author: ¡Mehaffy, J.

text:
    Southwestern Bell Telephone Company v. McAdoo.
    Opinion delivered October 22, 1928.

      Elmer Schoggen and Edward B. Dowme, for appellant.

      W. R. Donharn, for appellee.
   ¡Mehaffy, J.

The appellee brought suit in the Saline Circuit Court against the Southwestern Bell Telephone Company, to recover damages for an injury alleged to have -been caused by the negligence of the telephone company.

Appellee had a telephone in his front room, and had got up to get the baby a drinlc'of water; had the baby in his arms, and was standing under an electric light drop, and was about 15 or 16 feet from the telephone instrument. Appellee alleges that a flash of lightning came, and he was knocked down. It is claimed that the lightning came in through the telephone instrument and struck McAdoo, and that it was because the telephone company had negligently and carelessly failed to use ordinary care in installing the telephone, in that it adopted no precautions to prevent charges of atmospheric electricity entering appellee’s residence, and that it failed to use known and approved appliances and devices to prevent such occurrence. Appellee also alleged that the telephone company negligently and carelessly failed to ground its telephone wires, or, if grounded at all, they were grounded in a careless and indifferent manner, in that no iron rod was driven into the ground and the wires attached thereto.

Appellant denies all the material allegations of the complaint, and alleges that, if appellee was injured as claimed, it was due to an act of Grod and causes which appellant could not foresee or control. '

The appellee testified, in substance, that he was 43 years of age. He lives in Benton, and works for the railroad company; is a bridge carpenter, and has been with them about two years; makes 67 cents an hour, and works eight hours and a half. He had lived at his present residence since the latter part of the year 1926, but does not own the property. The telephone company installed a telephone in his residence after he moved there, but he did not see them put it in. There was a very severe storm the night he was injured; it hailed and lightened all night. Between ten and eleven o’clock he got up and put on his clothes, then lay down on the bed. The folks were seared of the storm, so he got up and walked in the kitchen to get the baby some water. He heard something pop, and the lights went out during the flash, and he was knocked out. That was the last he remembers. The lightning seemed to come through the house. There was the popping and then the flash. He was 15 or 16 feet from the telephone, and facing the ’phone the way he walked into the room. There is a door right straight through to the telephone. The lightning came from that direction, from towards the telephone. The telephone fuses were burned out. The batteries were burned out and thrown away. They were taken out next day. They put in new batteries. The injury seemed to paralyze him. When he recovered consciousness he could not talk and could not raise his arm; he was helpless. People were bathing him. He could not control his limbs nor hold his head up. It hurt on the side of his head. That was the worst place. He could not swallow water or anything. It was 40 or 50 minutes before he realized anything. When he regained consciousness he was sitting in the front room in a chair, and the doctor was there; several people were there. He bit his tongue, and it was bleeding. It was next morning before he could swallow, and several days before he could talk. The hurt commenced on the side of his head and went down the back of his neck, and his eyes pained him. He can’t see to read; was not troubled like that before the injury. Cannot read an ordinary newspaper. This condition has existed ever since his injury, and he does not seem to get better. Often in trying to talk he tries to say things, and cannot say them right. 'After the injury he was confined to his home 14 days, and in bed about half that time. He is not now able to do work that requires the use of his eyes like he could before. His job was lining up the forms, and he can’t see to line them up as he could before. Was earning about $5.36 a day; was off 14 days.

He had had a telephone about two years prior to the time he moved into, his present home. The ’phone was put in where he now lives about two weeks after he moved there. The house he lives in is about square. The telephone is a wall type. The lights were on when he got the water. His house is lighted by electricity; there is a drop cord with a globe and a snap-off at t-he end of that. He is five feet nine inches tall; the cord would come down within eight or nine feet of the floor — has about a three-foot cord. The living room is about twelve by twelve; the kitchen is about the same size. There is an electric light drop in the living room and one in the kitchen. The telephone had been working all right when he attempted to use it from time to time before the injury. There was a storm the night he was injured, and a house was struck by lightning across the street. A transformer or some lighting device burned out in his neighborhood, but he did not know where it was located, but several blocks west of the house, not on his street. At the time appellee was injured the lights were out. The lights went out, and that is all he knows about it. It hit him, and he was in bed all next day. The telephone was on the wall in the living room, and he was standing about the center of the kitchen.

Witness came in through the door — came into the kitchen. When he made his turn he would be facing the telephone, because the ’phone is right in front of1 the door. The light fuses were not burned out. The transformer was fixed next day, and the lights came on. There was nothing done to the lights in the house. The telephone fuses were blown out and the batteries burned out. The telephone line came down the west side of the street across from the house; they were strung on the light company’s poles. Appellee was the only person on that street that had a telephone.

Dr. Blakely, physician, testified that he attended Mr. MpAdoo, and tha’t he was in a nervous condition, and would have a twisting or jerking of the muscles of the face. His speech was had. Knew that he had received some kind of'shook. Such a shock as appellee received would he produced by a stroke of lightning. At the time he thought that appellee’s condition was such as to endanger his life; that he would probably die. He gave him some narcotics to relieve him. Does not think a man that received shock like that would likely stand any severe cold, or hear — doesn’t believe his nerves would stand it. Such a shock might affect the eyes.

Nelson McAdoo, son of the appellee, eleven years old, testified, in substance, that he was there when they put in the telephone. He watched the man put it in. When the man was putting in the telephone he just hung the ground wire down the side of the wall; he didn’t stick it in the ground; it just hung down there; he did not have an iron rod or anything that he drove in the ground that he attached it to; witness was there when he fixed the telephone after his father got hurt, and watched the man fix it. The man left the house three different times. The last time he came he used an iron rod, and attached the wire to it. He got the iron rod when he went back to the office, and when he got back he drove it into the ground and fixed the wire around it. When the man was repairing the telephone he scratched around to see if there was any ground wire there; he didn’t find any; there was none there for him to find. The last time the man was there he said there ought to have been a rod there. He saw him when he went to town and saw him bring an iron rod back. The ’phone wa.s put in over a year ago. The man who put it in and the man. who repaired it after his father was injured were not the same. O'bie Jones put it in, and then, after his father was hurt, Mr. Hankins came. The man did not tell witness why he put the wire down there. The ’phone was working all right before appellee was injured. The telephone is on the wall in the west end of the living room, and appellee was standing in the kitchen,_ near the kitchen cabinet, where the bucket of water was kept. There was lan electric light globe on a wire hanging down for the electric lights. The lights went out that night all over the neighborhood. Lightning struck a house across the street. Mr. Seville, whose house was struck, did not have lights in his house. Witness noticed one thing about the wiring on the front porch — that they put that little rubber rod that had two wires, one joined on one and one on the other, and now there is just one.

Appellee, being recalled, found there were two wires attached to the plate out on the porch at the time. It was a two-way circuit, and they afterwards changed it and had it one-way. That change was made the 28th of October. He did not see the man making the change. Mr. Boyd ordered the wires taken off of the light company’s poles, and next day they were taken off. Mr. Boyd works for the telephone company at Benton. The house that was struck by lightning was about 150 feet laway. When the flash came the room was all lighted up. There was a glass window in the kitchen, and it was not broken. There were no boards or anything taken off of the house, and no visible sign of its having been struck by lightning.

■Carl W. Alley testified, in substance, that he was an electrician; had been about 24 years; had worked for the Southwestern Bell Telephone Company, and originally installed a good many telephones in Benton. There are two methods of installing a ’phone — the ground' circuit and the metallic — one wire and the ground circuit. The purpose of grounding it is that, in a one-way circuit, the earth takes the place of the other wire where you just have one wire. You cannot talk over a telephone with a one-wire circuit unless the wire is grounded. You can talk over a telephone or two-wire circuit when the wire is not grounded. The purpose of grounding the two-wire circuit is for protection from lightning; you are supposed to have a fuse box there, and the lightning comes in and blows the fuse and protects the telephone. The lightning is supposed to be diverted and go through the wire to the earth, over the ground wire. That is the usual method of installing telephones. Whether you have a one-wire circuit or a two-wire circuit, the rule is to g’round them to protect the occupants from lightning. Witness observed the wire on the MoAdoo house. He observed the-plate on the porch; it is a two-wire circuit —two wires and two fuses; the way it is being used now is one. To change it from a two to a one you put the wire over on that post and then ground the other side of your telephone. The plate originally was a two-wire circuit. There were two wires, but they are twisted together and made one now. That was intended or fixed for a two-wire circuit clear into the house. Other ’phones in Benton have two .wires. Does not know of any one-wire circuit in Benton except this .one. If lightning-should enter the residence over the telephone wires, in some instances it would blow the fuse, in others it would not — lightning plays freaks sometimes. You can’t always control it. If the fuses were blown out, it would indicate that lightning had 'been in there. Never knew of a telephone fuse blowing unless it was lightning that caused it. A fuse is of soft metal. If lightning-strikes it, it melts and cuts the current out of the telephone. If the fuses are blown out they break the current in the circuit between the outside wire and the wire leading into the telephone instrument itself. But, at the same time, there might be enough current arc through the fuse and tear up the telephone and still blow the fuse at the same time. If you found the fuse blown, that would show that it functioned, and that a current of electricity had come in there, and that it broke down and had cut the current off from the telephone instrument. All rural telephones are furnished with ia ground, and this telephone is working grounded now. If the telephone was working, one wire was bound to have been grounded, but if you had a two-wire circuit there wasn’t any necessity of grounding it to make it work. The wires are now attached to one post. This is all new wire running into there now. The wiring on there is new.

Witness could not say where lightning would come out of a telephone and cross a room 15 or 16 feet. Does not know anything about the conditions at the time Mr. McAdoo was hurt. There is a better chance of lightning not getting in over the wire if it is grounded. If lightning came in through the wall it is likely to leave some sign of it, unless it was conducted in over a wire. Protective devices are not an absolute protection; they are just protective; there is a better chance of saving the telephone instrument if you have it protected. All telephones that are burned out by lightning are not knocked off the wall by it. 'Sometimes it will knock them off.

Grady Smith testified, in substance, that he is superintendent of- the water and light plant at Benton; remembers the storm that occurred at the time Mr. McAdoo was struck by lightning. They have a transformer for their light plant about three or four blocks from where McAdoo lives. During that storm the transformer burned out on the primary side, 'burned the fuse on the primary side. That was all the damage it did. For electric current from that lightning to be transmitted into the home of Mr. McAdoo, it would have to go through the meter. The meter was not injured. When lightning is transmitted through a meter, it usually burns the potential coil out. If lightning had 'been transmitted into the house over the light wires, you would expect a blowing of the light fuses. It usually happens if a big’ bolt comes in, but it doesn’t every time. The fuses blew on the transformer; it cut that entire end of town off that was fed from that primary circuit. The lights went off because the primary fuse on the transformer blew. Their primary lines are protected with lightning arresters. The transformer has to transform the high tension current to the low tension.

Florence McAdoo, 14-year-old daughter of appellee, testified, in substance, that she had seen the telephone wires on the outside of the house a few days before her father was struck,- saw the wire that came down outside the house toward the ground. Saw it on Saturday, and it was Monday or Tuesday when her father was •struck. When she saw the wire on Saturday it was just dangling down from the side of the house about two or three inches from the ground. She noticed it, and called her mother and asked about it. When her father was struck he could not talk. He bit his tongue, and it was bleeding. The accident occurred between 10 and 11 o ’'dock. It was days (before he talked so you could understand him. He complained of his eyes and his neck hurting. He has not been able to read since the injury. Witness knows about the plate and the wires, and that there was one wire going to each one of those. That was the condition of them at the time of the injury. They are not in-that condition now. The difference is that both of those little wires go to one of those rubber things. It is attached to one post instead of two. The ’phone is still in the house. After they fixed it next morning it worked all right. There had been no trouble with it before the injury. There was a good deal of lightning and thunder that night. The kitchen is near the living room. There is an electric light in the kitchen, on a cord. The lights were on at the time, but when that clap of thunder came they were all out. They went out just at the time he fell. The noise was just like thunder. It lighted up the house. The telephone is in the front room. Witness ’ father had the baby in his arms, and it was not hurt. Witness was there when the man came to repair the■ telephone, and helped him, rang the ’phone for him. Saw him when he was making the repairs. He drove a rod down in there and connected it with that wire that was dangling down. It was dangling down at the side of the wall when he came to repair it. It was not attached to anything before he came. He made three trips down that day, and the last time he came he brought the rod. He drove it into the ground and attached the wire to it. He felt around down there, and was looking around, and saw there was not any rod.

Pete White testified, in substance, that he lived across the street from McAdoo, and heard Mrs. McAdoo screaming, and went over there. Stayed there about a minute, and went for the doctor. His wife attempted to use the ’phone, but could not get central. All the time he was there McAdoo was unconscious; unable to use his limbs, arms, feet or legs.

Robert Land testified, in substance, that he saw McAdoo in his home the night he was struck by lightning. He took some kerosene lamps, and when he got over there McAdoo seemed very nervous. There is a difference in McAdoo’s speech now and before the injury.

The defendant introduced O. P. Jones, who testified, in substance, as follows: Had worked for the telephone company about 17 years; worked in Benton; repaired trouble, and installed telephones. Installed the telephone in the residence of McAdoo in August, 1926. It was a regular standard telephone. Put in the standard wire — twisted two-wire drop. That goes from the cable up to the house. The cable is not on the electric light pole. Witness put a protective device on there — what is commonly called a No. 12 type protector. It is located right at the point of entrance — on the porch. The wires go through the wall into the room and fasten to the telephone. It had a standard ground rod, one-half inch in diameter by five feet long, and that had attached to it No. 14 wire from the protector leading from the protector to the ground rod. The rod was driven down in the ground. The purpose of the ground rod is for protection. The ’phone was working on one wire; had to use the ground for return to complete the circuit. They did that because of the shortage of facilities out there at that time. The difference between a metallic circuit and ia ground circuit is that a metallic circuit has two wires. The telephone would not work if there had not been a ground wire on it. Does not know if it is still working grounded. Knows that is the way it was installed. Most of the telephones in Benton are metallic — ■ that is, have two wires. Has not seen this ’phone since the time McAdoo was hurt. He ran two wires into the house, but only used one. All telephones in Benton were not two-wire circuits at that time; ran two wires in because it comes a twisted pair of wires. "Witness did not wire the house next to Mr. McAdoo. There was no telephone close to this. When he put in McAdoo’s telephone, there was no ’phone' right near him that he knew about. The proper thing to do in grounding a wire is to put down the ground rod. It is a half-inch rod about five feet long. You drive it all the way up in the ground and then attach the wire to it. Witness did not repair the ’phone after it was blown out; was working at Malvern. Knows he installed the telephone. It is a matter of record. At the time that telephone was put in there they had a cable pair. They ground them all. It is necessary to ground them as a matter of protection. Has not been in McAdoo’s yard since he installed the telephone. Did not go back to drive in the rod. He put it in when he put the telephone in. When he put the ’phone in, he did not have an available pair. One side is open. They would use only one side of the pair. All the rest of the pairs were in use to serve other subscribers, so there wasn’t a pair available for McAdoo. He therefore put him on a ground circuit. The record shows installation completed on August 11. A little flash of lightning may blow a fuse. The purpose of the fuse is to protect the premises and the telephone. The current, instead of going through the telephone, -will go to the ground. Lightning or any current of electricity will seek the shortest path to ground. If lightning goes past the protector, it is liable to tear the telephone up and burn the wires out of the ’phone. The best device for protection against lightning is a protector properly grounded. Where they have that device, they do not expect damage to occupants inside a room from strokes of lightning.

D. M. Hankins testified, in substance, that he was out at McAdoo’s house next morning after he was injured. Found one of the fuses blown — the protector on the telephone. He replaced it with a new one. The ’phone was not working when he went out there. It did not work when he replaced the fuse. The best he can remember there was something the matter wtith the cable pair, and he had to change that. The way he found it, the telephone was working what they call grounded. There were two drop wires that ran in there. That is what they call parallel wires. This ’phone had a ground wire on it.

This witness was asked if he did not state in the presence of others, naming them, that that was the cause of the trouble; that it had never been properly installed, and that the rod was not there. He said he did not.

Mr. Seville testified about the storm, and the lightning striking his house.

Mr. Best testified that he is an electrical engineer, and is employed by the Arkansas Light & Power Company. Examined the McAdoo premises, and found they had a standard lightning arrester protector of twelve gauge, with two fuses, and with a ground wire and a ground rod — standard ground rod and ground wire. It was necessary to have a ground wire and a ground rod to operate the ’phone — otherwise it would not work. If the fuse was blown out, that would indicate to him that the protector was performing properly. If it went into the house with sufficient force to knock McAdoo down when he was 15 or 16 feet away from the instrument, it would have left some effect on the instrument. It would show some smoked place on it. Basing his answer on his experience and technical knowledge in connection with the matter, it would not be possible for lightning to come in on a ’phone without leaving some effect. Does not consider it probable that lightning' jumped that far from the telephone. Assuming that the lightning came in over a wire at all, he thinks it came in over the electric wire. If the telephone was installed without a ground piece to which you attach a ground wire, it was not properly installed, and it wouldn’t work, assuming it was a one-wire circuit. A two-wire circuit will work without a ground wire. If a holt of lightning passed through a meter, it would not necessarily burn that out. It would burn out the current coil. It would not neces.•sarily burn out the light fuse. Thinks that, if the lightning came in the house on any wire at all, it probably came in on the electric wire.

Mr. Drees testified that it was his opinion that the lightning came in over the light wire, and, assuming that there was no ground wire, lightning would have gone into the ’phone and shown some evidence of it by the condition of the ’phone. He did not examine the ’phone. He is president of the Arkansas Electric Company, a firm selling electrical wiring and electrical supplies.

Witness was then asked, assuming that he examined the telephone the morning after McAdoo was injured and found that the light meter was not molested — that it was in good condition, not damaged in any way, and the light fuse not molested; that it was in good condition, and not damaged in any way — then, after he found that the telephone apparatus had no ground wire and the telephone fuse had 'been blown, if lightning was conveyed into the building over either sets of wires. Witness said that he would assume that some slight charge did perhaps come in over the ’phone wires. As you relate, there is no evidence shown of its coming in over the electric light wires, though it might easily, have done so.

Mr. Ettinger testified, in substance, the same as the other witnesses about the installation of the telephone and about the lightning coming in over the light wire instead of the telephone wire.

We have copied enough of the testimony to show that it is conflicting on the question of how the telephone was installed — whether properly done or not — • and we deem it unnecessary to set out more of the testimony.

The appellant submits four reasons why the case should be reversed. The first is that the alleged negligence on the part of the appellant in failing to install a protective device and grounded rod wire was not proved. Both Nelson McAdoo and Florence McAdoo testified to facts showing that it was not grounded; that there was no rod there; that the man who repaired the ’phone after the injury broug'ht a rod with him and drove it in the ground; that he looked around there and found none, because there was none there.

While this testimony is contradicted by the witnesses for the appellant, it is sufficient evidence to submit to the jury the question of whether the instrument was or was not negligently installed. This court has many times held that, where there is any substantial evidence to sustain the verdict of the jury, the verdict will not be disturbed, althoug'h this court might think that the weight of the testimony was the other way. This court does not pass on the credibility of the witnesses nor the weight of their testimony.

The next contention of appellant is that the verdict of the jury is not based on any testimony as to how the lightning entered the house, if at all. We do not agree with the appellant in this contention. Appellant argues that there is doubt about the lightning entering the house at all. There is no contradiction about this at all, and several witnesses testified that it did enter the house. But how did it enter the house? It would be physically impossible for it to come through the wall of the house, or to come into the house without making some sign on the wall's or window, if it came in through a closed window, unless it came over the electric wire or the telephone wire. It therefore must have come over one or the other.

The evidence conclusively shows that, while the electric lights went out at the time the lightning came in the house, it was because a transformer some blocks away was injured; and when this transformer was repaired the lights immediately went on in the house, and there was therefore no injury either to the wires entering the house or to the globes, and no part of the apparatus was affected in any way.

On the other hand, it is undisputed that the telephone was injured and had to be repaired before it could be used, although it wias in perfect order before the lightning came into the house. We are of opinion that this was sufficient evidence to submit to the jury the question of whether it came in over the electric light wires or the telephone wires; that is, it is sufficient to submit to them the question whether it entered the house because of the negligence of the defendant in failing to properly install the telephone.

The appellant quotes from authorities that the proof of an alleged act or omission, as causing- injury, is not sufficient to establish it as the cause so long as other causes existed and were present which might as well have caused it. This is unquestionably a correct statement of the rule. The jury will not be permitted to surmise or conjecture, because surmises and conjectures cannot supersede or take the place of proof. 'But we think the proof in this case shows that there were no other causes present which might have caused it. We think it is conclusively shown that it did not come in over the electric wires. To be sure, the jury is not allowed to indulge in presumptions. There must be proof. And, if it were merely matter of conjecture, it' would not be sufficient to sustain the verdict.

We also agree with appellant that it is not with defendant to account for the accident. But when evidence has been introduced, as it has in this case, showing that the defendant was negligent in installing the instrument, and also proof that the electric wires were in perfect condition after the storm, the conclusion is inevitable that the lightning came into the house over the telephone wire.

It is next contended by appellant that there is no evidence that the appellee was “struck by lightning,” and appellant argues that lightning always leaves its ■mark on any object, animate or inanimate. The lightning came into the house, and, as it came in, appellee was knocked down. Nobody pretends that there was any other force to knock him down, and, whether there was any mark where it struck him or not, we think that the proof shows the lightning struck him. There is no conjecture, speculation or guess about it, but the proof clearly shows that the appellee was struck by lightning. If appellant had proved that one could not be struck by lightning without there being some marks on the person, there might be some basis for making this argument. But when all the proof shows that appellee, when the lightning came, was knocked down, and his condition thereafter such as it would be, as the doctor testified, by receiving a shook from lightning, we think this contention of appellant is without merit.

Appellant’s next contention is that the court erred in permitting appellee to prove that witness Hankins admitted that the telephone was not properly grounded, and that this was the cause of the injury. This is not evidence of a collateral matter. Hanldns was there for the purpose of repairing the telephone after the injury.

In appellant’s motion for a new trial it states that the court erred in permitting the witness Mrs. Florence Griffin to testify that D. M. Hankins, an employee of defendant, after the accident occurred, made an admission that the defendant’s telephone was not properly grounded, and that, by reason of this, the accident of plaintiff occurred, over the objections and exceptions of the defendant, and that the court erred in refusing to exclude this testimony.

There is no effort to bind the company because of Hankins being a general agent, but he was a witness in the case, and, like any other witness who testifies in a case, it was competent to ask him if he did not make certain statements which, if made, would impeach his testimony at the trial, or would tend to discredit him. The testimony was only admissible as to his credibility, but there was no request made by appellant to limit this testimony to the credibility of the witness. We think it was admissible for this purpose.

Our statute provides that “a witness may be impeached by the party against whom he is produced by contradictory evidence by showing that he has made statements different from his present testimony.” Section 4187, C. & M. Digest. See Eureka Oil Co. v. Mooney, 173 Ark. 335, 292 S. W. 681, and cases cited.

Since evidence of statements of the witness made at a different time was proper by way of impeachment, a general objection to his testimony was not sufficient. The appellant might, by proper request, have had this testimony confined in its application to the credibility of the witness. If such request had been made, the court would doubtless have instructed the jury that this testimony was admissible for no purpose except as it might affect the credibility of the witness.

We think the evidence in this case was sufficient to submit the question of appellant’s negligence to the jury, and also the question of whether appellant’s negligence, if the jury found it negligent, was the proximate cause of the injury, land, if there is any substantial evidence upon which to base a verdict, it will not be disturbed by this court.

“The liability of a telegraph or telephone company for personal injuries is governed by the principles applicable in the case of electric companies generally. Such a company is clearly liable in damages fo-r injuries proximately resulting from the failure to exercise the proper degree of care, to those to whom it owes the duty of such care, but it is not an insurer, and will be liable to respond in damages only where the company or its employees have been negligent, and the injury complained of was the natural and probable consequence of such negligence. Negligence of such a company may be the proximate cause of an injury even though there may be an intervening cause, such as negligence of another, which, though not anticipated, would not have occasioned the injury except for the earlier negligence.” 26 B. C. L. 529.

“But whether or not the defendant company has been negligent in the erection land the maintenance of its poles, wires and plate, is one for the proper determination of the jury upon the facts of the instant case, unless the negligence is so clear upon the evidence that intelligent minds cannot form different conclusions upon it. Thus, for instance, the extent to which wires conveying deadly electric currents should be insulated or otherwise guarded must be decided by the jury under the fact® of each case, as must the question whether a company has furnished proper safety devices, and properly connected the same, upon installing its instruments, and whether it has performed its duty as to inspection and repair of its appliances.” 9 R. C. L. 1227.

That the appellant’s wires conveyed deadly electric currents is not disputed; that is, that it would do so. And, under the authorities, it was a question for the jury whether its instruments were properly guarded and insulated ; whether it used proper safety devices, and properly connected same.

The proof in this case is conflicting on the question of whether there was a rod in the ground and a ground wire. There is, however, no dispute about the question, if it was installed in the manner that the plaintiff’s witnesses testified that it was, a ground wire was required for protection, but that it was not required in order to be able to use the telephone. It is conceded by appellant, however, or rather appellant’s witnesses testified, that this grounding of the wire is for protection so that the lightning coming in over the wire, if any should come in, is carried to the ground, and that this is the proper way to install it for the purpose of protection. It is true there is a conflict about whether the company was negligent in this regard, 'but that conflict was for the jury to settle.

It has 'been said:

“It is error to grant a nonsuit because the facts testified to are incredible and impossible, when it is not shown 'by science and common knowledge that the testimony — the case involving electrical phenomena — is false, and, according to some authorities, a verdict cannot be directed for the defendant in such an action, although its evidence is uncontradicted and sufficient, if true, to overcome the prima fade case made by the plaintiff. * * * The question whether or not the negligence of the defendant was the proximate cause of the injury is also one for the jury, where the evidence is not clear, or the proper inference from undisputed evidence may be in doubt.” 9 R. O. L. 1227-8.

This court quoted with approval from the court of Texas Civil Appeals as follows:

“The duty resting upon telephone companies to adopt precautions for preventing charges of atmospheric electricity from entering buildings over their telephone wires is thus stated by the Supreme 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. If, while in the exercise of such care, it had reasonable grounds to apprehend that lightning would be conducted over its wires to and into the house, and there do injury to persons or property, and there were known devices for arresting.or dividing such lightning, so as to prevent injury therefrom to the house or persons therein, then it was the defendant’s duty to exercise due care in selecting, placing and maintaining, in connection with its wires, such known and approved appliances as were reasonably necessary to guard against accidents that might fairly be expected when conducted to and into a house over its telephone wires’.” Southwestern Tel. & Tel. Co. v. Abeles, 94 Ark. 254, 126 S. W. 724, 140 Am. St. Rep. 115, 21 Ann. Cas. 1006.

The court then cites the following authorities to the same effect: Griffith v. New England Tel. & Tel. Co., 72 Vt. 441, 48 A. 643, 52 L. R. A. 909 ; Southwestern Bell Tel. & Tel. Co. v. McTyer, 137 Ala. 601, 34 So. 1020, 97 Am. .St. Rep. 62; 1 Joyce on Electrical Law, § 445F; Rural Home Tel. Co. v. Arnold, 119 S. W. 811; Southwestern Tel. & Tel. Co. v. Bruce, 89 Ark. 581, 117 S. W. 564.

While the appellant objected to some of the instructions given (by the court, these objections are not urged here, and are therefore abandoned. The court however fully and, we think, fairly instructed the jury, and, while the evidence may be slight, we think it was sufficient to submit the questions to the jury, and the jury’s finding on questions of fact is binding here.

The judgment is therefore affirmed.

Mr. Justice McHíaney dissents.


source: Caselaw Access Project

author: Mehaffy, J.

license: Public Domain

text:
    Bryant v. Hill.
    Opinion delivered October 22, 1928.

      Strait <& Strait 'and J. A. Eades, for appellant.

      Deem, Moore $ Brasil, for appellee.
   Mehaffy, J.

This is a suit begun by R. E. Hill, in the chancery court of Conway County, against T. F. Bryant, and he alleged that, as administrator, he procured an order of the probate court to sell lands belonging to the estate of F. O. Stobaugh, describing the lands, and that, as directed in said order, he offered for sale the lands described in the petition, and that the appellant offered and bid $3,550 for said lands. It is alleged that the administrator executed and delivered to Bryant a deed, after the expiration of three months, copy of said deed being filed with the complaint, marked Exhibit E.

Bryant answered, denying all the material allegations in the complaint. The facts are substantially as follows:

A petition was presented to the probate court to sell certain lands described in the petition. The administrator was ordered to sell said lands, and did offer them for sale, and T. F. Bryant became the purchaser, and afterwards discovered that the lands were not properly described, and that, for that reason, he was unable to borrow money by giving a mortgage on the land. Thereafter there was a second sale ordered and second petition, and Bryant again became the purchaser for the same price. He then applied for a loan of $2,200, and the party to whom he applied was unwilling to lend more than $1,700.

Bryant contends that his bid was conditional; that at the first sale he agreed to take it at the price bid, provided he could borrow the money he desired to borrow. He contends that at the last sale he did not bid, but argues that the agreement to purchase was conditional, and that it was not to be binding on him unless he could borrow the amount of money he wished, $2,200, and he refused to pay, and this suit is brought to collect the price which the administrator alleges Bryant bid.

Appellant says there are two questions to be determined. Appellant contends, first, that there was a tentative understanding between appellant and Hill that the deal was conditional if he could procure a loan of $2,200, then he could finance the remainder of the purchase money, and take the place; otherwise the deal was off.

There was a conflict in the evidence as to whether this deal was conditional, the administrator testifying not only that it was not, but that he offered to arrange the terms satisfactory to Mr. Bryant. The proof also shows that, although Mr. Bryant says he did not bid, immediately after the sale he went to Mr. Vance’s office for the purpose of securing a loan.

The chancellor found against appellant. The evidence is conflicting, and we cannot say that the finding of the chancellor on this proposition was against the preponderance of the evidence.

It is appellant’s nest'contention that the administrator failed to show that the sale was reported and approved by the probate court, and calls attention, first, to the case of Bell v. Green, 38 Ark. 78. In that case the court said: “But we are not to presume that the sale in this case had been confirmed. If it had been, the complaint should have so alleged. Until confirmed, it was not completed or binding, and conferred no right to the property to the purchaser, or at least to the interest that Andrews ’ estate had in it; and he might call in question its validity. And it could not be known, though he brought the money into court, that he would ever be able to get a title.”

The court then cites the case of Wells v. Rice, 34 Ark. 346, and appellant also relies on this case. Among other things, the court said in that case: “No evidence whatever was offered that the sale had been confirmed, or that it had ever been reported to the court; consequently no title could be established in the defendants through the deed. Although therefore it may not have been necessary for the plaintiffs to have shown that the debt was paid, evidence of such fact was not improper, and could not have prejudiced the defendants.”

These cases sustain the contention of appellant that the sale must have been reported to the court and confirmed by the court. It is not contended that the complaint does not allege these facts, but it is contended that there is no proof tending to show that the sale' was confirmed by the probate court.

While it is necessary, in case of sales made by an administrator under order of the probate court, that the probate court should confirm the sale, and necessary that proof of this fact be made, it is not necessary that the proof be direct and positive, but it may be shown by circumstances. It may be shown by any evidence which tends to show that the sale was confirmed by the probate court. The judge of the probate court was a witness, and testified in the case.

The administrator testified that Bryant bid the $3,550; was trying to get a Federal loan to help pay for the land, and that he arrang’ed the terms of payment satisfactory to -Mr. Bryant. That Bryant never made any excuse to him for not accepting the Federal loan other than that his wife would not sign the papers; that he had been ready and willing at all times to perform his part of the contract in regard to the sale of the lands; that the deed and abstract had been brought down to date, and everything fixed ready to close the deal np, and everything signed- by the court and ready to close up.

We think that the fact that the judge was present and testified; that the administrator testified that everything was -signed up by the court; the fact that Bryant was making an effort to get a loan, and the fact that he took and retained possession of the property, are sufficient to show that the provisions of the law were complied with, and that' the sale was made as contended by the appellee, and was approved by the court.

The probate judge testified that, at the first sale, Bryant purchased the land for $3,550, and that it was resold on account of an error in the description. He also introduced a statement signed by Bryant himself, which was as follows: “I hereby agree that, if the administrator will resell said property purchased by me, perfect the title so that the loan company will accept the deed and title, I will repurchase the property for the sum of $3,550.”

We think this clearly shows that he not only purchased it at the first- sale, but he agreed to repurchase it; the circumstances show that he would repurchase it, and the defect in the title was merely a misdescription, and the proof conclusively shows that the title was perfect.

This court has several times held, however, that an administrator’s sale to raise money to pay debts is a judicial sale, and that the rule of caveat émptor applies. That is, the purchaser acts at his peril. He gets just such title as the administrator was able to give. However, this question is not now involved, but it is merely a circumstance tending- to show the conduct and agreement of the parties, and, we think, has some tendency to corroborate the evidence that the sale was confirmed by the probate court.

While the administrator must show that the order of sale was made by the probate court and that the sale was confirmed by the probate court, yet the admissibility and sufficiency of evidence on this question are governed by the general rule of evidence.

It has been said: “The rule has long been sanctioned, in regard to public sales, that, where the vendee becomes bound for the purchase, as by having the article struck off to him as the highest bidder, and refuses to complete the purchase, the vendor may resell and hold the purchaser responsible, in case of deficiency of the purchase money upon the resale, for the difference between the two sales.” 24 C. J. 647; and Mount v. Brown, 33 Miss. 566.

It is true that the purchaser is under no obligation to pay the price unless the sale has been confirmed; but, as we have said, the complaint alleged that it had been confirmed; the circumstances and evidence are sufficient, we think, to show that it had been confirmed, and especially the fact that appellant made no contention and asked no questions, and offered no proof in the lower court with reference to the failure to have the sale confirmed.

It has been said that the order confirming the sale need not be formal or need not be made in any precise form of words. Anything which expresses the 'approbation of the court is sufficient. 24 C. J. 556.

Again, appellant’s conduct in undertaking to borrow money, in stating that his. failure to do so was because of the refusal of his wife to sign, the taldng and retaining possession of the property, are all inconsistent with appellant’s claim that there was no-confirmation of the sale.

‘ ‘ One who might otherwise successfully attack a sale may be estopped from so doing, the principles governing such estoppel being practically the same as those applying to estoppel generally. Thus, one will not be heard to object to the regularity of proceedings had on his own application, instigation, or consent, or which he has aided in carrying into effect. Neither will one be heard to complain of defects for the existence of which he is himself responsible.” 24 C. J. 661.

“The purchaser cannot, while he retains possession of the property, resist payment of the purchase money, or otherwise repudiate the burdens arising from the purchase because of defects in the sale or proceedings leading up thereto.” 24 C. J. 663.

The evidence in this case shows that the appellant has possession of the property, and, as we have already said, is sufficient to justify the court in finding that the sale was confirmed by the probate court.

We therefore conclude that the decree of the chancery court is correct, and it is affirmed.


author: McHaney, J.

text:
    Passwater Chevrolet Company v. Whitten.
    Opinion delivered October 22, 1928.

      A. F. Auer, for appellant.
   McHaney, J.

Appellee instituted this action in replevin to recover the possession of one Chevrolet Sedan automobile from appellants under the following circumstances : On February 12, 1927, appellee purchased from appellant, Passwater-Ohevrolet Company, hereinafter called the company, the car in question, at a price of $888, $350 of which was paid in cash, and the remainder, $538, was payable in 12 equal monthly installments of $44.84:, beginning March 12, 1927. This sale was evidenced by a written conditional sale contract, on a form provided by the General Motors Acceptance Corporation, hereinafter called the corporation, to whom the contract was sold and assigned by the company by unrestricted indorsement. This contract provided that "title to said property shall not pass to the purchaser until said amount is fully paid in cash,” and that "the assignee shall be entitled to all the rights of the seller.” It also provides that, upon default in the payment of any installment when due, at the option of the seller, the full amount shall immediately become due and payable; that time is of the essence of the contract; that the'seller may repossess the property without demand and sell the same at public or private sale, with or without notice to the purchaser, and many other provisions too numerous to set out herein. Appellee made four payments — ¡March, April, May .and June. He defaulted in the payments due July 12 and August 12, and, early in September, Mr. Passwater had a conversation with him in which he advised appellee that the corporation had instructed bim to repossess the car. That afternoon, Thursday, September 8, appellee brought the car to the company’s store room and voluntarily surrendered it. On Saturday following the agent of the corporation came. He required the company to make good its indorsement of the conditional sales contract by paying the corporation the balance due thereon. Shortly thereafter the company sold the car to appellant Stuart, and ¡at the time of the sale, or shortly thereafter, appellee gave the key to the car to said Stuart. A few days later he went to the company with his attorney, tendered the balance due, demanded the car, and was told that the car had already been sold to Stuart, a fact which appellee knew, for he testified that he gave Stuart the key to the car after it was sold to him.

Appellants • requested a directed verdict in their favor, which the court refused. The court, on its own motion, instructed the jury, over the objection of appellants, “to find a verdict for defendants for the car in controversy, and to find the amount which may he due by the plaintiff to the defendants for the purchase money upon the contract under which the car was purchased.”

The jury returned this verdict: “We, the jury, find for the defendants for the car in controversy, and find that the plaintiff is due the defendants purchase money herein in the sum of $358.72. A. L. Keith, foreman.”

Based on this verdict, the court entered a judgment that appellants were entitled to the car in question, and that appellee have ten days from that day to pay into the registry of the court the $358.72, plus interest from date of judgment and accrued costs.

From that part only of the judgment allowing appellee to deposit the balance due and redeem the oar, this appeal is prosecuted. It is. conceded hy appellants that the court correctly instructed the jury to find in their, favor for the car' in controversy. Evidently the court held appellants, were rightfully in possession of the car, hut thought appellee had the right to redeem from them by virtue of § 8654a, O. & M. Digest. That section reads as follows:

“In any action in a j-ustitee court or circuit court of this State, where it is attempted to foreclose any mortgage, deed of trust, or to replevy, under such mortgage, deed of trust or other instrument, any personal property, the defendant or defendants in said action shall have the right to prove or show any payment or payments or set-off under such said mortgage, deed of trust or other instrument, and judgment shall he rendered for the property or the balance due thereon, and the defendant may pay the judgment for the balance due and costs within ten days and satisfy the judgment and retain the property. Act May 23,1901, p. 303. ”

Clearly this section has no application to this controversy. The plaintiff in the court below was hot attempting “to foreclose any mortgage, deed-of trust, or to replevy, under such mortgage, deed of trust or other instrument, any personal property.” He brought replevin, it is true, but not under “any mortgage, deed of trust or other instrument.” He brought it on a complaint And affidavit alleging that he was the owner of the car and entitled to the immediate possession thereof under a conditional sales contract, which he admits he had breached, and had voluntarily surrendered the possession of the car to the rightful owner. Had he kept possession of the car and refused to surrender it to appellant company, and it had brought replevin, then this section would 'be applicable. Shaffstall v. Downey, 87 Ark. 4, 112 S. W. 176; Hollenberg Music Co. v. Barron, 100 Ark. 403, 140 S. W. 582, 36 L. R. A. (N. S.) 594, Ann. Cas. 1913C, 659; Wilson v. McCown, 103 Ark. 422, 147 S. W. 451; Strode v. Holland, 150 Ark. 122, 233 S. W. 1073; Fore v. Chenault, 168 Ark. 747, 271 S. W. 704.

Under the facts in this case appellee cannot maintain replevin. It is undisputed that he ■ voluntarily surrendered the car to the company and permitted same to be sold to appellant Stuart, and thereafter turned over the key to the car to said Stuart. Therefore, whatever interest or right he had in the car was voluntarily surrendered. The legal title to the car was retained in the conditional sales contract, and passed to the corporation, and when the company made good its indorsement and paid the corporation the balance due on the car, the legal title passed back to the company. “Property in defendant is a good defense in an action of. replevin, and this is ordinarily true whether it be an absolute or a special or qualified property in the goods which are the subject-matter of the litigation.” 34 C. J. 1414.

In order to maintain an action to recover the possession of personal property, or to recover damages for the conversion of such property, plaintiff must show title in the property so wrongfully taken or converted. Secur ity Bank & Trust Co. v. Bond, 132 Ark. 592, 201 S. W. 820.

In Brown & Hackney v. Loveless, 152 Ark. 541, 239 S. W. 23, it was said: “Replevin cannot be maintained without showing a general ownership of the property in the plaintiff, together with the right of immediate possession.”

■Since appellee has surrendered the car and permitted same to be sold 'to an innocent purchaser, he lost whatever general or special ownership he had in the property, together with the right to the immediate possession thereof, and therefore is precluded from maintaining this action. The judgment of the circuit court is therefore reversed, and the cause dismissed.


text:
    Boyle v. Reynolds.
    Opinion delivered October 22, 1928.

      Edward Gordon, for appellant.

      Strait é Strait, for appellee.
   McHaney, J.

Appellant, Elmer and Lee Boyle are children and heirs at law of J.' M. 'Boyle, deceased, by his second wife, and the appellees are his children and heirs at law by his first wife. At the time of his death, J. M. Boyle was the owner of some land and small amount of personal' property in Conway County, Arkansas, and left surviving him both sets of children and his widow. The widow took as her homestead and dower interest all the land he owned, as also all the personal property, which was not in excess of $450 after payment of his debts and funeral expenses. The widow died in March, 1925, and at the time of her death she had rented the land for that year to appellant and Elmer, who continued to occupy the land for the years 1926 and 1927.

This suit was instituted to have the land partitioned, and for an accounting against appellant and Elmer Boyle for the rents and profits for the years 1926 and 1927. In the course of the trial it wias admitted that “the occupancy of this property by Elmer Boyle and Luther Boyle, since the death of the widow in March, 1925, has been without any contract for the payment of rent, and it is agreed that they are liable for reasonable rent for the two years, 1926 and 1927, and that they are still not holding or in possession as administrators, ¡and that the usual rent of one-third of the corn and one-fourth of the cotton and cottonseed is reasonable.”

It appears that of the 1925 crop Elmer Boyle stored eight bales thereof for about a year in a warehouse, and incurred an expense of .$58.50 for storage and insurance. It further appears that Elmer Boyle was due the estate $152.33 for rent for the years 1925 and 1926. It also appears that appellant had acquired Elmer Boyle’s interest in said land prior to the rendition of the decree herein.

The court found that Elmer Boyle was indebted to the estate in the sum of $152.33, which should be charged against his interest in the hands of appellant 'because of his purchase thereof. The court further found that the land was not susceptible of division in ldnd, and ordered same sold and distributed to the heirs according to their respective interests, ¡after deducting from the Elmer Boyle interest the amount of the rent due as aforesaid.

It is not contended on this appeal that the court did not correctly find the amount of the rent due by Elmer Boyle to the estate. It is said that he had no right to charge the interest in the land in the hands of Luther with this amount, and it is further said that the amount Elmer was due the estate should be credited with the $58.50 storage and insurance on that part of the 1925 crop stored by him. We do not agree with appellant in either contention. It is undisputed'that Elmer Boyle owed the estate this amount of rent, and it is undisputed that appellant knew this fact when he purchased his brother’s interest in such real estate. We therefore agree with the trial court that it was proper to charge the interest of Elmer Boyle in the hands of Luther with the amount of such rent. Under these circumstances he could not be said to be an innocent purchaser of his ■brother’s interest.

■Neither was it error not to deduct the $58.50 from the amount of such indebtedness. Appellant and his brother stored this cotton in the hope of getting a better price for it. It was their cotton, and they had the right to do with it as they pleased, subject to the payment of the rent. It was their individual liaJbility incurred, through a desire to get an advance over the then prices of cotton, which they believed might be realized by holding it for such advance. Unfortunately the price of cotton went down instead of up.

We think the decree, of the chancellor was correct, and it is in 'all things affirmed.


text:
    Dumas v. Crowder.
    Opinion delivered October 22, 1928.

      Pat McNalley- and J or dam Sellers, for appellant.

      Eugene H. Murphy and Francis T. Murphy, for appellee.
   McHaney, J.

This is a suit to reform a written instrument conveying to appellee by appellants an interest in the royalty in the mineral rights reserved and to be reserved in the southwest quarter of the northeast quarter of 11-17-14, Union County, Arkansas. It is alleged that appellant, Gr. C. Dumas, was the owner of the above described land, on which he had given a commercial oil and gas lease to one J. A. Rowland, by which he reserved a 1/8 royalty interest in the oil and gas produced therefrom; that appellant, Dumas, offered to sell, and appellee purchased, in March, 1922, for a consideration of $200, an undivided y2 interest in and to said royalty, with respect to the southeast quarter of the said 40 acres, subject, to the Rowland lease, which would be a 1/16 interest in all the oil and gas and other minerais in and upon said 10' acres of land, subject, however, to the Rowland lease; that the scrivener who drew the deed of conveyance was unfamiliar with oil field conveyancing and with the technical terms used in connection therewith, and that in drawing said instrument so prepared it as to convey to appellee an undivided 1/16 of the royalty reserved under the Rowland lease and subject thereto, which constituted only a 1/128 of the total production from said land, instead of a 1/16 of the total production as agreed upon; that the Rowland lease expired by limitation on November 4, 1924, and that on January 8, 1927, all the persons then interested in the land joined in a lease to one Jasper N. Smith for a consideration of $800, the lessors reserving as rental therefor an undivided 1/8 of all the oil, gas or other minerals to be produced therefrom, which lease was by the said Smith assigned to the Magnolia Petroleum Company, and that appellee was entitled to $100 of the purchase price of $800, but was only paid $12.50 therefor; that, at the suggestion of the Magnolia Petroleum Company, appellee conveyed to appellant, Dumas, the royalty interest described in said deed, because his interest covered a small tract of ten acres, and accepted from Dumas a deed covering the entire forty-acre tract, but only % as great an interest therein; that appellant, G-. C. Dumas, joined by M. L. Dumas and Olive E. Dumas, conveyed to plaintiff an undivided 1/64 interest in the minerals in and upon said 40-acre tract, but subject to the Smith lease, but that he should have conveyed, and, under the agreement, was bound to convey an undivided 1/8 interest in and to all the mineral royalty reserved and to be reserved under the Smith lease, which would have been equivalent to an undivided 1/64 of the total production of minerals from said land during the lifetime of said lease; or what is commonly known as a 1/64 royalty, and that he was led to believe that he was getting a 1/64 royalty, but, by virtue of a mutual mistake and a lack of knowledge on their part as to how said deed should have been drafted so as to convey said interest, it was actually drawn so as to convey to appellee a 1/64 of the 1/8 royalty reserved, which would he equivalent to a 1/512 of the total production from said land, or only 1/8 as great an interest as they had in fact agreed to convey to him. In other words, it is charged that in the first agreement under the Rowland lease he was to get a y2 undivided interest in a 1/8 royalty in ten acres, or a 1/16 of the oil in ten acres, which would he the equivalent of a 1/64 interest in the minerals of forty acres.

He further alleged that he was a railroad trainman, and wholly unfamiliar with conveyancing; that he accepted the deeds, thinking he was getting the exact interest to which he was entitled, and which he and appellant, Dumas, had agreed upon. The deed to his royalty interest under the Rowland lease passed out of the case by limitation, and it is the deed to the royalty interest under the Smith lease that is sought to be reformed. The chancellor found, after an extended hearing, that the latter deed was a proper subject of reformation, and entered a decree reforming* it in accordance with the agreement of the parties. A final decree was rendered on December 8, 1927, in which appellant was allowed 1'20 days to prepare and file his bill of exceptions. He failed to prepare and file his bill of exceptions within the time allowed by the court, land, on motion of appellee in this court, all the oral testimony has been stricken from the record. Appellants now say that there remains only one question for this court to consider, and that is, whether the complaint states a cause of action against any or iall of the defendants. Appellants cite Rowe v. Allison, 87 Ark. 206, 112 S. W. 395, and quote therefrom the following:

“There is no oral testimony before the court, and there are no recitals of evidence in the judgment, and therefore a conclusive presumption must prevail that the evidence sustains the decree of the court, so far as it is possible for a decree based on the complaint to be sustained by evidence. If the decree is without the issues, or the complaint does not state a cause of action, this presumption cannot laid the appellee. Jones v. Mitchell, 83 Ark. 77, 102 S. W. 110. Where the decree is not responsive to the issues, it is void. Rankin v. Schofield, 81 Ark. 440, 98 S. W. 674; Cowling v. Nelson, 76 Ark. 146, 88 S. W. 913.”

Appellants say that the complaint herein does not state a cause of action against any of the appellants. We cannot agree with counsel in this contention, except as to M. L. Dumas and Olive E. Dumas, who should be eliminated from the second deed of appellant, Gr. C. Dumas, to appellee, as reformed by the chancery court. Both parties agree that they should be eliminated from this deed, land we concur with this agreement. The deed referred to is Exhibit B to the complaint.

In this case appellants did not demur to the complaint. They filed an answer, thereby treating the allegations of the complaint as sufficient to put them to answer. They are therefore asserting for the first time, in this court, that the complaint does not state a cause of action. As said by this court in Cohn v. Hager, 30 Ark. 25: “If the defendant had doubted the sufficiency of the pleadings, he should have demurred, and brought the question of its legal sufficiency before the court; but, instead of this, he has treated them as sufficient in law to put him to answer, and, having answered, and gone to trial upon the issue formed, even if, the pleadings were technically insufficient, the question cannot for the first time be raised in this court. ’ ’

In Morning Star Mining Co. v. Bennett, 164 Ark. 244-253, 261 S. W. 639, it is said:

“Various questions are raised about the sufficiency of the allegations of both the complaint and the cross-complaint to raise the issues here reviewed; but, without setting out these pleadings, it suffices to say that the testimony developed the issues we have discussed, and this testimony was taken without objection on either side, and, if the pleadings are not otherwise sufficient to raise these issues, they must he treated as amended to conform to the testimony taken without objection.”

In St. Louis Southwestern Ry. Co. v. Tucker, 161 Ark. 140, 255 S. W. 553, this court held that, where plaintiff’s testimony made out a case for damages, judgment therefor will not be reversed because he defectively stated his cause of action and the measure of his damages, in the absence of a demurrer or motion to make his complaint more specific.

We therefore find it unnecessary to discuss the several questions raised in appellant’s brief regarding the sufficiency of the complaint. There is no oral testimony before the court, although the decree recites it was heard on oral testimony, the bill of exceptions having been stricken from the record. The decree of the court is not without the issues raised by the complaint and the answer. Clearly the complaint states a cause of action for reformation, and, even if it be admitted that it is defectively stated, still there is a conclusive presumption that the evidence sustains the decree, and this court will treat the complaint as being amended to conform to proof.

The decree of the chancery court will therefore be modified in accordance with the agreement of counsel by the elimination of M. L. Dumas and Olive E. Dumas from the deed as reformed, same being Exhibit B to the complaint, and, as modified, will be affirmed. It is so ordered.


author: Hart, C. J.,

text:
    Missouri Pacific Railroad Company v. Yancey.
    Opinion delivered October 29, 1928.

      E. B. Kinsworthy, for appellant.

      E. P. Toney, N. B. Scott and Golden S Golden, for appellee.
   Hart, C. J.,

(after stating' the facts). The first assignment of error is that the testimony is not legally sufficient to warrant the verdict. In this contention we cannot agree with counsel. The question whether White, as alleged 'by the plaintiff, was acting within the general scope of his authority as a special agent for the defendant'company, was one of fact. To warrant a submission of the question to the jury, the evidence for the plaintiff, when viewed in its most favorable light, must be sufficient to make it appear that the false arrest was caused by an agent acting in the scope of his authority, Dickinson v. Muse, 135 Ark. 76, 204 S. W. 609. White testified that he had authority to arrest persons in the yards of the railroad company who were interfering with railroad-property. Yancey testified that, after he had arrested him, White told him that he was arresting him because some one had broken into a box-car of the defendant a few nights previously, and that he was suspected of being that party. Notwithstanding White’s denial of this and his testimony to the effect that he had arrested Yancey at the request of the marshal of MoG-ehee as one suspected of burglarizing some houses in MoGehee a few nights previously, the jury was warranted in returning a verdict in favor of the plaintiff. The testimony of the plaintiff was of a substantial character, and, if believed by the jury, showed that the plaintiff was arrested by White 'because he was suspected of having broken into a box-car of the defendant a few nig’hts before, and it turned out that the plaintiff had nothing to do with that crime. He wTas kept in confinement in the city jail from about 11:30 one night until about 6 o’clock the next afternoon, when he was turned out by the city marshal because it had been ascertained that the plaintiff had nothing to do with breaking into the box-car of the defendant.

The next assignment of error is that the court erred in submitting to the jury the question- of punitive damages, and in this contention we think counsel is correct. Actual damages are given to compensate a person for an injury done when none was intended, or, in other words, where the injury was the result of the negligence of the defendant in the action. In such a case the injured party is entitled to recover for the pain and suffering experienced by his false -imprisonment, any illness caused by it, the sense of shame and disgrace endured by him, and any other element, which was the natural consequence of the injury the plaintiff received by the treatment of the defendant. On the other hand, exemplary damages will not be awarded in this State on account of negligence alone, however gross. Ward v. Blackwood, 41 Ark. 291, 48 Am. Rep. 41; St. Louis S. W. Ry. Co. v. Owings, 135 Ark. 56, 204 S. W1146; Hodges v. Smith, 175 Ark. 101, 298 S. W. 1023. According to these cases, to justify an award for punitive damages there must be malice, express or implied, or some element of willfulness or wantonness.

The general rule is that exemplary or punitive damages will never be allowed where the false imprisonment was brought about in good faith, without malice in fact or in law, and there is no element of wantonness or recklessness on the part of the party maldng the arrest. 25 C. J. 565; and 11 R. C. L., § 36, page 821. Tested by this rule, we do not think there is any testimony in the record which would warrant the submission of punitive damages to the jury. There is nothing whatever from which the jury might legally infer that White was actuated by malice, express or implied, in arresting the plaintiff. The plaintiff was accompanied by another person who had been charged with stealing cigarettes from a box-car of the railroad company, and the occasion was quite out of the ordinary. The arrest was made in the yards of the company, at 11 o’clock at night, which was an hour when no person was likely to have any business there. White was charged with the duty of protecting the property of the railroad company, and was in the discharge of his duties at the time he made the arrest. As soon as he arrested the plaintiff, he carried him to the depot, some' two hundred yards away, and at once delivered him to the night marshal. He had nothing further to do with the matter. The arrest was not accompanied 'by any abuse or any act of cruelty or oppression. All the accompanying circumstances show that White acted in good faith, and we can find no element of punitive damages in the whole transaction. Therefore the court erred in submitting the question of punitive damages to the jury. For that error the judgment must be reversed, and the cause remanded for a new trial.


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    State v. Davis.
    Opinion delivered October 29, 1928.

      H. W. Applegate, Attorney General, and J. 8. Abercrombie, special counsel, for appellant.

      J. P. Clayton and Evans & Evans, for appellee.
   Hart, C. J.,

(after stating the facts). The Legislature of 1923 passed an act, at a special session, for the collection of certain license fees from automobile owners by the sheriff of each county in the State, and, under § 42 of the act, it made it the duty of the sheriff to pay into the State Treasury, to the credit of the State Highway Commission, all moneys received by him under the provisions of the act. .Acts of Arkansas, 1923, Special Session, act 5, p. 11. Under § 44 of the act, the official bondsmen of such sheriff are liable for the faithful performance of his duties under the act. Section 5166s and § 5166t, Castle’s Supplement to Crawford & Moses’ Digest, pp. 316 and 317.

The record shows that the sheriff deposited .the automobile license taxes collected by him for the month of January, 1926, in the People’s Bank of Ozark, Avithout any express authority to do so, and that the funds so deposited were lost on account of the insolvency of the bank. The sheriff had no knowledge of its insolvency at the time the deposit of the automobile license taxes was made in the bank by him. The sheriff and his bondsmen were relieved from the payment of this money by act 42, passed by the Legislature of 1927. Acts of 1927, page 121. The constitutionality of this act is challenged by the State, and it is also claimed that the transaction under consideration did not fall Avithin the terms of the act. 'Section one of the ;act reads as follow's:

“The Governor shall have power to relieve any public officer in this State, and the bondsmen of such public officer, from the payment of any public funds which said officer may have on deposit in any bank in this State that has been officially designated as ;a State or county depository, that is now or may hereafter become insolvent. The action of the Governor in relieving any public officer or bondsmen from personal loss in this respect shall in no way relieve the bank from accounting for said funds.”

There is a conflict in the authorities as to whether a public officer Avho loses money by failure of a bank in which are public funds intrusted to his care may be relieved of liability therefor by the Legislature. Cooley on Taxation, 4th ed., § 196. In this State it has been held that, where a public officer has lost public funds without any fault on his part, he may be reimbursed ox relieved from liability therefor. Pearson v. State, 56 Ark. 138, 19 S. W. 499, 35 Am. St. Rep. 91; Newton County v. Green, 104 Ark. 270, 149 S. W. 73, Ann. Cas. 1914C, 491; and Bauer v. North Arkansas Highway Improvement District No. 1, 168 Ark. 224, 270 S. W. 533, 38 A. L. A., 1507. It has become the well-settled rule in this State that the Legislature has the power to pass an act relieving a public officer from liability, where public money has been lost without any fault on his part.

In Miller v. Henry, 62 Ore. 4, 124 Pac. 197, 41 L. R. A. (N. S.) p. 97, the Supreme Court of the State of Oregon said that the weight of authority as well as the better reason is to the effect that the Legislature possesses the power to cancel liability of officers for money lost by them, when such loss was not occasioned by their unfaithfulness or willful misconduct.

It is next suggested that the act in question is open to objection because it is a delegation of legislative power. While it is a doctrine of universal application that the functions of the Legislature must be exercised by it alone, and cannot be delegated, it is equally well settled that the Legislature may delegate to executive officers the power to determine certain facts, or the happening of a certain contingency, on which the operation of the statute is by its terms made to depend. 12 C. J. 846, and 6 R. C. L., paragraph 165, p. 164. This principle has been frequently recognized by this court. Harrington v. White, 131 Ark. 291, 199 S. W. 92; Howard v. State, 154 Ark. 430, 242 S. W. 818; and Summers v. Road Improvement District No. 16, 160 Ark. 371, 254 S. W. 696.

If the law is mandatory in all it requires and all it determines, it is a legislative act, although it is put into operation by officers or administrative boards selected by the Legislature.

In Locke’s Appeal, 72 Penn. St. 491, 13 Am. Rep. 716, Mr. Justice Agnew, speaking for the court, said:

‘ ‘ Then, the true distinction, I conceive, is this: The Legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend which cannot 'be known to the lawmaking power, and must therefore be a subject of inquiry and determination outside of the halls of legislation.”

In the case at bar the Legislature passed a law for the relief of public officers named therein, and provided that the Governor might examine and look into the facts as a part of the enforcement of the law, and the granting of the authority to him was not a delegation of legislative power. The power was given to him as an incident to his duties as Governor; but the Legislature might have given to any other board or officer of the executive department of the State the power to ascertain the facts in the case as a basis for putting the law into operation. Hence we are of the opinion that the act is not open to the objection that it is a delegation of legislative power to another department of the government and on that account in violation of our Constitution.

Again, it is insisted that the Legislature only intended for the act tp operate where a public officer had deposited State funds under the statute in a State depository with a bond for the protection of said funds, or had deposited county funds in a county depository under like circumstances. When the object and purposes of the act are considered, we think this is too restricted a construction to give to the language used by the framers of the act. The act provides that the Governor shall have power to relieve a public officer from the payment of public funds which the officer may have on deposit in any bank in this State which has been officially designated as a State or county depository. The Legislature evidently had in mind to give the Governor the power to relieve any public officer from liability when he had deposited the funds in a bank which had been officially designated as a State or county depository, regardless of the fact whether such officer had been expressly given the power to deposit such funds in the bank. In other words, the Legislature meant to say that a bank which had been designated officially as a State or county depository was such a bank ias an officer was entitled to place confidence in, and the officer could not in any sense be said to be negligent in depositing the public moneys in it.

Under our former decisions on the subject, where money has been lost without the fault or carelessness of the public officer on account of having been deposited in a bank which became insolvent, the Legislature has power to relieve such officer from liability. The Legislature, in the act in question, evidently intended to give the Governor the power to find out whether there had been negligence on the part of the public officer where ■he had deposited the money in a bank which had been officially designated as a .State or county depository. The fact that the bank had been officially designated as a State pr county depository for other funds would give it the stamp of official approval, and by depositing the money there the public officer might relieve himself from any negligence in the selection of the bank; therefore we are of the opinion that the proclamation of the Governor, under the terms of the act in carrying out the provisions of the Legislature, had the effect of relieving the sheriff and his bondsmen from liability for the payment of the funds in question. The judgment is therefore affirmed.

Smith, J., dissents.


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    Alford v. Prince.
    Opinion delivered October 29, 1928.

      Nelson $ Crawford, for appellant.

      Frank C. Douglas, for appellee.
   Hart, C. J.,

(after stating the facts). This is the second appeal in the case. Prince v. Alford, 173 Ark. 633, 293 S. W. 36. Upon the former appeal the court said that, while the lease did not require Alford or Reeves to construct a new 'building, it did convey to Prince the lot upon which the new building was erected for the term of two years, and that he had a right of possession of the whole lot for that period of time, and was entitled to the possession of iany new building or buildings erected on the lot upon the payment of a rental of $50 per month. The effect of the decisions upon the former appeal was that Prince was entitled to the whole lot and the building or building’s erected on it by Reeves, regardless of their size. Alford and Reeves could not require him to accept a new building of the same size as the one which had been torn down and relinquish his right of possession of the remainder of the lot.

The testimony upon the present ¡appeal is substantially the same as that upon the former appeal, and what was said upon the former appeal becomes the law of the case. It was there said that, if Reeves took title to the lot with notice of the lease, he was jointly liable with Alford for any damages resulting from the breach of the contract.

Upon the present appeal the court submitted to the jury the question whether or not Reeves took title to the lot without notice of the lease, and the jury found against Reeves on this point. The individual liability of Alford is shown by the undisputed testimony. In other words, according' to the interpretation of the terms of the lease upon the former appeal, Prince was entitled to the possession of any new building- or buildings upon the lot in question for two years, at a rental of $50 per month. In the present appeal there is. no testimony tending to excuse Alford’s breach of the lease contract. Hence, under the undisputed evidence, Prince was entitled to recover from him the sum of $100 per month for two years, less the $50 per month which he had agreed to pay as rent. This would amount for two years to the sum of $1,200, as found by the jury.

The jury having found, upon conflicting testimony, that Reeves had actual knowledge of the provisions of the lease at the time he purchased the lot in. question, he was jointly liable for the difference between the agreed rental of the lease and the amount that Reeves ¡actually received for the rent of the new building or buildings. This, as we have already seen under the undisputed evidence, amounted to $1,200. Therefore the judgment will be affirmed.


author: Smith, J.

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    Brenard Manufacturing Company v. Pate.
    Opinion delivered October 29, 1928.

      O. A. Featherston, for appellant.

      Piwmx & Pinnix, for appellee.
   Smith, J.

Appellant brought suit in the Pike Circuit Court against appellees, on a contract for the sale of a radio outfit and certain accessories amounting to $305.

Appellees answered, and alleged that, under the contract sued on, they had executed to appellant’s order five notes for the sum of $55 each and a sixth note for $30. That on November 30, 1925, the 'Security Finance Company brought suit on four of the $55 notes, as the owner thereof, in the court of a justice of the peace of Pike County, alleging that it was the owner of said notes, and that the same were unpaid. Appellees answered in the justice court, and alleged that the execution of the notes sued on had been procured by fraud, and that there was no consideration for them. The issue joined was heard -by the justice of the peace, who, on November 30, rendered judgment in favor of the defendants. From this judgment of the justice of the peace an appeal was duly prosecuted to the circuit court o'f Pike County. It was further alleged and shown that on January 20, 1926, the Security Finance Company brought 'suit on the fifth note for $55 and the $30 note, before another justice of the peace of the county, and that the same defense was interposed by the defendants, and on the trial before the justice of the peace a judgment was rendered in favor of the defendants. From this judgment of the justice of the peace an appeal was duly prosecuted to the circuit court of Pike County.

At the ensuing term of the'circuit court the plaintiff, Security Finance Company, took a nonsuit in each of these appeal cases, and they were dismissed at plaintiff’s cost.

The authority of the Security Finance Company to sue on the notes in the courts of the justices of the peace is not questioned, and, the identity of the present case with that of the two suits before the justices being shown, the judge directed the jury to return a verdict for appellees, on the theory that the justices ’ judgments were a bar to the present suit, and the correctness of this ruling is the question presented by this appeal..

For the reversal of the judgment of the court below it is insisted that, after the appeal to the circuit court, the suits of the Security Finance Company had the same status as if originally begun in that court, and inasmuch as. the statute (¡§ 1261, C. & M. Digest) gives the plaintiff the right to dismiss his action -without prejudice to a future action “before the final submission of the case to the jury or to the court,” the right existed, before the submission of the justice appeals to the court or jury, to dismiss those cases without prejudice to a future action.

We do not concur in this view, for the reason it does not give proper effect to the judgments of the justices of the peace. The justice courts had jurisdiction of the causes brought in them, and judgments were rendered which adjudicated the rights of the parties, and these judgments were effective and valid until they were set aside in some manner provided by law.

It is true that, on appeal from the judgment of a justice of the peace to the circuit court, the cause is tried de novo; but it is true also that the nonsuits taken in the circuit court amounted to dismissals of the appeaís, and, when that was done, the judgments of the justices of the peace were left in force as if no appeals had been taken.

The case of Burgess v. Poole, 45 Ark. 373, rules this. There Burgess and Poole had separate mortgages upon a crop of cotton produced by Williams, who brought replevin before a justice of the peace against Burgess for four bales of the cotton. Poole, on his own application, was admitted as a party to the suit, and, judgment having been given for Burgess, Poole appealed to the circuit court. Subsequently, and before any disposition had been made of this appeal, Poole instituted suit in replevin against Burgess before another justice of the peace for the identical cotton. This last-mentioned action also found its way into the circuit court by appeal, and was there determined in favor of Poole. The opinion recites that it was not shown what had become of the first appeal, but that it had probably been dismissed, either upon Poole’s own motion or for want of prosecution, before the trial in the second appeal. It was said:

•“If this be so, the obvious effect was to leave the judgment of the justice of the peace in full force, the same as if no appeal had been taken.” It was there ■further said: “But, whether dismissed or not, the judgment of the justice of the peace stands until it is set aside by a superior court. The grant of an appeal did not impair it. Nor did it revive Poole’s original cause of action, which had been destroyed by merger, so as to enable him to maintain an independent suit upon it. Burgess, if sued again for the same matter, during the pendency of the appeal, might plead the former judgment in bar. ('Citing cases). It was an issue in the present action that the matter in controversy was res judicata. Burgess filed in the circuit court a plea of former suit pending between the same parties and involving the same subject-matter, and on the trial he read in evidence the docket entries of the justice in the first action, showing the facts above recited.

“If Poole had kept aloof from the litigation between Williams and Burgess, he would not have been concluded by any judgment therein. Being a stranger to the proceeding, he mig*ht have sued out his writ of replevin for the same property without waiting for the determination of that suit. Hagan v. Deuell, 24 Ark. 216. But, having voluntarily come in, he is bound by the result, as much as if he had been an original party.”

It is true the instant cáse was not brought until after the nonsuit had been taken in the circuit court, but, as was said in Burgess v. Poole, supra, “the obvious effect (of a nonsuit) was to leave the judgment of the justice of the peace in full force, the same as if no appeal had been taken.” There was therefore, at the time the instant case was 'begun, two outstanding judgments of the justices of the peace adjudicating that the notes which formed the consideration for the contract sued on were without consideration.

In the case of Denver & R. G. R. Co. v. Paonia Ditch Co., 49 Colo. 281, 112 Pac. 692, the facts were that a judg’ment was rendered in favor of the defendant railway company in a suit against it by the plaintiff ditch company. On the appeal to the circuit court, the ditch company was granted leave to' dismiss its action without prejudice. It was contended that this right existed under the section of the Code of Civil Procedure of the State of Colorado, where the action originated, similar to § 1261, C. & M. Digest, which gives to the plaintiff the right to dismiss his action at any time 'before trial, upon payment of costs, if a counterclaim had not been made. No counterclaim had been made in that case, but there had been, as was pointed out by the Supreme Court of Colorado, a trial of the action in the county court, and it was held by the court that the statutes of that State giving the plaintiff the right to take a nonsuit did not give the plaintiff against whom a judgment had been rendered in the lower court, as the result of a trial there, the right to dismiss his action without prejudice, after he had appealed to the district or superior court. It was there said:

“The spirit of the Code provision, as applicable to the facts of this case, is that the plaintiff may, as matter of right, before trial in the county court, dismiss his action upon payment of costs, if no jcounterclaim has been made; but an unsuccessful plaintiff is not thereby authorized, after failing in the county court, to appeal to the district court, and, before trial there, dismiss his action without prejudice, over the objection of the successful defendant. The perfecting of an appeal to the district court from a judgment rendered by the county court does not vacate that judgment. It merely suspends its execution till the district court otherwise orders. The action of the district court here is equivalent to an investiture in a litigant of the power in the appellate court to vacate a judgment rendered against him in the court of original jurisdiction, without a trial on the merits, which, in a case like this, resides only in the district court itself.”

In so holding it was pointed out that it was to the interest of the State that there be an end to litigation, and that, if the ruling of the district court was sanctioned, it would tend unjustly to prolong- litigation and pnt unrestricted power in the hands of one litigant to harass and annoy another.

We conclude therefore that the court below was correct in holding that the judgments of the justice courts were res judicata of the causes of action sued on, and the judgment dismissing the second suit in the circuit court on the same cause of action is therefore affirmed.


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    Free v. Jordan.
    Opinion delivered October 29, 1928.

      Fred M. Pickens, for appellant.

      Elmo CarlLee, for appellee.
   Smith, J.

Appellant brought suit in replevin in the court of a justice of the peace on October 31, 1927, to recover possession of a certain dog. Judgment was rendered in his favor by the justice of the peace, but, at the trial on the appeal in the circuit court, before a jury, a verdict was directed against him, on the ground that his cause of action was barred at the time the suit was brought.

Appellant testified that he owned the dog in question, and that he lost it in the summer of 1924 or the early fall of that year. He heard that appellee had the dog, and asked appellee about it, telling him that a Mr. Green had said he might have the dog. Appellee stated that Green was mistaken, and that he did not have the dog. Appellant later found the dog in appellee’s possession, and, when demand was made, appellee claimed he had bought the dog, and refused to surrender it.

Green testified that he found the dog in the summer or early fall of 1924, and told appellee about having it. Appellee saw the dog while it was in Green’s possession. The dog disappeared, and witness had not seen it since.

John Adams testified that he saw the dog at appellee’s home, and recognized it as the dog of Arthur Johnston. Appellant testified that he had bought the dog from Arthur Johnston.

The trial court was correct in holding that a suit in replevin is barred unless brought within three years of the date when the cause of action accrues; but it was held, in the case of Conditt v. Holden, 92 Ark. 618, 123 S. W. 765, that, where there has been a fraudulent concealment of a cause of action, the statute of limitations does not begin to run until the discovery of the fraud. The case cited was a suit in replevin for the possession of-a mule, of which the defendant had been in possession for over four years when suit was brought against him to recover the possession.

The jury might have found in the instant case, from the testimony we. have summarized, that appellee had concealed from appellant the fact that he was in possession of a dog which he knew appellant claimed.

We conclude therefore that, as was said in Conditt v. Holden, supra, the question of ownership, as well as the question of fraudulent concealment from appellant of his right of action, should have been submitted to the jury, with directions to find for appellant if it were found that he was the owner of the dog and that appellee had concealed his possession of it from appellant. See 34 Cyc., title, “Replevin,” pp. 1423-1424; Dee v. Hyland, 3 Utah 308, 3 Pac. 388; Wells v. Halpin, 59 Mo. 92.

It is urged that there is no proper bill of exceptions presenting the question of fact which we have discussed, for the reason that the caption to the transcript is entitled: “Pleas before the Hon. S. M. Bone, judge of the Third Judicial Circuit of Arkansas, and before Hon. C. M. Erwin, acting’ as special judge, * * *” whereas the bill of exceptions was signed by Judge Bone ¡alone.

It is true, as appellee contends, that, where the proceedings occur before different judges, each should sign the bill of exceptions as to the proceedings before him (Cowell v. Altchul, 40 Ark. 172); but it does not appear that any one presided at the trial except Judge Bone. The certification of the bill of exceptions reads as follows: “I, S. M. Bone, judge of the Third Judicial Circuit of Arkansas, having presided in the trial of the above-entitled cause, and having examined the above bill of exceptions presented to me, ’ ’ etc.

The bill of exceptions appears therefore to be properly certified, and, for the error of directing a verdict in appellee’s favor, the judgment must be reversed, and it is so ordered.