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matter of conjecture, surmise, speculation, or supposition, there can be no recovery, citing, among them, the recent cases of Jonesboro, L. C. & E. R. Co. v. Minson, 102 Ark. 581, 145 S. W. 215, Denton v. Mammoth Spring E. L. & P. Co., 105 Ark. 161, 150 S. W. 572; | and Midland Valley Ry. Co. v. Ennis, 159 S. W. 214. The above doctrine was announced in cases where the facts showed that the causal connection between the injury and the negligence, was merely conjectural. Each case, of course, must depend upon its own facts, and as we view the evidence in this case it is clearly distinguishable from the cases last mentioned, but does come under the doctrine, as already stated, announced in St. L., I. M. & S. R. Co. v. Hempiling, supra, and St. L., I. M. & S. R. Co. v. Owens, supra, where the facts as proved by the circumstances warranted a finding that the negligence alleged caused the injury, and that the causal connection was not a mere matter of conjecture, but was proved by substantial, even though circumstantial, evidence.

[15-17] VIII. The appellant urges that the court erred in excluding testimony to the effect that Old admitted that he was injured because he attempted to catch the train and slipped. The record shows that about an hour and a half after the injury a witness asked Old how the injury occurred. Old at that time had begun to sink. The witness shook him several times and aroused him sufficiently for him to speak in a very low tone, and, being asked the third time how the injury occurred, Old stated that he tried to catch the train and slipped and fell. On being asked if he tried to catch the train or the caboose, he said the train.

Under the Employers' Liability Act and its amendment of April 5, 1910, appellee as administrator of the estate of Leslie Old was entitled to recover damages by way of compensation for the financial loss to the widow and child of deceased by reason of the death of the husband and father, also appellee could recover for the conscious pain and suffering which the husband and father endured after the injury, which survived to appellee as the personal representative of Old for the benefit of his widow and child. See Act of Congress April 22, 1908, § 1, and section 9 added by amendment April, 5, 1910.

The statute, as to the loss of contributions on account of the death of the husband and father, creates a right of action for the benefit of the widow and the next of kin wholly independent of the right of action given to the injured person for the pain and suffering which he endured on account of the injury. See Mich. Cent. Ry. Co. v. Vreeland, 227 U. S. 59, 33 Sup. Ct. 192, 57 L. Ed. 417. The latter right of action under the amendatory statute of April 5, 1910, was made to survive to his personal representative for the benefit of his widow and next of kin. In St. Louis & S. F. Ry. Co. v. Conarty, supra, we said:

the prosecution of more than one action, and permits only one recovery; but the action is prosecuted, after the death of the injured person, for the benefit of the widow and next of kin, and may include compensation for the pain and suffering endured by the injured person as well as for pecuniary loss of earnings and contributions; in other words, compensation for all of the damages resulting from the injury for which the statute provides a remedy inures after the death of the injured person to the benefit of the widow and next of kin, but must be recovered in . one action." See, also, Gulf, Colo. & S. F. Ry. Co. v. McGinnis, 228 U. S. 173, 33 Sup. Ct. 426, 57 L. Ed. 785 (May 1, 1913).

The admissions of a deceased person against his interest are competent only when the action is for or against him in his own right. Conceding (without deciding) that the testimony offered to show the admissions would have been competent and admissible as declarations against interest, and conceding that if the appellant had asked that the testimony be not excluded, but limited to the right of recovery growing out of the cause of action for pain and suffering, that the court would have erred in excluding the testimony, nevertheless there was no privity of interest between Old and his wife and child so far as their right to recover for the loss of contributions on account of his death is concerned. The testimony, if competent, in the right of action given them for this loss was purely hearsay. As stated by Mr. Greenleaf: "The ground upon which admissions bind those in privity with the party making them is that they are identified in interest; and, of course, the rule extends no further than this identity of interest." 1 Greenleaf, Ev. § 180.

In the case of Graysonia-Nashville Lumber Co. v. Carroll, 102 Ark. 461, 144 S. W. 519, we held: "Where two causes of action were united in one action, evidence offered by defendant which was admissible in one case but not in the other was properly excluded, where the defendant did not ask that the testimony be limited to the cause to which it was applicable."

In Murphy v. St. L., I. M. & S. R. Co., 92 Ark. 159, 122 S. W. 636, we held that "it was error to permit the defendant to offer in evidence a written statement made by deceased in his lifetime to the effect that his mother was dead, as there is no privity between the next of kin and the deceased."

Here, under the above ruling, the testimony, to say the least, was clearly incompetent in the right of action for the loss of contributions. If incompetent for any purpose, as the appellant did not ask that it be limited to the right of action for pain and suffering, the court did not err in excluding it for all purposes. Here the appellee did not desire the testimony for any purpose, and the testimony, as already shown, was wholly incompe

tributions. Therefore it was the duty of ap- | the measure of damages, because it does not

pellant, who alone desired the testimony, to ask that it be directed or limited to the right of action in which it was competent, if competent at all. Not having done so, it is in no position to complain because the court excluded the testimony for all purposes.

Where the court excludes testimony which is incompetent in the whole case for one purpose but competent for another, it is the duty of the party who desires the testimony to be admitted for the purpose for which it is competent to request the court to have it admitted for that special purpose. The ruling of the court in excluding testimony will be upheld, if any ground justified the ruling, in the absence of a specific request by the opposing party to have the testimony considered for the purposes for which it is competent. In St. L., I. M. & S. R. Co. v. Raines, 90 Ark. 482, 119 S. W. 266, testimony was admitted over a general objection that was competent in one case, but incompetent in the other, and we said that it was the duty of the party objecting to ask that the testimony be limited solely to the case in which it was competent. The cases of Lumber Co. v. Carroll, supra, and Ry. v. Raines, supra, are in harmony and establish the same rule. See, also, Central Coal & Coke Co. v. Niemeyer Lumber Co., 65 Ark. 106; Tooley v. Brown, 70 N. Y. 34; Emrich v. Union Stockyards, 86 Md. 482, 38 Atl. 943; Egger v. Egger, 225 Mo. 116, 123 S. W. 928, 135 Am. St. Rep. 567.

[18] It is a well-established rule that, in actions in a state court to enforce rights given by a federal statute, the rules of evidence of the state court must control unless otherwise provided by the federal law. Wigmore on Evidence, § 5. In the absence of a statute prescribing the rule of evidence upon the subject, the law of the forum will govern. IX. Only a few of the prayers for instructions on the part of appellant which the court refused are set forth in the abstract. And the appellant does not urge, in brief of counsel, any specific objection to the refused prayers which it sets out.

No specific objection to the rulings of the court in the giving and refusing of prayers for instructions are abstracted. Therefore we will not consider any specific objection now urged by counsel to the rulings of the court in passing on the instructions. We find no inherent defects in the instructions which the court gave at the instance of the appellee and of its own motion. The court correctly submitted the issue as to whether or not appellant was negligent as alleged in the complaint, and the issue as to whether or not there was a causal relation between the acts of negligence as alleged and the death of Old. No new principle is announced, and no useful purpose can be subserved by setting out the instructions and commenting upon them in detail.

[19] Counsel say that the court erred in

state the measure of damages, under the federal law, and because it does not separate the amount found for pain and suffering from the amount found for compensation for loss of contributions.

The instruction follows the rule announced by this court in Railway v. Sweet, 60 Ark. 550, 31 S. W. 551, for ascertaining the measure of damages for the widow and children. There we said: "The measure of their damages is what the jury may 'deem a fair and just compensation with reference to the pecuniary injuries resulting from the death' of the husband and father. * How is this compensation to be determined? By taking into consideration the age, health, habits, occupation, expectation of life, mental and physical capacity for and disposition to labor, and the probable increase or diminution of that ability with the lapse of time; deceased's earning power, rate of wages, and the care and attention which one of his disposition and character may be expected to give his family-all these are proper elements for the consideration of the jury in determining the value of the life taken. From the amount thus ascertained, the personal expenses of the deceased should be deducted, and the balance, reduced to its present value, should be the amount of the verdict." St. L., I. M. & S. R. Co. v. Haist, 71 Ark. 258-268, 72 S. W. 893, 100 Am. St. Rep. 65; K. C. Sou. Ry. Co. v. Henrie, 87 Ark. 443-454, 112 S. W. 967; St. L., I. M. & S. R. Co. v. Garner, 90 Ark. 19-24, 117 S. W. 763; Ark. S. W. Ry. Co. v. Wingfield, 94 Ark. 75, 126 S. W. 76; St. L., I. M. & S. R. Co. v. Hartung, 95 Ark. 220, 128 S. W. 1025; Ft. Smith & Western Ry. Co. v. Messek, 96 Ark. 243-248, 131 S. W. 686, 966.

We see no reason why there should be a different rule under the federal statute. This statute, like ours, is modeled after Lord Campbell's Act. The Supreme Court of the United States has announced that the damages sustained by the widow and children are the benefit which might be reasonably expected from the husband and father in a pecuniary way had he lived. See Mich. Cent. R. Co. v. Vreeland, 227 U. S. 59, 33 Sup. Ct. 192, 57 L. Ed. 417; Amer. R. Co. v. Didricksen, 227 U. S. 145, 33 Sup. Ct. 224, 57 L. Ed. 456. The same rule obtains generally under statutes similar to ours. See other authorities cited in brief of appellee.

In Choctaw, O. & G. Ry. Co. v. Baskins, 78 Ark. 363, 93 S. W. 760, we said: "Deceased was a stout, healthy man, 56 years of age, actively engaged in farming, with an earning capacity of $400 to $500 per annum. He labored in the field himself, as well as superintended the work on his farm. * His wife and daughters and one of his sons (one of his children being a minor) lived with him on the farm. There is no direct proof as to the amount of his contributions to the

TITLED TO COMPLAIN-INVITED ERROR-Ex-
CLUSION OF EVIDENCE.

will be indulged that, as they lived with him | 2. APPEAL AND ERROR (§_882*)-PARTIES ENon the farm, a reasonable amount of his earnings was contributed to their support. There is not, under those circumstances, an entire absence of proof of such contributions. We must presume that he discharged his duty, in some measure, to them."

[20] Applying the above rules to the facts in evidence, we are of the opinion that the judgment was not excessive. Old was 25 years old when he was killed. He had an expectancy of 35 years. His wife was 24 years old, and their baby was only five weeks old. There was proof to warrant a finding that his net earnings per annum

would be $720. According to annuity tables, it would require $14,518 to purchase a life annuity of $700 for one of Old's age. This amount deducted from the judgment would leave the sum of $3,482 as the amount to be recovered for the pain and suffering which he endured. This calculation does not take into account the probable increase in earning

power.

Where the postal cards referred to were excluded at the request of the defendants, they cannot complain on appeal that the cards were not read to the jury.

[Ed. Note.-For other cases, see Appeal and
Error, Cent. Dig. §§ 3591-3610; Dec. Dig. §
882.*1
3. LIBEL AND SLANDER (§ 107*)—ADMISSIBIL-

ITY OF EVIDENCE-DAMAGES-REPETITION OF
SLANDER.

In an action for slander, testimony by a witness for the plaintiff that a third person had repeated the slander to the witness was admissible, even though the defendants were not liable for such repetition, as tending to show that to augment the damages.

the slander was generally known, and thereby

[Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 299-303, 305, 351; Dec. Dig. § 107.*]

4. LIBEL AND SLANDER (§ 107*)-ADMISSIBILITY OF EVIDENCE-AMOUNT OF DAMAGES.

competent.

[Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 299-303, 305, 351; Dec. Dig. § 107.*]

5. LIBEL AND SLANDER (§ 107*)-ADMISSIBIL ITY OF EVIDENCE-AMOUNT OF DAMAGESGENERAL CIRCULATION OF SLANDER.

Evidence that the slander had been generally circulated in the community as a result of its utterance by the defendant is competent, for the purpose of showing the extent of the dam

In an action for slander, testimony by the plaintiff that she was the next highest officer in a certain lodge, and that about the time the slander was circulated she was dropped out of [21] We are of the opinion that the judg-line, and not promoted to the highest office, was ment, when all of the proper elements of damages are considered, is not excessive. Since the judgment was not excessive, the form of the verdict could not have been prejudicial to appellant. Appellant, at the time the verdict was rendered, made no objection to its form. He did not ask that the jury be required to return separate amounts for pain and suffering, and for loss of contributions. The widow and child, under the law, were entitled to the entire amount. They were the only persons having a pecuniary interest in the amount of damages recovered, and it could not prejudice appellant because these damages were returned in a lump sum. Appellant will be protected in the payment of the judgment as rendered, since all of the parties who had an interest in the same are represented in the suit. See St. L., I. M. & S. R. Co. v. Hutchinson, 101 Ark. 430, 142 S. W. 527.

Finding no reversible error, the judgment is affirmed.

WILLIAMS et ux. v. FULKS. (No. 308.) (Supreme Court of Arkansas. May 11, 1914.) 1. APPEAL AND ERROR (§ 1050*)-HARMLESS ERROR-ADMISSION OF EVIDENCE-REDIRECT EXAMINATION.

Where defendant's attorney, in an action for slander, endeavored to minimize the damages, upon cross-examination of the plaintiff, by showing that the slander had not been believed, the admission of testimony on plaintiff's redirect examination that she had received certain postal cards relating to the slander, and that she was almost heartbroken thereby, was not prejudicial; since it merely rebutted the attempt of the defendant to show that plaintiff suffered no humiliation by the slander. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166 Dec. Dig. § 1050.*]

age.

[Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 299-303, 305, 351; Dec. Dig. § 107.*]

Appeal from Circuit Court, Greene County; W. J. Driver, Judge.

Action by Dora Jackson Fulks against J. M. Williams and wife. Judgment for the plaintiff, and defendants appeal. Affirmed.

M. P. Huddleston, of Paragould, for appellants. Block & Kirsch, of Paragould, for appellee.

McCULLOCH, C. J. This is an action instituted by the appellee, Dora Jackson Fulks, against J. M. Williams and his wife, Nancy Williams, to recover damages on account of slanderous words alleged to have been spoken by defendant Nancy Williams concerning the plaintiff.

This is the third appeal. The first judgment was in favor of defendants, and, on appeal, that judgment was reversed, and the cause remanded for a new trial. 92 Ark. 486, 123 S. W. 751, 25 L. R. A. (N. S.) 840. The second trial resulted in a judgment in favor of plaintiff, and, on appeal, that judgment was reversed, and the cause remanded for a new trial. 103 Ark. 196, 146 S. W. 480.

The facts are fully set forth in the former opinions, and need not be again rehearsed. The words alleged to have been spoken were slanderous per se, and the law applicable to

the case is fully settled on the former ap- duced for the purpose of responding to the peals.

In the last trial plaintiff recovered judgment in the sum of $1,600, and the defendants have prosecuted the appeal to this court.

The only assignments of error relate to rulings of the court in admitting testimony. There are several of these assignments, and they all relate to testimony which had bearing only on the question of the amount of damages, except one of the assignments, which related to testimony affecting the credibility of one of the witnesses. After a careful examination of these assignments, we are of the opinion that none of them constitute reversible error. It is unnecessary to discuss them all, as the principles affecting them are not unconnected.

[1] One of the assignments is as to the ruling of the court in permitting the plaintiff to testify about certain postal cards which she had received through the mails subsequent to the utterance of the slander. This occurred on redirect examination, after counsel for defendants had subjected her to a searching cross-examination on all phases of the case, and particularly with reference to the amount of her injury by reason of the slander. She was asked about the persons who knew of the slander and their character, and whether she had reason to think that the slanderous words were believed by people in the community. On redirect examination, immediately following this part of the cross-examination, she was asked by counsel for plaintiff whether or not she had received postal cards through the mails (then handed to her), and what was her state of mind after she received them. Objection was made by defendant's counsel to the introduction of the postal cards, and the court sustained the objection, telling the jury at the time to disregard anything said in their hearing, in so far as the cards were concerned, but that, the degree of plaintiff's mental suffering being a matter at issue as affecting the damages, she could be permitted to state that she received postal cards, and what the condition of her mind was at the time as the result of the slanderous words uttered by the defendant Mrs. Williams. She was then permitted to state that she received postal cards, and that her heart was almost broken over the incident.

[2] The defendants cannot complain at the failure of the court to permit the postal cards to be read, because the cards were excluded upon their request. They objected to the plaintiff making any statement about the condition of her feeling at that time; but we are of the opinion that the testimony was not prejudicial, when considered in the light in which the jury must have understood it. The whole purpose of it was to show what she believed, and that she was humiliated in consequence of a belief, that the slander affected the minds of people in the community to

attempt of defendants to show that she did not suffer any humiliation from the slander because she did not believe it had any effect. After all, the manner in which the testimony was admitted made it relate to the plaintiff's own statement that she believed that the slanderous words were in some quarters accepted as true. It could only have affected the amount recovered, and we do not think that the mention of the postal cards had any prejudicial effect upon the minds of the jury.

[3] Another assignment relates to the testimony of plaintiff's sister about a friend of hers telling her of the use of the slanderous words by defendant Mrs. Williams. Now, there is much contrariety of opinion among the authorities on this subject as to effect of repetition of slanderous words by third persons and whether the original slanderer is responsible therefor. We need not go into that question here, for it is apparent that this assignment does not raise it, as the testimony of plaintiff's sister only had a tendency to show that the slander was generally known and had been communicated to her by a third person. It was not such repetition of the slander as was calculated to augment the damages, and therefore could not be held to be prejudicial, even if it be held that, under the law, the defendant was not liable for damages resulting from the repetition of the slander by third persons.

[4] Another assignment relates to testimony of plaintiff tending to show that she was a member of a certain lodge, and was the next highest officer therein, and that about the time the slander was circulated she was, without apparent cause, dropped out of line, and not promoted to the highest office. We think that testimony was competent; for the jury might fairly have drawn the inference that her failure to attain the office was caused by the slanders circulated against her good name.

[5] Other testimony adduced which has been objected to related to the circulation of the slander, or, rather, to evidence of the fact that it had been generally circulated in the community as the result of utterance of the slanderous words by defendant Mrs. Williams; and we think it was competent for the purpose of showing the extent of the damages.

The question whether the defendants are responsible for damages resulting from mere repetition by other persons is not properly raised in this case, and the court will not undertake to decide it.

Upon the whole, we are unable to discover any prejudicial error in the record.

We have already decided that the defendant J. M. Williams is, under the law, liable for damages resulting from slanderous words spoken by his wife, and, however innocent he may be of any participation in the wrong, he

The assessment of damages is assailed as this administration to probate the indebtedbeing excessive; but, after considering all ness secured by the mortgage. the evidence in the case, we are unable to say that the jury were without warrant to fix it at the amount named. Judgment affirmed.

HICKS v. HICKS et al. (No. 317.) (Supreme Court of Arkansas. May 11, 1914.) 1. EXECUTORS AND ADMINISTRATORS (§ 223) CLAIMS LIMITATION RETROACTIVE STAT

UTE.

Act May 10, 1911 (Laws 1911, p. 256), providing a new period of limitation for the foreclosure of mortgages and deeds of trust, is not and will not revive the right to foreclose a mortgage given by a decedent which was barred by the statute of nonclaim before its enactment. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 767; Dec. Dig. § 223.*]

2. LIMITATION OF ACTIONS (§ 155*)-CLAIMS

---

AGAINST DECEDENT'S ESTATE EFFECT OF
STATUTE OF NONCLAIM.

A claim against an estate barred by the statute of nonclaim cannot be revived by part payments by the administrator.

[Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. §§ 623-630; Dec. Dig. § 155.*]

Appeal from Little River Chancery Court; Jas. D. Shaver, Chancellor.

Action by Pearl Hicks against Will Hicks, in which D. B. Sain and W. T. Locke, as executor, intervened. From a judgment for intervener Locke, plaintiff and intervener Sain appeal. Reversed.

This action was instituted in the chancery court of Little River county for partition of

The questions involved upon this appeal grow out of an interplea filed by D. B. Sain, in which he alleged that on the 17th of January, 1912, the plaintiff, Pearl Hicks, executed to him a mortgage on her undivided interest in all of the above real estate to secure the payment of a certain promissory note for $500, executed on that date, and due on the

1st day of January, 1913. Thereafter, on the 17th of October, 1913, W. T. Locke, as executor of the estate of the said M. A. Locke, filed his intervention, in which he set up the execution of the mortgage to his intestate, and prayed that its foreclosure be decreed, and that partition of the land be ordered subject to the lien of this mortgage.

There was no controversy about the other indebtedness due by said James Hicks, and all of it had been properly probated. The court found that the property was not susceptible of a division in kind, and ordered the property sold for the purpose of division, but decreed that this sale should be made subject to the liens of the intervening litigants; that is, that they should be paid out of its proceeds. It appears that the intestate Hicks paid the sum of $15 on the Locke indebtedness during his lifetime, and that a further payment of $25 was made on the 6th day of November, 1911, by his administrator.

The interpleader, Sain, has appealed from this decree, and by his appeal questions the action of the court in declaring the Locke the property in controversy, and in ordering mortgage to be a valid subsisting lien against its payment out of the proceeds of the sale.

Sain & Sain, of Nashville, for appellants. Steel, Lake & Head, of De Queen, for appel

certain real estate situated in said county.
The appellant alleged in her complaint that
she had intermarried with one Jim Hicks in
the year 1905, and that they had lived togeth-lee.
er as man and wife until his death, which
occurred in December, 1909, and that her
husband had died intestate, and without is-
sue, but left him surviving three brothers,
who were the defendants in the action. The
property sought to be partitioned consisted
of a tract of land in that county and certain
town lots in Ashdown. At the time of his
death Hicks was indebted to various parties,
and among others to one M. A. Locke in the
sum of $150, and the indebtedness due Locke
was secured by a mortgage which Hicks and
his wife executed on the 5th of May, 1908,
and that indebtedness was due and payable
on the 1st day of January, 1909, and bore in-
terest at the rate of 10 per cent. per annum
from date until paid.

SMITH, J. (after stating the facts as above). [1, 2] The appellee admits the only question at issue in this case is whether the act of May 10, 1911 (Laws 1911, p. 256), providing a period of limitation for the enforcement of mortgages and deeds of trust, is retroactive so as to remove the bar which attached by reason of the failure of the intervening executor to prove up within the time allowed by law the claim which is here asserted. The position taken by him is, first, that the act in question is retroactive, and, second, that the payment made on the 11th of- November, 1911, operated to remove the bar of the statute of nonclaim, if it had, in fact, ever attached. Appellee concedes, of Letters of administration were issued upon course, that under the decision in the case the estate of Hicks on the 31st day of Jan- of Mueller v. Light, 92 Ark. 522, 123 S. W. uary, 1910, and this suit was instituted on 646, 31 L. R. A. (N. S.) 1013, the Locke indebtthe 24th of April, 1913. The letters of admin-edness was barred by the statute of nonistration were issued to Rice Hicks, the claim; but he says that the act of May 10, father of the intestate mortgagor, and he 1911, was retroactive, and revived the right served in that capacity until his death in of the executor to maintain this action under June, 1912; but no attempt was made during the mortgage, and to subject the property

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