text:
    Harvey v. Marr.
    Opinion delivered May 2, 1927.
    1. Mines and MINERALS — contract to drill — consideration.— Where a lease was in proved territory, and there was already a producing well on the lease, a contract ior drilling a well whereby the driller was to he paid out of the other parties’ interest in the first oil produced, and was to share in oil produced according to the amount the well produced, the contract was not void for want of consideration.
    2. Mines and minerals — liability contract. — The purchaser of an interest in an oil lease, who- collected oil as provided for in the contract and received the benefits thereof, became liable according to its provisions.
    3. Mines and minerals — waiver of provision of contract. — Where the requirement as to standardization was waived by consent of the parties to a contract for drilling an oil well, and a compressor was installed in lieu thereof, the cost to he shared equally by the parties, the cosí of standardization should not have been charged against the' purchaser of the driller’s interest in the lease.
    4. Mines and minerals — breach' of contract. — The purchaser of a driller’s interest in an oil lease, who -failed to drill a second well as required by the contract, should be charged with the entire cost of a well drilled by the receiver appointed by the court, less the amount to which he would have been entitled under the contract had he drilled the well himself.

      Appeal from Union Chancery Court, Second Division; George M. LeCroy, Chancellor;
    modified.

      Ilaynie, Parks & Westfall, for appellant.

      Gaughan & Sifford and Streett & Streett, for appel-lee.
   Smith, J.

In November, 1925, a contract in writing was entered into between J. E. Marr, as party of tbe first part, and Bray-Hawthorne Company, a corporation, as party of the second part, concerning a ten-acre oil lease in Union County and a standard rig complete, and the tools, appliances and equipment to drill oil wells then located on the lease. The lease 'was in oil-pro‘ducing territory, which was called a “high-powered production,” and there was a small well on the lease producing about 100 barrels per day. This well had only been drilled to the shallow sand.

The party of the second part agreed to drill a well to the second sand and to standardize it at its own expense for the sum of $2,000 to he paid out of the first party’s interest in the first oil produced on the lease. The contract provided that, if the well should produce more than 100 barrels of oil per day, the parties should share the production equally, and should also share the expense of operation equally, hut, if the well produced only 100 barrels or less, the second party should receive three-fourths of the oil and the party of the second part the remaining one-fourth.

The contract further provided that, if the well should produce more than 100 barrels per day, the second party should drill a second well and equip it with a standard rig at its own expense, the production to he distributed as in the case of the first well. It was further provided that, if the first well should produce 500 barrels or more per day, the party of the .second part should have, in addition, the first 1,700 barrels produced; hut the well does not appear to have produced that quantity of oil.

As a further consideration the party of the first part agreed to pay the party of the second part the sum of $1,500 upon tie completion of the second well, payment to be made out of the first oil produced.

At the time this contract was made Marr, the party of the first part, owned only an undivided half interest in the lease. The other half was owned by the Continental Supply Company, but Marr had control of this half interest, and it could only be acquired through him or with his consent, and he testified that, if he had not made this contract with the Bray-Iiawthorne Company, he could have made a similar contract with some other party, as there was no question about the oil .being under the land. •

After the execution of the contract an abstract of the title was submitted, from which it appeared that Marr owned only an undivided half interest, but he advised the Bray-Hawthorne Company that the other-half could be purchased for $7,500, but, when an offer to buy was made, the owner demanded $8,500, and that sum was paid by the Bray-Hawthorne Company, which elected to proceed under its contract -with Marr, although he owned only a half interest, and the other half could not he purchased for $7,500, as Marr represented it could be. The Bray Company drilled the first well, as the contract required it to do, and it produced more than 100 barrels per day. Each party was therefore entitled to one-half of the production.

The Bray Company sold their interest in the lease to E. JV Harvey, as trustee, who collected the $2,000 in oil as provided in the contract between Marr and the Bray Company, but Harvey declined to drill a second well. Another company which owned adjoining land drilled a well within 700 feet of the boundary line of the lease, from which a large quantity of oil was produced, and Marr again demanded the drilling of a second well on the lease as an offset well, and, when Harvey again declined to drill the well, Marr applied for and secured the appointment of a receiver, who, under the direction of the court, drilled a second well, which also produced more than 100 barrels of oil per day. Thereafter Marr prayed partition of the lease and that the rights of the parties therein be adjusted-in accordance with the provisions of the contract between Marr and the Bray Company.

The court found that Harvey, although not a party to the contract between Marr and the Bray Company, was aware of its provisions and had accepted its'benefits and thereby became estopped to deny his responsibility and obligations thereunder, and granted the relief prayed. A finding was made that partition could he effected only by a sale, and the receiver was ordered to sell for that purpose. The court found that Hárvey was chargeable with the cost of standardizing the first well and was*liable for the cost of drilling the second well, and, not having paid same, his interest therein should he charged with the cost of standardization, which the court found to he $4,000, and the cost of drilling the second well, which was found to he $14,000. Upon this finding the receiver was directed to pay Marr one-half the proceeds of the sale and to deduct and pay Marr $18,000 out of the remaining half. To these findings exceptions were saved, and this appeal is prosecuted to reverse the decree based on those findings.

It is not questioned that Harvey proceeded under the contract and that he collected the $2,000 which the contract allowed the Bray Company to collect upon the completion of the first well. But it is insisted that the contract is void as being without consideration, and that the court erroneously adjudged the rights and obligations of the parties thereunder.

The contract is not void for the want of a consideration to support it. The lease was in proved territory, and no doubt was entertained that oil would he produced • in fact there was already a small producing well on the lease when the contract was made. It was not known, however, what quantity of oil would be produced if thé deeper sands were reached. If only 100 barrels or less were produced, the Bray Company would have been entitled under the contract to three-fourths of the production for the life of the well, which was estimated at seven years, although it owned only a half interest in the ■lease, and so also with the second well which it agreed to drill. The contract may have been improvident, but there was a valuable consideration for it, and it was therefore valid, and, when Harvey adopted it and acted upon it and received the benefits thereof, he became liable according to its provisions.

Appellant claims that appellee failed to pay his part of the operating expenses of the lease after the deep sand well was brought in, as the contract required him to do, and insists that this failure was a breach of the contract which absolved him from the obligation to drill the second well. The testimony, however, does not sustain this contention.

Harvey failed to put a standard rig upon the first well drilled, this being what is meant by standardizing it, and it was for this failure that the court charged the $4,000 cost of standardization against the interest of Harvey.

It appears, however, that, by consent, the parties waived the requirement as to standardization, and, in lieu thereof, installed an air compressor-, the cost of which, as we understand, was shared equally by the parties. The court should not therefore have charged appellant with the $4,000 item representing the cost'of standardization, and the decree will be modified by striking out that item.

The court directed the- receiver, after selling the property and paying certain costs and expenses, to pay Marr one-half of the proceeds of the sale, and further ordered the receiver, out of the remaining half, to pay Marr $18,000, of which $4,000 was the cost of standardization, the remaining $14,000 being the cost of the well which the receiver had drilled. We have said the court should not have charged the $4,000 item against Harvey, and we do not understand the theory upon which the charge of $14,000 for drilling the well was made.

It appears that, under the directions of the court, the receiver had drilled the well which Harvey was obligated to drill, but, as the receiver has not made his final report, it is not clear whether this well has been paid for by him, and, if so, how,,

The order of the court in this behalf authorized the receiver, in conjunction with Marr, to enter into a contract for drilling the well and to appropriate to the payment there'of the proceeds of the sale of oil which the. receiver had collected, and to pledge the future production of oil, and, if necessary, to issue receiver’s certificates therefor in payment of the expense of'drilling the well.. The regularity of this proceeding is not before us, and we are only adjusting the rights of the parties, that action having been taken. Harvey v. Marr, ante, p. 80.

Under the contract set out above Harvey should be charged with the entire, cost of the well drilled by the receiver, but he- should also be allowed credit for the $1,500 to which he would have been entitled under the contract had he drilled the well himself.

The decree of the court below ordering the sale of the lease and the machinery and equipment incident thereto will be affirmed, and the receiver will make the sale pursuant to.the directions of the court, if he has not already done so, but the cause will be remanded with directions to the court to make a final statement of the account between the parties, as herein directed.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Keller v. White.
    Opinion delivered May 2, 1927.
    1. Negligence — contributory negligence as question for jury. —In an action for the death of a passenger in an automobile, resulting from overturning of the car when it came to a curve, where the evidence showed that the driver selected by deceased was somewhat drunk, and conflicted as to whether deceased prevented another passenger from stopping the car on several occasions, and as to whether he urged the driver from time to time to drive faster, deceased’s contributory negligence held a question for the jury.

      2. NEGLIGENCE — JURY question. — 'Unless the acts complained oí are negligent per se or unless all reasonable minds must agree that the acts were necessarily negligent, the existence of negligence is always a question for the jury,
    3. Master and servant — scope of authority. — Where an agent in charge of a distributing station of an oil and gas company took several companions into his car, part of whom were drinking, and drove towards his home town to have a fish supper, and on the way the automobile overturned, held that the agent was not acting within the scope of his authority, as agent of .the company, •or in performance of his r duties for it.
    Appeal from 'Chicot Circuit Court; Turner Butler, Judge; reversed as to White;
    affirmed as to Pierce Petroleum Corporation.

      Cook & Trice and W. W. Grubbs, for appellant.-

      J. B. Parker for White, appellee.

      Gannaway & Gannaioay, Boscoe B. Lynn, 0. G. Bum-side and W. Garland Streett, for Pierce Petroleum Corporation.
   Humphreys, J.

Appellant, as administrator of the estate of H. T. Keller, brought suit against appellees jointly for the benefit of the estate, the widow and minor children, for hilling Keller through the alleged unlawful negligence of Graham White in driving the automobile in which they were riding at a high and reckless rate of speed, and in disregard of the warnings of deceased and . others in the car. The appellee, Pierce Petroleum Corporation, was made a party defendant upon the theory that, at the time of the tragedy, Graham White was the agent of said company, and that, in making the trip by automobile from Eudora to Lake Village, with the deceased in the car, White was acting within the scope of his authority and performing duties for said corporation and its benefit.

Appellees filed separate answers, each denying the material allegations in the complaint, and interposing the further defense that deceased was guilty of contributory negligence which was the proximate cause of the injury complained of.

® The cause was submitted upon the pleadings and testimony adduced by the respective parties, which resulted in a verdict and judgment in favor of appellees, from which is this appeal.

The tragedy occurred a short time after dark on the evening of April 21,1925, between Eudora and Lake Village. The occupants of the automobile were Graham White, H. T. • Keller, C. E. Buchanan, Ike Scott and Frank Keller, Jr. Graham White ran a distributing plant for the exclusive products of the Pierce Petroleum Corporation at Lake Village. The Eudora Motor Company at Euroda, owned and operated by H. T. Keller and his’ brother, J. J. Keller, was a customer of White. C. C. Buchanan was a traveling auditor for the Pierce Petroleum Corporation; Ed Scott was a truck driver for White; Frank Keller was. a- nephew of H. T. Keller. Graham White went fishing with a number of friends on the morning of the 21st, and during the outing they consumed a quart of moonshine whiskey. After his return to Lake Village, during the afternoon, he and Buchanan drove from Lake Village down the river for the purpose of interviewing the trade, purchased a quantity of moonshine whiskey on the trip, and returned by way of Eudora, and called on Keller Brothers at their garage, arriving at about 5 o’clock. After talking over business matters generally and taking several drinks, they decided to go to Lake Village in White’s car and have a fish supper. They had been drinking at the garage. Buchanan was quite drunk, and White and Keller were somewhat intoxicated. Scott and Frank Keller were sober, and remained so. When they started to Lake Village it was suggested that Scott drive the car, but Buchanan objected, and H. T. Keller prevailed upon Scott to allow White to drive. Before reaching a sharp curve in the road, two stops had been made for H. T. Keller, White and Buchanan to take an additional drink, and on both occasions Scott attempted to drive the ear, but was prevented from doing so by Buchanan and H. T. Keller. There is a conflict in the testimony of Ike Scott and Frank Keller, Jr., as to whether H. T. Keller prevented Scott'from stopping the. car on several occasions and whether Keller urged White, from time to time, to drive faster. When the. curve was reached the speed was ‘not reduced, and the car turned over, severely injuring White, Buchanan and H. T. Keller. H. T. Keller died the next day as a result- o.'f the' injuries.

At the conclusion of the testimony appellees asked for a peremptory instruction, which the court refused to give, but, before the case was sent to the jury, the court gave, at appellee’s request, instruction No. 15, which was in effect a peremptory instruction under the undisputed facts revealed by the testimony. Instruction No. 15 is as follows:

“It was the duty of H. T. Keller, on the trip which resulted in the fatal accident, .to at all times use ordinary care for his safety, and, if he failed to do so, and such failure in any way contributed to his injury, the plaintiff cannot recover, no matter how negligent the conduct of White might have been. If, at the time he entered the car of White, he discovered, or, by using ordinary care, might have discovered, that White was in an intoxicated condition'to the extent as to make it apparent that he was in no condition to operate same with safety, or if, while at any time upon said trip, he did or might have discovered White’s condition, and could have a reasonable opportunity to leave the car and failed to do so, or if he in any way encouraged White in the dangerous operation of said car, or if he assented to the encouragement of White by others to drive at a reckless rate of speed, or if he, by any conduct on his part, prevented any other person from restraining or controlling White, then he failed to use ordinary care for his own safety, and his negligence in any of these particulars would bar his recovery, and the jury should find for the defendants. By the use of the term ‘negligence’ in these instructions is meant the want of ordinary care. And any ‘ordinary’ care in this case is meant the conduct of ordinarily careful and prudent persons under similar circumstances.”

Appellees conceded in their arguments that this instruction, requested by them and given by the court, was a peremptory instruction on the issue of contributory negligence. We do not think any of the facts detailed by the witnesses constituted within themselves contributory negligence under the law. The existence of negligence is always a question for the jury, unless the acts complained of are declared by law to be negligent per se, or unless all reasonable minds must conclude that the acts were necessarily negligent. Instruction 15 therefore invaded the province of the jury, and was erroneous. Rector v. Robins, 82 Ark. 424, 102 S. W. 209; Reed v. State, 54 Ark. 621, 16 S. W. 819; Blankenship v. Stale, 55 Ark. 244, 18 S. W. 54.

Our analysis of the testimony has convinced us, however, that the court should have given a peremptory instruction in favor of the Pierce Petroleum Corporation, because the undisputed evidence showed that the trip from Eudora to Lake Village was not taken in performance of White’s duties for said corporation or for its benefit, even if there were sufficient evidence to make the issue of his agency one for the jury. It is quite clear that White, Buchanan and H. T. Keller were on a trip to satisfy their own appetites rather than upon a mission for the benefit of the corporation in a business way.. White was not acting within the scope of his authority as agent of the company or in the performan.ee of his duties for it and for its benefit. Wells Fargo & Company Express v. Alexander, 146 Ark. 104, 225 S. W. 597; Chicago Mill & Lumber Co. v. Bryeans, 137 Ark. 341, 209 S. W. 69; Bryeans v. Chicago Mill & Lumber Co., 132 Ark. 282, 200 S. W. 1004.

The judgment is therefore affirmed in favor of the Pierce Petroleum Corporation and reversed and remanded for a new trial as to Graham White, on account of the error in giving a peremptory instruction upon the issue of contributory negligence on the part of deceased.


author: Humpheeys, J.

text:
    Middleton v. State.
    Opinion delivered May 2, 1927.
    Homicide — dying declarations. — In a murder case, statements concerning the shooting made by deceased, after being told by the attending physician that he could not live, and after he had requested his father to take him upstairs where he could have a comfortable bed to lie on until he died, were admissible as dying declarations.
    Appeal from Poinsett Circuit Court; W. W. Bandy, Judge;
    affirmed.

      II. W. Applegate, Attorney General, and Barden Moose, Assistant, for appellee.
   Humpheeys, J.

Appellant was indicted for murder in the first degree in the circuit court of Poinsett County for killing Johnnie Cox, and, upon trial under said indictment, was convicted of murder in the second degree, and was adjudged to serve a term of twelve years in the State Penitentiary as a punishment therefor, from which is this appeal. The admission in evidence of the dying declarations of Johnnie Cox, undertaking to detail the alleged facts concerning the difficulty culminating in the tragedy, is the only assignment of error by the trial court contained in appellant’s motion for a new trial, and is therefore the only question before us on appeal for determination.

The substance of Johnnie Cox’s statement was that he was en route home on horseback along the river road, when appellant stepped from behind a tree with a drawn revolver and demanded that he return his whiskey, which he had theretofore accused him of taking; that, when-he denied taking the whiskey, appellant demanded his pistol, and, upon his refusal to comply with the demand, appellant raised his pistol to a shooting position and fired two shots at him before he succeeded in drawing his pistol and firing at appellant; that the first shot fired by appellant missed him, but the second took effect; that, when he fired at appellant, his horse whirled and ran up1 to ia house, where he was permitted to go in and lie down until his father arrived.

The admissibility of the statement depended npon •whether it was made by Johnnie Cox in extrends. The rule announced by this court admitting the admission of dying declarations is as-follows:

“The declarations of a person who has been wounded, respecting the circumstances under which the wound was inflicted, are admissible in prosecutions for the killing of such persons, if made at a time when he did not expect to survive the injury and all hope of recovery has been supplanted by the conviction that he would certainly die. The time when made need not be when the declarant apprehended immediate dissolution. But they are admissible if made at any time when he believed that death was imp ending, and certain.” Evans v. State, 58 Ark. 47, 22 S. W. 1026; Freels v. State, 130 Ark. 189, 196 S. W. 913; Neal v. State, 156 Ark. 419, 246 S. W. 470; Alford v. State, 161 Ark. 256, 255 S. W. 884.

According to the testimony, the dying declarations were made after deceased had been informed by his physician that he could not live more than two hours, and after he had said that he only had one time to die, and after requesting his father to take him upstairs where he could have a comfortable bed to lie on until he died.

This testimony was sufficient to show that, when the statement was made, deceased had abandoned all hope of recovery and that he believed death was impending.

No error appearing, the judgment is affirmed.


author: Kirby, J.,

text:
    Park v. Rural Special School District No. 26.
    Opinion delivered May 2, 1927.
    1. Schools and school districts — dissolution op special school district. — Refusal to enjoin the issuance of bonds by rural special school district created by Acts 1925, p. 876, until petition to the county board of education for dissolution should be determined, held not error, since the board had no authority to dissolve a special school district formed by act of the Legislature.
    2. Schools and school districts — dissolution op special school district. — The county board of education has no authority to dissolve a special school district formed by act of the Legislature.
    3. Schools and school districts — issuance op bonds por school building. — The board of directors of a rural special school district held impowered to issue bonds for a school building after an election had. been held as prescribed by Crawford & Moses’ Dig., § 8840. '
    4. Schools and school districts — bonds for school building.— Where bonds for school ¡building are issued without authority of the electors in the rural special school district, created by Acts 1925, p. 876, such bonds are absolutely void.
    5. Schools and school districts — validity of sale of school bonds. — The contract for the sale of. bonds issued for a school building in a rural special school district held not to violate the statute prohibiting the sale for less than par value, because it provided for payment of a brokerage fee.
    Appeal from Lonoke Chancery Court; John E. Mar-tillean,, Chancellor;
    affirmed.
    STATEMENT BY THE COURT.
    Appellant brought this suit for himself and on behalf of the majority of electors within the boundaries of appellee school district to restrain the issuance and sale of bonds by the said district. The complaint alleged that he with 123 other electors of the district, constituting a majority, had filed before the county board of education a petition for the dissolution of said district and given notice thereof as required by law. That the matter could not be reached and heard by said board before September 12, 1925; that, pending same, the said board was preparing to issue and sell bonds for the erection of the school building in said district; that said bonds were to be issued for less than par, in violation of law; and that they were to be issued without authority, the question not having been submitted to the electors as provided for by law.
    Demurrer was filed but not passed on, and the answer denied the allegations of the complaint.
    The testimony shows that, after the petition for the dissolution of the district had been duly filed with the county board of education as alleged, an election was regularly held, on the date for holding the annual school elections, in Rural Special School District No. 26, Lonoke County, created by act 291 of the Acts of 1925; the 15 days ’ notice required by law first having been duly given, the place for holding the election being designated, the purpose of said election being stated in the notice as for electing a board of directors, etc., voting an annual school tax for said district and fixing the amount thereof, and “ (3) for the purpose of voting a building fund for said district, and fixing the amount thereof.”
    The ballots printed by the board of directors of said district and furnished the electors, after the names of the candidates for school director and the terms, had printed thereon:
    “For school tax for general purposes, 8 mills Against school tax For building fund, 4 mills Against building fund.”
    The majority of the electors voting voted “For building fund, 4 mills,” only three voting “Against building fund” the vote being 26 “For building fund” and 3 ‘ ‘ Against building fund. ’ ’
    The result was duly certified, the board having made an order showing' the result.
    The board agreed to sell the bonds, $8,000 6 per cent, legally issued school bonds, for $8,000 cash upon delivery. The board made an agreement for the sale of the bonds to the American Southern Trust Company as follows:

      “ AGREEMENT.
    “Little Rock, Arkansas July 24,1925.
    “To the Board of Directors, Rural Special School District No. 26, Lonoke County, Arkansas.
    “Gentlemen: For your $8,000 6 per cent, legally issued school bonds, dated August 1, 1927, ’29, ’31, ’33, ’34, ’35, ’36, ’37, ’38, ’39, ’40, ’41, ’42, ’43, ’44, ’45, being-sixteen (16) bonds of $500 each, we will pay you on delivery at the American Southern Trust Company of Little Rock, Arkansas, $8,000 in cash. Interest on the bonds to be payable semi-annually on the 1st day of February and August in each year, at the office of the American Southern Trust Company, who mil act as trustee.
    “In making this proposal to accept the above bonds at par for 6’s we are to be allowed a fee of $400 for brokerage and selling them.
    “Your board will furnish the abstract of title to the property to be mortgaged, showing good title to the property in the district.
    “Respectfully submitted,.
    “R. G. Helbron
    “By R. G. Helbron.”
    “The above proposition is this, the 25th day of July, 1925, accepted as to all of its conditions by the board of directors of Rural Special School District No. 26, Lonoke County, Arkansas.
    “By C. C. Rice, President,
    “By J. C. Clements, Secretary.
    “Jesse B. Shelton,
    B. C. Finch,
    S. A. Brown,
    J. H. Robertson.”
    A copy of the deed of trust showing the sum of the bonds to be issued was indorsed by stipulation.
    The chancellor denied the relief prayed, dismissed the complaint, and from this decree the appeal is prosecuted.

      Reed & Beard, for appellant.

      Chas. A. Walls, for appellee.
   Kirby, J.,

(after stating the facts). Appellant contends, first, that the court should have enjoined the issuance of the bonds by the school district until the petition to the county board of education for dissolution of the district was finally determined. This contention is without merit, since that board had no authority to dissolve a special school district formed by an act of the Legislature. School District No. 25 v. Pyatt Special School Dist., 172 Ark. 602.

It is next contended that the board was without power to issue bonds, not having been given authority to do so by the election held. Section 3 of act 291 of the acts of 1925 provides:

“Said Rural Special School District No. 26 of Lonoke County, Arkansas, shall be governed by all the general laws of the State relative to rural special school districts and shall have all the rights, powers and duties now conferred upon rural special school districts to borrow money, to issue bonds and negotiable evidences of debt, to acquire a site for a school- building or school buildings, and to carry on the general business of said district, and the said board shall possess all other rights now exercised or possessed by. rural special districts under the general law governing said, districts; provided, however, that, if -the board of directors of said Rural Special School District No. 26 of Lonoke County shall deem it necessary and to the best interest of said district to issue bonds or other negotiable evidences of indebtedness, prior to the annual school election to be held in May, 1925, it shall have power and authority to issue said bonds or negotiable evidence of indebtedness in such sum as it finds necessary in order to properly construct and .equip a school building in said district, without submitting the question to the electors in said district, and said board shall have full authority to pledge such part of the annual school tax as may be necessary for that purpose. Any bonds or other negotiable evidences of indebtedness issued under authority of this act otherwise shall be governed by the general laws of the State relating to rural special school districts.”

By the terms of this act the. board of directors is given authority to issue bonds or other negotiable evidences of indebtedness, to borrow money for the construction of school buildings for the district, if done before the date of the annual school election to be held in May, 1925, without submitting the question to the electors of the district, and to pledge such part of the annual school tax as might be necessary for that purpose. If the bonds were not issued before that date, however, the board could only acquire authority to issue them by an election held under the general laws relating to rural special school districts, as provided in the last sentence of said § 3. Bonds issued without authority of the electors are absolutely void, of course. Rural Special School Dist. No. 30 v. Pine Bluff, 142 Ark. 279, 218 S. W. 661; Robertson v. Rural Spl. Sch. Dist. No. 9, 155 Ark. 161, 244 S. W. 15.

Section 8840, C. & M. Digest, provides that rural special school districts shall have the power to borrow money for building purposes if authorized by a vote of a majority of the electors of the district. “Such voté may be ‘For building fund’ or ‘Against building fund,’ and shall state the amount of the building fund tax which the voter desires levied. * * * If a majority of the votes cast are ‘For building fund’ it. shall be equivalent to voting a building tax of the amount or rate as determined by this section for each succeeding year until the money borrowed by the board of directors pursuant to such vote, together with all the interest thereon, shall have been fully paid. When a building fund has 'been specially voted for, as provided in this section, the boiard of directors may borrow money and mortgage the real property of the district as security therefor, under such conditions and regulations as to amount, time and manner of payment as the board of directors shall determine, and may, from time to time, renew or extend any evidence of indebtedness or mortgage issued or executed hereunder.” * * *

This section also provided a form of a certificate to be issued by the board of directors to the lender of the money, showing the result of the election and the amount of the money borrowed, the terms of the loan, with the rate of interest, and that it is to be paid from funds arising from the amount of tax voted therefor, to be levied annually upon the property of the district.

This certificate is required to be executed in triplicate, signed by a majority of the board, which retains one copy, delivers another to the lender, and must file the third with the clerk of the county court, which court is required to levy, each succeeding year, a building tax of the rate voted for against the property in the district until the amount borrowed, with interest thereon, has been fully paid. Section 8841, C. & M. Digest.

This certificate is not the “bond or other evidences of indebtedness” authorized to be given for the money borrowed under said § 3 of act 291, already set out. Even if it could be held to be the form of bond or evidences of indebtedness intended to be required executed for money authorized to he borrowed by the election held under said section, which wo do not think is the case, and is not necessary to decide, since the said act provides for the issuance of “bonds or other negotiable evidences of indebtedness” for the money borrowed upon the election held authorizing it to be done.

These bonds would ordinarily be issued in commercial form, as usual in the regular course of business, in accordance with the agreement between the parties, secured by the mortgage authorized to be executed, and the lender’s copy of the said certificate required to be issued would necessarily be transferred to the holder of the bonds, as additional security and identification of the owner of the bonds, since the county treasurer is authorized to pay the money collected into the treasury from the tax levied for the building fund to the holder of the certificate upon demand.

It is finally contended that the contract for sale of the bonds is in violation of the statute authorizing the money to be borrowed and tlie bonds issued, since it provides for the payment of a brokerage fee. of $400 for sale of the bonds, which, appellant insists, amounts to a sale for less than par value and is an evasion of the law.

The statute gives the board of directors the power to issue and sell the bonds at not less than their par value,, with, interest thereon at 6 per cent., the prescribed rate, which carries with it the implied authority to pay a broker to sell the bonds or to assist the commissioners in doing so, when regarded necessary, and the payment of a reasonable commission is incidental-to the express authority to sell coming fairly within the scope of the power-granted, and does not constitute a sale at a discount, within the meaning of the law. Arkansas Foundry Co. v. Stanley, 150 Ark. 127, 233 S. W. 922.

We find no prejudicial error in the record, and the decree is affirmed.


text:
    Dunaway v. Russell.
    Opinion delivered May 2, 1927.
    1. Venue — destruction op building. — JJnder Crawford & Moses’ Dig., § 1164, providing that actions for injury to real property must be brought in the county in which the subject of the action is situated, a circuit court was without jurisdiction of an action to recover damages for negligent injury and destruction of the building situated in another county.
    2. Judgment — res j.udicata. — A judgment for the defendants in an action in one county for damages to personal property alleged to have been caused by the negligent injury and destruction of a building situated in another county barred a subsequent action in the latter county between the same parties for damages for destruction of the building, notwithstanding Crawford & Moses’ Dig., § 1164, provides that actions for injury to real property must be brought in the county in which the subject of the action is situated, since the same fact was in issue and had been determined against plaintiff.
    3. Appeal and error — presumption prom absence op bill op exceptions. — Where a judgment recites that documentary proof iij support of a special plea was heard, the appellate court will, in the absence of a bill of exceptions, presume that there was sufficient evidence to sustain the trial court’s finding.
    Appeal from Faulkner Circuit Court; George W. Clark, Judge;
    affirmed.
    STATEMENT BY THE COURT.
    This is an action by appellant, the owner of a one-story brick building situated on the south half of lot 8, block 1, Tyler’s Addition to Conway, Arkansas, containing a printing office and equipment for the publication of a newspaper, against appellees, Theodore Smith, doing business as the Smith Auto Company, and the other defendants, architects and contractors, for damages for the destruction of said building and equipment alleged to have been caused by defendants’ negligence in digging a ditch or excavation on the property line adjacent to the wall of appellant’s building, removing the lateral supports. thereof without putting in any supports or braces, so weakening his foundation that it collapsed, destroying the building completely, to his damage in the sum of $5,000. Prayed judgment against defendants and each of them for that sum.
    The defendants, W. A. Russell and Howard James, the contractors, filed a separate answer, denying the allegations of the complaint, appellant’s ownership of the building alleged to have been destroyed, the value thereof, and any negligence in making the excavation that caused or contributed to the damage and destruction of said building. Separate answers were filed by the. other defendants, containing like denials of the allegations of the complaint. Russell & Company filed a supplemental answer, pleading a former judgment rendered in their favor in the G-arland Circuit Court on October 2, 1925, in appellant’s suit against them and the other defendants therein, as res judicata and by way of estop-pel of appellant’s right of action herein.
    The answer alleged: “That the plaintiff, L. S. Duna-way, did file his cause of action and prosecute the same to final judgment in the circuit court of Garland County, Arkansas, on October 2, 1925, in which action he sought to recover against the same identical defendants named in this suit for damages to the personal property of the plaintiff situated in the building alleged in the complaint herein to have collapsed, and in said action in the circuit court of Garland County, Arkansas, the plaintiff set up, as the basis of his right to recover, the same acts of negligence complained of in this action. Defendants say that, if plaintiff sustained any damage as a result of any of said alleged negligent acts of these defendants, his damage to both real and personal property constituted but a single cause of action, and that plaintiff, in electing to try said cause of action in the circuit court of Garland County, Arkansas, for damage to the personal property alone, thereby waived his right to any other damage alleged to have been sustained by him as a result of said alleged negligent acts of these defendants; and as a result of said trial and judgment in the circuit court of Garland County, the matters set out in the complaint herein are res judicata.

    “Defendants further state that, in said action in the circuit court of Garland County, Arkansas, the plaintiff alleged the same acts of negligence on the part of the defendants as are set out in the complaint herein, and evidence was introduced upon trial of said cause tending to establish said negligence; that the defendants answered in said causes, denying said alleged negligence, and introduced evidence to support their answer; that the issue as to whether or not the defendants were guilty of negligence in making the- excavation set out in the complaint herein and whether or not said building collapsed as a result of any negligent act of these defendants, was submitted to the trial court in said action in the circuit court of Garland County, and a verdict was returned in favor of the defendants, whereupon a judgment in favor of the defendants was made and entered by the court, and the said verdict and judgment have not been reversed, set aside, or in any way modified. Defendants say that, 'as a result of said verdict and judgment, the plaintiff is estopped to deny the findings of said jury and of said judgment that these defendants were not guilty of any negligence.”
    A certified transcript of the complaint, the demurrer thereto, the answer of the defendants, the order sustaining the demurrer in part, and final judgment in the Garland County action, was attached to the answer. The other defendants adopted the supplemental answer of Russell & Company, filed on the 30th day of December, 1925.
    Appellant filed a general demurrer and response to the answer, alleging it did not set up sufficient facts or averments to constitute a plea in bar to this cause, and denied that the judgment rendered by the Garland Circuit Court was a final'judgment; denied that it waived his right to try this cause of action by electing to try the personalty feature of the cause in the Garland Circuit Court, and alleged that the judgment of that court might have been predicated upon an issue not material to this, and immaterial, irrelevant and incompetent testimony, and stated that the issue of the damage to real property was not tried in that court, could not have been an issue, and was not adjudicated; denies that the issues and facts in the Garland Circuit Court were the same as those joined in this cause.
    The court overruled the demurrer to the special pleas signed by the defendants, and the order recites further: “This cause coming on to be .heard upon the complaint, the answer and special pleas hereto, together with the response to said special pleas, and documentary proof in support of said special pleas, and being well and sufficiently advised, the court finds that the said special pleas filed by the said defendants to the complaint of the plaintiff herein should be sustained, and complaint of the plaintiff should be dismissed.” From the order dismissing the complaint this appeal is prosecuted.

      C. A. Holland, Murphy, McHaney & Dunaway, for appellant.

      J. G. é Wm. J. Clark, R. G. Bruce, R. W. Robins and Will G, Akers, for appellee.
   Kirby, J.,

(after stating the facts). It is earnestly urged by appellant that the trial court erred in overruling his demurrer to the special plea of. res judicata and estoppel and dismissing his complaint.

No bill of exceptions appears in the record. Our statutes provide that actions for injury to real property must he brought in the county in which the subject of the action is situated. Section 1164, 0. & M. Digest. •

.Appellant’s cause of action for damages was alleged to have grown out of the negligent destruction of his building in Conway, Faulkner County, by the defendants in making the excavation along the foundation thereof, and the damage to the personal property contained in the building was but an incident .to its destruction. Certainly the circuit court of Garland County was without jurisdiction of the plaintiff’s action to recover damages for the negligent injury and destruction of his building situated in Faulkner County, and assuming, without deciding, that he could proceed in his action in Garland County, where defendants were summoned, to recover the damages for the injury to his personal property contained in the building destroyed resulting from the negligent destruction thereof, without waiving his right to recover for injury to the real property, the building itself, it was still necessary to prove the same act of negligence alleged to have caused the injury to the building, since there could have been no recovery of damages to personal property contained therein injured* by the collapse of the building unless there was liability for the destruction of the building itself.

The parties to the action were the same and the allegations of the plea in bar, conceded by the demurrer, shows this fact to have been put in issue in that suit and directly determined against appellant as a ground of recovery, and, such being the case, the same fact cannot be put in issue in this subsequent suit between the same parties, since it was conclusively established in the judgment in the former suit, which remains effective, not having been' modified or appealed from. National Surety Company v. Coats, 83 Ark. 545, 104 S. W. 219; Morgan v. Kendricks, 91 Ark. 394, 121 S. W. 298; Gosnell School District v. Baggett, 172 Ark. 681, 290 S. W. 577; 15 R. C. L. § 450, page 974; § 439, page 964.

There is no bill of exceptions in the record, as already stated, and the judgment of the oonrt recites that documentary proof in support of said special plea was heard,.and this court would indulge the presumption that there was sufficient evidence to sustain the lower court’s finding even if it had not been otherwise shown by the pleading and exhibit to be correct. Coleman v. Mitchell, 172 Ark. 619, 290 S. W. 64.

No error was committed by the lower court in overruling the appellant’s demurrer to the special plea of res judicata and estoppel, nor in returning a judgment thereon for the defendants. The judgment is accordingly affirmed.

McHaney, J., not participating.

Wood and Humphreys, JJ., dissenting.


author: Kirby, J.

text:
    Southern Life Insurance Company v. Roberts.
    Opinion delivered May 2, 1927.
    1. Insurance — burden to show release. — In an action on a life insurance policy, the burden of proof was on the defendant to show a valid release hy the beneficiary.
    2. Appeal and error. — conclusiveness op verdict. — In an action on a life insurance policy, in which the defendant pleaded a compromise and settlement, the verdict for the plaintiff on correct instructions, and supported by a substantial testimony, will not be disturbed.
    3. Trial — special finding — discretion op court. — Whether a jury shall he required to make a requested special finding is within the sound discretion of the trial court.
    Appeal from Van Burén Circuit Court; J. M. Shinn, Judge;
    affirmed.

      John L. Crank, for appellant.

      Opie Rogers, for appellee.
   Kirby, J.

Appellee, the beneficiary, brought this suit upon a $1,000 policy, No. 496, Circle B, issued by the appellant company, insuring the life of her husband, Thomas I. Roberts, and prayed judgment in the amount of the policy, and damages and attorney’s fees. The insurance company answered, denying any indebtedness upon the policy, alleging that it was voided because of misrepresentations and warranties made in the application about the insured’s health, that only about $400 was due under its terms in any event, and pleaded a compromise and settlement for $100, exhibiting the release therefor.

The jury returned a verdict for $391.73, the amount conceded to be due under the policy, if valid, and from the .judgment this appeal is prosecuted.

The testimony tended to show that the insurance adjuster, after proof of the death was sent in, came to see . the appellee and told her that he had been sent by the company to take up the papers, which he claimed were worthless, as Mr. Roberts had misrepresented the condition of his health in the application for the policy, denying that he had had epilepsy, when the proof of death showed that he had died from that disease. He told her that the policy was void on that account, and the company did not owe her anything, but that it would pay her $100 in settlement to avoid a lawsuit about it.

The appellee insisted that her husband was in good health at the time the application was made, had never had any fits or spells before that time, and that the condition had developed afterward from blood poison. She stated the adjuster told her that the company had made a thorough investigation and had found out that the insured was in bad health at the time he took it out, and that the company did not owe her anything on the policy; and further, “You said” (the adjuster who had made the settlement was the attorney examining the witness) “they told you in black and white there not to give me anything; -you said it would take one hundred dollars to fight it out in a lawsuit, and yon would rather give me the one hundred dollars than to fight it out.’]

Witness was much distressed mentally, and did not know what to do, and the adjuster fixed up the papers, which she did not read, took the policy, threw a check or draft into her lap, and went away. The check was never cashed.

Several witnesses, two physicians, one the family physician of the deceased, testified that he had had no spells indicating epilepsy until after 1919, the application for the insurance having been taken out before that time, when he suffered a severe attack of blood poisoning.

The appellee stated that insured had never had any attack of any kind at all before the insurance was taken out, nor until after the blood poisoning; that thereafter he had mild spells, which increased in severity. until he finally died with epilepsy, as shown in the proof of death.

The etiology of this disease is that it is hereditary, and that a great majority of the cases (perhaps 80 per cent.) develop in childhood.

No complaint is made of the court’s instructions to the jury, and, since the burden of proof was on the appellant company to show a valid release, and the jury had found against it upon correct instructions, the verdict will not be disturbed, since it is supported by some substantial testimony.

No error was committed in not requiring the jury to make the special finding of facts requested. This was a matter within the sound discretion of the trial court, and it alone could properly judge of the expediency of it, and nothing in the record indicates an abuse of such discretion. Little Rock & Ft. Smith Ry. Co. v. Pankhurst, 36 Ark. 371.

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


text:
    Woodward v. State.
    Opinion delivered May 2, 1927.
    1. Disturbance op public assemblage — evidence held insufficient TO take the case to the jury in prosecution for disturbing religious worship. — Evidence held insufficient to take the ■case to the jury in the prosecution of a mayor for disturbing religious worship, where he stopped a street meeting conducted in violation of city ordinance, after requesting that it be held on the courthouse grounds instead.
    2.- Disturbance of public assemblage — sufficiency of evidence. —To sustain a conviction for disturbing religious worship, it is necessary to show that defendant maliciously or contemptuously acted in a way to disturb and disquiet the congregation assembled for religious worship, in view of Crawford & Moses’ Dig., § 2766.
    Appeal from Independence Circuit Court; 8. M. Bone, Judge;
    reversed.

      W. K. Buddell and Coleincm & Reeder, for appellant.

      U. W. Applegate, Attorney General, and John L. Garter, Assistant, for appellee.
   Kirby, J.

Tbe appellant, Dr. Woodward, tbe mayor of tbe city of Batesville, brings tbis appeal from a judgment of conviction for disturbing religious worship, upon information filed before a justice of tbe peace and later upon appeal io tbe circuit court.

The city of Batesville has an ordinance prohibiting the bolding of any kind of meetings for publicly expressing or promulgating any social, political or religious teaching, belief or doctrine, on tbe streets or sidewalks of tbe city, without first procuring a written permit from the mayor.

A man claiming to be a representative of tbe Salvation Army applied to the mayor for a permit to preach on the streets and sidewalks, which was refused on account of the crowded condition of the town, the mayor suggesting that the meeting be held in the courthouse yard, the usual place for such meetings, and where it would not obstruct streets and sidewalks.

The preacher, notwithstanding a permit was denied him, afterwards held the meeting complained about, speaking from the wall of the courthouse yard, and described by one witness as follows: “This was on the busiest corner in Batesville, on Main and Broad Streets, right on the courthouse corner. People were thronging there that day, passing along the streets and sidewalks and through the crowd all the time; cars, trucks and wagons along the streets all the time, sounding their horns and keeping up a constant noise and confusion. ’ ’

The mayor, in the absence of the marshal, was called on the telephone by a lawyer, from his offices in the Fitz-hugh Building opposite the meeting, and informed that the preacher was disturbing everybody in that part of town, and asked that it be stopped. Dr. Woodward walked down the street, and found the preacher standing on the courthouse wall, “right at the corner of Broad and Main Streets, two of the busiest streets in the town, and the crowd was blockading both streets.” He touched the speaker, and, with low voice and in a polite manner, suggested that he had asked him not to use the streets and sidewalks for meetings, and told him that he would have to get back on the courthouse grounds or quit, as he was blockading the sidewalks. He passed on, and, returning after a few minutes, and seeing the preacher continuing and the condition as before, walked up to speaker, took him by the arm and told him he would have to quit. The preacher stepped down from the wall,- took up his grip, and they walked into the courthouse, where the mayor told him that it would not do to block the streets and sidewalks, that the business men near by were complaining, and it must be stopped. That he could fine him for it, but he was not going to. The Doctor also stated that he was a member of the church, had great admiration for the work of the Salvation Army, and had been a contributor to it for many years; that the other Salvation Army officers who came to the city used the courthouse yard for their services, which he considered a better place, not being subject to so much disturbance from the crowds passing by and only a little further from Broad Street. He said he was not mad at the time and used no rough language.

The lawyer who called the mayor’s attention to the disturbance stated that the Salvation Army man was on the courthouse wall holloring. and talking awful loud, and could be heard all over that part of town. That his office was just across Broad Street from where the preacher was standing, and “There was so much noise and confusion I could not hear anything else; it interfered with my work; I just couldn’t do anything; couldn’t hear anything over the phone, he was making so much racket.” Witness told the mayor that it was disturbing everybody, and that “he would like to have it stopped.”

A physician, with offices in the same building, said he was sitting in his window overlooking the large crowd in the street and on the sidewalk and the preacher on the wall haranguing them; that the mayor came out of the courthouse, touched the preacher on the arm, beckoned or motioned to him, and he reached down and got his little grip, and they went into the courthouse together. Witness said the preacher was not praying at the time, and stopped talking, got his grip, and left with the mayor; that he had only been watching about five minutes, and had before been looking out occasionally, and did not see the mayor the first time he spoke to the preacher.

Other witnesses testified that the mayor jerked the man’s coat and one said he jerked him down oft the wall.

The court refused to instruct a verdict for the defendant and refused his requested instruction to find him not guilty for the reason that the undisputed proof shows that defendant was the mayor of the city and had a right to stop the violation in his presence of the city ordinance. From the judgment on the verdict finding him guilty, this appeal is prosecuted..

The court erred in not directing the verdict as requested. It was necessary to show in this case that appellant maliciously or contemptuously acted- in a way to disturb and disquiet the congregation assembled for religious worship. Section 2766, C. & M. Digest; Walker v. State, 103 Ark. 336, 146 S. W. 862. The information is not specific, and did not charge the committing of any violence of any kind upon any of the persons so -assembled, but the conviction was doubtless had because of the testimony of some of the witnesses, indicating that the preacher was rudely seized and made to stop talking. The undisputed testimony shows, however, that appellant, mayor of the city, in the absence of the marshal, was only attempting, as it was his duty to do, to prevent disturbance to the citizens, some of whom had complained of the meeting in violation of the ordinance, and asked that it. be stopped.

Even though some of the witnesses did not approve of the mayor’s action and seemed to think that he had used more force than was necessary for the, accomplishment of the purpose, it cannot be held, although he intended to do what was done, that it was done maliciously or contemptuously to disturb and disquiet the congregation or any member thereof.

According- to his own statement and that of several witnesses, the mayor was very considerate in the matter, first quietly suggesting to the preacher that the meeting had been- complained about, and that he would have to take the congregation into the courthouse yard or quit, leaving it to his discretion to move the crowd or bring the meeting to an orderly close. He later, returning, found the condition unchanged, and used no more force than seemed necessary to accomplish the purpose, explaining to the preacher that he was not going to fine him, as could be done, for the violation of the city ordi-dance, and was only preventing unlawful obstruction of the streets and sidewalks as his duty required bim to do.

The court erred in not directing a verdict of not guilty as requested, and the judgment is reversed and the cause dismissed.


text:
    Morgan v. Cockrell.
    Opinion delivered May 2, 1927.
    1. Electricity — care as to high voltage wires — instruction.— In an action against a lighting company for the death of a workman, when an iron rod he was using came in contact with a high voltage wire, an instruction that defendant owed a high degree of care to keep high voltage wires properly insulated and suspended, so as not to endanger the lives of others, held error, in view of an instruction that defendant was required only to exercise ordinary care for his own safety.
    2. Electricity — duty to exercise ordinary care. — Electric companies in stringing and maintaining wiyes in the street for service to the public are bound to exercise only ordinary care for the protection of those having the right to use the streets, such care varying with the circumstances of each case, and having in view the danger to be avoided and the likelihood of injury therefrom.
    3. Electricity — instruction as to danger not anticipated. — In an action for death resulting from the contact of an iron rod with uninsulated high voltage wire in the street, refusal of defendant’s instruction, that, if decedent’s death could not have been anticipated by defendant as a result of the erection and maintenance of its wires, the verdict should be for defendant, held error.
    4. Electricity — insurance against injury — instruction.—In an action for death resulting from contact of an iron rod with an ■uninsulated high-tension wire in the street, where no instruction was given defining the term “proximate cause,” it was error to refuse to instruct that defendant was not an insurer of the safety of persons in the streets where the wires were located, and could only be held for negligence, and that, if it used ordinary care in maintenance of its wires, it was not guilty of negligence.
    5. Negligence — instruction as to proximate cause. — In an action for death resulting from contact, of an iron rod with an uninsulated high-tension wire in the street, an instruction that, if the injury could not have been reasonably anticipated by a person of ordinary prudence as the probable result of negligence, negligence would not be actionable, held incorrect, and its refusal not error.
    6. Electricity — instruction as to accident. — In an action for death resulting from contact of an iron rod with an uninsulated high-tension wire in the street, refusal of an instruction that, if plaintiff's injury was due solely to accident, the verdict should be for defendant, held error.

      7. Electricity — jury question. — In an action for death resulting from contact of an iron rod with an uninsulated high-tension wire in the street, the question whether the injury would have occurred whether the wire was uninsulated or not, held for the jury.
    Appeal from Miller Circuit Court; J. TI. McCollum Judge;
    reversed.
    STATEMENT BY THE COURT.
    This suit is from a judgment for damages recovered by the widow and next of kin against the appellant operating a light company, for the death of the husband and father of plaintiffs, alleged to have been caused by the negligence of the light company in using wires without insulation or from which the insulation had worn off for carrying a high voltage of electricity, and in stringing or maintaining the wire not sufficiently high from the surface of the street.
    The testimony tends to show that the deceased was working at the Home Gin Company, on Daugherty Avenue, in Ashdown, when he was killed. The boiler room where deceased was at work extended out over the sidewalk* and the door of the room was about five feet distant from where the wires were strung on poles about 15 feet above the street level. The deceased had been working there 10 days, and before had worked in another plant, where he had charge of the dynamos generating electricity. He went out of the boiler-room and picked up an iron rod 18 feet long, leaning against the side of the room, with which to swab out the furnace of the boiler, and, in returning, struck the end of the rod against the light wire, and was instantly killed.
    The primary wire, carrying 2,300 volts of electricity, was 15% feet above the street at the place where the iron rod came in contact with it, and was bare, the insulation having been worn off for some time — two or three weeks. The secondary wires were 20 inches lower than the high voltage wire, and only carried 110 volts of electricity, which was not enough to seriously injure a person coming in contact with it. The wires were carried on this street on 25-foot poles, imbedded about 5 feet in the ground, the primary wire being nearer the top of the pole and about 20 inches above the secondary or low voltage wires. There were no other houses in this block on the same side of the street with the gin-house, and had never been, and one end of the street was closed by the railroad station. The nearest pole to the boiler room was about 15 feet distant, and it could easily be seen that there was no insulation on the wire for 5 or 6 feet at the point of contact with the iron rod, and it was apparent that the insulation had been off for a long time. The deceased had been working there for two weeks, repairing around the gin. The swab, before the injury, was kept on the outside of the gin and had been for 12 months, but is now kept on the inside of the boiler-room.
    The deceased was known to have worked at the United Oil Mills, as oiler, oiling the generator and motors and switching on and off the electricity. The man working with him at the time of the injury knew that wires and poles were there in the street, and, while he did not know the voltage carried by the wire, knew that they were dangerous.
    No one saw the occurrence of the rod coming in contact with* the wire, and this witness supposed that Cockrell was pulling or lifting the rod and walking backwards when it struck the wire. The rod was found leaning against the bare wire after Cockrell was heard to fall. Witness measured the distance at the point where the rod was on the wire, and found it 13 feet above the ground. The testimony is undisputed, however, ffhat the high voltage wire was 20 inches or so above the'secondary wire.
    Deceased was 24 years old at the time of his death, leaving a widow and one child 6 years old, and was earning on an average about $100 per month, all of which was consumed in supporting his family.
    The court instructed the jury, giving instruction No. 1 over appellant’s objection, and amended other instructions over like objection, and refused to give its requested instructions Nos. 5, 7, 8 and 10, as follows:
    “No. 1. You are instructed that one using electric wires carrying- a dangerous voltage or current of electricity and placing the same on poles in the streets, owes the public a high degree of care to keep said wires properly insulated and suspended as not to endanger the lives of others lawfully within the vicinity of said wires; and in this case you are instructed that, if you find from a preponderance of the evidence that the defendant’s electric wires about which the witnesses have testified carried a dangerous voltage or current of electricity, and you further find that the defendant negligently failed to exercise a high degree of care in the construction or maintenance of said wires by negligently failing either to keep said wires properly insulated or properly suspended, so as not to endanger the lives of others lawfully within the vicinity thereof, and you further find that, by reason or because of the defendant’s said negligence, if any, the deceased, Louis Cockrell, while in the exercise of ordinary care for his own safety, was injured, then it will be your duty to find for the plantff.”
    “No. 5. If you find that the-plaintiff’s injury was due solely to an accident, your verdict will be for the defendant.”
    “No. 7. In order for you to hold that the negligence, if any, of the defendant was the proximate cause of the injury, the plaintiff must show by a preponderance of the evidence that the injury was the natural and probable consequence of the alleged negligence; in other words, the proximate result must be the natural and probable consequence which ought to have been foreseen, or reasonably anticipated in the light of the attendant circumstances; hence it follows that, if the injury in this case could not have been reasonably anticipated by a person of ordinary prudence and intelligence as the probable result of the acts of negligence complained of, then you are instructed that the negligence, if any, of the defendant is not actionable, and your verdict must be for defendant.

      “No. 8. If the injury and death of the decedent could not have been reasonably anticipated by the defendant as a result of the erection and maintenance of its wires, as they were in fact erected and maintained at the point of the injury, then you are instructed that the defendant is not liable, and your verdict must be for the defendant.”
    “No. 10. You are instructed that the defendant was not an insurer of the safety of the persons in or in the vicinity of the streets where its wire's and poles were located, and can only be held, if held at all, for negligence on his part. In this connection you are advised that the defendant was not required to anticipate every possible danger and provide against the same, but was only required to use ordinary care to that end, and, if it used ordinary care in the erection and maintenance of its wires and poles, it was not guilty of negligence, and your verdict must be for the defendant.”
    The jury returned a verdict, assessing damages at $15,000, and from the judgment thereon this appeal is prosecuted.

      Will Steel and James D. Head, for appellant.

      Pratt P. Bacon, June R. Morrell and Peasel & Steel, for appellee.
   Kirby, J.,

(after stating the facts). The trial court appears to have had an erroneous view of the degree of care required of appellant in the maintenance and operation of its light wires for giving service to the city, as shown in instruction No. 1, which stated that it “owed the public a high degree of care,” and that, if the defendant “failed to exercise a high degree of care,” etc., and the deceased was injured “while in the exercise of ordinary care for his own safety,” plaintiff should recover, apparently requiring the use of a higher degree of care of the appellant than ordinary care, as required under the law.

In City Electric Street Railway Co. v. Conery, 61 Ark. 381, 33 S. W. 426, 31 L. R. A. 570, 54 Am. St. Rep. 262, the court s'aid:

“All persons have the right to nse the streets in or over which the wires were suspended, as public highways. Subjecting the dangerous element of electricity to their control, and using it for their own purposes, by means of wires suspended over the streets, it is their duty to maintain it in such a manner as to protect such persons against injury by it to the extent they can do so by the exercise of reasonable care and diligence. This duty is not limited to keeping their own wires out of the streets, or other public highways, but extends to the. prevention of the escape of the dangerous force in their service through any wires brought in contact with-their own, and of its transmission thereby to any one using the streets.” *** “Electric companies are bound to use ‘reasonable care in the construction and maintenance of their lines and apparatus — that is, such care as a reasonable man would use under, the circumstances — and will be responsible for any conduct falling short of this standard. This care varies with the danger which will be incurred by negligence. In cases where the wires cany a strong and dangerous current of electricity, and the result of negligence might be exposure to death, or most serious accidents, the highest degree of care is required.”

In Texarkana Telephone Co. v. Pemberton, 86 Ark. 329, 11 S. W. 257, the court quoted approvingly from 2 Joyce on Electric Law, as follows:

“Electrical companies, in the maintenance of their wires, owe to their employees, as well as to others who may of right, either for pleasure or work, be in the vicinity of such wires, the duty of exercising reasonable care, that is, such care as a reasonably prudent man would exercise under the same circumstances. We have already stated that reasonable care or ordinary care is a degree of care varying with the circumstances of .each case, and which, in the case of electrical wires carrying a danger-pus current of electricity, requires the exercise of a high degree of care to keep them properly insulated and so suspended as not to endanger lives.”

In Southwestern Tel. & Tel. Co. v. Bruce, 89 Ark. 581, 117 S. W. 564, a case of an injury resulting from wires strung across vacant lots, the court held that the company owed the duty to plaintiff and those accustomed to going on or across the lots to exercise “due and reasonable care ’ ’ in maintaining its wires, saying:

“This electric company owed the'duty to plaintiff to use ordinary care to prevent injury by the transmission through its wires, suspended over the streets and these vacant lots, of electricity escaping from any other wires that might come in contact with them.”

In Southwestern Tel. & Tel. Co. v. Abeles, 94 Ark. 254, 126 S. W. 724, the court quoted from the Texas Court of Civil Appeals'relative to the duty resting upon telephone companies to adopt precautions for preventing atmospheric electricity from entering buildings over their wires, approving the rule as stated by the Snpreme Court of Vermont: “Having undertaken to place and maintain the instrument in the house and connect it with its telephone line for the use 'of the deceased, in so doing it was under the duty to exercise the care of a prudent man. under like circumstances.”

In Pine Bluff Company v. Bobbitt, 168 Ark. 1019, 273 S. W. 1, where the negligence consisted in the failure to discover and remove a foreign wire from an uninsulated section of high tension wire of the company, carrying 2,300 volts of electricity, permitting the heavy current to pass through the lower part of the guy wire and injure a child playing and gathering flowers by the wayside, coming in contact with it; the court held that the company was only bound to the exercise “of ordinary care” to discover the dangerous condition caused by the connecting wires, saying: “This requirement was correct and conformed to the rule announced by Joyce on Electric Law,” quoted approvingly in Texarkana Telephone Co. v. Pemberton, supra, as already stated herein.

It will be seen from these decisions that it has long been the settled law in this State that electric companies, in the stringing and maintaining of their wires in the streets of the cities to give service to the public, are only bound to the exercise of ordinary and reasonable care for the protection of all who have right to the use of the streets, such reasonable and ordinary care varying with the circumstances of each case, having in view the dangers to be avoided and the likelihood of injury therefrom, which may require a high or the highest degree of care under the particular circumstances. The court erred in disregarding this rule in giving said instruction No. 1, in telling the jury that a high degree of care was required to be exercised by the appellant in maintaining and operating its wires, and refusing to give any instruction requiring the exercise of ordinary care only, and defining it; by the appellant; and this error was accentuated by telling the jury that only the exercise of ordinary care was required by the deceased for his own safety.

It is next contended that the court erred in refusing to give each of appellant’s requested instructions Nos. 7, 8, and 10, submitting to the jury the question of whether the negligence, if established, was the proximate cause of the injury to decedent.

No instruction was given defining the term “proximate cause” nor submitting the question to the jury, the court only mentioning it in instruction No. 6, given, saying it was necessary for the plaintiff to show that the defendant was negligent in some particular matter alleged in the complaint, and also “that the negligence] if any, so shown was the direct and proximate cause of the injury to plaintiff’s decedent.”

In Pulaski Gas Light Co. v. McClintock, 97 Ark. 576, 134 S. W. 1189, 32 L. R. A. N. S. 825, the court, answering the question, “What was the proximate cause of the injury 1 ’ ’ said:

“This is not a question of science or knowledge, and is a question ordinarily for the jury, to be determined as a fact from the particular situation, in view of the facts and circumstances surrounding it. The primary cause may be the proximate cause of disaster, though it may operate through successive instruments. Milwaukee, etc. Ry. Co. v. Kellogg, 94 U. S. 476, 24 L. ed. 256; Waters-Pierce Oil Co. v. Deselms, 212 U. S. 177, 53 L. ed. 463.”

“But it is generally held that, in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.” Milwaukee, etc., Ry. Co. v. Kellogg, supra.

The court there also quoted from our decisions, Gage v. Harvey, 66 Ark. 68, 48 S. W. 898, 74 Am. St. Rep. 70:

“In determining whether an act of a defendant is the proximate cause of an injury, the rule is that the injury must be the natural and probable consequence of the act — such a consequence, under the surrounding circumstances of the case, as might and ought to have been foreseen by the defendant as likely to flow from his act.”

And St. L. I. M. & S. Ry. Co. v. Bragg, 69 Ark. 402, 64 S. W. 226, 86 Am. St. Rep. 206:

“It is a fundamental rule of law that, to recover damages on account of-the unintentional negligence of another, it must appear that the injury was the natural and probable consequence thereof, and that it ought to •have been foreseen in the light of the attending circumstances.”

The court should have given appellant’s requested instructions Nos. 8 and 10, and erred in not doing so.

The first clause of instruction No. 7 is a correct declaration of law, but the second clause, declaring that, if the particular injury could not have been reasonably anticipated by a person of ordinary prudence and intelligence as the' probable result of the act of negligence complained of, then the negligence was not actionable, and the verdict should be for the defendant, is not a correct declaration of law and the court did not err in refusing to give the instruction as requested.

“It is not necessary that the particular injury should have been foreseen,” as said in Pulaski Gas Light Co. v. McClintock, supra, where the court quoted approvingly from Foster v. Chicago, R. I. & P. Ry. Co., 4 Am. & Eng. Ann. Cas. 150, 127 Iowa 84, 102 N. W. 422, as follows:

“Doubtless the particular situation might not have been foreseen, but this was not essential to making out a charge of negligence. Accidents as they Qccur are seldom foreshadowed; otherwise many would he avoided. If the act or omission is of itself negligent and likely to result in injury to others, then the person guilty thereof is liable for the natural consequences which occurred, whether he might have foreseen it or not. In other words, if the act or omission is one which the party ought, in the exercise of ordinary care, to have anticipated was likely to result in injury to others, then he is liable for any injury proximately resulting therefrom, although he might not have foreseen the particular injury which did happen.”

Also from Baltimore & O. Rd. Co. v. Slaughter, 7 L. R. A. (N. S.) 597, 167 Ind. 330, 79 N. E. 186:

“To entitle one to a trial of the question of another’s negligence which resulted in injury, it is not necessary that the effect of the act or omission complained of in all cases, or even ordinarily, he to produce the consequences which followed; hut it is sufficient if it is reasonably to be apprehended that such an injury might thereby occur to another while exercising his legal right in a careful manner.”-

The court also should have given appellant’s instruction No. 5, as requested, without amendment.

The appellant was also entitled to have the question of whether the injury would not have occurred from the iron rod, in the hands of decedent, coming in contact with the primary wire, carrying the high voltage of electricity, regardless of whether same was insulated or not. The undisputed testimony showed that the insulation wears or comes off of such wires and that it is not practical to have them reinsulated, and that it is not done in the operation of such plants.

Appellant’s testimony tends to show that the current would have come through such insulation as wires of this kind carry when new, anyway, and caused the injury upon contact with the rod, but it was not undisputed, and appellant had the right to have the question submitted to the jury.

It is urgently insisted that, in view of the location of the gin on. a little used street, the public and its customers not passing by the door of the boiler-room ordinarily, defendant could not reasonably have anticipated, in the exercise of ordinary care, the use by the gin company of an 18-foot iron swab for cleaning its boiler flues, and that any injury would likely result at this place on its lines, either by reason of the uninsulated wire or by the height of same from the 'ground, and that the failure to foresee and anticipate any such event cannot be held to establish negligence.

It is doubtful if there is any negligence shown warranting recovery in this case, but the court will leave that to the determination of the jury under proper instructions.

The law does not compel electric companies to insulate their wires everywhere, but only at places where people may be reasonably expected to go for work, business or pleasure. “The duty to insulate does not extend to the entire system or to parts on the line where no one could reasonably be expected to come in contact with it.” 20 C. J. 356.

This court has recognized the true rule in Hines vConsumers’ Ice Co., 168 Ark. 914, 272 S. W. 59, where it was said:

“There is involved here no question about.the duty of the electric light company to insulate all its wires. The authorities appear to be unanimous in holding that there is no such duty, but the cases do hold, as we understand them, that this duty must be performed, or other sufficient safety methods employed to prevent contact with wires conveying the current at such places as danger of contact may reasonably be anticipated.” See also 9 R. C. L., “Electricity,” § 21, page 1213.

From the street where the bare or. exposed wire was strung is a distance of about 1'6 feet, which must have been at least 10 feet above the heads of men of ordinary height passing along the street, and there were no means or instrumentalities by which passersby, upon the street or sidewalk, could come in contact with the wire. The wires were not more than 5 feet from the front door of the boiler-room along Daugherty Avenue, however, upon which the boiler room fronted, and it may be. that, in hauling and unloading coal, and unloading cotton at the gin and reloading baled cotton with wagons and trucks, some one engaged in such work might reasonably be expected to come in contact with the hare wire and be injured, and we therefore do not hold as a matter of law that there was no negligence. .

For the errors designated the judgment is reversed, and the cause remanded for a new trial.