of the deceased, George Brian, with intent to perpetrate the crime of burglary, robbery, or larceny, and while engaged in the perpetration of, or the attempt to perpetrate, either of said crimes, he struck and killed the deceased as charged in the indictment, it will be your duty to find him guilty of murder in the first degree." It also amended his requested instructions, numbered 3 and 6, striking out certain parts thereof.

R. K. Mason and A. N. Meek, both of Camden, for appellant. Wm. L. Moose, Atty. Gen., and Jno. P. Streepey, Asst. Atty. Gen., for the State.

KIRBY, J. (after stating the facts as above). [1] It is contended that the court erred in giving said instruction numbered 2, and this contention must be sustained. The indictment did not charge the offense to have been committed in the perpetration of, or attempt to perpetrate, the crime of robbery, and the jury should not have been told to find the appellant guilty of murder in the first degree, if they found deceased was killed in the perpetration of the robbery. There are two classes of murder in the first degree, separate and distinct, in one of which it is necessary only to allege that the killing was done in the perpetration of, or attempt to perpetrate, one of the felonies named in the statute, while in the other it is essential that the usual technical words, showing the killing was done after premeditation and deliberation, be employed. Cannon v. State, 60 Ark. 564, 31 S. W. 150, 32 S. W. 128; Rayburn v. State, 69 Ark. 184, 63 S. W. 356; Powell v. State, 74 Ark. 355, 85 S. W.

781.

the clause out of the other instruction, relating to the credibility of witnesses which has been held to be erroneous when specifically objected to.

[3] It is next contended that the court erred in refusing to allow the 10 other witnesses produced to testify in support of the alibi. Their testimony would have been cumulative, and it is not disclosed that any of said witnesses had any special or peculiar knowledge that would have tended more strongly to convince the jury of the truth of their statements of the whereabouts of appellant than that already given by the numerous witnesses who had testified, nor that any of them were of such standing that their statements would have carried more weight than that of the others, and the court did not err in refusing to permit them to testify. It is within the sound, judicial discretion of the trial court to limit the number of witnesses permitted to testify about a particular fact, and to decide where and when the introduction of cumulative testimony shall stop; and, while in capital cases this discretion should be cautiously exercised, it will not be controlled unless it appears to have been manifestly abused. State, 64 Ark. 121, 40 S. W. 578; Jack Bayou Drainage District v. Railway, 171 S. W. 867; State v. Lamb, 141 Mo. 298, 42 S. W. 827; Note 8 Ann. Cas. 828.

Hall v.

It is unnecessary to discuss the other matters complained of, which will not likely occur upon a new trial.

For the error in giving said instruction, the judgment is reversed, and the cause remanded for a new trial.

The accomplice upon whose testimony chiefly the conviction was had did not see the offense committed, if his statement be true, and was surprised that killing had been resorted to by appellant, whom he had expected only to scare and intimidate the old man into giving up his money.

The case is not like that of Powell v. State, supra, where the court held there was ample evidence outside of that tending to show an offense committed in the perpetration of one of the statutory felonies, and it was there also held that the remarks of the prosecuting attorney, objected to and not required withdrawn by the court, did not amount to the giving of an instruction by the court of the kind complained of herein.

[2] It is next contended that the court erred in striking out a portion of one of the instructions relating to the accomplice's testimony, but the instruction as given contained the language of the statute relative thereto, and was sufficiently full to cover the point. Neither was there error in striking

I. W. HAYNIE & CO. (No. 85.) (Supreme Court of Arkansas. July 5, 1915.) 1. CARRIERS 218-LIVE STOCK-NOTICE OF

CLAIM-TIME FOR BRINGING SUIT.

Where a carrier had established two rates for interstate stock shipments, one under an unrier, and the other, a lower rate, limiting liarestricted contract as to the liability of the carbility in certain respects, but both containing the same stipulations as to whom notice of claim of damages should be given, and requiring suit therefor to be brought within six months, and the shipper accepted without inquiry the lower rate, although either was open to him, the stipulations as to notice and time of bringshipper was not given, or expressly offered, the ing suit were not rendered void because the right to ship under an unrestricted contract.

[Ed. Note. For other cases, see Carriers, Cent. Dig. $$ 674-696, 927, 928, 933-949; Dec. Dig. 218.]

2. CARRIERS 218-LIVE STOCK-NOTICE OF CLAIM OF DAMAGE - TIME FOR BRINGING SUIT.

Where a carrier had established two rates for interstate stock shipments, one under an unrestricted contract as to the liability of the carrier, and the other, a lower rate, limiting liability in certain respects, but both containing the same stipulations as to notice of claim of

contract and in enforcing their rights thereunder. St. Louis & S. F. R. Co. v. Keller, 90 Ark. 308, 119 S. W. 254; M. & N. A. R.

Co. v. Ward, 111 Ark. 102, 163 S. W. 164. In that respect those stipulations are unlike one which contains a contract for a reduction of the amount to be recovered, or the degree of care, or one, in fact, which affects in any other particular the liability of the carrier; but, as we said in the Keller Case, supra, the validity of such regulations as this depends upon their reasonableness, and not upon the question whether or not there is a consideration therefor, inasmuch as the stipulations are founded upon the considerations of the contract of shipment.

Counsel for plaintiff rely upon the decision of this court in the case of St. Louis & S. F.

R. Co. v. Wells, 81 Ark. 469, 99 S. W. 534, where we said that, the special contract being found to be invalid on account of having been forced upon the shipper without giving him an opportunity to ship under an unrestricted contract, "all question as to limitation as to value of the property and the time for bringing the action passed out of the case." In that case, however, the railroad company sought to defend under a contract which was void because it had been, in fact, forced upon the shipper, and no opportunity was given the shipper to take advantage of an unrestricted contract with respect to the liability of the carrier. It was shown that that particular writing was not enforceable for the reason that the shipper had been compelled to take

it and surrender his substantial common law rights against the carrier. Therefore it was proper to say that, as the contract was found to be void on that account, all those provisions passed out of the case.

Such is not the present case, however, for it appears that the carrier had two rates, either of which the shipper might have taken advantage of; and since he accepted, without further inquiry, the contract for restricted liability, he is bound by it.

The judgment is therefore reversed, and

the cause dismissed.

KANSAS CITY SOUTHERN RY. CO. v. BULL. (No. 95.)

(Supreme Court of Arkansas. July 5, 1915.)

1. TRIAL 139-DIRECTING VERDICT.

In an action against a railroad company for an overcharge in freight on a shipment of live stock, it was error to direct a verdict against the company for the alleged overcharge, where there was evidence tending to prove the correctness of the amount charged.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 332, 333, 338-341, 365; Dec. Dig. 139.]

2. CARRIERS 160-BILL OF LADING-LIMITATION OF TIME TO SUE-VALIDITY.

ment shall be brought within six months, is valid and binding upon the parties.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 231, 673; Dec. Dig. 160.] 3. CARRIERS 218-HOLDING SHIPMENT FOR CHARGES STIPULATION IN BILL OF LADING LIMITING TIME OF ACTIONS-EFFECT.

Where live stock was damaged while being held by a railroad company at destination to compel payment of freight charges, the company had the right to insist that suit for such damages be brought within six months in accordance with a stipulation to that effect in the bill of lading, since it held the stock, whether rightfully or wrongfully, as a carrier and was answerable only in accordance with such stipulation.

[Ed. Note. For other cases, see Carriers, Cent. Dig. $$ 674-696, 927, 928, 933-949; Dec. Dig. 218.]

4. PLEADING 261 - AMENDMENT-DISCRETION OF COURT.

damages to live stock shipped under a bill of In a suit against a railroad company for lading, providing that suits upon claims arising from the shipment should be brought within six months, it was not error to allow defendant to set up such defense by amendment after the case was called for trial, the court having a large discretion in permitting amendments, and no abuse of such discretion prejudicial to the substantial rights of the parties being shown. Cent. Dig. §§ 794-800; Dec. Dig. 261.] [Ed. Note.-For other cases, see Pleading,

5. PLEADING 261-DEFENSE RAISED FIRST TIME-AMENDMENT OF ANSWER-WAIVER.

The fact that a defense was not set up in the original answer is no waiver of the right to insist upon it by subsequent amendment to the answer.

Cent. Dig. §8 794-800; Dec. Dig. 261.] [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 794-800; Dec. Dig. 261.]

Smith, J., dissenting.

Appeal from Circuit Court, Sevier County;

Jeff. T. Cowling, Judge.

Action by Charles Bull against the Kansas City Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Charles Bull brought this suit against the railway company to recover damages for an alleged overcharge upon a shipment of freight from Cimarron, Kan., to De Queen, Ark., and for damages alleged to have been caused to his live stock kept by the company in muddy stock pens at the point of destination, pending the adjustment of the freight charge.

The complaint alleged that the plaintiff paid $88, the full freight charged for the shipment, and that upon arrival at De Queen the carrier wrongfully demanded $107.88, which he was finally compelled to pay in order to obtain possession of the shipment. It alleged further that the railroad company unloaded the cattle in muddy and uncovered stock pens and kept them therein three days, refusing to deliver them, and because of the exposure they contracted colds, which resulted in coughs and pneumonia and six of them finally died, to his damage in the sum of $1,000; that the horses were likewise

the allegations of the complaint, alleged that the rate charged was its published tariff rate on file with the Interstate Commerce Commission, and further pleaded that plaintiff was not entitled to recover, not having brought suit within six months, as provided in the bill of lading, the twelfth paragraph of which was specially pleaded, and provides:

"It is further agreed that no suit or action against the company for the recovery of any damages accruing or arising out of said shipment or of any contract pertaining to the same, or the furnishing of facilities for such shipment, shall be sustained in any court of law or equity unless such suit or action shall be commenced within six months next after the loss or damage shall have occurred. The failure to institute suit within said time shall be deemed conclusive evidence against the validity of such claim or cause of action, and shall be a complete bar

to such suit."

It appears from the testimony that plaintiff shipped in April, 1912, a car of emigrant movables from Cimarron, Kan., to De Queen, Ark., the car being loaded on April 2d, and advised the agent of the initial carrier, the Atchison, Topeka & Santa Fé Railway Company, of the number of head of stock, and that he wished to prepay the freight. The agent accepted the $88 "to be applied thereon," and put the calves on the bill to be paid for upon arrival at De Queen. The car arrived at De Queen the early morning of April 6th, and appellant refused to deliver the shipment until $107.88 additional freight charges had been paid. This was paid by appellee on the 10th, under protest, and the shipment received. The additional charge was made upon a claim for excess weight and for the three calves. The horses upon arrival were taken to a stable, and the cattle were unloaded and put in the cattle pens near the depot. It was raining most of the time, and the pens were uncovered and muddy, being from 3 to 15 inches deep in mud, according to the various witnesses. They took cold, and six of them finally died from the exposure in the following June and July.

Appellee contended that the car load shipment weighed 19,525 pounds, that he weighed all of the animals and other stuff upon unloading same, and that that was the correct weight. He also said, however, that the car was weighed at Dodd City, Kan., and he supposed at the time that it weighed the amount contended for by the railway company 23,700 pounds; that he was present when it was weighed there, and heard the agent say that it weighed that amount, and objected to it, "claiming it was too much, and the railroad man then weighed it again and reported the second weight to be the same as the first." The bill of lading shows on its face that the car contained three calves over the limit, and also that the $88 paid was "to be applied on the freight there," and the twelfth clause as set out in the answer and plaintiff's receipt shows the weight to be 23,700 pounds. Plain

The tariff sheets introduced in evidence show the correct rate on the car of goods limited to 20,000 pounds to be 44 cents per hundredweight, which applied where the liability was limited, as in this case. It also shows the amount of excess above the 20,000 pounds limit was to be charged for as contended by the railroad, and that the weight of the three animals not charged were to be estimated 500 pounds each, and upon which the rate was $1.92. The rate was shown to be 44 cents upon a car of 20,000 pounds minimum and upon the calves or yearlings, $1.92. The railway company refused to deliver the shipment except upon the payment for the yearlings at the proper rate and of the excess over the minimum of 20,000 pounds as shown by the waybill, 2,700 pounds after deducting 1,000 pounds for the weight of the

calves.

There was much testimony introduced relative to the condition of the stock pens and the cattle and their becoming sick and dying thereafter, the railway company objecting to the valuation of the cattle being shown to be more than the amount agreed upon in the bill of lading in case of loss, the bill

of lading itself being in evidence.

the undisputed evidence plaintiff was entitled The court instructed the jury that under to recover $11.88 overcharge of freight, and that there was no proof, excluding the three head of calves paid for at the proper rate, that the balance of the shipment was of more

than 20,000 pounds weight. It declined appellant's request to direct a verdict for it on the first and second counts of the complaint, and refused all its other instructions. From the judgment against it, the railway company brings this appeal.

Read & McDonough, of Fort Smith, for ap pellant. Steel, Lake & Head, of Texarkana, for appellee.

KIRBY, J. (after stating the facts as above). [1] It is contended that the court erred in directing a verdict against appellant for the alleged $11.88 overcharge and in refusing to direct a verdict in its favor on the second count of the complaint, claiming damages to the cattle, during the time of the refusal to deliver them because of appellee's failure to pay the freight charges demanded. There was testimony tending to show that the weight of. the shipment was more than the 20,000 pounds minimum upon which the freight was charged. The waybill shows weight 23,700 and plaintiff stated he was present when the car was weighed, about 20 miles from the starting point, and that the railroad agent announced the weight as 23,700 as shown by the waybill; that he immediately objected, saying it was too much, and thereupon the agent again weighed it and announced that the weight was correct; that he himself did not notice whether it weighed