author: Smith, J. McCulloch, C. J.,

text:
    Smith v. House.
    Opinion delivered March 31, 1924.
    1. Appeal and error — depositions—filed after term. — Depositions filed after the term at which the case was decided,- where no time w'as given for so filing them, will not be considered on appeal, though the parties stipulate that they constitute all the evidence introduced at the trial.
    2. Appeal and error — presumption from absence of evidence. — • On appeal, where the evidence heard at the trial is not before the court, there is a conclusive presumption that the chancellor’s findings of fact are supported thereby.

      Appeal from Ouachita Chancery Court; J. Y. Stevens, Chancellor;
    affirmed.

      J. W. Warren, for appellant.

      J. W. House, Jr., for appellee.
   Smith, J.

Appellant brought this suit to cancel an oil and gas lease which lie had given appellee. He alleged that the lease was void as being without consideration, and that the lease had forfeited by reason of the failure of the lessee to pay the rent within the time limited by the terms of the lease.

Appellee insisted that the rent had been paid in apt time, but that, if this had not been done, appellant had waived the right to declare a forfeiture. The court held that there had been a waiver of the right to declare a forfeiture, and dismissed the complaint as being without equity.

Upon the issues thus joined the court heard oral testimony, and the decree recites that “said testimony is to be reduced to writing by the stenographer (who was named), and filed as depositions in this cause.” No time was stated, however, in which this might be done.

The chancery court of Ouachita 'County, in which the cause was heard, met quarterly in March, June, September and December, and the cause was heard at the March term of the court.

The stenographer transcribed her stenographic notes and filed the transcription as depositions in the case on September 21, 1923, and on the same date a stipulation of the opposing counsel was filed which reads as follows: “It is agreed by and between the attorney for appellants and the attorney for appellee that the depositions of W. S. Pace, W. A. Smith and J. W. House, Jr., as certified by Nina C. McCormick as stenographer, together with the copy of the leases attached thereto, constitute all the evidence introduced on the trial of said cause.”

Between the March term of the court, when the cause was heard, and the filing of this stipulation, the June term of the court had intervened and had been held.

The majority of the court have therefore concluded that, inasmuch as no time was given for the filing* of the depositions heyond the term of the court at which the testimony was heard and the decision of the court rendered, the depositions were not filed as required by law, and the oral testimony is not therefore properly before us for review, and, this being true, there is a conclusive presumption that this testimony supported the chancellor’s finding* on the questions of fact presented by this testimony. This, in the opinion of the majority, is the effect of the decisions of this court in the cases of McGraw v. Berry, 152 Ark. 452, and Harmon v. Harmon, 152 Ark. 129. The Chief Justice and the writer do not concur in this view.

It follows therefore that the decree of the court below must be affirmed, and it is so ordered.

McCulloch, C. J.,

(dissenting). I express no opin-

ion concerning* the merits of this case — the majority having expressed no opinion on that subject — but I dissent from the view taken by the majority that we cannot consider the testimony as a part of the record because the stipulation of counsel was not filed during* the term. The cases relied on by the majority, as well as the later cases of Road Improvement District v. Stroud, 153 Ark. 587, and Sercer v. Hamilton, 155 Ark. 639, involved the effect of the transcript of a stenographer, and not a stipulation of counsel. The statutory method of bringing oral testimony into the record in chancery cases by filing* a certified transcript of the stenographer’s notes, or by bill of exceptions as in law cases, is not exclusive. The parties may file a stipulation as to what the testimony was, and there is no sound or legal reason why that cannot be done at any time before the appeal is heard in the Supreme Court. The stipulation of the parties should be treated as conclusive, for no one else is interested in the controversy. Of course, the parties cannot make a new case for appeal by stipulation, for that would constitute an indirect attempt to obtain from this court the exercise of original jurisdiction; but when, as was done in the present case, the parties have filed in the lower court a 'Stipulation as to what testimony was heard by that' court; such stipulation should be treated as conclusive, and the effect is not to make a new case here, but to consider the case on the same record and facts that were presented to the lower court. The stipulation of counsel is unlike a bill of exceptions, which depends for its validity on strict compliance with statutory requirements. It amounts to a consent that the case may be heard on the record thus made, and I perceive no reason why it should be rejected.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Linker v. Rachel.
    Opinion delivered March 31, 1924.
    1. Waters and watercourses — casting surface water on another’s land. — Where a person, by ditch, levee or other means, asserts the right continuously to cast surface water in a body on the lands of another, to the irreparable and permanent injury- of the latter, the former is guilty of a private nuisance, which may be abated by injunction.
    2. Appeal and error — conclusiveness of chancellor’s finding.— Where evidence was so conflicting that the Supreme Court could not say that the findings of the chancellor were against the weight of evidence, they will not be disturbed on appeal.
    Appeal from Pope Chancery Court; W. E. Atkinson, Chancellor;
    affirmed.

      Hays, Pridcly & Hays and Ward & Caudle, for appellant.
    A riparian proprietor has the right to have the water of a stream flow down to his land as it is wont to run in its natural mode or course. '27 R. C. L. 1091. He may erect any work, bank, etc., in order to prevent his land being overflowed by any change in the course of the stream. 27 R. C. L. 1108; 241 H. S. 351. Any landowner may defend against flood waters without incurring liability for damages, unless injury is necessarily inflicted upon another, which, by reasonable effort and expense, could be avoided. 95 Ark. 345. Surface water is a common enemy against which a landowner may defend. 123 Ark. 1. See also 157 Ark. 618.

      Robert Bailey, for appellee.
    The stream is a watercourse within the definition found in 125 Ark. 364; 9 A. L. R. 1200; 24 L. R. A. (N. ■S.) 214. Regardless of whether the stream was a watercourse, appellant had no right to erect the wall so as to throw the water on appellee’s land. 93 Ark. 46. Every landowner is entitled to have a stream flow in its natural and accustomed course, without obstruction or diversion. 99 Ark. 128; 143 Ark. 486; 135 Ark. 407; 99 Ark. 128. See also 27 R. C. L. 1153. Findings of a chancellor not -clearly against the preponderance of the evidence will be sustained. 157 Ark. 600; 157 Ark. 618. Where a person by ditch or other means asserts his right continuously to cause surface waters to flow upon the lands of another, the injured party may abate the nuisance by injunction. 157 Ark. 618; 20 R. C. L. 402; Id. 472; 99 Ark. 574. The fact that the land was purchased after the diversion does not prevent the issuance of an injunction. 27 R. C. L., 1136, § 67.
   Smith, J.

This is a suit for a mandatory injunction to compel appellant, who was the defendant below, to remove a wall erected by him on his' own land, and there was a prayer for damages resulting from its erection. The decree rendered in the cause states the theory upon which the relief was prayed and granted, and we copy •the following recital from it: “There is a small watercourse which runs for a short distance between the plain- ■ tiff’s and defendant’s land, and then turns and flows directly through the lands of the defendant; and that the bed of said stream is shallow, and in times of rain the surface water, if left unobstructed, overflows most of the defendant’s land; that the defendant had constructed a strong rock wall near the line between the plaintiff’s and defendant’s land, but upon the lands of the defendant; that said wall is about three feet high, and reclaims a large part of defendant’s land from .the overflow by obstructing tbe natural flow of such water and so diverting it that it overflows and injures the plaintiff’s land.” The court found that the building and maintenance of the wall was a nuisance, and that the same should be removed so that the water might flow in its natural course, and ordered that the wall be removed and that plaintiff recover the sum of $50 to compensate the damage which its erection had occasioned. This appeal is from that decree.

Fifteen witnesses testified in the case, the majority of them on behalf of the plaintiff, and in the examination and cross-examination of most of these witnesses their testimony was illustrated by reference to a well-drawn map, which is before us. Without the use of this map, much of this testimony would be meaningless, but even with it much of the testimony is difficult to understand. The chancellor, no doubt, experienced the same difficulty, and the record recites that he visited the locus in quo in company with the attorneys representing* the litigants, this being done, no doubt, to enable him to better understand the testimony, but we, of course, review this testimony de novo, and must base our decision upon the testimony as it appears to us from the printed record.

The wall erected by appellant is 48 yards long, 3 feet high and 2% feet wide, and it is very clear that its' erection has deflected the course of water which formerly flowed over his land — indeed, it was built for that purpose. Appellant insists, however, that the water thus deflected was mere surface water flowing over the land, without having a defined course, and that he has neither changed nor deflected any defined watercourse.

The testimony on the part of the plaintiff tended to show that there was formerly a watercourse having well-defined banks and bed, which ran from siix to eight months each year, and, during the dry season, after every rain, and that the wall had so diverted its course that it turns and pours out its waters on plaintiff’s land, and lost its identity as a watercourse after doing so.

The court evidently credited this testimony and based his decree on it, and, while the testimony is conflicting as to how the water was accustomed to flow and as to the effect of the wall, we are unable to say that the finding of the court is clearly against the preponderance of the testimony.

In the case of Morrow v. Merrick, 157 Ark. 618, there was a prayer for a mandatory injunction to compel the defendant to remove a levee and to fill a ditch which were alleged to have diverted the natural flow of surface water on the plaintiff’s land in a body. The controlling facts in that case are very similar to those in the'instant case, and the law as there announced g’overns here. We there said: “Where a person, by a ditch or levee, or other means, asserts his right to continuously cast the surface waters in a body upon the lands of another, to the irreparable and permanent injury of the latter, the party causing such injury is guilty of a private nuisance. The party injured may, if he so elects, resort to a court of chancery for a mandatory injunction to abate such nuisance and to have the offending party forever enjoined thereafter from causing and maintaining such nuisance.” (Citing cases).

What we there said about reviewing testimony on appeals in chancery cases is also applicable here, and, as we are unable to say that the findings of the chancellor are contrary to the preponderance of the evidence, the decree based on the findings made must be affirmed, and it is so ordered.


text:
    St. Louis-San Francisco Railway Company v. A. B. Jones Company.
    Opinion delivered March 31, 1924.
    1. Carriers — evidence op market price. — In an action against a carrier for -loss from depreciation in the market price of sugar caused by delay in transportation, admission of evidence of the market price at a city near the destination was not error where the evidence showed that the market price at such city controlled the market price at the destination.'
    2. Carriers — delay in transportation — damages.—Where a railway car was loaded with sugar of an inferior grade and hill of lading was issued therefor, and, with the carrier’s consent, the sugar was removed and a better grade substituted, without altering the bill of lading, the carrier is liable for depreciation in the price of the better grade, caused by delay in transportation.
    3. Appeal and error — instruction—specific objection. — Where,' in an action for damages by depreciation of sugar by reason of defendant carrier’s delay in transportation, the court, in stating the measure of damages, treated the price for which the plaintiff sold the sugar as the market price on the day of its delivery, objection to the instruction should have been specific.
    4. Appeal and error — instruction as to measure of damages.- — In an action for depreciation in value of sugar by reason of defendant carrier’s delay in transporting it, the court’s instruction that the measure of damages was the difference between the price-the plaintiff sold the sugar for and the market price on the day it should have been delivered was not prejudicial, in the absence of a showing that plaintiff sold the sugar for less than the market price at the time of delivery.
    Appeal from Craigbead Circuit Court, Jonesboro District; W. W. Bandy, Judge;
    affirmed.

      W. F. Evans, W. J. Orr and E. L. Westbroohe, for appellant.

      Hawthorne, Hawthorne & Wheatley, for appellee.
    If there was any error in instructing the jury as to the damages in transporting tlie substituted sugar, it was invited by appellant, and it cannot now .complain. 132 Ark. 450; 139 Ark. 90; 141 Ark. 280; 142 Ark. 223; 143 Ark. 376; 150 Ark. 371. Objections not raised in the trial court will not be considered on appeal. 150 Ark. 12; 150 Ark. '258 ; 137 Ark. 495; 132 Ark. 511; 134 Ark. 136; 133 Ark. 206; 136 Ark. 272; 143 Ark. 376; 144 Ark. 227; 148 Ark. 456; 139 Ark. 143; 147 Ark. 292; 142 Ark. 159. The court will not reverse for harmless error, or where the undisputed, proof shows the verdict is proper. 99 Ark. '226; 148 Ark. 654; 228 S. W. 388; 135 Ark. 602; 137 Ark. 387; 145 Ark. Ill; 150 Ark. 307; 131 Ark. 547; 135 Ark. 440; 141 Ark. 310; 60 L. ed. 511. The evidence must be viewed in the light most favorable to- the appellee. 143 Ark. 122; 142 Ark. 159; 147 Ark. 206. And the verdict must be upheld if supported by any legal evidence. 136 Ark. S4; 141 Ark. 88; 142 Ark. 159; 134 Ark. 3.00'; 228 S. W. 388.
   Smith, J.

Appellee is a corporation operating wholesale grocery stores, with its principal place of business at Jonesboro, and branch stores at Mammoth Spring and other places in Eastern Arkansas. On August 6, 1920, it boug’ht a carload of sugar from the Milligan Grocery Company, of Springfield, Missouri, which was billed- out to shipper’s order on that day, to be shipped to the store at Mammoth Spring. The bill of lading was attached to a draft and sent to the Bank of Jonesboro at Jonesboro, and this draft was presented to appellee and was paid by it on August 9, the car of sugar consisting of 400 -bags weighing 100 pounds each.

After loading the car of sugar the consignor discovered that an inferior grade of sugar had been loaded-into the car, and the railroad company was notified of that fact, and, without taking up the bill of lading, the railroad company permitted the consignor to unload the car and to load into the car sugar of the grade which appellee had ordered. The reloading of the car was completed on the morning of the 7th, and, while it is not. definitely shown that the car was turned back to the railroad at.that time, we think the jury might fairly have drawn that inference from the testimony.

There was never but' one bill of lading, and the car moved under it, and was delivered to appellee- -at Mammoth Spring upon presentation of this bill of lading, it being the one which the shipper had attached to’ the draft.

’ The testimony does not show when the car left Springfield, but the testimony does show that it was not delivered at Mammoth Spring until August 18. The testimony also shows that the schedule time of a freight train from Springfield to Mammoth Spring is about 9% hours.

This sugar was bought just before the break in the market price of that commodity, but the price began to decline about the time of its purchase, and declined so rapidly thereafter that the market price had gone off after the car was loaded as much as four cents a pound by the time the car was delivered.

Suit was brought to recover the loss thus sustained on account of the delay in the shipment, and the jury fixed the loss 'at three cents per pound, and judgment was rendered accordingly, and this appeal is prosecuted to reverse that judgment.

Objection was offered to testimony showing the market price of sugar at Jonesboro, the ground of the objection being that the market price at Mammoth Spring, the place of delivery, was controlling on that issue. This is true, but no error was committed in admitting this testimony, because it was shown that the market price at Mammoth Spring was controlled by the price at Jonesboro. Arkansas Short Leaf Lbr. Co. v. McInturff, 134 Ark. 284; Westbrook Grain & Milling Co. v. Johnson, 134 Ark. 300; Batte Bros. v. Battle, 139 Ark. 302, 307; Moore v. Ziba Bennett & Co., 147 Ark. 217, 228.

Appellant asked an instruction, numbered 2, to the effect that a verdict should be directed in its favor because there was no evidence showing when the car, as reloaded, was turned back to the company for shipment. It also asked instructions numbered 3, 4 and 5 to the effect that, if the bill of lading was issued for sugar of a different grade from that purchased, there could be no recovery on the bill of lading issued.

Instruction numbered 2 was properly refused because, as we have said, the jury might have drawn the inference from the testimony that the car was turned back to the shipper for the purpose only of correcting the mistake of loading the wrong sugar, and that the car was subject to the railroad’s control as soon as this was done, and could have been moved as soon as the reloading was completed, which the testimony shows was done by noon of August 7.

Appellant insists that the other instructions should have been given on the authority of the Federal Bills of Lading Act, which went into effect January 1,-1917.

It may be conceded that, as this was an interstate shipment, this act of Congress would govern, in so far as its provisions are applicable to the points in issue, and it is the insistence of the railroad company that, under the provisions of this act, the company, if liable at all, is liable for the value of the sugar first loaded into the car as for a conversion of it by reason of its failure to deliver that sugar to the consignee, and is not liable for any depreciation in the value of the sugar delivered, because it was not covered by the bill of lading which it issued.

We think this is the real question in the ease, but, under our view, no question is presented which requires a construction of the Federal statute to arrive at the proper answer thereto.

The bill of lading covered 400 bags of sugar, weighing 40,400 pounds, loaded in car P. & B. 2961, and this car, containing that quantity of sugar, was delivered to the consignee at Mammoth Spring* — the grocery company becoming the consignee upon payment of the draft, which entitled it to the possession of the bill of lading. It was no concern of the railroad company whether the sugar shipped corresponded to the sugar ordered. Its duty was to deliver, without unnecessary or unreasonable delay, the sugar covered by the bill of lading. It is true the sugar first loaded was not shipped, but the consignor substituted other sugar for this, to be shipped in lieu thereof, the same quantity, in the same ear, and on the- same bill of lading. The railroad company did not ask the surrender of the old bill of lading and the consignor did not request the issuance of a new one.' By consent, both parties treated the sugar shipped as the Sugar covered by the bill of lading*, and'the consignee - accepted it as such. The sugar delivered was the sugar ordered, but, as we have said, it was no concern of the railroad company whether the sugar met the specifications of the order or not.

The bill of lading issued covered the car of sugar tendered for shipment, and this was the substituted car of sug’ar, and it covered only that car. It was not contended that any fraud or imposition was practiced on the railroad company, or that its freight rates or its duty as a carrier would have been altered or affected if the substitution had not been made. The bill of lading did not specify the grade of the sugar, and the description employed in the bill of lading was simply “400 bags sugar, double sacks, 40,400 pounds.” That number of sacks, totaling that weight, were replaced in the same car, to be shipped to the same consignee, under the bill of lading already issued, and this with the full knowledge of the railroad’s agent who issued the bill of lading. The railroad company cannot therefore excuse its delay in delivering this car by showing that the consignor had substituted one car of sugar for another.

If we are correct in this, it follows that appellant is in error in insisting that the suit should have been brought for the value of the sugar first loaded into the car, and should not have sued for depreciation in the value of the sugar which was in fact shipped.

The instruction given by the court substantially conformed to the law as we have declared it, and we need not discuss the specific objections made to these instructions, as they raise the points here'decided adversely to appellant’s contention.

After the court gave its general charge, the attorney for the railroad company made specific objections, raising the questions which we have just considered, after which the court gave the following- additional instruction: “ * * If you find from the proof that a different kind of sugar was substituted for the sugar first loaded for shipment, and that this reloading was completed on August 7, and that, after it was reloaded, it was tendered to and accepted for shipment to Mammoth Spring by the defendant railroad company, and that the freight charges, were paid for its transportation, and if you further find that the delay in the transportation was an unnecessary delay, and that, by reason of this unnecessary delay in the shipment, plaintiff, as a direct result thereof, sustained loss, then your verdict should be for the plaintiff. The burden of proof, gentlemen, is on the plaintiff to show that this substituted sugar was presented to the railroad company for shipment, and that it was accepted by the railroad company for shipment and the freight paid for its transportation.”

An exception was duly saved to the giving of this instruction, and it is now insisted that this instruction accentuated the error of the general -charge. But we think the instruction was a correct declaration of the law.

It also insisted that an erroneous instruction was given on the measure of damages. On this subject the court charged the jury as follows: “If you find for the plaintiff, the measure of damages will be the difference between the price plaintiff paid for the sugar and the market price of the sugar on the day that the sugar should have been delivered at Mammoth Spring if there had been no unnecessary delay in the transportation. The difference between the price the plaintiff sold the sugar for and what the market price of the sugar was on the day it should have been delivered at Mammoth Spring, if there had been no unnecessary delay in the transportation. ’ ’

This instruction was given orally, and it appears that' the judge realized that the first part of the instruction was not accurate in that it did not require the jury to find the difference in market value at Mammoth Spring, but there was an attempt to correct this error by making the price at Mammoth Spring controlling. It is true the instruction told the jury the measure of damages was the difference between the price the plaintiff sold the sugar for and what the market price of the sugar was on the day it should have been delivered if there had been no unnecessary delay in the transportation. The court evidently treated the price for which the plaintiff sold the sugar as the market price on the day of its delivery, and this was a mistake which, if thought prejudicial, should have been reached by a specific objection. The latter part of this instruction indicates that the court was attempting to make the measure of damages the difference between the market price on the day the sugar was delivered at Mammoth Spring and' the market price on the day when it would have been delivered had there been no delay in the delivery, and treated the price at which it was sold as being the market price. As we have said, there was no specific objection to this. Moreover, it does not appear to be prejudicial, because there was no showing that the plaintiff sold the sugar for less than the market price at the time of its delivery.

There appears to be no error, and the judgment is affirmed.


author: McCulloch, C. J.

text:
    Wisconsin & Arkansas Lumber Company v. Jackson.
    Opinion delivered April 7, 1924.
    1. Master and servant — negligence—jury question. — In an action for personal injuries received by a section-hand in the derailment of a motor-car in which he was riding, evidence of the master’s negligence held to make a question for the jury.
    2. Master and servant — injury to servant — instruction.—In a section-hand’s action for injuries received in the derailment of a motor-car, where plaintiff was injured while hauling ties, it was not error to refuse defendant’s request for instruction that, even though the track was in bad order, it was not negligence to send plaintiff and others to repair it.
    3. Master and servant — personal injury — instruction.—Where, at the time when plaintiff was injured, he was hauling material for use in repairing-tracks at a place other than the point of derailment of the motor car, and was acting under the immediate direction 'and control of a foreman, there was no error -in instructing the jury that it was the duty of defendant to exercise ordinary care in the operation of its motor-car and to see that its track and roadbed were kept in a reasonably safe condition.
    4. Master and servant — rule as to servant injured while making repairs. — The rule that a servant engaged in making repairs has the duty of providing adequate means of safety and that the master owes him no duty to exercise care in the selection of a reasonably safe place to work had no application where a section-hand, at the time he was injured, was hauling material for use in repairing a railroad track at a place other than the place of his injury, and he had a right to rely upon the master to sée that the track was in reasonably safe condition.
    5. Master and servant — assumed risk.- — In a section-hand’s action for personal injuries from derailment of a motor-car, alleged to have been caused by a, defect in the track, where plaintiff had no control over the operation of the motor-car, .and there was an issue as to whether he was sufficiently informed as to the extent of the defects in the track as. to appreciate the damage, the issue of assumed risk was for the jury.
    6. Appeal and error — invited error.- — Where a witness for defendant, on direct examination, stated that defendant’s log road was the best he had ever seen, any error in permitting the witness to be cross-examined concerning train wrecks on the road was invited by the defendant.
    7. Appeal and error — admission of evidence as harmless error.— In a section-hand’s action for injuries sustained from derailment of a motor-car, where the complaint charged negligence in the structure and condition of the motor-car, plaintiff’s testimony that he had never seen a similar motor-car, and had never before ridden on the motor-car, was not prejudicial.
    Appeal from Saline Circuit Court; Thomas E. Toler, Judge;
    affirmed.

      E. B. Kinsworthy and B. 8. Kinsworthy, for appellant.
    The court erred in allowing testimony to be introduced as to other accidents. 58 Ark. 454; 130 Ark. 493; 78 Ark. 55. The court erred in admitting the testimony of the plaintiff ns to the use of the motor-car, for the reason that he was not an expert. 108' Ark. 437; 110 Ark. 90; 66 Ark. 494. A servant is presumed to know the ordinary risks. It is his duty to inform himself of them, and, if he negligently fails to do so, he will be held to have assumed them. 77 Ark. 367; 81 Ark. 343-; 97 Ark. 486; 100 Ark. 462; 101 Ark. 537; 104 Ark. 489; .106 Ark. 574; 108 Ark. 483; 118 Ark. 304; 147 Ark. 95; 68 Ark. 316.

      D. D. Glover and Mehaffy, Donham <3 Mehaffy, for appellee.
    There was no error in permitting testimony as to other accidents. Thompson on Negligence, § 7849; 83 ■S. W. 592; 48 Ala. 15.
   McCulloch, C. J.

Appellant has been engaged in the business of manufacturing lumber at its plant in Hot Spring County, and, as an adjunct to the plant, it operated a railroad for the purpose of hauling* logs and lumber to and from its plant and for the purpose of transporting* its employees to and from their places of work. The evidence, so far as developed in the present record, shows that the railroad was not operated as a public carrier, but merely for the private use of appellant in the operation of its manufacturing* business.

Appellee was employed as a section-hand, and on January 15, 1923, while riding on a motor-car hauling ties to be used in repairing the track, a derailment of the car occurred, whereby appellee received severe personal injuries. He instituted this action against appellant to recover damages, alleging negligence on the part of appellant in failing to maintain the track in proper condition and in using a motor-car which was not properly constructed. The complaint contains no allegations as to negligence with respect to -the speed of the car at the time the wreck occurred, but both sides, without objection, introduced proof on that issue, and there is a conflict as to whether there was negligence in operating the car at'too high a rate of speed. It is undisputed that the car was wrecked, that appellee was thrown therefrom and seriously injured. On the trial of the cause the jury returned a verdict in favor of appellee, awarding damages in the sum of $3,000, the amount claimed in the complaint. Appellant denied the allegations of negligence, and also pleaded contributory negligence and assumption of risk.

The evidence is sufficient to establish the fact that the track was out of repair at the place where the derailment occurred; that the ties were rotten, so that they would not hold spikes, and that there was a depression of the ties, called a “low joint,” and that this defect in the track caused the derailment. The evidence shows that appellant was thrown from the car, that some of the cross-ties which were being carried on the car were cast upon appellant’s body, and that he received serious injuries.

There is nothing in the testimony which would warrant a finding of contributory negligence on the part of appellee, and the disputed issues of fact involved in the trial of the cause relate to the question of negligence on the part of appellant and assumption of risk on the part of appellee.

The section crew was composed of seven men, who worked in two divisions. At the time of appellee’s injury he was working- in the division composed of four men — a foreman and two other laborers besides appellee • — and they were engaged in hauling and distributing ties to be used in repairing defects in the track. They used a motor-car, which was operated by the foreman as driver or engineer, and six ties were loaded on the car on each trip. All of the men rode on the car, except when they were pushing it along giving it a start. The other part of the crew, composed of three men, was engaged in repairing the track and placing new ties thereon after same were hauled and distributed, and they worked under the direction of the same foreman.' At the time the derailment occurred the crew of men putting in ties was working at a point about a mile „or three-quarters from the place from which the ties were hauled, and the derailment occurred about midway between the two points. The ties were being hauled to the place where the other part of the crew was at work repairing the track. The derailment occurred at a curve, where the track was shown to be out of repair, and, as before stated, there was a conflict in the testimony as to the speed at which the car was being operated when the derailment occurred.

Appellant requested a peremptory instruction in its favor, and we are of the opinion that the instruction was properly refused, for the reason that there was sufficient evidence to warrant the submission of the issues to the jury.

Counsel' for appellant also insist that the court erred in refusing to give the following requested instruction;

“8. The. court instructs you that, even if you find that the defendant railroad was in bad order, it was not negligent in sending the plaintiffs and others out to repair the same.”

We are of the opinion that this instruction was peremptory in effect, and was properly refused, for appellee, at the time he was injured, was engaged in the general work of making repairs — that is to say, he was connected with the repair crew — and the effect of the instruction would have been a peremptory direction upon the undisputed facts to return a verdict for appellant. Another objection to the instruction is that appellant was not directly engaged in repair work at the time of the injury. While his work was indirectly connected with repair work, it is undisputed that he was hauling ties at the time, and that the repair work was being done by another division of the crew.

It is contended that the court erred in giving the following instruction at the request of appellee:

“4. You are instructed that it was the duty of the defendant company to exercise ordinary care in the operation of its motor-car, and ordinary care to see that its track and roadbed were kept in a reasonably safe condition, and you are further instructed that this duty required the company to make reasonable inspection to see that they were kept in a reasonably safe condition.”

As the basis of the objection to this instruction, counsel for appellant invoke the rules of law announced by this court that, while a servant is engaged in the business of wrecking or tearing down a structure or appliance, as in Grayson-McLeod Lbr. Co. v. Carter, 76 Ark. 69, and Murch Bros. Const. Co. v. Hays, 88 Ark. 292, or is engaged in the business of making repairs, as in St. L. I. M. & S. Ry. Co. v. Harper, 44 Ark. 524; Railway Co. v. Torrey, 58 Ark. 217; Southern Anthracite Coal Co. v. Bowen, 93 Ark. 140; Stout Lbr. Co. v. Wray, 109 Ark. 288; and Arkansas Land & Lbr. Co. v. Cooper, 156 Ark. 58, the duty of providing adequate means of safety devolves on the servant himself and not on the master, and that the latter owes the former no duty to exercise care in the selection of a reasonably safe place of work. We do not think that the principles of la.w thus relied on are applicable to the present case, for, according to the testimony adduced, appellant was not engaged in the work of actually making repairs. He was merely hauling material for that purpose, and was acting under the immediate direction and control of his foreman. Nor were the ties being hauled for use at the particular place where the wreck occurred. It is true, as before stated, that appellee was engaged in a general branch of repair work, and he assumed all the dangers ordinarily incident to that service; he knew that there were defects to be repaired and that the track was not in absolutely safe condition, yet he had the right to rely upon the exercise of ordinary care on the part of his employer to see that the track was in a reasonably safe condition for the operation of the work of hauling and distributing ties. In the case of St. L. I. M. & S. Ry. Co. v. Morgart’s Admx., 45 Ark. 318, which was a suit to recover damages for personal injuries received by the conductor of a gravel train, the court said:

“A railroad track is constantly wearing out, and requires frequent renewals. And it is often necessary for gravel and construction trains to go over and upon unsafe portions of the track to transfer the materials needed for making repairs. The duty of the company, under such circumstances, is to give timely notice of the insecurity, so that the necessary precautions may be adopted to avert danger.”

This statement of the master’s duty of course implies that ordinary care will be exercised to see that the track is in a reasonably safe condition, so that, with proper notice to the servants operating a train, the danger from existing defects may be obviated. It does not mean that, merely because a servant is engaged in repair work, directly or indirectly, the master can ignore all duty to exercise ordinary care for the protection of the servant. The language of the instruction now objected to does not violate the principles of law here announced, but, on the contrary, when considered in connection with other instructions given, it is in conformity with those principles. The statement in that instruction with regard to the duty of a master to exercise ordinary care to “see that its track and roadbed were kept in a reasonably safe condition,” must be read in the light of undisputed facts in the case, and must be construed as having reference to the use being made of the track at that time in the operation of the motor-car. The instruction lays down no rule with reference to measuring the degree of care, but, on the contrary, properly leaves that to the jury to determine under the particular facts of the case. It was a question for the jury to determine under this instruction, as applied to the facts of the case, whether or not it constituted ordinary care to send out a motor-car over the track in the condition that it was shown to be in at the time.

The court gave the following instructions, among others, at the request of appellant:

“6. The court instructs you that, if you find from the evidence that the railroad upon which the plaintiff was at work, and upon which the motor-car was being-operated at the time he was injured, was not a common carrier, but was a private road, built by the defendant for the purpose of hauling logs and lumber over the same, then the court tells you that the defendant would not be required to use any more care in the construction and maintenance of said road than an ordinarily prudent person would do under the circumstances, and, if the road was in such condition and said motor-car was in such condition as an ordinarily prudent person would have kept the same in for the purpose for which it was being used, then the court tells you there was no negligence on behalf of the defendant in this respect.

“7. The court further tells you that, if you find from the evidence that the plaintiff knew the condition of the road and the condition of the motor-car upon which he was at work at the time he is alleged to have been injured, and appreciated the danger, and was as familiar with all the surrounding conditions and circumstances as the defendant or its foreman was, and knew the dangers that were incident to the work he was doing, and was injured without fault of the defendant, then the court tells you that he assumed the risk of doing this work under the conditions under which it was being done.”

These two instructions were as favorable to appellant as could be asked, and were given in the exact language asked by appellant.

The defense of assumed risk can easily be disposed of as one for the determination of the jury. Appellee was charged with no duty of inspection to discover the defect in the track. He had no control over the operation of the motor-car, and it was a question at issue as to whether or not he was sufficiently informed as to the extent of the defects in the track so as to appreciate the danger.

We are of the opinion that the case was properly submitted to the jury, and that there was sufficient evidence to sustain the verdict.

There are certain other assignments of error with . regard to the admission of testimony.

Appellant introduced as a witness its foreman, Mr. Smith, who testified, among other things, that appellant’s log-road was the best one lie had ever seen. On cross-examination of the witness, appellee was permitted by the court to ask the witness concerning train wrecks on the road. Objection was made, and it is insisted that the admission of this testimony was erroneous and prejudicial in that it tended to prove other acts of negligence in support of the charges of negligence in the present case. The answer to this contention is that appellant invited the error by introducing’ testimony in chief as to the road being in an extraordinarily good condition at all times, and it cannot complain of the latitude taken in the cross-examination. And, besides, the answer of the witness was a negative one, or at least non-committal as to the facts, and therefore no prejudice could have resulted.

Again, it is insisted that the court erred in allowing the appellee to answer the question as to whether or not he had ever seen a motor-car like this one used for transporting ties. There was a charge of negligence in the complaint with respect to the structure, type and condition of the motor-car, and this question was asked in connection with that feature of the case, as well as in connection with appellee’s statement as to his knowledge about the use of a motor-car in hauling these ties. Appellant testified that the trip on which the wreck occurred was the first time he had ever been on a trip when the car was moved under its own power, and that at all other times it had been pushed along the track. We can discover no prejudicial effect that could have resulted from this testimony, and it was introduced in connection with the general narrative of appellee as to the operation of the work which resulted in his injury.

Upon the whole we conclude that there is no error in the record, and that the judgment should be affirmed. It is so ordered.


text:
    McNutt v. State.
    Opinion delivered April 7, 1924.
    1. Intoxicating liquors — possession—burden of proof. — In a prosecution under Crawford & Moses’ Dig., § 6169, for possessing intoxicating liquors found in a room occupied by others in defendant’s rooming-house, the burden is on the State to prove that defendant had the liquor in his possession, or that, with knowledge that it was there, he permitted it to remain.
    2. Intoxicating liquors — evidence of possession. — In a prosecution for possessing intoxicating liquor, evidence that liquor was found in the room rented by defendant to another, without any evidence that defendant knew it was there, held insufficient to sustain a conviction.
    3. Criminal law — confession by silence. — In a prosecution for possessing intoxicating liquor, where there was evidence that liquor was found in the room of a lodger in defendant’s rooming-house, a statement by the lodger to the defendant that “they have us now,” was not such an accusation of defendant that his silence would amount to a confession of guilt.

      4. Criminal law — silence as confession of guilt. — To give defendant’s failure to deny a statement the force of a confession by silence, the statement must have necessarily implied, either directly or indirectly, an accusation of guilt.
    Appeal from PnlasM Circuit Court, First Division; John W. Wade, Judge;
    reversed-.

      Isgrig & Dillon, for appellant.
    J. 8. Utley, Attorney General, and John L. Garter, Assistant, for appellee.
   McCulloch, C. J.

Appellant was arrested under an information filed' against him in the municipal court of the city of Little Rock, charging the offense (a misdemeanor) of having intoxicating liquor in his possession, in violation of the statute which makes it unlawful for any person to have in possession, or permit another to have in possession, alcoholic, vinous, malt, spirituous or fermented liquors in or at any fruit stand, restaurant, store, club-room, livery stable, public garage, public park, hotel, rooming-house, etc. Crawford & Moses’ Digest, § 6169. He was convicted in the municipal court, and, on appeal to the circuit court, was again convicted, and has prosecuted an appeal to this court.

The only contention made here for reversal of the judgment is that the evidence is not sufficient to support the verdict of conviction.

The State attempted to prove that appellant had a lot of whiskey in his possession on November 20, 1923, or that he permitted another person, one Hooks, to have possession of the same, in a rooming-house in the city of Little Rock.

Appellant and his wife operated a rooming-house on Rock Street, in the city of Little Rock. The house, contained twenty-seven bed-rooms, and there were about fifty roomers. Fred Hooks and his wife occupied room number ten in the house, and did light-housekeeping. The State introduced as witnesses' two officers who searched the premises, and two other persons who accompanied them, and each of those witnesses testified that they found whiskey in a concealed closet between the floor and. ceiling of the room occupied by Hooks and wife. The witnesses testified that they went to the house in question to search it, and, after searching several rooms, they came to room number ten, which was locked, and they called on appellant to unlock the door. Appellant went off to another part of the house and came back with a bunch of keys, and proceeded to unlock the door. When the door was opened, Hooks and his wife were sitting in the room, and there was a small quantity of whiskey in a bottle on the table. The officers searched the room, and, after rolling up a piece of linoleum on the floor, they found a trap-door, which they raised, and in a closet they found two ten-gallon kegs of whiskey, two cartons of empty bottles, several other full bottles, and also empty containers, a sack, of corks, and a rubber hose. The officers testified that they found crumbled-up' cork on the floor of the closet, and that the door appeared to have been recently sawed out.

According to the proof, appellant did not go into the room immediately, but later, after the stuff was found in the closet, he entered the room, and Hooks walked up to him and said, “They have us now,” to which appellant made no reply.

Hooks was introduced as a witness, and testified that he and his wife lived' in the room, doing light-housekeeping; that he sawed the trap-door in the floor, and bought twenty gallons of whiskey and deposited the same in the closet. He testified that appellant knew nothing about the whiskey being placed there, and had nothing to do with it — that he (witness) bought the whiskey and had it surreptitiously delivered at his room on the Friday night preceding the Monday on which the officers made the raid. He denied that he made the remark to appellant attributed to him by one of the officers who testified. Hooks also testified that neither appellant nor appellant’s wife ever had occasion to go into the room occupied by witness and his wife.

After careful consideration of the case, we are unable to discover any substantial evidence of appellant’s knowledge of or participation in the keeping of the liquor in his rooming-house. The uncontradicted evidence of Hooks is that he (Hooks) bought the liquor and prepared the place for it, and kept it in the room, without the knowledge of appellant. The only testimony which contradicts Hooks is"the statement of the officer in regard to what the latter said to appellant, and as to the time when the trap-door was sawed out. Hooks said that he did the work a few days before he procured the liquor, and the .officers testified that the sawed pieces o£ the trap-door indicated that it had been done a year or two prior to that time. But even a contradiction of Hooks does not constitute affirmative testimony of appellant’s participation in the storing of the liquor. It is true that the evidence shows that the liquor was found in the rooming-house operated by appellant and his wife, but the undisputed evidence shows that it was found in a room occupied by Hooks, and that Hooks and his wife were locked inside the room at the time the officers appeared there and found the liquor. The burden rests on the State to prove that appellant either had the liquor in his possession, or, with knowledge that the liquor was there, permitted it to remain. It was not sufficient merely to show that the liquor was found in one of the rooms of the house which appellant and his wife were operating, when the undisputed evidence shows that that room was in the exclusive possession of Hooks. LaCour v. Hope, 160 Ark. 209.

The Attorney General relies for support of the judgment on the testimony of one of the officers in regard to the statement made by Hooks in appellant’s presence to the effect that “they have us now.” It is arg-ued that this constituted a confession by failure to respond to a statement which was in the nature of an accusation that appellant was a participant in the crime. We do not think, however, that the statement necessarily implied an accusation against appellant so as to call for a reply. In order to give the testimony the force of a confession by silence, it must have been a statement which necessarily implied, either directly or indirectly, an undenied accusation of guilt. Hall v. State, 64 Ark. 121. Nor do we think that the testimony of the officers to the effect that the door seemed to have been sawed out a long time prior thereto had any substantial tendency to prove that appellant was a guilty participant in'the storing of the liquor. Conceding that the testimony was sufficient to show that the trap-door had been sawed out several years before that time, the only tendency of it would be to show that, at some time, appellant may have known of the existence of the secret place; but, as before stated, it does not tend to show that appellant knew that whiskey was stored in that place at the time the officers made the search. It devolved upon the State to prove, not merely that there was a secret closet in the room, but that this particular liquor which was found deposited there was known to the appellant, and that he participated in the storing of it, either by putting it there himself or permitting Hooks to put it there or to let it remain there.

The judgment is therefore reversed, and the cause remanded for a new trial.


text:
    Sheffield v. Maxwell.
    Opinion delivered April 7, 1924.
    1. Evidence — parol evidence rule. — Where a grantee assumed a mortgage of $2,000, and subsequently sued the grantor for breach of warranty, alleging that there was an additional mortgage on the land for $240, it was error to refuse to permit the defendant to show that the incumbrance complained of was for a part of the interest on the $2,000 debt, and that it was assumed by the grantee, as such testimony did not vary or contradict the terms of the contract of purchase or the deed itself.
    2. Mortgages — assumption by grantee. — A recital in a deed that a mortgage assumed by the grantee was for $2,000 and $160 interest due did not exclude the obligation to pay future installments of interest.
    3. Evidence — parol evidence rule. — In an action to recover on a breach of warranty against incumbrances, the rule that parol evidence is not admissible to show that it was the agreement of the parties that the covenant against incumbrances was not to extend to a particular incumbrance was not violated by evidence tending to show what debt the grantee agreed to assume.
    4. Trial — transfer of cause. — It was not error to refuse to transfer an action for breach of warranty against incumbrances to the chancery court where the answer set forth a purely legal defense.
    Appeal from Benton Circuit Court; W. A. Dickson, Judge;
    reversed.

      Tom Williams, for appellant.
    The answer stated an equitable defense in denying the indebtedness, and alleging that appellee knew at the time the deal was consummated that the land was sold to him subject to a lien of two thousand dollars, bearing eight per cent, annual interest, and knew that the mortgage was made in the form adopted by many loan companies, i. e., one for the principal sum, bearing six per cent, interest, and a second mortgage for an amount to cover the additional two per cent. The prayer to transfer to equity .should have been granted. 36 Ark. 288; 123 Ark. 255; 46 Ark. 272; 71 Ark. 434; 98 Ark. 23; 87 Ark. 142; 95 Ark. 118.

      A. L. Smith, for appellee.
    Appellant made no attempt to deny the execution of the contract and deed made between himself and appellee. He would not be permitted to show by parol testimony that there was a different contract than'that which was in writing. 24 Ark. 210; 13 Ark. 449; Id. 598; 15 Ark. 543; 11 John. Rep. 201; Smith’s Law of Contracts, 94; 109 Ark. 82; 215 S. W. 519; 218 S. W. 380; 110 Ark. 64; 71 Ark. 494; 142 Ark. 234; 148 Ark. 209;-140 Ark. 182; 133 Ark. 105; 144 Ark. 279; 145 Ark. 310; 149 Ark. 664.
   McCulloch, C. J.

Appellant sold and conveyed to appellee’a certain tract of land in Benton County, the deed of conveyance containing full covenants of warranty, and this action was instituted by 'appellee against appellant in the circuit court of that county to recover damages on account of an alleged breach of the covenants of warranty in failing to remove an incumbrance on the land' in the sum of $240, evidenced by a mortgage executed by appellant to the Shartel Mortgage Company.

Appellee exhibited with his complaint his preliminary written contract with appellant, whereby it was agreed that appellant would sell and convey the land in question to appellee, that appellee would pay therefor the sum of $5,100 in cash and assume a mortgage for $2,000, and that appellant would pay the interest on the mortgage up to the following October, the date of the contract being August 2,1920. The deed, which is exhibited with the complaint, bears date of August 3, 1920, and purports to convey the land to appellee “in consideration of the sum of $7,100 paid by C. J. Maxwell.” Following the description of the land appears this clause in parentheses: “This deed is made subject to a mortgage for $2,000 to Shartel Mortgage' Company, and $160 interest due.” It is alleged in the complaint that appellee accepted the deed ancl paid the cash part of the consideration, but that, in addition to the $2,000 mortgage, there was another mortgage on the land for the sum of $280 to the Shartel Mortgage Company which was unsatisfied, and that appellee had to pay the sum of $240 to remove the incumbrance, the remaining sum of $40 having been paid by appellant. Recovery is sought for the amount alleged to have been paid in removing the incumbrance.

Appellant answered, denying that there was any incumbrance on the land other than the one which appellee assumed and agreed to pay as a part of the consideration for the conveyance. It is alleged in the answer that -the two mortgages to the Shartel Mortgage Company were executed as part of the same transaction, it being to cover a loan of $2,000 bearing eight per cent, interest, and that the notes covered by the principal mortgage were bearing six per cent, interest, and the other mortgage was given to cover the additional interest of two per cent, per annum, payable annually, and was put in that form so that the broker could get the additional interest as Ms commission on the loan. Appellant, in his answer, prayed that the canse be transferred to the chancery oonrt, which request was denied, and, on the trial of the cause, the court directed a verdict in favor of appellee.

Appellee testified in the case, and exhibited his contract with appellant and his deed from the latter, as well as the two mortgages to the Shartel Mortgage Company, and testified that he paid off the mortgage for $240 upon a statement made to him by the Shartel Mortgage Company. On cross-examination he stated that he knew at the time he purchased the land that the loan secured by the mortgage was bearing interest at the rate of eight per cent, per annum. It was admitted that appellant had paid the accrued interest in accordance with the ' stipulations of the contract. The court refused to permit appellant to introduce proof to show that-the second mortgage to the Shartel Mortgage Company for $280' merely covered the additional two per cent, interest on the debt secured by the mortgage, and the court then gave a peremptory instruction in favor of appellee. We are of the opinion that the court erred in excluding the offered testimony, as well as in giving a peremptory instruction. The testimony offered to show the connection between the two mortgages did not vary or contradict either the terms of the original contract of purchase between the parties or of appellant’s deed to appellee. Of course, the antecedent contract between the parties was merged in the conveyance, but appellee elected to introduce it into the case as evidence of the contract. Each of the instruments shows, however, that appellee assumed to pay the $2,000 mortgage, which necessarily included all interest due thereon. The recital in the deed to the effect that the mortgage was for $2,000 ‘ ‘ and $160 interest due,” did not exclude the obligation to pay future installments of interest.

We are committed to the rule that, in actions to recover on breaches of warranty against incumbrances, parol evidence is not admissible “to show that it was the agreement of the parties that the covenant was not to extend to a particular incumbrance not expressly excepted from its operation.” Hardage v. Durrett, 110 Ark. 63. In the case just cited there is a full discussion of the authorities, and the line is drawn between cases where parol evidence is admissible and where it is inadmissible. In that case there was a suit to recover for an alleged breach of covenant in failure to pay accrued taxes on land, and we held that it was not competent to show by parol evidence that the grantee had agreed, as part of the consideration, to pay the taxes. Other authorities are cited in the same opinion, which support the view that, under the status of the present case, such testimony is competent. The testimony offered in the present case was not to vary or contradict the writings, but was to identify the debt which appellee assumed by the acceptance of the deed. The purpose of the testimony was not to prove an additional agreement on his part, but to show what constituted the mortgage which he agreed to pay. The testimony went, in other words, merely to the identity of the debt, and not to an additional obligation- on the part of the grantee. Riddle v. Holcomb, 160 Ark. 265.

There was no error committed in refusing to transfer the cause to the chancery court.. The defense set forth was a complete one at law, and no defense of a purely equitable nature was set forth.

For the errors indicated the judgment is reversed, and the cause remanded for a new trial.


text:
    Clemmons v. Davis.
    Opinion delivered April 7, 1924.
    Limitation of actions — time of commencement. — Under Crawford & Moses’ Dig., § 1049, declaring a civil action to be commenced by filing a complaint and causing a summons to be issued, an action against the Federal Agent was barred by the two-year limitation in the Transportation Act (41 U. S. Stat. at L. 456), though the complaint was filed within that period, if the summons was not issued until after its expiration. .
    Appeal from Calhoun Circuit Court; L. S. Britt, Judge;
    affirmed.

      J. W. Warren, for appellant.
    Under our statute a suit is not commenced until a complaint has been filed and a summons has been issued, is appellee’s contention; but this legislative definition of the commencement of a suit is not intended as a declaration of conditions precedent to the status of a litigant as one having brought a suit, but to define the state of facts which would constitute conclusive evidence that, the plaintiff, in good faith, had submitted his cause to the court and intended to prosecute it. This having (been done, the question of the plaintiff’s real purpose passes beyond controversy by excluding inquiry as to his good faith. The good faith is the fact essential to the status of the litigant and the intent with which the complaint is filed is the controlling test. 130 S. W. 122, and cases cited; 92 N. E. 384; 62 Ark. 401; 25 Cyc. 1292.

      J. B. Turney and Gaughan db Sifford, for appellee.
    In view of the statute, C. & M. Digest, § 1049, and this court’s decisions construing the same, it appears that it is no longer open to question that, in this State at least, whatever may be the holding in Missouri or other States on similar statutes, a suit, is not commenced until complaint is filed and summons issued. 138 Ark. 10; 57 Ark. 229; 57 Ark. 459; 47 Ark. 120; 151 Ark. 377.
   McCulloch, C. J.

Appellant instituted this action at law against appellee, as 'agent of the United States Government, under the act of Congress approved February 28,1920, commonly known as the Transportation Act (41 U. S. Statutes at Large, 446), to recover property damage alleged to have been sustained by negligence of employee's of the Director General of Railroads in operating the line of railroad of the St. Louis Southwestern Railway Company. It is alleged in the complaint that servants' of the Director General, while operating. the railroad under government control, caused or permitted fire to be communicated from a locomotive to the property of appellant, situated near the right-of-way, and that appellant’s property was destroyed 'by fire.

The complaint of appellant was filed on February 27, 1922, but summons was not issued by the clerk until March 10, 1922. Appellee answered, pleading the bar of the statute of limitations in the statute referred to above, which reads as follows:

“Actions at law, suits in equity and proceedings in admiralty, based on causes of action arising’ out of the possession, use, or operation by the president of the railroad or system of transportation of any carrier (under the provisions of the Federal Control Act, or of the act of August 29, 1916), of such character as, prior to Federal control, could have been brought against such carrier, may, after the termination of Federal control, be brought against an agent designated by the President for such purpose, which agent shall be designated by the President within thirty days after the passage of this act. Such acts, suits or proceedings may, within the periods of limitation now prescribed by State or Federal statutes, but not later than two years from the date of the passage of this act, be brought in any court which, but for Federal control, would have had jurisdiction of the cause of action had it arisen against such carrier.”

The cause was heard as a preliminary matter by agreement of parties, and the court sustained appellee’s plea, and rendered final judgment against appellant.

It is conceded by counsel for appellant that the action is barred unless it was commenced within the two-year period of limitation prescribed by the Transportation Act. It is contended that the filing of the complaint with the clerk of the circuit court constituted a commencement of the action, and decisions of courts in other States are cited in support of that contention. The question has been put at rest by decisions of this court to the contrary. In the case of Hallum v. Dickinson, 47 Ark. 120, it was decided that the filing of a complaint does not constitute a commencement of an action, but that process must also be issued, .and that “until then the running of the statute of limitations is not arrested.” There are later decisions to the same effect. In fact, our statute contains an express provision defining what shall constitute the commencement of an action, which reads as follows: “A civil action is commenced by filing in the office of the clerk of the proper court a complaint and causing a summons to be issued thereon.” Crawford & Moses’ Digest, § 1049. The statute itself is too plain for doubt, and the decisions of our court on the subject merely declare its plain terms.

The court was therefore correct in sustaining appellee’s plea, and the judgment is affirmed.


text:
    Wilkes v. Bank of Augusta & Trust Company.
    Opinion delivered April 7, 1924.
    Counties — calling in warrants — road district warrants. — County-warrants issued by the county court and payable out of the road fund apportioned to a certain road district, are within the contemplation of Crawford & Moses’ Dig., § 1994, providing for the calling in of county warrants, and are barred unless presented within the designated time.
    Appeal from Woodruff Circuit Court, Northern District; E. D. Robertson, Judge;
    reversed.

      W. J. Dungan, for appellant.
    Road warrants are county warrants within the meaning of the statute providing for the calling in and canceling county warrants. C. & M. Digest, § 1994.
    J. F. Summers, for appellee.
    Has the county court authority to call in for reissuance, etc., warrants against road districts of a -county where, by law, all political townships are separate road districts, and where funds collected for road purposes on property in those districts are deposited to the credit of the respective road districts and expended on the roads in such districts? Under this state of facts, the statute authorizing the calling in of coimty warrants does not include warrants issued against road districts, and not against the county. Where the court has held that road warrants came within the purview of the statute, C. & M. Digest, § 1994, it has been in cases where the road warrants were issued against the county. 118 Ark. 425; 122 Ark. 557; 153 Ark. 371; 25 Ark. 265. But see C. & M. Digest, § 5490; act No. 370, Acts 1911, p. 1065, constituting each political township in Woodruff County a road district; this court’s definition of a comity warrant, 133 Ark. 90; 153 Ark. 371. See also 80 Ark. 6'2. The statute authorizing calling in county warrants is strictly ■construed. 87 Ark. 406; 72 Ark. 394; 51 Ark. 34; C. & M. Digest, § 1999. Mandamus was the proper remedy. 33 Ark. 450.
   McCulloch, C. J.

The county court made an order calling in county warrants for cancellation or reissue, pursuant to the terms of the statute. Crawford & Moses’ Digest, § 1994. No question is raised as to the regularity of the call and strict compliance with the provisions of the statute, but the point of the present case is whether or not warrants drawn on the road fund fall within the class to which the statute authorizing the calling in of warrants refers.

In Woodruff County the political townships are made road districts by special statute. Acts 1911, p. 1025. The general statutes of the State provide that,.in the collection of the tax levied pursuant to the Constitution authorizing such a tax, the collector shall keep the taxes collected on the property' of each of the road districts separate, and pay the same into the county treasury “as so much money paid in to the credit of such districts on account of roads and bridges.” Crawford & Moses’ Digest, § 5490. Other sections provide for the appropriation of road funds by the quorum court and the apportionment thereof to the different districts. Crawford & Moses’ Digest, §§ 5495, 5486.

Appellee is the holder of a warrant issued by the county court on the treasurer of the county, payable out of the road fund apportioned to a certain district (a warrant which had not been presented for reissnance in response to the call), and this warrant was presented to appellant, as tax collector of the county, in payment of road tax, and, upon the refusal of the collector to accept said warrant, appellee brought this action to compel the acceptance of the warrant. The circuit court granted the relief, and the collector has appealed.

This court has already decided that road warrants are “county warrants” within the meaning of the statute supra, which authorizes the calling in of warrants. Monroe County v. Brown, 118 Ark. 524; Izard County v. Vincennes Bridge Co., 122 Ark. 557; A. L. Greenberg Iron Co. v. Wood, 153 Ark. 371.

Counsel for appellee seek to distinguish the present case from the cases cited above on the ground that in Woodruff County each political township is a road district,- and that, 'when the road funds are apportioned under the statute to the several road districts, they become district -funds, and not county funds. We are unable to find any point in which the cases can be distinguished from the present one. In the other cases cited there was not involved any statute making a political township a separate r-oad district, but the general statute supra was in force, which provides for the apportionment of road funds among -the several road districts, and we decided in those cases that the statute authorizing the calling in of warrants included road warrants. In the first two cases cited above we did not expressly decide the point now raised, for the reason that it was not presented, but, in each of the cases, road warrants were involved, and we decided that the statute applied to them. In the last case cited (A. L. Greenberg Iron Co. v. Wood), the point involved now was expressly decided adversely to the contention of counsel for appellee in this case.

It follows that the circuit court erred in awarding the mandamus, and the judgment is reversed, and the cause dismissed.


author: Hart, J.,

text:
    Wright v. Liberty Central Trust Company.
    Opinion delivered April 7, 1924.
    1. Sales — instruction—reversible error.' — In an action on a trade acceptance given by defendant’s wife for merchandise, where defendant denied that his wife had authority to make such purchase, and testified that, upon receipt of the merchandise, he notified the seller that he had not ordered the goods and requested instructions for its disposition, and that he was directed by the seller to place the goods on display and sell them for the seller if he could, which he did, but was able to sell but little of it, it was error to instruct the jury that if, after . receipt of the goods, defendant attempted to dispose of it, he was liable, whether he authorized the purchase or not.
    2. Appeal and error — conflicting instructions — prejudice.—The giving of conflicting instructions on the same point is deemed prejudicial to the appellant, as the court cannot know which instruction the jury followed.
    Appeal from Sebastian Circuit Court, Greenwood District; John E. Tatum, Judge;
    reversed.
    STATEMENT OF FACTS.
    Liberty Central Trust Company sued B. A. WrigM, before a justice of the peace, on account for goods and merchandise. The defendant denied buying any merchandise from the plaintiff. The justice of the peace rendered judgment for the defendant, and the plaintiff appealed to the circuit court.
    The account of the plaintiff was represented by five trade acceptances for $59.60 each, drawn by the National Novelty Import Company on B. A. Wright, and purporting to have been signed by him. Each acceptance recites that the obligation of the acceptor arises out of the purchase of goods from the drawer.
    R. Q. Kramer was a witness for the plaintiff. According to his testimony, he was a salesman for the National Novelty Import Company, in September, 1920, and stated that the trade acceptances, which are the basis of this suit, were signed either by B. A. Wright or by his wife. He admitted that a man named Ben Hendrix was present when the acceptances were signed. The acceptances were assigned to the Central National Bank for value received, and the Liberty Central Trust Company as the successor of the Central National Bank.
    Ben Hendrix was a witness for the defendant. He was present when an order for jewelry was given by Mrs. B. A. Wright to it. Q. Kramer. Mrs. B. A. Wright signed the trade acceptances sued on. During the time Mrs. B. A. Wright and R. Q. Kramer were talking about the sale of the jewelry, B. A. Wright came into the store, and was asked by Mr. Kramer to examine his goods. B. A. Wright told R. Q. Kramer that he did not have time to look at the goods, and that he did not want to see them. Wright did not sign the acceptances, or authorize any one else to do so.
    B. A. Wright was a witness for himself. According to his testimony, his wife stayed in his store while he was absent, but had no interest whatever in it. He remembered the occasion when he entered the store and Kramer wanted him to look at some jewelry. He told Kramer that he did not want to see or purchase the jewelry. He then left the store, and did not authorize his wife either to purchase the jewelry or to sign the trade acceptances sued on. The first that he knew of his wife’s having ordered the jewelry was when it was received and he opened the package containing it. Wright at once wrote the National Novelty Import Company that he did not want the goods, and asked what disposition he should make of them. In a short time Wright received a letter from the company telling him to place the goods on display and sell them for it if he could. He sold a few dollars’ worth of the jewelry, and then notified the company that the jewelry was not salable. The company refused to take the jewelry, and sued him for the purchase price of the same. Wright never -did consider the jewelry as his goods, and tried to ship them back to the seller.
    The jury returned a verdict for the plaintiff, and from the judgment rendered the defendant has appealed.

      John W. Goolsby, for appellant.

      Cravens & Cravens, for appellee.

      Every holder of a negotiable instrument is a holder in due course. C. & M. Digest, § 7825. Where one purchases goods for another, without authority, and the person for whom they are purchased receives and uses them on his own account, after being informed that they were purchased for him, this is a ratification of the act of making the purchase, and mere notification to the seller that the purchase was unauthorized is not sufficient, but he should restore the goods to the seller or pay for them. 28 Ark. 59; 124 Ark. 360; 55 Ark. 240 ; 21 B. C. L. 99; 145 S, W. 1116; 188 S. W. 728; 124 N. Y. Sup. 996. Appellant having accepted the benefits of the transaction, cannot now escape liability for the payment of same. 66 Ark. 209.
   Hart, J.,

(after stating the facts). Counsel for the defendant assigns as error the action of the court in giving instruction No. 2, which is as follows:

“You are instructed that if the defendant, after receipt of the goods in question, if in fact he did receive them, kept t-he same, or attempted to dispose of them, then the defendant is liable on the contract, whether he authorized the delivery of the goods to him in the first instance or not.”

The instruction was erroneous, and necessarily prejudicial to the rights of the defendant. The instruction in express terms tells the jury that if the defendant, after the receipt of the goods, kept them, he is liable on the contract, whether he authorized it in the first instance or not. The theory of the defendant was that he did not know that his wife had ordered the goods for him until after he had received the package containing the jewelry and unpacked it. He wrote at once to the National Novelty Import Company, telling it that he did not want the jewelry and asking what disposition to make of it. The company directed him to keep the jewelry and to try to sell it for the company. He did so by special directions from the company, and his action in so doing could in no sense be said to ratify the unauthorized acts of his wife in purchasing the jewelry.

It is true that the theory of the defendant was submitted to the jury in an instruction asked by him, but the instruction given at his request was in .direct conflict with instruction No. 2 given at the request of the plaintiff. It is well settled that the giving of conflicting ,instructions upon the same point is prejudicial to the rights of the party appealing. The reason is that this court cannot know which instruction the jury followed in arriving at its verdict. Sweet v. McEwen, 140 Ark. .162; Henry Wrape Co. v. Barrentine, 129 Ark. 111; Goodell v. Bluff City Lumber Co., 57 Ark. 203; Grayson-McLeod Lumber Co. v. Carter, 76 Ark. 69; McGurry v. Hawkins, 83 Ark. 202; Cornish v. Friedman, 94 Ark. 282; Hodge-Downey Const. Co. v. Carson, 100 Ark. 433; and Marianna Hotel Co. v. Livermore F. & M. Co., 107 Ark. 245.

It follows that, for the error in giving instruction No. 2 at the request of the plaintiff, the judgment must be reversed, and the cause remanded for a new trial.


text:
    Fogg v. Arnold.
    Opinion delivered April 7, 1924.
    1. Equity — interference with prorate proceedings. — A court of •equity will not interfere with proceedings in probate courts for the settlement of estates, except on allegations of fraud or mistake.
    2. Pleading — fraud or mistake — conclusions.—Fraud or mistake cannot be charged without stating the facts and circumstances constituting it.
    3. Guardian and ward — conclusiveness of settlement. — Where the probate court, in settling the account of a guardian, charged him with rents collected on certain property which the chancery court, having jurisdiction, had previously decided to belong to a third person, the judgment of the probate court, not having been appealed from, was binding upon the guardian and his sureties in a subsequent action on his bond.
    Appeal from St. Francis Circuit Court; E. D. Robertson, Judge;
    affirmed.

      STATEMENT OF FACTS.
    Mrs. Bertsie Arnold, as guardian of Thelma, Velma, - and W. B. Kendrick, Jr., minors, brought this suit against'H. J. Tonkinson, guardian of said minors) and C. C. Fogg and B. T. Hall, as sureties on Ms bond, to recover the sum of $1,515, which the probate court had adjudged to be due said minors in the final settlement of his account as such guardian.
    The defendants filed an answer and motion to trans-' fer the' case to the chancery court. The answer denied the allegations of the complaint.
    Subsequently the defendants filed an amendment to their motion to transfer to equity. Inasmuch as they rely upon its averments for a reversal of the judgment, we copy it in our statement of facts. The body of the amended motion reads as follows: ‘ ‘ Come the defendants herein, and for amendment to motion to transfer state: That, while the probate court of St. Francis County had under consideration the adjustment of the account current and reports of H. J. Tonkinson, curator of the estate of his wards, the minors herein above named, there was pending in the St. Francis Chancery Court an action between Ed Bird, Mrs. Arnold, the guardian plaintiff herein, and Mrs. Tonkinson, against the plaintiff, minors herein, involving the title to the lands from which the said H. J. Tonkinson collected the rents (the $1,800 mentioned in the original amendment to the answer of the defendants in this cause), and said fact was brought to the attention of the said probate court, and the court indicated that its finding and judgment would be withheld until the title to the lands should be settled in said chancery .case, and made such announcement in open court, upon which these defendants relied. Some time thereafter, and after the decision by the chancellor in said-chancery case, the probate court, being in session, caused two attorneys for H. J. Tonldnson, administrator, and W. Gorman, Esq., the attorney for the plaintiffs herein, to be called before it, and announced that he was ready to decide the case and make the finding and order asked by tbe attorney for tbe plaintiff, and, at tbe time, made and entered tbe order relied on by the plaintiffs in this canse.
    “Therefore defendants say that the finding and judgment of the probate court as to the rents received -from the lands, to which neither the estate of "W. R. Kendrick, deceased, nor his heirs, the plaintiffs herein, had title nor any interest, is void; because the probate court had no jurisdiction of those particular lands, being a hundred and twenty acres adjudged by the chancery court to be the property of Ed Bird and others, to the exclusion of the plaintiffs herein. A certified copy of said decree of the chancery court is hereto attached and made a part hereof as exhibit ‘A.” ’
    Exhibit “A” is the judgment of the chancery court entered of record on December 12, 1921, in the case of Mrs. Hedley Tonkinson, plaintiff, v. Mrs. Bertsie Crab-tree at al., defendants.
    The decree recites that it was rendered on the 2d day of March, 1921, but the same was omitted from the record and is entered mmo pro time on December 12,1921. The decree showed that the lands involved in that suit did not belong to Thelma, Velma and W. R. Kendrick, Jr., children and sole heirs-at-law of W. R. Kendrick, deceased, but that the lands belonged to other persons.
    The circuit court, over the objections of the defendants, refused to transfer the case to the chancery court.
    The plaintiff introduced in evidence the judgment of the probate court rendered on the 11th day of March, 1921. The judgment recites that the court had under consideration the first annual settlement of H. J. Tonkinson as curator of the estate of W. R. Kendrick,- Jr., Thelma Kendrick and.Velma Kendrick, minors, heirs-at-law of W. R. Kendrick, deceased, and a restatement of said-account, filed on November 23, 1920. The judgment further recites that, after allowing the said H. J. Tonkinson, curator, certain corrections and additional credits, the amount in his hands- is therebv reduced to the sum of $1,515. It was adjudged that the restatement of the account be approved as showing the correct ¡amount due from the said curator to said minors, and that the corrected statement be recorded in the proper records of the probate court. The judgment further recites that Bertsie Crabtree has been appointed as guardian of said minors and had been authorized to receive said amount from said H. J. Tonkinson.
    It was further ordered that, upon the filing of proper vouchers of Bertsie Crabtree, as such guardian, of saiu amount, said Tonkinson and his sureties on his bond as such curator be finally discharged.
    To reverse that judgment the defendants have duly prosecuted an appeal to this court.

      8. 8. Hargraves and John M. Prewett, for appellants.
    1. The judgment of the probate court is void for want of jurisdiction of the subject-matter. 18 Wallace 457; 43 Ark. 62; 91 Ark. 533; 18 Ark. 405. Want of jurisdiction, either of persons or subject-matter, appearing upon the fact of the record, can be taken advantage of at any time and in any court where the conclusiveness of the judgment or decree is the subject of judicial inquiry. 10 Penn. 49; 11 Oregon 88; 64 Mo. 458; 50 Mo. 292. If jurisdiction depends upon some collateral fact which can be decided without going into the case on its merits, then the jurisdiction may be collaterally attacked, even though the jurisdictional fact is averred of record and was actually found to exist by the court rendering the •judgment. • 93 Am. St. Rep. 299; 31 Pac. 893; 97 Cal'. 232.
    2. A surety may show that a judgment against his principal was obtained by fraud or collusion, or that the court has no jurisdiction to render the judgment. Am. & Eng. En-cy. Law, pp. 99-100; 8 S. W. 292; 100 Ark. 63; 57 Ark. 469. In determining the sufficiency of a judgment against collateral attack, a distinction must be observed between those facts which involve the jurisdiction of the court over the parties and subject-matter and those gwasi-jurisdictional facts without allegation of which the court cannot properly proceed, and without proof of which judgment or decree should not be made. 100 Ark. 69; 23 Cyc. 1074; 147 U. S. 173; 50 Ark. 190.
    3. A void judgment may be attacked whenever and wherever it is sought to be enforced. 122 N. W. 980; 122 N. W. 554; 6 Am. St. Rep. 74; 158 Mich. 155; 48 Ark. 151. In a collateral action the force of a judgment can be destroyed only by showing that the court did not have jurisdiction over the subject-matter'or the person against whom it was rendered. 23 Am. St: Rep. 113; Freeman on Judgments, §§ 120-120c.
    4. Extrinsic evidence is admissible to contradict a record where a judgment is assailed for want of jurisdiction of the subject-matter or the person. 93 Am. St. Rep. 299; 48 Am. Dec. 355; 27 Ark. 675; 30 Ark. 109; Freeman on Judgments, § 518. Where the complaint alleged that the judgment was void for want of jurisdiction both of the subject-matter and the parties, and specified the particular defects which deprived the court of jurisdiction, held that the action was not a collateral attack on the judgment. 112 Pac. 1064; 42 Mont. 302. ■ The rule that courts of general jurisdiction, having decided in favor of their jurisdiction, are presumed, on collateral attack, to have acted upon sufficient 'evidence, obtains in all cases save where the question of jurisdiction arises in regard to the person or subject-matter, whether the evidence appears in the record or not. 139 S. W. 653; 100 Ark. 63. An order of the probate court based on the record and pleadings and documents on file in the proceedings, which shows on its face that the court undertook to and did adjudicate the title to the land between parties to the proceedings before the court, is void. 74 Ark. 81; 129 U. S. 86; 58 L. R. A. 641.
    5. The cau ge should have been transferred to equity.

      Walter Gorman, for appellee.
    The court properly sustained the demurrer. If the judgment of the probate court was erroneous, it could have been corrected by appeal. 34 Ark. 301; 11 Ark. 519; 19 Ark. 499; 71 Ark. 480. The adjudication by the probate court of the amount of the curator’s liability is conclusive evidence against the sureties. 14 Ark. 170;. 46 Ark. 260; 39 Ark. 172; 49 Ark. 316. Tke testimony introduced in tke probate court was properly excluded in tke circuit court. 7 Ark. 480; 80 Ark. 339.
   Hart, J.,

(after stating the facts). It is unnecessary to cite authorities upon the rule, so often announced by this court, that a court of equity will not interfere with proceedings in probate courts for the settlement of an estate, except upon allegations of fraud or mistake. It is equally well settled that fraud or mistake cannot be charged without stating the facts and circumstances constituting it. It cannot be pleaded as a conclusion of law.

The answer and motion to transfer the case to the chancery court seeks relief against a judgment of the probate court restating and settling the first and final account of H. J. Tonkinson, as guardian of the minor children of W. R. Kendrick, deceased. The ground for the transfer is that rents amounting to $1,800 were, by mistake, charged against himself in the account as first stated by the guardian.

The defendants allege that this fact was brought to the attention of the probate court, and that said court promised to withhold its finding and judgment until the title to the lands from which the rent was collected should be adjudicated.

It was further alleged that, some time thereafter, and after the decision by the chancellor adjudicating the title to the lands to be in other parties than the estate of W. R. Kendrick, deceased, the probate court caused the attorneys for H. J. Tonkinson to be called before it, and announced that the court was ready to render judgment restating the account current of H. J. Tonkinson, guardian.

At the same time the probate court restated the account by holding' said guardian liable for the rent collected, althoug'k the chancery court had held that the title to said lands was not in said minors. Thus it will be seen that the defendants do not allege or pretend that the probate court took up the matter of restating' the account of H. J. Tonkins on as guardian without notice to them; but, on the contrary, they alleged that the judge of the probate court did call them before him while the court was in session, ¡and adjudicated the matter.

It is true that it held that the curator was accountable to the minors for rent which the chancery court had decreed did not belong to the minors, but this constituted at most an error of law. It appears from the record that the decree in the chancery case was rendered on the 2d day of March, 1921, although the decree was not entered of record until the 12th day of December, 1921. The judgment of the probate court restating the account of said H. J. Tonkinson was rendered on the 11th day of March, 1921. The probate court evidently had a different opinion of the law to that of the chancery court.

The parties had the right to appeal from the decision of each court, but no appeal appears to have been taken in either case.

The alleged grievances of the defendants are the results mainly, if not entirely, of their own fault and negligence. They were precluded by the judgment in the probate court from again contesting the conclusion reached by that court in the approval of the settlement of said guardian as to .all matters embraced in that settlement.

The probate court had jurisdiction to determine whether or not the guardian should be chargeable with the rent of the lands involved in the litigation in the chancery court. In the first place, it may be said that the time for the appeal from the decision of the chancery court in the case had not elapsed when the probate court rendered its decision, and it could not know whether or not an appeal would be taken from the decision of the chancery court.

It might have been the better practice to have waited until the time for appeal had expired, or until the matter had become finally settled in the chancery court; but the probate court was not required to wait. Even if it be said that the probate court abused its discretion in not waiting until the decision of the chancery court involving the title to the lands had become final, as it had announced that it would do, still its action in taking up the matter would at most , only constitute an error of proceeding on its part, which might have been reversed on appeal; but it could in no sense be said that the order of the probate court was void. In other words, a transfer of the case now to a court of equity could accomplish no more than could have been accomplished by an appeal by the guardian and his bondsmen from the judgment of the probate court restating and confirming his account.

If. the probate court wrongfully charged him with rents upon lands which did not belong to the minors, an appeal should have been prosecuted in apt time to reverse the judgment as being an erroneous one. The defendants are precluded by the judgment in that court from again contesting the matters embraced in the restated account and final settlement of said guardian adjudicated by the probate court. Jefferson v. Edrington, 53 Ark. 549; Nelson v. Cowling, 89 Ark. 334; and Beakley v. Cunningham, 112 Ark. 71.

In the case last cited it was held that a judgment on final settlement of a guardian’s account is also conclusive upon the sureties on Ms bond.

It follows that there was no error in refusing to transfer the case to equity, and that the judgment was correct, and must be affirmed.


text:
    Sutton v. State.
    Opinion delivered April 7, 1924.
    1. Criminal law — refusal of instructions. — An assignment of • error in the court’s refusal of particular instructions is not reviewable where it does not appear from the bill of exceptions that such instructions had been requested.
    2. Seduction — variance as to name of prosecutrix. — In a prosecution for seduction, a variance 'between indictment and proof as to the name of the prosecutrix is not material, under Crawford & Moses’ Dig., § 3018.

      3. Seduction — presumption op chastity.- — In a prosecution for seduction, an instruction that the prosecuting witness is presumed to be chaste, and that the burden is on the defendant to show that she is not chaste, is not erroneous.
    Appeal from Crawford Circuit Court; James Cochran, Judge;
    affirmed.

      E. D. Chastain, for appellant.
    J. S. Utley, Attorney General, and John L. Carter, Assistant, for appellee.
   Smith,.J.

Appellant was indicted for .seduction, was convicted, and has appealed.

His first assignment of error is that the court refused to give an instruction numbered 3 which he requested. But it does not appear from the bill of exceptions that this instruction was asked. The same thing is true of an instruction numbered 6, which appellant sets out in his motion for a new trial, but which does not appear, from the bill of exceptions, to have been asked.- The failure to give these instructions is therefore not before us for our review. Adkisson v. State, 142 Ark. 15.

The name of the woman alleged to have been seduced is charged in the indictment to be Mollie Jane Gregory, whereas the testimony shows the woman’s name to be Mattie Jane Gregory. When Miss Gregory gave her testimony and stated her name, defendant’s attorney moved to quash the indictment on account of this variance, but the motion was overruled, and this ruling is assigned as error.

There was no error iñ this ruling. The statute provides that “where an offense involves the commission, or an attempt to commit, an injury to person or property, 'and is described in other respects with sufficient •certainty to identify the act, an erroneous allegation as to the person injured, or attempted to be injured, is not material.” Section 3018, C. & M. Digest.

In the case of Bennett v. State, 84 Ark. 97, there was a variance between the name of the person alleged to have been killed, as it appeared in the indictment, and the testimony offered at the trial, and the defendant requested the court to charge the jury, if they so found, to return a verdict of not guilty. This the trial court refused to do, and, in upholding that ruling, it was said by this court, in construing the statute quoted, that the’ question of identity of the person described in the indictment with the one mentioned in the evidence was one of fact, to be established like any other fact, to the satisfaction of the jury, and that the variance was not material if the identity was shown.

Here the defendant did not ask that the question of the identity of Mollie Jane Gregory and Mattie Jane Gregory be submitted to the jury, as he was entitled to do, but his request was that the indictment be quashed, and this for the reason which the statute says is immaterial where the identity of the person mentioned in the testimony is established as the person named in the indictment. In the instant case it may be said that there was no dispute or question as to the identity of the woman alleged to have been seduced.

An exception was saved to an instruction numbered 4, which reads as follows: “Before the prosecuting witness can be seduced she must be a chaste woman at that time. The law presumes her to be chaste, and the burden is on the defendant to show that she is not chaste. If he shows that to you, it will be your duty to acquit the defendant on that ground; but if he fails to show that she is not chaste, then the law presumes that she is chaste.”

There was no error in giving this instruction. There is a presumption of chastity, which is indulged unless the testimony shows the lack of it, and if a lack of chastity is not- shown,.then a presumption is indulged without affirmative proof to that effect. Patrick v. State. 135 Ark. 173; Polk v. State. 40 Ark. 482: Caldwell v. State, 73 Ark. 139; Rucker v. State, 77 Ark. 23: Wilhite v. State, 84 Ark. 67; Oldham v. State, 99 Ark. 175.

Only a general objection was made to the instruction, and we think there was no defect in it which could be reached by a general objection.

No error appears, and the judgment is affirmed.