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of the deceased, George Brian, with intent to the clause out of the other instruction, reperpetrate the crime of burglary, robbery, or lating to the credibility of witnesses which larceny, and while engaged in the perpetration of, or the attempt to perpetrate, either of said has been held to be erroneous when specifcrimes, he struck and killed the deceased as ically objected to. charged in the indictment, it will be your duty [3] It is next contended that the court to find him guilty of murder in the first degree." erred in refusing to allow the 10 other wit

It also amended his requested instructions, nesses produced to testify in support of the numbered 3 and 6, striking out certain parts alibi. Their testimony would have been cuthereof.

mulative, and it is not disclosed that any of R. K. Mason and A. N. Meek, both of Cam- said witnesses had any special or peculiar den, for appellant. Wm. L. Moose, Atty. knowledge that would have tended more Gen., and Jno. P. Streepey, Asst. Atty. Gen., strongly to convince the jury of the truth for the State.

of their statements of the whereabouts of

appellant than that already given by the KIRBY, J. (after stating the facts as numerous witnesses who had testified, nor above). [1] It is contended that the court that any of them were of such standing that erred in giving said instruction numbered 2. their statements would have carried more and this contention must be sustained. The weight than that of the others, and the indictment did not charge the offense to court did not err in refusing to permit them have been committed in the perpetration of, or to testify. It is within the sound, judicial attempt to perpetrate, the crime of robbery, discretion of the trial court to limit the numand the jury should not have been told to ber of witnesses permitted to testify about find the appellant guilty of murder in the a particular fact, and to decide where and first degree, if they found deceased was kill- | when the introduction of cumulative testimoed in the perpetration of the robbery. There ny shall stop; and, while in capital cases are two classes of murder in the first de- this discretion should be cautiously exercisgree, separate and distinct, in one of which ed, it will not be controlled unless it appears

Hall v. it is necessary only to allege that the kill- to have been manifestly abused. ing was done in the perpetration of, or at- State, 64 Ark. 121, 40 S. W. 578; Jack Bayou tempt to perpetrate, one of the felonies nam- Drainage District v. Railway, 171 S. W. 867; ed in the statute, while in the other it is es- State v. Lamb, 141 Mo. 298, 42 S. W. 827; sential that the usual technical words, show- Note 8 Ann. Cas. 828. ing the killing was done after premeditation

It is unnecessary to discuss the other and deliberation, be employed. Cannon v.

matters complained of, which will not likely State, 60 Ark. 564, 31 S. W. 150, 32 S. w. occur upon a new trial. 128; Rayburn v. State, 69 Ark. 184, 63 S. W.

For the error in giving said instruction, the 356; Powell v. State, 74 Ark. 355, 85 S. w. judgment is reversed, and the cause remand781.

ed for a new trial. An instruction of like kind was held to be reversible error in Rayburn v. State, supra, where the offense was charged by the usual ST. LOUIS SOUTHWESTERN RY. CO. V. common-law indictment.

I. W. HAYNIE & CO. (No. 85.) The accomplice upon whose testimony (Supreme Court of Arkansas. July 5, 1915.) chiefly the conviction was had did not see the i. CARRIERS C218-LIVE STOCK-NOTICE OF offense committed, if his statement be true, CLAIM-TIME FOR BRINGING SUIT. and was surprised that killing had been re Where a carrier had established two rates sorted to to by appellant, whom he had

for interstate stock shipments, one under an un

restricted contract as to the liability of the carexpected only to scare and intimidate the rier, and the other, a lower rate, limiting liaold man into giving up his money.

bility in certain respects, but both containing The case is not like that of Powell v. State, the same stipulations as to whom notice of supra, where the court held there was ample suit therefor to be brought within six months,

claim of damages should be given, and requiring evidence outside of that tending to show an and the shipper accepted without inquiry the offense committed in the perpetration of one lower rate, although either was open to him, of the statutory felonies, and it was there the stipulations as to notice and time of bringalso held that the remarks of the prosecut- shipper was not given, or expressly offered, the

ing suit were not rendered void because the ing attorney, objected to and not required right to ship under an unrestricted contract. withdrawn by the court, did not amount to Ed. Note. For other cases, see Carriers, the giving of an instruction by the court of Cent. Dig. SS 674-696, 927, 928, 933-949; Dec.

Dig. Om 218.] the kind complained of herein. [2] It is next contended that the court 2. CARRIERS Cw218-LIVE STOCK-NOTICE OF

CLAIM OF DAMAGE TIME FOR BRINGING erred in striking out a portion of one of the

SUIT. instructions relating to the accomplice's tes Where a carrier had established two rates timony, but the instruction as given contain- for interstate stock shipments, one under an uned the language of the statute relative there restricted contract as to the liability of the car

rier, and the other, a lower rate, limiting liato, and was sufficiently full to cover the bility in certain respects, but both containing point. Neither was there error in striking the same stipulations as to notice of claim of

Ark.)

ST. LOUIS SOUTHWESTERN RY. CO. v. I. W. HAYNIE & CO.

171

damages and time for bringing suit, such stipu- In the same case the Supreme Court of lations were not invalid as not being based upon the United States said: a consideration additional to that supporting the contract of shipment, since they did not con- courage promptness in the bringing of actions,

"The policy of statutes of limitation is to enstitute restrictions upon the carrier's liability, that the parties shall not suffer by loss of evibut were merely reasonable regulations for the dence from death or disappearance of witnesses, performance of the contract. [Ed. Note.-For other cases,

destruction of documents, or failure of memory.

see Carriers, But there is nothing in the policy or object of Cent. Dig. $$_674–696, 927, 928, 933-949; Dec. such statutes which forbids the parties to an Dig. Om 218.]

agreement to provide a shorter period, provid

ed the time is not unreasonably short. That is Appeal from Circuit Court, Ouachita

a question of law for the determination of the County; Chas. W. Smith, Judge.

court." Action by I. W. Haynie & Co. against the [1] It is not contended that either of the St. Louis Southwestern Railway Company. stipulations mentioned above are unreasonJudgment for plaintiff, and defendant ap- able, but the correctness of the court's ruling peals. Reversed and dismissed.

in rendering judgment against the carrier is

defended on the ground that the plaintiff was Edw. A. Haid, of St. Louis, Mo., and Gaughan & Sifford, of Camden, for appellant. not given the right to ship his live stock J. W. Warren, of Camden, for appellee.

under an unrestricted contract. One of the

plaintiffs testified that he accepted the conMCCULLOCH, C. J.

tract that was offered to him by the railroad

This is an action against a common carrier to recover dam- is that there were two rates established by

agent. The undisputed evidence in the case ages on certain shipments of cattle from the carrier-one (the higher rate) under an Camden, Ark., to East St. Louis, Ill. There unrestricted contract as to the liability of the were three separate shipments, and a small amount of damage is claimed on account of carrier; and the other (the lower) limiting each. The total sum claimed by the plaintiff tract under each of the rates, however, con

the liability in certain respects. The conwas $96.12, and on trial of the case the jury tains the same stipulation with reference to assessed damages in the sum of $60 in favor of the plaintiff. The damage to the cattle giving notice and the time within which an

action may be brought. arose principally from delay in the first shipment, which is shown to have resulted in a carrier to offer the plaintiff the unrestricted

So far as the failure of the agent of the loss by reason of depreciation in the market and shrinkage in weight of the cattle. There contract under the higher rate is concerned, and shrinkage in weight of the cattle. There it is sufficient to say that the rate had been is evidence sufficient to sustain the recovery established by the carrier, and it was the for the amount awarded by the jury.

Each of the bills of lading contained a duty of the plaintiff to take notice of it and stipulation to the effect that, as a condition to ask for the unrestricted contract if he de

In order to precedent to the collection of any damage sired to take advantage of it. for loss and injury covered by the contract, bind the plaintiff to the contract which he the shipper should "give notice in writing accepted, it was not necessary for the agent of the claim therefor to some general officer to call his attention to the other rate and to or to the nearest station agent of the car expressly offer it to him.

In St. Louis & S. F. R. Co. v. Pearce, 82 rier, or to the agent at destination, or to some general officer of the delivering line," Ark. 353, 101 S. W. 760, 118 Am. St. Rep. 75, and that no action against the carrier for 12 Ann. Cas. 125, we said: the recovery of damages arising under the testify that they signed the contract without

"It was improper to permit the plaintiffs to contract should be sustainable "unless such reading it, and that the agent did not inform action or suit be commenced within six them that there was another rate under a conmonths next after the cause of action shall tract of unrestricted liability. The agent was occur.” It is undisputed that neither of not bound to so inform them unless requested to

is undisputed that neither of do so, as information was obtainable from other these stipulations were complied with, and sources provided by law; and unless the agent the only question presented on this appeal refused, upon demand, to accept the shipment is whether or not the stipulations are valid at another rate under a contract for unrestrictand binding upon the parties. The ship- contract to'be void, as this court has held that

ed liability, there is no reason for holding the ments constituted interstate commerce, and the contract is valid and binding where it is the contract with reference thereto must be not forced upon the shipper." tested in the light of the federal laws on the [2] Nor does the fact that the special stipusubject.

lations mentioned above were embraced in "The validity of any stipulation in such a both contracts in other words, the fact that contract which involves the construction of the the stipulations were not based on some adstatute," said the Supreme Court of the United States in M., K. & T. Ry. v. Harriman, 227 U. ditional consideration, such as a lower rate S. 657, 33 Sup. Ct, 397, 57 L. Ed. 690, "and affect the validity of the same. Those stiputhe validity of a limitation upon the liability lations do not constitute restrictions upon the thereby imposed is a federal question to be de- liability of the carrier, but are established termined under the general common law, and, as such, is withdrawn from the field of state merely as reasonable regulations for the law or legislation."

government of the parties in performing the contract and in enforcing their rights there- ment shall be brought within six months, is under. St. Louis & S. F. R. Co. v. Keller, valid and binding upon the parties. 90 Ark. 308, 119 S. W. 254; M. & N. A. R.

[Ed. Note.-For other cases, see Carriers, Co. v. Ward, 111 Ark. 102, 163 S. W. 164. Cent. Dig. $S 231, 673; Dec. Dig. em 160.) In that respect those stipulations are unlike 3. CARRIERS @ww218–HOLDING SHIPMENT FOR

CHARGES-STIPULATION IN BILL OF LADING one which contains a contract for a reduc

LIMITING TIME OF ACTIONS-EFFECT. tion of the amount to be recovered, or the Where live stock was damaged while being degree of care, or one, in fact, which affects held by a railroad company at destination to in any other particular the liability of the compel payment of freight charges, the company

had the right to insist that suit for such damages carrier; but, as we said in the Keller Case, be brought within six months in accordance with supra, the validity of such regulations as a stipulation to that effect in the bill of lading, this depends upon their reasonableness, and since it held the stock, whether rightfully or not upon the question whether or not there wrongfully, as a carrier and was answerable is a consideration therefor, inasmuch as the only in accordance with such stipulation.

[Ed. Note. For other cases, see Carriers, stipulations are founded upon the consider-Cent. Dig. SS 674-696, 927, 928, 933–949; Dec. ations of the contract of shipment.

Dig. Onn 218.] Counsel for plaintiff rely upon the decision 4. PLEADING Om 261 – AMENDMENT - DISCREof this court in the case of St. Louis & S. F. TION OF COURT. R. Co. v. Wells, 81 Ark. 469, 99 S. W. 534, damages to live stock shipped under a bill of

In a suit against a railroad company for where we said that, the special contract be- lading, providing that suits upon claims arising ing found to be invalid on account of having from the shipment should be brought within six been forced upon the shipper without giving months, it was not error to allow defendant to him an opportunity to ship under an unre- set up such defense by amendment after the case

was called for trial, the court having a large stricted contract, "all question as to limita- discretion in permitting amendments, and no tion as to value of the property and the time abuse of such discretion prejudicial to the subfor bringing the action passed out of the case.” stantial rights of the parties being shown. In that case, however, the railroad company Cent. Dig. SS 794-800; Dec. Dig. Em 261.]

[Ed. Note.-For other cases, see Pleading, sought to defend under a contract which was void because it had been, in fact, forced upon 5. PLEADING Cm261_DEFENSE RAISED FIRST

TIME-AMENDMENT OF ANSWER—WAIVER. the shipper, and no opportunity was given the

The fact that a defense was not set up in shipper to take advantage of an unrestricted the original answer is no waiver of the right to contract with respect to the liability of the insist upon it by subsequent amendment to the carrier. It was shown that that particular answer. writing was not enforceable for the reason Cent. Dig. $8 794-800; Dec. Dig. Cw261.]

[Ed. Note.-For other cases, see Pleading, that the shipper had been compelled to take it and surrender his substantial common law

Smith, J., dissenting. rights against the carrier. Therefore it was

Appeal from Circuit Court, Sevier County; proper to say that, as the contract was found Jeff. T. Cowling, Judge. to be void on that account, all those provi

Action by Charles Bull against the Kansions passed out of the case.

sas City Southern Railway Company. From Such is not the present case, however, for a judgment for plaintiff, defendant appeals. it appears that the carrier had two rates, Reversed and remanded. either of which the shipper might have taken advantage of; and since he accepted, without

Charles Bull brought this suit against the further inquiry, the contract for restricted railway company to recover damages for an liability, he is bound by it.

alleged overcharge upon a shipment of freight The judgment is therefore reversed, and from Cimarron, Kan., to De Queen, Ark., and the cause dismissed.

for damages alleged to have been caused to his live stock kept by the company in muddy stock pens at the point of destination, pend

ing the adjustment of the freight charge. KANSAS CITY SOUTHERN RY. CO. v.

The complaint alleged that the plaintiff BULL. (No. 95.)

paid $88, the full freight charged for the

shipment, and that upon arrival at De Queen (Supreme Court of Arkansas. July 5, 1915.)

July 5, 1915.) the carrier wrongfully demanded $107.88, 1. TRIAL 139_DIRECTING VERDICT.

which he was finally compelled to pay in orIn an action against a railroad company for der to obtain possession of the shipment. It an overcharge in freight on a shipment of live stock, it was error to direct a verdict against the alleged further that the railroad company company for the alleged overcharge, where there unloaded the cattle in muddy and uncovered was evidence tending to prove the correctness of stock pens and kept them therein three days, the amount charged.

refusing to deliver them, and because of the [Ed. Note.-For other cases, see Trial, Cent. exposure they contracted colds, which reDig. $8 332, 333, 338-341, 365; Dec. Dig. Ens sulted in coughs and pneumonia and six of 139.]

them finally died, to his damage in the sum 2. CARRIERS Om 160-BILL OF LADING-LIMITATION OF TIME TO SUE_VALIDITY.

of $1,000; that the horses were likewise A stipulation in a bill of lading, providing wrongfully kept in said stock pens and damthat suits upon claims arising from the ship- aged in the sum of $200. The answer denied Ark.)

KANSAS CITY SOUTHERN RY CO. v. BULL

173

the allegations of the complaint, alleged that The tariff sheets introduced in evidence the rate charged was its published tariff rate show the correct rate on the car of goods on file with the Interstate Commerce Com- limited to 20,000 pounds to be 44 cents per mission, and further pleaded that plaintiff hundredweight, which applied where the liawas not entitled to recover, not having bility was limited, as in this case. It also brought suit within six months, as provided shows the amount of excess above the 20,000 in the bill of lading, the twelfth paragraph pounds limit was to be charged for as conof which was specially pleaded, and pro- tended by the railroad, and that the weight vides:

of the three animals not charged were to be "It is further agreed that no suit or action estimated 500 pounds each, and upon which against the company for the recovery of any the rate was $1.92. The rate was shown to damages accruing or arising out of said shipment or of any contract pertaining to the same, or the be 44 cents upon a car of 20,000 pounds minifurnishing of facilities for such shipment, shall mum and upon the calves or yearlings, $1.92. be sustained in any court of law or equity un- The railway company refused to deliver the less such suit or action shall be commenced with; shipment except upon the payment for the in six months next after the loss or damage shall have occurred. The failure to institute suit yearlings at the proper rate and of the exwithin said time shall be deemed conclusive evi-cess over the minimum of 20,000 pounds as dence against the validity of such claim or shown by the waybill, 2,700 pounds after decause of action, and shall be a complete bar ducting 1,000 pounds for the weight of the to such suit."

calves. It appears from the testimony that plaintiff shipped in April, 1912, a car of emigrant tive to the condition of the stock pens and

There was much testimony introduced relamovables from Cimarron, Kan., to De Queen, the cattle and their becoming sick and dyArk., the car being loaded on April 2d, and

ing thereafter, the railway company objectadvised the agent of the initial carrier, the ing to the valuation of the cattle being shown Atchison, Topeka & Santa Fé Railway Com- to be more than the amount agreed upon pany, of the number of head of stock, and in the bill of lading in case of loss, the bill that he wished to prepay the freight. The of lading itself being in evidence. agent accepted the $88 “to be applied thereon," and put the calves on the bill to be paid the undisputed evidence plaintiff was entitled

The court instructed the jury that under for upon arrival at De Queen. The car ar to recover $11.88 overcharge of freight, and rived at De Queen the early morning of April that there was no proof, excluding the three 6th, and appellant refused to deliver the ship- head of calves paid for at the proper rate, ment until $107.88 additional freight charges had been paid. This was paid by appellee that the balance of the shipment was of more

than 20,000 pounds weight. It declined apon the 10th, under protest, and the shipment received. The additional charge was made pellant's request to direct a verdict for it upon a claim for excess weight and for the on the first and second counts of the comthree calves. The horses upon arrival were plaint, and refused all its other instructions.

From the judgment against it, the railway taken to a stable, and the cattle were unloaded and put in the cattle pens near the company brings this appeal. depot. It was raining most of the time, and Read & McDonough, of Fort Smith, for apthe pens were uncovered and muddy, being pellant. Steel, Lake & Head, of Texarkana, from 3 to 15 inches deep in mud, according to for appellee. the various witnesses. They took cold, and six of them finally died from the exposure in KIRBY, J. (after stating the facts as the following June and July.

above). [1] It is contended that the court Appellee contended that the car load ship-erred in directing a verdict against appelment weighed 19,525 pounds, that he weighed lant for the alleged $11.88 overcharge and all of the animals and other stuff upon un- in refusing to direct a verdict in its favor on loading same, and that that was the correct the second count of the complaint, claiming weight. He also said, however, that the car damages to the cattle, during the time of was weighed at Dodd City, Kan., and he sup- the refusal to deliver them because of appelposed at the time that it weighed the amount lee's failure to pay the freight charges decontended for by the railway company 23,700 manded. There was testimony tending to pounds; that he was present when it was show that the weight of. the shipment was weighed there, and heard the agent say that more than the 20,000 pounds minimum upon it weighed that amount, and objected to it, which the freight was charged. The waybill "claiming it was too much, and the railroad shows weight 23,700 and plaintiff stated he man then weighed it again and reported the was present when the car was weighed, about second weight to be the same as the first." 20 miles from the starting point, and that the The bill of lading shows on its face that the railroad agent announced the weight as 23,700 car contained three calves over the limit, and as shown by the waybill; that he immediatealso that the $88 paid was "to be applied only objected, saying it was too much, and the freight there," and the twelfth clause as thereupon the agent again weighed it and set out in the answer and plaintiff's receipt announced that the weight was correct; that shows the weight to be 23,700 pounds. Plain- he himself did not notice whether it weighed that of another witness that the shipment, the suit was brought long after the six weighed piecemeal, upon being unloaded, less months allowed therefor, and the court erred than 20,000 pounds was undisputed. It can- in not directing a verdict for appellant on not be said, however, that the evidence was this cause of action. It can make no differundisputed as to the correct weight of the ence that this defense was not alleged in the shipment, and plaintiff's statement of the answer filed and was put in by amendment weight as announced by the weigher of the after the case was called for trial. It was car at the time it was weighed, as well as set up by permission of the court, which has the statement of the waybill, was evidence large discretion in permitting amendments, tending to prove the correctness of it, and the and no abuse of discretion is shown herein court erred in directing the verdict. Wil- prejudicial to the substantial rights of the liams v. St. L. & S. F. Rd, Co., 103 Ark. 401, complaining party. St. L., I. M. & S. R. Co. 147 S. W. 93; Hill v. St. L, I. M. & S. R. Co., v. Holmes, 88 Ark. 181, 114 S. W. 221; sec178 S. W. 369.

tions 6145-6148, Kirby's Digest; Kempner v. [2] 2. The court erred also in not directing Dooley, 60 Ark. 531, 31 S. W. 145. The fact a verdict for the railway company on the that it was not set up in the first answer second cause of action, suit not having been could not constitute a waiver of the right to brought therefor within the time stipulated insist upon it, and, having been properly in the bill of lading for the bringing of suit pleaded and established by the undisputed for damages. It was alleged in the complaint testimony, it was conclusive of the rights of that the railway company arbitrarily and the parties. without right refused to deliver possession

For the errors indicated, the judgment is of the shipment upon its arrival at De Queen, reversed, and the cause remanded for a new and damages were caused from its retention trial. and lack of care of the cattle, pending the payment of the additional freight demanded.

SMITH, J., dissents. The shipment was delivered on the 10th day of April, and the suit was not commenced until the 18th day of July, 1913, more than a

ERNEST v. STATE. (No. 128.) year after the cause of action accrued. The (Supreme Court of Arkansas. Sept. 27, 1915.) ) amendment to the answer filed on the 27th CRIMINAL LAW 511 - CORROBORATION OF day of January, 1915, alleged that the suit ACCOMPLICE-SUFFICIENCY. was not brought within six months after the the burglary was seen to pass a railroad sta

Testimony that defendant on the night of damage occurred, and also said express stipu- tion twice, that when another was arrested for lation in the bill of lading limiting plaintiff's the crime defendant said he wanted to see him, right to recovery for damages to a suit and after such arrest defendant said some one brought within six months after the accrual was watching his house, and showed some anger

at the insinuation thereby implied that he had thereof. Such a stipulation in a contract of something to do with the cirme, there being nothcarriage has been held reasonable and valid ing further in the record to connect these facts by this court and binding upon the parties with the crime, is not sufficient corroboration of thereto. Hafer v. St. L. S. W. Ry. Co., 101 the testimony of an accomplice, within Kirby's Ark, 310, 142 S. W. 176; Mo. & N. Ark. Ry. dence must tend to connect the defendant with

Dig. $ 2384, requiring that the corroborative eviCo. v. Ward, 111 Ark. 102, 163 S. W. 164. the commission of the offense. See, also, M., K. & T. Ry. v. Harriman, 227 [Ed. Note. For other cases, see Criminal U. S. 657, 33 Sup. Ct. 397, 57 L. Ed. 690.

Law, Cent. Dig. $$ 1128-1137; Dec. Dig. Om

511.) [3] If the railroad company was entitled to charge the amount of freight demanded, it

Appeal from Circuit Court, Calhoun Counhad the right to hold the shipment until it ty; Chas. W. Smith, Judge. was paid, and the damage occurring while

Albert Ernest was convicted of burglary, it was being so held was damages accruing or and appeals. Reversed and remanded. arising out of the shipment covered by the J. S. McKnight, of Hampton, H. S. Powell, contract made, and if it demanded freight it of Camden, and J. R. Wilson, of Warren, for was not entitled to receive, and wrongfully appellant. Wallace Davis, Atty. Gen., and held the shipment to compel the payment Jno. P. Streepey, Asst. Atty. Gen., for the thereof, it was still liable for such refusal State. to deliver as a common carrier (Arkansas Southern Ry. Co. v. German National Bank, McCULLOCH, C. J. The defendant, Al77 Ark. 487, 92 S. W. 522, 113 Am. St. Rep. bert Ernest, was convicted of the crime of 160), and answerable therefor only in ac- burglary, and appeals to this court from the cordance with this stipulation in the con- judgment of conviction. tract of carriage limiting the time in which The charge in the indictment is that he, suits should be brought for damages arising together with one James Oliver, broke and out of the shipment to six months after the entered the storehouse of D. R. Speer, in the damage occurred, or the cause of action ac- town of Tinsman, Calhoun county, Ark., with crued.

intent to commit grand larceny, and did then [4, 5] The ur disputed testimony shows that and there commit the offense of grand lar

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