author: Wood. J.

text:
    McCormack-Reedy Lumber Company v. Savage.
    Opinion delivered July 6, 1925.
    1. Master and servant — duty to discover defect — jury question. —In an -action by a mil-1 employee for injuries received by reason of a defective throttle valve which caused the engine to start while he was moving it, the question whether it was plaintiff’s duty to inspect the engine to discover the- allegéd defect in the throttle valve was for the jury where the evidence on this point was conflicting, and -an instruction taking.such issue from the jury was erroneous.
    2. Master and servant — contributory negligence — instruction. —Where there was a conflict in the evidence as to whether plaintiff pursued an unsafe method in attempting to move a stationary engine off the center, and as to whether in doing the work he disobeyed the master’s instructions, -it was error -to refuse to give an instruction which properly submitted the issue to the jury.
    3. Evidence — -admission against interest. — In an -action by'a mill employee for injuries received when a stationary engine which he was moving suddenly started by reason of a defective throttle valve, testimony as to a -conversation between p-laintiff -and one of his employers in which the latter stated that the throttle valve was cracked and was the cause of the trouble was admissible as in the nature of an admission against interest.
    Appeal from Hot Springs Circuit Court; TJiomas E. Toler, Judge;
    reversed.

      Brouse & McDaniel, for appellant.

      H. B. Means and D. M. Halbert, for appellee.
   Wood. J.

The appellee instituted this action against the appellant. The appellee alleged that the appellant, McCormaclc-Reedy Lumber Company, was a partnership composed of John McCormack and J. J. Reedy, and engaged in the business of operating a sawmill: that he was in their employ firing the boiler, operating a stationary engine in appellant’s mill; that, while running the engine under the direction of appellants and with due care for his own safety, lie was attempting to move the engine off center when the same suddenlv started while the throttle valve was fullv closed, and caught appellee between the belt and flv wheel and severelv injured him; that the iniurv was caused bv the negligence of the appellants in permitting the throttle valve on the engine to become worn, warped and cracked so that it permitted steam to pass into the cvlinders while the valve was fully closed, and that because of such unsafe defective eonditipp the engine started while appellee was attempting to move same off center, therebv catching the appellee between the belt and fly wheel and severely injuring him. The appellee prayed for judgment in the sum of $5,000.

The appellant answered and denied all the allegations of negligence on its part, and set up the affirmative defenses of contributory negligence and assumed risk on the part of the appellee.

The appellee testified in his .own behalf that he was in the employ of the appellant at the time of his injury; that on the 25th of February, 1922, he received the injury while he was in charge of the engine that was running appellant’s mill. Appellee had received notice from the filer that he wanted to file and appellee blew one whistle because he was going to shut down. The engine was barely running, so the sawyer could throw his belt on, but when he threw his belt on the engine stopped on center. The appellee then threw the throttle off and went through the fly wheel between the hickory saw and edger' and pulled on the drive wheel and the wheel picked up lat once and carried appellee over and caused the injuries of which he complains. Appellee explained in the presence of the jury the manner of his operation of the throttle and the manner in which his injury was caused. He stated that was the way they directed the work done. It was the way all of them had ever done. Of course, the appellant had instructed appellee to be careful. There was no way to get a fly wheel off center but to jump over the engine or climb over the bracing. But it wasn’t necessary to go way around that way, and appellee was doing it the way all of them had done, and the way the appellants had directed them to do it. Appellee stated that at the time of his injury his work consisted in “firing and tending the engine — firing, oiling and starting and stopping and keeping up steam.” On cross-examination he stated that he had been working around engines .all his life, but had never assisted on throttles or anything like that. He started and stopped them and ran them.. Over the objection of appellants, appellee was permitted to testify that ho went over to the mill something like twenty days after he was hurt when they were moving the throttle and had a conversation at that time with • McCormack about the condition of the throttle at the time of appel1 lee’s injury. McCormack showed the throttle to appellee. The valve was cracked. Appellee then explained to the jury by pointing out on the valve what he meant by saying that the throttle valve was cracked and how that caused the fly wheel to start up. Appellee further stated: “Mr. McCormack says, ‘Will, here is the trouble; the throttle valve is cracked,’ and I says, 'Yes sir,’ and lie says, ‘this is the trouble — that’s the cause of this leaking steam.’ ” Witness further explained to the jury the manner in which the defective valve caused the fly wheel to start and injure the witness.

There was testimony on behalf of the appellee by an expert locomotive engineer, who had had experience in operating stationary engines and also was familiar with the manufacture of such engines, to the effect that if the throttle valve is ground right you can turn it any place and it won’t move because the pressure is shut off between the engine and the valve. If the engine stops on center, and the throttle valve is leaking, when you pull it off center, it will turn the engine over to the next center. If it leaks very bad, it will turn it over a time or two.

The testimony on behalf of the appellant was to the effect that the proper way to pull the engine off 'center would be to go around and pull the fly -wheel down; that there was no danger in doing it that way; that there was nothing to prevent the appellee from pulling the flywheel off of center in the proper way, in which he would have been perfectly safe. Appellants had warned the appellee not to start the engine in the unsafe way. Before the appellee was injured appellants had seen the appellee starting the engine by the dangerous method and had warned him of the danger and told him not to do that. One of the witnesses for the,, appellants stated that he had been a boiler maker and engineer for twenty-five years; that he had never seen the valve in controversy until a day or two before he gave his testimony. He exhibited the throttle before the jury and stated that it had been cracked, but the crack did not go through. It doesn’t show any crack. It shows that it seats properly. If it didn’t, there would be spots there showing that it didn’t touch. The turning of the drive belt and saw would indicate that the valve seated properly- There was further testimony on behalf of the appellant to the effect that a man who had had experience with an engine would know if the valve was leaking. There was no leak in this valve whatever. The testimony for the appellants further tended to show that the throttle valve was not closed hy the appellee, but was left partially open by him.

McCormack, one of the appellants, testified and exhibited the throttle and stated that it was seating properly iat the time, and if it wasn’t it was appellee’s fault; that, if the throttle was leaking, appellee’s-duty was to report it, and fix it, or have it fixed. He worked on the engine nearly every day. The throttle anight be broken at any time. It could have got out of fix before appellee went in there. The throttle at the time of the injury was not cut off. The valve was taken out some little time after appellee was hurt, and appellee came there While the valve was being taken out. Witness denied that he ever showed the valve to appellee after his injury, and there was never any occasion to say to the appellee that the valve was cracked.

Appellant J. J. Reedy testified among other things that when he hired an engineer it was the engineer’s duty to keep up the engine, and that if there was anything wrong he should report it. He stated that he never gave the appellee instructions to start the engine the way he did, but on the contrary told him not to start it that way. Witness had seen the appellee start the engine before, and told him it would be only a matter of time when it would get him if he started it by getting straddle of the belt.. The proper way for an engineer to do, when his engine is on center, is to stay away from under his belt or get on the side where the belt can’t catch him.

A witness for the appellee in rebuttal testified that he was a practical engineer, and he was working for the appellants when the appellee got hurt and helped to take the throttle valve out and carry it to Malvern to be fixed something like a month after the injury. The valve leaked a little.

The appellant prayed the court to instruct the jury to return a verdict in its favor. In its instruction No. 5, given at the instance of the appellee, the court told the jury that, “if the plaintiff was injured on account of the defective condition of the throttle valve in permitting steam to accumulate in the cylinder and causing the flywheel to jump and catch the plaintiff as alleged in his complaint, if you find that he was injured, it will be your duty to find for the plaintiff. ’ ’

Appellant’s prayer for instruction No. 6 was as follows: “You are instructed that if you find from the evidence that the plaintiff knew of the methods that were used by the defendant in starting the said engine at which the plaintiff was at work, and that he knew and was aware of the conditions furnished him in which to do the work and the manner in which it was done, he assumed the risk and dangers which might result from such known methods and defects, if any. Therefore, if you find from the evidence that the plaintiff by reason of observation, experience or instruction knew of the conditions and dangers incident thereto in the performance. of his duties, and if you further find from the evidence that the plaintiff had been told by the defendant not to undertake to start the same in the manner that he did, he cannot be heard to complain in this suit that the defendant had failed to furnish him a safe place in which to work. ’ ’

The court modified this instruction by making the first part thereof read as follows: “You are instructed that if you find from the evidence that the plaintiff knew of the defects of the throttle or valve, if any and knew of the methods, etc.,” the remainder of the instruction being the same as- appellant’s prayer, and gave the instruction as modified, to which ruling the appellant duly excepted.

Appellant’s prayers for instructions Nos. 12 and 13 were to the effect that if the appellee knew or by the exercise of ordinary care could have known that the engine was defective, if the same was defective, then he could not recover.

The jury returned a verdict in favor of the appellee in the sum of $750. Judgment was entered in his favor for that sum, from which is this appeal.

The appellant contends that under the undisputed evidence the appellee should have exercised ordinary care to discover the defect, if any, in the throttle, and that, if a defect existed in the throttle as alleged in the complaint, it could have been discovered by the exercise of ordinary care on the part of the appellee, and therefore, if the alleged defect in the throttle was the proximate cause of appellee’s injury, the appellant was not liable therefor. Appellant’s prayers for instructions Nos. 12 and 13 and the requested modification of appellee’s prayer for instruction No. 5 were predicated upon the theory that it was the duty of the appellee to exercise ordinary care to discover the defect in the throttle which he alleged caused his injury. We are convinced that it was an issue for the jury under the evidence as to whether nr not it was the duty of the appellee to exercise ordinary care to inspect the engine to discover the •alleged defect therein. The testimony of McCormack to the effect that it was appellee’s duty “to fire and keep up the engine, and, if the throttle was leaking, it was his business to report it and fix it or have it fixed, ’ ’ tended to show that it was the duty of the appellee to exercise ordinary care to inspect the throttle for structural defects therein. But, on the other hand, the testimony of the appellee was to the effect that he was “firing and tending the engine, firing, oiling, starting up and stopping and keeping up steam.” Further along in his testimony he stated: “I knew the trouble was a leak some way, but that was out of my bound; when it came down to the throttle, that was not my business..”

There was testimony tending to prove that the alleged defect in the throttle was a crack, the nature of which could only be discovered by an inspection thereof, and that it was such a defect that one simply charged with the duty of firing, tending the engine, oiling, starting and stopping and keeping up steam, would not discover in the exercise of ordinary care in the discharge of these duties.

The court therefore ruled correctly in refusing to declare as a matter of law that it was the duty of the appellee to exercise ordinary care to discover the alleged defect in the throttle and to declare under the undisputed evidence as a matter of law that he could have discovered such defect if he had exercised ordinary care to discover the same. The instructions should have been so framed as to submit this issue to the jury. The court, instead, took such issue from the jury by telling them, in the language of instruction No. 5 quoted above, that if they found from the evidence that the plaintiff was injured on account of the defective condition of the throttle valve, they should find in his favor. The court erred in giving this part of instruction No. 5. The contentions of both appellee and appellant were erroneous on this issue. The court should have instructed the jury in effect that if they find under the evidence that it was the duty of the appellee to exercise ordinary care to discover the 'alleged defect in the throttle and he failed to exercise such care, and that such failure was the proximate cause of his. injury, then their verdict should be in favor of the appellant; ¡but, on the other hand, if the jury find that it was not the duty of the appellee to exercise ordinary care to discover the alleged defect in the throttle, and if through the negligence of the appellant such defect existed, and was not an- open and obvious one, and they further find that the same was not the proximate cause of the injury to the appellee, then their verdict should be in his favor.

The appellant also- contends that the undisputed evidence shows that the proximate cause of appellee’s injury was the unsafe method he adopted in moving the engine off center contrary to appellant’s warning and instruction. ÍWe cannot concur in the view -of learned counsel in the contention that, under the undisputed evideuce, the appellee was pursuing an unsafe method contrary to the instructions of the appellant. It was likewise an issue for the jury under the evidence to determine whether the method appellee was pursuing was unsafe and contrary to the instructions of appellant. The testimony of witnesses for the appellant tended to show that such was the case,but the testimony of the appellee tended to prove -that such was not the case, and that he was pursuing the method which appellant had directed — the way that all of them had done before. The issue should have been submitted to the jury by granting appellant’s prayer for instruction No. 6 without modification. That instruction would have correctly submitted the issue. The modification added by the court was erroneous because if the appellee at the time of his injury was pursuing a method of moving the engine off center contrary to the directions of the appellant, the appellant would not be liable for appellee’s injury resulting from his disobedience to the orders of his master, whether appellee knew of the defects in the throttle or not. The court erred in modifying the appellant’s prayers for instruction No. 6 and in not giving the same without modification.

Under the circumstances there was no error in the ruling of the court in admitting the testimony of the appellee as to the conversation he had with appellant McCormack about twenty days after the injury occurred concerning the defect in the valve. "What appellant McCormack said and did under the circumstances as developed here was in the nature of an admission against the appellant, and therefore relevant and competent evidence to he considered by the jury. Appellant exhibited the throttle to the jury and testified concerning it. See Stecher Cooperage Co. v. Stedman, 78 Ark. 381.

'There was evidence to sustain the verdict and the rulings of the court in the giving and refusing of prayers for instructions, except in the particulars above mentioned, were correct. Except as above indicated, the instructions on the question of negligence, contributory negligence and assumed, risks were in conformity with the law as announced, in numerous decisions of this court. The law on these subjects is so familiar that we deem it unnecessary to further comment upon them or to cite the cases.

For the error in giving appellee’s prayer for instruction No. 5 and in refusing appellant’s prayer for instruction No. 6 and in modifying same and giving it as modified, the judgment is reversed and the cause remanded for a. new trial.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Jerome Hardwood Lumber Company v. Munsell.
    Opinion delivered April 27, 1925.
    1. Covenants — incumbrance defined. — An incumbrance, within the usual covenant against incumbrances, is every right to or interest in the land which may subsist in third persons, to the diminution of the value of the land, but consistent wiith the passing of the fee by the conveyance.
    2. Covenants. — timber deed as incumbrance. — A timber deed is an incumbrance within the meaning of a covenant against incumbrances, since it diminishes the value of the estate conveyed, though it does not defeat the transfer of the fee to the land.
    3. Covenants — warranty against incumbrance — breach.—'Where, at the time land wtas conveyed with covenant against incumbrances, it was either wild and unoccupied or was in the possession of the grantee of a prior timber deed, the covenant was broken when the deed was executed, and did not pass to and cannot be enforced by assignees of the covenant.
    Appeal from Drew Circuit Court; Turner Butler, Judge;
    reversed.

      G. E. Snell, J. G. Williamson, Adrian and Lamar Williamson, for appellant.

      Henry & Harris and Streett & Burnside, for appellee.
   Smith, J.

Four separate suits were brought by appellees against appellant. The cases were consolidated for trial in the court below, and verdicts were separately returned in each case- for the plaintiff, and from' judgment pronounced thereon is this appeal. The cases are substantially identical, and a statement of the facts in one will sufficiently present the issues which we have found to be controlling of them all: The defendant, Jerome Hardwood Lumber Company, is a corporation organized under the laws of this State, and, on the 11th day of December, 1919, became the owñer of a large body of land in Chicot and Desha counties, by virtue of a general warranty deed executed to it by the Bliss-Cook Oak Company. Prior to the date of this deed the Bliss-Cook Oalu Company had sold -and conveyed to the Pioneer Pole & Shaft Company, a corporation under the laws of the State of Ohio, all of the standing hickory timber upon said lands. This timber deed gave the grantee named therein eight- years in which to remove said timber, with the right of ingress and egress for that purpose. This deed conveyed the hickory timber on 25,200 acres of land.

This deed to the Pioneer Pole & Shaft Company was not placed of record, but the defendant company was aware of its existence and its provisions. With such knowledge, the defendant company, on the 11th day of December, 1919, sold and conveyed to the Jacksoii-Vreeland Land Corporation, a corporation under the laws of the State of Missouri, all of the lands which the Bliss-Cook Oak Company had, by deed of the same date, conveyed to the defendant. The consideration for this deed was $15 per acre for the land, one-half of which was paid in cash, and the balance was evidenced by notes secured by a mortgage on the land. This deed was absolute in form, and there was no exception or reservation of the hickory timber, and the deed contained general covenants of warranty reading as follows: “And said Jerome Hardwood Lumber Company hereby covenants with said Jackson-Vreeland Land Corporation, its successors and assigns, that said Jerome Hardwood Lumber Company will forever warrant and defend the title to said lands against all claims and demands whatsoever, except taxes and assessments on said above described lands for tbe year 1919, which taxes and assessments for said year said second party assumes and agrees to pay.”

On the 31st day of December, 1919, the JacksonVreeland Land Corporation conveyed to the plaintiffs Munsell and Adkins four sections and a quarter-section of the land. This conveyance was a warranty deed with the usual covenants of warranty, except as to certain taxes and the mortgage in favor of the J eróme Hardwood Lumber Company, and contained no exception or reservation of the hickory timber.

It was alleged in the complaint, and testimony was offered to show, that, after the execution of this deed, the Pioneer Pole & Shaft Company cut and removed the hickory timber. Plaintiffs have sued the defendant, Jerome Hardwood Lumber Company, for the value of this timber, alleging that the sale of this timber constituted a breach of the covenant of warranty contained in the deed from the defendant, Jerome Hardwood Lumber Company, to the Jackson-Vreeland Land Corporation. The last-named company, which was the plaintiffs’ grantor, and which had conveyed to plaintiffs by warranty deed with the usual covenants of warranty, was not made a defendant.

The defendant, J eróme Hardwood Lumber Company, answered and set up a number of defenses, among others that plaintiffs had bought with full knowledge of the outstanding timber deed. This allegation was stricken from the complaint, and testimony offered by defendant to prove that allegation was excluded by the court.

The testimony shows that the Pioneer Pole & Shaft Company began, in 1917, immediately after the receipt of its timber deed from the Bliss-Cook Oak Company, to cut and remove the hickory timber, and three sawmills were set up to saw this timber. The testimony is conflicting as to when the Pioneer Pole & Shaft Company began cutting on plaintiff’s land, but the verdict of the jury is conclusive of the fact that this was done after plaintiffs had obtained their deed from the Jackson-Vreeland Land Corporation.

At all of the times hereinbefore mentioned all of the lands conveyed by defendant to the Jackson-Vreeland Land Corporation were wild cut-over timber lands. None of it was cleared, inclosed or cultivated, and there was no actual possession of any part of the land except that of the Pioneer Pole & Shaft Company.

It is first insisted by the defendant that, if there has been a breach of the covenant of warranty, that breach accrued immediately upon the execution of the deed by defendant and long before the subsequent conveyance •from defendant’s vendee, Jackson-Vreeland Land Corporation, and that, if any cause of action arose because of a, breach of warranty as against the defendant, it arose in and to the Jackson-Vreeland Land Corporation, and did not run with the land in the subsequent conveyances by the Jackson-Vreeland Land Corporation to the plaintiffs in the action.

Inasmuch as we have concluded that the defendant (appellant) is correct in this position, and that this is a complete defense to the suit of the plaintiffs, we do not consider the other questions raised on the appeal.

It may be further said that no contention is made that there is any defect in the title to any of the lands involved in this litigation. Appellees concede that they acquired a perfect title except only to-the hickory timber. This failure, they say, is a breach of the covenant of warranty, which runs with the land, and entitles them to maintain this suit on the covenant in the deed from defendant to their grantor.

We have concluded, however, that, under the undisputed testimony, the timber deed to the Pioneer Pole & Shaft Company was an outstanding incumbrance at the time the deed to Jackson-Vreeland Land Corporation was made, and that the covenant sued on was broken when made, and that the right to sue thereon did not run with the land.

It is to be borne in mind that tbe covenant of warranty alleged to have been broken is the warranty of the title to the hickory timber on the lands. There is no complaint that there was any failure of title in any other respect. There was no express warranty of the title to the hickory timber. There was a mere failure to reserve or to except this timber in the deed from the defendant, which did contain the covenant of warranty set out above.

It will also be borne in mind that the lands were wild and unoccupied, unless, indeed, the Pioneer Pole & Shaft Company had such possession of the land and timber as the timber deed to it from the Bliss-Cook Oak Company contemplated and granted.

It was alleged and was proved by appellees that this timber deed to the Pioneer Pole & Shaft Company was prior in time to the deed to appellees’ grantor. The existence of this timber deed constitutes the breach of the covenant on which plaintiffs predicate their respective causes of action. ■ ■ ;

We think this timber deed should be regarded as an incumbrance on the land. Many cases have discussed and defined the word incumbrance.

In Rawle on Covenants for Title (5th ed.), § 75, it is said: “In considering the question what will cause a breach of the covenant against incumbrances, or, in other words, what is ‘an incumbrance’ within the true intent and meaning of the covenant, an apparent difficulty will be encountered such as is not presented in the case of the other covenants. It arises, in part, from the fact that the word ‘incumbrance’ has no technical meaning. It was not one of the ‘terms of the law,’ and no definition of it will be found in the older books. Within the present century, an incumbrance has been defined to be ‘every right to or interest in the land which may subsist in third persons, to the diminution of the value of the land, but consistent with the passing of the fee by the conveyance.’ ”

This definition appears to have been extracted from the opinion by Parson, C. J., in Prescott v. Trueman, 4 Mass. 630, and appears to have been since generally-accepted by the courts as a correct definition, and the opinions in many cases have been cited in the excellent brief of respective counsel which have adopted this definition. It has been expressly adopted by this court. Seldon v. Dudley E. Jones Co., 74 Ark. 348; Gibbons v. Moore, 98 Ark. 501.

The timber deed in question is an incumbrance within this definition. It does, and did, diminish the value of the estate conveyed, but it did not operate to defeat the transfer of the fee to the land. Appellees acquired the fee, but they acquired it subject to the right of the Pioneer Pole & Shaft Company to remove the timber.

Standing timber is of course a part of the land, and is an interest which must be conveyed by deed. But in a deed to timber, even where no time for its removal is specified, the timber must be removed within a reasonable time. If the right to cut and remove is not exercised within a reasonable time, it expires because of the failure to exercise the right.

A timber deed, which contemplates the removal of the timber, does not convey an interest in the land which endures indefinitely — no estate is created — only the right of removal is granted; and this is a right which must be exercised within a reasonable time, even though the deed itself imposes no such limitation. Liston v. Chapman & Dewey Land Co., 77 Ark. 116.

Numerous cases are cited in the brief of counsel for appellant in which an outstanding timber deed conveying the right to cut and remove timber from land was held to be an incumbrance.

In the case of Spurr v. Andrews, 6 Allen (Mass.) 420, a grantor had previously conveyed the standing timber, with the privilege of cutting and removing it within six years. In a suit for a breach of the covenant of warranty the Supreme Court of Massachusetts said: ‘ ‘ The covenant under which damages are to be recovered in the present case is that the premises were free from all incumbrances. This covenant would be broken if a third person had, at the time of the conveyance, a right to or interest in the land granted, which diminished the value of the absolute interest in the same, while it was consistent with the passing of the fee by the deed. Prescott v. Trueman, 4 Mass. 627. It appears that, at the time of making the conveyance of the land in question, there was a right in one Salmon K. Norton to cut and-remove the wood from a portion of it within a certain time. This outstanding interest was not of such character as to defeat the conveyance to the. plaintiff, upon the ground that it was made by a party disseised. .The plaintiff, by force of his deed, took a seisin of the whole premises, but subject to the outstanding incumbrance in Norton, and with the right to recur to his warrantor for his damages in consequence thereof.”

In the case of Thomas v. West & Wheeler, Inc., 116 Pac. 1074, a vendor conveyed land with covenants of warranty, though he had already sold the timber to another. The contract whereby the timber was sold was not recorded, and the second grantee recorded his deed first. Later the grantee in the timber deed entered and removed all the timber on the land. It was held by the Supreme Court of Washington that, while the second grantee took priority over the first, and while the act of the first grantee was a trespass, nevertheless, the grantor was liable, for the reason that the covenant of warranty in the deed conveying the land was broken when that deed was delivered. The court said: “It is apparent, we think, that the covenant in the deed was broken at the time the deed was delivered, because the grantor had already sold the timber, and, by the deed to plaintiffs, sold it again, thereby authorized two different vendees to take possession of the property.”

See also Cathcart v. Bowman, 5 Pa. St. 317; Stambaugh v. Smith, 23 Ohio St. 584; Brodie v. New England Mortgage Security Co., 51 Sou. 861, 166 Ala. 170; Gadow v. Hunholz, 151 N. W. 810, 160 Wis. 293; Beecher v. Tinnin, 189 Pac. 44; Colver v. McInturf, 212 Pac. 88.

In the case of Seldon v. Dudley E. Jones Co., supra, a grantor warranted the title by the statutory warranty implied in the terms “grant, bargain and sell,” and, in addition, specifically covenanted to forever warrant and defend the title to the lands conveyed against all claims whatever. In a suit for damages under these covenants it was alleged that there were two outstanding paramount titles to interests in the land which were unknown to the plaintiff when he received his deed from the grantor; first, an unassigned vested dower interest, and, second, an undivided one-sixth interest belonging to the State of Arkansas. After approving the definition of an incumbrance given by Rawle, set out above, as adopted in 2 Warvelle on Vendors, §§ 971, 975, it was said that an outstanding dower interest was an incumbrance within the meaning of the covenant. The court proceeded to say that the general rule is that, to charge a person on a warranty, eviction must be shown, but, where the land is wild and unimproved, actual eviction is not necessaiy, for the reason that possession follows the legal title, and a paramount title carries possession with it amounting to a constructive eviction.

In the instant case there was either an actual eviction by the possession of the Pioneer Pole & Shaft Company, or, if that company did not have possession, then the lands were wild and unoccupied, and there was a constructive eviction by the paramount title to the timber owned by that company.

As we have said, the title to the land itself is not questioned. The insistence is that the title to the hickory timber failed; that the covenant in the deed from the Jerome Hardwood Lumber Company embraced this timber; land that this covenant ran with the land and inured to the benefit of any subsequent grantee.

But at § 624 of Tiedeman on Real Property (4th ed.) it is said: “If, at the time of the conveyance, the grantor had neither title nor seisin, nothing passes by the deed, and the covenant remains in the grantee, and cannot be enforced by an assignee.”

The defendant did not own the hickory timber at the time of the execution and delivery of its deed to the Jackson-Vreeland Land Corporation; therefore its deed did not convey the timber. The land was either wild and unoccupied, or it was in possession of the Pioneer Pole & Shaft Company for the purpose of removing the hickory timbei\ Defendant had neither title to the timber nor seisin of it when it executed the warranty deed to the Jackson-Vreeland Land Corporation. Its covenant was therefore broken when made, aild remained in the Jackson-Vreeland Land Corporation, and did not pass to and cannot be enforced by the plaintiffs.

In the chapter on Covenants in 7 it. C. L., § 16, it is said: “* * * But a covenant of ownership or seisin is a present act, and, if the covenantor hath not title or is not seised, the covenant is broken as soon as made.”

At § 47 of the same chapter, after stating that, on the question whether a covenant of seisin is personal or real, there is a decided and irreconcilable conflict of opinion, it is said that “by the great weight of authority in the United States, however, it (covenant of seisin) is a personal covenant, and does not run with the land.” A number of annotated cases are cited in support of what is said to be the majority rule, and, among .others, the cases of Logan v. Moulder, 1 Ark. 313, 33 Am. Dec. 338; Ross v. Turner, 7 Ark. 132, 4 Am. Dec. 531; Pate v. Mitchell, 23 Ark. 590, 79 Am. Dec. 114.

We have concluded that this timber deed should be regarded as an incumbrance, and that its existence constituted a breach of the covenant of seisin when the covenant was made, for which appellees have no right to sue, and the judgment of the court below will therefore be reversed, and the cause is dismissed-

Hart and Humphreys, JJ., dissent.

      Upon a rehearing of this case, Judge Wood disqualified himself, and Hon. E. L. Compere was appointed a special judge. Upon reconsideration of the case the above opinion was approved by a majority of the court. (Rep.)


author: Hart, J.,

text:
    Hildebrand v. Graves.
    Opinion delivered June 15, 1925.
    1 Homestead — order vesting in widow — rights of minor children. — Since the adoption of the Constitution of 1874, art. 9, § 6, providing that the widow and minor children of a decedent shall share his homestead equally, the probate court has no power to make an order vesting the homestead in the widow, though it. does not exceed in value the sum of three hundred dollars.
    2. Homestead — order vesting in widow — validity.—An order of the probate court absolutely vesting the title to decedent’s homestead in the widow during the minority of his children is void and incapable of confirmation or ratification by such children.
    8. Evidence — forgery of deed — burden of proof. — One who alleges that a deed was forged has the burden of proving it. '
    4. Deeds — invalidity—forgery.-—Evidence held to sustain a finding that a deed was not a forgery.
    5. Fraud — nature of fraudulent representations.- — To- maintain an action for fraudulent representations as to land sold, the vendee must prove, first, that the fraud related to some matter of inducement to the making of the contract; second, that it wrought injury to him-; third, that the relative positions of the parties were such that he must necessarily be presumed to have contracted upon the faith of the statements of the vendor; and, fourth, that he did rely upon them, an-d had a right to rely upon them, in full belief of their truth.
    6. Fraud — circumstantial evidence.- — -Fraud may be proved by circumstantial evidence, or by a combination of direct and circumstantial evidence.
    7. Fraud — -presumption.-—-Fraud is never presumed, but must be affirmatively proved by a preponderance of the evidence.
    8. Fraud — sufficiency of evidence. — Fraud cannot be sustained by suspicious -circumstances or conjecture; and where it is sought to prove it by -circumstantial evidence the fraud must be such as to reasonably and naturally follow from the circumstances proved.
    9. Fraud — evidence.—In determining the question of fraud or undue -influence, all the surrounding circumstances which might make the party claimed to have been defrauded susceptible and yielding, such as illiteracy, inexperience and yielding character, are to be considered; and, on the other hand, the life, character and antecedents of the party who i-s charged to have committed the fraud -are to be considered.
    10. Fraud — sufficiency of evidence. — Evidence held insufficient to sustain allegations of fraud in .procuring a deed.

      Appeal from Ouachita Chancery Court, First Division; J, Y. Stevens, Chancellor;
    reversed.
    STATEMENT OE EAOTS.
    Luther Graves and others brought this suit in equity against P. T. Hildebrand and others to set aside certain deeds and oil and gas leases and quiet their title to 160 acres of land in Ouachita County, Arkansas.
    The deeds and leases are sought to be set aside on the ground that the original deed whereby the plaintiffs conveyed the land to the defendant, Hildebrand, was a forgery, and also on the ground that it was procured by fraud and false representations.
    The answer denied the allegations, of the complaint. The 160 acres of land in controversy is situated in the Smackover oil fields and has become very valuable. The land was originally acquired as a homestead from the United States by Larkin Murphy in 1876. He died intestate in 1878, leaving his widow, Mary Murphy, and a minor son and daughter, named respectively Joe and Drucilla. Mary Murphy subsequently married a man named Graves, and had a son and two daughters by him, named respectively, Luther, Mary and Martha. Mary Graves continued to live on the land as her homestead after her second marriage. In 1884 the probate court made an order vesting the title to the land in Mary Graves. The order recites that there are no debts against the estate, and that the aggregate value of the real and personal property of the estate is less than $300. The order further recites that the value of the land is $160, and that the title to the same be vested in Mary Graves, the widow of Larkin Murphy, and the wife of Willie Graves at the time the order was made. Drucilla Murphy grew up and married Willie Newton. Joe Murphy died leaving a son, Ben Murphy, and there is some question as to whether lie was a legitimate son. Mary Graves has continued to occupy the homestead, or a part of it, since the death of her husband. In the year 1905, Mary Graves conveyed to her son, Luther Graves, the west 40 acres of the land in question. Luther Graves was at that time twenty-five years old. His mother intended to convey to him the west 53 1-3 acres of the homestead, and in 1911 executed to him a second deed conveying this tract to him. At this time Drucilla was married and lived on the middle 53 1-3 acre tract of the homestead. The mother still lived in the old home at the east end of the tract. Her two daughters, Mary and Martha, lived there with her. Martha married Henry Murphy in 1913, and her mother gave her the west half of the east 53 1-3 acres of the homestead. Martha and her husband built a house on the tract given them, and they have lived there ever since. Mary Graves .made her a deed to said tract in M'ay, 1922. In 1913, Mary married a man named Roper, and her mother gave her the east half of the east 53 1-3 acres of the homestead. A new house near the old homestead yras built for Mary, and she and her husband moved into it and have lived there ever since. Afterwards, Mary Graves moved into the house with her daughter, Mary Roper, and lived with her. The husband of Mary Roper died, and she afterwards married a man named Dawn and is now Mary Roper Dawn. In 1897, Mary Graves conveyed the middle 53 1-3 acres of the homestead to Will Newton, the husband of Drucilla. Drucilla was at that time twenty-six years old. They continued to live on the middle 53 1-3 acres of the homestead until sometime in 1909, when they sold the land to Minerva Blister and moved away. Mary Graves divided the homestead between her children above-named and made no provision whatever for Ben Murphy and does not seem to have regarded him as a legitimate son of Joe Murphy. Ben Murphy ivas born after the probate court had made an order vesting the title to the homestead in fee in Mary Graves. The deeds from Mary Graves to her daughters, Mary Roper and Martha Murphy, were executed in May, J922, and recited a consideration of $1. On June 1, 1922, Drucilla Newton and Ben Murphy made a contract with 0. M. Martin, a lawyer of Camden, Arkansas, to recover their interest in the homestead upon a contingent fee of one-half of the recovery, and as a part of the contract, they conveyed to Annie Martin, for 0. M. Martin, an undivided one-half interest in that part of the homestead which they sought to recover. They also executed to Annie Martin an oil and gas lease,on their entire interest in the homestead for a consideration of $100. Some time about the middle of June, 1922, P. T. Hildebrand and Guy Campbell of Camden, Arkansas, went to see an oil well which was being drilled in the same neighborhood, and found out about the land in controversy and the conflicting claims as to the title. Hildebrand was the cashier of a bank in Camden and employed Campbell to get the title for him. On June 19, 1922, P. T. Hildebrand received a quitclaim deed from Annie Martin. The consideration recited in the deed was $2,825 cash in hand. The deed was duly acknowledged on the same day before L. B. Smead, a notary public. On the 17th day of June, 1922, Minerva Brister and Isa Goodwin, her son, executed a deed to said land to P. T. Hildebrand and the consideration recited in the deed is $10. This deed was acknowledged on the same day before Guy L. Campbell, a notary public.
    There is also in the record what purports to be a deed from Mary Murphy, Martha Murphy, Luther Graves, and Mary Roper to P. T. Hildebrand to said land. This deed is dated June 17, 1922, and purports to have been acknowledged on the same day before Guy L. Campbell, a notary public.
    Evidence was introduced by the plaintiffs tending to show that this deed was a forgery, and also that it was procured by fraud and false representations. On the other hand, evidence was introduced by the defendants tending to show that the signatures to the deed was not a forgery, and that its execution was not a forgery, and that its execution was not procured by false representations. The evidence on this phase of the case will be stated or referred to more at length under appropriate headings in the opinion.

      There also appears in the record a quitclaim deed from Ben Murphy to P. T. Hildebrand to said land. It recites a consideration of $10 cash in hand paid, and was executed and acknowledged on the 14th day of June, 1922, before L. B. Smead, a notary public.
    There also appears in the record a quitclaim deed from Drucilla Newton and Victoria Wright to P. T. Hildebrand to said land. The consideration recited in this deed is the sum of $10, and it was executed on the 12th day of June, 1922. , It was also acknowledged before L. B. Smead, a notary public.
    Numerous deeds and oil and gas leases were executed by the grantees in the deed which is alleged to be a forgery, and to have been procured by false representations. All of these grantees have been made defendants to this action. Other evidence will be stated or referred to in the opinion.
    The chancellor made a specific finding of fact to the effect that the deed from Luther Graves and other plaintiffs to P. T. Hildebrand to the 160 acres of land in question wias not a forgery, 'but found that it had been procured by fraud and false representations. It was therefore. decreed that the title to said lands should be divested out of the defendants, and that the deeds and leases under which the defendants claim title should all be canceled. The title to the 160 acres of land was decreed to be.in the plaintiffs, and the decree provided that the title should be quieted in them.

      Gcmgha/n £ Sifford, Smead £ Meek, Marsh £ Marlin and Cochrill £ Armistead, for appellant.

      II. C. Compton, Henry Stevens, T. W. Hardy, Pace £ Davis and R. E. Wiley, for appellee.
   Hart, J.,

(after stating the facts). At the outset it may be stated that the order of the probate court by which an effort was made to vest the land absolutely in the widow, having been made during the minority of the children, is void. Larkin Murphy died in 1878 intestate, and at the time of his death the land was his homestead. His widow continued to reside on the homestead with their minor children, and the order of the probate court was made in 1884, while the children were yet minors.

In Sansom v. Harrell, 51 Ark. 429, it was held that since the adoption of the Constitution of 1874, which provides that when the owner of a homestead dies his' widow and minor children shall share the same equally, the power of the probate court to make an order under our statute vesting the estate of a deceased person in his widow, where it does not exceed in value the sum of $300, is confined to cases where the deceased leaves no minor children, or if he leaves such children, no part of his estate constitutes a homestead.

In the later case of Smith v. Scott, 92 Ark. 143, this court held that the probate court had no authority to make an order vesting the homestead of a decedent in his widow and minor children.

But it is insisted that this order became effective when the children‘arrived at the age of twenty-one years. There might be some plausibility in this contention if the probate order had been merely voidable. As we have already seen, the order was absolutely void, and was of no force and effect whatever. It was incapable of confirmation or ratification and could never acquire any vitality whatever.

On the question of the forgery of the deed from Luther Graves and the other plaintiffs to P. T. Hildebrand to the 160 acres of land in .controversy, the court found in favor of the defendants. The burden of proof was upon the plaintiffs to establish the forgery of the deed. Miles v. Jerry, 158 Ark. 314, and cases cited.

A careful consideration of the evidence leads us to the conclusion that the finding of the chancellor in this respect was not against the weight of the evidence. According to the evidence for the plaintiffs, Hildebrand and Campbell came to them and persuaded them to allow them to represent them in straightening out the title to the land in question, and induced them to sign a blank piece of paper as a token that they were the accredited representatives of the signers. One of the parties stated that the blank piece of paper had red lines on it.

In the first place, it would be very difficult to fill in the body of a deed on a blank piece of paper containing only the signatures of the grantors and attach a certificate of acknowledgment to the same without some indication tending to show that the body of the deed and the acknowledgment thereto had been filled in subsequently to the writings of the signatures, and this would be especially true where the blank paper had red lines on it and was folded up at the time it was signed, as the plaintiffs themselves testified was the case. Hildebrand and Campbell denied in positive terms that the deed was a forgery. In this respect they were corroborated by the testimony of Lamar B. Smead, who wrote the deed.

On the question of forgery, the witnesses were examined and cross-examined at length; but no useful purpose could be served by setting out their testimony in detail and reviewing it at length. We deem it sufficient to say that the chancellor properly held that the forgery of the deed was not established by a preponderance of the evidence.

The chancellor found for the plaintiffs on the ground that the deed to P. T. Hildebrand to the 160 acres of land in question had been procured by false representations.

To maintain an action for damages for false and fraudulent representations for land sold, the vendee must prove: First, that the fraud related to some matter of inducement to the making of the contract; second, that it wrought injury to him; third, that the relative positions of the parties were such that he must necessarily be presumed to have contracted upon the faith of the statements of the vendor; and, fourth, that he did rely upon them, and had a right to rely upon them, in full belief of their truth. Matlock v. Reppy, 47 Ark. 148.

This-rule is so well settled in this State that a further citation of authority in support of it is not necessary.

It is also well settled that fraud may he proved by circumstantial evidence or by a combination of direct and circumstantial evidence: Because of the fact that men for the most part deal honestly with each other, fraud is never presumed, but must be affirmatively proved. Fraud cannot be sustained by suspicious circumstances or conjectures, but it must be established by a preponderance of the evidence; and where it is sought to prove fraud by circumstantial evidence, the fraud proved must be such as to reasonably and naturally follow from the circumstances so proved. DuFresne v. Paul, 144 Ark. 87.

In determining' the question of fraud or undue influence, all the surrounding circumstances which might make the party claimed to have been defrauded susceptible and yielding are to 'be considered. Caldcleugh v. Caldcleugh, 158 Ark. 224.

Thus it will be proper to consider the illiteracy, inexperience, and yielding character of the party claimed to have been defrauded.

On the other hand, it would be equally pertinent to consider the life, character, and antecedents of the party who is charged to have committed the fraud. Many illustrative cases bearing on the subject have been cited and reviewed by counsel in their briefs. The testimony relating to this branch of the case has been discussed in great detail; but such a discussion in an opinion would make it too long to be of any practical value. No hard and fast rule can be laid down about weighing the evidence. As above stated, the rule of law to be followed is well settled, and the only difficulty is in applying it to the facts in each particular case.

When all the facts and circumstances adduced in evidence in this case are considered in the light of each other and with reference to the object sought to be accomplished by the transactions under investigation,’we are of the opinion that the chancellor erred in finding that the deed whereby the title to the 160 acres of land in question was placed to P. T. Hildebrand was procured by fraud.

It is true that the plaintiffs are all negroes, but they are not illiterate. Luther Graves is a farmer; but he has also been preaching for about eleven years. He thoroughly understood, the increase in value of lands in his section of the country when oil was discovered on or near them. lie knew the value and purpose of having a good abstract of title to land on which there was a chance to discover oil. He was having an abstract of title to his land, prepared at the time the transactions in question were had. Prior to this time he had executed oil and gas leases on his land. He knew that such leases were of no value unless oil, was found on t'he land or on land near it. His sisters, Mary Boper and Martha Murphy, were educated. They commenced to go to school when they were small children and continued to go until they were grown. They too understood that the land was of but little value unless oil or gas was discovered upon it. They understood the nature and purpose of such leases. Minerva Brister, who had purchased the interest of Drucilla Newton, also knew the importance to be attached to the finding of oil and gas in that part of the' country. They knew that the land was of but little value unless oil or gas was discovered in or near the land. They knew that there was some question about whether the probate order made in 1884 vested the title in fee to the land in Mary Graves, the widow of Larkin Murphy, the original owner óf the land. They knew that, unless the title in fee had been vested in her by the probate order made in 1884, she only had a dower and homestead interest in the land.

It was claimed that Ben Murphy was the illegitimate son of Joe Murphy, who was one of the children and heirs at law of Larkin Murphy, the original owner of the land. All of these facts were known to all the plaintiffs at the time they first began to deal with P. T. Hildebrand and Guy L. Campbell about the land. Guy L. Campbell had been a resident of Camden for ten years and P. T. Hildebrand for eleven years before the transactions in tbe present case occurred. Lamar B. Smead was a lawyer and resident of Camden. Tbe above in brief is tbe situation and environment surrounding the parties to these transactions at the commencement thereof.

Hildebrand and Campbell approached the plaintiffs with a view of compromising the various claims of title to the land, and of settling the differences between the claimants. In order to do this, it was decided that all the conflicting claims and interests in the land should be conveyed by quitclaim deeds to P. T. Hildebrand, and that he would convey the land back to the respective claimants reserving a royalty interest in himself.

According to the testimony of Luther Graves and the other plaintiffs, they did not know that they were conveying their interests in the land to Hildebrand, and that they were receiving back only the title to the land and a fourth royalty interest out of whatever gas or oil might be discovered on the land. Lamar Smead denied that he had misrepresented the matter of the conveyances to them in any manner whatever. He testified that he simply wrote such deeds and leases as he was directed to write by the parties, and that the plaintiffs signed the same after consulting'with .each other. That they thoroughly understood what they were doing, and only signed the instruments after due consideration of their rights in the premises. He is corroborated by the testimony of Hildebrand and Campbell. At that time it was not known how valuable the land was, because the drilling of the oil wells on the adjacent land had not proceeded far enough to indicate any showing of oil or gas. Of course, the presumption is that Hildebrand and Campbell thought that the land would become valuable as oil or gas producing land or they would not have taken any interest in the matter.

On the other band, the plaintiffs .were equally interested, and had the same chance to know about the probabilities of discovering oil or gas. The fact that oil was discovered on nearby land subsequent to the transaction in this case made the land in question very valuable; but its great increase in value might as well affect the credibility of the plaintiffs as that of Hildebrand and Campbell.

It is true that Smead subsequently acquired an interest in the land; but at the time of the transaction in question he had no interest whatever except that of an attorney to do what the parties directed him to do. At that time the land had not greatly increased in value, and there was no temptation to him to misrepresent the facts to the plaintiffs if he had had the mind and disposition to do so. All the parties seemed to have had the same end in view, and that was to settle the matter of title to the land, so that, in the event a well was brought in on the nearby land, they might have a clear title to the land in question and execute oil and gas leases with profit to those interested.

It is fairly inferable that all the interested parties knew that no profitable leases could be made unless the title to the land was settled, or unless all the parties claiming an interest in the land would sign the leases. To accomplish this end, the parties appear to have executed the instruments in question in this case for the purpose of settling the title and transferring -to each other the part which each of the interested parties was to receive for his share.

It was not a question so much as to whether the claims of Drucilla Newton and Ben Murphy could be established by legal proceedings as it was to have the matter definitely settled, so that, if oil or gas was found in the neighborhood, the interested parties might be ready to execute leases. Some small sums of money in addition to the royalty interests were given to the plaintiffs.

Therefore we have reached the conclusion, after a careful review, that the allegations of fraud in the execation of the deeds and leases was not established by the plaintiffs within the rales of law above announced.

It follows that the decree must be reversed, and the cause will be remanded with directions to dismiss the complaint for want of equity, and for further proceedings in accordance with the principles of equity and not inconsistent with this opinion.


author: Wood, J.

text:
    Canada v. State.
    Opinion delivered June 22, 1925.
    1. Intoxicating liquors — weight and sufficiency of evidence.— As the weight and sufficiency of evidence is for the jury, testimony of one witness who positively identified appellant as the man from whom he purchased a pint of whiskey is sufficient to support a conviction of selling whiskey.
    2. Intoxicating liquors — unlawful sale — evidence.—In a prosecution for selling whiskey, testimony of witnesses that they found mash and what they termed “a common country still” on or near defendant’s premises was admissible as tending to show that defendant was engaged in the whiskey business.
    3. Witnesses — impeachment of accused on cross-examination.— It was not error to permit the State on, cross-examination to' ask the accused whether he had ever been convicted of any offense.
    Appeal from Sebastian Circuit Court, Greenwood District; JolmE. Tatum, Judge;
    affirmed.

      R. A. Rowe, for appellant.

      H. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Wood, J.

:The appellant was indicted for the crime of selling intoxicating liquor. He was tried and convicted and sentenced by judgment of the court to imprisonment in the State Penitentiary for -a period of one year, from which judgment he prosecutes this appeal.

Earl Bolin, a witness for the State, testified in August, 1924, he bought some liquor. Three boys went out in a Ford car in daylight across the first bridge out of town to get some whiskey. As they got across the bridge, Harry Adams, one of the boys in the car, got out, and -witness and Satterfield drove on up the road and turned around. Adams went and got some whiskey. He didn’t have anything to put it in and went back to get a jar. They all got out, .and witness and the other drank the whiskey. Witness could not say for certain who had it, but they drank it, and it was whiskey. On cross-examination -witness stated that he could not say from whom they got it.

Bruce Satterfield, a witness for the State, testified that he knew Adams and Bolin. Witness and Bolin on the night of August 12, 1924, got some whiskey in the Greenwood District of Sebastian County, Arkansas. Adams, Bolin, and witness went to get the whiskey. It was supposed to be Tom . Canada they got it from. They bought a pint and paid $2 for it. Harry Adams bought a pint also and paid the same price. Witness asked Harry Adams where to get it, and Harry told witness. Witness didn’t know where to stop, but Adams did. When witness stopped, Adams went up to the depot and got a pint jar. The man who sold the whiskey was across the first bridge at the Midland Valley Depot. Witness was there in the presence of the man who sold the whiskey. At this point, the following are the questions propounded to witness and Iiis answers thereto :

“Q. Is that the man that sold you the liquor (indicating the defendant) ? A. He resembles the man that sold me the the liquor. Q. I ask you if that is the man that sold you the liquor (indicating defendant again) ? A. Yes, sir. On cross-examination, the, following are questions 'propounded to the witness and his answers thereto: “Q. You could be mistaken about whom you got it from, could you not? A. Well, I could be. Q. But you say this defendant is the man that sold 3rou the whiskey? A. Yes, sir.”

Alfred Stewart, a witness for the State, testified that he was a deputy sheriff. He searched the residence of Tom Canada in August, 1924, and, over the objection of appellant, was permitted to state that they arrested the appellant on the morning of Angnst 13th, and on that evening witness went back out there and brought in two galvanized wash tubs, which witness testified was an outfit which was a “common country still.” "Witness found it about 200 or 250 yards north and a little west of Canada’s house. Witness followed a trail north and found the outfit he designated’as a “common country still” on a branch a little west of the trail. The top tub was over a mash barrel. They poured out part of the mash into the tub. Witness exhibited to the jury a sample of the masli and stated that the barrel had from 12 to 18 inches of mash in it.. As a peace officer, witness had had occasion to examine whiskey and mash, and this whiskey and mash had been run. At that time the defendant was living on Henry Norwood’s place in the Greenwood District of Sebastian County, Arkansas. On cross-examination witness stated that he didn’t see any of the stuff in the possession of the defendant. He didn’t know who put the mash there, of who the tubs belonged to.

Henry Norwood testified for the defendant that he rented to the defendant the house and the little surroundings where he was living- at the time of the occurrence mentioned in the testimony of witnesses for the State. Canada at that time was making ties for the railroad.

Henry Canada, a brother of the defendant, testified that the defendant at the time of the alleged offense was engaged in making ties. He was a cripple, and received $1 a week for his work which he spent for groceries.. Robert Canada, son of Henry Canada and nephew of defendant, also testified to the same effect, and that he never saw a barrel of mash or chops around the defendant’s premises or any outfit of any kind for making liquor. Other testimony by two of defendant’s children was to the same effect.

The defendant, in his testimony, denied that he had sold liquor to Harry Adams and Bruce Satterfield. He denied tlia-t the tubs exhibited to the jury as a “common country still” were his tubs. He had never seen them, hie also stated that he had never had any mash. He made his living making ties. He was afflicted with bone erysipelas, and was a cripple, and could not walk without pain. On cross-examination, over the objection of the appellant, witness was asked if he had ever been convicted of anything, and answered that he pleaded guilty four years previous at Fort Smith in the Federal Court to the crime of having possession of and manufacturing whiskey. He had never been convicted of any thing else. Witness admitted that he was in town on the particular day designated up to eight or nine o’clock when he left to go home in a wagon.

Only one witness positively identified the appellant as the man from whom he purchased a pint of whiskey, but that was sufficient to warrant the verdict. The weight of the evidence and credibility of witnesses is for the jury. Cox v. State, 160 Ark. 283; Nelson v. State, 139 Ark. 13.,

The court did not err in permitting the witnesses to testify that they found mash and what they termed a “common country still” on or near the premises of appellant. These were circumstances which the jury had a right to consider as they tended to show that appellant was engaged in the whiskey business and that he sold liquor as charged in the indictment. Marsh v. State, 146 Ark. 77; Robertson v. State, 148 Ark. 585.

The court did not err in permitting the prosecuting attorney to ask the appellant on cross-examination whether or not he had ever before been convicted of anything. The question was relevant as affecting the credibility of appellant as a witness. Connor v. State, 132 Ark. 531; Shinn v. State, 150 Ark. 215; Bullen v. State, 156 Ark. 148.

Tshere were no errors in the rulings of the court in refusing to grant appellant’s prayers for instruction, or in the instructions which the court gave. The law of the case was declared in conformity with many previous rulings of the court, and it is not therefore necessary to set ont and discuss the instructions in detail. We have considered such assignments of error as were properly preserved in the record and made grounds- of the motion for a new trial.

The record presents no reversible error. The judgment is therefore affirmed.


author: Hart, J.

text:
    Crafford v. State.
    Opinion delivered June 22, 1925.
    1. Criminal law — proof of former testimony. — The court permitted the prosecuting- attorney to read to a witness extracts from his testimony before the grand jury and to ask him whether he had made such statements, to which he replied that he had given such testimony, and that it was true. .H.eld that such testimony was admissible either to refresh the memory of the witness or to imipeaoh him if he had testified to the contrary at the ■trial.
    2. Criminal law — multiplication of instructions. — It was not prejudicial error to refuse an instruction covered by one already given.
    8. Homicide — instruction as to threats* — prejudice.—It was not prejudicial error in a murder case to refuse an instruction that threats made by deceased and communicated to defendant might be considered in determining defendant’s motive at the time of the killing, where a verdict of voluntary manslaughter absolved defendant of malice.
    4. Homicide — voluntary killing — instruction.—Where, in a murder case, the undisputed evidence was that the killing wias intentional, the defense being that it was done in self-defense, it was not error to refuse to instruct as to Involuntary manslaughter.
    5. Homicide — evidence of former quarrel. — In a prosecution for murder, it wias not error to refuse to permit defendant to testify about a difficulty which had occurred between himself and deceased seven years prior to the killing, where there was no proof that a hostile feeling had existed between the parties since that occurrence down to the date of the killing.
    Appeal from Woodruff Circuit Court, Southern District; 0. Otis Bogle, Special Judge;
    affirmed.

      Roy I). Campbell, for appellant.

      II. W. Applegate, Attorney General, and Darclen Moose, Assistant, for appellee.
   Hart, J.

John H. Crafford was indicted for murder in the first degree charged to have been committed by killing Alvin Hutchins on the 4th day of July, 1921, in Woodruff County, Arkansas.

In March, 1925, he was convicted of voluntary manslaughter, and his punishment fixed by the jury trying him at three years in the State Penitentiary. The case is here on appeal.

According to the evidence for the State, John H. Crafford shot and killed Alvin Hutchins at the home of Mrs. Sarah Hopper in the Southern District of Wood-ruff County, Ark., on July 4, 1921. Crafford and Hutchins had both married daughters of Mrs. Hopper and had been associated in business for several years. Hutchins’ wife was dead, and he was living with Mrs. Hopper when he was killed. Mrs. Hopper had all her children there at a family reunion, and they had a picnic dinner some distance from the house. The defendant and his family were there. The defendant drove away somewhere in his automobile and came back after the others had eaten dinner. He was drinking «orne and had a fuss with Mrs. Hopper about the key to his automobile. The defendant took a pistol out of his car and approached the house with it. Mrs. Hopper and her daughter and one son-in-law went in the house. Alvin Hutchins and another son-in-law were out back of the house beating up ice with an ax for the purpose of making ice cream. Crafford went back of the house where Hutchins was, and the persons in the house heard four pistol shots fired right close tog-ether. Some one hollered ‘Oh’, two or three times. After the shooting, Crafford left with the pistol in his hand. There were four pistol wounds in the body of Hutchins. One went in the collar bone, two went in his back above the waist line, and one of these came out just above the navel. One of the shots went in his elbow. No ax or weapon of any kind was found near the body of Hutchins. His body was found six or eight feet from the back steps of the house. Every one in the crowd was sober except the defendant.

According to the testimony of the defendant and of his son, who was with him, Hutchins was advancing upon the defendant with an ax and endeavoring to strike him with it at the time he was shot and killed.

It was also shown by other witnesses that the deceased had made threats against the defendant which had been communicated to him. This brief summary of the evidence shows that the verdict of the jury is supported by the evidence, and no reversal of the judgment is asked on this ground.

The first assignment of error upon which the defendant relies for a reversal of the judgment is that the court erred in allowing the prosecuting attorney to read to Elton Holwell and Mrs. Sarah Hopper extracts from their testimony before the grand jury and ask each of them if he had not made such statements. The extracts from the testimony before the grand jury were read to the witnesses for the purpose of refreshing their memory, and each one stated that he had given the testimony before the grand jury as read to him. In making this contention counsel for the defendant relies upon the case of Brown v. State, 168 Ark. 433. We do not think that case has -any application. There the witness denied that he had testified differently before the grand jury from the testimony being given by him at the trial. Therefore, the court held that it was improper to admit the purported evidence of the witness before the grand jury for the purpose of impeaching him, without first proof that the testimony offered was the correct testimony of the witness before the grand jury. In the case before us each witness admitted that the extract of the testimony before the grand jury had been given by him before that body and stated further that such testimony was true. Thus it will be seen that the testimony was admissible, either for the purpose of contradicting the testimony given by the witnesses at the trial, or as substantive testimony given by them at the trial, after refreshing- their memory from the testimony given by them before the grand jury. Minor v. State, 162 Ark. 136.

The next assignment of error is that the oonrt erred in refusing to give instruction No. 2 asked by the defendant, which reads as follows: ‘ ‘You have a right, in arriving at a verdict in this case, to consider any threats made by the deceased against the defendant, which threats were communicated to the defendant, not only because such threats may show who was the aggressor at the time the killing occurred, but because such communicated threats may show defendant’s motive at the time of the killing.”

That part of the instruction which told the jury it might consider throats communicated to the defendant in determining who was the aggressor, was covered by an instruction given by the court. The court had already told the jury that it might consider previous threats made by the deceased against the defendant, whether communicated to the defendant or not, for the purpose of determining who was the aggressor in the difficulty, and the court is not required to multiply instructions on the same point. But it is insisted that the court erred in not telling the jury that communicated threats might be considered for the purpose of showing the defendant’s motive at the time of the killing. Counsel for the defendant relies upon the case of Lee v. State, 72 Ark. 436, where it was held that in a prosecution for murder antecedent threats by deceased against the defendant which had been communicated were admissible, not only upon the question as to who was the aggressor, but as tending to show motive.

In the case at bar, the defendant was indicted for murder, but was only convicted of voluntary manslaughter. Voluntary manslaughter consists in the unlawful killing of another without malice, express or implied, and it is distinguished from murder by the absence of malice. Bivens v. State, 11 Ark. 455, and Brooks v. State, 141 Ark. 57. Inasmuch as the jury only convicted the defendant of voluntary manslaughter, the question of motive passed out of the case, and the defendant was not prejudiced by the refusal of the-court to give the instruction.

It is well settled in this State that a judgment of conviction will not be reversed unless prejudicial error was committed. Middleton v. State, 162 Ark. 530. In this connection it may be stated that the court fully submitted to the jury the question of excusable or justifiable homicide.

The next assignment of error is that the court erred in refusing to instruct the jury on involuntary manslaughter. There is no element of involuntary manslaughter in this case. As defined at common law and under our statute, substantially declaratory thereof, involuntary manslaughter consists in the killing of another without malice and unintentionally, but in doing some unlawful act not amounting to a felony nor naturally tending to cause death or great bodily harm, or in negligently doing some act lawful in itself, or by the negligent omission -to perform a legal duty. The unlawfulness of the act in connection with which the killing occurs is the element which distinguishes involuntary manslaughter from a killing excusable as by accident- or misfortune. 29 C. J. § 134, p. 1148; State v. Hardister, 38 Ark. 605; McGough v. State, 119 Ark. 57; White v. State, 164 Ark. 517.

According to the undisputed testimony, the death of Hutchins resulted from the voluntary act of Crafford in shooting him four times with a pistol. Thus it will be seen that the killing was intentional and resulted from the use of a deadly weapon. The killing was not the result of an accident at all, but it was intentional on the part of the defendant. His defense was that it was necessary to -shoot and kill the deceased in order to save his own life or save himself from great bodily harm. Therefore, under the authorities just cited, the court -did not err in refusing to instruct the jury on involuntary manslaughter.

Error is also assigned in the refusal of the court to give other instructions asked by the 'defendant. We do not think that this assignment of error is well taken. A comparison of the refused instructions with the instructions given by the court shows that the matters embraced in the refused instructions were fully covered by those given by the court.

Einally, it is insisted that the court erred in refusing to allow the defendant to testify about a difficulty which occurred between the defendant and the deceased in 1914. The killing occurred on the 4th day of July, 1921, and the undisputed testimony showed that they had been friendly during that spring. We think, however, that proof of the difficulty which occurred in 1914 is too remote unless a hostile feeling- had existed between the parties since that occurrence-down to the date of the killing. Therefore,. there was no error in refusing this testimony. Cochrell v. State, 148 Ark. 256.

We find no prejudicial error in the record, and the judgment will be affirmed.


author: McCulloch;, C. J.

text:
    Illinois Bankers’ Life Association v. Byassee.
    Opinion delivered June 29, 1925.
    1. Insurance — lapse of policy — disability claim. — Under a policy of life insurance which also- contained a total disability clause, laipse of the policy by nonpayment of the premium did not operate as a release of the company from any liability on a total disability claim which had arisen prior to such lapse.
    2. Insurance — disability claim — notice,—Under a policy insuring against total disability and providing that in case of such disability notice of a claim therefor should be given within 90 days after its happening, held that an instruction that the failure to give such notice would not bar a recovery if assured did not realize that she was totally disabled within the policy’s meaning was erroneous both because there was no proof that she did not realize her disability and because, in the absence of mental incapaeity, she was hound to ascertain her condition and give notice within the time stipulated.
    3. Insurance — proof of loss — waiver.—While an unqualified denial of liability by the insurer, made before the expiration of the time for making proof of loss or disability, operates as a waiver of such proof, the rule is otherwise where time for such proof had expired before such denial was made.
    4. Insurance — incontestable clause construed. — The two-years’ incontestable clause in a policy of insurance does not exclude the defense of a failure to furnish proof of loss or disability, as such a defense is not a contest of the policy, but an assertion by way of defense of a failure to perform a condition precedent to recovery.
    Appeal from Arkansas Circuit Court, Southern District; George W. Clark, Judge;
    reversed.

      T. E. Helm, for appellant.

      J oseph Morrison, for appellee.
   McCulloch;, C. J.

This is an action on an insurance policy, and was instituted by appellee as administratrix of the estate of Mary A. Nichols, deceased. Appellant issued the policy in controversy to Mrs. Nichols on August 13, 1915, and it contained stipulations for the payment of premiums or assessments, with a further provision that for failure to pay them within the stipulated time all rights under the policy should be forfeited. The policy provided that, upon the death of Mrs. Nichols, the sum of $2000 would be paid to her husband, and that one-half of the policy would be paid to the assured herself on due proof that she had become “permanently and totally disabled as the result of accident or disease.” The policy referred to the by-laws of appellant association and in express terms made them a part of the contract, and there was a provision in the by-laws requiring proof of loss, either on account of death or disability, and that such notice should be given within ninety days “after the death of said member or policy holder, or the happening of total and permanent 'disability,” and stipulated that any claim on account of death or disability “shall be forfeited by failure to furnish proof within the time and in the manner above prescribed.”

Mrs. Nichols died on August 26, 1921, and the present action was instituted on December 22, 1923, to recover one-half of the amount of the policy for alleged total disability of the assured. It is undisputed that the premium, or assessment, due on the policy in January, 1921, .was not paid, and that the policy lapsed. It was alleged, however, that the total disability of the assured occurred prior to the time that the policy lapsed and that the company is liable, notwithstanding the subsequent lapsing of the policy.

Appellant defends on the ground that proof of loss was not made within the time prescribed by the by-laws, and that there is no liability for disability which occurred after the time that the policy lapsed.

The court submitted the case to the jury, and there was a verdict in favor of appellee.

The evidence adduced by appellee was sufficient to establish the fact that Mrs. Nichols sustained total physical disability on account of disease in October, 1920, and that she continued in that condition until she died on August 26, 1921. The testimony is to the effect that she became ill with tuberculosis, and that she was continuously 'confined to her bed, growing gradually worse, but that she was hopeful of recovery up to the time of her death. The proof tends to show that tuberculosis developed following a spell of influenza. After the policy lapsed on account of failure to pay the January, 1921, assessment, there was no communication between the company on the one part and the assured or any one else with reference to the policy until there was a letter written by a friend of the family on July 5,1923, in which appellant was informed of the death of Mrs. Nichols on August 26, 1921, and that she had become totally and permanently disabled prior to January 1, 1921, and request was made of appellant to make payment of the total disability claim under the policy. Appellant, through its authorized agent, replied to that letter under date of July 10, 1921, as follows:

“In re: Mary A. Nichols.
“Dear Sir: Replying to your letter of July 5, in regard to the above policy, we are sorry to be obliged to advise each and every right under said policies and each of them ceased immediately upon the expiration of the grace period allowed after the last premium expired. In other words, policy No. 34508 became lapsed on account of failure of the insured to pay the premium which was due January 1, 1921, and policy No. 34507 lapsed on account of failure of the insured to pay the premium which was due January 1,1921. This fact is true, regardless of whether the insured, in either or both cases, was disabled at the time of lapsation. You may observe from these policies that, even in event of disability, the insured is obliged to pay the full premium during the continuation of such disability. We regret that there is nothing that can be done in the premises, but under the circumstances related our association is not liable, and, of course, must dismiss the matter from further consideration. ’ ’

The court, in its (charge to the jury, stated that it was undisputed that the policy had lapsed in January, 3 921, but that the lapse of the policy did not operate as a release of the company from any liability on the total disability claim which had arisen prior to that time. That statement is undoubtedly correct, aiid was then, and is now, conceded by counsel for appellant to be correct. The court charged the jury, however, that the right to recover on the total disability claim would not be barred by failure to make proof of loss in accordance with the by-laws of appellant association if Mrs. Nichols “did not know and did not realize that she was totally and permanently disabled within the meaning of this policy of insurance.” This instruction was erroneous for the reason that, in the first place, there was no evidence that Mrs. Nichols did not know of her disability. The proof is undisputed tbat sbe had tuberculosis and continued to grow worse until she died, and that she was hopeful of her recovery, but there is nothing to indicate that she was oblivious of her condition or was mentally incapacitated. The charge of the court on this subject was incorrect for the further reason that the policy lapsed nearly eight months before the death of Mrs. Nichols, and, as no liability could accrue for disability, or otherwise, occurring after that time, the assured was bound to ascertain her condition and give notice within the time stipulated in the policy.

The court also erred in submitting to the jury thet question whether or not appellant’s letter written on July 10, 1923, denying liability on the policy constituted a waiver of proof of loss. An unqualified denial of liability before the expiration of the time for making proof of loss operates as a waiver, but not so where the time for proof of loss has already expired. Smith v. American National Ins. Co., 111 Ark. 32. The reason for the distinction as to the time when the denial of liability occurs is that if there is a denial before the expiration of time for making proof, the requirement is waived, inasmuch as it would fbe useless for the assured to present proof of a claim where liability was already denied; but after the expiration of the time for filing proof the company is permitted to defend on any legal ground which may exist without specification or statement in the communication between the parties as to what the defense will be. Under those circumstances the insurance company is not bound to respond at all to the demand, and If it does so it is not bound by any statement as to the gTounds upon which liability will be denied in any action in which it is asserted.

Counsel for appellant contend that the two years incontestable clause in the policy excludes the defense of failure to furnish proof of loss. Not so. That clause has no application to the requirement for furnishing proof of loss. The defense of failure to make proof of loss under the policy is not a contest of the policy itself, but it is an assertion by w-ay of defense of a failure to perforin a condition precedent to recovery.

It is, as before stated, conceded that there is no liability under this policy on a death claim- — in fact, the suit was not brought to recover on that feature of the policy — and according to the undisputed evidence in the case the right to recover on the total disability claim is barred by failure to make proof of loss.

No useful purpose would be served by remanding the cause for a new -trial, so the judgment will be reversed, and the cause dismissed. It is so ordered.