HINSON v. STATE. (No. 222.) (Supreme Court of Arkansas. March 11, 1918.) 1. CRIMINAL LAW 864-DELIBERATION OF JURY-CONDUCT OF TRIAL JUDGE. In a prosecution for carnal abuse, where the jury, after retiring, requested to see the judge, who was seated in the courtroom, but not then engaged in holding court, although defendant was present, whereupon the judge, not knowing that defendant's counsel was absent, in response to a question by a juror, stated his recollection of what the prosecuting witness had testified to, such action of the trial judge offended against Const. art. 7, § 23, which provides that judges shall not charge juries with regard to matters of fact. 2. CRIMINAL LAW 641(2) · CONDUCT OF TRIAL-COMMUNICATIONS BETWEEN COURT AND JURY. In a prosecution for carnal abuse, where the judge, in response to a request by the jury, after retirement, in the absence of counsel, informed them as to his recollection of what the prosecuting witness had said on the stand, such action of the court was erroneous, as constituting a communication between court and jury in the absence of counsel for the accused. Appeal from Circuit Court, Craighead County; R. H. Dudley, Judge. John B. Hinson was convicted of carnal abuse, and he appeals. Reversed and remanded. Eugene Sloan and N. F. Lamb, both of Jonesboro, for appellant. Jno. D. Arbuckle, Atty. Gen., and T. W. Campbell, Asst. Atty. Gen., for the State. SMITH, J. Appellant was convicted under an indictment charging him with the crime of carnal abuse, alleged to have been committed upon the person of one Lena Ishmael. The principal defense to the charge appears to have been that at the time of the alleged acts of intercourse the girl was not under the age of 16 years. The proof is somewhat conflicting and uncertain as to whether Lena Ishmael was past 16 years of age in the year 1915, although there is evidence from which the jury might have found that she was under 16 years of age during the year 1915. The testimony is practically undisputed that she was under 16 years of age during the year 1914; but it is insisted on behalf of appellant that there was no testimony that any act of intercourse occurred during the year 1914, and appellant further says that all of the acts of intercourse testified to by the prosecutrix occurred during the years 1915 and 1916. At any rate, this was one of the disputed questions of fact in the case, and the proof on appellant's part was to the effect that, if any act of intercourse took place at all, it occurred either in 1915 or 1916. room at the time, but was not engaged then in holding court. The appellant was present in the courtroom, but the attorneys representing him were not there at the time. When told that the jury desired to see him, the judge asked if there was any objection to his answering the call of the jury, and none was made. The judge supposed that counsel for appellant had given their consent for him to enter the jury room in response to the invitation of the jurors. Appellant himself knew of the incident at the time, but made no objection thereto, as he did not know that there was anything irregular about what the judge proposed to do. Upon entering the jury room, the door was allowed to remain open, and the appellant and others heard the conversation which took place between the judge and the jurors. Some one or more of the jurors stated that they wanted to know the recollection of the judge as to what the prosecuting witness had said as to the time He when the first act of intercourse with her The only error complained of as having occurred at the trial is the action of the judge in entering the jury room as above stated. The Attorney General has filed a confession of error in the case, and we think this confession of error is well taken. We think the action of the court was erroneous upon two grounds: [1] In the first place, it offended against section 23 of article 7 of the Constitution, which provides that judges shall not charge juries with regard to matters of fact, but shall declare the law. It is true that the trial judge admonished the jury that they should not be influenced by his recollection of the testimony; but it cannot be said that they obeyed this admonition. Indeed, it is almost apparent that they did not do so, and it must, at least, be presumed that such is not the case. The jury was unable to agree The jury retired to consider their verdict, about what the witness had stated, and they but was unable to arrive at a verdict, when, called the judge to the room for the purpose after having had the case under consideration of asking his recollection, and the verdict refor some time, one of the jurors appeared at turned comported with the recollection of the the door of the jury room and asked to see judge. Mitchell v. State, 125 Ark. 260, 188 the trial judge, who was seated in the court- S. W. 805; Twist v. Mullinix, 126 Ark. 436, 190 S. W. 851; Roe Rice & Land Co. v. Strobhart, 123 Ark. 152, 184 S. W. 461; McLemore v. State, 111 Ark. 463, 164 S. W. 119. [2] We think the action of the court was erroneous for the additional reason that it constituted a communication between court and jury in the absence of counsel for the accused. The rule in such cases is stated in section 110 of the article on Juries in 16 R. C. L. page 298, as follows: Such, however, was not the case, and we must hold, for the reason stated, that prejudicial error was committed, and the judgment will therefore be reversed, and the cause remanded for a new trial. DICKINSON et al. v. BRUMMETT. (No. 196.) "In numerous cases it is held that private (Supreme Court of Arkansas. March 4, 1918.) conversations of the judge and the jury are not only improper, but that they constitute miscon- 1. MASTER AND SERVANT 285(1) — INJURY duct for which the judgment will be reversed, TO SERVANT-QUESTIONS FOR JURY. without reference to the question whether such In an action by a railroad's employé for inmisconduct affected the verdict, inasmuch as in-juries when the weight of a car door supported jury in such cases will be presumed; and au- by him with a pinch bar strained him, the thority is not wanting to the effect that this weight of the door, and what weight came down presumption is conclusive. Even where a trial on plaintiff when those helping to sustain the judge enters the jury room at the request of weight suddenly loosed their hold, were questhe jurors, after they have retired to deliberate tions for the jury. on their verdict, and communicates or converses with the jury in reference to the case, in the absence of the attorneys, the verdict will not be permitted to stand, and regardless of whether such conversation was prejudicial." Several annotated cases are cited in the note to the text quoted, which collect a large number of cases on this subject in addition to those cited in the briefs of counsel. The principle which controls here is that announced by this court in the case of Pearson v. State, 119 Ark. 152, 178 S. W. 914. Pearson was indicted for murder in the first degree, and was convicted of that crime. After the retirement of the jury in that case a note was addressed to the trial judge by a member of the jury, which read as follows: "If the jury should find the defendant guilty as charged in the indictment, with a recommendation for leniency, has your honor the authority, and will you assess his punishment at twenty-one years in the state penitentiary or for life?" In response to this inquiry, and on the back of it, the trial judge wrote the word, "No." The conviction in that case was reversed by this court because of that communication, and in doing so we said: "This inquiry on the part of the jury and the answer thereto by the court was tantamount to giving instructions to the jury in the absence of the defendant and his counsel. If the appellant or his counsel had been present, then they might have objected to the court's answering the inquiry in any manner at all, and they might have objected to the answer that the court gave. It is unnecessary to determine whether the answer was correct." 2. TRIAL 140(1) CREDIBILITY OF WIT NESSES QUESTION FOR JURY. An issue as to the credibility of witnesses was peculiarly for the jury. - INJURY 3. MASTER AND SERVANT 285(1) TO SERVANT-QUESTION FOR JURY. In an action against a railroad by its employé for injuries when the weight of a car door supported by plaintiff with a pinch bar strained him, whether or not sufficient weight was thrown on plaintiff, under the facts, to produce the injury of which he complained, held for the 4. MASTER AND SERVANT 276(2)—INJURY jury. TO SERVANT-MANNER OF INJURY SUFFICIENCY OF EVIDENCE. In such action, evidence held to warrant finding that plaintiff was injured in the manner claimed by him. 5. DAMAGES 208 (2)-INJURY AS CAUSE OF PHYSICAL CONDITION-QUESTION FOR JURY. In such action, whether plaintiff's physical condition, and the pain and suffering incident thereto, were caused by his injury, held for the jury. 6. DAMAGES 208(2)-MEASURE OF DAMAGES -QUESTION FOR JURY. In such action, the measure of plaintiff's damages for the physical injury, and the pain and suffering incident thereto, if any, which he alleged he sustained through defendants' negligence, held an issue of fact for the jury. 7. APPEAL AND ERROR 930(1) — REVIEW — FAVORING VERDICT. The Supreme Court must give the testimony the strongest probative value in favor of the jury's verdict. 8. DAMAGES 134(1)-PERSONAL INJURIES— EXCESSIVE VERDICT. Where an injury to a railroad servant, 42 years old, physically strong, and almost constantly at work, earning from $2 to $2.25 a day, rendered him nervous, subjected him to headbor, weakened his back, so that he could not aches, practically destroyed his capacity to lawalk without supporting straps, could not use crutches, and could not work, when he might have earned $4 a day, etc., verdict for $10,000 damages was not excessive. In the case at bar the accused was present, but his counsel was absent, and no objection was made to the action of the judge, because, as stated by the appellant, he did not know that the proceeding was irregular, or that he had any right to object. The high character of the trial judge is so well known that it cannot be assumed that he was undertaking to exercise any undue influence over the Action by Paul Brummett against Jacob jury. Indeed, it appears from his statement M. Dickinson, receiver of the Chicago, Rock contained in the bill of exceptions that he Island & Pacific Railway Company, and oththought counsel for the accused were presenters. From a judgment for plaintiff, defendand were assenting to what he did. Appeal from Circuit Court, Prairie County; Thos. C. Trimble, Judge. ants appeal. Affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes The testimony of two witnesses, who were employés and engaged in assisting appellee in placing the door, was to the effect that, when Hall struck the door, it moved down towards Brummett. They were exerting The appellee brought this action against, top. If appellee had known that the foreman the appellant to recover damages for alleged was going to strike the door, and that the personal injuries. He alleged that appellant others were going to turn loose, he would was engaged in interstate commerce and that have turned loose himself. The ground slophe was in appellant's employ, and at the ed away from the track, and one had to time of the injury was himself engaged in stand still further down hill, so that the bar interstate commerce. He alleged that he was was in a slanting position; the end resting employed in the capacity of car repairer, upon his shoulder being lower than the one and that on the day of the injury he and underneath the door. other employés were directed by their foreman to place a door on a stock car; that he was directed by the foreman to use a pinch bar to assist in prizing the door, which was being held in position by the other employés; that in obedience to the order he plac-their strength to lift the door high enough ed one end of the pinch bar on a door track underneath the door and supported the other end with his shoulder; that, while he was prizing the lower end of it with a pinch bar, the foreman, without warning of any kind, negligently struck the door with a heavy maul, and the other members of the crew negligently, without warning, turned loose the door, 'throwing the weight of the heavy door upon him, thereby seriously and permanently injuring his back, spine, and hip. The appellant denied the allegations of the complaint as to negligence and set up the defense of contributory negligence. The facts which the evidence tended to prove, as detailed by the appellee and his witnesses, are substantially as follows: "The appellee, while prizing at the door with a pinch bar, trying to force the top of the door into a groove, so as to get the bottom of the door onto a track upon which it was to run, had his back sprained." Appellee in his testimony says: "We went over to help put the car door on, and picked up the door with our hands and put it in the groove at the top, and tried to put it on the track at the bottom; but it lacked about an inch going onto the track. Mr. Hall [the foreman] told me to get a bar and prize the door up, so it would go on. I picked up the bar, and put one end of the bar on my left shoulder, and then raised up. Then Mr. Hall hit the door with a maul. When he hit the door with the maul, I noticed the weight come down to me. I had my back to Mr. Hall, but as he hit the door I noticed John Melton turn the door loose. When the door went in place, the bar fell off of my shoulder, and I straightened up and walked back to the car, where Mr. Melton and myself had been working, which was about a car and a half from the car where we had put in the door. We had taken off an end sill, and I told Mr. Melton that a man that was strained like I was didn't have to work any more." The door weighed 500 or 600 pounds. No warning was given by the foreman that he was going to strike the door. Appellee was in a stooping position, with the bar resting on the track, and the door resting on the end of the bar, and the other end resting on his shoulder. Appellee could not hold the door with the pinch bar when the others turned it loose. Appellee had helped to put in dry box car doors before, but had never helped to put in a door of this kind. There to get it in the track. When they saw that Hall was going to strike the door, they turned it loose; then there was nothing to hold the door, except Brummett and his pinch bar. They turned it loose bqcause they thought it would jar and jerk; they had been lifting as hard as they could; they could not push it in. A door was exhibited to the jury, and the witnesses demonstrated before the jury the attitude of the appellee and those who were lifting the door and assisting putting the same in place. The door they had for the purpose of making the demonstration was the same size, but not as heavy, as the original door. One of the witnesses stated that the original weighed about 500 or 600 pounds. After the door had been put in place, appellee stated that his back was strained, and did not think that he would do much more work at that time. There was testimony on behalf of the appellant tending to prove that the door would weigh about 300 pounds, that the door was tight, and failed to go in; when the door failed to go in, the usual way was to force it in by tapping the same in place with a maul. When the door was in the groove at the top, and one end was in the casing at the bottom, it would not fall out, even if no one was holding it. The crew that were called on to assist consisted of six men, when one or two to lift was sufficient. Nobody complained about being hurt there that evening. One of the witnesses for the appellant stated: "I helped make the door, and we summoned enough men to put it up. We took hold of the door and lifted it up in the groove at the top. Then we placed the shoe on the left side of the track. I was standing near the center of the door. We tried to put the door in, but it was too tight, and Brummett picked up the bar and tried to force it in. Mr. Hall hit it with a maul. Hall said, 'Prize it up.' Then he picked up a maul to strike it. Mr. Hall said, 'Some one get a pinch bar, and let us see if we can't drive it in.' Nobody expressed any surprise at his hitting it with the maul. With the top of the door in the groove, and the left end in the track, the door would stand there." The jury returned a verdict in favor of the appellee for $10,000. Judgment was rendered in his favor for that sum, and it is sought by this appeal to reverse the judg Thos. S. Buzbee and Geo. B. Pugh, both, whether or not sufficient weight was thrown of Little Rock, for appellants. Pace, Seawell upon appellee, under the facts stated above, & Davis, of Little Rock, for appellee. to produce the injury of which he complains. Even the witness Hall does not contradict the testimony on behalf of the appellee to the effect that he struck the door without warning, and that when he did so they turned the same loose, leaving appellee to sustain the weight, whatever that weight was. Hall only says, "I did not see a man turn loose the door." The witnesses for the appellee show that they were exerting their full strength, and that, when they turned loose, "there was nothing to hold the door, except appellee and his pinch bar." WOOD, J. (after stating the facts as above). Appellant contends that the judgment should be reversed upon two grounds: [1-3] First. That the evidence is insufficient to sustain the verdict. Learned counsel for appellant urge that the testimony demonstrates to a mathematical certainty that appellee could not have been injured in the manner and to the extent claimed by him, for the reason, they say, "that Hall was the only credible witness as to the weight of the door, and he testified that it weighed about 300 pounds." This, they say, would make the weight on the man's shoulder only 60 pounds. They argue, therefore, that the verdict is contrary to the physical facts. They arrive at this conclusion upon the calculation “that if one end of the bar, 30 inches long, is supported by a man's shoulder, and the other end is resting upon a fixed object, and a weight of 300 pounds is placed upon the bar, with the center of the weight 6 inches from the end which is resting upon the fixed object, the weight upon the man's shoulder will be six-thirtieths of the total weight," or 60 pounds. Appellee testified "that the door was 2 inches thick, and that it was back on the bar about 6 or 8 inches from the point where the bar was resting on the track; that the bar was about 30 inches long." But appellee also testified that the door weighed 500 or 600 pounds; that he was in a stooping attitude and on sloping ground; that one end of the bar under the door was not as low as the other end; that when Hall hit the door with the maul the weight came down towards appellee; that other witnesses who were assisting in sustaining the weight of the door turned loose when Hall struck the same. Now, it appears to us, from the above testimony, that counsel's calculation and conclusion are not demonstrated as physical facts. Therefore, should this court concur in the conclusion reached by counsel, it would necessarily invade the province of the jury; for it is a question for the jury to determine as to the weight of the door, and as to what weight came down upon the appellee when those who were assisting to sustain such weight suddenly loosed their hold. Certainly this court could not be expected to say as a matter of law that the uncontroverted evidence established as a physical fact that a weight of only 60 pounds fell upon appellee under the circumstances detailed by the witnesses. It is not for this court to say that Hall was the only credible witness. The issue as to the credibility of appellant's witness Hall, and of the appellee and his witness Webb, was one peculiarly for the jury to pass upon. But, even if Hall were the only credible witness as to the weight of the door, as claimed by appellant's counsel, it would still be an issue for the jury as to [4] Considering the sloping ground, appellee's stooping position, the fact that the end of the bar resting on his shoulder was lower than the other end, that the weight of the door might have been as great as 600 pounds, that same was dropped down towards appellee when the others released their hold, leaving him to sustain the full weight, that the door had not been thrown in the groove at the top, all of which the above evidence tends to prove, we cannot say as a matter of law that the evidence did not warrant the jury in finding that appellee was injured in the manner claimed by him. Second. Appellant contends that the verdict was excessive. The appellee at the time of the injury was 42 years of age; he was physically strong and almost constantly at work. After the injury he was unable to do any physical labor. He could not stoop over If he wanted to get to pick up anything. down on the floor, he had to get down on his knees. He had to sit in a straight chair; he could not sit in any other kind. He could not use crutches, because he could not stand the swing. He had no strength in his back; his nerves were ruined. He was growing worse, instead of better, and at the time he gave his testimony it had been nearly 8 He was 25 months since he was injured. pounds lighter than he was before the injury. He was earning $2 to $2.25 a day at the time of his injury, and if he had been able to work at the time of the trial he would have been earning $4 a day for 8 hours' work. His bladder was injured. He was compelled to urinate much more frequently than before the injury, and there was a burning sensation when he tried and could not urinate. Since being injured he had had the headache so much that it made him weak. Appellee gives in his testimony the above as some of the results from his injury. He discusses his treatment and his suffering from the time he was injured until the trial. He stated that the next morning after the injury he got up and started to make a fire in the stove, and all at once his muscles seemed to relax, his wife got him to bed; the doctor of appellant came and put straps on his back, and continued to treat him for about 20 days at his home. Appellee went to the doctor's of fice from August 21st to some time in Oc tober. Then he was sent to the hospital in Little Rock for treatment, where the doctors treated him. He testified concerning what was done by the surgeons in examining and treating him, and stated that the treatment gave him so much pain that he could not speak; that the doctors had to put straps on his back, with steel stays and laces, which he was still wearing, and if he took them off he had no strength in his back, and would not be able without them to walk across the room. One of the physicians, who was called by the appellee to testify, stated that he obtained the history of the case and examined him for objective symptoms, so as to come to a conclusion as to what he was suffering from. He found that appellee's pulse was 120; a normal pulse is 72. His abdominal and cremaster reflexes were absent. The increased pulse indicated that he had a nervous irritation. He showed a tenderness over the lumbar regions. There was a breaking down of the nerve reflexes in the lumbar regions, and some of the joints were ruptured. In view of his age, and that it had been 8 months since he was hurt, and the condition that appellee was in at the trial, witness calculated that his injury was organic, and that all such injuries were slow in repairing. In witness' opinion, his chances for recovery were very unfavorable. not appellee's physical condition and the pain and suffering incident thereto were caused from the injury. The measure of appellee's damages for the physical injury, and the pain and suffering incident thereto, if any, which he alleged he sustained through negligence of appellant, was, under the above testimony, likewise an issue of fact for the jury. We are required, under a familiar rule, to give the testimony its strongest probative value in favor of the verdict of the jury. When this is done, it cannot be said that the verdict was for an excessive amount. Counsel for appellant state in their brief that the first instruction given by the court at the request of the appellee was erroneous, because it allowed the jury to return damages as for a permanent injury to appellee, citing St. Louis, I. M. & S. R. Co. v. Bird, 106 Ark. 177, 153 S. W. 104. Upon an examination of this instruction as set forth in appellant's abstract, we discover there is nothing in it on the subject of permanent injury. Moreover, appellant did not make any specific request of the court to instruct the jury that there was no evidence to warrant a verdict for the plaintiff (appellee) based upon any permanent injury, as was the case in Railroad Co. v. Bird, supra. There are no errors in the record, and the judgment is therefore affirmed. ESTES et al. v. LUCKY et al. (No. 205.) Another physician who had examined appellee, after entering into detail in describ-(Supreme Court of Arkansas. March 4, 1918.) ing his condition, substantially corroborated 1. INFANTS 77-ACTIONS-PRocedure. Infants properly served as parties defendthe other physician. He stated that in his ant, and for whom a guardian ad litem has been opinion the condition of appellee was due to appointed, are in court as effectually as if the sudden weight being thrown upon him; adults, and are subject to the same rules of prothat the injury strained the muscles of the lumbar regions and the back part of the pelvis, which was manifested by the loss of weight and loss of sleep, and indicated a serious disturbance of his nervous system; that the outlook was not good for his recovery. Experts were introduced on behalf of appellant, who testify, in substance, that they had examined the appellee soon after the alleged accident, and found no injury of the shoulder, and found no inflammation in the lumbar region; that there was a malformation in the vertebræ, which in their opinion was congenital; that, if the condition of the vertebræ had occurred at the time of the accident, there would have been inflammation at the time they made their examination, and the pain would have been instantaneous and so severe that appellee would have cried out, and probably would have fallen in his tracks; that a man with "that sort of back would be expected to break down after years of hard labor, which appellee states he had undergone." These experts also stated that appellee could have strained his back while lifting at the door with the pinch bar, and have had all of the symptoms of which he complained. [5-8] It was an issue for the jury to deter cedure. 2. JUDGMENT 461(5)-SETTING ASIDE. Evidence that a judgment foreclosing a mortgage was excessive, and that guardian ad litem for infant defendants did not plead limitations, held not to sustain decree setting aside judgment for fraud, where such defense was not well founded, and there was no proof of fraud. 3. JUDGMENT 407 (1)—EQUITABLE RELIEF. Where the validity of a probate court's order authorizing an administrator to borrow money with which to pay a lien indebtedness might have been tested in a foreclosure suit, the order cannot be attacked in an action to set aside the foreclosure judgment. 4. INFANTS 105-JUDGMENT CORRECTION. Kirby's Dig. § 4431, subd. 4, and section 6248, authorizing the correction of decrees divesting infants of interests in land within a certain time, is inapplicable to decrees foreclosing liens created by an infant's ancestor. 5. INFANTS 84-GUARDIAN AD LITEM-AFFIRMATIVE DEFENSE. guardian ad litem of infant defendant, that deed In suit to quiet title, defense interposed by under which plaintiff claimed was a mortgage, is defensive and not affirmative, and hence is within the powers of such guardian. 6. QUIETING TITLE LIEF FORECLOSURE. 50- INCIDENTAL RE Although suit was brought to quiet title, where the answer alleged that the deed under which plaintiff claimed was a mortgage, and the evidence proved such claim, a judgment of foreclosure is authorized under the rule that, where equity acquires jurisdiction for one purpose, it |