author: McCulloch, C. J, McCulloch, C. J.

text:
    Wisconsin & Arkansas Lumber Company v. Ashley.
    Opinion delivered April 23, 1923.
    1. Master and servant — simple tool — canthook.—A canthook is not a tool so simple in its nature the furnishing of which may not form the basis of a charge of negligence.
    2. Master and servant — assumed risk — contributory negligence. — Where a servant has no opportunity to make a selection of a tool he does not assume the risk, nor is he guilty of contributory negligence, unless ithe defect in it and the danger from using it are so obvious that a man of ordinary prudence would not use it.
    3. Master and servant — assumed risk. — Where defendant's foreman, having selected a defective canthook for plainti’s use in unloading logs, promised to repair it, the promise relieved plaintiff from any assumption of risk in using it on that day.
    4. . Master and servant — instruction as to furnishing sáfe tools. — An instruction that it was the master’s duty to furnish defendant a reasonably safe canthook for use was not improper where the undisputed evidence was to the effect that plaintiff’s foreman furnished the particular canthook to him and directed him to use it.
    5. Appeal error — waiver of error. — An error in giving an instrucwas waived where similar instructions on the same subject were asked by appellant.
    Appeal from Union Circuit Court; G. W. Smith, Judge;
    affirmed.

      Mehaffy, Donham & Mehaffy, for appellant.
    The court erred in refusing to instruct <a verdict for the defendant. Ill Ark. 309; 97 Ark. 438; 148 Ark. 66; 149 Ark. 77. Appellee had the right to select his own tools to work with, and assumed the risk of any defect therein. 122 Ark. 522; 130 Ark. 486. His knowledge of the defective tool was equal to or greater than appellant’s. 2 Bailey, Personal Injuries, 1292; 18 R. C. L. 547, 549; 64 S. E. (Gra.) 65, 18; R. C. L. Master & Servant, 652; 88 Ark. 28. Defect was obvious, and appellee assumed the risk, even though there was a promise to repair. 88 Ark. 34; 148 Ark. 78; 81 Ark. 343. Canthook was a simple tool, and a promise to repair could not relieve the servant from, assumption of risk of injury by its use. 2 Bailey, Personal Injuries, 1292; 26 Cyc. 1209; 18 R. C. L. 652. Following implements have been held to be “simple tools:” “ Prize pole,” 17 S. W. 580; “crowbar,” 28 So. 643; “claw-bar,” 47 I'll. App. 465, 62 S. W. 1077; “gooseneck wrench,” 82 S. W. 319; “wrench,” 98 Fed. 192; “chisel,” 67 Atl. 28; 57 Ark. 503; “dull long-handled hook,” 46 Hun 497; “lifting jack,” 117 111. App. 9; “hammer,” 91 N. W. 152; “ladder,” 55 Ark. 483; “monkey-wrench,” 106 N. W. 841; “defective lantern globe,” 82 S. W. 1026; “tongs,” 182 Pa. 109; a “watergauge,” 97 N. Y. S. 801; “wheelbarrow,” 105 Pac. 794; “stick,” used for unchoking machine, 108 Ark. 377; “hatchet,” 130 Ark. 486. Promise to repair cant-hook had no reference to safety of appellee. 4 Labatt on Master and Servant, 3864; 3 Texas Civil App. 487; 2-3 S. W. 146; 58 111. App. 609; 91 111. App. 269; 6 C. C. A. 190; 12 U. S. App. 574; 56 Fed. 973; 22 Tex. Civ. App. 596, 55 S. W. 362; 109 111. App. 403; 117 Ky. 556, 78 S. W. 448; 137 Ky. 414, 125 S. W. 1067; 96 Tex. 605, 74 S. W. 897; 97 Am. St. Rep. 937; 41 Tex. Civ. App. 119, 92 S. W. 411; 67 S. W. 788; 53 Wash. 687; 102 Pac. 763; 155 111. App. 364. No negligence of appellant shown. Court erred in giving appellee’s requested instruction No. 3%. 93 Ark. 564; 95 Ark. 708; 94 Ark. 282; 96 Ark. 184; 102 Ark. 627; 134 Ark. 575. Instruction No. 4 also erroneous. 93 Ark. 29; 14 R. C. L. 738.

      Powell <& Smeacl and D. D'. Glover, for appellee.
    No error in giving appellee’s instructions. 130 Ark. 486; 107 Ark. 512. Appellee was not negligent. Facts of this case altogether different from 147 Ark. 77, wihich is not in point. Risk not assumed by appellee. 2 Bailey on Personal Injuries, 1279; 90 Ark. 555; 144 Ark. 377. Canthook not a simple tool. 107 Ark. 512; Words and Phrases, 594; 98 Miss. 750, 40 L. R. A. (N. S.) 852; 132 Gra.' 211,- n 40 L. R: A. (N. S.) 85; 136 Ark. 473. Promise to appellee was with reference only to his safety. The evidence supports the verdict.

      Meha-ffy, Donham ■& Mehaffy, in reply.
    Appellee was an experienced servant, appreciated the danger, and assumed the risk. 105 Ark. 434; 95 Ark. 291; 101 Ark. 197; 103 Ark. 61. Evidence uncont-radieted had right to choose his own canthook. 93 Ark. 140; 108 Ark. 377; 107 Ark. 512; 4 Thompson on Negligence, §4003. Appellant\s theory of the case ignored by appellee’s instruction 3%. Case of 149 Ark. 77 controlling here.
   McCulloch, C. J,

Appellant is a corporation, organized under the laws of the State of Wisconsin, and is operating a sawmill and lumber business in Hot Spring and Grant counties, in this State.

Appellee was employed by appellant as a log hauler in the woods, and while working in the line of his duty he received personal injuries.

This is an action instituted by appellee to recover damages on the allegations that his injuries were caused by negligence of appellant in furnishing a defective appliance with which appellee was required to work.

The appliance alleged to be defective, and with which appellee was working at the time he received his injuries, is a canthook, which is described as a tool with a wooden handle with a metal hook fastened to an iron cuff a short distance from the bottom, and used in lifting logs in unloading, the hook being attached to the cuff on the handle so as to give play to the hook. There is a metal band on the lower end of the handle with a nick in it, so that, while it rests on the upper side of a log, it will not slip, and the hook, being sharp on the end, is fastened in the lower side of the log, and in this way the log may be lifted with the hook.

Appellee was hauling logs on a wagon from the woods to the mill, and was injured while he was unloading logs from the wagon. Three logs were on the wagon, according to custom, and were held in place by bumper-blocks, which were fastened to the wagon with pins. In unloading it was necessary to release the blocks by drawing out the pins, and then the logs were rolled off. The customary method was to draw the pin in the block on one end of the wagon, and, as this threw the whole weight of the logs against the blocks at the other' end, it was necessary to lift the log resting against the blocks before the pin could be removed, and this lifting was done with a.canthook.

It is alleged that the canthook was defective 'because a piece of the handle around which, the cuff fits was broken off and allowed the cuff to slip, and that when appellee attempted to raise the log preparatory to drawing the pin from the block, the hook slipped and came free from the log, and the momentum pitched appellee forward, and,the log rolled from the wagon and fell on him, crushing him. Appellee testified that he was injured in this way, and his own testimony, as well as that of other witnesses, tends to show that there was a defect in the canthook, and that it was this defect which caused his injury. He also testified as follows with ref-' erence to the use of this particular canthook: ' That the afternoon before his injury his wagon broke down, and in some way the canthook he was then using was run over and the handle broken; that he called upon his foreman, Mr. Siders, for another, and Siders handed him another hook and told him to use that one. He testified further that the next morning he discovered the defect in the canthook, and went to Siders and said, “Cap, I have got to have my canthook fixed, it won’t hardly hold,” and that Siders looked at it and replied, “That’s all right, go ahead and use it today, and I will have it fixed tonight.” Appellee testified that it was possible to use the hook and make it hold by grasping the cuff with one hand and holding it in place.

There was evidence introduced by appellant tending to show former statements made by appellee to the effect that the canthook slipped by reason of thé fáet that the bark on the log had been burned off and that the log was slippery, and the canthook Would not pierce it so as to hold fast. Appellee denied that he made this statement, and this made a question for the jury as to the cause of the injury.

Appellee relied for recovery upon proof of the defect in the tool furnished him with which to work, and the promise of the foreman to repair it.

It is earnestly contended by counsel for appellant that the undisputed evidence'brings the facts of the case within the operation of what is called the ‘‘ simple tool” doctrine, and that, on account of the simplicity of the tool furnished, no charge of negligence can be predicated upon the defect, and that the promise of the foreman to repair it did not relieve appellee from his assumption of the risk of danger which resulted. Counsel rely upon decisions of this court in which some recognition has been given to the doctrine mentioned. C. R. I. & P. Ry. Co. v. Smith, 107 Ark. 512; Fordyce Lumber Co. v. Lynn, 108 Ark. 377; Arnold v. Doniphan Lumber Co., 130 Ark. 486. They also cite a great many decisions of other courts on this subject. It cannot be -said that this court has given full recognition to this doctrine as announced by some of the other courts; in fact,' our recognition has been very guarded and limited. In the Smith case, supra, we said:

“There is no hard and fast rule that may be laid down as governing the liability of an employer for a defect in common tools. In view of this condition, we do not undertake to say what state of facts the rule of liability should embrace and what state of facts it should not. ’ ’

That was a case where negligence was based on a charge against the master for furnishing a hammer with a worn and defective striking face.

In Arkansas Central R. Co. v. Goad, 136 Ark. 467, we held that a lining bar used in raising'railroad ties for -the purpose of spiking the rails to the ties was' not .a simple tool, within the meaning of the doctrine bearing that designation. It seems to us now that a eanthook is not less simple in its construction and operation than a lining bar as described, in the Goad case, supra. In fact, there are more complications about the construction and use of a canthook than there are about a lining bar. Learned counsel for appellant cite, a great many cases giving effect to this doctrine, but none of the cases refer to the particular tool involved in the present inquiry. On the contrary, there are cases which expressly hold that a canthook is not a tool so simple in its nature the furnishing of which may not form a basis of a charge of negligence. Parker v. Lumber Co., 98 Miss., 750, 40 L. R. A. (N. S.) 852; Williams v. Garbutt Lumber Co., 132 Ga. 221.

The evidence shows that appellee did not make his own selection of the particular tool to be used, but that it was furnished to him by the foreman, with express instructions to use it until it could be repaired, and there was a promise that it would be repaired by a certain time. This furnishes additional reason why the doctrine invoked by counsel.has no application, for, where the servant has no opportunity to make a selection of the tool, he does not assume the risk unless the defect in it. and the danger from using it are so obvious that a man of ordinary prudence would not use it. Nor does it constitute contributory negligence on the part of the servant to use such an implement unless the defect and consequent danger are so obvious that a person of ordinary prudence would not use it under the circumstances. We cannot say here that the undisputed evidence shows contributory negligence on the part of appellee.

The evidence was sufficient to warrant the jury in finding '"that there was an express promise to repair, which relieved appellee from all assumption of risk.

The next ground urged for reversal of the verdict is the giving of an instruction as follows: •

“No. 3y2. You are instructed that it was the duty of the defendant company to exercise reasonable care to furnish the plaintiff a reasonably safe canthook for use by him in work being performed for defendant, and it was the further duty of the defendant to exercise the same degree of care in maintaining said canthook in a reasonably safe condition for his use.”

It is urged that this instruction was erroneous for the reason that appellee had the opportunity, and it was his duty, to select his own working tools, and that it was therefore his duty to see that the same was safe for use. We think that counsel place the wrong interpretation on the state of the testimony in the case, for, as we understand it, there is no dispute about the fact that the foreman selected the canthook and gave it to appellee, with express instructions to use it until it could be repaired. There was, indeed, testimony introduced to the effect that appellant maintained a blacksmith shop near the working place, and that workmen were authorized to take the tools to the blacksmith shop and have them repaired, in the absence of the foreman. This, of course, did not apply to a case where the tool furnished to the servant was selected and given to him by the foreman with directions to use that particular tool. We are therefore of the opinion that there was no evidence to the effect that it was the duty of appellee himself to select the particular tool and to have it repaired, and that there was no error in giving the instruction concerning the duty of the employer to exercise ordinary care to furnish reasonably safe tools. This statement covers-the objection that was also made to instruction No. 4;

These are the only grounds urged for reversal of the judgment, and our conclusion is that neither of the grounds is tenable, and that the record is free from error, and the verdict is supported by sufficient evidence.

Affirmed.

OPINION ON REHEARING.

McCulloch, C. J.

Counsel again insist that -there is proof in the record to -the -effect that it was -the duty of appellee to -select the implement to work with, -and that instruction -No. 3y2 ignored that proof, and was therefore erroneous. We have reexamined the record, ■•and ■still fail to- find substantial testimony to the effect claimed by counsel. It seems undisputed that the cant-hook wias furnished to appellee by the foreman, though there is a conflict as to the promise to repair. But, even if there had been such proof, the alleged error in instruction No. 3% was waived by reason of appellant having requested and obtained similar instructions on the same subject. Morris v. Raymond, 132 Ark. 449; Patterson v. Risher, 143 Ark. 376. In three separate instructions (those numbered 3, 4 land 6), given at the request of appellant, the court submitted to the jury, as a test of ■appellant’s liability, the question of the degree of care exercised in .furnishing tools to work with.

Rehearing denied.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    Watkins v. Metropolitan Life Insurance Company.
    Opinion delivered April 23, 1923.
    1. Evidence — admission against interest. — In an action on a life insurance policy in which, defendant relies upon exemption from liability for self-inflicted death as a defense, it may be shown in evidence that in regard to another policy plaintiff in. the proof of death admitted that insured committed suicide, tout such admission is not conclusive, and is susceptible of explanation as to the manner of its execution, and what was actually said and done in connection therewith.
    2. Trial — singling out evidence. — It was not error to refuse to single out a particular piece of evidence and to comment upon its probative force.
    3. Evidence — opinion of witness — foundation.—It was not error to refuse to permit a witness to state his opinion as to whether a straight line drawn from the drawer of a dresser to where a bullet entered the ceiling would pass through insured’s head, in the absence of any proof as to the position in which insured was standing, nor the attitude of his body.
    4. Trial — argumentative instruction. — It was not .error to refuse to give a requested instruction that was argumentative in form, or that was covered by instructions given.

      Appeal from Jefferson Circuit Court; W. B. Sorrels, Judge;
    affirmed.

      Daoiaher é Damaher, for appellant.
    The court erred in permitting the written statement, signed by appellant, of the cause of death, to be introduced by witness Lee, and in failing to instruct the jury properly in regard thereto, as stated in appellant’s requested instruction No. 8. 81 Ark. 205; 79 Ark. 315. Also in refusing to allow witness 'Stowell to answer the hypothetical question as to where the bullet would hit the ceiling. 22 C. J. 553; 59 Ark. 140-3; 100 Ark. 232; 62 Ark. 254. Erred in refusing to give appellant’s requested instruction No. 5 as to presumption against suicide. 80 Ark. 195; 128 Ark. 160; 131 Ark. 419; 146 Ark. 70'. Requested instruction No. 6 was also the law, and the court should not have given appellee’s instruction numbered 2.

      Coleman S Gantt, for appellee.
    Case involves substantially same facts as in 152 Ark. 12, the facts showing’ suicide of the assured being more fully developed herein. No error in admitting written statement of appellant as to cause of insured’s death. 37 Ark. 580; 80 Ark. 419; 93 Ark. 209. Admission against interest. 84 N. W. (Wis.) 851; 92 N. W. (Wis.) 1104; 44 N. E. (N. Y.) 1099; 22 Wall. 32, L. ed. 793. Precise question passed on in 152 Ark. 12; 71 Ark. 185; 70 Ark. 512; 2 Jones on Evidence, § 296. Objection being withdrawn, appellant cannot complain that no instruction regarding it was given. 37 Ark. 580. No question of estoppel involved in any event. 151 Ark. 231; 2 Jones, Comm, on Evidence, § 280; 89 Ark. 349. Cases cited by appellant not in point, and reason for rule announced therein explained in 52 Ark. 11; 14 R. C. L. 1166. No error in refusing- to allow witness to answer hypothetical question. 2 Jones, Evidence, chapter 12, <§> 360. Appellant’s requested instruction 5 was asked and refused in 152 Ark. 12, and it was virtually covered by instructions given. Presumption against suicide only exists in absence of evidence. No error committed in giving or refusing instructions, and No. 2, given at appellee’s request, was given in Watkins case supra. Judgment should be affirmed.
   Wood, J.

This action was instituted by the appellant against the appellee. The appellant alleged that Carl F. Watkins was insured by the appellee on January 16, 1920, in a policy for $1,000, and also an additional $1,000 in case death should result from violent, external, or accidental means; that appellant was the beneficiary in the policy; that Carl F. Watkins died on September 20, 1920, from injuries received through violent, external and accidental means. Appellant prayed for judgment in the sum of $2,000.

The answer admitted the issuance of the policy by the appellee, but denied that Watkins died as the result of injuries received through external, violent, and accidental means, and alleged that his death was the result of suicide. Appellee set up in defense the following clause in the policy: “If the insured-, within one year from the issue hereof, die by his own hand or act, whether sane or insane,- this policy shall become null and void, and the company will return only the premiums which have been received thereunder.” And a further provision, which, in part, is as follows: “This indemnity shall not be payable if the death of the insured results directly or indirectly from disease or from bodily or mental infirmity, or from self-destruction, whether sane or insane * * The appellant introduced the policy by the terms of which appellee insured the life of Carl F. Watkins in the sum of $1,000, payable at his death, and in the event death should be caused by violent, external and accidental means, an additional $1,000. The policy contained the clauses above set forth.

The appellant testified that she was the mother of Carl F. Watkins. On the day of his death he came home about 11 o’clock, and sat in the dining room until lunch time. He was very nervous and his face flushed. She asked him if he wanted her to call a doctor, and he answered “No,” that he would be all right in a few minutes. He lay down for a while, and got up and went to his room. Witness heard a shot, and pushed the door open and saw her son staggering, in the act of falling. She put her arms around him and eased him to the floor. He never spoke a word after the accident. He was standing in front of the bureau, facing the same, and the drawer was open. The pistol was in his right hand when witness got to him. She didn’t know how he was holding it. Witness further testified that he became engaged in August, and in September following ascertained that the girl to whom he was engaged had been married. He wrote her about it, and she replied. They kept up a correspondence. He was cheerful and happy, and witness noticed no change in him after he learned that the girl had been married. It was arranged between them that she was to come over Christmas and they were to be married in January.

The family physician, called on the day of Watkins’ death, testified that when he reached the home he found Watkins dead. The body was lying between the bed and dresser. He found the cause of his death was a bullet wound which showed that the bullet entered his head a little in front of and above the ear and came out on the other side of his head. The bullet came out about an inch and a half higher than the point of entrance. Witness saw the pistol, said to be the cause of his death, lying some ten or fifteen inches from the bodv. It had one chamber fired. There was further proof to the effect that the bed appeared as though some one had been lying on it, and there were powder burns on the head of Watkins., The pistol lying near his body was a .38 Smith & Wesson, which had been recently fired.

There was testimony on behalf of the appellee tending to show that, on the morning of the day that Watkins died, he was working at'the Saline River Hardwood Company. The superintendent of the plant under whom Carl worked-stated that about 9:30 o’clock be observed that Carl did not look natural, and stated that lie was not feeling well. He seemed to be laboring under a heavi mental strain. Watkins started home, and witness walked with him .about eight or ten blocks, when Carl stopped and said, “This is far enough.” He was-mumbling and talking, and there were tears dropping off of his cheeks. Witness asked him what was the trouble, and he replied, “Well, she isn’t what I thought she was.” Witness thought it was a lover’s quarrel, and told Carl not to get discouraged, that everything would come out all right. Witness tried to get him to' go back to the mill, but he said, “No, I am going home and tell father and mother. I never keep anything from them. Whatever I do, I know it is with a clear conscience. I have got to choose between three points. I have got to forsake my mother and my Grod and stay with this girl, or I have got to forsake this girl.” Witness forgot what the other point was. During their conversation witness asked Watkins if he had any evidence that the girl referred to wasn’t what she should be, and he replied,.“Yes, she has been married and never gotten a divorce.” Witness didn’t know whether that was all the trouble or not. Witness didn’t know whether they were engaged to be married or not. Watkins further told witness that his religion didn’t permit him to marry a girl with a living husband. Watkins was one of the best boys witness ever knew. He belonged to the Episcopal Church, and witness believed that he was a Christian.

Another witness testified of Watkins’ despondency on the morning previous to his death the same day.

Witness Lee testified that he was assistant manager -of the appellee at Pine ¡Bluff. The appellant came to his office to make out a death claim on an industrial policy, and witness talked with her about it. She told witness that she didn’t see her son shoot himself, but when she heard the shot she went to his room and got to him in time to lay him down on the floor. Witness introduced a statement which was made out by him and contained, among other things, the following: “5th: Cause of death — Suicide.” The statement was signed by the appellant. Witness wrote the word ‘ ‘ suicide, ’ ’ but didn’t remember whether she told witness to say that or not. Witness didn’t know whether he wrote the word from anything that appellant said or just from an assumption on witness’ part. The manner of Watkins’ death had no effect on the industrial policy which witness had under consideration, but witness knew that the policy sued on was outstanding at that time.

Witnesses on' behalf of appellant testified in rebuttal that the bullet entered Watkins’ head about an inch in front of the ear and came out in the part of his hair on the other side of his head. There were no powder burns on his head. Witnesses also testified concerning .the location of the furniture'and Watkins’ body when he was discovered. One of these witnesses, Dr. Stowall, rector of the Episcopal Church, testified that there was about two feet space between Watkins’ feet and the little dresser, his feet pointing toward it, indicating that he had been standing in front of the dresser. The two lower drawers of the dresser were shut, and the upper drawer open about six inches. The dresser was about two and a half feet high. Witness saw a hole in the ceiling where the paper had been punctured and the wood splintered about a half foot from the west wall and seven or eight feet from the north wall. Witness was asked the following question: “If one were reaching in that drawer standing in front of it, where would a straight line from that drawer and through the head of a person standing there hit on the. ceiling with reference to where this hole was in the ceiling that you saw?” The court sustained the appellee’s objection to the question, ruling that the'appellant would first have to show that Watkins was standing in a particular position be fore the appellant could show that a straight line drawn from the dresser drawer to where the bullet entered the ceiling would pass through a man’s head. The attorney for the appellant announced that such proof would be made. The court ruled that appellant had better make that proof first, which would make the testimony admissible. Appellant excepted to the ruling of the court.

The appellant introduced letters and a telegram from Watkins’ fiancee, tending to show her tender affection for him. Mrs. Watkins also testified in rebuttal that Mr. Lee wrote the paper signed by her which he introduced in evidence. He didn’t write it like witness told him to. She didn’t tell him it was suicide. Witness told him how it happened, and he wrote ‘ ‘ suicide ’ ’ of his own motion. Witness signed the paper after Mr. Lee wrote it, without looking it over.

The court instructed the jury, at the instance of the appellant, in instructions 2, 3 and á, to the effect that the burden was upon the appellee to establish by preponderance of the evidence that Watkins committed suicide; that, if the jury believed from the evidence that Watkins came to his death as a result of a pistol shot accidentally fired by himself, they should find for the appellant; that the word “self-destruction,” as used in the policies in evidence, means “intentional self-destruction,” and must not be construed to include death by accident or mistake.

Among other instructions, the appellant requested the following:

“5. If you find from the evidence that deceased was found with pistol-shot wound in his head, which caused his immediate death, this makes a prima facie case for the plaintiff, because the law presumes that one does not commit suicide, even where the wound is self-inflicted. Such presumption of evidence stands until overthrown by evidence that deceased intentionally shot himself. ’ ’

“6. If you find from the evidence that Carl Watkins shot himself accidentally, your verdict will be for the plaintiff, even though you may believe that, he was insane at the time.”

“8. If you find from the evidence that, at the time of making the claim for insurance which was introduced in evidence by the witness Lee, the plaintiff made correct answers to the questions propounded to her by Lee, the defendant’s agent, but, without her knowledge, said agent wrote down incorrect answers, or different answers from those given by the witness, the insurance company is estopped to take advantage of the wrong of its own agent, and the false answer so written does not bind the plaintiff in any manner.”

At the request of the appellee, the court gave the following instruction:

“2. If you find from a preponderance of the evidence that the deceased shot.himself for the purpose of self-destruction, then you are instructed that this was not a risk assumed by the defendant company in its policy, and you should find for the defendant, even though you should further find from the evidence that the deceased, at the time he shot himself, was not in his right mind and did not understand the moral character or the nature and consequences of the act he was about to commit.”

On its own motion, the court instructed the jury as follows:

“3. If you find from a preponderance of the evidence that the deceased intentionally killed himself, you will find for the defendant. If you find from the evidence that the deceased did not intentionally kill himself, you will find for the plaintiff.”

“4. In explanation of that instruction, if he purposely and intentionally killed himself, then the defendant on that account is entitled to a verdict, though it may appear that he was insane at the time he intentionally killed himself.”

The jury returned a verdict in favor of the appellee. Judgment was entered in its favor, from which is this appeal,

1. The'appellant contends that the court erred in permitting the statement, written by witness Lee and signed by the appellant, to be introduced in evidence, and in failing to give appellant’s prayer for instruction No. 8 in connection with the written statement. It appears from . the testimony of Lee that Mrs. Watkins was the beneficiary in what is called an “industrial” policy issued by the appellee, and that it did not contain a provision against suicide; that was a different policy from the one on which the present suit is based. Mrs. Watkins called at Lee’s office, in connection with the policy, to prove the death of the insured, in accordance with the requirements of the company. The agent filled out one of the forms prepared by the company for proof of death. Mrs. Watkins, according to her own testimony, related the facts as she knew them concerning the death of Watkins, and Lee did the writing. She didn’t tell him it was suicide, and he didn’t write it down as she told him. He wrote the word “suicide” in the statement on his own motion, and she signed the paper without reading it over. Lee testified that he wrote the word “suicide” in the statement, and didn’t remember whether appellant told him to say that or not. He didn’t remember whether he wrote the word from anything that she said, or just from an assumption on his part from the facts as related by her.

The court, over the objection of appellant, first held that the testimony was admissible. Afterwards the court, upon further examination of the witness, changed its ruling and offered to exclude the statement. Counsel for appellant thereupon withdrew his objection to the evidence, and the court permitted the statement to remain in evidence for the consideration of the jury. The court did not err in admitting the statement concerning the proof of death. Although the statement was made pertaining to a different policy from that involved in this action, nevertheless it was competent testimony, and was relevant to the issue being tried. The appellant was contending in the present 'ease that the death of her son was not the result of suicide, that is, an intentional self-destruction. If she, at any time, in making proof of death, by word or act admitted that his death was suicide, then proof of such words or acts would be competent testimony in this case as admissions against her interest. Shinn v. Tucker, 37 Ark. 580-592; W. O. W. v. Jackson, 80 Ark. 419; St. L. I. M. & So. Ry. Co. v. Dallas, 93 Ark. 209.

In Watkins v. Reliance Insurance Co., 152 Ark. 12, the action was based on policies issued by the Reliance Insurance Company on the life of Watkins in favor of his mother. Mrs. Watkins, the appellant here, was the beneficiary under those policies, and her son, Carl, was the insured. One of the defenses'there was suicide under a similar provision of the policy here under consideration. In that case we said: “To be sure, if Mrs. Watkins, when making proof of the death of her son, had done or said anything to warrant the conclusion that she was not then contending that the death was accidental, but, on the contrary, had by her words or acts at that time admitted or declared that the death was by suicide, then it would be competent to show what those acts and declarations were. Because, under such circumstances, her acts and declarations would be relevant, as in the nature of admissions against interest and contrary to her contention at the trial. ’ ’

The principle there announced is applicable here, and, under it, the statement and the testimony of Lee and Mrs. Watkins concerning the manner of its execution were all relevant to the issue as to whether or not the death of Watkins was suicide. The appellant admitted that she signed the instrument, which, upon its face, showed that it was a proof of death by suicide. This rendered the instrument competent' as testimony in the nature of admission against interest, but it was only prima facie, and not conclusive of the purported facts recited therein. It was not contractual in its nature, and was therefore susceptible of explanation as to the manner of its execution and what was actually said and done in connection therewith The instrument was merely a piece of evidence relative to the issue of suicide. See Hart v. Fraternal Alliance, 84 N. W. 851; Mutual Benefit Life Ins. Co. v. Newton, 22 Wallace 32; Voelkel v. Maccabees, 92 N. W. 1104; Hannan v. Conn. Mutual Life Ins. Co., 44 N. E. 1099.

The testimony of Lee, as well as the testimony of the appellant admitting that she signed the statement, rendered the same competent and admissible as evidence. The weight to be given to it under their testimony was for the jury. 2 Jones, Comm. on Evidence, § 296. Since the statement was competent and relevant as evidence, the doctrine of estoppel could not be invoked by the appellant to prevent the appellee from introducing it. See Sov. Camp W. O. W. v. Richardson, 151 Ark. 231. Nor would the court be justified in singling out this piece of evidence and commenting upon its probative force. Jenkins v. Quick, 105 Ark. 467; Fowler v. State, 130 Ark. 365. There was no error therefore in refusing to grant appellant’s prayer for instruction No. 8.

2. There was no error in refusing to permit the witness Stowall to answer the question propounded to him by appellant’s counsel at the time the question was asked. There had been no testimony at that time tending to prove the exact location where Watkins was standing in front of the dresser drawer, nor the attitude of his body, whether straight or stooped. The court ruled that it was necessary to lay this foundation by showing the particular position in which Watkins was standing before there could be an answer to the hypothetical question. This ruling was correct. Without being able to state the facts upon which the answer was based, the answer itself would have been but the baldest speculation-mere opinion evidence, without any foundation of fact on which to base it. 2 Jones, Comm, on Evidence, dhap. 12; also § 360.

Tlie testimony of Mrs. Watkins, afterwards introduced, tended to prove that Watkins, *at the time he was shot, was standing in front of the burean facing the same, but appellant, after this testimony, didn’t renew or offer to renew the question. Therefore, appellant cannot complain because the hypothetical question asked witness Stowall was not answered.

3. The court did not err in refusing appellant’s prayer for instruction No. 5. While this instruction embodied principles of law announced in the case of Grand Lodge v. Bannister, 80 Ark. 195; Ætna Life Ins. Co. v. Taylor, 128 Ark. 160; Bus. Men’s Assn. v. Cowden, 131 Ark. 419; and Ætna Life Ins. Co. v. Little, 146 Ark. 70, nevertheless the instruction was argumentative in form. Furthermore, the appellant could not have been prejudiced by the refusal to give the prayer, because the court, in instructions 2, 3 and 4, given at the instance of the appellee, had correctly covered all the law embraced in appellant’s prayer No. 5. The court likewise did not err in refusing appellant’s prayer for instruction No. 6. The proposition of law embraced in this instruction was fully covered in appellant’s prayer for instruction No. 2, which the court gave, and instruction No. 3, given on the court’s own motion. The appellee’s prayer for instruction No. 2, which the court gave, was not happily worded, but no specific objection was made to its phraseology, and we are convinced that, when taken in connection with instructions Nos. 3 and 4, given on the court’s own motion, and appellant’s prayers Nos. 2 and 4, which the court gave, there was no prejudicial error to appellant in giving appellee’s prayer for instruction No. 2.

After carefully reviewing the charge of the court as a whole, we conclude that the law was correctly declared in substantial conformity with numerous decisions of this court. See Watkins v. Reliance Ins. Co., supra, and cases there cited; also the more recent cases of N. Y. Life Ins. Co. v. Watters, 154 Ark. 569; Grand Lodge A. O. U. W. v. Mode, 457 Ark. 62; Mott v. Sov. Camp W. O. W., 155 Ark. 259.

The judgment is correct, and it is therefore affirmed.


text:
    Citizens’ National Bank v. Union Indemnity Company.
    Opinion delivered April 23, 1923.
    Insurance — burglar policy — forcible entry. — Conceding without deciding that ledgers, hinders, ledger guides and ledger leaves are covered by a burglar policy securing insured against loss of “money and securities,” held where the policy provided against liability, in the event the safe is not locked by the time lock, unless “forcible entry is made therein by the use of tools, explosives, chemicals or electricity directly thereupon,” and the entry into the safe is shown to have been made by one who knew the combination, no liability is shown.
    Appeal from Garland Circuit Court; Scott Wood, Judge;
    affirmed.

      L. E. Sawyer, for appellant.
    Appellee was liable under its policy provision, general -agreement C, which is broad enough to cover damage •by abstraction of ledgers from locked book vault by employer without authority.

      Buzbee, Pugh & Harrison and A. S. Buzbee, for appellee.
    Books and leaves of ledgers lost were not kept in vault, as required by provisions of policy, -and no recovery -can be had, as the court correctly found leaves of ledger not -covered. 3 Yes. Jr. 310; 75 S. W. 319. Policy form prepared by American Bankers’ Association, and should be construed most strongly against the bank. No -such entry--of vault as fixes liability against appellee. 142 Pac. (Okla.) 312, 120 S. W. 301, 121 Pac. (Cal.) 321; 113 N. Y. 476; 183 N. Y. 785. No damages caused by entry within meaning of policy. 96 S. W. (Ky.) 450. No proof that employee of bank not implicated in loss, and there can be no recovery for restoring books to original condition.
   Wood, J.

The appellant instituted this action against the appellee to recover for loss of a number of its ledgers, binders, ledger guides and ledger leaves under a burglary policy which, among other things, provides:

“General Agreement A.

“For all loss of money and securities from within any safe or vault into which insurance under this policy applies, caused by a felonious abstraction of the same during the day or night by any person or persons, or any accomplice thereof, into the safe or vault, while duly closed and locked, located in the banking-room described in the schedule, and hereinafter called the premises, or while located elsewhere, after removal from within the premises by thieves, or robbers, or their accomplice. In the event that the said safe, or safes or vault, are not locked by time-lock, the company shall not be liable for loss of said money and securities feloniously abstracted therefrom, unless said forcible entry is made therein by the use of tools, explosives, chemicals, or electricity directly thereupon.”

“General Agreement 0.

“For all loss by damage to said money and securities, and to said safe or safes or vault described in said schedule, or to the premises, or to the office furniture and fixtures therein, caused by such person or persons while making or attempting to make such entry into said premises, vault, safe or safes. ’ ’

The appellant alleged that, while the policy was in force, certain persons referred to in general agreement A, while attempting to make an entry by force, as described in said agreement, did damage the office, furniture and fixtures of appellant located on its premises by.abstracting the ledgers, etc., above mentioned, which were all in safe with combination, each safe being locked. The appellant laid its damage at $1,582.51, for which it prayed judgment.

The appellee admitted the contract, but denied the other allegations of the complaint, and set up that if such acts did occur they were caused by the act of appellant’s employee; that the loss, if any, was not within special agreement No. 10 of the policy, which provides, among other things, that “the company shall not be liable under general agreement A for any loss from within a round or screw-door chest, unless the loss is effected from a compartment of such safe which is protected by the round or screw-door, nor for any loss from any safe containing a steel burglar-proof chest, unless- the loss is effected from -within the said chest, after both forcible entry into the safe and forcible entry into said chest.”

By consent of the parties, the cause was submitted to the court upon an agreed statement of facts, which it is unnecessary to set out in detail, but from which it appears that on the night of June 28, 1921, the doors and windows to the bank were closed and looked. The employees of the bank having keys to the outer doors did not enter the bank that night, nor assist any one else to do so. The journal ledger was left in an unlocked drawer in a teller’s cage, and all the other articles mentioned were left in what is called a “book vault,” which is kept, closed and locked by a combination, not a time-lock. One Hiram Shaw, a former employee of the bank, who had charge of certain of the lost ledgers while in the bank’s employ, had a key to the rear door of the bank, and also knew the combination to the book vault. On the morning of the 29th of June, 1921, the articles mentioned were missing. The vault containing the books which had been locked the night before was open. The bank was entered by some one having a key to the door of the bank, and the book vault was entered by some one who was acquainted with its combination. There was no evidence of violence or of the use of tools or expíosives about any of the windows or doors of t-he bank or the door of the vault. After the loss of the articles it was discovered that there was a shortage in the accounts of the appellant, on account of which the appellee paid to the appellant $25,000 under a fidelity bond which the appellant carried with the appellee. After this shortage was discovered, Shaw was indicted and convicted of embezzlement. Shaw and three employees of the bank were the only ones with keys to the bank, and they knew the combination of the book vault from which the articles were taken.

The trial court found that the appellant suffered no loss by damage to its furniture and fixtures caused by some person or persons while making a forcible entry into its premises, safe or vaults; that the only loss shown by the evidence was caused by the felonious abstraction of the books, and such loss is not included in the contract sued on. The court declared, as a matter of law, that the appellee was not liable, and entered judgment in its favor, from which is this appeal.

The judgment of the court is correct. Conceding, without' deciding, that the articles mentioned in the complaint are covered by the contract of insurance, there is nevertheless no liability under the policy. The contract of insurance provides: “In the event that said safe or safes or vault are not locked by time-lock, the company shall not be liable for loss of said money and securities feloniously abstracted therefrom, unless said forcible entry is made therein by the use of tools, explosives, chemicals, or electricity directly thereupon.” And further: “For loss by damage * * * to the office furniture and fixtures therein, caused by such person or persons while making or attempting to make such entry into said premises, vault, safe, or safes.” The words “such entry” last used refer to the “entry” of the preceding paragraph A, “forcible entry by the use of” tools, explosives, etc.

The policy, as shown by the testimony of the president of the appellant, was the standard form of burglar policies as prepared by a committee of the American Bankers’ Association. The policy must be considered as a whole. The undisputed testimony shows that the book vault in which the articles mentioned were contained was not locked by a time-lock, but by. a combination lock. Therefore it is obvious, when the above provisions are considered together, that the parties to the contract contemplated that the appellee should not be liable for the loss of the articles mentioned in the complaint unless the book vault containing them was entered with “tools, explosives, chemicals, or electricity directly thereupon.” The entry was by use of a key in the hands of one who knew the combination to the book vault. Therefore there was no “forcible entry” within the terms of the policy, which evidently contemplated an entry by the use of tools or explosives. A key to the premises is not a burglar’s tool, within the meaning of the language of the policy. This language clearly meant such tools as would effect a forcible entry to the bank, and such tools or explosives as would effect a forcible entry into the vault. 'Even if a key could be considered a burglar’s tool in effecting an entry into the bank, still there was no use of burglars’ tools or explosives in entering the book vault. The above language of the contract is unambiguous. Therefore there is no liability under the express terms of the policy. Maryland Casualty Co. v. Ballard County Bank, 120 S. W. 301; First National Bank v. Maryland Casualty Co., 121 Pac. 321; Brill v. Metro. Surety Co., 113 N. Y. Supp. 476; Feinstein v. Mass. Bonding Co., 183 N. Y. Supp. 785.

The judgment is affirmed.


text:
    Neal v. Bethea.
    Opinion delivered April 23, 1923.
    1. Schools and school districts — employment of teachers— notice of meeting. — The preponderance of the evidence held to establish that a school director had notice in writing of a meeting of the board of directors at which certain teachers were employed to teach school, and that their contract was valid, so far as the issue of notice was concerned.
    2. Schools and school districts — employment of relatives as teachers. — TJ-nder ■ Crawford & Moses’ Dig., § 9029, prohibiting school directors from employing their relatives “unless two-thirds of the patrons of said school shall petition them to do so,” held that the intent was to make each employment of a relative of any member of the school board for each term dependent upon the consent of two-thirds of the existing patrons of the school.
    Appeal from Bradley Chancery Court; E. G. Hammock, Chancellor;
    ¡affirmed.

      B. L. Beasley, for appellant.
    Appellant, ¡one of the directors of the school district, not having been notified of the special meeting at which the teachers were employed, the contract of employment is void. School Hist. v. Casteel, 105 Ark. 106 ; Rice v. School Dist., 109 Ark. 125; Burns v. Thompson, 64 Ark. 489. The teachers were also within the prohibited degree of relationship to one ¡of the directors. 134 Ark. 64.

      Clary $ Ball and D. A. Braclham, for 'appellees.
    The chancellor found, on conflicting evidence, both that the appellant director had proper notice cf the meeting at which the teachers were employed, and that the patrons ¡of the school had petitioned their employment, relieving from the prohibition of law against employment of teachers related to school directors. The decree •should be affirmed.
   Wood, J.

This is an action by the appellant against the appellees, directors of School District No. 36, Bradley County, Arkansas, and George and Ruth Rice, as teachers, and J. R. Quinney as ■ county treasurer. The purpose of the action was to enjoin the issuing and payment of warrants against School District No. 36. The complaint, among other things, alleged that the contract made by M. M. Bethea and W. M. Gorman with George and Ruth Rice, as teachers for the fall and winter term of 1921, was void, because the appellant, who was also a member of the board of directors, had no notice of the meeting of the board when the alleged contract by the other two directors with the Rices was entered into, and because the Rices were related to one of the directors of the district in a prohibitive degree.

The answer denied all the material allegations of the complaint. The testimony was directed to these issues :

1. On the issue as to whether or not notice was given, the appellant testified that he was one of the directors of S'chool District No. 36 of Bradley County, Arkansas; that he received a notice about the 28th of October to the effect that the directors would meet at the school building at Hilo for- the purpose of electing a teacher for the winter term 1921-1922. The notice spec ified that the meeting would be had at two o’clock. The notice was made an exhibit to his deposition and introduced in evidence. It was dated October 26, 1921, directed to O. F. Neal, and provides as follows: “There will be a call meeting of the school board District No. 36, Bradley County, Arkansas, for the purpose of electing school teachers to teach our winter term of school, 1921 and 1922, meeting to be at Hilo schoolhouse, October 31, 1921, at 2 o’clock.

“M. M. Bethea, Sec.”

Neal testified that the notice introduced was just like it was when he received it.

M. M. Bethea, one of the appellees, testified that he was one of the directors of School District No. 36, and was secretary of the school board. He wrote the notice introduced in evidence and read it to the other director, Mr. Gorman. There were others present at the time. The notice introduced is the same as the notice he wrote, except the figure “2”. In the notice witness wrote it specified 8 o’clock. Witness and Gorman met at the time and place specified in the notice, and entered into a contract with Bice and his daughter, about 9 o’clock, to teach the winter term beginning on the 31st of October, 1921. They waited until the afternoon looking for Mr. Neal, the other director, but he didn’t come, and they left before 2 o ’clock.

Gorman testified that the notice filed in evidence was the notice that he served on Neal in the county judge’s office, except the figure “8” instead of “2.” Witness didn’t see Bethea write the notice, but he handed the same to witness, and witness read it, and it specified that the meeting was to be at 8 o’clock. Witness didn’t make any changes in it, but handed it to Neal just like it was when Bethea gave it to witness. Witness and Bethea met about 8 o’clock at the time and place specified in the notice, and entered into the contract with Bice and his daughter about 9 o’clock.

Frank Andrews testified that he was in town and in the sheriff’s office when Bethea was writing the notice that was handed to Mr. Neal. The notice stated the school meeting was to be at 8 o’clock in the morning. Witness was positive of that fact. He was standing at the desk when Bethea wrote it, and was reading it as he wrote-it.

J. JL. McNab testified that he was present one day when Mr. Gorman and Mr. Neal had a conversation about the school. Among other things he heard Neal say to Gorman: “You can go ahead with the school meeting Monday morning. I will not be there.” Gorman stated that the meeting was to be at 8 o’clock. Neal understood it, and stated he would not be there. Three witnesses, including the one who prepared the notice and two others who saw and read it, testified that it specified 8 o’clock instead of 2 o’clock, and one of these witnesses testified to hearing Gorman tell Neal that the meeting would be at 8 o’clock, that Neal understood it, and replied, “You can go ahead with, the school meeting Monday morning — I will not he there. ’ ’

It thus appears that a decided preponderance of the evidence shows that the appellant had notice of the meeting at which the contract was entered into by the other directors with the Rices, and that this notice was in writing. The evidence shows that the two directors met pursuant to the notice, and their contract with the Rices was therefore valid so far as the issue of notice was concerned. Bice v. School District No. 20, 109 Ark. 125M29.

2. On the issue as to whether or not the contract-was void because the directors employed a teacher related within the degree prohibited by statute, the undisputed testimony shows that a .petition was circulated in the district requesting the school board to employ Rice and his daughter to teach the summer and winter terms of school. Without setting out the evidence in detail on this issue, which is voluminous, we have reached the conclusion that a preponderance of the evidence shows that the petition was signed by thirty-eight names, and that this number constituted a two-thirds majority of the patrons of the district. While there is some conflict in the evidence as to whether this number would constitute a majority of the taxpayers in the district, there is virtually no conflict in the testimony that the thirty-eight names constituted practically the entire citizenship of the district who were qualified electors therein, and decidedly more than the necessary majority of those who actually patronized the school in the sense of sending pupils thereto.

Witnesses for the appellee testified to the effect that the petition contained every patron of the district who sent pupils to the school, except a man by the name of Measles, and negroes who patronized a negro school in the district. The word “patron”, as used in the statute, means something more than a mere taxpayer in the district. It contemplates those who are not only taxpayers hut who also send children to the school.

The statute provides as follows: “Hereafter all school directors * * * are hereby prohibited from employing any person as teacher in the public schools related to any of them by consanguinity or affinity within the fourth degree, unless two-thirds of the patrons of said school shall petition them to do so.” Sec. 9029, C. & M. Digest.

In School District v. Perrymore, 143 Art. 64-66, we said: “In view of the fact that the citizenship of a school district is constantly changing and that patrons might change their minds from time to time, it is not probable that the Legislature had the purpose and intent in enacting the statute to allow one expression of opinion on the part of the patrons to govern all subsequent employments. We think the purpose and intent of the act was to malee each employment of a relative of any member of a board of directors, within the prohibited degrees, dependent upon the consent of two-thirds of the existing patrons of the school. In other words, that a petition, bearing the requisite number of names can justify an employment for one .period of time only.”

In that case the .petition was to authorize the directors to employ a teacher for the summer school for 1917 and any succeeding school they might see fit to employ him. We held that the petition for 1917 or “any succeeding school they might see fit to employ him to teach” would not authorize the employment to teach the school in 1918-1919. The petition in the case at bar was for the summer and winter term, and contemplated only one contract of employment for a definite term. It did not vest the board, as in the case above cited, with a “roving commission” to employ a teacher for an indefinite term.

. There is no error in the record. The decree is therefore affirmed.


author: Hart, J.

text:
    Mama Coal Company v. Colo.
    Opinion delivered April 23, 1923.
    1. Master ■ and servant — failure to furnish props — proximate cause.- — In an action -by a coal ¡miner for injury alleged to have been -caused by the master’s -failure to furni-sh -props as request- . ed, testimony that plaintiff was injured by the fall of a rock from the roof of -the mine, that he had previously requested props, and that if they had been furnished he would have propped the rock, held to make an issue as to Whether or not the failure of the defendant to furnish props was the proximate cause of the injury.
    2. Master and servant — failure of mine operator to furnish props — -liability.—Where a mine operator delegated to a driver the -statutory -duty to fum-ish props when requested, it is responsible for a failure resulting from the negligence of the agent chosen by it to perform such duty.
    3. Continuance — -absence of witness from state. — It was not error to refuse a continuance for the absence of a witness who had left the State after the action was brought, where the party moving for continuance never had a subpoena issued for him before his departure.
    4. Master and servant — instruction as to use of props. — An instruction which, in the language of the statute (Crawford & Moses’ Dig., § 7271) made it the duty of the owner, agent or operator -of -a coal mine “to keep a sufficient -amount of timber when required -to be used as props” was correct; the word “required” meaning requested or -demanded.
    5. Appeal and error — instruction—general objection. — An instruction in an action by a coal miner for injury caused by the master’s failure to furnish props as requested, was.not open to general objection in that it based the right to recover on the fact “that the failure to furni-sh props was the cause of -his injuries,” instead -of the proximate cause of such injuries.
    Appeal from-Sebastian -Circuit C-onrt, Greenwood District; John Brizsolara, Judge;
    affirmed.

      T. D. Wynne, for appellant.
    Court -erred in not -directing a verdict for defendant. Western Goal é Mining Go. v. Foimtz, 101 Ark. 205. Undisputed testimony -shows that plaintiff bad tested the particular rock that later fell -and injured him, and -concluded the place safe, -and would not have used props bad they been fiirnished as requested. Case unlike Western Goal £ Mining Go. v. Watts, 131 Ark. 562. Instruction No. 1, given for plaintiff, was erroneous. Section of statute should not have been included without proper explanation. Bowerman v. Lackawanna Mining Go., 71 S. W. (Mo.) 1062. Same construction of word “required.” Note 22 Ann. Cas. 1912-A 1238; also Words and Phrases. Instruction should have required jury to find that failure ito furnish props was “proximate” cause of injury. Western Goal d Mining Go. v. Watts, supra. Court erred in refusing’ defendant’s requested instructions numbered 3, 4, 5, 7 and 9, erroneously assuming that it had violated § 7172, C. & M. Digest, when defense was based on alleged negligent conduct of plaintiff himself.

      G. L. Grant, for appellee.
    No error in refusing to grant continuance. G. R. I. <& P. Ry. v. Harris, 103 Ark. 509. Evidence supports the verdict, and no error in refusing to direct verdict. ■Case is controlled by Western Goal d Mining Go. v. Watts, 131 Ark. 562, and not like Western Goal d Mining Go. v. Founts, 101 Ark. 205. The instruction used the word “demand,” and, if improperly, a specific objection should have been made thereto. Johnson v. Mammoth Vein Coal Go., 88 Ark. 243. Duty of miner to make bis working place safe, but operator must furnish props when called for. Mamimoth Vein Goal Go. v. Bubliss, 83 Ark. 567; Johnson v. Mammoth Vein Goal Go., supra; §7271, C. & M. Digest; W. G. d M. Go. v. Watts, supra. No error in omitting the word “proximate,” as no specific objection made, and with the instructions given the jury could not have been misled by •such omission. Ry. v. Booth, 98 Ark. 297; Eldorado Ice Go. v. Kinnard, 96 Ark. 184. No error in' refusal to give instruction 9. Point covered by instructions given.
   Hart, J.

This is an appeal from a judgment obtained by Eugene Colo against the Mama Coal Company for damages sustained as the result of a large rock falling upon him while at work in one of the rooms of the defendant’s coal mine in the Greenwood District of Sebastian County, Ark.

It was alleged in the complaint that the injury was caused by a failure of the defendant to comply with the provisions of § 7271 of Crawford & Moses’ Digest, requiring the operator of any mine to furnish props to the miners when required, and to deliver the same at the place where the cars are delivered.

It is first earnestly insisted by counsel for the defendant that the court erred in not directing a verdict in its favor.

Eugene Colo was a witness for himself. According to his testimony, he was injured while shoveling coal between the entry and the turn in the mine of the defendant on the 18th day of July, 1921. He was engaged in turning a room in the mine and making a cross-cut from one room to the other. He had ordered props from John Birch, the driver, on two days, and no one had delivered the props to him. There had been a shot fired in the room the evening before, and coal was scattered all over the room by reason of the explosion. When the plaintiff first went to work on the morning he was injured, he examined the roof of the mine and saw the rock which subsequently fell and injured him. The rock was in one corner of the room, and the plaintiff tested it with his pick. He thought it was secure, but it fell and severely injured him soon after he went to work. The plaintiff testified positively that he would have propped the rock if he had had props, and that the propping of the rock would have prevented it from falling.

Other evidence was introduced tending to corroborate the testimony of the plaintiff, both as to the way the injury happened and as to the extent of his injuries.

The testimony brings the case squarely within the rule announced in Western Coal & Mining Co. v. Watts, 131 Ark. 562. The plaintiff stated, both on his examination in chief and in his cross-examination,- that he would have propped the rock in question if he had had the props. He stated that he was a miner of experience, and that it wag his custom to always prop rocks of this character, whether he deemed them safe or not. He always used props as a matter of precaution. This made an issue as to whether or not the failure of the defendant to furnish props as required under the statute was the proximate cause of the injury to the plaintiff, and the jury finding that issue in favor of the plaintiff, under our rules of practice we cannot disturb the verdict.

Counsel for "the defendant also insists that there was no liability because the plaintiff demanded the props of the driver of the defendant. The .complaint alleges that the driver was the person whose duty it was to deliver the props. The answer of the defendant admits this to be true. The defendant also filed a motion for a continuance, and, as one of the grounds therefor, stated that the driver whose duty it was to furnish props was absent from the State. The defendant had a right to make the driver his agent to receive and forward requests or demands for props and to deliver the .props to the miners. It must have realized that the driver might become careless and at times fail to perform these duties. Having chosen the method of performing the statutory duty of delivering the props, it is responsible for a failure resulting from the negligence of the agent chosen by it to carry out its statutory duty in the premises. The defendant cannot avoid the duty required of it by statute because some servant employed by it has proved untrustworthy. Therefore the court properly submitted to the jury the negligence of the defendant in failing to furnish props as the proximate cause of the injury.

It is next insisted by the defendant that the court erred in refusing its motion for a continuance. One of the grounds of the motion was that the driver whose duty it was to receive requests for and to deliver the props to the miners was absent from the State. The suit was filed on Dec. 10, 1921, and the trial was not had until July 7, 1922. Some time during this interval the driver in question left the State. The defendant never had a subpoena issued for him. The defendant did not exercise due diligence in the premises, and the court did not abuse its discretion by refusing to grant the continuance. C. R. I. & P. Ry. Co. v. Harris, 103 Ark. 509, and Met. Gas. Ins. Co. v. Chambers, 136 Ark. 84.

It is next insisted that the court erred in instructing the jury on behalf of the plaintiff by saying: “A section of the law makes it the duty of the owner, agent or operator of the coal mine to keep a sufficient amount of timber, when required, to be used as props, so that the workmen can, at all times, be able to properly secure their working place from caving in, and also makes it the duty of the owner, agent or operator to send down all such props when required, and deliver said props to the place.where oars are delivered.” This is practically a copy of § 7271 of Crawford & Moses’ Digest, upon which this suit is based. It is contended that the instruction is erroneous in using the expression, “when required to be used,” because the meaning of the instruction is thereby rendered obscure. We cannot agree with counsel in this contention. Conceding that the word “required” should have been defined, the plaintiff‘was not prejudiced by the failure to do so. This court has held that the meaning of “required” in this statute is requested or demanded, and that it does not mean needed. Western Coal & Mining Co. v. Watts, 131 Ark. 562.

The evidence of the plaintiff on this point is not disputed. He demanded or requested props of the driver whose duty it was to deliver them to him, and the driver failed to do so. Hence we cannot see how the plaintiff was in any wise prejudiced by giving this part of the instruction to the jury.

It is also insisted by counsel for tbe defendant that the court erred in giving that part of instruction No. 1 -which reads as follows: “And that, while in the discharg-e of Ms duties as a miner therein, the roof and rock in said working place caved in and fell upon him and injured him; and that the failure to furnish said props was the cause of his injuries, 'and the plaintiff has been damaged thereby,” etc. It is claimed that the court should have said that the failure to furnish said props was the proximate cause of said injury. This is true, but counsel for the defendant, having failed to make a specific objection to the instruction at the trial, is not now in an attitude to complain. No doubt, if the court’s attention had been called to the defect in the form of the instruction, it would have been corrected. The jury could hardly have failed to understand that it was directed to find that the failure to furnish the props was the proximate or efficient cause of the injury to the plaintiff.

The case was submitted to the jury upon instructions which fully and fairly submitted- the respective theories of the parties, and, no error appearing in the record, the judgment will be affirmed.


author: Hart, J.,

text:
    Wimberley v. Bank of Portia.
    Opinion delivered April 23, 1923.
    1. Bankruptcy — jurisdiction op bankruptcy court. — While a ■bankruptcy court may, by summary proceedings, compel a person who is in possession of property of the bankrupt, but who claims no adverse title thereto, to restore such property to the trustee, yet where the party in possession asserts an adverse title thereto, the court cannot act summarily and make an order for its return to the trustee, but a suit must be brought in the proper forum by the trustee against such adverse claimant.
    2. Banks and banking — effect of general and special deposits. —While a general deposit of money in a bank creates the relation of debtor and creditor, and authorizes the bank to use the money as its own, such result -does not -obtain when the deposit is made for a special purpose, as, for example, to be paid to creditors.
    3. Banks and banking — right to apply special deposit. — Where money was deposited by -a merchant in -a bank as a trust fund to be used by a designated trustee for the purpose of paying creditors pro rata, the bank -had no right to apply such funds toward the payment of a note owed to it by the merchant.
    Appeal from Lawrence Chancery Court, Eastern Di-striot; Lyman F. Reeder, Chancellor;
    reversed.
    STATEMENT OF FACTS.
    Z. C. Wimberley, as trustee in bankruptcy for the estate of A. L. Pickens, bankrupt, brought this suit in equity against the Bank of Portia to recover the sum of $1,245 alleged to be due the bankrupt. The complaint and proof show that, at the time Z. 0. Wimberley was appointed trustee in bankruptcy of the estate -of A. L. Pickens, the Bank of Portia had on deposit $1,245 belonging to said A. L. Pickens.
    It appears from the record that A. L. Pickens was engaged in the general mercantile business at Portia, Ark., and did business with the Bank of Portia, which was running a bank there. In December, 1920, A. L. Pickens discovered that he was insolvent, and, after talking with the cashier of the Bank of Portia, he went to Jonesboro and consulted Z. C. Wimberley of the Wimberley Grocer Co., which was eng-aged in the wholesale grocery 'business, and was one of the -creditors of A. L. Pickens in the sum of $900. A. L. Pickens went to Jonesboro on the 23rd day of December, 1920, and at the time intended to file a voluntary petition in bankruptcy. After consulting with Z. C. Wimberley, who called other creditors over the long distance telephone, it was agreed that a contract should be dr-awn up providing for the continuance of the business by A. L. Pickens under the direction of Z. C. Wimberley as trustee for all the creditors. The contract provided that Wimberley, as trustee, should assume the responsibility for the control and management of the business, and should pay all the creditors pro rata from the amount which should be realized therefrom. The agreement contemplated that the business should be wound up in this way and the proceeds divided ratably among the creditors, in order to avoid the expenses of bankruptcy proceedings. The. agreement was conditioned upon the acceptance of the other creditors. or of a sufficient majority thereof in point of numbers and amount of indebtedness, to prevent the said A. L. Pickens from being forced into bankruptcy. The sum in controversy was realized from the conduct of the business of A. L. Pickens under this agreement, and the deposit of it by him in the Bank of Portia.
    According to the testimony of Z. C. Wimberley and A. L. Pickens, Wimberley called up the Bank of Portia, before the agreement in question was entered into, and the cashier of the bank understood the purport of the agreement, and said that he thought that it was the best way to wind up the business. A. L. Pickens then started a new account with the bank, and the sum in controversy in this case was deposited by him under the agreement above referred to.
    Mrs. A. L. Pickens worked in the store for her husband, and testified that she obtained a new bank book from the bank, which was labeled “New Account.”
    According to the testimony of all these witnesses, it was understood by the bank that the amounts deposited there on the new account should constitute a trust fund to be used by Wimberley in paying the creditors of A. L. Pickens pro rata.

    The cashier of the Bank of Portia was a witness for it. He denied that the Bank of Portia was a party to the agreement that Wimberley should act as trustee for all the creditors, and that the amounts deposited in the bank by A. L. Pickens should be treated as a trust fund to be paid ratably to all the creditors of A. L. Pick-ens. He stated positively that the money was deposited by A. L. Pickens thereafter in the ordinary course :of business. He admitted that he gave Mrs. A. L. Pickens a new bank book, and that it might have been marked “New Account.” He stated, however, that he gave her the new book because the old one was about filled up, or practically worn out. On the 5th day of January, 1921, the president of the Bank of Portia suggested that the balance of A. L. Pickens in the bank should be charged off the books and the amount entered as credit on the note which Pickens owed the bank. The witness then credited the note of-A. L. Pickens to the Bank of Portia with the $1,245 which A. L. Pickens had deposited there since the 23rd day of December, 1920. A. L. Pickens then filed a petition in bankruptcy, because, as he expressed it, there was nothing else’ to do. He stated that he, in good faith, had endeavored to carry out his agreement with his creditors, but had been prevented from doing so by the bank’s applying the money which he derived from the conduct of his business to the payment of its own note, to the exclusion of his other creditors.
    The trustee in bankruptcy filed a petition with the referee in bankruptcy to require the Bank of Portia to pay over the money in controversy to the trustee as the property of the bankrupt estate. This summary proceeding was denied by the referee, on the ground that the bank had an adverse claim to the fund, and that it could only be prosecuted in a plenary proceeding. Upon review the judge of the bankruptcy court sustained the conclusion of the referee in bankruptcy.
    The chancellor found that A. L. Pickens owed the Bank of Portia a note which was due it, and that it had the right to credit the amount he had on deposit in the bank on that note.
    A decree was entered dismissing the complaint of the trustee for want of equity, and the case is here on appeal.

      A. A. Patton, for 'appellant.
    The assignment made by the insolvent debtor for the benefit of his creditors was valid, and the money realized thereafter was put in the bank as a trust fund, and could not be applied in payment of the bank’s claims against the debtor, and the chancellor erred in 'holding otherwise. 52 Ark. 30; 80 Ark. 182; § 489, C. & M. Digest; 122 Ark. 40; 6 Ark. 161; 104 Ark. 222; 60 Ark. 1; 58 Ark. 556. Trust fund could not be applied by bank to payment of its claims against the creditor. 69 Ark. 47; 68 Ark. 71; 28 L. R. A. (N. S.) 484; 104 IT. S. 54.; 34 U. S. L. ed. 724; 136 Ark. 441; 104 Ark. 558.

      Ponder & Gibson, for appellee.
    There was no valid assignment or agreement appointing trustee, and cases cited by appellant have no bearing upon the case made here. It was a general deposit, and.the bank had the right to appropriate it to payment of its claims against'the creditor. 104 Ark. 550; 69 Ark. 47; 56 Ark. 499; 118 Ark. 114; 114 Ark. 170. 28 L. R. A. (N. S.) 484, cited for appellant not applicable, there being no agreement for Wimberley as trustee. The proceedings in bankruptcy and the findings of the referee in the matter are binding and 'conclusive in appellee’s favor.
   Hart, J.,

(after stating the facts). It is first sought to uphold the decree on the ground that the matter is res judicata. In making- this contention, counsel rely upon the decision of the bankruptcy court sustaining the conclusion of the referee in denying the petition of the trustee in bankruptcy to require the Bank of Portia to pay over the money in controversy to the trustee as the property of the bankrupt estate.

The court of bankruptcy may, by summary proceedings, compel a person who is in possession of the property of the bankrupt, but who claims no adverse title thereto, to restore such property to the trustee. On the other hand, where the party in possession of the property asserts an adverse claim thereto, the bankruptcy court cannot act. summarily and .make an order .to return it. to the trustee, without the formality of litigation. In such cases there must be a suit brought in the .proper forum by the trustee in bankruptcy against the adverse claimant to adjudicate his claim of title to .the property. Collier on Bankruptcy, 12 ed. vol. 1, pp. 523-529; Hiscock v. Varick Bank of New York, 206 U. S. 28; Frank v. Vollkommer, 205 U. S. 521; Babbitt v. Dutcher, 216 U. S. 102, and Harris v. First National Bank of Mt. Pleasant, 216 U. S. 382.

Having denied the plea of res judicata of the defendant, we are brought to a consideration of the casé on its merits. It is a general rule that funds deposited in the bank for a special purpose known to the bank cannot be withheld from that purpose to the end that they may be set-off by the bank against a debt due. it from the depositor. In other words, while it is true that a general deposit by a merchant of money in a -bank creates the relation of debtor and creditor, and aiithorizes the bank to use the money as its own, such resuit does not obtain when the deposit is made for a special purpose; as, for example, to be paid to creditors. Wagner v. Citizens’ Bank, etc., Co., 122 Tenn. 164, 19 A. & E. Ann. Cas. 483, and cases cited; Van Zandt v. Hanover Nat. Bank, 149 Fed. 127; Bank of United States v. Macalester, 9 Penn. St. 475; National Bank v. Insurance Co., 104 U. S. 54; Reyes v. Dumont, 130 U. S. 354; and Union Stock Yards Bank v. Gillespie, 137 U. S. 411.

. Tested by this rule, we think that the learned chancellor erred in finding in favor of the defendant in this case. We recited the substance of the testimony in our statement of facts, and do not deem it' necessary, to repeat it here. A preponderance. of the evidence'shows that the money was deposited in'the bank by A. L,. Pick-ens as a trust fund to be used by Z. C. Wimberley .as; M's trustee in paying off all of •his creditors pro'. '.rata;. This is testified to not only by Pickens himself, but by his wife and Z. C. Wimberley. They are corroborated; by tbe fact that a new bank book was given to Pickens at1 the time-the agreement was entered into, and this book was marked “New Account.” This .indicates'that the new account was different from the old one.

It is true that the agreement under which they operated was conditioned upon its acceptance by the other creditors of A. L. Pickens sufficient in number and amount of indebtedness to prevent his being forced into bankruptcy. It does not make any difference, however, that the formal consent of all these creditors was never obtained. The evidence shows that the parties operated under it from the time it was drawn up and signed, by a part of the creditors. The bank so understood it, and on this account the money thereafter deposited by Pick-ens in the Bank of Portia constituted a trust fund to be applied ratably towards the payment of all his debts, and the bank had no right to apply the funds towards the payment of a past due note which Pickens owed it.

It follows that the decree will be reversed, and the cause remanded, with directions to grant the prayer of the complaint, and for further proceedings in accordance with the principles of equity and not inconsistent with this opinion.


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    Sternberg v. Strong.
    Opinion delivered April 23, 1923.
    1. Mortgages — conversion of mortgaged property — joint liability. — Where a mortgagor sold a part of the mortgaged property to a third person without the knowledge -or consent of the mortgagee, this constituted a conversion of the property, for which the mortgagor and the purchaser were liable in the same action.
    2. . Pleading — misjoinder of causes — waiver.—When a chattel mortgagee joined in a suit .to foreclose with one for conversion of part of the mortgaged property, this constituted only a misioinder of causes of action, objection to which was waived by failure ■ to move to strike.
    g. ' Pleading — indefiniteness—remedy.— Where the substantial facts which constitute a eause of action are stated in .the‘.complaint or can be inferred by reasonable intendment from the matters which are set forth, although the allegations of these facts are imperfect, incomplete or defective, such .insufficiency pertaining «to the form rather than the substance, the proper correction i-s by motion before the trial to make the averments more definite and certain by amendment.
    4. Pleading — -amendment—new cause op action. — It was not error to permit a complaint which stated a cause of action defectively to be amended so as to make the allegations more definite and certain, and the filing of an amendment to the complaint for that purpose two days before the decree was rendered did not constitute the bringing of -a new cause of action.
    Appeal from Greene Chancery Court; Archer Wheatley, Chancellor;
    affirmed.
    STATEMENT OF FACTS.
    A. R. Strong brought this suit in equity against W. T. Ingrain and others, including S. S. Sternberg, to foreclose a chattel mortgage on certain personal property executed in his favor by W. T. Ingram to secure an indebtedness of $2,000. At the time the mortgage was executed W. T. Ingram resided in Mississippi County, Ark., and -the mortgage was duty filed for record there. W. T. Ingram had possession of the property in Mississippi County, Ark., and sold a portion of it to S. S. Sternberg and others who resided in Mississippi County. W. T. Ingram, without paying any part of the mortgage indebtedness, subsequently moved to Greene County, Ark., and carried the remainder of the mortgaged property with him.
    In another paragraph of his complaint the plaintiff alleges that, subsequent to the execution and delivery of the mortgage, W. T. Ingram, without his knowledge and consent, sold a portion of said mortgaged property to S. S. Sternberg and others in Mississippi County, Ark., and carried with him -the remainder of the mortgaged property. He sold a part of this to persons in Greene County without the knowledge or consent of the plaintiff.

      The prayer of the complaint is that plaintiff have judgment against W. T. Ingram in the sum of $1,323.89 and the accrued interest; that said Ingram be required to give an accounting as to the parties to whom he has sold said mortgaged property; that a receiver be appointed into whose possession the defendants be required to deliver the property, or its value, so respectively acquired by them, and that the property which may thus come into the possession of the receiver be sold on such terms as the court may direct, for the purpose of .satisfying said mortgage indebtedness. This complaint was duly filed, and service of summons was had on S. S. Sternberg on the 18th .clay of October, 1920.
    An amendment to the complaint was filed by the plaintiff on April 5, 1921. In it the plaintiff alleges that the several sales made by Ingram of the mortgaged property amounted to a conversion of it by the parties participating in the sales, and that the property so sold had not been delivered to the receiver; that the value of the property had greatly depreciated since its sale, and that the value of the mules sold to and converted by the defendant, S. S. Sternberg, was $400 at the time of such conversion. Judgment was prayed for against him in this amount. Similar allegations were contained in the amendment of the complaint as to the other defendants who had purchased the mortgaged property.
    On the 7th day of April, 1921, the case was heard by the chancellor, and a decree was entered in favor of the plaintiff. The case was heard upon the pleadings, the depositions of A. R. Strong and W. T. Ingram, and a report of the receiver. Among other things the court found that the plaintiff should have and recover in tort from the defendant, S. S. Sternberg, damages in the sum of $400. The decree specifically recites that S. S. Sternberg and other defendants, although duly served with personal summons for the time and in the manner required by law, came not but made default

      . . To reverse the decree as to him, the defendant, S. S. Sternberg,, has duly prosecuted an appeal to this court.

      J. T.- Croivder, for .appellant.
    No jurisdiction was acquired of appellant by the court in Greene County by service of summons on him in Mississippi County, -there being no joint liability between 'him and -defendant Ingram. 144 Ark. 473; 150 Ark. 384. The filing of the amendment to the complaint two days before judgment by default taken was in effect a new -suit, of which appellant had no notice.

      R. P. Taylor, for appellee.
    The amendment- to the complaint only amounted to making it more definite and certain. Case unlike 145 Ark. 273. Mortgagee had right 'to sue the purchaser of.the mortgaged property with the mortgagor, and, if not, the purchaser, by not objecting to the misjoinder, waived it. See. 7393, C. & M. Digest; 121 Ark. 514; 59-Ark. 280; 97 Ark. 432; 26 E. C. L. 763; 134 Ark. 311; § 1176, C. & M. Digest. Appellant should have moved to transfer the cause. 140 Ark. 558; 151 Ark. 554. Evidence heard -on trial not in record, and will be presumed to support chancellor’s findings.
   Hart, J.,

(after stating the facts). It appears from the record that the original suit to foreclose the mortgage was brought by Strong, the mortgagee, in' Greene County, and that service of summons was had upon W. T. Ingram in that county. Summons was served upon S. S. Sternberg in Mississippi County.

Counsel for appellant contends that, under the allegations of the complaint, there was no joint liability between Ingram and Sternberg, and that the case calls for the application of the rule announced in Lingo v. Swicord, 150 Ark. 384. We do not think that case has any application. There the court held that there was no liability at all on the part of appellant Lingo to Swicord. Here the facts are essentially different. According to the allegations of the complaint, Ingram, without paying the mortgage indebtedness, sold a part of the mortgaged property to Sternberg without the knowledge or consent of Strong, the mortgagee. This constituted a conversion of the property, and both Ingram and Sternberg were liable to Strong for a conversion of it. Merchants’ & Planters’ Bank v. Meyer, 56 Ark. 499; Winter v. Smith, 45 Ark. 549.

Appellee filed an amendment to his complaint' oii the 5th day of April, 1921, and in this amendment he alleges that the several sales made by Ingram of the mortgaged property amounted to a conversion of said property by the parties respectively participating in such sales. Appellee alleges further that the property so sold had not been delivered to the receiver, and that the value of the two mules sold to and converted by S. S. Stern-berg was $400. Wherefore he prayed judgment against Sternberg for that amount.

The decree in the present case was entered of record two days after- the amendment to the complaint was filed.

It is the contention of appellant that the amendment to the complaint was in effect a new action against Stern-berg by Strong, and that the decree should be reversed because only two days elapsed between the filing of the amended complaint and the rendition of the decree. We do not think that the filing of the amendment to the complaint amounted to the institution of a new suit by Strong against Sternberg. The original complaint specifically alleged that W. T. Ingram, without the consent or knowledge of Strong, sold a part of the mortgaged property to S. S. Sternberg without paying' the mortgage indebtedness. The prayer of the complaint was that the defendants be required to deliver the property or its value, so respectively acquired by them, to the receiver. The rule is that, if the substantial facts which constitute a cause of action are stated in the complaint or can be inferred by reasonable intendment from the matters which are set forth, although the allegations of these facts aré imperfect, incomplete or defective, such insufficiency pertaining to the form rather than the substance, the proper correction is by a motion before the trial to make the averments more definite and certain by amendment. Bushey v. Reynolds, 31 Ark. 657; Rinehart & Gore v. Rowland, 139 Ark. 90; and Wm. R. Moore Dry Goods Co. v. Ford, 146 Ark. 227.

The substance of the complaint against Sternberg was that he bought certain mortgaged property from Ingram before the mortgage indebtedness was paid, without the consent of the mortgagee, and thereby converted the mortgaged property to his own use. It is true that he should have stated in his original complaint that the property converted was two mules, and their value was $400. These defects, however, should have been corrected by a motion to malee the complaint more definite and certain in these respects. This Strong did by leave of the court, on his own motion. Hence the amendment to his complaint did not constitute the filing of a new cause of action against Sternberg, as contended by the latter, but it was properly an amendment to a complaint imperfectly or defectively stated in the first instance. Therefore the court did not err in allowing the amendment to be filed, and the filing of it did not constitute the bringing of a new cause of action against Sternberg. Sternberg permitted a decree by default to be entered against him. Proof was heard by the court before entering the decree, and the presumption is that the evidence introduced was sufficient to sustain the issues raised by the complaint. Indeed, the evidence heard at the trial is not contained in the record, and no contention is made by appellant that it is not sufficient to sustain the decree. His only contention is that the court did not acquire jurisdiction over his person, because the cause of- action against him was improperly joined with one against Ingram, and because the amendment to the complaint, which was allowed to be filed only two days before the decree was entered of record, constituted the bringing of a new- suit against him. -

These contentions have-been determined adversely to him for the reasons stated above, and it follows that the decree must be affirmed.