author: McHanby, J.

text:
    Etchison v. Dail.
    Opinion delivered October 6, 1930.

      W. E. Beloate, B. G. Waldron and Smith <& Blachford, for appellant.

      L. B. Poindexter and J. II. Townsend, for appellee.
   McHanby, J.

This case involves the title to 8.14 acres of land, and is the second time it has been in this court, the opinion in the former case being unreported in the official reports. It is a suit by the appellee, Robert R. Dail, as executor of the estate of John R. Dail, in which the other heirs of John R. Dail joined, as plaintiffs, for the recovery from appellants of a small triangular piece of land described as all that part lying on the left bank, or north side, of Spring River, of the northeast quarter of the southwest fractional quarter in section 2, township 18 jnorth, range 3 west, and for damages for the wrongful detention thereof. The court found the facts to be that in 1884 Luke L. Dail gave the land in controversy to his son John R. Dail, by verbal gift, and that said John R. Dail immediately entered into possession thereof and continued in the possession of same until his death in October, 1913; that upon the death of John R. Dail, the appellee, Robert Dail, as executor, took possession of said land as assets of said estate for the payment of debts due by the estate, and that he, as such executor, continued in the possession thereof until the latter part of 1923, when appellant, Etchison, took the possession from him unlawfully; that the possession of said land by the said John R. Dail and the said Robert Dail, executor, was actual, open, notorious, adverse, peaceable, continuous and uninterrupted from 1881 until the latter part of 1923, under a claim of absolute ownership and without any adverse claim; that appellants had been in the unlawful possession of said land for a period of six years at a rental value of $10 per year, or $210, less the taxes paid by appellants during that time, which amounted to the sum of $’23.18, for the years 1923 to 1927, inclusive; and that the appellees had been damaged in the sum of $200 by reason of the wrongful detention of said land. The court further found that large claims had been filed against said estate, and that the personal property thereof was insufficient to pay the debts; that the appellees are the owners of said lands by adverse possession, as tenants in common, subject to the right of the executor to hold same until all probated claims against said estate were disposed of. A decree was entered for possession of said land in favor of appellees, and for damages, in the sum of $200 for the unlawful detention thereof. This appeal followed.

We think the evidence amply supports the findings of the court as above stated. Such findings are not against the weight of the evidence, but, on the contrary, are supported by the preponderance thereof. Appellant first contends for a reversal of the case that the executor had no right to recover for the purpose of paying the debts. The former appeal in this case settled that matter against appellants. The executor was holding the land in controversy, as well as other land, and was gradually paying the debts from the rents and profits, and had partially succeeded in doing so. As long as the debts of the estate remained unsatisfied, the lands belonging to the estate were assets in the hands of the executor for the payment of claims. The fact that they were not sold for this purpose did not concern appellants, as they were neither creditors nor heirs, and no complaint is made in this record by either heirs or creditors by reason of the delay in failing to pay the debts. As a matter of fact, all the heirs joined in this litigation for the recovery of the lands, ur statute, § 152, C. & M. Digest, provides that “Lands and tenements shall be assets in the hands of every executor or administrator for the payment of the debts of the testator or intestate. ’ ’ Upon his appointment and qualification as executor of the will of the deceased, John R. Dail, he took possession of all the land of the testator as assets of the estate needed for the payment of debts. During the course of the administration of the estate, he was deprived of it wrongfully by appellants, the debts remaining unpaid. He is entitled, therefore, to maintain this suit. In Burton v. Gorman, 125 Ark. 141, 188 S. W. 561, it was held that the lands of the decedent are assets in the hands of the executor or administrator, and deemed to be in his possession and subject to his control for the payment of the debts of the decedent, and that an administrator may maintain ejectment to recover possession of lands, when necessary for the payment of the debts of the estate, without joining the heirs in the suit. See also Massey v. Doke, 123 Ark. 211, 185 S. W. 271. Many other oases might be cited to the same effect.

Appellants next contend that title by limitation in the Dails has not been established. We have already stated that the court found such to be the fact, and that the evidence clearly preponderated in favor of the court's findings. We do not deem it necessary to enter mto a discussion of the testimony given by the various witnesses who testified in the ease. We think the evidence establishes beyond question the adverse possession claimed by appellees down to the time when such possession was interfered with by appellants, and that the possession was, in fact, adverse and not permissive, from the Browns.

It is next insisted that the appellees are estopped by laches. It is said that the appellees stood by and let William Brown deed the land to his wife, M. E. Brown, in 1908, and permitted the heirs of William and Mary Brown to sell and mortgage said land, all of which was a matter of record, and are now estopped from claiming same. Appellees, however, were not bound to take notice of these deeds and mortgages referred to, as they did not appear in their chain of title. See Singer v. Naron, 99 Ark. 446, 138 S. W. 958, and cases there cited. See also Gee v. Hatley, 114 Ark. 376, 170 S. W. 72. Nor do we think the evidence justifies the argument of counsel for appellant that the Dails recognized the Brown title, through which appellants claim. The evidence was disputed in this regard, and we cannot say that the chancellor’s finding was against the preponderance of the evidence. We have reached the conclusion that the Browns had no record title to this particular tract of land.

Some reliance is placed by appellants on the payment of taxes for a period of years. Appellants’ grantors appear to have paid the taxes thereon from 1914 to 1923, and appellants paid them from 1923 to 1927. Appellants’ payments of taxes from 1923 to 1927 were made while this suit was pending, as it began in August, 1924. The payments made by Joe Brown, from 1914 to 1923, were made without knowing that he was paying on it, and it is evident, from the testimony of Robert Dail, that he omitted paying on it without knowing that the taxes he did pay did not cover this particular tract of land. Moreover, this is not “unimproved and uninclosed land,” such as is mentioned in § 6943, C. & M. Digest, and that payment of taxes under the conditions as shown by the record in this case could not possibly invest title in appellants. We find no error, and the judgment is accordingly affirmed.


source: Caselaw Access Project

author: Butler, J.

license: Public Domain

text:
    Brown v. Arkebauer.
    Opinion delivered October 6, 1930.

      W. II. Dimblasier, for appellant.

      E. D. Chastain, for appellee.
   Butler, J.

The appellees were tbe owners of 2% acres of land planted in strawberries into which the cattle of the appellant, to the number of 150 or 200 head, were allowed to pasture, completely destroying the berries. Appellees brought suit in the court below and recovered the sum, of $175 as damages. The appellant has duly prosecuted this appeal.

On a trial of the case the court refused to permit tlxe introduction of testimony offered on the part of the appellant tending to show the condition of the fence around the berry patch for the reason that that territory was included in a fencing district created by order of the county court, in which order the running at large of cattle was prohibited. This ruling of the court is assigned as error, the contention being that the county court was without authority to make the order. The attack made upon the validity of the order is a collateral one, and therefore, as the court had jurisdiction of the subject-matter, every presumption will be indulged in favor of the validity of the judgment. Hopper v. Wist, 138 Ark. 289, 211 S. W. 143. The court did not err in its ruling.

It is also contended that the conrt erred in the giving of instructions numbered one and two. Instruction No. 1 in effect told the jury that if the defendant (appellant) “permitted his cattle to go upon the berry patch” by reason of which damage resulted, they should find for the plaintiff (appellees) unless the plaintiff agreed to keep up the fences. This instruction was more favorable to the defendant than the pleading or proof warranted, for, as the territory was in the fencing-district, it was the duty of the defendant to keep his cattle inclosed.

Instruction No. 2 related to the measure of damages which we will discuss in disposing of the contention made by the appellant that the evidence was not sufficient to sustain the verdict.

There was testimony to the effect that on or about the 5th day of May the berries appeared to be very promising, the plants having heavy foliage and buds, and the berries beginning to turn. The appellee who grew the berries testified that before they were destroyed by appellant’s cattle the berries were beginning to ripen, and he was preparing to pick them the week following; that he had been in the berry business twenty-two years and that the patch would produce from 150 to 200 crates of berries on which he would clear $200. There was no objection made to the testimony as offered. • There was no dispute as to the berries having been destroyed by appellant’s cattle. Instruction No. '2 complained of told the jury that, if they found for the plaintiff, the measure of damages is the difference in the value of the berry patch before the damage and the value after the damage. Since the uncontradicted testimony showed the berries were completely destroyed, this instruction in effect told the jury that the measure of damages was the value of the berries at the time of their destruction. It is contended that this instruction was incorrect on the authority of the ease of St. L. I. M. & S. R. Co. v. Saunders, 85 Ark. 111, 107 S. W. 194, where it is held that in cases where crops are so immature when destroyed as to have no market value, the measure of damage is the rental value of the land. This contention cannot be upheld because under the proof in this case the berries were advanced to that state of maturity where picking would begin within a few days. That being the case, we think the crop sufficiently mature that those experienced in the growing and marketing of berries could approximate with a reasonable degree of certainty their value at the time of destruction and the measure of damages was such value. Railway Co. v. Leyman, 57 Ark. 512, 22 S. W. 170 ; St. L. I. M. & S. R. Co. v. Hoshall, 82 Ark. 387, 102 S. W. 107. The testimony, given relating to the value of the crop as we have seen, was sufficient to establish with a reasonable degree of certainty the damage and to sustain "the verdict. The judgment is affirmed.


text:
    Neighbors v. Life & Casualty Insurance Company of Tennessee.
    Opinion delivered October 6, 1930.

      Tom F. Bigby, for appellant.

      Fred A. Isgrig, for appellee.
   Butler, J.

Frank D. Neighbors was insured under a policy issued by the appellee company against result of bodily injuries received at the time the policy was in force effected by external, violent and accidental means in the manner thereafter stated in the policy. Neighbors, while riding a motorcycle, was run down and injured by an automobile, and died within a short time. .Suit was brought by the beneficiary, Emma E. Neighbors, appellant, and the case was submitted to the court sitting as a jury on an agreed statement of facts and the policy involved in the suit.

It was agreed that the policy was in full force and effect at the time of the injury, and that said injury occurred while the deceased was riding on one of the thoroughfares of North Little Rock on a motorcycle and was caused by his being struck from the rear by an automobile throwing him upon the pavement, the automobile passing by without striking his body. From the effects of this accident the insured died within about two days. The provision of the policy, in so far as it is material to the issues involved, provided that the insurer should be liable for injuries effected solely by external, violent and accidental means where the same was caused “by the collision of or by any accident to any private horse drawn vehicle or private motor driven automobile in which the insured is riding or driving. ’ ’ The question we are called upon to determine is whether a motorcycle comes within the provision of the'policy above quoted, it being the contention of the appellant that the word “automobile” as used in the policy is a generic term and includes motorcycle.

One line of decisions holds that in statutes passed for purposes of taxation or police regulation, the term “automobile” would include a motorcycle unless expressly excluded. A typical decision is that of the State v. Freels, 136 Tenn. 483, 190 S. W. 454, where the validity of an act regulating the use of motordriven vehicles was called in question on the ground that the caption of the act referred to regulation of ‘ ‘ automobiles, ’ ’ while the body of the act regulated the operation “of any automobile, locomobile, motorcycle, or any other vehicle of like character” and was therefore violative of the constitutional provision that “no bill shall become a law which embraces more than one subject, that subject to be expressed in the title.” The court held that as all intendments are in favor of the constitutionality of an act passed with requisite form and ceremony, and where one of two reasonable constructions would render the law obnoxious to the constitution and the other would not, the latter would be adopted by the court, and that, therefore, the word “automobile” as used in the caption was iised by the Legislature as a generic term and intended to include by its use all self-propelled vehicles which would include motorcycles.

But in those cases where private contracts are entered into it appears to be the uniform holding of the courts passing upon that subject that, in a contract where the word “automobile” is used, it is to be taken in its ordinary and popular acceptation, which is a motor-driven vehicle having four wheels, a body, sides and top, suitable and intended for the conveyance of persons, and does not include such a vehicle as a motorcycle. In the policy under consideration the liability is restricted to accidents to the insured while riding or driving in a private horse drawn vehicle or private motordriven automobile. In a suit upon a policy identical in its terms with that herein involved and upon a state of facts practically the same as here, Anderson v. Life Casualty Ins. Co. of Tenn., 197 N. C. 72, 147 S. E. 693, in holding that the appellant could not recover under the terms of the policy the court said: “Is a motorcycle a motor-driven car? The question upon which we have no direct decision has been determined by decisions of other courts adversely to the contention of appellant. The clause under consideration, ‘motor-driven car in which the insured is riding or driving’ was construed by the Court of Errors and Appeal of New Jersey in Perry v. North American Accident Insurance Co., 104 N. J. 117, 138 Atl. 896.” * * *

In Salo v. North American Accident Insurance Co., 257 Mass. 303, 153 N. E. 557, the Supreme Court of Massachusetts said: “The word ‘car’ is ordinarily used in speaking of an automobile. It is a common expression describing an automobile. It is a matter of common knowledge that in ordinary conversation a motor cycle is not referred to as a car but as a motorcycle, and an accident insurance policy covering death in a wreck of a motor driven car does not cover death in a wreck of a motor cycle. The difference in mechanical construction of automobiles and motorcycles does not indicate that a common designation would apply to both. A motorcycle having ordinarily two wheels is a machine more in the nature of a bicycle equipped with motor power.”

In the case of Perry v. North American Accident Ins. Co., referred to by the court in the Tennessee case above quoted, it was held that a policy providing for the payment of certain sums in the event of death “by wrecking or disablement of any private horse-drawn vehicle or motor-driven car in which insured is riding or driving,” did not include a motorcycle, and that the same was not a motor-driven car within the meaning and terms of the policy. The court said: “The policy uses the phrases ‘horse-drawn vehicle’ and ‘motor-driven car.’ A motorcycle is a vehicle. If motorcycles were intended to be included in the policy, the draftsman would have used the word ‘motor-driven vehicle.’ After using the word ‘vehicle’ in the phrase ‘horse drawn vehicle,’1 it would seem that the use of the phrase ‘motor-driven car’ immediately afterward is significant and indicates a purpose to exclude such a vehicle as a-motorcycle from the provisions of the policy. One riding on a motorcycle is more exposed to accident than one riding in' a motor-driven ear. A car stands upright on four wheels whether in operation or stopped. It is protected by bumpers in front and rear. It has a body in which the passengers sit which protects them in some measure from the perils of the highway. One riding on a motorcycle cannot keep it in equilibrium when not in operation. When stopped, he must get off or place his feet, or one foot upon the ground. A motorcycle has not front or rear protection in the form of fenders or bumpers. It has no body for the protection of the rider. A rider is, therefore more exposed to dangers incident to congested traffic. For these reasons, which makes the risk of riding a motorcycle greater than riding in a motor-driven car, we think the rider of a motorcycle was intentionally excluded from the provisions of the policy by the use of the language employed.

“The use of the preposition ‘in’ in the clause of the policy reading ‘ or motor-driven car in which insured is riding or driving,’ is also significant. One riding on a motorcycle is not referred to as riding ‘in’ a motorcycle, but ‘on’ a motorcycle. A passenger or one driving a car is not usually referred to as riding ‘on’ a car but ‘in’ a car. Where a policy uses the words ‘or motor-driven car in which the insured is riding or driving, ’ it is for the purpose of limiting the insurer’s liability. The reason is. the one we have indicated, the greater safety of the insured ‘in’ a car. This distinction has been recognized in a number of cases.”

To the same effect is the holding in the case of Laporte v. North Ame. Acc. Ins. Co., 161 La. 933, 109 So. 767, 48 A. L. R. 1086, and Colyer v. No. Ame. Acc. Ins. Co., 230 N. Y. S. 473, 132 Misc. Rep. 701.

The question here involved is comparatively new, and the above are all the cases which the industry of counsel or our own investigation have discovered. The reasoning»of these cases and conclusion reached appear to us to be sound and in conformity with the common knowledge that when an automobile is spoken of we do not mean a motorcycle. The text from Berry on Automobiles, (2d ed.) p. 5: “Unless expressly excluded, the motorcycle falls within the definition of the automobile as the terms has been used by the various State Legislatures, and also within the general definition heretofore given” refers to regulatory or taxation statutes as we have before stated, and not to private contracts. We, therefore, conclude that the judgment of the trial court in holding- that the accident to the insured did not come within the terms of the policy, and that the appellant could not recover, is correct, and it is affirmed.


text:
    Williams Brothers, Inc., v. Brannon.
    Opinion delivered October 6, 1930.

      Busbee, Pugh & Harrison, for appellant.

      H. Jordan Monk and W. B. Sorrels, for appellee.
   Butler, J.

The appellees, Lonnie Brannon and Ms wife, Delia Mae Brannon, were traveling along a county highway in Jefferson County on September 15, 1929, in a seven-passenger Packard automobile. The road was dusty and it was difficult to see further ahead than thirty or fifty feet. At a point a short distance from where this highway intersected with the Pine Bluff and Altheimer highway, Brannon saw just a few feet ahead an open ditch crossing the road. He estimated that at this time he was traveling about twenty-five miles an hour. When he saw the open ditch and applied his brakes, stopping his wheels from revolving, the momentum of the car was such that it leaped entirely across the ditch with the back wheels just beyond. The impact of the ear upon the roadway caused one of the casings to blow out and the car to roll backward into the ditch. The ditch was variously estimated from two to three feet wide and from two to three feet deep. It had sloping- sides that enabled appellees ’ car to pass out of it by changing gear and putting it in low. The car remained in the ditch but a moment— only long enough to put it in low gear to pull it out.

After an examination of the car’s condition — estimated at from five to ten minutes — Brannon went on toward his destination. The jar occasioned by this incident injured Brannon and his wife to some degree, for which injuries they brought suit against the appellant, Williams Brothers, Inc., alleging its liability on the theory that it had broken the bridge across the ditch and created a dangerous condition by removing the broken planking and throwing the timbers from the ditch, leaving it open. There was a trial before a jury and a verdict and judgment for the appellee, from which the appellant has duly appealed and here contends that the court erred during the trial of the case in permitting the introduction of incompetent testimony over its objection and exception, in its refusal to submit to the jury competent testimony, and in its 'declarations of law. The principal contention, however, is that the court erred in refusing to direct a verdict in favor of the appellant.

We pass over consideration of the questions involved in the action of the court regarding the introduction and exclusion of testimony and the declarations of law given to the jury, for the reason that a careful analysis of all of. the evidence, viewing it in a light most favorable to the appellees, fails to establish the liability of the appellant. There is no intimation that the appellant was making any unlawful use of the highway, nor is it contended that the mere breaking of the bridge in question by the appellant and its failure to repair the same would render it liable; the contention in this case being that the conduct of the appellant after the bridge was broken in throwing the timbers and planks out to one side and leaving the ditch open created a dangerous condition, thereby, by its voluntary act, creating a nuisance, in that such was a wrongful obstruction and impairment of the public highway.

There is a conflict in the testimony regarding the previous repair and condition of the bridge before its breaking is said to have occurred. The road overseer testified that it had been repaired in the spring of the year preceding the accident and was in good condition before it was broken down, and the person whose duty it was to keep up the bridges testified that the bridge in question had been repaired just a few days belfiore it was broken, and that when so repaired it was a good bridge composed of proper timbers laid across and covered by “three or four ten or twelve-inch planks and one or two small ones” three inches thick. Other witnesses, among whom was one introduced by the appellees, stated that the bridge was made of poles laid across the ditch covered by two planks about twelve inches in width and two inches thick. A witness for the appellees, describing the bridge, stated: “It is just a two-plank bridge — just two planks there across it — a kind of low sway there all the time. Just some planks across some poles there — the planks were not broke but they swayed in. This condition had been existing all the year.”

Appellees base their contention that the bridge was broken by appellant’s truck on the testimony of Frank Hopson, Hugh Yance, W. S. Stewart and Jim Barbre, Stewart being the road overseer and Barbre the man charged with the duty of keeping the bridges in repair. Hopson testified that on an afternoon of some day “about the middle of September,” about four o’clock, he passed across the bridge in question and it was then in the same condition it had been all the year. On returning the following morning he reached the bridge about seven o’clock and found the planks “broke in, scattered around first one place, then another — both planks busted up pretty bad. ’ ’ He replaced the broken planks over or in the ditch and crossed and continued on his way.

The only other testimony directly relative to the breaking of the bridge was that of Hugh Yance, who, as he testified, “about the 12th or 13th of September and about four or four-thirty o’clock in the afternoon” was hunting squirrels in the woods adjoining the highway where the ditch crossed the road and about two hundred yards from it when his attention was attracted by a noise which he described as if made by the breaking of a plank. Looking in that direction witness saw a truck down in the ditch and a number of persons throwing timbers out of it. This truck remained at that place about five or ten minutes, passing on down the road after extricating itself from the ditch; that it was a truck belonging to the appellant. Witness at no time was nearer than 200 yards to the bridge.

Stewart, the road overseer, testified that the appellant’s trucks were “supposed to be the heaviest trucks that went over this road. ’ ’ Barbre stated that in the lower t edge of the county on roads used by the appellant’s trucks he would build bridges one day and find them broken the next, and that the appellant’s trucks were the heaviest used on the highway.

Assuming that this evidence is sufficient to establish the fact that the incident witnessed by Hugh Vance was the initial breaking of the bridge in controversy^ it fails to establish a basis from which the jury might reasonably infer that the voluntary acts of appellant’s servants rendered more hazardous the condition of the ditch than that which resulted merely from the breaking of the bridge. It will be noted that Yance, the witness who saw appellant’s truck in the ditch, was at no time nearer to the ditch than 200 yards and was in a wood. So he did not state and was unable to know what the conditions were when appellant’s truck broke through the planking into the 'ditch and in what position the planks and other timbers would have been had the truck moved outward from the ditch without any of the timbers being removed therefrom. Assuming that the appellant’s truck broke the bridge at the time Vance saw it and that it was on the 12th or 13th day of September as estimated by Vance, a period of at least two days elapsed from the time the bridge was broken until the appellees’ car crossed it, and there is no testimony showing the condition of the bridge at that time as compared with its condition immediately after appellant’s truck passed over it. It cannot be said that the condition as testified to by Hopson as on the morning he first discovered the bridge broken was the same as that on the afternoon before. This was a county highway in a thickly populated county, and the evidence shows that it was frequently traveled. It therefore would be entirely unreasonable to assume that no other cars or trucks passed over the ditch from 4:30 in the afternoon to 7 o ’clock of the following morning, for it is a matter of common knowledge that motor-driven vehicles travel the highways in great numbers and at frequent intervals both day and night.

The evidence shows that the bridge and ditch in question were both relatively insignificant and traffic continued along the highway after the breaking of the bridge without interruption and with practically the same ease as before. A rural mail carrier advised those in charge of the highway’s maintenance of the brealdng of the bridge, and several days passed before any steps were taken looking toward its repair, and after the condition of the ditch after the breaking of the bridge had been seen by the road overseer the situation was deemed not sufficiently dangerous to warrant the placing of any danger signal at that point. The evidence fails to show any dangerous condition of the highway caused by removal of broken timbers, but merely an impairment incidental to its use, for whether the act complained of, namely, the removal of the planks and timbers and throwing them to the side of the road, rendered the ditch more dangerous than it would have been with the planks not removed is a mere surmise.

As there is no substantial evidence tending to establish appellant’s liability, the case is therefore reversed, as as the facts appear to have been fully developed, the cause is dismissed.


author: Hart, C. J.,

text:
    Shinn v. Barrie.
    Opinion delivered October 13, 1930.

      Robert Bailey, for appellant.

      Robinson, Blouse $ Moses and Franlc Bird, for appellee.
   Hart, C. J.,

(after stating the facts). The decree of the chancery court was correct. No statutory right of redemption from the sale under the mortgage exists because the mortgagor had waived his right of such a redemption in the mortgage. Smith, v. Simpson, 129 Ark. 275, 195 S. W. 1067.

Independent of the statute allowing the redemption by paying the amount for which the property is sold with interest and costs, there is in equity a right to redeem from the mortgage, which right may be exercised by the mortgagor or any one claiming the equity of redemption under him. The rule in equity, however, requires that, to redeem property sold under a mortgage for less than the mortgage debt, the whole mortgage must be paid or tendered into court, and it is not sufficient to tender the amount for which the property sold. Wood v. Holland, 53 Ark. 69, 13 S. W. 739 ; Smith, v. Simpson, 129 Ark. 275, 195 S. W. 1067.

The reason is that, the debt being a unit, no party interested in the whole premises or in any portion of them can compel the mortgagee to accept a part of the debt and to relieve the property pro tanto from the lien. In such cases, a mortgage in equity and in fact is only a security for the payment of a debt; and it is essential, in order to exercise what is known as the “mortgagor’s equity of redemption,” that the whole of the mortgage indebtedness must be tendered and paid.

Appellant only tendered the amount of the bid at the foreclosure sale which was less than the whole amount of the mortgage indebtedness. Hence the rule of the court was correct; and in this view of the matter it is not necessary to decide whether appellant waited too late to exercise the right of redemption. Therefore the decree will 'be affirmed.


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    Thacker v. Paving Improvement District No. 5 of Mena.
    Opinion delivered October 13, 1930.

      Alley •(& Olney, for appellant.

      Duke Frederick and Abe Collins, for appellee.
   Hart, C. J.,

(after stating the facts). At the outset it may be stated that the present suit is direct attack against the validity of the assessments and the organization of the district because it was commenced within thirty days as required by statute. Williams v. Sewer Imp. Dist. No. 86, 180 Ark. 510, 22 S. W. (2d) 405 ; and Yates v. Phillips, 180 Ark. 709, 22 S. W. (2d) 559.

The first ground upon which the validity of the organization of the district is assailed is that the petition for the improvement and the ordinance creating the same are too indefinite as to the kind of materials to be used in the construction of the proposed improvement. The record shows that the petition for the improvement and the ordinance establishing the district both provide that the paving shall be done in the manner and of the materials that the commissioners of the district shall deem for the best interest thereof. A majority of the property owners in value signed the petition for the proposed improvement vesting- the commissioners with a large amount of discretion as to the manner in which the improvement should be constructed and the materials of which the pavement should be made. Under our decisions the validity of the organization is not impaired thereby, and the commissioners may exercise the discretion thus left to them. If the property owners desired to limit or restrict the powers of the commissioners as to the materials to be used and the manner of constructing the • improvement, they should have done so by specifying with particularity in the petition the 'kind of materials to be used and the manner of constructing the proposed pavement. McDonnell v. Improvement District No. 145, Little Rock, 97 Ark. 334, 133 S. W. 1126 ; and Bostick v. Pernot, 165 Ark. 581, 265 S. W. 356.

It is next insisted that the order of the county court incorporating the town of Mena in which the improve- * ment district was organized contained no description of the land within the proposed limits of the city, but merely referred to a map which is not on file in the office of the city clerk or of the county clerk. We do not think this fact would invalidate the district. The town of Mena was duly incorporated under the statutes of Arkansas. The order refers to a map of the town, and the petition and ordinance for the proposed improvement district show definitely and certainly that the district was laid out in accordance with the map of the town.

Finally, it is insisted that the assessment of benefits is arbitrary and discriminatory because the assessors . practically followed what is called the front-foot rule.

In Seiz v. Paving District No. 1 of McGehee, 173 Ark. 245, 292 S. W. 133, following our earlier decisions, it was held that under our Constitution, the assessment of benefits cannot be made on what is commonly known as the front-foot rule, but all proper elements of benefits, including the frontage of the property, the valuation of the property, the valuation of the building on it, etc., must be considered by the assessors in making their assessments.

In Lewellyn v. Street Improvement District of Russellville, 172 Ark. 496, 289 S. W. 470, it was held that even in a direct attack an assessment made on a front-foot basis is not void on its face because such a basis of assessment may coincide with the actual benefits to the property. The reason is that the question of benefits is to be ascertained from, tbe facts in each particular case; and the surrounding circumstances, as developed by the proof, may show that there is a corresponding special benefit to the property assessed when the assessment is made under the front-foot rule.

Here, there is no uniformity of benefits, and the examination of the evidence shows that the advantages to the several lots to be derived from the paving are unequal. A considerable number of the lots are vacant. Some of them have two or three lots appurtenant to one dwelling house, and many of the houses are small and are only used as dwelling houses. Hence, under the proof introduced, the situation of the property, as well as the houses on it, are not so that there can be any uniformity or equality of benefits under a front-foot rule of assessment.

It is true that the assessment here made was not wholly according to the front-foot rule. The table prepared by the engineer of the district shows that ninety per cent, of assessment of benefits was on frontage and ten per cent, on assessed valuation for State and county purposes. This was practically an assessment according to the front-foot rule, under the facts proved, and the situation of the property being so that such an assessment could not, in any sense, confer uniformity of benefits, it must necessarily be discriminatory in its character. We are of the opinion that under the facts shown by the record the board of assessors was practically guided by the frontage of the property in making the assessment of benefits. The proof in the case shows that the lots or parcels of land in the district were not so situated as to admit the application of such a rule. Hence such an assessment according to frontage could not and did not apportion the expense according to the benefits. Therefore the decree will be reversed and the cause will be remanded with directions to the chancery court to hold the assessment invalid as being made on the wrong basis, and for further proceedings, according to the principles of equity and not inconsistent with this opinion.

       Crawford & Moses’ Dig’., § 5668 (Rep.).


author: Smith, J.

text:
    Boston Mutual Life Insurance Company v. Power Manufacturing Company.
    Opinion delivered October 13, 1930.

      Earl Bohannon and W. A. Leach, for appellant.

      George G. Lewis, for appellee.
   Smith, J.

In 1920 E. W. Langham purchased a Primm oil engine at a cost of $6,600, which was installed on his rice farm as a necessary part of a pumping plant required to grow rice. He borrowed money from the Deming Investment Company -in 1922, with a portion of which he paid the balance of the purchase money then due on the engine, and he secured this loan by mortgages on his farm to the investment company, which the latter, on March 2,1922, assigned to the Boston Mutual Life Insurance Company.

The engine was used for the purpose intended until 1923, when the engine house enclosing it was destroyed by fire and the engine was so badly damaged that extensive and expensive repairs were necessary, and these were later made by the Power Manufacturing Company, the company which had made and sold the engine.

The agent representing the Power company took two notes covering the cost of the repairs, one for $162.50, due November 15, 1925, and the other for $1,184.80, due December 1, 1925. These notes were the form notes used by the Power Company in making sales and, after reciting the service rendered in repairing the engine, undertook to reserve the title thereto, as in the case of a sale, until the repairs had been paid for. It is conceded, of course, that the note did not effect this purpose, and that the engine, as a fixture, remained subject to the lien of the mortgages on the land upon which the engine had been installed. Hachmeister v. Power Mfg. Co., 165 Ark. 469, 264 S. W. 976. No attempt had been made to enforce a mechanics ’ lien.

After this repair the engine was reduced from 100 to 80 H. P. capacity, but Langham continued to use it on 'his farm until October 7, 1927, at which time it was so badly worn through age and use that it was necessary to practically rebuild it, and this could be done only by returning it to the Power Company’s factory in Marion, Ohio. On the date last mentioned, Langham entered into a written contract with the Power Company, which recited that the two notes given for the previous repairs had not been paid, and it was agreed that the Power Company should “take this engine and all equipment to the factory, rebuild it and offer it for sale,” and that “From the sellng price the amount of the above two notes will be deducted plus the handling cost and cost of rebuilding it and refund to me the difference. In consideration of this, I agree to release to them the engine, they to do this hauling and stand all incidental expense.”

It is not questioned that the effect of this agreement, which severed the fixture from the soil to which it was ■ attached, was that of a conversion of the engine, and that Langham had no right to make this contract, for the reason that the engine, as a fixture, was subject to the lien of the mortgages, and that therefore the Power Company .is liable in conversion, and this is a suit by the owner of the .mortgages on the land to recover the value of the engine at the time of its conversion. The court found the value of the engine at the time of its conversion to be $840, and rendered a decree accordingly, and the mortgagee has appealed, and now insists that the engine was of a greater value at the time of its conversion.

The parties agree that the only question in the cáse involved on this appeal is the value of the engine at the time and place of its conversion, and the testimony which we shall now review is of value only in so far as it elucidates that question. Parks v. Thomas, 138 Ark. 70, 210 S. W. 141.

The Power Company took the engine to its factory and practically rebuilt it, and there was offered in evidence an itemized statement of the expenses incurred.

These included:

New parts .................................................... $1,792.75

Factory labor ........................................................................................... 323.93

Freight and handling........................................................................ 244.31

Selling cost................................-................-............................................... 840.00

Testing ................................................................................................... 100.00

Total ...........„.........................................................................................$3,300.99

The testimony shows these expense items are correct. The engine was sold, after being rebuilt, for $4,-200. The item of $840, selling cost, is 20 per cent, of the sales price, which is shown to be the usual commission for making sales of machinery. These items total $3,-300.99, which, when subtracted from the $4,200 sales price, leave a balance of $899.01. In addition, the old flywheel and other parts had a scrap value, according to the statement of the account filed by the Power Company, of $77.86, and this should be added to the $899.01, and when added, makes a total of $976.87, and this we find to be the net value of the engine at the time of its conversion, and the judgment will be modified by increasing it from $840 to $976.87.

This is less than the value of the engine as contended by the mortgagee, but more than its value as contended by the Power Company.

On behalf of the plaintiff mortgagee, Langham testified that the value of the engine after the first repairs was $5,600, but the testimony does not sustain that contention. The price of the engine new was $6,600 in 1920, but twelve months later the selling price of the same engine had been reduced to $5,600, so that if, after the first repairs, the engine was as good as new, as Langham contends, its value did not exceed $5,600, but the testimony clearly shows that it did not have the value of a new engine. Its capacity had been reduced from 100 to 80 II. P., and all of .its old parts had been subjected to five years ’ use, and all the testimony is to the effect that the value of engines depreciates rapidly with use, and that the average life of similar engines is only ten years. The engine was, of course, a second-hand one after it was repaired in 1925, notwithstanding its new parts. It. was also shown that several new models had been placed on the market since 1920 and that this fact affected the price of the older models.

There was testimony on the part of the Power Company that before the engine was rebuilt and restored to 100 H. P., its only value was junk, amounting, to about $200. The testimony which we have recited shows that this estimate was too low.

The Power Company insists that the above statement, which we have approved in determining the value of the engine, allows nothing for factory profits, but as it was a wrongdoer in converting the engine it is entitled to no .profit.

The Power Company also insists that this statement takes no account of the two notes evidencing the 'amount due for the repairs after the fire, which were made in 1925, and that if this were done it would owe nothing. But, as we have said, no action was taken to enforce a lien against the engine, and we cannot now, in effect, enforce this lien by taking this item into account. Besides, the repairs, subject to the use they had undergone, were on the engine at the time of'its conversion and gave it, in part at least, the value it then had. It was the repaired engine which the Power Company converted.

It is true the fact to be adjudged is the value of the engine at the time and place of its conversion, and it is for this amount only that judgment should be rendered, but we think the testimony which we have recited shows its value to be the sum found by us, to-wit, $976.87.

The Power Company calls attention to the fact that in making the sale of the engine it took in exchange two other second-hand engines at a price of $600 each, and that these two engines have not yet been sold. But there was no showing that they were not worth their trade-in value, nor that they mil not be sold without loss when they have been rebuilt.

The judgment in favor of appellant will therefore be modified by increasing it from $840 to $976.87, and, as thus modified, it will be affirmed.


author: Smiti-i, J.

text:
    General Motors Acceptance Corporation v. Whatley.
    Opinion delivered October 13, 1930.

      Ben D. Brickhouse and Limoood Brickhouse, for appellant.

      Mahony, Yocum & Saye, for appellee.
   Smiti-i, J.

This is a companion ease to that of General Motors Acceptance Corporation v. Jerry, 181 Ark. 771, 27 S. W. (2d) 997. The litigation in each case arose over the attempt to collect the balance of purchase money due upon the sale of a Delco; lighting plant, and the con-tract of sale in the two cases is identical. The undisputed testimony in each case was to the effect that the subject-matter' of the sale was a definitely known article of commerce, designed to generate electricity for lighting purposes, and that each plant was a separate and complete unit in itself. From fifteen to eighteen such plants had been sold and installed in Union County alone, the county in which both cases originated.

The undisputed testimony in the instant case shows that one of the lighting plants was installed at the home of appellee Whatley, and that with some minor adjustments it gave fairly satisfactory service for a period of from six to eight months, so that there can be, and is, no question that it was adapted to the purpose for which it was sold, that of generating electric lights.

The contract of sale containing the following and no other warranty: “It is understood that the Delcolight Company of Dayton, Ohio, guarantees said Delcolight products against defective material or workmanship for one year from the date of delivery, except the starting battery on the Model 775 or 750- Delco light plant, which battery is guaranteed for 90 days.” The plant sold appellee did not have a starting battery of either Model 775 or 750, but was Model 758, so .that this exception from the general warranty lasting only ninety days did not apply to this sale.

It was therefore proper to submit to the jury the question whether there had been a breach of this warranty, although the article sold 'was a definitely known article of commerce upon the market. But in the submission of this question one of the instructions was modified by adding thereto this qualification: ‘ ‘ * * * or that it was not a definitely known article of commerce upon the market and was not reasonably fit for the purpose for which it was intended.”

Injecting this question into the case was error, for the reason that under the undisputed evidence the light plant was a definitely known article of commerce upon the market, and was reasonably fit for the purpose for which it was intended. This modification was objected to, and is erroneous, as it is error to give an instruction which permits the jury to make a finding which is unsupported by any evidence. Sherrin v. Coffman, 113 Ark. 8, 219 S. W. 318 ; Bissell v. Katter, 141 Ark. 467, 217 S. W. 779 ; Ozark Fruit Growers’ Assn. v. Tetrick, 130 Ark. 165, 197 S. W. 30 ; Athletic Mining Co. v. Sharp, 135 Ark. 330, 205 S. W. 695.

The judgment will therefore be reversed, and the cause will be remanded with directions to submit only the question of the breach of the written warranty.


author: Humphreys, J.

text:
    Ward Furniture Manufacturing Company v. Mouncen.
    Opinion delivered October 13, 1930.

      C. W. Knott, for appellant.

      Cravens ■& Cravens and E. D. Chasicán, for appellee.
   Humphreys, J.

Appellee recovered a judgment against appellant in the circuit court of Sebastian County, Fort Smith District, for $500 on account of an injury to the index finger of his right hand alleged to have resulted from appellant’s failure to warn him of the dangers and hazards incident to the operation of a machine known as an “air router” which he was operating, from which judgment an appeal has been duly prosecuted to this court.

Appellant relies for a reversal of the judgment upon the sole alleged ground that the undisputed testimony showed that the injury resulted from an accident, not from any negligence on the part of appellant.

The following facts and disputes in the testimony necessary to a determination of the question presented on appeal, as reflected by the record, are as follows:

Appellee, a nineteen-year-old boy of ordinary intelligence and without experience in the use of machinery, was employed by appellant to operate the “air router” or the machine used in the production of certain parts for the manufacture of furniture. The method of operating the machine was to put small blocks to be so used on a table under sharp tools or bits making six thousand revolutions a minute and to press the tools down by means of a foot pedal onto the block for the purpose of making certain indentures in them and, after making the indentures, to release the pedal and allow the bit or tool to raise up and release the 'block. The indentures in each block were quickly and rapidly made, and as fast as completed were put or pushed aside and another block placed under the bit by the operator. The indentures could be made on about four blocks per minute. Appellee had operated the machine for about two weeks prior to his injury. The machine was in charge of Jo Friga, who set it up and aligned it every morning before appellee began to operate it. Appellee’s principal work the two weeks he operated the machine was to cut a little groove in dresser drawer fronts with a bit from one-fourth to one-half inches in diameter, and to make or shape the work. On the morning the injury occurred Jo Friga set up the machine and inserted therein a larger bit than had been used in making grooves for the purpose of cutting a “rozette” about two and one-half inches in diameter on blocks about three inches wide. He ran ten or more blocks through the machine to see that it was in proper alignment, and then turned it over to appellee.

Jo Friga testified that one purpose of running the blocks through the machine was to show appellee how to do the work.

Appellee entered upon his duties and continued to operate the machine about thirty-five minutes before being injured. During that time he had run about one hundred and fifty blocks through the machine.

Appellee testified that at that juncture his index finger was struck by the rapidly revolving bit and injured. He was unable to tell just how his finger came in contact with the bit. The folio-wing interrogatory and answer thereto is indicative of his knowledge as to how the injury occurred:

“Q. Can you explain how the injury occurred? A. That is a mighty hard proposition; it runs close to six thousand revolutions per minute. It was done in just what time it would take the machine to turn a fraction of a revolution.”

Appellee further testified that he was employed by H. B. Williams, appellant’s mill foreman, by whom he was taken to the machine and turned over to Jo Friga, who had the machine in charge; that Jo Friga set up the machine and put him to work on it, and each morning thereafter did so until he was injured; that neither H. B. Williams nor Jo Friga instructed him how to use the machine or of the dangers or hazards incident to operating same; that what knowledge he acquired relative to the operation of the machine was through observation when Jo Friga set the machine up and ran a few blocks through it; that he knew the bit would cut his fingers or hand if he allowed them to come in contact with it and tried to keep them away from it; that when the bit was not down on the block there were about four inches between it and the block, but at the time of the injury he was not trying to, and did not, pass his hand between the block and bit.

H. B. Williams and Jo Friga testified that when they put appellee to work on the machine they explained the manner of operating same to him and cautioned him against putting his fingers or hands against or under the bit, telling him that, if he did so, the bit would cut them off, and Jo Friga further stated that when he set the machine up for use by appellee on the morning of his injury he again cautioned him not to put his hand or fingers against or under the bit, fully explaining the hazard or risk in doing so.

On rebuttal appellee stoutly denied their testimony in every detail, stating that the only information received by him relative to operating the machine was in observing Jo Friga running blocks through it after setting same up for use, and that they never informed him of any dangers or hazards incident to operating same.

It will be observed from the record thus detailed that the question whether appellee was sufficiently instructed in the use of the machine and relative to the hazards and dangers incident to the operation of same was a hotly disputed question of fact. This question of fact was submitted to the jury for determination under correct declarations of law. The rule of law relative to the affirmative duty of an employer to warn and instruct an employee in cases of this kind is correctly expressed in § 77 on pp. 565, 566 and 567 in 18 E. C. L. under the title of Master and Servant, and is as follows: “If a person employ another to do work of a dangerous character or in a dangerous place, and the employee, because of youth, ignorance or inexperience, fails to appreciate the danger, it is a breach of duty and negligence on the part of the employer to expose him thereto, even with his consent, unless the employer first give him such instruction, caution and warning as will enable him to comprehend the danger and to do his work safely with the exercise of proper care , on his part. * * * Whether the employer has discharged the duty of warning and instruction in any particular case is a question peculiarly within the province of the .jury. Of course, in order that the master may be held liable on the ground of having failed to instruct a young or inexperienced servant, the failure to instruct must have been the proximate cause of the injuries sustained by the servant.”

. It is undisputed that appellee was young and inexperienced in the use of the machine he was operating. In view of the rapid revolution of the bit,, the close proximity of the hand or fingers to the bit in the operation of the machine and the rapidity of putting the blocks under the bit, the dangers and hazards incident to operating same were great. It is the character of machine that calls for instruction and warning from an employer who employs inexperienced youth to operate same. The jury has found that neither H. B. Williams nor Jo Friga instructed and warned appellee in the use of the machine or of the dangers and hazards incident to operating it. The negligence of appellant under the rule of law quoted above was in exposing appellee to this danger without properly warning and instructing him.

Appellant argues, however, that the evidence does not reflect that the failure to instruct or warn appellee was the proximate cause of the injury. Appellee testified that he knew the bit would cut his hand if it came in contact therewith, and that he tried to keep his hand away from it. There was no defect or break in the machinery that caused the injury. Appellee did not purposely put Ms finger under or against the bit. The only thing that could have caused the injury was Ms failure to exercise the degree of care to avoid the injury commensurate with the dangers incident to the operation of the machine. The purpose of instruction, caution and warning on the part of the employer is to enable the employee to comprehend the danger incident to the work, and to impress upon him the necessity for being careful in the performance of Ms duties. The jury was warranted in indulging the inference from the evidence in the case that appellee did not appreciate the great dangers and hazards incident to the operation of the machine on account of appellant failing to instruct, caution and warn him, and that, had it done so, the injury would not have occurred. There is substantial, direct and positive evidence in the record to sup-part the finding of the jury that appellant was guilty of negligence in exposing appellee to the dangers incident to the operation of the machine without sufficiently instructing, cautioning and warning him; and sufficient inferable evidence to support the finding of the jury that the injury was the direct result of appellant’s negligence in failing to instruct and warn him.

Appellant also contends that under the evidence appellee assumed the risk. We do not think so, for under the findings of the jury appellee did not know of and appreciate the dangers and hazards incident to operating the machine. Of course he could not assume risks which he did not know of and appreciate.

No error appearing, the judgment is affirmed.


text:
    Watson v. Lester.
    Opinion delivered October 13, 1930.

      McKay & Smith, for appellant.

      Henry Stevens, for appellee.
   Humphreys, J.

This suit was brought on the 25th day of January, 1929, by appellants against appellee to cancel an administrator’s deed to appellee conveying to her the following described lands in Columbia County, Arkansas, to-wit: Southeast quarter of northwest quarter, section 25, township 17 south, range 23 west; and also the following described tract, to-wit: Beginning at the northeast corner of the southwest quarter of northwest quarter section 25, township 17 south, range 23 west, running west 160 yards; thence south 440 yards; thence east 160 yards; thence north 440 yards to the point of beginning, all in section 25, township 17 south, range 23 west; and to quiet their title thereto as against appellee, alleging that they owned the land by inheritance, and said deed constituted a cloud upon their title.

An answer was filed by appellee admitting appellant’s ownership of the land by inheritance, but alleging that she acquired title thereto by purchase at an administrator’s sale thereof against appellants’ intestate, from whom they inherited same, to pay a claim against his estate. The facts in the main are undisputed and are as follows:

Etta Green is the widow and the other appellants are the children of Elmond Green, who died intestate in the year 1921, at his known place of residence in Lafayette County, the owner of said real estate. He had resided in Lafayette County for many years with his family prior to his death, never having resided in Columbia County after his boyhood. During most of the time he lived upon lands in Lafayette County belonging to Henry B. Lester, appellee’s husband. About five years after the death of-Elmond Green, Henry Lester transferred a claim or an account for rent against Elmond Green, deceased, to his wife, the appellee herein. Appellee filed an application for the appointment of W. B. Stevens as administrator of the estate of Elmond Green, deceased, and filed an affidavit with the clerk of the probate court of Columbia County to the effect that the account for rent was due Henry Lester by Elmond Green at the time of his death. Appellee and her husband, Henry Lester, signed the bond of ~W. B. Stevens and letters of administration upon the estate of Elmond Green were issued to him. Appellee then filed a claim with said administrator for the rent which had been assigned or transferred to her by her husband, and the claim was allowed by the administrator. A petition was then filed for an order of sale for the lands in question, and they were ordered sold by the probate court of Columbia County in March, 1928, without any notice whatever to appellants, and at the sale thereof appellee purchased the lands and obtained the deed therefor which is sought to be canceled.

Under the undisputed facts stated above, the only court authorized to issue letters of administration on the estate of Elmond Green, deceased, was the probate court in Lafayette County, as the intestate resided in that county at the time of his death. Had an appeal been prosecuted from the 'probate judgment of Columbia County appointing the administrator, the judgment would have been set aside as § 5 of Crawford & Moses’ Digest concerning the appointment of administrators is mandatory. Upon collateral attack, however, the judgment and order of sale cannot be set aside as the presumption must be indulged that the probate court made the necessary findings to give it jurisdiction. There is nothing on the face of the judgment or order of sale showing to the contrary. Appellants’ collateral attack upon the judgment, order of sale and deed on the ground that the judgment was void ab initio can not therefore be sustained. The decree, however, should have been canceled upon another ground, for the undisputed facts reflect that a fraud was necessarily perpetrated upon the court in the procurement of the judgment and order of sale by appellee. Fraud vitiates everything. According to the undisputed facts in' the instant case, appellee knew that Elmond Green resided in Lafayette County at the time of his death. She did not take an assignment of the account for rent until five years after Elmond Green’s death. She did not procure an administration on Elmond Green’s estate until two years thereafter, or about seven years after his death. She- must have made it appear to the probate court of Columbia County that Elmond Green was a resident of Columbia County at the time of his death, else the court would not have appointed an administrator and made an order of sale in Columbia County. Another potent fact is that she gave no notice of the proceedings for the application of an administrator to appellants, and did not notify them that she was about to sell their land under administration proceedings..

Appellee attempts to sustain the judgment, order of sale and deed under act number 263 of the Acts of 1919 of the Legislature. ('Crawford & Moses’ Digest, § 181). The act is not applicable to the instant case because the findings of the court did not meet the requirements of the act.

The judgment is reversed, and the cause remanded with directions to the chancery court to cancel the deed and to remove same as a cloud on the title of appellants to said land.

■Smith and Kirby, JJ., dissent.


author: Mehaffy, J.

text:
    Owosso Manufacturing Company v. Drennan.
    Opinion delivered October 13, 1930.

      Buebee, Pugh & Harrison, for appellant.

      Quinm, Glover and Tom W. Campbell, for appellee.
   Mehaffy, J.

The appellant, Owosso Manufacturing Company, is a corporation engaged in the manufacture and sale of lumber and other wood products, with its plant and principal place of 'business located at Benton, Saline County, Arkansas. In connection with its manufacturing plant, it operates a veneer mill. Adjacent to the veneer department is a log yard, where gum logs and other hardwood logs are unloaded from flat cars and stacked on the yards preparatory to being tansferred to a concrete vat, containing a hot solution in which the logs are soaked before they are worked up into- veneer material. The walls of the vat are something like 2% feet above the level of the ground. The logs are handled by means of a stationary derrick with a swinging boom or hoist from which a wire cable equipped with tongs for hooking- logs is suspended. The logs are brought to the mill on cars and unloaded from the cars by means of the derrick and placed on the mill yard in stacks about 15 feet high and 40 or 50 feet long. In transferring the logs to the vat the tongs are hooked into each end of the log, the log is picked up by the hoist and deposited in the vat, and the tongs are then released. One man operates the hoist by means of steam power, another man hooks the tongs into the logs and another man releases the tongs when the log is put into the vat.

Appellee’s intestate, J. J. Drennan, at the time of his injury and death, was employed by appellant as a tong hooker. His duties were to hook the tongs into the logs, and this required his being on and about the log pile going- from one side of the pile to the other, for the purpose of hooking the tongs into each end of the log. On the 5th day of December, 1929, Drennan was engaged in his duties hooking tongs into logs, and, -while standing on the ground, between the log pile and the concrete vat, where he had gone to get hold of the tongs to' fasten them into a log-, in the performance of his duty, he was crushed by a heavy log rolling down from the stack and pinning him against the vat. An employee named Mason was working with Drennan, Mason’s duties being to unhook the tongs from the logs after they had been put into the vat. The regular way that Drennan and Mason had been accustomed to take the logs from the stack and put them in the vat was to take the logs from the top o(f the stack first and gradually work down to the bottom. On the morning! Drennan was injured, his foreman, Meyers, told Drennan and Mason to clean up the logs along the vat, to clean that up and get that back out of the way, malee a passageway next to the vat. The logs were piled down •against the vat wall, so that there was no passage between the vat and the pile of logs, and Meyers, the foreman, directed them to make a passageway next to the vat, between the vat and the stack of logs; he told them to clear up the logs next to the vat. While Drennan and Mason were engaged in obedience to the orders of the foreman, Meyers, and had taken up five or six logs right next to the vat, as the foreman had told them to do; they had taken the logs next to the vat on the ground so there was a space on the ground to walk between the stack of logs and the vat, and the logs fell on Drennan, crushed him and killed him. The log pinned him to the vat, and then a second log rolled down and struck him across the head and shoulders. When the first log struck him, he only halloed ‘ ‘ Oh, ’ ’ as the second log rolled down on him, he crumpled over the first log and threw up his hands, and the second log crushed him on the first log. This happened about five or ten minutes after Meyers had given the order to remove the logs next to the vat. After the log had fallen on Drennan, the tongs were hooked into the logs and they were raised off him. Drennan was then carried to the south side and laid down, he was alive and breathing; they put him in a car and started to town with him, and he was still alive at that time; he was alive and breathing when they met the ambulance; this was about a mile from the plant. The logs that were stacked on Wednesday before Thanksgiving were stacked crooked; they were stacking them late in the afternoon, the boss was in a hurry, wanted the cars unloaded that night and in letting them down they would do it quickly, and in that way they were piled crooked and uneven.

Drennan was 30 years of age. When Drennan was not engaged at work of this character, he farmed; he was a good worker, a good citizen and sober man; he had worked off and on for the Owosso Manufacturing Company for something like seven years; he worked part of the time each year; part of the time he hooked tongs and part of the time he was handling lumber; did various kinds of work for six or seven years. He left surviving him a widow and three small children. He supported his wife and children during- his lifetime, was in good health, a man of good character, treated his wife and children well, had no expensive habits, and spent his earnings on his family. He had bought and paid for his home. His widow was 27 years old.

The appellant did not introduce any testimony in the case, and the evidence of Mason, the only person who was with Drennan at the time of liis death, testified to the foreman, Meyers, giving the order and testified that at the time of his injury Drennan was engaged in the work in obedience to- the orders of Meyers. Meyers did not testify, and the evidence of the order having been given and Drennan obeying- it is without dispute.

The case was submitted to the jury, and a verdict of $15,000 was rendered, and judgment was entered for that amount.

This appeal is prosecuted to reverse the judgment of the circuit court.

Appellant insists that the testimony was not sufficient to support a finding of negligence against it, and that the undisputed testimony presents a clear case of assumption of risk arising from obvious working conditions and obvious dangers to wMch appellee’s intestate voluntarily exposed himself. The case of Emma Cottonseed Oil Co. v. Hale, 56 Ark. 232, 19 S. W. 600, is cited and relied on. In that case the question of obeying the order of a. superior was not involved. The court announced the general rule as to assumed risk and reversed the case because the trial court gave instructions which this court said wére ambiguous and misleading*. Tbe question involved in this case was not discussed. Tbe next case appellant cites is tbe case of C. O. & G. R. R. Co. v. Jones, 77 Ark. 367, 92 S. W. 244, 4 L. R. A. N. S. 837, 7 Ann. Cas. 430. In that case this court said, after discussing the general rule in England and this country: “But plaintiff in this case exposed himself to tbe danger in obedience to; an order of tbe foreman. As tbe danger was brought about by tbe negligence of tbe foreman, before it can be said, as a matter of law, that tbe plaintiff assumed the risk thereof by tbe mere fact that be went ahead with bis work, it must be shown that when be did so be knew and appreciated tbe danger to which be exposed himself by doing tbe work. But, as plaintiff was busily engaged in work which required bis attention, we think it was open for tbe jury to say that be did not know of or fully appreciate tbe danger, and that therefore he did not, by continuing at work, assume tbe risk of injury to which be was exposed by tbe carelessness of tbe foreman. * * * The order of tbe foreman to push tbe bent over carried with it an implied assurance that tbe act could be done with reasonable safety, for it is the duty of tbe master or bis representative to use due care, and not to order the servant to perform an act that be knew to be unnecessarily dangerous. Tbe servant has tbe right to rely upon the judgment of tbe master unless tbe danger is so obvious that no prudent man would incur it under like circumstances.”

Tbe next case relied on by appellant is Neimeyer Lumber Co. v. Watson, 134 Ark. 491, 204 S. W. 310. That case does not discuss tbe question involved here. Appellant next cites and relies on tbe case of Brinkley Car Works & Mfg. Co. v. Lewis, 68 Ark. 316, 57 S. W. 1108. That case does not discuss tbe question of a servant acting in obedience to tbe order of a superior. That case of Ark. Cotton Oil Co. v. Carr, 89 Ark. 50, 115 S. W. 925, does not discuss the question of acting in -obedience to an order of a superior. The court there held that there was no evidence of the negligence of the master, and that the servant under the facts in that case assumed the risk. The case of Francis v. Arkadelphia Milling Co., 153 Ark. 236, 239 S. W. 1067, is cited 'by appellant, but that case does not discuss the questions here involved. There was no question of acting under orders of a superior, but the court simply announced the general rule of assumption of risk.

Appellant says that the case of Temple Cotton Oil Co. v. Skinner, 176 Ark. 17, 2 S. W. (2d) 676, is not in 'conflict with its contention in this case. In the Skinner case the court discussed the cases of Ark. Cotton Oil Co. v. Carr and Francis v. Arkadelphia Milling Co., referred to and relied on by appellant and numerous other cases, and held that the trial court in the Skinner case properly left the question of assumption of risk to the jury as a matter of fact to be determined by it. There was no question in the Skinner case of a servant acting under the order of the master.

Appellant next calls attention to- the case of Ark. Short Leaf Lbr. Co. v. Lattimore, 158 Ark. 308, 250 S. W. 28. The judgment in that case was affirmed by this court, and the court in discussing the instruction said: “We do not think the instruction was erroneous. It submitted to the jury the question of the negligence of the defendant in directing the plaintiff to work in the fuel room with light from a lantern instead of from electricity. ’ ’’ In the recent case of Ward Furniture Mfg. Co. v. Weigand, 173 Ark. 762, 293 S. W. 1002, cited by appellant, we did not discuss the question of the servant acting in obedience to the master’s order. That question was not involved.

The law is well settled in this State that when an employee enters the service of his employer, he assumes all of the risk ordinarily incident to the 'business. He assumes all the risk and hazard ordinarily incident to the business, and whether the risk was usual or ordinary or not, if it were obvious or plaintiff knew of and appreciated the danger, he would assume the risk. This court has many times announced this doctrine, and it is well settled in this State, but it is thoroughly well settled also that an employee does not assume the risk or hazard caused by the negligence of the1 master. The servant has a right to rely on the judgment of the master unless the danger is so obvious that no prudent man would incur it under like circumstances. C. O. & G. R. Co. v. Jones, 77 Ark. 367, 92 S. W. 244 ; Ault v. McGaughey, 173 Ark. 322, 292 S. W. 359.

One of the first duties of the servant is obedience. “It is a fundamental of the relation of master and servant that the servant shall yield obedience to the master, and this obedience an employee may properly accord even when confronted with perils that otherwise should be avoided. In any case, but more plainly when a command is sudden and there is little or no time for reflection and deliberation, the employee may not set up his judgment against that of his recognized superiors; on the contrary, he may rely upon their advice, assurances and commands, notwithstanding many misgivings of his own. It by no means follows that because he could justify disobedience of the order he is barred .off recovery for injuries received in obeying. He is not required to balance the degree of danger and decide whether it is safe for him to act, but he is relieved in a measure of the usual obligation of exercising vigilance to detect and avoid danger. Ordinarily, he may assume that the employer has superior knowledge and rely thereon, especially when the act is one that could be made safe by the exercise of special care on the part of the employer. The employee may assume that such care will be taken. Again, it is a psychological truth that employees form a habit of obedience that overcomes independent thought and action, depriving them of power to exercise intelligence that otherwise would protect them.” 18 ft. O. L. 655, et seq.

According to the evidence in this ease, Drennan, the deceased, had been working for the Owosso Manufacturing 'Company part of the time each year for about seven years. During that time, he was of course required to obey the orders of the master, and, as said by many authorities, formed the habit which overcame the independent thought and action, and therefore when the foreman ordered him to clear the passageway and take the logs out next to the vat, he evidently did it without hesitation, relying on the superior knowledge of his master. He might have known it wias dangerous, he probably did know it, but the master had told him to do' it. that way, and he had a right to obey the order of the master and to' rely on the judgment of the master, unless the danger was so1 obvious that no prudent man would incur it under like circumstances.

“He obeyed that instinctive impulse to follow the direction of his superior which is the characteristic of a faithful, resolute and loyal servant, and his conduct is entitled to be viewed in the light of reasonable charity.” Sawyer v. Rumford Falls Paper Co., 90 Me. 354, 38 Atl. 318, 60 A. S. R. 260.

No case decided by this court, so far as we know, has expressed a view contrary to these decisions, and, while the servant assumes the ordinary risk of his employment, he has the right and it is his duty to obey the orders of his superior unless the danger is so obvious that no prudent man would obey them.

“While there may be cases disclosing such manifest danger to the employee that the court may direct a non-suit or a verdict for the employer, it generally is held to be for the jury to siay whether the employee in acting-pursuant to orders or assurances, knew and appreciated the peril. The tendency of the modern cases is to permit a recovery unless the employer’s direction calls for nothing less than recklessness on the part of employee, leaving no ground for difference of opinion as to the peril of acting pursuant thereto.” 18 E. O. L. 659.

The question whether a servant doing a thing in obedience to orders of his superior assumes the risk is a question for the jury unless the danger is so apparent that a prudent man under the circumstances would not obey the order. In this case we think it was a question for the jury. The order was given. About that there is no dispute, it is mot denied by appellant.

The appellant next insists that the court erred in giving and refusing instructions. We have carefully considered all the instructions, and have reached the conclusion that the instructions as a whole correctly submitted the issues to the jury.

The issues having been submitted to the jury under proper instructions, the judgment of the circuit court is affirmed.


author: McHaney, J.

text:
    Jewell Realty Company v. Kansas City Life Insurance Company.
    Opinion delivered October 13, 1930.

      Robinson, House & Moses and W. R. Roddy, for appellant.

      Carmichael «£ Hendricks, for appellee.
   McHaney, J.

The appellee brought this action to foreclose a mortgage on a large tract of land in Chicot County, Arkansas, known as Sunnyside Plantation. On the 21st day of July, 1026, the appellant executed its note- for $225,000, secured by a mortgage on said plantation, to become due on the 21st day of July, 1931, and bearing interest at the rate of 6 per cent, per annum, payable semi-annually, from date until maturity, and thereafter at the rate olf ten per cent, per annum. Said note contains this provision: “If default is made in the payment of any interest hereon, the lawful owner may declare the whole principal and accrued interest then unpaid upon the note due, and may at once proceed to collect the same.” The mortgage given to secure said note contains a like provision as that quoted above, and a further provision as follows: ‘ ‘Said party of the first part (appellant) hereby agrees to pay all taxes and assessments levied upon said premises or upon the interest of the party of the second part therein, or upon this mortgage or the money secured hereby, when the same becomes due, -without regard to any law heretofore enacted or hereafter to be enacted imposing payment of the whole or any part thereof, upon the party olf the second part ; * * * and, if not so paid, the said party of the second part, or the legal holder or holders of the indebtedness herein secured, may, without notice, declare the whole sum of money herein secured due and payable at once, or may elect to pay such taxes, assessments and insurance premiums; and the amount so paid shall be a lien on the premises aforesaid and be secured by this mortgage, and collected in the same manner as the principal debt hereby secured with interest thereon at the rate of 10 per cent, per annum.” The fifth paragraph of the mortgage provides: “Said party of the first part hereby agrees that if default be made in the payment of taxes, assessments, insurance premiums, or any of the installments olf interest on the indebtedness herein secured before the maturity of the debt, that the party of the second part shall, at its option, have the right to take possession of all the property * * * and the party of the second, part, or the legal holder or holders of the indebtedness herein secured, may at its or their election, as hereinafter provided, mature the whole of said indebtedness and proceed to foreclose this instrument.”

Thereafter, appellant permitted the taxes for 1926 and 1927. to become delinquent, and permitted certain levee and drainage taxes on special assessments in levee and drainage districts to become delinquent, which the appellee paid, and elected to declare the whole amount of the indebtedness due and payable, and did so by filing this suit on April 28, 1928. On a trial of the case, the chancery court held that the appellee was entitled to recover interest on the balance of the principal indebtedness of $225,000' and taxes paid at 10 per cent, per annum from the date of the filing of the suit to the date of the decree, which was January 8, 1930, and that the total amount of the .judgment then entered should bear interest thereafter at 10 per cent, per annum. The decree in this regard reads: “ The plaintiff is entitled to interest at 10 per cent, on principal from the date this suit was filed, and judgment is rendered on that basis.”

The only question presented by this appeal, for our determination, is whether the interest should be figured on the basis of 6 per cent, or 10 per cent, from the date the suit was filed until the date of the decree.

Did the mortgagor contract to pay a higher rate of interest on the principal indebtedness prior to the maturity date of the note, July 21, 1931, in the event default was made in the payment of interest or taxes and the whole indebtedness declared due under the power given in the note and mortgage? After a careful consideration of all the oases cited by counsel on both sides, we have reached the conclusion that there was no agreement to this effect. The note provides that it shall bear interest at 6 per cent, per annum, payable semi-annually, from date until maturity, July 21, 1931. It further provides that interest and principal not paid when due shall bear interest at 10 per cent, per annum. It further provides that: “If default is made in the payment of any interest herein the lawful owner may declare the whole principal and the accrued interest then unpaid, due, and at once proceed to collect the same.” The mortgage makes a similar provision with reference to taxes and assessments, that is, if the mortgagor fails to pay same, the mortgagee or holder of the note may pay same, and shall be a sum secured by the mortgage, which shall bear interest thereafter at 10' per cent, per annum, and may also declare the whole indebtedness due and payable. These, in substance, are the terms and conditions of both the note and the mortgage. Neither the note nor the mortgage provides that, in the event default is made in the payment of interest or taxes, and the holder exercises his power to declare the whole amount due and payable, the principal indebtedness shall thereafter, that is, from that date, bear interest at the rate of 10 per cent, per annum. To hold, as the court did in this case, that appellee is entitled to collect 10 per cent, interest from the date he declared the whole amount due and payable, by reason of the default in the payment of taxes, that is, the date of filing suit, is to read, a provision into the contract which is not there. The parties might have so stipulated, if they had seen proper to do so. But they did not. On the contrary, they provided in express terms that the principal indebtedness should bear interest at 6 per cent., payable semi-annually, from July 21, 1926, to July 21, 1931, and thereafter it is provided that the principal indebtedness shall bear interest at 10' per cent, per annum. It was. agreed that interest not paid at maturity and taxes paid by appellee should thereafter bear interest at 10 per cent. The failure to provide in the contract that the principal indebtedness should bear 10 per cent, interest per annum from its accelerated maturity negatives the idea that the parties so intended. This court has many times held that an agreement which contains a stipulation for interest at the rate of 10 per cent, per annum from date, without the words “until paid,” bears only 6 per cent, interest, the legal rate, after maturity, and a judgment thereafter rendered bears a like rate of interest. Pettigrew v. Summers, 32 Ark. 571 ; Woodruff v. Webb, 32 Ark. 612 ; Gardner v. Barnett, 36 Ark. 476 ; Johnson v. Myer, 54 Ark. 437, 16 S. W. 121. It has also been held several times that a provision in a note for a higher rate of interest after maturity is valid, where the increased rate after maturity did not exceed the maximum rate allowed by the constitution, article 19, § 13. Bed Bud Realty Co. v. South, 153 Ark. 380, 241 S. W. 21, and cases there cited. In the case last cited the court said: “The notes executed by the corporation to the insurance company bore interest on the principal sum at the rate of 7 per cent, per annum, and contained a provision that, if not paid at maturity, they were to bear interest at the rate of 10 per cent, per annum payable annually until paid. The coupon interest notes also contained a similar provision. Judgment was rendered in favor of the insurance company against the corporation for the principal sum with interest calculated as stipulated in the notes, the judgment to bear interest at the rate of 10 per cent, per annum from the date thereof. Parties may contract for the payment of interest in this State ‘not exceeding 10 per cent; per annum on money due or to become due. ’ Art. 19, § 13, 'Constitution. Section 7353, Crawford & Moses. So long as the parties contract for a rate of interest that does not exceed the maximum rate allowed by the law1, their contracts will be enforced as written. * * * The great weight of authority is to the effect that such contractual increased rate after maturity is regarded as a liquidation of damages for failure to promptly pay, and not as a penalty. 22 Oyc., § 1526.”

Counsel for appellee seek to sustain the decree of the lower court on the authority of Red Bud Realty Co. v. South, supra, but we fail to find any support for appellee in that case. The question at issue here was not there decided. So far as the opinion in that case shows, the notes were all past due according to their terms, as nothing is said by the court about an acceleration clause in either the notes or the mortgage, or that the notes had been declared due and payable by reason of any default. The question at issue here was not there decided, and, so far as we have been able to find, has never been decided by this court. It has been decided by other courts. In Farmers’ Loan and Trust Co. v. Northern Pac. R. R. Co., 94 Fed. 454, the question was whether the interest should be cast at 5 per cent, as provided for in the bonds, or 6 per cent, the lawful rate, after the bonds had been declared due under an accelerating clause in the mortgage. The bonds were dated December 2, 1889, and became due and payable on December 1, 1989, “'and interest thereon in the meantime at the rate of-5 per cent, per annum, * * * semi-annually, on the first day of June and on the first day of December in each year,” with coupons attached. By a provision in the trust deed or mortgage it was provided that, if default be made in the payment of interest or of any coupon for a period of one year, at the election of the trustee, the principal of all the bonds secured by the instruments should become immediately due and payable. Default was made in the payment of certain interest coupons, the trustee declared the whole amount due and payable, and the question before the court was whether the contract rate of interest continued after default and election by the trustee, or whether the legal rate of 6 per cent, should control. The court said: “Here the obligor by its bond agreed to pay a certain sum of money on December 1,1989, a period of 100 years from the date of its obligation, and to pay interest upon its debt in the meantime, that is, until December 1, 1989, at the rate of 5 per cent, per annum. It attached to each obligation coupons representing the semi-annual interest at that rate and for that period of time. The stipulation of the trust deed which authorizes the trustee a,t its election to mature the principal upion default in the payment of interest does not purport to abrogate the rate of interest which the obligor agreed to pay during the stated period. The exercise of the election matured the principal, bnt left untouched the stipulation for interest. The rate was agreed upon by the parties to the contract, and was to continue during a stated period of time; and that rate should govern during that period of time, notwithstanding that by the election of the trustee the principal was matured at an earlier date than that specified in the contract. If the stipulated rate was greater than the legal rate, could the trustee, after election to mature the principal, be required to. receive only the legal rate of interest? I think it logically follows, from the principle declared by the Supreme Court, that in such case the contract rate would govern, because the parties have agreed upon the rate for the period up to the time specified in the contract as the date of the maturity of the debt. And so-, e converso, the trustee having exercised the election to mature the debt before the stipulated period of maturity, no one pursuing the debtor under such election can claim other benefit than to secure present payment of that which, without default of the debtor, could not be enforced until the period stipulated in the contract. If, after default and election to mature the debt, the creditor should receive his interest, or a court of equity should relieve from the default, the contract would remain intact in, all its provisions. I am satisfied that the deflault by the debtor and the election by the trustee did not change the stipulation of the contract with respect to the rate of interest, and that the contract rate .continued after the debt was matured by the election of this trustee.”

While the exact question here presented was not in that case, we think the argument made by the learned judge unanswerable.

In Conn. Mutual Life Ins. Co. v. Westerhoff, 58 Neb. 379, 78 N. W. 724, on rehearing, 79 N. W. 731, it was held that a stipulation that the note shall bear a higher, although lawful, rate from a default in the payment of interest, is unenforceable; at least, before the maturity of the note, and that this “ attached something additional to the amount which was to be paid for the use of the principal sum, not because of' any default directly in its payment, but for default in payment of a sum or the sums to be given for its use. The amount to be paid for the use of the principal sum had been definitely fixed, and set forth in terms in both note and mortgage, and the additional amount to be borne because of default in payment of interest was * * # of the nature of a penalty, and will not be enforced.”

Appellee cites and relies upon the case of Ohio Investment Co. v. Brown, 89 Kan. 66, 130 Pac. 665, and says that it is a case on all fours with the case at bar. We do not think so. The clause in the principal note upon which the opinion was based reads as follows: “This note and these coupons are to draw 10 per cent, interest per annum after due or after default of any interest payment, and are secured by a mortgage of even date herewith, on real estate.” That is a wholly different clause from the one now under consideration, because there is no provision in this note or in this mortgage that the principal note shall bear 10 per cent, interest “after default.” The court correctly held in that case that interest should be computed on the principal note at 10 per cent, after the default had been declared by the bringing of the action.

We have been unable to find any case which, in our judgment, supports appellee’s contentions. Being a case of first impression in this State, we are prone to follow the decisions off other courts on the same question, but in so doing we are not holding that parties may not lawfully contract to pay any legal rate of interest on the principal indebtedness after default has 'been made and declared in accordance with a proper accelerating clause.

The decree of the chancery court is therefore reversed, and the cause remanded with directions to enter a decree in accordance with this opinion.