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One witness testified that in the year 1915 WOOD, J. (after stating the facts Maynard got some hay from Kirby. Another above). [1-3] The court was correct in exwitness testified that Maynard got a black cluding the testimony of Kirby concerning mule from Kirby in 1915, that Kirby lent his alleged transactions with Maynard, and Maynard the mule, and the mule died while the statements alleged to have been made by in Maynard's possession. The testimony Maynard to him concerning his account. But showed that the mule was worth $100.
after excluding this testimony there was tesT. C. Wooten testified that he was admin- timony making it an issue for the jury to istrator of the estate of Maynard; that he determine whether or not the estate of took possession of Maynard's books, and the Maynard was indebted to Kirby, and the books showed a balance of $359.70 due from amount, if any, of such indebtedness. Kirby to Maynard. He exhibited the con- Wooten, who was present when the note tract already referred to between himself, and mortgage were executed by Kirby to Kirby, and Shapard. He had no conversa Maynard, testified that he heard Maynard tion with Kirby before the contract was tell Kirby that he would give him credits drawn up with reference to credits. The cred- later on in the fall in settlement for what its were not mentioned until about a month was owing to him (Kirby) and directing Kirafterwards. Kirby paid witness, on Novem- by to make up a list. This was competent ber 2, 1916, $121.90. Kirby did not owe the testimony, and tended to show that at the full amount of $500; he had not taken up the time the note and mortgage were executed full amount of the $500 when Maynard died, Maynard acknowledged that Kirby had an and the sum of $200 was released. The note unsettled account against him for which Kir
by was entitled to credit. Then the testibears this indorsement:
mony of other witnesses tended to prove that “Balance due on this note under contract be- Kirby, as late as the spring of 1915, had tween W. F. Kirby, T. L. Shapard and Toe furnished Maynard hay and a mule. Wooten, administrator, dated April 24, 1916, $410.55."
Even though Maynard's estate may not
have been indebted to Kirby in the full Kirby testified in rebuttal that he had paid amount of the account claimed by him, the to the administrator the difference between above testimony tended to prove that he the amount of his claim against the estate was indebted to him in some amount. The of Maynard and the amount due by him to peremptory instruction by the court deprive the Maynard estate, but the administratored the appellant of the right to have the had not released the papers.
jury determine whether or not the Maynard The court gave certain instructions, and estate was indebted to him in any sum. As the record recites the following:
to whether or not the estate of Maynard "Thereupon, while the case was being argued was indebted to Kirby, and, if so, the amount to the jury, and at a time when Mr. Daggett, of such indebtedness, were issues, under the of counsel for plaintiff, was making the closing evidence, to be submitted to the jury under argument to the jury, the court requested that such argument be suspended, and thereupon
proper instructions. gave to the jury the following instruction, to
The court therefore erred in its ruling diwit: 'Gentlemen of the jury, under the law and recting the jury to return a verdict in favor the evidence in this case, you will return a of the appellee. On appeal from a directed verdict for the administrator for the value of the property described in the complaint. There- verdict, the evidence must be given its upon W. R. Satterfield, counsel for W. F. Kir- strongest probative value in favor of the by, objected to the giving of such peremptory party against whom the verdict is directed, instruction, which objection was by the court and if there is any evidence tending to esoverruled, to which ruling and action of the court counsel for Kirby duly excepted."
tablish an issue in his favor the court should
allow the issue to go to the jury. Williams The court further instructed the jury, over v. St. Louis & San Francisco Rd. Co., 103 the objection of appellant's counsel, that the Ark. 401, 147 S. W. 93; Barrentine v. Henry defendant's claim “will be disallowed." The Wrape Co., 120 Ark. 206, 179 S. W. 328. court then excluded from the jury all the For the error indicated, the judgment is testimony of W. F. Kirby regarding any reversed, and the cause is remanded for a statements or transactions with the deceas- new trial. ed, H. C. Maynard, regarding the items mentioned in the account of W. F. Kirby, and thereupon instructed the jury, peremptorily, MORRIS et al. v. RAYMOND.
(No. 168.) under the law and the evidence of the case, to return a verdict for the plaintiff for the Supreme Court of Arkansas. Feb. 18, 1918.) possession of the property described in the 1. WILLS C364-PROBATE TIME FOR APcomplaint, and to disallow the claim of the
Kirby's Dig. $ 8029, giving one year to apdefendant, W. F. Kirby.
peal from probate court orders admitting or Moore, Vineyard & Satterfield, of Helena. denying the probate of a will, is unaffected by for appellant. D. S. Plummer and Daggett 1348, requiring heirs, etc., to appeal from the
Acts 1909, p. 956, amending Kirby's Dig. $ & Daggett, all of Marianna, for appellee. probate to circuit court within six months, since
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the prior specific statute is not repealed by the lie from the court of probate to the circuit later general one.
court, and thence to the Supreme Court, from 2. STATUTES 162—IMPLIED REPEAL.
every order admitting a will to record or A general affirmative statute does not re- rejecting it. It further provides that the appeal a prior particular statute upon the same subject unless they are clearly repugnant. peal to the circuit court shall be taken with3. APPEAL AND ERROR 702(1)-ABSTRACT– in one year after rendering the order of SETTING OUT INSTRUCTIONS.
probate, or rejection in the court of probate, Assignments of error regarding the giving and to the Supreme Court within one year of instructions cannot be considered unless all instructions are set out in the abstract, unless after the final decision in the circuit court. the instruction complained of contains incura- This provision governs the time within which ble defects.
appeals may be taken from judgments of 4. APPEAL AND ERROR C 882(12) - INVITED probate courts admitting wills to probate. ERROR-REQUESTED INSTRUCTIONS.
Appellants cannot complain that an instruc- This statute was not repealed by Act 327 of tion on undue influence was unauthorized by the Acts of 1909 (Acts of 1909, p. 956), as the evidence where they sought and obtained contended by counsel for appellants. There an instruction upon that subject. 5. WILLS S 327 — CONTEST — DIRECTED VER- and it is the rule that a general affirmative
is no repugnancy between the two statutes, DICT.
Refusing a directed verdict in a will con- statute does not repeal a prior particular test is not erroneous where there was conceded-statute upon the same subject unless there is ly sufficient testimony to go to the jury regard- an invincible repugnancy between the two. ing testator's mental incapacity.
In Ward v. Wilson, 127 Ark. 266, 191 S. W. Appeal from Circuit Court, Sebastian 917, it was held that a particular statute regCounty; Paul Little, Judge.
ulating appeals from county courts in road Proceedings by John B. Morris and others matters was not repealed by the general statto probate the will of E. C. Brogan, deceased, ute regulating appeals from county courts. contested by Mrs. Mary F. Raymond. The In Nemier v. Bramlett, 103 Ark. 209, 146 probate court's order admitting the will to S. W. 486, it was held that the special statute probate was reversed by the circuit court, as regulating appeals from judgments of the to certain items, and the proponents appeal. county court opening county roads is not reAffirmed.
pealed by the general act of later date reguFred A. Snodgress, of Little Rock, for ap-ments of the county courts. So here the two
lating appeals from final orders and judgpellants. Ira D. Oglesby, of Ft. Smith, for statutes may stand together. The appellee appellee.
complied with the statutes regulating the HART, J. This appeal involves the con- from the probate court to the circuit court
time within which appeals may be taken test of the last will and testament of E. c. from the order admitting the will to record. Brogan, deceased. The probate court admitted the will to probate and Mrs. A. H. Ray-lants that the court erred in giving several
[3, 4] It is insisted by counsel for appelmond, the daughter of said testator, appealed to the circuit court. In the circuit court instructions at the request of appellee. None the jury found in favor of the contestants as of the instructions given except one are set to the two items of the will in which the out by counsel for appellants in his abstract proponents were chiefly interested. From the and brief. It is the settled rule in this judgment rendered, the proponents of the state that assignments of error relating to will have duly prosecuted an appeal to this the giving of instructions cannot be considcourt.
ered on appeal when all of the instructions The appeal from the probate court to the are not set out in the abstract unless the incircuit court was taken more than six months structions complained of are so inherently after the rendition of the judgment admit- defective that they could not be cured by ting the will to probate, but within less than others. Harrelson v. Eureka Springs Elecone year from that date.
tric Co., 121 Ark. 269, 181 S. W. 922, and [1, 2] It is insisted by counsel for appel- Barnett Bros. v. Western Assurance Co., 126 lants that the appeal was taken too late. Ark. 562, 191 S. W. 226. We find none of They rely upon section 1348 of Kirby's Di- the instructions of which counsel for appelgest, the general statute regulating appeals lants complained to be so defective that, even from the probate court to the circuit court, if they are considered incorrect, the defects and the act approved May 31, 1909, amend- might not have been cured by other instrucatory thereof. See Acts 1909, p. 956.
We tions. do not think the general statutes regulating
It is next insisted by counsel for appelthe time in which appeals may be taken / lants that there was not sufficient evidence from judgments of the probate court to the in the record to submit to the jury the quescircuit court are applicable to this case. tion of undue influence exerted upon the tesSection 8028 of Kirby's Digest provides thetator in the execution of the will. Counsel manner of proving wills and contesting their for the appellants are in no attitude to raise probate.
this question on appeal. Instructions on the Section 8029 provides that an appeal shall question of undue influence was given to the
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jury upon the request of the appellants as, the time of his death. Jones died in 1884, well as of the appellee. The objection to the and was survived by his widow and two instructions on undue influence was, as we daughters, whose names were Frances Briggs have just seen, that there was no testimony and Malissa Saunders, who were living with upon which to predicate them. Appellants him on the land at the time of his death. cannot complain of an instruction given at The widow died in 1907, since which time appellee's instance as abstract if they asked the land has been in the possession of the and the court gave an instruction bearing two daughters named above. Lucy Jones upon the same subject. St. L., I. M. & S. brought this suit to recover an undivided Ry. Co. v. Baker, 67 Ark. 531, 55 S. W. 941; one-third interest in the land, and for cause St. L. & S. F. R. Co. v. Vaughan, 88 Ark. 138, of action alleged that she was a child of 113 S. W. 1035; St. L., I. M. & S. Ry, Co. Scott Jones born before the Civil War of a v. Carter, 93 Ark. 589, 126 S. W. 99; and Na- slave marriage, and upon the trial of this tional Fruit Products Co. v. Garrett, 121 issue recovered judgment for the share sued Ark. 570, 181 S. W. 926.
for. It is now conceded that the evidence is It is true counsel for appellants asked for legally sufficient to support the verdict on a peremptory instruction at the conclusion this issue, but it is alleged, as ground for of the testimony, but there was no error in the reversal of the judgment, that prejudithe refusal of the court to grant this. The cial error was committed in the argument of will was contested upon two grounds: First, the case before the jury by counsel for plainthat the testator did not have sufficient men- tiff. tal capacity to make a will; and, second, In defense of the suit it was not only dethat the will was procured to be executed nied that Lucy Jones was the child of Scott by undue influence practiced upon the tes-Jones, but it was alleged that any cause of tator.
action on her part was barred by the statute  It is conceded by counsel for appellants of limitations. It was conceded that the dethat there was sufficient testimony to take fendants had held the possession of the land the case to the jury on the question of the for more than seven years, but it was conmental capacity or incapacity of the testator. tended that, inasmuch as the parties were Hence it cannot be said that the court erred tenants in common, their possession was not in not directing a verdict in favor of appel- adverse. Lucy Jones testified that about lants. We need not consider whether or not three years before beginning this suit she there was sufficient testimony to establish demanded that her interest in the land be the allegations of undue influence; for, as set apart to her, and, when the occupants dewe have already seen, both parties asked for nied that she had any interest, they had a instructions on this question, and appellant
fuss. cannot now complain that there was no tes
The court gave instructions correctly subtimony upon which to predicate such instruc-mitting the issues to the jury, but in his clostions. We find no reversible error in the record, tiff said:
ing argument to the jury counsel for plainand the judgment will be affirmed.
"The defendants' possession of the land was not peaceable possession within the meaning of the instructions, because Lucy Jones went down
there and they had a row about it."
Objection was made to this argument, but
the court refused to admonish the jury that TRIAL - 218 IMPROPER ARGUMENT IN
counsel had not correctly interpreted the inArgument that “defendants' possession was structions on this subject. The argument not peaceable possession within the meaning of was well calculated to produce an erroneous the instructions, because L. J. went down there and they had a row about it," was improper and impression on the jury and to have a highly reversible, where court refused to instruct that prejudicial effect; for its meaning was that a mere quarrel over the title would not prevent the row over the right of possession had the the possession from being peaceable within the effect to break the continuity of the existing meaning of the instructions.
adverse possession and to form a new period Appeal from Circuit Court; Nevada Coun- from which the statute must run before title ty; Geo. R. Haynie, Judge.
could thereafter be acquired by adverse posEjectment by Lucy Jones against Frances session. The refusal of the court to correct Briggs and another. Judgment for plaintiff, counsel in his argument was, under the cirand defendants appeal. Reversed and re-cumstances, tantamount to the giving of an manded.
erroneous instruction on the subject. Davie J. 0. A. Bush, of Prescott, for appellants. / v. Padgett, 117 Ark. 351, 176 S. W. 333. McRae & Tompkins, of Prescott, for appellee. That the argument was improper is appar
ent from a consideration of the cases which SMITH, J. This is a suit in ejectment, discuss the character of possession which and involves the title to a quarter section of may ripen into title. A number of such casland which was owned by one Scott Jones at es are found in our own reports. It is true
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that a number of these cases say this posses- , ment for defendant, and plaintiff appeals. sion must be peaceable, as, for instance, in Reversed and remanded for new trial. Jeffery v. Jeffery, 87 Ark, 496, 113 S. W. 27,
This suit was instituted by the appellant the court said: "Plaintiffs and their ancestors must have injuries received by him while in the em
against the appellee to recover damages for held the open, notorious, peaceable, continuous, and adverse possession of the lands for more ploy of the appellee. than seven years to amount to an investiture The appellant alleged that the appellee was of title."
a Kentucky corporation, doing business in Similar language was used by Judge Bat- Arkansas, its business being that of buying tle in the case of Scott v. Mills, 49 Ark, 266, and selling timber, manufacturing and sell4 S. W. 908. Each of these cases cite other ing staves, and operating a stavemill; that opinions of this court to the same effect. the appellant was in the appellee's employ But an equal, if not a larger, number of cas as a woodsman; that he was inexperienced es say the possession must be hostile. See in the operation of machinery and mill work, Watson v. Hardin, 97 Ark. 33, 132 S. W. and that the appellee knew that fact; that 1002, and Nicklace v. Dickerson, 65 Ark. 422, on or about June 18, 1916, the appellant be46 S. W. 945, and cases cited in each of these gan work under the direction of appellee's cases. In the common acceptation of these foreman in operating an edger saw at the words, a possession could not be, at the same mill; that appellant told his foreman that time, both peaceable and hostile, yet, as he had never worked at such saw and knew anomalous as it may appear to be, the words nothing about the operation of same, but have been used interchangeably by this court that the foreman nevertheless directed him in discussing the law of adverse possession. I to proceed with his work; that while engagThe occupancy, whether denominated peace- ed in the operation of the edger saw appelable or hostile, must be accompanied by an lant was injured by coming in contact with intent to hold adversely to the true owner, a cut-off saw, which was being negligently and, while it is held that there need not be run by the appellee in close proximity to the a dispute in order to make the possession appellant; that the appellee had negligenthostile (2 C. J. 122), it is also held that the ly failed to provide a proper guard for the word "peaceable," as employed by the courts cut-off saw, and that by reason of appellee's in announcing the elements of possession negligence in failing to instruct appellant as which may ripen into title, means merely to his duties and to warn him of the danthat the possession must be so undisturbed gers, and in negligently operating the cutas to render it continuous. 2 C. J. 168. off saw in close proximity to appellant wbile
The court should have told the jury that the same was unguarded, the appellant was a mere quarrel over the title did not prevent severely injured. The appellee denied the the possession from being peaceable within material allegations of the complaint as to the meaning of the instructions which had negligence, and set up the defenses of conbeen given on that subject.
tributory negligence and assumed risk. Other errors are assigned, but we do not The testimony on behalf of the appellant think they are sufficiently meritorious to re- was, in part, as follows: quire discussion.
"I was injured Monday morning, June 6, 1916, For the error indicated, the judgment is immediately after the mill started. The whistle reversed, and the cause remanded for a new had blown, and all the hands were at work. trial
I had never worked in the mill before this time. Was there once before, and culled staves on the yard part of the day. My regular job was
handling the teams, but on the morning I was SALING v. CHESS & WYMOND CO. OF injured I was assigned to the edger saw. Mr. ARKANSAS. (No. 165.)
Jim Brooks, the mill foreman, gave me my or
ders. When I went to the mill that morning (Supreme Court of Arkansas. Feb. 18, 1918.) I told Mr. Brooks that I had rather work in
the woods, for I can make good there. He then 1. MASTER AND SERVANT Om 286(41)-INJURY said, 'Go on and work at the mill until we TO SERVANT-SUFFICIENCY OF EVIDENCE. catch up, and you can have the teams.' I had
Evidence that plaintiff, an inexperienced seen a Mr. Palmer operate this edger saw part servant, was injured while working near of the day that I culled staves on the yard. I unguarded cut-off saw in a stavemill without pre- told Mr. Brooks that I had always worked in vious instructions or warnings held to make de- the woods. I was running a stave through the fendant employer's negligence a jury question. saw, the very first stave I picked up, when I 2. MASTER AND SERVANT Omm 289(10)—INJURY was injured by my left arm coming in contact TO SERVANT-SUFFICIENCY OF EVIDENCE.
with the cut-off saw. The cut-off saw was loEvidence that an inexperienced servant was cated just off from the front left-hand corner injured while working near an unguarded cut of the edger table, a distance of 18 inches. It off saw in a stavemill held to make his con
was running open. There was enough room on tributory negligence a jury question.
the edger table for a stave 36 inches long to
lay so that it could be pushed into the edger Appeal from Circuit Court, White County ; saw. The saw was revolving towards the operaJ. M. Jackson, Judge.
The cut-off saw was not immediately in
front of me. It was to my left. It was set Action by W. P. Saling against the Chess obliquely 1734 inches from the front left corner & Wymond Company of Arkansas. Judg-1 of the edger table. I was standing at the same
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place where I had seen Mr. Palmer stand when ! At the conclusion of the testimony the
Jno. E. Miller, of Searcy, for appellant.
Brundidge & Neelly, of Searcy, for appellee. The witness was permitted, without objection on the part of the appellee, to state WOOD, J. (after stating the facts as that the cut-off saw "could have been pro-above). The court erred in directing the tected at the time; it was afterwards." The jury to return a verdict in favor of the apwitness explained, fully demonstrating to pellee. the jury, how the edger saw was operated, [1, 2] The issues of negligence and contriband the position he was in with reference to utory negligence, under the evidence, were che two saws, etc. The witness further tes for the jury, and should have been submittified:
ted to the jury under proper instructions. "I don't know who went to work first that There was evidence tending to prove that morning, because when work time comes every the appellee was negligent in not instructing fellow goes to his job. All the machines start the appellant, who the evidence tended to at once. I don't know where Mr. Brooks was at the time I got hurt. I had never seen any prove was an inexperienced employé, about other edger saw operated. I know nothing in the work that he was set to do by appellee's the world about the construction of the mill.
foreman. It was the duty of the appellee, The reason I said the cut-off saw was not properly constructed was that after I got hurt Mr. therefore, to direct him as to his duties and Brooks, the foreman, went and put up a plank to warn him of the dangers incident to the and said that no other man would get hurt performance of the same. It cannot be said there, and that is the reason I say it was not properly constructed."
as a matter of law that these dangers were
obvious to an inexperienced employé, such Another witness on behalf of the appellant as the evidence tended to show that appeltestified, without objection, that the cut-off lant was. saw could have been guarded by putting up There was evidence from which the jury planks, and that if it had been so guarded might have concluded that appellee was also the appellant would not have been injured ; negligent in that it failed to exercise ordithat the cut-off saw should not have been nary care to duly guard and protect the placed so close to the qther saw. The cut- "cut-off" machine near which the appellant off saw should have been guarded by put- was employed at work. See Pekin Stave & ting up a fender to keep a man off of it. Mfg. Co. v. Ramey, 104 Ark. 1, 147 S. W. Witness explained how a guard could have 83; Michigan-Arkansas Lumber Co. v. Bulbeen placed so as to protect the cut-off saw, lington, 106 Ark. 25, 152 S. W. 999; Garretand stated that all other saws have just son-Greason Lbr. Co. v. Goza, 116 Ark. 277, such guards on them; that they did not put 172 S. W. 825. a guard around this until after appellant re- For the error indicated the judgment is ceived bis injury.
reversed, and the cause is remanded for a A witness on behalf of the appellee testi- new trial. fied, in part, as follows:
"I remember the time the plaintiff was injured. I was foreman of the plant where he WARMACK V. PERKINS. (No. 142.) was injured and had control of all the hands. (Supreme Court of Arkansas. Feb. 11, 1918.) It was my business to assign them to different places to work. I employed Mr. Saling the day 1. BROKERS Om54-RIGHT TO COMMISSIONSbefore he was injured, and when I employed him
ABILITY AND WILLINGNESS OF PURCHASER. he said he had not had any experience with
Under contract entitling broker to commisrunning stave saw, but that he could run it. sion if he produced a purchaser ready, willing, He was at the mill when I employed him. He and able to buy on the principal's terms, and was to report the next morning at 7 o'clock. I he produced one with whom the principal consaw him the next morning at 7 o'clock. When tracted to sell the property, he was entitled to the mill started the next morning I was on the commission. opposite side of the shed from where Mr. Sal- 2. BROKERS m58-RIGHT TO COMMISSIONSing was at work. I had not instructed him to MUTUALITY OF CONTRACT. go in there and do any work that morning, and Where broker produced customer to whom I was coming around to show Mr. Saling what the principal agreed to sell the property, the to do, but before I got around he had been in- inere fact that the contract contained no express jured."
promise of the purchaser to purchase the prop
erty did not make it so lacking in mutuality The testimony of this witness further that the broker could recover no commission; tends to show that the injury to the appel- the reciprocal obligation of the purchaser being lant was caused by the manner in which he
3. EVIDENCE 450(8)–PAROL EVIDENCE VAoperated the edger saw, and that
RYING WRITING-ADMISSIBILITY-AMBIGU. "there was no occasion for a man getting against the cut-off saw unless he walked clear contract between two persons by which up before the saw. There was no occasion for one agreed to sell to the other a factory and him reaching so far."
ground on certain terms, "with the understandFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
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