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EDWARDS v. BOND.

ance of the evidence; the jury being the sole judges of the credibility of the witnesses. (Supreme Court of Arkansas. Nov. 18, 1912.) Error, Cent. Dig. 88 3935-3937; Dec. Dig. § [Ed. Note.-For other cases, see Appeal and

1. MORTGAGES_ (§ 36*) — ABSOLUTE DEED AS MORTGAGE-PRESUMPTION AND BURDEN OF

PROOF.

1002.*]

2. WATERS AND WATER COURSES (§ 63*) OBSTRUCTING WATER COURSE DAMAGES INSTRUCTIONS.

In a suit to declare a deed absolute on its face a mortgage, the law presumes that it was an absolute conveyance, and the burden is upon the complainant to show that it was a mort-road company for causing the waters of a creek

gage.

[Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 95, 96; Dec. Dig. § 36.*]

2. MORTGAGES (§ 3S*)-ABSOLUTE DEED AS MORTGAGE-SUFFICIENCY OF EVIDENCE-DEGREE OF PROOF.

In the absence of fraud or imposition, the proof to overcome the presumption that a deed absolute on its face is an absolute conveyance, and to establish its character as a mortgage must be clear, unequivocal, and convincing.

[Ed. Note.-For other cases, see Mortgages, Cent. Dig. §§ 108-111; Dec. Dig. § 38.*]

Appeal from St. Francis Chancery Court; Edward D. Robertson, Chancellor.

Suit by J. E. Edwards against Scott Bond. Decree for defendant, and complainant appeals. Affirmed.

J. F. Wills, of Argenta, and C. L. O'Daniel, of Little Rock, for appellant. S. H. Mann and J. W. Morrow, both of Forrest City, for appellee.

KIRBY, J. This is a suit in chancery to declare a deed, absolute on its face, a mortgage, for an accounting, and redemption of the land conveyed, and from a decree in favor of appellee refusing to grant the relief prayed this appeal comes. The testimony is in sharp conflict, and it may be there is a bare preponderance of it in favor of appel

lant.

[1, 2] The deed being absolute in form, the burden was upon appellant to show that it was a mortgage, the law presuming that an instrument is what appears on its face to be an absolute conveyance, and, in the ab

sence of fraud or imposition, the proof to overcome this presumption and establish its character as a mortgage must be clear, unequivocal, and convincing. Hays v. Emerson, 75 Ark. 554, 87 S. W. 1027; Rushton v. McIllvene, 88 Ark. 301, 114 S. W. 709.

We are unable to say that the chancellor erred in holding the evidence insufficient to overcome the presumption arising from the deed of absolute conveyance, that it is what it purports to be, and the decree is affirmed.

An instruction, in an action against a rail

to overflow the land of plaintiff, that, if the jury believe that any obstructions put into or negligently left in the creek by the company either caused the damage to plaintiff's land or contributed to cause damage, the verdict must be for plaintiff, does not permit the recovery of all damages caused by the overflow because they may have been increased by the obstructions, but only means that the company is liable for the part of the injury to which its negligent acts contributed, and, so construed, is

not erroneous.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. §§ 51, 53; Dec. Dig. § 63.*]

3. APPEAL AND ERROR (§ 232*)-QUESTIONS REVIEWABLE-OBJECTIONS IN TRIAL COURT.

Where an objection raised below to an tion on other grounds cannot be urged on apinstruction was properly overruled, an objec

peal.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1351, 1368, 1426, 1430, 1431; Dec. Dig. § 232.*]

Appeal from Circuit Court, Saline County; W. H. Evans, Judge.

Action by W. M. Williams and others against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

E. B. Kinsworthy, R. E. Wiley, and W. G. Riddick, all of Little Rock, and H. S. Powell, of Camden, for appellant. Mehaffy, Reid & Mehaffy, of Little Rock, for appellees.

MCCULLOCH, C. J.

of them, are owners of small tracts of land The plaintiffs, three in Saline county, Ark., and instituted this action against the railway company to recover damages alleged to have been caused

by reason of injury to said lands from waalleged in the amended complaint that the ters overflowing from Clift's creek. It is overflowing of the lands was caused by the act of the defendant in allowing obstructions to be placed and to accumulate in the culcreek; the allegation being that within three vert where the railroad passes over Clift's years before the commencement of the action

the agents and servants of the defendant, in repairing the culvert, dumped the old materi

al, such as "guard rails, rotten ties, and ends of timbers cut off from fitting the material for said repairs, into the stream be

ST. LOUIS, I. M. & S. RY. CO. v. WILLIAMS low," and that said timbers were allowed to

et al.

[blocks in formation]

remain in the stream below the culvert and dam it up, so that it caused the lands of plaintiffs to be injured by the overflow. It is also alleged that within three years next before the commencement of the action defendant's agents and servants, in repairing

the culvert, had put new piling thereunder, it permits the recovery of all damages caused "placing said new piling between the ends of by the overflow merely because the damage the fill * and the edge of said may have been increased by reason of the obstream; that the old piling was sawed off structions placed in the culvert. We scarcely about two feet above the top of the ground, think the instruction is open to that objection, the stumps of the old piling being left stick- as it is fairly susceptible only of the meaning ing up out of the ground and so near the that the defendant is liable for that part of channel of said stream that in times of high the injury to which negligent acts of its water drift would lodge against said stumps servants contributed; but, even if this part and assist in backing the water up and of the instruction is not strictly accurate forcing it to flow out of the original channel." and is open to the objection now made to In the original complaint there was an alle- it, it is too late to complain for the reason gation of negligence in narrowing the cul- that the defendant at the time based its obvert; but this is alleged to have occurred jection upon an entirely different ground. five or six years before the commencement of the action, and no effort was made to recover under that allegation. The case was tried entirely upon the question whether the injury was caused by negligence of the defendant within three years before the commencement of the actions. The cases were consolidated, and on trial before a jury a verdict was rendered in favor of the plaintiffs assessing damages in the aggregate sum of $70, and the defendant has appealed from the judgment.

[3] It objected on the ground that the first part of the instruction was erroneous, and asked that the court strike out the following words: "Any obstructions put into the creek, or negligently left in the creek by the defendant." The use of those words was proper and was clearly within the issues, so the court did not err in refusing to sustain that objection, and it is now too late to urge any other objection.

There are several other assignments of error which we do not deem of sufficient importance to discuss.

Finding no error in the record, the judgment is affirmed.

NATIONAL PACKING CO. v. BOULLION.
(Supreme Court of Arkansas. Nov. 18, 1912.)
CORPORATIONS (8 492*) LIABILITY FOR
TORTS-SLANDER OF AGENT-COURSE OF EM-

PLOYMENT.

[1] It is insisted, in the first place, that the testimony is not sufficient to support the verdict. Much space is given in the brief to the argument of the question whether damages could be recovered for the injury, if any, which resulted from the narrowing of the trestle or culvert; but plaintiffs concede that there is no right of recovery on account of that act, and the case was submitted to the jury entirely upon the right to recover upon alleged acts of negligence which ocDefendant packing company's auditor, who curred within three years. While the great was employed to investigate the accounts of preponderance of the testimony seems to be its employés and ascertain any shortages and in favor of the defendant, we are of the opin- secure evidence as to the persons responsible therefor, but not to make any charges of crime ion that there was enough to go to the jury, in connection with any defalcations discoverand that the verdict is sustained by the evi- ed, while making an investigation of the sales dence. The trial jury was the sole judge tickets sent out by plaintiff, a shipping clerk, of the credibility of the witnesses, and it is which appeared to have been altered, stated that there had been some forgeries and it was not our duty to reverse a case simply be- "up to plaintiff to make settlement." Held, cause the verdict appears to us to be against that the auditor's statement, even if slanderthe preponderance of the evidence. Many ous, was not made in the course of his emwitnesses testified that Clift's creek frequent-ployment, or scope of his authority, so as to charge defendant therewith. ly overflowed, and that the alleged obstruc- [Ed. Note. For other cases, see Corporations in the culvert did not and could not have appreciable effect upon the flow of water; but there was some testimony to the effect that the stream did not overflow sufficiently to damage plaintiff's lands until these obstructions were allowed by the defendant to accumulate in the culvert.

tions, Cent. Dig. § 1903; Dec. Dig. § 492.*]

Appeal from Circuit Court, Pulaski County; John W. Blackwood, Special Judge.

Action by Frank L. Boullion against the National Packing Company. From a judgment for plaintiff, defendant appeals. versed, and cause dismissed.

Re

[2] The following instruction was given over defendant's objection, and the ruling is The National Packing Company is a cornow assigned as error: "If you believe from poration of Illinois, doing business in Arthe evidence in this case that any obstruc- kansas. The appellee brought suit against tions put into the creek, or negligently left the Packing Company for slander, alleging in the creek by the defendant, either caused that its auditor, "while acting in due course the damage to plaintiffs' land or contributed of his employment, committed an injury to to cause the damage, then your verdict must the name and character of plaintiff by speakbe for the plaintiffs." It is insisted that this ing the following words to plaintiff in the instruction is erroneous, for the reason that presencé and hearing of divers persons:

age, but to locate the responsible party. He' was to find out who the guilty party was, and get all the evidence he could with reference to that matter. He was to gather all the evidence he could tending to reflect the guilt of the parties responsible and to report the same to the home office. He had authority to use his own judgment and methods in securing the evidence, but was not to have the guilty party arrested.

The appellant, among other prayers, asked the court to instruct the jury to find for the defendant, which the court refused, and appellant duly excepted.

The verdict and judgment were in favor of the appellee for $250.

Rose, Hemingway, Cantrell & Loughborough, of Little Rock, for appellant. Gus Fulk, and Bradshaw, Rhoton & Helm, all of Little Rock, for appellee.

'Boullion, the house has been robbed and there have been some forgeries. You acknowledge to signing these tickets, and it is up to you to make settlement.' That Boullion then said: 'Do you mean to charge me with robbery and forgery?' To which Fisher replied: 'You need not try to throw anything over my eyes. We are not asleep You have acknowledged to the handwriting, and it is up to you to make settlement'-implying that Boullion had committed some species of larceny and forgery." Appellee prayed for $10,000 actual damages and $5,000 punitive damages. The appellant denied that its auditor meant any injury to the good name and character of appellee, and denied that he spoke the words set out in the complaint. It denied that its auditor used any language which either charged or implied that appellee had been dishonest or had committed any forgery, or had been guilty of appropriating to his own use any WOOD, J. (after stating the facts as money belonging to appellant. It set up above). In Lindsey v. St. L., I. M. & S. Ry. that, if the auditor used the language al- Co., 95 Ark. 534, 129 S. W. 807, Lindsey sued leged, such language was not within the the corporation for slander. He alleged that scope of his employment and was not au- the slanderous words were spoken "by spethorized by appellant; and, further, that, if cial agents in the employ of defendant for such language was used, it was without ap- the purpose of finding said missing cotton pellant's knowledge or consent, and it had and said charge was made by them in furnot at any time adopted or ratified the same. therance of the defendant's business, which The testimony on behalf of the appellee they were employed to do for the purpose of tended to show that he was in the employ ascertaining whether plaintiff was the guilty of appellant as shipping clerk. His duties person or had guilty knowledge of the matwere to see that the stock of meats was ter, and of inducing him, if guilty, to contaken care of and to wait on the people, see fess it," etc. Lindsey contended that the that their orders were filled, and to send slanderous words uttered by the agents of out merchandise on orders which came in. the railway company while engaged in ferOn the 19th of January, 1911, one Fisher, reting out the crime were within the scope an auditor of the appellant, was in the of- of their employment and that the company fice of the company checking up the office. was liable to him for slander. The court, in On that occasion Fisher, in a conversation passing upon his contention, said: "Slander with appellee, in the presence of other em- is unlike other torts. It is the individual ployés of appellant, used the language, ad- act of him who utters it, and often arises dressed to appellee, set out in the complaint. entirely out of his momentary feelings and The language was used while the auditors passions, without forethought on the speak were making an investigation of sales ticker's part. It is such an act as cannot be ets which had been made out by the appellee, anticipated, and for that reason cannot be and which appeared to have been altered. The investigation showed that there was a shortage, and the appellee testified that the auditor of the appellant used the language above, intending to accuse him of forgery and larceny. The testimony on behalf of appellant tended to show that its auditor did not use the language set out in appellee's complaint. The auditor of the appellant, to whom the language was attributed, testified that the conversation he had with appellee was for the purpose of trying to find the guilty party. In so doing he was carrying out the business of the company In Waters-Pierce Oil Co. v. Bridwell, 147 intrusted to him. He denied that he used S. W. 64, the plaintiff sued the oil company the language set up in appellee's complaint, and its agents for slander alleged to have but stated that whatever conversation he been committed by making defamatory statehad with the appellee was with a view of ments in regard to the inspection and quality "trying to locate who the guilty party was." of the oil which plaintiff was engaged in sell

impliedly authorized in advance. Hence it has been held that the utterance of slanderous words by an agent of a corporation must be ascribed to the personal malice of the agent who uttered them, 'rather than to the act performed in the course of his employment and in aid of the interest of his employer,' and the corporation must be exonerated 'unless it authorized, approved or ratified the act of the agent in uttering the particular slander.' Here proof of agency will not be sufficient to prove such authority or ratification."

of the Waters-Pierce Oil Company, while engaged in selling its oil, stated to the customers of the plaintiff that his oil would not stand the test prescribed by the inspection laws of the state of Arkansas, and that both plaintiff and his customers in selling said oil were acting in violation of the criminal laws of the state." It was alleged that the statements were made of and concerning plaintiff's business, and were injurious thereto. The court in that case used the following language: "There is some conflict of authority in respect to the liability of a corporation for slander, but, inasmuch as a corporation must transact its business and perform its duties through natural persons, it is now well settled that a corporation is liable in damages for slander as it is for other torts. To establish its liability, the utterance of the slander must be shown to have been made by its authority or ratified by it, or to have been made by one of its servants or agents in the scope of his employment and in the course of the business in which he is employed."

his employment or the duties incident to it." Applying the doctrine of the above cases to the undisputed facts in this record, we must hold that the appellant was not liable. The court therefore erred in not granting appellant's instruction No. 1, asking an instructed verdict, and in overruling appellant's motion for a new trial.

The judgment is therefore reversed, and the cause dismissed.

CENTRAL RY. CO. OF ARKANSAS v.
LINDLEY.

(Supreme Court of Arkansas. Nov. 18, 1912.)
1. RAILROADS (§ 233*)-INJURIES TO PERSON
ON TRACK-STATUTES-NECESSITY OF KEEP-
ING LOOKOUT-"TRAIN."

A motor car for passengers operated by a railroad company is a "train" within Acts 1911, p. 275, requiring persons running trains to keep a constant lookout for persons and property on the track.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. § 747; Dec. Dig. § 233.*

For other definitions, see Words and Phrases, vol. 8, pp. 7056, 7057.]

2. RAILROADS (§ 441*)-INJURIES TO STOCK ON TRACK-DUTY OF KEEPING LOOKOUT— BURDEN OF Proof.

Under Acts 1911, p. 275, requiring persons running trains to keep a constant lookout for persons and property on the track, and placing on the railroad the burden of showing, in an action for an injury, that such lookout was kept, proof by a plaintiff in an action for the death of and injury to horses on a railroad trestle which would justify an inference that such property had been injured in the operation of the train, and that the danger might have been discovered, and the injury avoided, had a lookout been kept, would cast upon the defendant the burden of showing that a lookout was kept.

[Ed. Note. For other cases, see Railroads, Cent. Dig. 88 1575-1595; Dec. Dig. § 441.*] 3. RAILROADS (§ 446*)-INJURIES TO STOCK ON TRACK-DUTY TO KEEP LOOKOUT — EVI

DENCE.

[1] The undisputed evidence in this case shows that it was the duty of appellant's auditor to investigate the accounts of its employés and to ascertain if there were shortages, and to gather the evidence tending to show who was responsible, but he did not have authority to accuse any one of crime in connection with such defalcations. He could select his own methods and use his own judgment in making his investigations and in getting up the evidence; but he was not authorized to make arrest or make criminal charges against any one. Conceding, therefore, that the language charged in the appellee's complaint was slanderous, there is no testimony to warrant the conclusion that this language was uttered by the agent of the appellant in the course of his employment or within the scope of his authority, Where, in an action for injury to horses nor was there any evidence tending to show on a railway trestle under Acts 1911, p. 275. that the alleged slanderous words were rati- requiring persons running trains to keep a confied by the appellant. The facts of this stant lookout for property on the track, there record are similar to the facts in Lindsey was evidence that there was only one person beside the motorman in the motor car alleged v. St. L., I. M. & S. R. Co., supra. The agent to have caused the injury, testimony that at in that case at the time of the alleged slan- a point on the line near where the accident derous words was engaged in ascertaining occurred there was loud talking and hallooing by the persons in the car was properly admitwho committed the crime of stealing or tak-ted to show that the motorman was not keeping cotton from the railway company. Judge ing a lookout. Hart, speaking for the court, in the case [Ed. Note. For other cases, see Railroads, of Waters-Pierce Oil Co. v. Bridwell, supra, Cent. Dig. §§ 1627-1641; Dec. Dig. § 446.1 in approving the doctrine announced in Lind- 4. RAILROADS (§ 442*) ON TRACK-ACTION-EVIDENCE. sey v. Railway Co., supra, said: "In that In an action for injury to horses on a railcase the railway company had sent a special way trestle, evidence held not to warrant diagent to trace some cotton which was miss-recting a verdict for the defendant. ing, and the special agent accused the station agent at Monticello of stealing it. The Cent. Dig. §§ 1596-1607; Dec. Dig. § 442.*] full measure of his duty was to trace the missing cotton, and his conduct in insulting the agent was entirely beyond any authority given him either expressly, or which could be fairly implied from the nature of

INJURY TO STOCK

[Ed. Note.-For other cases. see Railroads,

Appeal from Circuit Court, Yell County; Hugh Basham, Judge.

Action by P. C. Lindley against the Central Railway Company of Arkansas. From

a judgment for plaintiff, defendant appealed. Affirmed.

P. C. Lindley sued the Central Railway Company of Arkansas in the circuit court for $750 alleging that on the 15th of October, 1911, the defendant's servants engaged in running a motor car and train from Ola to Plainview so negligently ran and operated the car and train as to cause two mares to be killed and one to be injured. The answer denied negligence. The facts are substantially as follows: The railway company operated a motor car from Plainview to Ola for the purpose of carrying passengers. was built with a deck with springs, and its capacity is six or eight passengers. The engine is a small type motor, slow speed, and is on the deck of the car. One man runs the car. On the 15th day of October, 1911, A. T. Reed, one of the servants of the company,

It

ran the car from Plainview to Ola, and came back with a passenger. He arrived at Ola about 5 o'clock in the afternoon, and started back about 7 o'clock p. m. He had one passenger, who was also an employé of the railway company. On his return, when within about 150 yards of bridge No. 9, he discovered three horses on the bridge. The bridge or trestle was about 90 feet long, and the horses were on the end next to the approaching car Reed was not able to extricate the animals from the bridge, and abandoned his car and walked on to Plainview,

which was about two miles distance.

that he lived about one mile from Ola, and
at a distance of about 250 feet from the

railroad track; that he heard the car pass
on its return to Plainview, and heard some
persons on the car hallooing. He does not
think the motor car was going faster than
it usually did, and said that its usual speed
On cross-ex-
was 14 or 15 miles per hour.
amination he stated that he heard the hal-
looing about two miles from the bridge
where the mares were killed and injured, and
does not think it was loud enough to alarm
the horses at the bridge.

Another witness testified that he lived

about 200 yards from the railroad, and
something over a quarter of a mile from
were killed
the bridge where the mares
He heard the motor car go
and injured.
On the return trip he
to Ola and back.
heard some people on the car talking and
laughing.

A. T. Reed, for the defendant, testified that he ran the motor car on the day in question. He says he was keeping a sharp lookout for persons and objects on the track, and did not discover the animals until they were on the bridge; that he was going at the rate of eight miles per hour when he discovered the horses; that he had no light on the car, but from the starlight he could see about 150 yards in front of the car; that he was looking straight ahead, keeping a close lookout for anything that might be in

front, and that he was about 150 yards from the bridge when he saw the animals on it; that he shut off his power and let his car drift within 150 feet of the bridge; that he found it was impossible to do anything towards extricating the animals.

There was a verdict for the plaintiff in the sum of $300, and from the judgment rendered the defendant has appealed to this

court.

P. C. Lindley, the plaintiff, testified: "The next morning after the horses had become entangled in the bridge, I learned of the occurrence, and went to the scene of the accident. Two of the horses were found dead near the bridge, and I recognized them as my horses. Another one was found on the right of way nearby. Its feet and belly were badly scarred. It was also my horse. I examined the railroad track and found Hill, Brizzolara & Fitzhugh, of Ft. Smith, my horses' tracks on the railroad for about for appellant. Sellers & Sellers, of Morril300 or 400 yards back from the bridge. The ton, for appellee. tracks of my horses were going towards the bridge, and, when I got in about 150 or 200 feet of the bridge, it looked as if the tracks were plainer. The tracks appeared as if the horses were running faster, or at least that they had struck the ties, and in some places had torn pieces or splinters off of them. I have often had occasion to notice the tracks of horses going at a rapid rate of speed and tracks of horses walking along. The tracks as they got nearer to the bridge indicated that the horses were running faster. The ties on the railroad track where the horses went on the bridge were scarred and torn up, as if the horses were running. The ties were torn up for about 30 or 35 feet. The plaintiff also testified as to the value of the horses that were killed and the amount of damage to the one that was injured."

HART, J. (after stating the facts as above). [1] Counsel for the defendant say this action is based on the lookout statute, making it the duty of all persons running trains in this state to keep a constant lookout for persons and property on the track, and contends that a motor car is not a train within the meaning of the statute. In the case of Little Rock & Ft. Smith Ry. Co. v. Blewitt, 65 Ark. 235, 45 S. W. 548, the court held that an engine is a train within the meaning of the statute. See, also, Railway v. Taylor, 57 Ark. 136, 20 S. W. 1083. The motor car in question was run by the defendant company for the purpose of carrying passengers over its line of railroad, and we think was a train within the meaning of the statute.

[2] 2. It is next contended that the court

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