text:
    Arkansas Land & Lumber Company v. Cooper.
    Opinion delivered November 27, 1922.
    1. Appeal and error — conclusiveness op verdict. — Verdict supported by evidence will not be disturbed on appeal.
    2. Master and servant — duty to furnish safe appliances — instruction. — In an action for injuries to an employee thrown from a tractor when a defect in a set-screw caused a wheel to lock, in which there was evidence for the employer in support of the defense of assumed risk that the employee had knowledge of the defect and had teen instructed to inspect and repair the tractor, and that he was injured while performing such service, an instruction that it was the employer’s duty to exercise ordinary care to furnish the employee with safe appliances was erroneous as ignoring the defense of assumed risk.
    3. Master and servant — safe appliances.' — Generally, an employer is required to exercise ordinary care, not only to furnish his employees a reasonably safe place in which to work but also reasonably safe appliances; but if the servant knows that the appliance is dangerous and is engaged in the act of putting it in repair, he assumes the risk incident to the work of repair.
    4. Master and servant — obvious defect — assumed risk. — If a defect in an appliance was a patent and obvious one, a.n employee using it wiould not he relieved from assumption of risk merely because his foreman told him that the appliance had been repaired.
    5. Master and servant — obvious risk — question for jury. — In an action for injuries to an employee thrown from a tractor because of a defect in a set-screw, where there was evidence tending to prove that the defect was obvious, it was a question for the jury whether the employee assumed the risk, notwithstanding his foreman told him that the defect had been repaired.
    Appeal from Little River Circuit Court; James S. Steel, Judge;
    reversed.
    STATEMENT OF FACTS.
    E. T. Cooper sued tire Arkansas Land & Lumber Company
    to recover damages for personal injuries sustained by him on account of the negligence of the defendant while he was in its employment.
    The defendant denied negligence on its part, and pleaded assumption of risk on the part of the plaintiff.
    E. T. Cooper was a witness for himself.
    He was twenty-three years old at the time he was injured on the 13th day of September, 1921. He was receiving $2.75 per day, and had been in the employment of the company for four or five months’ at the time he was injured. He had been working in the electric department of the company’s mill for about a month before he was injured. Before that he had worked in the garage department. He was injured while using a tractor at the defendant’s mill. It had two tractors, Nos. 1 and 2. Both were run by mercury batteries, and were used in pulling lumber buggies around the mill yards. The tractors were constructed alike, but No. 1 was faster than No. 2. Each tractor was about six or seven feet long and had three wheels, two in the rear and a smaller one in front. The front wheel was used to guide the machine, and the rear ones did the pulling. The front wheel was attached to the machine by a steel fork constructed on the same principle as a bicycle. The front wheel was supported on a ball-bearing which was arranged so that it could be tightened, adjusted, replaced, or disassembled by a set-screw which held the nut that supported the fork in place. The fork was attached to a solid piece, which was crooked and extended to the left of the operator, as he sat on the front part of the machine, so that he could guide it. On his right was a lever which he used to turn on and off the current. When the set-screw, which was attached to the collar which held the fork to the handle-bar with which the machine was guided, worked loose, the nut would screw down and tighten the bearing and make it hard to steer the machine, and, if it was screwed tight enough, it would lock the machine. If you got to where you could .not operate the steering apparatus, the machine would continue to run in the direction in which the front wheel was set. If it was set straight, the machine would run straight. If it was set in a circle, the machine would turn around. The machine had an automatic brake on it, which could be applied by the driver raising his weight off of his seat.

      The plaintiff was familiar with the use of the tractor at the time he was injured, and had to some extent been repairing it under the directions of his foreman. The steering wheel had gotten out of fix, and the plaintiff had reported that fact to J. A. Smithson, his foreman, who promised to have it repaired. The plaintiff did not work for a few days .after the foreman promised to repair the machine, on account of the illness of his wife. He returned to work on the morning that he received his injuries. His foreman told him to take tractor No. 2 into the mill yard for use, and directed him and the other helper to repair tractor No. 1. The tractors were kept at night in a little house to themselves for the purpose of having their batteries charged with electricity. This house was connected with the mill yard by a tramway eight or ten feet high and six or seven feet wide. It had 2x4 planks nailed down along its edges for the purpose of preventing the tractors from running off of the tramway. The plaintiff got on tractor No. 2 and began to back it along the tramway into the mill. The steering wheel -turned around and became locked. The plaintiff endeavored to turn it straight again so that the tractor would run along the tramway, but could not do it on account of its being locked. He applied the foot brake as soon as possible, but the tractor jerked violently and threw him to the left of the tramway, and the tractor itself ran off on the right side thereof. The plaintiff was thrown so 'violently from the tractor that lie was severely injured.
    J. A. Smithson,
    the brother-in-law of the plaintiff, and the foreman of the defendant under whom the plaintiff, worked, was the principal witness in behalf of the defendant. He described the tractor in much the same way as it appears from the statement of the evidence in behalf of the plaintiff. Both of the tractors in question had been in use for about three years, and were almost constantly in need of repair. It was the duty of the plaintiff and the other helper of the foreman to inspect and repair the tractors. The plaintiff, after having been absent from work for several days on account of the illness of his wife, reported for-work at the office of his foreman on the morning that he was injured. The foreman directed the plaintiff and his other helper to go to the house where the machines were kept at night and look over the tractors, tighten them up and see that they were in good running order. Smithson was asked the specific question if he had told the plaintiff to take the tractor anywhere the morning he was injured, and his answer was: “No, there wasn’t anything said about taking it. I sent him down to do some work on it.” Again, Smithson stated that he told plaintiff -and his other helper to go over there, look the tractor over and make repairs on them. The plaintiff was injured while engaged in that service.
    The jury returned a verdict in favor of the plaintiff in the sum of $10,000, and from the judgment rendered the defendant has duly prosecuted an appeal to this court.

      King, Mahaffey & Wheeler, for appellant.
    The mere fact that the tractor may have become . locked, thereby throwing appellee off, did not prove negligence on the part of appellant. The doctrine of res ipsa loquitur does not apply in cases of this nature. 81 Ark. 372; 74 Ark. 19; 79 Ark. 76. Since it was a part of the duty of appellee to keep the tractors in repair, the master did not owe him the duty to see that they were in reasonably safe condition for his use. 3 Labatt, Master & Servant, sec. 1176; 124 S. W. (Ark.) 1048; 44 Ark. 524; 58 Ark. 217; 114 S. W. (Ark.) 697; 187 S. W. 1085; 161 S. W. 421; 166 Ala. 482; 151 N. C. 356; 81 Ca. 14; 31 Calif. 377; 26 Cyc. p. 1252. It was error to refuse defendant’s instruction No. 2 in the form requested, since it covered a defense which 'was supported by the evidence. 87 Ark. 243; 72 Ark. 572; 105 Ark. 205; 122 Ark. 125; 198 S. W. 690. Instruction No. 3y2 was error. Appellee being a repairman, appellant -was under no obligation to furnish him safe appliances upon 'which to work. The conditions of the working place were obvious to appellee, and if there was danger he assumed it in taking employment. 57 Ark. 76; 83 Md. 257; 144 Pa. 348.

      D. D. Glover and Percy Steel, for appellee.
    It is a duty the master owes to the servant to furnish him a safe place in which to work. 71 Ark. 55; 91 Ark. 393. It was the duty of the master to warn of the defective condition of the tractor. 81 Ark. 591; 92 Ark. 351; 97 Ark. 553; 87 Ark.' 321. A servant does not assume the risk of dangers that arise from the master’s negligence, unless he is aware of them. 136 Ark. 607; 102 Ark. 640; 79 Ark. 56; 95 Ark. 294; 101 Ark. 201.
   Hart, J. (after stating the facts).

It is first earnestly insisted by the counsel for the defendant that the evidence is not legally sufficient to support the verdict. The tractor is guided by -the front wheel, which is connected with the front part of the machine by a fork, something on the- principle of one on a bicycle. The fork comes up through the foot-brake on the machine, and other parts attached to it make a handle-bar with which to guide the machine. The fork is supported on a ball bearing, and the ball bearing is adjusted and held in place with a nut and set-screw through an iron collar. The tractor, in hauling carriages of lumber on the floor of the mill, has a tendency to loosen the set-screw, and this has the effect, to tighten the nut on the bearing and make the machine hard to steer and also to lock the steering wheel.

The plaintiff knew that the machine was defective in this respect, and reported that fact to his foreman. Then his wife became ill, and he was absent from his work for several days. When he returned to his work, his foreman told him that the tractor had been repaired, and directed him to drive it from the house, where it was kept at night, to the floor of the mill for use that day. While backing the tractor along the tramway into the mill, the front wheel turned and became locked. The plaintiff tried to turn it back straight so that the machine would not .jump off the tramway. His efforts caused the machine to jump violently and throw him off of it to the left of the tramway, and at the same time the machine ran off to the right of the tramway. The plaintiff had a right to rely upon the statement of his foreman that the machine had been repaired, and it cannot be said, under the circumstances detailed by him, that the defect in the machine was so patent to him when he got on it that he must have known that it was still out of repair. According to his testimony, the defect in the set-screw caused the front wheel to lock when it was turned, and this caused the machine to jump and jerk violently and thereby throw the plaintiff from it. According to his testimony, the defect in the set-screw was the proximate cause of the injury.

It is true that, according to the testimony of. the foreman, the plaintiff was sent to repair the tractor instead of driving it into the mill to be used, but this question of fact was settled against it by the verdict of the jury, and it cannot be said that the verdict is not supported by the evidence of the plaintiff. Therefore, this assignment of error is not well taken.

The next assignment of error is that the judgment should be reversed because the court gave instruction No. 3%, which is as follows:

“You are instructed that it was the duty of the defendant company to exercise ordinary care to furnish the plaintiff a reasonably safe place in which to work, and appliances with which to work, and perform his duties to it with safety to himself while in the exercise of ordinary care for his own protection.”

We are of the opinion that the court erred in giving this instruction. According to the evidence of the plaintiff, he was acting under the immediate command of his foreman, and was injured while driving the tractor into the mill for the defendant to be used, and the injury was caused by a defect in the steering wheel, which the foreman had told him had been repaired.

On the other hand, according to the testimony of the foreman, the plaintiff was sent to inspect and repair the tractor. The tractor had been in use for about three years, and was constantly in need of repairs. It was a part of the plaintiff’s duty to perform this service, and he was injured while doing this. The instruction is erroneous for the reason that it entirely ignores the theory of the defendant. According to .the defendant’s evidence, it was not its duty to furnish the plaintiff with a reasonably safé place in which and safe appliances with which to work. The foreman had delegated to the plaintiff the duty to inspect the tractor and to repair it. Therefore, the case, under the testimony of the defendant, falls within the principles of law decided in cases of Southern Anthracite Coal Co. v. Bowen, 93 Ark. 140, and Stout Lumber Co. v. Wray, 109 Ark. 288, and cases of like character.

Under the evidence for the defendant it was the duty of the plaintiff to inspect the tractor and to repair it, and he was injured while performing this service. Therefore it was error to ignore this- testimony and tell the jury that it was the duty of the defendant to exercise ordinary care to furnish the plaintiff with safe appliances with which to work, without taking into consideration the theory of the defendant, as shown by its evidence.

It is true that the general rule that an employer is required to exercise ordinary care, not only to furnish his employees a reasonably safe place in which to work, but reasonably safe appliances to work with, is well settled in this State.

It is equally well settled, however, that this rule has certain well-defined exceptions. One of them is that where a servant knows that the appliance is dangerous and is engaged in the act of putting it in repair he assumes the risk incident to the work of repair. He éannot act upon the assumption that the machinery is in repair when he is employed for the very purpose of putting it in repair. The reason for the rule is aptly stated in the case of the Dartmouth Spinning Co. v. Achard, 84 Ga. 14, 6 L. R. A. 190. In that case Bleckley, Chief Justice, speaking for the court said:

“"While it is the duty of a master to furnish his servant with safe machinery for use, he is under no duty to furnish his machinist with safe machinery to be repaired, or fo keep it safe while repairs are in progress. Precisely because it is unsafe for use, repairs are often necessary. The physician might as well insist on having a well patient to be treated and cured, as the. machinist to have sound and safe machinery to be -repaired. The plaintiff was called to this machinery as infirm, not as whole. An important part of his business was to diagnose. the case and discover what was the matter. If he failed in this branch of his profession, it was either his fault or his misfortune. So far as appears, no one knew more of the state and condition of the machinery at the time than he did; and the object of calling him in the room was that he might ascertain the cause of the trouble, and apply the remedy.”

It follows that the instruction in question is erroneous-because it ignored this phase of the case, which was the main defense relied upon by the defendant to defeat the recovery of the plaintiff.

It is next insisted that the court erred in giving instruction No. 4 as modified. The instruction is as follows :

“The court instructs the jury that the plaintiff, on entering the employment of the defendant, assumed .the ordinary risk of dangers arising from the ordinary operation of defendant’s business without negligence; and he also assumed the risk of dangers arising from such defects, if any, in the defendant’s machinery or appliances that he actually knew about, or would necessarily have discovered in the discharge of his employment. So, although you should find that defendant’s tractor No. 2 was out of repair, and plaintiff was injured as a result of such condition, yet if the plaintiff, before his injury, actually knew of the condition of such tractor, or, in the proper discharge of the duties of his employment, would necessarily have discovered its condition before his injury, and in time to have avoided injury from such condition, you will find for the defendant, unless you further find from the evidence that plaintiff had been informed by his foreman that tractor No. 2 had been repaired.”

The modification consisted in adding the words at the end of the instruction, “unless you further find from the evidence that plaintiff had been informed by his foreman that tractor No. 2 had been repaired.”

The fact that his foreman had told him that tractor No. 2 had been repaired would not relieve the plaintiff from the assumption of risk, if, when he went to use the machine, he saw that it had not been repaired, or if the defect was so patent that he could not have helped observing it. In other words, it was error to tell the jury as a matter of law that the defendant would be relieved from the assumption of risk if his foreman had told him that the tractor had been repaired. ■ Of course, the plaintiff, under his theory of the case, would not have had to search for defects or to inspect the machine, but, if the defect in the set-screw was a patent and obvious one, the plaintiff would not be relieved from the assumption of risk merely because his foreman told him that he had repaired the machine.

According to his own testimony, the plaintiff sat on the front part of the machine while operating it. The set-screw connected the fork attached to the front wheel with a handle-bar extending to the left of the machine. The handle-bar was used by the plaintiff to guide the machine, and the defective set-screw was right in front of his eyes. The plaintiff was accustomed to the use of the machine and had helped repair it. Therefore the question of whether or not the defect was patent and obvious to the plaintiff should have been left to the jury, and the court erred in telling the jury as a matter of iaw that the plaintiff was relieved from the assumption of risk if Ms foreman liad told Mm that he had repaired the machine.

For the errors indicated the judgment must be reversed and the cause remanded for a new trial.


source: Caselaw Access Project

author: Hart, J., (after stating the facts).

license: Public Domain

text:
    Davis v. Hareford.
    Opinion delivered November 27, 1922.
    1. Railroads — contributory negligence — jury question. — In an action for personal injuries to plaintiff in an automobile struck by a train at a crossing, whether plaintiff was negligent in failing to discover the train in time held for the jury.
    2. Railroads — crossing accident — presumption.—Evidence that an injury was caused by the operation of a train makes a prima facie ease of negligence against the company operating the train, and the burden is on the company to rebut this presumption.
    3. Railroads — verdict against railroad and for employee. — In an action for injuries caused by the running of a train against the operating company and one of its employees, whose negligence is alleged to have caused the injury, since there is a statutory presumption of negligence against the company, but none against the employee, it was not error to refuse to instruct the jury that there could be no verdict against the company unless a verdict is also returned against the employee, since, if the evidence of negligence was equiponderant, it would be the duty of the jury to find for the employee and against the company.
    4. Trial — question for jury. — Where there is a conflict of evidence as to whether the statutory signals were given, the jury were the judges as to the credibility of the witnesses.
    5. Railroads — injuries by train — proximate cause. — Where an automobile was struck by a train at a crossing on the driver’s failure to stop in time, the proximate cause of the injuries was the striking of the automobile by the train, and not the defective condition of the emergency brake on the automobile.
    6. Railroads — contributory negligence — evidence.—In an action for injuries sustained by plaintiff when his automobile in which he wias riding was struck by a train at a crossing, testimony as to the defective condition of the emergency brake on the automobile was admissible on the question of plaintiff’s contributory negligence.
    7. Damages — when not excessive. — When plaintiff, by defendant’s negligence, received severe injuries to his spine, his head and left leg, lost a nine-year-old daughter of more than average intelligence, and an automobile worth $1,100, a verdict of $6,000 was not excessive.
    Appeal from Crawford Circuit Court;’ James Cochran, Judge;
    affirmed.
    STATEMENT OF FACTS.
    Appellee sued appellant to recover damages for personal injuries sustained by him by one of appellant’s passenger trains striking an automobile in which lie and members of liis family were riding.
    Charles Hareford was forty-six years old at the time the accident happened, and had lived about 100 yards from the tracks of the railroad company, about half-way between Dyer and Mulberry, in Crawford County, Ark., for 15 years. On the 12th day of September, 1919, in company with his son, his little daughter and two young ladies, he started from his home towards Mulberry in a Briscoe automobile at about two o’clock in the afternoon. He crossed the track and turned in a general southeasterly direction along the south side of the track into a public road separated by a fence from the railroad right-of-way to a crossing about three-quarters of a mile from his home.' In attempting to pass over this railroad crossing his car was struck by a passenger train and entirely demolished. The appellee was severely injured and his daughter and the two young ladies were killed. His son jumped from the car and escaped injury.
    About 75 yards back from the crossing appellee came to a stop, and then drove up a hill towards a point where he turned on the right-of-way of the railroad company. The railroad right-of-way is about 100 feet wide, with the track in the middle of it. He drove fifty feet up the hill and stopped again. As he approached the right-of-way there were bushes, which, to a certain extent, obstructed his view, and he told his son to keep a lookout. His son was thirteen years of age at the time, and the last he saw of him before the accident he liad one foot on the running board ready to jump from the oar. When appellee first heard the. train, it was right on him. He had listened for the train, if approaching, to blow the whistle or ring the bell, and if he had heard this warning he would have stopped his car. He did not hear any alarm given by the train until he was about 10 feet from the track, and then he saw the engine. He applied the emergency brake at once, but could not stop the car in time to prevent the train from striking it. Appellee was looking towards the west, the direction from which the train came, as he approached the crossing, and was listening and looking to ascertain if a train was approaching. He had a good emergency brake on the car. When he got to the top of the hill, . he was at the best point of observation of the track, and was running something like seven or eight miles an hour. There was no train in sight, and he could not hear one approaching. He then proceeded down the little hill towards the crossing, and never saw the train or heard any alarm given by it as he approached the crossing. The first he heard of the train was practically when he was about ten feet from the track and the train came into view. He could have heard the train if there had been any signals given by ringing the bell or blowing the whistle. He was listening for the.approach of the train. The bushes between the road and the track as he approached the crossing were all the way from four to seven feet high, and covered up the right-of-way. fence down to the cattle guard. He stated further that he had only owned tlie'Briscoe car about three months, and $1,100 was its standard price. Appellee was severely injured in his spine, his head and his loft leg. He was unconscious for forty-eight hours after he was struck. He has suffered from the injury in his spine ever since the accident. His daughter was past nine years of age, and was a girl of more than average intelligence. She was a great help to her mother.
    According to the testimony of Elmer Wright, he was working on a section of the railroad, at the time appellee was injured, about a quarter of a mile from the ■ crossing. The engineer did not whistle for the crossing, and the bell was not ringing when -the train passed him going towards the crossing.
    Two other witnesses testified that bushes were allowed to grow up along the right-of-way fence down to the cattle-guard, and that they were from four to six feet high. Still other witnesses testified that they saw appellee approaching the crossing in his car, and that the statutory signals of ringing the bell or blowing the whistle were not given.
    C. F. Edrington, the engineer of the train, was the principal witness for appellant.
    According to his testimony, he had been a locomotive engineer for thirty-three years, and was the engineer on the engine which hit the automobile of appellee. He was running between 30 and 35 miles an hour towards the crossing. - He sounded the whistle and turned on the air as he approached it. This rings the bell automatically until it is turned off. He was keeping a lookout, and first saw the automobile twelve or fifteen feet from the engine. He immediately applied the emergency brake and whistled the alarm signal. He struck the automobile between the hood and the wind-shield, and that threw the back end of the car into the driving wheels of the engine. The bell was still ringing when the accident occurred.
    Other witnesses for appellant testified that the signal for the crossing was given by blowing the whistle, and ' that the bell was kept ringing until the accident happened.
    Raymond Hareford, the thirteen-year-old son of appellee, had been a witness on the first trial of the case, but was absent in Oklahoma at the time of the trial of the present case in the court below. The court allowed his former testimony to be read as evidence to the jury. According to his testimony, he was on the front seat of the car with his father, and had gotten on the running board just before the train hit the car. The car was going slow, and the front wheels had just got on the track wlien tlie train hit it. They had slowed up the automobile on the hill by the bushes and looked and listened for the train, but could neither see nor hear it. Raymond first saw the train about twenty feet away, and got out on the running board and jumped from the ■automobile. "When his father saw the train, he applied the brake, but the brake slipped and would not hold. If the brake had not slipped, there was plenty of room to stop the car before it got on the track, and the train would not have hit it. His father killed the engine and threw on the brake. The brake was defective. • It had been slipping and would not' hold. The emergency brake was defective and would not hold.
    In rebuttal appellee testified that he turned the current off and put on the emergency brake when he saw the train, and that there was nothing wrong with the brake.
    The jury returned a verdict for appellee in the sum of $6,000, and from the judgment rendered appellant has duly prosecuted an appeal to this court.

      Thos. B. Pryor and Vincent M. Miles, for appellant.
    It was error to refuse appellant’s requested instruction No. 12. Appellant, if liable at all, under the allegations of the complaint, was only liable under the doctrine of respondeat superior. See 143 Ark. 376. Section 8575, C. & M. Digest, does not provide for a different rule of liability as between Edrington, the engineer, and Davis, as held by the trial court. There coidd be no liability against Davis, without liability against Edrington. Instruction No. 9 requested by appellant should have been given. There was testimony to support the theory that the accident was caused by the brake on the automobile slipping, which if true, would have been the proximate cause of the accident, and therefore no liability on the part of defendant. 97 Ark. 576. Instruction No. 3 on the question of keeping a lookout should have been siven. It is not necessary that both the fireman and engineer keep a lookout on a straight track. 93 Ark. 24. Instructions 5 and 6 on the question of contributory negligence in reduction of damages should have been given without modification. Such acts were applicable to the government operating the railroads. Dahn v. Davis, TJ. S. Sup. Ct., 42 S. C. Rep. 320.

      Starbird & Starbird, for appellee.
    Proof of the injury made a prima facie case against Davis (but not against Edring.to'n), and the burden was on him to disprove the alleged acts of negligence. C. & M. Digest, sec. 8562; 87 Ark. 308; 88 Ark. 12; Í17 Ark. 504; 139 Ark. 261; 127 Ark. 323. Instruction No. 12 requested by appellant was therefore properly refused. Instructions 9 and 10 were also properly refused. The question of proximate cause is one for the jury. 97 Ark. 584; 104 Ark. 62. The instructions were based upon only a part of the facts, which is not good practice. 141 Ark. 25. A proper lookout on the part of appellant would have discovered the automobile in time to have prevented the accident. 136 Ark. 259. Appellee had a right to relv upon the statutory signals being given. 136 Ark. 8; 138 Ark. 589.
   Hart, J., (after stating the facts).

It is first earnestly insisted that the evidence is not legally sufficient to warrant the verdict. In this contention we cannot agree with counsel for appellant. The undisputed evidence shows that the injuries sustained by appellee were caused by the engine of one of appellant’s passenger trains striking an automobile in which appellee and other members of his family were riding. The accident happened while they were attempting to cross the railroad track of appellant at a public road crossing. Under our statute this proof was sufficient to make out a prima facie case, of negligence against the appellant. This is conceded by counsel for appellant, but they insist that appellee is barred of recovery on the ground of contributory negligence, and that on this account the court should have directed a verdict in favor of appellant.

It is true that the engineer in charge of the train - testified that he gave the statutory signals of his approach to the crossing, and that he applied the emergency brake and gave the alarm whistle as soon as he saw the automobile approaching the crossing. It is also true that other witnesses testified that the whistle was blown for the crossing, and that the bell was kept ringing until after the accident happened. But it cannot be said that this testimony is reasonable and consistent in itself and is not disputed by any other evidence in the case.

Witnesses for appellee testified that they saw the automobile approaching the crossing, and that the statutory signals of ringing the bell or blowing the whistle were not given. Appellee himself testified that he was listening and looking for the approach of the train, and neither saw nor heard it approaching nor heard the bell ringing nor the whistle blown. He almost stopped his car as he got on top of the little hill where he could see in both directions. He neither saw nor heard the train approaching, and then continued on his way towards the crossing at a low rate of speed. His vision was somewhat obscured by bushes from four to seven feet high which grew along the rightrof-way fence until he. came to the cattle guard. Appellee did not see nor hear the train until he got within ten feet of it. He immediately applied his emergency brake, but could not stop his car. ' He denied that the emergency brake was defective aud out of order, as testified to' by his little son. The evidence in favor of appellee made the question of contributory negligence one for the jury, and the court did not err in refusing to direct a verdict for appellant. Ark. Cent. Ry. Co. v. Williams, 99 Ark. 167; Bush v. Brewer, 136 Ark. 247, and St. L. S. F. R. Co. v. Whitfield, 155 Ark. 560.

Counsel for appellant nest insists that the court erred in refusing to give instruction No. 12, which is as follows:

“You are instructed in this case that you cannot return a verdict against James C. Davis, as agent for the President, unless you also return a verdict against C. F. Edrington; in other words, there can be no verdict against one without a verdict against the other, ’ ’

Counsel for appellant rely upon the case of Patterson v. Risher, 143 Ark. 376. In that case it was held (quoting from syllabus): “Where a master jointly with its servant is sued for an injury to a co-servant, the injury being alleged to be proximately caused by the servant’s negligence, it was not error, at plaintiff’s request, to refuse to instruct that the jury might find for or against either defendant, as, if there was no negligence of the defendant servant, there could be no liability on the part of the master. ”

We do not think that case is controlling here. It is true that in that case, as in the present case, the servant of the company whose negligence is alleged to have caused the injury was made a party defendant to the action. But in that case there was no statutory presumption of negligence against the coal company. The burden of proof was upon the plaintiff to establish the negligence of the coal company, and under the facts stated he could not do that without also showing; negligence against Risher, the superintendent of the mine and the codefendant of the coal company. The burden of proof in each instance rested upon the plaintiff to show negligence. The burden was on him to show negligence on the part of the coal company as well as upon the part of Risher.

Here the rule is different. The burden of proof was upon the appellee to show negligence on the part of Edrington, but under the long established doctrine in this State, where an injury is caused by operation of a railway train, a prima facie case of negligence is made against the company operating the train, and the burden of proof is upon the railroad company to rebut this presumption or inference of negligence. Barringer v. St. L. I. M. & S. R. Co., 73 Ark. 548; and St. L. I. M. & S. R. Co. v. Armbrust, 121 Ark. 351.

Where the burden of proof rests upon a party to establish an ultimate fact, it cannot be said to be established unless the evidence of its existence.or non-existence is proved by a preponderance of the evidence, and this is true whether the burden rests on the party to establish an affirmative or negative proposition. The action against Edrington would be defeated if the jury found from all the evidence that it was just as probable that the injury occurred without negligence on his part as if he was guilty of negligence. This is so because it devolves upon appellees to establish Edrington’s negligence in order to recover against him. Not so in his action against the railroad company. As we have already seen, the undisputed evidence shows that appellee was injured by one of appellant’s passenger trains striking an automobile in which he was riding at a public crossing.

Under our statute the burden of proof then devolved upon the railroad company to show that the accident happened without any fault or negligence on its part. So, if the jury had been of the opinion that the evidence of negligence or not on the part of Edrington was of equal probative force, still it would have been its duty to have found against the railroad company. In short, such a finding- of the jury would lead to a verdict in favor of Edrington and against the railroad company.

The testimony of Edrington in regard to .giving the statutory signals was directly contradicted by other witnesses besides appellee, and his testimony with regard to keeping a lookout is inferentially contradicted by that of appellee. Hence it cannot be said that his testimony is reasonable and consistent in itself. The jury were the judges of the credibility of the witnesses, and might have found that the evidence was in equal poise as to the negligence of Edrington. Hence it might have returned a verdict in his favor because, as above stated, the burden was upon appellee to establish his negligence, and it might have returned a verdict against appellant because the burden was upon it to show that it was not negligent. Therefore, the court did not err in refusing to give this instruction.

It is next insisted that the court erred in refusing to give instruction No. 9, which is as follows: “You are instructed that if the driver of the car, by tlie exercise of ordinary care with reference to looking and listening, as you find in these instructions, could have discovered the train in time to have stopped, and he did not stop the car because there whs a defective brake on said car, then the defective brake on said car was the proximate cause of the injury, and your verdict must be for the defendant.”

This instruction was erroneous because it, in effect, told the jury that if the emergency brake on the automobile was defective, this was the proximate cause of the injury. The proximate cause of the injury was the train striking the automobile and thereby demolishing it and severely injuring the appellee and killing his daughter. The question of the brake being defective only went to the contributory negligence of appellee. If the emergency brake of appellee’s car was defective, as testified to by his son, such fact would tend to show that appellee was guilty of contributory negligence, in the use of it; but this ’would not make it the proximate cause of the injury. Therefore the court did not err in refusing to give this instruction.

We do not deem it necessary to discuss the instructions given by the court. It is sufficient to say that they fully and fairly submitted the respective theories of the parties to the jury.

We do not think that the verdict is excessive. A mere reading of the evidence on the part of the appellee will show that the jury was warranted in finding for appellee in the sum of $6,000. Besides the death of his daughter and the. loss of his automobile, he was severely injured in his spine and suffered great pain therefrom.

It follows that the judgment must be affirmed.

Smith, J., dissents.


author: Smith, J.

text:
    Home Life & Accident Company v. Haskins.
    Opinion delivered November 27, 1922.
    1. . Insurance — notice op forfeiture. — Where a policy of life insurance and a note given for premiums provided for forfeiture of the policy for nonpayment of the note, it was not necessary upon default in payment for the insurer to give the insured notice of forfeiture.
    2. Insurance — contract.—Where a life insurance policy, or receipt for the premiums, -and a note for the premiums were delivered simultaneously, they constituted, a single contract and should he read together.
    3. Insurance — forfeiture provision in premium note. — The provision of a note for premiums given by the holder of a life insurance policy that the policy should forfeit upon failure to pay the note held valid.
    4. Insurance — payment of premium note notwitpistanding forfeiture. — The provision of a note given for premiums under a life insurance policy that the note should be payable after forfeiture of the policy as consideration for the time the policy was in force, without reviving the policy, held valid.
    5. Insurance — cancellation of policy for nonpayment of premium. — Where a life insurance policy provided for its forfeiture upon nonpayment of premiums when due, and a premium note provided for termination of the policy upon nonpayment at maturity, insurer, upon such nonpayment, had a right to cancel the policy on the books and thereby to end its liability, in the absence of reinstatement.
    6. Insurance — premium note not payment. — Where a soliciting agent of an insurance company accepted a note for permium on a policy delivered to the insured, and delivered the note to the company, the note was a conditional payment of the premium and belonged to the company, in the absence of proof that the agent assumed liability with the company’s consent.
    7. Insurance — evidence—soliciting agent’s statement. — In a,n action on a life insurance policy, in which the insurer claimed a forfeiture for nonpayment of the premium due, the insurer was not bound by the statement of its soliciting agent, upon payment of the premium note by insured’s attorney after such forfeiture, that the policy was a subsisting contract.
    Appeal from Lonoke Circuit Court; George W. Ciarle, Judge;
    reversed.

      T. D. Wynne, for appellant.
    The faiure to pay the premium note when due voided the policy. 75 Ark. 25; 74 Ark. 507; 25 Cyc. 827; 28 N. J. Eq. 167; 43 N. Y. 283; 86 Pa. St. 171; 75 S. W. 735; 86 -S. W. 618; 28 S. W. 411; 187 U. S. 335; 104 U. S. 252; 230 S. W. 257; 78 Ark. 127; 85 Ark. 337; 104 Ark. 288; 87 Ark. 70; Bacon on Life & Accident Insurance, vol. 2, § 476. Receipt by the company of a premium note is only prima facie evidence that the premium has been paid, but that such presumption could be overcome by proof -to the contrary. 87 Ark. 70; 28 S. W. 411; 67 S. W. 941. An insurance company is not required to declare a forfeiture on an insured’s failure to comply with the conditions of the policy. 78 Ark. 507; 75 Ark. 28; 79 Ark. 38; 81 Ark. 145; 85 Ark. 337; 104 Ark. 288; 8 Ark. 563.

      Williams d& Ilollcnvay, for appellee.
    The payment of a premium on insurance may be made by property or note, or by the obligation of a third person, as well as by money. 94 Ark. 578; 127 S. W. 966. An insurance company is bound by-the acts of its agent. 75 Ark. 98; 86 S. W. 817; 75 Ark. 25; 86 S. W. 814; 96 S. W. 365; 81 Ark. 160; 190 S. W. 446; 76 Ark. 328; 88 S. W. 950; 12 Wall. 285. It was a question for the jury to say whether or not Towler had authority to extend the time of payment of the- note. 1 Cooley’s Briefs on Insurance, p. 345; 81 Ark. 160; 98 S. W. 694; 36 Okla. 733; 29 Pac. 865; 62 Ark. 562; 36 S. W. 1051; 54 Am. St. Rep. 305
   Smith, J.

This is a suit to recover on a policy of insurance issued by appellant insurance company upon the life of D. E. Haskins. There was a verdict in favor of the plaintiff, the beneticiarjq and a judgment accordingly, from which is this appeal.

Policies were written on the lives of both Haskins and his wife, the applications therefor having been taken by one Towler, who was a soliciting agent for the insurance company. Towler was only a soliciting agent, and his authority was limited, to accepting and forwarding applications for insurance, delivering policies of insurance, collecting premiums and taking notes therefor and forwarding the same to the company. He had the authority also to execute binding receipts for any premiums paid.

The policies were delivered on September 16, 1920, at which time Towler executed and delivered a receipt acknowledging payment of premium for one year. The premium was in fact paid by a note due on or before November 15, 1920, for the amount of the premium, the note being made payable to the order of the insurance company. The note contained . the following stipulation: “This note given in payment of first annual premium on policy No. 19405 issued to me by the Home Life & Accident Company. If this note is not paid at maturity, said policy and all risks secured thereby shall terminate, and said policy shall become null and void; but the full amount of the premium on said policy shall be considered as earned premium thereon, while said policy was in force, and this note shall be payable without reviving said policy.”

The policy itself provided that “if any premium or installment thereof is not paid when due, this policy shall be ipso facto null and void, and all premiums forfeited to the company, except as herein otherwise provided.”

The policy also contained the following provisions: “Reinstatement of this policy, in event of default of premium payment may be made, unless the cash surrender value has been paid, at any time upon presentation at the head office of evidence of insurability satisfactory to the company, and payment of all past due premiums, and the payment of reinstatement of any indebtedness to the company hereon or secured hereby, with cost, at a rate not exceeding 6 per cent, per annum.”

The. insurance company sent the note for collection to a bank at Humnoke, Arkansas, and the bank notified the insurance company that the note had not been paid. Thereupon the insurance company directed the bank to deliver the note to Towler for collection, and Towler received it for that purpose. Towler failed to collect the note, and on June 17th gave it to C. V. Holloway, an attorney, for collection.- Holloway testified that before accepting the note for collection he stated to Towler that he would first see if it was satisfactory with Haskins for him to do so, as Haskins was his client. Holloway at the time was negotiating a loan for Haskins, and, after seeing Haskins, Holloway advised Towler that he would collect the note and that he would guarantee payment thereof as soon as Haskins obtained his loan, and .Holloway stated further to Towler that if this was not satisfactory he would advance the money to pay the note, but Towler said this was not necessary and would not bo required.

The insured died July 11, 1921, and Holloway paid Towler the note on July 20, 1921.

Towler testified that lie had no authority except that of a soliciting agent, and that lie was interested in the note to flie extent of his agent’s commission. He did not remember — but did not deny — that Holloway had told him that, if pa3unent were demanded at the time the note was delivered to Holloway, he (Holloway) would pay it then. Witness was largely indebted to the company, and the note at all times belonged to the company. • In March, 1921, witness had a settlement with the company and gave it his note for forty-five hundred dollars, which was the ascertained balance due by him, and witness indorsed all notes in which he had an agent’s commission to the company, so that when the notes were collected by the company his commissions would be applied to his-account. Haskins’ premium note was then long past due, and the effort of witness to collect the note was made for the benefit of the company, and, had it been collected, the company would have given him credit for his agent’s commission. Towler further testified that when the note was paid he forwarded the proceeds to the company; and, 'in view of the jury’s verdict, we assume this was true, although the superintendent of the company denied that the company had ever-received the proceeds arising from the collection of the note.

The company’s superintendent further testified that the policy lapsed when the note fell due and was not paid, and that the company lapsed it by taking it out of its files and marking the insurance not in force on the company’s 'books. Towler was notified of this action, but the insured was not. The company was not required, however, to give the insured notice of the forfeiture. Patterson v. Equitable Life Assurance Society, 112 Ark. 171. The insured was notified, however, thirty days in advance when the premium note would become due. The superintendent also testified that the company endeavored to collect this note, and that it did so because of the provision of the note giving it that right, and that the policy would not have been revived had the collection been ¡made, and that there was no attempt to reinstate the policy, and that the policy provided that reinstatement could be made only upon a showing by the insured that he was in good health at the time of his application for reinstatement, and such is the provision of the policy, as shown by the excerpt set out above.

The simultaneous delivery of the policy of insurance, the receipt for the premium, and the note for the premium, constitute a single contract which should be read together. Fidelity Mutual Life Ins. Co. v. Bussell, 75 Ark. 25, 29; Robnett v. Cotton States Life Ins. Co., 148 Ark. 199, 205, 206.

The policy provides that failure to pay any premium or installment thereof when due except as otherwise provided in the policy, renders the policy void. The policy also provided the manner of reinstatement when once the policy had lapsed, as. shown in the excerpt therefrom set out above. The receipt acknowledged payment of premium had been made, and the receipt was, of course, evidence of the recited facts therein contained; but only prima facie so. The note was the payment referréd to in the receipt, and this note recited that if it was not paid at maturity the policy should become void, but the full amount of premium on the policy should be considered as earned premium while the policy was in force, and that the note should be payable without reviving the policy. •

' The meaning of the language quoted is plain and unambiguous, and courts must enforce the contracts of parties as they themselves have made them, and the provision of a premium note that the policy should forfeit upon nonpayment of the note is uniformly upheld, and has been upheld by this court. Fidelity Mutual Life Ins. Co. v. Bussell, 75 Ark 25; Robnett v. Cotton States Life Ins. Co., 148 Ark. 199; Patterson v. Equitable Life Assurance Society, 112 Ark. 171; Pacific Mut. Life Ins. Co. v. Carter, 92 Ark. 378.

So also has the provision of the note been upheld that the note shall be payable as premium on the policy for the time it was in force before default without reviving the policy. Jefferson Mutual Ins. Co. v. Murray, 74 Ark. 507; Williams v. Albany Ins. Co., 19 Mich. 451; Robnett v. Cotton States Life Ins. Co., 148 Ark. 199; Patterson v. Equitable Life Assurance Society, 112 Ark. 171, 179; German-American Ins. Co. v. Harper, 75 Ark. 98.

The note was due November 15, 1920, and was not paid, and the company canceled the policy upon its books and withdrew it from the files of policies which were in force. This the company had the right to do, and its liability under the policy was at an end, unless it thereafter did something to revive it.

The next tiling that did occur was the settlement between Towler and the company, whereby Towler gave the company his note for forty-five hundred dollars and the company took over his commissions in the notes outstanding for premiums. But whatever Towler’s original interest in the proceeds of the note may have been, the entire amount thereof was due the company, so far as the insured was concerned.

The next thing that occurred was the placing of the note in the hands of the attorney for collection, and, as has been said, the company had the right to collect the note without reviving the policy. The policy provided how it might he revived in case it lapsed. This was done by furnishing a certificate that the insured was in good health, and paying any arrears of premiums. It is not contended this was done, and there is no showing that Towler had any authority to reinstate a lapsed policy, nor is there any testimony that any person acting for the company who had the authority to. reinstate the policy took that action or was asked to do so.

Instructions were given to the effect that if Towler assumed liability for the payment of the premium with the knowledge and consent of the company, thereby paying it, the company would be liable on the policy.- The case of Mutual Life Ins. Co. v. Abbey, 76 Ark. 328, is cited in support of this instruction. The facts in that case were that Remmel, the general agent for the insurance company, was clothed with authority to transact generally the company’s business in this State, and to collect the premiums, and was permitted by the company to accept notes to himself in lieu of -cash to the company, the company looking to him, instead of the policy-holder,' for the cash in such cases. The company required all premiums to be paid in cash, and when Remmel took a note he paid the company the premium, and the note became his individual property. Moreover, there was no stipulation in the notes given for the premium in that case that the policy would forfeit if the note was not paid.

Here the facts are entirely different, and there is no testimony to support the finding that the premium had been paid by Towler’s assumption of it. Towler’s contract is wholly different from the one under which Remmel operated. The’note here was a conditional payment of the premium and belonged to the company, and contained the enforceable recital that the policy would lapse if the note was not paid.

We must, and do, assume that the jury accepted as true the testimony of Holloway that Towler said to him, when the premium was paid to Towler by Holloway, on July 20th, that the policy was a subsisting contract of .insurance and that the company would have it to pay. But the company was not bound by this statement, as Towler was without authority to make it.

The court should therefore have directed a verdict in favor of the company, and the judgment of the court below iis reversed, and, as the case appears to have been fully developed, it is dismissed.


text:
    Polk v. Missouri Pacific Railroad Company.
    Opinion delivered November 27, 1922.
    1. Libel and slander — privileged communication. — Where a railway division superintendent in good faith believed that a section boss had charged overtime for certain hands, and an investigation was being had as to the reason for discharging such hands, a statement by the superintendent to the section boss in the hearing of representatives of the brotherhood to which the latter belonged that, unless he reimbursed the company for the time out of which he had defrauded it, he was liable to criminal prosecution, was conditionally privileged.
    2. Corporations — test of liability for slander. — To establish liability 'against a corporation for slander, the utterance of the slander must be shown to have been made by its authority or ratified by .it or have -been made by one of its servants or agents in the scope of his employment or in the course of the business in which he is employed.
    3. Corporations — liability of railroad for slander. — Where a railroad superintendent in a conference with plaintiff, who was a section boss, and in the presence of members of plaintiff’s brotherhood, stated that plaintiff was liable to criminal prosecution if he did not reimburse the company for money of which he had defrauded it, and that he was discharged on that account, the contract between the railroad arid the brotherhood requiring the railroad to furnish specifications of charges to the brotherhood, the statement, if actionable as to the superintendent, was also actionable as to the railroad, on the ground that the superintendent was acting within the scope of his employment and in the course of the business in which he was employed.

      Appeal from Independence Circuit Court; Dene H. Coleman, Judge;
    affirmed.
    TF. M. Thompson, for appellant.
    The communication passing between appellant and Daniels, in liis individual capacity and as superintendent for the railroad company, was not a privileged, communication, either absolute or qualified. Am. & Eng. Encye. of Law, 2 ed. vol. 18, p. 1023; Id. 1029; 100 Ark. 477. Daniel did not, exceed his authority. He was clothed with authority to employ and discharge section foremen. The railroad company is liable for his tort. -29 Ky. Law Rep. 861; 96 S. W. 551; 8'L. R. A. (N. S.) 1023. The testimony shows that it ratified his action. 100 Ark. 477. Malice on the part of Daniel toward appellant was shown not only by his attitude toward him, but also by the defamatory words -used. 56 Ark. 100; 19 S. W. 236; Am. & Eng. Encyc. of Law, 2nd ed., 1043. Even though the slanderous words used be held as coming under the rule of qualified privilege, the testimony presented an issue which should have gone to the jury. Í03 Ark. 231; 1.46 S. W. 497; 1.07 Ark. 158; 1.54 S. W.'215.

      Titos. B. Pryor and Ponder £ Gibson, for appellees.
    1. The statement attributed'to Daniel was a privileged communication, coming under the class of conditional or qualifiedly privileged communications, and the question whether or not it was privileged was primarily a question of law for the court. 17 R. C. L. 328, 329, 341; Td. 356: 100 Ark. 477: 83 Pac. 444; 81 Atl. 1013; 42 So. 591; 83 Pac. 131 ; 4 L. R. A. (N. S.) 1091; Newell on Libel & Slander, 477-78; Td. 48; 23 111. 498. A communication is qualifiedly privileged where made in good faith in the performance of duty, or where the situation is such that it becomes right, in the interest of 'society to make the communication. 56 Am. St. Rep. 170 and note; 40 L. R, A. (N. SO 1102; 86 Am. Dec. 84; 76 N. W. 961; 21 Atl. 154; 39 Atl. 4; 70 S. W. 607; 48 N. W. 555. And the party making the statement is protected, if it is made to a party having a corresponding interest, even though it contains matter which., without such interest, would make it actionable. 110 Pac. 181; 45 L. R. A. 735; 22 Am. Dec. 418; 46 N. W. 5; 41 Am. St. Rep. 863 and note; 78 S. W. 1071. See also 51 N. E. 811; 11 S. W. 555; 25 Cyc. 547; 95 Ark. 539; 15 Am. St. Rep. 794; 11 Am. Law Rep. 1010; 5 Id. 451; 46 L. R. A. (N. S.) 104; 123 Pac. 478. In cases of qualified privilege the burden of proof rests on the plaintiff, and malice will not be inferred, but must be proved. 13 Am. St. Rep. 775; 1913 Ann. Gas. 1070 and note; 7 A. & E. Ann. Cas. 192; 3 A. -L. R. 1351; 56 Am. Rep. 274; 109 Mass. 193; 19 Barb. (N. T.) Ill; 3 L. R. A. (N S.) 696; 16 L. R. A. (N. S.) 1017; 18 A; L. R. (N. S.) 1032; 81 N. W. 792.
    2. The appellee Missouri Pacific Railroad Company is not liable for the statements made by appellee Daniel, the same not being within the scope of his authority, nor authorized, ratified or approved by the company. Wood on Master & Servant, §■§ 279 and 307; 32 S. É. 392; 45 S. E. 532; 62 Am. St. Rep. 320; Newell on Libel & Slander, 361; 43 So. 210; 95 Ark. 534; 105 Ark. 326.
   Smith, J.

Appellant Polk brought this suit to recover damages for certain alleged slanderous statements made by appellee Daniels, individually and in his capacity of superintendent of the White River division of the Missouri Pacific Railroad, in the presence of certain witnesses, whose names were set out in the complaint. The statements were: “Mr. Polk, are you prepared to reimburse the company for the time yon defrauded them out of? Unless they are reimbursed, you stand liable to criminal prosecution by the company.”

The railroad and Daniels answered and admitted that Daniels had used the language quoted, but alleged that it was privileged, and the trial court accepted that, view, after hearing the testimony in behalf of the plaintiff, and directed a verdict in favor of the defendants.

Polk testified that on the 8th of September, 1920, the defendant Daniels, acting in his capacity as superiuteiident of tlie - railroad company, requested him to be present at a meeting to be held in the office of the superintendent at Aurora, Missouri, for the purpose of investigating the question of the seniority of an employee of the company named Grooms, and that in compliance with that request he was passed without paying transportation, so that he could attend the meeting, and, while being examined by the said Daniels, acting for the said railroad, he was asked the question set out above in the presence of a man named Donne and another named Moreland, the persons named in the complaint as being present, and that said statements were false and humiliating.

The testimony developed the fact that Daniels was hearing the grievances of certain employees who were members of the United Brotherhood of Maintenance of Way Employees, and Moreland and Donne were officers of that organization, and it was their business and duty to be present at such hearing to present the cases of the aggrieved employees who were members of that order.

Polk had corresponded with Daniels about his own seniority as a section boss, in which capacity he was employed by the railroad company. He had also made complaint about the discharge of one of his sons who had been employed by him as a member of his section gang. It is the insistence of Polk that there was no charge against him, and that he was present for the purpose only of giving testimony in the matter of the seniority rights of Grooms, who was also a section hand and who had been discharged by the company, and that Donne and Moreland were not interested in the statement complained of, and that it was collateral to any subject under inquiry, and that Daniels took advantage of the occasion to vent his anger against the plaintiff, and that the statement had no relevancy to any matter under consideration. If the testimony is legally sufficient to support that contention, then a case was made for the jury, and a verdict should not have been directed in favor of the defendant. '

Polk testified that two of his sons had been members of his section gang, and that one of them had been laid off and the other one discharged, and that he wrote to AY. AY. Gnadt, at St. Louis, Missouri, wanting to know why they were laid off, and also why Grooms was laid off. Gnadt was the general- chairman at St. Louis of the brotherhood of which Polk was a member, and it was Gnadt’s duty to see that investigation was made of com- • plaints similar to the one which Polk had lodged with him. Polk testified:

“I called the general cháirman at St. Louis and asked him to have an investigation of cutting the boys off, and also relative to one of the Grooms boys, who had been laid off at Sulphur Bock for three weeks or something like that, and the general chairman sent me a letter and informed me that Moreland would be in Aurora, Missouri, on the 9th of September, 1920.” He was asked: “So you went up there .to investigate the discharge of Prank (Polk)?” and answered: “Prank and the Grooms boy. AYhile the Grooms boy was not discharged, he was just laid off.” He was also asked: “So you went over to Aurora on September 8, 1920, for the purpose of having an investigation there before the superintendent, Daniels, in his office, to see whether or not they were right or wrong in discharging your boy Prank?” and answered: “Yes sir, and young Grooms. I intended to bring that up, too. and my seniority right also, while I was there.”

It appears that there is, or was, a clause in the contract between the railroad company and the Brotherhood of Maintenance of AYay Employees which provided that any employee who was a member of that order and who was disciplined or dismissed should be entitled to a hearing before his dismissal became final. The right to discharge existed, but, under the railroad’s agreement with the brotherhood, it was customary for the aggrieved employee to go to the officer of the railroad company having the matter in hand, ■ together with some officer of the brotherhood, to investigate to see if the discharge was rightful.

Donne testified that in Daniels’ cross-examination of Pollc he asked about the employment of Polk’s son, and advised Polk that an investigation had been made of the. time-books kept by Polk as far back as January, 1919, and that he found certain days in the months of March and December, 1919, and a da3r in January, 1920, when Polk had put in time for his son when the son had not worked. Polk denied this, and, after some further discussion, Daniels made use of the language quoted which is the basis of this action.

Moreland then intervened and asked: “Are you discharging this man? If you are., why?” Daniels replied : “You have heard my statements. "We can verify them.” Moreland then asked: “You are discharging this man for padding the payrolls?” and Daniels stated that he was. Polk was then excused, and in his absence Moreland and Donne discussed the matter with Daniels. Daniels’ stenographer was present and. reported the proceedings, and at the conclusion of_ the conference Moreland asked for the charges in writing and for a transcript of the examination of Polk by Daniels, who assured Moreland his request would be complied with. Moreland was entitled to make this request, and it was Daniels’ duty to comply with it, as the representative of the railroad, under the terms of the contract between the railroad and the Brotherhood of Maintenance of Way Employees.

Moreland was asked this question: “Did you make this statement that day: ‘I came up to investigate and have a trial for Mr. Polk’s boys’?” and he answered: “If I am not mistaken, it was Polk’s boy’s case I handled, and not Grooms’.” ’

Donne was asked: “And you were present at Aurora with Mr. Polk and Mr. Moreland on this day, representing the brotherhood and Mr. Polk in his investígation?” and lie answered: “I was representing Mr. Polk.”

It does not appear that Polk knew any charge had been -preferred against him, but he knew the discharge of his son would be inquired into, for this was one of the matters which he had asked to have investigated, and he had been notified by the representative ,of the order of which he was a member when and where the investigation would be made, and the investigation was being held, pursuant to his request.

The facts in the case of Polk and that of his son appear to be'identical, and that is that the railroad contended that the son had been carried on the payroll when he was not working. This ivas a matter about which Daniels examined Polk, and his answers appeared not to have been satisfactory. If Polk was in fact padding the payroll, this was ample justification for not only discharging the man whose name was being fraudulently carried on the payroll, but also for discharging the man who committed the fraud, and this fact was the reason assigned by Daniels at the hearing before him for the discharge of Polk’s son and of Polk himself.

We think the language of Daniels, quoted above, was uttered under a qualified privilege. The law in such cases was stated in the case of Bohlinger v. Germania Life Ins. Co., 100 Ark. 477, as follows: “A communication is held to be qualifiedly privileged when it is made in good faith upon any subject-matter in which the person making the communication has an interest or in reference to which he has a duty, and to a person having a corresponding interest or duty, although it contains matter which, without such privilege, would be actionable. Upon such occasion and under such circumstances, although the matter communicated is defamatory and false, the law will not infer malice, but the existence thereof must be shown by some evidence beyond the falsity of the statements communicated.”

In the case of Christopher v. Akin, 46 L. R. A. (N. S.) 104, 214 Mass. 332, 101 N. E. 971, the Supreme Court of Massachusetts said: * * * 'Whether a communication is or is not privileged does-not depend so much on the manner or form in which crime is imputed* where the alleged slander consists, as here, of a charge of crime, as on the occasion and circumstances under which the charge is made. If made in good faith in reference to a matter in which the person making it is immediately-interested, and for ■ the purpose of protecting his interest, and in the belief that it is true, and .without any malicious motive, the communication is what is termed privileged; that is, the occasion and the circumstances under which it is made are held to be such as, if nothing more appears, to excuse or justify the statements that arc made.” ■ ■

A similar statement of the law is found in Newell on Slander and Libel (3d ed.) pp. 477, 478, and also in the numerous cases cited in appellees’ brief.

The only testimony here which would indicate malice or other improper motive on the part of Daniels is the testimony of Moreland that Daniels appeared to be antagonistic in his examination of Polk. But we think that testimony insufficient to support a finding that Daniels was prompted -by malice. Daniels’ belief in Polk’s guilt, which was apparently sincere, although we presume it was mistaken, would make him antagonistic to Polk. There was no denunciation or abuse, nothing except earnestness in the examination of Polk by Daniels, and the language quoted as actionable was not collateral to the inquiry because the discharge of Polk’s son was one of the subjects of the inquiry, and, as we have said, the alleged cause of the son’s discharge furnished equal ground for the discharge of Polk himself.

In exoneration of the railroad, counsel for it cites the case of National Packing Co. v. Boullion, 105 Ark. 326, and other cases to the same effect, holding that, to establish liability against a corporation for slander, the utterance of the slander must be shown to. have been made by its authority or ratified by it, or to have been made by one of its servants or agents in the scope of his employment, and in the course of the business in which he is employed-. This is, of course, the correct test of a corporation’s liability for slander. But -we think, under that test, the jury might have found that the railroad would be liable if Daniels is liable, upon the ground that Daniels was acting within the scope of his employment, and in the course of the business in which he was employed, in repeating, in the presence of Moreland and Donne, the ground of the company’s complaint against Polk and the reason for his discharge, for, as we have said, the railroad was required to furnish specifications of the charges, and to do so in writing when requested so to do, and Daniels was the employee of the company whose business it was to discharge that duty.

There was no testimony that any rules of procedure had been prescribed for such -a hearing, as was had at Daniels’ office, and Daniels complied with the terms of the agreement' between the railroad and the Brotherhood of Maintenance of Way Employees when he offered to furnish in writing the specifications of the charges on which Polk was discharged.

We conclude therefore that the verdict was property directed in defendant’s favor, and the judgment is affirmed.


author: Humphreys, J.

text:
    Hood v. State.
    Opinion delivered November 27, 1922.
    1. Extortion — sufficiency of indictment. — An indictment of a commissioner of a' road improvement district for extortion in receiving money for services not performed was fatally defective in failing to allege that the money was received corruptly and under color of office.
    2. Extortion — statute construed. — Extortion, as defined by Crawford & Moses’ Dig., § 2810, embraces only State, county and township officers, and does not peíate to or include road commissioners.

      3. Indictment and information — omission of essential averments — waiver.—The omission of essential averments in an indictment are not waived by pleading to the indictment nor cured ■by verdict. i , i
    Appeal from Pollc Circuit Court; James S. Steel, Judge;
    reversed.

      Lake $ Lake and Minor Pipián, for appellant.

      J. S. XJtley, Attorney General; Elbert Godwin and W. T. Hammock, Assistants, for appellee.
   Humphreys, J.

Appellant was indicted, tried, convicted, and fined, under section 2810 of Crawford & Moses’ Digest, for extortion. Prom tile conviction an appeal has been duly prosecuted to this court.

The sufficiency of the indictment was attacked by demurrer in the trial court, and it is now contended that the court erred in overruling same. The learned Attorney General concedes the grounds of the demurrer and confesses that it was erroneously overruled. The indictment, omitting the formal parts, is as follows:

“The grand jury of Polk County, in the name and by the authority of the State of Arkansas, accuse John P. Hood of the crime of extortion, committed as follows, to-wit: The said John P. Hood, in the county and State aforesaid, on the 25th day of October, 1921, being then and there an officer by virtue of being then and there a duly appointed and qualified and acting commissioner of Road Improvement District Number One of Polk County, Arkansas, did unlawfully have and receive a certain voucher drawn by John P. Hood, president, and Ira O. Smith, secretary, of the board of commissioners for said . Road Improvement District Number One of Polk County. Arkansas, on deposit in the Farmers’ & Merchants’ Bank of Mena, Arkansas, in the sum of three hundred and five dollars and of the value of three hundred and five dollars, for fees.and services, without having performed the service for which the same was charged, against the peace and dignity of the State of Arkansas.” It will be observed that the indictment fails to charge appellant with having received the warrant corruptly and under color of office. These are essential elements of extortion, as used in section 2810. of Crawford & Moses’ Digest, and should have been alleged. Leeman v. State, 35 Ark. 438. Again, the act under which the indictment was framed embraces only State, county and township officers, and does not relate to or include road commissioners. We deem it unnecessary to discuss the other assignments of error, as the indictment is defective in substance. The defects are vital, and were not waived by pleading to the indictment or cured by the verdict.

For the errors indicated the judgment is reversed and the cause remanded, with directions to the trial court to quash the indictment.


text:
    Southern Anthracite Coal Mining Company v. Rice.
    Opinion delivered November 27, 1922.
    1. Master and servant — violation of statute — defenses.—Under Crawford & Moses’ Dig., §§ 7145-6, contributory negligence and -assumed risk are not -available as defenses in a case of -injury to •a miner from failure to furnish props as required by § 7271, Id.

    2. Master and servant — duty of mine-owner to furnish props.— Under Crawford & Moses’ Dig., § 7271, the duty to furnish props to prevent cave-in-s in mines and to deliver them where the cars for hauling out coal are delivered when requested by a workman, is imposed upon the mine -owner, agent or operator, and it is immaterial at what particular pl-ace the request for props is made, if made to one whose duty it is to furnish them.
    3. Master and servant — question for jury. — Where the testimony was in conflict as to whether deceased, a miner, made a demand for props ¡as required by the statute, the question was properly submitted to the jury.
    4. Trial — argument of attorney — prejudice.—A remark of plaintiff’s attorney, in argument to the jury, that “it was the duty of ■the pit boss to have done everything in his power to make that room safe,” was not prejudicial where the court excluded the remark. ", '.
    5. Trial — argument of attorney — prejudice.—A remark to the jury by plaintiff’s attorney in argument: “If they (the jury) give her a small verdict, there will be an appeal in this case. The attorneys take an advantage of everything, and they have a right to do so, and they mean to and will attempt it by every power, and you won’t save a case in the Supreme Court by your decision, no matter what amount you give in this case,” was -not prejudicial error; it not amounting to a request or suggestion for an unreasonable verdict, and there being no claim that the verdict was excessive.
    Appeal from Pope Circuit Court; A. B. Priddy, Judge;
    affirmed.

      Hays, Ward & Hays, for appellant.
    The duty of making his working place safe devolves upon the miner. He is the sole'judge of its safety. 101 Ark. 205. Eice made no direct demand for props. Several of the miners were discussing the need for props, 'and Eice is alleged only to have said that if he did not receive props he was coming out at noon. This statement was not made to Baker, nor in his immediate presence, and he testified that no demand was made of him by Eice for props. The contributory negligence in the manner in which Eice ordered the props should have been left to the jury.' 116 Ark. 461.

      E. G. Mitchell and Patterson & Ragon, for appellee.
    Sec. 7271, C. & M. Digest, requires the operator to furnish props when so requested and sec. 7145 provides that an employee killed or injured as a result of a violation of any statute enacted for the safety of employees, cannot be held to have been guilty of contributory negligence. Sec. 7146 holds that the servant did not assume the risk when the master was negligent. The same contentions were made in the case at 131 Ark. 562, and that case is controlling here.
   Humphreys, J.

This suit of appellee against appellant for damages growing out of the death of her husband while working in appellant’s coal mine was predicated on sec. 7271 of Crawford & Moses’ Digest, which is as follows:

“The owner, agent or operator of any mine shall 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 the said working place from caving in, and it shall be the duty of the owner, agent, or operator to send down all such props when required, and deliver said props to the place where cars are delivered.” It was alleged that Martin Rice, the husband of appellee, was a coal miner in the employ of appellant in a room of the seventh west entry Mine No. 2, in Pope .County; that, while engaged in mining coal in said room, a part of the roof fell upon and fatally injured him, on account of appellant’s failure to furnish props to secure his working place, after proper demand had been made for same.

An answer was filed by appellee denying the material allegations in the complaint, and interposing the further defenses of contributory negligence and assumed risk on the part of said employee, in the following words: “B37 way of affirmative defense, the defendant states that the deceased was guilty of negligence, and that such negligence was the proximate cause of his injury and death, and also that said deceased, knowing of the condition of the place in which he was engaged at work, thereby assumed the risk incident to working in such place.”

A demurrer was filed to 'the pleas of contributory negligence and assumed risk, which was sustained bj7 the court, over the objection and exception of appellant.

The cause was submitted to the jury upon the pleadings, testimony of the witnesses, and instructions of the court, which resulted in a judgment and verdict in favor of appellee, from which is this appeal. Appellant’s first insistence for reversal is, that the court erred in sustaining the demurrer to the pleas of contributory negligence and assumption of the risk. The suit was based upon an alleged violation of the statute by failing to furnish props, passed for the protection of miners. In suits against corporations upon statutes enacted for the safety of their employees, the defense of contributory negligence and assumed risks is not available. Secs. 7145 and 7146, Crawford & Moses’ Digest; Western Coal & Mining Co. v. Watts, 131 Ark. 562.

Appellant’s next insistence for reversal is that the court erred in refusing to give its requested instruction No. 2, which, among other things, instructed that it was not only necessary for 'Martin Rice to request props from the person whose duty it was made to furnish props, but also to request them at the place where it was the custom in said mine to make such request. The instruction was erroneous in that it placed the burden upon the miner to order the props at some particular place. The statute is mandatory in imposing the duty upon the mine owner, agent, or operator to send down props, when requested, and to deliver them where the cars for hauling out coal are delivered. It is immaterial at what particular place the request for props should be made, if made to one whose duty it was to bring or send them. The testimony was in conflict as to whether Martin Rice made a demand for the props from Charles Baker, the driver of the coal cars, whose duty it was to bring props, when requested to do so by the miners. The court correctly submitted the question to the jury as to whether Martin Rice made a demand upon Baker for the props, which presented the only issue in the case. The court properly refused the requested instruction because it embraced an issue not involved in the case.

Appellant’s next insistence for reversal is that the court permitted one of appellant’s attorneys, in the course of his argument, to say to the jury: “It was the duty of the pit boss to have done everything in his power to make that room safe.” The record does not support appellant in this insistence. "While this remark was made by the attorney, it was excluded from the jury by the court, so could not have prejudiced them.

Appellant’s last insistence for reversal is that the court permitted one of appellee’s attorneys to say to the jury: “Tf they give her a small verdict, there will be an appeal in this case. The attorneys take an advantage of everything, and they have a right to do it, and they mean to and will attempt it by every power, and you won’t save a ease in the Supreme Court by your decision, no matter what amount you give in this case.” While it was improper to comment upon whether appellant would take an appeal, we are unable to see how any prejudice could have resulted to appellant on account of the remark. The remark was not, in any sense, a request or suggestion for an unreasonable verdict. It is not claimed that the verdict was excessive. This court, in dealing with a similar remark, in the case of Vaughan v. State, 58 Ark. 353, said: “The remarks of the prosecuting attorney, while improper and unwarranted, were not prejudicial, as we take it, since * * * * the latter part, as to the right of appeal, must have been already known to every intelligent juror. The right of appeal, as a part of the procedure under our judicial system, is a matter of common knowledge.”

No prejudicial error appearing, the judgment is affirmed.


text:
    Colbert v. State.
    Opinion delivered November 27, 1922.
    1. Homicide — manslaughter-—sufficiency of evidence. — -In a prosecution for murder in second degree evidence held sufficient to support a conviction of involuntary manslaughter.
    2. Criminal law — new trial — incompetency of juror. — -Where one who had served on the grand jury which returned an indictment against defendant was accepted as a petit juror after he had ‘Stated that he had not formed or expressed an opinion as to defendant’s guilt or innocence, and knew nothing about the facts in the case, such fact did not constitute ground for new trial, though not discovered 'by defendant until after the verdict was rendered, where -the juror was not asked on his voir dire whether he had served on the grand jury, and the record fails to show that the juror attempted to perpetrate a fraud by stating -that he had formed no opinion and knew nothing about the facts in the case.

      Appeal from Boone Circuit Court; J. M> 8hvm, Judge;
    affirmed.

      E. G. Mitchell, for appellant.

      J. 8. Utley, Attorney General, Elbert Godwin and Wm. T. Hammock, Assistants, for appellee.
   Humphreys, J.

Appellant was indicted in the Boone Circuit Court for murder in the second degree for shooting and killing Arthur Coker. He was tried on said charge, convicted of involuntary manslaughter, and punished by imprisonment in the State Penitentiary for one year.

Prom the judgment of conviction an appeal has been duly prosecuted to this court.

The facts leading up to the tragedy, as revealed by the record, are, in substance, as follows: Appellant, in company with others, had made a trip to Searcy County, and while there procured about twenty gallons of moonshine whiskey, which was brought back and stored near Harrison. Early in the afternoon, before the killing occurred, Arthur Coker took appellant and two others in his car to the place where the liquor had been deposited, and while there drank of it freely. They returned to Harrison about eléven o’clock p. m., and repaired to a restaurant owned and operated by Warren Wilson. While eating, Arthur Coker and Sam Ingram became involved in a quarrel, whereupon Wilson ordered all of them out of the cafe.

According to the testimony introduced by the State, appellant, at this juncture, went to the back part of the kitchen to get a bottle of whiskej'- he had concealed there. He was followed by Arthur Coker, who grabbed the whiskey out of appellant’s hand and by that art greatly angered him. Thereupon appellant began shooting at Coker, who was backing away, and continued firing until he wounded him nine times, from which wounds he died during the night.

The testimony introduced by appellant tended to show that he mortally wounded Arthur Coker in necessary self-defense.

The testimony introduced by the State was substantial and sufficient, if believed by the jury, to support the verdict and the judgment based thereon.

Ten grounds are set up for a new trial, all of which have been carefully considered in connection with the record in the case. Our examination of the record has convinced us that the court committed no reversible error in the trial of the cause, either in the admission or exclusion of evidence, or in giving or refusing instructions. A discussion of each of the alleged grounds in the motion for a new trial would extend this opinion to an unusual length, and could serve no useful purpose. One ground contained in the motion for a new trial, however, is of sufficient importance for special mention. It appears in the motion in the following words: “One of the petit jurors impaneled to try said cause was William Wallace, who, on his voir dire, under oath, stated that he did not know the defendant or Arthur Coker, the deceased ; that he had never heard of the case and had not formed or expressed any opinion relative to the merits of the case to be tried. He was accepted by the defendant, and helped to try the same as one of the twelve jurors. As a matter of fact he had previously both formed and expressed an opinion and had heard substantially all the evidence on the part of the State. He had been a member of the grand jury that had returned the indictment herein into open court. The defendant did not know of the aforesaid facts; had he known the same, he would have exercised his right to challenge for cause, and, had that right been denied him, lie would have challenged peremptorily, not having exhausted a single challenge. Defendant did not know and had no way or means of knowing that said juror had officiated as a grand juror In his indictment. ■ His attorneys did not know it, and he would have insisted on challenging the juror had not the juror answered under oath as aforesaid. Defendant used all possible diligence to learn all of the facts about this and all other jurors, and could learn only what jurors swore as aforesaid.” The above quoted ground for new trial was heard by the court upon the following agreed statement of facts:

“It is agreed that the evidence will show, in addition to the motion, that W. R. Wallace, one of the trial’ jurors in the case, on his voir dire examination testified that he had never formed or expressed an opinion relative to the guilt or innocence of this defendant; that he knew nothing about the facts in the case; that he was accepted after he had made the sworn answers and after tlie attorneys for the defendant had asked the questions (o ascertain the facts whether said juror had any bias or prejudice or knew anything about the facts in any way.
“It is further agreed that the defendant had not exhausted any of his challenges, and could have challenged said juror had he seen fit to do so, peremptorily.
“It is further agreed that the records show he was a member of the grand jury that returned into open court the indictment against this defendant in this case on tin's charge, and that the juror,-Wallace, did not disclose that fact in any way, and that the attorney and the defendant did not know that fact at the time, and that said juror was accepted and sworn to try said cause.
“It is further agreed that the specific question as to whether or not said juror had served on the grand jury which returned the indictment was not asked him. It is further, agreed that said juror stated on his voir dire, specifically, that he did not know the defendant nor the party that was killed, and had never heard what purported to be the detailed statement of the facts, and that he had not formed or expressed an opinion.”

A list of the grand jury was on file in the circuit court where appellant was being tried, and could have been inspected b}'' appellant. An inspection thereof would have disclosed that William Wallace was a member of tbe grand jury that indicted appellant. Failing in that, appellant could have easily asked William Wallace, on his voir dire examination, whether he served on the grand jury which found the indictment against appellant.

The third ground for challenge, on account of implied bias under section 3160 of Crawford & Moses’ Digest, is as follows:

“Having served on the grand jury which found the indictment, or on the coroner’s jury which inquired into the death of the party whose deatli in the subject of the indictment.” The fact that.William Wallace prejudged the case disqualified him from sitting as a petit juror in the trial of the cause, and subjected him to challenge before being sworn, but the fact that he sat did not constitute a ground for a new trial, it not appearing that he imposed himself upon the panel through concealment or prevarication. The record fails to show that William Wallace, by answering that he had not.formed or expressed an opinion as to the guilt or innocence of appellant, attempted to perpetrate a fraud upon the court or appellant. Appellant should have asked the juror questions on his voir clire examination relative to the statutory grounds disqualifying him and for which lie might be challenged, else he could not be regarded as diligent. This case is controlled by the principle announced in the case of James v. State, 68 Ark. 464. The same rule prevails in Louisiana, as will be seen by reference to the case of the State v. Smith, vol. 41, p. 688 of Louisiana Annual Reports. The facts in the‘latter case are almost identical with the facts in the instant case..

No error appearing, the judgment is affirmed.