(222 S.W.)

George E. Floyd, of Plainview, for appel- [ feet. lant.

Chambers & Wilson, of Danville, and Heartsill Ragon, of Clarksville, for appellee.

Appellant did not sound any alarm before he struck the appellee.

Appellee was 20 years of age and in perfect health. She did general farm and domestic work. Since her injury she has not had strength and health, and could not do work as before. When in health she had strength above the ordinary, and made as good "a

lee was knocked unconscious by the blow, and remained so for some time thereafter. She did not get out of bed for two weeks, and it was four weeks before she could get around. Her left knee, right side, chest, both elbows and knees and right hip were badly bruised. She was also injured in her breast. When ever she walked any distance her knee would swell and was painful.

WOOD, J. The appellee and her escort, Jack Walker, and Miss Eunice Holman and her escort, E. A. Mathis, all attended a mov-hand as you could get on the farm." Appeling picture show in the town of Plainview, Yell county, Ark., on the night of May 4, 1918. After the show was over appellee and her companion started across the street to a drug store for cold drinks. The street was 80 feet wide, and there were about 150 people on the street at the time and a number of automobiles. Appellee and her companions were crossing at about the middle of the block. There were public crossings, but there are no car lines on the street, and the people went across the street anywhere. Coming out of the picture show, the people went straight across the street.

Appellee and Walker were within about 10 feet of the curb on the opposite side of the street from the theater and going towards the drug store when the appellant, who was driving a Ford occupied by himself and several young ladies, ran upon the appellee and Walker. Walker saw that appellee was in direct track of the car and tried to shove her out of the way, but failed. Appellant struck the appellee, causing personal injuries for which she brought this action against the appellant to recover damages.

Appellee alleged that the appellant was negligent in running his car at an unusual rate of speed; that he did not have his car under proper control, and that he did not sound any alarm, warning appellee of the approach of his car. Appellant denied the allegations of the complaint as to negligence, and set up the defense of contributory negligence.

The physician who attended the appellee testified that there were several scratched places and bruised spots too numerous to mention over her body; that the principal wounds were injury to the knee and a rib that was loose from its cartilage on the right side, which in the process of healing caused a knot on her breast. In the process of healing, from the inflammation, the kneecap had been thrown out, the fibers and tendons were cnlarged, which left a thickened condition around the knee joint, and that it was impossible for him to tell how long an injury of this character would last. Some of them get well, while others are permanent injuries for a lifetime. The general rule is that a majority of them are permanent.

There was a jury trial, resulting in a verdict and judgment in favor of the appellee in the sum of $1,250. From that judgment is this appeal.

[1] All of the instructions given by the court were not abstracted either by the appellant or the appellee, but the instructions that were set forth in the briefs of counsel show that the issues of negligence and contributory negligence were submitted under correct declarations of law. The issues of negligence and contributory negligence were is

The appellee and her companions testified that the car was being driven by appellant at a greater speed than cars are ordinarily run upon the roads or streets. Appellant tes-sues of fact under the evidence for the jury. tified that he supposed he was going about 10 miles per hour. Several witnesses testified on behalf of the appellant to the same effect.

Walker weighed 193 pounds, and by the impact of the car he was thrown above the windshield. After the appellant hit appellee and Walker he stopped the car in about 75

[2] In view of the character of the injuries sustained by the appellee as shown by the evidence, it cannot be said that the amount of the verdict and judgment is excessive. There is no prejudicial error.

The judgment is correct, and is therefore affirmed.

Appeal from Circuit Court, Howard Coun- brother cry out asking some one to "Take ty; Jas. S. Steel, Judge. him off! He is killing me."

(222 S.W.)

that appellant fired at him two or three times and to let plaintiff have part of it for the as he ran away. The prosecuting attorney amount paid, evidence held insufficient to show was permitted, over the objections of appel- the existence of a partnership between plainlant's counsel, to ask concerning his state-tiff and defendant; there being no agreement to ments before the grand jury. He was asked hold the land and sell it, nor to share in profit if, in his testimony before the grand jury, in detailing the circumstances of the fight, whether he had said anything about Owens having a knife. The witness admitted that he had made no reference to a knife in his tes

timony before the grand jury. The state had the right on being surprised at the testimony of its own witness to show contrary statements before the grand jury, for the purpose of breaking down the damaging testimony of the witness and impeaching his credibility. This is so where a party gives damaging testimony to the side which introduced him on the witness stand. Dorian v. State, 217 S. W. 485. That was the case here. While the testimony of the witness was favorable to the state's contention in many respects, he made the damaging statement that Frank Owens had a knife at the time and was using it on Ebbie Crofton at the time appellant ran up and fired the first shot.

and loss.

2. Trusts 77-No resulting trust, where defendant sold land to plaintiff at increased price.

Where plaintiff alleged that defendant had agreed to purchase a certain tract of land at it to him at the price paid, and it appeared that not exceeding $25 per acre and to sell part of defendant purchased the land for $15 an acre and sold part of it to plaintiff for $25, which payment was subsequently made, a resulting trust did not arise in plaintiff's favor, for, to constitute such a trust, the purchase money must be paid by another, or secured by another, at the same time or previously to the purchase, and must be part of the transaction. 3. Joint adventures 5 (2)—Evidence in suit between joint adventurers to obtain overpayment held to support decree for defendant.

In a suit to recover a payment alleged to have been fraudulently induced by defendant, based on an alleged contract whereby defend[3] Another assignment of error is in re- ant was to purchase certain land at a price not spect to the ruling of the court in allowing exceeding $25 an acre and to sell part of it to Georgiana Owens, the mother of Frank Ow-plaintiff for the amount actually paid, conflictens, to testify as to the dying declarations ing evidence held to support a judgment for de

of Owens. Owens lived about four months after he was shot and died from the effects of the wound, and at times he was hopeful of recovery, but afterwards entirely despaired of all hope and expressed his belief that he would die. His mother testified to certain statements made to her by deceased after he expressed to her his belief that he would die. We are of the opinion that, taking her testimony as a whole, there was enough to show that the statements were made at the approach of death and under the belief that death was impending. The testimony falls within rules of evidence often announced by this court. Evans v. State, 58 Ark. 47, 22 S. W. 1026.

We are unable to discover any prejudicial error in the record, and the judgment must therefore be affirmed. It is so ordered.

PUMPHREY v. FURLOW. (No. 8.) (Supreme Court of Arkansas. May 24, 1920.) 1. Partnership 53-Evidence held insufficient to show partnership in purchase of land.

In a suit to recover money, which plaintiff alleged he was fraudulently induced to overpay to defendant for purchase price of land, and to have such amount declared a lien on the land, plaintiff alleging that defendant agreed to purchase the land at not exceeding $25 per acre

fendant.

W. I. Pumphrey brought this suit in equity against Nathan Furlow to recover the sum of $1,044.32, which he alleges he was fraudulently induced to overpay the defendant for the purchase price of a tract of land, and to have said amount declared a lien on the land. The defendant filed an answer, denying all the material allegations of the complaint.

According to the testimony of W. I. Pumphrey, he was a negro 64 years of age and had lived in Little River county, Ark., for 31 years, during which time he had been farming and teaching school. He lived near the defendant, Furlow, and had known him since the latter's boyhood. Furlow was a white man, and Pumphrey had the utmost confidence in him. In the summer of 1917, Pumphrey made an oral agreement with the defendant to buy a tract of land containing 174.71 acres. He went to see the defendant, and asked him what the land could be bought for. The defendant stated that he did not know the price, and after some discussion about the land agreed with Pumphrey that they would buy it together. Because Pumphrey was a negro, Furlow concluded the negotiations for the land with the owner, who

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

"Q. And that was why you were called? A. Yes, sir; I said he was all right. We have been believe you are all right myself. working together for 8 years, and I said I

"Q. That is what you were called for as a witness when they were discussing that, and you vouched for both of them? A. Yes, sir."

The defendant, Furlow, was a witness for himself. He denied that he agreed to buy the land as cheap as he could and sell part of it to Pumphrey. According to his testimony, he was on a contract for the purchase of the land on September 10, 1917. After he had made the contract for the purchase of the land, he had it surveyed, and on October 6, 1917, he entered into a written contract to sell Pumphrey 101.71 acres for the price of $25 an acre. According to Furlow's testimony, Pumphrey urged him to buy the land, and told him that he would pay him as much as $25 per acre for 100 acres of it. Pumphrey wanted Furlow to buy the land, because he thought he could make a better trade for it. Furlow never agreed to let Pumphrey have any part of the land for what he paid for it. It was understood between them that Pumphrey was to give him $25 for the land. Furlow bought it for $15 an acre, and made the trade entirely on his own account. Subsequently, when he found out that Pumphrey was dissatisfied with the trade, he offered to take it off of his hands and to pay him a good profit. The lands began to rise in value shortly after Furlow purchased them.

lived at another place in Arkansas. It was them was to pay the same price for it? A. agreed between the parties that Furlow Yes, sir. should buy the land for any price he could get it for up to $25 per acre. Furlow was to take the contract in his own name, and subsequently to let Pumphrey have part of the land at what Furlow had agreed to pay for it. Furlow reported to Pumphrey that he had to pay the $25 an acre for the land, when as a matter of fact he had bought it for $15 an acre. A survey was made of the land, and it was agreed between them that Pumphrey should take 101.71 acres at $25 an acre. A written contract between the parties was entered into to that effect. It was understood that the defendant should keep the remainder of the land. Each party entered into possession of his part of the land. Furlow bought the land on a credit, and the amount allotted to Pumphrey at $25 an acre paid the whole purchase price, except a small amount, which Furlow paid in the beginning. Pumphrey paid for the land with two bank checks given Furlow during the fall of 1917. At the time the bank cashier offered to lend Furlow the money with which to pay for his part of the land, and they acted like they were fixing up a mortgage. Again Pumphrey stated that Furlow promised to sell his part of the land to him for just what it cost him. Austin Hall, another negro, who had lived on Furlow's place for about 8 years, was a witness for the plaintiff. According to his testimony he had known both parties about 25 years and had worked for the defendant for about 8 years. In the latter part of the summer of that year he heard a conversation between the plaintiff and defendant about the purchase of some land near them. The defendant first asked the plaintiff to go and see the owners about the purchase of the land. The plaintiff suggested that he was a negro, and that it would be better for the defendant to go and make the purchase. The defendant said he was satisfied they could get it for $25 an acre, but that he would get it as cheap as he could. The plaintiff agreed that he would pay as much as $25 an acre for a part of the land. We quote from the record a part of the testimony of the witness A. Hall, as follows:

"W. I. Pumphrey: That is why you were called in the conversation. He said: 'I will let you have the land for the same price I pay for it.'

· E. C. Payne, the cashier of the bank through which Pumphrey paid for the land, denied that he and Furlow acted as if they were fixing up a mortgage on the land to secure Furlow's part of the purchase money. He stated positively that there was no effort on his part to do anything of that kind, and that he could not recall any conversation which tended to show that fact. He admitted that Furlow had suggested to him that he did not want Pumphrey to know what he had paid for the land.

J. E. Davis testified that he bought some timber from Pumphrey off of the part of the land which Furlow sold to Pumphrey. He said that Pumphrey told him that he did not know what trade Furlow had made for the purchase of the land. Other testimony will be stated or referred to in the opinion.

The chancellor found the issues in favor of the defendant, and dismissed the plaintiff's complaint for want of equity. The plaintiff has appealed.

A. D. Du Laney, A. P. Steel, and John J.
Du Laney, all of Ashdown, for appellant.
S. C. Reynolds, of Ashdown, for appellee.

HART, J. (after stating the facts as above).

"Q. Do you remember any other discussion [1] Counsel for the plaintiff first insists that a partnership existed between the plain

as to what the land would cost-that each of