board for appraisers to fix the fee for impounding the animal before the institution of the replevin suit. The evidence in behalf of appellant tended to show that the animal had slipped her halter and was feeding near his mules on his own place; that she was young and frisky, and that he concluded it was best to leave her alone until noon and let her follow his mules home; that it was then about 11 o'clock, and he took some tools he had been using to the house, a distance of 200 yards, and, during his absence, the mare was seized by appellees. The evidence on the part of appellees tended to show that the mare was seen in appellees' field the day before she was seized. [1] The warranty for the seizure and retention of the stock in each of the cases must be found in sections 1407, 1408, and 1409 of Kirby's Digest of the Statutes of Arkansas. Section 1407 provides that stock found running at large in any fencing district may be impounded by any person. Animals being closely pursued by owners in an effort to catch them could not be regarded as running at large within the meaning of said section 1407. The agreed statement of facts in the Flowers case fails to show that the horse was being pursued by the owner. While there is evidence in the Nattee case tending to show the owner was in hot pursuit of the mare, yet there is evidence tending to show she was seen in the same field the day before she was seized. So, the finding of the court in each case, to the effect that the animals were running at large, was not contrary to the law and evidence. Section 1408 provides for the return of the stock seized, to the owner, upon payment of a reasonable charge for impounding, feeding, and caring for the stock and all damages to crops occasioned by the trespass. Section 1409 is as follows: "If the parties interested fail to agree upon the amount of such charges and damages, the secretary of the fencing board and the impounder shall each appoint an appraiser, and said appraisers shall adjust and fix said charges and damages, calling in a third party if they cannot agree. It is insisted by appellants that they had a right to maintain replevin upon tender of a reasonable fee for impounding the stock, and that a tender of $1 in the Flowers case was a reasonable fee, and the tender of $2.50 in the Nattee case was in excess of a reasonable fee, and that the court erred in holding to the contrary. It is the contention of appellees that the charges were in dispute, and appellants could not maintain replevin until they exhausted their remedy under section 1409, copied above. This court held in the cases of Phelan v. Bonham, 9 Ark. 389, and Davis v. Calvert, 17 Ark. 85, that the owner of posted animals must comply with statutory requirements with reference to proof of ownership of the property and payment or tender of cost for posting before replevin would lie for the property. By analogy these cases seem to be in point. In another case, the rule announced by this court is: "That the owner of property improperly impounded may recover the possession thereof from the person in whose possession it is found." City of Ft. Smith v. Dodson, 51 Ark. 447, 11 S. W. 687, 4 L. R. A. 252, 14 Am. St. Rep. 62; White v. Clarksville, 75 Ark. 340, 87 S. W. 630; Gregg v. Hatcher, 94 Ark. 54, 125 S. W. 1007, 27 L. R. A. (N. S.) 138, 21 Ann. Cas. 982. [2] The stock in the instant case were properly impounded. The only question for determination is, Did each of the appellants comply with the statutory requirements before he instituted replevin? Our construction of section 1409 of Kirby's Digest is that, where the owner and impounder in good faith differ as to what constitutes a reasonable fee for impounding, feeding, and caring for the stock, or in reference to the amount of damages occasioned to crops by the trespass, the owner of the stock seized must request the secretary of the fencing board and the impounder to each appoint an appraiser to fix the fee as a prerequisite to the maintenance of the replevin suit. If, however, there is no bona fide dispute between them as to the reasonableness of the charges exacted or the amount tendered, then there is no necessity for an arbitration. The exaction of a manifestly unreasonable and unjust amount by an impounder would have the effect of excluding him from the protec tion of the statute. In the Flowers Case, there is no affirmative showing that $5 was an arbitrary exaction by appellees. The appellees may have been to a greater expense than $1 in catching the animal, and, it may be, that their crops were injured to the amount of $5, or more, by the horse; therefore the judgment in that case is affirmed. [3] In the Nattee case, it appears by the undisputed evidence that two men impounded the animal in a short time, and it affirmatively appears that no damage resulted to crops by reason of the trespass. It follows that the exaction of $5 by appellees for seizing the animal and holding her for 15 or 20 minutes was manifestly unjust, unreasonable, and arbitrary. No bona fide dispute existed between the parties as to a reasonable charge for seizing the animal. Appellant offered appellees more than they were entitled to under the undisputed evidence, and their retention of the animal thereafter was unlawful, and, for that reason, the replevin was the proper remedy. The judgment in the Nattee case is therefore reversed and remanded for a new trial. MELL v. STATE. (No. 219.) (Supreme Court of Arkansas. March 11, 1918.) 1. COURTS 74-PLACE OF HOLDING COURT - ADJOURNMENT TO TAKE TESTIMONY OF ABSENT WITNESS. In prosecution for assault with intent to rape, it was error for the court, at the request of the prosecuting attorney, to adjourn to a hotel for the purpose of taking testimony of prosecuting witness, who was ill, and subsequently, after returning to the courthouse, to readjourn to the hotel to take testimony in rebuttal, against defendant's objection. 2. WITNESSES 327-CREDIBILITY-MENTAL COMPETENCY. In a prosecution for assault with intent to rape, exclusion of testimony tending to show the insanity of the mother and sister of the prosecuting witness was not erroneous; no objection having been made to the mental competency of the prosecutrix when she testified. Appeal from Circuit Court, Arkansas County; Thos. C. Trimble, Judge. C. W. Mell was convicted of assault with intent to rape, and he appeals. Reversed and remanded. John W. Moncrief, of De Witt, for appellant. Jno. D. Arbuckle, Atty. Gen., and T. W. Campbell, Asst. Atty. Gen., for the State. HART, J. C. W. Mell prosecutes this appeal to reverse a judgment of conviction against him for the crime of assault with intent to rape. His punishment was fixed by the jury at a term of three years in the state penitentiary, and the evidence adduced for the state was sufficient to warrant the verdict. On the other hand, the testimony of the defendant exonerated him from the charge. [1] The record shows that the prosecuting attorney at the beginning of the trial asked that the court be adjourned to a hotel situated in the town near the courthouse for the purpose of taking testimony of the prosecuting witness. This request was granted by the court against the objections of the defendant. The court and the jury over the objections of the defendant went to the hotel and took the testimony of the prosecuting witness, and then returned to the courthouse for the purpose of conducting the trial. After the defendant had concluded his testimony, the prosecuting attorney again asked the court to adjourn to the hotel for the purpose of taking the testimony of the prosecuting witness in rebuttal. This was granted against the objection of the defendant. The prosecuting attorney made the request in each instance on the ground that the prosecuting witness was too ill to leave the hotel and come to the courthouse and give her testimony there. In several jurisdictions where the question has been raised it has been held, unless prohibited by statute, the trial court may in its discretion adjourn court to the home of a witness to take his testimony where the witness is unable to attend the trial at the courthouse. Davis v. Commonwealth (Ky.) 121 S. W. 429, and Selleck v. Janesville, 100 Wis. 157, 75 N. W. 975, 41 L. R. A. 563, 69 Am. St. Rep. 906. On the other hand, it has been held to be reversible error to adjourn the trial of a criminal case to the home of a witness against the objection of the defendant. Bishop's New Criminal Procedure (2d Ed.) vol. 2, § 1195; Adams v. State, 19 Tex. App. 1; Carter v. State, 100 Miss. 342, 56 South. 454, Anu. Cas. 1914 A, 369; Funk v. Carroll County, 96 Iowa, 158, 64 N. W. 768. We think the trend of our decisions is towards the latter rule. In Dunn v. State, 2 Ark. 229, 35 Am. Dec. 54, the court said: "The common law defines a court to be a 'place where justice is judicially administered,' and therefore to constitute a court there must be a place appointed by law for the administration of justice, and some person authorized by law to administer justice at that place, must be Then, but not otherthere for that purpose. wise, there is a court, and the judicial power of the state may be there exercised by the judge or person authorized by law to hold it; and if the law prescribed no time for holding the court, the judge might lawfully hold it when, and as often, as he chose. So, likewise, if the place was left to his election, instead of being fixed and prescribed by law, he might lawfully sit in judgment, where he pleased, within the territorial limits prescribed to his jurisdiction, but in this state both the time and place of holding the terms of the circuit court in each county are prescribed by law." The court has recognized that in cases of emergency such as the destruction of the courthouse by fire the court itself may se cure other quarters in the county seat for temporary use in the administration of justice. Hudspeth v. State, 55 Ark. 323, 18 S. W. 183; Lee v. State, 56 Ark. 4, 19 S. W. 16. In the case of Williams v. Reutzel, 60 Ark. 155, 29 S. W. 374, it is said that the object of the rule seems to be to obtain certainty and to prevent a failure of justice through the parties concerned or affected not knowing the place of holding court. The manifold mischiefs that might arise from permitting a court to assume a migratory character and travel from place to place in the same locality or even in the same town are manifest. It is apparent that courts are held to determine the rights of all who are properly brought before them, and that numerous cases are pending in the same court at the same time. It would detract from the majesty of the law, lessen the dignity of courts, and cause trouble and injustice to litigants if the courts should be held at any other time or place than that provided by law. follows, therefore, that the court erred in adjourning to the hotel to take the testimony of the prosecuting witness against the objection of the defendant. It [2] Error is assigned because the court refused to allow the defendant to introduce testimony tending to show the insanity of the mother and sister of the prosecuting witness. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes There was no error in the ruling of the court. It is contended that the evidence was competent on the question of the credibility of the witness. No objection was made to the mental competency of the prosecuting witness when she testified, and no question was then raised as to her mental condition. To have permitted the defendant at the trial to have introduced evidence to prove the insanity of her mother and sister would have been collateral to the issue to be tried before the jury, and that was the guilt or innocence of the defendant. by provisions of accident policy need not be That injury resulted from a cause excepted negatived in the complaint; being a matter of affirmative defense which must be averred by the insurer. 4. INSURANCE 646(6)-ACCIDENT-EXCEPTED BY POLICY-BURDEN OF PROOF. The burden is on the insurer to show that the injury resulted from a cause within exceptions of accident policy. Appeal from Circuit Court, Garland County; Scott Wood, Judge. Inasmuch as the judgment must be reversed and the cause remanded for a new trial, we will declare the law applicable to the admission of evidence relating to the mental condition of the prosecuting witness. In the District of Columbia v. Armes, 107 U. S. 519, 2 Sup. Ct. 840, 27 L. Ed. 618, the court said: "The general rule, therefore, is that a lunatic or a person affected with insanity is admissible as a witness if he have sufficient understanding to apprehend the obligation of an oath, and to be capable of giving a correct account of the matters which he has seen or heard in reference to the questions at issue; and whether he have that understanding is a question to be determined by the court, upon examination of the party himself, and any competent witnesses who can speak to the nature and extent of his in-surance policy issued to him by said company. sanity." Suit by B. F. Harrison against the Interstate Business Men's Accident Association of Des Moines, Iowa. Complaint dismissed, and plaintiff appeals. for new trial. Reversed and remanded B. F. Harrison sued the Interstate Business Men's Accident Association of Des Moines, Iowa, to recover on an accident in The complaint alleges that by the terms of the policy he was insured on account of bodily injuries sustained by him while he was en his application, or while engaged in ordinary duties about his residence, or in recreation, effected directly and independently of any other contributing, concurring, or intervening cause, by external, violent or accidental means. His complaint further alleges the following: It is not contended by the defendant that the prosecuting witness was mentally incom-gaged in the occupational duties specified in petent to testify in the case. His contention was that she was subject to insane delusions at times, and it was admissible in order to affect her credibility as a witness and to explain her conduct to prove this fact by witnesses who had personal knowledge of her condition of mind or mental delusions as well as by her acts and conduct on the occasion in question. Wharton's Criminal Evidence (10th Ed.) vol. 1, § 370, A, B; Underhill on Criminal Evidence (2d Ed.) 203; 1 Wigmore on Evidence, §§ 492-497. See, also, People v. Enright, 256 Ill. 221, 99 N. E. 936, Ann. Cas. 1913E, 318, and note, and State v. Simes, 12 Idaho, 310, 85 Pac. 914, 9 Ann. Cas. 1216. For the error indicated in the opinion, the judgment will be reversed, and the cause remanded for a new trial. HARRISON v. INTERSTATE BUSINESS MEN'S ACCIDENT ASS'N OF DES MOINES, IOWA. (No. 231.) (Supreme Court of Arkansas. March 18, 1918.) 1. INSURANCE 464-ACCIDENTAL INJURY"ACCIDENTAL"-COMPLAINT SUFFICIENCY. A complaint, alleging that plaintiff, while asleep, by some means unknown to him, suffered the complete loss of his testicles and bag, showed an "accidental" injury within policy insuring against bodily injuries effected directly and independently of all other causes by acci "On the 15th day of December, 1916, after the execution of said policy and while it was in full force and effect, the plaintiff, while asleep in bed at his home, No. 108 Spencer street, Hot Springs, Ark., by some means unknown to plaintiff, but which he says was external, violent and accidental, he suffered the complete loss of his testicles and bag, whereby he was wholly and weeks from prosecuting and engaging in all of totally disabled for the period of eight (8) his occupational duties and for five (5) weeks from engaging in some of his occupational duties." It also alleges that the insured gave the company due notice of his injuiry in accordance with the terms of the policy, and demanded payment under it, which was refused by the company. The defendant filed a motion to require the plaintiff to make his complaint more definite and certain. The plaintiff amended his complaint by inserting the following: "That the means by which he suffered the complete loss of his testicles and bag were external, violent, and accidental, but to him unknown; that he believes they were severed with a sharp instrument." The defendant filed a demurrer to the com plaint, which was sustained by the court, and the plaintiff refusing to plead further, his complaint was dismissed. From the judg- tion. Ætna Life Insurance Co. v. Taylor, 128 ment rendered, the plaintiff has appealed. 0. H. Sumpter, of Hot Springs, for appellant. M. S. Cobb, of Hot Springs, for appel lee. HART, J. (after stating the facts as above). [1] In sustaining the demurrer the court seems to have proceeded upon the theory that from the allegations of the complaint that the person inflicting the injury must have intended to do it and that it was not therefore "ac Ark. 155, 193 S. W. 540. It follows that the court erred in sustain ing the demurrer to the complaint, and for that error the judgment must be reversed, and the cause remanded for a new trial. forth the property of the husband under Kirby's incident. 184(12) · In divorce action, the husband cannot complain that there was no evidence as to ownership of land, an interest in which was decreed to the wife under Kirby's Dig. § 2684, because, if the husband does not own the land, he is not prejudiced thereby. Appeal from Woodruff Chancery Court; Edward D. Robertson, Chancellor. Action for divorce by Leana Hegwood against Sam Hegwood. Decree for plaintiff, and defendant appeals. Affirmed. E. M. Carl-Lee, of Augusta, for appellant. Roy D. Campbell, of Cotton Plant, for appel cidental" within the legal meaning of that word as used in the policy. This is not the law. In Maloney v. Maryland Casualty Co., 113 Ark. 174, 167 S. W. 845, the court held that if an injury occurs without the agency of the insured, it will be held to be "accidental," even though it may be brought about designedly by another person. Other authorities holding that death or injury by "accident" means death or injury from any unexpected event which proceeds from an unknown and unforeseen cause, happening without the design of the person acted upon, are Lovelace v. Travelers' Protective Association, 126 Mo. 104, 28 S. W. 877, 30 L. R. A. 209, 47 Am. St. Rep. 638, Richards v. Travelers' Insurance Co., 89 Cal. 170, 26 Pac. 762, 23 Am. St. Rep. 455, Paul v. Travelers' Insurance Co., 112 N. Y. 472, 20 N. E. 347, 3 L. R. A. 443, 8 Am. St. Rep. 758, and Button v. American Mutual Accident Association, 92 Wis. 83, 65 MCCULLOCH, C. J. This is an action for N. W. 861, 53 Am. St. Rep. 900. This is in ap-divorce by appellee against appellant. The plication of the rule that policies of insur- court decreed a divorce, and also awarded ance are to be liberally interpreted, and con- appellee her share of appellant's property ditions therein must be construed strictly in accordance with the terms of the statute. against those for whose benefit they are re- Kirby's Digest, § 2684. The grounds alleged served. So far as the allegations of the com- for divorce were that appellant was guilty of plaint are concerned, the injury was "acci- cruel treatment, and offered such indignities dental" within the legal meaning of that term as to render her condition intolerable. The as used in accident insurance policies. grounds for divorce are not set forth in the exact language of the statute, but the allegations taken as a whole are sufficient to constitute a statement of a cause of action on the statutory grounds stated above. The proof was, we think, sufficient to sustain the allegations.. [2] The demurrer admits the allegations of the complaint to be true, and there are no allegations in the complaint from which it could be legally inferred that the injury was inflicted upon the person of the plaintiff with his knowledge, much less by design on his part. Conceding the allegations of the complaint to be true, it is probable, or at least possible, that a third person approached the insured while he was asleep, chloroformed him, and inflicted the injuries on him while he was in an unconscious condition. [3, 4] Some time accident insurance policies contain a provision that the policy shall not extend to injuries or death resulting from intentional injuries inflicted by the insured or by any other person. The fact that the injury or death did result from such exceptions need not be negatived in the complaint, but is a matter of affirmative defense, and must be averred by the insurer. The burden is upon the company to show that the injury or death was caused by a breach of this condi lee. The parties intermarried in the early part of the year 1912, and separated in the year 1917. Appellee has two half-grown sons, and appellant's feeling and conduct toward these boys originated the unhappy state which came to exist between appellant and appellee. The testimony shows that appellant conceived a violent dislike of the boys, and drove them from the home repeatedly, and threatened them with violence, and that he also became abusive and cruel in his conduct toward his wife to such an extent that she was unable to live with him. A state of facts was shown by the testimony which rendered her condition intolerable. The decree was rendered on personal service, and appellant was represented by counsel, but did not tes tify in the case himself or offer the testi- Į tained judgment for the amount and an order mony of any other witness. The testimony sustaining the attachment on an engine, of appellee was corroborated by the testimony of several other witnesses, and we think it was sufficient to justify a decree for divorce. [1, 2] It is also contended that the court had no jurisdiction to award appellee a share in certain town lots, and that it was error to do so for the reason that the lots were not described in the pleadings or proof. The statute makes it the duty of the court in a decree for divorce from the bonds of matrimony, where the divorce is granted to the wife, to award to the divorced wife "onethird of all the lands whereof her husband was seised of an estate of inheritance at any time during the marriage for her life," and that every such final order or judgment shall designate the specific property to which such wife is entitled. Section 2684. The division of the property is a mere incident to the divorce suit, and it is not essential to the jurisdiction of the court that the pleadings should set forth the property. The decree for divorce draws to the court the power to ascertain the description of the property owned by the husband for the purpose of awarding to the divorced wife her share thereof. Of course, there ought to be some evidence of the existence and description of the property upon which the court acts, but appellant is in no attitude to complain, for, if he is not the owner of property, he suffers no injury by the award, and if he does own the property described the divorced wife is entitled to the share which the court awarded to her. Decree affirmed. boiler, fan house, office, and buildings located on lands belonging to George Heim and others. In September, 1915, the property was sold under special execution ven ex at which sale, appellee, J. H. Brock, purchased the property for $332.75 by agreement with Bufford that he was not to pay the amount of the bid until he recovered the property, and that Bufford should receive the full amount of his judgment when the property was recovered. The amount of the bid was credited on the judgment. On the day of November, 1915, J. H. Brock, appellee herein, brought suit in replevin in the Johnson circuit court against the Smokeless Anthracite Coal Company, George Heim, M. J. Heim, Anton Nagle, W. A. Rable, Anton Weisenfels, and others to recover the property, alleging that he was the owner of and entitled to the possession of the property by virtue of his purchase thereof at said execution sale. The defendants answered, denying that plaintiff was the owner of the property, and asserted that the property was owned by George Heim, M. J. Heim, Anton Nagle, W. A. Rable, and Anton Weisenfels, and that the Smokeless Anthracite Coal Company had leased the property from them, and was entitled to the possession thereof under the lease. The cause was heard by the court, sitting as a jury, on the pleadings and oral and record evidence adduced at the trial. The court found that the property was worth $300 when appellants took possession of it after July 22, 1914, and that appellants had placed repairs of the value of $550 on it. A judgment was rendered in favor of appellee for possession of one hoisting engine, one cast iron fan, and one boiler, upon payment of $550 by appellee to appellants for repairs made upon said property, and provided in the judgment that RE-upon failure to pay said sum of $550 within the time fixed, appellee should recover $300, with 6 per cent. interest from appellants. An appeal and cross-appeal have been prosecuted to this court from that judgment. HEIM et al. v. BROCK. (No. 237.)* (Supreme Court of Arkansas. March 18, 1918.) MINES AND MINERALS 69 Where a mining lease gave lessee the right to remove his machinery at the termination of the lease, the lessee should have removed it within a reasonable time after cancellation, and where it was left on the premises for six months and was extensively repaired, the lessee and creditors forfeited their interest therein. Appeal from Circuit Court, Johnson County; A. B. Priddy, Judge. Action in replevin by J. H. Brock against George Heim and others. From the judgment defendants appeal, and plaintiff takes a cross-appeal. Reversed, with directions. Reynolds & Reynolds, of Clarksville, for appellants. W. E. Atkinson, of Clarksville, for appellee. In 1906, George Heim and others owned a body of coal land in Johnson county, Ark., known as the "Duck's Nest," and leased it for a period of 21 years to C. H. Langford. It was provided in the lease that Langford, in the year 1907, should build, construct, and equip a coal-mining plant of 400 tons daily capacity, and should maintain same in good repair. The lease also provided that the "lessees shall have the right to remove all and any machinery placed upon said lands under this contract upon the termination of same." In 1907, Langford transferHUMPHREYS, J. W. C. Bufford began a red the lease to the Superior Anthracite proceeding in attachment for $895.90 against Coal Company. This company installed a the Wilkes-Barre Anthracite Coal Company, large coal-mining plant, and, while operating and, on the 16th day of January, 1915, ob- same, failed in business. The lease and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |