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with, such ballots were the best evidence of the true result.

Smith, J., dissenting.

Appeal from Circuit Court, County; Paul Little, Judge.

Contest of election by Lee Srum against James Slankard. Judgment for defendant, and plaintiff appeals. Affirmed.

Lee Srum instituted a contest in the county Court against James Slankard for the Office of constable of Hartford township, in Sebastian County, Ark. The trial in the county court resulted in a judgment in favor of Slankard, and from this judgment Srum appealed to the circuit Court. In the circuit court the case was tried on a statement of facts substantially as follows:

At the general election held on Tuesday, November 7, 1916, James Slankard, Democrat, Marion Studdard, Republican, and Lee Srum, Independent, were opposing candidates for the office of constable of Hartford township. There were five voting precincts in the township, and the certificate of the judges of Said voting precincts shows the Vote for the office of constable to be as fol10WS:

Sebastian

Place. Slankard. Studdard. Srum. Ward 1............ 27 14 19 Ward 2........ - 18 20 25 Ward 3. . . . . . . . . . . 57 35 50 County Precinct.... 15 38 12 West Hartford..... 19 18 36 Totals . . . . . . . . . 136 125 142

Slankard asked for a recount of the ballots by the county election commissioners and gave notice to that effect to Srum. Srum made no objection to the recount of the ballots by the commissioners. A recount of the ballots by the commissioners showed that Slankard received 130, Studdard 116, and Srum 113 votes. A certificate of election Was then issued and delivered to Slankard as the duly elected constable of Hartford township. Subsequently Srum instituted this proceeding to contest the election of Slankard. Studdard took no part in the conteSt.

John W. Goolsby was one of the judges in Ward 2. After the ballots were counted, they Were placed in an envelope which was sealed and with one set of pollbooks was delivered to Goolsby to be delivered to the county election commissioners. On the night of the election the judges of ward 1 brought their returns to Goolsby and requested him to deliver them to the county election commissioners. Subsequently the judges of the other wards, When they found that Goolsby had been selected to take charge of the returns, brought the returns from their wards to him and delivered them to him to be carried to the election commissioners. The ticket was very long, and the judges worked until late Tuesday night completing the count. Goolsby had a headache and did not take the returns to the election commissioners until Thursday

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morning. On that morning the returns from Ward 3 were delivered to him and the returns from West Hartford were also given to him before he started to Huntington, Where One of the election commissioners resided. The ballots from each of the wards were placed in an envelope which was sealed up before it was delivered to Goolsby. Goolsby carried the election returns to Huntington in an automobile, and was about 35 minutes in making the trip. Slankard went with him in the automobile, but Goolsby, Slankard, and the driver all testified that the ballotS Were not in any Wise tampered with on the journey. When they reached Huntington, Goolsby at once delivered the returns to John W. Jasper, one of the county election commissioners. Jasper testified that the ballots were in Sealed envelopes which did not appear to have been tampered with. Jasper placed the returns in his safe, to which only himself and his clerk had access. Both he and his clerk teStified that they were not in any wise tampered with while in his possession. On the night of the election Goolsby took the returns from wards 1 and 2 to his residence and kept them until he started for Huntington on Thursday morning. He testified that there was no Opportunity for any One to tamper With them While they were at his residence. The returns from Ward 3 and the county precincts were kept intact until they were delivered to Goolsby on Thursday morning, and it was shown that they were not in any wise tampered with. The election returns from the West Hartford precinct were kept in the vault of a bank in the town of Hartford, and it was shown that CuStOmers of the bank had acceSS to the Vault in which the returns were placed. It was not shown, however, that any one tampered with the returns, and the envelope in which the ballots were sealed did not show any ev1dence of having been broken open. All three of the judges and the clerk from Ward 2 testified that Several Of the Voters had scratched all three of the candidates for constable and that they did not count any of these for any of the candidates for constable; that they did not in any manner change or alter any ballot While it was in their poSSesSion; that they endeavored to count the ballots as they were cast. Some of the judges and clerks from the Other wards Were introduced as witnesses, and they testified that they did not change any of the ballots while they were in their custody and that the ballots were not changed by any of the other judges or clerks; that when they finished the count they placed the ballots in a sealed envelope; and that they had endeavored to count them just as they had been cast by the Voters. They stated that there were Some ballots in which all three of the candidates for constable had been scratched, and that these ballots had not been Counted for either candidate. About Seventeen Witnesses were examined who testified that they voted for Srum for constable, and that they did not scratch out the names of all three of the candidates. Three of these WitneSSeS Voted in the West Hartford precinct; four of them in ward 3; seven in ward 1; three in ward 2; and One in the county precinct. Some of these witnesses were foreigners and could Scarcely speak English. Some of them voted for the first time at this election; some stated positively that they had voted for Srum; others stated that they intended to vote for him and thought they had voted for him, but did not state this as a positive fact. The court made specific findings of fact in favor of Slankard in regard to each of the wards. We do not deem it necessary to Set Out these findingS, but will refer to them and to additional testimony introduced in support of the findings in the Opinion. The court refused the declarations of law asked by Srum, but made a declaration of law as follows:

“The court finds that all the ballots cast in the election in Hartford township, except the ballots in West Hartford precinct, were kept and guarded with that jealous care in such a manner as is provided by law. I find that the ballots in West Hartford precinct, as kept in the vault of the Bank of Hartford, were so exposed as to have afforded opportunity to be tampered with, and that they were not guarded with the jealous care which will contravene all suspicion of substitution or change. I find that they have lost their presumptive purity and are no longer to be relied upon as evidence in this case, and that the official returns from that precinct as made and published by the judges of the election in said precinct is hereby declared to be the final and conclusive count of the Vote in Said precinct. I find from affirmative proof that the ballots in all other precincts and wards have maintained their purity and integrity, and that the recount in all wards and precincts except West Hartford were legal and proper, and that the aggregate of the recount in all wards and precincts except West Hartford, together with the official vote in West Hartford, shall be and is hereby deClared to be the lawful result of said election. While the ballots from West Hartford, as kept in the bank, were exposed in such a manner as is condemned by the law, yet the court finds that there is no testimony in this case whatever to show they were tampered with. And I declare the impurity of said ballots for the sole reason that they were exposed to the association of the customers of the bank who might have, had they been inclined to do so, tampered with them. I find the result when the ballots are counted as above indicated to be Slankard 132, Srum 122. The purity of all ballots having been declared except West Hartford, it is not lawful to consider the testimony of individuals as to how they voted, as the ballots themselves under the law are held to be evidence and not subject to impeachment until they have been shown to be exposed and tampered with. Mr. James Slankard is hereby declared to be the duly elected constable of Hartford township and entitled to said office and judgment is rendered accordingly.”

From the judgment rendered, Srum, the contestant, has duly prosecuted an appeal to this COurt.

A. A. McDonald, of Ft. Smith, and A. M. Dobbs, of Hartford, for appellant. Holland & Holland and Geo. W. Dodd, all of Ft.

HART, J. (after stating the facts as above). It appears that the returns made by the election judges in the various precincts of Hartford township show that Srum was elected. Slankard gave notice to Srum that he would ask for a recount of the ballots by the county election commissioners under the provisions of section 2837 of Kirby's Digest. Srum made no objection to the recount and it was made by the election commissioners. The recount Showed that Slankard received the highest number of votes for constable, and he was given a certificate of election. Srum then instituted a contest. It is conceded that the ballots were preserved in accordance with the statute from the time a recount was had until they were produced at the trial in the circuit court. The record also shows that no changes were made in the ballots after they Came into the hands Of the election CommisSioners. The evidence also shows that the ballots were not changed or in any wise tampered with while Goolsby was carrying them from Hartford to Huntington to deliver them to One of the election commissioners. The evidence shows that the ballots from the West Hartford precinct were placed by the election judges in an envelope and that it was sealed. They were then deposited in the Vault of a bank in Hartford and remained there throughout the day Wednesday and Were carried to Huntington On Thursday morning. It was shown that the customers Of the bank had acceSS to the Vault Where the ballots were deposited throughout the day on Wednesday. It is not shown, however, that the ballots were tampered with. On the Other hand, from its appearance the envelope showed that it had not been Opened. The original returns from this precinct showed that 36 persons voted for Srum and 19 for Slankard. The recount showed 17 votes for Slankard and 27 for Srum. Only three Witnesses testified that they voted for Srum in this precinct. The other witnesses testified in regard to the other precincts.

The court in its finding took the original count as to West Hartford. It is apparent that the action of the court as to this precinct resulted in no prejudice to the rights of Srum. Indeed, the right of Srum to reverse the judgment is predicated upon errors alleged to have been made by the trial court With regard to the other precincts in the township. The recount by the county election commissioners shows that Slankard received the highest number of VoteS for conStable. It is not contended that an error was made in the recount. The COntest is based upon the contention that the ballots were Changed by the judges While counting the votes, or that they were changed while in the hands of One of the judges after the Votes Were COunted. PerSOnS Who Woted at the election were introduced as witnesses to establish this fact. It is insisted by counSel for the Contestant that the effect of timony was not admissible to contradict the ballots. We do not agree with this construction of the finding of the court. The record shows that objection was made to the testimony on the ground that the ballots could not be contradicted by oral testimony. The court permitted the testimony to be given, and We think the record ShoWS that it Considered it in arriving at its conclusion. [1, 2] It is true a ballot is a writing or a quasi record, but, like any other instrument of the same character, when imbued with fraud it gives way to oral testimony Which is credible. We think the finding of the court ShoWS that the Oral testimOny WaS received and considered by the court for the purpose of showing whether or not the ballots had been changed or tampered with since they had been cast by the voters. The court made an express finding from the proof that the ballots in all the other precincts and wards except West Hartford had maintained their purity and integrity. In making its finding in this respect the court had before it the ballots themselves, whose appearance indicated that they had not been tampered with. It is well known that when ballots are made out by different perSons some of the marks on the ballots will be marked with a heavier pencil line than others, and that if the ballots were changed and the marking had been done by a Single person the lines would be more uniform unless the work was done by an expert forger. This was a proper matter for the court to consider in making its findings in the premises. Some of the judges and clerks from each precinct were introduced as witnesses. They testified that no changes were made in the ballots while they were being counted. [3] Witnessess were also introduced who testified that the ballots were carefully preserved by one of the judges after they Were placed in sealed envelopes. It is true that Witnesses were introduced Who testified that they had voted for Srum when the ballots themselves indicated that they had scratched out the names for all three of the candidates for constable. The court had these Witnesses before him, and doubtless thought their testimony was not of that unequivocal character which carried conviction with it. Some of the witnesses were foreigners and could scarcely read English. Others were voting for the first time. Others did not testify in a positive manner. The ticket was a very long one, containing all the state, county, and township officers, as well as the amendments to the Constitution. It may be that the witnesses intended to vote for Srum and became confused at the length of the ticket, and did not remember correctly What they had done. In any event, there Was evidence of a Substantive character to Support the findings of the court, and We Cannot disturb

it on appeal. Webb v. Bowden, 124 Ark. 244, 187 S. W. 461, Ann. Cas, 1918A, 60. [4] The court, having found from the evidence that the ballots had not been changed or tampered with, properly held them to be the best evidence of the true result. Condren W. Gibbs, 94 Ark. 478, 127 S. W. 731. The judgment will therefore be affirmed.

SMITH, J., dissents.

On Rehearing.

HART, J. It is earnestly insisted that the Opinion overrules the principles of law laid down in Powell V. Holman, 50 Ark. 85, 6 S. W. 505, and Lovewell v. Bowen, 75 Ark. 452, 88 S. W. 570. We do not think S.O. We think the holding of the court is in accord With the decisions in those cases. In the first-mentioned case the ballots and pollbooks Were placed in an unsealed Sack and deposited in a Wardrobe in a public hall Where at least four different organizations held their meetings. They were then placed in a room connected with the clerk’s Office and kept for a week, and the court expressly found that access to them could easily have been had through the insecure fastenings of the Office. In the last-mentioned case the ballots had first been used as evidence in the trial of an election contest and had passed under the dominion and control of the court. The court held that the control of the election commisSioners over the ballots ceased When they first produced them in court, and that no assumption of official regularity could be indulged in When the ballots were presented by the election Commissioners On the Second trial. Here the facts are essentially different. The ballots and one set of the pollbooks were placed in Sealed envelopes and given to One of the judges. That judge kept them at his residence for the remainder of the night, during the next day, and during the next night. ACCOrding to his testimony, they Were not tampered with during the nighttime while he Was at home. It Was true he was doWnioWn for a part of the time in the daytime, but his house Was not a public place Where people were accustomed to go. There was nothing in the appearance of the envelopes or the ballots themselves to indicate that the envelopes had been Opened and the ballots tampered with. It is true there was a possibility that they might have been tampered With, but there Was no unusual interest exhibited in the election for constable, and when the court COnSidered all the circumstances introduced in evidence We think it cannot be said that the evidence was not legally sufficient to justify its finding that the ballots had not been tampered With. The court made an express finding to that effect, and We cannot say that it is wholly unsupported by the evidence. The motion for a rehearing Will be denied. (134 Ark. 340)

RICE–BROWN LUMBER CO. V. FLEETWOOD. (No. 333.)

(Supreme Court of Arkansas. April 29, 1918)

1. WITNESSES Q->393(2)—TESTIMONY IN FORMER TRIAL. To contradict a witness, his testimony in other litigation, reported in shorthand and transcribed and certified as the witness’ testimony by the official court reporter, is inadmissible, where a witness at the former trial or the reporter do not testify that such testimony was in fact witness’ testimony at such trial; there being nothing in the law giving verity to the certificate of an official stenographer or making admissible testimony which rests upon his certificate that it is what it purports to be.

2. CONTRACTS @->186(1) – CONTRACTS WITH

THIRD PERSONS.

The rights of one contracting with a lum

ber company to saw timber would not be defeated by any inconsistent contract the com: pany had with another, unless he was advised of the other's conflicting rights when his own contract was made.

Appeal from Cleburne Circuit Court; Jno. I. Worthington, Judge.

Action by William Fleetwood against the Rice-Brown Lumber Company. From judgment for plaintiff, defendant appeals. Affirmed.

Daniel Riley McMaster, of Chicago, Ill., for appellant. M. E. Winson, of Heber SpringS, for appellee.

SMITH, J. Appellee recovered judgment for damages from the appellant lumber company for the breach of a contract for manufacturing lumber. It appears that appellee had a contract under Which he Was Operating, and that he Was making a profit Out Of it, but the testimony is in irreconcilable conflict as to the party with whom he had contracted. The lumber company owned a large body of timber, a considerable portion of which had been blown down in a storm, and appellee testified that the president Of the company solicited him to contract to manufacture this timber, but he refused to do so On the ground that there was not a Sufficient quantity of it to justify the expenditure of the money which would be required to put appellant’S mill in Condition to Saw the timber, Whereupon they entered into a Contract for sawing the down timber as well as certain standing timber, and after appellee had expended $294.25 in putting the mill in condition, together with certain other expenses, the possession of the mill was taken away from him, and he was not allowed to proceed under his contract. Appellant contends that it never contracted with appellee for the manufacture of its timber, but that it had a contract for that purpose With one Clay, who, in turn, had contracted with appellee. It is impossible to reconcile the testimony on this subject, but appellee testified that his contract Was With the appellant company, and not with Clay, and three Wit

nesses corroborate him in this statement, and this testimony is legally sufficient to support that finding, and we do not, therefore, consider appellant's contention that this testimony is improbable and unreasonable and that the jury’s finding is against the preponderance of the testimony.

[1] It appears that the parties to this litigation had had Other litigation in which appellee had testified, and appellant asked for permission to read portions of the testimony of appellee in that trial for the purpose of Contradicting him. It is said that this testimony had been taken by the official court, reported in Shorthand, and afterwards transcribed by him. But no witness at the trial from which this appeal has been prosecuted testified that the offered testimony was in fact the testimony of appellee at the former trial, and the court did not, therefore, err in excluding it. It is true there was a certificate which was signed by the reporter to the effect that the offered testimony was the testimony of appellee, but the reporter was not Called and SWOrn, and no other evidence Was Offered in identification of the rejected testimony. There is nothing in the law giving verity to the certificate of an official Stenographer Or making admissible testimony Which rests upon his certificate that it is What it purports to be.

[2] Appellant saved its exception to inStruction numbered 4, which reads as fol10WS:

“No. 4. You are instructed that, even though you may find that W. A. Clay, at the time plaintiff contracted to saw or cut defendant's timber into lumber, was under contract with the defendant to operate its sawmill and to pay for all the expenses of operating its sawmill and manufacturing its lumber, the plaintiff would not be bound by the said contract between said W. A. Clay and the defendant, unless such contract was brought to his attention; and, if defendant's authorized officers or agents, acting in conjunction with said W. A. Clay, entered into a contract with the plaintiff to saw its timber into lumber, and at the time of making such contract with plaintiff such authorized officers or agents led the plaintiff by their words or conduct to believe that he was contracting with the defendant, the defendant would be estopped to set up a contract it had previously made with said W. A. Clay as a defense to this action, unless defendant or W. A. Clay or some other person brought to the attention of the plaintiff the terms of such contract so previously made.”

The objection made to this instruction is that in effect it tells the jury that it was the duty of appellant to make known to appellee the provisions of the contract existing between it and Clay, and that if it failed to do so and appellee believed he was contracting with appellant, then a contract existed between the parties. We think, however, that the instruction was a proper one, for if the testimony of appellee is true and he had the contract Which he SayS he has, his rightS thereunder would not be defeated by any inconsistent contract which appellant may have had with Clay, unless appellee was advised of Clay's conflicting rights when his Own Contract Was made. This is the purport of the instruction set out, and appellant Could not have asked a more favorable declaration of the law. On that Subject. Objections are urged to other instructions given at the request of appellee; but these Objections leave Out of account the appellee's Contention in regard to his Contract, and however much against the preponderance Of the evidence this COntention may nOW appear to be, We cannot say that the jury should have disregarded it, and it was therefore proper for the court to submit under appropriate instructions appellee's theory of the Case. - * Complaint is also made Of the refusal Of the court to give certain instructions requested by appellant; but, as all instructions are not abstracted, we cannot say that the instructions refused Were not COWered by others which were given. Judgment affirmed.

(136 Ark. 602) JAYNES v. BUSH. (No. 356.)

(Supreme Court of Arkansas. May 13, 1918.)

1. MASTER AND SERVANT ©2206—INJURY TO SERVANT—ASSUMPTION OF RISK-EJECTING TRESPASSERS FROM L RAIN. A railroad is not liabie for the death of a brakeman shot and killed while ejecting trespassers from train, where there were no circumstances making the discharge of such duty more dangerous than under ordinary circumstances; the brakeman, having accepted such employment, assumed the ordinary risk thereof. 2. MASTER AND SERVANT ©->149(1) – INJURY TO SERVANT—ORDERS—EJECTING TRESPASSERS. A railroad is not negligent in requiring a brakeman to eject trespassers from its train where there are no circumstances making it appear to conductor giving order that the discharge of such duty would be more dangerous than under ordinary conditions. 3. MASTER AND SERVANT ©:150(3) — WARNING SERVANT. Such danger was not so extraordinary as to require the employer to warn the servant.

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

Action by J. L. Jaynes, administrator, against B. F. Bush, receiver of St. Louis, Iron Mountain & Southern Railway Company. From an order sustaining demurrer to plaintiff's complaint, plaintiff appeals. Affirmed.

Mehaffy, Reid & Mehaffy, of Little Rock, for appellant. E. B. Kinsworthy and W. R. Donham, both of Little Rock, for appellee.

McCULLOCH, C. J. Appellant instituted this action to recover damages on account of the death of his intestate, George C. Jaynes, Which occurred while the latter was discharging his duties as brakeman in the service of appellee as receiver of a railway com

pany. The trial court sustained a demurrer to the complaint, and dismissed the action. The complaint, after setting forth the operation of the railroad by the receiver and the character of the service of appellant's intestate as a brakeman, proceeds as follows: “That on the 14th day of December, 1915, the said George C. Jaynes, while in the performance of his duty as brakeman and while in the exercise of due care, was directed and required by his superiors to put off or make them get off, some tramps or hoboes who had gotten on the train, and in carrying out said instructions of the conductor, who was his superior, he was shot and killed by one of the parties the conductor had directed him to make get off. That prior to this time, while serving in the capacity of brakeman, he was directed to perform duties of this sort, but, believing it to be dangerous to do so, he did not undertake to make them get off, and was discharged for his failure to do so. That on said 14th day of December, 1915, When directed to make them get off, he not only knew that he had to either obey or lose his job, but he relied on the judgment of his superiors, and because Of their Orders and directions believed that he might be able to do so Without getting injured, and therefore undertook to make them get off when he was shot and killed, as above described.” [1-3] The complaint fails to state a cause of action, and the court was correct in sustaining the demurrer. It affirmatively appears from the allegations of the complaint that appellant's intestate, when killed, was discharging one of the duties of his employment as brakeman, the ordinary risks of Which he assumed when he took service. It is not shown that there were extraordinary dangers attending the discharge of that particular duty, of which the employer or his Vice principal knew, or by the exercise of ordinary care Ought to have known, so as to make it incumbent to warn the servant of the danger or to refrain from directing him to perform the work. No act of negligence is alleged. The duty of ejecting trespassers necessarily devolved on some of the employés in charge of the train, and it did not constitute an act of negligence to perform that service or to direct another employé to do so, except under peculiar circumstances Which rendered the Service, or the particular manner in which it was to be performed, extraOrdinarily dangerous. Affirmed. (137 Ark. 1) JONES v. McDANIEL et al. (No. 362.)

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