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(248 S.W.) plaint, the Missouri Pacific Railroad Com Appeal from Circuit Court, Pulaski Counpany purchased the railroad, which was the ty; A. F. House, Judge. alleged cause of the injury to the plaintiff,

Action by William Hawkins against the some time after the injury occurred. Hence Continental Casualty Company. From a the plaintiff's cause of action had become y judgment for more than defendant admitted vested before the purchase was made of the as due on a policy of insurance, defendant railroad by the Missouri Pacific Railroad

appeals. Reversed, and judgment entered Company.

for amount tendered as due by defendant. [2] The complaint does not contain any allegation that the plaintiff had recovered

Roscoe R. Lynn, of Little Rock, for appel

lant.
judgment against the company operating the
road at the time he received his injury, and

G. Denison Cherry, of Little Rock, for ap
that on this account a judgment against the pellee.
operating railroad company would bind its
property in the hands of another company

HUMPHREYS, J. Appellee instituted suit purchasing it. In the absence of an allega- against appellant in the Third division of tion in the complaint that the plaintiff had the Pulaski circuit court, upon a personal recovered judgment against the company or accident policy, to recover $500 for the acthe receiver thereof operating the railroadcidental loss of an eye. The issue joined at the time the plaintiff received his injury, by the pleadings was whether appellee was the Missouri Pacific Railroad Company, entitled to $500 or $150. This was dependent which subsequently obtained possession of on whether appellee's change in occupation the road by purchase under a decree of a from an "ice checker, not handling," to that chancery court, is not liable and no lied can of a "laborer in foundry, not handling hot be fixed against its property. Williams v. metal,” changed his classification from C Mo. Pac. Rd. Co., 134 Ark. 366, 203 S. W. to XD, within the meaning of the standard 1038, and C., R. I. & P. Ry. Co. v. McBride, pro rata clause contained in the policy, which 136 Ark. 193, 206 S. W. 149.

clause is as follows: The complaint does not allege that any

"This policy includes the indorsements and suit was filed against the St. Louis, Iron attached papers, if any, and contains the entire Mountain & Southern Railway Company or contract of insurance except as it may be modiagainst the receiver of such railway com-fied by the company's classification of risks and pany and judgment obtained thereunder. premium rates in the event that the insured is The complaint does show that the injury was injured or contracts sickness after having received by the plaintiff while the St. Louis, changed his occupation to one classified by the Iron Mountain & Southern Railway Com- company as more hazardous than that stated in pany, or its receiver, was operating the road. the policy, or while he is doing an act or thing Therefore the court properly sustained a

pertaining to any occupation so classified, exdemurrer to the amended complaint, and the while engaged in recreations in which event

cept ordinary duties about his residence or judgment must be affirmed.

the company will pay only such portion of the indemnities provided in the policy as the premium paid would have purchased at the rate

but within the limits so fixed by the company

for such more hazardous occupation." CONTINENTAL CASUALTY CO. V. HAW

The cause proceeded to a hearing upon the KINS. (No. 196.)

pleadings and evidence, at the conclusion of (Supreme Court of Arkansas.

which appellant requested the court to in

Feb. 26, 1923. struct the jury to return a verdict for $150, Rehearing Denied March 26, 1923.)

which it had tendered into court. The court Insurance 531-Change of occupation by in- refused to give the instruction over the objecsured held to require policy to be reduced.

tion and exception of appellant, and over the In an action on an insurance policy, where objection and exception of appellant sent the it was undisputed that the insurance policy pro- case to the jury to ascertain whether the emvided that the insurance company might deter-ployment at the foundry was more hazardous mine the relative danger between occupations than at the ice company, and, if not, to refollowed by the insured, on an injury happen- turn a verdict for appellee. The court, over ing to the insured, an ice checker, after he had the objection and exception of appellant, had, changed his occupation to working in a foun- during the course of the trial admitted evidry, which was classified as more hazardous dence tending to show that the employment tban his former occupation, a pro rata clause at the foundry was less dangerous than that in the policy to the effect that the amount payable should be only amount of insurance the at the ice company. Premium would have brought if he bad been in

The jury returned a verdict in favor of sured as a foundry worker applied, and the appellee for $500, and a judgment was rencourt should have directed a verdict for the dered in accordance therewith, from which amount so determined.

is this appeal.
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Appellant's insistence for reversal is that the crops, that defendant failed to plant one the court erred in not construing the con- of the crops provided for, and to divide others, tract, under the undisputed evidence, to and alleging damages, was not demurrable for mean that the classification of appellee had failure to state facts sufficient to constitute a been changed from C to XD by changing his cause of action. occupation to one classified by the insurer 2. Pleading Om 193(6), 362(2), 369(1)-Joinas more hazardous than the one stated in der of action sounding in tort with action for the policy. The undisputed facts show that unlawful detainer not ground for demurrer. appellee stated in his application, which was A complaint to recover possession of leased copied into and made a part of the policy, premises and for damages for wounding plainthat he was employed by the ice company tiff was not demurrable because joining an acin the capacity of "ice checker, not han- tion for unlawful detainer with one sounding dling"; also that the rate and classification in tort, since this error should have been met manual, which became a part of the policy by a motion to strike the action improperly by express terms therein, shows that a la- joined, or to require an election between the

actions pleaded. borer in a foundry not handling hot metal was rated and classified as class XD; also that appellee changed his occupation from

Appeal from Circuit Court, White County; that specified and classified in the policy as

J. M. Jackson, Judge. class C to that of a laborer in a foundry, Action by W. N. Martin against J. D. Stratnot handling hot metal; also that appellant ton and another. From judgment for defendclassified the occupation to which appellee ants, plaintiff appeals. Reversed and rechanged as more hazardous than his occupa- manded, with directions. tion with the ice company.

J. N. Rachels, of Searcy, for appellant. The contract entered into between appellee and appellant provided that appellant might determine the relative danger between occu

HUMPHREYS, J. [1] Growing out of an pations. This being true, and appellee hav- alleged breach of contract between appellant, ing changed his occupation from one specified as landlord, and appellee, J. D. Stratton, as and classified in the policy to one classified tenant, and an alleged unlawful attack upon by appellant as more hazardous than the one appellant by appellee, appellant brought suit stated in the policy, the pro rata clause in against appellee in the White county circuit the policy is applicable, and appellee was

court to recover possession of the land rented only entitled to recover the benefits which to him, damages for breach thereof, and would have been provided in his policy if rents, and for damages to his person inflicted

It was alhe had paid the same amount of premium by a gunshot fired by appellee. and had been engaged in the occupation of leged, in substance, in the complaint: First, laborer in foundry, not handling hot metal. that appellant rented 160 acres of land in Under the undisputed facts and terms of said county to said appellee under written the policy appellee's claim must be prorated

contract for three years, beginning January 1,

1919, and ending December 31, 1922; that the from class C to class XD, entitling him to a

contract provided for J. D. Stratton to set recovery of $150. The trial court should have instructed a verdict for that amount. out and cultivate 8 acres in strawberries and

On account of the error indicated, the judg- 10 acres in cotton; that he should pay apment is reversed, and judgment is directed pellant one-half the net proceeds of the berry to be entered here in accordance with the crop in 1920 and 1921 in part payment of tender heretofore made.

rent, and, in further payment thereof, to deliver appellant one-half of the lint cotton and seed after paying for ginning same; that appellee failed to plant any cotton to appel. lant's damage in the sum of $200, and failed

to divide the net proceeds of the berry crop MARTIN V, STRATTON et al. (No. 227.)

in 1920, to his damage in the sum of $250; (Supreme Court of Arkansas. March 12,

second, that appellee came upon appellant's 1923.)

premises and unlawfully, maliciously, and 1. Landlord and tenant ew291 (8)-Complaint of $10,000. It was further alleged that said

feloniously shot him, to his injury in the sum in action to recover possession of land rent- appellee's codefendant was brought upon the ed and for damages held not demurrable. Under Crawford & Moses' Dig. § 4838, pro-ing the possession thereof, and was a tres

rented land to unlawfully assist him in hold. viding that a failure to pay rent when due after three days' written notice to quit shall consti

passer. tute an unlawful detainer, justifying an action

Appellees filed a demurrer to the complaint for possession of the premises, which is true upon the ground that it did not state facts regardless of whether the lease makes a failure sufficient to constitute a cause of action to pay rent a ground of forfeiture, a complaint against them. The court sustained the de alleging a renting to defendant for a share of murrer, and dismissed appellant's complaint

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(248 S.W.) over his objection pad exception, from which [ and W. T. Hammock, Asst. Attys. Gen., for is this appeal.

the State. The only question presented by the appeal for determination is whether the complaint WOOD, J. Appellant was convicted of states a cause of action. It is provided by the crime of selling intoxicating liquor, and statute in this state that a failure to pay sentenced by the judgment of the court to rent when due, after three days' written no one year's imprisonment in the state penitice to quit, shall constitute an unlawful de- tentiary. From that judgment is this appeal. tainer, justifying an action by the landowner [1] Appellant contends, first, that there against the tenant for the possession of the was no testimony to sustain the verdict. premises. Section 4838, Crawford & Moses' Clint Hines, a witness for the state, testified Digest. This is true regardless of whether that he was sitting at his house when apthe rental contract or lease makes a failure pellant came by and asked him if he wanted to pay rent a ground of forfeiture. Parker anything to drink. Appellant got out of the V. Geary, 57 Ark. 301, 21 S. W. 472. The car and took therefrom a half gallon of facts alleged in the complaint meet all the whisky and put it out on the sidewalk. Witstatutory requirements of an action for un.

cautioned appellant that somebody lawful detainer. The court erred, therefore, might see him. Appellant then put the in sustaining the demurrer.

whisky in the barn. Witness told appel[2] An attempt was made to join an action lant that he did not want all of the whisky, sounding in tort with an action for unlaw- but just wanted a drink. Appellant left, and ful detainer, but this was not ground for said he would be back, and did come back in demurrer. This error should have been met 20 or 25 minutes. When appellant brought by a motion to strike the action improperly the whisky he stated it was $3 a pint, and joined, or to require appellant to elect as witness told appellant that he wanted only between the actions pleaded. Jett v. Theo a drink. Appellant told witness to take what Maxfield Co., 80 Ark. 167, 96 S. W. 143.

he wanted out of it and he would be back For the error indicated, the judgment is for the rest. Witness was then asked, reversed, and the cause is remanded with ""When were you to pay him?" Witness re directions to overrule the demurrer to the plied, “I suppose when he would come back, complaint.

but he never came back.” Appellant told witness that he could pay for the whisky later. Witness stated that he was positive

that appellant was the man who sold witness SMITH V, STATE. (No. 217.)

the whisky. Witness was to pay appellant

for what he used. Witness let Fitzgerald (Supreme Court of Arkansag. March 12, have the whisky so purchased from appel1923.)

lant. 1. Intoxicating liquors Om 236(11)-Evidence

Fitzgerald testified that he was the deputy held to sustain conviction for selling.

constable in Ft. Smith, and received liquor In a prosecution for selling intoxicating from Clint Hines and took it to Dr. Vaught liquor, evidence held to sustain conviction.

and had it analyzed. Dr. Vaught testified

that he was a chemist and bacteriologist for 2. Criminal law 684_Within court's discre- the city of Ft. Smith. Officer Fitzgerald tion to permit direct testimony by state after / brought him some whisky to analyze. Witdefendant has rested.

ness analyzed the same, and the sample was It is within the trial court's discretion to permit direct testimony to be adduced by the

corn whisky, and contained 43.56 per cent. state in a criminal case after the defendant alcohol by volume, and also contained nearly bas rested.

four grams of lye per 100 cubic centimeters.

The bottle containing the sample was label3. Criminal law 1 153(3)—Discretion of tried, "Sold by W. C. Smith to Clint Hines.” al court in permitting testimony by state

The above testimony was legally sufficient after defendant rested, not controlled unless abuse shown.

to sustain the verdict. The discretion of the trial court in a crim

[2] The appellant contends that the court inal case in permitting the state to adduce tes erred in permitting the state, after the appeltimony after the defendant has rested, will / lant had introduced a portion of his testi. not be controlled unless it has abused such mony in chief, to put on direct testimony. discretion.

It is within the trial court's discretion to

permit testimony to be adduced by the state Appeal from Circuit Court, Sebastian in a criminal case after defendant has rested." County; John Brizzolara, Judge.

Walker v. State, 100 Ark. 180, 139 S. W. 1139. W. C. Smith was convicted of selling in

[3] The trial court's discretion in this retoxicating liquors, and he appeals. Affirmed. spect will not be controlled unless it has

I. S. Simmons, of Ft. Smith, for appellant. abused such discretion. The record does not
J. S. Utley, Atty. Gen., and Elbert Godwin i show any abuse of discretion.

wa For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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The appellant contends that the court err- also testified that he purchased $400 in War ed in instructing the jury in regard to the Savings Stamps and paid for same, but that testimony of the defendant, and also erred only the amount of $300 was delivered to in its instruction concerning the credibility him. He exhibited with his testimony a reof witnesses and the weight that should be ceipt signed by an official of the bank showgiven their testimony.

ing that an envelope with contents had been It could serve no useful purpose to set out delivered to the bank for safe-keeping, but the instructions and discuss the alleged er- the receipt is blank as to the amount of the ror in the giving of same. The instructions contents. He testified that these purchases declared the law substantially in forms that were made in the spring of 1918, but that he have been repeatedly approved by this court. made no demand for delivery until January, There was no error in giving them. The 1920, the bond for $500 having been delivered judgment is correct, and it is therefore af- to him on December 26, 1918. firmed.

Appellee introduced 'witnesses connected with the bank, who testified that from the records appellant did not make any pur

chases of bonds from the bank except the WEAVER v. FIRST NAT, BANK OF JONES- $500 bond, which was delivered as shown by BORO. (No. 215.)

the records. The testimony of these witness

es also showed that the War Savings Stamps (Supreme Court of Arkansas. March 12,

were handled as cash, and that there were no 1923.)

payments made by appellant for undelivered Money received 18(3)-Evidence held to stamps. There was a conflict in the testisustain finding that plaintiff had not pur- mony, but we must treat it as settled by the chased bonds and War Savings Stamps as verdict of the jury. alleged.

The question of the weight and suficiency In a suit against a bank to recover the of the evidence was for the jury, and we are price of Liberty Bonds and War Savings not at liberty to set aside a verdict, where Stamps, alleged to have been purchased buty not delivered, defendant denying that the bonds there has been testimony legally sufficient to and stamps were purchased or paid for, evi- support it. dence held to sustain a verdict for defendant. Judgment affirmed.

Appeal from Circuit Court, Oraighead County; W. W. Bandy, Judge.

Action by J. A. Weaver against the First National Bank of Jonesboro. Judgment for BROWN & HACKNEY, Inc., V. STEPHEN. defendant, and plaintiff appeals. Affirmed.

SON. (No. 219.) E. L. Westbrooke, of Jonesboro, for ap

(Supreme Court of Arkansas. March 12, pellant.

1923.) Gautney & Dudley, of Jonesboro, for appellee.

1. Certiorari mw5(1), 6, 28(2)-Will not lie

where there has been right of appeal, unless McCULLOCH, C. J. Appellant sued ap

right lost without fault of petitioner, or un

less court acted without or in excess of its pellee in the court below to recover $300, the

jurisdiction. price alleged to have been paid for Liberty

A writ of certiorari cannot be used in any Bonds which were purchased but not deliv

case where there has been a right of appeal ered, and for $100, the price of War Savings unless the opportunity of appealing has been Stamps, alleged to have been purchased but lost without the fault of the petitioner or unnot delivered. Appellee denied that the less the court in the proceedings sought rebonds and stamps in question were purchased vie ed has acted without, or in excess of, its by appellant or paid for. The issue was jurisdiction. tried before a jury, and the trial resulted in 2. Appearance 18Special appearance and a verdict in favor of appellee.

motion of defendant to quash service of sum. It is undisputed that appellant purchased mons gave court jurisdiction to determine a $500 Liberty Bond from appellee in the such issue. year 1918, that he paid the price for same, Where defendant entered a special appearand that appellee delivered the bond to him ance and moved to quash the service of sumon December 26, 1918. Appellant testified in mons on him, the trial court had jurisdiction addition to this transaction, and prior to the to determine the issue. purchase of the $500 bond, he purchased $300 in Liberty Bonds from appellee-one

Certiorari to Circuit Court, Chicot County; bond of the second issue for $100, and one

Turner Butler, Judge. bond of the third issue in the sum of $200. Petition by Brown & Hackney, Incorpo. He testified that he paid for these bonds, but rated, against John C. Stephenson, for certhat they were never delivered to him. He tiorari to review the proceedings in an action

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(248 S.W.) resulting in a judgment against petitioner | an action as this in this court will deny to the for respondent Judgment affirmed,

defendant tbe equal-protection of the laws and

due process of law afforded to the defendant Hugbes & Hughes, of Memphis, Tenn., for by the Constitution of the United States. appellant

"Wherefore defendant asks that this cause Streett, Burnside & Streett, of Lake Vil- of action be dismissed as to it, and that it be lage, for appellee.

no longer threatened or imperiled with such

unlawful process." FOOD, J. The petitioner, Brown & Hack

On the hearing of the motion the same was ney, Incorporated, was sued by the respondent, John C. Stephenson, in the circuit court overruled, and, the defendant declining to

further plead, judgment was on March 15, of Chicot county, upon the following com

1922, rendered by said court in favor of the plaint:

plaintiff in said cause against the said de. "Comes the plaintiff, John O. Stephenson, and fendant for the sum of $1,634.85. for cause of action against the defendant,

On July 18, 1922, Brown & Hackney, InBrown & Hackney, Incorporated, states: That corporated, iled in this court the petition the defendant, Brown & Hackney, Incorporated, is and was on the 7th day of March, 1921, now before the court for a writ of certiorari a foreign corporation and incorporated under to bring before this court the record of the the laws of the state of Tennessee and author- proceedings had in the cause between the ized to do business in the state of Arkansas, parties in the circuit court of Chicot county and is and was on said date engaged in the for review and for the purpose of determinbusiness of buying logs and manufacturing same ing whether the judgment of that court was into Jumber, and has a designated agent in rendered without jurisdiction. The petition said state upon whom service of process may

sets out the facts disclosed by the forebe had; that on said 7th day of March, 1921, at Kilbourne

, La., the defendant purchased of going complaint and motion to quash, and and from the plaintiff 266 logs, amounting to alleges that the circuit court of Chicot coun61,525 feet, at an agreed price of $1,540.62; ty was without jurisdiction of the person that said logs were bought by defendant f. o. b. of the defendant therein or of the cause of cars Kilbourne, in said state, and pursuant to action upon which the judgment was there said contract the plaintiff immediately deliv- rendered; that the enforcement of said ered said logs to the defendant at said place; judgment would deprive this petitioner of that said logs were accepted by said defend- its property without due process of law in ant; that same were loaded on cars and con contravention of the Fourteenth Amendsigned to defendant at Little Rock, Ark., where they were refused; that defendant refused, and went to the federal Constitution. . It further still refuses, to pay plaintiff therefor.

avers that the petitioner here is without "Wherefore, plaintiff prays judgment against remedy to obtain a review of the proceedings the defendant, Brown & Hackney, Incorporat- of said circuit court other than by writ ed, for the sum of $1,540.62, interest, costs, of certiorari. and all other proper relief."

We are met at the threshold with the isSummons was issued in said cause for the

sue as to whether or not certiorari will lie

to correct the ruling of the circuit court in defendant therein, the petitioner here, and on the 16th day of January, 1922, was served refusing to quash the service had in that on R. B. Hackney, the agent for service

case upon Brown & Hackney, Incorporated designated by said Brown & Hackney, In

(hereafter called petitioner). The petitioner

contends that the circuit court was without corporated, in the state of Arkansas. At the March, 1922, term of said court the de- jurisdiction of the person of the petitioner, fendant appeared specially for the purpose of of action upon which the judgment of the

and also had no jurisdiction of the cause questioning the jurisdiction of the court, and

circuit court was rendered. for that purpose filed its motion to quash the service, as follows:

An examination of the allegations of the

complaint filed by Stephenson (hereafter "Comes the defendant, Brown & Hackney, called respondent) against the petitioner in Incorporated, and, not entering its appearance, the circuit court will discover that the combut for the purpose of quashing the service in

cause of action which is this case alone, says: That plaintiff is a citi transitory in character. The circuit court

plaint states a zen and resident of the state of Louisiana; that defendant is a corporation organized under of Chicot county, therefore, had jurisdiction the laws of the state of Tennessee, and domi- of the subject matter of the action, and the ciled in Memphis, Tenn.; that the plaintiff only issue here is whether or not it had claims that the alleged contract, upon which jurisdiction of the petitioner. The circuit this action was founded, was entered into in court did not exceed its jurisdiction in dethe state of Louisiana; that the defendant termining the issue as to whether or not is not incorporated in the state of Arkansas service of summons could be had upon the but is doing business in the state of Arkansas as a foreign corporation only; that the de-action stated in the complaint. It was pe

petitioner in Arkansas upon the cause of action as this in the courts of the state of culiarly within the jurisdiction of the circuit Arkansas ; that to require it to answer to sub-court to determine whether service could enit to a trial and a personal judgment in such be had upon the petition in this state, and

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