author: Humphreys, J.

text:
    Wisconsin & Arkansas Lumber Company v. Hall.
    Opinion delivered February 22, 1926.
    1. Master and servant—assumed risk and contributory negligence—evidence.—In an action for personal injuries alleged to have been caused by the negligence of a fellow-servant, evidence held not to establish as a, matter of law that plaintiff assumed risk of such negligence or that he himself was guilty of contributory negligence.
    2. Damages—instruction.—It was not error to instruct the jury that if they find for the plaintiff the verdict “will be for such sum as will reasonably compensate him for the injuries sustained.”

      Appeal from Saline Circuit Court; Thomas E. Toler, Judge;
    affirmed.

      E. B. Kinsworthy and B. 8. Kinsworthy, for appellants.

      H. B. Means and W. R. Bonham, for appellee.
   Humphreys, J.

Appellee instituted suit in the circuit court of Saline County against appellant to recover damages in the sum of $3,000 for an injury received while engaged in off-bearing lumber from a cut-off saw in one of appellant’s mills near Malvern. It was alleged that appellee received an injury in the abdomen, causing tumors to form, from which he suffered constant pain, and which disabled him from performing labor of any kind, through the negligence of a co-employee, who ran a hand-truck loaded with lumber into a hand-truck also loaded with lumber which appellee was pulling back into the runway, in which collision said appellee was crushed between the trucks.

Appellant filed an answer denying the material allegations in the complaint and, by way of separate defense, pleaded contributory negligence and assumption of risks on the part of appellee. The cause was submitted to a jury upon the pleadings, testimony*introduced by the parties, and the instructions of the court, which resulted in a verdict and consequent judgment for $3,000 in favor of appellee, from which is this appeal.

The cause was sent to the jury under correct instructions upon the issues of negligence on the part of appellant and contributory negligence on the part of appellee, which resulted in a finding binding upon appellant if supported by any substantial evidence that appellant was negligent, and that appellee was not, but appellant contends for a reversal of the judgment for the alleged reason that the undisputed testimony reveals that appellee was injured by his own and not through its negligence. We cannot agree with the interpretation placed on the testimony by learned attorneys for appellant. There is substantial testimony in the record tending to show that the injury resulted on account of the negligent handling of a hand-truck loaded with lumber by J. Bansom, an employee of appellant. There is a long- room in appellant’s mill, one side of which is utilized for cut-off saws and machines, and the other side for a runway three hundred feet long by fifty feet wide in which to push two wheel hand-trucks loaded with lumber. Trucks loaded with lumber stand next to the runway ready for use as the sawyers need the lumber thereon. When lumber is needed, the sawyer crosses the runway and pulls a loaded truck out of the row into the runway and rolls it to his machine. Appellee was injured while pulling one of these loaded trucks out into the runway preparatory to rolling it to the cut-off saw he was operating. Appellee testified that, as he was pulling the truck backward out of the row in the usual and ordinary way, and just as he had gotten it out ten or twelve feet and was turning around to roll or push it, Bansom ran the truck he was pushing in the runway into the truck he (appellee) was handling, thereby crushing him between the trucks; that when he started to pull the truck out, he looked up and down the runway and observed no other truck approaching ; that trucks run both ways up and down the runway; that he did'liot keep a constant lookout for the reason that it was necessary for him to use his eyes in getting his truck out of the row into the runway so he could push it to the machine he was operating; that he had his back toward Bansom and was pulling the truck out rapidly, as he was compelled to do in order to keep it moving, and that Bansom was facing him; that Bansom could have-seen him and avoided the collision by turning to one side and running around him; that there was ample room in the .runway to run around him; that if he (appellee) had kept looking over his shoulder constantly in the direction of Bansom’s truck, he could have seen Bansom approaching and avoided the collision, but that he could not do this, as his work in backing out required his attention.

Appellant was corroborated in this statement by O. Z. Keeton, who was working with him at the time.

The statement of the testimony of appellee .and Keeton, detailed above, is the most favorable construction which can be placed upon their testimony, and, when viewed in that light, is sufficient to sustain the verdict and judgment. The testimony of an appellee must be viewed in the most favorable light to him when a judgment in his favor is sought to be reversed in this court on account of the insufficiency of the evidence. The effect of their testimony, when given its greatest probative force, shows that the injury was caused by a collision resulting from the negligence of a co-employee (Ransom) at a time when appellee, in exercise of ordinary care for his own safety, was engaged in the performance of his duties in substantial compliance with instructions. It is true that Gr. C. Speer, appellant’s foreman, testified that when appellee went to work for appellant, he told him to watch out and keep watching when he was pulling his truck out, but he admitted that in pulling the truck out it was necessary to back out the full length of the truck before he could turnaround and push it. The lumber piled on the truck in question 'was sixteen feet long. Just what was meant by this instruction became a disputed question of fact by the .jury when construed in connection with the testimony of appellee and Keeton that appellee was performing his duties in the usual and ordinary way and the testimony of appellee to the effect that it was necessary for him to look to the front in order to get the truck out of the row. The jury may have inferred from the whole testimony bearing upon this point that the instruction meant for appellee to ascertain whether the runway was clear before backing out with the truck. It would hardly be reasonable to expect one to keep a constant lookout for other trucks when engaged in work that required his attention in the opposite direction. Likewise, it would hardly be expected that appellee would look one way constantly when trucks ran both ways up and down the runway. In addition to arguing that appellee was injured while disobeying instructions and for that reason not entitled to recover damages in the law, appellant also argues that Hansom had the right-of-way over appellee in the runway, and for that reason was not entitled to recover damages for the injury. Of course, this would be true if the undisputed evidence showed that to be a fact. One of appellant’s own witnesses, L. H. Lee, testified that it was customary for the men using the - runway to run on any part of it they wished.

Since the undisputed evidence does not show that appellee was injured on account of his own negligence or while disobeying instructions; or while attempting to take the right-of-way belonging to another employee, it cannot be said that the verdict is contrary to the evidence.

Appellant also contends for a reversal of the judgment because the trial court instructed the jury as follows upon the measure of damages:

“You are instructed that, if you find for the plaintiff, your verdict will be for such sum as will reasonably compensate him for the injuries sustained.”

. The objection made to the instruction is that it did not limit the verdict to the evidence. This was necessarily implied, for there was nothing else in the case to guide the jury except the evidence. The instruction is not similar to the one given in the case of St. L. I. M. & S. R. Co. v. Steed, 105 Ark. 205, cited by appellant in support of its contention in this respect. The instruction in that case permitted the jury to return damages in such sum as in their judgment would compensate the injured party. The error in that instruction was in limiting the amount by the opinion or judgment of the jury instead of by the evidence.

No error appearing, the judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Ward Furniture Company v. Ortner.
    Opinion delivered February 22, 1926.
    Master and servant—negligence op independent contractor.— Where A company employed B company to kiln-dry lumber, the latter company having entire control of the premises, A company’s servant, injured by a defective door while engaged in removing lumber from the kiln, has no right of action against his employer.
    Appeal from Sebastian Circuit Court, Fort Smith District; Jolvn E. Tatum, Judge;
    reversed.

      Daily & Woods, for appellant.

      J. B. Karnopp, for appellee.
   Humphreys, J.

This suit was instituted by appellee against appellant in the circuit court of Sebastian County, Fort Smith District, to recover damages for personal injuries in attempting to open the door on the west side of a kiln or drying-room on the premises of the Garrison Furniture Company inbrder to light up the room from which he and other employees of appellant were about to remove lumber which had been seasoned by .the drying process. The door fell upon and injured appellee when he attempted to open it, and his claim for damages is based upon the fact that the kiln- or room had been leased by appellant from the Garrison Furniture Company, and that appellant had negligently permitted the carriage upon which the door ran to get out of order and to remain in a dangerous condition on account of its failure to inspect same.

Appellant filed an answer to the complaint, denying its control over the kiln or room as well as all the material allegations of negligence contained therein, and interposed the additional defenses of contributory negligence and assumed risk.

At the conclusion of the testimony appellant requested the court to instruct a verdict in its favor, which the court refused to do, over its objection and exception.

The cause was then submitted to a jury upon, the pleading’s, testimony, and instructions of the court, resulting in a verdict and judgment in favor of appellee for $500, from which.is this appeal.

Appellant has waived all of its Objections and exceptions save the refusal of the trial court to instruct a verdict in its favor, and insists upon a reversal'of the judgment and a dismissal of the cause on account of the alleged insufficiency of the evidence to support the verdict and judgment.

The following facts are revealed in the record by the undisputed testimony: .Appellant and the Garrison Furniture 'Company are separate and independent corporations engaged in the manufacturing business in this State. The two corporations entered into an oral contract by the terms of which the Garrison Furniture Company agreed to kiln-dry lumber for appellant in any one or more of three kilns not otherwise in use for the stipulated sum of $3 per thousand feet. The Garrison Furniture Company operated the kilns, retained control over them, and kiln-dried the lumber according to its own methods. Thé extent of appellant’s authority upon the premises of the Garrison Furniture Company was to put its lumber in the kilns and take it out and to use its own employees for that purpose.

It goes without saying, under the undisputed facts thus detailed, that appellant owed no duty to its employees to inspect the mechanism and appliances of the kilns and to keep them in order.

Appellee based his right to recover damages upon the theory that appellant had leased the kilns from the Garrison Furniture Company under the terms of which it had the control and management of them to the same extent as if it owned them. He failed to establish his theory by proof, and must fail to recover damages for the injury he received while attempting to open the door to the kiln in question.

For the reason assigned the judgment must be reversed, and the cause dismissed. It is so ordered.


text:
    First National Bank of Fort Smith v. Brunk.
    Opinion delivered February 22, 1926.
    1. Bills and notes—indorsement—parol evidence.—Parol evidence is admissible to explain or qualify unrestricted indorsements of commercial paper.
    2. Custom and usage—evidence.—Evidence is admissible to show a custom or usage between two banks to charge back unpaid checks.
    S. Banks and banking—nature of title to draft-—evidence.— Where it was -a question whether defendant bank acquired the draft in question by purchase or for cpllection merely, it was improper to admit evidence as to collateral paper held by defendant as security for -other debts.
    4. Bills and notes—restrictive indorsement.—Indorsement of a draft “to any bank, banker or trust company” is not restrictive, under Crawford & Moses’ Dig., § 7802.
    Appeal from Sebastian Circuit Court, Fort Smith District; John E. Tatum, Judge;
    reversed.

      Daily é Woods, for appellant.

      Warner, Hardin & Warner, and H. H. Thomas, for appellee.
   Humphreys, J.

Appellee brought this suit against appellant and the First National Bank of DeQueen in the circuit court of Sebastian County, Fort Smith District, for the possession of a draft for $1,603 or its proceeds, drawn upon the -State National Bank -of Texarkana by the First National Bank of DeQueen in favor of appellee. Appellee alleged, in substance, that he was the owner of the draft, having deposited same on April 21, 1924, after indorsing it in blank to the First National Bank of Poteau,- Oklahoma, for collection; that the First National Bank -of Poteau forwarded same to appellant, which holds the draft wrongfully, claiming to be the ■owner thereof; that appellant, upon receipt of said draft, became appellee’s agent for the collection thereof, and acquired no right, title, or. interest therein; that both appellant and its co-defendant, First National Bank of DeQueen, have failed to pay appellee the amount -of the draft, although due demand has -been made therefor; that at the time appellee deposited the draft with the First National Bank of Potean, Oklahoma, for collection, it was hopelessly insolvent.

Appellant, First National Bank of Fort Smith, filed an answer and cross-complaint admitting the execution and delivery of the draft by the First National Bank of DeQueen to appellee, but denying the other material allegations of the complaint. It alleged by way of cross-complaint against appellee and its co-defendant, First National Bpnk of DeQueen, that the First National Bank of Poteau, by its unrestricted and unconditional indorsement, indorsed and delivered said draft to it for value in due course of business and without notice of any defect in title, if any, and asked for judgment against its co-dedefendant and appellee for the amount of the draft, together .with interest .and protest fees.

The First National Bank of DeQueen filed an answer to the complaint of appellee and the answer and cross-complaint of appellant, disclaiming any interest in the draft, and tendering the amount thereof into court.

Appellee filed an answer to the cross-complaint of appellant, denying the material allegations therein and amplifying his original allegation concerning the insolvency of the First National Bank of Poteau at the time he deposited the draft therein by alleging that the officers of said bank had full knowledge of its insolvency, and that in receiving said draft a fraud was perpetrated upon appellee, and that neither the First National Bank of Poteau nor appellant acquired any title to said draft or its proceeds.

The cause was submitted to a jury upon the pleadings, testimony adduced by the respective parties, and the instructions of the court, which resulted in a verdict and judgment in favor of appellee for the amount of the draft and interest, from which an appeal has been duly prosecuted to this court.

It will be observed from the pleadings that only two issues were presented; first, whether appellee parted with the title to the draft when he indorsed same habíanle to the First National Bank of Potean; and, second, whether appellant subsequently acquired title thereto as an innocent purchaser for value from the First National .Bank of Potean. It was necessary for appellee to introduce testimony in support of the first issue tendered before he was in position to controvert the claim of appellant that it was an innocent purchaser of the draft for value. Appellant asks for a reversal of the judgment because the trial court permitted appellee to explain or qualify his indorsement of the draft; in blank by parol evidence. The rule is practically universal that unrestricted indorsements of commercial paper may be explained or qualified by parol evidence. Johnson v. Schnabaum, 86 Ark. 82, and authorities cited therein upon that point; Cox Grocery Co. v. National Bank, 107, Ark. 603.

Appellant also asks for a reversal of the judgment because the trial court permitted witness Stevenson to testify as to the custom of banks to charge back unpaid checks. We understand that the custom alluded to by the witness had relation to the understanding existing between appellant and the First National Bank of Potean touching upon business transactions of this character between them. The testimony was therefore clearly admissible.

Appellant also asks for a reversal of the judgment because the trial court required witness Stevenson to testify on cross-examination regarding the collateral held 'by appellant to secure the indebtedness of the First National Bank of Poteau to it. We are unable to understand the relevancy of this testimony to the issue of whether appellant acquired the draft iby purchase or merely received it for collection. It was no part of the debt secured by the collateral, and was not a part of the collateral securing the debt. It was error to admit this piece of testimony as a circumstance tending to establish the fact that appellant was not an innocent purchaser of the draft for value.

The following indorsement of the First National Bank of Potean appears upon the draft in question': “To any bank, banker, or trust company.” Relating to the legal effect of this indorsement, appellee requested the court to give the following instruction, which request was granted: “Under the undisputed testimony the indorsement of the said Poteau Bank on said draft reads ‘to any bank, banker, or trust company,’ and the court charges you that this indorsement indicates on its face that it passes the title to said draft for collection.”

This instruction was peremptory in its nature, telling the jury that the indorsement was restricted in the sense that it showed on its face that it merely passed the title to the draft for the purpose of collection only. The instruction was based upon the construction placed on a like indorsement in the case of Johnson v. Schnabaum, 86 Ark. 82. The opinion in this case was delivered prior to the passage of the “Negotiable Instruments Act,” one section of which defines restrictive indorsements as follows: An indorsement is restrictive which either (1) prohibits the further negotiation of the instrument; or, (2) constitutes the indorsee the agent of the indorser; or (3) vests the title of the indorsee in trust for or to the use of some other person.”

“But mere absence of words implying power to negotiate does not make an indorsement restrictive.” Crawford & Moses’ Digest, § 7802.

The indorsement in the instant case does not come within the definition of restrictive indorsements as defined by § 7802 of Crawford & Moses’ Digest. National Bank of Commerce v. Bossemeyer (Neb.), 162 N. W. 503; Interstate Trust Co. v. United States National Bunk, 185 Pac. 260.

Having concluded that the trial court committed reversible errors, pointed out above, in the trial of the case, we deem it unnecessary to set out the substance of the whole evidence and discuss the other alleged errors insisted upon iby appellant for a reversal of the cause. It may be on a new trial of tbe cause tbat additional evidence will be introduced. Suffice it to say tbat, in tbe new trial of tbe cause, tbe testimony should be confined to tbe two issues joined by tbe pleadings and submitted upon instructions applicable to tbe testimony adduced responsive to those issues.

On account of tbe errors indicated tbe judgment is reversed, and tbe cause is remanded for a new trial.


author: McCulloch, C. J.

text:
    Gay Oil Company v. State ex rel. Attorney General.
    Opinion delivered March 1, 1926.
    1. Taxation—gasoline tax on manufacturers and wholesale dealers.'—Under the Acts of the Regular Session of 1923, No. 501, and of the Special Session of 1923, No. 5, imposing gasoline taxes in identical language upon “manufacturers” defined as those who “produce, refine, manufacture, blend or compound gasoline within this State for sale to the jobber,” etc., and upon “wholesale dealers” defined as “persons who sell, offer for sale, or have for use in this State for the purpose of selling to retail dealers or consumers gasoline imported from other States,” held that the acts have no application to a dealer who, at the'time the acts were passed, held in storage tanks gasoline previously manufactured in this State.
    2. Statutes—legislative omissions.—Courts often supply words necessary to complete the sense and to express the obvious legislative intent, where it appears from the context that words have been inadvertently omitted; but otherwise omissions of the Legislature, either by design or mistake, are ¡beyond the power of the court to. correct.
    Appeal from Pulaski Circuit Court, Third Division; Marvin Harris, Judge;
    reversed.

      Moore, Smith, Moore & Trieber, for appellant.

      H. W. Applegate, Attorney General, and J. S. Abercrombie, Assistant, for appellee.
   McCulloch, C. J.

Appellant, a doméstic eorporaation, is engaged as a wholesale dealer in tbe business of buying and selling gasoline and motor oil in tbe State, and this is an action instituted against it by the State on the relation of the Attorney General to recover delinquent taxes alleged to have escaped collection.. The case was tried below on an agreed statement of facts, and the trial resulted in a judgment against appellant for the amount of the taxes claimed iby the State.

The General Assembly of 1921 (Acts 1921, p. 685) enacted a statute imposing a so-called gasoline tax of one cent per gallon, and the validity of the statute was upheld by a decision of this court. Standard Oil Co. v. Brodie, 153 Ark. 114. That statute remained in force until April 1, 1923, when it was superseded by another statute, enacted by the General Assembly of 1923 (Acts 1923, p. 408), imposing a so-called gasoline tax of three cents per gallon; and this last-mentioned statute was in turn superseded by the statute now in force, enacted by the General Assembly of 1923 at the extraordinary session in October, 1923, imposing a so-called gasoline tax of four cents per gallon. Part of the delinquent tax sought to be recovered is claimed under the piuvisions of the statute enacted at the regular session of 1923 (act No. 501), and the other part is sought to be recovered under the statute (act No. 5) enacted at the extraordinary session. These two statutes are substantially similar so far as they relate to the method of collecting the tax. There is a bare suggestion in the brief of appellant as to the constitutionality of the first of these two statutes, but that question is not really argued or raised, and it is unnecessary to take up that question.

The contention of appellant is that there is no liability for any of the tax sought to be recovered for the reason that the facts of the case do not fall within the language of either of the statutes imposing the tax. Each of these statutes clearly expresses the intention of the lawmakers to collect the tax at the source, and there is a definition in each statute as to what the sources are to be —the manufacturer and the wholesale dealer. Act No. 501, §§ 3 and 4, contain the following definitions of the terms referred to as the source of collection of the tax:

“Section. 3. The term ‘manufacturer’ used in this act shall ¡be construed to include any person, firm, partnership, corporation, or association of persons who produce, refine, manufacture, blend, or compound gasoline within this State for sale to the jobber, wholesaler, consumer, or any person, firm, partnership, corporation or association of persons who in turn sell to the.jobber, wholesaler or consumer within this State.
“Section. 4. The terms ‘wholesale dealer’ as used in this act shall be construed to include any person, firm, partnership, corporation or association of persons who sell, offer for sale, or have for use in this State for the purpose of selling to retail dealers or consumers gasoline imported from other States.”

Other sections require both the manufacturer and wholesale dealer to make monthly reports of the sales of gasoline, but there is a clause in the section relating to wholesale dealers which reads as follows:

“■Section 7. * * * And the tax shall in no event be required to be paid by the wholesale dealer upon such gasoline as he may have purchased #r acquired from the manufacturer in this State, who is also required to pay the tax on such gasoline.”

Section 13 of the statute provides a penalty on manufacturers or wholesale dealers who fail or refuse to make monthly reports and pay the tax provided for, and that section concludes with a paragraph upon which the State in its argument lays stress, and which reads as follows:

“The intent and purpose of this act is to provide for the collection at the source, within this State, of a tax of three cents per gallon upon all g’asoline sold in this State, and any person, firm, corporation, syndicate or association who sells, or offers for sale, any gasoline on which the privilege tax herein required has not been paid, or who attempts to evade the provisions of this act through any scheme, artifice or subterfuge, shall be guilty of a misdemeanor, and shall be punished as provided in this section. ’ ’

Act No. 5, § 52, defines the terms “manufacturer” and “-wholesaler” in precisely the same language ás in the first mentioned statute, and there is a requirement, the same as in the former statute, imposing the duty upon manufacturers and wholesalers to make reports. Section 56 of that statute, which contains the requirement for reports to be made by the wholesaler, contains the following provision: “And the tax shall in no event be required to be paid iby the wholesale dealer upon such gasoline or motor oils as he may have purchased or acquired from the manufacturer in this State who is required to pay the tax on such gasoline or motor oil.” Another section deemed pertinent to the present inquiry reads as follows:

“■Section 63. The intent and purpose of the provisions of this act relating to gasoline and motor oil tax is to provide for the collection at the source, within this State, of the tax upon gasoline and motor oil used in operating or propelling motor vehicles upon the public roads and highways in this State, and any person, firm, corporation, syndicate or association who wilfully sells or offers for sale any gasoline or motor oil on which the privilege tax herein required has not been paid, or who attempts to evade the provisions of this act, through any scheme, artifice or subterfuge, shall be guilty of a misdemeanor, and shall be punished as provided in this section. Provided, however, it is hereby declared to be the intention of this act that said privilege tax shall be paid apon said gasoline and motor oil only one time within this State, and it shall be the duty of all retail dealers or other persons, firms, or corporations selling or distributing gasoline and motor oil to ascertain in the manner provided by the rules of the State Auditor that the privilege tax herein authorized has been collected or paid before delivering it for sale or distribution, and any retail dealer or other person, firm or corporation who wilfully sells or offers for sale any gasoline or motor oil within this State, upon which said privilege tax has not been paid or collected, without first paying the tax, shall be guilty of a misdemeanor, and, upon conviction thereof, shall ibe fined in any sum not exceeding one hundred dollars ($100) for each separate, sale so made, and, in addition thereto, may be imprisoned not exceeding thirty (30) days for each offense.
“Every resident of this State who shall purchase gasoline in an adjoining State for use in this State in an automobile or motor vehicle shall be liable for the payment of four cents a gallon gasoline tax herein provided for on such gasoline, and shall pay the said tax to the county treasurer of the county into which he brings or has delivered the said gasoline, whether in the tank of an automobile or motor vehicle or other container, immediately on bringing the said gasoline into this State, or having it delivered herein, and such county treasurer shall remit such collection to the State Treasurer, and make a report thereof to the State Auditor each month. A violation of this section shall be punished by a fine not exceeding one hundred dollars.”

. The facts are that appellant had in its tanks on April 1, 1923, 75,949 gallons of gasoline, which was sold by appellant during the succeeding months, and on which no tax has been paid under authority of the statutes under consideration, and that on January 1, 1924, when act No. 5 went into effect, appellant had on hand, stored in its tanks, 140,033 gallons of gasoline, which was sold by appellant during the subsequent months, and on which the manufacturer from whom appellant had purchased had previously paid' the tax of three cents per gallon under act No. 501, but on which no tax had been paid under act No. 5. All of the gasoline in controversy was •purchased by appellant from manufacturers and distillers in the State, none of it having been imported into the State. The 'State claims, and has recovered under the judgment of the court below, three cents a g’allon on all of the 75,949 gallons held in storage by appellant on April 1,1923, and one cent a gallon on the 140,033 gallons held in storage by appellant on January 1, 1924.

It will be noted that tbe tax imposed under both of these statutes was to be collected at the specified sources, and those sources are defined in carefully selected language, about which there should be no misunderstanding. The question presented now is whether or not appellant and its particular transactions now under review fall within either of these definitions of manufacturer or wholesale dealer. A manufacturer is defined in each of the statutes to be “any person, firm, partnership, corporation, or association of persons who produce, refine, manufacture,, blend, or compound gasoline within this State for sale to the jobber, wholesaler, consumer, or any person, firm, partnership, corporation or association of persons who in turn sell to the jobber, wholesaler, or consumer within this State.” It is plain, we think, that appellant does not fall within this definition; it neither produces, refines, manufactures, blends or compounds gasoline within the State for sale or any other purpose. It is contended by the Attorney General that appellant is a producer within the meaning of the statute, and in support of this argument he cites the dictionary meaning of the word “produce,” “to bring’ to view; exhibit; or declare. ” ¡We cannot agree with this contention that the word “produce” in the statute has any such meaning. As applied in the statute to mineral products, the word has other meanings, such as, to make, to originate, or to yield. The term “wholesale dealers” is declared to 'be those who sell or offer for sale, or who have for use in the State, gasoline imported from other States, and it is clear that appellant does not fall within this definition, so far as the gasoline in controversy is concerned, for the reason that, according to the undisputed facts, the gasoline was not imported into this State, but it was produced here in this State, and purchased by appellant from the manufacturers. In other words, appellant is neither a manufacturer nor a dealer within the meaning 'of the statute. The Attorney General contends that the definition is enlarged by the other provisions of the statute quoted above, one in § 7 of act No. 501, declaring that “the tax shall in no event he required to be paid by the wholesale dealer upon such gasoline as hejnay have purchased or acquired from the manufacturer in this State who is also required to pay the tax on such gasoline,” and also the other parts of § 13 and of sections quoted albove. We do not think these provisions of the statute serve to enlarge the definition of those who are required to pay the tax at the source of the product. Manufacturers and dealers are both required to make reports, but this requirement is to enable the proper officers to enforce payment, and not for the purpose of enlarging the definition of those who are to pay. Penalties are provided for failing or refusing to pay the tax, and for sales without paying the tax, but this applies to the payment of the tax prescribed in the other sections, and the requirement does not enlarge the class who are to pay, or the conditions under which payments are to be made. Neither does the declaration in § 13 of act 501 of the intention of the lawmakers serve to enlarge the classes required to pay or the circumstances under which they are to pay, for that provision refers to the “sources” as defined in the preceding sections quoted above. The fact that the gasoline involved in this controversy escaped taxation under this interpretation of the statute, affords no grounds" for the court extending the language so as to embrace it. There is a clear omission to provide for the tax to be paid under circumstances described in the present case. Whether this occurred by mistake or intentional omission, we do not know. The framers of the statute may have overlooked it altogether, or they may have concluded that the omission would apply only to a negligible quantity of gasoline in comparison with the volume upon which the tax was to be paid in the future, and that it was not worth while to provide a method of collecting the tax on gasoline held in storage at the time the statute went into effect. At any rate, it is evident from the language used that the framers of the statute intended to provide for the collec- • tion on gasoline in the hands of the manufacturers and dealers after the statute went into effect, and as appellant was neither a manufacturer nor a dealer, so far' as concerns this gasoline, it is not liable for the tax. We are not at liberty to read into the statute words which are not found there for the purpose of correcting mistakes of the lawmakers. Courts often supply such words as are necessary to complete the sense and to express the obvious legislative intent, where it appears from the context that words liave been inadvertently omitted, but otherwise omissions of the Legislature, either by designor mistake, are beyond the power of the court to correct. Road Imp. Dist. No. 1 v. Glover, 89 Ark. 513; Hodges v. Dawdy, 104 Ark. 583; United States v. Merriam, 263 U. S. 179.

The judgment of the circuit court was erroneous in holding appellant liable for the tax. The facts are undisputed, and there is no necessity for a' remand of the cause for another trial. The judgment is therefore reversed, and judgment will be entered here dismissing the complaint.

■Smith and Humphreys, JJ., dissent.


text:
    Missouri Pacific Railroad Company v. Bain.
    Opinion delivered March 1, 1926.
    1. Railroads'—killing of dog—presumption.—Proof that a dog was killed by .a railroad train raises a presumption of negligence, and imposes on the railroad company the burden of proving that there was no negligence.
    2. Railroads—killing of dog—jury question.—Though defendant’s trainmen testified that they were keeping a lookout, yet where their testimony in other particulars was contradicted by other witnesses, it was a question for the jury to determine whether or not there was negligence in failing to keep a lookout to discover the presence of plaintiff’s dog on defendant’s track.
    Appeal from Jackson Circuit Court; Dene H. Coleman. Judve:
    affirmed.

      Thos. B. Pryor and II. L. Ponder, for appellant.
   McCulloch, C. J.

Appellee owned a dog, which was run over and killed by one of appellant’s trains in Jackson County, and appellee instituted this action before a justice of the peace in that county to recover damages in the sum of fifty dollars for the loss of the dog. There was -a judgment before the justice of the peace in favor of appellee, and on a trial anew in the circuit court on appeal the result was the same, and an appeal has been duly prosecuted to this court.

The principal contention is that the evidence is not sufficient to sustain the verdict. It is undisputed that the dog was run over' and killed by one of appellant’s passenger trains, and the issues of fact in the case relate to the value of the animal killed and the question of negligence on the part of the servants of appellant.

The dog was killed near the public road crossing at Campbell’s Spur, in Jackson County, about six-thirty or seven o’clock on the morning of a day in June, 1924. Appellee was engaged in hauling. He was running three wagons, two of them being driven by his boys in hauling lumber, and he himself was hauling cotton in another wagon. The dog owned by appellee was following the wagons.

Appellee testified that the lumber wagons driven by the boys were in front, and that after the last one had crossed the track he saw the dog come upon the railroad track and turn south, down the track, and that, after he had moved down the track, between the rails, beyond the cattle-guard and inside of a field, he was struck by the train and killed. Appellee testified that there was no signal given either by bell or whistle. The precise distance that the dog traveled down the track is hot stated, but appellee made the statement on the witness stand that the dog was about as far from the crossing when struck as the distance from the witness stand in the court room to the back wall of the building. No. witness testified as to that, distance, but the testimony was given in the presence of the jury, who could observe the distance pointed out by the witness, and we must assume that the jurors correctly estimated the distance described in their presence. Two other men who were present when the dog was killed testified the same as appellee, that they saw the dog go on the track at the crossing and turn down between the rails, and that it was between the rails when struck by the train. One of the witnesses testified that there was no signal either by bell or whistle, and the other witness testified that he did not hear any signal. The trainmen testified that the signals were given for the crossing, and that the dog was running along by the side of the track and suddenly came onto the track a short distance before the moving engine—too short a distance to enable them to take any steps to stop the train. We think that it was a question for the jury to determine whether or not there was negligence in failing to keep a lookout to discover the presence of the dog on the track or in failing to exercise care to frighten the dog by signals after its presence was discovered. There was a conflict in the testimony, but it was legally sufficient to sustain the verdict. It being shown that the dog was killed by the train, a presumption of negligence arose, and the burden was on appellant to' show that there was no negligence. Nelson v. Missouri Pac. Rd. Co., 160 Ark. 568. .

It is contended that the evidence of the trainmen as to the keeping of a lookout was undisputed. It is true that there was no witness who testified that a lookout was not kept, but there is a conflict in the testimony as to whether or not signals were given and as to the position of the dog just before it was struck by the moving train. If the jury found that the trainmen were not telling the truth about those matters, they were .justified in treating the witnesses as discredited and in rejecting their testimony, which, under the circumstances, would not be arbitrary.

'The instructions of the court were in accordance with the law.as settled by repeated decisions of this court, and there was no error in that respect-

judgment affirmed.


text:
    Blalock v. Bank of McCrory.
    Opinion delivered March 1, 1926.
    1. Banks and banking—liability for deposit.—Where, under the terms of Special Acts 1923, p. 314, money was deposited in a certain hank to the credit of the county treasurer to pay the expenses of a special election to ¡be held on the question of removal of the county seat, the relation of - debtor >and creditor was created between the bank and the county treasurer.
    2. Elections—refusal of election commissioners to act.—Where the commissioners appointed by Special Acts 1923, p. 314, refused to hold the special election on the day designated toy order of the county court, as provided by said act, the county judge and sheriff were authorized toy Crawford & Moses’ Dig., § 3714, to act in o their place and to order the election.
    3. Elections—refusal of commissioners to act.—Where the commissioners appointed by Special Acts 1923, p. 314, refused to hold the special election therein provided for on the day designated by the county court because of their mistaken opinion that the proceedings were stayed by an appeal taken from the order of the county court, their conduct amounted to a refusal to act, within Crawford & Moses’ Dig., § 3714, authorizing certain county officers to act in the place of such commissioners.
    Appeal from Woodruff Circuit Court, Southern District ; E. D. Robertson, Judge;
    reversed.

      J. F. 'Summers, for appellant.

      Roy D. Campbell, for appellee.
   McCulloch, C. J.

Appellant is the county treasurer of Woodruff County, and, as such, instituted this action against appellee, a banking institution in the town of McCrory, to recover a certain amount of funds deposited in the bank to the credit of the county treasurer, and alleged to have been wrongfully withheld by the appellee when checks were lawfully drawn thereon by the treasurer.

The General Assembly of 1923 enacted a special statute, applicable only to Woodruff County (Special Acts 1923, p. 314), providing for an election to be held in that county on the question of removal of the county seat from Augusta to McCrory. The act provides, in substance, that whenever one hundred or more qualified electors of the county should file a petition in the county court asking for the removal of the county seat from Augusta to McCrory, the court should, on the first day of the next term after the filing of the petition, order an election to be held at all the voting places in the county, on the date fixed by the court, and that the election commissioners of the county should give notice of the election by publication in a newspaper and by posting handbills. The statute prescribes the form of the ballot, and contains a provision that all the general election laws, so far as applicable, shall govern the election therein provided for. There is also a provision that “any officer, commissioner, agent, or other person required to perform any duties or to do any act under the provisions of this 'act, and failing or refusing to do or perform the same, shall be compelled by mandamus to do °or perform the duties and things required.” There is still another provision to the effect that the expenses of holding the election should be paid by the citizens of the town of McCrory, and that, immediately after the passage of the statute, the 'citizens of that town should deposit the sum of $400 in the Bank of McCrory, “subject to the check of the county treasurer, for the purpose of paying expenses of said election. ’ ’

A petition of more than one hundred qualified electors of "Woodruff County was duly presented to the county court, praying for the holding of an election in the county on the question of the removal of the county seat, and the court made an order fixing May 12, 1923, as the date for the election. The citizens of McCrory had previously made the deposit of the $400 with the Bank of McCrory to the credit of the county treasurer. When the petition for the election was heard by the county oourt, certain citizens of the county appeared before the court and filed a remonstrance, and, after the order was made by the court, they appealed from it to the circuit court. A certified copy of the order of the county oourt was served on the election commissioners, and at a meeting of the commissioners a resolution was passed by a vote of two of the commissioners reciting the fact that an appeal had been prosecuted from the order of the court fixing the date of the election, and postponing the calling of the election until after the proceedings had been disposed of in the circuit court on appeal. The two commissioners then proceeded to give notice by publication that no election would be held on the date fixed by the county court. The other commissioner disregarded this action of the majority, and, acting with the county judge and sheriff of the county, proceeded to give notice in accordance with the statute and make preparations for the holding of the election, and the election was held on the day fixed by the county court. In many of the townships no election was held, but there was in fact, an election held in some of the townships, and the majority of the votes cast was against the removal of the county seat. Expenses were incurred by the commissioners, and checks were issued by the treasurer on the Bank of McCrory to pay those expenses, but payment was refused. These facts are all shown by the evidence in the trial below. The trial was before the court sitting as a .jury, and the court found that the election was not legally held, and that the treasurer had no authority to draw checks on the deposited funds to pay the expenses of the election.

The material facts are undisputed, and it is only necessary to determine whether or not the court was correct in its application of the law. We pass over the. question as to the validity of the provision of the statute in regard to the deposit of funds by the citizens of the town of McCrory, as there is no issue raised on that feature of the- case. The -funds had been deposited there, and thereby came into the hands of the treasurer, and, like any other deposit, 'Created the relation of debtor and creditor between appellant as treasurer and the bank as depositary. Carroll County Bank v. Rhodes, 69 Ark. 43. The citizens of the town had no further concern with, or interest in, the funds, and there is no one else to challenge the validity of the statute.

Counsel for appellee defend the judgment of the trial court on the ground that the commissioners alone were authorized to give notice o.f the election, and contend that, as this was not done, the court was correct in holding that the election was void. Counsel rely upon the provision of the special statute which authorizes mandamus to compel the commissioners to perform their duties under the statute. It is argued that this is exclusive of all other remedies, and that the provision in the general election law, with reference to the county officers performing the duties of commissioners (Crawford & Moses’ Digest, § 3714), has no application. The section just referred to provides that if any vacancy occurs in the county board of commissioners, or “if a majority of the county commissioners shall resign, refuse to act, die or their places become vacant from any cause, so that there shall not be a quorum in office at the time that said board is required to do and perform any of the acts or things by this act required of them, then, and in that event, the county judge, sheriff and county clerk shall, in the order herein named, fill said vacancies for the time, and shall perform the duties of election commissioners.” We are of the opinion that the section of the general statute quoted above applied to the special election. The provision for mandamus was intended only as a remedy to compel performance of duty, but it was not the exclusive remedy, and, in case of refusal of the commissioners to act, the county officers named in the statute could act, or interested parties could compel the commissioners themselves to act. The two schemes provided in the general and in the special statute are available, so that the purpose of the law may not be thwarted by refusal of the officers to perform their duties.

It is also urged that the county officers were not authorized to substitute themselves for the commissioners, for the reason that the latter did not in fact refuse to act. We are of the opinion, however, that the attempt to postpone the election fixed by the county court was a refusal to act, for the commissioners had no authority to fix the day of election; their duties under the statutes of the State were purely ministerial, and, when they refused to perform their duties with reference to the particular election which had been called by authority under the statute, it became the duty of the county officers to perform those duties. Nor did the fact that there had been an appeal from the order of the county court afford justification for the refusal of the county commissioners to give notice of the election. The appeal did not suspend the court’s order, and there is no evidence that the order of the court had been suspended by an order or judgment of the circuit court. The order of the county court was in full force, notwithstandixlg the appeal, and it was the duty of the commissioners to obey the law with respect to holding the election. According to the undisputed evidence, in the case, the notice of the election was properly given by the county judge and sheriff, acting in conjunction with the commissioner who had not refused, and the trial court therefore erred in holding that the election was not legal. The fact that irregularities occurred in the election itself, if there were any such, does not prevent the use of the funds in paying the expenses. At any rate, the depositary, holding the funds as the creditor of the county treasurer, had no legal right to withhold the same under the claim that the expenses had not been legally incurred.

The judgment of the circuit court is therefore reversed, and the facts being fully developed and undisputed, .judgment will be entered here in favor of appellant.


author: Wood, J.

text:
    Davis v. State.
    Opinion delivered March 1, 1926.
    1. Indictment and information'—ground for quashing indictment.—It is no ground for quashing an indictment for murder that the grand jury in their report expressed the opinion that the accused was guilty and that a conviction on the charge should follow.
    2. Indictment and information—ground for demurrer.—An indictment for murder is not demurrable because the grand jury in their report expressed the opinion that the accused was guilty and that a conviction on the charge should follow.
    3. Venue—petition for change—supporting affidavits.—A mo-. tion for change of venue in a criminal case was properly Overruled, though in pfoper form, where it contained the supporting affidavit of'only one person.
    4. Criminal law—proof of another crime.—On a prosecution for murder, it was error to permit the State, .as original evidence, to prove that the accused had been convicted and ’ sentenced to the penitentiary for the crime of robbery, since .the proof of the latter crime does not tend to show a system to commit other crimes, nor a motive or intent to commit murder.
    Appeal from Ashley Circuit Court; Turner Butler, Judge;
    reversed.

      G. P. George and Frank Strangways, for appellant.

      3. W. Applegate, Attorney General, and Darclen Moose, Assistant, for appellee.
   Wood, J.

The appellant was convicted on an indictment which charged him with the crime of murder in the first degree in the killing- of one Horace Harper. The report of the grand jury which returned the indictment against the appellant recited that it had examined into two cases very thoroughly, and had returned indictments against both, charging them with murder in the first degree; that, from all the evidence before them, they confidently felt that conviction ought to follow and the death penalty imposed. Upon the filing of this report the court ordered that the words “and the déath penalty imposed” be stricken from the report. The cause was set for hearing one week after the return of the indictment. The appellant moved to quash the indictment on the ground that the report was -written by the prosecuting attorney, who requested the grand jury to allow him to make a special report containing the above language. The appellant likewise demurred to the indictment, one of the grounds being the same as that set up in his motion to quash. The court asked the appellant if he desired to take testimony on the motion to quash, and he replied in the affirmative, and asked for certain witnesses, who were not then in the courtroom. The court declined to send for these witnesses, and asked the attorney for the appellant if there were other evidence which he desired to introduce, and the attorney answered in the negative.

The testimony on behalf of the State, was substantially as follows: Julia Tobins testified that' she lived at Crossett, and was at the towns of Montrose, Portland and Wilmot the night Horace Harper was killed. She saiv the appellant that night. He came up to Harper’s car, and asked Harper to take him to Wilmot, and .what the charge would be. Harper replied that it would be $2. Witness, appellant and Harper were in the front seat, and a lady and her husband were in the back seat as far as Portland. At Portland the other passengers got out, and the appellant got in the back seat. Harper told the appellant that hé didn’t know him, and asked him if he had just as soon pay him there as to wait, and appellant paid him. Harper then took him on to Wilmot. Appellant gave Harper a five-dollar bill. Harper went to the drug store and got the change and gave the appeh lant $3. Witness, appellant and Harper went nearly to Wilmot on the highway, when the appellant asked Harper to stop and let him out of the car. Appellant opened the car door and got out, and witness saw him with a pistol in his hand pointed at Harper. He didn’t let Harper say anything; just told him to put his hands up and to give him (appellant) his $2. Appellant told witness to get out of the car, and witness did so. Appellant searched Harper. When appellant got ready to search him, Harper moved over to where witness had been sitting. Appellant got the $2. He told Harper to turn his back, and appellant stepped back about a step from the car and shot Harper. Appellant shot Harper three times, and Harper jumped out of the car and ran back towards Parkdale. Appellant ran toward Wilmot. Witness followed Harper to where he fell, and called him, and he could not answer. Witness turned back toward the car, and appellant was coming from the other way loading his pistol. He asked witness where Harper was, and she told him he was gone. Appellant told witness to get through a crack in the fence. Witness started to obey, and he asked her if she could drive a car. She said she oould, and appellant said, “Drive me home,” and witness drove the appellant to Wilmot somewhere, at a lady’s house, where he got out and went in. Witness asked a man on the porch for a drink of water, and when the man came out witness told him that the appellant had killed Harper. A boy named Frog started the car, and he and the witness drove the car to his cousin’s house, a man named Hugo, where they stayed until about nine o’clock, and Hugo took witness to the sheriff’s house. Witness told the sheriff about the killing. Appellant told witness that he had rather not have killed the man where he did. Witness was asked: “Q. Did he mistreat you in any way that night?” And answered, “Yes sir. Q. In what way? A. He had me to get out of the car.” .Appellant’s counsel here objected, and the court sustained the objection to the questions and answers, and the court withdrew the same from the jury and instructed the jury to disregard them. This occurred in September, 1925, in Ashley County, Arkansas. It was not very dark at the time of the killing. Witness could see a man, as the car lights were on. She didn’t know how far appellant went from the car before he came back: The first man witness told about the killing was a colored man, and she didn’t know his name.

Witness Miller testified that, about the middle of September, a man came to his house and woke witness up and told him that a man was killed. Witness went to see about it. He found tbe body of Harper about a half a mile north of Wilmot, in the ditch beside the highway. It was between eight and nine o’clock. Harper was shot in the right breast, ranging toward the left side. There was a spot of blood on the carrier of the car where Harper jumped out on the left side. There was a knife in the road ten or fifteen steps from the car, and witness picked it up. Witness could tell from the tracks the way Harper ran. He ran between seventy-five and one hundred yards. His pockets were turned wrong side out, that is, his right-hand pocket, and his left-hand pocket was partly turned. The knife was closed.

Huey Parker testified that he lived at Wilmot, and saw the appellant on the night Horace Harper was killed, and told the appellant that he had killed the boy, and appellant asked witness if he was dead. Witness told appellant Harper was dead, and appellant said that Harper asked for his money, and went in his pocket like he was going after his gun, and appellant shot him and jumped out and ran down the road. Witness, at this point, was asked the following by the ■ prosecuting attorney: “Q. Now, that’s not what you told me a few minutes ago, is it? A. No sir.” Appellant’s counsel •objected. The court overruled his objection, and appellant duly excepted. The prosecuting attorney continued the examination as follows: “Q. Didn’t you tell me that you asked him what he shot him for, and he shot, him for his $2? A. Yes sir. Q. That-’s what he shot him for? A. Yes sir. Q. When I asked you, you didn’t say anything like going in his pocket for a pistol? A. Yes sir; like he was going in his pocket to give it to him. Q. The reason he shot him was for his two dollars ? A. Yes sir. ’ ’

On cross-examination the witness stated that the conversation occurred the night of the killing’. Appellant said he wanted the man to give him his money. The man started like he was going after his money, and the appellant said he thought the man was going after a gun, and appellant shot him. . '

Cecil Deal testified that lie was the jailer and deputy sheriff of Ashley County. As such he delivered the appellant to the penitentiary in 1921 on a charge of rob-, bery, on a sentence of four years. The appellant’s counsel objected to the testimony. The court overruled the objection, to which ruling the appellant duly excepted.

The 'State then called John C. Riley, who testified, over the objection and exception of the appellant, that he was sheriff of Ashley County, and heard a conversation about thirty minutes before, between the prosecuting attorney and Huey Parker. The prosecuting attorney asked Parker if he ásked appellant why he killed Harper, and Parker said that he did, and that appellant replied that he paid the nigger $2 for bringing him from Mont-rose to Wilmot, and before he got to Wilmot he asked the negro to give him his. $2 back, and when the negro started in his pocket to get the $2 he (appellant) shot him.

Dan Parker testified, on behalf of the defense, that on the night of September 16, after appellant shot Harper, a man and a woman came to witness’ house. The man was the,appellant, and witness didn’t know who the woman was. Appellant and a boy by the name of Riley came in, and the boy said that the appellant had killed a man;

The appellant testified in substance that Harper asked him if he could carry him (appellant) to Wilmot. Appellant got in Harper’s car in the front seat. Two people got. out at Portland, and appellant then got in the back seat. Harper asked the appellant to pay him at Portland. Appellant gave Harper a five-dollar bill. Harper said he would give appellant the change. When they got on the other side of Parkdale appellant told Harper that he wanted to get out there; that he was not allowed to go to Wilmot. Harper stopped the car, and appellant told the girl to get out. She did so, and started walking toward" Montrose. Appellant asked Harper to give him his change, and Harper replied, “I will give you your change when we get to Wilmot.” Appellant again said that he -was not allowed to go to Wilmot. Then Harper said, “D- d-you, I will give you your change,” and reached in his pocket. Appellant jumped back and shot at Harper. Appellant didn’t know whether he hit him or not. Harper made a break to shoot, and appellant shot as fast as he could. Harper ran,'and appellant ran too. Appellant didn’t tell him to hold up his hands, and didn’t go through Harper’s pockets. The appellant never got his $3. It was a dark night, and the lights were out. After appellant shot Harper, appellant came back to the car and got his shirt, and he and the girl went to Maude Hunter’s. It was three or four hours before the appellant found out Hj'arper was dead.

On cross-examination the appellant was asked the following: Q. How long had you been out of the penitentiary when you saw Harper down there? A. I don’t know exactly, I left there on the last Saturday in August. Q. ’That’s the reason you didn’t want to go to Wilmot, because you had escaped from the penitentiary, and were afraid you would get caught? A. Yes sir.’’

The jury returned a verdict finding the appellant guilty of murder in the first degree, as charged in the indictment. From the judgment sentencing the appellant to electrocution is this appeal.

1. The fact that the grand jury in their report expressed the opinion that the appellant was guilty of the crime charged in the indictment, and that a conviction on the charge should follow, was not a ground for quashing the indictment. The indictment itself was a mere accusation against the appellant, and an expression of the conviction of the grand jury that the appellant was guilty of the crime with which the grand jury charged him. But that fact did not tend to impeach the qualifications of the members of the grand jury which returned the indictment. The record shows that the appellant was given an opportunity, before the indictment was returned against him, to challenge the members of the grand jury, and he offered no objection to the qualifications of any of the jurors.

The court did not err in refusing to send for witnesses to be examined on the motion to quash, because the grounds alleged therein, if proved, did not constitute any reason for the quashing of the indictment. No objection was made by the appellant to the qualifications of the grand jurors when he was given an opportunity to challenge the panel before the indictment was lodged against him. Tillman v. State, 121 Ark. 322; see also Ware v. State, 146 Ark. 321.

2. The court did not err in overruling- the demurrer to the indictment. The grounds alleged in the demurrer, if true, did not show that the indictment was defective. The indictment contained all the necessary allegations to constitute a valid indictment for murder in the first degree.

3. The court did not err in overruling the appellant’s motion for change of venue. "While the motion itself was in proper form, it contained only the supporting affidavit of one person. The statute requires that the motion shall be supported by the affidavits of two credible persons. Section 3088, C. & M. Digest, and cases there collated.

4. The court erred- in permitting the prosecuting attorney to prove by the jailer and deputy sheriff of Ashley County that he delivered the appellant to the State Penitentiary; that the appellant was sent up for robbery, on a four-year sentence. This testimony was objected to by the appellant, and it was wholly incompetent and highly prejudicial. The error' was not cured by the appellant’s answer to questions of the prosecuting attorney on his cross-examination as a witness, to .the effect that he had been in the penitentiary, and that the reason he didn’t want to go to Wilmot was that he had escaped from the penitentiary, and was afraid he would get caught. These answers do not disclose that the appellant had been sentenced to the penitentiary for robbery. For aught that appears to the contrary in the answers of the appellant on cross-examination, he may have been confined in the penitentiary for some other cause, or some other offense than that of robbery, or merely for safe-keeping. Furthermore, the witness, in answer to questions propounded to him, cannot be put in the attitude of making a voluntary confession that he was guilty of the heinous offense of robbery, because he answered truthfully the questions that were asked him by the prosecuting attorney on cross-examination. The prosecuting attorney, to be sure, in order to test the credibility of the witness, would have the right to ask him on cross-examination if he had not been convicted and sentenced to the penitentiary for the crime of robbery. But it is altogether a different question when the prosecuting attorney was permitted, over the objection of the appellant, to introduce, as original evidence, on the charge of murder in the first degree, that the appellant had been convicted and sentenced to the penitentiary for the crime of robbery. It is a thoroughly settled doctrine of criminal law that a party accused and on trial for one crime cannot be convicted by proving that he has committed another and a different crime, when the other and different crime does not tend to show a system to commit other crimes also, and motive or intent to commit the crime for which the prisoner is on trial. Stone v. State, 162 Ark. 154; Davis and Thomas v. State, 117 Ark. 296; Setzer v. State, 116 Ark. 226.

Other assignments of error are argued in appellant’s brief, but we deem it unnecessary to discuss these assignments. Borne of these alleged errors will not likely arise on another trial. We find no reversible error in the record, except the one indicated, but for this the judgment is reversed, and the cause is remanded for a new trial.


text:
    Bailey v. Frank.
    Opinion delivered March 1, 1926.
    1. Mortgages—absolute deed—sufficiency of evidence.—Where a deed is absolute in form, the burden of proof is upon one who alleges that it was intended as a mortgage, as the law presumes that an instrument is what it appears on its face to be, and, in the absence of fraud or imposition, the proof to overcome this presumption and establish its character as a mortgage must be clear, unequivocal and convincing.
    2. Vendor and purchaser—option—loss of right.—The right to purchase under an option is lost by failure to exercise such right within the time designated therein.
    Appeal from Arkansas 'Chancery Court, Southern District; JolmM. Elliott, Chancellor;
    affirmed.

      T. J. Moher and R. D. Rasco, for appellant.

      John W. Moncrief, for appellee.
   Wood, J.

On the 23d of February, 1918, A. J. Bailey and wife executed to H. G. Frank their promissory note, due one year after date, in the sum of $10,000, and a mortgage to secure the same on 480 acres of land in Arkansas County. On the 10th of September, 1918, Bailey and wife executed to Frank a promissory note in the sum of $1,000, due February 3,1919, and also a mortgage on the same land to secure the latter note. These notes were not paid at maturity, and on the 4th of August, 1921, Frank instituted an action on the notes and for foreclosure of the mortgages ag’ainst Bailey and wife. This suit resulted in the foreclosure and a sale of the lands under the decree of the court on April 13, 1922, at which sale Frank (became the purchaser, and a deed was executed to him by the commissioner and duly approved and confirmed by the court. On May 11, 1921, before the above action to foreclose was instituted, A. J. Bailey and wife conveyed the lands by warranty deed to their son, J. P. Bailey. After the decree of foreclosure, and the sale and deed thereunder had been approved and «confirmed, he instituted an action against Frank, and Bailey and wife, and Fulton, in which he alleged the albove facts, and that he had not been made a party to the foreclosure suit, and prayed that he be allowed to redeem from the sale. Later J. P. Bailey amended his complaint, setting up that he and A. J. Bailey and Mary Bailey, on March 18, 1922, conveyed the lands described in the mortgages by warranty deed to Frank; that these deeds were intended as mortgages to secure the indebtedness of A. J. and Mary Bailey to Frank, which J. P. Bailey had agreed to assume. He set out in his pleadings that Fulton claimed an interest in the property. He prayed that on final hearing the deeds be declared mortgages, and that he have a right to redeem from the sale by payment of the debt, interest and costs.

The defendants answered, and the substance of their defense to the action was that the plaintiff J. P. Bailey, while not originally made a party defendant, had entered his appearance when the report of sale 'by the commissioner was presented to the chancellor for confirmation, and when the deed was presented for approval, and, by express agreement of the parties, consented that the report of the commissioner be confirmed and his deed approved upon the terms specified and embodied in the decree confirming the commissioner’s report and approving his deed. They denied that the deeds mentioned in the complaint were mortgages, but set up that they were executed for the purpose of conveying title to Frank in, satisfaction of indebtedness due Frank under the mortgages, and all other indebtedness of the Baileys to Frank. They alleged that, after the execution of these warranty deeds, Frank executed an option giving the Baileys the right to purchase the lands for the consideration of the indebtedness due by the Baileys to him, to be exercised on or before the first day of February, 1923, but that the Baileys had failed to exercise their option. They prayed that the complaints of J. P. Bailey be dismissed.

At a later day Frank filed a complaint to foreclose a chattel mortgage executed by the Baileys to secure Frank for money advanced to enable them to raise and harvest a crop of rice during the year 1922. The Baileys answered, admitting the execution of the mortgage, but defended on the ground that the debt secured by the mortgage had been paid. 'Still later Frank instituted an action in the circuit court in unlawful detainer against the Baileys, seeking to obtain possession of the lands in controversy. This action in unlawful detainer was transferred, over the objection of appellant, to the chancery court. All the causes were consolidated for trial in the chancery -court, and were heard upon the pleadings, the depositions and exhibits. The trial court entered a decree in favor of the defendants, from which is this appeal.

1. The execution of notes and mortgages by A. J. Bailey and wife, evidencing an indebtedness to H. Gr. Frank, which on the 26th day of September, 1921, amounted in principal and interest to the sum of $13,-349.52, and which that day was past due and unpaid, is an uncontroverted fact. On that day the chancery court of Arkansas County entered a decree against A. J. and Mary Bailey in the sum of $13,349.52, and directed that the lands described in the mortgages, consisting of 480 acres, be sold to satisfy the indebtedness, and appointed a commissioner to make the sale. Later, as shown by an order of the chancellor made in vacation, the commissioner reported the sale, and presented for approval his deed made thereunder to H. Gr. Frank, the purchaser at the sale, which the chancellor found “to be in all respects made and conducted according to law,” and entered an order in vacation confirming his report and approving the deed. The same order shows that Justus P. Bailey appeared in the matter in vacation, and set forth that certain deeds had been executed to Frank to the lands, and that he and others had leased the lands for the year 1922, and asked that they be permitted to occupy the premises during the year 1922, and that no writ of assistance or possession be issued for Frank prior to December 31, 1922, on which day such writ of possession might issue. The chancellor made the order as requested by Bailey, and concluded the order as follows:

“All the above named parties and persons have appeared herein at this time, and agreed to the hearing of said matter at this time and in vacation, and have consented to the decree above set out, and that this court has jurisdiction of this cause, of the aforesaid property, of all the above-named parties, and jurisdiction to render the foregoing decree.” The decree is signed by the chancellor, and also has the O. K.’s of A. J. and Mary B. and Justus P. Bailey.

On the 2d of May, 1921, prior to the institution of the foreclosure proceedings against A. J. and Mary B. Bailey, they had executed a warranty deed to their son, Justus P. Bailey, conveying to him the lands described in the mortgages to Prank, which mortgages were after-wards foreclosed as above mentioned, and J. P. Bailey was not made a party defendant .to the foreclosure proceedings.

The above facts are undisputed. J. P. Bailey brought his suit to redeem from the foreclosure sale, claiming that he was not bound by the order of the chancellor made in vacation confirming the sale under the foreclosure decree and approving the commissioner’s deed, notwithstanding he appeared before the chancellor and requested that such order be made and signified his consent and approval of the order by his own O. K. and signature thereto. The appellant alleged in his amended complaint, and the fact is undisputed, that on the 18th day of March, 1922, A. J., Mary B. and J. P. Bailey executed a warranty deed to Prank, conveying the lands described in the mortgages, and an additional eighty acres. And on the same day J. P. Bailey executed a separate deed to Prank to the eighty acres that had been described in the deed signed by all of them. These deeds were duly recorded. They recited a consideration of “$1 and other considerations.” On the same day that these deeds were executed, Prank executed a lease contract to A. J., Mary B. and J. P. Bailey to the lands described in the above deeds for the year 1922. This lease recited that Frank leased the lands for the year 1922, and that the Baileys were to pay him one-half of all crops grown on the land during that year as rent. The lease further recited that Frank reserved a lien on all crops purchased upon the lands for any money or supplies that he might furnish the Baileys during the year 192-2. This lease contract was signed by Frank and the Baileys. There is in the record what is designated as “an option to purchase” which recites as follows:

“•Original. This agreement made and entered into at DeWitt, Arkansas, on this the-day of-, 1922, by and between H. Gr. Frank, first party, and Mary B. Bailey, second party, witnesseth: First party hereby gives to the second party an option, upon the 'Condition hereinafter named, to purchase the following lands situate in the Southern District of Arkansas County, Arkansas, to-wit:” (Here follows land description). “Said second party may purchase the above described lands from the first party by paying to the first party the sum of $-not later than February 1, 1923. If second party exercises this option to purchase this land, she shall pay to first party the above-named sum of money on or before the 1st day of March, 1923, and upon the payment of said sum first party agrees to execute to second party a deed to said land. But if second party exercises this option to purchase said land she shall pay in addition to the above sum the 1922 taxes on said land, to be paid in 1923, including taxes of all kinds and improvements, assessments and benefits against same. Griven under our hands this--day of-;-, 1922. (Signed) H. Gr. Frank.

Copy. “This ag'reement made and entered into at DeWitt, Arkansas, on this the-day of-, 1922, by and between H. Gr. Frank, first party, and Mary B. Bailey, second party, witnesseth: First party hereby gives to the second party an option, upon the conditions hereinafter named, to purchase the following lands, situate in the Southern District of Arkansas County, Arkansas, to-wit:” (Here follows land description). “Said second party may purchase the above described lands from first party by paying to first party the sum of $- not later than March 1, 1923. If the second party exercises this option to purchase this land she shall pay to first party the above named sum of money on or before the first day of February, 1923, and upon the payment of said sum first party agrees to execute to second party a deed to said land. But if second party exercises this option to purchase said land she shall pay, in addition to the above sum, the 1922 taxes on said land, to be paid in 1923, including taxes of all kinds and improvement assessments and benefits against same. Giver, under our hands this the -day of-■, 1922. ('Signed) Henry G. Frank.”

J. P. Bailey, in his action to redeem, alleges and contends that the above deeds and instruments were executed pursuant to an agreement between him and Frank, whereby J. P. Bailey assumed the mortgage indebtedness of A. J. and Mary B. Bailey to H. G. F'rank, and was given until March 1, 1923, in which to pay the same; and that, before the time agreed upon had expired, he had tendered the amount of the indebtedness due on the mortgages up to March 1, 1923, which Frank' had refused to accept. On the other hand, in defense of the action to redeem, it is alleged and contended by Frank that these deeds are what they purport on their face to be, that is, absolute conveyances of the lands in controversy. And Frank contends they were executed upon consideration of all the indebtedness that might be due from the Baileys to him on or before February 1, 1923.

Thus this record of nearly four hundred pages, in the final analysis, presents the issue of whether or not the deeds above mentioned were intended by the parties as mortgages, and, if not mortgages, whether Frank had given the Baileys an option to purchase the land from him in consideration of the payment of the indebtedness due him by the Baileys by the first of March, 1923. These were purely issues of fact, upon which the testimony adduced by tbe respective parties is exceedingly voluminous. Tbe testimony of tbe Baileys was to tbe effect tbat tbe deeds mentioned were for tbe purpose of giving J. P. Bailey an opportmxity to redeem tbe land from tbe foreclosure proceedings. J. P. Bailey bimself testified concerning tbis as follows: “Well, tbis deed was given at tbe time, at tbe request of Mr. Frank, tbat we would be given a chance to redeem tbis land from the foreclosure proceedings tbat bad been filed against father and mother. At tbe time thisAeed was executed we bad an agreement to redeem this land, and tbe agreement was made in Mr..Moncrief’s office. Mr. Frank, A. J. Bailey and witness were present whexx tbis agreement was made. It was agreed tbat tbis laxid should be deeded to Frank, and be would give us to March 1, 1923, to redeem tbis land and pay bina ixa full what we owed him.” Witness bad in mind at tbe time of tbe execution of tbe deed “the redemption of the laxad.” Witness further states that tbe agreement at tbe time was that witness was to have until March 1, 1923, to redeem, and before that time ixa February, 1923, be offered to pay Fraxxk and Fulton tbe amount of tbe Baileys ’. ixxdebtedness to Frank. ‘ The consideration for tbe execution of tbe deed was tbe right to redeem tbe land.”

A. J. Bailey testified in substance that they deeded the property to Frank upon the understanding tbat be would give them a contract to protect their interest. They waxated to protect Frank for all tbe moxxey they owed him, and be was to give the Baileys a lease for tbe year 1922, and take a landlord’s lien, and so they agreed to tbat propositioxx, and executed tbe deeds. It was understood at tbe time tbat Moncrief would draw up a contract statixig what tbe Baileys’ rights were, and bow much they would have to pay to have the property deeded back. There was never any question but that tbe property would be deeded back. The agreement -was tbat “upon tbe payment of Frank’s full claim, and we didn’t know what tbat would be, but upon tbe payment of bis full indebtedness tbat we owed him, tbe decree and what money lie would advance us, he would deed the property back to us.” Witness further testified to the effect that the understanding was at the time the deeds were executed that, when the indebtedness of the Baileys to Frank was paid, he would deed the land back to them, and Moncrief said he would draw up a contract that would protect their interests, and they took his word for it. Witness never saw any option contract nor heard any conversation about an option. Nothing was said about purchasing the property from Frank. The only words that were used were that he would deed back the property.

On the other hand, the testimony of Frank was to the effect that the Baileys had not been alble to pay their indebtedness to him, which had accrued under the original mortgages executed in 1918, and that he. had to foreclose the same, which he did in September, 1921, and the lands were ordered to be sold; that the Baileys, in order that they might retain possession of the land, and cultivate the same during the year 1922, executed the deeds in controversy to him, and he, on the same day, executed the lease contract to them; that the understanding was that he would give thé Baileys until December 31, 1922, or January 1, 1923, to pay the mortgage indebtedness, and that, if they would pay all the indebtedness due him at that time, he would allow them to purchase from him the property, and he would deed same back to them. This option agreement, pursuant to which the deeds and lease contract were executed, was not reduced to writing and signed the day these latter instruments were executed, because Moncrief said it was too late, and that he would write it another day. On a later day witness and A. J. Bailey went to Moncrief’s office, and Moncrief had the option contract written out and presented it to witness. Moncrief had changed the date that had been agreed upon from January 1, 1923, to 'March 1, 1923. Witness would not agree to that date, but finally did agree with Bailey to extend the time for the option contract to expire to February 1, 1923, and he signed the option contract with that understanding*. Witness stated that the reason why he would not extend the time beyond that date was because he was old, and in ill health and not able to look after it, and he wanted the matter definitely settled by that time, hence he would not agree to an extension of the option to March 1, 1923.

The testimony of Monerief was to the effect that, at the time the deeds were executed and delivered to Firank, and the lease contract was entered into between, Frank and the Baileys, Frank was to give Bailey an option to purchase the property which was to run during the time of that lease contract. The lease contract did not contain the option to purchase, and the option contract was not written on the day the lease contract was executed. Witness was to prepare, and did prepare, the option contract on a later day at Bailey’s request. Bailey requested witness to mention March 1, 1923, as the time for the expiration of the option to purchase, and witness wrote that date in the contract. Bailey was present when the contract was written, but Frank was not. At a later day Frank and Bailey came to witness’ office, and witness handed the option, contract to Frank and mentioned to him that there had been a change in the date' at Bailey’s suggestion from December 31, 1922, or January 1, 1923, to March 1, 1923. Frank stated that such was not the agreement, and he refused to sign it. Bailey finally prevailed upon him to agree upon February 1, 1923, and witness thereupon changed the contract, inserting that date with pen and ink and erasing the word March in both the original and copy of the option contract. Witness explained, however, that he hadn’t noticed the word March except in one place in the contract, whereas it appeared twice. The failure to erase the word March was an oversight on the part of witness. Witness, in changing the month from March to February in the contract, erased the word March in one place in the original and in another place in the copy, but witness intended to erase the word March in both places where it appeared in the contract, and to insert February in its place. Frank signed the option agreement, The option contract was written in the name of Mary B. Bailey, and she was not in the office at the time, and the agreed purchase price was left blank because the amount of the indebtedness of the Baileys to Frank as of the first of February, 1923, the date fixed for the expiration of the option, was not then ascertained.

It is unnecessary to set forth other testimony in this voluminous record. There was proof to the effect that Frank, after the expiration of February 1, 1923, had entered into a contract to convey the lands to Fulton.

The above are the salient features of the testimony upon which the court predicated its decree dismissing the appellant’s, complaint for want of equity, and upon which it entered a decree in favor of Franks and Fulton confirming and quieting title in them and awarding them possession of the lands in controversy.

There is no contention in the record that Frank perpetrated a fraud upon the Baileys by which they were induced to execute to him the deeds in controversy. The law applicable to such cases is stated in Edwards v. Bond, 105 Ark. 314, where we said: “The deed being absolute in form, the burden was upon the appellant to show that it was a mortgage, the law presuming that an instrument is what it appears on its face to be, an absolute conveyance, and, in the absence of fraud or imposition, the proof to overcome this presumption and establish its character as a mortgage must be clear, unequivocal and convincing.” See also Bolden v. Grayson, 167 Ark. 180.

The. finding that Frank was the owner of the lands is sustained by a preponderance of the evidence. The oral testimony, when' taken in connection with the written instruments, renders it reasonably certain that it was the intention of the parties that the deeds should be absolute in fact, as well as in form. We are also convinced that a preponderance of the evidence shows that it was not contemplated by the appellee, Frank, that the appellants should have beyond the first of February, 1923, to purchase the property by the payment of all the indebtedness due him at that time. In other words, the above option contract, signed by him, expired on February 1, 1923. The appellant did not, on or before February 1, 1923, pay or offer to pay Frank the amount of all the indebtedness that would be due him at that date. After that date the option contract was dead, and appellants no longer had any rights thereunder. Ind. & Ark. Lbr. & Mfg. Co. v. Pharr, 82 Ark. 573; Jennings v. Crawford, 102 Ark. 575.

2. The court below found that a receiver had been appointed to take possession of and sell certain personal property on which Frank had mortgages and liens to secure certain indebtedness, and that the receiver had delivered to Frank the proceeds of such property, and, after crediting all payments on such indebtedness, there was still due Frank the sum of $850 with interest at the rate of six per cent, per annum from the first of February, 1923. The court thereupon entered a decree against Justus P. and A. J. Bailey for that sum.. The testimony of Frank, and the-exhibits to his testimony, clearly show that the Baileys owed Frank, after allowing them all credits on their account for the year 1922, a sum in excess of $850. It cannot be said therefore that the preponderance of the evidence is clearly against the finding of the court on this issue, and the decree in favor of Frank against the appellants for that sum is correct.

3. It follows, from what we have said as to the decree of the court in the action to redeem, that the court was likewise correct in finding that the Baileys were in wrongful and unlawful possession of all the lands in controversy, including the eighty acres embraced in the separate deed from Justus P. Bailey to Frank, dated March 18,1922, and ruled correctly in entering its decree awarding the appellees the possession of such lands.

The decree of the court as a whole, on the consolidated causes, is in all things correct, and it is therefore affirmed.