text:
    McClaskey v. State.
    Opinion delivered March 23, 1925.
    1. MORTGAGES — DISPOSING OF MORTGAGED CHATTELS — ÑECESSITY <>F Demand. — It is not necefesary, under' Crawford &' MoseS’ Dig. § 2552, to sustain a conviction of a ‘mortgagor for disposing of mortgaged chattels, that demand should have been made on hitti for the debt or' the mortgaged property or that hé refuse payment of the debt.
    2. Mortgages — disposing of mortgaged chattels — concealment. —In a prosecution for disposing of, a mortgaged automobile, where it was proved tljat the mortgagor had placed the,,car in a garage, and told the mortgagee that he could not find it, it was not error to refuse to exclude testimony in regard to the oar, since, if the mortgagdr concealed the car so that it could not be found for the purpose of foreclosing the. mortgage, this would constitute a disposition of same, within the moaning of Crawford & Moses’ Dig., § 2553.
    3. Mortgages — disposing, of mortgaged chattels — variance in description.' — In a prosecution, under Cráwford & Moses’ Dig., § 2552, for disposing of a mortgaged wagon and an automobile where the indictment described the. wagon as “one 3-inch Bane ., log wagon,’’ whereas . the , mortgaged wagon was ■ properly described, as a “3 1-4 inch Bane log wagon,” held,, there. .was no fatal, variance. . .
    4. " Mortgages — disposing of mortgaged chattels — indictment.— ! An indictment for disposing of 'mortgaged property in violation of Ctawford & Modes’ Dig., •§ 2552, need not allege the name-Of ' the person to. whom’ the. property was sold or that the purchaser was unknown.,. ; :. . ; :
    ,5. , Mortgages, — disposing of mortgaged chattels^-inpictment.— Án indictment for disposing of mortgaged property held sufficient to charge that there was a debt due to the mortgagee,'and ■that disposition was made' With Monidus intent to defeat the ■ holder ."Qf .the mortgage ini the collection of’his debt.
    6. Mortgages — disposing of .mortgaged chattels-t-indictment.— An indictment fop disposing of mortgaged, property need not allege that' the mortgage hád been recorded. or filed, as. the mortgage'is‘good Us between mortgagor and mortgagee whether ■acknowledged or not.
    7. . .Mortgages —• disposing .of .mortgaged chattels — evidence,— In a prosecution for disposing of a mortgaged wagon and automobile, though certain mules embraced in the. mortgage Were hot mentioned in the indictment, testimony in regard to thíéir disposition Was relevant on' the question of'the mortgagor’s ■ good faitlt in disposing of’the wagon and autdmobiie. ■ ' -

      8. Criminal law — repetition of ' instructions. — Refusal to give requested instructions which were fully covered by those given by the court was not error. :
    9. Criminal law — argument of,, prosecuting;, attorney. — jr-In >a prosecution .under'Crawford &, Moses’ Dig.,. §. 2552, for disposing of a mortgaged wagon and.automobile, argument of the ..prosecuting attorney that the mortgagor had misled the.mortgagee in giving the mortgage, and “he is a.s guilty .as man can be and he ought to be convicted,” was a mere-.expression as to defendant’s guilt, and was not improper.
    Appeal from Craighead Circuit Court, Jonesboro District; Basil Baker, Special Judge;
    affirmed.

      Boy Stigler and T. A. Burner, for,.appellant
    •H. W. Applegate, Attorney General, and Barden Moose, for appellee.
   Smith, J.

-Appellant was indicted- for disposing of

certain personal ¡property upon’ which ‘a mortgage lien existed.. Omitting the formal parts, the indictment reads as follows: “The said Otto McClaskey aforesaid, on the first day of January, 1924, did unlawfully, knowingly, and feloniously sell, barter, exchange and dispose of one 3" Bane log-wagons of the value of $150 and one Oakland automobile of the value of $150, all of the total" value of $300, upon which log-wagon and Oakland .automobile one J. W. McCormack.had a chattel mortgage -to secure -the payment of $82.90 due him by the .said Otto McClas-key, with the felonious intent to defeat the holder-of said mortgage in the collection of the .said debt seCuried by such mortgage.” .' - •

The indictment was demurred to on the -ground that it did not charge a pliblic offense. • The demurrer was overruled, and an exception was saved to that ruling.'

' The testimony on the, part of the State was to the effect that the debt matured .and was, not paid, .upon demand, and that neither the wagon nor the- -automobile was available for-the purpose of foreclosing' the Mortgage. . ' ' -

■In the case of Stewart'v. State, 139 Ark, 403,. it was held that the statute under which appellant was indicted and convicted (§ 2552, C. & M. Digest) did'not require, as a condition for conviotion for disposing of mortgaged property, that a demand 'be made on the mortgagor for the ddbt or mortgaged property or the refusal of payment of the indebtedness on the mortgagor’s -pari It is insisted that the undisputed testimony shows-that appellant did not dispose of the automobile, and that reversible error was committed in not excluding from the. jury any consideration of the disposition of the automobile. ....

The testimony shows that appellant, had .plaped-, the automobile in a garage at Nettleton, which is in the. disr tr,ict of the county in which the venue of .the offense is laid, for storage and repairs. This garage was operated by a man named Edwards,, and he testified that the automobile had been in his-garage since the summer of 1924 (the trial occurred November 22, 1924), and..that his charges for repairs amounting to $30 had not. been paid. But it does not appear that, McCormack, the mortgagee, was advised of the location of the automobile -until that fact was developed at the trial. On the contrary, McCormack testified that appellant told him the .wagon had been stolen, and that the automobile was somewhere in the county, but the witness was unable to find either. Under these facts, we think.no error was committed in not excluding the testimony in regard to the automobile.

The mortgage has been .executed at Bono, , which Was also in the district of the county in which' the .venue of the offense was laid, and both the wagon and! the automobile had been removed from that neighborhood^' and McCormack testified that he could find neither:' If appellant had in fact concealed the automobile so that it could not be- found for the purpose of foreclosing the - mortgage, this would constitute a- disposition of it within the meaning of the statute: • : - :

Appellant had been engaged in sawmilling,- and owned several wagons. It was admitted that lie hád sold a wagon to a man named Hannah, and- this: 'wagon was present at the trial and was visible to the 'witnesses while testifiying'in the case. It will be observed that the indictment described the wagon as “one 3." Bane log-wagon,” and the wagon sold Hannah was a 3%". Bane log-wagon. : Appellant testified that he owned a 3" Bane log-wagon, but he testified that this wagon had been stolen from him, and that the wagon sold Hannah was not the wagon covered by the mortgage;

'' McCormack testified, however, that the wagon mortgaged was pointed out to him, that appellant walked np to the wagon, shook it, and said it was the wagon to be mortgaged, and the witnesses idéntified the wagon produced at the trial and which appellant admitted, he had sold Hannah'as the wagon pointed out to him by'appellant.

The size 3" has relation to the spindle, and a 314" wagon was one whose spindle’was 314 inches, and consequently a slightly larger' wag-on' than one whose spindle was 3 inches in size. The whgon sold Hannah by appellant was a Bañe log-wagon, but its spindle was 314") and it' is insisted that this difference makes a .fatal variance in the description of the property alleged to have been mortgaged and disposed of.'

Appellant asked an instruction to the effect that this difference was material and constituted a fatal variance,; but the court refused to. so instruct the jury, and treated .this difference as immaterial, provided the jury.found that appellant had in fact disposed of the wagon mortgaged with the fraudulent intent of defeating -the mortgage lien. ’ 1

W.e think no error was committed. in this respect. The^ wagon- mortgaged was, a Bane log-wagon, and the one sold-Hannah was a Bane log-wagon, and we think the ■ difference between 3 inches and-314 inches in the size of the spindle did not constitute a fatal variance. The party who drew the mortgage, testified that the description employed was furnished by appellant himself, and McCormack testified . that the wagon described in the mortgage- was the- one which appellant had pointed out to him.

The; defendant conld not have 'been misled in the preparation of his defense, and the State conld not have prosecuted him again had he been acquitted, because-of this difference in description.

The rule in such cases is stated in Underhill’s Criminal Evidence (3d ed.), § 80, as follows': “In deterbairiing whether a variance is material, the question to be decided is, does the indictment so far fully' and correctly inform the defendant of the criminal act with- which he is charged' that, taking into consideration the proof which is introduced against him, he is not misled in making his defense, or placed in danger of 'being twice put in jeopardy -for the same offense? If this be not -so, then the variance is material, and, the State having -failed to prove the crime in substance as it is alleged, the acquittal of the accused should be directed.

. In the case of Pritchett v. State, 160 Ark. 233, the défendaht was charged with the crime of arson, alleged to have been committed by burning a railroad bridge designated as bridge 7807, when, according to tbe proof, the bridge burned was designated by the railroad as No. 7807. The indictment had further described the bridge as one'owned by the railroad company and as being three miles'northeast of Eureka Springs, and we held" the variance'was not of sufficient substance in its nature to prove fatal.

IJpon the authority of the casé of State v. Harberson, 43 Ark. 378, it is insisted.that the indictment is defective because: (I) it does not allege to whom the sale was; made^or that.the vendee was unknown; (2) it. does not allege that the debt was unpaid; (3) it does not. allege that the inprtgage was acknowledged, and it therefore' does.not appear that the instrument was one which could be recorded; and (4), it does not allege the venue of the existing .lien.

■The statute construed in the Harberson case has been, a-ihended- since the date, of that decision, .and tbe existing 'statute- has been construed in later- cases, •

In the cáse of State v. Crawford, 64 Ark. 194, it was hélddhat it was not necessary to allege the name of the per,son'.to 'Whom the property was sold; consequently it was unnecessary to allege that the vendee was unknown.

We;',think.;it i;s- sufficiently charged that there was a debt due-the mortgagee at the time the property was disposed of, and that the disposition was made with the felonious, intent .of defeating the holder of the mortgage in .the collection .of his debt.

The .indictment does not allege that the mortgage was acknowledged, and it would not therefore have been entitled .to- be placed of record, but it was held in the case of State v. Barnett, 65 Ark. 80, that it was not necessary for an indictment to allege that the mortgage had been recorded or filed, as. it was the manifest intent Of the statute to prohibit the mortgagor frqm removing the mortgaged property out of the county whether the mortgage was of record or not. Moreover, the mortgage, was good as between the mortgagor and the mort-. gagee, whether’it was acknowledged or not.

t);-We think the venue was sufficiently charged and proved.

. The court refused to give any of the instructions requested by appellant, but, on its own motion, gave an elaborate, charge consisting of bine instructions, the third of which reads as follows: “3d. Now therefore, if you find beyond a reasonable doubt that the defendant, Otto M'cClaskey, did, in the Jonesboro District of‘Craig-head County, Arkansas, on the 1st day of January, 1924, or within three years prior to the filing of the bill of indictment in court,.April 15, 19'24, unlawfully, knowingly, and feloniously sell, barter, exchange and dispose ot óñe Bane log-wagon or one Oakland automobile, either one or the other, and that such property so sold, bartered, exchanged and disposed of was of the fair market value in excess of the sum of ten dollars, and that such sale, barter,' exchange or disposition thereof when made was of the property that had previously beexi mortgagéd'tó J. iW. McCormack, and without his consent thereto, and that there, was an indebtedness' in excess of ten dollars dne or owing said McCormack secured by said mortgage covering such property.- .as alleged in the indictment to have been 'Sold;-/bartered, exchanged or-disposed .of,: and that-such sale,-barter, exchange or dispositon of said-property, if any was made, was made with the felonious intent to defeat the-holder pf said mortgage, J. W. McCormack, bn -the collection of said debt, if there was a debt, secured by said mortgage as covering said property, if you find’that there was such mortgage, then you will- find- the. defendant guilty as charged in the indictment.” :i .: .

We think this instruction correctly submitted the material issues in the ease. - , ... ..,-b

: The- defendant requested the; court to instruct the .jury not to consider any testimony with reference, to any other property not- described in the. indictment, purpose of this instruction — which the court uefused fp give — was to exclude the testimony of - appellant, himself, elicited on his cross-examination, in regard to -Certain mules which were embraced in the/mortgage. Appellant had testified that these mules had died, and this, of course, was not a disposition of the mortgaged property within the meaning of the statute. 'But ‘ we' think the testimony was material and relevant as bearing on the good faith of appellant in disposing of the. .property described in the indictment. Neither -the-wagon-nor the automobile which were described- bn the indictment was available for the purpose of foreclosing the' mortgage, and, while the mules were n:ot mentioned’ in the indictment as’ having -been fraudulently disposed of, the testimony, in regard to-their disposition was releyant on the question of appellant’s good,faith in disposing of the wagon and the automobile. ' ■ • :

Appellant asked an instruction to ; the effect that the jury must find beyond a reasonable ’doubt that he disposed of the wagon with the fraudulent inteht’of'defeat-ing the mortgage lien; and this instruction might,well have been given in the language-in which, he asked it, but this declaration of law was fully covered in instruction numbered 3, set out above, and in the'other instructions given, so there was no prejudicial error in refusing to multiply instructions on this point. •

■ Other instructions asked- by appellant, in so far as they correctly declared the’ law, were covered 'by the instructions given. ''

In his concluding argument the prosecuting attorney said: “I want to say to you that he (appellant) misled the old'man (McCormack, the mortgagee) in giving that mortgage, and he is as guilty as a man can be, and he ought to be convicted. ”

It does not appear from this excerpt just what point the prosecuting attorney was arguing, but it does not appear 'that the argument was improper. It was a -mere expression of the attorney’s opinion as to the appellant’s guilt, and we have frequently held that such arguments are not improper. Spier v. State, 157 Ark. 283.

■ As we find no prejudicial error, the judgment is affirmed.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Western Coal & Mining Company v. Nichols.
    Opinion delivered March 23, 1925.
    MASTER AND SERVANT-SAFE PLACE TO WORK — EVIDENCE.—In cLTl action by a miner for injuries from falling rock where the complaint had been amended by striking out the allegation that the master had negligently failed to inake the miner’s place of work safe, it,was not error to exclude testimony that .it was the miner’s duty to make his place of work safe.
    Master and servant — duty of servant to make place of WORK ‘ sáfe. — Where the conditions under which a servant is working are constantly changing, so that the peril 'of the work depends on the manner in which the work is done, it is the servant’s duty to make the working place safe, and no duty in that regard rests on the master.
    Master and servant — safe place to work — jury question.— In an action by a miner for injuries .caused from falling rock, evidence that the miner, after blasting had brought down a large quantity of rock, asked for another room in which to work but was assured by the mine foreman that, the room was safe, held to make it a question for the jury whether it ,was. the miner’s duty tp make the place safe while he was removing ■ the rock or Whether he had a right tó rely on thie foreman’s" judgment. ’
    4. Appeal and error — instructions not" complained of. — Where -the instructions given by the court are not complained of, it will be conclusively presumed that the issues were submitted under - j instructions which correctly declared the law.
    B... Master and servant — safe place to work — evidence.—In an •action by a miner for injuries from falling rock where the complaint had been amended by striking out the allegation as to the master’s negligence in failing to furnish a safe place to works, and sought a recovery solely ón the ground that the forerpan assured plaintiff that the room in which plaintiff was injured was safe, it .was not error tp .exclude testimony that, plaintiff Was not careful in using sufficient props 'to" make the room safe.
    6". Appeal «and error — harmless error — discretion of court.— As the order of admission of testimony is largely "within the trial' court’s discretiop, permitting a witness to be called after the" instructions have been read to the jury, was not prejudicial where no abuse of discretion is shown.. ;
    Appeal from Franklin Circuit Court, Ozark District; James Cochran, Judge;
    affirmed.

      Thomas B. Pryor and Vincent M. Miles, for appellant. ^

      Evans é Evans, for appellee.
   Smith, J.

Appellee alleged, for his .cause of action, that on the ,18th day of January, -1921, .he was in the" employ of , appellant in Mine No. 6, near Denning,: Arkansas, and that ,he was injured 'by a fall of rock. In the original complaint a recovery was asked on two grounds; (1), negligence on the part of the defendant in failing to furnish appellee with a safe place in which to work; (2), that, after an inspection of appellee’s place of work by appellant’s, mine foreman, appellee was assured that" thp. place was safe, and, relying upon this. assurance, appellee,'continued to work, when the place was:not safe, and;' while; so working under this assurance, a rockfell on' appellee and injured him.

Appellee was severely injured, and there is no complaint, that the verdict in his favor was for an excessive amount. It is insisted, however, for the reversal of the judgment, that, under the undisputed testimony, appellant was not liable for the injury to appellee, and that the court erred- in. admitting and in excluding certain testimony.

During the progress of the- trial appellee asked and was perfnittéd to strike from his complaint the allegation in: regard ;‘td the negligence of appellant in failing to furnish appellee a- safe place in which to work, and. he therefore, predicated liability solely on the remaining allegation of'- the complaint, that appellee had been assured that the place was -safe, when such'was not the fact.'

Appellee was an experienced miner, and admitted that^ while engaged in. mining coal, it was hyj duty to make his own place safe. Appellant offered the testimony of other experienced miners ■ to the effect that no one'would know better than the miner engaged in mining coal whether the place had become unsafe, and that it was; the .miner’s duty to make it safe. This testimony was excluded, and this action of the court is assigned as error.

n iWe think there was no error in this action of the court, for the reason that, at the time this testimony was offered, the complaint had been amended by striking out the-allegation that appellant had negligently failed to make appellee’s place safe, and appellee had admitted that "this was the- duty of the miner. The excluded testimony related to a cause of action which had been stricken from the complaint, and would have tended to prove a fact about which'no question was presented.

; Appellee' had placed the shots of dynamite in the room- in which he had been working, and he only had worked in this room after it had been turned off the entry." "The last shot' fired by appellee had brought down- a quantity-of -rock, after which appellee asked that he be given- another room in which to-work. Thereafter, according to the testimony of appellee and his son, Bob- - bitty. who.¡ was the-minefoxeman, went into the. room and; assured . appellee that; it was .sale.'. Bobbitt denied that: he’had made , ahy inspection, of: the room .or had given any assurance of its safety, but, on the contrary, testified, that, .when he saw, its; condition, he directed appellee to-, place three props under the roof of the room,, and further directed where the props should be placed, and he ordered onaof theprops to be placed at the part of the roof from which the rock fell which injured appellee. ;

>, Appellee testified.that he called Bobbitt’s attention to the quantity- of rock which had fallen and the time which would be., required to. remove it, and it was then that he was assured that thé place was safe, and appellee was. directed do remove the . rock, and was promised pay - of $7 per day while so engaged. While mining coal-appellee was not paid by the day. His pay depended; on the quantify of coal-mined by him. Appellee-admitted that. Bobbitt told-him to place props .under the roof, but:he testified that this could not be done until the rock had .beeá; removed.. Appellee, was engaged in bursting, the rock which had fallen on the floor with a hammer^ and. he'testified that it was necessary to do this in Order that he might handle the rock, and that it was necessary to remove these broken, pieces of rock to prepare the floor , for placing the props, and that he was preparing to place ¡the- props, as he had been directed to do, as soon as the rock could be removed, and, after 'being so engaged-for about twenty minutes to half an hour, the rock fell from the. roof of the ¡room and injured him.

The;,instructions:are not set out, and no complaint is made that they did not correctly declare the law. The complaint is that there was no question for the jury to pass upon. ; - • ' ‘

- vW© are,,unwilling to say, as a matter of law, that there"was no.question for the jury. Appellee was not-engaged in .pulling dawn eoal at the time of his injury/. The'Work he was. doing > was that of -.removing .fallen rock.- - This was not. Work, according to the testimony in: appellee ?S" behalf, -Which ,-changed the character of the1 place as the work progressed and thereby delegated to appellee the duty of making his place safe as the work progressed. Appellee was put-to a work for which he was to he paid by the day, and this work did not involve changes in the conditions under which he was to work. There was no hanging rock or coal to be inspected or' removed, but appellee’s labor was to be performed in the removal of rock which had already fallen, and he was so employed when he was injured.

' -This court has many times recognized and given effect to the rule that, when the' conditions under which the servant is put to work are constantly changing, so that the peril of the work depends on the manner in which the work is done, it is the servant’s duty to make-the working place safe, and no duty in that regard rests upon’ the master. -

.But, as we have said, the actual work of mining the coal-had ceased, and we cannot Say, as a matter of law, that appellee was engaged'in a work in which he did not have the right, in a measure at least, to rely on the judgment of the foreman as to its safety.

There was a question for the jury whether the hazard. of the work so changed as it progressed that it was appel-lee’s duty to make the place safe, and, as the instructions are not complained of, it will be conclusively presumed that this question was submitted under instructions which correctly declared the law.

' ' If' it be said that the undisputed' testimony shows that Bobbitt had ordered appellee to place props under the roof, it may be answered that appellee testified that he-was preparing to do this, but it was first necessary to remove the fallen rock, and that he was injured before he could obey this order in the usual and ordinary way, and.'we must assume that this question-of fact was properly submitted to the jury. It-may also be said that appellee testified that the order to put up the props was not -given to support the roof 'but to keep the gob back; and that-this work wtas called “gobbing,” which meant to' throw the rock- undér the timbers off the' right-of-way so the 'cars loaded with coal could páss, and 'that,' before appellee had cleaned up the' fallen róok, so that' he 'Could put in. the three props to keep the gob back, the-’roOf fell in and injured him;

Error is assigned in the refusal of the court to permit appellant to prove by miners who worked in the mine where appellee was injured that appellee.was-not careful in using sufficient props to make’ the room in which he worked safe; But, at the time this testimony was offered, the complaint had been amended so;. that appellee was seeking to recover on the.ground.only,that Bobbitt had inspected- the'place-and examinedi.the-roof ■ and had assured appellee'that the room5 was. safe; for the purpose' of doing the work Which appellee hád been ordered to do, so we think there was no error in excluding, this testimony. ; ' -

In his direct examination'as a witness' in behalf of appellant, Bobbitt was asked if he had told-appellee this room was safe, and he answered tb’at he had never told appellee or any other miner any such thing '; After ¡both sides had rested and. the court had.instructed the. jury, appellee asked tp be allowed to, .call Simon Phillips,to the stand. Appellant objected to this being done, and saved an exception to the action of the court in ■ permitting Phillips to he called'as a witness.' Phillips was asked if he had ever heard Bobbitt say to Other men that their,places Were safe, and he answered that he had — that Bobfbjti had made that statement to him on one.occasion..

There appears to have been no objection to the testimony itself, blit the objection related to the time of its admission. The objection was1 made when- permission was given tp call the witness, and it is this, action of the court which we review. • ...

This court has many times decided that' the trial court has a wide discretion in the control of the Order of the admission of testimony,, and. that á reyersái would be ordered only .where’ an abuse of this, discretion was shown, and no showing i&’made here that there was any .abuse of this discretion jn permitting the witness Phillips to be called after, the instructions had been read to:-th.e jury.. ' ■ ■.- v; • iL :iw

No prejudicial error appears,- so the -■ judgment^ js affirmed.


text:
    Wisconsin & Arkansas Lumber Company v. McCloud.
    Opinion delivered March 23, 1925.

      i: Master and servant — safe place to work — jury question.— ■ Where :an employee, engaged in oiling machinery,-was injured by falling through a hole in the-floor of'.a sawmill,' which'. WAs ■ ■ so covered over that he could not .see the hole, evidence I held to make a case for -the jury whether the master was negligent in failing to furnish a .safe place to work,
    2. Appeal and error — review op evidence on appeal. — In reviewing evidence to test its -legal sufficiency to support a verdict,'it is viewed in the light most favorable to the-prevailing. party.
    ,3. Master and servant — safé place to work. — Ope employed- to ; oil machinery -had a right to assume/that he had ,been .(.furnished a place in which to work where there were no .hidden ‘ dangers, and that if there Was a' place of danger ’that was not open and obvious he- would have been warned Of that fací: • -
    '4. Master and servant — notice op obvious defects. — One employed to oil machinery is charged with notice of a 'structural defebt, . ;• such as a hole in.-the floor, if -it Was obvious and patent. .
    .-5,- Master and servant — assumed,, .risk* — Liability.,to injury from obvious-and patent .structural defects is assumed by..a .servant . of mature years and or dinary. intelligence when he'enters service.
    6.' ' Trial — office of instructions — I-nstructions'should define ' the law applicable to issues of fact raised by the'testimony:-' ''
    ■7.-' Master and servant — safe plaCe: to work — instruction.—An . •• .instruction that if plaintiff-was injured whije in1 ihé; exercise ,. of due care, and jhpd -not,.assumed-thc/¡rjsk,, and therijijjir^.'W^s due to the master having negligently left a hole in .the flqor where plaintiff was at Work, then "to- find 'for plaintiff, '"Held erroneous in -authorizing a finding for ~ pl-airStiff bn-the'hiede fact • r :... that the master had'left a hole in the. floor .^.without "-'regard to whether it .was a hidden defect.... .
    8. Master and servant — assumed risk — instruction,—An instruction that if plaintiff, was injured ¡by the, master’s negligence Jas • alleged and "had not assumed fke riál¿;fr' '’’theál fihd: fib 'hiih, was erroneous as submitting .the^ question :.bf;-assumed’Tiák'as ! ' 'an abstract conclusion of law, and permitting’ /the jury:.to determine the law as. well as the facts, . ; •
    9. .MASTER AND , SERVANT — ABSTRACT INSTRUCTION — In an action fyy . a servant for personal injury, an instruction tfiat “the first duty of a servant is Obedience to the ihiaster”' is' ’abstract arid irrelevant where there Was no- evidence* that plaintiff -wias acting under. the specific commands of a. superior. . . ,
    Appeal from Grant Circuit Court; Thomas E. Toler, Judge; reversed.

      Buzbee, Pügh S Harrison, for appellant.'

      I). D. Glover, for appellee.
   Smith, J.

Appellee was injured while employed by the appellant lumber company, and, in support óf his cause of action for damages, testified as .follows : He Was Employed by the appellant company oh the 24th day ofAugust, 1923, at aWdge of $2.50 per day,1 and'hadbeCn Working eight or nine" days When injured'.' It was his duty1 to straighten lumber on a dry-chain and he oil the machinery that pulled’ the' chains. ' The dry-chain consisted of three traveling chains placed' about four feet apárt and parallel to each1 other, by 'means of which lumber was carried from the dry-kiln to another part of the mill. The chain ran through a table about twelve feet wide, and there is a platform by the side cf thetable oh which the men stand to work the lumber on the; chain. 'Appellee would stand'on this platform' after he had finished oiling the machinery. He would oil- the machinery twice a day, in the morning before the1 mill started and at noon before work-time. He had-to' go underneath the'table to oil the machinery, and it Was-dark'there5'oh account of the shadows. He would go down to1 ai floor below the platform on Which the men stood while at work*, and, in* going down under the table, he went through a space about six feet wide underneath the table.- :The top: of the table Was four and one-half or five feet above the floor; and there:Were about eighteen:boxes-to'be oiled under the* table. He'was injured by-falling througlr a hole in the: floor underneath the table. -This hole waskbout five or six inches wide and about two feet long,- and- was covered over with trash and splinters, so that he could not see it, and he stepped into this hole without seeing it or without knowing it was there. He had never been told the hole was there, and he could easily have avoided stepping in it if he had known of its existence, hut the floor in which the hole existed had not been cleaned up while he worked for appellant, and he knew nothing of the presence of the hole.

Appellant defended upon the ground 'that, if appellee fell into the hole, it was at a place where he was not required to be in the performance of his duty, and, further, if appellee fell into the hole, it whs due to his own negligence or to a risk assumed by him.

The testimony shows that the hole into which appel-lee fell had been cut. in the floor about, a year and a half before appellee went to work there., and that it had been ■cut by one of the employees of appellant to facilitate the work- of, cleaning up underneath the table, because it was easier to throw the dust and trash through this hole, where it fell to the ground, than it was to carry.the dust and trash back to. the end of: the table to a place where it could be thrown on the ground through a large opening in the mill floor. Appellee further testified that this floor under the table was dark, but we understand he used this word in a comparative sense. He was asked: ‘•‘You would not think it was light enough where- you were oiling to read?” and he answered: “No sir, not early in the morning; like it is when a car is run in the door.” One walking on the floor where the hole was would have to" stoop forward, as the passageway was less.than five feet high, and the testimony on the part of appellant was to the effect that the hole wias not covered over, and, unless it was covered over with trash, one could not walk along this floor without seeing the hole, if he -paid any attention whatever to his surroundings, as the presence of the hole was obvious and patent.

It is insisted that appellee’s own testimony did not make a case for ,the jury;- but we do not agree with counsel in this contention when the testimony is viewed in the light most favorable to appellee, as we are required, to view it in testing its legal sufficiency to support the verdict of the jury.

According to appellee, he was unaware of the presence of the hole, and it was so covered over that it could have been discovered only by an inspection for it. This, of course, appellee was not required to make, as, he had the right to assume that he had been furnished a place in which to work Where there were no hidden dangers, and that, if there was a place of danger Which was not open ánd obvious, he would be warned of that fact. On the other hand, if this hole had been put there purposely, and not recently, it was, at most, a structural defect of the' existence of which appellee would be charged with nbtiee if'its presence was obvious and'patent. The liability to injury from such a defect is one of the risks which the servant assumes when he enters the service of the master, where the servant is a person of mature years and ordinary intelligence. ■ ■

The court appears to have given all the instructions requested by both parties. Of these, ten were given at the request of. appellee, and of these ten only one— instruction.'numbered 9 — attempts to make any specific application of the law to the facts in issue. The other instructions were statements of the law of master arid servant which would be applicable in any suit by the servant against the master for damages to compensate ari injury sustained by the servant while performing the duties of his employment, and the instructions were objected to on this ground.

The, instructions are , open to .the objection made, They were so general.in their nature that the jurore were left to their own devices to apply them to the testimony. Instructions should define the law. applicable to the issues of fact raised by the testimony.

Instruction numbered nine is the only instruction given on behalf of appellee which attempts to .make a concrete application of the law to the testimony , in the cas A ' This' instruction-reads as follows: “You are instructed-that, if you find from a preponderance of the evidence in this case that the plaintiff was injured as alleged/ and that, at the time of his injury, he was in the exercise of ordinary care for his own protection, and had not assumed the risk, and that, the defendant company,, through its agents, servants .or employees, negligently left a hole in the. floor where plaintiff had to. work, -and that its negligence in this respect was the. direct and proximate. cause of plaintiff’s injury, a:s alleged in-the complaint, it will he your duty and you are instructed to-• find, for the plaintiff in this case.”, Objections, both general and specific, were made to this instruction, and .among the,specific objections were these: That the instruction authorized the jury to finfi for the plaintiff ;up.on the mere fact that the company had left a-hole in the-floor, notwithstanding the jury should find that the hole was not covered with trash. It permitted the jury to find that the mere leaving of the hole in the flgor was. negligence. And it submitted the question of assumed risk as an abstract conclusion of law.

., We think the specific objections to the instructions were well taken, and that the instruction did not properly submit the issues in the case to the jury. ' It takes no account of. the question whether the hole was covered, and, gives, the jury no statement of legal principles from which .to determine whether the mere presence of the hole was negligence. In other words, the instructions, iir.effect, permit the jury to determine not only the facts but the law of the case.

Instruction numbered 10 was as follows: “You are instructed that the first duty of a servant is obedience to’the master.” To this instruction specific objections were'made that it was abstract, irrelevant and argumentative, and permitted the jury to excuse the plaintiff-from the exercis'e of ordinary care if they found that, indirectly or remotely, he- was acting in obedience to the commands of -hi-s- superior, and subordinates the duty of the servant to the exercise of ordinary care in his own behalf to the duty to obey the commands of his master; and’, further, that the instruction assumes that, at' the timé of the injury complained of, plaintiff was acting under the direct or specific commands of his superior, whereas the evidence on, this point is to the contrary.

"We think the- instruction is-defective in the respects pointed out. ■ Appellee was injii-red at the noon hour, no one was présent but himself, and he was engaged in performing a duty which he had' previously performed twice daily during the eight or nine days he had been employed by appellant, and this instruction could not be applied to-any issue of fact in the .ease. The instruction was calculated to leave the impression that, if appellee was injured while engaged in a work in the line of his employment, the company would be liable for any injury lie,' might sustain, regardless of the circumstances of the injury, which, of. course, is not the law.

■ For the errors in giving instructions 9 and 10 the judgment of the court below is reversed, and the cause remanded for a new trial.


author: Humphreys, J.

text:
    Spears & Purifoy v. McKinnon.
    Opinion delivered March 23, 1925.
    1, P,uysic;ians and surgeons — malpractice—negligence.—In an action -against two physicians for malpractice in failing to rémoVe sponges after an operation, evidence held to sustain a ’ verdict for plaintiff; the-rule giving the strongest probátivé force to-the-testimony of the prevailing party requiring that all reasonable possibilities be taken into account,
    a. Physicians and surgeons — negligence—liability of assistant SURGEON. — A surgeon, who assisted in an operation and was required to insert and withdraw sponges, could not escape liability on the ground' that he was merely an assistant, if through: cdrelesáness or 'negligence he' failed to Withdraw any of them. ' !' ! ' I! I

      B. Trial — construction' of verdict. — In -an action against two ; .surgeons, where the plaintiff, sued for $10,000-damages for malpractice, a verdict which stated: “We, the jury, find for the •plaintiff, the sum of $3,500 against Dr. Spears and the sum of $3,500 against Dr. Purifoy,” held a verdict for the plaintiff for $3,500 against the two surgeons jointly and not a separate verdict against each for that sum.
    4. Appeal and .ERROR — modification of judgment. — Where the jury, in an action against two joint tort feasors rendered a verdict' for the same amount against- each of them, and the court entered separate judgments for such amount against each of the defendants, .the cause will not on this account be reversed, but the Supreme Court will render a joint judgment for the amount assessed against each defendant.
    5'. Physicians and’ surgeons — negligence—liability.—Surgeons cannot relieve themselves from injury to a patient, caused by . leaving a sponge in her -abdominal cavity after an operation, by adopting a rule -requiring .the attending nurse to count the sponges used and removed, and relying upon such count as conclusive that all sponges have been accounted for.
    6. Physicians and surgeons — negligence—exclusion of evidence. — Since a custom among surgeons of making the count ■by the attending nurse pf sponges used in an operation conclusive evidence that all sponges have been accounted for cannot relieve a .surgeon from liability, the court did not err in excluding testimony tending to establish such rule or custom.
    Appeal from Union Circuit Court; L. S. Britt, Jludge;
    judgment modified.

      J. A. Sherrill, for appellant.

      W. A. Spear, for appellee.:
   Humphreys, J.

This suit was brought by appellee against appellants, practicing physicians, in -the circuit court of Union County, to recover damages in the sum of $10,000 for alleged malpractice in the performance of an operation on her on March 5, 1921. The gist of the complaint is that, after the operation they performed upon her for ectopic pregnancy, at "Warren-Brown Hospital in El Dorado, they left a sponge or gauze in her abdominal cavity, which dropped into the.cul-de-sac, a pouch at the bottom .of the abdomen lying above the uterus and in front of the colon, where the gauze began to rot the tissue and membranes between the anterior wall of the rectum and posterior wall of the vagina until it found its way to a point about five-inches above the anus, where it sloughed into and out through the rectum, December 3, 1922, having caused her much pain, suffering and injury in its process of elimination.

Appellants filed an answer denying all the material allegations in the complaint.

Thereafter the cause was submitted upon the pleadings, testimony adduced by the parties and the instructions of the court, which resulted in- the. following, verdict i “We, the jury, find for the plaintiff the sum of $3,500 against Dr. 'Spears and the sum of $3,500 against D.r, Purifoy.”

The court subsequently entered upon the records the following judgment: “It is therefore ordered and adjudged by the court that the plaintiff do have and recover of and from the defendants, B. N. .Spears and L. L. Purifoy, the sum of $7,000; one-half, or $3,500,'to be recovered from B. N. Spears, and one-half, or $3,500, to be recovered from L. L,. Purifoy; together with all her costs herein laid out and expended, for which executioh may issue.”

An appeal has been duly prosecuted ■ to this court from the verdict aiid judgment . .

The three main Contentions urged by appellants for a reversal of the judgment.are: first, that the. evidence does , not warrant a verdict against either of the defendants; second, that Dr. L. L. Purifoy was an.assistant surgeon in the operation, subject to the direction of Dr. B. N. Spears, the operating physician, and was.not instructed by. him. to search the abdominal cavity for sponges; and third, that the wording of the verdict did Hot warrant the court in entering a judgment of $7,000 to be paid, one-half by -each of the appellants, but should have 'been a judgment in the .total sum of $3,500 against appellants jointly.

The testimony, when given its strongest probative force in favor of the appellee, discloses the following facts: Appellee was operated upon March 5, 1921, at Warren-Brown Hospital in El Dorado, Arkansas, where she remained eleven days. She was then removed to-ter home, and remained in bed about fifty'days, under the care of Dr. Spears, during which time 'she cramped almost to death ¡with pain in the ’ lower part of the stomach. She suffered at intervals from that time until June 2, 1922, at which time she was again- seized with severe pains in the lower part of her abdomen, for which she ■ was treated by Dr. Morgan. - She improved to some extent under his treatment and became able to do sóme housework and some work in the postoffice, as assistant, until October, 1922. At' that time sh'e again began- to have cramping pains as usual. She called on Dr. Irby, ■and for ten days suffered as much- as any one could and live with pains in the lower stomach. 1 She recovered to some extent, and several days-thereafter was seized with another spell. She remained-in'bed until December -22, 1922, when almost a quart of pus passed from her .rectum, and on the next day two pieces of gauze passed in'the same way. The first piece was about5 one and olie-half inches long, and this passed before Dr. Irby arrived. Dr. Irby removed the other piece partly from thé 'réctüm and partly from a fistula in the wall of the rectum which opened into the abdominal cavity*. The second piece of gauze was eighteen inches long and three or four inches wide. Another piece- of gauze'passed on December 29 in a Little-long roll After the gauze passed there was no more.pain or cramping, but' appellee had not recovered at -the time of the trial, still being unáble to do housework. ■ ■

. The sufficiency of the evidence to sustain the verdict is challenged upon several grounds. -It is said that the gauze eliminated. through the rectum- was different in grade and size of mesh from that uséd in the operation. The trial took place two - and one-half -years after the operation, and none of the witnesses remembered -to have made a personal examination of the grade or size of the mesh used in the -operation. - It is true, that'-there was some difference-between the-gauze which passed from appellee, and that generally used in the hospital, but it may 'be that, on the occasion of this operation, the hos-pi'tal had run out of the kind it generally used and procured; and used the kind which passed from appellee. From the Circumstances in the case the jury might have' so inferred. Again, it is argued that, if the gauze which passed from appellee had been left in her abdominal cavity at the time of the operation, it would have been-stained with blood, whereas the gauze which did pass’ Was not blood-soakéd. The gauze passed out of an absfeess which emitted a large quantity of pus, so it danhot be said, as a. physical fact, that the blood stains would háve remained upon the gauze during its passage through rotting,’ Slodghing tissue from the abdomen into the rectum. Again,' it is sgid that the gauze wnuld have traveled the route of least’ resistance, which would have' been through the wall of the vagina instead of through, the, wall of’ the rectum. As we interpret the testimony, of the physicians^ they all admit that the route of the passage of the gauze from the abdomen to the rectum was, a, possible way, but hardly d probable route,. Before, the verdict and judgment could be .set aside upon this ground, the undisputed testimony would, have to show that the route- of elimination through the wall of .the; rectum was an.impossible route. In giving the strongest, probative force to, the ’testimony of appellee, all reasonable possibilities,must be taken- into account. When that is done, the evidence is sufficient to support the verdict.

Wp, cannot, agree with appellant’s contention-that, because Dr. Purifoy was assisting Dr. Spears and was not instructed by the. latter to search the abdomen for .sponges-after; the 'operation, he-is-exempt from liability-if- gauzes were fqund. in the abdomen. ^ -The record reveals that Dr. Puri-foy’s part in the operation was: to insert and'withdraw;the sponges: -If, through carelessness.-or negligence,.-he failed-to withdraw any of them,, he .cannot escape; liability on the ground that he was an assistant, Such-,a rule would have the effect of acquitting one of civil liability growing out of his own negligence, .

This suit was against appellants- jointly to recover damages against them as tort-feasors. There was only one operation and one damage. Both appellants ..participated in it, and,-according to the verdict, both were- liable.. Under.the testimony they were liable as joint tort-feasors, if at all, and the verdict must be construed as a finding of joint and not several liability. The only way this can be done is to construe the verdict as a joint finding against appellants for $3,500. The trial court should have so interpreted the verdict and rendered,a joint judgment against appellants for $3,500. The error will not, however, work a reversal of the judgment. The judgment which-the court below should have rendered upon the verdict will be rendered here.

The other contentions made by appellants for a reversal of the judgment related to the instructions which -Were given and refused by the court, and to the refusal of 'the court to admit certain testimony relative to a custom in the hospital and among physicians as to the conclusiveness of the count by the attending nurse of the number of sponges used in an .operation.

It is insisted that the law applicable" to the facts in the case'was not' correctly stated and declared by the court. The theory of appellants is that no liability rested upon them as physicians and, surgeons, on account of sponges or gauze being left in the abdomen of appellee, because the duty of counting them before and after the operation was irhposed upon the attending nurse who was in the employ of the hospital where the operation was performed. In other words, that it was a rule or custom of the hospital and among physicians for the attendant nurse to ascertain by count whether any sponges or gauzes had-.been left in the body of the patient, which count entirely relieved operating surgeons from such responsibility, 'and consequently from liability growing ■ Out of-a failrtre'to remove sponges and gauze from the ‘opening^op cavities in the body. The instructions given are assailed because thev do not embodv this idea, and the ruling of the court is questioned in his refusal to give instructions requested . 'by appellants which expressed this idea. . We think the rule of law governing in cases of this kind is correctly stated in 21 R. C. L. p. 388, § 33. The rule there stated is as follows:

“Probably the most common instance.of malpractice which is brought into the courts arises out of surgical cases where the physician or attendant has left a sponge in the wound after the incision has been closed. That this is plainly negligence there is no doubt at all, and it matters not at all that many physicians testify that the best of surgeons sometimes leave a sponge or some other foreign substance in the bodies of their patients, for this is testimony merely to the effect that almost everyone is at times negligent. Whether the particular act was negligent is for the jury to decide^ after considering the circumstances of the case. Surgeons cannot relieve themselves from liability for injury to a patient caused by leaving a sponge in the wound, after an operation, by the adoption of a rule requiring the attending nurse to count .the sponges used and removéd, and reiying on such count as conclusive that all sponges ■ havé been accounted for.”

After a careful consideration Of. all the instructions, we think the law was correctly declared as applicable to the facts and circumstances in the' case, and that no error was committed by the court in giving or refusing any one of them. ■

Under the rule of law announced above, no error was committed in excluding testimony'offered by appellants tending to establish a rule or custom of the hospital or of physicians, making the- count by attending nurse of sponges conclusive evidence that all of them used in the operation had been accounted for, and that none of them had been left in the wound or body of the patient.

The judgment is modified as indicated ■ above,. and, as.modified, is affirmed.


text:
    Roach v. Board of Directors of St. Francis Levee District.
    Opinion delivered March 23, 1925.
    1. Evidence — parol evidence' varying written contract. — Admission of'parol evidence that an “Estimate1 and . Information Sheet” containing specifications for construction of a levee was attached to and made a part of a written contract by reference does not violate the rule against varying written contracts by parol evidence. ’ , .‘ '■' '' ' '
    2. Levees — construction op contract. — Special clauses in á contract for Construction of a levee as to-payment for extra work necessitated iby subsidence of the foundation, held to govern, con- ■ .fiicting general provisions therein.
    3. Contracts — -intention of parties.; — The, intention .of parties must control in the .construction .of contracts.
    Appeal from Crittenden Circuit Court; G. E. Keck, Judge;
    affirmed.

      Hughes & Hughes, for appellants.

      Wils Davis, for appellee.
   Humphreys, J.

This, suit is one.at law 'brought by appellants against appellee to recover . $3,913.18 for additional work required to be done.in the construction of certain levees on account of the, settlement of the foundation. The additional work required to. be done to make-the levees the proper height, on account of the subsidence of the foundation, was 13,039.9 cubic yards. The dispute between the parties arose oyer whether a sheet -of paper entitled ‘ ‘ approximate estimate and information sheetn was made a part of the contract, for constructing the levees by reference, or whether it was an item oiily of the: negotiations leading up to. the. contract.

■The cause was submitted upon the pleadings which presented this issue and the evidence adduced, at the conclusion of which both parties requested a directed verdict, and the court instructed the-jury to. return a verdict for appellee. A judgment was rendered in accordance with the directed verdict, from which is this appeal.

The record' reflects that the appellants entered into a written contract with appellee to ■ construct certain levees for :$0‘42 per cubic yard, which'contained the following parágráph: . •

“The said work is to' be Constructed and finished as described in' the specifications and the standard Mississippi River Commission specifications hetet'ó J attached, which aré hereby made a part of this, contract, ágr'ééábly to the directions, from time to time,'of the said7- engineer or his assistants, on or about the first day of’January,' ii thé year 1921.” ' ' - ,7 -

Printed specifications of both the board df directors St.-Francis Levee District and of the-Mississippi/River Commission were attached to the-contract.-'. The standard Mississippi River Commission specifications'-which were so attached contained the following provision:! v. -

• “Settlement of Foundation. Should-the contractor desire payment for restoration of yardage due to ¡settling of foundation, he must apply to the -contracting officer for instructions regarding the erection- of structures'for •the determination thereof, in advance -of- any--, work -op sections on which such payment should be made, and -he must erect at his own expense, prior to any work thereon, 'such structures aS may then be required by the coatract-•ing officer. Should these requirements be fulfilled; .-the 'contractor will be paid for the restoration of yardage due to settlement Of foundation at "the same-rate's as-the Other embankment, but he Will receive-no compensation for such restoration -unless the1 instructions;,of the.contracting officer in'regard -to the determination of quantities shall havé been fully complied 'with.’,•■ -: - ; • -•

The printed Specifications of appellee contained'no 'provision for payment on account of the Subsidence 'of thfe foundation. H. N. Pharr, ho we vet, testified, over the'- -objection and exception of -appellants; that the “approximate estimate and information sheet-’? constituted a part of and was attached to the1 printed spOcifi-"Cations- of appellee, which were' referred to'' and máde a part of the-contract at the time it Was signed, ¡and that Mr. Stansell, one of the contractors, was informed and knew that it was attached as. a part of the specifications of the levee hoard referred to , in the contract. This “estimate and information sheet” contained a number of specifications, viz., the manner in which payments should be made, the width, slope and topping of the levee, the location of the borrow-pits, and, lastly, the clause in reference to payment in case the foundation should settle. The clause is as follows: “Any abnormal settling of levee foundation, in excess of 5 per cent, of height of levee, will be paid for by levee 'board at contract price per cubic yard.”

Appellants. contend for a reversal of the judgment upon two grounds: first, that the court erred in'admitting oral testimony to the effect that the “estimate and information sheet” was a part of the specifications of appellee which were referred to. and attached to the contract and made a part thereof; and second,, that, if correctly admitted, the court erred in construing the contract to mean that appellants were only entitled to pay for yardage placed on account of the settling of the foundation in excess of 5 per cent, of the height of the levee.

We cannot agree with appellants in their view that the “estimate and information sheet” and the oral testimony to the effect that it was attached to and made a part of the contract contravenes the rule that parol evidence cannot be admitted to contradict a written contract. According to the undisputed testimony, the “estimate and information sheet” was attached to and made a part of the contract by reference to the specifications of appellee, which specifications included the sheet. The testimony showed that appellants’ attention was specially called to this specification, and that it was attached to the contract as a part thereof at the time the contract was signed. The cases of Doniphan, Kensett & Searcy Railroad Company v. Mo. & N. Ark. Rd. Company, 104 Ark. 475, and Boston Store v. Schleuter, 88 Ark. 213, cited by learned counsel for appellants in support of their'contention that said sheet ánd the oral testimony relative thereto was inadmissible, are not in point. In the first case, a letter written in the course of the negotiations and not made a part of the contract was properly excluded, and in the second case, the written bids which were made prior to the execution of the contract and not made a part thereof by reference were also properly excluded. The difference between these cases and the ease at bar is that the “estimate and •information sheet” was made a part of the contract, whereas the letter and bids were not.

The two clauses relating to payment for extra work caused by the settling of the foundation are in conflict. The specifications of the Mississippi Rive? Commission provided that abormal settlement in the foundation shall be paid for by appellee, whereas the specifications of appellee provided that said' appellee shall pay for that part of the work necessitated by the subsidence of the foundation in excess of 5 per cent, of the height of the levee. It is apparent that the specifications of the Mississippi River Commission in this respect were general and that the specifications on this Subject in appellee’s specifications were made special by the “estimate and information sheet.” The attention of the parties was called particularly to this matter by. the engineer of the levee board, so the detailed specific, clause must govern, for it expressed the intention of the parties. The intention of the parties must-control in the construction of contracts. Mutual Reserve Fund Life Assn. v. Minehart, 72 Ark. 630; English v. Shelby, 116 Ark. 212.

No error appearing, the judgment is affirmed.


author: McCulloch, C. J.

text:
    Quarles v. Little Cypress Drainage District.
    Opinion delivered March 30, 1925.
    1. -.- Drains-t-contract for ,. construction. — Where the engineer of a drainage district severed his connection as engineer for the district, openly '.and with the district’s consent, after all the preliminary work had 'been completed, an'd thereafter made ■ the lowest bid for' the construction work, held that he violated no principle-of1 law in doing so,-and his contract of construction was valid, ' •
    2. , Drains — rights, of subcontractor. — A. subcontractor who has partly constructed a ditch, and the work being .stopped by the district, is entitled to recover ex contractu, and not on a quantum ' 'meruit, ; for' the'’ work done pursuant to the contract of the ’principal contractor' with- the district. - ;
    3.' Drains — rights of subcontractor. — Where a contractor -sued a drainage district for the amount due him for- work done - under his contract- and for breach of his, contract, and his sub- - contractor brought a similar, suit, against the contractor and .. the' district, and the cases were tried together, in order to avoid a circuity of actions the subcontractor will be allowed to recover direct -from- the district the portion of the' amount due ; -the contractor which belonged- to the subcontractor. -
    4.- Drains — right to' stop work. — Where a drainage 'district in a . - construction coritract,reserved the right to stop work and.com-píete it itself, and, a subcontract .provided for the same con- ' tingency, the district is not , liable to the subcontractor for stopping the work.
    5; ' Drains — stoppage op Work — right- to deduct advance pay■-MENT. — Where a construction contract with a drainage ■ district ’ ■ provided for advance payment by-the district for purchase of the .....equipment, and for repayment .by deduction of part of the agreed price .per. yard, the district, .upon stopping the work under an '' option i'n the Contract wias not entitled to deduct' the Unpaid remainder of'the advance payment as against a'-subcontractor'.
    6. Drains — stoppage of work — right to' deduct advance payment. — Where a construction contract with a drainage district provided for advance payment by the district for purchase of the equipment, -and for repayment by deduction of part of the agreed price per yard and further provided that this district should have the option to stop the work and complete it on the cost basis, and to employ the contractor at a fixed per centum of the cost, the district is entitled, in settling with the contractor, to charge him with the cost of the advance payment for the equipment.

      7.,. Drains — RIGHTS qf contractor. — Where a principal contractor agreed to construct a drainage diitch at the rate of 35 cents per dübic yard; 'which was in turn subcontracted to another at : '25 cents peí' cubic1 yaM-,he was entitled to recover the’difference í -between the'two ■ amounts where the district exercised its option to stop work before completion., .
    8. ’ Drains — breagh; , of contract — damage.—.Where a drainage ¡ ;. ¡ ^tetrict,, hayip.g. the '-right. to ■ stop the work under a contract , . and to employ -th^( contractor on a. cost-plus, basis, exercised its option to step the work, but.failed to complete it under the co’st- ' plus' basis, it will be liable te the contractor for the work doné taflér theAíOfttjact and' fbr damages taufeed" hy failure ito completé ';.t|he ditch.undoriitho cost-plus jbasis. , - • ,. '.,.-r.
    .Appeal |iiom Phillips Chancery Court.; A. L. Hutchins, Chancellor;

      reversed.

      i‘.<ih. G. Going', Coleman, Robinson é House and W\ G. Doming, for appellants: -

      'Moore, Wálher & Moore, for app'ellees.
   McCulloch, C. J.

Appellee is a drainage district ip EJiillips : Coianty,. organized-u$der .a- special statute, and, appellant, John M., Quarles, together with his part ner.ip. the practice of,.the engineering profession. Mr. BAnHwtt* were employed hy the commissioners to do the engineering - work for, the district. The engineers made thevnoeessary surveys upon- plans and specifications which were.ad opted, by .the commissioners, and an advér-r tkemétet: for bids ,-was duly- published;» ■ The coinmis*-sioners -received-one .or-.more bids-; hut. they- were -unsatis1 - factory <* and. were-rejected. .At .this point of -the- proceedings: appellant Quarles applied fa the commissioners for!-permission -to: resign -his position as engineer, and madte iatbid to do' the construction- wórk. ■ After consul-' tát'iñn- With the- attorney -for- ‘the district, who adviséd th&t Abére'Wa'á'no impropriety 'in 'Quarles -resigning his' pMitiqfi! -and hidd-irig fbr the’ work, the commissioners'p'érffiitted hiM''-tó'’fio; so, and' his hid’ was Accented' and' a contract was entered into with him hy the' coinmis-; siWrief&A The -hid1 ‘WaS'-'To remote The'Estimated :'ám'ount of 364,273 cubic yards of earth at thirty-five cents per cubic yard. There was also a specification of the price and quantity , of clearing and grubbing, but there is no controversy in the present litigation over that feature of the work, hence it is unnecessary tO' mention it.

The contract between Quarles and the commissioners was dated October 12, 1920, and contained a stipulation to the effect that the district should advance to the .contractor the sum of. $25,000 in money, one-half of which, was to be paid over when the dredging, machinery ' should arrive at a certain railroad station near the work, and the other one-half when . the machinery was installed and ready for operation at the place where the system of canals was to begin, and it was further stipulated1 that the amount so advanced should. be repaid by a deduction of ten cents per cubic yard for the removal of the dirt as the work progressed. A supplemental contract between the parties contained the following pro vision :

“Now, I hereby agree with the commissioners of said drainage district that, at any time subsequent to the date of which I shall begin work on said system of drainage and canals, and upon five days’ notice in writing given me by the said board of1 commissioners of said drainage district to turnover to the said board of commissioners of said- district the uncompleted work, to the end that said board have complete charge, thereof from that date; and I further agree to go on with the performance of said work, to superintend the same, and to cause ' said work to be completed, under the management and direction'of .the said board of commissioners at their expense,-and as compensation for my services, from the date that said board of commissioners take over said work, I am to receive 15 per cent.- of thé cost of construction of said uncompleted work, the same, to be paid me on monthly estimates by the said board ¡until said work is completed.”

Quarles subcontracted--the work to ,B. L. Cheshire under written contract dated December 1, 1920, at the price of thirty cents per cubic yard, fox moving earth, and the contract, after specifying all of the other items, contains a stipulation for an advancement of $25,000 for the cost of installation of the machinery, and also the following stipulation:

‘ • The party of the first part agrees that, in event the board of commissioners of the Little Cypress Drainage District takes over the contract on cost-plus, basis (as provided in contract executed between the commissioners and the party of the-first.part),, that the party of the first part agrees to pay to the party of the second part an amount to equal all expenses that the party of the seeond part has paid out for securing equipment, which covers , cost of plant, dismantling, transportation, erecting, and all other expenses by installation of equipment. Should the commissioners . take over contract before equipment, shall have excavated 50,000 cubic yards of excavation, the party of the firs,t part agrees to .pay the cost of operation, shall pay for all material on hand, such as supplies, and shall pay the party of the .second part the amount of two thousand dollars ($2,000), which is to compensate the said party of the second part for installing equipment and starting the organization. The party of the first part shall be entitled to receive all pay on work completed, if same is taken over" before machine has excavated the stipulated yardage.”

'On December 6, 1920, Cheshire subcontracted the Work to appellant T. D. Hunt at'twenty-five cents per cubic yard for the removal of earth, and the written contract between them contains the same stipulations as those referred to above in the contract between Quarles and’ Cheshire. The district advanced $25,000 in accordance'with the contract, which was used in the purchase of machinery and other equipment, and the additional dost of installation of the machinery at the place of' wérk ran the initial cost up to $32,881.63. After installing the equipment, appellant Iiunt proceeded with the' construction work, and, in addition to a certain amount of grubbing and clearing, he excavated and removed 73,850;70 cubic yards of earth. He was paid $8,447.10- on estimates, and nothing more has been- paid to-him-or-to Quarles. Thd Commissioners then, under date of July 29/ 1921, gave" notice to Quarles, as principal-contractor,; of the election of the district to exercise the option-in the non-tract for stopping the work and taking overo the construction of the ditch. The work was accordingly ■stopped, and nothing further1 has -been, done toward, the 'completion of the improvement-.-' Assessments of-benefits were made, and taxes levied and bonds were sold, fend part of the money for; the purchase price of the4 bonds was paid over to the commissioners.

' ’ Quarles subsequently brought 'suit against the'district, allegingbreack of the contract by the commissioners,' and also alleging that he had held-‘himself in readiness"'to comply with’the contract,''both;as to the ^Construction of the work on the original terras specified Or 'on the cost-plus'básis specified in the Supplemental contract, and prayed for the recovery of compensation for the'amount of work "done'as'well as damages for being 'prevented from doing the' remainder of the work.

, Appellant Hunt also, instituted, a , separate-faction against the district and against Quarles to recover .the amount of earned compensation , under his .'-contract and for damages for breach of the' contract. ,.

, ., These. actions were ■ instituted in t-he .circuit court, but,-on motion of.-the. district, were transferred; to the chancery court, and pr.oceeded.there to-final-trial--and decree.. The district answered, pleading the -¡invalidity of- Qiiarles’ contract; with , the district on- account- of; his ,hav¡ipg been engineer, of .the district-in the formation of the, plans,, and also pleading that the contract-.was.?-.an improvident one and .should .be set aside. .-There! were -Other denials with respect,/to. the amount: of . outlay claimed .by-each;of the appellants.,, audit was’.also.-denied that there were, any damages,-..sustained-. The ¡chancery court rendered -a final decree dismissing,' Quarles-’ complaint for want of equity ou the. ground that the. contract with the district was void by reason of Ms former- relation to the district as engineer. The court held that-Hunt could recover from the district only on the quantum mer-uit basis, and, after stating his account with the district, brought him out in debt to the district in the sum-of $14,288.22. The account between Hunt and--the district was stated by the court in its decree as follows:

credit.
73,850.70 cubic yards removed at 8%. ',. ! ,,,
per yard ..,$
Rental on drainage boat at $30 per day...!.! ' 2]10j}.Q0
Grubbing right-of-way.,...,1...' l,8Q0’.'p0
Additional cost of installation...7,881.68
Maintenance of organization during.v
delay ......!.!..!i.. 1,100.00
Total ’ / ' $19,158.88
DEBIT. _ ; . . !
Amount advanced for purchase and in-
stallation of equipment...!....$25$00,C)Q
Amount paid on estimates........ 82447.10
Total .!.!.!.........!„,::.$33;447.10
Balance due from Hunt to district...........!..$Í4,288!22

The court also in its decree declared a.lien in favor of the district on the drainage boat, which was,part,,of the equipment and on which-advances were., made,.-apd ■held that appellant Hunt' and his surety were, liable on his bond executed during the pendency of, the aption for the retprn of the equipment,if., ordered by ■ the-,pourt.,.

Learned counsel for appellee defend the cou^t.’s decree on the ground, that- the contract of- Quarles:,'with the district was illegal and void, and that Hunt .was entitled to recover only on quantum meruit> and-that the court allowed him the amount, to which he- Was .entitled. Counsel base their contention on the- .decision-:of.-. th-iá court in the case of Carter v. Bradley County Road Improvement District, 155 Ark 288, but we am ofithfe opinion • that the rule announced in that case is not applicable to the present .case. -In the Carter case the engineer of the improvement district had, while serving as engineer for.the State Highway Commission, entered into, a contract with the road improvement district to do the engineering work, and this court held that, he was not entitled to recover either on the contract or..on the quantum meruit, notwithstanding the fact that the work was done after the claimant had severed his connection with the State Highway Commission'. In the present case Quarles severed his connection with appellee district as engineer before he bid for the construction work, and this was done without any concealment, openly and with the approval of the attorney for the district as well as the commissioners. He resigned as engineer after all preliminary work had been done and the plans had been completed and approved. It was even after bids had been advertised for and received and no satisfactory bids had been made. There is nothing in the proof to justify the conclusion that there ’ was any collusion between Quarles and the commissioners whereby he was to take advantage of his position as engineer for The purpose of securing an advantageous contract with the district. There is nothing to show that the resignation was a mere evasion of duties devolving upon • Quarlés as engineer. On the contrary, hé had, as before stated,' completed all 'of the engineering work to be done up to that time, and when the bid1 was made there were no official or confidential relations existing between Quarles and the district. He was perfectly free then to enter into a contract with the district, and we can perceive no principle of law that would forbid his doing so. Nor is the proof sufficient to justify the conclusion that ■ the' contract was an improvident one. The bid was much less than the bids received by' the commissioners from other persons. There is testimony in the record of other work being done cheaper, and other testimony tending to show that the'price stipulated for in Quarlescontract was too high, but we are of the opinion1 that the testimony as a whole does not justify a finding that the contract was improvident or that the commissioners could, by the exercise of diligence, have secured a contract at a lower price. The contract entered into was free front fraud or collusion, and we can see no reason why it should not be upheld. ’ " • 1

' Our conclusion therefore is that Quarles’ contract was valid and that he is entitled to recover earned compensation and for damages which arose, for which he should’ bé allowed compensation as- in other cases under settled 'principles of law.

Whatever appellant Hunt is entitled to recover,'it mhst be under the contract and not on the quantum mer-uit. He had no contract with the district, for his contract was with'Quarles, but, since Quarles and Hunt are both parties to this' suit, Hunt should be allowed, in order to prevent circuitous actions, to recover directly from the district the amount he is entitled to under the contract and for which the district is liable under its contract with Quarles. ; Hunt is, of course, entitled to recover for the amount of excavation and removal of dirt at the stipulated price under his own contract with Quarles, and also for the price of the grubbing, which is undisputed. He is not entitled to recoyer anything from the district by way of damages for breach of contract, for the simple reason that the district did-pót,break the contract so far,as allowing the construction of the improvement to be made under the terms of the contract. The district in its contract expressly reserved the right, and option of stopping the work at any time and completing the job. Hunt is bound, so far as any liability of the district to him, is concerned, by the stipulations in the contract between Quarles and the district. It is a hard feature of the contract, but he can obtain no relief from it, for the reason that it became a part of his own contract. For the same reason he is not entitled to recover anything as reimbursement for the additional cóát of the installation of equipment. Nor is:Ke entitled to recover for the expensé of maintaining a crew while, the equipment was idle. These are items purely of .damages for breach of the contract, and, as we- have already seen, there was. no breach of the contract .by the. district so far as concerned Hunt, for the reason that, the district reserved its ..right to stop the work at any time, and the stoppage of the work was not a breach but was within the. reserved rights of the district. On the other hand, the district should not .be permitted to deduct from, its liability to Hunt for earned compensation .the full amount advanced for the purchase of equipment. This is so because the district expressly, agreed- in.tits contract to claim the right of deduction only to the extent of, ten .cents per cubic yard of excavation and removal of dirt during the progress of-the /w;or.k., Having contracted to accept the return of the money .in that way . only, the district cannot, after haying made an election to stop the work,, insist upon the subcontractor returning the money advanced for the equipment.; The account between Hunt and the district should be stated,as. follows:

. CREDIT.
73,850,70.; cu. yds., removed at 25c per yd.$18,462.67
Amount allowed on grubbing... 1,800.00
’ Total :...:.$20,262.67.
DEBIT.
Amount"'paid on''estimates.:...!...$ 8,447.10
Amount of "deduction at 10c per cubic •'-"■yard for ad-vaneément on equip-'merit .....i....:.;.'.:.:...;-....J.. ' 7,358.70
Total '.:::..:..:...:.:.$15,805.80
Balance..due. Hunt*....,..-.:.-....<.:....$ 4,456.87

• - The-decree in-favor of- Hunt should be for the balance stated above. -- .

-.-..¡Turning-.to- the.-.claim of Quarles, we are of the opinion-that.-he is. entitled to recover from the district the balance, of-ten-pent s per cubic yard-on the removal of, earth-.by- Hunt,.-which is- the -difference between the. amount-he: is.-entitled-to;.-under.- his,-- contract and - the.-. amount to be recovered by Hunt under bis contract. Quarles is entitled, under bis. supplemental contract .with tbe district to fifteen. per centum, of tbe cpst. of tbe improvement made under bis supervision. According to tbe undisputed evidence, it would .have cqst. $1.40;QQ0 to complete tbe work, and Quarles field, .himself in readiness to do tbe work when called on by-.tbe district,, .-and was not able to obtain : any other • employment, during tbe period wbicb would have been, .covered- .by, tbe, -,completion of the work. He is-therefore entitled to recover the compensation wbicb be would have, earned .under the contract if performed.. Quarles is-.alsp.,chargeable with tbe balance of tbe ,sum advanced by. tfi;e; district on equipment after deducting the amount charged, .to Hunt. Notwithstanding, the stipulation-.,in-the .contract for the deduction .of the advancement-on,the .estimates of work done, Quarles is responsible.for the. full-amount, inasmuch as be is allowed under the contract to- recoyer fifteen per centum of tbe total cpst of the- completion, pf tbe improvement. He stands-in a different attitude from Hunt in this respect, for, under bis,.contract,.¡fie, ¡was,pot cut off from earning additional compensation by tbe election of tbe district to complete tbe work itself. A fair interpretation of tbe contract is that the district had the right to stop the progress of tbe work under tbe contract and change to the cost-plus basis-,:and, if should not be denied tbe return of the amount of money advanced merely because it madh this'change. Quarles took bis chances under the contract on the loss of.bis equipment, and, if be claims the fifteen per centum on tbe -cost of completing tbe work, - he. must- return the money advanced for the equipment'.- Qiiarles’ account with the district should therefore be státed a? follows;

CRKDir.
73,850.70 eu. yds. removed at 10c per yd.¡,..$. 7,385.07
Amount allowed, 15 per cent of cost of completing tbe work..i.L.:. 2l;000.00
Total .: ..l.:...'.:,..$28,385.07
■debit.
Balance of amount advanced for equipment, - after deducting amount charged to Hunt.$17,641.30
Balance due Quarles.:$10,743.77

It is conceded that Quarles is entitled to' recover this amount from the district. Both of the appellants are entitled to recover' interest from the time of the commencement of their respective actions.

It is conceded by- both Quarles and Hunt that there are items of account to be settled between them; in this litigation; and that, on the remand of the cause, those matters will be either settled-or litigated.' We are not asked to decide any issue between them, but they ask’ that the cause be remanded for that purpose. ' -

The decree of the chancery court is therefore reversed, and the cause remanded with directions to the court to enter a decree in favor of appellants Hunt and Quarles for the respective amounts stated above, with interest, and for further proceedings not inconsistent with this opinion.


text:
    Home Mutual Life Association v. Swagerty.
    Opinion delivered March 30, 1925.
    Insurance — benefit insurance — forfeiture.—Where the holder' of two benefit' certificates failed to pay or 'to’ offer to pay the regular monthly assessments for two years' before her death, after her application for reinstatement of one of the certificates was refused and her check covering both assessments was returned, she will -be held to have abandoned the certificates, though no subsequent notice of assessments was given to her, and no actual notice of forfeiture of the other certificate.
    Appeal from Washington Circuit Court; W. A. Dickson, Judge;
    reversed.

      Neill BohUnger, for appellant.

      Walker & Walker, f or appellée.'
   McCulloch, C. J.

Appellant is a mutual insurance company, doing business on what is térnied the' circle plan, whereby each member is placed in a group or circle, and when a death occurs in a citcule an assessment is issued on all the remaining members, and the beneficiary receives the amount raised' by the last preceding assessment, after deducting the cost of collection. The maximum amount of each policy is $1,000.

Ellen Swagerty, the mother of appellee, became a member of the association, and was the holder of two certificates, one in Group No. 1 and the other in Group No. 3,' appellee being the beneficiary in each certificate. One of the certificates was issued on January 30, 1915, and the other on July 29, 1915.' Assessments were paid as 'late as March 23, 1921, hut, according to testimony adduced by appellant, the January assessment was not paid. On April 25,' 1921, Mrs. Swagerty, the holder of the certificates, sent in a check for three dollars to cover the assessments for the month of April, but on April 30, 1921, appellant returned the check with a notice to Mrs. Swagerty that the certificate in Group 3 had lapsed on account of failure to pay the January assessment. It ivas suggested to her that she should apply for reinstatement, and blanks for that purpose were sent'to her, which were' filled out and signed and returned to the company, but she was later notified of the rejection of her application. No payments were made thereafter of assessments on either of the certificates, and Mrs. Swagerty died May 30,1923. Appellee is the beneficiary in each .of the certificates, and instituted this action praying for the recovery of the maximum amount of $1,000, on each certificate. There was a trial before a jury, and there was a verdict in appellee’s favor for the sum of $613.25 to cover the amount which the testimony tended to show was the aggregate of the last preceding assessment in éabh of the groups, less the cost of collection.

The contention of appellant is that both policies lapsed by reason of nonpayment of assessments. The theory of appellee is that the assured paid all of the assessments of. which she received actual notice and that there was no lapse of the policies by reason of failing to pay assessments of which no notice was sent out.

,: -There is, really. no dispute in the, testimony, and the only question is .whether or- not the certificates were forfeited by failure to pay the premium.

• It.is undisputed that, the assured was notified of the lapse of one of the certificates, that she applied for reinstatement and, was rejected, and thereafter paid no assessments nor offered to pay,-any. Two years elapsed before the death of the assured, and it is perfectly clear that; there was--a forfeiture of this particular certificate.

. W.e/are of the opinipn also, that,there was a forfeiture of the other certificate by reason of complete abandonment of the policy, notwithstanding the fact that there-.¡was.no.-actual notice of a forfeiture. The check which ;was. returned by appellant uncollected on April 3% 1921, was sent to cover the assessments on both of the certificates. -The ¡assured,knew-that the check was returned, and .is bound to have known that there were other succeeding assessments. The testimony shows that there..were regular monthly assessments, and, even though notice was. provided for, the assured could not hold on to a membership indefinitely without contributing to the benefit funds. There is no escape from the conclusion that the . assured treated her membership in both certificates as having been lapsed, and that she completely abandoned both • certificates. Appellant’s only source ,o:f revenue was the collection of assessments on th.e- death of its members, and, as before stated, a- member could not ignore, the requirements and for. a long lause of time continuously ignore the. obligation to contribute to-the. funds-of the, association by .paying assessments. This constituted.an abandonment.of the policy, and .there.■pan,be no recovery.; ... - ... ..

. The-judgment-.is.-therefore, reversed, and, as the eansh-is fully developed, judgment will be entered here i a;-favor of, appellant. . .


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

text:
    Cole v. Cole.
    Opinion delivered March 30, 1925.
    • Pl»0ECE-^CONeEÜSIVENBSS > OF ■ WIFE’S STATEMENT.--Ip an action ’1 fejy- ■ ¡&> .-ywiv^e- f fQr- -divorce «n. .the- {p-oppds of ¡cruel .treatment and ; , ^dignities, written statement, g^yen ito t him at the time she ' lefi him, in 'which-she absolved him from any charge of mist '1 ‘"conduct, held hot eoriclusive, but merely tó be considered with 1» fotfett1 téstiriliShyí- ■■■' 1 -
    2'.3iD-tvttfcéE-i-cÁNCEimATÍ(ÍNi of dikbAfartteS-. — In an-’ action fot i, diyfojce, eancellatien of - the husband’s deed to his: mother, as in ■ fpaud, n£ the .wife’s rights was not justified where his ipother was not a party.
    3. DIVORCE — allowance of attorney’s fee. — Where, on the' pend-of art: appeal by the’husband,- the trial cotirt directed the ,'Tf-h|usha!nd -to: psa^s:$50- fet the wife’s,-attorney, and-the (decree is , ¡ raj^tmedi ih so far, as.- ijt ,'a¡llo-yvs a diy¡o,ree,to.the wife, the. amwmt , of such fee will not be deducted from the property allowance '‘miáiíd'By-the tr'istt coii-rt.' ‘

      4 '’--SivORéti — EFFÍsfc'd 0F-Reversal' fk PART. — Where a- decree^ in a vu* divorce cate was-reversed in so far ad it canceled- a deed from appellant ¡to> hue not ,a party jtq the suit, ;and,remanded for .ffyirther .proceedings .■ qn, that issue alone, this doe? not call for- a reversal (of fhe Vhole' cause nor reopen the issues' as to the 'SffbVéé,'distribution of property,'and ¡allowance óf C’óúfisel fees'.
    5. Appeal''And' error — ñewlV discovered evidence. — An apipíicá'- > -;'/Mtf<w;óni ¡rehearing; ¡for. a- -new ¡trial an a-divorce case on-account > 'of,ngwly discovered, evidence .yijl.not ¡be considered on .appeal,
    fi. h^VqRQBVPROCEEBING TQ il^ODIFY -DECREE. AS .TO CUSTODY, OF , ^HJt-DREi^. — A proceeding to modify a decree; in a divorce, suit _ as to the custody of the children,’ based', upon' newly discovered “! 'evidence nof in ‘the -récord;1 must btigihate : ih the trial'court, • ’Land cart - be reviewed - only' on ■ appeal from its- Recree.
    Appeal, fpoin Greene^Chancery 'Court; '&am Cosien, ^pép^áí Glj'an'ceilor'y
    reversed in part.

      . ffeff;Éfqtton, ÍQi: $$>pellanb
    for appellee.. . .
   McCulloch, C. J.

Appellant and appellee are .husband and, wife,, andt)1*? .aetion was, instituted by appellee ,{tbe .wiie^.to.tpbta,!» a .cUyorce and to obtain her dist^ibjitiyp- simara of. appellant’s., property. The. action ¡originated. merely, as .one for division - of ■ property, ,bnt subsequently appellee filed an amended complaint praying for a divorce on the ground of cruel treatment and indignities.' Appellee secured, at the commencement of the action, a temporary order from the chancery court restraining appellant from disposing of his property. It is also alleged in the complaint thait appellant had fraudulently induced her to join, in a conveyance of a tract of land to appellant’s mother, Mrs. Angie Cole, and that this was done for the sole-purpose of placing the title beyond appellee’s reach in securing her rights in appellant’s’estate. There is a prayer for a cancellation of that deed.

Appellant filed his answer denying all the allegations of the complaint with respect to. misconduct on his part, and the cause was heard by the court on oral testimony.

The parties intermarried on August 24, 1919, and lived together until the month of July, 1923, when appel-lee left appellant’s home and went to the home of her parents, and about a month later instituted this action. They have three children — two . girls and a boy — their ages running from three years down to about two months at the time of the commencement of the action.

Appellee alleged in her complaint and introduced testimony tending to prove all sorts of misconduct towards her on part of appellant. She claims that he neglected her during illness, particularly at the time of the birth of her children, subjecting her to hard work in housekeeping, failure to provide clothing, abuse, epithets; that he struck her one time with a stick; that he was jealous of her association with her friends, and denied her any privileges of going into society. All of these charges were denied by appellant, and he introduced testimony tending to show that the charges were unfounded.

• The récord is voluminous, and there is a large number of witnesses on each side of the controversy. No useful purpose would be served in reviewing the testimony in detail. From careful consideration of it we fail to-see. that the finding of the trial court is against rthe preponderance of the evidence. ;....

.The contention of appellant is that appellee left of her .own accord and without , any .cause being given, and that her sole purpose was to enter upon, some career of her own, and that, when she left him, s.he gave, him a written statement absolving him from any charge of misconduct. There is some conflict. as to the circumstances under, which the statement was made, but, at. all events, it is. not conclusive and is. only to .be considered along with other testimony in the case in determining whether or not appellant was in fact guilty of.the misconduct charged.

Appellant is shown to be a man conducting a successful business and receiving a fairly good income, and the trial court in its final decree set aside a certain .amount of personal property to .appellee as her portion, and also ordered appellant to pay an attorney’s fee of $150 and also to pay to appellee the sum of thirty-five dollars per month for the support of the children. The court' also canceled the deed to appellant’s mother, Mrs. Angie Cole, and appointed commissioners to set apart appel-lee’s portion of one-third..

We. find that the testimony justified the. award of personal,property to appellee, as well as the other;allowances, but it was improper to. cancel the deed to Mrs. Cole* for the reason;.that she was not a party to the action.

During the pendency of the appeal, this court made an.¡order directing appellant to. pay appellee the snm of $50, to be used in payment of attorney’s- fees in this court, and we reserved until final disposition of the case on the merits, the question whether or not this should be deducted from the amount allowed by the trial court. We conclude that the additional sum mentioned should not be deducted, and that the original allowance made by the trial court should stand, ■ , .

The decree is therefore affirmed in all things except as to the cancellation of the deed to Mrs. Cole, and that part of the decree is- -reversed,'1 and the' canse -remanded with directions that, unless' appellee is advised to make Mrs. Cole a party to- the action and does áo, the complaint he dismissed* as to-the cancellation of the conveyance. It is so ordered.,

McCulloch, C: J.,

(bn rehearing-). Appellant''has filed here a certified copy of an order jof’the chahcellór, rendered subsequent to "thé rendition' of the' deefeedp-pealed from, and in this1 order the custody of the children is changed'from appellee to appellant, without changing, however, the: Order previously 'made b'y! the court' with respect to-the payment of thirty-five’''dollars «per niori/th to appellee for the support of the 'children. It does ‘not appear from this .supplemental record, hoWév'ér, that the court was asked to modify the original decree in this ■respect,‘ nor has there be‘en any appeal prosecuted from the order.1 We are asked to modify the decree so afeto eliminate the requirement for the payment of the monthly allowance to'appellee, or to remand the whole’caufeé for trial de novo so that' the’ lower 'cohrt ‘can make such an ‘order and can hear' new' evidence Oh all the - issues in the'case.

It is alleged in the petition' for ‘rehearing that appellant has discovered new ’evidence, and his' counsel insist that, inasmuch ás the cause has been remanded for’further proceedings with respect to the cancellation of -the ’deed to Mrs. Angie Cole, we- should' remand the whole cause for further proceedings so as to afford appellant an opportunity to present this.evidence. ’ ■ - '■1

The 'factthat’ we reversed the cause on one issue does not call for a reversal'of the 'eáüsé On1 the'maih: issue, the evidence being sfiffieiefit ' to ’ support the decree ■ fór' a divorce .and for distribution: of • property- ’ allowance- of fees, etc. Neither does the-fact that appellant has discovered new evidence call for a reversal. We’try chancery- oases hete de, novo, but upon the record made'bn. the trial below, and we have nb authbrity to consider-here, ah application for a trial d&'novo 'on. account of-newly discovered evidence,-that being'an original'proceeding.--The same may be said with reference to appellant’s application to modify the decree making a monthly allowance. T,hat allowance is subject to change by the 'chancery court, and we have no authority to do so here except upon appeal from an order of the chancery court refusing to change the allowance. The question of modification of the requirement of the original decree with respect to custody of the children and allowance of alimony, etc., constitutes a new proceeding which must originate with the trial court and be brought here on appeal before we can review such proceeding. The way is open for appellant to apply to the chancery court for any change with respect to allowances that may be called for by altered circumstances of the parties.

Rehearing denied.