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fault against him. The cause was dismissed before trial as to W. B. Worthen and Geo. R. Brown. Appellants Davis and Ward answered, denying specifically each allegation of the complaint. A trial by jury was had upon the issues raised by their answer, which resulted in a verdict in favor of the plaintiffs for $2,000, and they appealed to this court.

Appellants asked a peremptory instruction to the jury to return a verdict in their favor, and they now urge that the verdict against them is without testimony to support it. In testing the sufficiency of the evidence we must give it the strongest probative force of which it is susceptible in favor of the verdict of the jury.

The suit in which the services of appellees were performed was against a railroad corporation and R. W. Worthen, its principal stockholder and manager. He employed appellees as attorneys to defend the suit, and it is not claimed that either of appellants had anything to do with the employment of attorneys, or that any mention was ever made to them, until after the termination of the suit, that they would be expected to pay any part of the fee. Appellants each owned stock of the face value of $100 in the railroad corporation, but which was of no value at the time of the pendency of the suit in question, as the corporation was then insolvent. They were directors in the corporation, and this stock was given to them by R. W. Worthen, who owned substantially all the stock, to qualify them as directors. They were also trustees of the estate of Zeb Ward, deceased, which estate held a large amount of bonds issued by the railroad company. Appellant Zeb Ward, Jr., and the wife of appellant Davis were two of the five heirs of Zeb Ward, deceased. Col. Trimble and Mr. Lankford, of appellees, both testified that they were employed by R. W. Worthen in 1893 to defend the suit, and that some time between that time and the trial of the case in 1896 they consulted with Davis, in Little Rock, concerning the suit; that Davis manifested considerable interest in the suit, and attended the trial. They say that he was sworn as a witness in the case, and claimed the privilege, as a party in interest, of exemption from the rule of the court excluding the witnesses from the courtroom during the trial. Neither of them testify, however, that he employed them in the suit, or agreed, before the trial, to pay the fee, or that anything was said about the fee or employment. Col. Trimble testified that some time after the trial he approached Davis about payment of the fee, and the latter declined to pay it, but said that the attorneys ought to have something, and that he (Davis) was going to get together Worthen and others, who were interested, and consult about it. Mr. Lankford testified that a short while after the trial he called to see appellant Da

vis in Little Rock about the fee, and he relates the substance of the interview with Davis as follows: "I remember when I saw Mr. Davis he put me off by saying he would have to see Mr. Worthen; that they had some matters to fix up; and said for me to see Worthen. I told him I needed the money. He said, 'Well, you will get your fee; you need not be uneasy about it.' He said: 'We have got to have a little straightening upthe Wards and Worthen-and I don't know whether we ought to pay it or he. Wait and see him.'" It is further shown that after the trial of the Harr suit a bill of exceptions was filed preparatory to appeal to this court, but the appeal was not perfected, and Davis and the other trustees of the Zeb Ward estate paid the fees of the stenographersomething over $200-for services in the trial and in making a transcript of the testimony. Some time during the period mentioned-the precise date not appearing-the railroad company was, in a suit instituted by the bondholders in the federal court, placed in the hands of receivers, and Davis and W. B. Worthen were appointed receivers. This is all the evidence throwing any light upon the connection of appellants with the Harr suit or the employment of appellees as attorneys. Is there sufficient to warrant a finding that either of the appellants expressly or impliedly undertook to pay any part of the fee due appellees for services? We think not. It is admitted that neither of appellants made any contract with appellees, and that appellees had been employed by Mr. Worthen, the manager of the railroad corporation, before the pendency of the suit was brought to the attention of appellants. It is not contended that they ever did more than to manifest such interest as was consistent with their duties as directors in the railroad corporation and as trustees of the Zeb Ward estate. They had a right to display that much concern in the suit without impliedly making themselves personally liable for the fees of the attorneys who had already been employed by one in authority to conduct the defense of the suit for the railroad company.

Learned counsel for appellees contend that appellants were interested in the result of the suit, and knew of the services being performed by appellees, and that this fact is sufficient to bring the case within the rule that, where an attorney performs services for another with his consent, and there is no agreement for compensation, the law will imply a contract to pay what the service is reasonably worth. This is a familiar principle, and has been repeatedly applied by this court. Ford v. Ward, 26 Ark. 360; Hogg v. Laster, 56 Ark. 382; 19 S. W. 975; Lewis v. Lewis' Estate (Ark.) 87 S. W. 134. It does not, however, always follow that because one receives the benefit, directly or indirectly, of the services of another, the law implies a contract to pay therefor. Roselius v. Dela

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chaise, 5 La. Ann. 481, 52 Am. Dec. 597; Rives v. Patty (Miss.) 20 South. 862, 60 Am. St. Rep. 510. Each case must stand upon its own peculiar facts. But the facts of this case lack the essentials for an application of this principle, for the reason that appellants were not parties to the suit, and appellees were employed by another. If appellants had, by their course of conduct, induced appellees to render the service, or if they had been parties to the suit, and remained silent and accepted the services of appellees, even though employed by another, the law would imply an agreement on their part to pay for the service. But, inasmuch as they had already been employed to defend the suit, appellants had the right to assume that a display of interest in the suit on their part would not be taken as an implied agreement to pay the fee; and, on the other hand, appellees, after having been previously employed by Worthen, the manager of the railroad, to defend the suit brought against him and the railroad, had no right to assume from such display of interest by appellants that they would pay the fee. pellants were acting in a representative capacity as directors of the railroad corporation, and had the right, and it becomes their duty, to manifest a degree of interest in the suit without incurring personal liability for the fee. No intimation was given them during the pendency of the suit that they would be called upon to pay any part of the fees, and nothing was said or done, so far as appears from the testimony, to call for a disclaimer of any willingness to become responsible for the fee. We see nothing whatever in their conduct from which an agreement to pay for the services of the attorneys can be implied. It is not contended that appellants are bound by the statements or assurances made by Davis to appellees after the trial concerning payment of the fee. There was no consideration for a contract made at that time after the performance of the services for payment of the fee. Giving to the evidence its fullest probative force in favor of the cause of action of appellees, it fails entirely to establish any contract, either express or implied, on the part of appellants to employ appellees, or to pay them a fee for services performed in the suit named. It proves neither a contract nor facts or circumstances from which one can be implied.

The verdict not being sustained by sufficient evidence, the judgment must be revers

ed, and remanded for a new trial. It is sc ordered.

HILL, C. J., and WOOD, J., dissent.

HILL, C. J. (dissenting). S. L. Harr brought suit for about $77,000 against the Mississippi & Little Rock Railway Company and R. W. Worthen, its president. Worthen employed McClintock & Lankford, a firm of lawyers, to defend the suit, and later Trimble to assist them. The services were performed, and that the amount recovered is a reasonable fee is not disputed. The railway company was hopelessly insolvent, a fact known to all parties in this litigation. Worthen was a large stockholder and bondholder, and his bonds were pledged to the Ward estate for borrowed money. Appellees have an unsatisfied judgment against him for their fees, and presumably he is insolvent. Shortly after the employment of these lawyers, they got into communication with Oscar Davis, the appellant, who evinced much interest in the litigation. He was a nominal stockholder of the railroad company, and its receiver. His wife was one of the heirs of Ward, the principal creditor of the road, and he was a trustee of the Ward estate. He had such conferences with the attorneys as any client would have, and they looked to him to bring the necessary witnesses to the trial, which he did, and pay the expenses thereof. He attended the trial, claimed the privilege of staying in court as a party in interest instead of being excluded as a mere witness. He paid part of the expenses of the trial, his brother-in-law Ward paid the witnesses, and Davis paid, after the trial, the stenographer's fees for making the transcript. After the trial he assured both Lankford and Trimble that their fees would be paid. The whole course of proceedings indicated he was the real client, and his interest would naturally make him so, while the nominal parties were the insolvent railroad and its bankrupt president. Under these circumstances, where the services were for the benefit of the party, and he knowingly accepts them, very slight evidence is required to raise an implied contract to pay for them.

The evidence which the jury credited on all conflicting matters, was sufficient, in our opinion, to raise an implied contract, and the judgment ought to be affirmed.

WOOD, J., concurs in this opinion.

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3. HOMICIDE-COOLING TIME-EFFECT.

Where defendant and deceased had been engaged in an altercation, and there was thereby created in the mind of defendant such a degree of anger or terror as to render him incapable of cool reflection, and there was a cessation of the difficulty, and the defendant thereafter renewed the difficulty and killed deceased with a pistol, and the renewal of the difficulty was after sufficient cooling time, and for his reason to interpose so as to comprehend the consequences of the act about to be committed, the killing was not manslaughter.

[Ed. Note.-For cases in point, see vol. 26, Cent. Dig. Homicide, §§ 62, 63.]

4. SAME-SELF-DEFENSE.

The mere pursuit of a person with intent to bring on a difficulty does not deprive the pursuer of the right of self-defense, where, after coming up to the pursued, the pursuer does no act with intent and calculated to provoke the difficulty.

[Ed. Note. For cases in point, see vol. 26, Cent. Dig. Homicide, §§ 146, 150.]

Brooks, J., dissenting in part.

Appeal from District Court, Falls County; Waller S. Baker, Special Judge.

Wallace Franks was convicted of murder in the second degree, and he appeals. Reversed.

Tom Connally and Rice & Bartlett, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

BROOKS, J. Appellant was convicted of murder in the second degree, the penalty assessed being confinement in the penitentiary for a term of 25 years.

The first bill of exceptions shows that, in the formation of the jury, William Eggerton was summoned as a talesman, and afterwards sat upon the trial. Upon his voir dire examination he was asked whether he had formed or expressed an opinion relative to the guilt or innocence of the defendant. He answered that, at the time of the killing of young Galloway by defendant, he said to the person who told him about it, "There goes another plea of insanity." The juror further stated he had no prejudice against defendant, but, like all good citizens, he had a prejudice against the crime of murder. The juror in all other respects qualified. Whereupon defendant at this time had exhausted all of his peremptory challenges, and challenged said juror for cause. The court thereupon inquired of counsel whether the defense would involve the question of insan

ity, and, being answered in the negative, the court overruled said challenge for cause, and had said jury sworn. We do not think there was any error in the ruling of the court. The mere fact that a juror has a prejudice against the crime of murder would not disqualify him; nor can we see how it would injure the rights of the defendant if he had a prejudice against the plea of insanity, when the defendant made no such plea.

Complaint is made by appellant of the following charge given by the court at the request of the county attorney: "If you find from the evidence that, prior to the shooting, deceased, without defendant's consent, seized money that was defendant's property, or that defendant fairly and reasonably believed was his property, and that deceased refused to give up such money, and that deceased and defendant had a difficulty over said money, then, if you believe that they separated, and that thereafter defendant followed deceased up the road, then, if you believe that defendant, in following deceased, did so, not for the purpose of renewing or provoking a difficulty with deceased, but with an honest intention to demand of deceased the return of the money which defendant honestly believed that deceased had wrongfully taken from him, and the deceas ed, in refusing to comply with such demand, was about to make an unlawful attack upon defendant with a knife, of such a nature as to inspire defendant with the reasonable belief that he was in danger of serious bodily injury or death from such attack, and that, acting on such belief, defendant fired the fatal shot, he would be justified in so doing. On the other hand, you are charged that, where the possession of personal property has once been lost, the owner has no lawful right to regain it by such means as result in a homicide. So, in this case, if you believe that prior to the shooting the deceased, without the defendant's consent, seized money that was defendant's property, or that defendant fairly and reasonably believed was his property, and that deceased refused to give up such money, and that defendant and deceased had a difficulty on account thereof, and that after they separated you believe beyond a reasonable doubt that de fendant armed himself and followed deceased up the road, and you further believe from the evidence, beyond a reasonable doubt, that defendant so armed himself and followed deceased with the intention of renewing or provoking a difficulty with deceased, and that thereafter he shot and killed deceased, but if done upon express malice, as defined in the charge, he would be guilty of murder in the first degree, and if upon implied malice, as defined, would be guilty of murder in the second degree, and if done upon the immediate influence of sudden passion, aroused by an adequate cause, as defined in the charge, he would be guilty of manslaughter." Appellant excepted to said

charge, because if defendant renewed the difficulty or provoked the same without the intention of doing serious bodily harm to deceased, and only for the purpose of demanding his money, he would be guilty of no offense, and because said charge, in effect, negatived defendant's right to resist an attack which imperiled his life or inspired him with a reasonable belief of suffering serious bodily injury at the hands of deceased if he provoked or renewed the difficulty, no matter what his purpose or object may have been in so doing. We do not think the charge is erroneous. The words "renew and provoke the difficulty," here used in the charge, are synonymous terms, and, as we understand the law, are an apt presentation of the same to the facts of this case. The substance of the evidence shows that appellant and deceased made a wager of a dollar each that appellant could not throw a certain anvil over his head. They placed the money in the hands of a bystander, and appellant picked up the anvil and threw it over his head. Deceased immediately grabbed all the money out of the bystander's hand. At least, appellant thought so; but the evidence rather indicates that one of the dollars fell upon the floor, and deceased did not get it. However, knowledge of this does not appear to have been brought home to appellant. Thereupon a heated controversy or colloquy ensued between appellant and deceased as to the possession of the money; appellant insisting that he had won the money fairly; deceased insisting that he had not, and re fusing to give it up. Appellant picked up a hammer, deceased drew his knife, and in this posture passed out of the blacksmith shop. Thereupon appellant picked up a piece of iron in a manner indicating he would throw it at deceased. The bystander stepped aside. However, appellant did not throw. Deceased and appellant continued to abuse each other. Appellant went off to his boarding house. Deceased and companion started home. Appellant secured a pistol, came back, hunted deceased, and, discovering that he had started home, ran after and followed him something like 250 yards; hallooing to deceased to stop, which he did. Appellant demanded the money of deceased, which he refused to give up. Appellant at this juncture drew his pistol, and deceased started to run. Appellant fired two bullets into his back as he ran off, and deceased fell, and died instantly. Appellant testified that deceased opened his knife and made a gesture or demonstration as though to stab him with it, and that he fired immediately upon this demonstration being made. Without repeating in detail, this is the substance of the testimony as gleaned from the record.

Appellant asked that the court give the jury the following instruction, which was refused, to wit: "If you believe from the evidence that, shortly before the killing, defendant had won a dollar from deceased,

which deceased refused to deliver, and which he suddenly snatched from the hands of the stakeholder, whereupon a quarrel ensued between deceased and defendant, and in which deceased drew a knife upon defendant and threatened to kill him, and immediately thereafter defendant went to where deceased was, and again demanded possession of said dollar, and deceased again refused to give it to defendant, but began to curse and abuse defendant and to make a demonstration upon defendant as though to draw a knife, and you believe that such facts, acts, and circumstances, taken together, did arouse in the mind of the defendant such a degree of anger, rage, resentment, or terror as to render his mind incapable of cool reflection, and while in such condition he shot and kilied the deceased, you are charged that he could not be convicted of any offense higher than the grade of manslaughter." We do not think this charge was called for by the facts, since the evidence does not show that immediately thereafter defendant went to where deceased was, but, on the contrary, the evidence shows that they separated, defendant going to his boarding house, where he secured his pistol, and some time thereafter followed deceased some distance up the road towards deceased's house, and there shot and killed him. Appellant also asked the court to charge on the right of appellant to kill deceased if deceased had robbed appellant. We do not think this charge should have been given, under the evidence.

Appellant also excepted to the following portion of the court's charge: "You are charged, in this connection, that if you believe from the evidence that prior to the homicide, if any, defendant, Franks, and deceased, Galloway, had been engaged in an altercation of words and threatening gestures, and that there was thereby created in the mind of the defendant, Franks, such a degree of anger, rage, sudden resentment, or terror as to render the defendant, Franks, incapable of cool reflection, and you find that there was a cessation of said difficulty, if any, and that thereafter defendant, Franks, renewed the difficulty, and killed deceased, Galloway. with said pistol, if he did, and you further find that such renewal of the said altercation, if any, was after sufficient cooling time from the original altercation, if any-that is, if there was sufficient time for such anger, rage, sudden resentment, or terror of the defendant, Franks, if any, to subside, and for his reason to interpose to such an extent as to comprehend the consequences of the act about to be committed, if any-then the homicide would not be manslaughter; and in passing upon this question the jury should consider all the facts." Appellant excepted to this charge on the ground "that it was not demanded by the facts in evidence; that there was only a few moments between what the court termed the first and second difficulties, the facts showing that the same

was one continuous difficulty or trouble, without cessation in fact; and because said charge fails to give a definition of "cooling time," and left the jury without a rule in reference thereto; and because upon the subject of cooling time said charge did not require the jury to find as a fact that defendant's mind had in fact become cooled to such an extent as to comprehend the consequences of his act; but the court instructed the jury, as a matter of law, that if sufficient time had elapsed for such anger, rage, sudden resentment, or terror to subside, and for reason to interpose to such an extent as to enable him to comprehend the consequences of the act about to be committed, then the homicide would not be manslaughter; thus withdrawing the issue of manslaughter from the jury, and in effect directing the jury to find against defendant on the issue of manslaughter, even if defendant's mind had not in fact cooled." The evidence, as stated above, shows that there had been a previous difficulty. The parties separated, and some little time thereafter the difficulty was renewed. Clearly, this presents the issue of cooling time. We think the charge of the court is correct. It follows the charge approved by this court in Surrell v. State, 29 Tex. App. 321, 15 S. W. 816. However, appellant cites, to support his contention, the cases of Jones v. State, 33 Tex. Cr. R. 492, 26 S. W. 1082, 47 Am. St. Rep. 46; Eanes v. State, 10 Tex. App. 421; Halliburton v. State, 32 Tex. Cr. R. 51, 22 S. W. 48. In each of the last cases cited the issue of cooling time was not, in law, involved, since the defense alleged in each was insult to a female relative. The statute authorizes reduction of the homicide to manslaughter in such case, regardless of the length of time elapsing between the act or information in reference to the insult, if, as a matter of fact, the deceased's mind was not cool. Hence said issue of cooling time is out of those cases. In Orman v. State, 24 Tex. App. 504, 6 S. W. 544, the defense of insult to a female relative was also involved. There Judge Wilson, delivering the opinion of the court, held that the issue of cooling time was not involved where the defense is insult to a female relative. We take it that a careful inspection of the statute will demonstrate this fact, since the Legislature, in the passage thereof, directly laid down another basis than the ordinary causes for manslaughter. In Wadlington v. State, 19 Tex. App. 266, it was held: "However great the provocation may have been, if there be sufficient time for the passion to subside and for reason to intervene, the homicide will be murder." In this case the proof shows that, after deceased was made to release hold of defendant, some two or three minutes elapsed before defendant fired. The court held that the issue of cooling time should have been charged in connection with the issue of manslaughter. In Jones v. State, supra, the court very properly say "that cool

ing time is not a matter of law, but a matter of fact," but very improperly, as we take it, after a careful review of the authorities, held that the charge given by the court was erroneous, and further erred in holding "that it is not so much a question of time in which the mind may become cool and sedate, as it is one of the actual conditions of the mind at the time the homicide occurred." It is further stated "that the law has not undertaken to prescribe the time in which the mind may become cool, passing from a disturbed or enraged condition, nor can it well do so. It must depend upon testimony, not law." It is further stated that, "if at the time of the homicide the mind of the slayer be cool and deliberate, his crime would be murder in the first degree. If, on the other hand, it was aroused to sudden pas sion, to the point of being beyond cool reflection, brought about by an adequate cause, the killing would usually be of no higher grade than manslaughter. Whether the mind be cool or otherwise is a question of fact, not of law, and relates to the actual condition of the mind, and not to his status merely from a lapse of time." This case is supported by the Eanes and Halliburton Cases, supra, but neither of them, as we take it, announces the correct proposition of law. We agree with said cases that cooling time is a question of fact, but it is the time that is the fact to be ascertained, not the condition of the defendant's mind. If defendant's mind is the fact to be ascertained, then cooling time has nothing to do with the question. Suppose a quarrel occurs between A. and B.; a year passes, and A. meets B. to-day and shoots and kills him. It is doubtful whether the issue of cooling time could be in the case, or whether the issue of manslaughter could possibly be suggested by these facts alone. Then the only connection between the previous difficulty and the final one is the fact that brings the issue of cooling time into the case. Then it becomes a question of fact as to how long a time, or whether sufficient length of time for an ordinary man to cool, has elapsed. This is not a question of law, but a question of fact. If sufficient time has elapsed between the first and second colloquy for a reasonable, rational creature to cool, then the law presumes that he has cooled. He may not be cool, but he cannot insist upon manslaughter from the fact that he has such a disordered mind that it cannot cool in a reasonable time. The law judges defendant by the rule of the average human mind, and, if the average human mind would cool between the first and second difficulty, then the jury are warranted in the presumption that the defendant has an average human mind, and that therefore his mind had cooled. If the jury do not think that time has been sufficient for his mind to cool, then he is entitled to. manslaughter; and, if it has, then he is not entitled to it.

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