[4] It becomes necessary then to turn to, after the injury and before the trial. At the record of the evidence to ascertain the time of the injury he weighed 193 to 196 whether or not the motion for continuance pounds, and was a very strong, active man. requested by appellant should have been The pain seemed to cover about seven inches granted and whether or not the verdict is in the small of his back. In describing the excessive. We will first discuss the evidence feeling he said that it felt like a thousand to ascertain whether there is enough sub- needles sticking in his back. He could not stantial legal evidence to sustain so large a rest at night; only slept about three or four verdict. The substance of appellee's evidence hours during the night, and the balance of the in the material parts is as follows: He fell time had to sit up in a chair. He could not on his back and was rendered unconscious lie on his back unless he was propped up. until 35 cars had passed him. Just as the Said that he was very nervous, and described caboose reached him he became conscious his nervous condition as a nervous collapse. and felt that every bone in his body was Said that at times he would just collapse and broken. He walked about two blocks to- lie there. Said that he had spells of feeling ward the depot and became deathly sick and as if he were going to die, and could not get sat down. A little later he went to the enough air to relieve him at such times, but depot. A physician examined him, and found that when water was placed on his head he no bones broken. He was suffering and in would get all right. After the injury he was misery. Train No. 45 stopped, and he rode afflicted with very severe headaches, the pain in the smoker to Little Rock. He got a man being over his eyes, and it caused a blurring there to help him on the street car and went such as to interfere with reading fine print. out to St. Vincent's Hospital, where parties After the injury he had to use the urinal receiving injury on the Rock Island were from three to five times at night and seven cared for. After arriving there he went to or eight times during the day. He had no bed. In the afternoon a physician called power to hold his urine when the desire and put strips of adhesive plaster on the seized him, and after he urinated the water small of the back where the injury seemed to kept dribbling. He was 26 years old at the be. The next day was Christmas, and he time of the injury, and when working reguwent to his home in Little Rock on a street larly could earn about $100 a month, but on car and took Christmas dinner, and returned a general average had earned $85 per month. to the hospital that evening. He then went to bed and was up some the next day. He kept getting worse, and the next day procured a pair of crutches. He complained to the physician in charge that he was getting worse and remained in the hospital for about a week or ten days. During this time he was up and down. The physician put more strips of adhesive plaster on his back when the other wore off. Feeling that he was getting worse under the treatment, he left the hospital and went home in an automobile. When he reached home he went to bed, and remained there until the morning of the 17th of January. He then sat up in a rocking chair. At the time of the trial he felt worse than he did ten days after he got hurt. At that time he had no control over the left leg, and could cross his legs only by lifting the lame leg over the well one with his hands. After crossing his legs he could not take the lame limb down without using his hands. He had no feeling in the left leg until he would pinch it a half dozen times. He had no feeling in the injured limb until it was rubbed a long time. He exhibited his leg to the jury, and stated that it was smaller than the well leg, and that it was cold and numb. The jury examined and felt the limb. He walked up and down before the jury and claimed he could not stand on the lame limb without the use of his crutches. He claimed that the movement caused a pain and misery in the small of his back. He said that he had no control whatever over the limb and had to drag it as he walked. He had lost 25 pounds He was corroborated as to the extent of his suffering by his sister. There was a sharp conflict as to the nature and extent of the injury between the medical experts who testified for the appellee and those who testified for appellant. The two who testified on behalf of appellee in substance say that appellee received a permanent injury in five lumbar vertebræ involving the spinal cord in such a way as to impair the nerves that control the motion of the left leg. As a result of the injury appellee lost control of the left leg and a part of the sensation therein, and the foot became cold and clammy, and had atrophied one inch at the time of the trial. The nervous system had degenerated on the left side. In the opinion of these medical experts, ample time had elapsed for improvement in the condition of appellee, but, instead, he had grown worse and was permanently injured. The medical experts who testified on behalf of appellant regarded the injury as a slight one and temporary in its effect. They prognosed the injury to be neuritis traumatic, or an inflammation of the nerves caused by a blow. In their opinion, the limb had not diminished or withered, and appellee would recover from the injury in four to eight months. There was a sharp conflict be tween these experts, and each one was compelled under grilling cross-examination to give the reasons for arriving at his conclusions. The expectancy of appellee at the time of the trial was 38 years. He was a splendid per month. and title passing to him, on acceptance by the Cent. Dig. 88 256-271, 363.] specimen of manhood. His earning capacity | averaged about $85 per month, and when he had regular work he could earn about $100 He was engaged in a line of work where promotions are not infrequent and an increase in pay might reasonably be expected. TION-ALLOWANCE FOR DIVISION POINT. The provision of Acts 1907, p. 456, § 2, as [5] If the jury accepted the evidence of to distance per day a railroad must carry forappellee and his expert witnesses as correct-ward freight, allowing 24 hours "at each point 2. CARRIERS 176 TIME FOR TRANSporta where transferring from one railroad to another a shipment by carload lot, as well as a shipment or rehandling of freight is involved," applies to in less quantity, at a division point, where the car is transferred from the train in which it arrives to another. Cent. Dig. §§ 766-774.] 3. COSTS 173(1)—ATTORNEY'S FEE-ACTION Kirby's Dig. § 6621, providing that in any action against a railroad for violation of a law tiff shall recover a reasonable attorney's fee, to regulating transportation, the successful plainbe taxed as costs, applies to an action for the penalty provided by Acts 1907, p. 456, § 2, for failure to forward freight at the speed thereby provided. Dig. § 688.] ty; G. W. Hendricks, Judge. ly revealing the nature and extent of the injury, then it follows that there was a serious, permanent injury that practically destroyed the comfort, pleasure and, earning capacity of a stalwart young man. The jury had a right to believe this testimony and must have given great credence to it. We cannot say to the jury what witnesses they shall believe or disbelieve. There is ample evidence here, if believed, upon which to base a verdict for $20,000. St. L., I. M. & S. R. Co. v. Osborne, 95 Ark, 310, 129 S. W. 537. [6] Was it an abuse of the trial court's discretion not to grant a continuance in order to test out whether this was a permanent or temporary injury? The trial was had about three months after the injury occurred. Both parties were present and ready for trial. Before appellee could recover it was necessary for him to make out his case by a preponderance of the evidence, and the burden was upon him to establish the nature and extent of his injury. The ground assigned for a continuance does not come within any of the well-known statutory grounds for continuance, so it was a matter wholly and purely within the sound discretion of the trial court to grant or refuse. No flagrant abuse of this discretion has been pointed out. There is nothing to indicate that the refusal agreed statement of facts, which may be sumSMITH, J. This cause was tried upon an to grant the continuance was an arbitrary marized as follows: exercise of the court's discretion. It has The appellant railroad been uniformly held by this court that the company operates a line of railroad from and granting of continuances is within the sound Arkansas on this railroad, 147 miles west through this state. Hartford is a station in discretion of the trial court, and, unless of Little Rock, which is also located on said clearly abused, a refusal to grant a contin- railroad. Between the stations of Hartford uance will not work a reversal of the judg- and Little Rock is located the station of ment. Ft. Smith & Van Buren Dist. v. Scott, Booneville, which is a division point on said 103 Ark. 405, 147 S. W. 440; Taylor v. Gum-line of railroad. Carload freight, consigned pert, 96 Ark. 354, 131 S. W. 968. against the Chicago, Rock Island & Pacific Action by the Consumers' Coal Company Railway Company. Judgment for plaintiff, and defendant appeals. Modified and affirmed. Thos. S. Buzbee, Geo. B. Pugh, and Chester L Johnson, all of Little Rock, for appellant. Marvin Harris, of Little Rock, for appellee. Finding no error, the judgment is affirmed. Booneville, destined for points east of Boonefrom Hartford, and other stations west of CHICAGO, R. I. & P. RY. CO. v. CONSUM ERS' COAL CO. (No. 212.) (Supreme Court of Arkansas. March 5, 1917.) 1. CARRIERS 76 DELAY IN TRANSPORTATION-RIGHT OF ACTION. ville, are handled into the station of Booneville by trains which terminate at said point, and the said trains are broken up and cars containing freight for eastern points are classified and placed in other trains, to be carried on to the respective destinations of said freight. That cars loaded with coal, Acts 1907, p. 456, § 2, declaring that a rail- with correct shipping instructions, were deroad not transporting shipments in the time livered to the railroad company by various thereby prescribed shall forfeit and pay "to the coal companies located at Hartford, and by shipper," a certain amount per day on demand "by the shipper, or other party whose interest is the Midland Valley Railroad Company, conaffected by such delay," gives the penalty and signed to the Consumers' Coal Company at cause of action therefor to the person whose Little Rock, which company was the plaininterest suffers from the delay, and so in case of tiff below. That the total number of days, a shipment of goods sold f. o. b., to the buyer to whom they are consigned; there being a deliv- or fraction thereof, of delay of said cars of ery to him, so far as the seller is concerned, coal, after deducting the free time allowed at [1] It is first insisted that the plaintiff below had no right to maintain this suit, for the reason that he is not a shipper within the meaning of the Act. The act provides that the railroad company "shall forfeit and pay to the shipper the sum of five dollars per car per day." But it will be observed that the cause of action is conferred "upon demand in writing by the shipper, or other party whose interest is affected by such delay." the station of Hartford, Sundays, and holi-1 days, and using three days as the time with in which defendant was required by law to move said cars of coal from Hartford, Ark., to Little Rock, Ark., amounted to 118 days. That by using the period of 4 days as the basis of computing the delay to said cars, the total number of days' delay amounted to 51. That the coal contained in said cars was purchased by the plaintiff, f. o. b. mines at Hartford, and other points on the Midland Of course, only a single cause of action Valley Railroad, and the bills of lading is- is given to sue for this penalty, and that suit sued to cover the shipments of coal consign- must be brought by the person upon whom ed to plaintiff at Little Rock were signed by the cause of action is conferred. That perthe individual or company which delivered son is the shipper, or other party whose inthe cars of coal to either the defendant rail-terest is affected by the delay, if we are to way company or its connecting carrier, the give the act the construction it should have Midland Valley Railroad Company. That the to carry out the obvious intention of the coal was bought by plaintiff at certain prices Legislature. Statutes which are both remef. o. b. mines, and the freight thereon was dial and penal, as is this one, must be so paid by plaintiff on delivery before it was construed. Lewis' Sutherland on Statutory delivered to plaintiff's customers at the re- Construction (2d Ed.) §§ 337, 532 and 526. quest of the plaintiff, the customers paying the freight bills in such cases and deducting the amount of the freight bills from the prices agreed upon for the coal. The court awarded judgment for plaintiff for $590, the full amount sued for, that is, for the penalty of $5 per day for 118 days, and assessed an attorney's fee in favor of plaintiff's attorney, and this appeal has been prosecuted to reverse that judgment. This suit was instituted under the authority of Act No. 193, Acts 1907, p. 453. Section 2 of this act provides that, when freight in carloads or less is tendered to a railroad company, and correct shipping instructions given, the railroad, upon receiving such freight, must carry it forward at the rate of not less than 50 miles per day of 24 hours, computing from 7 o'clock a. m., the day following the receipt of shipment, and for failure to receive and transport such shipments within the time prescribed, "the railroad company so offending shall forfeit and pay to the shipper" the sum of $5 per car per day, or fraction thereof, on all carload freight, and one cent per hundred pounds per day or fraction thereof, on freight in less than carloads, with a minimum charge of five cents for any one package, upon demand in writing by the shipper, or other party whose interest is affected by such delay "provided, that in computing the time of freight in transit, there shall be allowed twenty-four hours at each point where transferring from one railroad to another or rehandling of freight is involved, and in all computation of time between shippers and carriers, Sundays and legal holidays are to be excluded." There are other provisions in this section covering the shipment of live stock, and the allowance of time for delay resulting from accident, or other cause which the railroad company could not prevent, which is unimportant here. It was evidently the intention of the Legislature to give this penalty to the person whose interest suffered as a result of the delay. Why otherwise would the party "whose interest is affected by such delay" make demand for the penalty unless he was entitled to receive it? To give the act any other construction would defeat its application to the great majority of all shipments. In the case of Isbell-Brown Co. v. Stevens Gro. Co., 118 Ark. 17, 175 S. W. 1158, it was said: "It is the settled law in this state that as soon signed to a vendee, the title passes to the vendee as a vendor delivers property to a carrier conand for any delay in shipment, the rendee's remedy is against the carrier. Brownfield v. Dudley E. Jones Co., 98 Ark. 495 [136 S. W. 664]; Roberts Cotton Oil Co. v. Grady, 105 Ark. 53 [150 S. W. 150]; Templeton v. Equitable Mfg. Co., 79 Ark. 456 [96 S. W. 188, 116 Am. St. Rep. 88]." In the case of W. & O. V. Ry. Co. v. Southern Lbr. Co., 115 Ark. 221, 170 S. W. 998, a consignor sued to recover the value of a carload of lumber which had not been delivered to the consignee. It was there insisted that the consignor was not the owner of the goods, and therefore had no right to sue. We said: "It is earnestly insisted by counsel for defendant that the plaintiff, as consignor, is not the owner of the goods, and therefore has no right to sue. contention is well founded, and that the plainWe are of the opinion that this tiff has failed to establish its right to sue for the failure to deliver. It is undisputed that the sale of the carload of lumber by plaintiff to its customer in Pottsville was unconditional, and that it delivered the same to the carrier for shipment in accordance with the directions of the those circumstances constituted a delivery to purchaser. The delivery to the carrier under the purchaser and completed the sale, the title to the goods then being in the consignee. Rob erts Cotton Oil Co. v. Grady, 105 Ark. 53 [150 S. W. 150]. Any loss or damage thereafter sustained fell upon the purchaser as the owner of the goods, and he alone is entitled to sue." BARRETT v. BERRYMAN 95 St. L. ance with this opinion, and, as modified, afThe judgment will be modified in accordfirmed. BARRETT et al. v. BERRYMAN et al. (No. 215.) (Supreme Court of Arkansas. March 5, 1917.) 1. APPEAL AND ERROR 256-REVIEWNECESSITY OF EXCEPTIONS IN LOWER COURT. Where no exception was saved to court's overruling of motion to dismiss for failure to the ruling will not be reviewed on appeal. attach an itemized account to the complaint, Upon the acceptance of these cars of coal, lating the transportation of freight by such by the railroad company for shipment, the railroad company, and the attorney's fee was title thereof passed to the plaintiff, and there therefore properly assessed as costs. was a delivery to him so far as his vendor S. W. Ry. Co. v. Knight, 81 Ark. 429, 99 S. W was concerned, and plaintiff alone was there- 684; K. C. South. Ry. Co. v. Tonn, 102 Ark. after the "other party whose interest is af- 20, 143 S. W. 577; St. L., I. M. & S. R. Co. v. fected by such delay," and, within the mean- Evans, 94 Ark. 324, 126 S. W. 1058; K. C. S. ing of the act, must be held to be the shipper. R. Co. v. Marx, 72 Ark. 357, 80 S. W. 579; [2] It is next insisted that the court erred Midland Valley Rd. Co. v. Horton, 112 Ark. in holding that the carrier was not allowed 125, 165 S. W. 266. four days in which to move the shipments from Hartford to Little Rock. And we think the contention is well taken. The agreed statement shows the distance from the point of origin to the point of destination is 147 miles. This alone would give the railroad three days. But between these two points is the division point of Booneville, where freight, destined from Hartford to points east of Booneville, must be taken from the trains in which such shipments reached Booneville, and placed in other trains, after being classified, for movement to destination. Counsel for plaintiff contends that the allowance of 24 hours, "at each point where transferring from one railroad to another or rehandling of freight is involved," inures to the benefit of the railroad only when it unloads and reloads freight in quantities less than carload lots at transfer points. But we think the act should not be so construed. The Legislature must, of course, have had in mind the fact that all freight trains, whether local, or fast, or through, freight trains, have their appointed schedules governing their arrival and departure at the various stations along their route, and that the orderly dispatch of this vast business requires that these trains be made up according to some definite plan, and time was accordingly allowed for the rehandling of freight. There can be no reason for allowing "free time" to handle a portion of the contents of a car which would not apply to a whole car, where, as here, the car is taken out of a train, which arrives upon one schedule, and becomes a part of another train which departs upon another schedule. We conclude, therefore, that the court should have used 4 days as a basis of computing the delay, and, under the agreed statement of facts, the judgment should have been for only 51 days, or $255. Error, Cent. Dig. §§ 1489, 1579, 1580.] Error, Cent. Dig. §§ 3928-3933.] by refusal of court to allow time to procure Error, Cent. Dig. §§ 4133, 4148.] ACTION-JUDGMENT ON SAME CAUSE. More than one person or corporation may be Cent. Dig. §§ 1141-1143.] 158(4)-PROMISE medical services rendered an injured employé, In an action by physician to recover for evidence held sufficient to support a jury finding that employer made original oral promise to pay for the services. ute of, Cent. Dig. § 376.] 6. FRAUDS, STATUTE OF 24-PROMISE TO [3] It is finally insisted that the court erred in the assessment of an attorney's fee, because the law does not authorize its assessment. Section 6621 of Kirby's Digest provides that, in all actions at law, or suits in In determining whether an oral promise is equity, against any railroad company, for a ties must be determined from the words of original or collateral, the intention of the parviolation of any law regulating the transpor- promise in the light of the situation of the partation of freight or passengers, by any such ties and the attending circumstances. railroad, the plaintiff, if he recovers in any [Ed. Note.-For other cases, see Frauds, Statsuch action, shall also recover a reasonable ute of, Cent. Dig. § 20.] attorney's fee, to be taxed as costs. The re- 7. TRIAL 139(1)-DIRECTED VERDICT-EVIcovery here was for a violation by the rail- DENCE. road company of a statutory provision regu- evidence establishes the facts of a case, the Unless it can be said that the undisputed court may refuse to grant a motion for a directed verdict. The cause was tried on the issues joined, and a verdict returned and judgment ren [Ed. Note.-For other cases, see Trial, Cent. dered in favor of appellees against the appelDig. §§ 332, 333, 338-341.] lants for $750. A motion for new trial was Appeal from Circuit Court, Pope County; filed and overruled. Proper steps were taken, and the cause is here on appeal. A. B. Priddy, Judge. Action by L. D. Berryman and others against William H. Barrett, Sr., and others. Judgment for plaintiffs, and defendants appeal. Affirmed. S. W. Vandivert, Walter E. Myers, of Cleveland, Ohio, and R. W. Holland, of Russellville, for appellants. R. B. Wilson, of Russellville, for appellees. [1] It is insisted that the judgment should be reversed for the reason that the trial court suit for failure to attach an itemized account overruled appellants' motion to dismiss the to the complaint. If such contention were tenable, no exception was saved to the court's ruling in overruling the motion. [2] Appellants also insist that the judgment should be reversed because they say “a great preponderance of the evidence is against the verdict." This contention is not tenable in suits at law. If there is any substantial, legal evidence to sustain the verdict of the jury, it will not be disturbed by this court on appeal. The HUMPHREYS, J. W. F. McBride, an employé of the Arkansas Anthracite Coal Company, was seriously injured on the 6th day of August, 1914, while working in the mine of said company. All the stock in the corporation was owned by appellants and Thos. M. [3] Appellants insist that the judgment Barrett. W. H. Barrett, Sr., was president should be reversed because the trial court and general manager, and W. H. Barrett, Jr., refused, when requested by appellants, to rewas secretary treasurer and superintendent quire appellees to produce their books of of said company. Appellees are physicians account. The request for the books was made and surgeons, and own and operate a hospi- during the progress of the trial, and when tal in Russellville, Ark. Prior to the institu- Dr. Smith was being cross-examined. tion of this suit, W. F. McBride prosecuted record does not disclose where the books were a suit for damages against the Arkansas An- at the time of the trial nor how long it would thracite Coal Company, and recovered judg- have taken to get them. The account conment against it for $16,500. There is evi- tained only three items, and appellee, Smith, stated that the account was a correct copy dence tending to show that this judgment of the books. None of the items of the acincluded hospital and surgeon's fees, and evidence tending to show to the contrary. Ef-count were questioned except in a general forts were made to collect the judgment, books would have thrown much light on the It is argued by appellants that the which failed. Appellees brought this suit on real issue in the case; that is, that the entry January 2, 1915, against the Arkansas Anthracite Coal Company, Thos. M. Barrett, W. H. McBride, and appellants for $750 covering the following items: August 6 to November 20. .... way. would have disclosed whether the account was entered in the book against W. H. Barrett, Sr., and W. H. Barrett, Jr. On proper application before the trial began, appellants To hospital room and floor nurse.. $300 00 could have secured an order to inspect the To special nurse....... 150 00 books. They might have used the process of To medical services. 300 00 subpoena duces tecum. As a general rule, the The suit was dismissed as to W. F. Mc- court's business is too important to suspend Bride and Thos. M. Barrett, and judgment proceedings while witnesses are sent for was rendered against the other defendants. books, papers, etc. The record fails to show On motion the judgment against the Bar- that the rights of appellants were in any retts was set aside, and they filed an anway prejudiced by the refusal of the court to swer, denying that they, or either of them, stop the trial and send for the books. The made any promise to the appellees to pay the record does not disclose even a hint by appelmedical and hospital charges of W. F. Mc-lants prior to this time that they desired to Bride. At a later date they filed an amend- inspect the books. They should have shown ed answer as follows: "Come now the defendants W. H. Barrett, Jr., and W. H. Barrett, Sr., and make this their amended answer in the above entitled cause. The said W. H. Barrett, Sr., and W. H. Barrett, Jr., pleaded as a special defense herein that they each and both of them are relieved of liability to plaintiffs for the sum of $750 as prayed for in plaintiffs' complaint, or any other sum, for the reason that plaintiffs seek to hold them, the said defendants, liable in their verbal promise to stand good for the debt of another, and that they claim this their defense for the reason that the said promise on which plaintiffs seek to hold them is within the statute of frauds." both diligence and some prejudice before asking this court to find that the trial court had abused its discretion by refusing to suspend the proceedings for a witness to go after his books. [4] It is also contended that, inasmuch as the appellees procured a judgment in this cause against the Arkansas Anthracite Coal Company, they are precluded from recovering a judgment against W. H. Barrett, Sr., and W. H. Barrett, Jr., on the same account and for the same amount. We cannot agree with learned counsel on this proposition. More |