correctness instruction in Arkansas

1989The general rule concerning the giving or failure to give an instruction is stated in Purnell v. Missouri Pacific Railway Co., 235 Ark. 957 , 362 S.W.2d 674 (1962): “It is well settled that when the correctness of an instruction to a jury is a question, the instruction complained of must be examined in conjunction with all the instructions given.” A case strongly favoring the argument of the appellants is that of Harlan, et al. v. Curbo, Guardian, 250 Ark. 610 , 446 S.W.2d 459 (1971).

1989The general rule concerning the giving or failure to give an instruction is stated in Purnell v. Missouri Pacific Railway Co., 235 Ark. 957 , 362 S.W.2d 674 (1962): “It is well settled that when the correctness of an instruction to a jury is a question, the instruction complained of must be examined in conjunction with all the instructions given.” A case strongly favoring the argument of the appellants is that of Harlan, et al. v. Curbo, Guardian, 250 Ark. 610 , 446 S.W.2d 459 (1971).

1989The general rule concerning the giving or failure to give an instruction is stated in Purnell v. Missouri Pacific Railway Co., 235 Ark. 957 , 362 S.W.2d 674 (1962): “It is well settled that when the correctness of an instruction to a jury is a question, the instruction complained of must be examined in conjunction with all the instructions given.” A case strongly favoring the argument of the appellants is that of Harlan, et al. v. Curbo, Guardian, 250 Ark. 610 , 446 S.W.2d 459 (1971).

1989The general rule concerning the giving or failure to give an instruction is stated in Purnell v. Missouri Pacific Railway Co., 235 Ark. 957 , 362 S.W.2d 674 (1962): “It is well settled that when the correctness of an instruction to a jury is a question, the instruction complained of must be examined in conjunction with all the instructions given.” A case strongly favoring the argument of the appellants is that of Harlan, et al. v. Curbo, Guardian, 250 Ark. 610 , 446 S.W.2d 459 (1971).

1968Ayer & Lord Tie Co. v. Young, 90 Ark. 104 , 117 S.W. 1080 ; District Grand Lodge No. 11 v. Pratt, 96 Ark. 614 , 132 S.W. 998 ; Harkrider v. Cox, 230 Ark. 155 , 321 S.W.2d 226 . *826 Since the appellant, in making his objection to the giving of court's Instruction No. 5, stated that there was no question in the case about the adequacy of the fence, we cannot consider the correctness of that instruction in that respect as a ground for reversal.

1968Ayer & Lord Tie Co. v. Young, 90 Ark. 104 , 117 S.W. 1080 ; District Grand Lodge No. 11 v. Pratt, 96 Ark. 614 , 132 S.W. 998 ; Harkrider v. Cox, 230 Ark. 155 , 321 S.W.2d 226 . *826 Since the appellant, in making his objection to the giving of court's Instruction No. 5, stated that there was no question in the case about the adequacy of the fence, we cannot consider the correctness of that instruction in that respect as a ground for reversal.

1968Ayer & Lord Tie Co. v. Young, 90 Ark. 104 , 117 S.W. 1080 ; District Grand Lodge No. 11 v. Pratt, 96 Ark. 614 , 132 S.W. 998 ; Harkrider v. Cox, 230 Ark. 155 , 321 S.W.2d 226 . *826 Since the appellant, in making his objection to the giving of court's Instruction No. 5, stated that there was no question in the case about the adequacy of the fence, we cannot consider the correctness of that instruction in that respect as a ground for reversal.

1968Ayer & Lord Tie Co. v. Young, 90 Ark. 104 , 117 S.W. 1080 ; District Grand Lodge No. 11 v. Pratt, 96 Ark. 614 , 132 S.W. 998 ; Harkrider v. Cox, 230 Ark. 155 , 321 S.W.2d 226 . *826 Since the appellant, in making his objection to the giving of court's Instruction No. 5, stated that there was no question in the case about the adequacy of the fence, we cannot consider the correctness of that instruction in that respect as a ground for reversal.

1968Ayer & Lord Tie Co. v. Young, 90 Ark. 104 , 117 S.W. 1080 ; District Grand Lodge No. 11 v. Pratt, 96 Ark. 614 , 132 S.W. 998 ; Harkrider v. Cox, 230 Ark. 155 , 321 S.W.2d 226 . *826 Since the appellant, in making his objection to the giving of court's Instruction No. 5, stated that there was no question in the case about the adequacy of the fence, we cannot consider the correctness of that instruction in that respect as a ground for reversal.

1968Ayer & Lord Tie Co. v. Young, 90 Ark. 104 , 117 S.W. 1080 ; District Grand Lodge No. 11 v. Pratt, 96 Ark. 614 , 132 S.W. 998 ; Harkrider v. Cox, 230 Ark. 155 , 321 S.W.2d 226 . *826 Since the appellant, in making his objection to the giving of court's Instruction No. 5, stated that there was no question in the case about the adequacy of the fence, we cannot consider the correctness of that instruction in that respect as a ground for reversal.

1946Such is the purport of the instruction, as we understand it, and no error was committed in giving it under the facts of this case.” In Pine Bluff Co. v. Bobbitt, 168 Ark. 1019 , 273 S. W. 1 , similar instructions were under attack by. the appellant, but the court said: “Appellant contends that the instructions given by the trial court as a guide to the jury were erroneous because they placed the burden upon appellant to justify or excuse itself from transmitting the current of electricity through its guy wire which burned the child.

1946Such is the purport of the instruction, as we understand it, and no error was committed in giving it under the facts of this case.” In Pine Bluff Co. v. Bobbitt, 168 Ark. 1019 , 273 S. W. 1 , similar instructions were under attack by. the appellant, but the court said: “Appellant contends that the instructions given by the trial court as a guide to the jury were erroneous because they placed the burden upon appellant to justify or excuse itself from transmitting the current of electricity through its guy wire which burned the child.

1940The correctness of instruction No. 1 in the case of Berry Asphalt Co. v. Kidd, 200 Ark. 1121 , 143 S. W. 2d 42 , was challenged upon the same ground that instruction No. 4 in the instant case is challenged.

1940The correctness of instruction No. 1 in the case of Berry Asphalt Co. v. Kidd, 200 Ark. 1121 , 143 S. W. 2d 42 , was challenged upon the same ground that instruction No. 4 in the instant case is challenged.

1936A comparison of this instruction with the one approved by this court on the same subject in Ware v. State, 59 Ark. 379 , 27 S. W. 485 , will show that it is almost a verbatim copy of the latter.

1936A comparison of this instruction with the one approved by this court on the same subject in Ware v. State, 59 Ark. 379 , 27 S. W. 485 , will show that it is almost a verbatim copy of the latter.

1931It is finally said the court erred in refusing requested instruction No. 3 as follows: “If you find that the defendant, Bob Collins, took the yearling in question, in good faith, under the honest belief that he was the owner thereof, and even though, upon learning after-wards that said yearling was not his own property, converted it to his own use, you will find the defendant not guilty.” Conceding the correctness of such instruction, [see Wilson v. State, 96 Ark. 148 , 131 S. W. 336 , 41 L.

1931It is finally said the court erred in refusing requested instruction No. 3 as follows: “If you find that the defendant, Bob Collins, took the yearling in question, in good faith, under the honest belief that he was the owner thereof, and even though, upon learning after-wards that said yearling was not his own property, converted it to his own use, you will find the defendant not guilty.” Conceding the correctness of such instruction, [see Wilson v. State, 96 Ark. 148 , 131 S. W. 336 , 41 L.

1930It is true, that case cites the case of Murphy v. Hawthorne, 117 Ore. 319 , 244 Pac. 79 , which appears to support the appellants ’• contention; but, from a careful examination of the original opinion in the ;Shipp case and the opinion on rehearing, there appears to be nothing which would support the view that the case of Murphy v. Hawthorne was adopted and approved by this court in its entirety.

1930It is true, that case cites the case of Murphy v. Hawthorne, 117 Ore. 319 , 244 Pac. 79 , which appears to support the appellants ’• contention; but, from a careful examination of the original opinion in the ;Shipp case and the opinion on rehearing, there appears to be nothing which would support the view that the case of Murphy v. Hawthorne was adopted and approved by this court in its entirety.

1926Carroll County Bank v. Rhodes, 69 Ark. 43 .

1925In making this contention they rely upon the case of Fenton v. Collum, 104 Ark. 624 , where the court held that the statute providing that one who, having color of title, pays taxes for seven years upon unimproved and uninclosed land, acquires the title thereto by limitation, does not apply to land cleared, fenced, or in cultivation.

1920The. statute was interpreted in the case of Mammoth Vein Coal Company v. Bubliss, 83 Ark. 567 , to mean that it was the duty of such companies to furnish all suitable timbers with which to prop and safeguard the roof of the entry where the employee was at work.

1918But where the devise over upon the death of A shows that A was vested with a fee simple estate, and that testator wishes him to have snch an estate, hut to direct the course of its descent upon his death, the limitation over after the fee is repugnant to the nature of the estate and void. * * * A condition that, if devisee does not dispose of his property in any way during his lifetime, it shall pass to certain named persons is held to be void.” That case was followed by the later case of CarlLee v. Ellsberry, 82 Ark. 209 , which involved a limitation upon the grant of title in fee simple in a

1918But where the devise over upon the death of A shows that A was vested with a fee simple estate, and that testator wishes him to have snch an estate, hut to direct the course of its descent upon his death, the limitation over after the fee is repugnant to the nature of the estate and void. * * * A condition that, if devisee does not dispose of his property in any way during his lifetime, it shall pass to certain named persons is held to be void.” That case was followed by the later case of CarlLee v. Ellsberry, 82 Ark. 209 , which involved a limitation upon the grant of title in fee simple in a

1916In the case of Haynes v. Masonic Benefit Assn., 98 Ark. 421 , it was said: “But in the absence of a statute or any law of the society requiring notice as a condition precedent to the payment of dues, and where the dues are unvarying and permanent charges to be paid at fixed and regular intervals, then a member failing to pay such dues at the time prescribed therefor becomes delinquent and loses his standing and the right to insurance benefits.” We adhere to the doctrine of that case.

1915There is some dispute about whether or not appellee was in the line of his regular duties in trying to dislodge the piece of lumber under the cross-tie, but there was substantial evidence to the effect that that was his duty, and that he was at ia place where Barker not only could have discovered his perilous situation, but in fact did discover it. : Counsel for appellant rely upon the case of Chicago Mill & Lumber Co. v. Johnson, 104 Ark. 67 , as sustaining the correctness of this instruction.

1893In the case of Pinney v. Berry, 61 Mo. 359 , the court considered the correctness of the rule, announced in the instruction under consideration, as applicable to this class of cases ; and 'Judge Napton, for the court, says : “It is obvious that this rule has no application to such nuisances as may be removed the day after the verdict, or for the continuance of which a second or third action may be maintained, or which may be abated at the instance of the injured party, by the order of a competent court.

1852And Chief Justice Maesiiall, in the case of Pollard v. Shaaffer, 1 Dallas 210 , where the British army, a public enemy, had destroyed a tenement which the lessee covenanted to keep in repair, held the tenant to be excused from keeping his covenant, saying^ “That a covenant to do this against an act of God, or an enemy, ought to be so specific and express, and so clear, that no other meaning could be put upon it.” There can be no doubt of the correctness of the principle settled in these cases.