author: McCulloch, C. J.

text:
    Missouri Pacific Railroad Company v. Bode.
    Opinion delivered March 9, 1925.
    1. Railroads — killed at crossing — evidence of negligence. — In an action against a railroad company for negligently killing plaintiff's intestate at a crossing, evidence that defendant’s trainmen failed continuously to sound the ibell and whistle until after the crossing was reached held to sustain a finding that defendant was negligent.

      2. Negligence — comparative negligence a jury question where. —Evidence held insufficient to show that plaintiff’s intestate killed at a railroad crossing was, as matter of law guilty of contributory negligence as matter of law in a degree equal to that of defendant railroad, so as to preclude recovery under Crawford & Moses’ Digest, § 8575.
    3. Railroads — instruction as to negligence in failing to give crossing signal. — An instruction that it was the duty of trainmen to sound ,the crossing signal continuously from a point at least 80 rods from the crossing, and that, if this wias not done, and the intestate “was fatally injured because it was not done,” then the defendant wlas negligent -in causing said injury, held not erroneous.
    4. Trial — refusal of instructions — matters not in issue.— Refusal of requested instructions as to' keeping of outlook and discovered peril was not .error where those matters were not in issue.
    5. Negligence — instruction as to comparative negligence. — ■ Though intestate’s contributory negligence was'admitted, it was nevertheless proper to charge the jury as to that defense, to enable them to determine the extent of intestate’s negligence and to compare it with defendant’s negligence in fixing the amount of recovery if any, under Crawford & Moses’ Dig., § 575.
    Appeal from. Randolph Circuit Court; John G. Ashley, Judge;
    affirmed.

      Thos. B. Pryor and II. L. Ponder, for appellant.
    A traveler approaching a railroad crossing is hound to exercise such care and prudence as an ordinarily prudent man would exercise under the 'circumstances, in looking and listening for approaching trains. 138 Ark. 589; 101 Ark. 321; 45 Ark. 431; 65 Ark. 235; 69 Ark. 135; 76 Ark. 225; 78 Ark. 355; 105 Ark. 183; 100 Ark. 527. White, Personal Injuries, § 1009. Where there is nothing in the traveler’s approach to the crossing which would excuse him, from the absolute duty of looking and listening, the failure to give signals cannot be considered upon the question of contributory negligence. 110 Ark. 166; 104 Ark. 38; 96 Ark. 643; 103 Ark. 374; 101 Ark. 316. A traveler must also take notice of the fact that a railroad crossing is a place of danger. 136 Ark. 249; 117 Ark. 457; 137 Ark. 7; 125 Ark. 163; 288 Fed. 502.

      Pope é Bowers and Tom- W. Gmnpbell, for appellee.
    The cases cited by counsel for appellant on the question of the duty of travelers at railroad crossings are not applicable. Contributory negligence on the part of a person injured by a train at a railroad crossing will not defeat a recovery for damages, unless his negligence is as great as that of the company. C. & M. Dig. § 8575. And that is a question for the jury to determine. 147 Ark. '28; 151 Ark. 34. An instruction is not erroneous because it does not cover every phase of, or all the issues in, the lawsuit. 88 Ark. 524; 83 Ark. 61; 80 Ark. 19; 88 Ark. 433; 144 Axk. 641; 147 Ark. 302; 141 Ark. 280.
   McCulloch, C. J.

Appellee’s intestate, P. C. Bode, was killed in a collision between an automobile which he was driving and one of appellant’s passenger trains at the village of O’Kean, in Eandolph County, Arkansas, and this is an action instituted by appellee to recover damages for the benefit of the estate and of the next of kin.

The collision occurred at one of the street crossings in the village during the afternoon of August 14, 1923. The deceased was crossing the railroad track from east to west, and the train with which the automobile collided was coming from the north. It was charged in the complaint that the men operating the engine were guilty of negligence in failing to give .the statutory signals by bell or whistle, and in failing, after discovering the, perilous position of deceased near the track, to exercise ordinary care to prevent the collision. Both of the charges of negligence were denied in the answer, and contributory negligence of the deceased was also pleaded.

After the conclusion of the introduction of testimony, and before the court’s instructions were given to the jury, counsel for appellee expressly withdrew all claim of liability based on discovered peril, and also expressly conceded' that deceased was guilty of contributory negligence in failing to look and listen for approaching trains. The case went to the jury on instructions on the issue as to negligence of the employees of appellant in failing to give the statutory signals and upon the issue whether the negligence of deceased was equal or greater in degree than the alleged negligence of such employees. The jury returned a verdict in favor of appellee, awarding damages in the sum of $5,000.'

According to the testimony adduced, Mr. Bode, the deceased, was a merchant and farmer,, residing at O’Kean. His storeroom fronted the railroad 'in the village, and his residence fronted on a street a block away from the railroad. About 3:30 o’clock in the afternoon in question, deceased got in his car at his residence .and drove northwesterly to a street which crosses the railroad track at right angles, and when he reached that street he turned west and attempted to cross the main track, when his automobile was struck 'by a southbound passenger train.

There was a sidetrack about forty feet east of the main track, and, according to the testimony of one of the witnesses, the whistle of the train was blown about a quarter of a mile north for the station, and deceased was then within about sixty feet of the track. He was seen by numerous witnesses, and they all testified that, when he 'icros'sed the ¡sidetrack g’oing' in the- direction of the main track, he appeared to be unconscious of the approach of the train from the north, and had his head turned towards the south, as if looking in that direction. The way was clear towards the north, and he could have seen the train approaching if he had looked in that direction. The witnesses testified that, just as he was about to drive up on the main track, he turned his head to the north, and apparently saw the train coming, but it was too late for him to get out of the way. The testimony also shows that he slowed down his oar just before he went on the main track, but did not stop.

There is a conflict in the testimony about the giving of the statutory signal. All of the witnesses testified that the whistle was blown north of the station, but there is a conflict as to whether or not the hell was rung or any signal given after the first blast of the whistle.

The evidence warranted a finding that the men in charge of the train did not, as required by statute, continue to sound the bell or whistle until after the crossing was passed. It is earnestly insisted by counsel for appellant that the verdict of the jury is not supported by legally sufficient evidence, and that the court should' have taken the case away from the jury by a peremptory instruction. We cannot agree with counsel, for we are of the opinion that the evidence was sufficient to sustain the verdict.

It is conceded that deceased was guilty of contributory negligence, but, under the statutes of the State now in force, that is not an absolute bar to recovery. The statute on this subject reads as follows:

Section 8575. In all suits against railroads for personal injury or death, caused1 by the running of trains in this State, contributory negligence shall not prevent a recovery where the negligence of the person so injured or killed is of less degree than the negligence of the officers, agents or employees of the railroad causing the damage complained of; provided, that where such contributory negligence is shown on the part of the person injured or killed, the amount of recovery shall be diminished in proportion to such contributory negligence.” Crawford & Moses’ Digest, Acts 1919, p. 143.

It is argued, too, that it ought to be said in this case that-the undisputed evidence shows that the negligence of the deceased was, as a matter of law, at least equal to that of the servants of appellant in charge of the train, and that for that reason there can be no recovery, but we cannot agree with counsel in this contention. The collision occurred in the light of day, and the track and right-of-way were free of obstructions. Either party, deceased or the trainmen, could have discovered the danger and might have avoided it by the exercise of proper care. Deceased should have looked to the north, and was guilty of negligence for not doing so. On the other hand, the men operating the engine should have given the statutory signals until the crossing was passed, 'and, if they had done so, the collision may have been averted. Nearly all of the witnesses testified that deceased appeared to he intently looking towards the south, as if he expected danger in that direction, and the jury could have found that lie did not hear the whistle of the engine coming from the north. This did not excuse the deceased from looking towards the north, hut it was worthy of consideration as showing that deceased was making an honest, if misguided, effort to avoid danger, in determining the degree of his negligence as compared with that of the men operating the engine in failing to give the statutory signal. At any rate, we are unable to say that the negligence of the deceased was, as a matter of law, equal to or greater than that of the men in charge of the engine, and- we think that it was a question to he properly submitted1 to the jury under the circumstances of the present case.

There are numerous objections to the court’s charge to the jury and in refusing to give instructions requested by appellant. Among other things, there is an objection to the following instruction:

“37. It was the duty of the employees of the railroad company, in this case, not only to ring the bell or sound the whistle at a distance of at least eighty rods from the crossing, but also to keep the bell ringing or the whistle sounding continuously from a point at least eighty rods before the crossing was reached, or until the train passed the crossing, .and, if this was not done, and the said Fred 'O. Bode was fatally injured because it was not done, then the defendant railroad company was negligent in causing said injury. ’ ’

It is contended that this instruction was objectionable because it confines the issue to the negligence of appellant’s servants in failing to give the statutory signals. We do not think, however, that the instruction is open to that objection, for it does not state that the failure to give the statutory signal renders the appellant liable in damages in this case, but merely states that the omission to give the signal would constitute negligence in causing the injury, and this was coupled with the further statement, leaving it to the jury to determine whether or not the failure to give the signal caused the injury.

Appellant requested the court to give certain instructions relating to the questions of liability for failure to keep a lookout and on the ground of discovered peril, hut these matters were not issues in the case at the time of the submission to the jury, and therefore it was unnecessary for the court to1 give instruction on those subjects. Notwithstanding the admission by appellee’s counsel of contributory negligence on the part of deceased, it was proper for the court to instruct the jury in regard to the duty of a traveler in crossing the track, so that the .jury could determine the extent of the negligence and compare it with the negligence of the railroad employees. This was done by the court, and the question of contributory negligence was properly submitted for the purpose indicated above, notwithstanding the concession as to contributory negligence.

We fail to find any error in the proceedings, and the judgment is therefore affirmed.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    Humphreys v. State.
    Opinion delivered March 9, 1925.
    1. Intoxicating liquors — sale—evidence.—Evidence held to sustain a conviction for selling’ intoxicating liquor.
    2. Intoxicating liquors — sale—evidence.—Evidence of the intoxicated condition of persons at defendant’s house and coming from there held competent and relevant -on a charge of selling liquor.
    3. Criminal law — instruction as to reasonable doubt. — In a prosecution for selling intoxicating liquors, an instruction that if any fact or element necessary to constitute the crime has been established to the juryis satisfaction beyond a reasonable doubt by either direct or circumstantial evidence, or both, such fact or element was sufficiently proved; and that if the jury believe beyond a reasonable doubt from either direct or circumstantial evidence that the defendant was guilty, it was its duty to so find, held proper.
    Appeal from Dallas Circuit Court; Turner Butler, Judge;
    affirmed.

      Isgrig & Billon and T. D. Wgime, for appellant.

      E. W. Applegate, Attorney General and John L. Garter, Assistant, for appellee.
   Wood, J.

The appellant was indicted and convicted in the Dallas Circuit Court of the crime of selling alcoholic, vinous, malt, spirituous or fermented liquors, , and' sentenced by the judgment of the court to one year’s imprisonment in the State Penitentiary, from which judgment he duly prosecutes this appeal.

The night marshal of the city of Fordyce, Arkansas, and a deputy sheriff of Dallas County, Arkansas, testified substantially as follows: They went to the home of the appellant one night during the. month of July and found a large bunch of negroes there. They saw appellant pour something out of a fruit jar into a glass and hand it to a negro, and the negro gave appellant some money. Appellant made the change, and put the money in his pocket. The liquid in the fruit jar was about three inches deep. The officers then walked back away from the house, and saw appellant and another negro come out of the house and go into a little shed at the hack of the house, and come back carrying something. The appellant and the negro saw the officers, and asked them who it was. The officers did not reply. The other negro ran in the house. The officers ran to the back door, and appellant came'out with his Winchester gun, and one of the officers grabbed1 the gun and arrested the appellant. The gun was loaded. The other negroes in the house were all running, trying to get away. One of the officers searched as many of them as he could, and went back in the house. Four empty fruit jars were found — two absolutely empty, and two lying on their sides with some whiskey in them that would not pour out. The floor was wet, and the whole place smelled very strongly of whiskey. There were some soda-water bottles in tlie house; some sitting up and others in the ease. When they started to take the appellants to town, he went in the room where his wife was and pulled a lot of money out of his pockets and piled it on the hed, and his wife took it. One of the officers took one of the jars that was turned on its side and had a little whiskey left in it, and brought it away with him — it had corn whiskey in it. Appellant was in the habit of having- these suppers at his home every Saturday during the summer of 1924. They were always well attended. The night the officers were out there there were about 150 negroes there. They were sometimes pretty noisy. On several occasions one of the officers had arrested “drunks” coming from there, and at one time the officer arrested a man who had a half-gallon fruit jar about two-thirds full of whiskey.

On the night the officers were out there, the crowd seemed pretty jolly. One of the officers was asked “what was the condition of their conduct, as to whether they were quiet or noisy in the neighborhood?” The appellant objected to the question, and the court overruled the objection, and the witness answered: “Sometimes they were noisy and other times were not so bad — you know about how a bunch of negroes with whiskey in them will act.” This all occurred in Dallas County, Arkansas.

The testimony adduced on behalf of the appellant tended to show that appellant was selling cold drinks and lunches, and did not sell any whiskey on the occasion testified1 to by the witnesses for the 'State. At the conclusion of the testimony, the appellant prayed the court to direct the jury to return a verdict in his favor, which prayer the court refused, and to which ruling the appellant duly excepted.

The appellant contends that the evidence was not sufficient to sustain the verdict, and that therefore the court erred in not instructing the jury to return a verdict in his favor. Even if there were no direct testimony tending to show that the appellant was guilty of the crime charged, the circumstances detailed by the witnesses were, of themselves, sufficient to justify the jury in finding appellant guilty. The weekly Bacchanalian feasts at appellant’s home, where whiskey flowed freely, and where, as one of the witnesses testified, “the negroes were pretty happy, laving a good time, acting like a bunch of 150 or 175 negroes who had killed some four or five half-gall on jars of whiskey,” could not have occurred unless the master of the house was selling or giving away alcoholic liquors, and thus violating the law in such cases made and provided. The circumstances were alone sufficient to sustain the finding of the jury, hut there was also direct evidence tending to show that the appellant was selling whiskey, as he was seen to have poured liquid from a fruit jar into a glass and take money in exchange therefor, and the fruit jars were shown by positive testimony to have contained whiskey. The testimony as to the conduct of the revelers at the home of the appellant, as well as the testimony tending to prove that several drunk men were seen coming from that direction, was competent and relevant to the issue. This testimony tended to prove circumstances from which the jury was justified in concluding that the appellant was guilty of the crime charged. See Blakemore on Prohibition, p. 154, § 45, and cases cited.

The court correctly charged the jury that “if any fact in the case or any element necessary to constitute the crime has been established to your satisfaction beyond a reasonable doubt, by either direct or circumstantial evidence, or by both kinds, then such fact or element has been sufficiently proved, and if the jury believe beyond a reasonable doubt, from either or both direct and circumstantial evidence, that the defendant is guilty, it is your duty to so find.”

The record presents no error, and the judgment is therefore affirmed.


author: Hart, J.

text:
    Poe v. State.
    Opinion delivered March 9, 1925.
    1. Criminal law — consolidation of charges — election.—Where defendant, separately indicted for manufacturing intoxicating liquors, making mash, and keeping a still, agreed to a consolidation of cases, he cannot complain of the court’s refusal to require the State to elect between the charges.
    2. Criminal law — necessity of motion for new trial.— Error cannot be predicated on the rulings of the trial court not assigned as error, in the motion for new trial.
    3. Intoxicating liquors — sufficiency of evidence. — Evidence held [sufficient to sustain a conviction for making mash fit for distillation and for possessing a still.
    4. Intoxicating liquors — indictment.—Under an indictment for possessing a still and still worm, a conviction for possessing a still will be sustained.
    5. Intoxicating liquors — possessing still — instruction.—An instruction that if the jury found that the apparatus in . evidence was home-made or a substitute still, defendant could not be convicted of .possessing ia still was properly refused where the apparatus was in fact a still.
    6. Criminal law — venue—evidence.—Evidence held sufficient to establish the venue of the offense charged against defendant.
    Appeal from Sebastian Circuit Court, Port Smith, District; John E. Tatum, Judge;
    affirmed.

      E. M. Ditmon, for appellant.

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

Clifford Poe was indicted for manufacturing intoxicating liquor, for making mash fit for distillation, and for keeping in his possession a stillworm and a still.

Separate indictments were returned, and the three cases were consolidated for trial by agreement with the defendant. He was acquitted of the charge of manufacturing intoxicating liquors, but was convicted of making mash and possessing a still. His punishment was fixed at one year in the State Penitentiary on each charge, and it was ordered that the sentences run concurrently.

From the judgment of conviction the defendant has duly prosecuted an appeal to this.court.

The first assignment of error relied upon by the defendant for a reversal of the judgment is that the trial court erred in refusing to require the State to elect upon which of the charges it would stand.

The record shows that the defendant agreed that all three cases should be consolidated and tried together.. The facts in the three cases were practically the same, and, the defendant having expressly consented to trying them together, he cannot he now heard to complain of the action of the court in doing so. Halley v. State, 108 Ark. 224, and Setzer v. State, 110 Ark. 226.

Moreover, the alleged error of the court in allowing the cases to he tried together was not made one of the grounds for a new trial, and, under our rules of practice, will be treated as abandoned here. It is well settled in this State that error cannot be predicated' on the rulings of a trial court whieh'were not assigned as erroneous in the defendant’s motion for a new trial.. Lambdin v. State, 150 Ark. 580; Franklin v. State, 153 Ark. 536, and Clayton v. State, 159 Ark. 592.

It is next insisted that the judgment should be reversed because the evidence is not legally • sufficient to support the verdict in either case.

According to the testimony of the witnesses for the State, officers went to the residence of the defendant, in the Fort Smith District of Sebastian County, Arkansas, on September 20, 1924, for the purpose- of searching his house for intoxicating liquors, for mash used for making such liquors, and for a still or stillworm. The officers had been informed that there was a still there, and they had obtained a search warrant to search-his house. They found a keg of mash which could be used for the purpose of manufacturing liquor. They also found a copper vessel which could be used in boiling the mash, a copper stillworm, and a tin vessel into which the liquor could run after it had been boiled in the copper kettle and run through the stillworm. The officers said that this could be used in manufacturing intoxicating liquors.

Our statute makes it illegal to make a mash, wort, or wash fit for the distillation of alcoholic liquors. Rinehart v. State, 162 Ark. 520. Hence the evidence was legally sufficient to warrant a conviction on this charge.

The evidence wasi also sufficient to show that-the defendant had in his possession a stillworm and a still without registering the same, within the rule laid down in Hodgkiss v. State, 156 Ark. 340, and Moore v. State, 154 Ark. 13.

It is next insisted that the verdict is contrary to law, for the reason that the indictment charged the defendant with having a still and a stillworm in his possession.

This assignment of error is not well taken. An indictment for setting up and keeping and possessing a still and stillworm without registering the same has been held to charge the single offense offsetting up a still for the purpose of producing distilled spirits. Wright v. State, 155 Ark. 169.

The jury found the defendant guilty of having a still in his possession, and the evidence fully warranted the finding under the ruling in the cases cited above. Thus it will be seen that he cannot be again tried and convicted for having in his possession a stillworm upon the' evidence which was introduced in this case.

It is next insisted that the court erred in refusing to give instruction No. 3, which reads as follows :•

“The defendant requests the court to instruct the jury, if they find from the evidence that the apparatus introduced in evidence is a home-made still, ór a substitute still, you cannot convict the defendant of having a still in his possession under the present indictment.”

There was no error in refusing to give this instruction.’ The apparatus found at the defendant’s house was a copper vessel which could be used in boiling the mash, and a copper stillworm which could be used in carrying the vapor from the copper vessel through a cooling process into the tin vessel which could be used to receive the distilled liquor as it came from the stillworm. This apparatus constituted a still, within the meaning of our decisions cited above and several other decisions which might be cited.

Finally, it is insisted that the venue was not proved by the State. The sheriff of the county testified that the taxbooks showed that the defendant was a resident of the Fort Smith District of Sebastian County. Another witness for the State testified that he knew where the defendant’s place was situated, and that, while it was close to the line, it was within the Fort Smith District of Sebastian County. This testimony, if believed by the jury, was sufficient to prove the venue.

It follows that the judgment will be affirmed.


author: Hart, J.,

text:
    Yates v. Missouri Pacific Railroad Company.
    Opinion delivered March 9, 1925.
    1. Nuisance — what constitutes. — The doing of an act in itself lawful constitutes a nuisance where it is done in a place where it disturbs one in the possession of his property, rendering its ordinary use or occupation physically uncomfortable to him.
    2. Nuisance — burning of carcasses near plaintiff’s residence.— Evidence that railroad employees burned the carcasses of animals killed by the railroad trains near plaintiff’s residence during a period of four days, that the weather' was hot and the smell offensive, and the wind blowing towards plaintiff’s residence required the closing of doors and window®, held to sustain a verdict for plaintiff.
    3. Nuisance — punitive damages. — In an action against a railroad company for damages from offensive odors resulting from burning the carcasses of animals near plaintiff’s residence where there was no evidence that defendant acted in wilful disregard of plaintiff’s rights, it was error to submit the question of punitive damages to the jury.
    Appeal from Hot Spring Circuit Court; Tho's. E. Toler, Judge;
    reversed.
    STATEMENT OP PACTS.
    "W. A. Yates and Gordon Buie brought separate suits against the Missouri Pacific Railroad Company to recover damages for negligently burning the carcasses of two cows near their residences.
    The defendant filed a separate answer in each case, and denied the material allegations of the complaint. The cases were consolidated and tried together.
    According to the evidence for the plaintiffs, the: residence of Gordon 'Buie was situated 234 feet and the residence of W. A. Yates 500 feet from the point where the railroad company burned the carcasses of the two cows on its right-of-way. The cows were killed by a train operated by the defendant, and its servants commenced to burn the carcasses some time Sunday morning, on July 15, 1923. They continued to burn them until late the following Wednesday evening. The weather was pretty hot, and the smell was very offensive. The plaintiffs and their families were made sick, and could not eat with any comfort. They could not eat or sleep without closing the doors and windows of their houses. The carcasses did not burn continuously, because there came up a rain once or twice and put out the fire. The fire was then rebuilt. The wind was coming in the direction of the plaintiffs’ houses during most of the time of the burning. One of the cows was not cut up very much, and both of them could have been moved to another place for the purpose of burning their carcasses.
    According to the evidence for the railroad company, the fire was started Sunday morning and the carcasses were burned up by the following Monday evening. One of the cows was so cut up that its carcass could not be moved. The' smell of the burning carcasses was not very offensive, and there was no negligence in the burning.
    The jury returned a verdict in favor of each plaintiff, and from the judgment rendered the defendant has duly prosecuted an appeal to this court.

      E. B. Kinsworthy and B. 8. Kmsworthy, for appellant.

      D. E. Waddell, for appellee.
   Hart, J.,

(after stating the facts). It is earnestly insisted that the evidence is hot .sufficient to warrant the verdict. The evidence shows 'that' the plaintiffs lived in rented houses, and that the servants of the railroad company began to burn the carcasses .on Sunday morning and continued to burn them until late the following Wednesday evening. The wind, for the most part, was blowing in the direction of the plaintiffs ’ houses, and caused them and their families extreme discomfort, and 'also made them sick to a certain extent.

It is true that our statute provides that, when any horse, cow, or other animal named in the section shall die from disease or accident, if shall be the duty of the person having possession thereof to immediately cremate said animal. Crawford & Moses* Digest, § 365. So, when the defendant, in the operation of one of its trains, killed the two cows, it became its duty to burn their bodies.

The right of the defendant to burn the carcasses on its right-of-way may perhaps not be denied, but it is equally true that it would be responsible for all results occasioned by the burning in such a. negligent manner as to- constitute a nuisance. The maxim, “use your own property so as not to injure another,” is peculiarly applicable in nuisance cases. If one does an ■ act, in itself lawful, which yet, being done in that place, necessarily tends to the damage of another's property, it is a nuisance; for it is incumbent on him to find some other place .to do that act, where it will be less offensive: 2 Lewis’ Blackstone’s Com., * p. 218.

In discussing the question in Baltimore & Potomac Rd. Co. v. Fifth Baptist Church, 108 U. S. 317, Mr. Justice Field, who delivered the opinion of the court, said: “That is a nuisance which annoys and disturbs one in possession of his property, rendering its ordinary use or occupation physically uncomfortable to him. For such annoyance and discomfort the courts of law will afford redress 'by giving damages against the wrongdoer, and, when the canses of annoyance and discomfort are continnons, eonrts of equity will interfere and restrain the nuisance. ”

This rule was quoted and approved by this court in Junction City Lbr. Co. v. Sharp, 92 Ark. 538. The maxim above quoted and the principle of law laid down ought to have admonished the defendant that negligently burning the carcasses of the cows for the time and in the manner established by the evidence would materially disturb the comfort of the plaintiffs and their families and thereby become a nuisance. One must make a reasonable use of his own property, and a reasonable use can never be construed to include those uses which produce noxious smells that result in a material injury to the comfort of the owner of adjacent property and his family. So, under the facts proved by the plaintiffs, the jury might have returned a verdict for them. They might have believed that it was practical for the defendant to have hauled the carcasses further away from the homes of the plaintiffs and to have burned them much more quickly. Therefore we think the evidence was legally sufficient to warrant a verdict in favor of each plaintiff.

It is next insisted that the court erred in instructing the jury on the measure of damages. The court instructed the jury that, in actions like this, discomfort to the plaintiff and his family living with him, and whom he is bound to support, is a proper element of damages. Counsel point to the fact that such an instruction was held erroneous in the case of Junction City Lbr. Co. v. Sharp, 92 Ark. 538. The instruction was held erroneous in that case because the plaintiff was .the owner of the property occupied by him, and the nuisance was of such a continuing nature that it was permanent. Therefore the court properly held that the diminished value of the property was the proper measure of damages. In cases where the property is rented by the plaintiff and the nuisance is of a continuing character, the damages would be tbe depreciation in the rental value of the property during the term of the lease.

In cases like this, where the nuisance only lasted for a few days, the plaintiff is entitled to recover because of the inconvenience and discomfort to himself and family. Baltimore & Potomac Rd. Co. v. Fifth Baptist Church, 108 U. S. 317; Daniel v. Ft. Worth & R. G. Ry. Co., 96 Tlex. 327; 72 S. W. 578; and Pierce v. Wagner 9 Minn. 355, 13 N. W. 170.

Finally, it is insisted that the court erred in submitting to the jury the question of punitive damages, and in this oonteiition we think counsel for the defendant are correct. In cases of this sort recovery for punitive damages should only be allowed where there is willful or flagrant violation of the rights of another. Joyce on Law of Nuisances, §§ 258 and 503, and Yazoo & Miss. Valley Rd. Co. v. Sanders, 87 Miss. 607, 40 So. 163, 3 L. R. A. (N. S.) 1119, and case note.

There is nothing in the evidence from which a jury might legally infer that the defendant acted in willful or flagrant disregard of the rights of the plaintiffs in burning the carcasses.

Therefore, for the error in instructing the jury on punitive damages, the judgment must be reversed, and the cause will be remanded for a new trial.


author: HaRt, J.,

text:
    Massey v. State use Prairie County.
    Opinion delivered March 9, 1925.
    1. Statutes — repeals.—A statute may be repeated by implication as well as in direct terms.
    2. Statutes — repeal op special by general act. — Where a subsequent general act is repugnant to a prior special act, the general act, without any repealing clause, operates as a repeal of the special 'act.
    3. Statutes — implied repeal. — Where two acts passed at different times are not in terms repugnant, yet if it is clearly evident that the last was intended as a revision or substitute for the first, it ■will repeal the prior act to the extent that it is revised or substituted.
    4. Banks and banking — liability, of stockholders for. misuse of public funds. — As it was the evident purpose of the Legislature, in enacting Gen. Acts 1923, p. 515, to cover the whole subject of banking by exempting stockholders from liability for misuse of public funds by :a bank,.such act impliedly repealed the special act of 1915 (Acts 1915, p. 126) providing for a depository of public funds for Prairie County and imposing on stockholders liability for wrongful conversion of such funds by a bank.
    Appeal from. Prairie Circuit Court Southern. District; George W. Clark, Judge;
    reversed.
    STATEMENT OF FACTS.
    On February 15, 1924, the State of Arkansas for the use of Prairie County, and V. 0. Purvis, as sheriff of said county, instituted this action in the circuit court against J. E. Massey and other stockholders of the New Bank of Hazen, Arkansas, to recover the sum, of $36,947.79 and the accrued interest belonging to said county and deposited in said bank pursuant to law.
    On January 19, 1924, the New Bank of Hazen closed its doors on account of insolvency, and the State Bank-Commissioner took charge of it for the purpose of liquidation under our State banking- law. J. E. Massey and thirty-one others of the defendants bought stock in said bank on December 26, 1923, and were stockholders at the time the State Bank Commissioner took charge of said bank for the purpose of winding- up its business. These new stockholders did not know that the bank was insolvent at the time they purchased their stock. Certain of the old stockholders of the bank are also made defendants to this action, but it appears that they are insolvent.
    The record shows that the collector of the county had deposited county funds in said bank to the amount of $36,947.79. The New 'Bank of Hazen had been selected as the county depository of Prairie County at the April term, 1923, of the county court of said county. The selection was made pursuant to a special act of 1915, providing that the public funds should be deposited with, the hank or trust company making the highest hid for the payment of interest on the funds as required by the terms of the act. The New Bank of Hazen was designated as a depository under the terms of the act, by the county court, and gave bond for the true and proper performance of all the duties and obligations devolving by law upon it, and for the- prompt payment of all funds deposited by the county treasurer or the county collector.
    The could directed a verdict against the defendants, and from the judgment ■ rendered the defendants have duly prosecuted an appeal to this court.

      Gregory & Hottzendorff, Trimble <$> Trimble and Chas. A. Walls, for appellants.
    In so far as relates to- the liability of the stockholders, the act No. 627 Acts 1923, section 8, repealed section 4 of act No. 45, Acts 1915, pp. 126-136. The same subject-matter was taken up by the general act, the intention of which act was to eliminate stockholders from liability in the handling of public funds, and to fix liability on the bond or elsewhere as set forth in the ' banking law. 130 Ark. 128.

      Emerson & Donham, for appellant L. W. Judd.
    On the question of whether a general act on a subject repeals a -special act, see 88 Ark. 327.

      Bogle S Sharp, for appellants Sims, Zike 'and Johnson.

      W. J. Waggoner, Prosecuting Attorney, Cooper Thweatt, John D. TJmeatt and Chas. B. Thiveatt, for appellee.
    Repeals by implication are not favored. There is no invincible repugnancy, nor inconsistency, between the two acts, and, therefore, the general act does not reneal the special act. 109 Ark. 24; 93 Ark. -629; 36 Cye. 1090 ; 50 Ark. 137: 142 Ark. 411; Sutherland, Statutory 'Construction, 530, 535.
   HaRt, J.,

(after stating the facts). The record shows that the public funds of Prairie County were deposited in the New Bank oí Hazen pursuant to the provisions .of an act of the Legislature of 1915 providing for a depository for the State, county, and other public funds of Prairie County. Acts of 1915, p. .126. The act in question provides for the public funds of Prairie County to be deposited in a bank or trust company in said county, and that the bank or trust company agreeing to pay the highest rate of interest on said funds shall be designated by the county court as such depository. The act also prescribes that a bond shall be given by the successful bidder for the true and proper performance of all the duties and obligations devolving by law upon such depository.

Section 4 of the act provides that all stockholders of any such bank or trust company shall be liable for all public funds that such bank or trust company shall fail to pay over on demand to the person entitled to receive the same. When the bank became insolvent, and failed to pay over public funds deposited with it pursuant to the terms of the act, the court held the stockholders of the bank liable under the provisions of § 4 of the act just referred to.

It is the contention of counsel for the defendants that 'this section of the act had been repealed by implication by § 8 of an act of the Legislature of 1923, amending a former act for the regulation and control of banks and trust companies. General Acts of 1923, p. 515.

Section 18 of this act amends § 2832 of Crawford & Moses ’ Digest with regard to the liability of corporations misusing public funds.

Section 2832 of Crawford & Moses’ Digest was enacted March 17, 1903, and amended the section of the Digest relating to the deposit of public funds. Among ■the provisions of the act was one allowing collectors of taxes and other officers to deposit public funds in their custody in incorporated banks for safekeeping. It further provided that the officers and sureties on their official bonds, as well as the bank and the stockholders thereof, should be liable for all such funds that the bank should fail to pay to the person entitled to receive the same.

Section 8 of the act of 1923 referred to above expressly repeals so much of the former act as made the stockholders of the bank liable for the misuse of the public funds.

A statute may be repealed by implication as well as in direct terms. It is well settled in this State that, where a subsequent general act is repugnant to a prior special act, the general act, without any repealing clause, operates as a repeal of the special act; and.where two such acts, passed at different times, are not in terms repugnant, yet if it is clearly evident that the last was intended as a revision or substitution of the first, it will repeal the first to the extent in which its provisions are revised or ¡substituted. Hampton v. Hickey, 88 Ark. 324; Sanderson v. Williams, 142 Ark. 91; Creamery Pkg. Mfg. Co. v. Wilhite, 149 Ark. 576; and Bank of Blytheville v. State, 148 Ark. 504.

In the case last cited it was insisted that § 2832 of Crawford & Moses ’ Digest was repealed by the general banking law passed by the Legislature of 1913.

Section 2832 contains a provision similar to that referred to in § 4 of the special act of 1915, providing for a depository of the public funds of Prairie County. In each case it is provided that, where there is a misuse of the funds by the bank, both the bank and its stockholders should be liable to the person entitled to receive said public funds. The court said that the banking act of 1913 did not deal with the particular subject, and therefore did not repeal by implication § 2832, providing that the bank and its stockholders should be liable for public moneys intrusted to such bank and wrongfully converted by it.

In the case before us a new element is added. It is conceded that the business of banking, by reason of its intimate relation to the financial affairs of the people, is a proper subject of legislative control, and strictly within the police power of the State. When the Legis-la.ture of 1913 enacted onr banking law and placed the control and examination of banks under a bank com-, missioner appointed for that purpose, it did not see fit to make a part of that act 'our former statute relating to the misuse of public funds by a bank or other corpora-tion and fixing the liability of such corporation and their stockholders for such misuse. Not having taken up this subject at all, it is manifest that it intended for the general law on the subject to remain as it was. Hence, if a special act like the one in question, which was in general terms like the general act regulating the misuse of public funds by a depository, had been in force when the banking act of 1913 was passed, such special act would not have been impliedly repealed, because its provisions did not come in conflict with the general act for the regulation of -banks.

Now the Legislature of 1923 made § 2832 a part of it. The section was amended so as to omit stockholders from the liability imposed upon banks for the wrongful conversion of public funds intrusted to it. The Legislature declared in express terms that § 2832 of the Digest, as amended, was a part of our general act for the regulation and control of banks and trust companies. Section 2832, in so far as it made the stockholders liable for a misuse of public funds by the bank, was expressly repealed. The act of 1915 was a special depository act for Prairie County, and contained a provision similar to § 2832 with regard to the liability of stockholders.

The act of 1923 just referred to also made many other important changes in our general banking act. Thus it will be seen that the subject was taken up, and the public policy of the State was declared in the amen-datory act. It was the evident purpose of the Legislature to intrust the whole subject to the State 'Bank Commissioner, under such regulations as were enacted to aid him in the premises. It cannot be supposed that the Legislature intended that Prairie County should be exempted from the general policy of the act. The G-eneral Assembly having elected to take up this subject and legislate upon it, we think they intended that the general act should repeal all special acts which were repugnant to its provisions .and inconsistent with it.

It results from 'our views that the general act of 19'23, amending the general 'banking act of 1913 and exempting stockholders from liability for the misuse of public funds by a bank, impliedly repeals the special act of 1915 for a depository of public funds for Prairie County, and providing that the stockholders of such bank ■ should be liable for the wrongful conversion of such funds by the bank. This holding is conclusive of the present case, and no useful purpose could be served by discussing or determining the other interesting questions argued in the briefs. Our decision that the special act of 1915 was repealed by the later general act of 1923 relating to the same subject relieves the defendants from liability as stockholders in the case before us.

. The judgment will therefore be reversed, and the cause of action remanded for further proceedings according to law and not inconsistent with this opinion. . . :


text:
    Minick v. Ramey.
    Opinion delivered March 9, 1925.
    1. Appeal and error — prejudice as ground for reversal. — Judge-ments will be reversed only for errors prejudicial to the rights of the party appealing.
    2. Judgment — motion to set aside default — defense.—A party moving- to set aside a default judgment or decree must not only state his defense thereto but must make a prima, facie shovnng of merit, in order that the court may determine, whether he was injured by not being permitted to have the benefit of it.
    3. Judgment — relief against. — Equity will not set aside a decree until it has been found and adjudged that the defendant has made a prima facie showing of a valid defense; and if it finds a partial defense, it will modify the decree to'that extent.
    4. Mortgages — relief against default decree. — Refusal to set aside a default mortgage foreclosure decree for insufficiency of service was not error where defendant did not show' or ¡offer to show by evidence his alleged defense that the decree was for an amount in excess of his indebtedness to plaintiff.
    5. MORTGAGES — AMENDMENT OF REPORT OF SALE. — Where a successful bidder at a mortgage foreclosure sale understood .that the amount bid included ithe amount of two prior mortgages, When in fact the land was sold subject to such mortgages, so that he ibid a sum which included the prior mortgage indebtedness, it was not error to permit the commissioner to amend his report to show the correct amount of the intended bid.
    Appeal from Carroll 'Chancery Court; J. S. Maples, Special Chancellor;
    affirmed.
    STATEMENT OE EACTS.
    This appeal involves the correctness of an order ’of the chancery court refusing to set aside a decree of foreclosure on the ground that two of the defendants were not served with summons, and also in confirming the report of sale made by the commissioner under the foreclosure decree.
    On January 1, 1921, J. H. Minick executed a mortgage on 158 acres of land in Carroll County, Arkansas, to secure an indebtedness to R. C. Ramey for the sum of $2,000, subject to two other mortgages on the same land to secure an indebtedness respectively of $1,500 and $1,000, and amounting in the aggregate to $2,500 and the accrued interest.
    On the 22d day of May, 1923, R. O. Ramey brought a suit in equity against J. H. Minick and Mertie Minick, his wife, and J. W. Karnes and Mary Karnes, his wife, to foreclose said mortgage for $2,000 and the accrued interest. A decree of foreclosure was duly entered of record, and it recites that the defendants had been duly served with summons and had made default. The court further found that Ramey was entitled to judgment against J. H. Minick and Mertie Minick, his wife, in the sum of $2,117.96, and a commissioner was appointed to sell the land described in the mortgage in satisfaction of this amount, subject to two other mortgages on the same land, respectively, for the sums of $1,500 and $1,000 and the accrued interest.

      The commissioner appointed to make the sale reported that he had sold the same subject to the two prior mortgages -above referred to, and that R. 0. Ramey had bid the sum of $3,625.50 for said land, and that the same liad been struck off to him for that sum.
    Ramey filed exceptions to the report of sale, in which he stated that he had only bid $700 for said land, and that the same was sold to him for that sum, subject to the two mortgages above referred to.
    The court, after hearing evidence on the exceptions filed, ordered the commissioner to amend his report to show that the land was sold to R. C. Ramey for $700, subject to the two mortgages above mentioned, and that this made the total amount that he would have to pay for said land the sum of $3,626.50. The chancellor ordered the commissioner to amend his report accordingly, and confirmed and -approved the report as amended. The testimony on this branch of the case will be stated and referred to in detail in the opinion.
    The defendant, J. H. Miniek, filed exceptions to the report of the commissioner, and asked that the decree of foreclosure be set aside on the ground that he had not been served with summons in the case. He further-alleged that judgment was rendered against him in the foreclosure decree for approximately $1,000 in excess of the amount he owed Ramey on the mortgage sought to be foreclosed.
    The return on the -summons showed that it had been served upon J. H. Miniek and Mertie Miniek by delivering a copy of the same to them. The deputy sheriff who served the summons and made the return on it stated that he delivered copies of the same to Mrs. Mertie Miniek, the wife of J. H. Miniek, and thought that he was delivering the same to her -at her usual place of abode. On this point Mrs. Mertie Miniek testified that her husband and herself had broken up housekeeping, and that she was visiting her mother at the time summons was served upon her. She stated further that her husband at the time was working in the State of Missouri.
    The chancellor found the issues in favor of the plaintiff, Ramey, and from a decree in his favor the defendant, J. H. Minick, has prosecuted this appeal.

      Festus 0. Butt, for appellant.
    Service of summons was not legally had upon John Minick. 142 Ark. 101; 2 Ark. 149; 136 Ark. 546.

      C. A. Fuller, for appellee.
    The judgment of a court will not be vacated until it is adjudged that there is a valid defense to the action in which the judgment is rendered. 135 Ark. 308; 54 Ark. 539; 10'2 Ark. 252; 136 Ark. 546; 49 Ark. 397; 54 Ark. 539. The findings of the chancellor will not he set aside by this court unless they are clearly against the preponderance of the evidence. 130 Ark. 465; 138 Ark. 408.
   Hart, J.,

(after stating the facts). J. H. Minick first seeks to reverse the decree of the chancery court on the ground that it erred in not setting aside the foreclosure decree because he had not been served with summons in the case. Conceding that the evidence in the record 'overcomes the prima- facie case of service by the recitals of the decree, we do not think that the court erred in refusing to set it aside. It will be noted that the motion of J. H. Minick to set aside the decree alleges that a decree was rendered against him for approximately $1,000 in excess of the amount due by him to Ramey. No proof whatever to sustain this allegation was offered.

It is well settled in this State that judgments or decrees will only be reversed for errors prejudicial to the rights of the party appealing. Therefore, a party moving to set aside a judgment or decree must not only state his defense thereto, but must make a prima facie showing of merit in order that the court may determine whether he was injured by not being permitted to have the benefit of it.

The rule is that a court of equity will not set aside a decree until it has been found and adjudged that the defendant had made a prima facie showing of a valid defense to the suit; and, if it finds a partial defense, it will modify the decree to that extent. Robinson v. Arkansas Loan & Trust Co., 74 Ark. 292; Citizens’ Bank of Lavaca v. Barr, 123 Ark. 443; Montague v. Craddock, 128 Ark. 59; and Davis v. Ferguson, 164 Ark. 340. Thus it will be seen that the court was' right in refusing to set asido the decree, because .no showing whatever was made or offered to be made by Minick to establish the alleged, fact that a decree had been rendered against him for any amount in excess of the indebtedness which he owed to Ramey.

The next gnound relied upon for a reversal of the decree is that the chancery court erred in ordering the commissioner to amend his report of sale to show that Ramey only bid $700 for the land sold under the foreclosure decree. On this point Ramey testified that he only bid $700 for the land, and that the same was sold subject to two prior mortgages; that the' amount of his bid of' $700’, added to the principal and interest of the two prior mortgages, amounted to $3,625.50; that the land was not worth more than this amount, and that he would take for it now the amount of money which he has invested in it.

: It is true that the commissioner making the sale and a son of J. W. Karnes, one of the defendants, testified that R.‘ C. Ramey bid $3,625.50 for the land; but it is evident that Karnes misunderstood the bid. As we have just seen, Ramey testified that the amount of his bid, together with the amount of the two prior mortgages, amounted to $3,625.50. While the commissioner states that Ramey bid the sum of $3,625.50, his whole testimony on the subject shows that he understood that this amount included the two prior mortgages on the land. The commissioner stated that the land was sold and 'Cried for sale subject to the two prior mortgages; that, before the sale, Ramey came to his office and said that he was going to hid $700 subject to the prior mortgages, and that, when Barney afterwards hid, he believed that he only intended to hid $700 snbject to the prior mortgages.

Under this state of the record the chancery court properly ordered the report of the commissioner to he amended and approved, and confirmed it as amended.

The result of onr views is that the decree was correct, and it will he affirmed.


author: Humphreys, J.

text:
    Acme Brick Company v. Swim.
    Opinion delivered March 9, 1925.
    1. Dismissal and nonsuit — effect as to co-defendants. — In a materialman’s action against a surety found, in the county of the venue, process being served on .co-defendants in another county, dismissal of the complaint as to. the surety will discharge the co-defendiants, as they could be held liable in the county only on the theory of a joint .liability with the surety.'
    2. Mechanics’ liens — time for establishing. — On a contractor’s bond given for the benefit of .persons who may establish a lien against (the owner for material or labor, a materialman can sue without first procuring a lien against the property, but he must bring suit thereon before the time during which he could establish a lien has expired.
    Appeal from Pulaski Circuit Court, Third Division; Marvin Harris, Judge;
    affirmed.

      Busbee, Pugh & Harrison, for appellant.
   Humphreys, J.

This suit was brought on the 5th day of January, 1924, by appellant against appellees in the circuit court of Pulaski County to recover a balance of $609.51 for brick sold by it to Swim & Weaver, contractors, for use in the construction of a theatre and office building in Camden, Arkansas, for Dr. J. S. Bine-hart. The action against the National Surety Company was based on the following clause of the surety bond executed by it in behalf of the contractors to the owner, Dr. J. S. Binehart, for the construction of said theatre and office building’ in accordance with plans and specifications prepared for the construction thereof, to-wit:

“This bond is made for the use and benefit of all persons, partnerships, firms or corporations who may establish a lien against said Dr. J. S. Rinehart for any material furnished or labor performed for or on account of isaid contractor or any of his subcontractors under the laws of the State of Arkansas, now in force or hereafter enacted, and they and each of them are hereby made obligees hereunder, the same as though their own proper names were written herein as such, and they and each of them may sue hereon.”

It was alleged in the complaint that appellant furnished brick to said contractors on open account in the total sum of $1,600.51 to construct said theatre and office building, upon which $1,000 had been paid, leaving a balance due of $609.51. Appellant attached an itemized verified account for the brick furnished to the complaint, and made same a part thereof. The last item consisted of a car of brick furnished on September 10, 1923, of the value of $168.

Service was had upon the National Surety Company in Pulaski County, and a branch writ was served upon the contractors, J. J. Swim and E. L. Weaver, in Jefferson County.

A demurrer was filed to the complaint by the National Surety Company upon the alleged ground that the complaint had not stated sufficient facts to constitute a cause of action against it, which was sustained by the court. Appellant refused to plead further, whereupon the court dismissed its complaint, from which judgment of dismissal an appeal has been duly prosecuted to this court.

The effect of the dismissal of the complaint was to discharge the contractors, as, under the service of the branch writ, they could only be held on the theory of a joint liability with the National Surety Company.

Appellant contends for a reversal of the judgment upon the theory that, under the language of the bond, it was not necessary to establish a lien against the improved property before it conld recover on the bond. ¥e agree with learned connsel for appellant that any obligee in the bond might recover from the bondsmen for materials furnished or labor performed without first having established a lien. The words “may establish a lien,” used in the clause of the bond quoted above, means one entitled to establish a lien under the lien laws of the State, and not necessarily one who has established a lien. In other words, we do not think the intention of the obligor and obligees in the contract was to make the procurement of the lien a prerequisite or a basis for a suit upon the bond. This interpretation of the bond, however, cannot benefit appellant in the instant case. It is apparent from the itemized statement of account which appellant incorporated as part of its complaint that appellant’s right to establish a lien had expired at the time this suit was instituted. The last item on the account was furnished on September 10, 1923, and this suit was instituted on January 5, 1924, more than 90 days after the brick was furnished. The materialman lias only 90 days after the last item was furnished to establish his lien under the laws of this State. The complaint should have alleged that- appellant was- entitled to establish a lien when the suit was commenced. No such allegation appeared in the complaint, and hence no cause of action was stated therein against the National Surety Company. For this reason the demurrer was properly sustained to the complaint.

The judgment is affirmed.


text:
    McCoy v. Wilson.
    Opinion delivered March 9, 1925.
    ■Vendor and purchaser — waiver op forfeiture for non-payment.— Proof that a vendor under contract of sal© agreed to apply rents as payments on the remainder of the purchase-money notes, that he placed long-time mortgages on the lands thus preventing the purchaser from borrowing money with which to make payments, and that he transferred the purchase-money notes without offer to redeem them, held to sustain a finding that the vendor . waived a forfeiture of the contract for non-payment of the purchase-money notes.
    Appeal from Conway Chancery Court; W. E. Atkinson, Chancellor;
    affirmed.

      Edward. Gordon, for appellant.
    There is. no testimony on the part of the appellee showing any willingness to perform, or any offer to perform, the contract, yet it is undisputed that the fourth note", thoug-h past due, and the fifth note are unpaid. 5 Pomeroy, Equity Jurisprudence, 2nd E'd., p. 4982, § 2331; 118 Ark. 283; 6 Pomeroy, Eq., Jur, 805, § 809, 142 Ark. 530.

      Strait (& Stfait, for appellee.
    Equity does not favor forfeitures, and this is especially true where the major portion of purchase money has 'been paid. It is a settled principle of law, also, that one cannot claim or enforce a forfeiture of a contract caused or superinduced by misconduct on his own part. 85 Ark. 599; 102 Ark. 157; 87 Ark. 600; 100 Ark. 565; 38 Ark. 285; 75 Ark. 410; 83 Ark. 524; 59 Ark. 405. See also 73 Ark. 415; 95 Ark. 567 ; 98 Ark. 328 86 Ark. 489.
   Humphreys, J.

The only question presented on this appeal for determination is whether, under all the facts and circumstances in the case, appellant waived his right to declare a forfeiture under an executory contract for the sale and purchase of 200 acres of land in said county by appellant to appellee, Joe Wilson.

This suit was brought in the chancery court of Conway County by said appellee on December 13, 1921, to prevent appellant from declaring a forfeiture of the sale and purchase of said land, and after his death the cause was revived and proceeded to a hearing upon the testimony introduced by the respective parties, from which the court found and decreed the contract to be in Ml force and effect, and retained jurisdiction for the purpose of adjusting the equities between the parties.

The contract price for said lands was $2,000, payable in five annual installments of $400 each, evidenced by five promissory notes due serially on December 1, 1917, 1918, 1919, 1920 and 1921. It was provided in the contract thiat, “in case of default in the payment o,f either of said notes at maturity, then all the remaining unpaid notes shall become due and payable at once, at the option of the said T. K. McCoy. Provided also that, in case the said Joe Wilson shall fail to comply in full with the terms of the contract, then the amounts, if any, paid by him shall apply as rents on .said lands. It being hereby agreed and understood that, in case of such failure on the part of the said Joe Wilson, the said T. K. McCoy shall be entitled to rent to the amount of one-third of all grain crops and one-fourth of all cotton crops grown on said lands each year during the life of this contract, and that this instrument shall operate as a lien on said crop to secure said rentsthen in that event this contract shall be null and void.”

Appellee made the payments for 1917,1918, and 1919, with the interest, in the total sum of $1,385. In the year 1920 the crops failed, and no payments were made. The time for making the other payments was extended. In the year 1921 appellee paid $200 rent on the land. He became ill in the fall of that year, and died of tuberculosis on April 1, 1922. His widow and children continued to reside on the property, and paid $200 rent thereon in the fall of the year 1922. Appellee’s widow testified that the rents were paid with the understanding between her husband and appellant that they should be treated as payments.on the land. She also testified that, in the fall of 192'2, appellant rented the lands to other parties, thereby compelling her and the children to move. She also testified that the unpaid purchase money notes were assigned to the Morrilton Bank by appellant, and that he never offered them or the contract back to her husband or herself.

Appellant and his son testified that appellee was unable to keep up the payments, turned the land back, and thereafter rented same.

Gl. M. Conley testified that appellant told him, in 1922, that he had agreed with appellee in 1920 to grant him more time; that he said the Bank of Morrilton had agreed to carry him and that he had agreed to carry appellee. Witness asked appellant why he declared á forfeiture of the contract if he agreed with appellee to extend the time, and his reply was, “A verbal contract don’t amount to nothing. ’ ’

Appellant’s contention for a reversal of the decree is that appellee breached the contract by failing to make the last two payments, and he had an absolute right to declare a forfeiture, apply the payments made of $1,385 as rent, and to keep the land. His right to do this was, perhaps, absolute unless he had waived such right by his acts and conduct, when considered in the light of all the facts and circumstances in the case. We think the instant case is covered by the following rule of law announced in the case of Little Rock Granite Co. v. Shall, 59 Ark. 405, and reaffirmed in the cases of Land v. May, 73 Ark. 415; Cherokee Construction Co. v. Bishop, 86 Ark. 489; Cooley v. Lovewell, 95 Ark. 567; Kampman v. Kampman, 98 Ark. 328.

‘‘Where there has been a breach of a contract sufficient to cause a forfeiture, and. the party entitled thereto either expressly or by his conduct waives it, equity will relieve the defaulting party from the forfeiture.”

While thq testimony of appellant and his son was to the effect that appellee surrendered his right as a purchaser raider the contract in the fall of 1920, the testimony of appellee’s widow and Gr. M. Conley was to the effect that he waived his right to declare a forfeiture, and agreed to apply the rents to be paid after 1920 to the last two payments. In view of the fact that $1,385 of the purchase money had been paid by appellee, and that appellant had placed long-time mortgages upon the land, which had the effect of preventing said appellee from borrowing money with which to make the last payments, it is reasonable and probable that farther time was given to make the last payments, with the understanding that the rents ishonld be treated as payments on the purchase money notes. In addition, the fact exists that appellant transferred the purchase money notes to the bank and never redeemed or offered to redeem them and tender them and the contract back to appellant. This fact strongly corroborates the testimony of Mrs. Wilson and Mr. Conley. We cannot say that the finding of the chancellor was contrary to the weight of the evidence. On the contrary, we are of the opinion that, according to the weight of the evidence, appellant waived a forfeiture of the contract.

The decree therefore is affirmed.


text:
    St. Louis-San Francisco Railway Company v. Horn.
    Opinion delivered March 16, 1925.
    1. Railroads — failure to signal — finding.—In an action for death ait a railroad crossing, conflicting evidence as to -whether any signals were given by the trainmen after the signal at the -whistling post, held sufficient to sustain ia finding that such signals were not given.
    2. Railroads — failure to keep lookout — evidence.—In an action ¡for a death at a railroad crossing, evidence that the fireman was not keeping a lookout but was firing the engine, and that the engineer, with a straight track ahead, failed to see deceased in time to give warning, held sufficient to show a negligent failure to keep an efficient lookout, and to sustain a finding that such negligence was the proximate cause of the injury.

      3. Negligence — contributory negligence. — Under Crawford & '■ Moses’ Digest, § 8568, contributory negligence is no defense in . case of. a failure to keep a lookout where, if such! lookout had ,bpen kept, the trainmen could have discovered the peril of the person injured in time to have prevented the injury.
    4. Negligence — comparative negligence — jury question. — In an action for 'death at' a railroad crossing, though deceased was negligent in failing to keep1 a proper lookout, yet, in view of deceased’s youth and inexperience, it can not be said, as matter of law, that his negligence was equal to or greater than that of the trainmen.
    5. Negligence — degree of negligence a jury question. — The legal sufficiency' of evidence, or the question of the degree of negligence, must be tested by the state of the testimony presented in a 'given case, and is ordinarily a question of fact for,the jury to determine.
    6. , Negligence — comparative negligence — instruction.—In an action for a death at a railroad crossing, an instruction permitting . recovery .unless deceased’s contributory negligence was •the sole /and' proximate cause • of the injury was erroneous, under Crawford & Moses’ Dig.,-§ 8575, which provides contributory negligence shall not bar recovery if it is of less degree than the negligence of the trainmen.
    7. Trial — conflicting instructions. — It was error to give an instruction that was self-contradictory and in conflict with other instructions given.
    8. Negligence — instruction as to duty of traveller at crossing. —In an action for death at a railroad crossing, an instruction that the duty of deceased was merely to exercise reasonable care, instead of a specific duty to look and listen, was erroneous, though his contributory negligence Was admitted, since it was for the jury to determine the decree of negligence of each party.
    9. Evidences — photographs.—Photographs of the scene of the accident, though not affording an accurate test of distance, were admissible in evidence where they were of some value in placing before the jury other surroundings of the injury, accurate meas- . urements having been taken of the distances.
    Appeal from Washington Circuit Court; W. A. Dickson, Judge;
    reversed.

      W. F. Evans and Warner, Hardin & Warner, for appellant.

      John W. Nance, for appellee.
   McCulloch, C. J.

Two young men or boys, named Paul Spittler and Hubert Mills, were both killed in a collision between a tractor on which they were riding and a passenger, train of appellant’s, while the tractor was being driven across the .railroad track along á public highway in Benton 'County. Mills was driving the tractor, ■ and Spittler, a boy sixteen years of age, was riding • on the fender over the rear left' wheel of- the tractor. The railroad track rnns north- and. south at that place, and the highway crossing .was at right angles. The tractor was, at the time of': the collision, being driven across the railroad track from east to west; The highway was lower than the track, and there was a five per. cent, grade; between the level of the railroad track and the. highway at a distance of sixty feet-from the .crossing. The crossing in question is about three-quarters of a mile south of the town of . Rowell, and, according to the undisputed evidence, the track is straight from the railroad crossing northward, to the whistling post, which is 1,418 feet ‘from the crossing, and for a further distance of 87 feet north of the whistling post, at which point a curve begins. In other words, the track is perfectly, straight for .a. distance of 1,50-5 ' feet northward from the crossing. There is a slight conflict in the testimony as to the distance a train could be seen from the highway as . the crossing was approached. It is undisputed, however, that a person riding on a tractor could, within 85 feet of the railroad track, discover the approach of a- train at. a very considr erable distance. ... . ■

This is an action, instituted by appellee as administrator .of Spittler’s estate to recover damages for the benefit of the next of kin. • ■ -

The evidence shows that Spittler .was instantly killed as the result of the collision. The charge of negligence on the part of. appellant’s servants is in failing, to keep a lookout and in failing to give the , statutory signals. -Appellant answered, denying the allegations of negligence, and pleading contributory negligence on the part of deceased equal to or greater in degree than the alleged negligence of appellant’s servants.

There was a trial of the-issues, which resulted in a-verdict .in favor of plaintiff for the recovery of $3,0.00 for the benefit of the-mother of deceased as next of kin. It is insisted that the evidence does not sustain the verdict. • Our conclusion is, after careful consideration of the evidence, that it is legally sufficient to support a finding that the men in charge of the' operation of the engine failed to give the statutory signals; and also that they were guilty of negligence in failing-to keep a proper lookout, and that' the injury would not have occurred if a proper lookout had been kept. :

It is undisputed that the crossing signal was given at the whistling post with the customary four blasts of the'whistle, but there is, we think, a substantial conflict in the testimony as to whether or not' any signals'were given thereafter. The engineer and fireman both testified that the bell yas kept ringing from the whistling post' down to the crossing, and the engineer testified that the whistle was sounded again after passing the post and before reaching the crossing. But there is substantial testimony from which the jury might have found that there were no signals given, either by bell or whistle, after the whistle was sounded at the post. If is contended by learned counsel for appellant that the testimony on that point is merely negative, but we are of the opinion that the testimony is of more force than that." Witnesses testified that:they did not hear the bell, and the jury might have found that the bell was not rung, otherwise the witnesses would have heard it.

' The testimony was also legally sufficient to justify the submission of the issue whether or not there was negligence in failing to keep an efficient lookout and whether or not such negligence was the proximate caiise of the injury. The engineer testified that he was at his post on the engine, keeping a lookout, but that, as he came around the curve., he could not see from his side of the eusárie obiects on the right-of-wav neár the crossing, on account of the obstruction of the’front of the engine.But the jury might have found from the evidence that. with a straight track. ahead, the engineer conld have seen the tractor as it approached the crossing in time to have given >an additional warning, and thereby avoided the collision. The testimony is undisputed , that the fireman was not keeping a lookout at all, but was engaged in woiking with the fire in his engine. Wé cannot say, under these circumstances, that- the jury was not warranted in finding that an efficient lookout was not being kept. Nor can it be said from the undisputed evidence that the negligence in this respect, as well as with regard to the failure'to give signals, was not the proximate cause of the injury. -■

It is undisputed, we think, that both of the men on the tractor were guilty of negligence in failing to discover the approach of the’ train in time to avoid the collision. The negligence of the driver is not imputed to appellee’s intestate, but the testimony shows that the latter was guilty of' contributory negligence in not exercising care for his own safety. He could have seen the approaching train, if he had looked to the north, and could have warned the driver of the danger, or could have leaped from the tractor and thus escaped injury himself. The tractor was driven in low gear, according to the undisputed evidence, and could easily have been brought to a full stop while the train was approaching, and,' as before stated, appellee’s intestate as well as the driver was guilty of negligence which contributed to the injury. ■

The “lookout statute”' (Crawford & Moses’ Digest, § 8568) absolutely-excludes the defense of contributory negligence in case of a failure to keep a lookout “where, if such lookott had been kept, the employee or employees in charge of such train of such company could have discovered the peril of the person injured in time to-have prevented the injury by the exercise of reasonable' care after discovery of such peril.” The jury may or'may not have found that a lookout was not kept, and may have 'based the verdict on a finding upon that issue. If so, there is sufficient evidence to sustain the verdict. On'the other hand, the jury might have found that the employees kept an efficient lookout, but failed to give the statutory signals, and that the contributory negligence of the deceased was • not equal to or greater in degree than the negligence of the employees of appellant in failing to give the signals. The statute in regard to contributory negligence in actions based on negligence other than that of failing to keep a lookout reads as follows: '

Section 8575. Personal injury or death — contributory negligence. In all suits against railroads for personal injury or death, caused by the running of trains in this State, contributory negligence shall not prevent a recovery, where the • negligence of the person so injured or killed is of less degree than the negligence of the officers, agents or employees of the railroad causing the damage complained of; provided, that where such contributory negligence is shown on the part of the person injured or killed, the amount of recovery shall be diminished in proportion to such contributory negligence.” Crawford & Moses’Digest.

It is earnestly insisted that we ought to say that, under the circumstances of this case, it is undisputed that the negligence of appellee’s intestate was at least equal in degree to that of the servants of appellant in failing to give the signals. We do not, however, think that this should be- said as a matter of law, but that, under the circumstances of the case, it was a question to be left to the jury. It is true that appellee’s intestate had abundant opportunity to avoid the injury if he had taken the pains to look both ways for the approach of a train, and he was guilty of' negligence in failing to do so, but, in testing the degree of his negligence when compared with that of the negligence of the servants of appellant in failing to.give the statutory signals, the youthfulness and inexperience of Spittler must be given consideration. Another circumstance In the case worthy of consideration is the fact that Spittler was on the left-hand or south side of the tractor, and may have devoted Ms attention, to looking in that direction, depending to some extent upon the driver of the tractor to he more diligent in looking-both ways. Now, this did not excuse him, and, as before stated, he was guilty of negligence, but these circumstances should have been considered as compared with that of the servants of appellant,, and we' cannot say that as a matter of law his negligence was equal in degree or greater than that of appellant’s servants.

We have not failed to give consideration to the decision, cited by counsel for appellant, of the United States Circuit Court of Appeals for the Eighth Circuit in Bradley v. Missouri Pacific Railroad Co., 288 Fed. 484, where that court held that, upon the undisputed facts of the case, the contributory negligence of the injured traveler equaled or exceeded in degree the negligence of the trainmen. Each case must,- of course, be considered upon its own peculiar facts, and the legal sufficiency of the evidence on the question of degree of negligence must be tested, the same as in other cases, by the state of the testimony presented in a given case. In other words, it is ordinarily a question of fact for the determination of the jury, but there may, as in other cases, be( presented a question, for the decision of the court as to the legal sufficiency of the evidence. In the present case we are of the opinion, however, as already stated, that the facts presented made a question for the jury to determine the comparative degrees of negligence.

There are numerous assignments of error in regard to the court’s charge, to the .jury, and several of these assignments are of sufficient importance to discuss.

One of the assignments relates to the following instruction, No. 5, which was given by the court over the objection of appellant:

“If you find from the evidence that the persons in charge of the train failed to either sound the whistle or ring the bell in the manner defined in instruction No. 2, which I have given you, or that the persons in charge of said train failed to keep and maintain a constant and efficient lookout for persons and property upon or near the track, as defined in instruction No. 1, which I have given yon, and such failure was the proximate cause of the injury to and death of the deceased, Paul Spittler, then your verdict should he for the plaintiff, unless you further find; from a preponderance: of the evidence that said deceased negligently failed to look and listen for the approach of the train,- and that such negligence was the sole and proximate cause of his injury.”

There were several specific objections made to the instruction, one of which objections relates to the concluding words,’ “unless * * * such negligence was the' sole and proximate cause of his injury.” The use of this language puts the instruction directly in conflict with the terms of the statute, supra, which provides that contributory negligence shall not bar recovery if it is of less degree than the negligence of the servants of the railroad company. The test under the statute is not whether the contributory negligence is the sole and proximate cause of the injury, but whether or not it is equal to or exceeds the negligence of the servants of the company. Under this instruction the jury might have found that the negligence of Spittler was equal to that of the servants of the company but was not the “sole and proximate cause of his injury,” and might, under that finding, have Based a verdict for appellee. Hence the instruction was not only erroiieous but may have been prejudicial.

The same- question arises on instruction No. 6, reqxiested by appéllee and modified and given by the court. The first part of the instruction, as requested by appellee, told the jury in substance that the failure oxi' the part of • the deceased to look and listen would not bar recovery unless it was found that his negligence “was of a greater degree than the negligence of the defendant’s employees in charge of the train.” The latter part of the instruction, and the modification made by the court, made a conflicting instruction — one that was conflicting in itself as well, as being in conflict with other instructions. It may have been prejudicial, as much so as instruction No. 5, hereinbefore referred to. The giving of these two instructions calls fob a-reversal of the judgment. . . - .

The-court also erred in giving instruction Nos.'4, 7, and 9¿ in stating the duty of the traveler merely to exercise reasonable care, instead of saying that there was a specific duty to look and listen for the approach' of trains. All three of the instructions mentioned contain that error, and No. 7 reads as follows:

“I charge you that the deceased, Paul Spittler, and his companion, Hubert Mills, each liad a lawful right' to drive the tractor upon and across defendant’s railroad track, subject only to a duty that -the law imposed upon them to exercise reasonable care to discover the approach of trains on said track, and by reasonable care I mean such care as a person of ordinary prudence would exercise under similar circumstances.”

The duty of a traveler in this respect has been announced in so many decisions of this court that it is scarcely necessary to cite authorities. It is true that, in the present case, the contributory negligence of Spit-tler is undisputed, and it was unnecessary to submit that issue to the jury except in determining the degree of negligence as compared with that of . the servants of the company, but appellant was entitled to have the jury correctly instructed as to the duty of the travelers in making the crossing, so that they would have some guide in comparing the negligence in that'regard with file conduct of those in charge of the train.' They were entitled, in other words, to have the jury told Avhat the' duty of the’ traveler ivas with respect to looking and listening for the approach of trains, as it was a question for the jury to determine the degree of negligence of each party]

We deem it unnecessary to discuss other portions of the court’s charge. In view of the reversal, however, there is one other question that mav arise, and should he discussed. That is in rescard to the assignment of error in the ruling of the court in permitting photographs to be introduced by appellee. ; A ph.otograph.er was ■ introduced by appellee as a witness, who testified that he had taken kodak pictures of the railroad crossing in question and the surroundings, and that the pictures were enlarged by photographs taken from the originals. The photographer testified that the pictures were accurate, but admitted on cross-examination that the distances from the crossing to other points on the track could not be accurately gauged merely .by looking at the pictures. The photographs were introduced in evidence over objections of counsel for appellant, and the ruling of the court in admitting them is now assigned as error. The contention is that the proof is undisputed that these photographs do not afford accurate tests of distances, and that it was error to let them go before the jury. The photographer testified that the pictures were absolutely accurate and that they truly portrayed the scene of the injury, but, as before stated, he admitted that a person merely looking at the pictures could not tell the distance from the highway crossing to a point up the track. This did not, we think, destroy the value of the photographs as evidence. Various witnesses testified about the distances, and, while the photographs may noi háve afforded information on that subject, yet they were of some value in placing before the .jury the other surroundings of the injury. Moreover, it is difficult to see how any prejudice could result from the introduction of these photographs, because the testimony is undisputed with respect to the situation along the highway and the railroad track at the point of intersection. Accurate measurements were taken, and witnesses testified without dispute <as to the height of the railroad and of the highway and its approaches to the track, and also the distance northward from the highway crossing along the railroad track to the whistling-post and to the curve.

For the error in the instructions, hereinbefore indicated the judgment will be reversed, and the cause remanded for a new trial. It is so ordered.


text:
    Johnson v. Polk.
    Opinion delivered March 16, 1925.
    1. Judgment — RES judicata. — The right of a grantee to recover •damages for the grantor’s failure to remove ia mortgage incum-brance was1 barred by the decree in a former action involving the same parties, and in which the same relief was sought.
    2. Covenants — breach op warranty. — There was no breach of warranty in a conveyance by reason of a mortgage on the land where the grantor discharges same before delivering the deed.
    8. COVENANTS — breach.—An action does not lie for breach of a covenant against incumbrances unless the grantee has suffered an eviction under paramount title or been forced to remove the . incumbrance.
    Appeal from Clay Circuit 'Court, Western District; G. E. Keck, Judge;
    affirmed.
   McCulloch, C. J.

This is an action instituted by appellant against appellee to recover damages for alleged breach of a covenant in connection with the sale of a tract of land in Clay County. The material facts of the case are undisputed, and the trial court gave a peremptory instruction to the jury in favor of appellee.

The parties entered into a contract in the year 1919 whereby appellee sold and agreed to convey to appellant by warranty deed the tract of land in question, for the price' of $4,600, payable $1,000 cash, $1,000 September 15, 1919, which was subsequently paid, and the balance of $2,600 at the end of two years, with interest. Appellee had purchased the land from J. A. Dudgeon, subject to a mortgage given by Dudgeon to the Maxwell Investment Company to'secure a loan of $1,500. Appellee agreed, in his contract with appellant, to pay off the debt to the Maxwell Investment Company and thereby remove the incumbrance.' Appellant executed to appellee notes for the $2,600 balance of the purchase money, and thesé notes were assigned by appellee to the Corning Bank & Trust Company. Appellee executed a deed of conveyance to appellant, with full covenants of warranty, and delivered the same to the Corning Bank & Trust Company for delivery to appellant on payment of the notes. Subsequently appellant executed a mortgage to the bank to secure the payment of the notes. Appellee later paid off his debt to the banig and the notes' of appellant were reassigned to him by the bank. Appellant also executed a mortgage to the First National Bank of Corning to secure a debt. Appellant failed- to pay his notes to appellee, and also failed to pay his debt to the First National Bank.

The Maxwell Investment Company instituted an action in the chancery court against the heirs of J. A. Dudgeon, deceased, to foreclose the mortgage on the land, and the .parties to this action as well as the First National Bank were made parties as junior lienors and claimants. Appellee answered the. complaint, admitting the prior Ken of the Maxwell Investment Company, and filed a cross-complaint against appellant asking for a foreclosure of the mortgage executed by appellant to the Corning Bank & Trust Company to secure the balance of the purchase money debt. The First National Bank appeared and filed a cross-complaint against appellant, and asked for a foreclosure of its mortgage, subject to the prior liens of the Maxwell Investment Company and appellee.

Appellant ..answered the- cross-complaint of appel-lee, making his answer a cross-complaint, setting forth a contract of purchase from appellee and alleging the latter’s failure to discharge the incumbrance of the Maxwell Investment Company, alleging that he (appellant) had been, damaged in the sum of - $1,000 by reason of his inability to procure a-Joan on the land, and that the failure to obtain the loan was caused by appellee’s omission to pay the debt to the Maxwell. Investment Company. The ■prayer- of, appellant’s, cross-complaint was that appellee-be compelled to “satisfy, pay' and settle the-mortgage of the plaintiff herein against said lands, and that this .defendant be allowed a reasonable time thereafter, for the satisfaction of said debt,” and that appellant be given judgment against appellee for $1,000 damages.

The ^Maxwell'Investment' Company dismissed its áetion,- but the cause proceeded to a final decree in favor of appellee against appellant for the foreclosure of the mortgage' executed by appellant to the Corning 'Panic -& Trust Company, and also the foreclosure of the mortgage to the First National Bank- of Corning.

■ There was a decree against appellant' on his cross-compi’aint against appellee, and that decree was pleaded below in the present action in bar of appellant’s right to recover damages for the alleged breach of covenants.

Appellee paid off the debt to the Maxwell Investment Company, thus removing the incumbrance on the land, and, shortly after the decree in the original action, appellee delivered to appellant the warranty deed which had been formerly executed and.placed iü. the hands of tlie Corning Bank & Trust Company. In the: -present action appellant alleges that appellee failed to pay off the mortgage debt to the Maxwell Investment Company and thereby prevented him from procuring a loan on the land, with which to pay the purchase money debt. He claimed damages to the same amount and on the same ground as in the former action.

We are of the opinion that the court was correct in its peremptory instruction to - the jury in favor of appellee^ If appellant sustaified any damage by reason of the failure of appellee to remove the incumbrance on the land, his rights were forever barred by the decree in the original action, to which both appellee and appellant were parties, and in which' appellant asserted the same right of action and prayed for the saíne relief as in the present action. But appellant contends that the decree in the original action .was not a bar to the present action, for the reason that this one is to recover on account of a breach of the covenants of warranty contained in the deed, which was not delivered until after the - former decree was rendered. The answer to that contention is that there has been no breach of the covenants of warranty in the deed itself.- This is so, because, according to the undisputed evidence, appellee paid the debt to tbe Maxwell Investment Company and thereby discharged the incumbrance. It is. also true because of the fact that appellant has not suffered an eviction under paramount title, nor has he been forced to remove the incumbrance, and no cause of action for breach of the covenants of warranty -in the deed has arisen. Dillahunty v. Railway Co., 59 Ark. 629; Seldon v. Dudley E. Jones Co., 74 Ark. 348; Crawford County Bank v. Baker, 95 Ark. 438.

The original decree against appellant was for the recovery of his own debt, and not for recovery on a prior incumbrance, hence he is not entitled to any relief from that burden. So, in any view of the case, appellant has shown no right of action, and the court’s ruling against him was correct.

Affirmed.