author: McCulloch, C. <1.

text:
    Pritchett v. Road Improvement District No. 2, Stone County.
    Opinion delivered November 13, 1922.
    1. Sunday — employee’s compensation. — Where a contract between a road improvement district and an engineer provides for a per diem for each day after the expiration of the time fixed for the completion of the contract, in addition to other compensation, Sundays are properly excluded from the estimate of such overtime.
    2. Master and servant — overtime allowance op engineer op road district. — Where, a contract between a road improvement district and a supervising engineer provided for a per diem to the engineer for each day after the expiration of the time in which the contract is to be fulfilled by the contractor, no allowance for overtime should be made where the delay was occasioned by the engineer’s fault in underestimating the cost of the work, thereby causing the commissioners to borrow an insufficient amount of money to complete the work. '
    3. Master and servant — right op engineer to percentage.— Where a contract between a road improvement district and an engineer provided for a commission to the engineer of 5 per cent, on the cost of construction, and it appeared that the cost greatly exceeded the engineer’s estimate, the engineer was nevertheless entitled to such commission on the cost of construction; the district having suffered no injury by reason of the underestimate.
    Appeal from Stone Chancery Court; Lyman F. Reeder, Chancellor;
    reversed.

      Coleman, Robinson & Roíase, for appellant.

      Williamson & Williamson, for appellee.
   McCulloch, C. <1.

Appellee was organized as a road improvement district in Stone County under general statutes authorizing the creation of such districts by order of the county • court, and appellant was employed as engineer to form plans and supervise the work of construction, and his compensation was fixed in the contract at five per centum of the cost of constructing the improvement. The contract contained also the following clause with respect to additional compensation for overtime caused by delay:

“The party of the first part agrees that, in the event the work herein contemplated is not completed within the time limit as prescribed by the contract to be entered into between the board of commissioners and the contractor or contractors, whether the delay is caused by the commissioners or by the contractor, the party of the first part will pay to the party of the second part the sum of $12.50 per day for each day after the expiration of the time in which the contract is to be fulfilled by the contractor. The said sum shall be in addition to the amounts prescribed in the previous section of this contract”

The cost of construction under appellant’s supervision amounted to the sum of $93,097.15, and the commission under the terms of the contract was $4,654.86. There was a delay of 324 days in the completion of the work of construction as fixed in the contract between the district and the contractors, and appellant has been paid by the district said commission of $4,654.86, and also has been paid the further sum of $2,790.60 as additional compensation during the delay.

Appellant instituted the present action against the district in the chancery court of Stone County to recover the additional sum of $1,259.40, alleged to be due him for per diem during the delay in completion of the contract.

Appellee filed a cross-complaint, alleging that the delay was caused by the fault of appellant in rendering incorrect estimates of the cost of the improvement, and that he was not entitled to recover anything for per diem during such delay. It is alleged that appellant was indebted to the district in the sum of $5,070.82 for the amount overpaid him, and there is a prayer for recovery of that amount.

The case was tried before the chancellor, there being no question raised as to that court being the proper forum for determining the issues, and there was a decree in favor of appellee for the recovery against appellant of the sum of $215.60. It is conceded that the court, in reaching this result, allowed appellant’s claim for $12.50 per day during the additional period of delay, excluding Sundays, amounting to $684.40, but charged appellant with the sum of $900, which the court found that appellant was not entitled to by reason of the fact that he had incorrectly estimated the cost of construction $18,000 less than the actual cost.

We have reached the conclusion that the court whs not correct, either in allowing appellant to recover the overtime charged or in charging him back with the $900 for alleged mistake in estimate. The court was correct, in excluding Sundays from the estimate of overtime to be allowed, but we think that, under the facts of the case, appellant was not entitled to recover anything on this ■feature of the contract.

A fair and reasonable interpretation of the contract is-that appellant was to be allowed pay only during delay caused by the commissioners or by the contractor. The proof shows that the real cause of the delay for which appellant makes the present overtime charge was brought about by reason of the fact that the district was without funds, and that the construction work had to stop on that account. This was. due to the incorrectness of appellant’s preliminary estimates, and it was therefore not a delay caused by the commissioners or the contractor. The inaccuracy of the estimates may have resulted without fault or' carelessness on the part of appellant, but the delay resulted, nevertheless, not from any fault of the commissioners, but from this inaccuracy in the estimates which caused them to borrow a smaller sum of money than they subsequently found to be necessary in completing the improvement. This was one of the contingencies which the contract for overtime payment during the period •■of delay did not cover, for, as we have already said, the contract, when fairly interpreted, means that appellant was to be paid for overtime in case of delay caused by the commissioners or by the contractor. He took his chances on incidental delays caused otherwise than by the fault of the commissioners or the contractor. For this reason we are, as before stated, of the opinion that appellant is not entitled to recover the sum he nowr claims for the additional overtime.

There was a settlement made between the parties as to part of the overtime charge, and no sufficient ground is shown for disregarding the settlement and allowing the recovery of this amount thus voluntarily paid.

The court found that the cost of construction -was $18,000 in excess of appellant’s final estimate of the cost, and for this reason appellant was not entitled to the commission on that additional cost, and that he should be required to pay it back. The evidence establishes that this much of the increased cost of the improvement resulted from the difference in the estimate on the classification of material removed in constructing- the road — the difference between the removal of earth and rock. The evidence shows also that this was such an inaccuracy as did not result from fault or carelessness, being- a matter about which there could be no exact estimate on account of the surface indications.

Be this as it may, the inaccuracy did not result in injury to ■■the district, for if the mistake had not been made it would not have lessened the cost of the work to the district. It is true that there was a delay in the work on account of this additional cost, running in excess of the limits fixed by the general statutes, but this defect was subsequently cured by a special act of the Legislature, and the work proceeded with the limitation removed.

But, after all, there was no injury to the district by reason of the mistake in the estimate, and the occurrence of such a mistake was not sufficient to deny appellant’s right to recover the amount of compensation stipulated in the contract, viz: five per centum of the actual cost of construction.

Our conclusion therefore is that the chancellor was incorrect in making both allowances, the one to appellant for overtime, and the other to appellee for recovery of the five per centum commission on the $18,000 increase in the cost of construction. The decree is therefore reversed,' and judgment will be entered here' dismissing both the complaint and cross-complaint. It is so ordered.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    St. Louis-San Francisco Railway Company v. Smith.
    Opinion delivered November 13, 1923.
    1. Carriers — burden of proving unlawful eviction. — Where a carrier denies a passenger’s allegation that a train auditor forcibly and unlawfully ejected him, the passenger has the burden of proving his unlawful eviction.
    2. £ Carriers — eviction of passenger. — Under Crawford & Moses’ Dig., § 879, authorizing railroads to charge one-half fare for children between 5 and 12, and §- 881, authorizing the eviction of any person from a train who refuses to pay fare or toll, a railroad could evict from its train both a father who had paid his fare and his minor child, more than 5 years old, under his custody and control, but whose fare he refused to pay.
    Appeal from Little River Circuit Court; James S. Steel, Judge;
    reversed.

      King, Mahaffy & Wheeler, for appellant.
    Tbe verdict was contrary to and unsupported by the evidence, in that the preponderance proved that plaintiff was not evicted from the train. The preponderance of the evidence also proved that plaintiff was not cursed, abused and maltreated, and under the following authorities was entitled to a reversal of the judgment. 70 Ark. 385; 57 Ark. 402; 206 S. W. (Ark.) 895; 20 Ark. 600; 63 Ark. 65.
    Appellant had the right to evict appellee under the law because of the nonpayment of fare of his son. 10 C. J. 933; 55 S. W. 304; 102 S. W. 157; 191 S. W. 386; 62 Md. 300. Appellee was required to pay half fare for his son, C. & M. Dig. sec. 879; and under sec. 881 could be evicted for failure to do so.
    Appellant having the legal right to evict appellee, there was no basis for the assessment of damages for humiliation, since he was not entitled to damages for the eviction. Mental suffering alone cannot be made the subject of an independent action for damages. 64 Ark. 538; 84 Ark. 42-; 116 S. W. 192; 140 S. W. 141; 104 S. W. 554; 127 S. W. 707.
    The case should be reversed and the cause dismissed.

      A. D. DuLaney and Jolm J. DuLaney, for appellee.
    It is not necessary that there be an actual physical ejection to recover damages. Certainly there was restraint or coercion, and, under such state of facts, appellee was entitled to recover. 89 Ark. 188.
    There was sufficient evidence to sustain the jury’s findings, and they will not be disturbed on appeal. 125 Ark. 314; 88 Ark. 164; 92 Ark. 569; 88 Ark. 200; 110 Ark. 632; 96 Ark. 405.
    Sec. 879, C. & M. Digest, does not authorize eviction for nonpayment of the half fare authorized to he charged for a child. The right to evict was not raised in the lower court and cannot be here raised for the first time. 137 Ark. 530.
   Wood, J.

The appellee instituted this action against the appellant to recover damages.for an alleged unlawful eviction and for maltreatment. Appellee alleged that on the 28th day of May, 1921, he was a passenger on appellant’s road from its station at Ashdown, Arkansas, to Orton, Arkansas; that while on the train as such passenger the auditor cursed, 'abused, and maltreated him, and used in his presence violent, profane and insulting language, and forcibly evicted him from the train at Bed Bluff station, three miles west of his destination; that said eviction and abusive and insulting language was unlawfully and wilfully done; that he suffered shame and humiliation from the cursing, which occurred'in the presence of other passengers on the train and in the presence of his young son, who was with him at the time, all to his damage in sum of $500, for which he asked judgment.

■ In its answer, the appellant denied specifically the allegations of the complaint. The testimony on behalf of the appellee was substantially as follows: He was a passenger on appellant’s train between Ashdown and Orton, Arkansas, on May 28,1921. He got on the train with his little boy, and gave the auditor his ticket. He had a sack of flour with him, and after he gave his ticket to the auditor the auditor asked him what he was going to do with the sack of flour, and why he didn’t give it to the baggage man. Appellee then detailed the conversation as follows: “He told me, ‘By God, the Frisco wasn’t running a charity train; there had been too much of that done on the Frisco line, parents running their- children through and not paying’ anything-; they all claim they are under five years old; you might have told the truth about the kid being six years old’ — I mean seven years old. I says, ‘I ought to know the kid’s age.’ He says, ‘That don’t make any difference. By God, you have got to pay for him!’ and I gave him a dime. He says, ‘I am going to put you off; that ain’t enough to pay the kid’s fare to Orton or Red Bluff, or not even to Long. ’ ' I says, ‘This is all I have got’; and John Machen and Ben Wright was sitting across the aisle from me. I asked John did he have any money that'I could pay my kid’s fare as far as Red Bluff anyhow. He said no, he didn’t have nothing only train fare himself, and Ben Wright told me he had a dime he -would loan me, and when he loaned me the dime the auditor came back and says, ‘By God, have you dug that money up yet?’ I says I have got part of it. What do I have to pay for the kid’s fare to Orton?’ He says 24 cents. He says, ‘What have you got?’ I says ‘Another dime.’ I handed it to him, and he says ‘I will let you and the kid go on to Red Bluff, and if you can’t dig up the rest of the fare you will sure as hell get off at Red Bluff.’ And about the time we got to Red Bluff the brakie hollered ‘Red Bluff,’ and he came to the door too and started in and asked me-so he came to the door — I was in the smoker — came to the door and told me he was going to put,the kid off. I says, ‘If you put the kid off I am going to get off with him; if you put the kid óff I will have to get off too'.’ I told him to give me part of my money back, ‘I ought'to have a little coming if you ain’t going to carry me on to Orton.-’ He' says,- ‘Give you hell if you look like you wanted it.’ He says, ‘You can ride on to Red Bluff or get off. ’ John Machen took hold the kid and says, ‘ Come on, son, yonr papa is liable to have a fight with the auditor. ’ I had some stuff in a sack and a sack of flour, and I picked up my stuff and got off, and I had to walk then in home about three miles ’. ’ ’

The appellee further testified that the language used to him by the auditor was humiliating; that he was crippled in one of his legs; was in poor health; had been sick, and came very near getting too hot walking from Bed Bluff to his home at Orton, a distance of about three miles. Besides the sack of flour, he had lard and a bucket of molasses in a sack, and also a pair of overalls.

A witness on behalf of the appellant testified that he was the auditor on the train on the occasion testified to by the appellee. Witness remembered that the man got on the train at Ashdown, and had a ticket for himself. He didn’t have any ticket for his child. Witness told the man to borrow the money from some of his friends on the train. Some one loaned the man some money. Witness didn’t remember how much. He collected the fare and cut the passenger a cash fare receipt and let them ride to their destination. He didn’t tell the appellee that he would have to get off at Bed Bluff, and did not curse him or use any profane and abusive language toward him. ,On cross-examination he stated that he didn’t remember whether he told appellee that he would have to get off. Witness presumed that if he collected the man’s fare and the child’s fare they would .get off at their destination. He denied telling the appellee that he would give him hell if he wanted his money back, and stated that he didn’t talk in a loud tone of voice* He didn’t remember taking up Smith’s ticket from Ashdown to Orton, and didn’t remember appellee having a sack of flour with him — couldn’t say whether he gave a cash fare slip to Smith or any one else.

Testimony of other witnesses who were on the train at the time corroborated the testimony of the auditor to the effect that he did not curse the appellee or use any profane or .abusive language in his presence.

The appellee testified, in rebuttal, that the auditor gave him a cash fare slip for his boy from Ashdown to Bed Bluff, and the auditor also gave him back two eents.

The court instructed the jury, at the request of the appellee, as follows: “No.4. You are instructed that, if you find that P. A. Smith purchased a ticket from the defendant, and boarded its train at Ashdown, Arkansas, and gave said ticket to the defendant’s auditor for transportation from Ashdown to Orton, then the relation of carrier and passenger existed, and it was the duty of the defendant to transport the plaintiff to Orton on its train; and if you further find from a preponderance of the evidence that the defendant’s auditor ejected the plaintiff from its train at Bed Bluff, and used insulting language toward him, then you should find for the plaintiff in damages such sum as will reasonably 'Compensate him for such ejection, inconvenience, insults and humiliation as he suffered therefrom, if any you may find, not to exceed the amount sued for.”

At the request of the appellant the court instructed the jury as follows: “No. 1. The court instructs you that, if you find from the evidence that defendant’s servant did not curse and abuse plaintiff, and the plaintiff voluntarily left the train at Bed Bluff, then the defendant would not be liable to the plaintiff, and you will return a verdict in its favor.”

The appellant objected generally to the instruction given at the request of the appellee, and also specifically as follows: “Because it authorizes the jury, in the event they should find for the plaintiff, to recover damages for mental anguish. * * * There is no physical ejection at all. If there is any ejection at all it is constructive purely. * * * Mental anguish is not recoverable for merely constructive ejection.”

The appellant, in its motion for a new trial, assigned as error the giving of appellee’s instruction No. 1, and also the general assignments that the verdict was against the evidence and against both the law and the evidence.

1. The appellee alleged that he was forcibly evicted from the train, and also that the eviction was unlawfully and wilfully done. Appellant denied that the auditor of its train forcibly evicted appellee, and denied that such alleged eviction was unlawfully and wilfully done. Thus the pleadings raised the issue as to whether or not the appellee was forcibly, unlawfully and wilfully evicted from the appellant’s train. In Hall v. Waters, 118 Ark. 427-432, we said: “Each and all of the material allegations of appellant’s complaint were specifically denied by the allegations of appellee’s answer. The denials were as specific as the allegations. This placed the burden upon the appellant to prove the allegations of his complaint. * * * So here the answer of the appellant challenged the allegations of the appellee’s complaint, and placed the burden upon the appellee to prove that there was an unlawful eviction. Such proof was essential to appellee’s cause of action for an eviction. The proof was directed to the issue as to whether or not there was an unlawful eviction, and the appellee’s instruction as well as the instruction for the appellant presented the issue as to whether or not the appellee was ejected from the appellant’s train, or whether he voluntarily left the same. ’ ’

The undisputed testimony shows that the appellee’s son was over five years of age; that the auditor demanded the fare for this child, the appellee did not pay the same, and the auditor informed the appellee that he would have to pay the fare for the child or he would put him off at Red BÍuff. When they reached Red Bluff the appellee still had not paid the fare of his son to Orton. Appellee had only paid twenty cents to Red Bluff, and the fare to Orton was twenty-four cents. At Red Bluff appellee and appellant’s auditor were in a controversy concerning the fare. Appellee wanted the auditor to pay him part' of the money back, which the auditor refused to do. John Machen, one of the passengers who was getting off at Bed Bluff, took hold of the appellee’s hoy and said, “Come on,” whereupon the appellee, according to his own testimony, picked up his stuff and got off the train. The auditor did not take hold of the appellee.

It thus appears from the undisputed testimony that the appellee got off the train at Bed Bluff because the auditor had refused to carry the appellee’s child to Orton, unless his fare was paid, which was not done. The question therefore is whether or not, under the above undisputed facts, the appellant had the right to require the appellee to leave its train because he had not paid his son’s fare from Bed Bluff to Orton.

Sec. 879 of C. & M. Digest authorizes railroads to charge one-half fare for children between the ages of five and twelve years, and sec. 881 authorizes the eviction of any person from railway trains who refuses to pay fare or toll, the eviction to take place at any usual stopping place the conductor may select. The father, having the custody and control of his minor child when he took same upon the train with him as a passenger,'was under the duty to pay his fare. Such was his duty as the natural guardian and protector of his child, and, upon his failure to do so, the appellant had the right to eject both father and child from its train. Philadelphia, etc., Ry. Co. v. Hoeflich, 62 Md. 300, and other cases cited in note, 10 C. J., sec. 1172, p. 733.

It follows from the undisputed evidence that no cause of áction in favor of the appellee against the appellant could be predicated upon an unlawful eviction, for there was none. The appellee contends that the question of whether or not he could recover if he refused to pay the fare of his minor son from Bed Bluff to Orton was not an issue in the court below and was not presented either to the court or jury. But we do not agree with the appellee in this contention. It was necessarily raised and was developed in the testimony on the issue as to whether or not there was an unlawful eviction of the appellee. It was incumbent on the appellee to prove that there was an -unlawful eviction, before he established his cause of action. One of the grounds of the motion for a new trial is that the evidence was insufficient to sustain the verdict.

The judgment is therefore reversed, and the cause is dismissed.


author: Wood, J. Humphreys, J.,

text:
    Leslie v. State.
    Opinion delivered November 13, 1922.
    1. Criminal law — harmless error. — Accused cannot avail himself of alleged error of the court in overruling a challenge of jurors for cause where the record does not show that he exhausted his challenges.
    2. Intoxicating liquors — testimony as to alcohol received by druggist. — In a prosecution of a druggist for unlawfully selling intoxicating liquor, testimony of the Federal prohibition agent as to the quantity of alcohol defendant had received and used within a certain period, and that the amount thereof greatly exceeded the quantity used by other druggists similarly situated, was admissible on the question whether unlawful use had been made of the alcohol.
    3. Criminal law — sale of intoxicating liquors — proof of custom. — Where a druggist admitted having sold intoxicating compounds, it was not error to exclude testimony that other druggists in the town sold such liquors.
    4. Intoxicating liquors — relevancy of evidence. — In a prosecution of a druggist for unlawfully selling intoxicating liquors, testimony of another druggist that he had a permit to use alcohol in his business during a certain year, but did not do so, was irrelevant and immaterial; but such testimony was not prejudicial where the witness on cross-examination explained that the reason he did not use alcohol during that year was that, instead of making his own tinctures, he bought the drugs already compounded with alcohol in them.
    6. Criminal law — exclusion of evidence. — Where a druggist admitted having sold certain alcoholic compounds, it was not error to refuse to permit him to show that alcohol was a necessary preservative in such compounds where he did not offer to prove that such compounds did not contain more alcohol than was necessary to preserve them as medicine.
    6. Criminal law — exclusion of evidence. — In a prosecution of a druggist for the unlawful sale of intoxicating liquor, in which a witness testified that he bought a bottle of patent medicine containing alcohol from defendant, .refusal to permit the witness to state for what purpose he bought it was harmless when he was subsequently permitted to state that he took it for constipation and not for a beverage.
    7. Criminal law — exclusion of evidence. — In a prosecution of a druggist for unlawfully selling intoxicating liquors, where the State proved that intoxicated persons were arrested having bottles containing a medicine called “Lyko” on their persons purchased from defendant, and the State was permitted to exhibit to tjie jury a bottle of such medicine for the purpose of showing the label and the liquor, it was not error to exclude testimony that the particular bottle so exhibited came from another drugstore.
    8. Criminal law — evidence.—It was competent for a physician to testify that he knew the ordinary per cent, of alcohol in Jamaica Ginger, that it contained 94 per cent, of alcohol, and that it could be used as a beverage.
    9. Intoxicating liquors — intent of purchaser. — Under Crawford & Moses’ Dig., §§ 6160, 6181, it is a violation of law to sell or to be interested in the sale of alcoholic, vinous, malt, spirituous or fermented liquors, or any compound or preparation of these commonly called tonics, bitters, or medicated liquors, regardless of whether or not they are to be used or intended by the seller or purchaser to be used as beverages.
    10. Intoxicating liquors — exception in favor of druggists. — Under Crawford & Moses’ Dig., § 6181, making it lawful “for any registered pharmacist or physician to have shipped and delivered to him such necessary quantities of alcohol as may be required in his business or practice,” druggists are prohibited from making or selling or giving 'away of bitters or medicated liquors where alcohol or any one of the other liquors mentioned is the dominating ingredient, or where the alcohol is used not merely for preserving the tincture or compound as a medicine, but in suéh a way that it is fit to be used as a beverage; but if drugs containing only the necessary quantity of alcohol to compound and preserve them as medicines are sold, then such sale is not unlawful because some one of abnormal appetite* depraved habits or perverted taste buys such medicines for use as a beverage.
    Appeal from Little River Circuit Court; James S. Steel, Judge;
    affirmed.

      A. D. DuLaney and June R. Morrell, for appellant.
    , J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
   Wood, J.

This is an appeal from a judgment of conviction on an indictment which charged that appellant “did unlawfully and feloniously sell and give away, and was unlawfully and feloniously interested in the selling and giving away of ardent, vinous, malt, fermented, spirituous, intoxicating, alcoholic and medicated liquors.”

The appellant contends that the court erred in failing to excuse two of the regular panel of the petit jury for cause. Appellant excused these jurors by peremptory challenge, and the record does not show that he exhausted his challenges. Therefore, it does not appear that the appellant was compelled to accept these jurors and that an objectionable juror was thrust upon him. In this state of the record the appellant cannot avail himself of the alleged error of the court in overruling the challenge of the jurors for cause. Benton v. State, 30 Ark. 328; Wright v. State, 35 Ark. 639; Holt v. State, 91 Ark. 576; Lewis v. State, ante, p. 205.

2. W. A. Garner testified that-he was a Federal prohibition agent having his office at Little Rock, Arkansas. It 'was his duty to make investigation of the amount of alcoholic liquors handled by druggists as well as individuals throughout the State of Arkansas. Over the objection of appellant the witness was permitted to testify that from January 5 to August 10,1921, a period that was ,covered by the indictment, the appellant had received about fifty-two gallons of alcohol. In explanation of the' amount of alcohol received by appellant during this period, he stated that his permit allowed him to receive this amount, and he thought he was within Ms rights in withdrawing it. Witness further- testified, over the objection of appellant, that the amount of alcohol during this period which was mentioned as withdrawn by the appellant. under his permit “is considerably in excess of the quantity used by a majority — say 85 per cent, .of the drugstores of this State of the same kind and character of towns the size of this.” The witness, over the objection of the appellant, was permitted to testify with reference to the regulations of the United States Government concerning the use by druggists of alcohol, showing that druggists were required to keep a daily record showing how the alcohol purchased was used, and to render reports on a certain form on or before the fifth of each month of all alcohol received and how disposed of by them during the preceding month. The witness stated that he was from time to time reporting the failure of druggists to comply with that regulation, and as a result of witness ’ report to the department the regulation of June 15, 1922, to which the wdtness referred, had been written by the prohibition' director. There was no record in the Model Drugstore, of which the appellant was the proprietor, showing the disposition of the alcohol, except appellant had the reports for probably two or three months, which stated as follows: “I used four gallons or ten gallons during this period.” Appellant did not state for what purpose it was used. At the conclusion of the witness’ testimony, the appellant moved the court to instruct the jury not to consider any of the statement with reference to what the Federal regulations required.

The court overruled the motion to exclude, with the following statement to the jury: “The only purpose of this is a circumstance showing whether or not the alcohol was used legitimately or improperly; that is the only purpose, and that is just simply a circumstance to guide you in the matter.” There was no error in the rulings of the court. The appellant himself admitted in his testimony that the quantity of alcohol which he had received under the regulations of the United States Government was the same as that testified to by Garner. Therefore, appellant was not prejudiced by the testimony of Garner as to the quantitv of alcohol appellant had handled during a certain period. Moreover, the indictment against the appellant included a charge of unlawfully and feloniously selling and, giving away alcoholic liquors. It was therefore competent and relevant for the State to prove what quantities of alcohol had been received by appellant and what disposition he had made of the same. Hanlon v. State, 51 Ark. 186; Gage v. State, 125 Ark. 256.

The duties of Garner as Federal prohibition agent required him to visit the drugstores throughout the State and make report of the amount of alcohol that was being used by druggists under the government regulation. He therefore had first-hand knowledge of the towns of the size in which appellant was doing business and what quantity of alcohol usually was handled under the government regulations by druggists engaged in the same kind of business and of equal size of that appellant was engaged in. The testimony of Garner therefore to the effect that the appellant used a quantity of alcohol greatly in excess of the quantity used by other druggists similarly situated was competent as a circumstance, in connection with the other circumstances, to be considered by the jury in determining whether or not the appellant was making lawful or unlawful use of the alcohol received by him. See Joyce on Intoxicating Liquors, §§ 66&-671.

One J. R. Pierce, the sheriff of Little River County, was permitted, over the objection of appellant, to testify that he had arrested people who were drunk and who had in their possession bottles of Lyko, Beef, Iron and Wine, Jamaica ginger, etc. He took these bottles of medicated liquors off the individuals and destroyed them. Three or four times he got a lot of them back of appellant’s store. He had discussed the matter of the sale of these liquors with the appellant two or three times. Appellant did not deny selling them, but he didn’t admit that they were medicated liquors.

The appellant offered to show that other1 stores in the town sold these liquors, but the court refused to allow such testimony. There was no error in this ruling of the court. The appellant himself testified that he sold Lyko, Beef, Iron and Wine, but he stated that these tinctures were commonly sold in drugstores; that he sold them as medicines. He stated that Beef, Iron and Wine contained 19 per cent, of alcohol, and tincture of Jamaica ginger contained about 95 per cent. He had not at any time handled or sold any drug that was contraband under government regulations. There was other testimony introduced on behalf of the appellant tending to show that Lyko, Beef, Iron and Wine were tonics, but were not intoxicating. Since the appellant admitted, and the undisputed testimony shows, that the appellant sold Beef, ■ Iron and Wine, and-Lyko, it was wholly immaterial whether other persons in the same town also sold the same liquors or not. Appellant did not deny the sale, but only denied that they were medicated liquors within the inhibition of the statute. The testimony tending to prove that Lyko, Beef, Iron and Wine, and Jamaica ginger were intoxicating, that persons were found in an intoxicated condition.with bottles containing these liquors upon their persons, was relevant to the issue as to whether or not the appellant sold the medicated liguors prohibited by law, as charged in the indictment.

B. D. Huskins, a witness, over the objection of appellant, testified that he was a druggist at DeQueen and had a permit to use alcohol in his drug business in the year 1921, but he didn’t use any alcohol in his business. The testimony thus elicited on direct examination by the State was wholly irrelevant and immaterial, and, if the examination had ended there, might have been prejudicial, as the jury might have inferred that if it was not necessary for another druggist of the same character of appellant to use alcohol in his business, neither was it necessary for the appellant to do so. But, after the examination for the State had closed, the appellant on cross-examination caused the witness to testify that he, witness, did not make his own tinctures in 1921, and that in compounding tinctures it was necessary to use alcohol as a preservative. The appellant here made the witness his own and proved by him that alcohol was used in compounding a large number of tinctures; that the reason the witness did not use alcohol during the year 1921 was because, instead of making his own tinctures, he bought the drugs already compounded with alcohol in them. The irrelevant testimony of this witness elicited by the State was thus nullified and its prejudicial effect removed by the explanation of the witness ('brought out by appellant) to the effect that, if he had made his own drugs, it would have been necessary to use alcohol in compounding them.

The State again examined the witness as her own, and, over the objection of appellant, proved by him that he did compound his own tinctures in the year 1919-1920, and that he used that year four and seven-eighths gallons of alcohol. The witness thought it was a little cheaper for a druggist to compound his own tinctures than to purchase them from pharmaceutical houses. The witness stated, over the objection of appellant, that the percentage of alcohol in Jamaica ginger was pretty large. The appellant was not permitted to prove by this witness that alcohol was a necessary preservative in Lyko, Beef, Iron and Wine, Prickly Ash Bitters, Sarsaparilla, and patent medicines of that character. The court ruled that it was wholly immaterial whether alcohol was necessary to preserve them or not; that the only issue was as to whether they were such medicated liquors as were used as beverages. The appellant did not offer to prove and did not prove that the Lyiro, etc., -contained only such a percentag*e of alcohol as was necessary to compound and preserve them as medicines, and no more.

Bo-b Rowe, a witness for the State, testified that he bought a bottle of Lyko from the appellant last fall (1921). He did not drink it for intoxication. The appellant, on cross-examination, asked the witness “for what purpose he bought it?” The court sustained the objection to the question, stating “What purpose he used it for is the rule of law.” The -appellant was further permitted to show by the witness that he took the Lyko for constipation; that he bought it and used it for that purpose, and did not use it as a beverage.

The State was permitted, over the objection of appellant, to show that on certain occasions, within the time covered by the indictment, a man by the name of McFadden was arrested on the street for being drunk, and that two ¡bottles of Lyko were found on his person. McFadden testified that he purchased the Lyko from the appellant, and had not purchased it from any other place than the Model Drugstore. The State was also permitted to show that on another occasion the officers arrested one Charlie Jordan, in a drunken condition, in an alley back of the appellant’s store, and he had upon his person at the time a bottle of Lyko-, and also arrested another party who was drunk and had an empty bottle, which had contained Lyko, on his person. A witness for the State was permitted to exhibit to the jury a bottle of Lyko, the court announcing at the time that it was done for the purpose of showing the label and the liquid itself. The appellant offered to prove that this particular bottle of Lyko came from Phillips’ drugstore. The court ruled that it was immaterial where the bottle came from.

J. ~W. Ringgold, a witness for the State, was permitted to testify, over the objection of appellant, that he had been -a practicing physician for 29 years; that he knew the ordinary per cent, of alcohol in Jamaica ginger; that it contained 94 per cent, of alcohol, and that it could be used as a beverage.

There was no error in the rulings of the court in the admission of any of the above testimony. As we have seen, it was competent to prove by one who did a drug business about equal to that of the appellant that in the compounding of tinctures and the preservation of .drugs it was unnecessary to use the large quantities of alcohol shown to be used 'by the appellant between January 5 and August 10,1921. The testimony of R. D. Huskins tended to prove that fact, and it was relevant. As we have also shown, appellant did not deny that he sold Lykó. His sole defense was that it was not an alcoholic or medicated liquor within the meaning of the statute, and that it was sold hy him as a medicine. Testimony therefore tending to prove that Lyko, Jamaica ginger, and the other liquors sold hy the appellant contained alcohol, that they were intoxicating, were sold hy appellant, and used by the purchasers thereof as beverages, was relevant to the charge in the indictment.

3. The court instructed the jury, over the objection of the appellant, in effect that if they believed beyond a reasonable doubt that the appellant sold, or was interested in the sale of, alcoholic or medicated liquors as alleged in the indictment, they should convict him; that if the sale was made by the Model Drugstore, in which the appellant was interested, this would be sufficient. The court further instructed the jury that, under the law, any person who sells medicine containing alcoholic properties does so at his peril, and that if the jury believed beyond a reasonable doubt that the appellant sold medicated and intoxicating liquors that were used or intended to be used for beverage purposes, they should convict him. The court further told the jury that if the appellant sold medicated liquors it was no defense that same were sold in good faith as medicine; that if medicated and alcoholic liquors were sold and same were used as intoxicating beverages, the appellant would be guilty.

The appellant requested the court to instruct-the jury in substance that it was not unlawful to use alcohol for medicinal purposes or to sell the same when it was compounded with medicine for medical uses and purposes; and further, that it was lawful to use alcohol as a necessary preservative of certain drugs, tinctures, bitters and medicated liquors, and that, although the jury might find that the medicated liquors, tinctures and bitters sold by the appellant contained alcohol as a preservative thereof, the burden was on the State to prove beyond a reasonable doubt that the same was intoxicating and sold as a beverage.

Sec. 2 of act 30, approved February 6, 1915, sec. 6160, C. & M. Digest, provides as follows: “It shall be unlawful for any person, firm or corporation to manufacture, sell or give away, or be interested directly or indirectly in the manufacture, sale or giving away of any alcoholic, vinous, malt, spirituous, or fermented liquor, or any compound or preparation thereof, commonly called tonics, 'bitters, or medicated liquors, within the State of Arkansas.”

•Sec. 17 of act 87 of the Acts of 1919, sec. 6181, C. & M. Digestj provides in part as follows: “Nothing in this act shall make it unlawful * * * for any registered pharmacist or physician to have shipped and delivered to him such necessary quantities of alcohol as may be required in his business or practice.” These statutes are in pari materia and must be construed together to effectuate the purpose of the Legislature in enacting them.

Before the above laws were passed the inhibition was against selling liquors of the character mentioned “which are used and drunk as a beverage.” See sec. 5093, Kirby’s Digest. The present law contains no such exception. Therefore, it is a violation of the law now for any one to sell or be interested in the sale of the liquors mentioned in sec. 6160, iC. & M. Digest, supra, whether they are used, or intended by the seller or purchaser to be used, for beverage purposes or not. The statute is leveled against the selling or being interested in the sale of alcoholic, vinous, malt, spirituous, or fermented liquors, or any compound or preparation of these, commonly called tonics, bitters, or medicated liquors. While the lawmakers did not intend to prohibit the sale of drugs which contain only such a percentage of alcohol as is necessary to compound and preserve them as medicines, yet they did intend to prohibit the sale of the liquors named in the statute, or a compound or preparation thereof, under the guise of medicine, and as a subterfuge to cover the sale of the prohibited .liquors and medicated liquors mentioned therein. The exception- contained in the statute shows that it was the intention of the lawmakers to allow pharmacists such necessary quantities of alcohol as may be required in their business, that is, in the art and science of compounding and preparing medicine. Druggists and pharmacists are prohibited from making or selling, or giving away, or being interested in the sale or giving away of bitters, or medicated liquors, where alcohol, or any one of the other liquors mentioned, is the dominating ingredient, or where the alcohol is used not merely for preserving the tincture or compound as medicine, but in such a way that it is fit to be used as a beverage. If drugs, containing only the necessary quantity of alcohol to compound and preserve them as medicines, are sold, then such sale is not ■unlawful because some one of abnormal appetite, depraved habits, or perverted taste, buys such medicine far use as a beverage.

As was said in Gostorf v. State, 39 Ark. 458, “tonics, bitters, and medicated liquors are within the operation of the prohibitory clause of the act, irrespective of the fact that they may be useful as medicine and not so desirable as beverages as if the medicinal properties were omitted. ’ ’

It will be observed that the instructions of the court were more favorable to the appellant than he was entitled to, because the court required the jury to find beyond a reasonable doubt that the appellant did sell medicated and alcoholic liquors, or medicated and intoxicating liquors that were used or intended to be used for beverage purposes. As we have seen, it is a violation of"the law to sell alcohol and the other liquors named, or any compound or preparation thereof, commonly called tonics, bitters, or medicated liquors, whether they are used or intended to be used for beverage purposes or not. If such liquors are manufactured, sold, or given away, containing an alcoholic or intoxicating ingredient fit to be used as a beverage, then such manufacture, sale, Or giving away is within the inhibition of the statute, whether such liquors are ever actually used, or intended to he used, as a beverage or not.

In one of its instructions the court told the jury “that the burden is on the State to prove to your satisfaction, beyond a reasonable doubt, that the Lyko, Beef, Iron and Wine or Jamaica ginger, which were sold, was an alcoholic, vinous, malt, spirituous, fermented, medicated, or intoxicating liquor.” There was testimony tending to prove that the appellant sold Jamaica ginger which contained ninety-four per cent, of alcohol and that he sold Lyko and other liquors which contained from twenty to fifty per cent, of alcohol, and that these liquors had an intoxicating effect upon those who drank them. The instruction correctly declared the law applicable to the facts. See Stelle v. State, 77 Ark. 441; Dollar v. State, 153 Ark. 14.

We find it unnecessary to comment upon the rulings of the court in the granting and refusing of each of the separate prayers for instructions. The instructions as a whole contained no error of which the appellant can complain. The record presents no reversible error in the rulings of the trial court. The judgment is therefore affirmed.

Humphreys, J.,

(concurring). .1 concur in the affirmance of this case, and in the opinion, save that portion thereof which seems to intimate that the exception in favor of druggists and pharmacists is broad enough to allow them to sell or give away tonics, bitters, or other medicated liquors containing alcohol, to persons who, by reason of abnormal appetites, perverted tastes, or depraved habits, buy and use them as a beverage. One of the purposes of the law was to save people from their weaknesses and to shut every avenue through which they might obtain alcohol in any form with which to satisfy their appetites and tastes. The exception in favor of druggists was to allow them to use alcohol in their medicinal tinctures and compounds for preservative purposes only, and to restrict the giving or selling of such tinctures and compounds to use as medicines. My construction of the two statutes referred to, when read together, is that they prohibit a druggist or pharmacist from selling or giving away any tincture or compound containing any alcohol, if used by the recipient as a beverage.


author: WhioD, J.

text:
    Craig v. Collier.
    Opinion delivered November 13, 1922.
    Forcible and unlawful detainer — liability on retaining bond.— Where, in an action of unlawful detainer, a retaining bond was executed under Crawford & Moses’ Dig., § 4847, the court had jurisdiction, under § 4854, to render judgment against the surety at a term subsequent to that at which judgment was entered against the principal.
    Appeal from Prairie Chancery Court, Northern District; John M. Elliott, Chancellor;
    reversed.

      Bnmdidge £ Neelly, for appellant.
    By executing the bond, the sureties became parties to the suit, and notice to them before judgment was not necessary. 29 Ark. 208; 29 Ark. 216.

      Empnet Vaughan, for appellee.
    Where. judgment is obtained against one or more of several persons jointly bound, it is a bar to an action against the other obligators. 95 TJ.' S. 347 ; 99 U. S. 35; 2 McLean 168; 6 Wall. 231; 4 Ala. 282; 80 N. E. 92; 82 111. 84; 95 N. W. 681; 2 N. H. 448; 76 Atl. 344; 4 N. W. 774; 136 Pac. 826; 48 Wis. 477; 23 Cyc. 1208.
   WhioD, J.

This action was begun in the northern district of the Prairie Circuit Court by the appellant against the appellee in unlawful detainer, under secs. 4842-4847, Crawford & Moses ’ Digest. The appellee Collier executed a bond under the latter section to retain possession of the premises. The cause was transferred to the chancery court, where it proceeded to a decree in favor of the appellant against the appellee Collier on April 20, 1920, for the possession of the land and the sum of $400, two years’ rent found by the chancellor to be due at that time. The court retained control of the cause for such further orders “as may be proper to enforce the rights of -the parties hereto as herein adjudged.” By oversight of the attorneys of appellant, decree was not asked or rendered at that term of the court against the appellee, Irwin, who was surety on appellee Collier’s bond. The cause was appealed by the appellee Collier to the Supreme Court, where the decree of the lower court was affirmed.

The appellee Collier was insolvent. On the 17th day of February, 1921, the appellant gave notice to the appellees that she would move for judgment against the appellee Irwin as surety on the bond for the rents which had accrued at the time the decree was • rendered, and also for the sum of $200 rents which had accrued during the pendency of the cause in the Supreme Court, making a total sum of $600, for which the appellant asked judgment.

At the April term of the chancery court, in pursuance of the notice, the appellant moved the court for judgment against the appellee Collier, the principal, and appellee Irwin, the surety on his bond, in the sum of $600, rent then claimed to be due. The appellee Irwin demurred to the motion on the ground that the court had ho jurisdiction to grant the relief asked for. The court' sustained the demurrer and dismissed the appellant’s motion. The appellant stood on her motion, and prosecutes this appeal.

Under the provisions of the bond the appellee Irwin bound himself to pay such judgment as might be rendered in favor of the appellant against the appellee Collier, his principal in the bond. Sec. 4847, C. & M. Digest. Sec. 4854, C. & M. Digest, provides in part as follows: “In all cases where judgment is rendered either against the plaintiff or defendant for any amount of recovery, damages or costs, judgment shall also be rendered against his sureties in the bond given under the provisions of this act.” The effect of the filing of the bond under the statute was to make the appellee Irwin a party to the action. Fletcher v. Menken, 37 Ark. 206; White v. Prigmore, 29 Ark. 208; Callahan v. Saleski, 29 Ark. 216. The liability of the appellee Irwin was not that of a joint contractual obligation or liability on a joint obligation of any kind. His liability was simply that of a surety bound 'by the debt of his principal, under the statute, and the fact that judgment was rendered against the principal at a previous term of the court- and not against the surety does not bar the present action by summary motion against the appellee Irwin, the surety. His is a statutory obligation to satisfy the judgment rendered against his principal.

The doctrine that a judgment taken against one only of several joint contractors merges the entire cause of action in the judgment and bars any subsequent suit on the same obligation against any of the other joint debtors or obligors has no application to the facts of this record. Hence the authorities upon which the learned counsel for appellee relies in his brief are not in point. Moreover, see secs. 6229-31, C. & M. Digest; Kissire v. Plunkett-Jarrell Grocery Co., 103 Ark. 473-84. The liability of the appellee Irwin on his bond under the statute was not merged in the decree rendered against the appellee Collier, the principal, at a former term of the chancery court. Irwin’s liability commenced when that decree was rendered, and the action against him is not barred because of the failure of the court, through its own oversight or the oversight of the attorneys, to render a judgment against him at the same term of the court when judgment was rendered against his principal. The statute, as we have seen, expressly provides that, where judgment is rendered against the defendant who gives a retainer ’s bond in an action of unlawful detainer, judgment shall also be rendered against all sureties on his bond. To be sure, the proper time to render judgment against the surety is v?hqn the judgment is ^end^red. against fbe„ principal, but if, by oversight of court or counsel, it is not done, the court does not ipso facto lose jurisdiction of the cause of action on the bond against the surety. Where judgment has been rendered against the principal on a retainer’s bond and the term has expired -without also taking judgment against the surety, the court has not lost its jurisdiction to render judgment. against the surety on the bond for the satisfaction of the judgment previously rendered against the principal. The court, under the statute, could during the term render judgment on its own motion and without notice. But, after the lapse of the term, the judgment being a summary one and especially authorized by the statute, the statutory requirements for such proceedings should be strictly pursued. This was done in this case. See sections 6250-6254, C. & M. Digest; Cooley v. Lovell, 95 Ark. 567; Milor v. Farrelly, 25 Ark. 353.

The demurrer admits the facts set forth in the motion for a summary judgment, which show that the statutory prerequisites for obtaining such judgment were fully met. Since the appellee Irwin is only liable on his bond to satisfy the judgment rendered against his principal, decree can only be rendered for the amount of that judgment, which was the sum of $400. The decree is therefore reversed, and the cause remanded, with directions to enter a decree in favor of the appellant against the appellee Irwin in the sum of $400, with interest at the rate of 6 per cent, from April 20, 1920.


author: Hart, J.

text:
    Arkansas Land & Lumber Company v. Davis.
    Opinion delivered November 13, 1922.
    1. Railroads — federal control. — A railroad company is not liable, either at common law or under the Federal Control Act, § 10, on a cause arising from operation of its railroad by the Government through the Director General.
    2. Limitation of actions — time of bringing suit. — Where an action was brought within time against one as Director General of Railroads when he was not such, and subsequently the Director General was substituted as defendant, the time of bringing the action, and not the time of substitution, governed as to the statute of limitations.
    Appeal from Hempstead Circuit Court; George R. Haynie, Judge;
    reversed.

      Graves S McFaddin, for appellant.
    The court erred in sustaining the demurrers of the defendants.
    This was a suit against the United States Government, and the failure to name James C. Davis as Federal Agent was not error. 109 S. E. 470; 263 Fed. 211; 229 S. W. 44; 147 Ark. 598; Mo. Pao. Ry. Go. v. Johnson, 153 Ark. 146.

      King, Mahaffy & Wheeler, for appellee.
    The demurrers of the defendants should have been sustained. 234 S. W. 617; 41 Sup. Ct. 593.
   Hart, J.

The Arkansas Land & Lumber Company-instituted this action for damages against the Missouri Pacific Railroad Company, St. Louis-San Francisco Railway Company, John Barton Payne, Director General, and John Barton Payne, Federal Agent, to recover damages in the sum of $582.58 on account of the conversion by the defendants of a certain carload of lumber shipped by the plaintiff from Malvern, Ark., to Blackwell, Okla.

The cause of action arose on July 23, 1918, which was during the Federal control of the railways of the United States, and the suit was filed on July 9, 1921. All the defendants at that time were made parties by name, except John Barton Payne was sued as Director General of Railroads and Federal Agent, instead of James C. Davis.

The Missouri Pacific Railway Company and the St. Louis-San Francisco Railroad Company filed demurrers to the complaint.

The defendant, John Barton Payne, as Director General and Federal Agent, filed a plea in abatement, stating that at the time the complaint was filed he was not Director General of Bailroads of the United States.

. On October 10, 1921, the plaintiff made a motion to substitute Jas. C. Davis as Director General of Bail-roads and the agent of the United States under the Federal Transportation Act.

James C. Davis entered his appearance to the cause and pleaded the statute of limitations of three years. The same attorney represented all the defendants.

The court sustained the demurrer of the Missouri Pacific Bailroad Company and of the St. Louis-San Francisco Bailroad Company, and dismissed the complaint as to each of them.

The court also found that the service of summons upon John Barton Payne, as Director General of Bail-roads and Federal Agent, was not a valid service on Jas. C. Davis as Director General of Bailroads and Federal Agent. The court therefore sustained the plea of the statute of limitations of the defendant, and the complaint was dismissed as against the Director General of Bail-roads and Federal Agent appointed by the President under see. 206 of the Transportation Act of Congress of 1920.

From the judgment rendered dismissing his complaint the plaintiff has duly prosecuted an appeal to this court.

The circuit court was right in sustaining the demurrers to the complaint filed by the Missouri Pacific Bail-road Company and the St. Louis-San Francisco Bailroad Company. According to the allegations of the complaint, the cause of action accrued while the railroads in question were operated by the Director General of Bail-roads during the World War.

In Missouri Pacific Railroad Company v. Ault, 256 U. S. 554, the Supreme Court of the United States held that a railroad corporation is not liable, either at common law or under section 10 of the Federal Control Act, upon a cause of action' arising out of the operation of its railroad by the government through, the Director General of Railroads.

We are of the opinion, however, that the court erred in sustaining the plea of the statute of limitations of the Director General of Railroads. The suit was brought against John Barton Payne, as Director General of Railroads, within three years after the cause of action accrued. It was ascertained that he was not the Director General of Railroads at the time the suit was commenced, and James C. Davis, who was the Director General of Railroads at that time, was substituted as defendant in his stead. The judgment of the court below proceeded upon the theory that this was a substitution of a new defendant and was, in fact, the institution of a new action' within the inhibition of the case of Schiele v. Dillard, 94 Ark. 277.

We cannot agree with counsel in this contention. We do not think there was in fact a substitution of parties. The amendment only made specific what was not apparent before, and it is certain from the record that no prejudice resulted to the defendant. This is in application of the well settled doctrine in this State that amendments may be made to correct an error in the name of the defendant. St. L. I. M. & S. Ry. Co. v. Camden Bank, 47 Ark. 541; St. L. I. M. & S. Ry. Co. v. Haist, 71 Ark. 258; Snowden v. Thompson, 106 Ark. 517, and Buckley v. Collins, 119 Ark. 231.

In-the case of Snowden v. Thompson, supra, suit was brought in the name of the directors of a drainage district, who alone were authorized to bring suit for the district, and the court held that the failure to name the district as plaintiff was a defect of form only, 'and that it was the duty of the trial court to permit the complaint to be amended to conform to the statute.

When the United States took over the operation of the railroads during the World War, a Director General' of Railroads was appointed to operate them and suits were authorized to be brought against him and service to be had upon the various agents employed in operáting the roads, as was the case before the Federal Control Act was passed by Congress.

In the present case service of summons was had upon the station agent in the manner prescribed by law. The station agent was in the employment of the Director General of Railroads. The Director General of Railroads in his official capacity could alone sue and be sued in all matters pertaining to the operation of the railroads under his control. The same attorneys represented all the defendants. The Federal control was exclusive and complete. The Director General was given full power to take possession and operate the railroads to this end. To accomplish this purpose the Director General had control over the existing railroad officials and employees, and they were authorized to continue to perform their duties in accordance with their previous authority. Northern Pac. Ry. Co. v. North Dakota, 250 U. S. 135.

In the original complaint a mistake was made in the name of the Director General, and by correcting this mistake a new suit was not instituted; for the Director General of Railroads, in his official capacity as the representative of the United States, was the real party in interest. Our Civil Code provides that the court may at any time, in the furtherance of justice, amend any pleadipg by correcting a mistake in the name of a party. Crawford & Moses’ Digest, sec. 1239.

In construing a similar provision, the Court of Appeals of Virginia held that, in a suit against an agent designated by the President to defend actions against railroads under Federal control, the plaintiff may amend the declaration by correcting the name of the agent. Bailey v. Hines (Va.), 109 S. E. 470.

So, too, in Payne v. Stockton, 147 Ark. 598, where an action had been brought against the Director General and there was a substitution in the name of the Director General, it was held that no- new service of summons was necessary. The court said that the action was against the United States, and when appearance was entered for Walker D. Hines, as Director General and Special Agent, it was the appearance of the United States, and that the substitution of John Barton Payne for Hines was merely to correct an error in the name of the representative of the United States.

In the application of that doctrine to the present case we are of the opinion that the court below erred in holding that the substitution of Davis for Payne as Director General was in effect the bringing in of a new party to the suit and was tantamount to the bringing of a new suit, so that the action was barred by the three-year statute of limitations.

It follows that the judgment must be reversed, and the cause will be remanded, with directions to overrule the plea of the statute of limitations of the Director General of Eailroads to the complaint, and for further proceedings according to law.


text:
    Autrey v. State.
    Opinion delivered November 13, 1922.
    1. Criminal law — instruction as to place of punishment of minor. — In a prosecution of a 17-year-old boy for aiding in a jail delivery, where the prosecuting attorney stated that if convicted defendant would be sent to the Reform School, and the court overruled defendant’s objection thereto, the ruling was tantamount to an instruction to that effect, and was prejudicial.
    2. Escape — liability for aiding. — A person guilty of furnishing implements for the escape of county prisoners is liable to be punished under Crawford & Moses’ Dig., § 2578, and not under § 2571.
    Appeal from Sevier Circuit Court; James 8. Steel, Judge;
    reversed.
    STATEMENT OE PACTS.
    The indictment ip- this case charges Loyd Autrey with conveying saws to Ossie Turner and other prisoners confined in the Sevier County jail for felonies, with the , intent to facilitate the escape of such prisoners.

      The evidence on the part of the State tended to show1 'that in July, 1922, Ossie Turner and others were confined in the Sevier County jail, charged with the commission of various felonies in said county. Loyd Autrey carried to them some hacksaw blades, which were used by the prisoners in sawing the bars in the window of their cell to enable them to escape from jail. After cutting out the bars from the windows of their cells with the saws, the prisoners escaped through the openings so made.
    According to the evidence for the defendant, he was only seventeen years of age, and did not carry any saws to the prisoners.
    The jury returned a verdict of guilty, and from the judgment of conviction the defendant has duly prosecuted an appeal to this-court.

      G. G. Billings, for appellant.

      J. 8. Utley, Attorney General, Elbert Godivin and W. T. Hcwnmoek, Assistants, for appellee.
   Hart, J.

(after stating the facts). It appears from the record that the prosecuting attorney in his closing argument to the jury used the following language:

“Of course, you understand, Loyd Autrey will not go to the penitentiary. If you convict him you will have to, in your verdict, fix his punishment in the penitentiary, but under the law it becomes the duty of the court to send him to the State Reform School or Boys’ Industrial School, and I think it is a most fortunate thing for Loyd that he might have a few months in the reform school. If you send him for seven years, the very minute those in charge find he is not going to commit these charges again he will be sent back to his home. ’ ’

The attorney for the defendant objected to the argument, but the court overruled his objections. Counsel for the defendant then saved his exceptions to the ruling of the court. Thus it appears from the record that the court sanctioned, as a declaration of law, the remarks of the prosecuting attorney, and the ruling was tantamount to an instruction to that effect by the court.

The remarks of the prosecuting attorney were in conflict with the provisions of the statute on the subject, and it was prejudicial error to tell the jury that it would be the duty of the court to send the defendant to the reform school if he was convicted. Bird v. State, 154 Ark. 297, and cases cited.

Another assignment of error is that the court erred in instructing the jury that, in case of conviction, the punishment should be fixed at a term of not less than two or more than seven years in the State Penitentiary.

Tn giving this instruction the court evidently had in mind that the defendant was being prosecuted under sec. 2571 of Crawford & Moses’ Digest. This section deals with the rescue of a felon by force or menaces of bodily harm, or by other unlawful means.

A reference to the statement of facts shows that the defendant could not be convicted under this section of the statute. Under the facts as detailed by the State he could only be convicted for a violation of sec. 2578 of Crawford & Moses’ Digest. This section defines the offense of carrying into jail any instrument or other thing useful to aid a felon in his escape, with the intent to facilitate the escape of such felon. This error is conceded by the Attorney General, but he argues that it can be cured by the reduction of the punishment in accordance with the provisions of sec. 2578. We need not decide this, however, because the judgment must be reversed for the error in telling the jury that it would be the duty of the court to send the defendant to the reform school in case of his conviction.

It follows that the judgment will be reversed and the cause remanded for a new trial.


author: Smith, J.

text:
    Cook v. Cramer Cotton Company.
    Opinion delivered November 13, 1922.
    1. Appeal and error — judgment on supersedeas bond. — Where default has been made in the prosecution of an appeal from a money judgment of the circuit court, there is no authority for appellee to proceed under Crawford & Mioses’ Dig., §§ 6250-1, to procure a summary judgment on a supersedeas bond, given in contemplation of the appeal.
    2. Judgment — summary proceeding. — Proceedings for summary judgment are in derogation of the common law, and can be pursued only in those cases in which express authority therefor is found in the statutes.
    3. Appeal and error — remedy on supersedeas bond. — Where a supersedeas bond is executed, and the appeal is perfected, the Supreme Court can .enter judgment on the bond for failure to prosecute the appeal, but where the appeal is never perfected, the only remedy is an action at law on the bond.
    Appeal from Woodruff Circuit Court, Northern District; J. M. Jackson, Judge;
    reversed.

      B. M. Hutchins, for appellant.
    There is no statutory authority for a summary judgment against sureties under the state of facts here. See secs. 6250-6251, C. & M. Digest. The statute is highly penal and must be strictly followed. 107 Ark. 361; 132 Ark. 484. Even a surety who has paid a judgment for his principal is not entitled to a summary judgment. 107 Ark. 361. The injunction was a complete defense. 2 Cyc. 950; 6 C. J. sec. 264, p. 711; 23 Cyc. 769:
    The filing of a bond below does not remove the case to the Supreme Court, but the matter stands as a superseded judgment and can only be removed to the Supreme Court in one of the modes prescribed by law. 11 Ark. 631; 93 Ark. 222; 84 Cal. 433; 23 Pac. 1102. ■
    The remedy is the same as on other bonds — not by sumary proceeding.

      Brundidge & Neelly, for appellee.
    The execution of the bond made appellants parties to the suit, and as such appellee was entitled to summary judgment against them, without notice being served, on them. 32 Ark. 206. See also Morse v. Burkhart Mfg. Go., 154 Ark. 362.
   Smith, J.

On February 22,1921, the Cramer Cotton Company recovered a judgment in a suit upon a promissory note for $2,740 in the Woodruff Circuit Court against E.'B. Matkin, who prayed an appeal to the Supreme Court, and executed a supersedeas bond with E. S. and C. L. Cook as sureties. The appeal was never perfected, and on February 10,1922, the plaintiff, Cramer Cotton Company, caused notice to be served on the sureties that application would be made on February 21, 1922, to the circuit court for a summary judgment against them as sureties on the supersedeas bond. Pursuant to this notice, the application for summary judgment was made in the form of a motion, and the circuit court made the order. prayed and rendered judgment against the sureties for the amount of the original judgment with the accrued interest, and this appeal is from that judgment.

It appears that plaintiff below, appellee here, proceeded under sections 6250 and 6251, Ó. & M. Digest, in recovering the judgment appealed from. We find nothing in either of those sections to authorize this proceeding. Indeed, we know of no statute which affords authorization for this proceeding.

Proceedings for summary judgment are in derogation of the common law, and such judgments can be rendered in those cases only in which express authority therefor is found in the statute, and, as we have said, we know of no statute authorizing the judgment rendered herein. Prairie Creek C. M. Co. v. Kittrell, 107 Ark. 361; Milor v. Farrelly, 25 Ark. 353.

Had the plaintiffs herein perfected the appeal to this court in the time and manner provided by law, judgment could have been rendered here on the supersedeas bond for failure to prosecute the appeal; but this was never done. Plaintiff’s only remedy, therefore, is the ordinary suit at law on the bond.

The judgment of the court below will be reversed, and the cause dismissed.


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    Frauenthal v. Williams.
    Opinion delivered November 13, 1922.
    Malicious prosecution — probable cause. — Where a debtor gave her creditor a check for the amount she owed him, and received in return therefor diamonds deposited with the creditor as collateral security, and thereafter left town, removing her property and withdrawing the balance of her account at the bank, when she knew that her cheek had not been paid, a check given her by her father on which she relied to cover her check having in the meantime been returned unpaid, the creditor who caused her arrest for executing a cheek without sufficient funds was . not liable for malicious prosecution, as the creditor had probable cause for believing her guilty.
    Appeal from Monroe Circuit Court; George W. Clark, Judge;
    reversed.

      Lee & Moore, for appellant.
    Tbe court erred in instructing the jury that this was an action to recover damages for wrongful arrest and false imprisonment. It is an action for malicious prosecution. Imprisonment by virtue of a legal writ, issued by a court of competent jurisdiction and served in a lawful manner, does not constitute false imprisonment, even though it was improvidently or wrongfully issued. 92 Ark. 128-132; 95 Ark. 227. It was erroneous to instruct the jury that malice could be inferred from want of probable cause. 101 Ark. 39'; 100 Ark. 320.
    On the question of malice tbe court’s instruction was directly contrary to the law as declared by this court. If one prosecutes another on a criminal charge, he will be protected therein, however malicious his motives may have been, provided there was probable cause. 32 Ark.' 764; 101 Ark, 39. Probable cause is a complete defen'Se to an action for malicious prosecution. 33 Ark. 326. Where the facts relied on to constitute probable cause áre' undisputed, the question becomes one of law for the court to determine, and should not be submitted to the jury. 82 Ark. 256-259.

      8. 8. Jeffries, for appellee.
    The two essential elements, malice and want of probable cause, necessary to be proved by the plaintiff in a case of this kind, were fully covered by the court’s instruction, and the jury’s verdict settles the facts that they were proven.
   Smith, J.

This appeal is from a judgment in appellee’s favor in a suit brought by her to recover damages for alleged malicious prosecution.

In support of her cause of action she testified as follows : She had a note outstanding for $590, due to the Citizens’ State Bank of McGehee, which she requested appellant to pay for her, and he did so. The note at the bank had been secured by the deposit of two diamond rings; and appellant took over this collateral from the bank when he paid the note, and she gave appellant a new note for the old one which he had paid the bank. On June 19th she received a check for $600 from her father at Bald Knob, drawn on a bank at that place; that she deposited the check for collection for her account at the McGehee bank, and a notation of this deposit was made in her bank book. On June 21th the cashier of the Mc-Gehee bank told her the check on the Bald Knob bank had not been paid, but had been returned marked “Not paid account insufficient funds.” She told the cashier she had given appellant a check for $590, and the cashier promised to hold that check for twenty-four hours to give her an opportunity to make arrangements to pay it, but the cashier advised her he could wait no longer than twenty-four hours. The check she gave appellant was dated June 21st. She did not make the arrangements, her check to appellant was not paid, and she came to Little Rock, where appellant caused her arrest, and she was carried to the jail and detained there for two hours and .a half, When appellant received her check, he delivered to her the diamonds which he had held as collateral. After she had been arrested she gave appellant back the diamonds to hold until the $590 was paid him, and she also.paid him $15 to eovér his expenses, -whereupon he procured her release, and she was discharged from custody, and the prosecution against her was dismissed. She had $145 on deposit in the bank at McGehee when she deposited her father’s check, and she drew all of this 'money out of the bank except a small sum on June 24th, which was the day she left McGehee. She supposed the check of her father would be collected, and, had it been, she would have had funds to pay her check to appellant. She left McGehee on June 24th, and came to Little Rock, from, which place she went to visit her sister at Bald Knob, and she returned to Little Rock on the 28th and was arrested at the Union Station on the 29th. She was about to return to Bald Knob to see about the payment of her check to appellant, but she had not so advised appellant until after her arrest.

The affidavit for the warrant of arrest was sworn out by appellant before a justice of the peace on June 27th, and charged appellee with having drawn a check on the bank with no funds in the bank to pay it, and the affidavit appears to have been made after a conference between appellant, the justice of the peace and a deputy sheriff, to whom appellant related all the details.

Appellant lived at Palmer, in Monroe County, and after being advised that the check to him had not been paid for the want of funds, .he called Isadore Friedman, a brother-in-law, who lived in McGehee, over the telephone, on June 27th, and asked Friedman to look the matter up. Friedman testified that he did so and found appellee had left town and had expressed her belongings to Bald Knob and to Little Rock, and he so advised appellant.

The cashier of the bank testified that a check dated June 21st, to the order of appellant for $590, was presented at the bank by appellant, but was not paid on account of insufficient funds. On that date appellee had to her credit the sum of $141.47, and to the date of trial had made no further deposits. It was not. the custom of the bank to credit on its books items received for collection until the collection was made, and as the check on the Bald Knob bank was never collected it was never credited on the books to the account of appellee. On August 15th appellee’s balance was $7.20, and the account was closed by the cashier sending her a check for that amount.

The court instructed the jury, and numerous exceptions were saved to the instructions and are discussed in the brief; but we do not consider these exceptions, for the reason that, in our opinion, a case was not made for the jury.

We do not set out the testimony of appellant containing his explanation of his actions.

The statute under which appellee was arrested, quoting the applicable portion thereof, reads as follows: “It shall hereafter be unlawful for any individual * * * to make or give any check or draft on any account in any bank or trust company * * * on which the said individual # * * shall not have full authority to check or draw such draft or check, or, having such authority, to make any check or draft upon an account in any bank, savings bank_ or trust company, when there shall not be sufficient funds therein to cover the same, unless they shall have made prior arrangements with said bank, savings bank, or trust company for said check or overdraft; provided, however, that if any individual * * * shall, when notified of such draft or cheek, immediately make a deposit to cover same, they shall not be subject to the provisions of this act; provided, further, that checks or drafts given where said individual * * * shall have had no checking account in said bank, shall not come under the provision of this act.” Sec. 743, 'C. & M. Digest.

This court has several times held that the existence of probable cause is a complete defense to actions of this character. A late case is that of Keebey v. Stifft, 145 Ark. 8. We there quoted from prior cases of this court approved definitions of probable cause, one of them being as follows: “Probable cause is such a state of facts in the mind of the prosecutor as would lead a man of ordinary caution and prudence to believe or entertain an honest and strong .suspicion that the person arrested is guilty.”

We think, under the case made by appellee, as stated above, that appellant had probable cause for believing that appellee had violated the statute quoted. Appellee may have believed, when she drew the check in question, that it would be paid out of the proceeds of the check of her father which she had deposited for collection; but the question is, did appellant have probable cause for believing appellee was guilty of a violation of the statute quoted? We think so. Appellee knew, on June 24th, that her check to appellant had not been paid, and would not be paid, and after being so advised she drew out of the bank the principal part of the deposit which she did have. She did not communicate with appellant, as she could easily have done, and he was furnished no explanation by her. Upon the contrary, she left McUehee the day. she was advised her check had not been paid, and shipped her belongings out of town, and after three days of waiting and inquiry appellant, on June 27th, swore out the warrant as has been stated.

In the case of Keebey v. Stifft, supra, we said: “In Whipple v. Gorsuch, 82 Ark. 252, we held that: ‘Where the facts relied upon to constitute probable cause are undisputed, the question is one of law for the court to determine, and should not be submitted to the jury.’ Now, applying these familiar principles to the facts of this record, however innocent Keebey may have been (and we assume that he was entirely innocent), nevertheless he was the victim of unfortunate circumstances from which, it occurs to us, all reasonable minds must conclude that Stifft believed and had grounds for entertaining ‘honest and strong suspicion’ that Keebey was guilty of receiving stolen property knowing that same was stolen.” See also Scott v. Pennington, 151 Ark. 26.

So here, even though appellee may not have been guilty of drawing a worthless check as charged (which we do not decide), her own conduct afforded appellant “honest and strong suspicion” that she was guilty; and the judgment below ¡must therefore be reversed, and the cause will be dismissed.


text:
    Adams v. McKay & Binns Investment Company.
    Opinion delivered November 13, 1922.
    1. Pleading — construction of complaint on demurrer. — In an -action for failure to satisfy of record a mortgage transferred to defendants, where the sufficiency of the complaint is tested on demurrer, inferences deducible from -the allegations by fair intendment are to be drawn; and where it was alleged that the mortgage was transferred to defendants in due course and for a valuable consideration, it will be presumed that defendants acquired it by appropriate assignments.
    2. Mortgages — duty to satisfy mortgage. — The duty imposed by Crawford & Moses’ Dig., § 7395, upon the assignee of a mortgage to satisfy it when paid, is not -affected by the fact that his assignment is not of record.
    Appeal from Dallas Circuit Court.; Turner Butter, Judge;
    reversed.

      T. D. Wynne, for appellant.
    The complaint stated a cause of action under Crawford & Moses’ Digest, §§ 7395 and 7396. 237 S. W. (Ark.) 448; 48 N. W. (Neb.) 906.

      J. W. Warren, for appellee.
    The facts alleged do not constitute a cause of action, (1) because there is no allegation that appellees are owners of record, or agents of the owners of record of the mortgage or notes in question; (2) the complaint by its terms negatives the fact that appellees are assignees within the meaning of the statutes relating to satisfaction of mortgages. See Acts 1917, vol. 2, p. 1805, §§ 1 and 2.

      Appellees are not assignees. 31 Ark. 643; 59 Kan. 380; 22 Fed. Cas. 1091.
   Smith, J.

Appellants, plaintiffs below, instituted, this suit against appellees, defendants below, a copartnership, and alleged the following facts as constituting their cause of action: On July 15, 1915, plaintiffs executed a mortgage to J. Bibbs Jacobs, conveying a certain lot in the city of Fordyce to secure the payment of $2,042.64, as evidenced by seven promissory notes, each for the sum recited in the mortgage. Said notes and the mortgage securing the same were, in due course, transferred, for a valuable consideration, to defendants on the 10th day of September, 1917, by a trustee in bankruptcy of the United States District Court at Nashville, Tennessee. That said defendants became the purchasers, owners and holders of said notes and mortgage. That on the 25th day of July, 1918, plaintiffs paid to the defendants the balance due on said notes, with all accrued interest, and the defendants received satisfaction in full of said mortgage and said obligation. That after the payment and satisfaction of said notes plaintiffs demanded that said mortgage be satisfied on the record where it was recorded, but defendants, after receiving said satisfaction of said mortgage indebtedness, did not, within sixty days after being requested, acknowledge satisfaction as aforesaid, as provided in section 7395, C. & M. Digest. That repeated demands and requests have been made by the plaintiffs for the satisfaction of said mortgage as requested, but without avail, and said mortgage now remains on the mortgage records of Dallas County unsatisfied, to plaintiffs’ damage,'wherefore they pray judgment.

A demurrer to this complaint was filed, and sustained, and this appeal is from tha,t judgment.

It is insisted that the demurrer was properly sustained because it does not appear how the interest of Jacobs was acquired by the bankrupt. But that contention may be disposed of by saying that the sufficiency of the complaint is being tested on demurrer, in which case all inferences deducible from the allegations of tbe complaint by fair intendment are to be drawn in testing its sufficiency; and tbe complaint here alleges defendants became tbe purchasers, owners and holders of said notes and mortgage, and it will therefore be presumed that defendants acquired the notes and mortgage by appropriate assignments.

It is also insisted that the demurrer was properly sustained for the reason that there is no allegation that defendants are the owners of record of the mortgage and notes, and that the complaint, by its terms, negatives the fact that appellees are assignees within the meaning of the statute relating to the satisfaction of mortgages.

The statute on this subject reads as follows: “If any mortgagee, his executor, administrator or assignee, shall receive full satisfaction for the amount due on any mortgage, he shall, at the request of the person making satisfaction, acknowledge satisfaction thereof on the margin of the record in which such mortgage is recorded.” Sec. 7395, C. & M. Digest.

"We construed this statute in the recent case of Johns v. Rollison, 152 Ark. 52, where it was said: “It will be observed, in reading sections 7395 and 7396 of Crawford & Moses’ Digest, that the duty is imposed upon any mortgagee, his executor, administrator or assignee, who shall receive full satisfaction for the amount due on any mortgage, to satisfy same of record if requested to do so by the person making satisfaction. In other words, our statute penalizes the ones receiving satisfaction for not satisfying the record upon the request of those making satisfaction. The statute, of course, means interested parties, not volunteers. The interpretation placed by us upon this- statute is the result of a strict construction when the natural meaning is given to each word and paragraph contained in the statute.”

This construction of the statute imposes upon any mortgagee, his executor, administrator, or assignee, who receives the satisfaction, the duty of satisfying the record when requested so to do by the person making satisfaction.

It is true, as insisted by defendants, that the complaint does not allege that defendants are the owners of record of the mortgage and notes. But this is no defense. In acquiring the debt and the security therefor, defendants assumed the duty of also acquiring the means of satisfying the lien of the mortgage. If the allegations of the complaint are true — and they must he so considered on demurrer — defendants are the only persons who have the right to satisfy the mortgage, and in acquiring the debt which it secures they took it with the duty imposed of releasing and satisfying the lien when the debt was paid.

We think defendants are assignees within the meaning of the statute. The. word assignee as here used means any person who, by appropriate transfer pr assignment, has acquired the title to the mortgage and the debt it secures.. As an incident to the acquisition of the right to demand and enforce payment of the debt secured, the law imposes the duty to satisfy the mortgage when the debt it secures is paid. Daniels v. Densmore, 48 N. W. 906; 2nd Jones on Mortgages (7th Ed.) sec. 990.

Defendants insist that the complaint is defective because, under its allegations, they do not have the authority which act 374 of the Acts of 1917 (Acts 1917, vol. 2, p. 1805) requires before one is authorized to enter satisfaction of the lien of a mortgage, in that their ownership of the mortgage is not a matter of record. But it follows, from what we have said, that this, if true, is no defense. If defendants have not placed themselves in position to comply with this act, it is their duty to do so, and, upon receiving payment of the debt secured by the mortgage, to satisfy it.

When considered on demurrer the complaint states a cause of action, and the judgment of the court dismissing it must therefore he reversed, and it-is so ordered.