author: Hart, J.

text:
    St. Louis Southwestern Railway Company v. Gant.
    Opinion delivered June 9, 1924.
    1. Master and servant — assumed risk. — The general rule is that one who, knowing and appreciating the danger, enters upon a perilous work, even though hy a superior’® orders, must bear the risk; but where he is not aware of the danger and does not appreciate the risk, and such ignorance is consistent with due care on his part, the rule is otherwise.
    2. Master and servant — care as to safe working place. — A master must use ordinary care to supply a safe working place for the use of his servants, and in discharge of his duty is bound to exercise reasonable diligence in informing himself that the working place is safe.
    3. Master and servant — servant’s reliance on master’s care.— In the absence of knowledge of danger and appreciation of risk, a servant may assume that the master has done his duty and rely to some extent on his superior judgment, but he cannot plead ignorance of a danger that is obvious to any one with his experience in the work.
    4. Master and servant — assumed risk — jury question. — In an action by a section hand for injuries sustained in an explosion when ordered by his foreman to take a lantern and see how full an oil-car was of water, whether the plaintiff assumed the risk from obeying the foreman’s command held for the jury.
    5. Trial — repetition of instructions. — Refusal of an instruction covered by instruction given was not error.
    Appeal from Miller Circuit Court; James M. McCollum, Judge;
    affirmed.
    ’ J. R. Turney, Gaughan & Sifford and Elbert Godwin, for appellant.
    1. The principle of law is elementary that an employee of a railroad company assumes the usual and ordinary risks incident to his employment and the method of work adopted, so far as such risks are known to him, or can he known to him by the exercise of ordinary and reasonable care. 65 Ark. 98. It is likewise elementary that the doctrine of assumption of risk is wholly dependent upon the servant’s knowledge, actual or constructive, of the dangers incident to his employment. If he knows, or, in the exercise of reasonable and ordinary care, should know, the risk to which he is exposed, he will be held to have assumed it. 98 Ark. 211;'96 Ark. 387. It is dear from the testimony that appellee and all others working under Westbrook at the time in question, were warned of the danger of approaching the tank cars with a lighted lantern; but, aside from that, appellee had a concrete warning, which he admitted having seen, of the setting afire of the top of one of the cars by the striking of a match to light a cigarette. The servant assumes the risk, where he and the master are possessed of equal knowledge, or meáns of knowledge, of defects and dangers, or where they are equally ignorant thereof. 26 Cye. 1202, 1203; Id. 1241. If the danger is obvious, and can be seen by the servant, the fact that he is directed by the master to perform such dangerous work will not relieve him of the assumed risk. 66 Mich. 277; 88 Wis. 376; 14 Ky. L. Rep. 688, 21 S. W. 346.
    2. Under the Federal Employers ’ Liability Act, the contributory negligence of the plaintiff will not defeat a recovery, but will diminish the damages recoverable in proportion to the degree to which plaintiff’s negligence contributed to the injury. If his negligence was the proximate cause of the injury, he cannot recover. ’26 Cyc. 1246; 194 Ala. 94, 69 So. 611.

      William F. Denman, for appellee.
    1. A servant, when he enters the service of another, or while he continues in that service, does not assume the risk of dangers arising from the negligence of the master, unless he is aware of such negligence and appreciates the danger. And, in the absence of knowledge on his part, he has the right to rely upon the assumption that the master has performed the duties devolving upon him, so as not'to expose him to extraordinary hazards. 67 Ark. 209; 90 Ark. 226; 95 Ark. 295. Under the circumstances of this case, it was a question for the jury to say whether or not the appellee assumed the risk. Í36 Ark. 606; 95 Ark. 291; 121 Ark. 433; 128 S. W. 83. And for them to say whether or not he knew and appreciated the danger incident to boarding the car in the manner indicated. The master and servant are not'on thé same footing. The latter’s primary duty is obedience, and if, while in the discharge of that duty, he is damaged through the neglect of the master, he is entitled to be recompensed. 149 Ark. 109; La/batt on Master and Servant, 440. He has the right to assume that the master will not expose him to unnecessary danger, and will not cause him to take extraordinary risks by obeying orders of those in authority over him; and he cannot be said as a. matter of law to be guilty of negligence in obeying such orders when he does not know the danger. Labatt, Master and Servant, 440-b; 56 Ark. 206; 58 Ark. 66; 65 Ark. 138; 95 Ark. 297.
    2. Contributory negligence, in an action based on the Federal Employers’ Liability Act, does not bar a recovery. It only diminishes the damages'in proportion to the amount of negligence attributable to the servant. 144 Ark. 229; § 3, Federal Employers ’ Liability Act.
   Hart, J.

This was an action to recover damages for personal injuries sustained by A. W. Gant while in the service of the St. Louis Southwestern Railway Company as a section hand.

The plaintiff was engaged, with other section hands, under the supervision of a foreman, in filling oil tanks with water at Stamps, Arkansas. Some time after dark the plaintiff went up on an oil tank with a. lighted lantern to see if it was full of water. He could see where the oil had wasted around on the ear.- When he got up on the car there was an explosion, which severely injured him. The explosion was caused by the oil evaporating and coming in contact with the lighted lantern.

The plaintiff recovered judgment in the sum of $1,000, and from the judgment rendered the defendant has duly prosecuted an appeal to this court.

The main contention here is that the' verdict was not justified by the evidence, for the reason that the plaintiff must be deemed as a matter of law to have assumed the risk.

The general rule is that one who, knowing and appreciating the danger, enters upon a perilous work, even though hé does so by order of a superior, must bear the risk; but, where he is not aware of the. danger and does not appreciate the risk, and such ignorance is consistent with due care on his part, the case is different. The master and servant do not stand upon the same footing in this respect. It is the master’s duty to use ordinary care to supply a safe working place for the use of his servants, and, in the 'discharge of this duty, he is bound to exercise reasonable diligence in informing himself that the working place is safe.

On the other hand, in the absence of knowledge of danger and the appreciation of the risk, the servant has a right to assume that his master has done his duty and to rely to some extent on his superior judgment. Of course the servant cannot be heard to plead ignorance of a danger that is patent and obvious to any one with his experience in the work. Southwestern Tel. Co. v. Woughter, 56 Ark. 206; Griffin v. St. L. I. M. & S. Ry. Co., 121 Ark. 433, and Scott v. Wisconsin & Arkansas Lbr. Co., 148 Ark. 66.

It appears from the record that the plaintiff, A. W. Gant, is a colored man, and was thirty-one years of age at the time he was injured. He had been working as a section-hand for the defendant, under Z. Westbrook as his foreman, for about two years. Their principal work was putting cross-ties in the railroad; but in December, 1922, they were directed by Westbrook to go into the yards of the railroad at Stamps, Arkansas, and fill the oil-tank cars with water. There was a shortage of water at Texarkana, and the oil-tank cars to be filled with water were to be carried there for the use of the railroad. About ten o’clock in the night Westbrook asked Gant how near he had his tank full. According to the testimony of Gant, he told Westbrook that he did not know. Westbrook then said to him, “Take your lantern and'go and see about it. We want to get through at ten o’clock, and 1 will give you boys a day for it.” Gant then took the lighted lantern from the hands of West-brook, and went up on the tank-car. As soon as he got up there .an explosion .occurred, which severely injured Mm. The tank-car in question had been used in hauling oil, and Gant could see where the oil had wasted around on the car.

On cross-examination Gant admitted that, on the morning before he was hurt, he saw another section-hand on top of a tank-car light a cigarette, and that this caused the top of the car to catch on fire. He was some distance away, but heard them talking about it, and knew that the fire was caused by a match struck by the section-hand. He said that he did not know, however, that, if he got up on the tank with a lighted lantern, the tank would catch on fire. The gas which caught on fire from the lighted match burned for some time, but Gant did not know how long it burned. Gant’s testimony was corroborated by that of another section-hand.

On the other hand it was shown by the railroad company that all the section-hands had been warned, before they went to work, of the danger from gasoline. They were told that they must not use a light of any kind around it; that, if they did so, the gas would catch on fire and explode.

According to the testimony of Westbrook, he told the plaintiff; not to go on the car with the lantern, for the reason that he might set the car on fire. Thé plaintiff replied that there was too much water in it for that, and proceeded on his way. When he stuck the lantern in the top of the car the explosion occurred, and the plaintiff fell.off of the car.

The testimony of Westbrook was corroborated by a third person who happened to be present.

• Assuming all the facts as favorable to the plaintiff as the evidence warrants, we cannot say, as a matter- of law, that the plaintiff assumed the risk; but it was open to the jury to find that the plaintiff did not know or appreciate the risk of the work upon which he was engaged at the time he was hurt.

It is true that he saw another section-hand light a cigarette on top of a tank-car and thereby cause an explosion,--and, by- seeing this, he must .have known in a general way that the gas • around-the tank-cars • would explode if- exposed-to a -flame. -He had a right, however, to rely to some extent upon the superior knowledge of liis- foreman. • -The work was being done under . liis immediate supervision and direction. Gant might have assumed -that the -foreman knew that there was more oil in and around the car where the explosion was caused by the- lighted match, or that lie might have thought that a lighted match would .be more likely to cause an explosion than the light from a lantern, which was inclosed by its globe. Again, he might have thought that there was less danger of an explosion because his tank was nearly full of water, and that this had driven nearly all of the gas from the tank.

Under the circumstances stated it might have been found by the jury that Gant did not appreciate, and, in the exercise of ordinary care, was not bound to appreciate, the danger from obeying* the command of his foreman. The case is close, but the evidence is sufficient to be submitted to the jury upon this issue.

The next assignment of error relied upon for a reversal of the judgment is that the court erred in refusing to give instruction No. 4. The instruction reads as follows: “You are instructed that, if you believe from the* testimony of the witnesses that at the time that plaintiff started-to go on the car with the lighted lantern he Avas warned by Westbrook, his foreman, not to take the lantern with him, and, in disregard of said Avarning*, plaintiff, went upon said car with said lantern in his hand, which lantern ignited the gas escaping from said car and caused the explosion which resulted in the injur}7, then your verdict should be for the defendant.”

.- ■ ■ ■ In this connection it may be stated that the court gave instructions Nos. 3--and 5 at the request of the ■defendant. • Instruction No. 3 reads as follows: “You are instructed that, if you believe that .plaintiff, after ■having 'been cautioned- or warned of the danger of carrying* a light on or about said tank-car, and, in disregard .-of said.warning-, proceeded to. go upon said, car, .carrying a lighted lantern with him, which' lantern ignited the gas escaping from said car and caused the explosion which resulted in the injury complained of, then your verdict should be for the defendant.”

Instruction No. 5 is as follows: “You are instructed that, if you believe from the testimony that plaintiff’s foreman, or any of the employees of the company, before the injury occurred, warned and instructed plaintiff; or warned and instructed any others in the presence and hearing of plaintiff, to keep lights or lightéd lanterns away from the ears, and that plaintiff, after having heard said warnings given, in disregard of his own safety, went upon said car with a lighted lantern, and,’ as a result thereof, the escaping gas from the car ignited, causing the explosion, resulting in the injury complained of, then your verdict should be for the defendant.” ‘

While it is true that instruction No. 4 submits the issue of the warning given by the foreman in a concrete form, and should have been given if no other instruction had been asked or given on that point, yet the refusal to give it does not constitute reversible error. The court is not required to multiply instructions upon the same point. Instructions Nos. 3 and 5 were given to the jury at the request of the defendant. It was the theory of the defendant that the plaintiff and the other section-hands had been fully warned of the danger of working around the oil tanks with any kind of light before they commenced to work at the time in question.

This theory of the case was fully covered by instruction No. 5. This instruction specifically submitted to the jury the question of -warning the employees before the injury occurred, and this referred to the warning given them before they commenced work.

Instruction No. 3 is more comprehensive, and embraces any warning that might have been given to the plaintiff of the clanger'of carrying a light on or about said tank-cars. This instruction is as applicable to the testimony'of Westbrook as it is to-the testimony of the other witnesses for the defendant. The defendant claims that the plaintiff was warned of the danger of working around the tank-cars with any kind of light, before he commenced work. This, as we have already seen, was fully covered by instruction No. 5. The only other warning that the defendant claims that the plaintiff had, was a warning which Westbrook said he gave him when he went upon the tank-car with the lighted lantern just before the explosion.

Instruction No. 3 covered this phase of the case. If the defendant had told the court that it preferred instruction No. 4 to instruction No. 3, doubtless the court would have given No. 4 instead of No. 3. For the reason that the matters embraced in instruction No. 4 are covered by instruction No. 3, we do not think the refusal to give instruction No. 4 resulted in any prejudice to the rights of the defendant, and the refusal to give it did not constitute reversible error.

It follows that the judgment will be affirmed.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Bertig Brothers v. Grooms Brothers.
    Opinion delivered June 9, 1924.
    1. Trial — transfer of cause. — An order overruling defendants’ motion to transfer the cause to the chancery court, in order that judgment theretofore obtained against plaintiffs by defendants might be credited on any recovery by plaintiffs against defendants, was proper where plaintiffs consented for such credits to be entered.
    2. Appeal and error — unnecessary appeal. — There was no necessity for defendants to appeal to the Supreme Court to obtain credits on a judgment rendered against them where plaintiffs consented to allow such credit in the court below.
    3. Judgment — amendment nunc pro tunc. — An amendment of a judgment nunc pro tunc may be established by the trial judge’s personal recollection.
    4. Dismissal and nonsuit — exclusion of counterclaim. — The exclusion of a counterclaim as an issue in effect- dismissed it.
    Appeal from Greene Circuit Court, First Division; W. W. Bandy, judge;
    affirmed.

      Bloch & Kirsch, for appellants.
    1. The original judgment against J. A. Grooms should not have been modified. The court took into consideration its own impression of the facts existing when the original judgment was rendered. The necessary implication from the language of this court in the case of Lowe v. Hart, 93 Ark. 54,8, 559, is that the trial court cannot rely upon its own recollection, to the exclusion of oral testimony before it. The minutes made by the trial court on his docket, the judgment entered pursuant thereto, and the testimony of appellant’s counsel, are all inconsistent with any other view than that the judgment as originally entered was correct. 84 Ark. 523, 532. See further on the power to amend judgments by mmc pro tunc orders, 106 Ark. 470; 93 Ark. 234, 237; 118 Ark. 497, 506; 72 Ark. 21; 55 Ark. 30, 37; 34 Ark. 291, 301; 159 Ark. 218; 51 Ark. 224, 231; 40 Ark. 224, 232; 129 Ark. 301; 143 Ark. 543; 118 Ark. 593; 84 Ark. 100. The effect of leaving thecas sailed judgment in force is to conclude appellees. 135 Ark. 450; 118 Ark. 402; 60 Ark. 146; 157 Ark. 27.
    2. Appellants should have been granted a transfer to equity so as to make their judgments available as counter-claims or set-offs, (a) On their availability as counter-claims, see C. & M. Digest, § 1195; 24 R. Ck L. 869; 160 Ark. 146; 135 Ark. 532. (b) As set-offs, see C. & M. Digest, § 1197; 24 R. C. L. 858, 859; 72 Ark. 44; 92 Ark. 594; 24 R. C. L. 871; 34 Ark. 707.

      W. 8. Luna, for appellees.
    1. .'Because J. A. Grooms misconceived his right to interpose a part of the partnership debt as a cross-complaint against appellants, and attempted to do so, does not preclude him from thereafter seeking his proper remedy. 15 R. C. L. 985. It is true that a judgment is conclusive, not only upon the question actually determined, but upon all matters which might have been decided in that suit; but this refers to all matters properly belonging to the subject of the controversy and within the scope of the issue. 96 Ark. 545; 149 Ark. 179.

      '2. An amendment of a judgment may be based on any evidence, whether parol or otherwise, which is satisfactory to the court in its weight and character. ’ 23 Cyc. 881; 17 Ark. 100; 85 Ark. 334.
   Humphreys, J.

Appellees instituted suit against appellants in the Circuit Court of Greene County, First Division, to recover a real estate commission of $500 for producing a purchaser ready and willing to buy certain lands listed with appellees by appellants for sale.

Appellants interposed the defense of res judicata, claiming that the right of appellees to recover the commission was concluded in a suit tried on January 30, 1922, wherein Bertig Bros, were plaintiffs and J. A. Grooms was defendant.

At a later date J. A. Grooms filed a petition seeking to correct the judgment, upon which the plea of res judicata was based,. so as to make it recite the dismissal without prejudice of his cross-complaint claiming one-half of said commission as a set-off, in lieu of a hearing and adjudication thereof.

Appellants filed an answer to the petition denying that, through inadvertence or oversight, a mistake was made in entering the judgment, but, on the contrary, alleging that a correct entry was made of the judgment actually rendered by the court.

Appellants also filed a cross-complaint and motion to transfer the cause to the chancery court so that, should appellees recover a judgment for the commission, appellants might receive credits thereon for the. judgments theretofore obtained by them against each of the appellees. It was alleged in the cross-complaint that appellees ■had theretofore obtained a judgment against W. F. Grooms for $200.78 and against J. A. Grooms for $180.73, which could not be collected on account of the insolvency of said appellees.

Appellees admitted that Bertig Br’os. had recovered separate-judgments against them for the amounts alleged, and consented for the court to credit any amount recovered by them with said judgments, whereupon the court overruled the motion to transfer the.cause to the chancery court, and entered a nunc pro tunc judgment correcting the record entry in the' case of Bertig Bros v. J. A. Grooms, so as to show that the counterclaim of J. A. Grooms for one-half the commission was dismissed without prejudice. Exceptions were saved and preserved by appellants to the refusal of the court to transfer the cause to the chancery court and to the action of the court in correcting the judgment.

The cause was then submitted to a jury, which resulted in a verdict and consequent judgment against appellants for $500, from which is this appeal.

Appellants enter a waiver to all objections saved and preserved by them, except those which relate to the trial court’s refusal to transfer the cause to the chancery court, to allow appellants credit for their several judgments against appellees, and to treat the judgment in the J. A. Grooms case as res judicata. We think the first two exceptions must necessarily pass out of the case by the offer of appellees in the trial court, and at all times since, to credit the judgments in favor of appellants against them upon the judgment they might and did obtain against appellants. There was no necessity of transferring the cause to obtain a credit which appellees offered to make, and no necessity of appealing the case to this court to obtain a credit which appellees have at all times consented and agreed to make.

This leaves only one question for determination, and that is whether the trial court erred in entering a nunc pro ■tunc order correcting’ the judgment in the case of Bertig Bros. v. J. A. Grooms, so as to make it recite the dismissal 'of his counterclaim without prejudice, in lieu of -reciting a hearing thereon.' As amended,-it is conceded that it did not constitute' a proper básis for a plea of ' res’ judicata. . ' ' . -

■ ' The facts, in substance, are as follows: 'Bertig Bros, were in the mercantile business. W. F. Grooms and'A. J. Grooms were real estate agents, doing a partnership business under the' firm name of • Grooms Bros: • W. 'F. Grooms became indebted in the sum of $200.78 and J. A. Grooms in the sum of $180.73 to Bertig Bros, on account of merchandise. Bertig Bros, brought separate suits against them in the circuit court for the amount owed by each. Grooms Bros, claimed Bertig Bros, owed the firm a real estate commission of $500. They ostensibly divided this commission between themselves, and each filed a counterclaim for $250 in the separate suits brought by Bertig Bros, against them. In the W. F. Grooms case the court refused to entertain or consider his counterclaim, and dismissed same without prejudice, on the ground that a partnership debt cannot be set-off against a suit to recover an individual indebtedness. The judgment rendered in that case reflected the disposition the court made of W. F. Grooms ’ counterclaim. In the case of J. A. Grooms, which was tried at an adjourned term of the court, the record entry did not reflect in so many words what disposition was made of J. A. Grooms’ counterclaim. The judgment contained the following-recital: “This cause is submitted to the court upon the complaint and exhibits thereto, the answer and cross-complaint of defendant, and plaintiffs’ reply to said cross-complaint; from which the court finds that defendant is indebted to plaintiffs in the sum of one hundred 'sixty-one and 56/100 ($161.56) dollars, with interest thereon at the rate of six per cent, per annum from the 7th day of February, 1920, until paid.”

This recital and the judgment entered in accordance therewith is pleaded as res judicata in the instant case, and is the recital and judgment which was corrected by the nunc pro tunc order so as to make it read that the counterclaim of J. A. ■ Grooms was dismissed without prejudice. Appellants contend for a reversal of the judgment upon the ground that the oral evidence introduced by appellees in support of the petition to correct the judgment-entry, together with the personal recollection of the judge who rendered the judgment, was insufficient to justify the nunc pro tunc entry. We cannot agree with them in this- contention. The testimony of the attorneys who tried the case is in conflict as to whether the court dismissed J. A. G-rooms’ counterclaim without prejudice, but we have a finding of the court who tried the case, which is supported by the personal recollection of the judge himself. In making the finding he said: “I know the cross-complaint wasn’t considered, hut was presented. I can’t help it being in my mind.” Appellants interpret this language as meaning that the cross-complaint was presented as an issue and not considered. We think the proper interpretation of the language is that the counterclaim was not entertained as an issue and passed upon in the case. The effect of excluding it as an issue was to dismiss it. The fact that the court dismissed the counterclaim of W. F. Grooms without prejudice in the same kind of case at- the same term of court is a very strong circumstance tending to support the finding of the court. The inherent probability that the court took the same course in both cases is a stronger circumstance in support of the court’s finding than the O. K. of the precedent for the judgment by A. J. Grooms ’ attorney is against it. On an application for a nunc pro tunc order correcting a judgment, where the testimony is conflicting as to what judgment was actually rendered, the court must necessarily rely to a great extent in reaching a conclusion upon the inherent probabilities and his personal recollection as to what judgment he rendered, if he has a definite recollection in the matter. We think in the instant case the finding of the court was justified by his personal recollection and the circumstances in the case.

No error appearing, the judgment is affirmed.


text:
    Kansas City Southern Railway Company v. Mosley.
    Opinion delivered June 9, 1924.
    1. Master and servant — negligence of fellow-servant. — In a brakeman’s action for injuries sustained while attempting to board a moving train, evidence held to show that the engineer negligently started the train at a greater rate of speed than he should, and negligently disregarded a signal to slow down for plaintiff to get on.
    2. Master and servant — instruction—harmless error. — In an action by a brakeman for injuries sustained while boarding a moving train, error of an instruction in referring to the starting of the train from a water tank instead' of from the station was not prejudicial, in the absence of specific objection.
    3. Master and servant — instruction as to negligence. — In a ’brakeman’s action for injuries received in'boarding a moving train, an instruction that, if it was necessary for plaintiff to board the train while in motion, and the engineer, being aware of that fact, started the train at a greater speed than was consistent with plaintiff’s safety, and plaintiff was injured in consequence of such negligence, he could recover, was warranted by the evidence.
    4. Trial — repetition of instructions. — It was not error to refuse an instruction fully covered by the court’s charge.
    5. Trial — instruction—abandoned issue. — It was not error to refuse an instruction requested by defendant on an issue which plaintiff had abandoned by failing to introduce any supporting evidence.
    6. Master and servant — proximate cause — jury 'question. — In a brakeman’s action 'for injuries alleged to have been sustained while attempting to board a moving train, whether engineer’s failure to slow down the train was the proximate cause of the injury h$ld for the jury.
    ■ Appeal from Sebastian Circuit Court, Fort Smith District';1 George W. Dodd, special judge;
    affirmed,

      Joseph R. Brown and James B. McDonough, for appellant.
    The suit is based upon the Federal Employers’ Liability Act; 35 'Stat. at Large, p. 65', Fed. Stat. Ann. vol. 8, p. 1'208. Under this act, before there can be any recovery, there must be negligence on the part of the railroad company or its employees. Negligence alone is the basis of any liability. 241 IT. S. 476; Id. 333; 93 S. E. 555; 156 Ky. 410; 8 Fed. Stat. Ann. p. 1277, and cases cited.. Before there can be any recovery, it must be shown that the railroad company was negligent, either by direct .or circumstantial evidence. 240 TJ. S. 66; 240 Fed. 73; 239 Fed. 256; 88 111. App. 172; 101 Atl. 587; 162 N. W. 988; 233 U. S. 492; 153 Pac. 1053; 240 TJ. S. 444; 86 S. E. 964. There is no presumption of negligence due to the injury being caused by the operation of a, train. 100 Ark. 467; 238 TJ. S. 608; 124 Ark. 298; 70 So. 19; 91 S. E. 502; 241' TJ. S. 333; 99 Kan. 544; 109 Atl. 713; 103 S. E. 102. Taking the evidence as a whole, it is clear that the plaintiff has failed to make out a case, even upon his own testimony. 100 Ark. 426; 79 Ark. 437; 90 Ark. 331; 82 Ark. 372; 8 Fed. Stat. Ann. p. 127i3, and cases cited.

      L. E. Lister, for appellee.
    It was a question for the jury to say whether or not the engineer acted as a reasonably prudent person would have acted under the circumstances shown in evidence. It was therefore not error to refuse appellant’s request for a peremptory instruction.
   Humphreys, J.

This suit was brought by appellee against appellant in the circuit court of Sebastian County, Fort Smith District, under the Federal Employers’ Liability Act of Congress, to recover damages for an injury received through the alleged negligence of appellant’s engineer while appellant and the railroad crew were engaged in interstate transportation of freight. The alleged negligence relied upon and submitted as an issue to -the jury for determination is as follows:

“The engineer negligently and wilfully started the train at a greater rate of speed than was allowed under the circumstances, and was by the conductor signaled to. slow down for the purpose of the plaintiff boarding the train, but the engineer, negligently and wilfully disregarding the safety of plaintiff, gave no attention to the signal to slow down.”

The allegations of negligence contained in the complaint were denied by appellant, but all of them, except the one quoted above, passed out of the case by reason of the failure of appellee to introduce any evidence to support them. This issue, the issue of whether appellee’s own negligence was the sole cause of the injury, the issues of contributory negligence and assumed, risk, and the issue of the amount of damage resulting, if any, were submitted to the jury upon the testimony introduced by the respective parties and the instructions of the court, which resulted in a verdict and consequent judgment in favor of appellee for $500, from which is this appeal.

Appellant’s first contention for a reversal of the judgment is that there is no substantial evidence in the record tending to show that the engineer negligently started the train at a greater rate of speed than he should, under the circumstances, or that he negligently disregarded the signal to slow down for appellee to board the train.

Appellee was the rear brakeman on extra north No. 751, which was an interstate train composed.of forty-seven cars, loaded with bananas and other fruits. The train left DeQueen, Arkansas, for Heavener, Oklahoma, at nine o ’clock a. m. of the 24th day of December, 1921, and arrived at Mena, Arkansas, at 2 :30 p. m., where the injury occurred. The train stopped at the water-tank about a quarter of a mile south of the station, and, while standing there, appellee and the swing brakeman examined the train and discovered that a hot-box needed some attention. After leaving the water-tank the train pulled up near the station, and, while there, appellee put pin dope in the hot-box, then went to the road crossing to cut the train if No. 3 brought different time orders for them. While waiting at the crossing for orders, the engineer whistled out of town. ’ ’

Appellant testified that, when the signal was given, the conductor was standing north of the crossing, on the engineer’s side, where each could see the other; that he expected to get on the caboose as it passed by; that the engineer started the train at a high rate of speed, about fifteen miles an hour, whereupon he signaled to the conductor to signal the engineer to slow down; that the conductor repeated the signal to the engineer; that he thought he could hear the cars release hack, indicating that the engineer had responded to the signal; that, as the caboose passed, he grabbed the hand-hold, but was jerked loose by the power of the train, before his foot hit the step, and was violently thrown on to the pavement, and seriously injured; that, as the caboose passed the conductor, he jumped on and stopped the train by opening the angle-cock.

C. F. Walker testified that he was an experienced brakeman, and it was safe for a brakeman to catch a train running from six to eight or ten miles an hour; that brakemen were required to get on and off moving trains in the performance of their duties, but were not required to take any chances.

W. G-. Hartman, the engineer, testified that he started the train at a speed of fifteen miles an hour, and that it was running at that speed when the conductor boarded the train and opened the angle-cock.

The testimony set out above tended to show that the engineer was negligent in starting the train at a rate of speed that would endanger the life of the crew if attempting to get on, and in failing to give' attention to the signal to slow down for them to board the train.

Appellant’s next contention for a reversal of the judgment is that the court erred in giving instruction No. 1, which is as follows: “You are instructed that, if you find from a preponderance of the evidence that plaintiff was an employee of the defendant company, and was engaged in operating or assisting in the operation of a freight train upon defendant’s line of railroad, and that it was a part of his duty, as brakeman upon said train, to inspect the same for defects, and that he made an inspection of the train while it was stopped at the water-tank at Mena, Arkansas, and you find that, after making said inspection, it was necessary for him to board the train while in motion, and that the engineer, knowing that plaintiff was expecting to board said train after it left the water-tank, started the train and negligently ran it at a greater speed than was consistent with plaintiff’s safety in attempting to board the train-; and that it was plaintiff’s duty, as rear brakeman, to stay at the rear of said train,, and you find that plaintiff was injured in attempting to board the caboose of said train, on account of the negligence of the engineer, if you find he was negligent, in driving the train at a greater rate of speed than was consistent with plaintiff’s safety, then you should find for the plaintiff, and give him such dámages as you find he is reasonably entitled to receive under the evidence and instructions of the court.” The main objection made to the instruction is that it submitted to the jury the question of driving the train at -a greater rate of speed than was consistent with appellee’s safety. It is argued that no such issue was in the case. We think otherwise. The alleged negligence of the engineer in starting the train at such a high rate of speed as to endanger appellee, whose duty it was to board the train, and in failing to heed the signal to slow down for him-to get -on, presented the- very issue which appellant says was not in the case. '

Another objection made to the instruction is that it referred to the starting of the train from the water-tank, when the issue joined had reference to the starting of the train from the station. We do not see how this could have misled the jury, for the gist of the allegation and the trend of the testimony was in starting the train at a high rate of speed and not heeding the signal to slow down for appellee to board the train at the road crossing, and not the point from which the train started. The point from which the train started was immaterial. If appellant thought the error in the starting point would mislead the jury, it should have made a specific objection to the instruction on that ground.. The many other objections made to the instruction may be summed up in a charge that it was abstract. We do not think it wins abstract, but, on the contrary, think it was warranted by the evidence set out above.

Appellant’s next two contentions for a reversal of the judgment are that the court erred in giving instructions Nos. 2 and 3. Instruction No. 2 is a correct declaration of the law covering comparative negligence, and was applicable to the facts in the case. It is argued that the instruction had no application, because there was no evidence tending to show any negligence on the part of appellant. Appellant is in error in this contention, for the evidence set out above tends to prove its engineer was negligent. Instruction No. 3 relates to the measure of damages, and correctly defines the measure of damages which was applicable to the facts in the case.

Appellant’s next contention for a reversal of the judgment is that the court erred in refusing its peremptory request No. 1. This request was based upon the theory that there was a total lack of evidence tending to show negligence on the part of appellant. There was substantial evidence, as heretofore stated, tending to show the engineer was negligent.

Appellant’s next contention for a reversal of the judgment is that the court refused to give its request No. 2 relative to the assumption of risk by appellee. This subject was fully covered by instruction No. 5, given by the court.

Appellant’s next contention for a reversal of the judgment is that the court refused to give its request No. 3. It was unnecessary to give this .instruction, as it related to an allegation of negligence which had been abandoned by the failure of appellee to introduce any evidence in support thereof.

Appellant’s next contention for a reversal of the judgment is the refusal of the court to give its request-No. 4. The request was a peremptory instruction, declaring the failure of the engineer to slow down when requested to do so was not the proximate cause of the injury. This was a question for the jury, under the disputed facts in the case. The instruction was properly refused.

Appellant’s next and last contention for a reversal of the judgment is that the court refused to give his second request, relating to the assumption of risk by appellee. This subject was also fully covered by instruction No. 5, given by the court.

No error appearing, the judgment is affirmed.


author: Wood, J. McCulloch, O. J.

text:
    Whittaker v. Holmes.
    Opinion delivered April 28, 1924.
    1. Landlord and tenant — construction of lease. — Any doubt as to the meaning of a lease prepared by the lessor must he resolved against her.
    2. Evidence — parol evidence to explain ambiguity. — In an action on a lease, parol evidence is admissible to prove the real consideration where the contract is ambiguous.
    8. Evidence — parol evidence to explain consideration. — Where a lease provided for the erection of a building on the premises by the lessor, and for the rent to begin on its completion, parol testimony was admissible to prove that the real consideration for the lease was the use of the building.
    4. Landlord and tenant — consideration of lease — evidence.—In an action for rent where the building leased had been destroyed by fire, evidence held to sustain a finding that the sole consideration for the payment of the rent was the occupancy of the building.
    P. Landlord and tenant — destruction of building — liability for rent. — Where a lease contract was entered into with reference solely to a store building, and not with reference to the land on which it was situated, upon the destruction of the building and the lessor’s failure to rebuild, the lessee was discharged from liability to pay rent.
    Appeal from Independence Circuit Court; Dene H. Coleman, Judge;
    affirmed.

      Ernest Neill, for appellant.
    There being no allegation of mistake or fraud or overreaching in the procurement of the written contract, there being no uncertainty or ambiguity in its meaning and intent, and appellees having admitted its execution, they are hound by its terms, and are estopped from alleging a contract different in terms. 129 Ark. 513; 130 Ark. 197; 144 Ark. 279; 133 Ark. 105. It was the duty of the court to construe the contract from its written terms and recitals alone. 146 Ark. 127; 131 Ark. 144; 130 Ark. 381; 131 Ark. 585. This court has long since settled the law as to the effect upon a lease covering building and grounds, where the building is destroyed. 25 Ark. 441; 99 Ark. 193. The common-law rule, so far as applicable to or consistent with our form of government, is a part of the statutory law of this State, and the court is without power to engraft a different rule by judicial declaration. 16 R. C. L. 465, 956; Id. 466, 958; Id. 468, 959. The allegation as to surrender of possession to appellant falls far short of what is necessary to constitute a legal defense. In order to create a presumption of acceptance, the averment must show that the alleged acts- of entry, possession or control were of such character, and done in such manner, as to appear on their face as hostile and inconsistent with the relation of landlord and tenant between appellant and appellee, and that the latter relied upon such acts as indicating an acceptance by the former. 4 Phila. 57, 69 Pa. St. 316; 1 Daly, 485; Woods on Landlord and Tenant, 844; 71 Ark. 254; 24 Cyc. 1373; 16 R. C. L. 674, 675.

      W. M. Thompson and McCaleb é McCaleb, for appellees.
    The lease itself makes the erection of the building a condition precedent to the commencement of the lease. The implied covenant that the lease carries with it makes it incumbent upon appellant to rebuild, after the destruction of the building', before asking payment of rents. An offer to rebuild was not sufficient. The case comes within the exception to the general rule announced in Buerger v. Boyd, 25 Ark. 441.
   Wood, J.

This action was instituted by the appellant against the appellee, Clarence P. Holmes, to recover a balance alleged to be due under a lease contract. The appellant set up in her complaint a certain lease contract entered into between tbe appellant and Clarence P. Holmes', and alleged that C. P. Holin.es was dne her on said contract the sum of $420 as unpaid rent; that the appellees, J. A. Holmes and G-. E. Yeatman, were sureties of €. P. Holmes for the payment of this rent. She alleged that she had demanded payment of the balance due, both of principal and his sureties, which they had refused to pay. The lease and bond were made exhibits to the complaint.

The appellees, in their answer, admitted the execution of the contract and bond sued on, and, by way of affirmative defense, they alleged that in April? 1922, C. P. Holmes was desirous of engaging in the retail grocery business in the city of Batesville, Arkansas, and made a contract with the appellant, under the terms of which it was agreed that, if she should erect a store building-, of the dimensions set out in the lease, upon certain lands therein described, he would lease same for the period of two years from the 12th of May, 1921, which will be thirty days from the date of the contract, and that he would pay as a rental for said building the sum of $30 per month. They alleged that it was agreed that plaintiff would erect and maintain the building and place Holmes in possession thereof within thirty days from the date of the contract; that the sole and only consideration for entering into said contract on the part of Holmes was the erection of said building by the plaintiff and the right to said Holmes to occupy and use same as a storehouse; that on the...... day of May, 1921, Holmes entered into possession of the store building which had been erected by plaintiff pursuant to said contract, and continued to occupy the same until it was destroyed by fire in December, 1921; that the plaintiff soon thereafter collected the insurance upon the building, but failed to erect another building of like dimensions for the use of Holmes on the premises; that Holmes never at any time used or occupied any part of the real estate mentioned in the lease contract except that on which the building stood, and that the real estate outside of this building was without any value whatever to Holmes. The defendants therefore pleaded a failure of consideration. They further set up that, shortly after the destruction of the building as alleged, the plaintiff, by her agents, took possession of the premises and exercised control over the same, and neither C. P. Holmes nor .either of the other defendants had been in possession or had any control over said premises since the destruction of the building by fire; that C. P. Holmes had paid all the rent due the plaintiff up to that time. They therefore denied that they were indebted to the plaintiff in the sum of $420' or in any sum. The cause was, by consent, submitted to the court sitting as a jury, and the court found the facts to be as follows:

First: That the plaintiff, Mrs. Ruby Whittaker, and the defendant, Clarence P. Holmes, entered into a written contract of lease, referred to in the evidence and made “Exhibit A” to plaintiff’s complaint, and that the defendants executed the written guaranty or bond for the payment of rents introduced in evidence, and made “Exhibit B” to plaintiff’s complaint.

Second: That the defendant Holmes entered into the possession of the store building erected under the terms of said written contract, taking possession on May 16, 1921; that he and his subtenant, Kent, occupied said store building until December 16, 1921, and that at that time said building was destroyed by fire.

Third: That the defendant Holmes paid to the plaintiff the rent in full for the time the building was so occupied.

Fourth: That, under the terms of said contract of lease, the sole purpose of its execution by the parties hereto and the consideration therefor were the procuring of the erection of said building and its use and occupancy by the defendant Holmes and the payment of the rental therefor to the plaintiff, Mrs. Whittaker, and that, except for the erection of said building and its use and occupancy as a grocery store, the defendant Holmes would not have made said contract.

The court declared the law to be that, “upon the destruction of said building by fire, the defendant had the right to terminate the contract on his part.” The court thereupon- entered judgment in favor of the defendants, from which is this appeal.

The facts as found by the court in the first, second, and third findings of fact are undisputed, and the only real issue in the case is whether or not the court erred in its fourth finding’ of fact, and the correctness of its finding depends upon the construction that should be given the contract when viewed in the light of the situation of the parties to it, as shown by the testimony adduced to sustain the respective contentions.

The lease contract is as follows: “The said Mrs. Whittaker has this day leased unto said Holmes, for and during the period of two years from the date hereinafter mentioned, one certain lot or parcel of ground situated in what is now known as Bates’ addition to the city of Batesville, and being in a large unnumbered block lying adjacent to and on the south side of Harrison Street, and just south of the intersection of Fourth Street, said parcel of ground fronting 16 feet on Harrison Street and running back towards Bates Street a distance of about 100 feet to the woven wire partition fence, and said parcel being on the west side of a driveway from said Harrison Street. The terms and conditions of this lease are as follows, to-wit: The said Mrs. Whittaker is to erect upon said leased parcel of ground a one-story box store building, 16 feet in width and 30 feet in length, with a glass front, the walls to be canvassed and papered, and the ceiling painted, and to provide said building -with one counter and one section of shelving 16 feet long, as per sketch furnished by the said Holmes; the building to have also a shed porch in front and a brick flue, and to be provided with electric wiring, but not with plumbing or sewer connections. The work of constructing said building to be commenced within one week from the date hereof and to be completed within thirty days thereafter and as soon as practicable, and the time of the commencement of this lease shall date from the date upon' which' said building is completed and ready for occupancy. The said Holmes, on his part, agrees and binds himself to pay, during the entire period of this lease, as rental for said building and premises, the sum of $30 per month, due and payable monthly in advance, and further agrees to give security for the payment of such sums. Said Holmes further agrees and binds himself to take good1 care of said leased premises and property, and turn the same back to the said Mrs. Whittaker, at the end of this lease, without notice, unless such lease shall be renewed by mutual agreement of the parties.”

The bond is as follows: “Know all men by these presents: That we, Clarence P. Holmes, as principal, and J. A. Holmes and Gr. E. Yeatman, as sureties, are held and firmly bound unto Mrs. Whittaker in the sum of $720 for the just and faithful payment of which we bind ourselves, our heirs, executors and assigns firmly by these presents. The conditions of the above obligation are as follows, viz: Whereas, the said Clarence P. Holmes has leased of and from the said Mrs. Ruby Whit-taker a certain lot or parcel of ground in the city of Batesville, upon which is to be erected, for his use and occupancy, a store building’, and is to pay to the said Mrs. Whittaker, as rental therefor, the sum of $30 per month during a period of two years, such rental to be paid monthly in advance, the terms and conditions of which lease are set forth on the paper hereunto annexed. Now, if the said Clarence P. Holmes shall well and truly fulfill the obligations set forth in said lease contract, this writing is to be null and void, otherwise to be-and remain in full force and effect. Signed by the parties on April 12, 1921.”

The appellant testified that C. P. Holmes paid the rent from the time that he took possession of the property on May 15 to the 15th of December. He had not paid any rent since then, and owed from that time up to the bringing of the suit. There was not any building on the ground at the time she rented same to Holmes. She agreed to erect a building for him for the purpose of his business, and it was on this basis that the contract was made. After the building was destroyed by fire she did not make any proposition to Holmes to rebuild. He never asked her to. She wanted to rebuild, and expected to, and for Holmes to continue. She thought she had to rebuild in order to make herself safe. She authorized her husband to act as her agent in all the negotiations with Holmes after the fire.

Whittaker testified that he acted as the agent of his wife, the appellant, in the matter of leasing to Holmes, of having the premises cleaned up and in the matter of settling the fire loss with the insurance company. Witness had the premises cleaned up about four months after the fire. The reason he did this was because he had been notified by the board of health of the city that the premises were unsanitary. At this time the insurance company had settled the fire loss. Witness testified that he had corresponded with C. P. Holmes in regard to the rent, and he exhibited copies of the letters which he had sent to C. P. Holmes, and also a copy of the letter which he had received from J. A. Holmes, father of C. P. Holmes, and his reply to same. He testified that, after this correspondence, he had a meeting with C. P. Holmes, at which Holmes presented him with a copy of a letter he had mailed to witness the night before, which letter was introduced. At that meeting witness made Holmes the proposition to allow him the use of the house for as much time, without rent, as he had lost on account of the fire; that if Holmes would say he had lost, six months ’ use of the building, then his lease would be extended six months without further payment. Holmes stated that he did not want the use. of the building, and did not want the same erected, and refused to consider the proposition. Witness stated' to Holmes that his wife was under no obligation to make such a proposition, but that she did not want to take advantage of Holmes if he was inclined to carry out the contract. After he gave it up and turned it over to other parties, he tried, to get the appellant to release Min from the contract and accept another party in Ms place, but appellant declined to do so. Witness made it plain to Holmes that the proposition to rebuild was conditioned upon his paying the rent, and he declined the proposition.'

It is unnecessary to set out the correspondence referred to by the witness. It was to the effect that the appellant, through her husband as agent, wrote C. P. Holmes as early as January 1,1922, after the fire, stating that it was her intention to rebuild the store after she got her money from the insurance company, and expected to carry out the contract with Holmes, and urging Mm to pay the rent. He claimed that he did not receive this letter. Then, after a period of nearly three months, she wrote, reminding him that he had not paid the rent, and urging him to do so, and stating that she intended to carry out the contract. Holmes, in reply, stated, in effect, that he considered the contract at an end -by the destruction of the store, and That he did not consider that he was bound to pay the rent after the building was destroyed.

In Bracy Hdw. Co. v. Herman-McCain Const. Co., 163 Ark. 133, we said: “The contract, which is the foundation of appellant’s action, was written by the appellant, and therefore, under a familiar rule of law, if any of its terms are ambiguous so that it becomes necessary to construe it, parol evidence may be admitted to throw light upon the meaning of the contract. Where there is doubt as to the meaning of the contract, such doubt must be resolved against the party who prepared the contract. Wis. & Ark. Lbr. Co. v. Fitzhugh, 151 Ark. 81, and cases there cited.”

The contract upon which the appellant predicates her action was prepared by the appellant, and is governed by the above rule. The first part of the first paragraph of the contract is free from ambiguity, in that it expressly recites that the appellant had leased to Holmes one certain lot or parcel of ground, but the concluding part of this paragraph recites that “the terms and conditions of the lease are.as follows.” Then the next paragraph contains these terms and conditions, which are, in substance, that appellant was to erect a building of a certain description and Holmes was to begin to pay rental for the building and premises at the rate of $30 per month in advance, the payment of rental not to begin until the building was completed, which was to be within thirty days.

The bond executed by Holmes and his sureties for the performance of the contract also recites that Holmes had leased a certain lot or parcel of ground “upon which is to be erected for his use and occupancy a store building.” There is sufficient ambiguity as to the real consideration of this contract to warrant the introduction of oral testimony. When the lease and bond are considered in the light of this testimony, we are convinced that the court correctly construed the contract, and did not err in finding that “the considerations therefor were the procuring of the erection of said building and its use and occupancy by the defendant Holmes and the payment of the rental therefor to Mrs. Whittaker,” and that, “except for the erection of the building and its use and occupancy as a grocery store, the defendant Holmes would not have made said contract.”

The general rule undoubtedly is as announced in Buerger v. Boyd, 25 Ark. 441, where we said: “We understand the law to be that, where a lessee takes an interest in the soil upon which a building stands, and the building should be destroyed by fire, he will be held for the rent of the entire property, unless he stipulates against casualties.” In that case it was admitted that the lessee not only leased the house, but that he leased part of lots Nos. 11 and 12, in block 34, in Little Bock. In the case at bar there is no admission upon the part of the lessee that he leased anything more than the store building, but, on the contrary, the testimony of Holmes is direct and positive to the effect that he did not use any part of the lot upon which the building stood not covered by the building. He did not pay any rent after the building’ was destroyed because he did not feel that he owed it after the building’ was destroyed.

In the case of Buerger v. Boyd, supra, we also said: “If one simply leases the house or room, and acquires no control over or interest in the soil, and the building be destroyed, we understand the rule to be otherwise.” We are convinced that the facts of this record show that the consideration of the lease under review was for the store building, and the store building alone. When the building therefore was destroyed by fire, the consideration for the contract failed, and the appellee Holmes was no longer obligated to pay rent on the premises.

The facts of this record certainly justified the trial court in finding that the parties to this contract were contracting with reference solely to the store building. It gave the contract its only value and consideration to the appellee, C. P. Holmes, and appellant knew that when she entered into the lease, and she contracted with reference to such fact. “In all contracts in which the performance depends on the continued existence of a given person or thing, a condition is implied that the impossibility arising from the perishing of the person or thing shall excuse the performance. In none of the eases is the promise in words other than positive, nor is there any express stipulation that the destruction of the person or thing shall excuse the performance, but that excuse is by law implied, because, from the nature of the contract, it is apparent that the parties contracted on the basis of the continued existence of the particular person or chattel.” 6 R. O. L., p. 1005, § 369, and cases cited in note; 13 C. J. 643, § 718, and cases cited in note. See also Collins v. Woodruff, 9 Ark. 463; Arlington Hotel Co. v. Rector, 124 Ark. 90, 101, 102.

The judgment of the trial court is correct, and it is therefore affirmed.

DISSENTING OPINION.

McCulloch, O. J.

The rule at common law, with respect to liability of a tenant after destruction of the leased building, was stated and adopted by this' court in Buerger v. Boyd, 25 Ark. 441. The majority now adhere to it as an established rule of property in this State. I •fail to discover 'any ambiguity in the contract. It is clearly one for the lease of real estate for a fixed period, together with the ¡building to be erected thereon; and oral testimony should not have been admitted to prove that the building was the solé subject-matter of the contract. Such evidence varied the terms of the written contract as interpreted in accordance with the rule of law announced by this court in Buerger v. Boyd, supra. That rule of law is admittedly a harsh one, and has been rejected by some of the American courts, but it is in accordance with the weight of authority in this country.

Hart, J., concurs.


author: Wood, J.

text:
    Winn v. Little Rock.
    Opinion delivered June 9, 1924.
    Taxation — exemption of cemeteries — invalidity of tax title.— Since, under Const., art. 16, § 5, cemeteries used exclusively as such are exempt from taxation, one who purchased at tax sale land used by a city for a public cemetery acquired no title, and the city, suing therefor,- was not required to first file an affidavit of tender of taxes, as provided by Crawford & Moses’ Dig., § 3708.
    Appeal from Pulaski Circuit Court, Second Division; Richard M. Mcmn, Judge;
    affirmed.
    Appellant pro se.

    Before plaintiff could maintain a suit in ejectment or for possession, it was essential that the plaintiff file the affidavit required by 'law. C. & M. Digest, §§ 3708-9-10.

      A. B. Cypert and John F. Clifford, for appellee.
    The property involved, being part of a cemetery, used exclusively as such, is not subject to taxation, and appellant’s tax deed is void. Constitution, art. 16, § 5; 26 R. C. L. 399; 37 Cyc. 1469. Since the assessment of taxes on the property and a sale thereof for taxes were void, the appellant acquired no title whatever, and it was not necessary to file the affidavit contemplated by the statute relied on by the appellant. 2'2 Ark. 118; 37 Ark. 100; 51 Ark. 397.
   Wood, J.

This is an action by the appellee against the appellant in ejectment to recover the possession of a certain tract of land, which is described in the complaint, containing 14.59 acres, more or less, and a part of Oakland Cemetery, to which appellee cleraigns title through various mesne conveyances from the United States Grovernment, as set up in its complaint. The appellee alleges that it is a city of the first class, and is legally holding the tract described exclusively for public purposes, to-wit, a public cemetery for burial of the dead. The appellee further alleges that the appellant was in possession of the land without any vestige of .right, title or claim, and wrongfully refuses to surrender the possession thereof to the appellee.

The appellant filed a motion to dismiss the complaint on the ground that the appellant was in possession of the lands under a tax. title, and that the appellee had not complied with the statute requiring it to file an affidavit of tender of taxes before the commencement of its action. The appellant did not file any answer to the complaint. The court overruled his motion, and appellant stood upon the motion. The court rendered judgment in favor of appellee ag-ainst the appellant, from which is this appeal.

Under article 16, § 5, of our Constitution, cemeteries used exclusively as such are exempt from taxation. If the land in controversy whs assessed and sold for taxes, as appellant claims, then such proceeding was null and void, and the appellant acquired no right thereunder. Section 3708 of Crawford & Moses’ Digest, upon which appellant relies to sustain his motion, does not extend to sales that are void for want of power. Wallace v. Brown, 22 Ark. 118; Hunt v. Curry, 37 Ark. 100; Kelso v. Robinson, 51 Ark. 397; see also 37 Cyc. 1469 (b); 26 E. C. L. § 399, p. 443.

The judgment is correct, and it is therefore affirmed.