text:
    Central Coal & Coke Company v. Barnes.
    Opinion delivered July 11, 1921.
    1. Mines and minerals — ventilation from gas. — Under Crawford and Moses’ Dig., § 7284, providing that there shall not be less than 200 cubic feet of air pass each working place per minute, non-compliance with the statute will not be excused upon the ground that it was not practical to comply with the statute.
    2. Mines and minerals — ventilation from gas. — Where a shot-firer worked in a cross-cut in a mine, it was necessary for the mine operator to keep a current of air in circulation in such cross-cut, as required by Crawford and Moses’ Dig., § 7284.
    3. Master and servant — duty of fire-boss to maric dangerous places.- — ■'Where there was a- conflict in the evidence as to whether the fire-boss placed on the blackboard a warning of danger of gas in a cross-cut, the court properly held that the question of negligence in failing to post the warning was for the jury.
    4. Master and servant — assumed risk — ’Question for jury. — In the case of a shot-firer injured in firing a shot in a mine at a place where he had shortly before discovered gas and had fanned it away, it was not error to submit to the jury the question of assumption of risk where the place was not marked on the blackboard as dangerous, as required by Crawford and Moses’ Dig., § 7279, and it did not appear that the danger of firing a shot was patent and obvious, and where the jury might find that he relied upon the master complying with the statute in regard to the circulation of air.
    6.Master and servant — safe place to work — instruction.—In an action by a shot-firer for injuries received in a mine, it was not error to instruct the jury as to the duty of the fire-boss to make the inspection required by § 7279, Crawford and Moses’ Dig., and to notify the plaintiff by marking on the blackboard any danger in the mine where he 'was required to work.
    6. Master and servant — safe place to work — air currents in mine. — It was not error, in an action by a shot-firer for injuries received in a gas explosion in a mine, to instruct the jury as to the master’s duty in regard to furnishing air currents, as required by Crawford and Moses’ Dig., § 7259, where the evidence tended to prove that the mine employed more than 10 men, and therefore came within the provisions of the act, as the jury might have found that if the air current had been provided plaintiff would not have been injured by the explosion of gas.
    7. Master and servant — assumed risk — iNSTRUCTiON&wkey;It was no^ error to instruct the jury that “while the plaintiff, by entering the services of the defendant as shot-firer in its mine, assumed all the risks ordinarily incident to that employment, he did not assume any risks arising from the negligence of the defendant or any one to whom it intrusted its superintending authority, unless it be further shown that the plaintiff was aware of such dangers and appreciated same.”
    8. Master and servant — contributory negligence — instruction.— An instruction to the effect that an employee’s contributory negligence would not bar a recovery by him, but that the damages should be diminished by the jury in proportion to the negligence attributable to him, is in accord with the provisions of Crawford and Moses’ Dig., § 7145, and is not erroneous.
    9. Damages — instruction—reference to amount sued for. — While it is improper for the court, in instructing the jury in a personal injury suit, to make reference to the amount sued for, it was not prejudicial error to instruct the jury that if they found for the plaintiff they should assess his recovery at such sum as from the evidence, in their judgment, would fairly compensate him for the injuries which he had sustained, if any, not to exceed the sum claimed in the complaint.
    Appeal from Polk Circuit Court; James 8. Steel, Judge;
    affirmed.

      James B. McDonough, for appellant.
    (1) A directed verdict should have been given in favor of the defendant. A shot-firer is the absolute judge of the safety of every place that he goes into. He relies upon his own judgment. Plaintiff knew there was gas there. Where a servant is required to make his place of work safe and fails to do so, he assumes the risk of his failure. 93 Ark. 140; 44 Ark. 524; 88 Ark. 292; 122 Ark. 552; 108 Ark. 377. Where a servant has knowledge of the danger, no duty exists to give further information. 96 Ark. 500; 137 Ark. 615; 97 Ark. 486; 174 S. W. 150; 107 Ark. 341. The risk of being injured by gas was incident to plaintiff’s employment. 41 Ark. 382; 88 Ark. 548; 135 Ark. 330. It was his duty to make his place of work safe. 100 Ark. 156. The presence of gas is an obvious danger. 98 Ark. 211. Plaintiff knew of the presence of gas and necessarily assumed the risk. 118 Ark. 304; 96 Ark. 387.
    (2) The court erred in giving plaintiff’s instruction No. 1. There was evidence of negligence in failing to make inspections. Plaintiff did not go into a place of danger relying upon inspection by the fire boss. He relied upon his own inspection. He had better knowledge of the presence of gas than any other employee.
    (3) The court erred in giving an instruction (No. 2) on air currents. Plaintiff knew he was the judge of the danger. The fact that 200 cubic feet of air did not pass the face of the cross-cut per minute was not the proximate cause of the injury.
    (4) The court erred in giving plaintiff’s instruction No. 4. 135 Ark. 330. Plaintiff was aware of the danger.

      (5) The court erred in giving plaintiff’s instruction No. 5. This instruction does not correctly declare the law of comparative negligence.
    (6) The court erred in giving plaintiff’s instruction No. 6.128 Ark. 479; 82 Ark. 61.

      A. M. Dobbs, Norwood & Alley and G. L. Grant, for appellee.
    (1) It was not error to refuse to direct a verdict for appellant.
    (2) Upon the question of assumed risk, plaintiff was not, as a matter of law, precluded from recovery. 46 Ark. 396; 93 Ark. 140 ; 44 Ark. 529.
    (3) It was not error to give plaintiff’s instruction No. 1. 122 Ark. 401. No specific objection was made to objectionable allegations. 115 Ark. 120; 127 Ark. 183.
    (4) The court properly gave plaintiff’s instruction No. 2. 131 Ark. 562; 75 Ark. 86; Crawford & Moses’ Dig. §§ 7145-6.
    (5) It was not error to give plaintiff’s instruction No. 4. 135 Ark. 330 is not a similar case.
    (6) Instruction No. 5 is not erroneous. 124 Ark. 437.
    (7) There was no error in giving plaintiff’s request No. 6.
   Hart, J.

The Central Coal & Coke Company prosecutes this appeal to reverse a judgment for damages for personal injuries in favor of Tom Barnes, who was injured by the explosion of gas while he was acting in the eap'acity of shot-firer in one of the company’s coal mines.

Tom Barnes was a witness for himself. According to his testimony, he was thirty-seven years of age and had worked seventeen years at mining in the neighborhood of the mine where he was injured. He had had eleven years experience as a shot-firer and had been working in the mine where he was injured seventeen months as a shot-firer. He knew that gaá feeders were in the mine. Gas feeders are crevices in the coal where the gas escapes. The gas also sometimes comes out of the roof, or the bottom of the mine. You can only tell by testing it out with a safety lamp. An open lamp will explode the gas. The shot-firer goes into the mine after the miners have left it and fires the shots which the miners have fixed during the day. A shot-firer usually goes to work about 4:30 o’clock in the afternoon. On the day in question Barnes went to the blackboard on the surface and looked for warnings. Barnes found no warnings on the blackboard for the place where he was injured. When he entered the mine, he went to the fourth south entry and found three shots prepared for firing. He tamped the shots and then went back to the air course. He opened the cross cut and found gas in it. He brushed the gas out of the cross cut and then tamped a shot in it. By brushing gas out is meant that he took a rag curtain left there for that purpose and fanned the gas out of the cross cut. He then went back to the other side and fired a shot. Then he came back to the cross cut and fired the shot in it with his open lamp. The use of the open lamp caused the gas to explode and to severely injure him. He knew that gas was feeding in there, but he did not know that it was coming in so rapidly. Barnes made the first test for gas in the cross cut and also made a test for gas in the entry. There were shots to be fired on the air course side of the cross cut and also on the entry side of the cross cut. Barnes fired the shots on the entry side before the explosion. The safety lamp will indicate whether there is a great or small quantity of gas. When Barnes first went in there, he heard the gas bubbling in the water and made a test for it with his safety lamp. He knew that a good deal of gas had accumulated there, but he readily brushed it out and did not know that it was coming in so rapidly as to explode if he should return in so short a time and fire the shot with his lighted lamp. It was necessary to fire the shot with his lighted lamp, and Barnes was doing his work as shot-firer in the usual and customary manner. It was bis duty to make a test for gas before be fired tbe sbot. Tbe miner wbo prepared tbe sbot in tbe cross cut where Barnes was burned worked in tbe cross cut all day, but used a safety lamp. Tbe fire boss bad told bim that gas was there and to use a safety lamp. In tbe morning a dead line had been located between tbe first and second crosscuts, but it was moved later in tbe day.

Tom Shaw, State Mining Inspector, was a witness for tbe plaintiff. According to bis testimony, be was familiar with tbe mine in question for tbe reason that be bad inspected it. He explained bow tbe air was made to circulate in the mine and said that, while gas can not be prevented from coming out of the feeders, tbe circulation of tbe air will carry the gas away. He explained bow the air circulated through the fourth south entry and stated that, under tbe law, 200 cubic feet of air per minute is required to be circulated in all working places in tbe mine. He stated further that, if that much air bad been kept circulating in tbe second cross-cut per minute, it would have kept tbe cross-cut free from gas. Tbe reason is that tbe gas is so much lighter than air that tbe current of nir sweeps it out of tbe mine.

R. E. Hinson, tbe gas man and fire boss, was a witness for tbe defendant. He went into tbe mine on tbe morning in question and examined tbe fourth south air course. The face Qf it was practically clear, but tbe cross cut bad a feeder in it that morning' which was making quite a lot of gas. Witness marked it out and put a dead line there. He then went to tbe top of tbe mine and put a notice on tbe blackboard. Tbe marking on the board showed that tbe fourth south air course was cut off. Tbe notice was put there for everybody to see. There was no duty on bis part to notify Barnes personally. It was Barnes’ duty to examine all places for gas where be was required to go before doing anything in those places. According to tbe testimony of the mine foreman, it was Barnes’ duty, even after he bad swept tbe gas .out, to examine it again with, a safety lamp. According to the evidence adduced for the defendant, it was also shown that it was not practical to provide 200 cubic feet of air each minute in the cross cuts.

It is earnestly insisted that, under this evidence, the court should have directed a verdict for the defendant.

We are of the opinion that the court properly submitted the issue of negligence on the part of the defendant, and assumption of risk on the part of the plaintiff, to the jury.

Section 7279 of Crawford & Moses’ Digest provides that in all mines where a fire boss is employed all working places shall be examined at least once a day by the' fire boss, and that all dangerous places shall be marked on the blackboard before any other employees enter the mine.

Section 7284 provides that there shall not be less than 200 cubic feet of air pass each working place per minute, and that it shall be the duty of the State Mine Inspector to measure the air at all working places in making his inspection.

The testimony on the part of the defendant itself tended to show that the latter section of the statute had not been complied with. Counsel seek to justify the neglect on the ground that it was not practical to comply with the statute. This is a matter that addresses itself to the Legislature and does not furnish a defense to an action for negligence based on a noncompliance with the statute. Then, too, it is insisted by counsel for the defendant that it was not necessary to comply with the statute in the cross cut where the plaintiff was injured. This question has been decided adversely to his contention in Western Coal & Mining Co. v. Jones, 75 Ark. 76. It was there contended by the plaintiff that the company owed no duty to its servants to keep the room adjoining his .working room free of gas. The court said that the statute meant that the air shall be carried to the extremes! point where the pick falls, and that the entire mine shall be free of gas. In the discharge of their duties the employee who mined the coal and the shot-firer both worked in the cross cut where the injury occurred. Therefore, it was necessary for the company to keep the current of air in circulation in the cross cut as required by the statute.

It was also the duty of the fire boss to have placed a warning of danger of gas in the cross cut on the blackboard. This he claimed he did. His testimony, however, is contradicted in this respect by that of the plaintiff, who testified that he examined the blackboard and found no marking there indicating danger in the cross cut. This made a question of fact for the jury, and the court properly held that the question of negligence was one of fact for the jury and not of law for the court.

Again it is insisted by counsel for the defendant that the court should have declared as a matter of law that the plaintiff assumed the risk and therefore should have instructed the jury to find for the defendant. Counsel points out the fact that it was the duty of the plaintiff to make a test for gas, that .plaintiff discovered that gas was coming into the cross cut, and that he assumed the risk of firing the shot when he knew that the gas was escaping in such large quantities.

While it was the duty of the plaintiff to inspect for gas, he was not made the insurer of his own safety. Of course, if the gas was coming into the cross cut in such large quatities and so rapidly as to have 'been obvious to the plaintiff that it was dangerous to fire the shot, he would have assumed the risk of doing so. But we do not think that the undisputed evidence made the danger of firing the 'shot a patent and obvious one. The warnings, required by the statute, of dangerous places in the mine were placed there for the benefit of the plaintiff as well as the miners who worked the mine. The plaintiff says that no marking with regard to the cross cut was placed on the blackboard.

The jury might have found that he relied on this fact in estimating the amount of gas that would come in the cross cut in a given time. Then, too, he readily brushed the gas out of the cross cut with the cloth left there for that purpose. The. jury, had a right also to assume that he might rely to some extent on the company complying with the statute in regard to the circulation of the air. The plaintiff was only gone a short time, and, when all these matters are considered, we are of the opinion that the court was right in submitting to the jury the question of assumption of risk.

Section 7145 of Crawford & Moses’ Digest provides that contributory negligence shall not bar a recovery, but that the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee. The court gave an instruction to the jury in compliance with this section of the statute. Therefore there was no error in refusing to direct a verdict for the defendant.

•It is next insisted that the court erred in giving instruction No. 1 for the plaintiff. The instruction is as follows: “You are instructed that it was the duty of the defendant to exercise ordinary care to furnish the plaintiff with a reasonably safe place in which to work, and not expose him to any unusual danger while in the discharge of his duty as an employee in the defendant’s mine; and it was also the duty of the defendant in the exercise of ordinary care to make such reasonable inspections and examination in its said mine as would enable it in the exercise of ordinary care to know of any dangers or dangerous places in its mine that might imperil the safety of the plaintiff while in the discharge of his duty as a shot-firer, and to notify the plaintiff by marking on the blackboard of any danger or dangerous places existing in said mine where the plaintiff was required to work, if there were any such dangers or dangerous places and the defendant knew of them or in the exercise of ordinary care might have known thereof.

“If you find by a preponderance of the evidence that the defendant negligently failed to perform all or either of said duties and that the plaintiff was injured by reason of such failure and negligence, that the plaintiff is entitled to recover, unless he is precluded from recovering under the other instructions given you in this case.”

Counsel for the defendant claims that the instruction is too general and misleading because it does not specifically define the issues in the case. He also contends that the instruction is erroneous in that it points out to the jury the duty of the defendant to make an inspection, whereas the duty rested upon the plaintiff alone to make the inspection for gas at the place where he was injured. Counsel contend that the fact that the fire boss had made an inspection, did not justify the plaintiff in firing the shot where he knew that there was gas. That is true, but the quantity of gas and the rapidity with which it was feeding in the cross cut were questions to be decided by the plaintiff in determining whether it was safe to fire the shot. As above stated, in arriving at the conclusion, he had a right to rely in part upon the fact that the fire boss had not marked any danger there and also upon the fact that the statute prescribed the amount of air to be circulated there. These were statutory requirements enacted for the purpose of providing him with a safe place in which to work, and the court did not err in defining the duty of the fire boss to make the exam-, ination and inspection required by the statute and of notifying the plaintiff by marking on the blackboard any danger in the mine where he was required to work. We are of the opinion that the court did not err in giving the instruction.

It is next insisted that the court erred in giving an instruction on air currents in compliance with the provisions of section 7284 of Crawford & Moses’ Digest.

It is contended by counsel for tbe defendant that this section does not apply to coal mines where less than ten men are employed underground in twenty-four hours, and that there is no proof in the present case that the mine in question came within the provisions of the act. It is true that there is no specific evidence to this effect. But the evidence shows that there were at least four south air courses, and that the mine employed a general foreman, a fire boss, and a shotfirer. The whole tenor of the evidence shows that it was a large mine. The State Mine Inspector, without objection, testified that he had inspected the mine as by law he was required to do. The statute only requires him to inspect mines where more than ten men are employed. Crawford & Moses’ Digest, § 7259.

It is claimed that the court erred in giving an instruction based upon the section of the statute above referred to because the plaintiff knew that gas was in the cross cut and because the failure to cause 200 cubic feet of air per minute to pass the cross cut where the plaintiff was at work had nothing to do with his injury. The jury might have found that, had the current of air been in operation there, as required by the statute, it would have driven the gas out of the cross cut and not allowed it to accumulate there in sufficient quantities to ignite and thereby injure the plaintiff. It will be remembered that the evidence shows that he had returned in a very short time after brushing the gas out when he first found it there.

It is' next insisted that the court erred in giving instruction No. 4, which reads as follows: “You are instructed that while the plaintiff, by entering the services of the defendant as a shot-firer in its mine, assumed all the risks ordinarily incident to that employment, he did not assume any risks arising from the negligence of the defendant, or any one to whom it intrusted its superintending authority, unless it be further shown that the plaintiff was awar.e of such dangers and appreciated the same.”

It is contended that the instruction is erroneous upon the authority of Athletic Miming & Smelting Co. v. Sharp, 135 Ark. 330. In that case an instruction on assumed risk was held to be wrong because the court neglected to tell the jury that an assumption of risk includes the negligence of the defendant if the plaintiff knew of the negligence and appreciated the danger incident to the service. That defect is not in the instruction in question. The instruction in plain terms tells the jury that the plaintiff did not assume any risk arising from the negligence of the defendant unless it was shown that he was aware of the danger and appreciated the same. The instruction as given was correct. Ark. Land & Lbr. Co. v. Fitzhugh, 143 Ark. 122.

It is next insisted that the court erred in giving instruction No. 5. It is as follows: “Upon the question of contributory negligence, you are instructed that the burden is on the defendant to establish that the plaintiff was guilty of contributory negligence, and that the defendant must make proof thereof by a preponderance of the evidence, unless such proof appears from the evidence on the part of the plaintiff; but if you find that the plaintiff was guilty of contributory negligence, such contributory negligence will not bar a recovery, or preclude the plaintiff from recovering in this action, if he is otherwise entitled to recover, but the damages, if any, shall be diminished by the jury in proportion to the amount of negligence attributable to the plaintiff.”

The instruction tells the jury to take into account the negligence of the plaintiff and reduce his recovery in the proportion in which his negligence contributed to his injury. The instruction is in accord with the provision of section 7145 of Crawford & Moses’ Digest and is not erroneous. The section, in substance, provides that the fact that the amployee may have been guilty of contributory negligence shall not bar a recovery; but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee. See, also, Kansas City So. Ry. Co. v. Sparks, 144 Ark. 227.

Finally it is insisted that the court erred in giving instruction No. 6, which is as follows: “If you find for the plaintiff, you will assess his recovery at such a sum as from the evidence, in your judgment, will fairly compensate him for the injuries which he has sustained, if any, not to exceed the sum of three thousand dollars. In arriving at the amount of plaintiff’s recovery, if you find for him, you may take into consideration the plaintiff’s pain and suffering, mental and physical, if any; his loss of time, if any; his diminished capacity to earn a livelihood, if any; the temporary or permanent character of his injury; the necessary expense incurred by him for medical and surgical attendance, if any; and upon consideration of all these elements of recovery, if proved, you will assess the damages in favor of the plaintiff. If you find for the defendant, you will simply so state in your verdict. ”

Counsel relies upon the case of St. L. S. W. Ry. Co. v. Aydelott, 128 Ark. 479. In that case the instruction did not restrict the jury to a consideration of the amount of damages as shown by the evidence and for that reason the instruction was held to be erroneous.

In the case at bar the rule announced in St. L., I. M. & S. Ry. Co. v. Snell, 82 Ark. 61, governs. There we held that it was improper for the trial court to make reference in an instruction to the amount sued for. The reason given was that the jury is presumed to know from having heard the complaint read that its verdict should not exceed the amount asked for. The court said, however, that where an instruction containing such reference is properly limited by a direction to find only such amount as the evidence warrants, the court will not hold it to be prejudicial error. The rule there announced governs the present case.

We find no reversible error in the record, and the judgment will be affirmed.


source: Caselaw Access Project

author: Hast, J.

license: Public Domain

text:
    Franklin v. State.
    Opinion delivered July 11, 1921.
    1. Continuance — absence of witness — diligence.—Defendants on trial for manufacturing intoxicating liquors were not entitled to a continuance for the absence of a witness who was likewise under indictment for the same offense, but who had not been subpoenaed as a witness on behalf of defendants.
    2. Criminal law — former jeopardy. — Where, after a jury was impaneled in a felony case, a member of the jury advised the court that he had formed and expressed an opinion of defendant’s guilt, having concurred in a verdict against one associated with defendant in the alleged crime, and the court, without objection from defendant, excused such juror and ordered the clerk to call another juror, the defendant, by his silence, will be held to have assented to the juror’s discharge, and cannot plead former jeopardy.
    3. Criminal law — confession.—Where defendant denies having made a confession to the sheriff, he will not be heard to contend that, if made, the confession was obtained from him by threats.
    4. Intoxicating liquors — unlawful manufacture — evidence.—On a prosecution for manufacturing or being interested in the manufacture of intoxicating liquors, evidence that defendant had told a witness how to make intoxicating liquors was competent in connection with evidence of the witness that he had bought from defendant a still and three barrels containing the ingredients for making whiskey.
    Appeal from Pike Circuit Court; James S. Steel, Judge;
    affirmed.

      W. 8. Coblentz, for appellant.
    (1) Tbe court erred in overruling defendant’s motion for continuance. Tbe trial court assigned as reason tberefor that the absent witness was indicted by tbe same grand jury for manufacturing liquor. It was shown by affidavit that the defendants did not know that tbe evidence of this witness would be material until too late to secure liis attendance. It was set out in the motion that the court permitted the witness to go to a sick wife. Illness in family of a witness may be ground for continuance. 5 Ene. Pro. 462. The testimony of this witness was material.
    (2) Plea of former jeopardy should have been sustained. After impaneling the jury, the court discharged one of the jurors over defendants’ objection. Bishop, Cr. Law. p. 571; 112 Tenn. 596; 43 Ark. 271; 135 Ark. 166.
    (3) Error in admission of Franklin’s confession to the sheriff, obtained by threats. A confession obtained through threats is inadmissible. 47 Ark. 172; 14 Ark. 555; 11 Ark. 389; 50 Ark. 305; 66 Ark. 506.

      J. S. TJtley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellees.
   Hast, J.

Perry Franklin, Ben Davidson, Eli Markham, Jewell Sparks and Ira Green, were separately indicted for the crime of manufacturing and being interested in the manufacture of intoxicating liquors. The defendants were charged with manufacturing and being interested in the manufacture of intoxicating liquors at the same place and at the same time. They were tried separately, and there is a separate transcript in each case, but the testimony in each is practically the same. There was a verdict of guilty in each case, and from the judgment of conviction each defendant has separately prosecuted an appeal to this court.

For the sake of convenience the cases have been briefed and heard together here. The evidence for the State is sufficient to warrant a conviction, and no assignment of error is urged here on that account.

The defendant in each case assigns as error the refusal of the court to grant him a continuance on account of the absence of Buck Nicholson. There was no error in the action of the court in refusing the continuance, because the defendants did not show due diligence in endeavoring to procure the attendance of the absent witness. Osborne v. State, 121 Ark. 160. The record shows that Buck Nicholson had also been indicted for the crime of making* intoxicating liquors, and had been permitted to go home to visit a sick wife at the time these cases were tried. Nicholson had not been subpoenaed as a witness in either of the cases. He was not required to attend court except in his own case. The defendants had no right to rely upon his being present when their cases were called for trial. Having failed to have the witness subpoenaed in their cases, they are in no attitude to complain that he was not present in court when they wished to call him as a witness, and the court did not abuse its discretion in refusing to grant them a continuance.

In No. 2526 the defendant, Franklin, assigns as error the action of the court in refusing to sustain his plea of former jeopardy. Counsel rely upon the holding of the court in State v. Brown, 135 Ark. 166, and Whitmore v. State, 43 Ark. 271, to the effect that when a jury in a criminal case is impaneled and sworn in a court of competent jurisdiction under a valid indictment, the accused is in jeopardy and the discharge of the panel or any part thereof without his consent will bar a further prosecution for the same offense.

We think the record in the present case shows an implied consent on the part of the defendant to discharge one of the jurors. The record is as follows:

‘ ‘ Court: After the jury was sworn, and before anything else wa,s done in the case, it was discovered that Theodore Mansfield, one of the jurors selected in the case, was disqualified for the reason he had sat upon the case of Ira G-reen, Eli Markham and Jewel! Sparks, three defendants who were jointly charged with the defendant in the manufacture of liquor; that he claims he didn’t think about it at the time he was impaneled, but after being impaneled he comes to the court and tells him he was on that case, and was disqualified in the case because he had formed and expressed an opinion by his verdict, and he asked the court to excuse him because of his disqualifications as a juror, and for this cause, upon challenge of the State, the court discharges said juror, Theodore Mansfield, and ordered the clerk to call another name.
“Mr. Coblentz: The defendant now interposes a plea of former jeopardy, from the fact the jury had already been sworn. The defendant also excepts to the ruling of the court in discharging Mansfield on motion of the State. The court overrules the plea of former jeopardy, and the defendant now excepts.”

In Whitmore v. State, supra, the court said that the general rule is, that the discharge of a jury, after the’ machinery of the court is fully organized for trial and judgment, without the consent of the defendant, express or implied, operates as an acquittal. In Atkins v. State, 16 Ark. 568, the court said: “Lord Coke seems to have been of the opinion that a jury charged in a capital case, could not be discharged without giving a verdict, even with the consent of the prisoner and the attorney general. 1 Inst: 227b; 3 Inst. 110. But the doctrine was fully discussed in the case of the Kinlooks, Foster 16, and the law settled to be that where the jury is discharged by the consent, and for the 'benefit of the prisoner, he can not avail himself of such discharge as ground to be released from further prosecution.”

The record shows that the discharged juror had been on the panel which had convicted three other defendants charged with making intoxicating liquors at the precise time and place that the defendants were charged with making such liquors. In other words, five persons, including the defendants, were engaged in maldng intoxicating liquors at a certain time and place, as one transaction. Three of them were tried together and convicted before the defendants were put on trial. The juror in question was on the panel which had convicted these other three defendants. 'When the juror saw that the defendants were being tried for the same transaction, he informed the court that he had an opinion of their guilt, and it is obvious that the court discharged the juror in the interest of the defendants. The defendants and their attorney must have known that this was the case, and yet they sat by until after the court had discharged the juror before they made any objection or entered their plea of former jeopardy. This is show by the language of the attorney. ’ After the court had discharged the juror and ordered the clerk to call another man, the attorney for the defendants said that “the defendant now interposes a plea of former jeopardy,” and that the defendant also excepts to the ruling of the court in discharging the juror. His action in remaining silent during the colloquy between the court and the juror and in permitting the court to discharge the juror and summons another one, under circumstances so manifestly for the benefit of the defendant, constituted an implied consent on his part to the action of the court. He must have known as a man of reasonable intelligence that the court was acting for his best interest and, not having raised any objection, he will be deemed to have impliedly assented to the action of the court, and not merely to have acquiesced in the action of the court.

Moreover, there was a manifest necessity which warranted the court in discharging the juror, and no jeopardy attached to the accused. The question was fully discussed in Thompson v. United States, 155 U. S. 271. In that case, after the jury had been sworn and a witness examined, the fact that one of the jury was disqualified by having been a member of the grand jury that found the indictment became known to the court. Thereupon the court, without the consent of the defendant and under exception, discharged the jury and directed that another jury should be called. The defendant pleaded former jeopardy, but the court denied his plea. In discussing the question the court said: “As to the question raised by the plea of former jeopardy, it is sufficiently answered by citing United States v. Peres, 9 Wheat. 579; Simmons v. United States, 142 U. S. 148, and Logan v. United States, 144 U. S. 263. Those cases clearly establish the law of this court, that courts of justice are invested with the authority to discharge a jury from giving any verdict, whenever in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated, and to order a trial by another jury; and that the defendant is not thereby twice put in jeopardy within the meaning of the Fifth Amendment to the Constitution of the United States.” The question was, also, thoroughly discussed by the Supreme Court of Maine in State v. Slorah, 4 A. L. R., p. 1256, and the authorities bearing on the question reviewed. The court said:

“The administration of justice requires that verdicts, criminal as well as civil, shall be found by impartial juries, and shall be the result of honest deliberations absolutely free from prejudice or bias. The public as well as the accused have rights which must be safeguarded. If during the progress of a trial it shall become known to the court that some of the jury do not stand indifferent, whether toward the State or the accused, it would be a'travesty on the administration of justice if the trial must proceed, and, if acquitted by such a tribunal, the constitutional safeguard may be invoked against again placing him in jeopardy 'before an impartial jury. Such a trial obviously should not constitute jeopardy, whether the jury be prejudiced or influenced in behalf of the accused or the State. To prevent such a perversion of justice, it is now well recognized that, if it comes to the knowledge of the presiding justice that such conditions exist, it creates that imperious, manifest necessity that will warrant a discharge of the jury, and slich discharge will constitute no bar to another trial on the same indictment.”

In the case of State v. Duval, L. R. A. 1916 E, p. 1264, the Supreme Court of Louisiana held that the trial •court may discharge a juror in a capital case without the consent of the prisoner, whenever in its opinion there is a manifest necessity for such discharge. In that case, after the jury had been sworn and the indictment read, the court found one of the jurors to be legally incapable to sit on the jury because he had formed an expressed determination not to find the defendants guilty.

In the present case the juror had been on the jury which had tried and convicted three defendants who had been charged with making whiskey at the same time and place that the defendants were charged with making it. In other words, the five men were engaged in the same transaction, and, as soon as the juror discovered this to be the fact, he announced to the court that he had formed an opinion. Manifestly the action of the court in discharging the juror was in the interest of the accused and for the purpose of enabling him to obtain a fair and impartial trial.

Again it is insisted by counsel for Franklin that the court erred in permitting the sheriff to testify to an admission made by the defendant which was in the nature of a confession and which is claimed to have been Obtained by threats.

In answer to a question propounded to the defendant as to what had been said to him by the sheriff about it being to his best interest to tell about his connection with making the liquor, the defendant answered that the sheriff had said there was a worm in the defendant’s loft; that, if the defendant did not tell about it, the other boys were going to bring it up against him. The defendant then denied having made an admission to the sheriff at all. Having made this denial, he is in no attitude to claim that a confession was obtained from him by threats.

In No. 2527 counsel for Ben Davidson assigns as error the action of the court in permitting Jim Higgins to testify that Ben Davidson had told him how to make intoxicating liquors. Higgins liad already testified, -without objection, that he had bought a still and three barrels of beer from Ben Davidson. The witness was then permitted to testify that the defendant at the time said that he had put one and a half bushels of meal and sixty pounds of sugar in the three barrels of beer. There was other evidence tending to show that these ingredients were used in making whiskey. Therefore the testimony was competent as tending to connect the defendant with the making, or being interested in the manufacture, of intoxicating liquors on the occasion in question.

We find no prejudicial error in the record, and the judgment will be affirmed.


author: Smith, J.

text:
    Magnolia Petroleum Company v. Johnson.
    Opinion delivered July 11, 1921.
    1. Master and servant — independent contractor. — Evidence held to sustain a finding that one engaged in handling oils and gasoline for an oil company was its servant, and not an independent contractor.
    2. Master and servant — independent contractor — test.—The test as to whether an oil company was liable for negligence in the delivery of gasoline to a consumer, or was dealing through an independent contractor, is not whether the company actually directed the manner of its delivery, but whether it had a right to control the delivery.
    3. Negligence — sale of gasoline. — Evidence held to sustain a finding of negligence on part of defendant’s servants in the mode of delivering gasoline to a purchaser, and that plaintiff was not guilty of negligence that contributed to the resulting injury.
    Appeal from White Circuit Court; J. M. Jackson, Judge;
    affirmed.

      Gockrill & Armistead and John W. Newman, for appellant.
    Defendant was entitled to a peremptory instruction in its favor, (1) because the drivers were employees of an independent contractor, and (2) because the plaintiff was equally negligent as the drivers.

      There was no evidence as to defendant retaining any control or direction over the work of the drivers making deliveries. 105 Ark. 477; 118 Ark. 561; 128 Minn. 508; 152 Mich. 613; 203 N. Y. 191.
    Plaintiff was equally as negligent as the drivers. 96 Ark. 500.

      Jolm E. Miller and G. E. Ymgling, for appellee.
    (1) The drivers were employees of appellant. Independent contractor defined. 135 Ark. 117; 2 Words and Phrases p. 1034. See 144 Ark. 401; 132 U. S. 523; 14 R. C.L. p. 67; 38 A. S. R. 564.
    (2.) The question of contributory negligence was for the jury.
   Smith, J.

Appellee recovered judgment against appellant company for the value of a barn and its contents alleged to have been negligently set on fire by the agents, servants and employees of appellant. Liability on the part of appellant is denied upon two grounds, first, that it was not responsible for the acts of the persons whose negligence caused the fire, and, second, that appellee was guilty of contributory negligence which defeats his right of recovery.

Appellant is engaged in producing and selling oils and gasoline, with its principal Arkansas office in the cd'ty of Little Rock. In order to supply the territory in and about Searcy appellant entered into a contract with one J. N. Smith, who was in the transfer business at Searcy.' Under this contract the company shipped oil and gasoline to Searcy and stored it in their tanks there for sale, with Smith in charge.

Smith undertook to handle the-property with proper care, and to make sales and deliveries of gasoline on a commission 'basis, graduated according to the expense of delivery. The commission on deliveries in the city was two' cents per gallon and to country points was three cents.

The company supplied the containers for the oil and gasoline, while Smith, in consideration of the commissions paid, used the teams, wagons and drivers employed by him in his transfer business. The company was not consulted in the employment or discharge of these men, whose wages were fixed and paid by Smith.

The contract is a very elaborate one, and designates Smith throughout as the company’s agent, and he signed it in that capacity.

The company furnished the gasoline and oil and specified the prices at which it should be sold. The company required the drivers of the wagons making deliveries in the country to use sales" slips furnished by it. These slips were signed by the driver, and were so prepared that a carbon copy might be delivered to the purchaser. The originals were turned into the company, and in cases where accounts were run bills were sent out from the company’s office in Little Rock. Any money collected by the drivers was turned in by them to Smith, and all checks given in payment for oil or gasoline were made payable to the order of the company. The company caused to be painted on the wagons and tanks used in making deliveries the words, “Magnolia Petroleum Company,” this being the name of appellant company.

Section 21 of the contract between Smith and the company contains the following recitals: “It is expressly understood and agreed that the above rates of commission apply on sales made by agents, and the commissions to apply on sales made by salesmen, managers and others, and the commissions to apply on transfers between agencies, on home office contracts and on railroad contracts, are allowed as full compensation to agent for service to be rendered in connection with the proper handling of the company’s business in the territory assigned to the agency. The duties of the agent in return for Said compensation, includes the proper care of stock placed in his charge, storage tanks, warehouse and other' equipment, soliciting- and carrying on business under the direction of the division manager, and other authorized representatives, and the making of deliveries, the collecting of accounts, the making of reports required, unloading cars, and such other services as may be required for the proper conduct of the business. ’ ’

Section 22 of that contract provides that the company shall furnish, free of charge, all forms, stationery and postage for the proper conduct of the business, and that all other items of expense shall be assumed by the agent, Smith.

No complaint is made of the instructions given on this subject. The insistence is that the undisputed evidence shows that Smith was an independent contractor, and that the drivers of the wagons were the servants of Smith.

. The majority of the court are of the opinion that the facts stated made a case for the jury, and that the contract between the company and Smith created the relation of principal and agent, and that the company had reserved the right to control and direct the manner of making deliveries of oil, and that, while no directions were given in the particular instance as to the manner of delivering the oil to appellee, which caused the fire that destroyed, the 'bam, the company had reserved the right of direction; and, in the discharge of all duties, whether performed by Smith himself or by men employed by him, in selling and delivering the oil, the work done was that of the company.

We -recognize, of course, that the designation of Smith as “agent” in the contract is not conclusive of the relation. J. R. Watkins Medical Co. v. Williams, 124 Ark. 545. The test'is, not whether the company actually directed the manner of the delivery of the oil, but is whether the company'had the right to control the delivery. 14 It. C. L., section 3,'p. 67, of the article on Independent Contractors. And the majority are of the opinion that the contract between the company and Smith, as interpreted by the 'conduct of the parties under it, shows that it was the purpose of the company to retain complete control of everything done in connection with the sale and delivery of the oil, and that the testimony, in its entirety, warranted the finding that the drivers of the wagon were themselves the servants of the company.

The majority are also of the opinion that the question of appellee’s contributory negligence was properly a question for the jury. Instructions on the question of negligence of the drivers and the contributory negligence of appellee correctly declared the law. The insistence on this branch of the case is that under the undisputed evidence appellee was as negligent as were the drivers of the wagon, and that if it be said that the testimony, supports the finding that the drivers were negligent it must also be said that appellee was guilty of contributory negligence.

The testimony on this branch of the case is as follows: The wagon used in delivering oil to country customers was driven by Ernest Neal and Jim Mann. They drove the wagon to the home of appellee, and arrived there about dark on March 5, 1920. When they arrived, they called and asked appellee if he had a gasoline tank and, if 'so, where it was. Appellee answered that he had a tank, and that the tank was in his barn. ' Johnson was told to light his lantern and bring it to the barn. This appellee did, and he relates what happened as follows: “They drove the wagon up in front of the door, and backed right in front of the car shed door. Jim Mann started to draw the gasoline. He started to unscrew these taps I.call them, in the end of the steel barrel; I had seen it drawn that way.before; I had seen them take the small tap out,' and it seemed like it did better, and I mentioned it to him, and he said, no, he thought he could manage it all right that way, and he just took it out, the gasoline was flowing in the barrel back and forth. When he took the tap out, he said, ‘hold your light up where I can see.’ I was standing something like six or eight feet from him with the lantern down by my side, and when he told me to hold the light np I held it np waist high, and just about that time he took the tap out and the gasoline flew all over him, all over his hands and in front of his clothes, and it caught him afire. I saw the blaze leave the lantern and go to him. The blaze went right up into the barn and ignited it. Before he threw the barrel down and took the big bung out I suggested that he first take the small tap out. They usually pour the gasoline out of the barrel into a ten-gallon can, and then pour it into the gasoline tank. All the time before that they poured the gasoline through a rubber hose.”

We think this testimony legally sufficient to support the finding that Neal and Nann were guilty of negligence in- the manner employed of transporting the gasoline from the barrel to the tank, in that they did not use the rubber hose; nor did they remove the tap before tilting the barrel; nor did they first pour the gasoline into the ten-gallon can. The jury might have found that if any one of these things had been done the gasoline would not have splashed out over Mann.

The majority are also of the opinion that the question of appellee’s contributory negligence was properly a question for the jury. It is true he held the lantern which caused the explosion, but Mann and Neal were in charge of the barrel, and they ignored appellee’s suggestion, which, if it had been accepted, might have prevented the explosion. Moreover, the jury might have found that Mann and Neal were more experienced in handling gasoline than appellee was, and that appellee had, to that extent, the right to rely upon this superior knowledge and experience, inasmuch as' the act being done, was not so obviously dangerous that it must be said as a matter of law that an ordinarily prudent man would not have participated in it to the extent that appellee did.

No error appearing , the judgment is affirmed.


author: Hxjmpheeys, J.

text:
    Foshee v. State.
    Opinion delivered July 11, 1921.
    1. INTOXICATING LIQUORS — MANUFACTURE—INSTRUCTION.—In a prosecution for manufacturing liquor an instruction that if the defendant and others entered into a conspiracy to make some whiskey and built a still, prepared and boiled the mash and placed it in boxes to mature, and that this work was necessary in the manufacture of liquor, then the defendant would be guilty of manufacturing liquor, was erroneous; whether the liquid was intoxicating before it ran through the worm or coil was a question for the jury.
    2. Witnesses — self-crimination.—Where several persons were jointly concerned in the commission of a crime, and the State called each of them to testify against the others, admission of the testimony of such a witness against himself upon a subsequent trial did not constitute reversible error where no objection was made to its admission.
    Appeal from Pike Circuit Court; James 8. Steel, Judge.

      Pinnix & Pinnix, for appellant.
    Since appellants are accused of making and manufacturing liquor, nothing short of proof that the crime was actually committed in the actual making and manufacturing liquor would be sufficient to justify a conviction. The words “make and manufacture” become descriptive of the offense, and must be proved as charged. 62 Ark. 459; £4 do. 286; 71 do. 415; 64 do. 188; 37 do. 408; 36 do. 178; 16 do. 499; 129 do. 362.
    It was a question for the jury whether the words “make and manufacture intoxicating liquors” have a special meaning limiting them to the completed act, and including the preparation for the act. An intended unfinished act is not sufficient upon which to base a prosecution of this kind.
    For*definition of “manufacture,” see, 41 Fed. 326. Nothing was done or occurred to the mash or malt which caused it to be other than a raw unmanufactured article. 141 Ark. 267. The State was bound to prove, that the beer or mash had been run through the process of distillation. 60 N. 0, 496.

      It was error to compel appellants to be witnesses against themselves. 142 U. S. 562; 13 Ark. 307; 80 Fed. 374; 81 Fed. 803; 115 Ark. 390.

      J. 8. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants.
   Hxjmpheeys, J.

Appellants were separately indicted, tried and convicted at the March term, 1921, of the Pike Circuit Court, for the crime of making intoxicating liquors, and, as a punishment for the crime, each was adjudged to serve one year in the State penitentiary. From the respective judgments of conviction each has duly prosecuted an appeal to this court. While the facts are somewhat different, the vital question involved in the appeals is the same in all the cases, so the respective appeals will the treated in one opinion.

The evidence on the part of the State in the cases of the appellants John W. W. Foshee, in case No. 2518, and Ed Ray, in case No. 2520, tended to show that they manufactured intoxicating liquor at a still near to, and between, the homes of each.

The evidence on the part of each appellant tended to show that he was not interested and did not manufacture intoxicating liquors at said still.

The evidence on the part of the State tended to show that all of the appellants entered into a contract to manufacture whiskey at a still in said county, near the home of appellant George Meyers, on what was known as the “goat pasture;” and that, pursuant to the agreement, a still was set in the pasture, other necessary paraphernalia procured, ingredients obtained and converted into a liquid in the course of the process for making whiskey. At the time of the seizure of the still, paraphernalia and product by the officers, no cap and worm were discovered, and the liquid produced had not been run through the worm.

In all the cases, except No. 2522, in which C. C. Pounds is the appellant, the court, over the objection and exception of tlie respective appellants, instructed the jury as follows:

“If you find from the testimony in this case, beyond a reasonable doubt, that the defendant and others entered into a conspiracy to make some whiskey and the defendant and his associates built a still and boxes, hauled them to the still, set and arranged the still, prepared and boiled the mash, then placed it in the boxes to mature, and 'hat this work was necessary in the manufacture of liquor, then the defendant would be guilty of manufacturing liquor, and you will so find. ’ ’

In the Pounds case, the following additional words were added to the instruction: “And that the malt or beer had become alcoholic or intoxicating to any extent.”. The effect of these additional words, however, was rendered of no value by the modification made by the court in instruction No. 3, requested by the appellant Pounds. As modified, the instruction conflicted with the instruction given by the court.

The instruction given by the court in each case and set out above was predicated upon the idea that, when the liquid, commonly called beer, is produced in the process of the distillation of whiskey, it will be judicially said that the liquid is an intoxicating liquor, even before the vapor or gas, produced therefrom by the use of heat, passes through a worm or coil. No such presumption can be indulged. In the case of Lowery v. State, 135 Ark. 159, this court declared as a matter of law that the running of the liquid through the worm or coil once had the effect of producing spirituous or fermented liquor within the meaning of the statute prohibiting the distillation of spirituous or fermented liquors. As to whether the liquid or beer, before such treatment, is intoxicating, within the meaning of the statute preventing the manufacture of spirituous or fermented liquor, was a question for the jury. The instruction given took that question from the jury and was erroneous.

It is contended, however, by the State that the evidence was sufficient to show that appellants John W. W. Foshee, in case No. 2518, and Ed Ray, in case No. 2520, manufactured intoxicating liquor at the still in said county, near to and between their homes. The evidence introduced in behalf of said appellants, in their respective cases, tended to show that they were not interested in and did not manufacture intoxicating liquors at said still. We are unable to say whether the jury convicted them on the evidence adduced by the State, tending to show they made liquor at that still. For aught that can be said, the jury may have acquitted them of that charge and con-doted them of manufacturing intoxicating liquors at the still in the goat pasture, under the instruction which, in effect, told the jury that the beer, or liquor produced in the course of the distillation of whiskey before passing through the worm in the form of vapor or gas, was intoxicating liquor, within the meaning of the statute prohibiting the manufacture of spirituous or fermented liquor.

In the course of several of the trials, the State called the co-conspirators to testify against their co-conspirator then on trial, and the testimony given by each was afterward used in the criminal prosecution against him. This did not constitute reversible error in the cases now before us, because the evidence was admitted as against the particular appellant then on trial without objection' or exception on his part. For that reason, the contention now made by the several appellants that the court committed reversible error in this regard is not tenable. Should such objection be made in the retrial of the cases, it would be improper to use the evidence given by one against others in a subsequent prosecution against the. one testifying. Section 3122 of Crawford & Moses’ Digest is applicable to this character of evidence, and is as follows:

“In all cases where two or more persons are jointly or otherwise concerned in the commission of any crime or misdemeanor, either of such persons may be sworn as a witness in relation to snob crime or misdemeanor; bnt the testimony given by snob witness shall in no instance be nsed against him in any criminal prosecution for the same offense.”

For the error indicated, the judgment in each case is reversed, and each cause is remanded for a new trial.


text:
    Barnett v. State.
    Opinion delivered July 4, 1921.
    1. Justices op the peace — number to be elected — Crawford & Moses’ Dig., § 6389, prescribing that, in ascertaining the number of justices of the peace to be voted for and commissioned, the number of votes cast in the. general election next preceding shall be taken as conclusive of the number of electors in sueh township, is constitutional.
    2. Offices — vacancy—right to fill.. — Since, under Const. 1874, art. 19, § 5, officers continue in office until their successors are elected and qualified, if there is a failure to elect justices of the peace at a general election, those holding the office continue therein.
    Appeal from Hot Spring Circuit Court; W. H. Evans, Judge;
    affirmed.

      Oscar Barnett, for appellant.
    J. 8. Utley, Attorney General, Elbert Godwin, Assistant Attorney General, and W. T. Hammock, Assistant Attorney General, for appellee.
   Smith, J.

This is a proceeding in the nature of a quo warranto proceeding to try the title of the appellant, Horatio Barnett, to the office of justice of the peace of Fenter Township, in Hqt Spring County, this State.

The facts are undisputed and are as follows: At the general election in 1918, 245 votes were cast in Fen-ter Township. At the 1920 election the ballot contained the direction to the electors to “vote for three” justices of the peace, instead of the proper direction to “vote for two” justices of the peace. At the time of the 1920 election four persons held commissions and were acting as justices of the peace for Fenter Township.

Appellant Barnett testified that he and other electors supposed, four justices of the peace were to be elected, but that after the election had been held he discovered the fact to be that authority existed for the election of only two justices of the peace. He thereupon applied to and received from the Governor of the State a commission to fill a vacancy existing in the office of justice of the peace for Fenter Township. He testified that the showing was made to the Governor— and such is the undisputed fact — that 1180 electors had voted at the 1920 election, and that there were 1326 qualified electors in that township. The commission of the Governor recites that “it appears that a vacancy exists in the office of justice of the peace in Fenter Township, in the county of Hot Spring, State of Arkansas, caused by -,” and bears the date November 13, 1920. . After receiving the commission, respondent took the oath of office November 15, 1920. The insistence of respondent is that, inasmuch as the electors undertook to elect three justices of the peace, when authority for the election of only two existed, no one was elected, and that there was, therefore, a vacancy for the Governor to fill, and the vacancy was filled by the appointment of respondent.

It. is also insisted that, inasmuch as the record of poll taxes paid shows that there were 1326 qualified electors in Fenter Township, the electors of that township were entitled to the services of six justices of the peace, and, as that number was not elected, there was a vacancy in office, which was properly filled by the appointment of respondent.

Despondent’s authority to serve as a justice of the peace cannot he sustained upon either theory. It is provided that the electors of every township shall elect one justice of the peace for every 200 electors, provided each township, however small, shall have two justices of the peace. Section 6388, Crawford & Moses’ Digest.

It is provided in section 6389, Crawford & Moses’ Digest that “in ascertaining the number of justices of the peace to be voted for and commissioned, the number of votes cast in the general election next preceding shall he taken as conclusive of the number of electors in such township.” This act was held constitutional in the case of Alford v. State, 69 Ark. 436.

There was authority to elect two justices of the peace, and only two. Each elector had the right to vote for that number, and for no more. This election appears not to have been contested, and we cannot here decide what its result was. Persons were in office when it was held, and under the Constitution these officers continued in officej until their successors were elected and qualified. Section 5, art. 19, of the Constitution. So that in no event was there a vacancy to be filled by the Governor’s appointment.

The showing that 1180 electors voted at the 1920 election is unimportant, as is also the showing that there were 1326 electors who were qualified to vote.- Neither of these facts can be considered in determining the number of justices of the peace to elect. The proper basis was the vote at the 1918 election. Section 6389, Crawford & Moses’ Digest.

The court belowf found there was no vacancy in the office of justice of the peace, quashed respondent’s commission and enjoined him from exercising the functions of justice of the peace. This judgment was correct, and is affirmed. '


author: McCulloch, C. J.

text:
    Parrett Tractor Company v. Brownfiel.
    Opinion delivered July 11, 1921.
    1. Principal and agent — implied authority to give warranty.— It was not error to refuse to tell the jury that it was no part of the implied warranty of a salesman to make a specific warranty, as that question depended upon the facts established by the evidence.
    2. Sales — waiver op warranty. — It was not error to refuse an instruction in substance that an unconditional promise to pay the balance of the purchase price of goods with knowledge of a breach of warranty in the sale constitutes a waiver of the breach.
    3. Sales — breach op warranty — measure op damages. — Where defects in a machine could be corrected by reasonable expenditure, the measure of damages for breach of a warranty in its sale is the expense of curing such defects.
    4. Evidence — parol evidence of warranty in sale. — Parol evidence is admissible to prove a warranty in an oral sale of goods.
    Appeal from Poinsett Circuit Court; R. H. Dudley, Judge;
    affirmed.

      Arthur L. Adams, for appellant.
    In the absence of express authority, a general agent has no authority to warrant the machine sold. 24 B. C. L. 701, 702, 704.
    It was error to refuse to give instruction No. 2. A waiver is implied by a great period of delay. 102 Ark. 442 ; 29 Am. & Eng. Enc. of Law 1105; 27 B. C. L. 911. Betaining machinery after knowledge of defects without objection constitutes a waiver. 106 la. i85, 90, 40 Cyc. 267-8. 'Subsequent payment, following a breach of condition of performance, is a waiver. 110 Wise. 11; 55 N. Y. 280. A definite promise to pay following an alleged breach of performance is a waiver. 50 N. Y. App. Div. 38; 30 Am. & Eng. Enc. Law 183.
    The court erred in giving instruction 6 of its own motion and in refusing plaintiff’s No. 5. 83 Ark. 283; Sutherland, Dam. §672.

      Tlie verdict was not supported by evidence. 70 Ark. 385; 107 Ark. 158.
   McCulloch, C. J.

Appellant sold and delivered to appellees a tractor for the sum and price of $1675, of which $1,000 was paid in cash and a promissory note for $675, dated April 18, 1918, dne December 1, 1918, was duly executed by appellees to appellant. This is an action instituted by appellant against appellees to recover the amount of the note. There was an answer and counterclaim filed by appellees in which they alleged that there had been an express warranty of the quality of the machine sold to them by appellant and a breach of the warranty, whereby appellees suffered damages in the sum of $1675.

On a trial' of the issues before a jury, J. W. Brown-fiel, one of the appellees, testified that he and his son purchased the tractor from appellant’s agent, and that the latter, in an oral contract, warranted said tractor to be of sufficient quality and capacity to. do ordinary farm work, such as is commonly done in the use of that kind of a machine on a farm. The evidence of that witness and others tended to show that the tractor was not of that quality or capacity, and that appellees spent large sums of money in putting the tractor in condition to do the work which it was warranted to do. Appellee J. W. Brownfiel testified that he spent $600 on the tractor in order to make it do the work, and that that was not sufficient to put it in good order. There was other testimony as to the defects of the tractor and the amount of work necessary to put it in order. The testimony also tended to show that appellant was notified of the defects and sent an inspector to look at the machine. On the cross-examination of J. W. Brownfiel, he stated that, after his trouble in trying to make the machine work and after appellant’s agent and inspector had failed to make it work properly, he had written to appellant a letter in May, 1919, in which he promised to pay the note given for the balance of the purchase price. The letter was exhibited in evidence and contained the statement that the writer would pay the note or most of it in the month of July. Brownfiel, in explanation of this letter, stated that he had intended to pay for the tractor if appellant would mate it work properly. There was a verdict in favor of appellees for the recovery of damages in the precise amount of the note and interest, and the court rendered judgment off-setting the amount of damages found against the amount of the note sued on and adjudged that appellant recover nothing in the action.

The principal assignments of error relate to the rulings of the court in the giving and refusing of in- ' structions. The first contention is that the court erred in refusing to give an instruction which would have told the jury that it was “not a part of the implied authority of the agent to make any specific warranty.” The court was correct in refusing to give this instruction, for it should not have been said, as a matter of law, that there was no implied authority on the part of the agent to warrant the goods sold. That depended upon the facts established by the evidence.

It is next insisted that the court erred in refusing to give the following instruction: “2. Even though yoU may find that said tractor was unsatisfactory, in that it would not do the work for which it was purchased, and though you further find that there was a specific warranty or guaranty that it would perform said work or that it would fulfill other conditions, which said warranty or guaranty was not met, if you further find that the defendants, or either of them, made a new and definite promise to pay the amount originally agreed upon, they thereby waived any and all defenses accruing prior to such subsequent promise and are liable in the amount sued for; unless you further find that the plaintiff, after such subsequent promise of defendants, if any, renewed the original guaranty or made some further or other promise or agreement regarding said tractor with which they failed to comply.”

The substance of the declaration contained in this instruction is that an unconditional promise to pay the balance of the purchase" price with the knowledge of the breach of the warranty constitutes a waiver of the breach. This is hut another way of saying that a re-affirmance of the sale after the breach of the warranty constitutes a waiver. Such is not the law. This court held in the case of Plant v. Condit, 22 Ark. 454, that where there is a breach of an express warranty, the ven-dee may rescind the contract, or he may affirm the contract, keep the property, and, when sued for the price, set up the false warranty by way of recoupment. This doctrine was again reiterated in the case of Weed v. Dyer, 53 Ark., 155, where the court said: ‘ ‘ Acceptance of the goods, when the buyer knows that their quality is inferior to that warranted, implies an agreement to take them, notwithstanding the defect, and waives the right to reject them, but does not waive the right to a reduction when sued for the price.” Again the court said: “In most cases, the buyer, when he discovers that the quality of the goods is inferior to that warranted, would feel impelled by a sense of right and fair dealing to notify the seller of the fact (1) that he might satisfy himself of its existence, (2) that he might cure it. But in many cases this course might be found impracticable or even impossible; and, while the failure might be a circumstance for the jury to consider in ascertaining if there was in fact a breach of warranty, it could not defeat the recoupment if the breach was proved. How far such failure would weigh with a jury would vary with the circumstances of each case, and in all cases, be a matter for their determination.”

In the very recent cáse of Courtesy Flour Company v. Westbrook, 146 Ark. 17, we said: “The law on the subject is that, where chattels aré purchased under express warranty as to quality, the purchaser may rescind on discovering the inferior quality of the article sold, hut is not hound to do so, and, on the contrary, may retain the articles purchased and sue on the warranty, or recoup the damages when sued for the price.”

Now, if the retention of the article after discovery of the breach of the warranty does not operate as a waiver of the breach, it follows that the promise to pay the debt does not constitute a waiver. The purchaser having the right to elect either to rescind on account of the breach or to retain the articles and sue for damages resulting from the breach, he is liable for payment of the price upon his election to retain the articles, but is entitled to a reduction to the extent of the amount of damages resulting from the breach. So the purchaser, being liable for the price on his election to retain the property, does not waive the breach by promising unconditionally to pay it. It is, of course, as indicated by this court in Weed v. Dyer, supra, a circumstance for the jury to consider whether or not there has been a breach, but the promise does not, as a matter of law, operate as a waiver. The weight of this circumstance is, of course, affected by any explanation of the circumstance under which the promise is made, and it becomes a question of fact for the jury to determine whether there has been a breach of the warranty. We are of the opinion, therefore, that the court was correct in refusing to give this instruction. Another refused instruction stated, in substance, that if appellant was induced to defer action on the note by a promise of appel-lee’s to pay the debt at a future date, such promise constituted a waiver of the alleged breach of warranty. The instruction is open to the same objection stated above in regard to the other instruction, and there was no error in refusing it.

The next two assignments relate to the rulings of the court in giving instruction number 6 of its own motion and refusing to give instruction number 5 requested by appellant, which would have told the jury that “the measure of damages for such, breach is the difference between the actual value of the property at the time of the sale and what its value would have been if it had conformed to the warranty, with interest upon such sum. ’ ’ Instruction number 6 given by the court reads as follows: “If you find there was a guaranty and a breach of it upon the part of the company, and the defendants were damaged, then you will reduce your finding in the amount you find they have been damaged.”

The court had previously told the jury in another instruction that the execution of the note was undisputed, and that the jury should find for the appellant for the amount of the note and interest. The contention is that the court, in giving instruction number 6, failed to state the measure of damages, and that there was error in refusing to give instruction number 5. It is true that instruction number 6 given by the court did not undertake to declare the measure of damages. It merely told the jury that they should reduce the finding in favor of appellant to the extent of the damages suffered by ap-pellees by reason of the breach of the contract of warranty. The court should, if asked, have given an instruction defining the measure of damages, but the instruction which appellant requested did not state the correct measure of damages, and therefore the court did not err in refusing to give it. The instruction stated the measure of damages to be the difference between the actual value of the property at the time of the sale and what its value would have been if it had conformed to the warranty. The proof showed that the defects in the machine could be corrected by reasonable expenditure, and the correct measure of damages was the expense of curing the defects. Western Cabinet & Fix. Mfg. Co. v. Davis, 121 Ark. 370. The court was not bound, to give an instruction unless a correct one was asked, and appellant is in no attitude to complain of the court’s failure to define the measure of damages, in-asmucb. as it did not ask for a correct instruction on that subject.

It is also contended that the testimony tended to establish an oral warranty and was inadmissible. There was no written contract of sale. The note executed by appellees containing a reservation of title as security for the price did not constitute a contract evidencing the terms of sale. Appellant relies on the recent case of Federal Truck & Motor Co. v. Tompkins, 149 Ark. 664, but in that case there was a written contract of sale which we held could not be waived by parol proof of a warranty. It was therefore not improper to admit oral testimony as to the express warranty.

It is also contended that the evidence was not sufficient to sustain the verdict, but our conclusion is that there was sufficient evidence.

The judgment is therefore affirmed.


author: Humphreys, J.

text:
    Taylor v. Spivey.
    Opinion delivered July 11, 1921.
    Schools and school distRicts — VOLUNTARY contribution — liability op county treasurer. — Where A and B, interested in a school district, agree between themselves that if a certain sixteenth section of school land should sell for less than $6,400 at public sale, the difference between the sale price and that amount should he presented to the school district to be used as a building fund, and, pursuant to tl is agreement, A purchased the land for $3,400, and paid that amount to the State Treasurer for the benefit of the public school fund, and shortly thereafter A sold the land to B for $6,400, and deposited $3,000 with the county treasurer, who issued a receipt to A reciting the receipt of the money for the benefit of the building fund of the school district, the county treasurer is bailee of said fund for the benefit of the school district, and is accountable therefor in his official settlement with' such district.
    Appeal from St. Francis Circuit Court, J. M. Jackson, Judge;
    affirmed.

      Mcmn & Mann, for appellant.

      1. Has the county court the power under the facts in this case to require the treasurer to give School District No. 27 credit for this fund? Crawford & Moses’ Digest, §9110, provides that the proceeds of sale of 16th section lands shall he paid into the State Treasury, and placed to the credit of the county 16th section school fund. An unlawful agreement was made that $3000 should he retained by the district for a building fund. The fund properly belonged to the State, and the treasurer will probably be called on to account for it. He was right in not crediting the amount to the district. 11 Cyc. 446.
    2. Is the fund of such character as would render the treasurer and his sureties liable on his bond? The treasurer was not the lawful custodian. This fund was credited by methods not sanctioned by law. The treasurer and his sureties are liable to the rightful owner, but not to one not entitled thereto.

      J. W. Morrow, for appellees.
    Appellant contends that appellant need not account for the fund in question because it was a gift prompted by an invalid agreement between the giver and a third party. Under our theory it does not matter whether the sale was good or bad. The district had a right to receive the gift. It will not do for a bailee to hunt up a paramount claimant. 3 E. C. L. § 17. He cannot question the regularity of the proceedings by which money came into his hands. 29 Cyc. 1440, N. 76. The law is that an officer must account in his official settlement for all funds received by him for departments of which he is the official custodian, regardless of how or why the funds came into his hands. 109 Pac. 199.
   Humphreys, J.

This is the second appeal in this case. On the first appeal, the judgment of the circuit court was reversed, dismissing appellant’s appeal from the county court to .the circuit court, with directions to the circuit court to hear the objections which appellants had filed to the report of the appellee, the county treasurer, on the ground that he had failed to account in his report to the county court for certain money which, it was alleged, belonged to common school district No. 27 in St. Francis County. Upon remand, the circuit court heard and sustained the objections to the report and rendered judgment against said county treasurer, George P. Taylor, and his bondsmen, for the sum of $3,000 and interest, alleged to have been received by said county treasurer for 'said school district, for which amount he failed to account in his report. From that judgment an appeal has been duly prosecuted to this court.

The facts developed upon the hearing are, in substance, as follows: State school lands lying within said district were advertised, according to law, and sold by the sheriff of the county at public sale to the highest bidder.. J. S. ft. Cowan and B. C. Friar, being interested in the land and school district, agreed between themselves that, if the land sold for less than $6,400 at the sale, the difference between the sale price and that amount should be presented to said district, to be used as a building fund. Pursuant to this agreement, J. S. R. Cowan purchased the land at the sale for $3,400, and that amount was paid in cash to the sheriff, who, in turn, paid it to the treasurer of the State for the benefit of the public school fund. Shortly thereafter, Cowan sold the land to B. C. Friar, and, in addition to the purchase price of $3,400, received an additional check for $3,000 as a donation or gift to said school district No. 27. Either the check or the money derived therefrom was deposited by Cowan in the Planters’ Bank & Trust Company, at Forrest City, to the credit of George P. Taylor, as county treasurer. Thereupon, the treasurer issued the following receipt to Cowan:

“$3,000.00 Oct. 2nd, 1917.
Received of J. S. R. Cowan, three thousand dollars, deposited by J. S. R. Cowan to be placed to the credit of the building fund for School District No. 27, St. Francis County, Ark. Ck. of B. C. Friar.
“George P. Taylor, County Treasurer.”

The fund was checked out of the hank on checks signed by the county treasurer, but was used by the said George P. Taylor personally.

Appellant contends that the court erred in requiring him to account to said school district No. 27 for the sum of $3,000 deposited by J. S. ft. Cowan at the Planters’ Bank & Trust Company in Forrest City for him, and for which he receipted as county treasurer, because the fund was in fact a part of the general School fund of the State, and properly payable to the State Treasurer. The record of the sale of said school land does not so show. On the contrary, it shows that the land sold for $3,400, and that the amount of the bid was paid to the collector for the benefit of the general school fund of the State. It is true that an unlawful agreement was entered into by the purchasers to give $3,000 to the school district No. 27 in lieu of bidding the additional $3,000 at the sale. If the State was defeated by reason of the illegal com- ■ bination from obtaining this additional sum for the general school fund, the remedy to the State is twofold: Either to sue the purchasers for the fair price of the property or to rescind the sale and recover the land. The record reflects that the said sum of $3,000 w’as in the nature of a gift to said school district No. 27 by the purchasers at the sale and was so received by the county treasurer, and that it was not received by him as a part of the State school fund. By the receipt of same as county treasurer for the use and benefit of school district No. 27, the county treasurer became a public bailee of said fund for said district. Appellant, by virtue of his office, was the official custodian of the funds of said school district No. 27, and, having received the funds in his official capacity, is accountable for them in his official settlement to said district, regardless of the means

through which the funds were acquired. Skagit County v. American Bonding Co. of Baltimore, 109 Pac. (Wash.) 199.

No error appearing, the-judgment is affirmed.