text:
    McCullars v. State.
    Opinion delivered March 2, 1931.

      A. B. Caplinger, for appellant.

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

About one o’clock in the afternoon of the 29th of March, 1930, the dead body of Agnew Mardis was found in a ditch beside the public road which ran from Harrisburg, Arkansas, to Bay Village, Arkansas, at a point about three miles south of Harrisburg in Poinsett County. There was one wound on the body made by a bullet which entered the head on the left side just below and slightly back of the left ear. There were no eyewitnesses to the killing.

The defendant Avas arrested in Williamson County, Texas, on or about the 10th day of April, 1930, returned to Arkansas, and tried in the circuit court charged with the murder of the deceased. The trial resulted in a verdict of guilty of murder in the first degree, and punishment fixed at imprisonment in the State Penitentiary for life. A motion for a new trial was filed in apt time, which was oA^erruled, and judgment was entered according to the verdict, from which is this appeal.

The evidence which most nearly tends to connect the defendant with the commission of the crime is substantially as follows: The body of Mardis was discovered shortly after the murder. Several witnesses testified as to having seen Mardis at different times before the date of the homicide in company with a man whom they identified as the defendant. Two women testified that they had seen Mardis in company with the defendant at about seven o’clock on the morning of the day that he AVas killed. One of these stated that Mardis, in company with a man, came to her house and stayed about twenty minutes; that the man whom she afterward identified at the trial as the defendant, had a finger off the right hand. The other woman stated that the two came to her house about the same time and stayed about thirty minutes, and that after they left she saw them coming back by her house going south about 11 o’clock; that the man in company with Mardis had a heavy ridge or big vein across his eye which was very noticeable, and she identified the defendant as that man. Another witness by the name of Moore stated that he had bought some chickens from a man who was with Mardis in a car about eight o’clock on the morning of the day of the murder, but the witness was unable to identify the defendants as the man who was with Mardis at that time. Two other persons, however, who were present when the chickens were bought, testified that the defendant was the man with Mardis at that time.

The defendant was a stranger to these witnesses, and his identification was based on a comparison of the appearance of the defendant with the person whom they testified was in the company of Mardis on that day. One Joseph who testified that he had known the defendant for three or four years and had been introduced to him by Mardis, stated that he had bought chickens from the defendant and Mardis some months before the homicide, and had met the defendant on Wednesday before the killing on Saturday, and that at that time the defendant was driving a'Baby Overland closed car; that he had seen the two together frequently. Another witness, Ogle, testified that he had known the defendant about fifteen years and had seen the defendant and Mardis together on Thursday or Friday night before the day Mardis was killed, and that he saw Mardis with three twenty dollar bills at that time. The witnesses who testified to having seen the defendant in company with Mardis on the day of the homicide stated that the two were riding together in a closed car. This was substantially all the testimony adduced on the part of the State.

A number of witnesses for defendant, John Minor and members of his family, testified that they, too, had seen Mardis in company with a stranger driving in a two-door Baby Overland car, and that they came to the house of John Minor on the morning of March 29, 1930; that both were under the influence of liquor, and the stranger with Mardis was described as being a square-built man with an unusually large scar running between his eyes nearly to the back of his head, and that this individual was not the same person as the defendant. Two other witnesses besides the members of the Minor family also testified as to having seen Mardis in company with a stranger on the morning of March 29th, and that, in their opinion, the defendant was not such person.

A number of other witnesses from Williamson County, Texas, testified that they were acquainted with the defendant, and that he had been continuously in that county working in a cafe in the Chapman Oil Field from the 18th or 20th of March down to, and including, the 10th or 11th of April, 1930, the day on which he was arrested. These witnesses testified that they saw the defendant frequently during the day, and that he worked continuously as a dishwasher and waiter in the cafe all of that time. One witness, a drilling contractor, engaged in drilling an oil well in that field, stated that he.kept a log of the well and knew from that what he was doing each day; that the log showed that about eleven or twelve o’clock on the night of March 29, 1930, witness went to Lundy’s Cafe to get something to eat, and defendant was then at that place and helped push a car some distance.

One witness, E. Gr. Edge, testified that he was the constable of the precinct in which Chapman Oil Field was located and spent nearly every day and well into the night in that vicinity attending to his duties as constable; that he received a telegram from Arkansas directing the arrest of a Charles McCullars, who was described in the telegram as a little low, dark complexioned fellow with a scar on his face. When witness received the telegram, he read it in the presence of the defendant but did not arrest the defendant because he did not answer to the description, and because he knew that the defendant had been in the oil field working- at the cafe before and at the time of the homicide; that the defendant knew of the receipt of the telegram by witness about nine o’clock at night, and the defendant remained on until the next day about twelve o’clock when the sheriff came over and placed him under arrest.

It will be seen that the testimony upon which the State relies for conviction is wholly circumstantial and, to connect the defendant with the commission of the crime, it is necessary to establish his identity as that of the stranger who was last seen in company with Mardis. Question of identity is one about which mistakes are not infrequently made, and there was a dispute among the witnesses as to whether or not the defendant was the person last seen in company with Mardis. This, together with the evidence of witnesses who testified to establish the alibi, might have made it doubtful whether the defendant was indeed the person last seen in company with Mardis, and, while the testimony may be sufficient to sustain the verdict, it is far from satisfactory.

After the verdict was rendered, and within the time prescribed by law, the defendant moved for a new trial on the ground, among other things, of newly discovered evidence. In the motion he alleged that he did not know that one John Hopkins knew anything about the case, and that he had used due diligence to obtain all of the evidence relating to the homicide, but had learned on the day after the verdict was returned that Hopkins was a material witness. At the hearing of the motion, Hopkins was introduced and testified that he lived in Poinsett 'County, on his own farm, and that on the morning of Saturday, March 29,1930, he was returning from Harrisburg to his home about eleven o ’clock, and at a point about three hundred yards from the place where the body of Mardis was afterward discovered.he saw a car backed into a gulley by the side of the road, and in this car was Mardis, whom he knew well, and another man who- was unknown to him. Witness assisted them in getting their car out of the gulley and talked with both of them. He' stated that the man in the car with Mardis called him to the car, and that he looked him full in the face and had an opportunity to, and did, closely observe him; that the man had a scar across his face as large as witness’ finger and that “any one would notice that about the first time you looked into his face”; that witness would know the man again by that scar. When Charles McCullars was pointed out to the witness, in answer to a question as to whether or not he was the man with Mardis, the witness answered, “He don’t look like the man to me. Of course, there has been a lot of talk, too, about such as that — that a man would change.”

The court, in passing on the motion for a new trial, said: “I am sorry that this negro, John Hopkins, was not brought before the jury to testify. Here is a negro who has lived for many years in one community, who owns his own home and stands high in that community as an honest, reputable citizen, and whose reputation for honesty and truthfulness the sheriff of this county willingly and without hesitation says is good. * * * All the facts which have a material bearing on the case should be brought out, and the- jury given the benefit of it. There is no way of knowing what effect this negro’s testimony would have had on the jury or what weight the jury would have given it in this case. I am not satisfied with it. This negro, so far as the testimony shows, was the last person to see the deceased and the man who was -with the deceased, and only a few moments and only about three hundred yards from the place where the killing took place. I again say that I am sorry that he was not given an opportunity to testify and the jury given the benefit of his testimony.”

It is the position of the State that the testimony of John Hopkins was cumulative, that several witnesses, members of the family of John Minor, had testified that the stranger in the car with Mardis had a large and prominent scar on his face such as the defendant did not have, and that the testimony of Hopkins was only to the same effect. It is true that Hopkins ’ testimony is cumulative in a sense, and yet Hopkins related facts about which no other witness testified — that a scar-faced stranger was in a oar with Mardis on the morning of the homicide at a point about three hundred yards from where the body of Mardis was afterward discovered, and that he was with Mardis but a short time before the commission of the crime, and that the scar was so large it would be the first thing noticed about the individual. These additional facts rendered the testimony of the witness Hopkins original and not cumulative. That it was highly important, there can be no doubt. The identification made by the witnesses for the State rvas unsatisfactory and based upon observation more or less casual and shaken as this testimony was by contradictory testimony and that tending to establish the alibi, the jury might well have given great weight to the testimony of Hopkins, whose attention was especially called to Mardis’ companion and the incident fixed in his memory by its close proximity in time and place to the tragedy. That the trial judge regarded this testimony as material and important is shown by his comments above set out, which were equivalent to a finding that the testimony of Hopkins was material and of such nature as might profoundly influence the mind of the jury. It is clear that the trial judge felt that the rights of the defendant had been greatly prejudiced by not having had an opportunity to examine. Hopkins on the witness stand, and that, if this testimony had been produced, the verdict of the jury might have been different.

It is the duty of the trial judge, where it appears that the defendant has discovered important evidence in his favor since the verdict which he could not have before anticipated or obtained by the exercise of due diligence, to grant a new trial. Subdiv. 6, § 3219, Crawford & Moses’ Digest. In the case of Twist v. Mullinix, 126 Ark. 427, 190 S. W. 851, we held that, if the trial court finds and announces that the verdict of the jury is against the preponderance of the evidence on the material issue in the case, he must set aside such verdict, and, where he fails to do so, this court, on appeal, will reverse for a new trial. This rule was recognized and followed in Mueller v. Coffman, 132 Ark. 45, 200 S. W. 136, where, in overruling the motion for a neAV trial, the court said:, “I must confess that the verdict as returned by the jury was somewhat of a surprise to the court; but, as there were disputed questions of fact for the determination of the jury, and though contrary to the judgment of the court as to what the verdict should have been, I do not deem it proper to disturb the verdict of the jury. I think, if you were to take Gordon (meaningMr. Beauchamp, attorney for the plaintiff) to one side and ask him to makS a confidential statement, he would doubtless admit that he Avon a lawsuit which he expected to lose.” Held this an expression of the vieAv that the verdict of the jury was against the preponderance of the evidence, and the court erred in not granting a new trial. See also Spadra Creek Coal Co. v. Calahan, 129 Ark. 408, 196 S. W. 477.

The rule announced in these cases is applicable to the instant case. We can see no difference in principle where a trial judge clearly indicates that, in his opinion, the verdict of the jury is against the preponderance of the evidence and refuses to grant a new trial, from a declaration by him tantamount to a finding that material and important evidence has been discoAmred by the defendant after the verdict is rendered; for it would be equally his duty to grant a new trial in either case. As we have said, the statements made by the trial judge Avere equivalent to an express finding that the defendant had brought himself Avithin subdiv. 6 of § 3219, supra, and, having done so, Avhen he failed to grant the motion for a new trial, he failed in his duty. We have frequently held that it is the province of the trial judge to promptly set aside a verdict of the jury when in his opinion such verdict is against the weight of the evidence, or where, for some other reason, there was not a fair and impartial trial, and when the trial judge surrenders this province he ‘ ‘ destroys the integrity of the best system that thus far has been devised in this country.for the administration of justice.”

We hold therefore that the trial court abused its discretion in failing to set aside the verdict of the jury, and its judgment will be reversed and the cause remanded for a new trial. It is so ordered.


source: Caselaw Access Project

author: Butler, J.

license: Public Domain

text:
    Keith v. Drainage District No. 7 of Poinsett County.
    Opinion delivered March 2, 1931.

      G. T. Carpenter, for appellant.

      Chas. D. Frierson, for appellee.,
   Butler, J.

This suit was filed by the appellant in the circuit court of Poinsett County on the 3rd day of April, 1922. A demurrer was interposed to the complaint and sustained, from which an appeal was taken to this court, where it was decided that the allegations of the complaint stated a cause of action. The cause was remanded with directions to- overrule the demurrer and for further proceedings according to law. Keith v. Drainage Dist. No. 7, etc., 181 Ark. 30, 24 S. W. (2d) 875. Thereafter the case proceeded to trial upon the complaint, the original answer and an amendment thereto called the “separate plea of defendant,” the reply to the same, and the testimony of witnesses. At the conclusion of the testimony, the court instructed the jury as to the law of the case in a number of instructions given at the instance of the plaintiff and of the defendant, and submitted the following interrogatories:

“Int. No. 1. Q. Do you find from a preponderance of the evidence in the case that the defendant diverted the waters of Eight Hand Chute and the waters of the St. Francis Eiver from their natural course, and that, as a direct result of such diversion, the lands in controversy here were damaged?
“Int. No. 2. Q. Do 37ou find from the proof in the case that the lands in controversy here were damaged to an3>- extent by ditches or other improvements in Mississippi County or Craighead County or in the State of Missouri?
“Int. No-. 3. Q. If you answer interrogatory number one ‘Yes,’ then you are told to fix the damage to the land directly resulting from the diversion of said waters, as shown b37 the proof.
“Int. No. 4. Q. If you answer interrogatory number two :Yes,’ then fix, from the proof in the case, such damages as you find these lands sustained, by reason of said agencies, from the proof. ’ ’

To interrogatories No. 1 and No. 2 the jury returned an affirmative answer fixing the amount of damage under interrogatory No. 3 at $8,000 and under interrogatory No. 4 at $4,800. After the jury brought in their answers to the aforesaid interrogatories, the trial judge, at the request of the defendant, made the following finding: “Asa finding of law and fact, the court declares that the plaintiff cannot recover because of lack of title upon which to base a recovery,” and thereupon rendered judgment “that plaintiff have and recover nothing notwithstanding the verdict of the jury.” From that judgment the case is here on appeal.

A description of the territory included within Drainage District No. 7, and the nature and course of the structures erected by it, are fully set out in the complaint in the case of Keith v. Drainage Dist. No. 7, 181 Ark. 30, 24 S. W. (2d) 875, supra, and in the cases of Sharp v. Drainage Dist. No. 7, 164 Ark. 306, 261 S. W. 923, and Hogge v. Drainage Dist No. 7, 181 Ark. 564, 26 S. W. (2d) 887.

It was alleged that the levees of the district were so constructed as to inclose a large quantity of land, a part of which was the land of the appellant, and so as to dam the main channel of the St. Francis River and the Right Hand Chute of Little River, both of which were natural water courses, thereby diverting the waters from their natural flow and impounding them on the lands of the appellant; that these lauds, prior to the construction of the levees, were fertile and suitable for cultivation, and that the construction of the improvement had rendered them valueless. This allegation was denied, and much testimony was introduced, both on the part of the appellant and the appellee, as to this issue. It would unduly extend this opinion to set out this testimony in detail. It suffices to say that the testimony-introduced on the part of the appellant tended to establish the truth of the allegation of his complaint and was ample to support the finding of the jury, and this is virtually conceded by the appellee.

In the briefs of counsel some space is devoted to the discussion of the question as to whether or not appellant’s cause of action was barred by the statute of limitation. It is unnecessary for us to consider this question because it was not an issue in the court below. The appellee did not raise this question by demurrer, or in its answer, and it is settled law that, in order to obtain the benefit of a defense of the statute of limitation, it must be pleaded either by demurrer or answer. Shirey v. Clark, 72 Ark. 539, 81 S. W. 1057; Kelley v. K. C. So. Ry. Co., 92 Ark. 465, 123 S. W. 664; Earle v. Malone, 80 Ark. 218, 96 S. W. 1062.

Appellee takes the position that, if the trial court erred in the .judgment rendered, the case should be reversed and remanded for a new trial because of certain errors in the conduct of such trial:

First, because of the refusal of the court to permit the introduction in evidence of an alleged report made by the engineer of appellee district which was offered in evidence as exhibit B to the testimony of Mr. 'Fairley, the engineer of the district, who testified in the case. The report offered in evidence had never been filed with the proper officials and was a lengthy document purporting- to give a description of the territory and the opinion of the engineer making it as to the adaptability of the land within the levees for cultivation, together with other matters not relevant to the issues. As the engineer who testified was permitted to use the report as a memorandum and testified as to all of the material matters set out therein, there was no prejudice and no error.

Second, it is insisted that the court erred in refusing to permit a witness to testify that, if the St. Francis River had been leveed with the levees running near and parallel to its banks, the same damage would have resulted to the lands of the appellant as from the present structures. This, of course, was mere speculation, and we cannot see how the action of the court in this particular was erroneous. This witness also was asked regarding the governmental requirement of the flow to be maintained in the St. Francis River. We do not see how this was material, because, no matter what the requirement might have been, the result as found by the jury would have been that the structures damaged the land of the appellant.

Third, that, because plaintiffs were permitted to introduce a certain map showing the territory embraced within the levees and the course they ran around the territory and across the waters of the Right Hand Chute and St. Francis River. It appears that this map was prepared by the engineers of the district, filed with the board of directors on the 4th of October, 1920, by its secretary and in the office of the county clerk on November 1, 1920. This map appears to have been properly identified and in the proper depository, and was competent, although it might have been superseded by a later map. The map which it was claimed superseded the one introduced was not available to the plaintiff, and was not introduced by the defendant.

Fourth. It is insisted that the court erred in refusing to' declare the law as requested by the defendant district in instructions 2 and 5. Instruction No. 2 tells the jury that the damage must be fixed as of the date when the levees and dams were completed, and instruction No. 5 reiterates that with a declaration that such structures were completed in the spring of 1926. The court was correct in refusing these instructions as we shall presently show.

Fifth, that the court erred in refusing to give instruction No. 4, requested by the defendant. It told the jury that the defendant would not be liable for diverting the surplus or flood waters by levees, dams or otherwise, so long as said waterways were permitted to carry the water to the extent of their full capacity. The court properly refused this instruction, as it is in conflict with our holding in the Sharp, Keith and Hogge cases cited, supra.

Sixth. Instruction No. 3, given at the request of plaintiff, is objected to by appellee. That instruction, in brief, directed the jury to find for the plaintiff if the defendant by its structures, diverted the waters of Little River into a reservoir, and if, by the construction of the levees of the reservoir and the dam across St. Francis River, the waters thereof were collected and impounded and diverted from their natural course, flooding the land of plaintiff. The criticism is because of the use of the word “reservoir,” which, it claims, was not a term established by the uncontradicted evidence. That is trhe. The engineer, Mr. Fairley, and the attorney for the appellant indulged in some argument as to the proper description of the territory within the structures of appellee district, the attorney preferring the use of the word “reservoir” and the engineer preferring the use of the term “storage basin ” After quite a bit of argument they were unable to state the difference between a reservoir and a storage basin. Neither do we see any difference. It appears to us that the two are synonymous, but, if the appellee preferred “storage basin,” it should have requested that the word “reservoir” be stricken out and “storage basin” substituted therefor. Other objections were made to the instruction, but we cannot see their merit, and certainly the instruction was not inherently wrong; and, if its phraseology was confused or ambiguous, the appellee should have made specific objection to it.

The real question in this case is that raised by the amendment to the answer of the defendant filed May 12, 1930, and called by it “separate plea of defendant,” the gist of which is that Keith, the appellant, was not entitled to recovery “because he had lost his title.” In order to properly appreciate the force of this plea, a brief history of that title is necessary. Prior to 1917 the land in controversy was the property of the United States G-overnment, which title was acquired by Keith and patent issued to him in 1920. In 1921 these lands were assessed for levee taxes due the St. Francis Levee District. In 1922 taxes for general purposes were assessed against the lands. In June, 1923, the lands were sold for the general taxes delinquent, and in the fall of that year a decree was entered fixing the levee district’s lien for the taxes of 1921 and 1922, and on December 3, 1923, said lands were sold under the decree and the levee district became the purchaser.

The fundamental doctrine that private property cannot be taken for public use without compensation requires that the owner shall receive the market value of the land at the time of the taking, and, in view of the condition of the title to the lands in controversy, as before stated, it becomes important to determine, (a) what constitutes a “taking” within the meaning of the rule, (2) the time the taking is consummated, and (c) to whom compensation must be made.

(a) This is answered by Mr. Angelí in his work on Water Courses, § 465, where the doctrine is laid down that a serious interruption to the common and necessary use of property is equivalent to the taking of it, and in the ease of Pumpelly v. Green Bay Co., 13 Wallace p. 166, quoting from page 177, in a case where by reason of a dam the waters of a lake were so raised as to cause it to overflow the lands of plaintiff and to so continue to overflow such lands from the completion of the dam to the beginning of the suit, the court, in answering the argument of the defendant that there was no taking of the land within the meaning of the constitutional provision but that damage was a consequential result of a use made of a navigable stream by the Government for the improvement of its navigation, said: “It would be a very curious -and unsatisfactory result, if, in construing a provision of constitutional law always understood to have been adopted for protection and security to the rights of the individual as against the Government, and which has received the commendation of jurists, statesmen, and commentators as placing the just principles of the common law on that subject beyond the power of ordinary legislation to change or control them, it shall be held that, if the Government refrains from the absolute conversion of real property to the uses of the public, it can destroy its value entirely, can inflict irreparable and permanent injury to any extent, can, in effect, subject it to total destruction without making any compensation, because, in the narrowest sense of that word, it is not taken for the public use. Such a construction would pervert the constitutional provision into a restriction upon the rights of the citizen, as those rights stood at the common law, instead of the Government, and make it an authority for invasion of private right under the pretext of the public good, which had no warrant in the laws or practices of our ancestors.”

This rule was expressly approved in Hogge v. Drainage Dist. No. 7, supra, and finds support in many of our decisions and in the great weight of authority. In fact, it is recognized by the very language of our Constitution, which provides not only that private property may not be taken for public use, but also that it may not be damaged without just compensation. Therefore, when there is any invasion of private property by lawful authority for a public use and the property is damaged thereby, there is a taking within the meaning of our law, and where the damage is such as to deprive the owner of the beneficial use of his property, he may require that its value be paid him.

(b) The plans for the improvement were filed in 1919, and the evidence on behalf of the plaintiff was to the effect that the work of actual construction began in the latter part of the summer or early fall of that year, which was not disputed by Mr. Fairley, the engineer of the district, who testified that he did not remember whether the work began in 1919 or 1920. The evidence shows that, prior to 1919, of the 320 acres of land owned by the plaintiff the greater part lay upon the ridges which were extremely fertile and susceptible of successful cultivation during ordinary seasons and considered at that time, according to the testimony of a number of witnesses, very valuable for agricultural purposes. There is but little dispute that beginning with 1920 the waters of the St. Francis River began to be impounded by the construction of the levees and by 1921 or 1922 the waters rose so high and remained so long’ upon the land as to destroy their value for purposes of agriculture, and that such condition remained from then until now. As previously stated, the plans for the improvement were filed in 1919, by which plans it was apparent that the structures contemplated were levees and dams such as were finally built across the Eight-Hand Chute of Little Eiver and the main channel of the St. Francis Eiver and with a spillway leading in a southwesterly direction from the southern end with flood gates where the spillway left the line of the levees. It is insisted that the work was not completed in accordance with the plans of 1919, but under later plans filed in substitution of the first. It is nowhere shown, however, or claimed that these later plans altered the character or course of the levees and dams as affecting the lands of the plaintiff.

In the case of Newgass v. Railroad Co., 54 Ark. 140, 15 S. W. 188, which is a leading case, and where the question for determination was the time of the taking of the land under condemnation proceedings for the right-of-way of a railroad as a basis for fixing the compensation, the court said: “It is insisted that compensation should have been assessed with reference to the value of the land taken as of the time of filing the petition, and not as of the time of the entry upon the land by the corporation. Upon this question the courts in different .States have established different rules. It is held by some that the assessment should be made with reference to the time of entry; by others, with reference to the time of filing the petition; and by still others, with reference to the time of the award. (Lewis on Eminent Domain, § 477, and cases cited). The court below adopted the first rule, against the objection of the appellant who contended for the second one. We recall no case in which the question has been presented for the decision of this court; but there are references by the court to it, and, in so far as they indicate an opinion, it is favorable to the contention of appellant. Either rule is liable to operate harshly in special cases — as well against 'the landowner as the corporation — but we see nothing in the one contended for which indicates that it would more often work harshly than either of the others; and it has the advantage of fixing a certain and definite time with reference to which the estimate must be made. Besides the corporation has the right to acquire the land. When it files its petition, it declares its purpose to appropriate it and to render just compensation to the owner. Until it has done that, it is in default; but afterwards it can do nothing more until, in the regular course of procedure of the courts, a legal ascertainment of the amount to be paid is made. As the filing of the petition is the attempt to assert the right of condemnation, and subsequent delay is without fault of either party, it seems fair to each alike that the assessment should be made with reference to value as of that date. ’ ’

School District of Ogden v. Smith, 113 Ark. 535, 168 S. W. 1089, was a suit brought by the school district to acquire title to land owned by Smith, and on the question of damages the court held that the authority of the act under which the district proceeded was similar to the power of eminent domain, and that the damage should be estimated from the time of the taking, which time the court held was fixed, and the taking consummated in contemplation of law upon the filing of the petition to condemn the land. In that case the court said: “So here appellee was entitled to have his compensation from the time that the appellant filed its petition to condemn his land, and the jury, in awarding damages, estimated the value of the land at the time the petition was filed.” See also K. C. & Sou. Ry. Co. v. Boles, 88 Ark. 533, 115 S. W. 375. It is clear, under the decisions cited and because of the fact that work had actually begun and the damage inflicted prior to the filing of plaintiff’s complaint, that there had been an effectual taking when the complaint was filed, and the cause of action had accrued, and therefore instructions Nos. 2 and 5, referred to supra, requested by defendant, were properly refused.

(c) Assuming that the plaintiff’s title was divested by the sale of December 3, 1923, of his land for levee taxes delinquent to the levee district, the question is, did such divesture work a forfeiture of plaintiff’s cause of action and prevent his recovery for the damage inflicted? In taking the position that this would happen, the appellee assumes that the appellant’s title was lost before his cause of action accrued. In this, the appellee is clearly mistaken. As we have seen, appellant’s cause of action accrued upon the filing of plans, which of themselves were sufficient to apprize the landowners of the extent and nature of the structures to be erected and the probable consequences which would ensue. It was apparent from the plans that, when the levees had been completed and the dams constructed, the entire lands within those levees would be formed into a storage basin where the flood waters of the .St. Francis River might be impounded and through flood gates allowed to flow out gradually and methodically into the lower stretches of the river and thus prevent the inundation of the lands to the south of the district. This was the avowed purpose of the formation of the district, and necessarily worked the destruction of the agricultural value of the lands within the basin. Appellant was the owner of lands at that time and remained so until the consequences to be expected from the formation of the district had actually resulted.

The case of Young v. Vincent, 94 Ark. 115, 125 S. W. 658, was an action for damage to lands by the digging of a large pit at the rear end of two lots and the carrying away of the soil. The effect of the court’s holding was that the proper party to maintain the action was the one who owned the land at the time of the trespass, although he subsequently sold the land to another. Appellee insists that a decision of that question was not necessary for a determination of the case, and that that case is not authority for the rule it seems to announce, and cites, as intimating a contrary doctrine, the case of Miller Levee Dist. No. 2 v. Dale, 172 Ark. 942, 290 S. W. 948. It insists that in that case the defendant raised the point that the plaintiff was not the owner of the land and not the real party in interest, and that the court apparently assumed that this would have been a good defense. Appellee has misread that case, for the point raised was that the plaintiff was not the owner of the land at the time of the taking and therefore had no right to maintain the action.

It is the general rule that the compensation for damages inflicted upon real property must be made to the person who owns the land at the time it is taken or injured. Newgass v. Railroad Co., supra; K. C. Sou. Ry. Co. v. Boles, supra, and School District v. Smith, supra. Young v. Redfork Levee District, 124 Ark. 61, 186 S. W. 604; Converse v. Atkinson, 142 U. S. 671, 125 Ct. 351; Tuskeege Land Co. v. Birmingham R. Co., 161 Ala. 542, 49 So. 378; Davidson v. Boston, etc. R. Co., 3 Cush. (Mass.) 91; Davis v. Titersville Ry. Co., 114 Pa. 308, 6 Atl. 736. We have been unaible to find any rule contrary to the one announced, and it is therefore our conclusion, inasmuch as the damage occurred potentially and in fact prior to the time of the filing* of the complaint, that the plaintiff should recover, and that the court erred in its judgment.

This brings us, in the last place, to a consideration of the amount due the appellant under the finding of the jury in answer to the interrogatories propounded. It is- the contention of the appellant that a fair consideration of the language of the interrogatories and the answers thereto force the conclusion that it was in the mind of the jury that the appellant’s damage caused by the structures erected by the appellee district, and independent and exclusive of damage arising from any other source, was the sum of $8,000, but we have reached the conclusion that -an analysis of the several interrogatories does not support the contention of the appellant, but that of the appellee, i. e., “that the total damage from the diversion of water was $8,000 -and of said total other drainage and levee• districts had caused $4,800 worth”; that Drainage District No. 7 therefore had caused only $3,200 of the damage; for if interrogatories Nos. 1 and 3 referred solely to the damage caused by the structures erected by District No. 7, instructions Nos. 2 and 4 would have been superfluous. As the jury must have had in mind the court’s declaration of law No. 13 “that the measure of damages is the difference between the market value of the land before the alleged taking of the land and its value, if any, after that time; less, however, such damages, if any, as you find due to other causes than the defendant’s structures,” and, by finding the damage occasioned by other improvements, must have intended that the difference between the amount of this and that first found, should be the extent -of defendant’s liability.

As we have seen the trial court erred in its judgment, and for the errors indicated the same is therefore reversed, and, as the facts in the case appear to have been fully developed, the clerk of this court is directed to enter judgment here in favor of the appellant, plaintiff below, in the sum of $3,200, together with interest thereon from the date of the judgment in the court below.

Smith, J., dissents.


author: Hart, C. J.,

text:
    Reynolds v. Balding.
    Opinion delivered March 9, 1931.

      Hogue & Burney, for appellant.

      Jno. E. Miller, C. E. Tingling and J. B. Linder, for appellee.
   Hart, C. J.,

(after stating the facts). We have copied the deed from Mrs. Mary E. Mason to her daughter, Gertrude Balding, in our statement of facts, and it need not be repeated here. It is well settled in this State that, if a deed duly executed and so drawn as to convey a present title, is deposited by the grantor with a third person with directions to deliver it to the grantee after the death of the grantor, and the grantor reserves no dominion or control over the deed, the deed is not an attempted testamentary disposition, but is effective as a conveyance of the title as of the date when the deed is deposited. Cribbs v. Walker, 74 Ark. 104, 85 S. W. 244; Fine v. Lasater, 110 Ark. 425, 161 S. W. 1147; and Brown v. Brown, 134 Ark. 380, 203 S. W. 1009.

In Sutton v. Sutton, 141 Ark. 93, 216 S. W. 1052, it was held that an instrument, in the form of a warranty deed, and acknowledged as such, and so headed, conveying land to a grantee, “and unto his heirs and assigns forever, ’ ’ but with an habendum clause making- the instrument inoperative until the grantor’s death, is a deed and not a will. The court said that the limitation does not defeat the passing of the title, but does reserve possession to the grantor during1 his lifetime.

In the application of these principles of law, we are of the opinion that the chancellor properly held that the instrument under consideration in this case was a deed from Mrs. Mary E. Mason to Gertrude Balding, and conveyed the title from the grantor to the grantee.

It is claimed, however, that there was no delivery of the deed from the grantor to the grantee. The record shows that the deed was executed on the 26th day of March, 1918, and acknowledged on the same day. It was filed for record on April 9, 1918. The recording of the deed raises a presumption of the delivery to and acceptance thereof by the grantee. It is evidence of the most cogent character tending to show delivery. It is a solemn proclamation to the world that there has been a transfer of the title to the property from the grantor to the grantee, of which our law makes every one take notice. Graham v. Suddeth, 97 Ark. 283, 133 S. W. 1033; and Holland v. Alexander, 147 Ark. 513, 227 S. W. 778.

But, it is contended that the prima facie evidence of delivery by recording the deed was overcome by the repeated statements of the grantor to her other children afterwards that she had never delivered the deed to her daughter, Gertrude Balding, and by the subsequent deed which she made which contains a recitation that it is made for the purpose of cancelling the deed which she had formerly executed to Gertrude Balding on the 26th day of March, 1918, and which had been recorded on the 9th day of April, 1918. In the first place, it may be said that the execution of this later deed to her daughter, Olive E. Miles, contains an express recitation that she had executed the first deed to her daughter, Gertrude 'Balding. Neither the testimony of the witnesses as to the declarations of their mother, Mary E. Mason, relative to her execution of the first deed to her daughter, Gertrude Balding, nor her subsequent recital in the deed to her daughter, Olive E. Miles, which was not made in the presence of Gertrude Balding, are admissible in evidence to defeat the deed to her. It is well settled in this State that the acts and declarations of the grantor or of a person in possession of a tract of land are admissible to show the character and extent of his possession, but not to contradict his deed to another. It has always been held by this court that the declarations of a grantor against the title of his grantee, made in the latter’s absence, are not admissible in evidence to defeat the title of the grantee. Prater v. Frazier, 11 Ark. 249; King v. Slater, 96 Ark. 589, 133 S. W. 173; Welch v. Welch, 132 Ark. 227, 200 S. W. 139; and Brown v. Brown, 134 Ark. 380, 203 S. W. 1009.

Therefore, we are of the opinion that the court correctly awarded the title to the land in the plaintiff. It is next insisted that the defendant, Marshall B. Reynolds, had possession of the land, and that the chancery court had no jurisdiction of the case. The record shows that the case was first broug'ht in the chancery court and then transferred to the circuit court. Subsequently, the case was retransferred without objection by the circuit court to the chancery court. Hence, under our settled rules of practice, the chancery court had jurisdiction to try the case, and any objections to the jurisdiction of the chancery court were waived by the failure to object at the time and to save exceptions to the action of the court. Taylor v. Bank of Mulberry, 177 Ark. 1091, 9 S. W. (2d) 578, and cases cited.

It follows that the decree of the chancery court must be affirmed.


author: Smith, J.

text:
    Shackleford v. Arkansas Baptist College.
    Opinion delivered March 9, 1931.

      John B. Shackleford, for appellant.

      Booker \d> Booker and Frauewthal, Sherrill •& Johnson, for appellee.
   Smith, J.

H. R. Coffman, as trustee, obtained a decree of foreclosure against the Arkansas Baptist College, under which certain lands were sold in partial satisfaction of the judgment for debt there rendered. Later an amended complaint was filed in the same cause, in which it was alleged that one R. S. Bowers, as executor, had in his hands certain money and property which had been devised to the college by one W. W. Wheeler, deceased, and it was prayed that this money be subjected to an equitable garnishment for the benefit of Coffman, trustee, et al. On these pleadings an order was made by the court, in which it was recited that the college was indebted to J. D. Shackleford, as its attorney, for services rendered, and that the attorney had a paramount claim to the money in his hands for the satisfaction of his fee. It was then ordered that Shackleford be paid his fee, and that the balance be paid by the executor into the registry of the court.

Before the final submission of the cause, a number of pleadings were filed, and an order of court was entered which recited a submission “on the petition of the plaintiffs praying the court to require John D. Shackleford to pay into the registry of this court all funds and property in his hands belonging to the defendants, and on the petition of John D. Shackleford praying that the court allow him a reasonable attorney’s fee for services per-, formed for the Arkansas Baptist College. * * *” The court fixed 'Shackleford’s fee at $1,527.77, and he prayed an appeal from that decree, and a cross-appeal was prayed ¡by the Arkansas Baptist College to this court.

Upon the submission of this cause it was held by us that the fee allowed was excessive, and it was reduced to $500. Shackleford v. Arkansas Baptist College, 181 Ark. 362, 26 S. W. (2d) 124. When the mandate went down from this court, Shackleford filed a petition which contained a review of the former litigation, in which he prayed judgment against the college for a. sum alleged to be due him for professional services, in addition to those rendered in connection with the settlement of the Wheeler estate. The value of these services were alleged to be $1,461.50, or $6.38 more than the amount of money which Shackleford admitted having in hand belonging to the college. This account relates principally to services in connection with the settlement of the Wheeler estate, although there are items having no relation to it.

A demurrer to this petition was sustained, and, no further pleadings being filed, a decree was rendered on the mandate fixing Shackleford’s fees for services to the college at $500. He was, in addition, allowed $11.50 for costs and expenses, this being an item allowed in the final decree from which the first appeal was prosecuted, and which was evidently regarded as being unaffected by that appeal or the judgment or decree of this court thereon.

■Shackleford has appealed from this decree, and insists that the former appeal adjudged only the compensation due him in connection with the settlement of the Wheeler estate and took no account of, and did not include, the services for which he now asks compensation.

Whether this be true or not, the former litigation progressed to the point that the question in issue was the state of the account between Shackleford and the college. This question was collateral to the question raised by the original plaintiff, but it became a question in the case and was adjudged by the court. The lawsuit was one in which the attempt was being made to subject funds in Shackleford’s hands belonging to the college to the payment of a judgment recovered by Coffman, trustee. Upon this issue the amount due Shackleford by the college was the pivotal question. To determine what sum Shackleford had in his hands due the college, it was necessary to ascertain what fees were due him by the college, and this issue is concluded by the opinion of this court on the former appeal. This is true because, whatever the former case may have been, the present one is a mere continuation of it. No new suit has been brought, and no new issues have been joined. It is the same case between the same parties, and any issues which can now be litigated could formerly have been litigated, and must necessarily be concluded by the decree from which the first appeal was prosecuted and the order and judgment of this court modifying that decree.

A headnote in the case of Newton v. Altheimer, 170 Ark. 366, 280 S. W. 641, reads as follows: “A judgment on a former appeal became the law of the case and is binding upon a second appeal, and conclusive, not only of every question of law or fact which was decided in the former suit, but also of the grounds of recovery or defense which might have been, but were not, presented.”

The principle there announced is conclusive of the point here raised. If Shackleford did not claim all the fees to which he was entitled, he should have done so, and if he can do so now, he should have done so then, and, as he could and should have claimed credit then, he cannot do so now.

The demurrer to the petition was therefore properly sustained, and the decree of the court will be affirmed.


text:
    Criglow v. State.
    Opinion delivered March 9, 1931.

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

Appellant was jointly indicted with Elmer English and C. M. Cunningham, upon the charge of robbery. The indictment alleged that “the said R. E. Criglow, Elmer English and C. M. Cunningham, in the county and State aforesaid, on the '22d day of March, 1930, wilfully, maliciously, feloniously and violently, from the person of O. G. Allen and against his will and putting him, the said O. G. Allen, in fear, did take, steal and carry away, $196, gold, silver and paper money of the value of $196, said money being then and there the property of the said -Safeway Stores, Inc., a corporation operating and doing business as the Piggly Wiggly Stores.”

A demurrer to the indictment was filed upon the grounds: (1) that it did not state of what country the money was legal tender or had been issued; (2) it did not allege whether the Safeway Stores, Inc., is a domestic or foreign corporation, and, if a foreign corporation, whether it is authorized to do business in the State.

The demurrer was overruled, and no error was committed in so doing. Section 2506, Crawford & Moses’ Digest, provides that, in all prosecutions for .the unlawful taking of money by larceny, embezzlement or otherwise, it shall not be necessary to particularly describe the kind of money taken further than to allege gold, silver or paper money, and it is there further provided that “a general allegation in the indictment and proof of the amount of money taken shall be sufficient'. ” The purpose of this statute was to abolish the requirement that the indictment alleg-e the kind and character of money taken (further than that it was gold, silver or paper money), a requirement which had, in many cases, rendered it very difficult, and frequently impossible, to prove the allegations of the indictment as to the kind of money taken, even in cases where the testimony was perfectly clear that money of some kind had been taken. This statute requires the courts to know what everybody else knows, that money is money.

We said in the case of Cook v. State, 130 Ark. 90, 196 S. W. 922, that the dollar is the money unit of the United States, and that an indictment charging the larceny of a dollar sufficiently charged the taking of a money unit of this country, whether gold, silver, or paper money, and that it was unnecessary to allege its value, because money itself was the measure of value, both of itself and of all other things.

The indictment does not recite whether the Safeway Stores, Inc., the alleged owner of the stolen money, was a domestic or a foreign corporation, nor that, if a foreign corporation, it was authorized to do business in this State. But these allegations were unnecessary. Even though the owner were a foreign corporation doing business in this State without authority of law, it would not be caput lupinum. It was unlawful to steal the money of a corporation, whatever its classification may be, and, certainly, an allegation as to the classification into which the Safeway Stores, Inc., falls is not essential to enable the defendant to prepare his defense or to interpose a plea of former jeopardy against another prosecution for the same offense. Spears v. State, 173 Ark. 1071, 294 S. W. 66; § 3013, Crawford & Moses’ Digest.

No question is made as to the legal sufficiency of the testimony. Cunningham, who was jointly indicted with appellant, became a witness for the State, and detailed the circumstances of the crime, which he stated was committed by himself, appellant and English. The latter, testifying as a witness on behalf of appellant, who was separately tried, denied any knowledge of or connection with the crime. But the corroboration of Cunningham was abundant. O. G. Allen, the man alleged to have been robbed, and Durwood Jones, who was in the store at the time, both testified that they recognized appellant as one of the robbers.

E. E. Brooks was called as an expert by appellant, and a hypothetical question was submitted upon which his opinion was asked. This question would have called for the opinion of the witness as to the powers of observation and recollection of Allen and Jones in the matter of their identification of appellant as one of the robbers, they never having seen him prior to the robbery. The court properly excluded this testimony. There was no contention that these witnesses were of unsound mind. It was, of course, proper to inquire how badly the witnesses themselves were frightened by the robbery, and this information might have been elicited by the examination of the witnesses themselves on that subject. It would not have been improper to have asked other witnesses present what opportunity Allen and Jones had to observe the robbers, also what their conduct was during the robbery. But the question whether these witnesses were mistaken in their identification, whether from fright or other cause, was one which the jury, and not an expert witness, should answer. This was a question upon which one man as well as another might'form an opinion, and the function of passing upon the credibility and weight of testimony could not be taken from the jury. Dickerson v. State, 121 Ark. 564, 181 S. W. 920; Mitchell v. Lindley, 148 Ark. 37, 228 S. W. 728.

• The prosecuting attorney remarked in his argument that counsel for appellant was an expert in establishing the defense of an alibi. Upon objection being made the court told the jury that the argument was improper and to disregard it, and the prosecuting attorney was cautioned not to repeat the statement. We must assume that this rebuke and admonition removed any prejudice carried by the argument.

The jury returned a verdict of guilty and fixed the punishment at three years imprisonment in the penitentiary, and recommended that the sentence be suspended. It is insisted that this recommendation rendered the verdict illegal, indefinite and void. We held to the contrary in the case of Clarkson v. State, 168 Ark. 1122, 273 S. W. 353, where sentence was imposed notwithstanding the recommendation of the jury that it be suspended. We there said: “Under Act 76, Acts 1923, page 40, circuit judges are authorized, under certain circumstances, to suspend the sentences of convicted persons, but the act vests this discretion in the judge, and not in the jury. It would, of course, be proper for the court to consider any recommendation the jury might make in the matter, but the jury can only recommend and cannot control the discretion vested in the judge. Kelley v. State, 133 Ark. 261, [202 S. W. 49].”

Certain other errors are assigned in the motion for a new trial, but they relate to questions which have been so long and so definitely settled that no useful purpose would be served by discussing them.

As no error appears, the judgment must be affirmed, and it is so ordered.


author: Humphreys, J.

text:
    Moreheart v. Mabelvale Road Improvement District No. 29.
    Opinion delivered March 9, 1931.

      A. L. Rotenberry, Lee Miles and John B. Shackle-ford, for appellant.

      Wallace Townsend, for appellee.
   Humphreys, J.

This is a suit by appellants, citizens and taxpayers, against Road Improvement District No. 29, in Pulaski County and its commissioners, to restrain them from selling bonds and extending and collecting taxes based upon assessment of benefits. It was alleged in the complaint that the commissioners entered into a contract with the county court to construct a road for $7,000 per mile; that one-half of the road had been built by the county, and that appellees were about to sell bonds and extend and collect taxes based upon the benefits to pay for the road already constructed and to pay for the entire road when completed; that the contract was void because the county court had no right under the law to become a contractor for the construction of roads under contracts with the commissioners of improvement districts.

Appellees filed an answer admitting the execution of the contract and part performance thereof, but denying all other material allegations in the complaint.

The cause ivas submitted to the trial court upon the pleadings and testimony, resulting in the dismissal of appellants’ complaint, from which is this appeal.

The record reflects the following facts: The district in question ivas properly organized under act number 126 of the General Acts of the Legislature of 1923 and amendments thereto. The estimate of the cost of the road was $126,665. Instead of advertising and letting a contract, the commissioners of said district entered into a contract with the county court to construct the road in accordance with the plans and specifications for $7,000 per mile. The county court proceeded to construct the road and completed 3.2 miles thereof for which it received no remuneration from the district. The commissioners were about to sell bonds in the sum of $63,000 to pay for the work which was done and to pay the balance due when the road should be completed. Benefits to the property were assessed, faxes extended and collected in part to pay bonds to be issued and sold with the interest thereon. The county was not made a party to the suit. The present county judge refused to complete the road unless appellees pay $20,000 more than the contract price to construct necessary bridges.

Appellants contend that the contract entered into by the county was without authority and void, and on that account it has a right to restrain the sale of the bonds and the extension and collection of taxes against the property in the district based upon the assessment of benefits to the property. Even if the contract ivas void, which we deem it unnecessary to determine, the complaint was properly dismissed because the prayer thereof ivas to prevent the district from issuing bonds, levying and collecting’ taxes based upon the benefits assessed against the property in said district in accordance with the estimated cost of the improvement. When properly organized under act number T26 of the Acts of 1923 and amendments thereto, an improvement district has a right to issue and sell a sufficient number of bonds to construct the improvement and to assess the benefits to the property and to levy and collect taxes to pay the bonds and interest thereon. It is conceded that appellee district was formed in accordance with said act and amendments thereto. Appellants, therefore, could not and cannot maintain a suit to restrain the commissioners from doing- these things which it is authorized by the act to do.

Appellants argue that their complaint was wrongfully dismissed because the money to be derived from the sale of the bonds cannot be used in payment of that part of the road already constructed by the county under the alleged illegal contract. Their argument is not sound because the district received the benefits of the contract to the extent of that part of the road completed, by using same, and cannot refuse to pay therefor. White River L. & W. Ry. Co. v. Star R. & L. Co., 77 Ark. 128, 91 S. W. 14.

No error appearing, the decree is affirmed.


author: Mehaffy, J.

text:
    Armour & Company v. Rose.
    Opinion delivered March 9, 1931.

      George R. Herr and Hill, FitsTmgh & Briszolara, for appellant.

      Hardin S Barton, for appellee.
   Mehaffy, J.

The appellant, Armour & Company, is engaged in the business of selling meats, refrigerator products, ammonia, compound lards, canned meats, pork and beans, pharmaceutical products, cheese and other products at their branch office at Fort Smith, Arkansas, and T. IT. McKay was manager from 1925 to and including the date of the accident to appellee September 30, 1928.

On September 30, 1928, about 11 o’clock in the forenoon the appellee fell into an open, unguarded elevator shaft in the place of business of Armour & Company in Forth Smith, receiving serious and permanent injuries.

This action was brought against Armour & Company and Clarence Fine, its employee, for damages sustained by reason of his fall into the elevator.

It is alleged that appellant’s negligence caused the injuries. Appellee was 44 years old and had operated a shoe repair shop in Fort Smith for about 20 years and was making about $300 per month in the operation of his business.

Appellant, Fine, was a traveling salesman, but was at the place of business of Armour & Company on Saturdays and Sundays. Appellee had been in the habit for seven or eight years prior to the accident of buying meat products from the Armour place on Sundays and other days of the week from Fine and other employees.

The manager of the Fort Smith branch had been instructed by his superiors to sell only to wholesalers, retail dealers in its supplies, hotels and large restaurants, its principal business being to sell for resale. They were permitted, however, to sell to the employees of appellant for their own use. The manager had instructed his salesmen to rigidly enforce this rule.

On the day of the accident, appellee, with his family •drove to the place of business of Armour & Company about eleven o’clock and parked his car. He got out, walked to the front door of Armour & Company’s place of business; the front door was open, appellee walked into the main entrance, np to a window where Mr. Fine and two or three other employees of Armour & Company were seated in the office room. Mr. Fine asked appellee what he could do for him, and appellee replied that he wanted to get some ham and bacon. Fine got the key and went with appellee back to the cooler where they found the bacon, but failed to find the ham. Fine then suggested that they go back to the smokeroom, as there might be some hams there. They walked out of the cooler, Fine locked the door, and led the way down a long, narrow, dark passageway to the smokeroom. He opened the door, switched on the light on the inside of the smokeroom, but when they got in the smokeroom they failed to find any hams. They walked back from the smokeroom, which had double doors, Fine opened the door, and stepped back for appellee to step out. Appellee stepped out, and Fine switched off the light, and pushed the doors and was in the act of closing them. Just as appellee stepped out and stepped back to wait for Fine, he stepped into an open elevator shaft, and fell upon the basement floor at tire bottom, a distance of about fifteen feet. His hip and ankle were broken, and he was otherwise injured. The injuries are permanent.

The Armour & Company plant was not open in the regular way on Sunday, but some of the men in the office work there at times. There were two or three offices in the place, one for the manager, and another where traveling salesmen and other employees went on Sunday. The freight elevator was used to carry heavy articles. It had gates in front, and they were ordinarily closed when the elevator was not in use. There was an electric light over the opening of the elevator shaft, but this was not lighted on Sunday. The light was much dimmer in the plant on Sundays than on other days. As a rule, none of the electric lights were burning except the one in the shipping room, and lights would be turned on in the office if anyone was there on Sunday. Fine was usually in the plant on Saturday and Sunday, and occasionally made sales.

Fine and appellee had been friends for a number of years. Fine told appellee, in 1921 or 1922, that it was against the rules of the company for him to sell to appellee in the way he did, but in order to accommodate him he would do that, and while appellee continued to buy for seven or eight years, not only from Fine, but from others on Sunday, it was never suggested to him after the first time that there was any violation of the rules.

When a sale was made by Fine, tickets would be made out. According to Fine’s testimony the ticket was made out against him. Appellee and others testified that the ticket was made out against appellee.

The testimony is in conflict as to whether the manager knew of the sales made by Fine, and it is also in conflict as to the number of sales made, but there is no dispute about the fact that the sales continued from time to time for seven or eight years. The evidence also shows that there was a sign displayed to the effect that no sales were made at retail.

As shown by the bine print, the passageway into which Fine and appellee walked, was eight feet wide. The door, however, through which they went, was in the middle of the room, so that when they stepped out, they were approximately four feet from the side of the passageway on which was the open shaft of the elevator. There is a conflict as to what occurred when they passed out. The appellee testified that Fine opened the door, and appellee stepped out of Fine’s way, walking three or four feet, and fell into the elevator. Fine knew that the elevator was there, the appellee did not know it. Fine closed the door, turned the light out, and, as he turned around, saw appellee fall into the elevator.

The jury returned a verdict for $7,500. Judgment was entered, and, to reverse the judgment of the circuit court, this appeal is prosecuted.

The appellant contends that the primary question is: Was it negligent for the company to have its place unlighted and its elevator shaft open on Sunday when the usual activities of the plant were suspended for the day in obedience to law and its own custom?

Appellant says that no customers were expected, and that none could lawfully be received as such, and that, therefore, leaving the plant in this unlighted condition, and the elevator shaft without a guard on 'Sunday, is not negligence, because the company could not reasonably anticipate customers would enter there contrary to law and the rules and customs of the company.

The undisputed proof shows that the appellee had been going to the place of business for seven or eight years on Sundays to purchase articles from appellant. There is a conflict in the evidence as to ho-\y often he went. The appellee testified he went two or three times a month, but whether he had gone as often as he claimed or not, the appellant knew that the elevator was there, and that the shaft was open, and the passage was dark.

Fine himself testified that the dealings began in the summer of 1921 or 1922, and that the first time he made a sale ho told appellee that it was against the rules to sell merchandise that way, but he would get it and charge it to himself. That was seven or eight years before the accident, and Pine does not claim that he ever suggested to him after that that it was a violation of the rules. Yet they continued to sell to him on Sundays, and, when he came on the morning of the accident, the undisputed proof shows that Pine went with him to get the articles he wanted, and Fine knew about the elevator and the appellee did not. Of course, it would not be neglig’ence for the appellant to close its place of business on Sunday and leave the elevator shaft open if no customers were expected, but they had a right to expect that the appellee would come because it had been his custom for seven or eight years.

As to the negligence of Mr. Pine, he himself said that he went to the manager’s office, procured the key and went out with the appellee, the appellee following him. The passage in which they were just prior to the accident was about eight feet wide, the door through which they came was in the middle of this passageway, and, after coming through the door and getting out of Mr. Pine’s way so that he could close the dobr, the appellee testified that he took one or two steps and went into the shaft.

Under the evidence in the case, it was a question of fact for the jury as to whether the appellants were guilty of negligence. Actionable negligence means the violation of some duty which results in injury to another, and in this case we think it a question of fact properly submitted to the jury as to whether the appellants owed the appellee any duty and whether appellee was injured because of a violation of that duty.

Appellants contend that the case should be reversed because of the contributory negligence of appellee. Appellee testifies that he was going with Mr. Pine; that he did not know there was an elevator there-; that the passageway was dark; that he only took one or two steps in getting out of the way of Mr. Fine, and fell- into the elevator. The question to be determined was whether the appellee at the time acted as a man of ordinary prudence would have acted under similar circumstances, and this was also a question for the jury.

Appellee was asked how close he went to the elevator when he went in there, and he said while he could not tell exactly, it was maybe two or three feet. He did not know the elevator was there, and he could not see on the side the elevator was on. There was not any light, and when Mr. Fine turned to close the door, the appellee had to hack out of his way. He had to get out of Mr. Fine’s way so he could close the door. Mr. Fine walked out first and held the door open for him to walk out. He took only one or two steps and fell into the shaft.

Appellee calls attention to the case of Murray v. McClain, 57 Ill. 378, as supporting its contention that the appellee was guilty of contributory negligence, but the court said in that case: “This hatchway was located some 65 or 70 feet back from the front of the building, where were situated the office and room, where others having business with the house transacted it; and was at a place where no one, except the inmates and employees of the house had any business, and could not reasonably have been expected to be there, exposed to danger. Had the hatchway been at a place where persons were accustomed to pass and repass, or to be about, and their'presence there ought to have been reasonably anticipated, a higher degree of care might have been exacted of the appellants.” The court also said in that case, speaking of the injured party: “He was in the habit of bringing the kegs in a wagon to the front door. Just after the accident his wagon was found at the door with a load of kegs upon it. The deceased had not shown himself to anyone in the office and was not seen about the building- prior to his fall.” After his injury and before his death he stated that he knew where the hatchway was just as well as any of them knew.

In the case just quoted from the appellant knew nothing about the presence of the injured party, and had no reason to anticipate that either he or anyone else would be about the hatchway. Tu the instant case the appellants not only had reason to anticipate that the appellee mig’ht be there, but they knew he ivas there and knew of the open elevator shaft.

Appellant next calls attention to and relies on the case of Johnson v. Ramberg, 49 Minn. 341, 51 N. W. 1043. The court stated in that case: "The wareroom was lighted by a window in the front or south end, by a window over the sliding door, opposite this stairway, by the large doorway, when that door was open, and by the glazed door in the partition near the head of the stairway. In the daytime, the plaintiff, finding the sliding door in the wareroom wide open, sought to enter the store that way, as we assume he had license to do. Entering the ware-room, he passed over the partition door to pass through that into the store, but, as he says, meeting the defendant coming into the wareroom from the store, he stepped aside for him to pass, and in doing so he stepped off the head of the stairs and fell, causing the injuries for which a recovery is sought. The evidence shows conclusively, and without denial, that the room Avas so lighted that any one who looked about him would see the open stairway. The plaintiff admits that he could have seen it if he had looked, but that he did not look. Not only was the wareroom light, but the stairway and the cellar below were light. "While the plaintiff was permitted to pass through the wareroom into the store, he could not but know from the surroundings that the place was not a passageway merely, but that it was also largely, if not principally, devoted to the private uses of the proprietor connected with his business; and the plaintiff was not justified either in closing his eyes as he went through, or in neglecting to observe AAdiere he went.”

The statement from the opinion clearly shows the distinction between that case and the case at bar.

Attention is called to the case of Shaw v. Goldman, 116 Mo. App. 332, 92 S. W. 165. The court cited another case and said: “A husband and wife called upon a pork packer from whom they usually purchased meats and desired to buy a shoulder. The foreman in charge pointed out certain meats and then accompanied them into the rear of the establishment, walking immediately in front of the wife, ‘who stepped into a pitfall and was injured. This court held and very properly we think, under the circumstances that neither the husband nor the wife is to be regarded as having been a trespasser or a bare licensee in the portion of the building where the open hatchway was situated,’ and the recovery was sustained.”

The facts in the instant case are very similar to the ones in the case mentioned in the Shaw v. Goldman, supra. The appellee, as was his custom, went to the place of business of the appellant to purchase meats, and Fine, the employee, accompanied him to the places where they expected to get the articles desired, walking immediately in front of him, until they reached the door which the employee opened and the appellee, in stepping out of the way, stepped into the elevator.

Appellant cites and relies on the case of Beal-Doyle Dry Goods Co. v. Carr, 85 Ark. 479, 108 S. W. 1053, 14 Ann. Cas. 48. In that case the injured party knew that the elevator was there and knew that it was open. He stated that the door of the elevator was open, but that it looked to him exactly like there was as much floor inside as out and he stepped in the hole. The injured party went to the elevator, knew that it was open, and stepped in, thinking there was a floor; it was dark. But in that case, where the injured party was going alone and saw the elevator, without any examination to see whether there was a floor, he thought there was and stepped in, the court held that it was a jury question.

The court said in the above case: “There is strong reason for finding that appellee was guilty of negligence in walking into the open elevator shaft, if it was open as he claims; but we cannot say, as a matter of law, that he was negligent. That was a question for the jury. It is true that he might, by close investigation, have discovered that the car was not in place, and that the shaft was open, but that is not the question. Did he exercise such care for his own safety as a person of ordinary prudence would have done under like circumstances? That is what the law required of him, and all that it required: and whether or not he did that is a question of fact to be determined from all the evidence.”

The above rule is well established by the decisions of this court. Wherever the evidence is such that different minds would arrive at different conclusions as to negligence or contributory negligence, it is a question for the jury.

“After all, the test is, what would an ordinarily prudent person have done under the circumstances as they then appeared to exist? Can we say that all reasonable minds would reach the conclusion that plaintiff failed to exercise due care to avoid this collision?” Coca Cola Bottling Co. v. Shipp, 174 Ark. 138, 297 S. W. 856.

We also said in that case: “The rule is, that where fair-minded men might differ honestly as to the conclusion to be drawn from the facts, either controverted or uncontroverted, the question at issue should go to the jury.” St. L. I. M. & S. Ry. Co. v. Fuqua, 114 Ark. 112, 169 S. W. 786; Ark. P. & L. Co. v. Shryock, 180 Ark. 705, 22 S. W. (2d) 380, 20 R. C. L. 169.

Wherever there is conflict in the testimony, it is the province of the jury to pass upon the weight of the evidence and the credibility of the witnesses, and, even if it appears that the verdict is contrary to the preponderance of the testimony, this furnishes no ground for reversal. Ark. P. & L. Co. v. Cates, 180 Ark. 1003, 24 S. W. (2d) 846; Hyatt v. Wiggins, 178 Ark. 1085, 13 S. W. (2d) 301; S. W. Bell Tel. Co. v. McAdoo, 178 Ark. 411, 10 S. W. (2d) 503; Ark. P. & L. Co. v. Orr, 178 Ark. 329, 11 S. W. (2d) 761; Mo. Pac. Rd. Co. v. Juneau, 178 Ark. 417, 10 S. W. (2d) 867; Mo. Pac. Rd. Co. v. Edwards, 178 Ark. 732, 14 S. W. (2d) 230; Western Union Tel. Co. v. Downs, 178 Ark. 933, 12 S. W. (2d) 887; Wright v. State, 177 Ark. 1098, 9 S. W. (2d) 233; Turner v. State, 109 Ark. 138, 158 S. W. 1072; People’s Bank v. Brown, 136 Ark. 517, 203 S. W. 579; Harris v. Wray, 107 Ark. 281, 154 S. W. 499; Gazola v. Savage, 80 Ark. 249, 96 S. W. 981.

Appellants next contend that the appellee was a licensee only, and that Fine, the employee, was acting for appellee. The uncontradicted evidence shows that the appellee had been going’ to the place of business of appellant on Sunday for seven or eight years to purchase such articles as he needed and were sold by appellant. One who goes to the place of business of another to purchase merchandise where he had been in the habit of going in like manner for a number of years, is an invitee and not a licensee.

The court said: “According to the evidence adduced it was at the time of appellee’s injury the general custom of employees to ride on the engine from their places of work to their homes. This was done by the direction of the superior agents of the company in charge at Muskogee. This custom became impliedly an element of contract between the company and its servants at that place, and appellee was entitled to the privilege as a part of his contract. ’’ St. L. I. M. & S. Ry. Co. v. Barron, 166 Ark. 641, 267 S. W. 582.

The general rule is that the owner or occupier of premises is under no duty to protect those from injury who go upon the premises as volunteers or merely with his express tacit permission from motives of curiosity or private convenience in xio way connected with business or other relations with the owner or occupier. A person going on one’s premises under such circumstances would be a bare licensee, and the authorities cited and relied on by appellant would be applicable to such a situation.

The rule is also well established tnat a licensee who goes upon the premises of another for that other’s purpose by that other’s invitation, is no longer a bare licensee. He becomes an invitee, and the duty to take ordinary care to prevent his injury is at once raised, and for violation of that duty the owner is liable if injury results to the invitee by reason of the negligence of the owner. Glaser v. Rothschild, 221 Mo. 180, 120 S. W. 1, 22 L. R. A. (N. S.) 1045; 45 C. J. 814; Midland Valley Rd. Co. v. Littlejohn, 44 Okla. 8, 143 Pac. 1.

There is a well-defined distinction between a mere licensee and an invitee. One who goes on another’s premises for the purpose of purchasing goods which the other has for sale, and especially where this has been done for a number of years, is an invitee and not a bare licensee.

On the question of ratification, it is sufficient to say that appellee’s testimony shows the manager knew of his habit of purchasing there on Sunday, and that no complaint was ever made of it, but that it was acquiesced in.

It is next contended by appellant that the violation of the Sunday laws was the proximate cause of the injury. However appellee was not violating’ the Sunday law. Section 2736 of C. & M. Digest makes it unlawful to sell goods, wares and merchandise on Sunday, but it does not make it unlawful to purchase, and certainly, if one is violating the law and negligently injures a person, his own violation of the law or wrongful act would not be a defense for his negligence. In other words, a person cannot be guilty of an act of negligently injuring another and be relieved of the consequences by showing that he, the wrongdoer, was at the time violating the law. But if both parties had been violating the Sunday law, it would not prevent one of them from recovering for injuries caused by the negligence of the other. 25 R. C. L. 1450; Solarz v. Manhattan Ry. Co., 29 N. Y. S. 1123; Ark. & La. Ry. Co. v. Lee, 79 Ark. 448, 96 S. W. 148; Feital v. Middlesex R. R. Co., 109 Mass. 398, 12 Am. Rep. 720; Landers v. Staton Island Rd. Co., 13 Abbot’s Practice Reports (N. S.) 338; Bucher v. Fitchburg Rd. Co., 131 Mass. 156, 41 Am. Rep. 216; Sutton v. Wauwatosa, 29 Wis. 1, 9 Am. Rep. 534; Kansas City v. Orr, 62 Kan. 61, 61 Pac. 397, 50 L. R. A. 783; Louisville N. A. & C. Ry. Co. v. Frawley, 116 Ind. 566, 9 N. E. 594; Louisville N. A. & C. R. Co. v. Buck, 116 Ind. 566, 19 N. E. 453, 2 L. R. A. 520, 9 Am. St. Rep. 883; Schmid v. Humphrey, 48 Iowa 652, 30 Am. Rep. 414; Stewart v. Davis, 31 Ark. 518, 31 Am. Rep. 576.

We think, however, a complete answer to the argument that the violation of the Sunday law is a defense is chat appellee was not violating’ the Sunday law.

We do not deem it necessary to set out the instructions, hut we have carefully considered the objections of appellant and have reached the conclusion that the jury was correctly instructed.

The judgment of the circuit court is affirmed.


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    Collins v. State.
    Opinion delivered March 9, 1931.

      E. D. Chastain, for appellant.

      Hal L.Nomuood, Attorney General, and Bobert F. Smith, Assistant, for appellee.
   Mehaffy, J.

Appellant was convicted in the Crawford Circuit Court of the crime of carrying a pistol. A jury was selected, and at the close of the evidence the court directed the jury to return a verdict of guilty, and the punishment was fixed at a fine of $50. Motion for new trial was filed, which was overruled, and the case is here on appeal.

The Attorney General confesses error on the ground that the court had no power to direct a verdict of guilty because the punishment could have been imprisonment, and also on the ground that the evidence, being in conflict as to whether the appellant was on a journey, should have been submitted to the .jury.

Upon a careful examination of the record we find that the confession of error is well taken. The statute provides that any person convicted of carrying a pistol shall be punished by a fine of not less than $50 or more than $200 or imprisonment in the county jail for not less than 30 days nor more than three months or by-both fine and imprisonment. Crawford & Moses’ Digest, § 2806.

In misdemeanor cases, where the punishment is by fine only, the circuit judg’e would have the power to direct a verdict of guilty where the facts were undisputed and where guilt from all the evidence was the only inference that could be drawn. But where the punishment may be imprisonment or where the law provides that it may be fine or imprisonment, the trial judge has no power to direct a verdict. Roberts v. State, 84 Ark. 564, 106 S. W. 952; Wylie v. State, 131 Ark. 573, 131 S. W. 573; Parker, v. State, 130 Ark. 234, 197 S. W. 283; Snead v. State, 134 Ark. 303, 203 S. W. 703; Burton v. State, 135 Ark. 164, 203 S. W. 1023; Huff v. State, 164 Ark. 211, 261 S. W. 654.

It therefore appears settled by the decisions of this court that the trial judge is without power to direct a verdict of guilty where the punishment may be imprisonment.

The appellant in this case testified in substance that he was on a journey at the time he was carrying a pistol, and he was therefore not carrying- it in violation of the statute. The statute reads in part as follows: “Provided further nothing- in this act shall be so construed as to prohibit any person from carrying any weapon when upon a journey or upon his premises. Section 2804, Crawford & Moses’ Digest. Appellant’s testimony was corroborated by another witness. The evidence was in conflict as to whether appellant was at the time on a journey and whether he was or not was therefore a question for the jury.

“A verdict should not be directed except in cases where the evidence is so conclusive that reasonable minds could not differ as to the result to be reached. A verdict should not be directed unless the proof is free from substantial conflict, although the evidence preponderates in favor of one of the parties or although the conflict arises by indirection.” Paxton v. State, 114 Ark. 393, 170 S. W. 80 Ann. Cas. 1916A, 1239; Ellington v. Denniny, 99 Ark. 236, 138 S. W. 453; Pillow v. State, 160 Ark. 195, 254 S. W. 462; Allen v. State, 165 Ark. 261, 298 S. W. 993.

The judgment of the circuit court is reversed, and the case remanded for new trial.


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    Arnold v. State.
    Opinion delivered March 9, 1931.

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

This case is here on appeal from conviction on the charge of possessing liquor for sale. The appellant has filed no brief, but it is suggested in the abstract and brief filed by the appellee that the grounds'assigned are that the verdict of the jury was not supported by sufficient legal testimony, that it was error not to quash the information because the prosecution was for an alleged violation of a city ordinance, that the State was not a proper party, and that the court erred in the admission of testimony regarding- previous raids on defendant’s premises and the search of same.

The evidence, about which there is no dispute, tended to establish the fact that upon search of defendant’s premises eighteen gallons of whiskey were found, and that at other times the officers had found on his premises beer in his ice box, a lot of empty bottles and a plain trail leading from defendant’s back door to a vacant house nearby in which was found from one to two hundred bottles of home-brew and two gallon jars of the brew in process of fermentation; that there was no other trail except that from defendant’s back door to this vacant house; that on another occasion one of the police officers of the city of Hot Springs found from eight to a dozen bottles of home-brew at the home of defendant and met a drunken man coming out of defendant’s house. The defendant did not testify in the case. The evidence, while circumstantial, was sufficient to go to the jury, and the weight of such evidence was a question for their determination.

The refusal to quash was not error as defendant was charged with violation of a State law which is found in Acts 1925, p. 363, § 1. We have held that where the defendant is charged with transporting liquor in violation of a city ordinance, and where from a conviction in the mayor’s court on appeal to the circuit court it is found that he is not guilty of violating a city ordinance but of a violation of the State law against the transportation of liquor, on a verdict of guilty judgment is properly rendered.

We have many times decided that testimony relative to the search of the premises of one charged with the violation of the liquor law and the finding of liquor or vessels that have contained liquor were properly admitted as tending to shed light on the truth or falsity of the charge for which the defendant was tried. The rulings of the trial court as disclosed by the record, which we have examined, were perhaps more favorable to the defendant than he deserved, but the penalty for the offense charged is found in Acts 1925, p. 363, § 2, which is a fine in any sum not more than $1,000 nor less than $50. The court, therefore, erred in its instruction to the jury relative to the amount of punishment they might fix upon conviction, and in its judgment based upon such verdict which was for a fine of $200 and imprisonment in the county jail for a period of thirty days.

The judgment of the trial court will therefore be modified by eliminating that part of it which provides for imprisonment in the county .jail for thirty days, and as modified will be affirmed. It is so ordered.