author: Hart,. J.,

text:
    Little Red River Levee District No. 2 v. Thomas.
    Opinion delivered June 26, 1922.
    1. Injunction — cutting timber. — As a general rule, equity will not grant injunction against cutting timber, unless an irreparable injury to the property will result, or the destruction of the timber will render the freehold less susceptible of enjoyment, or the acts of trespass are of such a nature to establish a nuisance, or the defendant is insolvent.
    2. Judicial sale — necessity and effect of confirmation. — A sale of land for taxes by a commissioner under a decree of court is not complete until confirmed, but on confirmation all objections to the sale are concluded, and the rights of the purchaser relate back to the date of sale.
    3. Taxation — rights of purchaser at tax sale. — During the period of redemption a purchaser at a tax sale has no right to the possession of the land, and therefore no remedy at law against the former owner for cutting and removing growing timber from the land.
    4. Injunction — irreparable injury. — Injunction will be granted where the injury is of such a peculiar nature that compensation in money cannot atone for it.
    5. Equity-adequate remedy at law. — An adequate remedy at law means a present remedy, not one that might be exercised at some time in the future.
    2. Injunction — cutting of timber. — Where land chiefly valuable for its timber was sold under a tax sale, the purchaser, though not entitled to possession because the redemption period had not elapsed, was entitled to an injunction restraining the wrongful cutting of the timber.
    Appeal from White Chancery Court, John E. Martinecm, Chancellor;
    reversed.

      STATEMENT OE EAOTS.
    This is a suit brought in equity by the Little Red River Levee District No. 2 against A. E. Thomas to restrain him from cutting and carrying away timber on certain lands claimed by it as purchaser under a foreclosure sale in chancery to collect the levee taxes due on the lands.
    It appears from the record that certain levee taxes on the lands were not paid; that Little Red River Levee District No. 2 was duly organized under the statutes of this State, and brought a suit in chancery to foreclose its lien against said lands for the nonpayment of the levee taxes; that a decree was rendered in its favor for the taxes, penalty, and costs against the lands mentioned in the complaint; that said lands were ordered sold by a commissioner appointed for that purpose; that, pursuant to the terms of the decree,they were sold for the nonpayment of said levee taxes, penalty, and costs; that plaintiff became the purchaser at said sale, and a certificate of purchase was duly issued to it by said commissioner; that since the purchase by the plaintiff at said sale, the defendant and his servants have unlawfully entered upon said lands and are cutting and carrying away the growing timber therefrom; that said timber is of great value, and that said defendant is threatening to continue to cut down and remove said timber, in disregard of the plaintiff’s rights; that said lands are chiefly valuable on account of the growing timber thereon; that plaintiff has no reasonable way .of ascertaining the quantity and value of the timber being removed by the defendant, and that an investigation to determine that fact is prohibitive on account of the expense thereof ;• that plaintiff has no right to the possession of said lands until the period of statutory redemption in favor of the original owner expires, and the plaintiff is therefore without adequate remedy at law.
    The prayer of the complaint is that the defendant be enjoined from cutting and removing the trees from said lands.

      The defendant filed a demurrer to the complaint, which was sustained by the chancery court. The plaintiff elected to stand on its complaint and declined to plead further. The chancery court dismissed the complaint for want of equity, and plaintiff has duly prosecuted an appeal to this court.

      Culbert L. Pearce, for appellant.
    In seeking a reversal of the chancellor’s denial of injunctive relief in this case, we are not unmindful of the declarations by this court in Meyers v. Hawkins, 67 Ark. 413; Western Tie & Timber Co. v. Newport Land Company, 75 Ark. 287, and Hall v. Wellman, 78 Ark. 408; but the facts of each case should be considered, and the rule most suitable to the facts applied, as is the inclination of the courts at the present time, to the end that justice and equity may prevail. Certainly, under the facts alleged in the complaint, appellant is entitled to equitable relief, and should not be remitted to a court of law. 4 Pomeroy on Equity, 4th Ed. 3239 ; 5 Id. p. 4332; 14 R. C. L., 443, 455; 457, 459; 84 Fed. 546; 92 Mo. App. 510; 43 L. R. A. (N. S.) 262; L. R. A., 1917-0, 232; 122 Fed. 735; 43 Ore. 400, 49 Am. 'St. Rep. 759.

      Brundidge & Neelly, for appellee.
    Appellant gives no reason why the court should overturn its long established rule relative to injunctions to prevent trespass to real property, unless he means to- contend as a reason for reversal that there was a continuing trespass; but there are no allegations in the complaint to support that contention. If appellant has any right to equitable relief at all, the suit is prematurely brought, since, in a case of this kind, as in ejectment, the plaintiff must rely upon the strength of his own title, and not upon the weakness of his adversary’s. 14 R. C. L. 450; 73 Ark. 201.
    In support of the chancellor’s ruling, in addition to-the three decisions first cited by appellant; see 144 Ark. 94.
   Hart,. J.,

(after stating the facts). The general rule in this State is that equity will not grant relief iby in-' junction against the cutting of timber unless it is shown that an irreparable injury to the property will result, or that the destruction of the timber will render the freehold less susceptible of enjoyment, or that the acts of trespass are of a nature to constitute a nuisance, or that the defendant is insolvent. Meyers v. Hawkins, 67 Ark. 413, and Hall v. Wellman Lumber Company, 78 Ark. 408.

The decree of the chancellor was based upon his belief that the facts alleged in the complaint brought the case within the general rule just announced?.

We cannot agree with the learned chancellor in this conclusion. According to the allegations of the complaint, the levee district purchased the lands in question .at a foreclosure sale in chancery for the nonpayment of the levee taxes, and received a certificate of purchase. The lands are chiefly valuable for the growing timber on them, and the defendant commenced to cut .and remove the timber from the lands during the period of time for redemption under the statute allowed the original owner of the lands. The defendant threatened Ho continue his trespass in cutting and removing the timber from the lands. Without confirmation, a sale made by a commissioner under a decree of court is not complete so as to pass the title to the lands sold, and the sale may be set aside upon valid grounds. When, however, a confirmation of the sale is made, all objections thereto are concluded, and the rights of the purchaser springing therefrom relate back to the date of the sale which was made by the commissioner. Robertson v. McClintock, 86 Ark. 255, and Brasch v. Mumey, 99 Ark. 324.

The trespasses in the present case were committed during the time for redemption allowed the original owner of the lands.

During the statutory period of redemption the levee district had no right to the possession of the lands, and therefore no remedy at law against the defendant during this period of time for cutting and removing the growing timber from the lands.

In the first case cited above, injunctive remedy was denied because the plaintiff’s remedy at law was adequate and complete. On this point the court said:

“They can sue in ejectment for possession of the land, recover the timber already cut, and that may be cut, in replevin, if it can be found, and, in case the timber already cut has been removed and cannot be found, they can recover its value; for it does not appear that appellee is insolvent.” Meyers v. Hawkins, 67 Ark. 413.

In Hall v. Wellman Lumber Company, 78 Ark. 408, an injunction was granted to the plaintiff on the ground that his remedy at law was not adequate and therefore his loss would be irreparable. The peculiar facts of that case were that the plaintiff had purchased the timber from the owner of the land and had erected a mill near the land to manufacture the timber into lumber. Its loss could not be compensated by the market value of the timber, and on this account it was held that its remedy at law was inadequate.

As we have already seen, insolvency is an element in determining whether or not the court should act in granting an injunction in a case like this. It is also manifest, from the cases cited, that any injury of such a peculiar nature that compensation in money cannot atone for it will be considered an irreparable injury .and therefore remediless at law. An adequate remedy at law means a present remedy, and not one that might be exercised at some time in the future. For instance, in the present case the defendant might cut and remove all the timber from the lands and leave the State, or become insolvent, during the statutory period for redemption given the owner. It is true that when the period of redemption has expired without that right having been exercised by the owner, the rights of the purchaser will relate back ■to the date of the sale, but in the .meantime the defendant will have denuded the lands of the timber, and the plaintiff would have no redress at law. The complaint shows that the chief element of value to the lands is the growing timber on it. Therefore, the remedy of the plaintiff at law would be inadequate and incomplete, and his loss would be irreparable.

This brings the case under the general rule that an injunction will lie to restrain trespass in cutting and removing timber from land where the injury done or threatened would result in irreparable loss to the plaintiff.

It follows that the decree must be reversed, and the cause will be remanded, with directions to overrule the demurrer to the complaint, and for further proceedings in accordance with the principles of equity.


source: Caselaw Access Project

author: Hart, J.

license: Public Domain

text:
    Baggett v. State.
    Opinion delivered June 26, 1922.
    1. Time — mode op computation. — Where on March 9th, after motion for new trial overruled, defendant was granted 45 days to file a bill of exceptions, the filing of such bill on April 24th following was not valid; the time being computed by excluding the first and including the last day of the period allowed.
    2. Criminal law — matters reviewable. — The overruling of a motion for a continuance will not be considered, in the absence of a bill of exceptions containing the motion and showing that an exception to the court’s ruling was saved.
    Appeal from Howard Circuit Court, James S. Steel, Judge;
    affirmed.
    Appellant pro se.

      J. S. Utley, Attorney General; Elbert Godwin and W. T. Hammock, Assistants, for appellee.
   Hart, J.

Kelsey Baggett prosecutes this appeal to reverse a judgment of conviction against him for the statutory crime of deserting his wife without good cause.

He was given forty-five days within which to prepare and file his bill of exceptions. There is in the transcript what purports to be a bill of exceptions in the ease. It was not filed within forty-five days, according to the rule laid down in the case of Early & Co. v. Maxwell & Co., 103 Ark. 569.

In that case the court‘held that where time is allowed iby the trial judge for filing a "bill of exceptions beyond the term, for a given number of days, the rule for computing the time allowed is to exclude the day on which the order granting the time is made and include the last day.

The motion for a new trial was overruled, and the defendant granted forty-five days to prepare and file his bill of exceptions on March 9, 1922. The purported bill of exceptions.was not filed until the 24th day of April, 1922. This was not within the time given, and we cannot, therefore, consider the assignments of error in it. '

One of the alleged assignments of error is that the court erred in refusing to grant the defendant a motion for a continuance.

In Johnson v. State, 142 Ark. 402, it was held that the overruling of a motion for a continuance will not be considered on appeal where the bill of exceptions does not contain the motion or show that any exceptions were saved to its overruling.

The other alleged assignments of error relate to the admissibility of evidence and the instructions given or refused by the court. That we cannot consider these matters in the absence of a bill of exceptions is so well settled in this State that no citation of authorities on the point is necessary.

There is no error on the face of the record, and the judgment must therefore be affirmed.


author: Wood, J.

text:
    Indian Bayou Drainage District v. Walt.
    Opinion delivered June 26, 1922.
    1. Drains — new drainage canal not authorized. — A new and independent drainage canal exceeding in cost the whole system originally contemplated and completed was an improvement so extensive and so different from that originally planned that it would have to be accomplished through the formation of a new district, and not-as an extension of the canal as originally con-structed nor as a widening or deepening of the ditch already completed.
    2. Drains — right to alter plans. — Where a drainage district was organized under Crawford & Moses’ Dig., § 3607 et seq., and the work completed, any plan of improvement thereafter contemplated would be a new plan, and not the original plan altered and changed, and no authority is conferred by § 3625, Id., to file or - change plans after the work originally contemplated has been completed.
    Appeal from Lonoke Chancery Court, John E. Martineau, Chancellor;
    affirmed.

      Chas. A. Walls, for appellant.
    Drainage districts continue to exist for the purpose of preserving the same, keeping the ditches clear from obstruction, and for extending, widening or deepening the ditches as may be found advantageous. Sec. 3630, C. & M. Digest. The commissioners may at any time alter the plans of the ditches and drainage: Sec. 3625, C. & M. Digest. The court has held under the drainage act then in force that the county court might establish a ditch on a different route from that mentioned in the petition when it was better and less expensive to do so. 64 Ark. 555. The alternative drainage system did not repeal the other drainage laws, and drainage districts can be established under either system. 126 Ark. 518.

      Clifton Gray and Murphy, McHaney & Dunaway, for appellees.
    The commissioners have power to alter the location of the ditches at any time before constructing the work. See. 3625, C. & M. Digest; 91 Ark. '30; Id. 79; 147 Ark. 546.

      Section 3630, C. & M. Digest, applies only where the item of expense is small, such as cleaning out the ditches. But where the change involves heavy expense the property owner is entitled to be heard.
   Wood, J.

The appellees, who were landowners in the Indian Bayou Drainage District of Lonoke County, Arkansas (hereinafter called district) instituted this action against the district and its commissioners. Appellees alleged that the district was established in September, 1912, under act No. 279 of the Acts of 1909 and the amendments thereto; that the commissioners, under the authority of the general drainage laws, constructed a drainage system twenty-five miles in length, consisting of a main canal and many laterals leading into same; that the benefits to the lands in the district were assessed and bonds issued and sold in the sum of $147,000, and that taxes were levied and collected and were still being collected from the landowners of the district; that in December, 1921, the commissioners filed with the clerk of the county court of Lonoke County what was called “report of board of commissioners on changes in plans, and plans for extending, deepening, widening, straightening, cleaning, and otherwise improving the system of drainage in said district, and transmitting plans, specifications and estimates of the cost of the proposed work,” in which it is proposed to construct an additional canal generally paralleling Old Indian Bayou main canal from the point where lateral 8 of the original drainage system enters Snow Brake, through said brake, thence in a southeasterly direction through the lowlands lying west of Indian Bayou main canal, and across the main canal on the east line of said section 1, at a point south of the quarter section line, and to construct an additional outlet through the old channel of Indian Bayou at a point about one thousand feet south of the village of Tomberlin, where the banks of the Indian Bayou are very steep and the channel well defined. It is alleged that the proposed improvement will cost the landowners, in addition to the taxes already levied in said district, a sum of from one hundred and fifty to two hundred thousand dollars, and that it is. contemplated that the commissioners will reassess the benefits and call on the county court to levy additional taxes to cover the cost of making the proposed improvement. The appellees further alleged that the proposed improvement is for the digging of another main canal of more than five miles in length within the boundaries of the district. It is alleged that the .county court is without jurisdiction to make the improvement in the manner proposed; that the canal proposed would be of no benefit to the lands in the district, but, on the contrary, would result in great damage, and would be a taking of appellee’s property Without due process, in violation of sec. 22, art. 2 of the Constitution of the State, and of the Constitution of the United States.

The appellees prayed that the appellants be enjoined from taking any further steps in the proposed proceedings. Attached to the complaint as an exhibit is a copy of a map or blue-print showing the boundaries of the district, with the location of the ditches already constructed and the proposed changes.

The appellants demurred to the complaint on the following grounds: First, that the complaint does not state facts sufficient to constitute a cause of action; second, that the court has no jurisdiction of the subject-matter; and third, that the plaintiffs have an adequate remedy at law..

At the hearing on the demurrer the court sustained the demurrer to all parts of the complaint “except that part relating to the contruction of a parallel ditch indicated on the map as from stations A’ to ‘O’, and overruled the demurrer as to that part of the complaint. The court entered a decree restraining the commissioners from constructing the additional canal ás shown on the copy of the blueprint from stations ‘A’ to ‘O’,” From that de'cree is this appeal.

Section 22 of act No. 279 of the Acts of 1909, digested as sec. 3630, C. & M. Digest, reads as follows: “The district shall not cease to exist upon the completion of its drainage system, hut shall continue to exist for the purpose of preserving the same, of keeping the ditches clear from obstruction and of extending, widening, or deepening the ditches from time to time, as it may be found advantageous to the district. To this end the commissioners may from time to time apply to the county court for the levying of additional taxes. TJpon the filing of such petitions, notice shall be published by the clerk for two. weeks in a newspaper published in each of the counties in which the district embraces lands, and any property owner seeking to resist such additional tax levy may appear at the next regular term of the county court and urge his objections thereto, and either such property owners or the commissioners may appeal from the finding of the county court.”

Section 2 of act No. 177 of the Acts of 1913, digested as sec. 3625, C. & M. Digest, reads as follows: “The commissioners may at any time alter the plans of the ditches and drainage, but, before constructing the work according to the changed plans, the changed plans, with accompanying specifications, showing the dimensions of the work as changed, shall be filed with the county clerk, and notice of. such filing shall be-given by publication for one insertion in some newspaper issued and having a bona fide circulation in each of the counties in which there are lands belonging to the district. If, by reason of such changes of plans, either the board of commissioners or any property owners deem that the assessment on any property has become inequitable, they may petition the county court, which shall thereupon refer the petition to the commissioners hereinbefore provided for, who shall reassess the property mentioned in petition, increasing the assessment if greater,benefits-will be received, and allowing damages if less benefits .will be received- or if damages will be sustained. In no event shall a reduction of assessments be made after the assessment of benefits has been confirmed, but any reduction in benefits shall be paid for as damages, and the claim for such damages shall be secondary and subordinate to the rights of the holders of bonds which have heretofore been issued. From the action of the commissioners in the matter the property owners shall have the same right of appeal that is herein provided for in the case of the original assessment.”

The appellants invoke the above sections of the digest of the drainage laws as authority for the proposed improvement. It will be observed that sec. 3630, supra, provides that the district, after the completion of the improvement for which it was created, shall continue .to exist for the .purpose, among other things, of “extending, widening, or deepening the ditches from time to time, as may be found advantageous to the district.” Additional taxes are authorized for such purpose.

The allegations of the complaint, which the demurrer admits to be true, are that the proposed improvement is for the digging of another main canal of more than five miles in length within the boundaries of the present Indian Bayou Drainage District which was established many years ago and completed; and further, “that the board of commissioners * * * * is now seeking to construct and put into operation at an estimated cost of from one hundred and fifty to two hundred thousand dollars an entirely new and independent drainage canal practically parallel to the Indian Bayou main canal.” An examination of the map which is brought into the record showing the location of the proposed canal from stations “A” to “0” confirms the admitted allegation of the complaint that the proposed canal which the commissioners nowpropose to dig is not an extension of the canal originally constructed, nor a widening or deepening of the ditches that were already completed, but is in very truth, as alleged and admitted, a new and independent drainage canal. It is a new improvement not in the nature of extending, widening, or deepening the ditches that had been constructed according to the plans originally contemplated in the formation of the district. Specific authority for making an improvement of this character must be found in the law, and it is impossible to find in the language of sec. 3630, supra, giving the words “extending, widening, or deepening,” their plain and natural meaning, any authority for the construction of a new and independent improvement such as is shown by the facts of this record.

Sec. 3630, supra, clearly confers upon the commissioners of the drainage district created thereunder the power to preserve the drainage system, after the same has been completed as contemplated, by keeping the ditches clear from obstruction, and the power to extend, widen and deepen the same. But certainly these words cannot be stretched in meaning so as to confer power upon the commissioners to construct a new and independent drainage canal, which, according to the admitted facts, would exceed in cost the whole system of drainage originally contemplated and completed. An improvement so extensive and so radically different from that originally planned and completed, however expedient and desirable, would' have to be accomplished through the formation of a new district or subdistrict. Secs. 3570, 3650, C. & M. Digest. At any rate, such improvement cannot be effectuated under the guise of “extending, widening, or deepening” the ditches already constructed. The canal 'here proposed is not incidental to the original drainage |system, but is itself original and independent. It is too p|wide a departure from the original drainage system to be "«embraced within the authority conferred upon the commissioners to “extend, widen, or deepen” the ditches. See Rayder v. Warrick, 133 Ark. 491; Hout v. Harvey, 135 Ark. 102; Carson v. Rd. Imp. Dist., 150 Ark. 379; Higginbotham v. Road Imp. Dist., ante p. 112.

To give the county court jurisdiction to make such an improvement, the procedure would have to be inaugurated by property owners in the manner pointed out in the statute, and not by the commissioners of an already created district. Secs. 3607-3608, C. & M. Digest. The district was organized in September, 1912, under the alternative system of drainage districts. Secs. 3607 et seq. Sec. 3625, supra, under that system, providing that the commissioners may at any time alter the plans of the ditches and drains, has no application here, for the reason that that section contemplates that the commissioners may alter or change the plans of the ditches or drains before the drainage system contemplated by the creation of the district has been completed. Obviously, after the original drainage system contemplated in the creation of the district has been completed, it would be a contradiction in terms to say that thereafter the commissioners would have the power to alter the plans. After the original plans had been carried out, of course it would be too late to alter same. Any plan of improvement thereafter contemplated would necessarily be a new plan, and not the original plan altered or changed.

Here the record shows that the original drainage district organized in 1912 began the work for which it was created in the year 1913 and completed the same in the year 1916. In December, 1921, about five years thereafter, the commissioners filed with the clerk of the county court of Lonoke County a report called “Report of board of commissioners on changes in plans, and plans for extending, deepening, widening, straightening, cleaning, and otherwise improving the system of drainage in said district.” Sec. 3625, supra, expressly authorized the commissioners to alter the plans of the ditches and drains before constructing the work for which the district was organized. But there is no authority conferred under this section to file plans, or change plans, after the work originally contemplated has been completed. See Protho v. Williams, 147 Ark. 535, 546.

The decree of the court therefore, overruling the demurrer to the allegations of the complaint which set up the construction of a new drainage canal from stations “A” to “0,” and restraining the commissioners from inaugurating proceedings looking to the completion of the proposed canal, is in all things correct, and it is affirmed.


text:
    Jackson v. Mutual Fire Insurance Association of Arkansas.
    Opinion delivered June 26, 1922.
    1. Insurance — liability before license secured. — Where plaintiff made application and paid the premium on a fire insurance policy with a mutual company, but the premises were burned before the company secured a license to do business in the State, and the company returned the premium, plaintiff has no enforceable claim, as the company, under Crawford & Moses’ Dig., §§ 6019-6023, had no right to enter into a binding contract of insurance before securing a license.
    2. Insurance — unlawful contract — ratification.—Where plaintiff applied for a fire insurance policy and paid the premium, but the premises burned before the company had secured a license to do business, the subsequent conduct of the company in recognizing plaintiff’s claim could not create a contract; that company "having no authority to make such a contract.
    Appeal from Monroe Circuit Court, George W. Clarh, Judge;
    affirmed.

      Bogle & Sharp, for appellant.
    There was a parol contract, binding appellee to pay appellant for any loss she might sustain, and said contract is enforceable. 26 C. J. 45; 63 Ark. 205; 67 Ark. 433'; 35 N. D. 160-; 209 111. A. 557; 94 U. S. 621; 124 Ark. 505.
    A parol contract of insurance, evidenced by a binder intended to cover the property until the issuance of a policy, is not invalidated by the fact that a standard form of policy is prescribed by statute. 26 C. J. 48.

      Emerson, Bonham & Shepherd and S. A. Jones, for appellee.
    Appellee had no legal capacity to enter into a contract until about five months after appellant’s loss, hence there could have been no binding contract.

      The writing held by appellant was an application for insurance, with a receipt for the money paid.

      Bogle & Sharp, for appellant, in reply.
    A contract made by the promoters of a corporation before it was formed becomes the contract of the corporation. 14 C. J. 257; 37 Ark. 164; 91 Ark. 367; 97 Ark. 248.
   Wood, J.

This is an action by the appellant against the appellee to recover the sum of $685 which the appellant alleged was due her from the appellee on a contract of fire insurance. She attached as an exhibit to her complaint, which was in evidence before the jury, the following document: “Application and Receipt. $1,600. Ño. 41-42. Mutual Fire Insurance Association of Arkansas. Camden, Arkansas. We are responsible only for statements made in accordance with our printed literature. It is understood and agreed that the policy is to follow this receipt.

“April 17, 1920.
“Greetings:
“I hereby make application for insurance in said Mutual Fire Insurance Association of Arkansas, for which I agree to pay premium $35.80, thirty-five and 80/100 dollars. It is further agreed that in ease the said Mutual Fire Insurance Association of Arkansas fails to comply with all laws governing the organization of such fire insurance' within twelve months from date, I. am to receive back the money I pay for such insurance.
“Cash value of building $1,500; premium $35.
“Cash value of H. H. Goods $900; due $3.40.
“Cash value of stock-. Agent, C. W. Williams.
“Received of Mary G. Jackson, City of Brinkley,
Street or Box No.-
“State of Arkansas.
“T. S. Sandefur Georgia E. Bowie”
“President Secretary.”

On the back of the receipt was the following..- .“Application and Receipt, Mutual Fife Iiisurañce Association of Camden, Arkansas, to Mary Gaines Jackson, amount of receipt $22.40, amount of premium $35.80, value of insured items $1,600; location Brinkley, Arkansas; premium due $13.40; Agent, C. W. Williams, address, Camden, Arkansas. It is understood and agreed that policy is to follow in twelve months or that money paid will be refunded.”

Appellant alleged that the appellee was a mutual fire insurance association of Arkansas organized under the laws of the State, and that she had paid the premium mentioned in the above receipt and that her household goods were insured by the appellee in the sum of $900, and that by virtue thereof she was entitled to and had insurance on her household goods, in the sum of $900, which goods were destroyed by fire on December 20,1920, to the value of $685, for which she prayed judgment.

The answer of the appellee admitted that it was a mutual fire insurance association duly organized under Act No. 652 of the' Acts of 1919, approved April 3, 1919. The answer denied all other material allegations of the complaint and denied liability. The facts are substantially as follows:

The appellee was organized as a mutual fire insurance association and was licensed as such by the Insurance Commissioner to do business in the State of Arkansas on the 11th of May, 1921. See sees. 6019 to 6036, C. & M. Digest, inclusive. On April 17, 1920, one C. W. Williams, representing those who duly incorporated the appellee under the above act, solicited and obtained from tire appellant her application for insurance and issued to her the document styled Exhibit “A” to the complaint, as above set forth. On December 20, 1920, household goods covered by the above document were destroyed by fire to the value of $685. The appellant testified identifying the application and receipt as above set forth, and stated that she had paid the amount of the premium named therein, and she identified and introduced certain letters, written after the fire but. before the appellee was licensed to do business in this State, signed by the president of the appellee relating to her claim for the loss which she had sustained. In one of these letters the president of the appellee acknowledged the receipt of $3 sent by the appellant to the appellee, and in another of these letters, among other things, he stated: “You need not fear anything, for we are just as sure to see after you as we live to satisfy the State, and we will have some one of our officers to come up there just as soon as I return home from Little Rock.”

The appellant further, testified that Mr. Sandefur, the president of the appellee, stated to her the latter part of May that he would settle with her in a few days. He stated they had not sent the policy, but that he would fix- up the policy and everything would be all right in a few days. On June 29, 1921, after Sandefur had seen witness, they wrote her a letter and sent her back the amount of the premium. That letter was as follows:

“June 29, 1921.
“Mrs. Mary O. Jackson,
“Brinkley, Arkansas.
“Dear Madam: Please find inclosed check for $35.80, the amount of premium you paid this company. We hope this will be satisfactory to you.
“Very truly,
“I. A. Clark, Treasurer.”

The cause was by consent of parties submitted to the court sitting as a jury, and the court found that the application for insurance was taken in April, 1920; that the property was destroyed in December, 1920, and that the license authorizing the appellee to do business was granted on the 11th day of May, 1921. The court declared the law to be that under the above facts the appellant was not entitled to recover, and entered a judgment in favor of the appellee, from which is this appeal.

Sections 6019, 6020, 6021 and 6022, O. & M. Digest, provide for the organization or incorporation of mutual insurance companies. Those sections show that,' after these companies are incorporated and the articles of incorporation are submitted to and approved by the Insurance Commissioner, he shall issue to them a certificate which constitutes their authority “to begin business.”

Section 6023, C. & M. Digest, reads as follows: “The company shall have legal existence from and after the date of such certificate of incorporation. The board of directors named in such articles may thereupon adopt by-laws, accept applications for insurance, and proceed to transact the business of such company; provided, that no insurance shall be put into force until the company has been licensed to transact insurance as provided by this act. Such by-laws and any amendments- thereto shall within thirty days after adoption be filed with said commissioner.”

Section 6025, C. & M. Digest, provides in part as follows: “No such company shall issue policies or transact any business of insurance unless it shall hold a license from the Commissioner authorizing the transaction of such business, which license shall not be issued until and unless the company shall comply with the following conditions: (a) It shall hold bona fide applications for insurance upon which it shall issue simultaneously, or it shall have in force, at least twenty policies to at least twenty members for the same kind of insurance upon not less than two hundred separate risks, each within the maximum single risk described herein. * * * (c) It shall have collected a premium upon each application, which premium shall be held in cash or securities in which insurance companies are authorized to invest, and shall be equal, in case of fire insurance, to not less than twice the maximum single risk assumed subject to one fire not less-than ten thousand dollars,” etc.

Reading all these sections together, it is obvious that after the organization or incorporation, the companies so incorporated have their legal existence from the date of the certificate of incorporation, and they have authority to begin the business of soliciting applications for insurance from the date that the insurance commissioner issues his certificate showing his approval of the articles' of incorporation. But such companies have' no authority to enter into binding contracts of .insurance until the commissioner has licensed them to transact an insurance business. The provisions of secs. 6023 and 6025 in express terms prohibit the issuing of policies or putting into force insurance prior to that time. The appellant contends that it was the intention of the Legislature to authorize the companies to enter into binding contracts of insurance from the date when the applications were received and the premiums collected; that any other construction would enable these companies to perpetrate a fraud upon those applying for insurance by enabling the companies to accept the premiums in advance of a binding and completed contract of insurance.

The act is vague and incomplete in not defining the Mnd of business that the insurance companies are authorized to begin after their incorporation and after the Insurance Commissioner has approved their articles of incorporation; but, as we have said, when we construe the sections together, that is, sections 6023 and 6025, it is manifest that the purpose of the lawmakers was to allow the companies, after the Commissioner approved their articles of incorporation, to begin to solicit applications for insurance and the collection of premiums preliminary to, and as the basis upon which, the Commissioner is authorized to license them to transact business; that is, to enter into binding contracts of insurance. It is certainly true that this act of April 3, 1919, does not afford applicants for insurance who have paid advance premiums any -protection in the way of a binding contract of insurance before the companies are licensed by the Commissioner to transact the insurance business and to issue binding policies of insurance. Nor does it afford them adequate protection by requiring such mutual insurance corporation to refund the premiums paid with interest, etc., in the event they are not licensed by the Commissioner to transact an insurance business or issue policies of insurance. But it is not tbe province of tbe court to piece out defects in the law in these particulars. This is peculiarly a legislative and not a judicial function. We may say, in passing, that the Legislature of 1921 recognized the defect in the law in not guaranteeing to the applicant for insurance who had paid advance premiums the return of such premiums, and attempted to afford them adequate protection in this respect by amendment of sec. 6020, C. & M. Digest. Act 493 of March 5, 1921, now requires that the incorporators of mutual insurance companies shall file with the Insurance Commissioner a qualified bond in the sum of $15,000 conditioned for the prompt return to members of all premiums collected in advance, if the organization of the company is not completed within one year from the date of the certificate of incorporation.

The facts show that the premium paid by the appellant in advance was returned to her by the appellee before the institution of this action. That is all she was entitled to under the document designated “application and receipt” upon which she predicates her right of action. This document is at most but an executory contract by which the appellee, after the 11th of May, 1921, might have been bound to issue its policy of insurance if, in the meantime, the household goods, the subject-matter of the insurance contract, had not been destroyed by fire. But before the contract could be executed by the appellee under the the law and before it was authorized to enter into a completed contract of insurance under the law, the property which was the subject-matter of the insurance was destroyed by fire, thus rendering the execution and completion of the contract for insurance impossible. Since the appellant had no binding contract of insurance with the appellee at the time of the destruction of her household goods by fire, the court was correct in holding that the appellant was not entitled to recover. It follows also that, since there was no contract between the appellant and the appellee whereby appellee had insured appellant’s property before tbe same was destroyed by fire, tbe conduct and the letters of the president of the appellee, admitting or recognizing appellant’s claim, under the policy, could not create a contract which the appellee was not authorized under the law to make.

Learned counsel for appellant relies upon a line of authorities which hold that “a contract made by the promoters of a corporation before it was formed becomes the contract of the corporation, so that it is both entitled to the benefits thereof and liable thereon, if it expressly or impliedly ratifies and adopts the same as its own, or, in most jurisdictions, ratifies it, after it comes into existence, provided it .is a contract which the corporation has the power under its charter to make.” 14 C. J. 257; 7 R. C. L. 559; L. R. & Ft. Smith Ry. Co. v. Terry, 37 Ark. 164; Bloom v. Home Ins. Co. 91 Ark. 367; Jones v. Dodge, 97 Ark. 248. But these authorities, as we construe the act of April 3, 1919, under which the appellee was incorporated, have no application, for the reason that the liability of the appellee must be predicated upon a contract which it was authorized to make under that act. The undisputed facts of this record show that under that act, at the time of the destruction of appellant’s property by fire, there was no completed and binding contract of insurance whereby the appellee had become liable to appellant for the loss of such property.

The judgment of the trial court is in all things correct, and it is affirmed.


author: Hart, J.,

text:
    Bahlau v. Bloom.
    Opinion delivered June 26, 1922.
    Municipal corporations — improvement district — consent op property owners. — Where, under Crawford & Moses’ Dig., § 5733, additions were made to an improvement district within a city, without the consent of the property owners in the original district, under Const., art. 19, § 27, requiring property owners to consent to loca.1 improvements, the board of improvement had no power to make one contract and one bond issue for improvements in the original district and the annexed territory, even though this method would be less expensive for the property owners in the original district.
    Appeal from Jefferson 'Chancery Court, John M. Elliott, Chancellor;
    reversed.
    STATEMENT OF FACTS.
    Appellant, a property owner within a proposed street improvement district in the city of Pine Bluff, Ark., brought this suit in equity against appellees, the members of the board of said improvement district, to restrain them from enforcing the collection of assessments levied against the property of appellant and of all the other property owners within the boundaries of the original improvement district.
    The ease was tried upon an agreed statement of facts which is substantially as follows: Gr. A. Bfahlau is the owner of the property described in the complaint, and E. B. Bloom, F. D. Willingham and M. H. McGrehee were duly appointed as a board of improvement for Paving District No. 52 of the city of Pine Bluff, Ark., which was created for the purpose of paving certain streets in that city. The boundaries of the district are specifically described and the district was organized in the manner provided by the statute. Thereafter, under the provisions of sec. 5733 of Crawford & Moses ’ Digest, which provides for the annexation of territory to improvement districts in cities and towns, contiguous territory was added to the original improvement district. Six different additions were made to the original district under the section of the digest referred to, and each addition comprised several blocks in the city of Pine Bluff, Ark. An assessment roll of all the several lots and .blocks of land comprised in the original district and in all the additions thereto was filed in the office of the city clerk of the city of Pine Bluff, Ark. This assessment roll did not separate the property included in the original district from that included in the various annexations and contained no separate extension of benefits by reason of the improvement contemplated in the original district, and of any benefits which might accnre by reason of the improvements contemplated in the annexations.
    The ordinance of the city council assessed the cost of the entire improvement against all of the property in the original district and in the various annexations thereto as if said improvements were one entire improvement. The contract for constructing the paved streets was let as a whole as if the improvements contemplated in the original district and annexations thereto were one improvement. The board contracted to sell an issue of $107,000 of bonds bearing interest at the rate -of 6% per annum for the purpose of constructing the original improvement and the various additions thereto as if a single improvement. It was shown by the testimony of witnesses that the cost would be less by letting one contract for the whole work than if separate contracts were let for the original improvement and the various additions thereto.
    Other facts may be stated or referred to in the opinion.
    The chancellor was of the opinion that the proceedings of the board were in all respects valid and binding upon the property owners of the original district, and the complaint of the appellant was dismissed for want of equity. The case is here on appeal.

      Rowell & Alexander, for appellant.
    1. The board of improvement adopted only one set of plans and specifications, incorporating the work to be done in the original district 'and in all of the annexations, whereas, according -to law it should have adopted separate plans and specifications for the original district and for each of the annexations.
    2. It received bids -on all of the work and let a contract therefor, as if the entire work was one project, when, according to law, separate contracts- should have been made for the original district and each annexation.

      3. It contracted for the sale of one issue of bonds to cover the cost of all the work to be done, contrary to law.
    4. Only one assessment roll was prepared and filed containing the assessment of benefits against all of the property both in the original district and the annex ations, contrary to law, which requires separate assessment rolls for the original district and each annexation. If the effect of the annexation of property is to place an additional burden upon the property owners in the original district, such annexation cannot be made without their consent. 125 Ark. 57.

      Coleman & Gantt, for appellees.
    1. If the statute means what it says, and the annexed territory becomes a part of the district, 'the improvements thereafter should be treated as one project; but the record shows that the commissioners had before them at all times all the details necessary to preserve the identity of the various parts. The statutory provision for reporting the plans to the council is directory and not mandatory. Ingram v. Thames, 150 Ark. 443. Since the making of the report is not jurisdictional, the subsequent proceedings cannot be invalidated because of the form of the report, even if it should be held to be improper.
    2. Assuming, as appellant contends, that each annexation must be treated throughout as a separate entity, that would not make it necessary to let separate contracts. 125 Ark. 57; 81 Id. 286.
    3. This is true with reference to the contract for the sale of bonds.
    4. No additional burden could have been put on the property owners in the district as originally organized by the method adopted in the assessment of benefits.
    The cost of improvement does not exceed the statutory limit if, when spread over the entire property of the district, including that which has been annexed, it does not exceed the percentage named in the statute. 125 Ark. 57; 143 Ark. 625.
   Hart, J.,

(after stating the facts.) It is sought to uphold the decree of the chancery .court .-upon the authority of White v. Loughborough, 125 Ark. 57. In that case the court upheld the validity of a statute providing for the annexation of territory to an improvement district, and held that the assent of the property owners in the original district to the annexation was not required, because no additional burdens would be placed upon their property, and that the cost of making the additional improvement must be .borne by the property within the limits of the annexed territory.

That case does not support the decision of the chancellor, but on the contrary is. an authority against it. The court in that case expressly said that, if the effect of the annexation was to place an additional burden upon the owners of real property in the old district, it could not be done without their consent. The reason given was that art. 19, sec. 27, of our Constitution provides, in substance, that local improvements in cities and towns shall be based upon the consent of a majority in value of the owners of real property in the proposed district.

It is true that in. the instant case, the evidence tends to show that the method adopted would cost the property owners of the original district less than if a contract had been let and an assessment of benefits made to pave the streets within the boundaries thereof. This, however, is not the test, for the Constitution makes the right to levy assessments for local improvements in cities and towns depend upon the consent of a majority in value of the property holders owning property adjoining the locality to be affected. Where additions are made to the boundaries of an improvement district already organized without the property owners in it having a voice in the annexation, and additional burdens are placed upon their property, it is evident that the constitutional provision just referred to has been disregarded. It does not make any difference that witnesses may think the method adopted will cost the property owners in the original district'less; for under the Constitution they must have a voice before their lands can be taxed to make a local improvement.

The wisdom of the provision is manifest. To illustrate : the property owners in the original district in the present case are liable for the whole of the bond issue, and their property is liable for assessments to pay the whole cost of the improvement, and that without their having any voice in the matter. A devastating fire might destroy all the improvements in the various annexations and render it necessary to increase the burdens on the property in the original district. Again, if the property in the various annexations were so situated that it should cave into the river, this would greatly add to the burden upon the property in the original district. It does not make any difference that this has not happened. The test is not what has happened, but what might be the consequences to the old district.

The provision of the Constitution under discussion plainly means that no burdens shall be added to the property owners in the original district without théir consent. It is true that the agreed statement of facts shows that the annexations were made in the manner provided by the statute, but the board of improvement, under the principles above announced, could not let one contract for making the improvement in the old district and the various annexations thereto. Neither could it make one bond issue serve as if it was an entire improvement. In short, the assessment of benefits in the original district must be made, the contract let, and the bonds issued for the improvement in that district as a single improvement and without any relation to the various annexations thereto.

It follows that the decree must be reversed, and the cause will be remanded for further proceedings in accordance with this opinion and according’ to the principles of equity.


author: McCulloch, C. J.

text:
    Thomas v. Arkansas Lime Company.
    Opinion delivered June 26, 1922.
    1. Appeal and error — conclusiveness op verdict. — On appeal from a judgment founded on a verdict directed in defendants’ favor, in determining whether the evidence made a case for the jury, the testimony will be viewed in the light most favorable to plaintiff.
    2. Perries — negligence in operation — evidence.—In an action by a father against a ferryman for the death of his child, drowned by falling off a ferry, evidence of negligence on the ferryman’s part held insufficient to go to the jury.
    Appeal from Stone Circuit Court, Bene H. Colemwit Judge;
    affirmed.

      Williamison & Williamson, Vaugham & Rector and Taylor Roberts, for appellant.
    It was error to direct a verdict, as there was evidence from which a jury might reasonably find that the child lost its life through the negligence of appellee. 148 Ark. 66; 120 Ark. 208 ; 98 Ark. 344; 105 Ark. 526. Where a verdict is directed the court will take that view of the evidence most favorable to appellant. 115 Ark. 166.
    It was the duty of the ferryman to keep the approach to the ferry in proper condition. Case note 68 L. R. A. p. 159. As a carrier of passengers he is held to the highest degree of care. 82 Ark. 507; 102 S. E. 300; 88 S. W. 935. The ferryman was negligent in not supplying the lifeboat with paddles. 2 Hutchinson, Carriers, par. 911.
    The inference of care on the part of plaintiff may be drawn from the absence of appearance of fault. 5 Cal. 360; 136 Mass. 366. The question of negligence of a child of tender years is a question of fact for the jury and not a matter of law. 100 Ark. 76, as is the question of whether proper appliances were used and properly managed. Ri C. L. Yol. 2, p. 933; i85 Ark. 474; 55 N. Y. S. 266. It was not necessarily negligence for the child to be near the apron pole: 2 R. C. L. p. 935.
    The mother was a competent witness in behalf of the father, who sued in a representative capacity. ' 90 Ark. 486,

      Samuel M. Casey, for appellee.
    Two causes of action were improperly joined in the one and only paragraph of the complaint. It would have been improper to allow Mrs. Thomas to- testify for plaintiff where he was suing in his individual right. 90 Ark. 485 ; 59 Ark. 180. She refused the offer of the court to permit her to testify on the claim where plaintiff was suing as administrator.
    Appellee was only bound to provide suitable and safe accommodations. 38 Am. Rep. 533. The death of appellant’s intestate was due to pure misadventure ,for which no one was responsible. 18 A. R. p. 327-328. Plaintiff himself was guilty of contributory negligence which would bar a recovery. 72 Ark. 1; 59 Ark. 180; 77 Ark. 398; 143 Ark. 357.
   McCulloch, C. J.

Appellant, the plaintiff, in his own right and as administrator of the estate of his daughter, Rovelda Thomas, brought this suit against appellee, a corporation engaged in operating a ferry across White River, between Ruddells, in Izard County, and Mountain View, in Stone County, for damages to compensate for the death of his intestate daughter. The complaint was not divided into counts, and the prayer for judgment was in a single paragraph, damages being asked by the administrator for the pain and- suffering of his intestate, and by the plaintiff, as the father of the child, for loss of services.

At the conclusion of the plaintiff’s testimony, a verdict was directed in favor of the defendant, and this appeal is from the judgment pronounced thereon.

Among the witnesses offered was the plaintiff’s wife. Objection was made to her testimony because she was plaintiff’s wife. Thereupon the court ruled that the witness was competent in the suit of the plaintiff as administrator, but was not competent in his -suit for loss of services, and refused to permit the witness to testify unless plaintiff would first take a nonsuit in his individual case wherein he prayed judgment for the loss of the child’s services. • Plaintiff declined this -offer, and then inserted in the record what the testimony of the witness would have been had she been permitted to testify.

We have concluded that it is unnecessary to decide whether the court erred in imposing thé condition stated, as, in our opinion, the excluded testimony, in conjunction with the testimony of the other witnesses, failed to make a case for the jury, even when viewed in the light most favorable to the plaintiff, as it must be, inasmuch as the verdict was directed in defendant’s favor.

The testimony is to the following effect: On May 19, 1921, plaintiff, his wife, his daughter Rovelda, and a four-year-old son, were driving in a Ford car from Stone to Izard County, and their journey took them to the ferry operated by defendant. . On approáohing the ferry it was discovered that the bank was steep and was thought to be dangerous, so Mrs. Thomas and the little girl got out of the car and walked on the ferry-boat. The car was driven onto the ferry, and following it a two-horse wagon, loaded with staves, was also driven on the boat. The boat was between fifty and fifty-five feet long, and the car and wagon and team made a load, so far as the transportation of vehicles was concerned. After the car had been driven onto the boat, Mrs. Thomas got into the car with her husband, and they, with their son, were seated in the car when the child fell, or was thrown, overboard and was drowned.

The ferry was somewhat primitive and was operated by a single ferryman, whose entire time and attention were fully occupied in propelling the ferry over the river by using a cable extending across the river for that purpose. There was an apron at each end of the boat which served as a short stage or gang-plank. There aprons were about three feet wide and extended across each end of the boat, and were raised and lowered by means of a pole known as an apron-pole. The aprons were raised before the boat started across the river, and the poles were held in place by having the ends thereof shoved under a hasp, or catch, fastened to the gunwales of the boat. Plaintiff described the poles as being about as big around as his arm. The apron-pole was not intended to be securely fastened, as the apron was raised and lowered each trip of the boat, and the undisputed testimony shows that a weight or pressure of not more than a hundred pounds would unlatch the pole. The' latch on defendant’s boat was a segment of a wagon tire, and this appears to have been about the kind of latch used on other ferries on White River, and the boat itself was of the same general kind as other ferries; indeed, a witness testified that it had been made after the pattern of another boat. There were banisters on each side of the boat. The banisters were higher in the center and sloped to the ends, where they were only about twenty-six inches above the floor of the boat. The little girl was seen sitting on the pole just before she fell into the water, and plaintiff testified that he saw her just as she went over the banister at the end of the boat, the inference being that the weight of the child unlatched the pole, thereby releasing the apron, the weight of which, as it fell, threw the child over the banister into the water.

By the cross-examination of plaintiff’s witnesses, defendant nought to show that the child’s weight would not unlatch the pole, and that, if thus released, the pole would not have thrown the child over the banister, and that the child, in its unattended play, fell out of the boat. Inasmuch as it does not appear physically impossible for the child to have unlatched the pole and to have been hurled over the banister, we must assume that the inference to that, effect, deducible from plaintiff’s tetimony, would have been accepted by the jury as true.

Mrs. Thomas would have testified, had she been permitted to do so, that she and the little girl walked onto the boat because of the dangerous condition of the approach; that, after they were on the boat, the ferryman did not request them to get in the car; that the child was in no unusual place when she sat down on the apron-pole; that when the ohild sat down on the apron-pole she was immediately flung into the river hy said apron-pole.

The boat was in midstream when the child fell or was thrown into the river, and consternation prevailed. Attached to the ferry-boat was a canoe, which was fastened to the ferry-boat by a trace-chain. The ferryman undertook to unfasten the canoe, but his efforts to do so were impeded by Mrs. Thomas, who first attempted to leap into the river after the child, but was restrained by her husband. She then frantically attempted to unfasten the canoe, and her effort to do so interfered with the ferryman’s attempt to unfasten it. The canoe had no paddles or oars in it, but the driver of the wagon loaded with staves threw a stave down to the ferryman, to be used as a paddle. By the time the ferryman had released the canoe the child had floated down stream a distance estimated by the witnesses at from eight to fifteen feet, when she sank and was seen no more for three days, when her body was found several miles down stream.

Negligence is predicated upon the condition of the approach to the ferry, necessitating or making prudent the act of Mrs. Thomas and the child in getting out of the car; also upon the failure of the ferryman to rescue the child by swimming to it; and also by the failure to provide paddles or oars for the canoe, as well as upon the failure to securely and safely fasten the apron-pole.

No recovery could be sustained because of the approach to the ferry, for the reason that it was not the proximate cause of the drowning. The car was driven safely onto the boat, and it, of course, required no one’s attention during the passage over the stream.

Negligence cannot be predicated upon the failure of the ferryman to leap into the river and rescue the child. It was not made to appear that the ferryman could swim, and it is mere conjecture that the child could have been rescued in this manner. The father himself did not attempt to rescue the child by swimming, and it is unreasonable for him to insist that the ferryman should have risked the danger which the child’s own father would not assume.

We think that negligence cannot be predicated on the failure to provide the canoe with oars or paddles. No witness explained why the canoe was fastened to the ferryboat. It was certainly not as safe as the ferry-boat, and there is nothing in the testimony to support the inference that due care would have required the ferryman to provide the canoe with oars or a paddle to promote the safety of the passengers by providing such means for rescuing any one who might fall, or be thrown, overboard.

As we have said, the ferryman operated the ferryboat without assistance, and, according to the testimony of the driver of the wagon, he was on the opposite side of the 'boat from the child and could not have seen her from the place where she fell, or was thrown, overboard. This witness also stated that it would not have been possible to have saved the child, even though the canoe had been provided with paddles.

The real question in the case is, whether negligence is shown in the manner of fastening the apron-pole. As we have said, defendant’s ferry is similar to other ferries operated on White Eiver, and the manner of fastening the apron-pole is the same on them all. A witness for plaintiff who operated another ferry testified that passengers would sit just anywhere while crossing the river; that he had seen them sit on the apron-pole, but that this was dangerous, and he had always run them off when he observed anyone doing so, but the danger consisted in being struck by the pole as it was released, and there is no testimony from which it appeared reasonable to con: elude that the ferryman should have anticipated that the premature releasing of the pole might throw one off the boat. Nothing of the kind had ever occurred before. The pole was not provided as a place for passengers to sit down, nor is it shown that it was so used with such frequency or with the acquiescence of the ferryman as to make it a place where passengers were invited to sit.

The child was of tender years and was accompanied by the mother, hence the ferryman had the right to assume that the mother would exercise proper care for the child’s safety. There is no proof that the ferryman saw the child sitting on the pole, and, as before stated, it was not reasonably to be anticipated that the mother would permit the child to leave her immediate presence and take a dangerous position on the boat. Nor can it be said that the pole was a contrivance especially attractive to children, but even if it could be so treated, the ferryman had the right to assume that the mother would guard the child from danger.

It appears from the cross-examination of the driver of the wagon that the child fell through the banisters, and not over them, as he said there was no noise when the child fell into the water, and that she could not have fallen over the banisters into the water without making a splash. But the jury may not have believed this witness, and, as we have said, it does not appear to have been physically impossible for the child to have been thrown over the banisters. It does appear, however, from the testimony of B. C. 'Cross, a witness for plaintiff, who had operated another ferry using the same method of suspending the apron, and who had alsb operated the ferry in question, that it would have been, impossible for the pole to hang on the edge of the hook and hold the apron up. This witness is mistaken if plaintiff’s version is true, but his testimony does show that extreme improbability, " -I ¶

Our conclusion is therefore'that, viewing the testimony in the light most favorable to plaintiff, it was not sufficient to establish negligence on the part of the ferryman.

Affirmed.


author: Humphreys, J.

text:
    Morse v. Burkhart Manufacturing Company.
    Opinion delivered June 26, 1922.
    Partnership — liability op organizers op corporation. — Persons who have associated themselves together for the purpose of conducting business as a corporation are liable individually as partners on contracts made by them before filing the articles of incorporation with the Secretary of State.
    Appeal .from 'Pulaski Circuit Court, Third District; Archie F. House, Judge;
    affirmed.

      Rogers, Barber £ Henry, for appellant.
    When this suit was filed Morse Brothers Lumber Company was a de facto corporation, and Jeter Morse and S. J. Morse are in no wise liable as individuals on this account.
    The burden was on the appellee to prove the partnership, and the same being denied in the testimony, it raised an issue of fact for the jury.
    Judgment should not have been rendered against appellants as partners, even if the organization had not been completed by filing articles of incorporation with the Secretary of State prior to judgment. 134 Arlr. 23; 114 Ark. 358; Fletcher on Corporations, 1921 Suppl., § 298; Id. § 305.

      Poe, Gannaway £ Poe, for appellee.
    Appellant cannot now complain that there was an issue of fact as to the existence of a partnership which should have been submitted to the jury, since they requested no instruction on that issue, hence there could be no reversible error in failing to submit it. 75 Ark. 76, 85; 84 Id. 399; 76 Id. 164; |81 Id. 561; 102 Id. 591; 95 Id. 597. Appellants did not object or save any exception to the giving of the peremptory instruction. They connot now complain that it was erroneous. 91 Ark. 43; 73 Id. 407 ; 88'Ark. 506.
    2. The record does not show that Morse Bros. Lumber Company was a corporation, de facto or otherwise. Appellants raised this question for the first time at the trial, and the burden was therefore on them to prove that they were a de facto corporation. Appellee agreed that appellants might file as a part of the record, the originals or certified copies of the alleged articles of incorporation, but that was never done. The natural conclusion is that they were not incorporated. 1 Thompson on Corporations 311; 59 Fed. 716.
    Three things are essential to the existence of a de facto corporation:
    (1) A valid law under which a corporation with the powers assumed may be incorporated. 2() A bona fide attempt to organize such corporation under that law, and (3) an actual exercise of corporate powers. 7 R. C. L. 61-66. See also 168 Fed. 187.
    The burden of proof was upon the appellants to show that the alleg'ed corporation had exercised actual corporate powers. 59 Fed. 716-718.
    If, however, it should be held that Morse Bros. Lumber Company was a de facto corporation, appellants, who were the original incorporators, are liable as partners for a debt contracted by the de facto corporation. 35 Ark. Ill, 116. Bank of Midland v. Harris, 111 Ark. 358, relied on by appellants, has no application to this case.
   Humphreys, J.

Appellee, a Missouri corporation, instituted this suit in the Pulaski Circuit Court, Third Division, against Jeter Morse, Wesley Morse, J. M. Morse, and S. J. Morse, alleged copartners trading as Morse Bros. Lumber Company, to recover $2,389.89 for lumber sold and delivered to the firm. Service was obtained on Jeter Morse and S. J. Morse. They filed separate answers denying that the several parties sued, including themselves, were copartners trading as Morse Bros. Lumber Company, but on the contrary were stockholders in a de facto corporation by that name; also denying individual liability on account of lumber sold and delivered to the corporation.

The cause was submitted upon the pleadings and testimony. At the conclusion of the testimony the court instructed a verdict in favor of appellee for the amount claimed, and upon return of the verdict, rendered judgment in accordance therewith for $2,466.76 against Jeter Morse and S. J. Morse as individuals, from which is this appeal.

The record reflects that Jeter Morse, S. J. Morse, Wesley Morse, and J. M. Morse associated themselves together under the name of Morse Bros. Lumber Company for the purpose of conducting a lumber business as a corporation. The concern filed articles of incorporation in 1916 with the clerk of Tell County. The articles of incorporation were not filed with the Secretary of State until July or August of 1921. In the meantime, Morse Bros. Lumber Company conducted a manufacturing wholesale lumber business at Little Bock, Arkansas. Its letters and invoices were signed Morse Bros. Lumber Company, by Jeter Morse, President. The items of ■lumber embraced in the account sued upon were ordered from appellee by letter signed in this way, dated March 8, 1921.

The question, squarely presented for determination on this appeal, is whether, under the laws of this State, individuals may associate themselves together for the purpose of organizing a corporation and conduct business in the corporate name before perfecting the incorporation, without rendering themselves individually liable as partners. In the ease of Garnett v. Richardson, 35 Ark. 144, the court ruled they could not. It was said in that case, “appellants could not do business as a corporation until their articles of association were filed in the office of the Secretary of State, as provided by the general act of incorporation. For purchases made by them before then, they were personally liable as partners.” The doctrine announced in this case, although contrary to the apparent, weight of authority, has been approved without extension in the cases of Bank of Midland v. Harris, 114 Ark. 358; Breitzke v. Tucker, 129 Ark. 401, and Wesco Supply Co. v. Smith, 134 Ark. 23. The instant case is ruled by Garnett v. Richardson, supra, as the cases are in substance identical.

No error appearing,"the judgment is affirmed.


text:
    Tarkington v. State.
    Opinion delivered June 26, 1922.
    1. Continuance — absent witness. — It was not error to refuse a continuance for an absent witness who had disregarded a subpoena and disappeared, in the absence of a showing as to her whereabouts or that her testimony could be procured at the next term of court.
    2. Criminal law — incompetent evidence — invited error. — In a prosecution for robbery for which defendant was indicted with another, who had absconded, where defendant introduced evidence of the statements, acts and conduct of the other accused person, after his arrest, the admission of testimony of the flight of the other was not error, since defendant lost his right to complain by introducing incompetent evidence in relation to the other’s conduct.
    3. Criminal law — duty to give written instructions. — Under Const, art. 7, § 23, it is the duty of the trial court to give written instructions to the jury when requested.
    4. Criminal law — bystanders’ bill of exceptions. — Under Crawford & Moses’ Dig., § 1322, providing that if the party excepting is not satisfied with corrections of the bill of exceptions by the trial judge, he may procure “the signatures of two bystanders attesting the truth of his exception,” a bill of exceptions attested by appellant’s attorneys is insufficient, since they are not “bystanders.”
    5. Robbery — sufficiency of evidence. — In a prosecution for robbery evidence held sufficient to support a verdict of guilty.
    Appeal from Pope Circuit Court; A. B. Priddy, Judge;
    affirmed.

      Mitchell & Williams, Robert Bailey and Patterson é Ragon, for appellant.

      J. S. TJtley, Attorney General; Elbert Godwin and W. T. Hammock, Assistants, for appellee.
   Humphreys, J.

Appellant was jointly indicted with Bill Chronister in the Pope Circuit Court for the crime of robbery, and on January 17, 1922, at an adjourned term of the November, 1921, term of said court, was separately tried, convicted and sentenced to serve three years in the State Penitentiary as punishment therefor. He was first separately tried at the November, 1921, term, but the jury failed to agree. The cause against both Chronister and appellant was continued and set for December 20,1921. On that date an unsuccessful attempt was made to obtain a continuance of the cause against Chronister on the ground that he was ill at home near Benton. The court declared a forfeiture on Chronister’s bond and ordered the issuance of an alias warrant for him. The cause against both was then continued until January 16, 1922, to which time court was adjourned. During the interim it was discovered that Chronister had absconded, and the circuit judge notified the parties that the cause against appellant would stand for trial on January 16, 1922. When the court reconvened, all the witnesses theretofore subpoenaed were present except Mrs.. Bill Chronister, wife of appellant’s codefendant. None of the witnesses knew what had become of Bill Chronister and his wife. He had disappeared and was a fugitive from justice. Appellant thereupon filed a motion for continuance on account of the absence of Mrs. Chronister, who had been duly subpoenaed and for whom an attachment had been issued ¡but who could not be found. She had testified in the first trial, and her evidence was material as tending to establish an alibi for appellant. No showing was made in the motion for continuance as to the whereabouts of Mrs. 'Chronister, and no showing that her presence or testimony could certainly be procured by the regular April term of court. She had disregarded the subpoena, suddenly disappeared, and her husband had absconded. We think, under the circumstances, the court did not abuse its discretion in concluding that the absent witness had gone with her husband, and that appellant conld not obtain her presence or deposition if accorded a continuance. Error was not committed in overruling the motion for continuance. Allison v. State, 74 Ark. 450; Coppersmith v. State, 149 Ark. 597.

Appellant next contends that the court committed reversible error in permitting the State to prove that his alleged accomplice, Bill Chronister, was a fugitive from .justice. This court said in the case of Benton v. State, 78 Ark. 290, that “the law is well settled that the acts and declarations of coconspirators, in the absence of the defendant, after the consummation of the criminal enterprise, cannot be admitted in evidence.” Appellant, however, is not in position in the instant case to invoke this rule. He not only acquiesced but assisted the State in getting the statements, acts and conduct of Chronister immediately after his arrest before the jury. After the State had shown that Chronister and appellant were taken to the scene of the robbery for the purpose of identification, and that Chronister’s shoes were compared with tracks made by the robbers, appellant drew out of the witness, C. C. Hurdlow, on cross-examination, that Chronister had requested, when arrested, to be taken before his accusers that they might have an opportunity to say whether he was the guilty man, and also a statement of Chronister to the officer who was measuring and comparing the tracks, that he owned two pairs of shoes. Appellant followed this up by introducing Wheeler Morgan, who gave direct testimony to the same effect tending to establish frankness on the part of Chronister. The issue of whether Chronister was guilty or innocent, as tested by his conversation and conduct after his arrest, was willingly accepted and acquiesced in by appellant until Chronister’s flight was touched upon. Then for the first time he objected. The rule of evidence is that one who introduces incompetent testimony himself cannot complain when his adversary introduces in rebuttal testimony of the same character. Beck v. Biggers, 66 Ark. 292; Mitchell v. Smith, 86 Ark. 486. It was not -error, under the circumstances, to permit the State to show the flight'of Chronister.

Appellant next insists that the court erred in instructing the jury orally when requested to instruct them in writing. The Constitution of this State makes it the duty of the trial court to instruct the jury in writing when requested to do so. Article 7, sec. 23, of the Constitution of 1874. There appears in the bill of exceptions a request by appellant for written instructions. Immediately following the request is an affidavit of the circuit judge to the effect that no such request was filed or called to his attention in any manner or form. This was tantamount, on the part of the judge, to refusing or striking out the exception. Two affidavits of appellant’s attorneys appear in the bill of exceptions tending to show that the written request for instructions was presented to the judge, but these affidavits do not meet the requirements of the law for correcting the bill of exceptions. When the judge refuses to certify a bill of exceptions, it can only be certified by bystanders who are not directly concerned in the controversy. Attorneys in the case are not bystanders in the meaning of the law. Gay Oil Co. v. Akins, 100 Ark. 552. No error was committed in orally instructing the jury.

Appellant’s last insistence for reversal is that the evidence is insufficient to support the verdict. The record reflects that on the night of October 16,1921, two masked men entered the home of Mrs. Scarbrough and her daughter, Dessie Smith, who resided about 12 miles north of Russellville, and, at the point of a pistol, robbed them of $545. The men had a large flashlight which lighted the room more brightly than a lamp. After they obtained the satchel containing the money from Mrs. Scarbrough, Dessie Smith engaged in a struggle with one of them for the money, but was overpowered. She got a good view of the eyes and general make-up of the robbers: She became convinced that one of them was Bill Chronister,'and so notified the officials. After the arrest of Chronister and appellant, they were taken before the women for identification. Dessie Smith identified Chronister, and said, judging from his eyes and general make-up, according to her best judgment and belief, appellant was the other participant in the robbery. The undisputed testimony showed that appellant and Bill Chronister were together during the entire night of the robbery, and that they had been close companions and associates for some time. Chronister’s flight indicated a guilty conscience, and, as the two were admittedly together the entire night, it is hardly probable that appellant is innocent if Chronister was guilty.

After a careful reading of the record we are convinced that there was sufficient substantial evidence to support the verdict. No error appearing, the judgment is affirmed.


text:
    Missouri Pacific Railroad Company v. Geren.
    Opinion delivered June 26, 1922.
    Railroads — negligence—runaway locomotive. — Where a railway locomotive, with steam up, was left in charge of a watchman whose other duties took him elsewhere, and during his absence some one opened the throttle, causing the engine to run .off the track and into plaintiff’s wagon, the railway company was guilty of negligence, as, under the circumstances, the engine was a dangerous agency, and a constant watch should have been kept over it.
    Appeal from Sebastian Circuit Court, Port Smith District; John Brissolara, Judge;
    affirmed.

      Thos. B. Pryor and Vincent M. Miles, for appellants.
    The court should have directed a verdict for the defendant. Section 8562, Crawford & Moses’ Digest, does not apply. There was no presumption of negligence on the part of the defendants. 70 Ark. 481.

      A. A. McDonald, for appellee.
    Railroads shall be responsible for all damages to persons and property done or caused by the running of trains in this State. C. & M. Digest, sec. 8562. This statute cast upon the company the burden of showing due care on its part. 57 Ark. 136; 65 Ark. 325; 83 Ark. 217. There was no error in giving or refusing instructions. 99 Ark. 226; 91 Ark. 97; 90 Ark. 524.
   Humphreys, J.

Appellees instituted suit against appellants in the circuit court of Sebastian County, Port Smith District, to recover $193.95 for damage to an ice wagon, on account of alleged negligence in permitting an engine to leave appellant’s track and run across a street into appellee’s wagon. The particular negligence alleged consisted in appellants leaving an engine on a side-track with steam up and in condition to foe operated, without sufficient control or supervision.

Appellants filed an answer denying the material allegations of the complaint.

The cause was submitted upon the pleadings, testimony, and instructions, which resulted in a verdict and judgment against appellants in the sum of $170.95, from which is this appeal.

Appellants contend that the trial court committed reversible error in not instructing a verdict for them at the conclusion of the evidence, and in giving and refusing certain instructions. We deem it unnecessary to set out or discuss the instructions, for we have concluded that the undisputed facts show that the wagon was demolished through the negligence of appellants. The facts are as follows: Appellees owned an ice plant across the street from the end of the switch-track of the Arkansas Central Railroad Company. ■ The platform of the ice plant v>as about 90 feet from the end of the track. Between nine and ten o’clock p. m. on April 20, 1921, a Missouri Pacific engine, No. 14, was placed on the switch one-half block from the end of the track, in charge of a night watchman, whose other duties carried him out of sight and hearing of this ánd other'engines left in his charge. The engine was fired and had up 60 pounds of steam. The reverse lever was on the center and the throttle closed. The effect of this was to lock the engine so it could not move unless the lever was moved and the throttle opened. The lever worked upon a quadrant, and could be moved in forward or backward ¡motion. The engine could be operated by moving the reverse lever off of center and opening the throttle. At one o’clock a. m. the watchman examined and left the engine locked in this manner. He then went forward about a block from the engine to clean a passenger coach on the same track. Other cars were between the coach and the engine, which obstructed his view and prevented him from hearing the engine should it move. The same morning about two o’clock the engine was discovered by W. A. Recon, fireman on the yard engine, off the track and across the street next to the ice factory, where it had run into and crushed the wagon against the platform. The engine had run across the street, and in doing so the'wheels had cut deep into the ground. When found, the reverse lever was in forward and the throttle partly open.

The engine, with steam up, was in condition to be operated by a movement forward or backward of a lever and the opening of a throttle. Anyone who passed, if inclined, could do this. In the condition and place left, it was a dangerous agency and a constant watch should have been kept over it. It was left in charge of a watchman but other duties were assigned him that carried him out of sight and hearing of the engine. In his absence, some one released the engine and permitted it to run away. Such a dangerous agency should not be intrusted to a watchman in name only. It was negligence to leave a live engine, so easy to release, practically unprotected and unguarded.

The judgment is therefore affirmed.


author: Smith, J.

text:
    Crouthers v. State.
    Opinion delivered June 26, 1922.
    1. Larceny — sufficiency of evidence. — In a prosecution for larceny evidence of defendants’ possession of recently stolen property, together with contradictory and suspicious explanations thereof, held sufficient to sustain a conviction.
    2. Larceny — allegation of ownership — variance.—Testimony, in a prosecution for stealing automobile casings and accessories, that the alleged owner of the car from which the property was taken had not paid the entire purchase price did not constitute a variance; the buyer having an interest in the car which constitutes such a special ownership as entitled him to the possession thereof.
    3. Criminal law — surprise—refusal of new trial. — It was not an abuse of discretion to refuse a new trial in a criminal case on the ground of surprise in the introduction by the State of testimony impeaching defendant as a witness, though he did not put his reputation for honestly in issue, as he must be held, by becoming a witness, to have subjected himself to the same cross-examination and impeachment as any other witness.
    4. Criminal law — newly discovered evidence. — It was not an abuse of discretion to refuse a new trial on the ground of newly discovered evidence that was merely cumulative.
    Appeal from Conway Circuit Court; A. B. Priddy, Judge;
    affirmed.

      J. Allen Eades and Hays & Ward, for appellant.

      J. 8. Utley, Attorney G-eneral, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
   Smith, J.

Appellant was convicted of the crime of grand laceny, alleged to have been committed by stealing two automobile casings, two innner tubes, an automobile headlight, and one automobile wheel, of the value of $35, the personal property of A. Z. Mitchell.

It is insisted, for the reversal of the judgment, that the testimony is not sufficient to support the verdict; that there is a variance between the testimony and the allegation of the indictment as to the ownership of the stolen property; that the court erred in permitting defendant to be impeached as a witness when he had not put his good character in issue; and that the court erred in failing to grant a new trial on account of newly discovered testimony.

Mitchell testified that he resided about a mile and a half from Plumerville, in Conway County, and that in June, 1921, he was the owner of a Ford automobile, which he had purchased a short time before from A. B. Payne, a merchant in Plumerville. There were Racine casings on the car at the time of the purchase, but shortly thereafter witness purchased a Goodyear casing for the right front wheel. Witness had put a new inner tube in the Racine easing on the rear right wheel, and had also put a new tube in the Goodyear casing. On the night of June 16, 1921, someone stole the casing and tubes from the right front and rear wheels of the car, and also the right front wheel and the right headlight. Witness Mitchell lived near the road running north from Plumerville, and between eight and nine o’clock on the night of the larceny he saw someone pass his house driving a car without lights, going north. Soon thereafter he saw someone driving a ear without lights going south. Witness went to Plumerville the day after the larceny and reported his loss to Payne, and about two weeks later was notified by Payne that the stolen articles had been found. Witness and Payne drove to where appellant’s car was standing, and when they arrived there appellant and two boys had taken the rear easing off of appellant’s car, and were taking off the front casing. There was no inner tube in the rear casing, and witness commented on that fact, whereupon appellant stated that he did not get any inner tubes but had only purchased the casings, and that he had bought new inner tubes and had put them in the casings. Before the inner tube was taken out of the front casing witness told appellant that if the inner tube was his it would have two small patches on it, and after the inner tube was removed from the front casing the patches were found just as witness said they would be, ■ whereupon appellant said, “I reckon maybe that is' yours.” Witness did not get the wheel, the headlight, nor the inner tube for the rear easing; but he did get the two casings and the inner tube for the front casing, although appellant stated at the time that he had purchased only the casings, and that he had got them from a traveling man. Witness testified that he identified the right front wheel on appellant’s car as the one stolen from his car, but appellant refused to surrender it.

Payne testified that when he sold Mitchell the car he made a notation of the serial numbers of the casings, and that about a week after they had been stolen he saw the right rear easing on appellant’s car. He spoke to appellant and told him that he had Mitchell’s casings, and appellant stated that he had bought them from two boys, but that Mitchell could have them if they were his.

As a witness in his own behalf, appellant testified that one morning between seven and eight o’clock two young men, unknown to him, came to his store and stated that they were broke but that they had two casings and an inner tube for sale. He asked no explanation of the young men as to how they came to have the property but no money, and, although he had never seen them before, he paid them $15 for the casings and inner tube. He denied buying or having any other article of the stolen property; and he denied that Mitchell asked him about the othei articles; and he denied that he had told Payne that he made the purchase from a traveling man.

Appellant stated that he was at home on the night of the larceny, but admitted he might have driven his car out on the road where Mitchell lived after his washing, but denied that he made that trip on the night the articles were stolen or that he came back by the hotel, and he denied seeing Mr. Nesbit at the hotel that night.

Appellant was corroborated relative to the purchase in June, 1921, of some casings and an inner tube by a negro named Jones and a white man named Tucker.

In rebuttal Nesbit testified that on the night of the larceny he saw appellant between ten and ten-thirty driving a car -without lights coming from the direction in which Mitchell lived, and that appellant drove the car under a light near the hotel, where he plainly saw him. He stated that the top of the car was down and that he did not see any of the stolen articles in the car.

We think this testimony is sufficient to sustain the conviction. We have here the possession of recently stolen property, and explanations of that possession which are contradictory and, of themselves, calculated to arouse suspicion. Shepherd v. State, 44 Ark. 39; Blankenship v. State, 55 Ark. 244; Duckworth v. State, 83 Ark. 192; Douglass v. State, 91 Ark. 492; Wiley v. State, 92 Ark. 586; Jackson v. State, 101 Ark. 473; May v. State, 135 Ark. 400; Long v. State, 140 Ark. 417; McFall v. First National Bank, 138 Ark. 379.

It is said the testimony shows Mitchell did not pay the entire purchase price of the car, and that the title thereto was retained by Payne, and that this fact constitutes a variance, inasmuch as the indictment alleges Mitchell to be the owner of the car. On behalf of the State it is insisted that the testimony does not present this question of fact. But we pretermit a discussion of the testimony on this point, as we think there is no variance even though the title had been retained by Payne.

Mitchell was in possession of the car under a contract of sale entitling him to the possession thereof. He had an insurable interest in the car. Hartford, Fire Ins. Co. v. Enoch, 79 Ark. 475. A thief has no right to demand a trial of the title to the stolen property of the person from whom it was stolen. It is sufficient if the indictment alleges one to be the owner who has such a special ownership as to entitle him to the possession and control of the stolen property. Wells v. State, 102 Ark. 627; Cook v. State, 80 Ark. 495; Merritt v. State, 73 Ark. 32;McCowan v. State, 58 Ark. 17; Blankenship v. State, 55 Ark. 244; Scott v. State, 42 Ark. 73; Brown v. State, 108 Ark. 336; Gooch v. State, 60 Ark. 5; State v. Esmond, 135 Ark. 168.

. Testimony was offered by the State impeaching appellant- as a witness. He did not pnt his reputation for honesty in issue and claims to have been surprised that the State should have impeached him as a witness. Accompanying the motion for a new trial Avere the affidavits of a number of persons that the reputation of appellant for truth and veracity was good and that upon his reputation he. was entitled to be believed.

We think no abuse of discretion was shown by the trial court in refusing a new trial on the ground of surprise. The defendant must be held to have knoAvn that if he became a witness he did so subject to the right of the prosecution to impeach him if that testimony was available. He knew that his reputation for honesty could not be made an issue unless he first raised the issue. But he also knew whether he intended to testify as a witness, and he must be held to have knoAvn that if he did become a witness in his own behalf he was subject to the same cross-examination and impeachment as is available against any other witness. Shinn v. State, 150 Ark. 220; Pearrow v. State, 146 Ark. 205.

The motion for a new trial set up certain newly discovered testimony. But it Avas cumulative to other testimony offered at the trial, and there appears to have been no abuse of discretion in this respect. Cravens v. State, 95 Ark. 321.

No error appearing, the judgment is affirmed.