion. Another witness testified that he was in the army with the defendant during the world war; that when defendant had been drinking for two or three days he did not know what had taken place and did not realize what he had done or what had been done to him; that on these occasions he would disobey the officers and did not seem to realize anything about what was taking place.

The defendant’s brother, after testifying as above, stated that in his opinion the excessive drinking of poisonous alcohol by the appellant had diseased his mind to the extent that when he took a few drinks of whiskey he was temporarily insane and did not know what he was doing; that this condition of mind was growing worse from year to year.

The defendant himself testified that the only thing he knew about the shooting was what they told him about it. He had no ill feeling toward the deceased. On the contrary, they had always been the best of friends. When they told him about the shooting, he would not believe it, and, when they took him in to where G-arrison was, the latter said there was no cause in the world for the defendant to shoot him,, and that it was an accident. He had never had a quarrel with G-arrison. About six years before he (defendant) had got to drinking. He could not resist the temptation. It affected his mind. . He quit for about two years and later got to drinking again, and his mind was more greatly affected than before. During the time he whs drinking he was not at himself. He was nervous, and if some one spoke to him it would frighten him until he did not know what he was doing. On cross examination he stated that he had had four dances at his house; that he had been drinking during the dance, and' did not know where he g'o.t the .gun or whether it was loaded or not. He didn’t want the boys to shoot craps and told them so. He told Garrison and others that they could have the dance if they did not bring any whiskey.

The court instructed the jury defining murder in the second degree and told them in effect that, in order •to convict the defendant, the evidence upon the part of the State must show that the killing was .unlawful, that it was unnecessary, not justifiable or excusable, that it was willful, that is, intentional, and was done with malice; that malice denoted the state of mind and the act that prompts the motive of the defendant; that it was an act done wickedly and without due regard for the rights of one’s fellow man — an act done cruelly; that, if the shooting was unlawful and done with a deadly or dangerous weapon in the use of such deadly or dangerous weapon, the law implies malice, and the State was not required to prove it; that it was necessary for the State to prove that the deceased died in a year and a day from the time of the infliction of the injury and the shot was the cause of his death, and that it occurred in Arkansas County within five years before the finding of the indictment. The court then instructed the jury as to the form of the verdict in case they should find defendant guilty of murder in the second degree, and the punishment for such crime.

The court further instructed the jury that it was the contention of the appellant that if he shot Grandson he was under the influence of intoxicating liquor to such an extent as to render him incapable of knowing right from wrong; that, where- the charge was murder in the second degree, it is unnecessary to prove a specific intent to kill; that if one- voluntarily becomes too drunk to know what he is about and without provocation assaults and heats another person, and. such assault causes the death of the other person, he would be guilty of murder in the second degree.

The court gave correct instructions on the credibility of witnesses and reasonable doubt. The co*urt further announced the law to be that, if the killing is unlawful and a deadly or dangerous weapon is used, the inference of malice could not be rebutted; that, if the killing wa-s not an unlawful killing, it would be a justifiable or excusable killing, and the defendant would be relieved.

The appellant asked the court to instruct the jury “that voluntary intoxication is no defense to this charge, but that if you believe from a preponderance of the evidence that at the time of the alleged shooting the defendant was laboring under such a defect of reason from disease of the mind, regardless of the cause of such mental condition, as not to know the nature of the act he was doing, or, if he did know it, that he was ignorant that he was doing what was wrong, then you will find the defendant not guilty.”

The appellant also asked the court to instruct the jury on the lower degrees of homicide, which prayers the court refused.

The jury returned a verdict of guilty of murder in the second degree and fixed the punishment at five years in the State penitentiary. From the judgment pronouncing sentence in accordance with the verdict, the appellant prosecutes this appeal.

The jury might have found from the testimony of the witnesses for the State, which it was their sole province to accept or reject, that the appellant shot and killed Garrison while appellant was in a state of voluntary intoxication, and that there 'was no provocation whatever on the part of Garrison. The téstimony on behalf of the appellant tended to prove that the appellant did not know what he was doing at the time of the shooting, and did not know that he had shot Garrison. Such being the state of the record, the court did nor err in holding that there was no testimony to justify the giving of instructions on any lower degree of homicide than that of murder in the' second degree. There was no room for an instruction- on manslaughter under the undisputed evidence both for the State and the appellant. Kinslow v. State, 85 Ark. 515; Bradshaw v. State, 95 Ark. 409.

Mr. Bishop says:. “A man may be guilty of murder without intending to take life, or of manslaughter without so intending, or he may purposely take life without committing any crime. The intention to drink may fully supply the place of malice aforethought so that, if one voluntarily becomes 'too drunk to know what he is about and then with a deadly weapon kills another, he does murder the same as if he were sober. In other words, the inere fact of drunkenness will not reduce to manslaughter a homicide which would otherwise be murder.” Bishop’s New Criminal Law, p. 296, § 401. This is the doctrine applied by us in Byrd v. State, 76 Ark. 286, 289, where we said: “But no specific intent to kill is necessary to constitute the crime of murder in the second degree under our statute, and the law is that the intention to drink may fully supply the place of malice aforethought, so that if one voluntarily becomes too drunk to know what he is about and then without provocation assaults and beats another to 'death, he does murder the same as if he was sober.”

While the instructions of the court were long and involved, yet there is no erroneous declaration of law announced in any of tliem, and they were not calculated to confuse and mislead the jury. The charge of the court on the issue as to whether or not the killing was done with malice or whether it was the result of mania a potu — insanity produced by intoxication- — was in accordance with the doctrine announced by this court in Byrd v. State, supra. See also Casat v. State, 40 Ark. 511. If the killing was the result of voluntary intoxication without provocation and by the use of a deadly weapon, then it was murder in the second degree, unless the appellant at the time was laboring under such a diseased condition of the mind, a fixed insanity caused by continued intoxication, that he was incapable of knowing the nature of the act he was doing, or, if he did know the nature of the act, that he did not know it was wrong.

While the testimony of the defendant and of several witnesses was to the effect that drinking so affected the appellant’s mind that he did not know What he was doing during the period of his intoxication and for several days thereafter, yet there was no testimony in the record tending to show that appellant was afflicted with delirium tremens or any other form of mental disease produced by intoxication, and that the killing was the . result of such disease rather than the result of a mere temporary loss of reason caused by voluntary intoxication. The court, therefore, did not err in refusing appellant’s prayer for instruction No. 2. The doctrine of Martin v. State, 100 Ark. 189, upon which appellant relies to sustain this instruction has no application to the facts of this record.

One of the appellant’s assignments of error is that the court erred in permitting the State tó prove by witness L. L. Brown that he heard some complaint or rumor against the dances that defendant had permitted to take place at his house' and also erred in permitting the witness to be -asked about specific acts of misconduct on the part of the appellant. Brown, witness for appellant, testified on direct examination that he had known appellant many years; bad never known bina to be in any trouble except drinking; that bis reputation for peace and quietude in the community where be lived was good. The court, on cross examination, permitted the State to ask the witness if be bad heard any complaint about the appellant having dances and drinking parties and crap games at bis bouse for young boys. There was no error in the ruling of the court. In the first place, the appellant by the question asked the witness on direct examination put in issue appellant’s general reputation for peace and quietude in the community in which he lived.

Now, peace and quietude in the legal sense — the sense contemplated by the question — signifies ‘£public quiet, order and security; public tranquillity and obedience to law. Hence, that public order and security which is commanded by the laws of a particular sovereign, lord or superior. * * * Hence, analogously, of the peace ' established by any laws.” Webster’s Dictionary. Public peace is “a condition of order that conforms to the requirements of the laws.” Funic1 & iWagnalls’ Diet. The witness Brown was justice of the peace, and one of the questions asked him on cross examination was if there had ever been any complaint of the dances, drinking parties and crap games had at appellant’s home, and in answer to this question he stated that he had heard them talking about this game up there. He was further asked if there hadn’t been complaint about the dances and drinking parties for young boys, and if he hadn’t heard of the general discussion of appellant’s past record, and from that discussion whether he considered' appellant’s reputation for morality good or bad. He answered that from the general discussion it was not, so very good.

These questions were legitimate on cross examination to show that the reputation of appellant in the community where he lived was not very good for peace and quietude. The questions on cross examination were responsive to the issue raised by appellant by the particular form of the questions asked the witness on direct examination concerning appellant’s reputation for peace and quietude. In the second place, the questions propounded the witness on cross examination were -proper in order to test the accuracy of the statements of the witness on his direct examination and his credibility.

In St. L. I. M. & S. Ry. Co. v. Stroud, 67 Ark. 112, we said: ‘ ‘ There could be no doubt that when a witness is put on the stand to attack or defend character he can only be asked on the examination in chief as to the general character of the person whose character is in question, and he will not be permitted to testify to particular facts either favorable or unfavorable to such person; but when the witness is subjected to cross examination, he may then be asked, with a view to test the value of his testimony, as to particular facts.” Clark v. State, 135 Ark. 570-73; Carr v. State, 147 Ark. 524.

The court did not err in refusing to allow appellant to prove the alleged dying declaration of G-arrison. The proper foundation was not laid for the admission of such testimony.

There are several other assignments of error urged for reversal of the .judgment in the brief of appellant’s counsel but it would unduly extend this opinion to discuss them. Suffice it to say, we have examined them and find no prejudicial error in the rulings of the court.

The judgment is therefore affirmed.


author: Hart, J.,

text:
    Walker-Lucas-Hudson Oil Company v. Hudson.
    Opinion delivered June 8, 1925.
    1. Corporations — transfer of property to officer. — A .transfer by a corporation of an oil and gas lease to one of its officer's is .not void, and is voidable only when unfair or fraudulent.
    2. Corporations — transfer of lease to officer — burden of proof. —An officer of a corporation who takes from it a transfer of an oil and gas lease has the burden of showing that the transfer was made in good faith and was fair to the corporation.
    3. Trusts — -laches.—While laches is not applicable against an express trust during its -continuance, -the repudiation of the trust; entitles ’• the beneficiaries to immediate relief, and opens the door. to the -defense of laches.
    4. Contracts — time of PERFORMANCE.-r-r-Time may be of the essence of -a contract for the sale or lease of real property, not only by the express, agreement of the parties, .but from the very-nature of the property,itself. • .
    5. Mines and- minerals — vigilance in assertion of rights. — -Parties interested in mineral property of any kind must be vigilant •and active in asserting their rights.
    6. Equity — laches in asserting rights. — There is no hard ■ and fast rule as to what -constitutes a reasonable time for ¡parties to act after facts come to their knowledge; each case being governed by its own circumstances, depending upon the situation of the parties, the extent of their knowledge or means of information, great changes -in value, the want of probable ground for imputing intentional fraud, the absence of any reasonable hindrance to assertion o-f rights, and the like-.
    7. Equity — laches.—When the question of laches is in issue, the .plaintiff is chargeable with- such knowledge -as he might have got upon inquiry provided the facts already known to h-im were •such -as to put the duty of inquiry upon a man of ordinary intelligence.
    8. Mines and mining — laches.—Parties claiming an interest in oil and gas leases cannot -sit by and say nothing -if a loss arises -and at the same time .assert their rights if the venture should prove to be -a profitable one.
    9. Equity — laches.—Where a corporation was financially unable to develop an oil and gas lease, and transferred the case to one of its directors, who thereupon expended his time, energy and money m developing it, into a paying proposition, -a suit to cancel -such transfer, brought by the -corporation two- years after such transfer, will be ¡barred by laches, in the absence of any fraud or excuse for the delay.
    10. Trusts — repudiation.—Where an officer of a corporation held a lease for the corporation as trustee, his dem'and of the corporation that it transfer the lease to himself individually was a repudiation of the trust.
    11. Notice-^pacts putting on inquiry. — Whatever puts a party on inquiry amounts to notice wihere the inquiry becomes a duty and would lead to knowledge of the requisite facts by the exercise of ordinary diligence and understanding.
    12. Mines and minerals — laches.—Stockholders delaying two years before suing to set aside a transfer of an oil and gas lease to an officer and trustee were guilty of laches where circumstances within their knowledge put them upon inquiry which, if pursued, would have led to complete knowledge of the whole transaction.
    Appeal from Union 'Chancery Court, Second Division; George M. LeGroy, Chancellor;
    affirmed.
    STATEMENT OE EACTS.
    Appellant brought this suit in equity against appellee to establish its alleged undivided one-half interest in an oil and gas lease in which the legal title is in appellee and also to have an accounting from appellee of the royalties collected by him.
    The suit was defended by appellee on the ground that he was the owner of the legal title of the one-half undivided interest in the oil and gas lease claimed by appellant.
    It appears from the record that appellant, Walker-Lucas-Hudson Oil Company, was duly organized as a corporation under the laws of the State of Arkansas on February 24, 1921, and it was authorized under its charter to acquire, own, and operate oil lands and leases. J. T. Walker, H. S. Lucas,* George Williams and Ira M. Hudson were the original subscribers to the stock of said corporation. Walker, Lucas and Hudson each subscribed for $1,000 of the stock. Lucas and Hudson paid in the sum of $850 each for his stock and Walker’s stock was issued to him for services performed in promoting the corporation. George Williams transferred to the corporation 110 acres of oil and gas leases and was to receive therefor $34,000 in cash and $10,000 in the stock of the company. He received the stock; but never received any money. The money was to be paid out of the proceeds of the sale of stock, and the amount promised was never realized therefrom. The oil and gas leases on the 110 acres of land were on undeveloped territory and for that reason the promoters were not able to sell additional stock in the corporation. ■ •
    A. W. Cooper of the Dixie Petroleum Company, who was a friend .of Ira M. Hudson, told the latter that both their companies needed acreage in proved territory and that he knew of a piece of five acres; but his company was not able to buy it all. Cooper told. Hudson that his company would take one-half of it, if Hudson’s company and some one else would take the balance. Hudson, Walker and Lucas were all officers and directors of their corporation. Hudson was the ¡treasurer. Hudson talked over the matter with Walker and Lucas and they -set out to find some one to take a fourth interest in the lease and procured the El Dorado Oil Syndicate to take a one-half interest in the lease.
    On the 15th day of April, 1921, Ira M. Hudson procured an assignment from J. it. McCaldin to an oil and gas lease of 4.571 acres and paid him cash therefor the sum of $6,250. By the contract he agreed to pay an additional sum of $6,250 within five days from date. Hudson then further agreed to pay McCaldin $12,500 out of one-half of the first money collected from the first oil produced and saved from said land after accounting to the original lessor for the royalty of one-eighth reserved by him. Under the terms of. the agreement the El Dorado Oil Syndicate was to.become the owner of a one-half interest in said lease, the Dixie Petroleum Company the owner of a fourth interest, and the Walker-Lucas-Hudson Oil Company the owner of a fourth interest. . '
    The contract further provided that in the event either of the parties should fail to furnish to Hudson its proportionate part of the $6,250, which Hudson was required to pay witliiu five days from the date of the contract, then the other parties to the contract should have the right of furnishing the part of the party who failed to pay his proportionate part and should become the owner of said part.
    Appellant was unable to pay the whole of the cash payment which was $1,562.50. Appellant paid $500 of this amount and Hudson advanced the balance of it to the corporation. The other parties paid their respective amounts as they became due. The contract recites that Ira M. Hudson, although appearing in the lease from McCaldin to himself in his personal capacity, is a matter of fact acting as trustee for the said El Dorado Oil Syndicate, the Dixie Petroleum Company and Walker-Lucas-Hudson Oil Company. The lease from McCaldin to Hudson, and the contract between Hudson and appellant and the other two oil companies were both executed on the 15th day of April, 1921. Appellant failed to pay his proportionate part of the $6,250, which was to be paid five days after the date of the contract.
    On account of the failure of appellant to make said payment, an additional contract was entered into by appellant and Hudson on the '26th day of April, 1921. This contract recites that on account of the failure of appellant to make said payment, it is agreed that appellant should pay Hudson out of the sale of stock, $3,125 by noon of April 30, 1921. The contract recites that if said amount is not paid on the date mentioned, the corporation releases said lease to Hudson. The agreement further provides that it cancels and covers any other agreement made regarding the said lease.
    On April 30, 1921, Ira M. Hudson and appellant entered into an additional contract whereby it is recited that Ira M. Hudson is the owner of the oil and gas lease in question in this case described as one and one-eighth acres, and that he contracted with appellant for the drilling of a well for oil or gas on said land. The contract provides that appellant should start drilling on said tract within ten days and drill a well to completion as rapidly as possible. In consideration appellant was to receive a seven-sixteenth interest of all the oil and gas produced from said well.
    Subsequently appellant made a contract with other parties to finish drilling the well for it. Hudson made certain advancements which were used by appellant in drilling the well and these amounts were repaid him after a producing well was brought in. Hudson accounted to appellant for the royalties due it under the contract with him of the date of April 30, 1921. -After the contract of April 15,1921, between appellant and Hudson had been executed, appellant sold stock to various persons upon the faith that it owned the whole of said lease as provided in- the contract. Most of the stock sold was in small amounts of one and two hundred dollars. Subsequently the directors and stockholders of appellant claimed that Hudson held the whole one-fourth of said lease as trustee for. appellant and demanded that he convey to appellant, the' interest claimed by him, and also account to it for the royalties claimed on said interest.
    Upon the failure of Hudson to comply with this request, the present suit was instituted on March 31, 1923. Other facts will be stated and referred to in the opinion. • ■
    The chancellor found that Hudson was the owner of the undivided interest in said lease claimed by appellant, and to reverse an adverse decree against appellant in this respect this appeal has been prosecuted.

      R. M. Hutchins, Mahony, Yocum & 8aye and J. N. 8aye, for appellant.

      Patterson & Rector, for appellee.
   Hart, J.,

(after stating the facts). It appears from the record that Hudson secured an oil and gas lease from J. R. McCaldin to 4.571 acres of land in proved territory in the El Dorado gas and oil field on the 15th day of April, 1921. On the same day Hudson entered into a written agreement with appellant and two other oil companies to transfer said oil and gas lease to them for the price he had agreed to pay McCaldin. Appellant was to receive a one-fourth interest in said oil and gas lease; and the two other corporations the remainder of it. Appellant was a corporation organized for the purpose of acquiring and operating oil and gas leases and Hudson was the treasurer and a director in said corporation. Upon the failure of appellant to pay the purchase price required of it 'by the terms of the contract, Hudson demanded that its interest in the lease should he transferred and assigned to him. This was done on the 30th day of April, 1921.

This brings us to a consideration of the question of whether this contract was void or voidable. This court has held that while such contracts are only voidable, they are more closely scrutinized than ordinary contracts, and that the burden is upon those claiming under them to prove that they are made in good faith and fair to the corporation. Hence the burden was upon Hudson to show the fairness to the corporation of the transfer of the lease to him and the transfer is illegal only where it is unfair or fraudulent. Ward v. McPherson, 87 Ark. 521; American Mortgage Co. v. Williams, 103 Ark. 484; and Nedry v. Vale, 109 Ark. 584.

In addition ¡to this, it may be stated that under the terms of the contract of April 15, 1921, Hudson became the trustee for appellant and the two other companies securing an interest in the lease on the 4.571 acres in the proved territory. In this connection it may be stated that this trust was put to an end, or at least repudiated, by the agreement of April 30, 1921, whereby Hudson, by a contract secured appellant’s interest in said lease.

The present suit was not commenced until March 31, 1923, and it is the contention of Hudson that appellant is barred by laches. In this connection it may be stated that laches is not applicable against an express trust so long as the trust continues; but the repudiation of the trust entitles the complainants to immediate relief and opens the door to the defense of laches. Patterson v. Hewitt, 195 U. S. 309.

The principle is recognized that time may become of the essence of a contract for the sale or lease of real property, not only by the express agreement of the parties, but from the very nature of the property itself. This principle is especially applicable where the property is of such a character that it will likely undergo sudden, frequent, or great fluctuations in value. In respect to mineral property of all kinds the parties interested must be vigilant and active in asserting their rights. Waterman v. Banks, 144 U. S. 395.

There is no hard and fast rule as to what constitutes a reasonable time within which the interested parties must act after the facts come to their knowledge. Each case must be governed by its own circumstances, depending upon the situation of the parties, the extent of their knowledge, or means of information, great changes in values, the want of probable grounds for the imputation of intentional fraud, the absence of any reasonable hindrance to the assertion of the alleged rights and the like. Hammond v. Hopkins, 143 U. S. 224, and Hoyt v. Latham, 143 U. S. 553.

It is well settled that when the question of laches is in issue the plaintiff is chargeable with such knowledge as he might have obtained upon inquiry, provided the facts already known to him were such as to put the duty of inquiry upon a man of ordinary intelligence. Johnston v. Standard Mining Co., 148 U. S. 360.

In Twin-Lick Oil Company v. Marbury, 91 U. S. 587, it is said that the right of a corporation to avoid the sale of its property by reason of’the fiduciary relations of the purchaser must be exercised within a reasonable time after the facts connected therewith are made known, or can by due diligence be ascertained, and that the determination of what constitutes a reasonable time must be arrived at by a consideration of all the elements which affect that question.

Aill of the cases above cited recognize that the time within which the interested parties must act in the case of mineral lodes and gas and oil leases is much shorter than ordinary cases, because in the development of such property, courage and energy are required, and the courts look with disfavor upon the claims of those who have lain idle while awaiting the results of such development. It has been repeatedly pointed out that mining property is subject to sudden and . enormous decreases as well as increases in value. Considerable amounts of money are necessary to develop such property, and those claiming an interest in it cannot sit by and say nothing if a. loss arises and at the same time assert their rights if the venture should prove to be a profitable one. This principle has been uniformly recognized and.applied by this court according to the facts of each case. Gibson v. Herriott, 55 Ark. 85; Norfleet v. Hampson, 137 Ark. 600; Stewart Oil Co. v. Bryant, 153 Ark. 432, and Cartier v. Hengstler, 166 Ark. 303.

Tested by the rules above announced, we do ■ not think that appellant was entitled to recover on account of its delay in bringing the suit. It does not appear that Walker, Lucas or Williams had any money upon which to operate, and they were largely dependent upon Hudson for financial backing in promoting the business of the corporation. They were unable to sell stock in it by the mere ownership of leases in undeveloped territory. Hudson found out that the corporation might acquire an interest in 4.571 acres in proved territory. After consultation with his associates it was decided that Hudson should put up the money to acquire an interest in the lease and that the corporation should reimburse Mm. It was thought that this could be done by the proceeds of the sale of the stock. Their expectations in the'sale of the stock did not materialize, and the corporation was unable to make the payments required by the terms of the lease under which they acquired the one-fourth interest. Hudson was not willing to put up the money himself and let the corporation receive the gain, if any. Hence he demanded that the interest of the corporation in the lease be transferred to him.

There is nothing to indicate fraud in this transaction. Hudson knew that the corporation had no assets except .the leases in proved territory and the small amount of money which he and another associate had put up. Under these circumstances it was natural that he should not he willing to put up the money and let the lease remain as an asset of the corporation. In other words, he desired that if he alone took the risk he should reap all the gain which might he derived from the venture.

It is true that by the very terms of the contract itself he was a trustee for appellant. But, as we have already seen, the contract was not absolutely void, and his action in' requiring the corporation to assign the lease to him was at least a repudiation of the trust. His associates in the corporation waited for two years before asserting their rights in the premises. In the meantime Hudson had made a contract with the corporation whereby it was to drill a well for him, and he advanced it certain money to carry out this contract. After the well, became a producing one, Hudson accounted to the corporation for its share of the oil produced by the well. The chief stockholders of appellant were promoters of the corporation and associates of Hudson, and from the beginning they had knowledge of the successive steps taken by the corporation and by Hudson himself to find oil upon the land in question. Hudson expended considerable money in drilling’ the well, and it required much energy to carry on the enterprise.

. ' His associates now claim that he dominated them in the matter, and that because of the lack of funds they had to, make a contract relinquishing the rights of the corporation in the lease on the proved territory to Hudson. Conceding this to be true, they should have acted promptly to assert their rights in the courts and have .sought to.have avoided the contract on the ground that it was procured by fraud or duress before Hudson had expended so much time, energy and money in developing the land. They have given no excuse whatever for their delay, and we think that it would be inequitable to allow them to maintain this action.

With regard to the other stockholders the case is not so clear; but we think they too are guilty of laches under the circumstances. Most of them visited El Dorado near where the leased land was situated after they bought their stock in 1921. They saw Hudson and the other officers of the corporation and talked with them. The records of the corporation were open for their inspection. As soon as Hudson secured the contract whereby the corporation assigned its interest in the lease to him, he had the records of the corporation to reflect that fact. There was no concealment of any act by him. ¡When they discovered oil, he 'began to account for the royalties to the corporation and the stockholders in turn received their share of it; This course continued for a year or more before the present controversy arose and this suit was instituted. Under these circumstances the stockholders were put upon notice of facts, which, if pursued by them, would have led to complete knowledge of the whole transaction.

This court is in accord with the Supreme Court of the United States in holding that whatever puts a party on inquiry amounts to notice where the inquiry becomes a duty and would lead to knowledge of the requisite facts by the exercise of ordinary diligence and understanding. Waller v. Danby, 145 Ark. 306.

The result of our views is that the decree of the chancellor was correct, and it will therefore be affirmed.


author: Habt, J.,

text:
    McLaughlin v. Ford.
    Opinion delivered June 8, 1925.
    1. 'Statutes — construction op amendatory act. — A statute amending a prior act from 'and after its passage becomes a part of the ¡prior act and stands with reference to future transactions as' though the act had originally been enacted in the amended form.
    2. Statutes — general and special statutes distinguished. — The difference between a general and special statute is that a general statute applies to all of a class, while a special statute applies, to one or two or a part of a class only.
    3. ¡Statutes — general statutes. — To make a law applicable to municipal corporations general, it is not necessary that it should operate upon all cities and towns within the State,: ¡but it is sufficient-if it applies to all cities and towns coming within the . designated, class. -
    4. Statutes — general and special statutes. — In determining • whether a statute is general or special, the form of the statute does not control, and a statute in the form of a general law would be a special act if it could apply only to one city or town.
    5. Statutes — classification ' of municipal ' corporations. — The Legislature m¡ay classify counties, cities and towns according to population, as such classification rests upon 'Substantial differences in situation .and needs.
    6. Statutes — tGbneral act. — Although, Acts. 1913, p. 48, and the act of the Special Session of 1923, amendatory thereof, providing for a commission form of government for cities of the first class, applied to- those cities' only which might have hi population of 25,000 or more, according to the last census, such acts were not special, but were applicable to all cities which in the future might have the requisite population.
    7. , Municipal corporations — validity of ordinances. — Municipal ordinances contrary to the general laws of the State are void.
    8. Municipal corporations — powers of city commission. — Under statutes authorizing a city commission to1 exercise all the functions usually exercised by city councils, ¡such commission is authorized to fix the salaries of employees of the city, which may be done either by resolution or ordinance.
    Appeal from '‘Sebastian Chancery Court, Fort Smith District; J. V. Bourlcmd, Chancellor;
    affirmed.
    STATEMENT OE EAOTS.
    Appellants, who are citizens and taxpayers of the city of Fort Smith, Arkansas, brought this snit in equity against certain persons respectively named as mayor, commissioners, city attorney, city clerk, city treasurer, and chief of police of tlie city of Fort Smith, to enjoin them from receiving an excess salary in these various offices, and to account for the excess salaries already received by them.
    According to the allegations of the complaint, the Legislature of 1913 provided for a commission form of government for cities of the first class. Acts of 1913, p. 48. The city of Fort Smith complied with the terms of the act and organized under its provisions a commission form of government. The Legislature at its special session in October, 1923, amended § 12 of the act above referred to so as to increase the salary of the officers of cities of the first class which have a population of 25,000 people or more.
    The defendants filed a demurrer to the complaint, which was sustained by the court. The plaintiffs were given leave to amend their complaint, but declined to do so, and expressly elected to stand upon their complaint. It was therefore decreed that the complaint of the plaintiffs be dismissed for want of equity.
    To reverse that decree, the plaintiffs have duly prosecuted an appeal to this court.

      T. 8. Osborne, for appellant.

      Sam R. Chew, G. L. Grant, A. M. Dobbs and Geo. W. Dodd, for appellee.
   Habt, J.,

(after stating the facts). The appeal in this case involves the construction to be given to §§ If and 12 of the acts of 1913, and § 2 of the special Acts of 1913 above referred to.

So much of § 11 as is necessary to a decision of the case reads as follows:

“Section 11. The board of commissioners shall, at the first regular meeting after the election of its members, or as soon as practicable thereafter, appoint by a majority vote a city clerk and attorney or attorneys for the city, a city engineer, chief of police, city physician, chief of fire department and such, other officers and assistants as shall be provided for by ordinance and necessary to the proper and efficient conduct of the affairs of the city, and shall prescribe the powers and duties of such officers and employees; may assign particular officers and employees to one or more of the departments, may require any officer or employee to perform duties in two or more departments, and may make such other rules and regulations as may be necessary and proper for the efficient and economical conduct of the business of the city. ’

Section 12 reafls as follows:

“Section 12. The compensation of the mayor and commissioners for all services shall be as follows:
‘ ‘ The mayor shall receive an ¡annual salary of .twenty-four hundred ($2,400) dollars, and each commissioner an annual salary of two thousand ($2,000) dollars, until otherwise provided by law; such salaries shall be payable in equal monthly installments, and no salaries of any such officers shall ever be increased or diminished during the time for which he is elected, or after the primary elections for their nominations have been held. Every other officer or assistant shall receive such salary or compensation as shall by ordinance be provided, payable in equal monthly installments, to be fixed by the board, and shall be payable monthly, or at such periods as the board shall determine. Until fixed by the board the salaries of all other officers and employees in force prior to' the first primary election shall continue.” Acts of Arkansas, 1913, pp. 63-65.

The amendatory act which was approved October 10, 1923, reads as follows:

“Section 12. The compensation of the mayor and commissioners for all services shall be as follows:
“The mayor shall receive an annual salary of twenty-four hundred ($2,400) dollars, and each commissioner an annual salary of two thousand dollars ($2,000), until otherwise provided by law; such salaries shall be payable in equal monthly installments; provided, that in .cities which have a population of 25,000 or more according to the latest census taken by authority of the United States government the mayor shall receive an annual salary of $3,000, and each commissioner shall receive an annual salary of $2,700, payable monthly as aforesaid. Every other officer or assistant shall receive such salary or compensation as shall by ordinance be provided, payable in equal monthly installments, or at such period as the board shall determine. Until fixed by the board, the salaries of all other officers and employees in force prior to the first primary election shall continue.” Acts of Arkansas, October, 1923, Special Session, p. 119.

The record shows that the defendants were respectively mayor, commissioners, city attorney, city clerk, city treasurer, and chief of police of the city of Fort Smith, when the last United States census was taken, and it was ascertained by that census that the city had a population of more than 25,000 people. Since that time they have received the increase of salary provided by the amenda-tory act. The purpose of this lawsuit on the part of the taxpayers is to prevent them from receiving said increase of salary in the future and to compel them to account for that which has already been received by them.

The amendatory act under which they claim the increase in salary, was approved October 10, 1923, which was.less than thirty days from the 17th day of September, 1923, which was the date on which the governor issued his proclamation for the special session. Hence they claim that the act is void under the rules of law announced in Booe v. Road Improvement District No. 4, 141 Ark. 140.

In that case at was held that the requirement of the Constitution of at least thirty days ’ notice to be given of the intention to apply for a local bill is mandatory, ¡and that, where the record shows that thirty days did not elapse from the date' of the issuance' of the governor^ proclamation for a special session until the date of the passage of tlie bill,- such special bill will be held to be unconstitutional because the notice required by the constitution could not have been given. On the other hand, the defendants seek to uphold the decree of the chancery court on the ground that the amendatory act approved October 10, 1923, became a part of the act of 1913, and is a general act; :

In this connection it may be stated that the amenda-tory provision of the special session of 1923 from and after its passage became a part of the act of 1913, and in its relation to the sections of that act affected by it, stood with reference to future transactions as though the act had originally been enacted in the amended form. Mondschein v. State, 55 Ark. 389; and Abney v. Warren, 143 Ark. 572.

Therefore, the question is presented whether the provisions of the original act as it stands after the amenda-tory section is introduced is a general or special act. The difference between a general and special statute is that a general law applies to all of a class, while, a special statute applies to one or two or a part of a class only. L. R. & F. S. Ry. Co. v. Hanniford, 49 Ark. 291, and Little Rock v. North Little Rock, 72 Ark. 195.

In the case last cited the court said to make a law general it is not necessary that it should operate upon all cities and towns in the State; but that it is sufficient if it applies to all towns and cities coming within the designated class. The court recognized, however, that the form of the statute does not control, and that a statute in form of a general law would be a special act if it could apply only to one city or town in the State. These general principles of law are in accord with the general rule as announced in the courts of last resort of the various States. The validity of the acts in which counties and cities have been classified according to population, resting on substantial differences in situation and needs have been generally recognized. One of the reasons for sustaining a classification on the basis of population is 'that those having a small population may ultimately have one much larger-, and on that account have need for more officers, and also may be required to pay larger salaries in order to secure more efficient service.

To say that a general law cannot be passed to govern and regulate cities having a certain designated population or more, because only one city of that class exists, is to hold that no law can he passed to provide for future wants or necessities. Cities and counties are recognized in our Constitution as governmental sub-divisions, and each one has its appropriate part in the administration of the local government. Municipal corporations can exercise only the powers which the Legislature confers, and these may be enlarged or abridged, or entirely withdrawn at its pleasure.

If the power to classify and regulate the subject of cities generally be admitted, the question of local legislation is at -an end. The reason is that, 'although it may happen that but one city may fall within the class named by the Legislature, it does not follow that other cities may not in the future come within the class and thereby be governed by the provisions of the act. If the power to classify cities according to population for purposes of regulation exists, that ends the matter. Our Constitution provides for the organization of cities (which may be classified) and incorporated towns. Section 3, article 12, of the Constitution of 1874.

As above stated, if the power to classify exists, it is political or legislative and not judicial. It may be, as contended by counsel for the plaintiffs, that Fort Smith is the only city in the State which falls within the provisions of the original act and the amendatory act; but, when the provisions of both acts are considered, it will be readily seen that other cities may come within the provisions of the act in the future.

The discovery of oil and gas and other minerals in certain localities causes towns.and cities to spring.up in an almost incredibly short space .of time. Hence the Legi-s-lature in its discretion lias the power to classify cities according to population, not only in respect to the powers to he exercised by such cities, but also. in respect to the salaries of their officers.

The case of Ark-Ash Lumber Co. v. Pride & Fairley, 162 Ark. 235, can have no application under the facts of this case. In that case the act by its terms applied to existing highways, and it was manifest that Mississippi County alone was the only county which could ever come within the provisions of the act. Therefore, the act was held to be a .special one and unconstitutional, because the notice required by the Constitution for special acts could not in the nature of things have been given.

Again it is claimed that the act is a special one because the amendatory act applies to cities which have a population of 25,000 or more, according to the latest census taken by the authority of the United States. This would be true, if the terms of the act had only applied to cities having that population at the time of the passage of the act. This would show clearly that the act was intended to be a ’Special one, although in form a general law. Such was the case in Ark-Ash Lumber Co. v. Pride & Fairley, 162 Ark. 235. For the reason that the terms of the act made it only apply to existing highways, we held that the restriction as to population must be deemed to relate to the last Federal census, at the time of the passage of the act.

As we have already seen, the present act is pr'ospec-tive in its operation, and any city, at any time in the future which will have a population of 25,000 or more according to the census of the United States may come under its provisions. That is to say, whenever a city at any time is shown by .the census, of the United States to have a population of 25,000 or more, then such city comes within the terms of the act, and its officers may receive the salary provided for therein. ' The officers which are provided for in the increase in salaries are the mayor and the commissioners.

This brings ns to a consideration of the increase in/ salary for the other officers. Our Constitution. provides that no municipal corporation shall he- authorized to pass any laws contrary to the g-eneral laws of the State. Article 12, § 4, of the Constitution of 1874- In construing this section this court has uniformly held that ordinances contrary to the general laws of the State are void. Morrilton v. Comes, 75 Ark. 458, and Tomlinson Brothers v. Hodges, 110 Ark. 528.

It will be noted that § 12 of the original act passed by the Legislature in 1913 provides for the payment of certain stipulated amounts to the mayor and commissioners, and provides that no salaries of any such officers shall ever be increased or diminished during the time for which they are elected, or after the primary election for their nominations are held. The amendatory act passed by the Legislature at its special session in October, 1923, provides that the mayor and commissioners shall receive a certain stipulated salary until otherwise provided by law. This was repugnant to the original act, and under the ordinary rules of statutory construction repealed it. The amendatory act also provided that every other officer. or assistant shall receive such salary or compensation as shall by ordinance be provided, payable in monthly installments, or at such periods as the board shall determine. Thus it will be seen that, as to the other officers or assistants, the amendatory act in express terms provides that they shall receive such salaries as shall be provided by ordinance.

It is claimed, however, that the increase of salary was given these officers by resolution, instead of ordinance. This did not make any difference. The board of commissioners under the act are given the power to exercise all respective functions usually exercised by city councils.

According to the allegations of the complaint, the increase in salary was given to these officers by a resolution passed by the board of commissioners, and this was -in legal effect an ordinance enacted by them; It -does not matter whether the city atorney, city treasurer, and other named persons shall be designated as 'officers or employees. The statute refers to them as -officers- or assistants and the board óf commissioners is given full power'to appoint them and to provide for their compensation. The ordinance or resolution under which they were originally appointed and the subsequent one authorizing them to receive such salary as shall be authorized by ordinance expressly conferred upon the board of commissioners, the power to fix their salary and such act could not in any sense be said to conflict with any other act -of the General Assembly.

It is obvious that the general acts of the- Legislature under which cities and towns generally are governed do not apply to cities which have adopted the -commission form of government. The reason is that special statutes provide for the government of cities adopting that form of government, and they are necessarily exclusive in the matter.

It follows that the decree of the chancellor must be affirmed.


author: Smith, J.

text:
    Hayes v. Gammon.
    Opinion delivered June 8, 1925.
    1. PRINCIPAL AND AGENT — EVIDENCE OF AGENCY. — Evidence held to sustain finding of agency.
    2. Sales — misrepresentation as defense. — A stipulation against warranties in a contract of -sale does not estop the purchaser or the indorser of their notes, given in consideration of the sale, from setting up the defense to their validity that the contract was procured toy fraudulent representations. *
    3. Appeal and error — admission of evidence harmless when.— The admission of incompetent evidence was harmless where -it tended only -to prove a fact admitted by appellant.
    Appeal from Crittenden Circuit Court; G. E. Keck, Judge;
    affirmed.

      R. V: Wheeler, for appellant; Chas. M. Bryan, Pre-witt Bemmes and Arthur C. Brode, of'counsel.

      Caraway & Isom and Berry, Berry & Berry, for appellee.
   Smith, J.

Appellant, T. H. Hayes, sued appellee John dammon and Berry and S. M. Gammon, the Sons of ■ John Gammon, who composed the co-partnership of S. M. Gammon & Brothers, upon a series of notes aggregating $1,500,' representing the balance alleged to be dne upon the sale of a second-hand passenger bus. The sons of John Gammon who composed the firm of Gammon Brothers, were both minors, and a verdict was directed in their favor on this account, from which action of the court no appeal was taken.

The notes given by Gammon Brothers were indorsed by their father, and judgment was prayed against him as indorser. In addition, the defendant John Gammon was sued on an open account for $50, and, as no denial of this indebtedness was made, judgment was rendered therefor; but, upon, a trial before a jury on the issue of liability on the notes, there was a verdict and judgment in favor of John Gammon, from which is this appeal.

Appellant was the owner of a second-hand White truck, which had been converted into a passenger bus, and was bought by Gammon Brothers to be used for that purpose. The testimony shows that Hayes requested one Rudd to negotiate a 'sale of the bus to the Gammon boys, and the most important question of fact in the case is whether Rudd was the agent of Hayes in selling the bus to the Gammon Brothers. These boys testified that Rudd approached them about buying the bus, and represented to them that it was only two years old, and appellee John Gammon testified that when he indorsed the purchase money notes he inquired the age of the bus and was told by Rudd that it was two years old.

Hayes denied that Rudd was his agent, and testified that Rudd had no authority to make any representations concerning the bus, and that he was not advised, until after appellee had refused to pay the notes, that any representations in that respect had been made. Hayes did admit, however, that he had requested Rudd to speak to the Gammon boys about the bus.

Rudd testified that he did not represent either party to the trade, and that he had not been paid anything by either, and did not expect to ibe compensated for what he had done, but on his cross-examination he admitted that he was acting as agent for Hayes, and he admitted having stated both to the Gammon Brothers and to their father that the truck was only two years old. If it be said that the admission of Rudd that he was the agent of Hayes was a mere conclusion of the witness, it may be said that this question was submitted to the .jury under instructions which are not complained of, and that the testimony warranted the statement by Rudd that he was the agent of Hayes and supported the finding by the jury that such was the fact.

. It is undisputed that Hayes requested Rudd to speak to the Gammon boys about buying the bus, and it is likewise undisputed that Rudd negotiated the sale, that he got in touch with the boys and brought them to Hayes’ place of business, where the bus was shown them. A written contract of sale was prepared, and its execution by Gammon Brothers was procured by Rudd, and later the endorsement of appellee John Gammon was secured by Rudd, who* received both the contract and the indorsed notes and delivered them to Hayes.

Gammon and his sons testified that they traded with Rudd as the agent of Hayes, and that they relied upon the representation of Rudd as to the age of the bus, and the boys testified that they were induced by this representation to buy the bus, and appellee John Gammon testified that this representation induced him to endorse the notes.

It is insisted that this testimony was erroneous, as it permitted the jury to find that an agency existed from the proof of the acts and declarations of the alleged agent. We think, however, that this testimony was competent, and that, taken in connection with Rudd’s own testimony and other testimony showing both Rudd’s apparent and actual authority, the jury was warranted in finding that Rudd was, in fact, the agent of Hayes in negotiating the sale.

The contract of sale was signed by the Gammon Brothers and contained the recital that “the property is transferred in its present condition, and no warranties, guaranties or covenants as to its condition are made, and the said party of the second part accepts it as it is,”

It is insisted that in view of this recital appellee is estopped from questioning the validity-of the consideration for the notes which he signed as indorser. This is not, however, a suit for a breach of warranty. On the contrary, appellee is defending upon the ground that the execution of the contract was induced by a false and fraudulent representation in regard to the age of the car. Of course, an old car might have been in good condition, or a new car might have been in bad condition, but appellee is not defending on the ground that there was any breach of warranty in regard to the condition of the bus. His defense is that he was induced to buy an old truck which he would not have bought but for the false and fraudulent statement concerning its age, which induced its purchase.

In the case of Mitchell Mfg. Co. v. Kempner, 84 Ark. 349, the purchaser of a patented machine sought to have stricken from the written contract of sale a recital that it was not warranted in certain respects, it being insisted by the purchaser that a warranty had been made. The relief prayed was denied on the ground that the purchaser had signed a contract and did not contend that the execution of the contract itself was procured by the use of any false or fraudulent representation. But it was there said: “It is said that ‘when the vendor positively, misrepresents á material fact which is. peculiarly within his own knowledge and of which the purchaser is ignorant, the fact that he refuses to give a warranty is not inconsistent with, his liability for fraud.’ 20 Cyc. p. 60, and cases cited. ' While this is doubtless a correct statement of the law on the subject, yet it is equally true that where there is in the written contract an express stipulation against warranty the proof of such misrepresentation must be clear 'and satisfactory, for the practical effect of giving relief on account of the misrepresentation is to disregard the terms of the contract. The proof in this case is not sufficient to justify us in granting the relief. ”

Here it is not contended that there was any breach of a warranty, but that the execution of the contract itself was procured through a false and fraudulent representation concerning a material fact — that of the age of the car — upon which the purchasers relied and had the right to rely. Appellee John Gammon testified that he asked’ Rudd tiie age of the bus and'was told it’whs two years' old,’and that he'believed this representation and relied upoii it and would' not have indorsed the notes had he ■ known the statement was not' true.

It was not error," therefore, to submit to the jury the question whether the execution of the contract had been-procured through fraud. Joe Lyons Machinery Co. v. Wiegel, ante p. 572.

The contract of sale required the purchaser to insuré the bus for the benefit of appellant, and an application for insurance was made to a local fire insurance agent, who issued the policy as requested, but when his report to the insurance company was made showing the number of the engine Of the bus, the company directed that the.policy be canceled on account of the age of the bus. The admission of this testimony is assigned as error.

Error is also assigned in admitting the testimony of C. A. Farris. This witness testified that there was prepared and in use for automobile dealers a “Red Book,” known as the National Used Oar Report, which was intended to advise dealers the age Of any particular car which they take in exchange or otherwise acquire. This book did not show the age of any car back of 1917, but from that date down gave the serial numbers of all cars for each year, and by reference to this book une could tell immediately the year in which any car of standard make was made. Farris testified that the number of the bus in question indicated that it had been made prior to 1917.

If this testimony, and that of the insurance agent, is incompetent as hearsay, as contended by appellant — a point we do not decide — the admission of the testimony was harmless, as appellant admitted that the bus was an old one, and he testified that he would not have sold it at the price he did but for that fact, and by his'admission the car was at least as old as a 1917 model of the White trucks, and the testimony objected to only tended to prove a fact which was admitted by appellant. Another witness, whose testimony was undisputed, testified that he knew the truck which had been converted into a bus in 1914, ¡and, as we understand the testimony of this witness, it was an old truck then.

The testimony on the part of appellee is that a return of the bus was tendered, that it required constant repair, and was practically worthless, and we think, upon the whole case, the jury was warranted in finding that the execution of the contract of sale was procured by a false and fraudulent representation of a material fact, and that the consideration for the notes sued on had failed.

Upon a consideration of the whole case we find no error, and the judgment of the court below is affirmed.