author: Mehaffy, J. McHaney, J.,

text:
    Chicago, Rock Island & Pacific Railroad Company v. Britt.
    4-3452
    Opinion delivered July 2, 1934.

      TTios. 8. Busbee, H. T. Harrison and A. 8. Busbee, for appellant.

      Sam T. Poe, Tom Poe and McDonald Poe, for appellee.
   Mehaffy, J.

Tbis action was begun in the Scott Circuit Court against the appellant and Dr. J. P. Runyan for injuries alleged to have been sustained by the appellee, Mrs. Sue Britt, by reason of an infection in her eye, the result of what she charged to be negligence on the part of Dr. Runyan. Dr. Runyan was chief surgeon at Little Rock for the appellant company. Mrs. Britt was employed as a registered nurse by the appellant. The following contract was introduced in evidence:

“This agreement, made in duplicate this 15th day of March, 1928, between The Chicago, Rock Island & Pacific Railway Company, by S. O. Plummer, M. D., its chief surgeon, as first party, and Drs. J. P. Runyan, J. P. Sheppard, L. D. Reagan, C. E. Witt, J. P. Delaney and Mrs. W. S. Britt, M. D., of Little Rock, State of Arkansas, as second party (known as the St. Luke’s Hospital Clinic) witnbsseth, That,
“1. The. second party is hereby appointed district and hospital surgeons of the first party for Little Rock, in the State of Arkansas and vicinity, and he hereby accepts said appointment.
“2. The second party agrees, for the consideration hereinafter provided, as follows:
“(a) To render all proper and necessary surgical and medical attention to the employees of the first party residing within the territory covered hereby, also to all such employees of the first party as shall be injured accidentally while in discharge of duty, no matter where residing, whenever requested so to do by any of such employees.
“(b) To render, at any point within the jurisdiction covered hereby, similar services to all passengers injured while traveling upon the road of, or injured on the premises of, the first party, when requested so to do by any officer, conductor, or station agent thereof.
“(c) To render, at anjr point within the jurisdiction covered hereby, such services as shall constitute actual emergency attention necessary for the relief of any injured trespasser, until he can be turned over to public authorities or friends.
“(d) To render in all other cases, such as crossing accidents and the like, actual emergency attention necessary for the relief of any such injured person, when requested so to do by an authorized representative of the first party, and also such further attention as may be so requested by the first party.
“(e) To fill out full reports in duplicate on the First Report Blank, Form 1601, and to forward this on the first passenger train after the services are rendered, one report to the claim agent, in whose territory the injury occurred, and one to the office of the chief surgeon, at Chicago. Should the injury be serious, all the facts in the case should be reported at once by railroad telegraph to the office of the chief surgeon.
“(f) In cases of serious injury, of which the first party assumes permanent charge, to fill out in duplicate supplementary report on form 1609 every five days, until the indications are all of a favorable character, and to forward the same in the manner provided for first report blanks. In addition to these reports in serious cases, a supplementary report must be made in duplicate at least every ten days in all cases.
“(g) In discharging a case, either in the event of recovery or transfer to the care of other surgeon, or death, to fill out in duplicate final report blanks form 1602, and to forward the same in the manner provided for first report blanks. Also fill out form 1610 (release blank) and hand it to the patient to take to his employing officer. Mail duplicate of this to the district claim agent.
“All of the above apply to every ease, no matter how trivial in appearance and’whether the company is thought liable or not.
“Note: No formal operation of serious character must be attempted until full reaction from the shock of injury is established, with exceptions in two conditions, viz., grave hemorrhage, or injury to abdominal viscera.
“(h) To make all such examinations as may be required by the first party in connection with its personal record and pension bureau.
“ (i) To make all examinations of employees or persons desired by the legal and claim departments of the first party, sending one copy of the report indicating the result of such examinations to the chief surgeon, and one copy thereof to the claim agent.
“(j) To attend in behalf of the first party as a witness in any investigation or judicial proceeding where the testimony of the second party may be required or desired.
“ (k) To faithfully observe and carry out all orders, directions and regulations which said chief surgeon shall from time to time transmit or cause to be transmitted to the second party.
“(1) The second party will furnish without charge, instruments, anaesthetics, splints, medicines or anything necessary for the. performance of any operation, treatment of fracture or dressing of wounds.
‘‘ (m) Drugs, other than those required for first attention, must be paid for by the patient, except in the hospital association district.
“Medical Treatment in Hospital Association District
“ (n) The foregoing provisions of this contract will also govern employment of surgeons at points on the lines of the company in the hospital association district, except that the following instructions shall be followed as to those entitled to free attention.
“Those Entitled to Free Attention
“(o) Contributors to the hospital fund, who are sick (or injured while off duty) are entitled to free attention at the expense of the hospital fund when they present identification slip from the employing officer showing that they are entitled to attention.
“(p) All bills account hospital association district for hospital, nursing and ambulance services, and for surgical services where the employee was not injured in discharge of duty, shall be presented monthly in duplicate, on form 1619; hospital, nurse and ambulance bills to bear the approval of second party. In the cases of employees injured in discharge of duty, duplicate bills are not required, but every bill presented should bear the approval of second party.
“3'. It is expressly agreed between the parties hereto that the compensation hereinafter provided for shall include all surgical and medical attention or service of every nature and description which the second party shall render as aforesaid, including all dressings of injuries, amputations, adjustment of fractures, reducing of dislocations, ligations of arteries, and trephining and raising depressed fractures of skull, and all microscopical, pathological and X-ray examinations which may he required in the proper treatment of the patient, or may be desired by the first party.
“4. In consideration of all services and attention to be rendered by the second party under this agreement, the first party agrees to pay to the second party, and the second party agrees to accept from the first party, in full compensation therefor, the sum of Pour Hundred One and 50/100 Dollars per month, beginning with the month of March, 1928; provided, however, that if the second party shall at any time be required, for any of the purposes aforesaid to make trips away from the city where his office is maintained, he shall be paid in addition thereto a per diem of twenty-five dollars, together with his actual expenses. It is further expressly agreed that the first party shall not be held for any other expenses of the second party, whether for office rent, lights, books, instruments, rubber gloves, furniture, dressings, or of any other nature or character whatsoever.
“5. Payments hereunder by the first party shall be made to the second party at his place of residence as aforesaid within a reasonable time after the end of each calendar month.
“6. It is further agreed that either party hereto may terminate this agreement by giving to the other thirty days’ notice in writing, provided that the first party, by its chief surgeon, may at any time forthwith terminate this agreement for the failure of the second party to faithfully and fully perform any of the service contracted by him hereunder to be performed.
“7. The courtesies of the first party are extended to the second party in the form of an annual pass.
“In witness whereof, the parties hereto have hereunto set their hands and seals, the day and year first above written.
“The Chicago, Rock Island & Pacific Railway Company,
“By S. C. Plummer, M. D.,
“Its Chief Surgeon. “J. P. Runyan, M. D.,
“J. P. Sheppard,
“L. D. Reagan,
“C. E. Witt,
“J. P. Delaney,
“Mrs. W. S. Britt.”

The following stipulation was introduced in evidence :

“It is agreed by and between all parties hereto that the following statement of facts may be read in evidence at the. trial of the above entitled action and treated as true, to-wit:
“At the time the surgical operation was performed on Wilson Cobbs by Dr. J. P. Runyan, with the assistance of Mrs. Sue Britt and others, Wilson Cobbs was in the employ of the Chicago, Rock Island & Pacific Railway Company. Wilson Cobbs, at the time the operation was performed upon him, was entitled to medical and surgical treatment and hospital care, afforded certain employees of the Chicago, Rock Island & Pacific Railway Company employed at, and near, Little Rock, Arkansas. That the operation being performed on Wilson Cobbs was not for a condition resulting from an injury received while working as an employee of The Chicago, Rock Island & Pacific Railway Company.”

In addition to the contract and stipulation, witnesses were introduced whose evidence tends to show that the operation on Wilson Cobbs by Dr. Runyan was negligently performed, and that that negligence was the cause of the injury to the appellee. The evidence shows that the appellee was assisting Dr. Runyan, and that in the operation a gland was burst by the negligence of Dr. Runyan, and that the contents went into her eye and caused it to become infected and caused the loss ' of the eye. The evidence as to the'manner in which the operation was performed, that is, whether Dr. Runyan was negligent in performing the operation is in conflict, and it would serve no useful purpose to set it out at length. Several witnesses testified that a surgeon, before performing the operation which Runyan performed, would have awaited the making of a laboratory test before operating when no emergency existed. There was also evidence to the effect that the surgeon should have warned his assistants to look out before he dissected or attempted to tear out the gland. That this warning should have been given to protect the assistants, as none of them would know when the surgeon intended to dissect the gland. The evidence also showed that it was customary for the surgeon to have a sponge or piece of gauze in his hand to prevent pus or infected tissue from flying out. They usually hold a piece of gauze in one hand, holding it over the working fingers so that if anything does break or fly out, the gauze catches it or stops it so it does not get into the face. The undisputed evidence shows that the surgeon took hold of the gland with his fingers, that it burst, and the infected tissue went into the eye of appellee, causing the injury complained of. As to whether the operation was negligently performed was a question of fact for the jury. The jury’s verdict is conclusive here on questions of fact, even though we might believe that the preponderance of the evidence was the other way. This court does not pass on the credibility of witnesses nor the weight to be given their testimony. The jury returned a verdict against the executor of the estate of Dr. Runyan and against the Chicago, Rock Island & Pacific Railway Company for $32,000, and judgment was entered accordingly. To reverse this judgment the Chicago, Rock Island & Pacific Railway Company prosecutes this appeal. There was considerable testimony as to whether the appellant was negligent in employing or retaining an incompetent surgeon. It is unnecessary to set out this testimony because, as we understand the law, if the operation was negligently performed, and this negligence caused the injury, the appellant is liable without regard to whether the appellant exercised care in the selection or retention of the surgeon, the sole question being, whether he was negligent in the operation and whether this negligence caused the injury complained of. The appellant cites many cases to sustain its contention that the appellant is only liable if it fails to exercise care in the selection or retention of the surgeon, and if it exercises care in this respect, it contends that it is not liable although the injury may have been caused by Dr. Runyan’s negligence.

The first case relied on is Union Pac. Ry. Co. v. Artist, 60 Fed. 365, decided in 1894. The court’s decision in that case is based squarely on its finding that the hospital was a charitable institution, and the facts are wholly unlike the facts in the instant case. The next case relied on is Big Stone Gap Iron Co. v. Ketron, 102 Va. 23, 45 S. E. 740, 102 Am. St. Rep. 839. In that case there was no evidence of a contract like the contract in the case at bar. The facts are wholly different, and the opinion, as we view it, has no application in this case.

Appellant also calls attention to Texas Central Ry. Co. v. Zummwalt, 103 Tex. 603, 132 S. W. 113. In that case the contract was wholly different from the Contract in the present case. The surgeon agreed to establish and maintain a hospital at his own expense, and the railroad company simply agreed to collect fifty cents from each of its employees, and turn over the money thus collected to the surgeon for his compensation. It did not agree to pay him anything, but simply agreed to collect from the employees and turn the money so collected over to him. The next case to which attention is called is Louisville & Nashville Ry. Co. v. Foard, 104 Ky. 456, 47 S. W. 742. The facts in this case are so wholly different from the facts in the case at bar that we think it has no application at all. The next case is Cummings v. C. & N. W. Ry. Co., 189 Ill. 608, 60 N. E. 51. The only thing the court of Illinois decided was that under the statutes of the State of Illinois the appeal in that case could not be maintained. The next case is Fire Ins. Patrol v. Boyd, 120 Pa. 624, 15 Atl. 553, 1 L. R. A. 417, 6 Am. St. Rep. 745. The court held in that case that the appellant was a public charity, and that is the reason and the only reason that it was held not liable. Appellant then calls attention to Phillips v. Ry. Co., 211 Mo. 419, 111 S. W. 109, 17 L. R. A. (N. S.) 1167. The court in that case said: “Nor are institutions of the character disclosed by this record exempted from liability by the mere employment of competent servants. They must go further and competently treat the patients received. In such case they occupy the position of ordinary physicians and surgeons and are bound by the same rules, which are too familiar for repetition here. If they undertake to furnish the treatment not. as a charity, they stand in no different light than the ordinary physician. But this question is really beside the issue, in this case. No one can read this record without concluding that, if the thin corporate shell of the hospital is broken, the yolk therein is the defendant; * * * that the Hospital Association is operated for the benefit of the defendant as much as for the benefit of the employees is too apparent from this record.”

The contract in the case last quoted is similar to the contract in the instant case, and the court held the railway company liable. In the case at bar it is claimed that the appellant does not operate the hospital for profit. There is, however, no showing in the evidence how much is collected from the employees nor what the expenses paid by the railway company in the operation of the hospital amount to, but, as said in the case last quoted, it is certainly operated as much for the benefit of the railway company as it is for the employees. The contract in this case expressly .provides: “That the surgeon is appointed district and hospital surgeons for the first party in Little Bock in the State of Arkansas, and that he hereby accepts said appointment. The contract also provides that the, second party, that is Dr. Bunyan, shall observe and carry out all orders, directions and regulations which said chief surgeon shall from, time to •time transmit or cause to be transmitted to the second party. Unlike the contract in one of the eases relied on by appellant, this contract does not provide for the collection of the money from the employees, but it is expressly provided that, in consideration of the services of the party of the second part the first party, that is, the railway company, agrees to pay the second party and the second party agrees to accept from the first party, in full compensation therefor, the sum of $401.50 per month. It then provides that, if at any time the second party is requested to make trips away from the city where his office is maintained, he shall be paid $25 a day, together with actual expenses. The contract provides that either party may terminate the agreement by giving thirty days’ notice, provided that the first party, by its chief surgeon, may at any time forthwith terminate this agreement for failure of the second party to faithfully and fully perform any of the services contracted by him to be performed. It also provides for giving the- parties annual passes. In other words, this is purely a contract of employment. The contract giving the railway company the right not only to hire but to discharge and the right to control the actions of the parties of the second part. It is true this contract was signed by several persons besides Runyan, but the- undisputed evidence is that Runyan was in charge of the hospital, and that the other parties were under his supervision and control. The appellant also relied upon the- case of Ark. Midland Co. v. Pearson, 98 Ark. 399, 135 S. W. 917. That case holds, in effect, that where the railway company gratuitously assumed to collect and preserve from its employees and therefrom to provide, hospital accommodations and medical attention to its injured employees without any profit or gain therefrom, it will not be responsible. for the negligence of the physicians and surgeons employed at such hospital, provided they use ordinary care in their selection.

It will he observed that the court said that where the railway company gratuitously assumed to collect and preserve, a fund therefrom to provide hospital accommodations and medical attention without gain or profit, it would not be liable. There is no evidence in the instant case that it gratuitously did this, and there is no evidence in the instant case that it paid the surgeons and hospital employees from this fund. One witness testified that a certain portion was paid from the employees’ fund and a part by the appellant, but the evidence also shows that the fund collected from employees was kept with appellant’s money. The contract here provides, without reference to this fund, to pay the surgeon a certain amount per month. Appellant hired him, entered into a legal contract in which it reserved the right to the chief surgeon to discharge him at any time. The court also said, in the last case mentioned, it was not contemplated by such employees, in their contribution to this fund, that it would be used in the payment of damages for the negligence or malpractice of physicians employed in the operation of such department, and certainly the railway company that assumed gratuitously to collect and preserve such fund and employ competent physicians and surgeons to operate without any profit or gain therefrom should not be required to pay damages for malpractice, it being no part of its business to maintain a hospital. There was nothing in that case, as we understand it, indicating what was in the charter of the railway company, and there is nothing in the instant case indicating what the charter provides with reference to the hospital. The court holds in the last ease, at most, that it can only be considered a trustee for the proper administration and expenditure of such fund and should be held only to ordinary care in the selection of competent and skillful physicians to administer relief, etc.

The contract in this case is wholly different. They are not in this contract trustees for anybody or any fund but they contract to pay the surgeon and employees without regard to any fund. The court further said in that case, if it agreed and contracted with such employees in consideration of the fees paid by them to furnish proper medical attention the rule might be different. In the instant case, it did contract to furnish the medical attention and agreed to pay for same, and the surgeon agreed to perform the services and accept the- pay. It is wholly immaterial whether the railway company accumulated a fund by taking a certain amount from the wages and salaries of its employees or whether it created the fund by charging for freight and passenger services or how it got it. If an employer enters into a contract with an employee to pay him a certain sum per month for his services, neither the servant nor any one else has any right to inquire how or where the master gets the money. He is required to pay and agrees to pay, and the relation of master and servant existed, and there was no relation, so far as the record in this case shows, of administering the fund as trustee.

There is nothing in the. contract in this case about the employees contributing except the statement that the contributors to the Hospital Fund who are sick (or injured while oft duty) are entitled to free attention at the expense of the hospital fund when they present identification slip from the employing officer showing that they are entitled to attention.

In the case of St. Louis S. W. Ry. Co. v. Webb, 170 Ark. 1089, 282 S. W. 966, the court stated that by the contract introduced in that case it was shown that the railway company operated the hospital under agreement as a trustee. There is no evidence in the instant case to that effect. The court said also in that case that the superintendent and all others drawing salaries were paid out of this hospital fund. The contract in the instant case is to pay without any regard to the hospital fund, but the court also said in the Webb case: “We think the jury was warranted in finding that the railway company was in complete control of the hospital as trustee through the power conferred on it by the trust agreement of appointing and discharging the superintendent who was completely in control subject only to the right of Neislar to inspect and to report to the labor unions any inattention to any of the members of the unions which had selected him for that purpose.” The court then quoted from Sears’ “Trust Estates as Business Companies,” as follows: “That trustees are liable in their personal capacity for acts of negligence or other torts committed by themselves or their agents in matters relating to the trust seems not seriously disputed. ’ ’ The court in that case further said: “There is a humanitarian doctrine involved here. The patient was carried to the hospital where the operation could have been performed. The theory of the plaintiff’s case is, not that there was any negligence in the treatment given the patient, but that there was a withholding of treatment which was never rendered, and nothing was done, except to send the patient to another hospital, and this only after a delay of several hours.” We thiiik the principles announced in that case are controlling here. Any person or corporation who makes a contract of employment with another agreeing to pay the other for his services and the other person accepts the employment and agrees to do the work, if he is negligent in doing the work, the employer is liable. ■ We think there was just a question of negligence, and there was ample evidence to justify the jury’s verdict.

Appellant complains about the instructions, but, in the view we take of the law, the instructions complained about were not prejudicial. The court instructed the jury with reference to the exercise of care in employing and retaining a surgeon. This instruction was more favorable to the appellant than it was entitled to, and, of course., it cannot complain about the court giving it. This is simply a question of master and servant and of liability of the master for the wrongful conduct of the servant, and, as we have said, we think that whether the servant was guilty of negligence was a question of fact, and the finding of the jury is conclusive here. There was no question, we think, of fellow-servants in the case. Of course, it would be immaterial whether Mrs. Britt and Dr. Bunyan were fellow-servants or not. The appellant, however, contends that neither Dr. Bunyan nor Mrs. Britt was in the employ of the Chicago, Bock Island & Pacific By. Company in performing this operation; that the evidence shows that the patient was being treated for the Bock Island Employees’ Association. The appellant may have, had a contract with the Bock Island Employees ’ Association to treat patients like the one being treated, but the contract in this case, which certainly governs the relation of the appellant with Dr. Runyan and Mrs. Britt, clearly shows that they were acting for the appellant. The evidence shows that Dr. Runyan was in complete charge of the hospital under his contract with appellant and had supervision of the other employees. Dr. Runyan died after the suit was begun, and there was no appeal from the judgment against his estate.

We find no reversible error, and the judgment is affirmed.

Smith, McHaney and Butler, JJ., dissent.

McHaney, J.,

(dissenting). While performing a surgical operation on a colored employee of appellant at the Baptist State Hospital on October 7, 1927, and while removing an enlarged and infected gland from the inguinal region or groin of said employee, the late Dr. J. P. Runyan punctured said gland or it was caused to burst and the fluid or exudate therefrom was thrown upon him and appellee, some of which struck her in the left eye. Appellee’s eye became infected therefrom causing the loss of said eye, and said infection caused her to undergo other serious and painful operations, as well as the removal of said eye, from which she suffered intense pain. Her personal appearance has been greatly marred because thereof.

Appellee sued Dr. Runyan and appellant for damages, alleging that both were in the employ of appellant —she as head nurse in said hospital and as an assistant to him, and he as head surgeon. She alleged negligence on the part of Dr. Runyan and appellant in failing to warn her of the infectious condition of said gland, and that Dr. Runyan carelessly and negligently cut into said gland and ruptured it without warning her that he intended so to do and without first ascertaining whether it was infected. Later appellee amended her complaint as follows: “It is stated in the complaint, and the first amendment thereto, that an infected gland in the lower right abdominal region of Wilson Cobbs was carelessly and negligently cut into, or ruptured, by the defendant, Dr. J. P. Runyan, while using a surgical instrument, resulting in a quantity of pus and infected tissue from the gland flying into the left eye of plaintiff and injuring same. This is, in part, erroneous. At the time the infected gland was ruptured, or torn, Dr. J. P. Runyan did not have in his hand a surgical instrument. The infected gland was carelessly and negligently ruptured, or torn, by the defendant, Dr. J. P. Runyan, while attempting to remove the infected gland with his hands and fingers, and without the use of a surgical instrument.

“At all times mentioned in the complaint, and amendments thereto, the defendant, Dr. J. P. Runyan, was a careless, incompetent, negligent and an unskillful physician and surgeon. At all times mentioned in the complaint, and amendments thereto, the defendant, the Chicago, Rock Island & Pacific Railway Company, knew, or by the exercise of ordinary care, could have known that the defendant, Dr. J. P. Runyan, was a careless, incompetent, negligent and an unskillful physician and surgeon.” These latter allegations of negligence were denied by Dr. Runyan and appellant. The case went to trial on these issues alone and was submitted to the jury, first, on the negligence of Dr. Runyan in the performance of said operation, and, second, on the negligence of appellant in employing a “careless, incompetent, negligent and unskillful physician and surgeon”; that appellant knew.or by the exercise of ordinary care could have known Dr. Runyan to be “a careless, incompetent, negligent and unskillful physician and surgeon. ’ ’

It becomes unnecessary to discuss the alleged negligence of Dr. Runyan in performing- the particular operation, although, if he were free from such alleged negligence, no recovery could be had against either, no matter what his general reputation may have been or the knowledge of appellant with reference thereto. I assume, for the purpose of this'opinion, that Dr. Runyan was negligent as alleged, and that the evidence thereof is .sufficient to support the verdict against him, although, in my opinion, there was no such substantial evidence. Assuming, however, that he was negligent in this particular operation, what is the measure of appellant’s liability? It is undisputed in this record that appellant did not own the Baptist State Hospital, nor was it operating it, nor was it engaged in rendering hospital facilities and the services of physicians, surgeons and nurses to its sick and injured employees for profit. A small deduction was made by it from, the wages of employees, which went into a hospital fund, for furnishing the facilities and services above mentioned to its employees. Under such circumstances, it has been the settled law in this State, since the decision of this court in Arkansas Midland Railroad Co. v. Pearson, 98 Ark. 399, 135 S. W. 917, that a “railroad company that assumed gratuitously to collect and preserve such fund and provide hospital accommodations and competent physicians and surgeons to operate it, without any profit or gain or hope thereof therefrom, should not be required to pay damages for such negligence or malpractice, it being no part of its business under its charter to maintain a hospital. At moist, it can only be considered a trustee for the proper administration and'expenditure, of such fund, and should be held only to ordinary care in the selection of competent and skillful physicians to administer relief and provide attention to sick and injured employees.” It was there, further said that: “A physician cannot be regarded as an agent or servant in the usual sense of the term, since he is not and necessarily cannot be directed in the diagnosing of diseases and injuries and prescribing treatment therefor, his office being to exercise his best skill and judgment in such matter, without control from those by whom he is called or his fees are paid. ’ ’ See also Runyan v. Goodrum, 147 Ark. 481, 228 S. W. 397.

■Counsel for appellee recognize this to be the law in this State and based their cause of action against appellant on the ground that it employed a careless and negligent physician in Dr. Runyan, and that it either knew he was a careless and negligent physician and surgeoh, or by the exercise of ordinary care could have known it; and in instruction No. 1, given by the court at their request, the only hope expressed on which to hang a verdict against appellant is the same basis. Said instruction follows: “1. If you find, from a preponderance of the evidence that the. plaintiff, Mrs. Sue Britt, while assisting- Dr. J. P. Runyan perform a surgical operation, and, while in the exercise of ordinary care for her own safety, was injured, and that Dr. J. P. Runyan, in performing the surgical operation, negligently failed to warn plaintiff that he intended to dissect the gland or tissue, and that both plaintiff and Dr. J. P. Runyan were, at the time the operation was performed, in the employ of, and performing duties required of them by, the defendant, the Chicago, Rock Island & Pacific Railway Company, and that before and at the time the operation was performed, Dr. J. P. Runyan was a careless, negligent, and an unskillful surgeon, and the defendant, the Chicago, Rock Island & Pacific Railway Company, at, and before, the time the operation was performed, knew or, by the exercise of ordinary care could have known, Dr. J. P. Runyan was a careless, negligent, and an unskillful surgeon, and that the defendant, the Chicago, Rock Island & Pacific Railway .Company, negli-' gently failed to use ordinary care in selecting, employing and retaining in its employ, Dr. J. P. Runyan, as a surgeon, and that the negligence of Dr. J. P. Runyan, if any, and, also, of the defendant, the Chicago, Rock Island & Pacific Railway Company, if any, was the proximate cause of the injury, if any, sustained by the plaintiff, then your verdict will be for the plaintiff, unless you should find the plaintiff, Mrs. Sue Britt, was guilty of contributory negligence or assumed the risk, as defined elsewhere in these instructions.”

What are the facts on which this instruction is based? No witness testified that Dr. Runyan was in fact “a careless, negligent and an unskillful surgeon.” Dr. Samuel Gr. Boyce, of Little Rock, said that Dr. Runyan had a general reputation in Little Rock of being careless and negligent. Mrs. Routh said that he was so considered. One'witness testified that he was employed by appellant as switchman for a few months in the latter part of 1925, and that he had heard some of the employees say Dr. Runyan was careless and negligent — hard to find when he was wanted; that he saw a petition signed by 20 or 25 employees to have Dr. Runyan removed as chief surgeon, but he refused to sign it. Dr. L. M. Sipes, pastor of the Pulaski Heights Baptist Church testified that Dr. Runyan was a good physician and surgeon, but mixed up in too many things. On the other hand, a large number of eminent physicians of Little Rock testified to the high standing and good reputation of Dr. Runyan as a physician and surgeon. No witness testified to any actual knowledge of appellant of his alleged negligence, carelessness or unskillfulness. The chief surgeon of appellant in Chicago, Dr. Plummer, who is in charge of the hospital department and who employed Dr. Runyan and appellee, testified positively that he had no knowledge of the charges; that Dr. Runyan had the reputation of being a. skilled surgeon, had been chief surgeon for appellant at Little Rock for nearly 30 years at the time of his death; that he had never heard of the petition to remove him; that Dr. Runyan frequently attended meetings of district surgeons in Chicago, made addresses and read papers at said meetings; that he had visited Dr. Runyan’s hospital in Little Rock, also the Baptist State Hospital, had observed his work, seen his equipment and knew his reputation to be- that of a competent and skillful surgeon; that he had received no complaints as to his ability or competency or carefulness with his surgical work.

Now, the only duty imposed by law on appellant in this regard was to exercise ordinary care to select a capable, competent and skillful surgeon, or in keeping such a one in its employ. Ark. Midland Rd. Co. v. Pearson, supra; St. L., I. M. & S. Ry. Co. v. Taylor, 113 Ark. 445, 168 S. W. 564. Of course, if appellant knew or by the exercise of ordinary care should have known him to be incompetent, then appellant would be liable. It did not in fact so know. Should it have so known, exercising ordinary care? Although a petition was circulated in 1925, two years prior to appellee’s injury, no witness testified as to what became of this petition. It may have been destroyed. It was not sent to Dr. Plummer, and, so far as this record discloses, it was not brought to the attention of any official of appellant. I cannot agree that the evidence of Dr. Boyce and the other lay-witnesses mentioned is sufficient to make a question for tlie jury as to whether appellant should, in the exercise of ordinary care, have known of the bad reputation given him by such witnesses. Such knowledge must have, been brought home to appellant, or such a notoriously bad reputation must have been established that a person exercising ordinary care must have known about it, or at least such a reputation as would justify the jury in inferring the fact of knowledge. The case of St. L. S. W. Ry. Co. v. Webb, 170 Ark. 1089, 282 S. W. 966, has no application here for in that case “it is pointed out that it is not charged that these doctors were lacking in skill or that they were negligent in their capacity as surgeons,” which is the whole basis of this lawsuit, assuming Dr. Runyan to have been negligent.

But the majority opinion is based on the doctrine of respondeat superior, — that the relation of master and servant existed between appellant and Dr. Runyan. In the opinion it is said: “There was considerable testimony as to whether the appellant was negligent in employing or retaining an incompetent surgeon. It is unnecessary to set out this testimony because, as we understand the law, if the operation was negligently performed and this negligence caused the injury, the appellant is liable without regard to whether the appellant exercised care in the selection or retention of the surgeon, the sole question being, whether he was negligent in the operation and whether this negligence caused the injury complained of.”

It is difficult to understand how the majority can make use of such language, since the only action of negligence on the part of appellant relied on and submitted to the jury is that already quoted in the amendment to the complaint and in instruction No. 1 heretofore set out in full. Appellee did not submit to the jury her right to recover from appellant on the sole ground of Dr. Runyan’s negligence in the performance of the operation, but the only instruction asked or given for appellee required the jury to find, in addition to the negligence of Dr. Runyan, that appellant was negligent in the employment of a careless and unskillful surgeon. Now, since appellee based her cause of action against appellant on this sole ground and submitted same to the jury on this sole ground, she ought to be required to stand or fall by the same ground in this court.

It seems to me the majoritjr have overruled the cases of Ark. Midland Railroad Co. v. Pearson and Runyan v. Goodrum, supra, although an attempt is made to distinguish them. In doing so, it is said in this case there is no evidence that appellant “gratuitously assumed to collect and preserve a fund therefrom to provide hospital accommodations and medical attention without gain or profit.” In my opinion the evidence is undisputed that such is the fact. The witness Blessing testified that the hospital association got its funds from the employees from deductions from their salaries made by the railroad company, the amount of deductions being depend-ant on the occupation the employee was in as it does at the present time. The money thus collected was paid out on the order of the chief surgeon, and that the Rock Island did not charge anything for handling the fund. Dr. Plummer testified that he had been connected with the Rock Island Hospital Association since 1902; that the fund for the association was collected from the old C. (). & G. Railroad employees just as it. is now by deductions once each month from salaries and wages of employees of appellant; that he has administered the fund since 1916; that Mr. Shonlou, his assistant, attended to the details; and that his salary was not paid out of the hospital fund, but was paid by appellant, but that a portion of Shonlou’s salary, $75 per month, was paid out of said fund. Shoulou testified that Dr. Runyan and associates, known as Baptist State Hospital 'Clinic, which included appellee, were paid $401.50 per month, of which $162.75 was paid by appellant and $238.75 paid by the hospital association. This testimony was not disputed. It shows unequivocally that appellant not only made no charge for collecting and handling the fund for the Employees Hospital Association, but paid a substantial portion of the expense of its operation out of its own funds. I am therefore, of the opinion that the rule announced in Arkansas Midland Railroad Co. v. Pearson, supra, is controlling and should he followed or the case overruled.

In Runyan v. Goodrum, 147 Ark. 481, 228 S. W. 397, the same question was involved. This court there held “that the relation of master and servant cannot exist between physicians and surgeons who are not X-ray specialists themselves and the X-ray special or Roentgenologist, whom they employ to assist them in the diagnosis and treatment of diseases.” The case of Ark. Midland Railroad Co. v. Pearson was cited and quoted from with approval, as also the cases of Keller v. Lewis, 65 Ark. 578, 47 S. W. 755, and Norton v. Hefner, 132 Ark. 18, 198 S. W. 97, the following being quoted from the latter case: “This view of the law is based upon the theory that the doctrine of respondeat superior applies only in case of the negligence of a servant who acts under the direction and control of the master (De Forrest v. Wright, 2 Mich. 368), and does not apply to a physicain or other professional man who, when employed, acts upon his own initiative without direction from others. ’ ’ In that case, Norton v. Hefner, Dr. Norton performed an operation on Hefner’s wife and arranged with a young physician at the hospital to look after the patient until she recovered. Hefner sued Dr. Norton for damages for the alleged negligence of the young physician whom he had left in charge of the patient. In addition to the language last above quoted, the court said: “Appellant (Norton) was not guilty of negligence in the performance of the operation, nor in the selection of a physician to continue the treatment after he left the city. Not being negligent in these respects, he cannot be held responsible for the negligence of the other physician who was left in charge merely because the other physician took charge on his suggestion and arrangement.”

I am therefore of the opinion that the above, cases demonstrate that the relation of master and servant did not exist between appellant and Dr. Runyan, and that the doctrine of respondeat superior cannot apply in this case, even though Dr. Runyan may have been negligent in performing the operation.

I respectfully dissent, and am of the opinion the case should be reversed and dismissed. I -am authorized to say that Mr. Justice Smith and Mr. Justice Butler concur in the views here expressed.


source: Caselaw Access Project

author: Johnson, C. J.

license: Public Domain

text:
    Arkansas Baptist College v. Dodge.
    4-3594
    Opinion delivered September 24, 1934.

      John A. HibMer and R. W. Wilson, for petitioner.

      Booker & Booker and Chas. B. Thweatt, for respondent.
   Johnson, C. J.

This proceeding is a continuation of the litigation reported ante p. 204, and reference is here made thereto. The concluding paragraph of the opinion in cause number 3459 is as follows:

“For the reason stated, cause number 3459 is reversed and remanded with directions to overrule appellees’ demurrer to appellant’s answer, and to enter a decree sustaining appellant’s plea of res judicata.”

Upon the remand of said cause number 3459 to the Pulaski Chancery Court, appellees in said cause moved the respondent, Frank H. Dodge, Chancellor, to make and enter of record in the Pulaski Chancery Court the following order, to-wit:

“On this day comes the plaintiff by its attorneys, Booker & Booker and Chas. B. Thweatt, and the defendant, though duly notified of this hearing, comes not but wholly makes default; and this cause is presented to the court upon the record of this cause, which record is copied in the transcript heretofore filed in the Supreme Court, the mandate of the Supreme Court filed herein, plaintiff’s motion for leave to plead further and plaintiff’s reply and amendment to complaint tendered with said motion, and the court finds that the mandate and judgment of the Supreme Court herein does not have the effect of denying the plaintiff the right to plead further or to deny the allegations of defendant’s answer and cross-complaint.
“It is thereupon ordered, considered, adjudged and decreed by the court that plaintiff’s demurrer to the answer and cross-complaint be and the same is hereby overruled; that defendant’s plea of res judicata be and the same is hereby sustained and held to be a sufficient plea; that plaintiff’s reply and amendment to complaint be filed herein; and that this cause take its place on the calendar for trial; that the injunction herein remain in force until the further order of this court.”

Upon the entry of the foreg’oing order this original proceeding was instituted by petitioner seeking prohibition against respondent and t© prohibit said respondent as chancellor from proceeding further in said cause save to enter a decree dismissing the complaint for want of equity. A temporary writ of prohibition was granted upon application and now comes on for final determination.

The temporary writ was rightfully awarded, and must be made perpetual because, regardless of whether our opinion in cause number 3459 is right or wrong, it is the law of the case binding upon this court and upon the chancery court to which it was remanded, and should be followed. From the paragraph of the. opinion quoted, it definitely appears that the cause was reversed with specific directions to enter a decree in accordance with the. opinion, therefore there was nothing for the chancellor to do but enter a decree dismissing the complaint for want of equity.

Gaither v. Campbell, 94 Ark. 329, 126 S. W. 1061; Walker v. Goodlet, 109 Ark. 525, 160 S. W. 399; Henry v. Irby, 175 Ark. 614, 1 S. W. (2d) 49; New England Securities Co. v. Afflick, 172 Ark. 964, 291 S. W. 100; Jeffett v. Cook, 175 Ark. 369, 299 S. W. 389.

For the reasons stated the temporary writ of prohibition is made perpetual.


author: Humphreys, J.

text:
    Johnston v. American Insurance Company.
    4-3499
    Opinion delivered September 24, 1934.

      Walter L. Pope, for appellants.

      Dudley Barrett, for appellee.
   Humphreys, J.

This is an appeal from a decree for $522.48 rendered in the chancery court of Randolph County against appellants on a simple account comprising debits alone, some fifty-two in number, for the commissions on unearned premiums on fire insurance policies written by appellant Ben Johnston for appellee on farm property and which policies were cancelled by appellee when it decided to withdraw its farm department from the State of Arkansas on May 15, 1931.

The complaint filed by appellee alleged, in substance, that appellant Ben Johnston entered into a contract with it in 1921 to write fire insurance policies for it on farm property in Arkansas and to refund his commissions on unearned premiums in case it should cancel any of the policies; that it canceled all of the policies in force on farm property in Arkansas on May 15, 1931; that a bond was executed by appellant Ben Johnston and his co-appellants conditioned that he would refund all the commissions he had received on unearned premiums resulting from the cancellations of said policies; that the bond was for $1,000, which fully covered the commissions he was to refund, and that appellant Ben Johnston had failed and refused to return his commissions on the unearned premiums which were collected.

The complaint also contained the following allegation:

“By reason of the number of transactions, the large number of the policies involved, and the course of dealing over a period of years, it will require an accounting to determine the exact amount of the indebtedness due and owing plaintiff (appellee). Plaintiff (appellee) has no plain and adequate remedy at law, and this suit is brought in equity for the purpose of stating an account between the parties.”

Appellants filed a motion to transfer the cause to the circuit court, in form as follows:

“Defendants (appellants) state that under the allegations of the complaint plaintiff (appellee) has stated a cause of action at law and not one in equity, and that, if plaintiff (appellee) is entitled to recover at all, it should be in an action at law, and the defendants (appellants) move the court that the cause of action alleged in the complaint be transferred to the circuit court.”

The motion was overruled, over the objection and exception of appellants; whereupon appellants filed an answer denying each and every allegation in the complaint and incorporated therein a motion to transfer the cause to the circuit court. The motion was again overruled, over the objection and exception of appellants.

The trial court then appointed a, master, over the objection and exception of appellants, to state an account between' the parties, who filed a report in accordance with the account attached to the deposition of one of appellee’s witnesses. The account contained debits but no credits and was simple and could easily have been understood by a jury. There were no complications in it whatever.

Appellants contend for a reversal of the judgment because the chancery court had no jurisdiction over the cause of action, insisting that they were entitled to a trial ¡by jury in a court of law. In this contention they are correct. The general rule as stated in 1 B. C. L., 223, is that “equity will not take jurisdiction in matters of account which are not complicated where there is no other ground for equitable jurisdiction.”

This court, following the general rule thus announced, has said, in substance, in the cases of Trapnall v. Hill, 31 Ark. 345, and Dennis v. Tomlinson, 49 Ark. 568, 6 S. W. 11, that, before a court of equity will take jurisdiction of an action on an account, it must be mutual, it must be a running account, and involve complications. The complaint must show that the account is mutual, and it must allege facts which clearly show that the account is complicated.

On account of the error indicated, the decree is reversed, and the cause is remanded with directions to sustain appellants’ motion to transfer the cause to the circuit court.


author: McHaney, J.

text:
    McIntyre v. Prater.
    4-3480
    Opinion delivered September 24, 1934.

      J. O. Goff and Howard II. Hasting, for appellant.

      Fred M. Dickens, for appellee.
   McHaney, J.

Appellant sued appellee to recover damages for personal injuries sustained by her when she was attacked by a vicious bull kept and owned by appellee. It was alleged that the bull was vicious and known to be so by appellant. The record does not contain appellee’s answer, and none was actually filed, although the record shows the filing thereof was noted, and the case went to trial as if an answer had been filed, consisting of a general denial of all the allegations in the complaint.

The undisputed evidence shows that appellee owned a hull which he kept in a pasture near the home of appellant; that on the afternoon of January 30, 1933, while appellant was picking up wood in her yard, she was attacked by the bull which had broken out of the pasture where he was kept; that she ran to a nearby tree to escape him, but the bull followed and chased her around the tree until she tried to escape to a fence, but before she could reach the fence, he knocked her down, trampled upon, gored and continued to fight her until he was shot two or three times with a .22 rifle by her daughter-in-law; that appellee came to see her that evening and made the statement that the bull was vicious; and that it had been necessary to remove the bull from the farm operated by his brother to prevent the animal from injuring the children. According to appellant (and corroborated by others present) appellee said: “I got him from my brother because he fought the children; and I brought him up here. ’ ’

At the conclusion of the testimony on behalf of appellant, appellee moved for a directed verdict, which the court' granted. Judgment was entered for appellee on the verdict as directed by the court, and the case is here on appeal.

There is no merit in the contention that the appeal should be dismissed because appellee’s answer does not appear in the record. According to the record itself, an answer was noted filed, but none was actually filed. Appellee will not be permitted to take advantage of his own neglect in failing to file an answer. The case went to trial as though an answer of general denial had been filed, and we will so treat it here.

On the. merits of the case, we are of the opinion that the court erred in directing a verdict for appellee. This was done on the ground, as stated by the court, “that the proof fails to show that this bull was of that vicious character and disposition.” But the learned trial court must have overlooked the testimony of appellant and her witnesses as to the statements and admissions of appellee regarding the vicious propensities of the bull above set out. This was sufficient to take, the case to the jury both on the vicious propensities of the bull and appellee’s knowledge thereof. It is wholly undisputed, and, even if it were, it would still be a question for the jury. This case is ruled by the decision of this court in Field v. Viraldo, 141 Ark. 32, 216 S. W. 8, where we said: “This court is committed to the rule expressed in the recent case of Holt v. Leslie, 116 Ark. 433, 173 S. W. 191, that if any one knowingly keeps a vicious or dangerous domestic animal, he is liable for injuries inflicted by such animal without proof of negligence as to the manner in which the animal was kept. We said in that case: The mere keeping of such an animal, knowing its vicious and dangerous qualities, is at the risk of the owner (except as to trespassers) and renders him liable to damages to one injured by such animal’.” As we said in the same case, “the admissions of appellant (appellee here) made to appellee (appellant here) according to the latter’s testimony were sufficient to sustain a finding that appellant was advised of those vicious tendencies of the bull. ’ ’

For the error committed in directing a verdict for appellee, the judgment is reversed, and the cause remanded for a new trial.


author: Butler, J.

text:
    National Refining Company v. Wreyford.
    4-3530
    Opinion delivered September 24, 1934.

      Owens <& Ehrman, for appellant.

      Alonso D. Camp, Joe B. Norbury and Tom W. Campbell, for appellee.
   Butler, J.

In April, 1932, M. W. Wreyford was, and had been for about two years preceding, in the service of the National Refining Company as a filling station manager at the company’s filling station located at 23d and Arch streets in the city of Little Rock. It was his duty to sell gasoline and motor oil and to grease cars and keep the station clean. This was done under the supervision of a Mr. Crane, the assistant superintendent of stations, who from time to time would visit each station to observe the manner in which the business was being conducted and the stations maintained and to give such orders in relation to the conduct of the stations as occasion required. It was the duty of the station managers to obey these orders.

At the station in question the motor oil was kept in a back room which was floored with concrete, there being five barrels containing oil, which when full would weigh approximately 500 pounds each. On a morning in April, 1932, while moving the oil barrels, Wreyford fell to the floor and one of the barrels containing oil rolled upon him causing an injury, to recover damages for which vthis suit was instituted. Wreyford alleged that the injury was occasioned by the negligence of the master in requiring him, unaided, to move the barrels of oil. The answer denied the allegation of negligence, and affirmed that the injury was occasioned by a risk ordinarily incident to the employment of Wreyford for which the company was in no wise responsible. At the conclusion of the testimony the court submitted the question of negligence of the company and the assumption of risk by Wreyford to the jury, overruling a motion by the defendant company for an instructed verdict. There was a verdict and judgment in favor of the plaintiff, the correctness of which, is challenged by this appeal on the ground that the court erred in refusing to direct a verdict in favor of the defendant as requested.

The appellant contends that the evidence fails to establish actionable, negligence on its part, but that it shows that whatever injury Wreyford sustained was the result of a danger which was better known to him than to any one else; that it was not occasioned by any negligence of the master, but was one of the hazards incident to his employment.

The evidence most strongly tending to sustain the allegations of the complaint was the testimony of the appellee, Wreyford, which, briefly stated, is to the following effect: At the time of the accident appellee was a strong, able-bodied, man weighing about 190 pounds, and had been in the service of the appellant for a little more than two years. He was familiar with the duties incident to the work in which he was engaged. He first testified, and so also did some witnesses called in his behalf, that the accident occurred on the morning of April 12,1932, but, on being recalled at the request of the appellant and being shown reports signed by him on the 12th, 13th and 14th of April, 1932, he- corrected his testimony as first given as to the date of the accident, stating that it occurred on the 15th of April, instead of the 12th. He stated that on this morning he discovered that some oil had leaked upon the floor of the room where the motor oil was stored; that he at once reported this fact by telephone to Mr. Crane, his immediate superior, requesting that the latter send some one to help him move the barrels in order to ascertain which one was leaking; that, instead of complying with his request, Crane said, “You can move those barrels.?’ Witness replied, “I might can move them, but I would like to have some help,” and Crane said “Go in there and move the barrels. — find the one that’s leaking and call me back so I can send the correct amount of cans out there to put the motor oil in — we haven’t any more barrels.” Appellee then proceeded to move the barrels. He moved four of them, each of which contained only a small amount of oil and found that none of them were leaking. Notwithstanding this he undertook to move the fifth barrel, which he estimated to contain around 45 or 50 gallons, but which, when the oil was taken out and measured, was found to contain about 30 gallons. In this barrel a pump was installed, and appellee testified that, as he was moving the last barrel and had gotten it out where he thought he could handle it, and started to turn it, the pump attached to the barrel hit him on the leg, knocking him down, and the barrel then rolled or fell on top of him; that he was unable to arise without help and remained on the floor until some one moved the barrel and assisted him to get up.

There was no contention or evidence to the effect that the pumps were improperly installed or that Crane was informed by Wreyford of any particular amount of oil in any one of the barrels. The only information given Crane by Wreyford was that the oil was leaking on the floor of the storage room. Appellee stated that there were five or six gallons of oil wasted on the floor. From the last report of the oil on hand on the 14th of April, 1932, it appeared that there were only 132 gallons of oil in all five barrels.

Counsel for appellee contend that the questions raised by the pleadings were properly submitted to the jury, and were for it to consider under the rule announced in 18 R. C. L., p. 655, which has been approved by this court in Choctaw O. & G. Ry. Co. v. Jones, 77 Ark. 367, 92 S. W. 244; Clark Lbr. Co. v. Northcutt, 95 Ark. 291, 129 S. W. 88; Dickinson v. Mooneyham, 136 Ark. 606, 203 S. W. 840; Griffin v. St. L. I. M. & S. R. Co., 121 Ark. 433, 181 S. W. 278; Woodley Pet. Co. v. Willis, 172 Ark. 671, 290 S. W. 953; Owosso Mfg. Co. v. Drennan, 182 Ark. 389, 31 S. W. (2d) 762; Berry’s Sons Co. v. Presnall, 183 Ark. 125, 35 S. W. (2d) 83, and the recent case of Chapman v. Henderson, 188 Ark. 714, 67 S. W. (2d) 570. The rule involved in all these cases is that an element which may affect an employee’s appreciation of the perils of his employment is a command by one in authority to do a particular act, or an assurance that such act may be performed without danger. This is on account of the relation existing between the master and servant that the latter shall yield obedience to the former and may ordinarily assume that the command may be obeyed without danger, or may be relied upon as an assurance, of safety. Especially is this true when the command is sudden and where the situation gives little time for reflection and deliberation. In this state of case the employee is justified in subordinating his own judgment to that of his superior, and, notwithstanding any misgivings and doubts on his part, may ordinarily rely on the advice or the assurance of safety of his superior. In cases of this sort the employee is not required to weigh the degree of danger and decide whether it is safe for him to act and, in a measure, he is relieved of the usual obligation to exercise, ordinary caution in the performance of his work. In ordinary cases he may assume that the employer has superior knowledge and may rely thereon; especially so, when the act to be performed could be made safe by the exercise of special care on the part of the employer, which the employee may assume has been done. This rule is founded on the psychological truth that habits of obedience are formed by employees to a degree which often overrules independent thought and action, and thus deprives them of the exercise of intelligent foresight and prudence which would otherwise, protect them. The rule, however, has application (as will be discovered by a review of the cases cited) where the superior who gives the command is present in person actually directing the performance of the work, or where the command is given with a degree of knowledge equal to that of the employee as to the situation and circumstances surrounding the performance of the act commanded. The question of assumption of risk of the danger arising from an act commanded by a superior, under the rule stated, is always under circumstances from which the jury might find that the command was negligence in that it directed the performance of an act which, from its very nature, or from the attendant situation and circumstances, might be reasonably apprehended as dangerous to the employee.

In the instant case, we perceive no evidence from which the danger of injury in obeying the command might have been reasonably anticipated by the superior. According to the appellee’s testimony, he made no claim that he informed Crane that it was dangerous to move the barrels by himself, or that he so considered it. He gave Crane no information as to the approximate number of gallons of oil contained in any one of the five barrels, and it will be remembered that there were only 132 gallons in all five barrels. The only information given Crane was that the oil had leaked and covered the floor of the storage room, and this appears not to have been the cause of Wreyford’s fall, but that the pump attached to the barrel came in contact with his leg as the barrel was being moved. It also appears that the purpose for which Crane’s command was given — to discover from which barrel or barrels the leak was proceeding — had been accomplished when the first four barrels were moved and no leak was found. There was no necessity for any further movement of the barrels and the act of the appellee in moving the fifth barrel was purely voluntary. Crane was not present when the command was given to move the barrels. He was at a distance, being communicated with by telephone, and as Wreyford failed to apprise him of any particular reason for needing help, it was reasonable for him to assume that the movement of the barrels by Wreyford, unaided, might be accomplished with no particular danger, nor can we see where any danger would ordinarily result. Wreyford had complete knowledge of the situation and Crane did not. Under the circumstances it appears that the cause of appellee’s fall was occasioned by no negligence of the employer, but was one of those dangers ordinarily attendant upon the performance of his work.

It follows from the views expressed that the judgment of the trial court must be reversed, and, as the cause appears to have been fully developed, the case is dismissed.


author: Smith, J.

text:
    Lehman v. First National Bank in St. Louis.
    4-3536
    Opinion delivered October 1, 1934.

      W. A. Jaclcson and Tom W. Campbell, for appellants.

      George II. Steimel, Frauenthal ■£ Johnson and Walter L. Pope, for appellees.
   Smith, J.

On June 16, 1930, the Randolph State Bank borrowed $30,000 from the First National Bank in St. Louis, and as collateral therefor indorsed and delivered to the St. Louis Bank notes payable to the order of the Randolph State Bank for about twice that amount. Among the notes so indorsed and delivered was one executed by R. C. Lehman, which was secured by a deed of trust describing six lots owned by Lehman situated in the towns of Hoxie and Walnut Ridge. Lehman’s note was not due at the time of its indorsement and delivery to the St. Louis bank as collateral security.

Ben A. Brown, who is a brother-in-law of Lehman, was an active, vice president of the Randolph State Bank, and was the trustee in the deed of trust which Lehman had executed. Dr, J, W. Brown, the president of the Randolph State Bank, testified that Ben A. Brown had made the loan to Lehman against the will of the board and the loan committee, and that the loan was not regarded as a satisfactory one.

Ben A. Brown took up with the president of the Randolph State Bank and with Judge J. L. Bledsoe, a director in and the attorney for that bank, the question of releasing from the deed of trust one of the lots described therein as lot 1, block 19, in the town of Hoxie, and in that connection made the following representations to the bank’s president and attorney: That this lot 1 was vacant and unimproved, and that Lehman had an opportunity to make an advantageous lease of this .lot for a filling station, but that the lease could not be made unless the lot was released from the deed of trust, but that, if it were released, the lease itself would be assigned to the bank, and a new deed of trust would be executed subordinate to the lease. As a matter of fact, lot 1 was not vacant but had a brick garage on it.

There is a conflict in the testimony as to these representations, but we think the testimony clearly established the facts as above stated.

There is a controversy also as to whether Ben A. Brown, in repeating these representations to the president of and the attorney for the bank was acting as Lehman’s agent. We think he was if it is of any importance to decide that question, and the effect of the representations is the same as if Lehman himself had made them directly to the president of and attorney for the bank. “One is liable for his agent’s fraud and misrepresentations within the apparent scope of his employment, whether he authorized or knew of them or not.” DeCamp v. Graupner, 157 Ark. 578, 249 S. W. 6.

There was no other consideration for the release of this lot 1 from the deed of trust, and the president, thinking to improve the security of the bank, consented to the preparation of a release of the lot by the bank’s attorney. The release was prepared and executed and later recorded. After the execution of the release a lease was executed by Lehman to O. K. Wing, as trustee, which lease was duly assigned by the lessee to the Phillips Petroleum Company. Thereafter Lehman conveyed this lot 1 to his wife, subject, of course, to the outstanding lease. Lehman and his wife testified that the consideration for the deed from him to her was the partial payment of a debt which Lehman owed his wife.

The Randolph State Bank became insolvent and closed its doors without repaying all of its loan to the St. Louis Bank. Upon the maturity of the Lehman note, payment thereof was demanded, and, upon refusal or failure by Lehman to pay, suit was brought by the St. Louis bank to foreclose the deed of trust given to secure Lehman’s note.

There had been no notation upon the margin of the record where the deed of trust was recorded showing that the note which it secured had been transferred or assigned when the release deed was executed on September 13, 1930, but the note had been indorsed and delivered to the St. Louis. Bank as above stated, and was in the possession of that bank as collateral when the release deed was executed. The St. Louis bank was not advised of and did not consent to the execution of the release.

Separate answers were filed by Lehman and his wife. He admitted the execution of the note, and did not question the amount due on it, but he alleged that the release had been executed without fraud or misrepresentation on his part, and that he had conveyed the lot-for full value to his wife. Mrs. Lehman alleged that she was a subsequent purchaser of the lot within the meaning of § 7399, Crawford & Moses’ Digest, and that she had accepted the deed from her husband in good faith in part payment of a debt due from him, and gave testimony to support those allegations.

The court held, in effect, that Mrs. Lehman was not a subsequent purchaser within the meaning of § 7399, Crawford & Moses’ Digest, but that the petroleum company — the assignee of the lease — was, and decreed the cancellation of the release except in so far as it affected the lease, which was held to be valid. Judgment was rendered against Lehman for the balance due on the note, and the deed from him to his wife was canceled, and it was held that the deed of trust was a subsisting lien against lot 1, and the foreclosure of the deed of trust was ordered, subject to the lease held by the petroleum company.

An appeal has been duly prosecuted from so much of the decree as holds, in effect, that Mrs. Lehman is not a subsequent purchaser within the meaning of $ 7399, Crawford & Moses ’ Digest.

It was shown by the testimony of a real estate agent that the value of all the lots described in the deed of trust was only $4,725, and that the present value of lot 1 was $2,500, leaving property worth only $2,225 to secure a debt of more than $5,000 if lot 1 is excluded.

It was shown by the testimony that the loan evidenced by the note was made to Lehman alone, and that his wife had not obligated herself to pay it, but it was shown also that she joined in the execution of the deed of trust here sought to be foreclosed.

It is not contended that Mrs. Lehman was under the apprehension that the note had been paid, nor is it contended that she advanced to the Bandolph State Bank any consideration for the execution of the. release deed.

There was testimony at the trial from which this appeal comes to the effect that the St. Louis bank had become the owner of the Lehman note through a public sale thereof, but it is contended that it was not shown that there was such a sale as operated to pass the title thereto.

We do not think it essential to determine this question. The St. Louis bank holds the note either as owner or as pledgee, and the law is well settled that, when the owner of securities pledges them to secure the payment of his own débt, he impliedly transfers the right to the remedies which will make the securities available for the payment of his debt in case of his own default. Chapter on Pledge, 21 B. C. L., page 666. We held, in the recent case of Leonard v. Taylor, 183 Ark. 936, 39 S. W. (2d) 704, that: “The holder of the pledge has a special ownership therein to *the. extent of the debt secured thereby, and may proceed to enforce it if it be a chose in action, a negotiable instrument, or any of a like nature. ’ ’

Appellants make no contention that the assignment of the Lehman note to the St. Louis bank as a part of the collateral to secure the.note executed to it by the Randolph State Bank did not automatically effect an assignment of the lien of the deed of trust securing the Lehman note. That such was its effect has been many times decided. Among the latest cases to that effect are those of Fullerton v. Storthz, 182 Ark. 751, 33 S. W. (2d) 714, and Rockford Trust Co. v. Purtell, 183 Ark. 918, 39 S. W. (2d) 733.

The controlling question to be considered is the effect of § 7399, Crawford & Moses’ Digest, as applied to the facts of this case. This section gives any person who, according to the face of the mortgage record, is the owner of any of the liens there mentioned the right to satisfy the liens of record by indorsement on the margin of the record where the instrument is recorded, and provides that, when this is done, a subsequent purchaser, mortgagee, or judgment-creditor, is protected against such liens “unless there shall appear on the margin of the record where such instrument is recorded a memorandum showing that the said mortgage, deed of trust, vendor’s lien, lien retained in deed or note, or other evidence of indebtedness secured thereby has been transferred or assigned, which said memorandum shall be signed by the transferrer or assignor, giving the name of the transferee. or assignee, together with the date of such transfer or assignment, said signature to be attested and dated by the clerk.”

Section 7400, Crawford & Moses’ Digest, provides that the lien may also be discharged “by separate release deed or instrument duly executed, acknowledged and recorded, which instrument, when so recorded, shall be of the same effect as a marginal entry.”

Now, as has been said, there was no indorsement on the margin of the record showing that the note there secured had been assigned, and it is therefore insisted that Mrs. Lehman acquired title to lot 1 as a subsequent purchaser discharged from the lien of the deed of trust.

We do not think so. In our opinion, the case of Vance v. White, 180 Ark. 470, 21 S. W. (2d) 853, announces the principle which controls here. The facts in that ease were as follows: Brandon & Baugh sold a tract of land to Jeff White, and in part payment took a note secured by a vendor’s lien. Brandon & Baugh indorsed and delivered the note, before its maturity, to Mrs. Vance as security for a debt due by them to her. While the note was so held by Mrs. Vance, the maker thereof died, and the note was paid to Brandon & Baugh ■by White’s son. No indorsement of the transfer of the note had been made, on the margin of the record when Brandon & Baugh made the marginal indorsement that the note had been paid. In holding that § 7399, Crawford' & Moses’ Digest, did not apply, we said: “The rights of no such person” (subsequent purchaser) “have intervened here. If the original grantee in the deed reserving the vendor’s lien were living, he would not be heard to say that he had paid the amount of his note to a person who did not own it, and was not in possession of it when he made the payment, and had thereby discharged the lien which secured the. note. Nor can his heirs.”

Here there was no payment of or upon the secured note, and the release was obtained, not for a valuable consideration, but upon the false representation that the lot was vacant, when, in fact, it was one upon which there was a building of value. Moreover, Mrs. Lehman as well as her husband was one of the makers of the deed of trust. She may not therefore claim to be a subsequent purchaser within the meaning of § 7399, Crawford & Moses’ Digest, through the fraudulent representation of her husband, who had joined with her in the- execution of the deed of trust.

The decree of the court below is correct, and will be affirnled. It is so ordered.


author: Mehaffy, J.

text:
    Coca-Cola Bottling Company of Arkansas v. Adcox.
    4-3538
    Opinion delivered October 1, 1934.

      8. Hubert Mayes, for appellant.

      Claude M. Erwin, Jr., for appellee.
   Mehaffy, J.

This action was begun by appellee in the Jackson Circuit Court against the appellant, Coca-Cola Bottling Company, to recover for personal injuries caused by drinking a part of a bottle of Coca-Cola which contained foreign substances, alleged to be glass and hairs.

It was alleged that appellee purchased from the Missouri Pacific Restaurant at Newport, Arkansas, a bottle of Coca-Cola which had been manufactured, bottled and delivered to the said Missouri Pacific Restaurant by the appellant, Coca-Cola Bottling Company, which was to be offered for sale as a beverage for human consumption by the said restaurant; that, instead of being wholesome and good for human consumption, said bottle of Coca-Cola purchased by appellee had been negligently manufactured and negligently bottled, and was unwholesome, poisonous, and wholly unfit for human use, in that said bottle contained putrid and foreign substances, among which were hairs, having the appearance of bristles from a brush, and pieces of broken glass, poisonous and deleterious, which had been negligently permitted to enter and remain in said bottle, by the appellant; that appellee drank of said bottle of Coca-Cola without knowledge of its unwholesome condition, and did not know that it contained any foreign or unwholesome substances until he had drunk about one-half of the contents of said bottle; that, by reason of taking the said unwholesome Coca-Cola in his stomach, appellee immediately became violently ill, cramping and sick at his stomach, and was so violently ill that it was necessary for him to go to bed for care and medical attention. Further allegations were made with reference to appellee’s injuries.

The appellant filed answer denying the allegations of the complaint, and pleaded the contributory negligence of appellee. There was a trial by jury, and a verdict and judgment for $1,000. The case is here on appeal.

The evidence of appellee tended to show the facts alleged in the complaint, and the testimony offered by appellant tended to show that there was no carelessness or negligence in the manufacturing and bottling of the Coca-Cola.

Only two questions are presented for our consideration. The appellant contends, first, that the court erred in admitting the bottle from which appellee drank the alleged impure Coca-Cola, and, second, that the verdict is excessive. There is no contention that the evidence is not sufficient to support a verdict for the appellee.

When appellee offered the bottle in evidence, the appellant objected. Appellant states that the case falls squarely -within the rule announced by this court in Hooks v. General Storage & Transfer Company, 187 Ark. 887, 63 S. W. (2d) 527. It is stated in that case: “According to the uncontradicted testimony in this case, the photographs of the two trucks which were in the collision were not taken until a week or ten days after the collision, and at that time appellant’s ice truck had been fully repaired.” The photographs in that case were inadmissible because the truck had been repaired, and the photograph did not show the condition of the truck at the time of the injury. If the photographs had been taken before the trucks were repaired, and if the evidence had shown that at the time the photographs were taken there had been no change, the photographs would have been admissible. In the instant case, the appellee testified that he took the bottle that he drank from and poured the Coca-Cola out, and that naturally it rinsed some of the contents out, but there is some in there yet; that he corked the bottle up and put it away. When he was asked if it was sealed in that condition, he said: “Absolutely.” On cross-examination he was asked if it had some Coca-Cola in it, he said “Yes,” and he poured it out. He also testified that he put a top on it; that several persons saw him do this, and he took it up to Mr. Claude Erwin, and it had been in Mr. Erwin’s safe ever since that time; that the bottle was in the same condition it was when he delivered it to Mr. Erwin.

Mr. Erwin testified that the bottle was given to him by Adcox, and that it had been in his safe until the morning of the trial, when he brought it to the trial, and that it was in the same condition that it was when Adcox gave it to him.

It was not error for the court to permit the bottle to be introduced in evidence.

The Alabama court, in passing on a similar question, said: “We do not think the trial court was in error in permitting the introduction of the bottle, and the decomposed rat over the appellant’s objections. The appellee identified the bottle and its contents. The testimony is not to be excluded because the witness does not speak with positive assurance.” Coca-Cola Bottling Company v. Barksdale, 17 Ala. App. 606, 88 So. 36.

In the case of Walker Hospital v. Pulley, 74 Ind. App. 659, 127 N. E. 559, the court held that it was not error to introduce in evidence a piece of gauze taken from the sinus.

The Nebraska court held that, under the circumstances outlined, bottles and labels from defendant’s line of drug stores tend as circumstantial evidence to throw some light on the issue of sales, and were therefore admissible in evidence. Thamann v. Merritt, 107 Neb. 602, 186 N. W. 1003.

“Plaintiff offered in evidence a sample of corn claimed to have been taken from the car actually delivered to him. This sample was received in evidence. There is some controversy as to the identity of this sample. We think, however, plaintiff’s evidence of identity was sufficient to warrant the court in receiving it.” McGuire v. Chambers, 148 Minn. 57, 180 N. W. 1013. See also Ranney-Davis Merc. Co. v. Morris, 223 Pac. 887; Keith v. Drainage Dist., 183 Ark. 384, 36 S. W. (2d) 59; Miss. River Fuel Corp. v. Senn, 184 Ark. 554, 43 S. W. (2d) 255; Sloan v. Newman, 166 Ark. 259, 266 S. W. 257; S. L. S. F. Ry. Co. v. Horn, 168 Ark. 191, 269 S. W. 576; Graves v. Jewel Tea Co., 180 Ark. 980, 23 S. W. (2d) 972.

It is next contended by the appellant that the verdict is excessive. The appellee testified that in drinking the Coca-Cola he swallowed some of the hair and glass; that he was made sick, treated by a physician about six weeks, suffered great pain, and still suffers. This evidence was practically undisputed.

There is no rule by which we can measure damages for pain and suffering.

“Verdicts of juries are not set aside on account of the amount of recovery unless the amount is excessive. If the plaintiff was entitled to tecover, and the amount of the verdict was a fair compensation for the injuries complained of, the verdict of the jury should be permitted to stand.” Ward v. Blackwood, 48 Ark. 399, 3 S. W. 624.

“The measure of damages for a physical injury to the person may be broadly stated to be such sum, so far as it is susceptible of estimate in money, as will compensate plaintiff for all losses, subject to the limitations imposed by the doctrines of natural and proximate consequences, and of certainty, which he has sustained by reason of the injury, including compensation for his pain and suffering, for his loss of time, for medical attendance and support during the period of his disablement, and for such permanent injury and continuing disability as he had sustained. Plaintiff is not limited in his recovery to specific pecuniary losses as to which there is direct proof, and it is obvious that certain of the results of a personal injury are insusceptible of pecuniary admeasurement, from which it follows that in this class of cases the amount of the award rests largely within the discretion of the jury, the exercise of which must be governed by the circumstances and be based on the evidence acl•dueed, the controlling principle being that of securing to plaintiff a reasonable compensation for the injury which he has sustained.” 17 C. J., 869, et seq.

We are of opinion that the verdict of the jury is not excessive. The issues were submitted to the jury on proper instructions, and its verdict must be permitted to stand.

We find no error, and the judgment is affirmed.


author: MoHaney, J.

text:
    Redus v. Wagley.
    4-3531
    Opinion delivered October 1, 1934.

      Patterson & Patterson and Hill, Fitzhugh $ Brizzolara, for appellant.

      J. L. Shouse and 8. W. Woods, for appellee.
   MoHaney, J.

Appellant sued appellee to recover judgment on a promissory note for $5,000 and accrued interest which appellee had given H. W. Redus in his lifetime. Appellee defended on the ground that he had paid the note and interest on April 19, 1930, by check to the H. W. Redus estate which was delivered to the First National Bank and cashed by it. The facts, briefly stated, are as follows: H. W. Redus, a well-to-do citizen of Harrison, Arkansas, loaned appellee $5,000 in 1921 at 8 per cent, interest. Some time thereafter said Redus became insane, and appellee was appointed guardian of his estate in 1925, said note being a part of the assets of said estate. Interest was paid from, time to time and the note kept alive. Stock owned by appellee in the People’s National Bank of Harrison was given as collateral to secure said note, and appellee was the bank’s president. Said note and other assets of said estate were kept in said bank for safekeeping and collection and credit. Notes, rents, dividends and other assets were collected by the bank from time to time and deposited to appellee’s account as guardian of said estate. Later the name of said bank was changed to First National Bank. In 1929 appellee resigned as guardian, and appellant, son of H. W. Redus, was appointed guardian in succession. At that time, all the assets in the hands of appellee were turned over to appellant, including the note in controversy, and at the same time appellant left same in said bank for safekeeping and collection. The account was thereafter handled by the bank just as it had been handled while appellee was guardian. The note in question was made payable at the People’s National Bank, later changed to First National. On April 19, 1930, appellee sold all his stock in said bank to A. T. Hudspeth, receiving a draft on a St. Louis bank for $39,075 in payment therefor which he. deposited to his credit in the First National of Harrison. After the draft had cleared and on April 23, 1930, he went to the bank, drew his check thereon for $5,800 payable to the order of the H. W. Redus estate, delivered same to the cashier in payment of said note and interest which was accepted by him as full payment, and was handed his note marked paid, and said collateral. The cashier deposited said money to the credit of H. W. Redus estate, a new account, and not to the credit of C. H. Redus, guardian. On May 19, 1930, the bank applied said money to the payment of two notes held by it against appellant, C. H. Redus and his sister, Mary Redus White, and appropriated same to its own use, claiming authority so to do on a written guaranty executed by IT. W. Redus while sane. On this state of facts, the trial court found “that the People’s Savings Bank (successor to the First National) had authority to collect the moneys herein involved for the plaintiff, C. IT. Redus, as administrator of the estate of H. W. Redus, deceased, and that therefore plaintiff’s cause should be dismissed for want of equity.” Decree was entered accordingly.

For' a reversal of the judgment, appellant makes two contentions: (1) Conceding the bank’s authority to collect said note, “the deposit in the bank in the manner and form made on April 23,1930, was not good payment, and Wagley is liable upon his note”; and (2) that the finding that the bank had authority to collect said note is against the preponderance of the evidence.

We cannot agree with either contention. The note was made payable at the People’s National Bank, and it actually made the collection, although its name had been changed to First National Bank. It had been left there for collection and safekeeping by appellant. The deposit of April 23, 1930, “in the manner and form made,” was not made by appellee. It was made and credited by the bank acting through its cashier. Appellee was not a stockholder in the bank at that time and, of course, was not its president. He had sold his stock on April 19, and had been paid for it. His stock attached to said note had not been delivered, but it belonged to the purchaser. Appellee paid the bank the amount of his note and interest by check to the H. W. Redus estate. He had no authority to control the bank in the manner it was credited on its books and did not do so. If the bank on May 19 wrongfully misappropriated the money, then it would be liable. It, through the Bank Commissioner, was made a party, but its liability was not determined by the trial court. The fact that the check was made payable to the H. W. Redus estate did not prevent the bank from depositing it to the credit of the guardian. Whether the bank had authority to collect the money was a question of fact, and, as we view the evidence, the finding of the court that it did have such authority is not only not against the preponderance thereof, but is supported by the decided weight if not by the undisputed evidence.

Let the decree be affirmed.