author: McCulloch, C. J. Appellant,

text:
    Duff v. Ayers.
    Opinion delivered November 6, 1922.
    1. Appeal and error — conclusiveness op verdict. — A verdict is conclusive on an issue of fact submitted under appropriate instructions where the evidence was legally sufficient.
    2. Pleading — amendment to conform to proof. — It was within the court’s discretion, after the close of the testimony, to permit the complaint to be amended to conform to the proof; and defendant cannot claim surprise where he offered no reason for being surprised, and in fact offered testimony to rebut the amended issue.
    3 Appeal and error — weight of evidence. — The appellate court cannot determine the weight of the evidence, that being left to the jury and trial court.
    4. Master and servant — employment of inefficient servant.— The fellow servant rule does not prevent the master from being .liable for his own negligence in employing an inefficient or unskilful fellow servant.
    5. Master and servant — assumed risk.' — A servant assumes the risk of continuing in the employment with knowledge of a- fellow-servant’s inexperience together with appreciation of the risk, notwithstanding the master’s negligence in employing him.
    6. Master and servant — assumed risk — jury question. — Though defendant knew of the extreme youth and inexperience of a fellow servant, it is a question for the jury whether he assumed ■ the risk where it is not clear as matter of law that he appreciated the risk from such fellow servant’s negligence.
    7. Witnesses — privilege of physician. — A physician, to whom plaintiff, when injured, came for treatment or advice, is incompetent, by reason of the confidential relation, to testify against him concerning the extent of his injury.
    Appeal from Hempstead Circuit Court, George R. llaynie, Judge;
    affirmed.

      E. L. Westbrooke, for appellant.
    Before plaintiff was entitled to recover under the statute he must show that he is of the class of persons for whose benefit the statute was enacted. 12 Am. St. Rep. 699; 72 N. W. 797; 13 Gray 59; 64 Atl. 948; 44 Atl. 375; 20 Me. 246; 30 N. W. 637; 17 L. R. A. 588; 77 N. E. 850; 87 N. E. 229; 111 N. W. 281; 21 S. E. 68; 30 Pac. 68. Plaintiff is not a beneficiary of the child labor law. 9 L. R. A. (N. S.) 33i8; L. R. A. 1915-E, at p. 512; 128 Minn. 460.
    There was no causal relation between the injury and a violation of the statute against employing children under 14 years of age. 147 Ark. 385; 84 Ark. 422; 80 Atl. 523; 77 N. E. 1184; 87 Ark. 576; 97 Ark. 160; 144 Fed. 605; 137 Ark. 227.
    Plaintiff’s evidence as to the age of the boy is against the physical facts and is totally unsupported. Such evidence cannot be regarded as undisputed. 129 Ark. 369; 82 Ark. 86; 79 Ark. 608; 3 Am. St. Rep. 630; 84 Ark. 555; 182 S. W. 186.
    The questions sought to be asked Dr. Carrigan were proper. ,112 Ark. 534.

      L. F. Monroe and Steve Carrigan, for appellee.
    While appellant’s argument is directed largely to a discussion of the child labor law, no part of this statute was offered as a declaration of law in this case. The case was tried on the theory of the employment by appellant of a ten-year-old boy, who was incompetent, incapable and without discretion or judgment in the exercise of his duties. On this principle of law appellee having made his ease, was entitled to judgment. Wharton on Neg., sec. 157; L. R. A. 1915-F 26; Thompson on Neg., vol. 4, sec. 3758; see also sec. 4048.
    Under the Acts of 1907, p. 162, the fellow servant law as a defense for railroad companies, corporations and those engaged in milling coal was abolished. See the following eases on the subject: 90 Ark. 545; 138 Ark. 273; 95 Ark. 295.
    The master owes a duty to his servant to furnish him a safe place in which to work. Mo. Valley Bridge Go. v. Malone, 153 Ark. 454; 87 Ark. 321; 98 Ark. 34; 90 Ark. 473. Appellant misconceives the law oil the question of causal relation between the injury and the violation of á statute. It is not necessary to a defendant’s liability, after his negligence has been established, to show in addition thereto that the consequences of his negligence could have been foreseen by him; it is sufficient that the injury is the natural, though not the necessary ánd inevitable, result of the negligent fault. 1 Thompson on Neg., sec. 59, p. 62 and note; Watson on Damages, secs. 150-154; 1 Cooley on Torts, p. 125-7-8; see also 111 Ark. 343; 86 Ark. 246.
    The question of assumed risk was one for the jury. 53 Ark. 129; 87 Ark. 377; 92 Ark. Ill; 105 Ark. 347; 79 Ark. 53; 89 Ark.. 428;-129 Ark. 95; 138 Ark. 267.
   McCulloch, C. J. Appellant,

Charles Duff, is the sole owner, and engaged in the operation, of a plant at Hope, Arkansas, for the manufacture of barrel headings. Appellee was employed as a laborer by appellant, and while engaged in that service he received certain personal injuries, according to the allegations of his complaint in this case, caused by negligence of a fellow-servant. This is an action instituted by appellee against appellant to recover damages on account of such injuries.

The complaint was twice amended before the commencement of the trial with respect to the allegations of negligence. The charge of negligence, according to the complaint as last amended before trial, was that the injury resulted from the negligence of appellant in employing as the driver of a wagon a boy under fourteen years of age, and that the negligence of the boy caused a collision between the wagon he was driving and a wheelbarrow, or truck, operated by appellee.

At the close of the testimony appellee was permitted to amend his complaint so as to make the charge of. negligence rest upon an alleged act of appellant in ‘ ‘ employing and allowing’ to drive his wagon that injured plaintiff an incompetent, incapable and ten-year-old servant, without discretion or judgment to exercise the duties of his employment.”

The trial resulted in a verdict in appellee’s favor.

There was an issue as to the extent of appellee’s injury, the contention of appellant being that he was not injured at all, but it is not urged here as grounds fox' reversal that the award of damages by the jury is excessive.

Appellaxxt’s headixxg plaxxt, where appellee was employed to work, was located near a railroad sidetrack, or spur, axxd there was a platform running parallel with the track, upon which bolts shipped in from the woods to the factory were uxxloaded. These bolts, when unloaded, were placed upoxx barrows or hand-trucks and conveyed from the platform over to the saws, where the heading pieces were manufactured. There were four ruxxways, thirty feet long and four feet wide, runxxing from the platform to the grouxid, reaching the ground a distance of fourteen feet from the tables near the saws, on which the bolts were piled for sawiixg. After the headings were sawed, they were loaded upon a wagoxx and hauled out to the yard to be stacked for drying.

Appellee was engaged in operatiixg oxxe of the wheelbarrows,'or trucks, axxd he claixns that, as he rolled the barrow dowxx the inclined runway, the wagoxx used ixx hauling away the headixxg pieces was negligently driven ixi froxxt of the ruxxway down which appellee was rolling the barrow, and.that, in order to avoid a collision, he had to.turn the barrow to oxxe side and let it collide with a post, and as it tilted over one of the handles of the barrow struck appellee’s back and severely injured him.

Appellee also claims that the wagon was being operated by a boy nine years of age, who was inexperienced and not qualified to drive a wagon. The testimony of appellee supports his claim, but appellant adduced testimony showing that tlie boy was not employed to drive the wagon and did not drive it at all, and that appellee was not injured while at work.

Appellee claims that the employee who was driving tlie wagon on that .day was a small negro hoy named Manus, the son of one George Manus, who was employed to work at the mill. Appellant proved by George Manus and several other witnesses that the boy did not work at the mill at all; that he was only about seven years old at that time, and that he was too young to do work of that kind. That issue was, however, submitted to the jury under appropriate instructions, and the verdict must be treated as conclusive in appellee’s favor. The evidence in support of it was legally sufficient.

It is contended, in the first place, that the court erred in permitting an amendment to the complaint after the close of the testimony. Appellant pleaded surprise at the time, but did not offer any reason for being surprised. 'The allegation of the complaint before the trial commenced was that the boy driving the wag-on was under fourteen years of age, but the amendment changed this by alleging that the boy was under ten years of age, or about ten years of age. All the testimony during the trial, on both sides, was directed to the age and incapacity of the boy who was said to have driven the wagon, and to the issue whether or not that particular boy drove the wagon. In other words, the appellant, 'by introducing testimony on that issue, treated it as an issue in the case., and it is .not conceivable that he was surprised. He did not offer to show, when the amendment was made, that other testimony could be produced, or that he would have produced other testimony if the amendment had been made at an earlier stage of the proceedings. We think it was a matter within the discretion of the court to permit the amendment to be made so as to conform to the proof adduced, and no error was committed by the court in this respect.

Appellant' requested the court to direct a verdict • in his favor, and the refusal of the court to give such direction is now urged as error.

The principal ground urged why a verdict should have been directed is that appellant is not liaible for a violation of the statutes against the employment of children under fourteen years of age. The answer to that argument is that the case was not submitted to the jury on the question of employment of a child in violation of the statute. In other words, the test of appellant’s liability was not, under the instructions of the court, made to depend upon the violation of the statute, and there was no instruction given on that subject at all, but the court submitted tire case on the issue whether or not .there was negligence in employing as driver of the wagon an inexperienced and incapable child. We are not called on, therefore, to decide whether or not liability could be predicated upon a violation of the statute — ■ that is to say, liability to a person for whose benefit the statute was not enacted.

Counsel also argue that the verdict is contrary to the overwhelming weight of the evidence; but, as we have already said, there was evidence sufficient to sustain the verdict, and we are not at liberty to determine the weight of the evidence, for that is a matter which, under the Constitution of this State, is left to the trial jury and court.

Error of the court is assigned in refusing to give appellant’s requested instruction No. 2, which stated the law to be, in substance, that, if the truck driver and appellee were fellow-servants, there could be no recovery. In other words, it is contended that appellant is not liable to appellee for the negligent act of one of appellee’s fellow-servants. This contention is not sound under a charge of negligence in the employment of an inefficient or unskilful fellow-servant. Henry Wrape Co. v. Barrentine, 138 Ark. 267.

The common-law rule as to responsibility for the negligent acts of fellow-servants has not been changed by statute so far as concerns individuals who are employers of servants, but the master is liable for the act of an unskilful fellow-servant where he has been negligent in the employment, on the theory that the negligence in employing such a servant is the proximate cause of the injury. It is on-that theory alone that appellee is entitled to recover in the present case, and the court was correct in refusing to tell the jury that recovery should be denied merely because the negligent employee was a fellow-servant.

The court gave an instruction, at appellee’s request, on the subject of assumed risk. It was proper to submit that issue, as the evidence warranted it. Appellant’s sole objection to that instruction was that there was no testimony on which it could !be based, so it is unnecessary to set out the instruction or to discuss its form. We are of the opinion that it was a question for the jury to determine whether or not appellee assumed the risk. If he continued in employment with the inexperienced fellow-servant, with knowledge of his inexperience and with an appreciation of the danger, he would be deemed to have assumed the risk and could not recover damages. That is the rule in a suit of this kind where the common-law liability is asserted. St. L. I. M. & S. R. Co. v. Ledford, 90 Ark. 543; Henry Wrape Co. v. Barrentine, supra.

Appellee’s own testimony shows that he knew the boy was working there that morning, and he knew of his extreme youth and inexperience, but we cannot say, as a matter of law, that he is bound to have appreciated the danger. It was not necessarily to be expected that the boy would carelessly drive a wagon in front of the runways or that he would be likely to . commit any negligent act which would result in injury to his fellow-employees. We think, therefore, that it was a question for the jury to determine whether or not the risk was assumed on account of appellee continuing in tlie work with a knowledge and appreciation of the danger.

Mnally, it is contended that the court erred in refusing to allow Dr. Oarrigan, a physician, to testify concerning the extent of appellee’s injury. It appears from the offered testimony of Dr. Oarrigan that appellee came to him for treatment or advice, and the court refused to permit the doctor to testify concerning appellee ’s injuries. We think that the court was correct in this ruling, for, under the facts as shown by the statement of Dr. Oarrigan, there was a confidential relationship between him and appellee as physician and patient, and, under the statutes of this State, the witness was incompetent. Counsel for appellant rely upon the case of Triangle Lumber Co. v. Acree, 112 Ark. 534, buit that case does not support the contention, for the reason that it was merely decided there that a physician might testify concerning the condition of a patient if his sources' of information were derived other than by treatment or consultation with the patient, and not during the existence of the relation of physician and patient.

There is no prejudicial error found in the record, and the judgment is affirmed.


source: Caselaw Access Project

author: McCulloch C. J.

license: Public Domain

text:
    Garner v. State.
    Opinion delivered November 27, 1922.
    1. Hawkers and peddlers — statutory definition.' — The definition of hawkers and peddlers in Crawford & Moses’ Dig., § 9793, is applicable both to the county tax imposed by § 9833, Id., and to the State tax imposed by § 9794, Id.

    2. Hawkers and peddlers — farm and produce sellers. — Crawford & Moses’ Dig., § 9841, providing that those engaged in the exchange of goods, wares, and merchandise for eggs, chickens, etc., may carry on such business without a license, exempts such persons from both the State and the county license.
    3. Hawkers and peddlers — right of farm and produce sellers to make change. — Crawford & Moses’ Dig., § 9841, providing that “farm and produce sellers” are exempt from requirement of license where exchanging goods for eggs, chickens, etc., hut allowing' the giving and receiving of money “in carrying on said business when necessary or when change cannot otherwise be made,” authorizing the making of money change only when the prices of commodities exchanged do not precisely coincide, but does not authorize a peddler without license to sell his merchandise for cash merely because he cannot exchange it.
    4. Criminal law — direction of verdict of guilty. — Where, in a prosecution of a misdemeanor the punishment for which was a fine only, the evidence of guilt was undisputed, the court properly directed a verdict of guilty with instructions to the jury to fix the amount of the fine.
    5. Hawkers and peddlers — penalty for failure to pay license tax. — Crawford & Moses’ Dig-., § 9798, prescribing a penalty for failure of hawkers or peddlers to pay a license tax, applies to the tax required of peddlers of clocks, sewing machines, lightning rods, steel stove ranges, pumps, buggies, etc., but not to peddlers of ordinary merchandise.
    fi. Hawkers and peddlers — penalty for failure to pay license tax. — Crawford & Moses’ Dig'., § 9835, prescribing a fine for failure to pay peddler’s license tax, applies to the failure to pay both the county and the State tax.
    Appeal from Little 'River Circuit Court; James 8. 81 eel. Judge;
    judgment modified.

      8teel, Johnson & 8haver, for appellant.

      J. 8. Utley, Attorney General, Elbert Godwin and TTm. T. TTammoeh, Assistants.
   McCulloch C. J.

Appellant was indicted and tried for violation of the statute (Crawford & Moses’ Digest, § 9833) which provides for the collection of “a county tax * * * the sum of twenty-five dollars on each and every hawker or peddler by land or water for the privilege of hawking* and peddling- goods, wares and merchandise in any county in this State, for the term of six months or less.” The trial court decided that appellant was guilty, under the undisputed evidence, and .directed the jury to fix his punishment at a fine of not less than two hundred dollars and not.more than five hundred dollars, and the jury fixed the minimum fine under that direction. The statute prescribing the punishment will be referred to later in this opinion.

There was a demurrer to the indictment, which the court overruled, and it is contended that the court erred in overruling the demurrer, likewise in directing a verdict of guilty and in prescribing the amount of the punishment.

The contention of appellant involves the construction of the whole of our statutes providing- for licenses for the privilege of hawking and peddling. The basis of the law on this subject begins with the general revenue act of March 31, 1883 (Acts of 1883, p. 518), and the above quotation is one of the subdivisions of section 6 of that act. Section 4 of the same statute (Crawford & Moses’ Digest, § 9794) provided for a State tax of twenty-five dollars “on each and every hawker or peddler, whether by land or water, for the privilege of hawking and- peddling goods, wares and merchandise. * * *” The same statute provided for a tax on the privilege of peddling-clocks, lightning-rods, stove ranges and sewing machines. This statute did not define the term “hawker or peddler” further than as expressed in the sections quoted above, but a section -of the Revised Statutes defined the term as those who “shall deal in the selling of goods, wares or merchandise other than the growth, produce or manufacture of this State, by going from place to place, either by land or water, to sell the same.’ Gantt’s Digest, § 4376.

The Legislature of 1885 enacted a statute repealing § 4376, Gantt’s Digest, and defining the term “hawking and peddling” as follows:

“Whoever shall engage in the business of •selling-goods, wares or merchandise of any description, other than articles grown, produced or manufactured by the seller himself, or by those in his employ, by going from house to house, or place to place, either by land or water, to -sell the same, is declared to be a peddler or hawker.” Acts 1885, p. 68; Crawford & Moses’ Digest, § 9793.

The definition prescribed by this statute was, of course, applicable to the provisions for license tax for both State and county purposes. It will be observed that the statute last quoted exempted from the operation of the license tax the business of selling “articles grown, produced or manufactured by the seller himself or by those in his employ.”

The Legislature of 3893 enacted another statute in substance defining “farm and produce peddlers” and exempting them from the payment of the license tax. That statute reads as follows:

“Whoever shall be engaged in the business of selling goods, wares or merchandise of any description -other than articles grown, produced or manufactured by such seller himself, or those for whom he is employed, and who shall take in exchange therefor eggs, chickens, hides, peltry, furs, fruits, vegetables or other articles usually grown, produced or manufactured on farms, shall be known and styled ‘farm and produce sellers,’ and shall be entitled'to carry on such business in this State without any tax or license therefor, and may give and receive money in carrying on said business when necessary or when change cannot otherwise be made.” Acts, of 1893, p. 164; Crawford & Moses’ Digest, § 9841.

The act of 3893, supra, was an amendment to the act of 3893. (p. 127), -and there was a misprint of the statute in the publication thereof by placing the word “for” between the word “or” and the word “those” in the seventh line of the printed Acts of 1893.

It was conceded in the trial below that appellant, in addition to exchanging merchandise for farm products, also sold for cash, or, as he expressed it, “sometimes received money in exchange for goods,” but it is contended that, for the reason that he was carrying on the business of exchanging merchandise for farm products, he came within the statutory definition of a “farm and produce peddler” and was exempt from the payment .of tax, even though he occasionally sold for cash. It is contended by the Attorney General,, on the other hand, that. the act of 1893, supra, only operates as an exemption from the payment of the State tax, and that it does not afford, exemption from the payment of county tax.

We do not think that either of these contentions is sound. This statute is not confined in its terms to the subject of taxation for State purposes, and whatever exemption is contained therein operates as against the imposition of a county tax as well as a State tax. It is an independent statute defining certain peddlers who are to be exempt from the payment of a license tax, and, as before stated, it is not limited in its operations so far as it concerns the character of the tax, whether for State purposes or county purposes. The exemption, in other words, applies as well to one character of tax as to the other.

The contention of appellant -is unsound for the reason that the exemption relates to the business of exchanging merchandise for farm products, etc., as mentioned in the statute, and does .not permit the sale of goods by peddlers without payment of the tax. It is true that the statute expressly provides that one carrying on the business as a farm and produce peddler “may give and receive money in carrying on said business when necessary, or when change cannot otherwise be made.” This language is not broad enough to manifest an intention to permit a peddler of the class named to sell his merchandise for cash merely because he could not exchange it. The word “necessary” used in the statute relates to the exchange of goods, and only authorizes the receipt of money in consummating an exchange, .such as making change of money where the prices of the commodities exchanged do not coincide precisely. The act of 1893, supra, is somewhat peculiar in its terms in excluding from its operation the exchange of “'articles grown, purchased or manufactured by such seller himself or those for whom he is-employed,” but we do not find it necessary to discuss that feature of the statute, for the reason that, according to the undisputed evidence in this case, appellant was selling merchandise as well as exchanging it, and his business, for that reason, did not fall within the definition of farm and produce peddling.

'Construing the statute in this way, the indictment properly charged an offense, and the court was.correct in overruling the demurrer, and was also correct in directing a verdict of guilt, the only punishment prescribed for the offense being the imposition of a fine.

This brings us to a discussion of the amount of the fine, and the Attorney General concedes that the court was in error in prescribing the amount of the punishment.

The statute imposing a fine of not less than two hundred dollars nor more than five hundred dollars (Crawford & Moses’ Digest, § 9835) applies only to the offense of failing to pay the license tax for peddling lightning-rods, steel stove ranges, clocks, pumps, buggies, carriages, or other vehicles. It does not prescribe a penalty for failing to pay the ordinary peddling license.

Crawford & Moses’ Digest, § 9798, which was a subdivision of § 4 of the act of 1883, supra, prescribes the penalty for violation of the statute requiring the payment of State and county license tax for peddling. This statute reads as follows:

“Any person- who shall engage in the business of hawking or peddling, or in peddling clocks, or as agent for the sale of sewing ■machines, stoves, ranges, or lightning-rods, without having paid the tax as provided in this act for said privilege, shall be guilty -of -a misdemeanor, and upon conviction'sh all be fined in double the amount of license he would be by the provisions of this act chargeable with.”

It is the only section in the act of'1883, supra, prescribing a penalty for failing to pay a license tax, and it necessarily applied to the tax for county ns -well as State purposes. According to that statute, the fine could only be for double the amount of the license, and the court should only have imposed a fine of fifty dollars, which is double the amount of the county tax which appellant is charged with failing to pay.

The judgment is therefore modified so as to reduce the punishment to a fine in that sum. It is- so ordered.


author: McCulloch, C. J.

text:
    Gibson v. Gibson.
    Opinion delivered November 27, 1922.
    1. Appeal and error — final decree in divorce suit. — Where the court in a -divorce suit dismissed the wife’s complaint for w-ant '-of equity and awarded the permanent custody of the children to the husband, the decree is a final one, from which an appeal will lie.
    2. Appeal and error — amendment of transcript by stipulation. —A stipulation of counsel bringing in additional matters of record and' stipulating that such matters, “together with the record -as certified by the clerk, shall constitute the entire record and contain -all the evidence introduced in the case in the trial -below” held to supply the omission of the clerk to • certify that the transcript was complete.
    3. Divorce — custody of children. — 'Where there was no attack on the mother’s moral character, the custody of the children, a boy four years old and a girl two years old, should not be transferred from the mother to the father where the- only reason assign-ed for such change was that the father was better able financially to provide for them, and that the wife’s father, with whom -she lived, had been convicted of violating the Federal draft laws and did not entertain sound principles concerning the form of -our government; since a girl -of that -age needs a mother’s care and there was no reason for separating the children.
    4. Divorce — -permitting children to be taken out of jurisdiction. — The court, in -awarding custody of children in a divorce decree may permit them to be taken out of the court’s jurisdiction without requiring a 'bond, the necessity for such bond being a matters for the court’s determination in each case.
    Appeal from .Logan Chancery Court, -Southern District; J. V. Bourlancl, Chancellor;
    reversed.

      J. H. Carmichael, for appellant.
    Considering the tender ages -of the children, their custody should be awarded to the mother. 64 Ark. 518; 118 Ark. 591. Act 257 Acts 1921, p. 317, puts the 1ms-band .and wife on an equality as to the custody of children. Since the mother is shown to be qualified to care for them, and because of their need for a mother’s care, appellant should be awarded the custody. It was error to permit appellee to remove the children beyond the borders of the State without giving proper bond. See 124 Ark. 584.

      Grover McCormick, for appellee.
    The question as to the award of the custody of the children is a matter within the discretion of the court, taking all the circumstances into consideration, and such finding will not be disturbed unless there has been an abuse of this discretion. 97 S. W. (Ark.) 49; 78 Ark. 193; 37 Ark. 27; 95 Ark. 355. The case in 124 Ark. 584. cited by appellant, furnishes the authority for the very thing the court did in this ease, when he required no bond of the appellee for the return of the children to Arkansas. Such a bond would be expensive and unreasonable to require.
   McCulloch, C. J.

Appellant, Beulah Gibson, and appellee, Lucius Gibson, intermarried and resided in the city of Memphis, Tennessee, and later appellant removed to Booneville, Arkansas, where her parents resided, and instituted an action against appellee for divorce, alleging cruel treatment as grounds for divorce.

There were two children, the issue of said marriage, a boy and a girl, aged, respectively, at that time, three years .and one year. Appellant brought the children with her to Arkansas, and since that time they have been residing with her parents at Booneville. In the complaint she.asked for custody of the children.

Appellee answered the complaint, denying the'allegations with respect to cruel treatment, and he filed a cross-complaint asking that a decree of divorce be granted on account of misconduct on appellant’s part in the way of cruel treatment towards him. Appellee also asked for the custody of the children.

The court made temporary orders for the custody of the children during the pendency of the action,. and on the final hearing the court dismissed appellant’s complaint for want of equity, and awarded the permanent custody of the children to appellee for nine months in each year, beginning -September first of each year and ending in the month of the succeeding- June, with the closing of -the schools in Memphis, Tennessee. The decree provided that during the interval in the- summertime appellant should temporarily have the custody of the children. The decree 'contained an express provision permitting appellee to remove the children beyond the jurisdiction of the court and to take them to Memphis.

Appellant prosecuted an appeal to this court, and filed a transcript, which was certified by the clerk of the court to be “a true, -correct copy -of the filings and proceedings which were filed in my office,” etc. There was subsequently filed a stipulation -of counsel bringing- in additional matters of record, and further stipulating that such matters “together with the record as certified by the clerk, shall -constitute the entire record -and contain all the evidence introduced in the 'case in the trial below.” This stipulation was signed by counsel on both sides.

When the -case was reached on the docket of this court for submission, counsel for appellee filed a motion to dismiss the appeal on the ground that the decree was not a final one, and also asked leave to withdraw his stipulation concerning the record in the case.

The decree below awarded the custody of the children, and was a final one, from which an appeal would properly lie. Decrees awarding custody -of -children are always subject to change by the court, and the court retains jurisdiction of the subject-matter for that purpose, but this- does not affect the finality of the decree -so far as relates to the right of appeal.

If it be conceded that the clerk’s certificate is an-insufficient showing of a complete transcript of the record, the omission is supplied by the stipulation of counsel, and the motion for leave to withdraw the stipulation does not state sufficient grounds therefor. It does not give sufficient reasons for such withdrawal, nor .does it show wherein the record is incomplete or incorrect.

Coming to the discussion of the merits of the case, we do not think that the testimony warranted the court in taking the children from the custody of the mother and turning them over to the father. There is no attack made on appellant’s moral character. The only reason urged why preference should be given to appellee, the father of the children, is that he is better able financially 'to provide for the children, that appellant is not financially able to provide for the children, and that the character of her father, with whom she lives, is not good. An attack is made upon him by showing that he has been convicted of violation of the Federal draft laws during the period of the war, and that he does not entertain sound principles concerning the form of our government. Counsel in their argument here expressly disclaim any intention of reflecting upon the character of appellant herself.

These children are now of the ages, respectively, between four and five years and between two and three years, the younger one of the two being a girl. At this age children should have a mother’s care and attention, and the proof does not justify a decree depriving them of that care and transferring their custody to the father. The reason for this conclusion is given in many decisions of this court, and it is unnecessary now to repeat. Beene v. Beene, 64 Ark. 518; Meffert v. Meffert, 118 Ark. 582. These established principles are peculiarly applicable to the matter of the-custody of the younger child, who is a girl, and, even if the boy was -old enough to justify removal from his mother, there is no good reason shown why the children should be separated.

Counsel for appellant also insist that the court erred in permitting the children to be taken out of the jurisdiction of the court at all without a good bond. We decided, however, in Weatherton v. Taylor, 124 Ark. 579, that it was within the power of the courts of this State, in settling controversies concerning the custody of children, to permit a child to he removed without the limits of the State, in that case a bond having been given, but we did not hold that a bond was essential; that is a matter for the determination of the court upon the facts of each case, whether or not there is reason to believe that the orders of the court will he obeyed and the child returned when an order to that effect is made.

The decree of the chancellor will he reversed as to the award of the custody of the children, and the cause remanded, with directions to enter a decree continuing the custody with appellant, the mother of the children, giving the father an opportunity to visit them, or to have them visit him at his home in Memphis, at reasonable intervals, upon such terms and conditions as the court shall prescribe. We will not undertake to give specific directions with respect to those terms, hut will leave that to the chancellor. It is so ordered.


author: Wood, J.

text:
    Flake v. State.
    Opinion delivered November 27, 1922.
    1. Criminal law — defenses under plea of not guilty. — Under the general plea of not guilty, the -accused may avail himself of any defenses which the testimony tends to establish.
    2. Homicide — defenses.—In a prosecution for murder, in which the defendant entered a plea of not guilty, and in which there was testimony tending to establish the defenses of insanity and self-defense, the defendant was entitled to have both defenses submitted to -the jury.
    3. Homicide — self-defense available to insane person. — In a murder prosecution an insane person may avail himself of the plea of self-defense if the testimony tends to prove that he acted in self-defense.
    4. Homicide — declarations 9F accused — issue of self-defense.— In a trial for murder, in which the statement of defendant that he killed deceased in self-defense was admitted on the issue of whether the defendant billed the deceased, the defendant was entitled to have the jury consider the declarations on the issue of self-defense, and refusal to submit that issue was error.
    5. Homicide — instruction as to manslaughter. — Where the court admitted a statement by defendant that he hit the deceased because deceased hit him with an ax, and that he killed deceased in self-defense, refusal to submit the issue of voluntary manslaughter was error.
    6. Criminal law — confession—instruction.—In a murder trial in which a confession by defendant was introduced, it was error to refuse to instruct the jury to disregard such confession if, by reason of his mental condition or drugs he had taken, defendant did not know what he was saying at the time he made the confession, where there was testimony upon which to predicate such instruction.
    Appeal from Faulkner Circuit Court; George W. Clark, Judge;
    reversed.

      R. W. Robins and R. G. Bruce, for appellant.

      J. 8. Utley, Attorney General, Elbert Godivin and Wm. T. Hammock, for appellee.
   Wood, J.

The appellant was indicted for the crime of murder in the first degree in the killing of Wallace Wilson. • Appellant entered his plea of not guilty, and at the trial testimony was adduced by the State which warranted the jury in finding that the appellant killed Wallace Wilson. There was testimony to the effect that on Thursday morning, October 6, 1921, appellant and Wilson went to a woods-lot near appellant’s home; that in an hour or two appellant returned and told his sister, the wife of Wilson, that Wilson had decided to leave the country. On the following Saturday the appellant attempted to commit suicide by taking poison. He informed his relatives that he had taken the poison and told them that he wanted to die, and resisted their efforts to give him an emetic. They finally forced him to take it and thus saved his life. Appellant was dangerously ill from the effects of the poison for about a week.

One of the witnesses testified that he was at appellant’s house after he took the poison, and appellant was talking about wanting to die, and the doctors were giving him an emetic. After appellant had taken the poison lie stated that he had killed Wallace'Wilson with an ax; that Wilson had attacked him with an ax, and he knocked Wilson’s lick off and struck Wilson a hard blow. He stated that he did it in self-defense.

■It was first thought by those in attendance upon him that these declarations were the result of delirium, but in making a search for the vessel that appellant had taken the poison from, a note was found which the proof tended to 'show was in appellant’s hand-writing, and was as follows: “.You will find me dead. I taken Edna’s load, and it is too heavy for me to bear. You will find him on the island. Don’t bury me close to him. God save mother and the kids.” A search was made for the body of Wilson, and a body was found which was sufficiently identified as that of Wilson.

It could serve no useful purpose to set out in.detail and discuss at length the testimony on the issue as to whether or not appellant was insane at the time of the alleged killing of Wilson. Suffice it to say there was testimony which warranted the count in submitting to the jury the issue as to whether or not appellant was insane at the time of the alleged killing, and this issue was correctly submitted under instructions which announced the law in conformity with the decisions of this court in Bell v. State, 120 Ark. 530; Hankins v. State, 133 Ark. 38; Kelly v. State, 146 Ark. 509; Woodall v. State, 149 Ark. 33, and Sease v. State, 155 Ark. 130.

Under the general plea of not guilty the appellant had the right to avail himself of any defenses which the testimony adduced in the cause tended to establish. As we have said, there was testimony on behalf of the appellant which tended to prove that the appellant was insane at the time of the killing. There was also testimony that would warrant a finding that he was not insane, which made the issue of his insanity one for the jury. There was testimony on behalf of'the appellant also which tended to prove that he killed Wilson in self-defense. The appellant had the right to go before the jury on the issue as to whether or not he was insane at the time of the killing and also whether or not the killing was done in self-defense. These positions in a criminal case, under the plea of not guilty, are not inconsistent in the sense that, if the appellant avails himself of one, he cannot avail himself of the other.

The principle is decided in Gibson v. State, 135 Ark. 520-526, where we said: “The defendant did not admit the killing, but, upon the contrary, denied it, and it appears that the trial court took the view that, under those circumstances, there could be no question of self-defense. There appear to be cases which so hold, but in nearly, or quite, all of them there was an entire lack of evidence that the killing was justifiable. The proper rule appears to be that where there is evidence that would support a finding of self-defense, the instruction should cover that feature of the case, notwithstanding the defendant’s testimony that he did not do the killing.”

As we view the testimony of this record, it was an issue for the jury to determine whether or not appellant was insane at the time of the killing, or whether or not, sane or insane, he killed Wilson in self-defense. Even an insane man may avail himself of the plea of self-defense if the testimony tended to prove that he acted in self-defense. Now the testimony of the State tending to prove the declarations of the appellant to the effect that he killed Wilson, and did it in self-defense, were in the nature of confessions. The court permitted these confessions to go to the jury, and under the testimony we are convinced that it was an issue for the jury as to whether the confessions emanated from a conscious mind, and therefore whether they were freely and voluntarily made. The jury might have so found, and doubtless did find that the confessions were free and voluntary in determining that appellant killed Wilson. Having permitted the confessions to be submitted to the jury in determining whether or not the appellant killed Wilson, the court should have allowed the jury also to consider them in determining whether or not the killing was done in self-defense. Fraser v. State, 42 Ark. 70; Williams v. State, 69 Ark. 599.

. The court therefore erred in refusing appellant’s prayer for instruction on the issue of self-defense, and also in refusing appellant’s prayer for instruction on voluntary manslaughter. By refusing these prayers th'e court virtually eliminated that part of appellant’s confession in which he stated that he hit Wilson, and hit him hard, because Wilson struck him with an ax, and that he killed him in self-defense.

The appellant also asked the court to give the following instruction: “XI. The court instructs the jury that if you find from the evidence that at the time the defendant made the confession as to the killing he was, by reason of his mental condition or drugs he had taken, not of sound mind, or in such a state of mind as to not know what he was doing or saying, then you should disregard said confession entirely and not consider it as evidence in this case.”

As we have shown, although the court admitted the testimony of appellant’s confession to go to the jury, it was still proper for the court to submit to the jury the •issue as to whether or not the appellant made the confession freely and voluntarily, which of course he could not have done if he were so crazed from medicine or disease that he was unable to realize what he was doing and saying. There was testimony upon which to predicate prayer for instruction No. 11, and the court erred-in not granting it.

Other errors are assigned, but the above are the only reversible errors we find in the record. For these the judgment must be reversed and the cause remanded for a new trial.


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    Cranford v. State.
    Opinion delivered November 27, 1922.
    1. Homicide — burden of proof. — In a prosecution of one jointly indicted with another for murder the burden was on the State to prove that defendant was a particeps crimiruis in the killing.
    2. Criminal law — province op jury. — In a prosecution for murder, in which defendant was jointly indicted with another and there was evidence by defendant that he was with his co-defendant at the time of the killing, and that' the codefendant did not kill deceased, and deceased’s dying declaration implicated codefendant in the killing, it was within the jury’s province to believe the dying declarations and to accept so much of defendant’s statement as established his presence with his co-defendant.
    3. Criminal law — argumentative instructions. — It was proper to refuse instructions argumentative in form.
    4. Criminal law — repetition of instructions. — It was not error to refuse correct instructions when fully covered by instructions given.
    5. Criminal law — presumption of innocence. — One accused of crime is presumed to be innocent, and this presumption attends him throughout the trial as evidence in his favor, and entitles him to an acquittal unless the State adduces evidence which convinces the jury beyond a reasonable doubt that defendant is guilty.
    6. Criminal law — instruction as to reasonable douet. — In a prosecution for murder, an instruction that “reasonable doubt is not any possible or imaginary doubt hatched up for the purpose of an acquittal, because everything that depends upon human testimony is susceptible of some possible doubt, to be convinced beyond a reasonable doubt is that state of the case which, after entire consideration of the testimony, leaves the minds of the jurors in that condition that they feel an abiding conviction to amoral certainty of the truth of the charge,” held correct.
    7. Criminal law — presumption of innocence — instructions.— Correct instructions as to the burden of proof and reasonable doubt give the accused the benefit of the presumption of innocence.
    Appeal from Newton Circuit Court; J. M. SMnn, Judge;
    affirmed.

      E. G. Mitchell, for appellant.

      J. S. Utley, Attorney General, Elbert Godwin and Wm. T. Hammock, Assistants, for appellee.
   Wood, J.

The appellant, John Cranford, and Charlie Burns were jointly indicted b3r the grand jury of Newton Corner for the crime of -murder in the first degree in the killing of one Lige Roberts. Burns was tried separately at a former term of the court and was convicted of murder in the first degree and sentenced to imprisonment for life in the State Penitentiary. He appealed to this court, and the judgment of the trial court was affirmed. Burns v. State, 145 Ark. 1. The facts and circumstances under which the killing occurred are fully set forth in that opinion, -and it could serve no useful purpose to reiterate them here. Burns’ connection with the killing was proved b3T the djdng declarations of the deceased as follows: “I heal'd some one say, ‘Now,’ and then a gun fired, and Charlie Burns -said ‘G- d--him, I got him’.” The deceased did not recognize the voice of the one who said “now,” but his dying declaration shows that another was present. It was the theory of the State in the trial of Burns, and also its theory in the trial of appellant, that the appellant and Burns had formed a conspirac}7' to kill Roberts. The facts upon which the State relied to prove the 'conspiracy are substantially .the same in the present case as they were in the case of Burns v. State, supra. The rulings of the court upon the objections to the admission of the testimony introduced by the -State to-prove the conspiracy in that case are controlling on the objections made to the introduction of testimony to prove the conspiracy in this case.

One of the principal grounds urged for reversal b3r learned counsel for appellant in his oral argument before the court was that there was no testimony whatever on the part of the State tending to connect the appellant with the commission of the crime. The burden was upon the State to prove that appellant was a particeps criminis in the killing of Roberts. This, it must be conceded, the State failed to do by the dying declarations of Roberts or by any other direct evidence. The missing link in the dying declarations which fails to connect the appellant with' Burns in the killing of Roberts, it occurs to us, has been supplied by other circumstances and the testimony of the appellant himself. In the dying declarations of the deceased he further stated, “They aimed to kill me. They didn’t think I would be able to come'back to the house and tell who done it.’ This tends to prove that there was more than one present when the shooting occurred. The deceased further said that he saw Charlie Burns and John Cranford on the porch at Sol Burns’ house that evening before the' shooting occurred that night.

Mrs. Grace Estepp, a witness for the State, testified that John Cranford and Charlie Burns were at her home on the afternoon before Roberts was killed that night. They had a gun with them on that occasion. They left her place, going toward the Cranford home.

Denver Cowan, a witness for the State, testified that he was at the Cranford home the night Lige Roberts was killed, and that he saw John Cranford and Charlie Burns together at the Cranford home on that occasion.

The appellant himself testified that he was on the porch at Sol Burns’ home, with Charlie Burns, at the time Lige Roberts passed in the afternoon preceding the night of the killing of Roberts. He was with Charlie Burns in the Cranford home on Saturday night until about one-thirtv o’clock Sunday morning, after which the appellant, Chester Burns, and others stayed with Charlie Burns until about sunup. In fact, the testimony of the appellant himself shows that he was in the immediate presence of Charlie Burns from early Saturday morning until Sunday morning at sunup, and he testified that he knew that Charlie Burns did not kill Lige Roberts because he was with Burns all the time, and that if Burns did the killing witness was with him..

Now the dying declarations of the deceased were sufficient to warrant the jury in finding that Burns killed Lige Roberts, and these declarations were also sufficient to show that another was present, and since appellant himself testified that he was with Charlie Burns all the time during the night Roberts was killed, and knew that Burns did hot kill him, it was within the province of the jury to believe, from Roberts’ dying declarations, that Burns killed Roberts, and to accept appellant’s statement that if Burns did kill Roberts he was with him, and to disbelieve him when he said that Burns did not kill Roberts.

The jury were the sole judges of the credibility of the witnesses and of the weight to be given their testimony, They had a right to say that appellant was swearing falsely when he testified that Burns was not present and did not kill Roberts on Saturday night, but that appellant was swearing the truth when he stated that he was with Burns all the time during the night Roberts was killed. Hence the jury had the right to conclude that appellant was present when Roberts was killed, and that he participated in the killing.

The appellant presented eleven separate prayers for instructions, which the court refused. Some of them were argumentative in form, and were therefore properly refused by the court. Such of these as were correct declarations of -law were fully covered by instructions which the court gave. Counsel for appellant, in his oral argument, especially stressed as error the refusal of the court to give the prayer for instruction on the presumption of innocence. That prayer is as follows:

“11: The defendant is presumed to be innocent, and this presumption is not to be treated as an idle declaration of law. It clings to the defendant throughout the trial and within itself must cause you, under your oaths, to acquit the defendant and return a verdict of ‘not guilty’ unless overturned by proof sufficient, by its probative force, to convince you of his guilt beyond all reasonable doubt.”

The court instructed the jury, in substance, that before they could convict the defendant they would have to believe beyond a reasonable doubt that lie killed Roberts, as charged in the indictment; that, if they had a reasonable doubt of his guilt, it was their duty to acquit him; that they must give the defendant the benefit of every reasonable doubt. The court then defined “reasonable doubt” as follows: “Reasonable doubt is not any possible or imaginary doubt hatched up for the purpose of an acquittal, because everything that depends upon human testimony is susceptible of some possible doubt. To be convinced beyond a reasonable doubt is that state of the case which, after entire consideration of the testimony, leaves the minds of the jurors in that condition that they feel an ¡abiding conviction to a moral certainty of the truth of the ¡charge.”

The court further instructed the jury: “I instruct you that the indictment in this case is no evidence of defendant’s guilt, and you will not consider it as evidence in the case, as it is only the means by which the defendant is brought into court to answer the charge against him.”

The defendant is presumed to be innocent, and this presumption attends him throughout the trial as evidence in his favor, and entitles him to an acquittal unless the State ¡adduces evidence which convinces the jury, beyond a reasonable doubt, that the defendant is guilty of the crime charged. The above plain declaration of law needs no wordy amplification to simplify it. No rule of law correctly expressed to which the defendant is entitled is to be treated as an idle declaration. That goes without saying. A rule of law so important to the accused as the presumption of innocence argues its own weight and significance to the jury. When the defendant undertakes to enlarge upon it by asking the court to tell the jury that “this presumption is not to be treated as an idle declaration of law * * * and within itself must cause you under your oaths to acquit,” etc., the instruction assumes an argumentative form.’ By such form the accused seeks to have the court put undue emphasis upon the instruction on the presumption of innocence, and give it primacy over other instructions. At least it occurs to us that such might be the dangerous implication. For instance, might not the jury say: “The court tells us in an instruction that the defendant is presumed to be innocent, and this presumption is not to be treated as an-idle declaration .of law. What about other instructions declaring rules for our guidance? Does the court mean to imply that they are idle declarations?” All of the instructions of the court are of equal importance, and, as we have said, none of them can be considered as idle declarations. The instruction being argumentative in form, it was not prejudicial error to refuse it. Nordin v. State, 143 Ark. 364; Bolling v. State, 54 Ark. 602.

Furthermore, we have set forth the 'instructions which the court gave on reasonable doubt, and the one to the effect that the indictment was only an accusation and not evidence against the accused. These instructions clearly show that the burden was put upon the State to prove the crime charged beyond a reasonable doubt, and reasonable doubt was correctly defined. In Monk v. State, 130 Ark. 364, we held that where the trial court fully and correctly instructed the jury on the subject of reasonable doubt, and told the jury to acquit the defendant if a reasonable doubt was entertained as to his guilt, it was not prejudicial error to refuse an instruction on the presump tion of innocence. Our holding in the Monk ease, supra, is grounded upon the theory that the defendant is given the benefit of the presumption of innocence when the jury is told that he cannot be convicted unless the testimony convinces them- beyond a reasonable doubt of his guilt. The rule of law above • announced as to the presumption of innocence is firmly imbedded in the criminal jurisprudence of all most highly civilized nations. As is said by Associate Judge White in Coffin v. U. S., 156 U. S. 432-453: “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its- enforcement lies at the foundation of the administration of our criminal law.” The right to have this rule of law enforced is sacrosanct to every defendant accused of crime, and it cannot he denied him. Therefore, it is never error to grant the prayer of a defendant, properly framed, for an instruction applying the rule of law on the presumption of innocence, as above set forth. But, on the contrary, it is always prejudicial error to refuse it, unless the court has given other instructions on the burden of proof and reasonable doubt which are its equivalent. "We thoroughly concur in the learned and exhaustive-opinion of Judge White in Coffin v. U. S., supra, which is indeed a classic pronouncement, except wherein he holds that a correct instruction on the burden of proof and reasonable doubt is not the equivalent of an instruction on the presumption of innocence. Instructions on the burden of proof and reasonable doubt, when couched in correct language, in legal effect, do give the accused the benefit of the presumption of innocence, as held by us in Monk v. State, supra, and cases there cited. To tell the jury that the burden of proof in the whole case is on the State to prove the defendant’s guilt beyond a reasonable doubt, is but tantamount to telling them that the defendant, throughout the trial, is presumed to be innocent unless the State has proved him to be guilty beyond a reasonable doubt. In other words, such an instruction, in legal effect, clothes the defendant with the presumption of innocence which inures to his benefit as evidence in the trial and entitles him to an acquittal, unless it is overcome by evidence which convinces the jury beyond a reasonable doubt of his guilt.

The instructions on the burden of proof and reason-' able doubt are accurately expressed. Finding no prejudicial error in the record, let the judgment be affirmed.


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    Edgar Lumber Company v. Denton.
    Opinion delivered November 27, 1922.
    1. Master and servant — question for jury.- — Where plaintiff, a laborer engaged in flooring a tramway for defendant, was injured by stepping on a short board which a fellow servant had laid on the tramway without fastening it, refusal to direct a verdict for defendant on the ground of assumed risk was not error if the jury might have found that the dangerous situation created by the fellow servant, was not so obvious that plaintiff should, in the exercise -of ordinary care, have discovered it.
    2. Master and servant — instruction ignoring defense of assumed risk. — In an action against a lumber company for injuries caused -by a fellow servant negligently placing a short board on a tramway without fastening it, -an instruction that defendant was liable for injuries to plaintiff caused by a dangerous situation created by the negligence or wilfu-l act of a fellow servant, provided defendant had control of the situation or an opportunity to control the negligent servant, was erroneous as ignoring the defense of assumed risk.
    3. Master and servant — instruction assuming facts in issue.— In an actio-n against -a lumber company for injuries of an employee caused by the negligence of a fellow servant, an instruction that plaintiff does not -assume the risks of dangers that -arise from the negligence of defendant, and that defendant is responsible to plaintiff, who, while .exercising due care for his own safety, is injured by the negligent act of a fellow servant, and plaintiff had the right to presume that his fellow servant would exercise due care, and did not assume the risk caused by the negligence of the fellow servant, was erroneous as assuming-facts in issue, and excluding the defense of assumed risk of obvious danger.
    4. Master and servant — assumed risk — -instruction.—In an action against -a lumber company f-or injuries caused by a fellow servant’s negligence, an instruction that there is no assumed risk as to the negligence of the fellow servant unless plaintiff realized the danger, and then exposed himself to it, was erroneous; the correct rule being that plaintjff assumed the risk of such dangers as were so -obvious that he could -and should have discovered same -in the exercise of ordinary care.
    Appeal from Union Circuit Court; G. W. Smith, Judge;
    reversed.

      T. D. Wynne and J. K. Mahony, for appellant.

      The court erred in not directing a verdict for the defendant. A servant assumes all the ordinary risks and dangers of his employment. Francis v. Arhadelphia Milling Go., 153 Ark. 236. A master is not bound to warn and instruct his servant .as to dangers which are patent and obvious. 107 Ark. 528; 82 Ark. 534; 58 Ark. 217; 97 Ark. 486; 90 Ark. 387; 89 Ark. 50; 77 Ark. 367; 65 Ark. 98. Where the duty devolves upon the servant to make-his working place ¡safe, the master is not liable. 98 Ark. 145; 76 Ark. 69; 89 Ark. 50; 97 Ark. 486; 88 Ark. 292. It is error to give conflicting instructions. 83 Ark. 202; 110 Ark. 198. Instruction No. 4 was abstract and misleading. 96 Ark. 614. It was a question for the jury. 87 Ark. 321; 103 Ark. 414; 104 Ark. 236; 113 Ark. 160; 14 Ark. 520; 24 Ark. 540* 33 Ark. 350; 89 Ark. 522; 14 Ark. 286; 93 Ark. 29; 14 11. C. L. 738. Instructions should not be based upon rejected testimony. 23 Ark. 101; 21 Ark. 271; 36 Ark. 641. The acts of a fellow servant must be measured by that of a reasonably prudent man under like circumstances. 103 Ark. 512.

      Jno. E. Harris and Pat McNalley, for appellee.
    There was no error in refusing to direct a verdict for the defendant. 93 Ark. 88. In directing a verdict for either party the rule is to take that view of the evidence that is most favorable to the party against whom the verdict was directed; and where there is any evidence tending to establish an issue in favor of the party against whom the verdict is directed, it is error to take the case from the jury. 91 Ark. 343; 120 Ark: 208; 103 Ark. 401; 101 Ark. 22; 96 Ark. 394. Instruction No. 3 requested by the plaintiff was a. correct declaration of the law and should have been given. 105 Ark. 485; 152 Ark. 158. Instruction No. 4 was also correct and should have been given. 93 Ark: 88; 105 Ark. 485. Instruction No. 4-1/, should have been given, as it clearly covers the question of assumed risk. 93 Ark. 88: 105 Ark. 533. It is- not the duty of trial courts in civil eases to give instructions upon any question unless the instructions covering the questions are tendered and requested to be given. Randall’s Instructions to Juries, vol. 1,-sec. 466, p. 465; 78 Ark. 355; 93 Ark. 757. This court will not reverse' for an instruction in bad form only, unless the trial court is given an opportunity to correct it. 109 Ark. 231; 113 Ark. 1. And the court refused to do so. 110 Ark. 117; 115 Ark. 555; 192 S. W. 174; 116 Ark. 179; 93 Ark. 209; 105 Ark. 575. The failure to reduce the instructions as to writing was not, under the facts in this case, error. 194 S. W. 34.
   Wood, J.

This is an action by the appellee against the appellant to recover damages for personal injuries. The appellee, in his complaint, alleg-ed that he was in the employ of the appellant as a laborer at its lumber plant at Wesson, Arkansas; that he and a colaboren were directed to erect a wooden tramway upon which to convey lumber; that the tramway was about four feet high from the ground; that the appellee and his co-laborer were engaged in laying a floor on trestle work; that the floor was being constructed out of lumber of various lengths, ranging from two to eight feet; that a few minutes before noon the appellee left his co-laborer and other workmen at work upon the tramway; that in his absence other employees had placed a short board on the tramway floor and had negligently failed to secure and nail said board;. that upon his return he assumed that no short boards had been used during his absence, and, without any warning given him of the unfastened board, the appellee, in the course of his duty and work, stepped upon the end of one of the short unsecured boards, and it rose quickly, throwing him to the ground and severely injuring him.

The appellant, in its answer, specifically denied the allegations of the complaint and set up the defense of contributory negligence and assumed risk on the part of the appellee. It also alleged that the injury was due to an accident. The appellee testified that he had been in the employ of the appellant for about a year as a common laborer; that at the time the injury occurred he was working with one Glenn, another employee, in building a new tram about four and a-lialf feet high. It was to be used for the purpose of conveying lumber from the mill to the yard. The dimensions of the flooring of the tram were 2x6 and 2 x 12. The tram was sixteen feet wide. They were using 30, 40 and 50-penny nails — good sized nails. Some of them liad small heads and some between one-half and three quarters of an inch. When the appellee left for dinner, they had used the nails down to twelve or fifteen pounds, and he said he would bring some bask so that they would not run out. Appellee left nails there in the buggy where they carried their tools and nails. The appellee was working under the directions of the straw-boss, one Griffin, and one Lacefield was foreman. They were instructed to build a flooring* 16 .feet wide, using lumber two inches thick and sixteen feet long when they started. They had used short pieces occasion - ally, a day or so when the appellant got hurt. The tram at that time was between 150 and 200 feet long. They were using the short boards at the direction of Griffin. The custom was to get off on the ground and line up one side of the tram, nail them, and saw the other end off. This was what the appellee was doing when he fell. The board that caused his injury was a 2x6” and between four and five feet long. Appellee had been working on the tram until about ten minutes before 12 o’clock, when he left Glenn, his co-worker, still working on the tram. Appellee returned in the afternoon at the usual time, and Glenn was not then working where the appellee left- him. Appellee went back to work on the tram when Glenn was not present. Appellee described how his injury occurred as follows: “Beginning work on the tram, I got some nails, and I saw that the boards were over the line, so I lined them up. I got on the ground and lined up ihe boards, and this was what I was doing when I fell. Glenn was not present then. Griffin, Bass and John Meriwether were on the opposite side of the tram. They picked me up and set me on the edge of the tram, then carried me on a truck to the doctor’s office, and then home.” In his further testimony appellee described the nature of his injuries, which it is unnecessary, in the view we have of the record, to here set forth.

Will Glenn testified that he was working for the appellant the day the appellee was injured, and his testimony as to the nature of the work in which they were engaged was substantially the same as that of the appellee. Among other things he said: .“The boards were placed on both sides of the place where Denton got hurt; after the boards were placed on the bench we would line it up by taking a line and line the boards bn the front end and then push the boards in line; the long boards were not nailed, but we were nailing the splices all right; the decking boards were all long ones, but it lacked that much of being finished, so I spliced it; it (the board) was spliced on the third stringer; I cut it off and put it in there after-wards ; it was about 4% feet long. The boards on both sides of the short piece were long boards and not nailed; the weight of the board was more than the weight of a man, and there was no danger in not nailing the long boards. I did not regard it as necessary to nail the long boards, but we did the short ones.”

The witness further testified that when appellee left for dinner the witness remained. They had been nailing the splices all right. Appellee took the nail-box, and stated he would bring more nails back with him. Witness did not see whether there were any nails. Witness placed the spliced board in the tram and had it ready to line up after dinner, and thought about the appellee saying he would bring the nails after dinner, and left himself for dinner without nailing the decking on either side of the spliced board. They were loose. Anyone could have seen that the piece of board was a short one — that it was not a long board, but was spliced. It looked to witness like any one could have seen by walking over it. Witness judged that the board was six feet long and was resting on two sleepers. There were nine stringers to the bench, and it was spliced on the third stringer.

The above testimony was - undisputed by the testimony of witnesses for the appellant. The straw-boss testified that they used full length lumber and some short length. £‘Usually we used full length lumber, but we were then using some short boards in building the tram.”

The cause was sent to the jury, under instructions to which we will refer later. The verdict was in favor of the appellee. Judgment was entered in his favor, from which is this appeal.

1. The appellant asked the court to instruct the jury to return a verdict in its favor, and it urges the refusal of the court to so instruct the jury as its first ground for reversal.

Counsel for appellant contend that the undisputed evidence as above set forth shows that the appellee assumed the risk and that the court should have so declared as a matter of law, and cites the cases of Francis v. Arkadelphia Milling Co., 153 Ark. 236; Buena Vista Veneer Co. v. Broadbent, 107 Ark. 528; Chicago, R. I. & P. Ry. Co. v. Grubbs, 97 Ark. 406; St. Louis, I. M. & S. Ry. v. Going, 90 Ark. 387. But these cases are .readily differentiated from the case in hand by the facts. Each case must depend upon its own peculiar facts. Giving -the evidence its strongest probative force in favor of the appellee, which is the rule in testing the refusal of the trial court to direct a verdict in favor of appellant, the jury might have concluded that Glenn, the fellow-servant, during the absence of appellee, contrary to the custom which prevailed at the mill plant, had laid short boards on the tramway and failed to nail the same; that by so doing a misleading condition had been created which the appellee had, no reason to anticipate existed, and therefore that appellee was not under any duty to exercise extra care to discover. By thus departing from the custom and laying these short boards without nailing the same, and thus creating ¡a dangerous condition without any warning to appellee, the jury had the right to conclude that Glenn was negligent and that the appellee, by the exercise of ordinary care for Ms own protection in the performance of his work in the usual way and according to the custom, would not have discovered the extra hazard which he faced, or at least was not bound to do so, and therefore that he did not assume the risk. The jury might have found that the dangerous situation thus created by Glenn was not such an obvious one that the appellee, on returning to his work, in the exercise of ordinary prudence for his own protection would or should have discovered. In St. L. S. W. R. Co. v. Burdg, 93 Ark. 88-92, we held that, under the statute (Acts 1907, p. 162), the negligent act of the fellow-servant is, as far as the rights of the injured servant are concerned, the same as if it was the negligent act of the master. Citing cases. And we further held as follows : “That b3r virtue of that act the master is made responsible to a servant who, while exercising due care for his own safety, is injured by the negligent act of a fellow-servant, the same as if the negligence was that of the master. The servant has therefore the right to presume that his fellow-servant will exercise due care and diligence ; and he does not assume the risk of danger or peril caused by the negligence of the fellow-servant.” That principle controls under the peculiar facts of this record. See also Aluminum Co. of N. A. v. Ramsey, 89 Ark. 522.

2. Learned counsel for appellant further contend that the issues joined were not sent to the jury under correct instructions, and in this contention we find that counsel are correct. At the instance of the appellee, the court, among other instructions, gave the following:

“No. 3. You are further instructed that defendant is liable to plaintiff for injuries to him due or caused by a dangerous condition created b3^ the negligence or wilful act of a fellow-servant, provided the defendant has control of the situation or an opportunity to control the negligent servant.
“No. 4. You are further instructed that the plaintiff, F. E. Denton, in entering the employ of the defendant master, does not assume the risks of the dangers or perils that arise from or which are consequent upon the negligence of the defendant, as lie lias a rig-lit to assume that defendant has exercised due care and diligence and to act upon the presumption that the defendant has and will exercise that care for his protection. The defendant here is made responsible to the plaintiff, who, while exercising-due care for his own safety, is injured by the negligent act of a fellow-servant, the same as- if the negligence of the master. The plaintiff had therefore the right to presume that his fellow-servant would exercise due care and diligence, and did not assume the risk or danger or peril caused by the negligence of the fellow-servant in placing-said short, board in the tramway without nailing same, and without giving notice to plaintiff of his act in placing-same there without securely nailing same.
“No. 4y>. You are further instructed that, under the evidence in this case, there is no assumed risk against, the negligence of the fellow-servant unless he, plaintiff, realized the danger and then exposed himself to it.”

Instruction No. 3 is erroneous for the reason that it entirely ignores the appellant’s defense of assumption of risk, in telling the jury “that the defendant is liable to plaintiff for injuries to him due or caused by a dangerous condition created by the negligence or wilful act of a fellow-servant.” The vice of this instruction was not cured by instruction No. 4 immediately following it, under the rule of juxtaposition, for instruction No. 4 itself is not a correct instruction on the doctrine of assumed risk.

It was contended by the appellant, and it had the right to so contend under the facts, that, even if Glenn were negligent in creating an extra hazard to the appellee during his absence by laying short boards without, nailing the same, still the danger was an.obvious one, and that, if the appellee had exercised the ordinary care exacted of him for his own protection in doing his work, he would have discovered the danger, at least should' have done so. The instructions, neither separately nor taken together, properly present this phase of the case to the jury. These instructions furthermore are not correctly drawn, because they assumed the existence of facts which under the evidence were issuable. They declared to the jury as a matter of law “that the defendant here is made responsible to the servant, the plaintiff here, who, while exercising due care for his own safety, is injured by the negligent act of a fellow-servant.” There is no hypothetical statement in either of the instructions by which the jury are left to determine whether or not the master, through its servant, was guilty of negligence,and whether the appellee had exercised ordinary care to discover the dangerous situation which confronted him, or whether the danger was such an obvious one that lie could and should have discovered the same in the exercise of such care. See Floyd v. Rix, 14 Ark. 286; St. L. I. M. & S. R. C. v. Rhoden, 93 Ark. 29.

Appellee’s instruction No. 4% was not -a correct declaration of laAv on the subject of assumed risk, and should not have been given.

These erroneous instructions, given at the instance of the appellee, were not cured by instruction number three on the same subject given at the instance of appellant. The charge of the court as a whole must be harmonious. McCrary v. Hawkins, 83 Ark. 202; Turquett v. McMurrain, 110 Ark. 197. The above are the reversible errors presented by this record, and because of these, the judgment is reversed and the cause remanded for new trial.


author: Hart, J. (after stating the facts).

text:
    Martin v. Duke.
    Opinion delivered November 27, 1922.
    1. Appeal and error — instructions not excepted to. — Instructions to which no exceptions were saved will not be considered on appeal.
    2. Evidence — copy op contract. — In replevin against a wife to recover a piano which plaintiff claimed under a mortgage from her husband, where defendant claimed to have purchased and paid for the piano, refusal to permit her to introduce a purported copy of the contract for the purchase of the piano, without proper identification thereof, was not error.

      3. Evidence — letter of third person. — In an action involving the validity of a husband’s chattel mortgage on a piano as against the wife’s contention that she had bought and páid for and owned the piano, a letter from the seller stating that she had paid her account in full, and that the company would cancel her contract and give her a clear title to the piano, was hearsay and inadmissible as against one asserting title to the piano.
    4. New trial — newly discovered evidence. — It was not error to refuse a new trial for newly discovered evidence of which appellant had notice before the trial.
    Appeal from Polk Circuit Court; James S. Steel, Judge;
    affirmed.
    STATEMENT OE EAOTS.
    This is a suit in replevin by S.AV. Duke against Mrs. S- E. Martin to recover the possession of a piano.
    It appears from the record that S. W. Duke claims the piano under a mortgage executed by S. E. Martin, the husband of the defendant, Mrs. S. E. Martin, to the First National Bank of Mena, Ark., and duly assigned to him by the bank. Mrs. Martin was not present when the mortgage was executed, but her husband represented to the bank that he was the owner of the piano. There is now due and unpaid the sum of $70.27 on this mortgage.
    The deposition of S. E. Martin was read in evidence on the part of the plaintiff. According to his evidence he paid all of the payments on the piano, except the last few, which were paid by Ms mother for him. The piano was community property. It was never in the name of his wife. On cross-examination lie stated that the piano was purchased by himself.
    According to the evidence of Mrs. S. E. Martin, the piano is in her possession and has been in her possession since it was first purchased. She purchased it herself from the factory, and has made all of the payments herself. Her husband never asserted any claim or right to the piano while they lived together as husband and wife.

      The jury returned a verdict in favor of the plaintiff, and from (he judgment rendered the defendant has duly prosecuted an appeal to this court.

      McPhetrige & Martin, for appellee.
    Beplevin does not lie for an undivided interest in a chattel, as an undivided part is not susceptible of delivery without the whole. _ Wells on Beplevin, 2 edition, § 154, pp. 144-5.

      Minor Pipkin, for appellee.
    ' There was no error in the court’s instruction. Failure to except to the instruction at the trial waived the exception. 88 Ark. 505.
    The instruction of the court placing upon the plaintiff the burden of showing’ her title to the piano was proper. C. & M. Digest, sec. 5591 to 5593. The motion for new trial was properly refused. C. & M. Dig., sec. 1315; 103 Ark. 591.
   Hart, J. (after stating the facts).

No exceptions were saved to the instructions given by the court, and, under the settled practice in this State, no assignment of error with regard to the instructions can be considered on appeal.

It is next urged that the evidence is not legally sufficient to support the verdict. We do not agree with counsel for the defendant in this contention. According to the evidence in behalf of the plaintiff, the husband of the defendant bought the piano himself, and mortgaged it to the bank for an indebtedness due it. The mortgage was duly assigned to the plaintiff, and there remains due and unpaid on it a sum of money which is equal to the value of the piano.

It is true that this evidence was contradicted by the defendant, but the jury has settled the question of the credibility of the witnesses in favor of the plaintiff, and the evidence warrants the verdict.

It is next insisted that the court erred in not permitting the defendant to introduce in evidence a purported copy of the contract which she had made for the 'purchase of the piano. According to the evidence of the defendant, she purchased the piano from the factory which made it, and a duplicate written contract was executed. Subsequently her copy of .the contract was destroyed by fire, and she wrote to the factory and obtained a copy of the contract from it. It was this copy which she desired to introduce in evidence. The court properly refused to allow the instrument to be introduced in evidence until it had been properly identified. The piano company had the original contract, and could have identified the instrument offered in evidence as a' copy of it, if such was the fact.

The next assignment of error is that the court erred in refusing to allow the defendant to amend her motion for a new trial and to grant the same. After the term of the court at which the case was tried had lapsed, the defendant offered to file an amended motion for a new trial on the ground of newly discovered evidence. Tn her motion she stated that, after the term at which the ease was tried had lapsed, she found a receipt issued to her by the piano company for a payment which she had made on it, and also a letter stating that the payment paid her account in full, and that the company would cancel her contract and give her a clear title to the piano. The letter itself amounted to nothing more than hearsay. Tt was the letter of a third person to her with regard to a payment made on the piano, and could not be used as evidence in her behalf against one who was asserting title to the piano.

Again, it may be said that she could have proved by the company which sold her the piano the fact of the sale, if such was the case, and that she knew of the existence of this proof before as well as after the trial of the case.

Tt follows that the judgment will be affirmed.