author: Butler., J.

text:
    Taylor v. Ermen.
    Opinion delivered February 23, 1931.

      Bruce Ivy, for appellant.

      James G. Goston and J. T. Goston, for appellee.
   Butler., J.

This suit was brought by the appellant to enforce the statutory liability of stockholders of -insolvent banks as fixed by § 702 of Crawford & Moses’ Digest. Appellant alleged that the Citizens’ Bank of Osceola became insolvent on the 5th day of January, 1928, at which time the appellee was the owner of sixty shares of the corporate stock of said bank of the par value of $1,500; that, as Bank Commissioner, he made an assessment of 100 per cent, against all the stockholders and against the appellee who failed and refused, after demand made, to pay the assessment, and that, by reason of said assessment and appellee’s failure to pay, appellee became, and is, indebted to the appellant as Bank Commissioner in the snm of $1,500, for which judgment was prayed. The appellee answered admitting all the allegations of the complaint except that which alleged ownership in him of the sixty shares of stock. This he denied, and testimony was heard, and the case submitted to a .jury on that issue. The verdict was for the defendant, and from the judgment of the court based thereon is this appeal.

The following facts appear to be undisputed: First, the appellee, during the year 1927 and on the 5th day of January, 1928, was shown by the bank’s records to be the owner of the sixty shares of stock. During the year 1927, and for many years prior thereto, he was and had been, a director of the bank, punctual in his attendance on all of the directors’ meetings, with knowledge of the loans made, and giving at each monthly meeting his approval of the loans made for the month next preceding. He took part at such directors’ meetings in the discussions regarding the affairs of the bank with his fellow directors, and with the bank examiner, from time to time as examinations were being made of the condition of the bank. He attended the last meeting of the board of directors that was held before the doors of the bank were closed on January 5, 1928. He drew a monthly salary as director, two of his last salary checks being drawn and delivered to him in the month of December, 1927.

.Second, on the 6th day of May, 1927, he made a written assignment of his certificates of stock in blank and delivered them to A. J. Baber, but did not notify the president and cashier of the bank, or either of them, of this action on his part, nor was there any notation of this assignment made upon the books of the bank. Baber presumably had possession of these certificates of stock from that time until December 29, 1927, when he in turn, for a consideration of $900 to be paid, assigned the said certificates to B. B. Moore who executed notes the first of •which, was due in three months. These notes were delivered to the appellee by Baber on the following day. At the time or shortly after the bank closed, Moore notified the appellee that the purchase of stock by him was made under certain conditions which were not carried out, and that he would not pay the notes or any of them. This suit was filed on the 28th day of December, 1928, but the appellee had taken no action to enforce the payment of the notes up to and including the date of the hearing of this case in the circuit court.

It is insisted by the appellant that under the facts in this case the appellee is liable, first, because he did not sell his stock; second, that the sale, if made, was with the knowledge that the bank was insolvent, and that it was not made in good faith but to escape his statutory liability ; third, that because of his peculiar relation to the bank and the bank’s condition before and at the time of the purported sale, the same would be ineffectual to relieve appellee of liability because the stock was not transferred on the books of the bank and a certificate signed by the president and cashier deposited with the county clerk of the county in which the bank was located.

Appellee testified that he did not know the failing condition of the bank at any time during the year 1927, and that the sale was not made for the purpose of avoiding his statutory liability, but that he was getting old and was trying to dispose of all the stock that he owned in various corporations, including the bank stock in question; that he assigned the stock to Baber and directed him to dispose of it and deft it to his judgment as to terms and price. Appellant insists that, under the circumstances of the case, the appellee cannot be heard to deny knowledge of the condition of the bank, and that all the circumstances of the case conclusively show, notwithstanding appellee’s statement to the contrary, that the sale was a mere subterfuge on the part of the appellee to escape liability, and that appellee is not within the rule laid down in Taylor v. McKennon, 178 Ark. 223, 10 S. W. (2d) 360, because in that case the undisputed facts show that the stock was sold at a time when the bank was solvent, and there was no suspicion of fraud in the transaction. McKennon was not an officer or director of the bank, and he received full value for his shares of stock, the sale having been made approximately a year and a half before the bank was closed. The court there held that, under those circumstances, McKennon was not liable because the transfer was not made in conformity with § 686 of the Digest.

But it is insisted that the case last cited has no application to the case at bar because of the essential dissimilarity of the facts, both as to the condition of the bank and the relationship that sellers of the stock sustained to the bank; that under the facts in the instant case the law will impute to the appellee knowledge of the condition of the bank, which, considered with the circumstances attending the transfer of the stock by the appellee to Baber and the latter’s delay in making the sale, and the price for which the stock was sold, the time of the sale to Moore and the condition of the bank prior thereto conclusively show lack of good faith in the transaction — so much so as to prevent the escape of appellee from liability. There are a number of circumstances appearing in the record which bear upon the contention of the appellant as above stated, which we deem it unnecessary to mention as we prefer to place our decision on the fact that there was, indeed, no completed sale made by the appellee to Baber, or by Baber to Moore, and that appellee was in fact the owner of the stock in question on the 5th day of January, 1928.

Appellee, while stating in answer to a question, that he had made an outright sale to Baber in May, 1927, immediately corrected that statement, and the effect of his testimony was that there was no sale in fact to him but that the transaction was merely to enable Baber to more readily dispose of the stock to another. Therefore, from May, 1927, down to the 29th day of December, 1927, appellee was the owner of the stock which was assigned to Baber, and which was in his possession only for the purpose of its disposal, and in his dealings with Moore, Baber merely acted as the agent of the appellee, being clothed by the latter with authority to deal with the stock and make such terms with respect to the sale thereof as if he were in fact the owner. So, whatever deal was made by Baber with reference to the sale to Moore would be binding on the appellee. Baber did not testify in the case, there being but one witness who testified regarding the sale of the stock on December 29 to Moore, and that was Moore himself. This testimony was not disputed by any other testimony in the case, and we must accept it as true. According to that testimony, the sale was not to be a completed contract, or the notes executed evidencing the purchase price a binding obligation, unless and until Baber had the necessary certificate of transfer issued by the bank officials and such disposition of it made as to meet the requirements of law and proper record made on the books of the bank. He failed and neglected to comply with any part of this agreement, which was a condition precedent to the completion of the sale of stock.

The rule is that in sales of chattels the intention of the parties shall govern as between them, and they may prescribe the terms upon which a sale shall become a completed transaction and name the conditions which must be met before the same becomes a finality. The test as to whether or not there was a completed sale in this case is, could the appellee under these facts enforce the payment of the notes by Moore, the alleged purchaser of the stock? This court, speaking through Mr. Chief Justice Hill in the case of Graham v. Remmel, 76 Ark. 140, 88 S. W. 899, 6 Ann. Cas. 167, approved and adopted the rule announced in Burke v. Dulaney, 153 U. S. 228, 14 S. Ct. 816, where, commenting on the effect of the evidence offered, it was said, it “tended to show that the written instrument was never in fact delivered as a present contract, unconditionally binding upon the obligor according to its terms from the time of such delivery, but was left in the hands of Dulaney, to become an absolute obligation of the maker in the event of his electing, upon examination or investigation, to take the stipulated interest in the property in question. In other words, according to the evidence offered and excluded, the written instrument, upon which this, is based, was not — except in a named contingency — • to become a contract or promissory note which the payee could at any time rightfully transfer. Evidence of such an oral agreement would show that the contingency never happened, and would not be in contradiction of the writing. It would prove that there never was any concluded, binding contract, entitling the party who claimed the benefit of it to enforce its stipulations.”. This now seems to be the settled rule. Barr C. & P. Co. v. Brooks, 82 Ark. 219, 101 S. W. 408; Kimbro v. Wells, 112 Ark. 132, 165 S. W. 645; Cochran v. Shull, 115 Ark. 229, 170 S. W. 997; Inman v. Quirey, 128 Ark. 605, 194 S. W. 858.

Applying this rule to the facts attendant upon the sale as disclosed by the undisputed testimony of Moore, we hold that the sale never became a completed contract, that the notes were void and uncollectable, and that the appellee was the owner of the stock on the date that the doors of the bank were closed, and therefore liable for the assessment made by the Bank Commissioner. It follows that the judgment of the court below is reversed, and the cause remanded for further proceedings in conformity to law and not inconsistent with this opinion.


source: Caselaw Access Project

author: Butler, J.

license: Public Domain

text:
    Rural Special School District No. 21 v. Common School District No. 87.
    Opinion delivered February 23, 1931.

      Reed d Beard, for appellant.

      Trimble, Trimble d MeCrary and O. E. Williams, for appellee.
   Butler, J.

On the 28th day of March, 1930, a petition for the consolidation of Rural Special School District No. 21 with Common School District No. 87 of Lonoke County, after the required notice had been given and proof thereof made, was filed with the county board of education of said county. Thereafter, on the date of the hearing- thereof, April 12,1930, there were three other petitions filed affecting district No. 87, one praying- that, in the event it was found that district No. 87 should be abolished, or that its boundary lines be changed, certain named 'sections thereof be detached and annexed to Special School District No. 10, alleging that it was for the best interests of the patrons and school children residing on said land and of all parties affected that the same be annexed to Special School District No. 10, and concluding with the prayer that the boundary lines of district No. 87 be changed and the territory named annexed to said district No. 10. Another asking that certain other sections of district No. 87 be detached and annexed to Common School District No. 92; the third, that the other parts of district No. 87 be annexed to Common School District No. 90. No notice of these three petitions for the change of the boundary lines of district No. 87 and the annexation of its parts to Special School District No. 10 and Common School Districts Nos. 90 and 92 was given. On April 12, 1930, the petition for the consolidation of Common School District No. 87 and Special School District No. 21 was presented to the board for its action, as were also the other petitions. The board ignored the last three petitions filed and made an order consolidating districts Nos. 21 and 87 as prayed. An appeal was taken to the circuit court, and at the hearing all of said petitions were considered. The court heard the case on said petitions and testimony introduced on behalf of the appellants and the appellees and the following- stipulation of counsel: “It is admitted by all parties hereto that a majority of the electors of Rural Special School District No. 21 and Common School District No. 87 have signed the petition herein for a consolidation of said districts, but that only two or three of the signers of the petition of those who live in Common School District No. 87 are qualified electors, said latter petition containing 24 names; and that the respective petitions from Common School District No. 87, Common School District No. 90, Common School District No. 92, and Rural Special School District No. 10, contain.................names, and are a majority of the qualified electors from said districts as to the territory affected under these petitions.”

The court thereupon rendered judgment, which, omitting formal parts, is as follows:

“■Since the school is going to maintain a bus to transport the children to and from school, who are located in sections 11, 12 and 13, the court finds that district No. 10 is a party to this lawsuit and has a graded school, and the testimony shows that they are not overcrowded, and it is for the best interest of Special School District No. 10 to have 'sections 29 and 30 and the south half of sections 19, 20 and 21. The court further finds that district No. 90 is a party to this lawsuit, and the undisputed evidence shows that the children who live in sections 11 and 12 are unable to be transported to Central High, nor to district No. 10, and it would be to the best interest and benefit to the people who live in these sections to join over in district No. 90. The court further finds under the undisputed testimony that the children who live in sections 13 and 14 could not be transported to Central High on account of the high water, and they are not attending district No. 92, and it would be to the 'best interests that they be annexed to No. 92. The court further finds that the majority of the parties who are qualified electors of School District No. 87 are opposed to going into district No. 21, and it would be to the best interest of district No. 87 to remain like it is. The court further finds that district No. 21 is overcrowded, and, unless you can agree to the division, the court finds it is to the best interest of the districts and the territory as a whole, and the persons thereof, that district No. 87 be not annexed to district No. 21, and that No. 21 and No. 87 remain like they are, and that the action of the Lonoke County Board of Education in, by its order, changing the boundary line between Rural,Special School District No. 21 of Lonoke County, Arkansas, and Common School District No. 87 of Lonoke County, Arkansas, so as to embrace and include in its entirety all the territory of Common School District No. 87 within the boundaries of Rural Special School District No. 21 is arbitrary and unreasonable.”

To reverse the above judgment this appeal has been prosecuted.

1. It may first be said that the effect of the several petitions for the change of the boundaries of district No. 87 and attaching parts of its territory to school districts Nos. 10, 90 and 92, respectively, if granted, was to dissolve and dismember district No. 87.

“The county board of education shall have power to dissolve any school district now established or which may hereafter 'be established in its county, and attach the territory thereof in whole or in part to an adjoining district or districts, whenever' a majority of the electors residing in such district shall petition the court so to do.” Section 8869, Crawford & Moses’ Digest.

“When such dissolution is proposed, notice shall be given by those proposing the same by posters in four public places in the district. Such notices shall be posted thirty days before the meeting of the board at which such petition is proposed to be presented.” Section 8870 Ib.

The compliance with § 8870, supra, as to notice, is jurisdictional, and, as no notice was given, the board properly ignored the three petitions last filed. Rural Special School Dist. v. Baker, 144 Ark. 397, 222 S. W. 732; Mitchell v. Directors Special School Dist., 153 Ark. 50, 239 S. W. 371; Acree v. Patterson, 153 Ark. 188, 240 S. W. 33.

Since a majority of the qualified electors of the territory embraced within the 'boundaries of district No. 87 and district No. 21 signed the petition and due notice of its presentation to the county board of education was given, the board acquired jurisdiction to hear the same. It appears that no testimony was heard or offered before the county board, but it had the power, nevertheless, to make the order, which is valid unless it is shown that the order was an abuse of its discretion.

It would hardly be possible to create a school district or to change its boundaries so as to give equal convenience to each child residing therein. Some must necessarily be further removed from the school than others, not all the ways from the home to the school would be alike, and in matters of schools, as in all the other affairs of men, some must suffer for the common good. The primary object for the creation of school districts is to give such educational advantages as will tend to a diffusion of knowledge and the growth of intelligence among all classes, and all considerations should be secondary to this; and it is this which the lawmakers contemplated when, in providing for the change, formation, or consolidation of school districts, it was stipulated that this should be done in a manner that ‘ ‘ would be for the best interest of all parties affected.” In these matters the rights of everyone must be respected, and no one should be unncessarily inconvenienced or oppressed, and whenever any district is created or consolidated with another, or its boundaries changed, the county board of education may not ‘4 greatly inconvenience, oppress or outrage any parties residing in any part of the territory. The true interpretation of the statute is that the wishes and convenience of a substantial majority of the whole territory should be respected if, in doing so, it would not greatly harm the other parties affected.” Bledsoe v. McCowan, 181 Ark. 584, 26 S. W. (2d) 900, and cases there cited.

Applying the principles announced to the evidence, we are unable to see how it supports the findings of the learned trial judge that the action of the county board of education was arbitrary and unreasonable. It is true that a number of witnesses testified that some of the children residing* in district No. 87 would be greatly inconvenienced by the consolidation of that district with district No. 21, and that school districts Nos. 10, 90 and 92 would be greatly benefited by the annexation of the territory of district No. 87 to these districts. The school for white children in district No. 87 as maintained consisted of a one-room school house conducted by one teacher, having an attendance of from eight to fifteen children. The school in district No. 21, called Central High, is composed of a number of commodious modern school buildings with all of the necessary equipment, having* thirteen teachers, with grades running from the primary up to and including a high school course, it being known as a Class A school, and its graduates admitted to the State University without examination. In comparing the advantages of these two schools to a child, two of the witnesses for the appellees testified that it had much better advantages in the former school than in the latter. However, this opinion, which may have some justification in the reasons given by the witnesses, seems to run counter to the trend of modern thought, and certainly would not warrant the assumption that the board was arbitrary and unreasonable in holding to a contrary view.

On behalf of the appellant, it was shown that there was a highway running across the territory of district No. 87 to the school in district No. 21, on which highway buses for the transportation of children might be, and were, operated, and that the time required to transport the children from district No. 87 to the school in district No. 21 was from fifteen to thirty minutes. It was also shown that about two miles was the greatest distance any of the children had to walk to reach the highway,-and that shelters were to be erected to be used by the children while awaiting the arrival of a bus; that the attendance of children from the territory of district No. 87 to the school in district No. 21 had been greater since the consolidation of the district than the attendance at the school in district No. 87 before such consolidation.

District No. 87 had no outstanding indebtedness, while district No. 21 had an outstanding’ indebtedness of $34,000, which had been incurred in the erection of school buildings. It was shown, however, that the revenue exceeded the current expenses which included the incidental expenses, teachers’ salaries, and interest on bonds, and from, the excess revenue the school authorities had been able to retire several thousand dollars of the outstanding bonds. One of the complaints made by the witnesses for the appellees was that the neg’ro school in district No. 87 had been reduced from a six months’ to a five months’ term, but it was also stated by these witnesses that the person principally interested had been promised that the same ldnd of a school for the negroes should be maintained as had been before.

Prior to the consolidation, district No. 87 had only a ten-mill levy, and it appears that fear of an increase in the tax rate was one of the principal reasons for the circulation and presentation of the three petitions filed before the county board after the first petition for consolidation. It was the opinion of the trial judge and one of the reasons given for his judgment that the school in district No. 21 was overcrowded. While a great number of children attended that school, we have been unable to discover the evidence upon which this opinion was based, and, if the entire school population of district No. 87 should regularly attend the school in district No. 21, it could not greatly augment the number, for these were only fifteen.

The county board of education, with the advice and information furnished it by the county superintendent of schools, has been deemed by the Legislature the tribunal must competent to pass on such questions as are here presented, and in reviewing its action every legitimate presumption must be indulged in to sustain its orders, and upon those who would have same vacated for an abuse of discretion rests the burden of establishing it. We are of the opinion that under the evidence adduced in this case it cannot be said that the county board acted arbitrarily within the rule before stated, and therefore the judgment of the trial court is reversed, and the cause remanded, with directions .to affirm the order of the county board of education.


author: Smith, J.

text:
    Boydstun v. Condray.
    Opinion delivered March 2, 1931.

      Gibson d Burnett, for appellant.

      J. M. Brice and C. E. Condray, for appellee.
   Smith, J.

Appellant, a citizen and taxpayer of Arkansas County, brought this suit December 23, 1930, against the incoming and outgoing county judge and county clerk of that county and certain persons who were designated as courthouse commissioners, to restrain them from letting a contract to construct a courthouse in the southern district of Arkansas County.

Testimony was heard by the court supporting the allegations of the complaint and answer to the following effect. In November, 1927, the levying court of Arkansas County adopted a resolution authorizing the construction of a new courthouse on the site of the old one, and authorizing the expenditure of a sum not exceeding $50,000 for that purpose, payable $5,000 per annum. Thereafter, at the January, 1928, term of the county court, commissioners were appointed to execute this order, and they employed an architect to prepare plans for the building, and paid him $350 for that service.

The revenues of the county are sufficient to make the annual payment of $5,000 for the courthouse and still leave enough revenue to meet the other necessary expenses of the county’s government. The commissioners have not let a contract for the building of the courthouse, but have matured their plans and are about to let a contract, and will do so unless they are restrained. No election has been had on the question of building the courthouse as required by amendment No. 15, adopted at the general election in 1928, whereby counties were authorized to build courthouses and jails and to issue bonds to pay therefor.

The court below declared the law to be that amendment No. 15 did not apply to the facts of this case, for the reason that the construction of the courthouse had been authorized in the manner provided by law before amendment No. 15 was adopted; and this appeal has been prosecuted to review the decree dismissing the complaint as being without equity.

In the case of Carter v. Cain, 179 Ark. 79, 14 S. W. (2d) 250, certain persons, who had been appointed commissioners to erect a courthouse and jail in Woodruff County, reported to the county court on November 30, 1928, that they had previously procured a lot and had prepared plans and specifications for the courthouse and jail, and the commissioners were then ordered by the county court to proceed with the execution of their plans. Thereupon a citizen and taxpayer brought suit to enjoin this expenditure, upon the allegation that no power existed to make a contract of this character until a vote of the citizens of the county had authorized it as required by amendment No. 15, there referred to as amendment No. 11, Applegate’s Annotated Constitution, page 235.

We there reviewed cases which had construed the amendment referred to as No. 11 (the correct number of Avhieh appears to be No. 8, Applegate’s Annotated Constitution, page 219), prohibiting the counties, cities and toAvns of the State from increasing their existing indebtedness, in which cases Ave had held that a county might distribute the payment of the cost of a courthouse or jail over a period of years, provided such payments, together Avith the other necessary expenses of government, did not exceed the annual revenues of the county. We there said: “After the court had construed this amendment No. 11 to mean that a county could go in debt for courthouses and jails, the people then adopted amendment No. 17, vesting the authority and right to construct courthouses and jails and to levy taxes to pay for them, in the qualified electors of the county. Amendment No. 17 Avas evidently adopted for the very purpose of meeting the decision of this court and accomplishing what they thought was accomplished by amendment No. 11, when adopted. That is, to prevent counties from going in debt, and provide a method for building and paying for courthouses and jails. But it is insisted that there are two methods now. We do not agree to this contention.”

The effect of the decision in Carter v. Cain, supra, is that, if a county wishes to erect a courthouse or jail, and finds it necessary to distribute the payment of the cost over a period of years, authorization so to do must be obtained at an election in Avhieh the question is submitted to the electors as required by amendment No. 15.

It is insisted, however, as Avas decided by the court below, that amendment No. 15 does not apply to the facts of this case, for the reason that the construction of the courthouse was authorized by the leA^ying court before the amendment was adopted. Such also appears to have been the fact in the ease of Carter v. Cain, but, whether this was so or not, it Avas decided in Carter v. Cain that amendment No. 15 deprived a county, after the adoption of the amendment, of the right to contract for a courthouse or jail for which it could not pay out of current revenue except after an election at which the electors had authorized that action.

It is not alleged or shown that the commissioners here had let a contract before the adoption of amendment No. 15; indeed, such a contract has not been let even yet. We have here no question of the validity of a contract let before the adoption of amendment No. 15. We have only the authorization of such a contract by the levying court. But before the power thus conferred was exercised, it had been withdrawn by amendment No. 15, and it no longer exists.

The commissioners are therefore without authority to proceed to let a contract to erect the courthouse, no election having been held and the county being unable to pay for the building without increasing its indebtedness.

The decree of the court below will therefore be reversed, and the cause will be remanded, with directions to make the restraining order perpetual, as prayed.


text:
    Nash v. Pendleton.
    Opinion delivered March 2, 1931

      Walter L. Brown and Donald F. Brown, for appellant.

      Marsh, McKay $ Marlin and Neill G. Marsh, Jr., for appellee.
   Smith, J.

This suit was brought by -appellees to restrain appellants from obstructing College Avenue, a street in the city of El Dorado. The temporary restraining order which was granted when the complaint was filed was made permanent on the final submission, and this appeal has been prosecuted to reverse that decree. The essential facts out of which the litigation arises are substantially stated in the opinion in the case of Gaddy v. Pendleton, 171 Ark. 878, 286 S. W. 1025, and need not be repeated.

Pendleton was the plaintiff in that case, and in this. In the first ease he alleged that he had bought lots in the Ouachita subdivision to El Dorado, and that Gaddy had closed Murphy Avenue and Reid 'Street in this subdivision, which streets had been dedicated to the use of the public by the filing of the plat of Ouachita subdivision by J. J. Hudson, as trustee. The circumstances under which and the purposes for which the plat had been filed are fully stated in the former opinion.

We there said, quoting from 6 Words & Phrases, page 5403, that ‘ ‘ a plat is a subdivision of land into lots, streets, alleys, marked upon the earth, and represented on paper in such a way that the streets, lots and blocks can be identified,” and we held that, under this definition of a plat, the plat of Ouachita subdivision, there offered in evidence, was void as being a mere picture, which failed to describe the land involved or to locate or show the size of the lots, streets or alleys embraced therein or to definitely locate the survey of the subdivision with reference to the quarter section of land in which it was located.

In the instant case Pendleton and another property owner in Ouachita subdivision alleged that appellants are obstructing College Avenue in this subdivision. College Avenue is parallel with Murphy Avenue and one block from it, and both streets are intersected by Reid Street. It is therefore insisted that the opinion in the former case is decisive of the instant case.

We do not think so. The eases are similar, but in the instant case we have additional proof in regard to the plat, and we have a different plat. The original plat of the survey of this subdivision, which was filed in the office of the circuit clerk and recorder but never recorded prior to the institution of this suit, has been discovered and was offered in evidence at the trial from which this appeal comes, but was not in evidence in the former case. The plat introduced in this case meets the objections to the plat offered in the former ease which induced us to hold that it was void for indefiniteness. The new plat shows that it was filed with the city council on November 9, 1909, and adopted as the official plat of that portion of the city on the same day. As we have also said, it was filed with the circuit clerk and recorder, but not recorded. This plat ties to Government corners, which are shown on the plat, and it shows the scale to which it was drawn, so that the width and length of all the streets and alleys in the subdivision, as well as the boundaries of every lot and block and the size thereof, may be ascertained from an inspection of the plat.

As appears from the opinion in the former case, in which the present appellee was a party, all parties derive title from M. G. Murphy, the title of the defendants— appellants here — having been acquired in March, 193.9, whereas the title under which appellees’ claim rests upon a deed from Murphy executed prior to that date.

The court below found the fact to be that the portion of 'College Avenue in question is shown to be a part of said street on the plat of the survey thereof filed in the office of the circuit clerk and recorder of Union County on November 9, 1909. The testimony supports the finding. The map now before us, unlike the one relied upon in the former case, is sufficiently definite to locate the property comprising this subdivision and do define the boundary lines of College Avenue and the width thereof. The filing of this plat and the sale of lots with reference thereto constitutes an irrevocable dedication of the streets and alleys shown thereon. Holthoff v. Joyce, 174 Ark. 248, 294 S. W. 1006.

It was also contended that the public had, through long use of College Avenue, acquired a right by prescription to continue its use; but it will be unnecessary to consider this question, as we hold that the right was acquired by dedication. ,;i

It follows, therefore, that the deoree of the court below is correct and must be affirmed, and it is so ordered.


author: Smith, J.,

text:
    Alcorn v. Alcorn.
    Opinion delivered March 2, 1931.

      C. T. Carpenter, for appellant.

      Thomas W. Hughes and Allen Hughes, for appellee.
   Smith, J.,

(after stating the facts). Many cases cited in the brief of counsel for appellee and cross-appellant support the statement of law found in 46 C. J., page 1261, at § 38 of the chapter on Parent and Child, to the effect that a father who is able to do so is bound to maintain and educate his children at his own expense, although the children may have property of their own sufficient for the purpose. A number of cases are cited in the note to the text which support it. This duty is said, in 20 R. C. L., page 622, at § 30 of the chapter on Parent and Child, to be correlative to the father’s right to the custody, control and earnings of his minor child.

The first question of fact appears, therefore, to be whether Mr. Alcorn possessed the means personally to support and educate his son. There was no exception to the administrator’s settlement putting this question specifically in issue, but enough testimony was offered on this question to make it appear that he was not, and the court below so specifically found. Mr. Alcorn testified that he was not, and there was no contradiction of this testimony except as hereinafter stated.

Mr. Alcorn was entitled, as tenant by the curtesy, to appropriate to his own use the rent of both the Arkansas farm and the Memphis home. Mrs. Alcorn died before the passage of act 149 of the Acts of 1925, page 441, abolishing curtesy in this State. Day v. Burgess, 139 Tenn. 559, 202 S. W. 911; Schaffler v. Handworker, 152 Tenn. 329, 278 S. W. 967. The amount of income from this property is unimportant, therefore, except for the purpose of determining whether Mr. Alcorn had the means from this or any other source to support himself and to support and educate his son.

Mr. Alcorn testified that he did not have, and there is no testimony to the contrary with this exception. He testified that after the death of his wife he rented out the residence in Memphis, and that he received from $75 to $85 per month as rent. But he also testified that the house was not always rented, nor was he always able to collect the rent when he had a tenant. He was, of course, under the duty of paying the taxes, and he was also required to maintain repairs to preserve the rental value-of the property, and may also have paid insurance and have incurred other expense, although, as we have said, this feature of the case was not fully developed, and no attempt was made to show that Mr. Alcorn had not performed his duty in these respects.

The farm in Arkansas had been rented for the year in which Mrs. Alcorn died for $1,500, of which $500 was paid in advance and $400 additional during Mrs. Alcorn’s last illness, leaving only $600 due as rent when she died. Mr. Alcorn testified that about $140 or $160 of this balance was not collected, and that out of the balance actually collected he paid a note for $250 signed by both himself and his wife, so that the net rent collected that year amounted to only about $210 after Mrs. Alcorn’s death, with no account taken of taxes, repairs, and expenses of that character. He further testified that the rental value of the farm diminished, and we gather from his 1 estimony that the farm has been practically abandoned and some of the houses thereon nailed up, and that he had no sufficient means to support and educate his son, and that he is now attempting in a small way to farm in Mississippi

The testimony appears to us to be of such a character as to be insufficient to support a finding that Mr. Alcorn possessed the personal means to support and educate his son, and, this being true, authority existed under the law to use such portions of the minor’s estate as were necessary for his support and education.

The law is thoroughly well settled that the administrator, as such, has nothing to do with the support and education of the minor children of his intestate, and, if nothing more appeared in this case than that the administrator had done so, then he would have no right to make this charge against the estate of his intestate. Stuckey v. Stephens, 115 Ark. 572, 171 S. W. 908, Ann. Cas. 1917A, 133; Campbell v. Clark, 63 Ark. 450, 39 S. W. 262.

It appears, however, that the administrator applied to and received from the probate court authority to expend money in excess of the minor’s income for his support and education. This order was, no doubt, made pursuant to the authority conferred by § 92, Crawford & Moses’ Digest, which reads as follows: “In all cases where minors when they arrive at their majority will have any estate due them, but have no guardian, the court having jurisdiction of the matter may, at its discretion, make an order directing the administrator or other person having control of the estate due, or that will be due, to such minor, to pay over, from time to time, such amount as the court may think proper for the support and education of such minor.” This statute does not contemplate that an administrator may be authorized to convert a minor’s estate into cash and make such use of it as he thinks proper for the support and education of the minor, and, although the order of the probate court, quoted above, directs the administrator to apply the proceeds of the sale of the stock,'“or so much thereof as is really necessary, to maintenance and education of said minor,” the court did not, and could not, abandon its control over the estate. The administrator misinterpreted the effect of this order. He should, from time to time, have received orders from the probate court as to what expenditures were proper. Had he done so, he would have been protected. Failing to obtain this authorization, he made expenditures for the purposes stated at his peril and subject to the right of the court to review them when he did make a report thereof. Neither an administrator nor a guardian may expend a minor’s estate in this manner. The hand of restraint should be laid upon the minor, and the improvidence into which the minor’s inexperience and youth might lead him be averted.

We are therefore of the opinion that, although this young man has no guardian, but does have a remainder interest in both the Arkansas and Memphis property, subject to his father’s curtesy, his expenditures, even for the purpose of maintenance and education, should have been controlled and made under the direction of the court, and made in conformity to his station in life and the value of his estate.

As there was no specific authorization of these expenditures, they were, as we have said, made at the administrator’s peril, and the merit of each of the items for which the administrator asks credit is now subject to review. The court below did not make this review, for the reason that in the opinion of the court none of them were proper credits.

We do not review the various items included in the settlement, as the testimony concerning them has not been fully developed, and the matter should first be passed upon by the court below after hearing such additional testimony as may be thought relevant and necessary. We merely say, for the guidance of the court below, that, in passing upon the question discussed, credit should be allowed only for such expenditures as were in keeping with the young man’s station in life and the value of the estate.

We may say also, in this connection, that the expenses of the young man should be considered with reference to the school which he attended, rather than some other school which may have been cheaper, for the reason that he had been placed in this school in the lifetime of his mother from whom his inheritance comes.

Upon the remand of the case we are of the opinion that the following legal principles should be applied in determining- whether the administrator should be charged interest on the money which came to his hands.

If it be found, as the testimony before us appears to indicate, although the fact is not as fully developed as it may be, that the administrator placed the money to his credit as administrator and made no personal use of it, he should not be charged with interest on it. In the case of Jacoway v. Dyer, 50 Ark. 217, 6 S. W. 902, it was held to be the duty of an administrator to report collections promptly, to the end that demands against the estate might be paid, and that when he failed to do so interest would be charged. Here, however, there were no demands to be paid, and, if the administrator was holding the money intact except as expenditures required its disbursement, the balance to be paid over to the young man when he arrived at ag-e, and he was eighteen years of age when his mother died, we think no interest should be charged. Sections 71 and 72, Crawford & Moses’ Digest.

As to the funeral expenses, it may be said that this question was considered in the case of Beverly v. Nance, 145 Ark. 589, 224 S. W. 956. The facts there were that an item of this character was presented to the probate court, approved, allowed and classified, but the husband of the deceased, who was also the administrator of her estate, paid this and other claims with his personal funds, and, in disallowing credit for this item paid by the husband with his personal funds, we said: “Incident to the duty of a husband to maintain his wife is the corresponding duty of paying for her reasonable burial expenses.”

Without review of the authorities on the subject, we follow the 'rule announced in the Beverly case, supra, that, if the husband pays the funeral expenses, he cannot recover them from his wife’s estate. But it is to be remembered that in the Beverly case the facts were that the husband was not only able to pay the funeral expenses of his wife, but had done so with his own funds, and his attempt was to be reimbursed. Here the testimony appears to be undisputed that the administrator not only did not pay the funeral expenses with his own funds, but was unable to do so. We have here the specific finding made by the court below that “At the time of Mrs. Alcorn’s death her husband had no property of his own, and there was little cash on hand, and for that reason the court finds that the administrator was entitled to pay the funeral expenses out of the wife’s estate.” Such facts entitle the husband to eharg'e the funeral expenses to the estate.

The judgment of the court below will therefore be reversed, and the cause remanded, with directions to restate the administrator’s account in accordance with the principles herein announced.


author: Humphreys, J.

text:
    Minich v. Bass.
    Opinion delivered March 2, 1931.

      Rowell é Alexander and W. A. Leach, for appellant.

      G. W. Botts, for appellee.
   Humphreys, J.

This suit in unlawful detainer and for the possession of lots 13 and 14 in block 14 in the incorporated town of Grillett was brought in the circuit court of Arkansas County, Southern District, by appellant against appellee. It was alleged in the complaint that appellee entered into possession of this property under a verbal lease with the then owner, W. B. Sanders, trustee, for the term of five months beginning July 1st and ending December 31, 1929, at a monthly rental of $25, and, although notified of the purchase of the property by appellant and to vacate same in thirty days after the termination of the lease, he continued in the possession and refused to pay rent.

Appellee filed an answer denying that he was in possession of the property under a rental contract, but, on the contrary, was occupying same under an oral contract to purchase from W. B. Sanders, trustee, which antedated appellant’s purchase of the property.

The cause was tried to a jury upon the pleadings and testimony resulting in a verdict against appellant, and a consequent judgment dismissing his complaint, from which is this appeal.

Said lots, together with other property in and around Gillett, was owned by appellee prior to' his failure in business. His creditors instituted bankruptcy proceedings against him, and, during the pendency thereof, an arrangement was entered into between him and them whereby they would buy in all his property in the name of W. B. Sanders, trustee, and then resell it and a large stock of merchandise to him for $30,000. This arrangement was perfected, and under the agreement appellant paid his. creditors about $18,000, leaving* a balance due them of over $12,000. On account of a depression in business, he was unable to pay them as rapidly as desired, so, in order to close the matter up and put it in tangible form, said creditors sold the lots in question and other real estate to appellee for the balance due them, payable in monthly installments. The contract of sale was reduced to writing on April 2, 1928, and appellee took possession of the real estate, personally occupied the business buildings on said lots and rented the other real estate to third parties. He paid the installment note due May 1, 1928, but made default in the payment of the others subsequently falling due. On or about July 1, 1929, the contract was terminated by mutual agreement, the notes being returned to appellee and the contract to W. B. Sanders and, by agreement, appellee remained in possession of all real estate, and there is conflict in the testimony as to whether he retained the possession under lease or whether under a new contract of sale and purchase thereof.

The testimony introduced by appellant was to the effect that appellee rented the lots from W. B. Sanders, trustee, for a monthly rental of $25 per month, and that he agreed to collect the rents on the other real estate and remit same to W. B. Sanders; that he did collect the rents on the other real estate and remitted same, together with his own rent, to W. B. Sanders until January 1, 1930, after which time he refused to remit the rents collected or to pay his own rent.

The testimony introduced by appellee was to the effect that he remained in possession of all the real estate after the termination of the written contract under an oral contract for the sale and purchase thereof for $12,000, the balance of his indebtedness to his creditors, with the understanding that he would pay as much as he could per month, in addition to the rents collected on the other property, upon the indebtedness and would negotiate a loan and pay the remainder on or before January 1, 1930; that he remitted certain amounts thereafter to W. B. Sanders, as trustee, until the 1st day of January, 1930, together with a statement showing the sources from which the amounts were received, and in the meantime notified W. B. Sanders, trustee, that he had obtained a loan from the Building & Loan Association and wanted to close the matter up with them; that he received no response from them relative to the matter.

Appellant introduced three of the statements appellee sent with the monthly remittances. They are alike in form, so only one of them will be set out herein. It is as follows:

“Bass & Sons
“Gillett, Ark.
Bent Acet., Oct. 22-29
T. P. Bass, Oct. 1 to Nov. 1...........................................$25.00
I. J. Bollison, Sept. 15 to Oct. 15........................ 25.00
E. T. Leslie, not paid.
Ira Beasley, Sept. 15 to Oct. 15.
House 1 South.......................................................................... 10.00
House 2 North, vacant.
“Cashier check for same.
“T. P. Bass.
“Think I can get the Leslie check this week and send to vou.
“T. P. Bass.”

"When asked on cross-examination, if the amounts were payments upon the indebtedness he owed his creditors instead of rent for the use of the property, why it appeared as a rent account on the statement, he replied that he used printed rent statements in sending- the remittances that Bass & Sons had used in their business prior to their failure.

The firm of Bass & Sons was adjudged a bankrupt on December 6, 1922. On the 19th day of March, 1923, the trustee in bankruptcy conveyed the above described real estate, along with other properties, to W. E. Collier, one of the creditors. On the 8th day of May, 1923, W. E. Collier and wife conveyed said property to W. B. Sanders, as trustee. On the 23rd day of December, 1929, W. B. Sanders, trustee, conveyed said property to the appellant.

The only question at issue in the trial court under the pleadings and testimony was whether or not the relationship of landlord and tenant or that of vendor and vendee existed between appellee and W. B. Sanders, trustee. The jury was told by the court to return a verdict for the appellant if it found that the relationship of landlord and tenant existed between appellee and W. B. Sanders, trustee, but, if the relationship of vendor and vendee existed between them, to return a verdict for appellee. As stated before, there was a verdict and judgment for appellee. The sole question therefore on this appeal is whether or not the evidence, viewed in the light most favorable to appellee, is sufficient to sustain the verdict.

Appellant argues that appellee’s testimony to the effect that he was not a tenant of W. B. Sanders, trustee, is wholly discredited by the written statements he made in remitting the monthly amounts under the last agreement. It is true that the statement shows on its face to be one for rents, and, without, any explanation on appellee’s part, would show that he was a tenant and not'a vendee. His explanation, however, was that the statement he mailed to W. B. Sanders each month was made out on an old printed form, for rent accounts that was used by Bass & Sons before they failed in business. The three statements were introduced in evidence and inspected by the jury. The jury evidently accepted the explanation by appellee as true and treated the amounts remitted as payments upon the indebtédness to his creditors and not as rents for the use of the property. In view of the explanation, we cannot say as a matter of law that the statements wholly discredited appellee’s testimony: Treating it as credible, we can say that the undisputed evidence reflects that appellee was a tenant. Appellant also argues that, if full credence be given the testimony of appellee, the contract of sale and purchase was within the statute of frauds and void because there was no change of possession of the real estate when same was entered into between the parties. According to appellee’s testimony, the last agreement was but a continuation of the former written contract for the sale and purchase of the property, so we.think the last agreement was clearly supported by the possession he acquired under the written agreement and retains under the oral agreement. The retention of the possession under the circumstances was tantamount to again taking possession under the oral contract, and was sufficient part performance to take the sale and purchase of the real estate out of the statute of frauds. It would have been a needless and useless ceremony to have moved out and immediately moved back again.

No error appearing,.the judgment is affirmed.


author: Mehaffy, J. McHaney, J.

text:
    Rice & Holiman v. Henderson.
    Opinion delivered March 2, 1931.

      Caraway, Baker & Gautney, for appellant.

      Dudley & Barrett and Huddleston $ Hughes, for appellee.
   Mehaffy, J.

Rice & Holiman is a partnership operating a gin at Lepanto, Arkansas. On December 29, 1928, the appellee, while in the employ of the appellants, was engaged in freeing lint cotton which had hung in the ribs of a breast machine and his hand was caught in the saws and cut off.

In order to perform the duties he was at the time engaged in, it was necessary to raise the breast free of the saws, and this was done by the use of a lever at the right side of the breast machine. The lever was about 18 inches off the floor. ¡By moving said lever to a position on the floor and throwing it into a catch, the breast was raised, the saws disengaged, and the lint cotton could then be freed without coming in contact with the saws. It was necessary to perform this duty several times a day.

At the time of the injury the appellee used the lever in the manner indicated and with a small stick he was engaged in raking out and freeing the lint cotton. Ap-' pellee’s right hand was caught in the machine and cut off.

It is alleged that the appellants were negligent in failing' to furnish a reasonably safe place to work and because of the defective condition of the lever, cogs, and other machinery, and the unnecessary and violent vibration of the power plant, and that this negligence caused the breast to fall, catching appellee’s hand.

Appellants admitted that appellee was in their employ and admitted the injury, but denied all other material allegations in the complaint, pleaded contributory negligence, and that appellee assumed the risk.

Appellee was, at the time of the injury, 23 years old, and testified that he was in the employ of the appellants and did anything he was told to do; that he was not the foreman at the time of the injury; that Mr. Rice, one of the employers, told the employees what to do; he had been employed for some time around gins and had been employed at this gin for about six months; he was receiving forty cents an hour and averaged ten or twelve hours a day. The injury was caused by the gin breast falling on his hand. The gin breast is the place where cotton is separated from the seed. There is a roll and two sets of ribs. The cotton comes between the two sets of ribs on the roll. It was appellee’s duty to take a stick about six or eight inches long and rake this cotton out between the ribs so the seed would pass through the cotton conveyor in the bottom of the ribs. When it gets stopped up, the seed cannot fall out. It was appellee’s job to do this. It was not customary to stop the gin in order to do this work. You just raised the breast up so the saws would not be in the way, and the breast fell on his hand. When you press down on the lever, you raise the breast. It does not stop the saws from revolving, but raises the breast off the saws. The saws keep running but the breast is cleared of the saws. The gin can be stopped by pulling* the clutch out. The lever is about eight or ten inches long* and stood up to the right of the gin breast, and by pulling this lever down to the floor it raises the breast clear of the saws.

Witness testified that there were no saws in the way, but the little piece being worn caused it to trip and fall. The piece witness was looking at was new, had never been used. It fastened on the lever so you can raise the breast up, and when the lever pulls this little piece raises on edge. It, being* worn, set over a little bit, and that caused it to fall. It was rusted and worn and had not been run the fall before then. He had not been warned by the defendants of the worn condition.

A piece of iron exhibited by witness is called a toggle gear. Witness said there was a little vibration, not noticeable, the usual cotton gin vibration. In unchoking the gin after raising the breast, it was necessary for witness to put his hand up between the ribs where the cotton hung between the ribs to keep the seed from coming'out. You could see the toggle gear in place but could not see its worn condition. Witness did not know its worn condition. The breast fell off on witness, throwing him backwards, and his hand was left in the machine. Appellee was an experienced ginner but had had only about six months’ experience with the machinery on which he was injured.

The toggle gear or machinery claimed to be defective was introduced in evidence, and photographs were also introduced. During the time appellee operated this gin, Mr. Rice, one of the partners, was around and saw the wa}?- he did it. He was doing it the same way at the time he got hurt. The part that was defective was the rivet that goes through the toggle. By looking at it you could not tell that it was worn.

Mr. E..M. Perry testified that he had worked around gins, been foreman in charge of gins, and had built gins; operated the Rice & Holiman gin its first season. He testified about the lever and breast and about the toggle gear, and the manner in which the breast was -raised. If the toggle gear was worn, it would not hold perfect, and the vibration would cause it to crash off and cause the gin breast to fall. If the toggle gear was defective, very few people could have detected it.

Dr. Ragan testified as to the extent of the injury.

C. H. Rice, one of the defendants, testified that appellee was employed as a ginner; that he was foreman and in charge of the gin; had a right to do what he thought best; had a right to stop the machinery when he wanted to; it was his duty to repair any machinery needing it. The toggle and lever introduced was the same that ivas on the machine at the time; is still in use, the same toggle. Knew nothing of it being Avom; did not become loose; the rivet could not wear so that the vibration of the gin could cause the breast to fall; had been operating the gin since 1925. If the bolt in the toggle Avas loose, you could ascertain it by working it back and forth in your hands; the bolt being worn would not cause the breast to drop; it could not fall if the lever was pulled down to the floor. If the lever is pulled down to the floor, raising the breast, there is no way the breast can drop except to raise the lever; it is impossible for it to fall. If the breast Avas partly raised, it could have fallen. The breast Aveighs 250 or 300 pounds. It is impossible to eliminate all vibration in the gin. The gin stands rest in concrete foundations. The piece of concrete is 36 feet long, 48 inches wide, and 34 inches deep, solid with a trough in the center for the seed conveyor. The gin stands are bolted to the foundation, the bolts are set into the concrete Avhen it is made. There is very little vibration. This witness’ evidence was corroborated by the evidence of W. B. Holiman and U. S. Holiman.

The engineer, Charles Johnson, was in the building where he could see appellee Avhen he was hurt; was ten or fifteen feet from him. Witness came through and the gin stand Avas choked. He asked appellee if he wanted to shut down and appellee said “No.” Was looking right at appellee when he was caught. Appellee squatted down and put his hand under the gin breast. When it caught him, he pulled back, and, in so doing, pulled the gin breast off; could have stopped the engine in two or three minutes. It is frequently stopped Avhile the gin is being unclioked. Appellee told witness lie did not want it stopped. When the lever and toggle gear are used in raising the breast, you don’t have to shut down the gin. Appellee had a stick in his hand, squatted down and reached under the gin with it; had on a glove.. The injury happened about 10:30 a. m.

Lorraine Jackson testified that what first attracted his attention was that the gin breast fell off and knocked appellee out in the floor. His hand was off then; had to get pliers to get his fingers out of the nozzle.

O. H. Rice was recalled, introduced a number of photographs in evidence and explained the photographs ■and toggle joint. Parts of the machinery were introduced in evidence and exhibited.

The jury returned the following verdict: “We, the jury, find for the plaintiff and assess his damages' in the sum of $1,500, with hospital and doctor’s bills to be paid by defendants.” This verdict was signed by ten of the jurors.

The court thereupon rendered judgment for the sum of $1,745 with 6 per cent, interest from date until paid.

Motion for new trial was filed and overruled, and the case is here on appeal.

It is first insisted by the appellant that the physical facts show there is no defect in the toggles, and the breast could not have fallen had the lever been depressed to the floor, and it is claimed that there is no evidence tending to show that the left toggle was defective, and, unless it was defective, the breast could not have fallen if properly raised. At the time of the injury appellee had been working at this gin for about two weeks. He had been working, however, for the appellants for about six months. He testified that the rivet in the toggle gear was rusty and worn, and that this defect, together with the vibration of the gin, caused the gin breast to fall.

E.' N. Perry, who had worked at this gin breast, and who understood, machinery of this kind, testified that, if the toggle gear was worn, it would not hold perfect, and the vibration would cause it to crash off and cause the gin breast to fall.

It therefore appears from this evidence that the toggle gear might be so worn that, with the slight vibration of the gin, the breast would fall. This evidence is contradicted by appellant’s witnesses, but the question on the conflicting evidence was properly submitted to the jury. The gin breast and toggle gear were also exhibited and introduced in evidence. The jury had an opportunity to and did examine these things.

The undisputed proof shows that this gin had been operated 3 or 4 years, and the appellee testifies that it was not used the season before and was permitted to rust.

While Mr. Perry testifies that, if the toggle gear was worn, as testified by the appellee, it would cause the gin breast to fall; he does not testify that there was any’ defect. He did not know whether there was a defect or not. The only evidence that there was any defect was the evidence of the appellee. He stated that the rivet in the toggle gear was worn and rusty. His testimony, however, also shows that one could not discover this while the machinery was in place, and that he did not know there was any defect until after the injury. He could, of course, only know about the rust and the defect by examining it after the injury. If he did this, his evidence fails to show it. The toggle that he testified about and exhibited was new. He said he was unable to get the original tog'gle gear because it had been removed. There was therefore no evidence that the machinery had rusted or that the toggle gear had become worn and defective by any witness who said he had examined the toggle gear.

This court has many times held that, in order for a servant to recover because of the failure of the master to furnish him with safe appliances or a safe place to work, the burden is upon the complaining party to establish the fact that the appliances or place was unsafe, and also that the master either had notice of the unsafe condition or could, by the exercise of ordinary care, have known of the defect. A master is not required to furnish' an- absolutely safe place to work, but he is required to exercise ordinary care to provide safe appliances and a safe place to work. International Harvester Co. v. Hawkins, 180 Ark. 1056, 24 S. W. (2d) 340.

While it is the duty of the master to exercise ordinary care to provide a safe place to work and safe appliances and his duty to exercise ordinary care to inspect same, and while the servant has the right to assume that the master had performed his duty, it is also true that the master is presumed to'have performed his duty, and no presumption of negligence arises from the mere happening of the accident which caused the injury. It is not sufficient for a servant to show that he was injured .and that the injury resulted from a defect in the machinery; but he must go further and establish the fact that the injury happened because the master did not exercise proper care in' the premises. Bryant Lumber Co. v. Stastney, 87 Ark. 321, 112 S. W. 740; St. L. I. M. & S. R. Co. v. Gaines, 46 Ark. 555; Graysonia-Nashville Lbr. Co. v. Whitesell, 100 Ark. 422, 140 S. W. 592; K. C. Sou. Ry. Co. v. Cook, 100 Ark. 467, 140 S. W. 579; Wheeler v. Ellis, ante p. 133.

While the verdict of the jury is conclusive here on conflicting evidence, if there is any substantial evidence to support it, we think the evidence of the appellee, that he could not discover the defect before the injury, and his failure to testify that he had seen it since that time, is insufficient to support the verdict of the jury. As we have said, he must not only show that the master was negligent, but he must show that the negligence of the master caused his injury.

It was, of course, not the servant’s duty to inspect the machinery, but this was the duty of the master, and the evidence is in conflict as to whether there was a defect. Both the question of the master’s negligence and the contributory negligence of the servant are questions' of fact for the jury.

It is next contended that the court was without authority to add $245 to the judgment, and that the verdict returned hy the jury was improper. The verdict of the jury should have been for a specific amount, but, if the court had added $215 instead of $245, the case would not be reversed because of the form of the verdict. The undisputed proof showed that the doctor’s bill was $215, but there was no evidence whatever as to the amount of the hospital bill. It was therefore improper to add the hospital bill or whatever the item was, making- the difference between $215 and $245.

Appellant' also urges a reversal because the court refused to give instructions Nos. 11 and 12. No. 11 reads as follows: “If you find from the evidence that just prior to the time plaintiff was injured, defendants, through their servant or employee, asked plaintiff to be permitted to stop the machinery until the gin could be cleaned, and plaintiff told said defendant that it was unnecessai-y, and that he could remove the material from the gin without stopping it, and that as a result of such action his hand was caught in the saws of the gin and injured, then you are instructed that he assumed the risk of injury and-cannot recover.”

No. 12 was to the same effect.

Instruction No. 13 reads as follows: “Yon are instructed that if plaintiff was warned not to undertake to clean the choked cotton and seed from the gin while it was running, and that he disregarded such warning and undertook to unchoke said gin while same was running, and that as a result of such action his hand was caught in the saws of the gin and injury resulted, then you are instructed that plaintiff assumed the risk of such injury and can not recover.”

We think the court was correct in its refusal to give these instructions. It was not the duty of the appellee to have the gin stopped in order to unchoke it. H e performed his duty in the usual way, as he had a right to do. The evidence shows that this was the customary way to -unclioke the gin breast, and, while the gin had been in operation 3 or 4 years, there is no evidence that the breast had ever fallen before.

Instruction No. 13 submitted to the jury the question of appellee’s contributory negligence, and the jury were told that if he were guilty of any negligence which contributed to the injury, that he could not recover. This feature of the case, however, was covered by the court’s other instructions which were given.

The court gave instruction No. 8, which is as follows: “If you find that plaintiff in undertaking to free the gin from its choked condition, and that in doing so he was careless and negligent, and that, by reason thereof, he was injured, then he cannot recover, although you may find that defendant was also negligent. ’ ’

The question of assumed risk was also submitted to the jury. When one enters the employ of another, he assumes all the risks or hazards ordinarily incident to the employment, and the master is not liable for injury resulting* to the servant if the injury to the servant was caused by one of the ordinary and usual risks or hazards of the employment; but the servant does not assume the risk of the negligence of the master for whom he works, unless he knows of such negligence.

If there was a defect, as claimed by appellee, which could not be discovered by him in the performance of his duty, but which defect would have been discovered by proper inspection, the failure to discover it would be the negligence of the master*, and the servant would not assume this risk. The appellee was injured, suffering the loss of his right band. Perry swore, as we have said, that if the toggle gear was defective this would cause the breast to fall. The appellee testified that it was defective, but there was no evidence either by bim or any one else that it had been examined after the injury qr at any other time, and the defect discovered or seen. Appellee may have examined the toggle gear and rivet after the injury, but he does not so testify, and since he testifies that he could uot see it before the injury so as to tell it was defective, there was not sufficient evidence to sustain, the verdict.

The judgment will therefore be reversed, and the cause remanded for a new trial.

McHaney, J.

I concur in the. judgment of reversal, but am of the opinion that the case should be dismissed on a ground not discussed in the opinion'of the majority. The undisputed evidence- shows that appellee’s fingers were found in the cotton chute, and the physical fact is that they could not have gotten there unless he had his hand behind the back set of ribs. If he had his hand between the two sets of ribs, his fingers could not have been carried back into the cotton chute. Having voluntarily put his hand behind the back set of ribs to unchoke them, he is bound to have known that he would be injured if he came into contact with the closely revolving saws. He was therefore guilty of contributory negligence in attempting to do so without stopping the gin and assumed the risks of doing so. Ward Furniture Mfg. Co. v. Wiegand, 173 Ark. 762, 293 S. W. 1002.


author: Mehaffy, J.

text:
    Pratt v. Martin.
    Opinion delivered March 2, 1931.

      Hill, Fitzhugh <& Brizzolara, for appellant.

      Warner <& Warner, for appellee. ■
   Mehaffy, J.

The appellee began this action in the Sebastian Circuit Court against the appellant to recover damages for injury to his automobile, alleged to have been caused by the appellant. The appellant is engaged in the automobile, garage, and storage business in the city of Port .Smith.

On the 23rd day of March, 1930, the appellee entered into a contract with the appellant through appellant’s agent, the Ward Hotel, by the terms of which the appellant underto.ok and agreed to take charge of appellee’s Buick sedan automobile and store it at appellant’s garage in the city of Port 'Smith.

Appellant,, through its employee, William Clardy, took possession of said automobile to drive same to appellant’s garage. Instead of driving direct to the garage, the employee of appellant drove about seven miles. He took the chauffeur of appellee, Will Chester, to the colored section of town to get him a room. He thereafter drove the oar of the appellee towards the garage, and, when he reached the intersection of N. 8th and I streets, a collision occurred between the car he was driving, which was appellee’s car, and a car belonging to Mr. Ivy. Appellee’s car was damaged by the collision. Appellee knew nothing about his car being driven anywhere except direct to the garage, and the appellant did not know that his employee was driving the car elsewhere until after the collision.

The Ward Hotel issued the ticket for the storage of appellee’s car -in the regular .course of business for the storage of guests’ cars with appellant. This had been the custom since the hotel commenced business. After the Ward Hotel had issued the ticket, appellant’s employee, Clardy, in the performance of the storage agreement, took possession of the car at the hotel and drove it away. He went first direct to the garage, but, instead of putting the car in storage, he proceeded to drive the car other places without the knowledge of appellant or appellee.

The appellee bases his right to recover on the contract of bailment with appellant. He alleges that there was a contract of bailment for the storage of his car, a violation of this contract, and damages to his car.

There was a jury trial, a verdict for $850, and judgment entered accordingly.

Appellant filed motion for new trial, which was overruled, and, to reverse the judgment of the circuit court, he prosecutes this appeal.

It would serve no useful purpose to set out the evidence in this case. It is undisputed that the employee of the appellant went to the Ward Hotel in the city of Port Smith, got possession of appellee’s car for appellant, and, instead of taking the car direct to the garage, drove about seven miles without the consent or knowledge of appellant, and, on his way returning to the garage the collision occurred which resulted in the damages to appellee’s car. This was after the contract of bailment had been entered into and appellant, through his employee, had taken possession of the car.

The appellant urges a reversal of the judgment, first, because the court refused to give instructions Nos. 9, 10 and 11, requested by him, which would have submitted to the jury the question of whether Clardy, the employee of appellant, was acting within the scope of his employment at the time of the accident. The sole question in this case is whether the bailee for hire may be made to respond in damages to his bailor for a breach of his contract of bailment where the bailee’s employee, instead of delivering the car direct to the garage, took the car for his own purpose without the consent of the bailee, and, while the car was in the exclusive possession of the servant of the bailee for the purpose of performing the contract of bailment, the car was damaged.

In ordinary actions against a master for injury caused by the negligence of the servant, it is well settled that the master is not liable unless the servant was at the time not only in the employ of the master, but was about the master’s business. The master is liable only for the negligent acts of the servant when the acts complained of are within the scope of the employment.

It may be conceded that the courts are not in entire harmony as to whether the limit of the master’s responsibility is determined by the scope of the servant’s authority or by the course of his employment. There are some courts that hold that the bailee is not liable for the negligence of the servant unless 'the act is within the scope of his employment. Other courts hold that, in the action for the breach of contract of bailment, the injured party may recover, notwithstanding the damages done by the servant, the same as if the act had been done by the bailee himself.

As Ave have said, the authorities are in conflict, and it would serve no useful purpose to review them here. The authorities relied on by appellant would justify a reversal of the case if Ave applied the rules applicable to ordinary cases of negligence.

This suit, however, is based on an alleged breach of contract of bailment, and we think the better rule is that the possession of property, held by one as bailee, when confided to the servant of the bailee, so continues for the purposes of the master’s contractual obligation to a third person until the bailee had performed his contractual obligation, and that an act done by the servant which results in the injury to the property of the third person, in the possession of the servant by the authority of the master, is the act of the master, for which the master is responsible upon contractual obligation to such third person, notwithstanding the fact that the particular action causing the injury was done in violation of the master’s instructions.

"When the bailee contracts to take charge of and care for property and the property is damaged while in his possession, the liability of the bailee arises out of the contract. The master himself cannot, by any act or conduct of his own, release himself from the contract or its obligations, and he cannot accomplish by a servant that which he cannot accomplish in his own person. The liability of the master grows out of the fact that the master has failed to do the thing he agreed to do, and, if one enters into a contract to do a certain thing, such as receive property as a bailee for hire, he cannot, by either his own conduct or the conduct of a servant, release himself from liability. The act of the servant is the act of the master.

In an action for tort or negligence, the theory is that the thing done is done in obedience to the master’s will, and an act done by a servant in order to render the master liable, must, be done while the servant is about the master’s business.

In a breach of contract for bailment, the bailee is liable if he does not do the thing agreed to be done, and it makes no difference whether the failure to perform the contract is brought about by the act of the master or his servant.

The Ohio Supreme Court said: “Possession by the servant became ipso facto the possession of the master. When did the possession pass from the master? Can it be said that it rests in the breast of the servant to release his master from contractual liability to a strang-er to the servant by himself becoming unfaithful to his master? If so, the contract of bailment affords the bailor scant protection. If the master be not responsible for the act of his servant, the bailor, for his own security, before entering into such contract, must not only investigate and determine the trustworthiness and financial responsibility of the bailee, but must do the same with reference to each of his servants. The doctrine of respondeat superior makes the master responsible for the tort of his servant done in the performance of the master’s business; and an agent may bind his principal to a third person within the scope of his authority. But neither a servant nor an agent is imbued with power to absolve his master or principal from his contractual obligation to a third person by an act which, if done by the master or principal, would not have absolved him. * * * The reason that the same theories do not apply to the liability of the master for a breach by his servant of a contractual obligation of the master to a third person is that the obligation of the master to such third person does not arise out of the relationship of master and servant, but arises out of the master’s contract from which he cannot by any conduct of his own alone release himself. He cannot accomplish by his servant that which he cannot accomplish in his own proper person.” National Liberty Ins. Co. of Amer. v. Sturtevant-Jones Co., 116 O. St. 290, 156 N. E. 446, 52 A. L. R. 705; Corbett v. Smeraldo, 91 N. J. L. 29, 102 Atl. 889; Employers’ Fire Ins. Co. v. Consolidated Garage & Sales Co., 85 Ind. App. 674, 155 N. E. 533; Maynard v. James, 109 Conn. 365, 146 Atl. 614, 65 A. L. R. 427.

In the last case cited the Connecticut court said: “The argument of the defendants is largely based upon the thesis that they are not liablé for the negligence of the helper because at the time of the accident he was not acting within the scope of his employment. However that may be, their contention overlooks a clear breach of duty which fastens an unquestionable liability upon them. One of the bases of recovery stated in the complaint is that the defendants did not regard their undertaking to store and safely keep the car for the. plaintiff, and the trial court states as one of its conclusions that they did not perform this obligation. * * * We think this case does not involve the question of the master’s responsibility for the tortious acts of his servants. It involves, rather, the question of the master’s liability for breach of his own contract.” In tlie instant case tlie appellant contracted as bailee to safely keep tlie car of appellee, and he cannot, either by his own wrongful act or the wrongful act of his servant, release himself from the obligation of this contract. Bradley v. Cunningham, 61 Conn. 485, 23 Atl. 932, 15 L. R. A. 679; Employers’ Fire Ins. Co. v. Consolidated Garage & Sales Co., 85 Ind. App. 674, 155 N. E. 533.

There are many cases that might be cited which hold that the bailee for hire is liable for a breach of contract of bailment by his servant, although the servant is not acting at the time within the scope of his employment, but we do not think it necessary to cite or review other authorities. The cases decided by this court and ref erred to by appellant are cases where the action was based on the negligence of the servant.

The conclusions we have reached as the ground upon which liability exists makes it unnecessary to discuss any ' other questions.

The judgment is affirmed.


author: McHaney, J.

text:
    Missouri Pacific Railroad Company v. Gilsinger.
    Opinion delivered March 2, 1931.

      Thos. B. Pryor and Thos. B. Pryor, Jr. for appellant.

      A. N. Hill, for appellee.
   McHaney, J.

On September 29,1928, appellee shipped over appellant’s railroad from Charleston, Arkansas, to Kansas City, Missouri, two cars of cattle. The shipment left Charleston about 4 p. m. of that date, which was on Saturday, and arrived in Kansas City in the afternoon of Monday, October 1, too late to be sold on Monday’s market. They were sold on Tuesday, October 2, and in the meantime cattle had declined in price. Appellee brought this suit against appellant to recover damages for negligent delay in transportation, and alleged that the cattle should have been transported to the Kansas City stock yards in time for sale on Monday’s market. He alleged damages in the sum of $172.90, and a trial resulted in a verdict and judgment in his favor for $70.50.

The first assignment of error is that the court refused to direct a verdict for appellant. We agree with appellant in this contention, and it therefore becomes unnecessary to discuss other questions. The only question at issue in the case was that of delay in the delivery of the cattle, and the burden was upon appellee to establish an unreasonable delay by a preponderance of the evidence. We think the appellee failed to prove any unreasonable delay. He testified himself that the cattle arrived in Kansas City at 3:48 Monday afternoon. The schedule clerk for appellant testified that the. two cars arrived at destination at 2 -.30 p. m. on Monday, October 1; that these two cars made schedule time, and in fact arrived at destination a little ahead of time. Proof shows that it was necessary for the cattle to be unloaded en route for feed and rest as appellee had not signed a thirty-six hour release. The proof shows that the cars arrived in Van Burén about eight o ’clock Saturday night ; that they left Van Burén about 2:00 a. m. September 30 and arrived at Coffeyville, Kansas, at 2:30 p. m. the same day where they were fed, watered, rested, reloaded and arrived in Kansas City, as above stated. The undisputed proof shows that appellant had a regular scheduled train, No. 168, due to leave Van Burén 10:15 p. m., arrive at Coffeyville 10:15 a. m. the next morning*, and due at the Kansas City stock yards at about 8 a. m. Monday morning. It will be seen however that, had the cars of cattle in question moved on train No. 168, scheduled as above, they would still have been required to unload at some intermediate point, either at Coffeyville or Ossawatomie, as under the Federal law (45 U. S. C. A., § 71) cattle are not permitted to remain in cars in transit for a greater period than twenty-eight hours unless a waiver is signed. Therefore if the cattle had moved on an earlier train out-of Yan Burén, they could not have reached the stock yards in time for Monday’s market unless a special train had been run, which was not done. The undisputed proof shows that the cattle moved out of Coffeyville on the first available train after being unloaded, fed, watered and rested, as required by law, and that there was no delay in reaching Kansas City.

There is therefore no substantial evidence to support the verdict. The judgment will be reversed, and the cause dismissed.

Humphreys, J., dissents.


text:
    Featherston v. Jackson.
    Opinion delivered March 2, 1931.

      j ohm J. DuLcmey, W. F. Reagan, Alfred Feather ston and O. A. Featherston, for appellant.

      Tom Kidd, for appellee.
   McHaney, J.

Appellee sued appellant for damages done to his automobile in a collision between the two cars caused, as alleged, by the negligence of appellant. Appellee’s son, Harold Jackson, a minor seventeen years of age,' in company with three friends, was driving east on highway 26 to go fox hunting, in his father’s car, without the knowledge or consent of his father, but with the general permission of and without objection from his father. Appellant was driving west, on said highway. Both cars were traveling at about the same rate of speed. They collided, as appellee contends, because appellant was traveling on the wrong side of the road, failed to turn to the right as they approached each other and failed to keep a lookout, while appellant contends that the reverse is true. He filed a cross-complaint against appellee seeking to recover the damage done to his car. A jury trial resulted in a verdict and judgment for appellee in the sum of $50.

Appellant first says the evidence is insufficient to support the verdict. We cannot agree with him in this regard, as the evidence is in dispute as to what position on the road appellant had taken and whether he was negligent. Appellee’s witnesses testified that appellant was running in the middle tracks in the road, with his left wheels in the rut occupied by the left wheel of appellee’s car, which was on the right side going east. Witnesses who examined the tracks made by the cars shortly after the accident testified that appellant’s car was on the wrong side, or too far to the left of the middle. Appellant testified • that he was on the right side and that appellee’s car had only one headlight, was on the wrong side and struck him. This made a disputed question of fact for the jury, and we cannot say there is no substantial evidence to support it.

On the trial a rough sketch, or map, showing the tracks or ruts in the highway was used by appellee in examining his witnesses. Appellant objected to the use of said map. It was not introduced in evidence, but the day after the trial was over, he filed a motion to require appellee to file the map. This came too late, and the court correctly denied the motion.

Error is urged in the giving and refusing to give certain instructions. We find it necessary to discuss only one of them. Instruction No. 3, given at appellee’s request, over appellant’s objections, is as follows: “You are instructed that the negligence of Harold Jackson in operating the car, if any, will not bar a recovery against the defendant, O. A. Featherston, provided that you find that O. A. Featherston was guilty' of negligence in the operation of his car.” Appellant asked instructions in varying forms to the converse of the above instruction, which the court refused to give. Is the above instruction correct? We think it is. In this State we have no “family purpose” doctrine in its broadest sense. Norton v. Hall, 149 Ark. 428, 232 S. W. 934, 19 A. L. R. 384; Valentine v. Wyatt, 164 Ark. 172, 261 S. W. 308; Johnson v. Newman, 168 Ark. 836, 271 S. W. 705. In order for the father to be liable for the negligence of his son in driving his automobile, the relation of principal and agent, or master and servant must exist. No such relationship existed in this case. The son was neither the agent nor servant of his father on this fox hunting trip, and he must therefore have been a gratuitous bailee of the car. He was in the same position as any other person to whom the car had been loaned by the father, appellee, and the same rules of law must apply. The modern rule and the one supported by the weight of authority is stated in Mo. Pac. Rd. Co. v. Boyce, 168 Ark. 440, 270 S. W. 519, as follows, quoting syllabus: “Where a truck struck by a train had been loaned to the driver for use for his own pleasure, the driver’s negligence could not be imputed to the owner nor be interposed as a defense, as the negligence of a bailee is not imputable to the bailor where the subject of the bailment is damaged by a third person.” See also cases cited in that case.

We have carefully examined all the instructions complained of, those given and those refused, and find that the court fully and fairly instructed the jury, perhaps more favorably to appellant than the law of the case justified. For instance, in instruction 14%, requested by appellant, the jury were told that they must find for appellant if it was an unavoidable accident, “or was caused by the concurring' negligence of the drivers of both cars.” This was in conflict with instruction No. 3, which, as above shown, is a correct declaration of law, and constituted an error in appellant’s favor for which he cannot complain.

We find no error, and the judgment is affirmed.