against something, while others broke while he was handling them; that he had had customers tell him of the soda pop bottles bursting, and that it was his duty to take up these bursted bottles, as he had instructions to replace the broken ones with other bottles containing soda pop; that they broke through being overcharged, or from the bottles being defective; and that you could not tell by looking at the bottles whether they would break or not. He further testified that he cautioned appellees that too many bottles were bursting and that they would have trouble about it; that they were charging the bottles with too much gas and that the overcharge was sufficient to burst them and was the cause of their bursting.

of the complaint that the packing company had been guilty of negligence in putting up the meat for sale. If appellees are liable at all under the evidence in this case, a recovery on account of that liability cannot be defeated because of the lack of privity. The proof is that the bottles were sold and delivered to the appellant, who was engaged in business with her husband, although so far, at least, as the bottles in question are concerned, the business was in her charge and under her control.

It is urged that the business being conducted by her could not be hers, nor could she be a partner therein on account of the interest of her husband, as the wife cannot engage in a partnership business with A witness, Anderson, testified that he was her husband. But, whatever her relaengaged in the distilled water and soda water tionship to her husband in regard to this business, and had been in the latter busi- business may have been, the fact remains ness for 7 years, and knew the methods of that she was in charge of it, and was injured charging such bottles; that unless a bottle while handling one of the bottles in the usual was cracked it could not be told whether it and necessary course of business. This was defective or not, but that charging the handling of the bottle by the vendee, or his bottle was the usual test to discover that fact, employé, was necessarily within the conand that if the bottle was not defective it templation of the parties when the sale was would not ordinarily explode, if it was prop-made, and if privity is essential to a recovery erly charged; that cold water will absorb where negligence is alleged on the part of at moderate pressure a great deal more of the carbonic acid gas, with which it is charged, than it will when the water is warm. He further testified that his experience has been that some bottles would burst without any apparent cause, and that the bottles used by appellees were bought from a factory which is considered one of the largest and best glass companies in the world.

At the conclusion of appellant's evidence, the court, upon motion of appellees, directed the jury to return a verdict in appellees' favor, which was done, and this appeal is duly prosecuted from the judgment rendered upon that verdict.

Bradshaw, Rhoton & Helm and Marshall & Coffman, all of Little Rock, for appellant. Carmichael, Brooks, Powers & Rector, of Little Rock, for appellee.

SMITH, J. (after stating the facts as above). [1] It is urged there can be no recovery here because of the lack of privity between appellant and appellees, and the case of Nelson v. Armour, 76 Ark. 352, 90 S. W. 288, 6 Ann. Cas. 237, is cited to sustain that position. The facts in that case were that plaintiff had purchased from a dealer a can of lunch tongue, which the dealer had purchased from the Armour Packing Company, the defendant, and the court held in that case that a demurrer to the complaint was properly sustained, because there is no privity of contract between the vendor in one sale and the vendees of the same property in the subsequent sale, and that each vendee must resort as a general rule only to his immediate vendor. No reference was made in the opinion in that case to the allegations

the vendor, there is such privity here as is necessary to sustain a recovery. If the vendor is to be held liable at all for his negligence in cases of this character, there is no reason for limiting that liability in favor of the vendee individually, who may never personally be exposed to the danger resulting from this negligence.

[2] Actionable negligence has been defined as a breach of duty resulting in injury to some person to whom that duty is legally owing, and the duty here is not merely to so charge a bottle as that its contents may not be wasted, but also to exercise that care which an ordinarily prudent person would use to avoid the infliction of an injury which might reasonably be expected to follow the failure to use this care; and that duty is owing, not only to the vendee, but also to his employés, who perform the service which the parties must have contemplated as necessary to be performed when the sale was made.

[3-5] There is a case reported in 138 Mich. 567, 101 N. W. 828, 68 L. R. A. 342, 110 Am. St. Rep. 321, 5 Ann. Cas. 177, the style of which is O'Neill v. James, where the facts are strikingly similar to the facts in the instant case, except that the party injured by the explosion of the bottle was an employé of the owner of the business, and there was no proof of knowledge upon the part of defendant that the bottle which exploded had been improperly charged with the gas. In that case the plaintiff had recovered a substantial judgment, which was reversed on appeal because of the insufficiency of the evidence to sustain the allegations of the complaint, which allegations were held sufficient to support a recovery. The court, in

with a gas. As we have before stated, there is no proof from which the inference might be the bottle was improperly charged. The proof drawn that the defendant had knowledge that offered on the part of plaintiff, as well as that offered on the part of defendant, is that the apparatus used by the employés was a proper verdict should have been directed in favor of one. Under the facts disclosed by the record, a defendant."

reviewing the contentions of the parties and the evidence offered in support of these contentions, recited that there was testimony on the part of experts, without objection on the part of defendant, that champagne cider, manufactured in the usual way, with the ordinary pressure, was safe. There was also testimony that, if the pressure was increased beyond a certain limit, then the article beThe instant case, however, is distinguishcame dangerous, and dangerous because of the able from O'Neill v. James, supra, because likelihood of an explosion. The experts also there is proof here tending to show the bottestified that an explosion would not occur un- tles were improperly charged and that apder the circumstances detailed in that case, pellees were aware of that fact, or were at unless the bottle had been overcharged, and least in possession of such knowledge and would be likely to occur had the bottle been information on that subject as would impute overcharged, and that, while the testimony knowledge to them of that fact. The ordiof the defendant and of his bottler was posi-nary law of principal and agent would tive that no champagne cider had ever been charge appellees with any knowledge posbottled for sale at a higher pressure than sessed by their employés, who were actually that which was shown to be ordinarily safe, engaged in charging the bottles. it was stated that, if there were other testimony in the case from which a jury might reasonably infer that this pressure had been exceeded, the question became one which ought to be submitted to the jury for its decision. There was opposed to this testimony, on behalf of the defendant, the testimony of experts in which they maintained that the explosion could have occurred for no reason other than an overcharge; but there was no proof of an overcharge except this expert evidence. The court held with reference to the question of negligence that the court was right in holding that in view of the testimony in that branch of the case, the issue should have been submitted to the jury; but, follow-rections to that end. ing this statement, the court said:

"There is, however, a much more serious question in the case. The testimony on both sides is that champagne cider, bottled in such bottles as were used by defendant, at a pressure of 60 pounds or under, is a harmless ordinary article of commerce, usually kept for sale where soft drinks are sold. The record also discloses that defendant did not himself charge the bottle which did the mischief. There is nothing to indicate that he ever saw it. The testimony of the bottler is that it was charged in the usual way, and sent out in the usual course of trade, and that he had no knowledge that it was improperly charged. Indeed, his testimony is that it was not improperly charged. There is no testimony tending to establish that defendant had any knowledge that the bottle was overcharged when it left his place of business, or from which an inference could be properly drawn that he had such knowledge. Under this state of facts, counsel for defendant claim: The point we raise is that where one is engaged in the manufacturing and selling of an article of commerce harmless in itself, as the proofs show that champagne cider is when manufactured and bottled in the ordinary manner, he cannot be held liable to a third person, who stood in no privity of contract with him, because perchance one bottle did, for some reason, burst, in the absence of proof of knowledge of vendor of the defect."

After reviewing a number of authorities, the opinion concluded with the statement that:

"The plaintiff knew that champagne cider, as ordinarily manufactured and sold, was charged

[6] The evidence in this case presents no issue for submission to the jury upon the question of the use of defective bottles, as the proof shows the bottles were purchased from a manufacturer whose bottles were of standard grade and quality, and the only theory upon which a recovery could be sustained is that appellees were guilty of negligence in charging the bottle, and that this negligence was the proximate cause of the injury.

We think the proof is sufficient to require the submission of that issue to the jury, and the judgment of the court below is therefore reversed, and the cause remanded, with di

CANNON V. STATE. (No. 137.)
(Supreme Court of Arkansas. Sept. 28, 1914.)
VAGRANCY ( 3*)—Statutes—ADMISSIBILITY
OF EVIDENCE.

declaring all persons going about from place to
In a prosecution under Kirby's Dig. § 2068,
place for gaming to be vagrants, evidence that
defendant had said that he had been gambling
in other counties within 12 months before the
indictment, was admissible; and his gaming
more than 12 months before the indictment,
though protected by the statute of limitations,
was also admissible, as indicating that he was
continually going from place to place for gam-
ing.

[Ed. Note. For other cases, see Vagrancy, Cent. Dig. § 3; Dec. Dig. § 3.*]

Appeal from Circuit Court, Polk County;
Jefferson T. Cowling, Judge.

and he appeals. Affirmed.
Wiley Cannon was convicted of vagrancy,

Elmer J. Lundy, of Mena, for appellant.
Wm. L. Moose, Atty. Gen., and John P.
Streepey, Asst. Atty. Gen., for the State.

HART, J. The defendant, Wiley Cannon, was tried and convicted in the Polk circuit court of the crime of vagrancy, charged to have been committed by going about from

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

place to place for the purpose of gaming. | before the finding of the indictment was comFrom the judgment of conviction he has duly petent. prosecuted an appeal to this court.

The testimony is substantially as follows: Witnesses for the state all testify that the defendant had resided in Mena, Polk county, for 10 years or more, and had not, to their knowledge. done any work for the past 5 or 6 years. Some of them stated that he was a constant associate of a professional gambler named Davis. One of the witnesses stated that he resided at De Queen, in Sevier county, and that about six months prior to the trial he had a conversation there with the defendant, in which the defendant told him that he was at De Queen looking for a "live one." The witness stated that he was familiar with gambling terms, and that the phrase "live one" is a term among gamblers to indicate some one with money who wants to engage in gambling at cards. Another witness stated that the defendant told him that he had gone to Waldron, in Scott county, to engage in a game of cards, and that he went there for the purpose of "making a cleaning." Another testified that the defendant told him that he had gone to Waldron and had "got the worst of it" over there.

It was also shown that the defendant admitted that he had gone to Texas, and had engaged while there in a game of craps; that he was frequently absent from Mena, and had been convicted in the circuit court of

Polk county within the last 12 months of gaming. Other testimony showed that he had been convicted of gaming prior to 12 months before the return of the indictment in this case. Other witnesses testified that they had seen the defendant gambling. Some of these games were within 12 months before the finding of the indictment in this case; others were prior thereto. No testimony was introduced in behalf of the defendant.

It was also shown by the state that the defendant had been engaged in gaming prior to 12 months before the finding of the indictment, and counsel for the defendant insists that this testimony was incompetent. The testimony introduced by the state shows that the defendant had been engaged in gambling within 12 months prior to the return of the indictment against him, and also that he had been engaged in gambling prior to and up to 12 months before the finding of the indictment. In the case of Adams v. State, 78 Ark. 16, 92 S. W. 1123, the defendant was charged with the crime of incest. Evidence was adduced by the state to prove the illicit relations between the defendant and his niece, mentioned in the indictment, which occurred more than 3 years before the finding of the indictment. The court said:

"The evidence tended to prove that these illicit relations, constituting incest, commenced ment, and continued to the time when the act 6 or 7 years before the finding of the indictfor which he was indicted was committed. This evidence, although it discloses other acts of incest with the same niece, the indictment for which is barred by the statute of limitations, is admissible for the purpose of showing the probability of the commission of the offense charged, and sustains the evidence of such offense. Commonwealth v. Bell, 166 Pa. 405 [31 Atl. 123]."

So here the testimony shows that the defendant had commenced gambling probably 2 years before the finding of the indictment, and had so continued up to the time he was

indicted, and although the acts of gaming
prior to 12 months before the finding of the
that the statute of limitations would pro-
indictment were so remote in point of time
tect the defendant if he were indicted for
those acts, still proof of such act of gaming
is admissible, because it is one of a series of
the defendant in going from place to place
acts indicating continuousness on the part of
for the purpose of gaming. Therefore we
hold that the testimony was competent, and
are of the opinion that the evidence was
sufficient to warrant the verdict.
The judgment will be affirmed.

HUNTER v. FEILD et al. (No. 101.) (Supreme Court of Arkansas. July 6, 1914.) 1. TRUSTS ($_89*)-RESULTING TRUSTS-EVIDENCE TO ESTABLISH-BURDEN OF PROOF.

It is earnestly insisted by counsel for the defendant that the testimony is not sufficient to warrant his conviction. In the case of Davis v. State, 109 Ark. 341, 159 S. W. 1129, Davis was indicted and convicted in the Polk circuit court under the same statute under which the defendant in the instant case was indicted. The court held that section 2068 of Kirby's Digest applies to all persons who “go about from place to place for the purpose of gaming," whether for the purpose of participating in banking games or in other kinds of gambling. The court further held that, where a defendant is charged with vagrancy under this section of the statute, evidence of games participated in by him in other counties is competent to show the purpose of his wandering about, whether to pursue a lawful avocation, or to habitually engage in the pursuit of gambling. Therefore | the testimony of witnesses to the effect that the defendant told them that he had been gambling in other counties within 12 months For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

The evidence to establish a resulting trust in land as having been purchased for another must be clear, positive, and satisfactory; and a mere preponderance of the evidence is not sufficient to ingraft a trust upon property conveyed by deed containing no recognition thereof. [Ed. Note.-For other cases, see Trusts, Cent. Dig. §§ 134-137; Dec. Dig. § 89.*1 2. TRUSTS ($_89*)-RESULTING TRUSTS-EVI

DENCE TO ESTABLISH-SUFFICIENCY. Evidence, in an action to establish a resulting trust in land as having been purchased

[Ed. Note. For other cases, see Trusts, Cent. suant to this agreement, the property was Dig. 93; Dec. Dig. § 631⁄2.*]

Appellees were plaintiffs below in a suit brought to enforce a trust against certain In addition to the evidence stated, appellands in Pulaski county, formerly owned by lees offered evidence to the following effect: their father, Silas Feild, who died in Septem- That the said Luchesi, who was the fatherber, 1897, leaving him surviving, in addition in-law of W. A. Feild, loaned the appellant to the plaintiffs, certain other children and the money with which to purchase the land, grandchildren. At the time of his death and loaned it upon the understanding that Silas Feild was the owner of considerable the land should be purchased by appellant For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

as trustee, that after this purchase certain | property belonging to the Feild estate, and taxes on the property there sold appellant his loan was made upon the security of the were paid by the administrator and heirs of mortgaged property and the home of appelthe Feild estate, and that appellant stated from time to time he only wanted his money returned with interest thereon and compensation for his trouble in managing the affairs of the estate. And it was testified that appellant explained that he bought the land and took the title to himself individually, and not as trustee, because some of the Feild heirs were minors and he could dispose of the property to better advantage by taking the title in his own name.