author: Wood, J.

text:
    Kellogg v. State.
    Opinion delivered April 17, 1922.
    1. Larceny — allegation of ownership. — In indictments for larceny, the allegation of ownership is material, and must be proved as alleged.
    2. Criminal law — former acquittal. — A former acquittal, under an indictment charging the larceny of cottonseed from a certain person does not bar a subsequent prosecution for larceny of the same quantity of cottonseed from another person, unless the larceny, though from different owners, was but single act or transaction, or the persons named in the two indictments are in fact one and the same.
    3. Criminal law — identity of owner of stolen property named in different indictments. — Where a former indictment for larceny alleged the ownership of the stolen cotton to be in A. C. Core, and the jury found defendants not guilty, the fact that a second indictment for stealing the same quantity of cotton at the same time named the owner as A. E. Core, without any proof that A. C. Core and A. E. Core were one and the same person, does not show that they were the same persons.
    4. Names — middle initial. — Though the middle initial of a name is ordinarily immaterial and may be disregarded, such rule does not apply where such initial is necessary to distinguish two different individuals.
    5. Criminal law — former jeopardy. — It was not error to overrule a plea of former acquittal where it does not affirmatively appear that the prosecution is for the same offense as that for which defendants had been acquitted.
    6. Criminal law — allegation of time — instruction.—Though an indictment for larceny charged the theft as having been committed on a certain day, it was not error to charge the jury that it was their duty to convict the defendants if they stole the property within three years next before the finding of the indictment.
    7. Criminal law — instruction—circumstantial evidence. — An instruction that circumstantial evidence is legal evidence and is to be considered in determining whether the defendants are guilty, and that when circumstances are so thoroughly connected as to form a chain that convinces beyond a reasonable doubt, the jury should convict the same as upon regular proof, held substantially correct.
    Appeal from Logan Circuit Court, Northern District; James Cochran, Judge;
    affirmed.

      Robert J. White, for appellant.
    J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
   Wood, J.

The appellants were jointly indicted for the crime of grand larceny, which it is alleged was committed as follows: ' “The said George Kellogg and John Oliver on the 24th day of October, 1919, in the county and district aforesaid, unlawfully and feloniously did take, steal and carry away six hundred and seventy-one pounds of seed cotton of the value of one hundred dollars, the personal property of A. C. Core.”

The appellants were placed on trial on this indictment, and the jury returned the following verdict: “We, the jury, find the defendant not guilty of stealing A. C. Core’s cotton.” The court' thereupon (directed that “the defendants’ case be returned to the grand jury for investigation.” The grand jury on the following day returned into court an indictment charging Cleve Hickson, John Oliver and George Kellogg of the crime of grand larceny committed as follows: (Here the indictment, after adding the name of Cleve Hickson, is in precisely the same language as that set forth above except it names the property as that of A. E. Core.) To the last indictment the appellant entered a plea of former jeopardy, which in due form set out that the appellants herein had been tried and acquitted “of the identical offense for which they were here charged.”

The court overruled their plea, and they were put upon trial upon the last indictment.

It could serve no useful purpose to set out in detail the testimony which was adduced to establish the charge on the part of the ¡State. It consisted of circumstantial evidence. The testimony tended to show that on Friday night, October 24, 1919, A. E. Core left some seed cotton in a wagon on a road which led from Paris to Fort Smith. During the night 671 pounds of the cotton were stolen of the value of $100. The theft occurred in Logan County, Arkansas. The following morning Core and others made an investigation and found where a car had stopped about fifty feet east of where the wagon stood which contained the cotton. The cotton was scattered from the wagon to the place where the car had been, and there were tracks of three persons at the place where the cotton was taken from the wagon to the oar. The tracks of the car indicated that the back casings were “Diamond” tread, the right front casing a “Horseshoe” tread, and the left front casing a ‘ ‘ Goodrich’ ’ tread. These car tracks were traced into the town of Paris and where they turned north at the Catholic church going in the direction of Cleve Hick-son’s. Some time after midnight, October 24th, a car was driven to the home of Cleve Hickson and stopped. The next morning a Dodge car was seen standing at the home of the appellant Oliver having on its wheels casings making tlie same kind of tracks made by the car in which the stolen cotton is supposed to have been carried away. The appellants were seen in a Dodge car belonging to Cleve Hickson in the immediate neighborhood where the cotton was stolen between midnight and four o’clock in the morning on the nigijit of October 24, 1919. The stolen cotton had a peculiar small brown seed. The seed of cotton found at Hickson’s place was the same

The appellants admitted that they were in possession of Cleve Hickson’s car from Thursday morning until Saturday morning covering the time when the cotton was stolen. The testimony on behalf of the appellants tended to establish an alibi. On its own motion the court instructed the jury as follows: ‘ ‘Circumstantial evidence is legal evidence, and is to be considered by you in determining whether or not the defendants are guilty of this offense. When circumstances are so thoroughly connected as to form a chain that convinces you beyond a reasonable doubt, it will be your duty to convict upon circumstantial evidence the same as regular proof.” The jury retired to consider its verdict, and afterwards returned into court and asked the court if it could convict the defendants for grand larceny for stealing the cotton at any other time than the night they were seen on the road — the night when the cotton was taken. Thereupon the court instructed the jury as follows: “That is a question that you gentlemen must determine, and not me. I said to you that if you believed beyond a reasonable doubt that the defendants took, stole or carried away the cotton, the property of A. E. Core, of greater value than $10, then it would be your duty to convict the defendants of grand larceny and fix their punishment in the State Penitentiary for some period of time not less than one year or more than five years, if they took, stole and carried away any cotton belonging to A.E. 'Core within three years next before the finding of the indictment.” The appellants duly objected and reserved their exceptions to the rulings of the court and in overruling their plea of former jeopardy. The jury returned a verdict finding the appellants guilty and fixing their punishment at one year in the State Penitentiary. Judgment of sentence was pronounced against them according to the verdict, from which is this appeal.

1. The court did not err in refusing to sustain appellants’ plea of former jeopardy. This court has repeatedly ruled that “in indictments for larceny allegation of ownership is material and must be proved as alleged.” Mooney v. State, 137 Ark. 410, and cases there cited. Fletcher v. State, 97 Ark. 1; Wells v. State, 102 Ark. 627; McLemore v. State, 111 Ark. 457; see also McIntosh v. State, 108 Ark. 418, where we said: ‘ ‘Correctly naming the owner is essential' to identify the stolen property”.

In the first indictment on which appellants were tried the property was described as the personal property of A. C. Core, and the jury returned a verdict specifically finding that the appellants did not steal A. C. Core’s cotton. Under the first indictment, therefore, the appellants could not have been convicted on proof that they had stolen the property of A. E. Core. Upon such proof there would have been a material and fatal variance between the allegations and the proof. “A conviction or acquittal under a charge of larceny from one person will not operate as a bar to a subsequent prosecution of larceny from another person, unless the larceny, although from different owners, was but a single act or transaction, or the persons named in the two indictments are in fact one and the same.” 14 Stand. Ency. Proc. p. 603.

The appellants, in their plea of former jeopardy, set up that under the former indictment they had been tried and acquitted on the same offense as that contained in the second indictment upon which they were about to be tried, but there was nothing in their plea to show that A. C. Core and A. E. Core are one and the same person, and we do not discover any evidence to that effect in the record. Since the allegation of ownership was material and essential to the identification of the stolen property, in the absence of any proof that the initial “C” in the first indictment was but a misnomer and that it should have been “E” and was intended to be and should have been “E” in order to describe A. E. Core instead of A. G. Core, we are unable to conclude that the trial court erred in finding, as he must have found, that A. E. Core and A. C. Core were not one and the same person. It is stated in Fincher v. Hanegan, 59 Ark. 151: “The law knows but one Christian name. Entire omission of a middle letter is not a misnomer or a variance. The middle letter is immaterial, and a wrong letter may be stricken out or disregarded.” See also State v. Smith, 12 Ark. 622. But this is only true, as the cases show, when the mistake in the middle name is made in designating the same person. When the middle name is used to designate and distinguish different persons, then it becomes very material. This distinction was noted by Judge Battle in Fincher v. Hanegan, supra, when he said: “But this (the middle name) was immaterial unless there •were more than one person of the same name, and the middle name or the initial thereof was unnecessary to identify the Henry Ward who had executed it.”

Here we take it that the court must have found on the trial of the first indictment that A. G. Core was a different person from A. E. Core. At least it must have been proved that the cotton belonged to A. E. Core instead of to A. C. Core, for the eourt.found it necessary to order that “the defendants’ case be returned to the grand jury for investigation” and the insertion of the true name of the owner of the property. See Blankenship v. State, 55 Ark. 244; Andrews v. State, 100 Ark. 184.

It does not affirmatively appear that the prosecution in this case is for the same offense as that for which the defendants have already been acquitted. Therefore, the court did not err in overruling appellant’s plea. Turner v. State, 130 Ark. 48.

2. There was no error in the instruction which the court gave the jury in response to the inquiry when they returned into court while considering their verdict. There was no election upon the part of the State to narrow the investigation of the offense charged in the indictment to the particular day named in the indictment, and there was no effort on the part of the State to prove that the appellant had stolen any other seed cotton of A. E. Core than the particular 671 pounds alleged in the indictment. That was the kind of cotton specifically described in the indictment. Under this indictment, if the court had instructed the jury that they could consider the theft of any other kind of cotton than that specifically described, it would have been error. But such was not the inquiry of the jury, and such was not the instruction of the court. The jury inquired if they could convict the appellants of stealing the cotton at another time than the night they were seen on the road — the night the cotton was taken. The court, in response, told the jury that the offense charged in the indictment covered a period of three years next before the finding of the indictment. In McLemore v. State, supra, the accused was charged with larceny of a cow belonging to one Murphy, with no specific description. The evidence on the part of the State was directed to the larceny of a cow with a “crumpled horn”, and the State elected to prosecute on the charge of stealing this particular cow. But in that case the court instructed the jury that in arriving at their verdict they were not to confine themselves to the cow with the “crumpled horn,” but that they should find the defendant guilty if they found that within three years before the finding of the indictment he did steal and carry away any cow, the property of Murphy, etc. "We held that the giving of the instruction, under the indictment and proof, was erroneous.

But the facts of the case at bar, as we have seen, differentiate it from the above case, and the court did not err in instructing the jury in this case that if the appellants took, stole and carried away the cotton of A. E. Core within three years before the finding of the indictment it would be their duty to convict. The jury may have been convinced, and their inquiry and finding indicates that they were convinced, that the appellants stole the cotton, but they may or may not have found that the theft occurred on the particular night they were seen on the road, as testified by the witnesses. In other words, the jury may have concluded that the witnesses were mistaken as to the particular day-or hour when the theft occurred, but that the particular cotton was stolen as charged within three years of the finding of the indictment. These were matters within the province of the jury, as the court properly informed them.

3. Instruction number 3 was not happily phrased, but there was no specific objection to it. There was no inherent vice in the instruction. On the contrary, the law was substantially declared in conformity with the decisions of this court in Carr v. State, 81 Ark. 589, and Lackey v. State, 67 Ark. 416. See also Gill v. State, 59 Ark. 422.

4. It cannot be said as a matter of law that there was no evidence to sustain the verdict. On the contrary, the issue of the guilt or innocence of the appellants was one of fact for the jury, and their verdict on this issue is conclusive here. There is no reversible error.

The judgment is therefore affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Caruthers v. Davis.
    Opinion delivered April 17, 1922.
    Dismissal and nonsuit — effect of order. — Where, in an action against a railroad company and a Federal agent, which accrued while the road was operated by the United States, an order sustaining a motion to dismiss as to the railroad company because the cause of action was against the Federal agent alone was no broader than the motion and operated as a dismissal as to the railroad company alone.
    Appeal from Phillips Circuit Court; J. M. Jackson, Judge;
    affirmed.

      A. D. Whitehead, for appellant.
    The court erred in dismissing appellant’s complaint as to Jas. C. Davis, agent, sec. 206, act of Congress 1920; 147 Ark. 605. Appellant’s vested rights were not destroyed. 147 Ark. 605.

      Thos. B. Pryor and Daggett & Daggett, for appellee.
    The complaint should have been dismissed as to Jas. C. Davis. Mo. Pac. Bd. Co. v. Ault, 256 IT. S. 554.
   Wood, J.

This action was brought by the appellant against James C. Davis, agent of the United States Government, and the Missouri Pacific Railroad Company to recover damages in connection with the shipment of certain household goods. It was alleged that James C. Davis as the agent of the United States government was in control and was operating the Missouri Pacific Railroad Company and the Yazoo & Mississippi Railroad Company, railroad corporations, and that, through the negligence of the defendants’ agents and employees in a manner which is specifically set forth in the complaint, the damage was caused for which appellant seeks to recover.

Summons was issued only against the Missouri Pacific Railroad'Company and was served, as shown by the return of the sheriff, as follows: “I have this third day of October, 1921, duly served the within by delivering a true copy of the same to the within named Missouri Pacific Railroad Company through its agent, E. J. Wyeth, as herein commanded.”

The following motion was filed: “Comes the Missouri Pacific Railroad Company and moves the court to dismiss this cause of action as to it, and shows the court that the cause of action set out in plaintiff’s complaint occurred and accrued on the 12th day of December, 1919, at which time the Missouri Pacific Railroad Company was under the control of and was being operated by the Federal Government, and therefore plaintiff’s cause of action, if any he has, is against the agent of the United States, as provided in the act of 1920, known as the Tiller Transportation Act.”

The record contains the following order: “Now on this day comes the defendant by attorney C. E. Daggett, Esq., and by leave of the court files motion to dismiss the cause, which said motion coming on to be heard and the court, being well and sufficiently advised, doth grant said motion, to which ruling of the court in dismissing said cause the plaintiff at the time excepted and asked that his exceptions be noted of record, which was done.”

The appellant prosecutes his appeal from this order.

It will be observed that there is no final judgment dismissing the cause of action either against the Missouri Pacific Railroad Company or against the Director General, James C. Davis. The record entry of the final order from which the appeal is taken only shows that the motion to dismiss was granted. The motion itself shows that it was a motion made by the Missouri Pacific Railroad Company “to dismiss this cause of action as to it.” So, if the order of dismissal could be treated as a final judgment, it at most would be but a final judgment dismissing the cause as to the Missouri Pacific Railroad Company. That was all that was asked. in the motion and all that could be granted within the pleading.

It is not contended that the court erred in dismissing the complaint as to the Missouri Pacific Railroad Company. There is no other issue before us in any possible view of the record. The judgment therefore is correct, and it is affirmed.


author: Hart, J.

text:
    Adams v. State.
    Opinion delivered April 17, 1922.
    1. Courts — jurisdiction of circuit courts. — The correct method of ascertaining what jurisdiction the circuit courts have in civil and criminal cases is to see what cases are exclusively confided to the jurisdiction of other tribunals; the residuum belonging either concurrently or exclusively to the circuit courts.
    2. Courts — jurisdiction of circuit courts. — Crawford and Moses’ Dig., §§ 6196, 6197, and 6201, conferring on the circuit court power to abate a liquor nuisance by injunction held valid.
    Certiorari to Jefferson Circuit Court; W. B. Sorrels, Judge;
    affirmed.

      T. G. Parham, for appellant.
    Circuit courts have no jurisdiction in matters of equity, Const, art. 7, § 15, since the Legislature has seen fit to establish chancery conrts. This power is lodged in chancery conrts. 18 Ark. 252. Injunction had its origin only after the establishment of courts of chancery.' I Pom. Eq. Juris. §§ 170-171; 14 R. €. L. p. 319, sec. 18. Injunction does not lie where there is an adequate remedy at law. 98 Ark. 427.
    J. 8. TJtley, Attorney General, Elbert Godwm and Wm. T. Hammock, Assistants, for appellee.
    Chancery courts are creatures of the Legislature. Since under the provisions of the Constitution the Legislature could create said courts and give them certain jurisdiction, it also had the fight to divest them of a part of such jurisdiction, or to confer concurrent jurisdiction on circuit courts of certain matters.
    The circuit court having authority to grant temporary injunctions, certainly it could punish for violation of an order so granted. 123 Ark. 180.
   Hart, J.

The State of Arkansas, upon the relation of the prosecuting attorney for Jefferson County, charged S. B. Adams with maintaining a public nuisance in said county by selling intoxicating liquors in a storehouse occupied by him in Pine Bluff, Ark.

Upon the evidence introduced, the circuit court found that Adams was maintaining his house as a public nuisance as aforesaid, and he was enjoined from keeping or selling intoxicating liquors therein. Subsequently it was shown to the circuit court that Adams had violated the judgment of the court by continuing to keep and sell intoxicating liquors in his said house. Thereupon Adams was adjudged guilty of contempt, and to reverse that judgment he has duly prosecuted this appeal.

Appellant’s sole ground for reversing the judgment is that the circuit court had no jurisdiction to .enjoin him from selling intoxicating liquors in his storehouse in Pine Bluff, Arkansas, and that consequently he could not be guilty of contempt of court in disobeying said order.- The judgment of the circuit court was based upon our statute defining certain public nuisances and providing for the abatement thereof.

Sec. 6196 of Crawford & Moses’ Digest provides in substance that engaging in the sale of intoxicating liquors in violation of the laws of the State in any building in the State is declared to be a public nuisance and may be abated under the provisions of- the act.

Sec. 6197 confers concurrent jurisdiction upon the chancery and circuit courts of the State to abate such nuisance.

Section 6201 provides that if the existence of the nuisance be established an order of abatement shall be entered as a part of the judgment or decree of the court, and that the judgment or decree shall perpetually enjoin the defendant from maintaining such nuisance.

We have already had occasion to construe this statute in the cases of Hickey v. State, 123 Ark. 180, and Marvel v. State, 127 Ark. 595.

In the former case the proceedings to abate the nuisance were in the circuit courtand, although the case turned upon other issues, the jurisdiction of the circuit court was recognized.

In the latter case it was held that chancery courts at the time of the adoption of our present Constitution had jurisdiction to abate a public nuisance by injunction, and that the act in question did not confer upon the chancery courts of this State any additional jurisdiction.

The correct method of ascertaining what jurisdiction the circuit courts have in civil and criminal cases is to see what cases or class of cases are confided by the Constitution exclusively to the jurisdiction of other tribunals, and the great residuum belongs concurrently or exclusively to the circuit courts. State v. Devers, 34 Ark. 188, and Whitesides v. Kershaw, 44 Ark. 377, and Payne v. Rittman, 66 Ark. 201.

It will be noted that the case of Marvel v. State, 127 Ark. 595, does not hold that chancery courts have exclusive jurisdiction to abate public nuisances.

It follows from the authorities cited above that the circuit court would have concurrent jurisdiction to abate such public nuisance, and restraining the defendant from continuing to use his house for the illegal sale of intoxicating liquors would be the most effectual means to abate the nuisance.

There are many instances of the circuit and other courts having concurrent jurisdiction. For instance, our statute gives the circuit court jurisdiction in cases of partition, and the court has held that this remedy is cumulative only, and that the statute does not take away the original jurisdiction of chancery courts. Moore v. Willey, 77 Ark. 317.

Again it is held that chancery courts have concurrent jurisdiction with that given by statute to the circuit courts in the enforcement of the mechanics lien laws of the State. Carr v. Hahn, 126 Ark. 609.

So too in Gans v. State, 132 Ark. 481, the court held that concurrent jurisdiction is not inconsistent; and therefore that jurisdiction conferred upon one court does not operate to oust other courts otherwise possessing it.

In Eilenbecker v. Plymouth County, 134 U. S. 31, it was held that the district court of a county in Iowa is empowered to restrain a person from selling intoxicating liquors in the county and that disobedience of the order subjects the guilty party to proceedings for contempt and punishment thereunder.

In discussing the question Mr. Justice Miller, who delivered the opinion of the court, said: “If the objection to the statute is that it authorizes a proceeding in the nature of a suit in equity to suppress the manufacture and sale of intoxicating liquors which are by law prohibited, and to abate the nuisance which the statute declares such acts to be, wherever carried on, we respond that, so far as at present advised, it appears to us that all the powers of a court, whether1 at common law or in chancery, may be called into operation by a legislative body for the purpose of suppressing this objectionable traffic; and we know of no hindrance in the Constitution of the United States to the form of proceedings, or to the court in which this remedy shall be had. Certainly, it seems to us to be quite as wise to use the processes of the law and the powers of the court to prevent the evil, as to punish the offense as a crime after it has been committed. ’

As we have already seen, the Legislature had the power to make a house where intoxicating liquors are kept and sold a public nuisance and to confer concurrent jurisdiction upon the circuit court to abate such public nuisance. The remedy by injunction would in many cases be the most effectual method of abating such public nuisance, and we are of the opinion that the Legislature might confer upon the circuit court the power to abate the nuisance by that method.

If the circuit court had the power to abate the nuisance by injunction in the first place, it is certain that it would have power to punish the appellant for contempt for a disobedience of its order.

Therefore the judgment will be affirmed.


text:
    Taylor v. Taylor.
    Opinion delivered April 17, 1922.
    1. Divorce — division of property — res judicata. — In a proceeding by plaintiff against defendant, from whom she had obtained a divorce, to have one-third of his property set apart to her under Crawford & Moses’ Dig., § 3511, held that the statute contemplated a division of the husband’s property when the decree of divorce was granted, and that if the wife failed to ask for and obtain the relief when the decree was granted, the matter became res judicata.

    2. Judgment — RES judicata. — Generally, in subsequent proceedings in the same court for settlement of property rights between parties, the matters which were or which might have been litigated in the first suit are res judicatae.

    3. Divorce — division of property — res judicata. — A wife, having procured a decree' of divorce, cannot, on suing for a division of the property, contend that the decree is valid for the purpose of retaining the decree of divorce and invalid as determining her property rights.

      Appeal from Jefferson Chancery Court; John M. Elliott, Chancellor;
    affirmed.

      John W. Palmer, for appellant.
    Where a divorce is granted, the wife is entitled to the same interest or estate in the husband’s real property as she would have acquired as dower in case of his death. 65 Ark. 518; 94 Ark. 485; 64 Ark. 518; 116 Ark. 427; 121 Ark. 64; Kirby’s Digest, § 2884; 37 N. W. 67; 9 R. C. L. 571.
    Where property rights are not adjudicated in the divorce action, the judgment is not res judicata as to such rights so as to bar subsequent action for their adjustment. .9 R. C. L. 461.
    There was not final decree of divorce. The chancery court was without jurisdiction to dispose of the property at a subsequent term. 101 Ark. 522.

      Damaher S Danaher, for appellee.
    The decree was final. No appeal was taken in the time allowed. 24 Ark. 522.
    Plaintiff waived her right to have dower set aside to her by not demanding that it be done in the original action. 143 Ark. 4; 59 Ark. 448. Divorce is a bar to dower. 59 Ark. 448; 116 Ark. 427.
   Hart, J.

Willie Albert Taylor brought this suit in equity against Frank B. Taylor, from whom she had previously obtained a divorce, to have set apart to her on-third of Ms real and personal property, under § 3511 of Crawford & Moses’ Digest.

The complaint alleges that the plaintiff obtained a decree of divorce from her husband on June 6, 1914, in the chancery court of Jefferson County, Ark., but that the decree was not entered of record during the term at wMch the divorce was granted. It is alleged that the court of its own motion at a subsequent term entered a decree nunc pro tunc.

A certified copy of the record in the divorce proceedings is made an exhibit to the present suit. Plaintiff asked for a divorce from her husband on the ground of ill treatment. She alleges in her complaint that no property was accumulated during the marriage. She asked for an absolute divorce from her husband, and for such sum for1 her support as the court might deem proper.

No defense to the suit was made by the husband. The decree recites that, after hearing the evidence, the court was of the opinion that the prayer of the plaintiff’s complaint should be granted. It was decreed that the bonds of matrimony existing between the plaintiff, Willie Albert Taylor, and the defendant, Frank B. Taylor, should be set aside and that both should be restored to all the rights and privileges of unmarried persona. There was no appeal from this decree.

In the present case there was a finding and decree in favor of the defendant, and the plaintiff has appealed.

The plaintiff obtained a divorce from the defendant on the ground of ill treatment, and her sole ground for a reversal of the present decree is that she is entitled by independent proceedings to secure the division of property given her under § 3511 of Crawford & Moses’ Digest. It will be borne in mind that she is not seeking a restoration of her own property under the first part of the section, but is seeking one-third of the land whereof her husband was seized of an estate of inheritance during the marriage. The first part of the section providing for a restoration of the property which either party obtained from or through the other during the marriage seems to have been borrowed from Kentucky. In construing the Kentucky statute, the court said that it did not require that the decree of divorce should order the property to be restored; but that the statute seems to have contemplated that the latter order should be based upon the former and consequently that it might be made afterwards. In short, it was held that the section was designed to regulate the mode of enforcing the right of restoration of property acquired during the marriage. Williams v. Gooch, 3 Met. (Ky.) 486.

Again, in a case note to 11 L. R. A. (N. S.) 103, it is said that where the institution of community property of husband and wife exists and there is a statute providing for its division in connection with divorce proceedings, the general rule is that where the community property is not referred to in the decree of divorce, the parties become, as to such property, tenants in common. Hence she may recover it in a separate proceeding. We do not think that either of that class of cases controls here.

In the first class of cases, the statute provides a remedy for the restoration of property obtained by one spouse from the other during the marriage. It does not affect the title to the property, but simply restores it.

In the latter class of cases, when the divorce is granted it causes a dissolution of the marital rights in relation to the community property, and the wife is entitled to her share of such property and also to her own separate property, if any she had.

So it will be seen that in -each class of cases there is a restoration or division of property between parties who have a vested interest in it. The statutory estate given to the wife when she obtains a divorce from her husband is in the nature of dower. The statute provides that, when the wife is granted a divorce against the husband, she shall be entitled to' one-third of the husband’s personal property absolutely and one-third of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage, for her life, unless, etc. The concluding part of the section provides that such decree shall be a bar to all claim of dower in and to any of the lands or personalty of the husband then owned or thereafter acquired on the part of his wife divorced by the decree of the court. This was but declaratory of the common law as it already existed in this State. .

In Barrett v. Failing, 111 U. S. 523, it was said that, unless provided by local law, a decree of divorce by a court having jurisdiction of the cause and of the parties dissolving the bonds of matrimony put an end to all obligations of either party to the other, and that a valid divorce from the bonds of matrimony for the fault of either party cuts off the wife’s right of dower, and the husband’s tenancy by the curtesy, unless expressly or impliedly preserved by the statute.

This case was cited in Wood v. Wood, 59 Ark. 441, where it was held that divorce from the bonds of matrimony bars the wife’s right of dower. The question involved in this appeal was touched upon, but not decided in that case. There the former wife had filed a bill of review to set aside a decree of divorce from the bonds of matrimony obtained by her husband.. She contended as a part of her relief that a third part of. the estate of her divorced husband should be set apart to her, according to the terms of the statute under consideration in this case. With respect to her contention the court said: “But she did not assign the failure to do so as error in her bill of review, and seek to have it corrected. On the contrary, she sought to have the decree of divorce from the bonds of matrimony set aside, and thereby to surrender the right to one-third of her husband’s estate, if she was entitled to it, and for a divorce from bed and board and for alimony against appellee. She therefore has no right to complain in this court that she did not recover that which she neither asked for nor desired. Appellant did not undertake to show, in her original or amended bill for divorce, that she was entitled tc tne benefits of the act of March 2, 1891. Her original bill was filed before it was passed, and it was not amended thereafter in that respect. For the purpose of showing that she was entitled to considerable alimony, she alleged in the original bill that the defendant was not worth less than $200,000, but did not say in what his estate consisted, or that it was within the jurisdiction of the court. No information is given to show that the court had jurisdiction, by reason of the quality and location of the property, to set apart to her one-third of it under the act. It might have been real estate situated in another State. Nothing appears in the record, outside of the evidence, to show that the court committed an error of law in failing to divide the estate of the husband in accordance with the act. ’ ’

It seems, from the reasoning of the court in that case, that our statute allows one-third of the husband’s estate to be assigned to the wife when she obtains a divorce, and not afterwards. She would have no interest in the nature of dower in her husband’s estate after the divorce was granted, and if she could enforce the right by independent proceedings after the divorce was granted great confusion and uncertainty would result. After a divorce from the bonds of matrimony the husband might marry again, and, under § 3514 of Crawford & Moses’ Digest, in the event Of his death, his widow would be endowed of a one-third part of all the lands whereof he was seized of an estate by inheritance at any time during the marriage, unless the same had been relinquished in legal form.

So-it will be seen that if the first wife is entitled to maintain a. separate suit for one-third of her husband’s property under § 3511, this would to an extent repeal § 3514 of Crawford & Moses’ Digest with respect to dower. The title to the lands owned by the husband during the period of his marriage with his first wife would still be in him after he married again, and, in the event of his death before the statute of limitations barred his divorced wife from her recovery, the widow and the divorced wife would each under the respective statutes be entitled to dower in the same lands. This the lawmakers evidently did not intend. They manifestly intended to change the comm on-law rule that a divorce from the bonds of matrimony barred dower and to give the wife an estate in the nature of dower when a decree of divorce was granted in her favor'. If she did not ask and obtain the relief when the decree of divorce was granted, to her the matter became res juMcata.

This holding is in accordance with the general rule that in subsequent proceedings in the same court for the settlement of property rights between parties the matters which were or might have been litigated in the first suit are res judicatae. Livingston v. New England Mtg. Security Co., 77 Ark. 379, and Taylor v. King, 135 Ark. 43.

Again, it is contended by counsel for the plaintiff that she is entitled to the relief prayed for in this case because she was not present when the divorce decree was entered nunc pro tunc by the court on its own motion. There might be some ground for this contention if the plaintiff was seeking to set aside that decree. She does not seek to have that decree set aside, but on the contrary seeks to uphold it. It was for her benefit, and she can not consider it valid for one purpose and invalid for another. She must accept or reject it in its entirety.

As stated in Wood v. Wood, supra, she has no right to complain in this court that she did not obtain relief which she neither asked nor desired in the chancery court.

It follows that the decree must be affirmed.


text:
    Sachs v. Norton-Wheeler Stave Company.
    Opinion delivered April 17, 1922.
    1. Appeal and error — finding on conflicting evidence. — A finding of the circuit court on conflicting evidence will not. be disturbed on appeal.
    2. Vendor and purchaser — severance of rent from fee. — .Where the annual rent of land on January 15, was payable in advance, and the vendor collected it when due, and before he deeded the land to a purchaser on January 20, this had the effect of severing the rent for the year from the fee.
    Appeal from Jefferson Circuit Court; W. B. Sorrels, Judge;
    affirmed.
    STATEMENT OP PACTS.
    Lewis Sachs brought this suit in the circuit court against the Norton-Wheeler Stave Company, a firm composed of E. R. Norton and A. G. Wheeler, to recover the sum of $300 alleged to be due as rent on a certain tract of land.

      The defense was that the lessees had paid the rent to the proper person and that the plaintiff was not entitled to it. On the 15th day of January, 1916, ft. M. Fletcher leased to the Norton-Wheeler Stave Company a tract of land for five years and the lessees agreed to pay as rent $300 per annum payable in advance.
    On May 17, 1917, the lease was assigned to J. C. Clippard and Wm. B. Schaefer, who thereafter collected the rent for the years 1918,1919 and 1920. The rent for 1920 is in controversy in this case. J. C. Clippard and Wm. B. Schaefer also by deed acquired title to said land and in the summer of the year 1919 agreed to sell the land to Lewis Sachs.
    According to the testimony of Lewis Sachs, the agreement to sell the land to him was made in the summer of 1919, but there was some disagreement about the form of the deed and the sale was not finally closed by the execution of a deed by Wm. B. Schaefer until the 26th day of January, 1920. At that time Sachs paid to Schaefer the purchase price of the land, and it was understood that the rent from that time on should be paid to him. On the 26th day of January, 1920, Sachs demanded the rent of E. R. Norton, a member of the firm of the Norton-Wheeler Stave Company. Norton told him that he would have to get an order from Mr. Schaef¿r before he could pay the rent to Sachs. Norton paid the rent to Schaefer on the 10th day of February, 1920. Schaefer made the deed to S. & E. Sachs, as directed by Lewis Sachs. The deed was filed for record on March 31,1920. The lease contract in question was assigned by Clippard and Schaefer to S. & E. Sachs, but the date of the assignment does not appear. The testimony of Lewis Sachs was corroborated by his .son.
    Wm. B. Schaefer was a witness for the defendants. According to his testimony, the sale of the land was consummated some time during the month of January, 1920, and, as a part of the consideration for the deed, Schaefer was to retain all the rents he had collected. He had collected the rent for the year 1920, and retained it as a part of the consideration for the sale of his interest in the land to Sachs. Subsequently Schaefer assigned his rights in the lease contract to S. & E. Sachs. He thinks the assignment was made in February or March, 1920.
    Other facts will be stated or referred to in the opinion.
    The court made a special finding of fact in favor of the defendants and judgment was rendered in their favor. To reverse that judgment the plaintiff has duly prosecuted an appeal to this court.

      Taylor é Jones, for appellant.
    The fee simple title to land carries with it the right to absolute dominion, where the property is rented at the time it is conveyed, and unless the deed reserves the right in the grantor to collect the rents, these pass as a necessary incident with the land to the grantee. 92 Ark. 319; 123 Ark. 23; 10 Ark. 9.

      Bridges é Wooldridge, for appellee.
    The rent of the land goes to the one who owns the reversion at the time the rent falls due, regardless of the question of ownership during the earning period. L. E. A. 1915-0, p. 231, note (e); Id. p. 299 note (b); Id. p. 245. See also 16 E. C. L. p. 852; Id. p. 915; 92 Ark. 315. The rents may be severed from the reversion, so that the right to collect rent notes does not pass with the reversion. 96 Ark. 230.
   Hart, J.

(after stating’ the facts). Counsel for the plaintiff seek to reverse the judgment on the authority of Latham v. First National Bank of Ft. Smith, 92 Ark. 315, and Gailey v. Ricketts, 123 Ark. 18. In those cases it wias held that where property is rented at the time it is conveyed, the right to receive the rent subsequently due passes to the grantee, unless the deed reserves the right in the grantor to collect and receive the rents.

The case was tried before the circuit court sitting as a jury, and those oases would have been authority for the plaintiff if the finding’ of fact by the trial court had been in his favor. According to the testimony of the plaintiff himself, while the trade for the land was practically agreed upon in the summer of 1919, it was not closed until the deed was executed and the purchase price paid on the 26th of January, 1920.

According to the testimony of the plaintiff, and of his son, payment of the rent was demanded of the defendants on the 26th day of January, 1920, and E. R. Norton, one of the defendants, told the plaintiff that he could not pay him the rent until he had procured an order to that effect from Wm. B. Schaefer. Norton himself says that he does not recollect definitely about this; but he was accustomed to paying the rent promptly as provided in the lease, in order to avoid a forfeiture of the lease. He paid Schaefer the rent for the year 1920 in order to avoid a forfeiture of the lease.

According to the testimony of Schaefer, he had collected the rent before the deed was executed and the balance of the purchase price was paid by Sachs. The parties understood that the rent was payable in advance on the 15th day of January, 1920, and that Schaefer had collected it as a part of the purchase price before the sale was finally consummated. Some time in February or March, later, he made an assignment of the lease contract to S. & E. Sachs, as directed by Lewis Sachs.

As we have just seen, the testimony for the plaintiff and the defendants as to when Schaefer collected the rent was in direct and irreconcilable conflict. The trial court settled this issue in favor of the defendants, and under1 the settled rules of practice in this State that finding cannot be disturbed on appeal.

If Schaefer collected the rent when due, he did so before he finally consummated the sale of the land to Sachs. The question of parol reservation of the rent is not involved in this appeal, as contended by counsel for the plaintiff. The rent was payable on the 15th day January in advance, and Schaefer had a right to collect the rent when it became due. He testified that he did this before he executed the deed to Sachs. This had the effeet of severing the rent of the land for the year 1920 from the fee.

It follows that the judgment must be affirmed.


author: Smith, J.

text:
    Flannagan v. Citizens’ State Bank of Keithsburg, Ill.
    Opinion delivered April 17, 1922.
    1. Vendor and purchaser — notice op incumbrance. — One who deraigns title through a' deed reciting a mortgage is affected with notice of it, though the deed to him warranted that the land wa3 free from incumbrance.
    2. Vendor and purchaser — effect op prior incumbrance. — One who purchases land by a deed which recites the existence of a prior incumbrance, takes subject thereto, though the prior mortgage was defectively acknowledged; but he does not become personally liable for such mortgage debt unless he expressly assumes it.
    3. Abatement and revival — former suit pending. — It was immaterial that at the time a suit to foreclose a mortgage was instituted there was a suit pending in another State on a note secured by such mortgage if that suit was dismissed before decree.
    Appeal from Fulton Chancery Court; Lyman F. Reeder, Chancellor;
    affirmed.

      G. E. Elmore and Oscar E. Ellis, for appellant.
    An acknowledgment to a mortgage must show that it was executed for the “consideration” and purpose therein mentioned, otherwise it is void as to all persons except the parties to the transaction. C. & M. Dig., § 1521; 20 Ark. 190; 32 Ark. 598; 33 Ark. 63; 35 Ark. 62; 37 Ark. 91; 40 Ark. 537; 42 Ark."140; 49 Ark. 83; 56 Ark. 88; 61 Ark. 123; 111 Fed. Repts. 647. While a purchaser is charged with actual notice of such defect, where he could have discovered same (103 Ark. 429; 144 Ark. 79), yet there is nothing in appellant’s deed nor in the deed to his grantor to put him upon notice. However the mortgage was void from the beginning, even though appellant had actual knowledge.

      The curative act of 1919 could not interfere with vested rights of third parties. 43 Ark. 156; Id. 420; 58 Ark. 117; 62 Ark. 431.

      H. A. Northmtt and P. C. Good%vm, for appellee.
    The fact that a suit was pending in Oklahoma, which had been dismissed, would not be a bar to this suit. 32 Ark. 332 and cases cited.
    The purchaser was charged with constructive notice of any defects in his title. 50 Ark. 329; 15 Ark. 184; 29 Ark. -650; 14 Ark. 69; 35 Ark. 100; 103 Ark. 429; 147 Ark. 533; 48 Ark. 260.
   Smith, J.

This' suit was brought to foreclose a mortgage, which had been properly assigned to appellee but which had been defectively acknowledged, in that the word “consideration” was omitted in the officer’s certificate. The mortgage was executed on September 13, 1915, by O. H. Munyon and his wife, and secured a note for $2,000, due three years after date. Appellant, Lee Flannagan, filed a motion to be made a party defendant; and an order to that effect was made without objection. Flannagan filed an answer alleging ownership of the land described in the mortgage sought to be foreclosed, and deraigned title thereto' through mesne conveyances set out in the answer as follows: Munyon conveyed to Grandjean, who conveyed to Lansford, who conveyed to Flannagan. These were all warranty deeds, and the ones from Grandjean to Lansford and from Lansford. to Flannagan covenanted that the land was free from all incumbrances. The deed from Munyon to Grandjean, however, contained the following exception: “Except a mortgage to A. C. Watson for $2,000, dated September 30, 1915, and to run three years after date, iat 7 per cent., due September 30, 1916, and annually thereafter.”

The court held that this recital was binding upon Flannagan, as it appeared in his chain of title, and ordered the foreclosure of the mortgage; and this appeal is from that decree.

We think the court committed no error in its ruling. In the case of Clapp Bros. & Co. v. Halliday Bros., 48 Ark. 258, a second mortgage recited the existence of a prior one and directed the mortgagee in the second mortgage to apply the proceeds of certain of the property mortgaged to the payment of the first mortgage. This first mortgage was defective in that the word ‘£ consideration ’ ’ was omitted in the officer’s certificate of acknowledgment. The question of priority arose between the mortgagees, which the court disposed of in the following language: “By accepting a mortgage which recited the first mortgage, and provided for its payment, the plaintiffs had estopped themselves to deny the existence of that mortgage and the validity of its lien. Jones on Chattel Mortgages, 2 Ed., § 488.”

In that case it was also determined that the mortgagee in the second mortgage was not personally liable for the debt secured by the first mortgage, although he had appropriated proceeds of the sale of certain cotton covered 'by both mortgages. This was held on the theory that the second mortgagee had not expressly assumed to pay the prior mortgage,- but had merely taken his mortgage subject to the prior incumbrance, and the second mortgagee was required to pay only the value of the cotton converted. Sunny South Lbr. v. Neimeyer Lbr. Co., 63 Ark. 268; Ghio v. Byrne, 59 Ark. 280; Millington v. Hill, Fontaine & Co., 47 Ark. 301; Madden v. Suddarth, 144 Ark. 79.

The application of these oases to the instant case is denied because the recital of the outstanding incumbrance is not contained in the deed to Flannagan. The deed to him contains, as has been said, a covenant that the land was free from all incumbrances. But the deed which does contain the recital of the incumbrance subject to which the deed was made is in the line of Flannagan’s title, and he was therefore affected with notice of it, and it was his duty to inquire whether the incumbrance had been discharged. Gaines v. Summers, 50 Ark. 327; Abbott v. Parker, 103 Ark. 429; Madden v. Suddarth, supra; Star Lime & Zinc Mining Co. v. Arkansas National Bank, 146 Ark. 246. In other words, the deed through which Flannagan claims was made subject to the mortgage, and as Flannagan’s title is deraigned through this deed he is affected with notice of its recitals.and takes subject thereto.

The case of Clapp Bros. & Co. v. Halliday Bros., supra, is authority for saying that there is no obligation on the part of any one claiming through the deed from Munyon to Grandjean to pay the incumbrance therein recognized as existing against the land; but such purchasers took subject to that incumbrance.

In bar of this action it is alleged that there is a suit pending in Oklahoma on the note secured by the mortgage here sought to be foreclosed. And so there was at the time of the institution of this suit. But before the rendition of the. decree here appealed from the suit in Oklahoma was dismissed; and that suffices. Grider v. Apperson, 32 Ark. 332; Moore & Co. v. Emerick, 38 Ark. 203.

Decree affirmed.


text:
    Green v. Conservative Loan Company.
    Opinion delivered April 17, 1922.
    Usury — brokerage fee. — Where a loan, company loaned money for 10 years at 6 per cent., charging a brokerage fee, which was paid by notes maturing within three years, for service in procuring the loan, the transaction was not usurious, if the interest and fee did not exceed lawful interest for ten years, though the fee and interest charged exceeded the legal rate for three years.
    Appeal from Montgomery Chancery Court; Jethro P. Henderson, Chancellor;
    affirmed.

      Isaac L. Awtrey, for appellant.
    The amount of interest exacted of the defendant for the loan was greater than the legal rate of interest and rendered the contract usurious and void. Art. 19, § 13, Const.; .C. & M. Digest, § 7353.

      E. L. Carter and Rose, Hemingway, Cantrell <& Loughborough, for appellee.

      The contract was valid and binding. 27 R. C. L. p.. 209, § 10; 156 N. W. 667; 94 Ga. 306; 32 L. R. A. 208; 109 Ark. 69; 141 U. S. 384; 86 Ark. 25; 87 Ark. 539.
   Smith, J.

On October 5, 1917, appellee entered into a contract with the appellant, under the terms of which appellee agreed to obtain for appellant a loan of $1,750, to be secured by a mortgage on his farm, for .a period of ten years, for which a note bearing interest at six per cent, was to be executed. At the same time, and as part of the same transaction, appellant executed to appellee three notes, each for $116.66, without interest to maturity, and maturing in one, two and three years after date. These three last notes represent a brokerage fee of $350 which appellant agreed to pay for services of appellee in making the loan, and as appellee made the loan itself the notes for this brokerage fee were made payable to its order and were secured by a second mortgage on the land on which the first mortgage was given. The first of these brokerage notes was paid, but default was made in the payment of the second and third, and this suit was brought to foreclose the mortgage securing them.

The defense interposed is that the transaction was usurious and void. The insistence is that the principal note of $1,750 bore interest at 6 per cent., and the three notes maturing in 1, 2, and 3 years are in law interest paid for the principal loan, and that the $105 interest on the principal loan due each year and the $116.66 payable for each of the first three years amount to $221.66 for each of the first three years and is more than 10 per cent, on the principal loan.

It is true that the payments for each of the first, three years amount to $221.66, and that this is more than 10 per cent, on the sum loaned, and if the loan had been made for a period of three years only, the contract would be usurious and void. But the loan was not for three years. It was for ten years, and a calculation has been submitted which appears to be correct — and its correctness is not challenged — which shows that if the payments are made as called for by the contract, a sum in excess of 10 per cent, will not have been collected.

This calculation credits the annual payment of $105 to be paid each year, and also credits the annual payments of $116.66 to be made during each of the first three years as partial payments in accordance with the statutes of this State controlling in such cases; and it appears that when this has been done the total sum paid at the end of the ten years will be $220.38 less interest than would. have been collected had a straight charge of 10 per cent, per annum been made, as might lawfully have been done. In other words, appellant borrowed, and received, $1,750 under a contract calling for its repayment in such a way as that at the end of the ten years he will have paid $220.38 less than 10 per cent, for the money borrowed during the time it was borrowed; ¡and the transaction is not, therefore, usurious.

In the case of Ellis v. Terrell, 109 Ark. 69, a note was given for $200, due in 5 years, and bearing interest at 6 per cent, from date; but the borrower received only $160, the sum of $40 being deducted at the time the loan was made. This transaction was held usurious, but not because of the deduction made when the loan was negotiated, which deduction was 20 per cent, of the face of the note. The court treated the amount loaned as being $160, the face of the note less the cash deducted, and ascertained that the amount agreed to be paid exceeded 10 per cent, on the amount actually loaned for the 5-year period covered by the note.

When the same test is applied here it is found that the contract does not require the payment of any sum in excess of 10 per cent, for the use of the money loaned for the period of time for which the loan was made.

This court is committed to the proposition that, in determining whether a contract is usurious or not, we will ascertain the intention of the parties; and if it appears that the parties intended, by their contract, that the borrower should pay any sum in excess of 10 per cent, during the time the borrower is to have the use of the money loaned, then the contract is usurious and void, whatever the method may have been to conceal this intent. If this intent does not exist, and the contract does not contemplate and call for the payment of a sum in excess of 10 per cent, for the use of the money during the time the borrower is to have its use, then the contract is not usurious.

There appears to be no subterfuge here to exact the payment of usury. Upon the contrary, if the payments are made as called for in the contract, a sum less than 10 per cent, will have been paid for the use of the money loaned during the time it was loaned; and the contract is not, therefore, an usurious one.

The decree of the court below accords with the law here announced, and it is therefore affirmed.


text:
    Hodge v. Brooks.
    Opinion delivered April 17, 1922.
    1. Appeal and error — improper evidence — invited error. — In an action for alienating the affections of plaintiff’s wife, where plaintiff, as part of his case in chief, offered testimony that plaintiff’s credit was good, which testimony plaintiff announced was in rebuttal and offered at that time because the witness was called away, the error, if any, in admitting plaintiff’s evidence that plaintiff's credit was bad and that he did not pay his bills was invited, and does not call for a reversal, especially where the court charged the jury not to consider the plaintiff’s ability to pay his bills.
    2. Husband and wife — alienation of affections — ill will. — An instruction in an action for alienating the affections of plaintiff’s wife that plaintiff must show that defendant “wrongfully and wilfully” alienated the affections of plaintiff’s wife was proper.
    3. Husband and wife — alienatíon of affections. — In an action for alienating the affections of plaintiff’s wife, it is essential that plaintiff prove that there should have been a conscious purpose on defendant’s part to do a wrongful act.
    4. Husband and wife — alienation of affections — liability.—An instruction, in an action for alienating a wife’s affections, that defendant was not liable if the affections of plaintiff’s wife were alienated by plaintiff’s acts was called for by evidence on defendant’s behalf that plaintiff’s wife left him because of his neglect in failing to furnish proper support.
    Appeal from Howard Circuit Court; A. P. Steel, special judge;
    affirmed.

      W. P. Feasel and W. G. Rodgers, for appellant.
    1. The court in its instructions 1 and 17 placed a greater burden on the plaintiff than is required by law in such cases. Neither were they justified by the allegations of the complaint. 88 Ark. 562; 89 Ind. 118, 127; 61 Ala 9, 11; 6 Wyo. 419; 45 Pac. 1073; 88 Mich. 633; 48 Minn. 466.
    2. The court erred in admitting, over plaintiff’s objections, testimony introduced by defendant to show plaintiff’s financial condition and in instructing the jury that they could only consider the same as tending to show facts that might have caused the separation or loss of affections. 3 Ind. App. 232. Since the court later did instruct the jury that they could not consider plaintiff’s poverty or his want of ability to pay his debts, etc., this amounted to a conflict in instructions justifying reversal. 123 Ark. 594, 600.
    3. It was not necessary to prove any particular sum as damages, in order to recover. Proof of alienation of the wife’s affections and the breaking up of the home, was sufficient. 88 Ark. 562.

      Steve Garrigcm, for appellee.
    1. There is no error in the instruction complained of. The word “wilfully” as used therein is proper. Rodgers on Dom. Relations, § 177; 45 S. W. 652; 13 R. C. L., § 513; 75 N. W. 101; 40 N. Y. 390-; 45 Fed. 319. The use of the word “wilful” in a civil action and instruction does not carry with it the meaning of “malice.” 1 Bishop, Crim. Law, § 428; Webster’s New Inti Diet., “Wilful”; 162 Fed. 556; 91 N. W. 904; 109 S. W. 1047; 91 S. W. 1123; 79 Id. 1111; 181 Mo. 192; 92 S. W. 674; 194 Mo. 377; 92 S. W. 684; 194 Mo. 717; 98 S. W. 2; 200 Mo. 1; 84 S. W. 984, 186 Mo. 174; 64 Atl. 194.

      2. The gist of the action is the loss, without justifiable cause, of the comfort, society and services of the wife. If plaintiff’s loss in this case was caused by the voluntary act of the wife, upon justifiable cause, he cannot recover. If the loss was caused by the acts or persuasions of the defendant without any real cause, and in bad faith towards the plaintiff, he may recover; but the burden is on him to prove these facts. 40 N. Y. 390 ; 48 S. W. 601.
   Smith, J.

Appellant Hodge was the plaintiff below, and sued to recover damages for the alleged alienation of the affections of his wife by appellee Brooks, defendant below. The testimony made a case which would have supported the verdict had it been in Hodge’s favor, although no attempt was made to show that any immoral relation ever existed between Brooks and Mrs. Hodge, nor was there any testimony that these two had ever been seen in a compromising position, the nearest approach thereto being that it was testified that on one occasion Brooks showed Mrs. Hodge how to drive an automobile and during the lesson had his arm resting on the seat back of his pupil. This occurred, however1, in the day-time and on one of the principal streets of the town of Mineral Springs.

Hodge and his wife resided in a house with Brooks, the house being one Brooks had rented in the town of Mineral Springs. The testimony shows that Brooks became dissatisfied with this arrangement and ordered Hodge to vacate. This order was given and obeyed in February, 1921. In April thereafter Mrs. Hodge left her husband and returned to her people, who lived in an adjoining county, where she has since resided, and in September thereafter Hodge brought this suit.

The conduct of Brooks complained of consisted principally of assistance to Mrs. Hodge in the discharge of her domestic duties and little personal services about the house; of carrying her from her home in Mineral Springs in an automobile owned by ¡Brooks to Sara-toga, ten miles away, where she taught school; and in lending her money on two occasions, first to buy a knitting machine which cost about $75, and afterwards to buy a suit costing about $40. In explanation of this testimony, it was shown that Hodge and his wife were comparatively a young couple; that Brooks was sixty-four years old, and badly crippled with rheumatism, using two canes when he walked; that Brooks was physically unable to work, but his financial condition permitted him to live without working; that he drove Mrs. Hodge to her school at her husband’s request and upon his promise to pay for the service; that, as Brooks had no regular employment, he assisted in the discharge of many of the little duties around the house as a matter of occupation and courtesy; and that the money loaned was lent with the knowledge and at the request of Hodge; and that Brooks had done nothing to induce Mrs. Hodge to leave her husband.

Over Hodge’s objection the court admitted testimony to the effect that Hodge did not pay his bills and that his credit was not good. The error of this action was mitigated somewhat by an instruction numbered 8, given at Hodge’s request, reading as follows: “You cannot take into consideration the poverty or want of ability of the plaintiff to pay his debts; nor the fact that the defendant, Brooks, may think that he does not give his wife the pleasures and luxuries that he, Brooks, thinks she ought to have in this case, since such matters do not justify the alienation of the affections of the plaintiff’s wife from him, if they have been alienated. ’ ’

If it be true that this instruction did not remove the prejudice arising out of the admission of the incompetent testimony, then it may be said that the error Was an invited one. Hodge first testified in his own behalf, and then called as a witness Dr. Toland. It was stated at the time that Dr. Toland was being called out of time, as he had to leave town to visit a patient, and that the testimony was being offered in rebuttal. However,' at that time there was nothing to rebut, as Hodge alone had testified. Dr. Toland was the owner of the house which Brooks had rented at the time Hodge and his wife were living with him. Dr. Toland testified that Hodge’s-credit was good, and that he had never hesitated to attend either Hodge or his wife professionally, whether they had the cash money to pay for his services or not.

Numerous objections are urged to the instructions given in the case; but we think those which require discussion are disposed of by what we shall say in regard to instructions numbered 1 and 17 and another numbered 3 given at the request of Brooks and over Hodge’s objection. Instruction numbered 1 reads as follows: “You are instructed that, in order for-the plaintiff to maintain this action against the defendant, the burden devolves upon the plaintiff to show by a preponderance of the testimony that the defendant in this case wrongfully and wilfully .attempted to alienate the affections of the plaintiff’s wife, and that he wrongfully and wilfully attempted to deprive the plaintiff of his wife’s society, and that such attempt was successful, and that this plaintiff was not a consenting party to such acts or conduct of the defendant by which plaintiff claims that the defendant alienated his wife’s affections with.” Hodge objected to this instruction generally and specifically “because the use of the word ‘wilfully’ and the words ‘wrongfully and wilfully’ would or might be misleading to the jury, and because the law gives relief in cases of this kind if the affections are alienated culpably, though not wilfuly and wrongfully.”

Instruction numbered 17 reads as follows: “You are instructed that, before the plaintiff can recover in this cause, he is required to establish all the allegations of his case by a preponderance or greater weight of the evidence. Your verdict in this case must be based upon legal evidence submitted to you and not upon guesswork or conjecture. And if, after hearing .all the evidence in the case, you are not satisfied by the preponderance or greater weight of the evidence that the acts of the defendant as alleged in the complaint are true, or that the defendant wilfully and in bad faith to the plaintiff alienated plaintiff’s wife’s affections, your verdict should be for the defendant.” Hodge objected to this instruction generally and specifically “because it justifies a recovery notwithstanding the defendant may have alienated the affections of plaintiff’s wife, providing he did not do so in bad faith, even though the jury might find that he did so wilfully and wrongfully. Also because the words ‘wilfully’ and ‘wrongfully’ as used in the instruction require a more flagrant case- of alienation than the law calls for; also for the reasons stated in plaintiff’s objections to instruction No. 1 given for the defendant.”

We think no error was committed in giving the instructions set out above. No specific objection was made to the use of the words “bad faith,” and we think they were used in the instruction in the same sense as were the words wilfully and wrongfully. Hodge was not'required to show, to sustain his cause of action, that Brooks entertained any personal ill-will or malice towards him; but we do not think- the instructions imposed that requirement. They did require that Brooks’ conduct towards Mrs. Hodge should have been prompted by the conscious purpose of winning away from Hodge the consortium of his wife.

In the case of Boland v. Stanley, 88 Ark. 562, this court said: “The loss of what is termed in law ‘consortium,’ that is, the society, -companionship, conjugal affections, fellowship, and assistance of the wife, is the principal basis for actions of this kind,” that is, actions for alienating the affections of one’s wife. In the same ease it was also said: “Whoever invades the hallowed precincts of a home, and, without justifiable cause, by any means whatsoever severs the sacred tie that binds husband and wife, alienating her affections from him, and depriving him of the aid, comfort and happiness of a loyal union between them, is liable in civil damages for his wrongful conduct. Rogers, Dom. Rel., § 177; Schouler’s Dom. Rel., § 41; Tiffany, Per. & Dom. Rel. 74; 15 Am. & Eng. Enc. Law, 862. In such cases whether or not there were malevolent or improper motives is always a material consideration.”

Without so intending, one might acquire or lose another’s affections. The defense here interposed was that, by his own neglect, Hodge had lost the consortium of his wife, and several members of her family so testified. It was also denied that Brooks had won the affections of Mrs. Hodge; and it was further asserted that, if such was the case, there had been no conscious purpose so to do.

The thing forbidden and made actionable is the entry of a home by a wrongdoer and the consequent loss of consortium by the injured spouse; and it does not matter whether this entry is by physical violence or subtle influence; but it is essential that there should be a conscious purpose to do a wrongful act. One who does this has acted wilfully and wrongfully and in bad faith to the injured spouse, and is liable to respond in damages therefor.

What we understand to be a correct statement of the rule in such cases is found at section 515 of the article on Husband and Wife in 13 R. C. L. p. 1466, where it is said: “As a general rule an intentional alienation or enticing away must be shown, and it may be laid down as a general rule, where there is no element of seduction or adultery, that a defendant in an action for alienation of affections is not liable unless he acted maliciously or from improper motives implying malice in law,whether he is a parent of or a stranger to the plaintiff’s spouse. While it is true that, as is hereinafter shown, it requires more evidence to establish malice on the part of a parent than is necessary in the case of a stranger, this difference is an evidential one merely.”

Among the annotated cases cited in the note to this section is our case of Boland v. Stanley, supra, which is annotated in 129 Am. St. Rep. 114.

Other instructions objected to, including No. 3, mentioned above, declared the law to be that if the affections of Mrs. Hodge “were alienated either by Hodge himself, or Ms conduct, or by any other act, except the wrongful acts of the defendant,” the defendant was not liable. One is, of course, responsible only for the effects of his own conduct, and the instructions are not questioned as correct declarations of the law, but they are said to be abstract. We tMnk it appears, from the very general statement we have made of the issues of the case, that instruction numbered three and others of similar purport are not abstract.

Upon a consideration of the whole case, we find no prejudicial error, and the judgment is affirmed.


author: Humphreys, J.

text:
    Vance v. Bell.
    Opinion delivered April 17, 1922.
    1. Sales — delivery.—In a sale of chattels, delivery is a question of intention of the parties, as manifested by overt acts, and a sale -will be treated as completed where any act has been done which was intended by the parties as a delivery.
    2. Sales — sufficiency of delivery. — Where a seller of chattels in the possession of his employee instructs such employee that he has sold them to another and directs him to hold them for the buyer, this constituted a symbolical delivery and effected a change in the possession of the property.
    Appeal from 'Sevier 'Circuit Court; B. E. Isbell, special Judge;
    reversed.

      Lake <& Lake, for appellant.
    Delivery is a question of intention, manifested by overt acts. 119 Ark. 215; 54 Ark. '304; 62 Ark. 592; 91 Ark. 240; 35 Ark. 304; 102 Ark. 344; 148 Ark. 576; 106 Ark. 483; 54 Ark. 305; 236 U. S. 97, 59 Law Ed. 483.
    TaMng possession under the power in a mortgage is such a delivery as satisfies the statute. 213 Mass. 210; 100 N. E. 333.
    Findings of fact by a court sitting as a jury are as •conclusive as the verdict of a jury and will not be disturbed if there is evidence to support them. 60 Ark. 250; 25 Ark. 562; 25 Ark. 558; 33 Ark. 97; 34 Ark. 524; 36 Ark. 260; 53 Ark. 161; 56 Ark. 621.

      Abe Collms and E. K. Edwards, for appellee.
    The testimony fails to show an actual or visible delivery of the property. 1 S. W. 707; 47 Ark. 210.
    Where a pre-existing debt is the consideration for a sale of chattels, the purchaser is not treated as a purchaser for value and protected as an innocent purchaser. 24 B .C. L. 384; 57 Ark. 574.
    This case is controlled by the following decisions: 47 Ark. 210; 65 Ark. 37; 1 S. W. 707.
   Humphreys, J.

This is an appeal from a judgment in favor of appellee C. A. Bell, as constable, and appellees Lockesburg Hardware Company and Planters’ Bank of Lockesburg, as interpleaders, in a replevin suit which had been brought by appellant to recover certain personal property seized by said appellee Bell as constable under a writ of attachment obtained by appellee Lockesburg Hardware Company in a suit between it and the Federal Lumber Company, and an execution obtained by the Planters’ Bank of Lockesburg upon a Judgment procured by it against the Federal Lumber Company. Appellant claimed the title and right of possession of the property under a bill of sale executed to it by the Federal Lumber Company on May 5, 1921. The interpleaders, creditors of the Federal Lumber Company, claimed the right of possession of the property under attachment and execution liens acquired by levy of writs upon the property in question on the 6th day of May, 1921. The cause was submitted to the trial court, sitting as ¡a jury, upon the pleadings and evidence, which resulted in a finding, and judgment accordingly, that the purported sale of said property by the Federal Lumber Company on the 5th day of May, 1921, to appellant as trustee for the State National Bank of Texarkana was incomplete at the time the writs of attachment and execution were issued and levied, because there had been no delivery sufficient in law to pass the title of said property from the Federal Lumber Company to appellant in his capacity as trustee.

The undisputed facts tending to establish a delivery of the property in question to appellant on the 5th day of May, 1921, prior to the issuance and levy of the writs of attachment and execution, are as follows: The Federal Lumber Company, a corporation domiciled at Texarkana, Miller County, executed a mortgage upon the property in question, together with other property, to the State National Bank of Texarkana to secure a large indebtedness. The mortgage was never filed or recorded in Miller County, the mortgagor’s domicile. A part of the property mortgaged was located at or near Loekesburg, in Sevier County. About the 1st of April, 1921, M. B. Armstrong was employed by the Federal Lumber Company and placed in possession of the property belonging to it in Sevier County. He operated a mill for it at Lockesburg. A part of the property was placed in a pasture belonging to Robbie Jacques, near Lockesburg, and part of it in a corral at the residence of Walter Lowery in Lockesburg. On the 5th day of May, 1921, the Federal Lumber Company executed a bill of sale to the State National Bank of Texarkana on the property in Sevier County, as well as other property covered by the mortgage, in part payment of the mortgage indebtedness. The bill of sale was delivered on the day it was executed to appellant as trustee for said bank, and George Hicks, president of the Federal Lumber Company, telephoned M. B. Armstrong, who was in control of the property as its employee, to hold same in the future as the property of the State National Bank aforesaid, informing him that the Federal Lumber Company had that day sold same to said bank. At the same time the bank, through Stuart Wilson, its vice-president, notified Armstrong by letter of the transaction, accepting him as its custodian of the property. Immediately after receiving the information, Armstrong notified the men working at the mill of the transaction and that he had assumed charge of the property for said bank, and that they would receive their wages in the future from the bank. He also employed a night watchman to watch the mill property for the State National Bank, who went to work on the night of the 5th of May. On the following morning, May 6th, the Lockesburg Hardware Company had an attachment issued and placed in the hands of C. A. Bell, constable of Red Colony township, who levied the same on the property in the corral at the residence of Walter Lowery, and on the same day the Planters’ Bank of Lockesburg had an execution issued on a judgment which it had theretofore obtained against the Federal Lumber Company, and placed same in the hands of said constable, who, on the same day, levied it upon the property in the pasture of Robbie Jacques.

Under the record thus stated, the sole question presented on this appeal for determination is whether the direction given by the Federal Lumber Company to its employee, M. B. Armstrong, who was in control of the property, to hold the same as employee or agent of the State National Bank in the future, and the acceptance by said bank of M. B. Armstrong as its employee or agent, was an overt act effecting the delivery of the property within the meaning of the law. This court ruled, in the case of Hodges Bros. v. Bank of Cove, 119 Ark. 215, that (quoting syllabus): “In a sale of chattels, delivery is a question of intention of the parties, as manifested by overt acts, and a sale will be treated as completedwhere any act has been done which was intended by the parties as a delivery.” The transfer of the employee, agent or custodian who had control of the property in the instant case, and the acceptance of him by the bank as its employee, agent or custodian for the purpose of holding the property in the future for it, was clearly an overt act manifesting an intention on the part of the parties to deliver the property. In Russell v. Haltom, 76 Ark. 506, a case quite similar to the instant case, this court said: “Counsel for appellant contends that there was no delivery of the property under the bill of sale, and that the title did not pass against creditors. On this issue, too, the verdict of the jury settled the question against appellant’s contention. It was shown that the delivery of the property was made at the time of the execution of the bill of sale, and that the same was left in the possession of one Grayson, an employee of appellant, to hold for appellees. Counsel contends that this was equivalent to retention of possession by appellant, and that no title passed. This contention is not, however, sound, for the reason that Grayson, though an employee of appellant, could have been constituted the agent of appellee for the purpose of holding the property, and the evidence shows that such was a fact. This constituted not only a constructive delivery, but an actual change of possession. Either is sufficient to complete a sale fr.ee from fraud. Shaul v. Harrington, 54 Ark. 305; Lynch v. Daggett, 62 Ark. 592; White v. McCracken, 60 Ark. 613.”

In the instant case, Armstrong, an employee of the Federal Lumber Company, who had control of the property in question, was constituted the agent of the State National Bank for the purpose of holding the property for said bank, and this is shown by the undisputed evidence. The proof by the undisputed evidence of this overt act was a symbolical delivery effecting the change of the possession of said property. The court therefore erroneously found that the liens under the writs of attachment and execution were prior and paramount to the title acquired under the sale by appellant for said bank.

The judgment is reversed, and judgment rendered here in favor of appellant.


text:
    Coleman v. Utley.
    Opinion delivered April 17, 1922.
    Judgment — right to judgment notwithstanding verdict. — Where the undisputed evidence showed that plaintiff was entitled to a certain amount if he was entitled to recover anything, verdict for a lesser amount was arbitrary, and it was error to deny plaintiff’s motion for judgment for the full amount.

      Appeal from Howard Circuit Court; A. P. Steel, special Judge;
    reversed.

      W. P. Feasel, for appellant. .
    The court erred in denying appellant’s motion for judgment. C. & M. Dig., § 6273; 100 Ark. 47; 133 Ark. 221. A new trial should have been granted. A new trial will be granted where the verdict is clearly against the evidence. 2 Ark. 360; 70 Ark. 385; 34 Ark. 632; 103 Ark. 370.'

      D. B. Sain, for appellees.
    The motion for new trial should have been overruled. 100 Ark. 629 ; 122 Ark. 100; 76 Ark. 115; 74 Ark. 478.
    "Where plaintiff voluntarily goes to trial without an answer being filed, he cannot make objection for the first time in this court. 109 Ark. 69; 112 Ark. 332.
   Humphreys, J.

Appellant instituted suit against appellees in the Howard Circuit Court to recover $282.90 for advances alleged to have been made by appellant to appellee John Graham to enable him to produce a crop on lands rentéd to him by appellant. It was alleged that, after the major part of the crop had been planted, appellee John Graham sold the crop to appellee, A. F. Utley, by and with the consent of appellant, the consideration being that A. F. Utley should pay all of Graham’s indebtedness to appellant on account of advances made to make said crop. Appellee A. F. Utley filed an answer, admitting that he purchased the crop by and with the consent of appellant, with the understanding that he would pay Graham’s indebtedness to appellant on account of advances made to plant the crop, upon condition that John Graham would stay on the place and help produce the crop; that, after remaining two or three weeks, said Graham refused to further assist in the cultivation of the crop and moved off the place. The cause was submitted to a jury upon the pleadings and evidence, which resulted in a verdict in favor of appellant for $141.45. Thereupon appellant moved for a judgment for $255.90, notwithstanding the verdict, on the ground that under the undisputed evidence appellant was entitled to recover that amount. Over the objection and exception of appellant, the court overruled the motion and rendered judgment in accordance with the verdict, from which an appeal has been duly prosecuted to this court.

The record reflects that appellant rented and was residing upon the farm of Dr. Toland in the year 1920; that he rented a part of the land to appellee John Graham on which to. plant corn and cotton; that after planting all of the corn and a part of the cotton he sold the crop, with appellant’s consent, to appellee A. F. Utley. At the time the sale was made appellant had made advances to appellee Graham in the total amount of $282.90, all of which was used in planting the crop, except $27 furnished to Graham for a wedding suit. The evidence introduced by appellant tended to show that the consideration for the purchase of the crop was the absolute assumption by A. F. Utley of. Graham’s indebtedness to appellant on account of advances made by appellant to plant the crop. The evidence introduced by appellee Utley tended to show that he assumed the indebtedness of Graham for said advances on condition that; Graham would remain upon the place and assist in the cultivation of the crop; that he refused to render this assistance and moved away from the farm.

Appellant insists that it was the duty of the court to declare as a matter of law upon the record in the case that he was entitled to recover the sum of $255.90, notwithstanding the verdict of the jury to the effect that he was entitled to recover only $141.45. This insistence of appellant is based upon the fact that the verdict of the jury settled the only controverted question of fact in favor of appellant, which finding necessarily entitled plaintiff to a judgment for the full amount of the advances made and used in planting the crop. The uncontradicted testimony revealed that appellant had advanced Graham, at the time he sold the crop to Utley, $255.90, which was used in planting the crop. The only dispute in the testimony was whether at the time of the purchase Utley assumed the payment of the amount so advanced. absolutely or conditionally. The theory of appellant was that he assumed the payment absolutely, and that of appellee Utley was that he assumed the payment conditionally, and that the condition failed. The cause was submitted to the jury upon each theory, and the finding of the jury in favor of appellant in any sum was necessarily a settlement of the disputed fact in favor of appellant, and against appellee Utley. The finding in favor of appellant in an amount less than the amount advanced was therefore an arbitrary finding. The verdict, as to the amount, was necessarily without any evidence to support it, as the undisputed evidence showed appellant was entitled to the whole amount advanced for the purpose of planting the crop or to nothing. •In this state of the record it was the duty of the court to sustain the motion filed by appellant and render a judgment upon the undisputed facts disclosed by the record for the full amount of the advances made to plant the crop, notwithstanding the verdict of the jury for a less amount. Collier v. Newport Water, &c., Co., 100 Ark. 47; Scharff Distilling Co. v. Dennis, 113 Ark. 221.

The judgment is therefore reversed, and judgment directed to be entered here for $255.90 in favor of appellant.


text:
    Francis v. Arkadelphia Milling Company.
    Opinion delivered April 17, 1922.
    1. Master and servant — negligence—pleading.—The • allegation that personal injuries to an employee were caused by the employer’s negligence in leaving sacks of • feed stacked in such manner that they fell of their own weight included the employer’s negligence in unstacking the sacks.
    2. Master and servant — assumed risks. — An employee of ordinary intelligence, experienced in the line of his duty and not working under the immediate direction of a superior, assumes the risk of dangers incident to conditions produced through the negligence of the employer which are obvious and imminent, and which he must have known imd appreciated in the exercise of ordinary care for his own safety, in the performance of his duties,

      3. Master and servant — assumed risk. — An experienced employee, 20 years old, knowing of the dangerous condition of stacked sacks of feed which fell and caused his injuries, assumed the risk and cannot recover.
    Appeal from Clark Circuit Court; George B. Haynie, Judge;
    affirmed.

      W. H. Mizell and Callaway & Callaway, for appellant.
    Plaintiff made out a case of negligence on the part of the defendant, and the matter should have been submitted to the jury for determination. 100 Ark. 53.
    Plaintiff did not assume the risk of injury from the negligence of the master or his fellow workmen. 118 Ark. 49; 106 Ark. 25.
    The doctrine of res ipsa loqmtur applies. 29 Oye. 591. While this doctrine is usually applied in the case of common carriers, it may apply with equal force as between master and servant. 105 S. W. 1057, 13 L: R. A. (N. S.) 140; 202 111. 144; 139 Ark. 489; 86 Ark. 76; Vol. 8 Encyc. of Evidence, p. 886.

      McMillan & McMillan and T. D. Wynne, for appellee.
    Appellant assumed the risk, and a verdict was properly directed. 89 Ark. 50; 76 Ark. 69; 97 Ark. 486 ; 95 Ark. 560; 100 Ark. 462.
    There was no allegation of negligence in the complaint, as to the taking down of the sacks, and proof directed to this issue could not avail plaintiff. 41 Ark. 394; 29 Ark. 500; 13 Ark. 88.
    The defect, if any, was open and obvious. 90 Ark. 392.
   Humphreys, J.

Appellant instituted suit against appellee in the Clark Circuit Court to recover damages in the stun of $5,000 on account of personal injuries received from falling sacks of feedstuff in one of the rooms of appellee’s grain elevator at Arkadelphia, through the alleged negligence of appellee in stacking the said feed-stuff and leaving the same stacked to such height and in such manner as to cause same to fall from its own weight upon appellant while engaged in cleaning the floor of said room, which work was in the line of his duty. Appellee filed an answer denying that it negligently stacked the feedstuff, or that it left same stacked in a negligent manner, and interposing the further defenses of assumed risk and contributory negligence by appellant. The cause was submitted upon the pleadings and evidence, at the conclusion of which the court peremptorily instructed a verdict for appellee, over the objection and exception of appellant. From the directed verdict, and the judgment rendered in accordance therewith, an appeal has been duly prosecuted to this court.

The evidence, stated in its most favorable view to appellant, was, in substance, as follows: Appellant, a man twenty years of age, was employed by appellee to truck sacks of feedstuff, which were stacked in ware-rooms at appellee’s elevator in Arkadelphia, into cars on the outside of the 'building for the purpose of shipment, and also to clean up rice hulls which had been spilled on the floor in said rooms. He had nothing to do with taking the sacks down from the pile. This was done by .another or other employees. After the sacks had been removed from the stack, appellant would assist in loading them on his truck and then push the load out to the car, and after unloading it would come back for another load. On the morning of the injury, which occurred about nine o’clock, after appellant had been engaged for an hour in trucking sacks of rice hulls out of the room in which the injury- occurred, the foreman took him away from this work and sent him, for about 30 minutes, to another part of the mill. He was then sent back to the room to clean up the spilled rice hulls from the floor1. While bent over, scooping up the hulls, several sacks fell off the pile and inflicted the injury complained of. In unstacking the piles the custom was to begin at the top and unstack them towards the bottom, leaving them in the shape of stairsteps. In this particular room, on this occasion, the stacks had been removed in such way as to leave those standing perpendicular. In fact, the stacks bulged out to some extent towards the top. At the time the injury occurred appellant had been working for appellee in the same capacity for about three months, and was familiar with the manner of stacking and unstacking the sack; of feedstuff. He knew the manner in which the sacks should be removed from the stacks in the several ware-rooms, and the manner in which the stacks should be left when only a part of the sacks were removed. The stacks were open to the view of any one entering the several warerooms.

Appellant insists that under the allegation of the complaint and proof adduced a disputed question of fact as to whether appellee was negligent in stacking or unstacking the sacks was presented for determination by the jury. Appellee, on the other hand, contends that the only allegation of negligence in the complaint was that the sacks were negligently stacked, and that the undisputed proof shows that the sacks were properly stacked. The allegation in the complaint was broad enough not only to include negligent stacking, but also negligent unstacking of said sacks. Part of the allegation is that appellee left the stacks of sacks in such manner as to cause same to fall from their own weight. Upon the question of negligence on the part of appellee it was therefore improper to.take the case from the jury, unless the undisputed evidence showed that appellant assumed the risk. Appellant insists that the court erred in holding that the undisputed facts showed that he had assumed the risk incident to falling sacks' occasioned through the negligence of his employer, appellee. An employee of ordinary intelligence, experienced in the line of his duty, and not working under the immediate direction of a superior, assumes the risk of dangers incident to conditions produced through the negligence of his employer which are obvious and imminent and which he must necessarily have known and appreciated in the exercise of ordinary care for his own safety in the performance of his duties. St. L. S. W. R. Co. v. Compton, 135 Ark. 563; Hunt v. Dell, 147 Ark. 94; Scott v. Wis consin & Ark. Lbr. Co., 148 Ark. 66; Emma Cotton Seed Oil Co. v. Hale, 56 Ark. 232.

The evidence reflects that appellee was familiar with the place where he was working, and that the condition in which the sacks were left through the negligence of the employees of appellee was obvious and imminent to any one working aground the stacks of sacks. In fact, the danger was so patent and open that it might have been observed by casual observation. The stack as left was not only perpendicular, but it was leaning or bulging out at the top. The record does not indicate that appellant was too young or inexperienced to appreciate the dangers incident to the condition in which the stack was left after a part of the sacks had been removed. Appellant was 20 years of age at the time the injury occurred, and had been in the employ of appellee as a trucker for about three months, and understood how the foodstuff should be stacked and unstacked with a view to the safety of the employees. The condition complained of, which produced the injury, being perfectly obvious and of such simple character that one of ordinary intelligence and experience would necessarily have known and appreciated the dangers incident thereto, the court correctly declared, as a matter of law, that appellant assumed the risk.

No error appearing, the judgment is affirmed.