author: McHaney, J. Johnson, C. J.

text:
    Davis v. Gillin.
    4-3218
    Opinion delivered January 8, 1934.

      Buzbee, Harrison, Buzbee & Wright, for appellant.

      Sam T. & Tom Poe, McDonald Poe, for appellee.
   McHaney, J.

Appellee, as administrator of the estate of his six-year-old son, Michael Joseph Gillin, sued appellants for the death of his son, caused by being run over by a truck owned by appellant, Johnson, but operated in the business of Johnson by appellant Davis. The accident occurred at 11th and Pike Avenue in North Little Bock, and it is conceded, under such circumstances shown in evidence, as to support the jury’s finding of negligence on the part of Davis in the operation of the truck. Trial resulted in a verdict and judgment for $12,500.

For a reversal of the judgment, it is first argued that the court erred in giving appellee’s instruction No. 7 on the measure of damages. This instruction, after enumerating various elements of damage which the jury might consider, concludes as follows: “And also for the loss of such sum of money which you may find from the evidence Michael Joseph Gillin, deceased, after he reached his majority, would have contributed to his father or mother during their lifetime, if any. ’ ’ This part of the instruction was objected to specifically, because it permitted a recovery for contributions the infant might make to both the father and mother after he became of age. The court erred in giving said instruction with that clause in it. In Railway Co. v. Davis, 55 Ark. 462, 18 S. W. 628, this court held that: “In estimating the ‘pecuniary injuries’ of a father as next of kin, resulting from the death of a minor son eighteen years old, caused by another’s negligence, * * * the jury are not bound to confine their consideration to the son’s minority, but may take into account the father’s expectation of pecuniary benefit from the continuance of the son’s life after his majority, where he hadmanifested an intent to aid his father after that time.” Syllabus. But the court further said: “When confined to the case of a child of such tender years as- to be unable to maintain itself beyond the parental roof, the argument (that there can be no recovery for contributions after majority) is doubtless sound. It seems to have received the sanction to that extent of this court in two cases which arose under the act of 1875, which, so far as the award of damages in a case like this goes, the court assimilated in those cases to acts like Lord Campbell’s. But, in each of those cases, the child killed was an infant of such tender years that it was incapable of rendering any service or of affording evidence of an intent to render pecuniary aid after majority to its parents. The cases are not authority therefore upon the question in hand. Little Rock, etc., R. Co. v. Barker, 33 Ark. 350; St. L., etc., R. Co. v. Freeman, 36 Ark. 41.” In the more recent ease of Interurban Ry. Co. v. Trainer, 150 Ark. 19, 233 S. W. 816, this court held that probable contributions of a girl eleven years of age to her parents after her majority could not be considered, the court saying : ‘ ‘ She had not reached the age where she had shown herself ‘able and willing to make her own living and to contribute out of her earnings to the support of her parents. ’ Therefore, a recovery for probable future pecuniary contributions to them beyond her minority could not be taken into consideration.” The holding in Ry. Co. v. Davis, supra; Memphis, D. & G. Rd. Co. v. Buckley, 99 Ark. 422, 138 S. W. 965; and St. L., I. M. & S. R. Co. v. Jacks, 105 Ark. 347, 151 S. W. 706, that probable future contributions after majority might be considered, was discussed in the Trainer case, where the court said: ‘ ‘ The reason for this holding is bottomed expressly upon the testimony in each of the cases showing that the minor was able and willing to make his own living, and to contribute out of his earnings to the support of his parents. In the last two cases the minors were contributing all their earnings — quite substantial sums — to their parents, and expected to continue to support them as long as they lived. But there is no testimony in this record to warrant an inference that there would be any pecuniary benefit to the parents of this child beyond her minority, and the rule as announced in Little Rock & F. S. R. Co. v. Barker and St. L., I. M. & S. R. Co. v. Freeman, supra, must govern.”

We think this case in this respect is ruled by those above cited. The little boy was only six years of age, unable to earn anything or to maintain himself beyond the parental roof, and, while he expressed himself as intending to help his parents, the facts do not bring the case within the rule announced in the Davis, Buckley and Jacks oases. The court therefore erred in giving said instruction, but the error does not necessarily call for a reversal. This question will be further discussed in connection with another assignment of error.

It is said the verdict is excessive. We agree with, appellant in this contention. The child was struck by a heavy truck, and the rear wheel passed over the child’s body and head. It received a crushing injury to the skull, a fracture at the base of the skull, and other severe and deathly injuries, from which it died a short time afterwards. It was taken to the hospital, but was dead when examined. The physician said it could not have suffered any conscious pain. There was other evidence tending to show some possible conscious suffering, and we are unwilling to say there is no substantial evidence that it did consciously suffer. The jury has evidently found that it did, from the size of the verdict, but the evidence thereof is so uncertain and weak that we are unwilling to sustain it for the full amount. We think we can cure the error in instruction No. 7, heretofore discussed, by limiting recovery for probable pecuniary contributions to such as might have been made during minority and limit them to $2,500 under the rule stated in Morel v. Lee, 182 Ark. 985, 33 S. W. (2d) 1110. We are also of the opinion that $2,500 for pain and suffering is the maximum substantially supported by the evidence. Other questions are argued in the briefs, but we think these are the only ones to be discussed in view of the disposition of the case.

If the appellee will, within fifteen judicial days from this date, enter a remittitur down to the sum herein indicated, the judgment will be affirmed. Otherwise the cause will be reversed, and remanded for a new trial.

Johnson, C. J.

I concur in the affirmance of this case, but in none of the reasoning set forth in the opinion of the majority reaching the conclusion. The majority opinion holds that the trial court erred in giving to the jury an instruction on the measure of damages which embodied the idea that appellee could recover for the loss of such sum of money, which the jury might find from the evidence the deceased might contribute to the parents after he reached his majority, if any. The opinion says: “The court erred in giving said instruction with that clause in it.” In support of this statement of the law, the majority cites, Railway Company v. Davis, 55 Ark. 462, 18 S. W. 628, and Interurban v. Trainer, 150 Ark. 19, 233 S. W. 816. Neither of these cases lend any support whatever to the opinion. In the Davis case the Syllabus reads as follows:

“In estimating the ‘pecuniary injuries’ of a father as next of kin, resulting from the death of a minor son eighteen years old, caused by another’s negligence, under § 5226, Mansfield’s Digest, the jury are not bound to confine their consideration to the son’s minority but may take into account the father’s expectation of pecuniary benefit from the continuance of the son’s life after his majority, where he had manifested an intent to aid his father after that time. ”

It will thus be seen, from the above quotation, that the majority opinion is not supported by the text, because this court squarely held in the Davis case that the jury might take into consideration contributions of the deceased minor to his parents even after his majority. The' majority opinion quotes at great length certain language found in the opinion in the Davis case, but it is not necessary to even pause, in reading the opinion in the Davis case, to determine that the language therein used was mere dictum and not at all necessary to the opinion. After all the arguments and reasoning’ set forth in the Davis case, the court finally reached the definite conclusion that such expected contributions might be considered by the jury in determining the amount of damages to be awarded.

I therefore assert with full confidence that the Davis case is not authority for the position now taken by the court, but on the contrary is full authority for my position in this dissent.

In the case of Interurban R. Co. v. Trainer, cited by the majority, the opinion expressly holds: “But there is no testimony in the record to warrant the inference that there would be any pecuniary benefit to the parents of the child beyond her minority.” In the instant case, the record reflects that the deceased child, on many occasions, expressed his expectations of taking care of his parents, after his majority. This was testified to by both his father and mother. The testimony further shows that the deceased was a child much above the average for intelligence. His intelligence was such as to attract the attention of Mr. Miller, an executive officer in one of the principal banks of Little Bock. This testimony, together with other facts and circumstances adduced before the jury, warranted it in determining that this little boy would have made contributions to his parents, after he reached his majority, had he lived.

It suffices to say that this testimony definitely distinguishes this case from the Trainer case.

The majority opinion further recites: “The little boy was only six years of age, unable to earn anything- or to maintain himself beyond the parental roof, and, while he expressed himself as intending to help his parents, the facts do not bring the case within the rule announced in the Davis, Buckley and Jacks cases.”

In the' Davis, Buckley and Jacks cases, referred to in the majority opinion, this court expressly approved the doctrine that the jury might take into consideration contributions which might be made by a deceased minor to his parents after he reached his majority. The only difference between the instant case and the three cases, just referred to, is the fact that the deceased had not actually made contributions to his parents prior to his death. Evidently, if the deceased in the instant case had sold a few newspapers prior to his death and had surrendered the proceeds thereof to his parents, the rule would be announced differently.

I cannot agree with such logic. It is and should be a question for the jury to determine, in each and every case, as to whether or not the deceased minor can reasonably be expected to render contributions to his parents after he reaches his majority.

This action was instituted under 1074 and 1075 of Crawford & Moses’ Digest. Section 1075, in part, expressly provides, “In every such action, the jury may give such damages as they shall deem a- fair and just compensation, with reference to the pecuniary injuries resulting from such death, etc. ’ ’ It will thus he seen that under the plain terms of the statute no limitation is found limiting the damages to contributions by the minor during minority. This court is now, by judicial construction, doing something that the Legislature never intended. I cannot agree that this court should perform such functions. Neither can I agree that the judgment in this case awarding damages for pain and suffering of the deceased'should be reduced to $2,500. Section 31 of article 5 of the Constitution of 1874 provides:

“No act of the General Assembly shall limit the amount to be recovered for injuries resulting in death, or for injuries to persons or property (c), and in case of death from such injuries the right of action shall survive, and the General Assembly shall prescribe for whose benefit such action shall be prosecuted.”

It will thus be seen that, by constitutional mandate, the Legislature is prohibited limiting the amount of recovery in actions wherein death ensues. I heartily agree, of course, that in cases where this court can say that the jury’s award of damages is so excessive as to demonstrate prejudice or passion a reduction may be effected, but such are not the facts of this case. This court has many times permitted awards to stand for pain and suffering in excess of the amount here awarded. In the very recent case of Missouri & North Arkansas Rd. Co. v. Robinson, ante p. 334, this court sustained an award for pain and suffering in the sum of $5,000. In the case referred to, the brakeman suffered pain for only a short interval of time — no greater than was suffered by the child in the instant case. It occurs to me that a child six years of age can and would suffer pain as poignantly as an adult. I can see no line of demarcation. If Bobinson suffered pain to the extent of $5,000, then certainly the child in the instant case suffered pain in a like amount.

There are no extenuating facts or circumstances in behalf of appellant in this record. The testimony reflected and the jury so found that the driver of the death truck could and should have seen the approaching streetcar for a distance of five or six blocks; that he knew that the street car would stop at intervening street intersections for the purpose of taking on and disembarking passengers; that he knew that disembarking passengers would necessarily have to pass from the street car to the sidewalk and across the side of the street being traversed by the truck which he was driving. In total disregard of the rights of all others, the driver of the death truck continued at an excessive rate of speed until this unfortunate accident occurred. These facts and circumstances did not require the jury to weigh the award in golden scales. Just such conduct was in the contemplation of the framers of the Constitution of 1874. This was the exact condition of affairs aimed at when § 31 of article 5 of the Constitution of 1874 was promulgated.

Many other cases might be cited in support of my contentions, but it is believed enough has been said to. show my views on the subject. The judgment should be affirmed outright.

I am authorized to say that Justices Mehaffy and Humphreys agree with my views in this dissent.


source: Caselaw Access Project

author: McHaney, J.

license: Public Domain

text:
    Missouri Pacific Railroad Company v. Henry.
    4-3271
    Opinion delivered January 8, 1934.

      R. E. Wiley and E. W. Moorhead, for petitioner.

      Williamson & Williamson, for respondent.

      Sam T. & Tom Poe, Meehan & Moncrief, Francis R. Stark and Rose, Hemingway, Cantrell & Loughborough, amici curiae.

   McHaney, J.

Three separate suits were filed in the Drew Circuit Court by tenants of certain lands in Desha County against petitioner, to recover damages caused by the flooding of said lands. It was alleged in each case that petitioner had built a temporary dam across a drainage ditch adjacent to said lands, some time prior to May 17, 1931, for its convenience in repairing a culvert under its tracks through which said ditch drained; and that on or about said date a general rain fell in that vicinity, filling said ditch and causing it to overflow onto their lands; that cotton seed had been planted in certain of said lands, and other had been prepared for planting; and that the overflow water stood on said lands for five or more days, causing the seed to rot without sprouting, and that the land remained in such condition for such a length of time that a replanting failed to produce any crop whatsoever. Damages were prayed in different amounts for loss of money and labor expended in planting-cotton seed, loss of crop of cotton which would have been produced but for the flooding thereof, and loss of the use of said lands.

Petitioner demurred in each case on the ground that the court was without jurisdiction because the subject of the cause of action is damage to real estate and appurtenances thereto, and should be brought in the county in which the real estate lies. The court overruled the demurrer, and this action for prohibition followed.

Counsel for petitioner and respondent, as well as counsel as amici curiae, have filed exhaustive briefs dealing with the question of whether growing crops are a part of the land, whether a tenant’s title is a constructive severance, and whether a tenant may sue for temporary damages to land, all bearing on the question of whether the action is local or transitory. We think these very interesting questions are not involved in this case. The complaints do not allege any damage to growing crops, or that any crops were growing on said land. On the contrary, the 'allegations are that cotton seed had been planted on a portion of the land, but that it had not sprouted, the exact language being that “cotton seed planted in said land was thereby killed and prevented from sprouting; and said land, being thoroughly water-soaked and damaged for crop planting purposes by the water standing thereon for the period above described, was not sufficiently dry to make it possible to replant cotton or any other crop thereon until on or about June 1, 1931.” In one of the cases it is alleged that 15 acres had been prepared for planting, but was not planted. There is therefore no question of damages to growing crops.

The question is: Do the complaints state actions for injuries to real property? If so, they are local and must be brought in the county where the lands lie. Section 1164, Crawford & Moses’ Digest, 4th subdiv.; Jacks v. Moore, 33 Ark. 31; Cox v. Railway Co., 55 Ark. 454, 18 S. W. 630. Even consent cannot confer jurisdiction of the subject-matter. King v. Harris, 134 Ark. 337, 203 S. W. 847. See Kory v. Dodge, 174 Ark. 1156, 298 S. W. 505. The seed before planting’ were personal property, but, when planted and became commingled with the soil, they became a part of it, and were therefore realty. These actions were necessarily for injuries to real estate, for the destruction of the seed, and for the loss of the use of the land. The real estate was temporarily injured by the overfloAV by preventing the use of the land for the growing of crops. While no permanent injury to the land Avas claimed, a temporary injury thereto was alleged, in that the dam so constructed held the water thereon for such a length of time that it could not be cultivated in the year 1931. This Avas a damage to the tenants’ interest therein, and resulted not only in the loss of the seed which had been planted, but in the labor of preparing it for seeding, and in the crop that otherwise would have been groAvn. We do not discuss the measure of damages, as only the question of jurisdiction is before us.

It necessarily folloAvs from Avhat Ave have said that the Drew Circuit Court was without jurisdiction, the venue of tlie actions being in Desha County, where the land is situated. . .

Let the writ of prohibition Issue.

Mehaffy, J., dissents.


text:
    Scottish Union & National Insurance Company v. Hutchins.
    4-3360
    Opinion delivered January 8, 1934.

      C. W. Norton and R. Lee Bartels, for petitioner.

      Mann & Mann, S. S. Hargraves and Winstead Johnson, for respondent.
   McHaney, J.

Respondent, J. P. J. Bruce, a resident of this State, brought suit in the St. Francis Chancery Court against petitioner, a foreign insurance corporation doing business in Arkansas, to restore- a lost policy of fire insurance issued by petitioner to said respondent, covering property in the city of Memphis, Tennessee, and for judgment against it for $3,000, the face of the policy, alleging that the property insured had been destroyed by fire and petitioner’s failure to pay on demand. Service was had on petitioner by serving H. A. Knight, its agent in Forrest City, where -the suit was brought. Petitioner appeared specially, moved to quash the service, and objected to the jurisdiction of the court. It alleged in haid motion that, although it was doing business in this State, and had appointed an agent for service in this State, it had not consented to service on said Knight or any other agent, except as to contracts made or business done in this State; that the contract sued on was executed and delivered in the State of Tennessee, covered property located in said State, the indemnity running to the insured, a resident of said State; that the loss complained of occurred there; that performance was to be had there; and that respondent Bruce is not a bona fide resident of this State. The court overruled the motion to quash and dismiss for want of jurisdiction, and petitioner seeks a writ of prohibition.

Petitioner first contends that the court was without jurisdiction, and cites National Liberty Ins. Co. v. Trattner, 173 Ark. 480, 292 S. W. 677, and Yockey v. St. Louis-San Francisco Ry. Co., 183 Ark. 601, 37 S. W. (2d) 694, to support the contention. We held in the former case (quoting from the latter: “That, under our Constitution and statutes relating, to foreign corporations doing business in the State and providing for service of process on the Insurance Commissioner in actions against foreign insurance corporations, an insurance corporation of another State cannot be sued in Arkansas on a contract of insurance made in another State with a resident of that State, covering property located therein. The court recognized the general rule that, where a foreign corporation consents, on coming into a State to do business, service on a designated State officer shall be a valid service on the company in all actions relating to any business done by the company while in the State, but said that it does not extend to business transacted in another State with persons living outside of this State.” In the latter case, Yockey v. Railway, we held that an action for personal injuries to a nonresident received in another State might be maintained in this State against a foreign railroad corporation operating a line of railroad in this State, if based on service on an authorized agent in this State.

In the ease at bar, Bruce, plaintiff below, is a resident of this State, the complaint so alleges. This distinguishes it from the Trattner case, supra, where the plaintiff was a nonresident. We perceive no valid reason why the jurisdiction of the courts of this State may not be invoked by citizens of this State on contracts entered into by them elsewhere with corporations doing business in this State, after valid service on an authorized agent in this State.

Service was had on a local agent of petitioner in Forrest City, and it is further contended that the service was bad because not on the designated agent. This contention was ruled adversely to petitioner in the recent ease of Pacific Mutual Life Ins. Co. v. Henry, ante p. 262.

Writ denied.


author: Butler, J.

text:
    Wasson v. Carmichael.
    4-3383
    Opinion delivered January 8, 1934.

      Trieber & Lasley, for appellant.

      Johh W. Newman and A. F. House, in behalf of J. H. Carmichael.
   Butler, J.

Proceeding under the provisions of act No. 14 of the Acts of 1933, approved February 6, 1933, the Attorney General appointed J. H. Carmichael as special counsel in the liquidation of American Exchange Trust Company, insolvent, subject to the approval of the Pulaski -Chancery Court, wherein the liquidation was pending. He took this course after act, No. 14, which did not carry an emergency section, was no longer in abeyance. In the meantime, the Bank Commissioner, proceeding under the provisions - of act 61 of the Acts of 1933, approved February 28, 1933, and to which an emergency section was attached, had employed DuVal L. Purkins as counsel in the said liquidation. The conflict of the Attorney General’s appointment with the Bank Commissioner’s employment of such counsel was brought for hearing before the chancery court. The question of law was whether act No. 14 was impliedly repealed by the later act No. 61 to the extent of the former’s provisions relating to the conduct of the legal affairs of the Bank Department and the selection of counsel for banks* and building and loan associations which are in charge of the Bank Commissioner. The chancery court concluded that the provisions of act No. 14 had not been impliedly repealed,. and accordingly that a need existed within the contemplation of that act for the appointment of counsel in the American ^Exchange liquidation by the Attorney General. The appointment of Mr. Carmichael was thereupon approved. The Bank Commissioner appealed, and he thus brings before this court the same question of implied repeal.

It is the contention of the appellant that the two acts, in so far as they relate to the same subject, are repugnant in their provisions to the extent of working an implied repeal of § 4 of act No. 14 of the Acts of 1933.

It is the settled rule, in the construction of statutes, that repeal's -by implication are not favored, the presumption being that the Legislature has knowledge of prior statutes, especially of those relating to the same subject, and that therefore, if it intended a later statute'to repeal a former, it will so declare in express terms. For this reason, courts are reluctant to interpret the last legislation upon any given subject as impliedly repealing a former law relating to .the same subject. In order that the later legislation shall impliedly repeal a prior law, there must appear to be an irreconcilable conflict. If the provisions of the two acts can be harmonized so that both may stand, it is the duty of the court to do this. Martels v. Wyss, 123 Ark. 184-7, 184 S. W. 845; Sanderson v. Williams, 142 Ark. 91, 218 S. W. 179.

Applying these principles to the construction of the acts involved, the trial court, in an exhaustive and able opinion, held that there was no conflict between the two acts, that § 4 of act No. 14 dealt with local counsel, and that the provisions of act No. 61, relating to the employment of counsel by the Bank Commissioner, referred to such counsel as would represent the bank generally. In support of the conclusion reached by the trial court, counsel for appellee calls attention to the express amendment of § 5 of act No. 113 of the Acts of 1913, as amended by § 1 of act No. 46 of 1927, which deal only with the authority of the Bank Commissioner to appoint department counsel, and the silence of act No. 61 as to § 54 of act No. 113 of 1913, which related to the employment of counsel as the Commissioner might deem necessary in the liquidation of insolvent banks. The argument is made that the failure to refer to, or amend, § 54 of act No. 113 of the acts of 1913 demonstrates that there was no intention to restore the authority given to the Commissioner prior to the passage of act No. 14 to appoint liquidating or local counsel. They stress the term “local counsel” used in § 4 of act No. 14, and argue that the failure to use such term in act No. 61 is a further indication that it was the intention of the Legislature to leave the appointment of local counsel under the provisions of the former act and restore to the Bank 'Commissioner authority to appoint departmental counsel only. It is also argued that, since the authority of the Bank Commissioner to appoint attorneys for liquidation and attorneys for general service in his department was derived at different times and under different acts, it is evident that it was not the intention of the Legislature to disturb the provisions of act No. 14 relating to the appointment of local counsel.

Prior to the session of 1933, the Commissioner was clothed with the sole authority, although derived, it is true, at different times and by different acts, of selecting counsel for general services or for special work in the liquidation of insolvent institutions which he had taken in charge. This authority was exercised without question. Act No. 14, approved February 6, 1933, and becoming effective ninety days after its passage by reason' of the failure to enact an emergency clause, was “An act to curtail the State’s legal expenses and regulate and restrict the employment of special counsel,” and provided in general that the Attorney General should be the attorney for all of the State’s officials, departments and agencies, and that, as to office work and advice to such, no special counsel should be employed, but that in the liquidation of insolvent institutions in charge of the State Banking Department, when the need of local counsel was presented to the court having supervision of the liquidation and it deemed local counsel necessary, such might be appointed by the Attorney General, the compensation of such counsel to be fixed by the court; and, where the Attorney General deemed special counsel necessary to prosecute any suit on behalf of the State, or to defend any such, or any action brought against any of the State’s officials or agencies, he might, with the approval of the Governor, employ such counsel, and his compensation be fixed by the court in which the litigation was pending, with the approval of the Governor and Attorney General. Also, in cases where the Attorney General should fail to render the services requested and imposed upon him by the provisions of the act, the Governor was authorized to employ special counsel.

That part of the act relating to local counsel for the Banking Department is as follows: “Section 4. Whenever a bank, trust company, or building and loan association shall become insolvent, or for any cause be taken over by the State Banking Department, and the services of local counsel may be needed, such fact shall be presented to the chancery court of the district in which such institution is located, and, if the chancery court deems it necessary for local counsel to be employed, the Attorney General may, in such event, appoint special counsel to be approved by the court or the chancellor. The compensation of such special counsel shall be fixed.by the chancery court permitting the employment of such counsel.”

Act No. 61 was approved February 28, 1933, and became effective from and after its passage by reason of the emergency clause attached. That clause is § 6 of the act, and expresses the reasons for its enactment, which are thus stated: “It is hereby ascertained that the divisions of the State Bank Department heretofore separately existing should be consolidated at once in order to effect necessary economies in the conduct of the said department; that defects and omissions in the laws relating to the liquidation of closed banks have developed which should be supplied at once in order to facilitate such liquidations; that existing laws do not provide, or adequately provide, for the security of deposits of certain funds of a public nature; and that there are instances of liquidations and distributions of assets of closed banks which should be investigated at once lest the rights of creditors and stockholders be lost through failure to take prompt action in respect of any irregularities which may have occurred. In consequence of the necessity for prompt action as aforesaid, an emergency exists,” etc. * * *

It was provided by § 1 of act No. 61 that, “Upon taking charge of any bank, the Commissioner shall proceed to liquidate its affairs, to institute, maintain and defend suit and other proceedings in the courts of this State or elsewhere, (and) to enforce in this State or elsewhere, if necessary, the liabilities of the stockholders.”

Section 2 related to the expense of the liquidation of any bank in charge of the Commissioner, and provided that: “Any and all expenses of the liquidation of any bank of which the Commissioner has taken charge, including the compensation of the Special Deputy Commissioner, counsel, employees and assistants, the expenses of the Commissioner or employees of the State Bank Department incurred in connection with such respective liquidation, and a reasonable allowance toward the general expenses of the said department to equalize the loss of its revenues resulting from the fact that its employees have been obliged to devote fbeir time in part to snob liquidation instead of exclusively to the affairs of going concerns,, whence are derived the usual revenues of the said department, shall be fixed by the Commissioner, subject to the approval of the chancery court or chancellor thereof in vacation, and shall be paid out of the funds of the said estate in Ms charge.”

Section 3 provides that: “Said Commissioner shall employ from time to time such assistants, examiners, clerks, stenographers and counsel as he may find necessary to properly and efficiently discharge the duties of his office, and he shall fix their compensation, provided he shall incur no expense until an appropriation shall have been made for the respective purpose, and in no case shall any liability be created for the State in excess of the appropriation therefor, or in excess of the revenues of the State Bank Department. * * * The said counsel so employed, or such of them as the Commissioner may from time to time designate for the respective purposes, shall advise the Commissioner in all legal matters affecting the said combined department, conduct all litigation in respect of institutions subject to the supervision of the said combined department and of which the Commissioner shall have taken charge, and defend all suits brought by reason of alleged acts or omissions of the Commissioner in the discharge of the duties of his office.”

It will be observed that § 3 of act 61 is more comprehensive in its terms than the section of the act it amends, in that it not only impowers the Commissioner to employ counsel, but designates the purposes for which they shall serve, which includes all litigation with respect to institutions subject to the supervision of the combined departments of which the Commissioner shall have taken charge. When the emergency clause is considered, it is clear that the services the counsel shall render will relate to the liquidation of closed banks as well as to any other-duties assigned to him by the Commissioner, and therefore the counsel provided by § 3 cannot be justly said to be departmental only, but the expression “counsel’’ with the duties to which they may be assigned is sufficiently broad to cover all kinds of services, both those performed by a local attorney and special in their nature, and those performed by a general counsel. It would seem therefore that § 3 of act 61 is not only amendatory of previous existing laws relating to the same subject, but is in substitution thereof, and this, although no specific mention is made of previous legislation. The argument that the fact that the words “local counsel” are not used in act No. 61 refutes the contention that § 4 of act No. 14 was intended to be repealed, and that the “counsel” referred to in act No. 61 was only departmental or general counsel, cannot be sustained when the entire provisions of act No. 61 are considered. If counsel appointed by the Commissioner are clothed with the authority of conducting all litigation respecting institutions subject to the supervision of the Commissioner, and which had been taken in charge for purposes of liquidation, or for other reasons, then, clearly, “local counsel” provided for by § 4 of act No. 14 could not act. Therefore the provisions of act No. G1 are repugnant to, and in conflict with, § 4 of act No. 14. That the Legislature meant to clothe the Commissioner with the same powers with respect to the employment of counsel that he had before the session of 1933, and that he was again authorized to employ counsel, a part of whose duties would be to render such services as might be necessary in the liquidation of an insolvent bank, is made clear when the manner in which they are paid for such services and the method pointed out in § 2 of act No. 61 is considered. When counsel are representing the bank generally, they are paid for such services out of the appropriations made for the expenses of the department, but while serving in the liquidation of banks it is provided in the section last noted that the compensation of counsel shall be fixed by the Commissioner subject to the approval of the chancery court or chancellor thereof in vacation, and shall be paid out of the funds of. the estate (of the bank in process of liquidation). It may be, as argued, that it is better that a local counsel be employed for work connected with the liquidation of a bank rather than to leave it to one of the regularly employed staff of attor neys of the Hanking’ Department, but tbat was a question solely for the Legislature.

We are of the opinion, when the entire provisions of act No. 61 are considered, together with the reasons calling for the enactment of that legislation as stated in its emergency clause, that it was the purpose of the Legislature to substitute the provisions of that act relating to the employment of counsel in the place of all previous legislation, and that any counsel employed might be directed by the Commissioner to act specially in representing the interests of a bank in liquidation, or any other institution, in charge of the Bank Commissioner, and to perform also any such general duties as the Commissioner might direct. As it appears to us that there is a clear repugnancy between § 4 of act No. 14 and the provisions of act No. 61, supra, we bold that the former section was impliedly repealed by the enactment of act No. 61.

The trial court therefore erred in the approval and confirmation Of the appointment of the attorney selected by the Attorney General, and the order entered is reversed, and the cause remanded for further proceedings in accordance with this opinion.

Mehaffy and McHaney, JJ., dissent; Humphreys, J., not participating.


text:
    Sovereign Camp Woodmen of the World v. Hardee.
    4-3272
    Opinion delivered January 8, 1934.

      Rainey T. Wells and Arnold & Arnold, for appellant.

      J. F. Quillin, for appellee.
   Butler, J.

This is an action on a policy of life insurance issued to the husband of the appellee, Mary Hardee. On the pleadings and evidence adduced, the case was submitted to the trial court- sitting as a jury, and, from a verdict and judgment in favor of the plaintiff, the defendant has prosecuted this appeal.

The question for our decision involves the proper construction of a certificate of insurance in a fraternal benefit society. The evidence presented to the court below is not in dispute, and the facts may be thus stated: Jesse Hardee, the husband of the appellee, became a member of the appellant society in 1909 and secured a certificate of insurance for $2,000. He was in good standing on June 13, 1929, when, pursuant to an application he had made on May 28 preceding, his certificate of insurance was canceled by agreement and a new one issued. In his written application for exchange of certificate, he applied for an ordinary life certificate in the sum of $2,000 in lieu of his certificate then in being. The application contained, among others, these provisions: ‘ ‘ The new certificate is to become effective on thé first day of June, 1929, and to bear the date of June 1, 1923, and age of 45.

“It is understood and agreed that withdrawal values, if any, on the new certificate will be available to me only after I have made payments on said new certificate for three full years from date thereof.”

Payment of monthly premium installments was provided in the sum of $5.44 each month, being equivalent •to an annual premium of $62i.82. In the application the insured agreed to abide by the by-laws of the society then existing, or as they might bo thereafter amended. Other provisions were inserted relating to the condition of the health of the insured, etc., .and the application further contained the following:

“Waiver of Old Certificate.
“I hereby warrant that my certificate No. 215,736 has been lost or destroyed; that I have not transferred or assigned said certificate to any person or persons, and, that it is not to my knowledge in possession of any person or persons, and, as a condition precedent to the approval of the within application for exchange, I waive all rights and benefits which I or my beneficiaries may have heretofore acquired or may now have under said certificate, and I hereby cancel the same and agree to forward said certificate to the office of the Sovereign Camp of the Woodmen of the World if it should come into my possession again.”

The certificate issued on the application was an ordinary whole life certificate in the sum of $2,000, and, under the head of “Special Provisions and Conditions,” § 2, provided as follows: “Cash Surrender, Loan Value, Paid-up and Extended Insurance: After thirty-six monthly payments on this certificate shall have been made, should the member fail to pay any subsequent monthly payment, the member, within three months after due date of the monthly payment in default, but not later, upon written application and legal surrender of this certificate may select one of the following nonforfeiture options: Option (a). The cash surrender value set forth in column 1 of table A on page 3 hereof for the period to the end of which premiums have been paid in full. Option (b). A paid-up certificate for the amount set forth in column 2 of table A on page 3 hereof for the period to the end of which premiums have been paid in full. Option (c). Extended insurance from such due date, for the amount of the death benefit on page 1 hereof, but without total and permanent disability benefits, for the period specified in column 3 of table A on page 3 hereof for the period to the end of which premiums have been paid in full.

“If there be any indebtedness against this certificate, the cash surrender value set forth in column 1 of table A on- page 3 hereof shall be reduced thereby, and the value of the options above named shall be decreased proportionately.”

Section 3 of the “special provisions” provided in part as follows: “After thirty-six monthly payments on this certificate shall have been paid, if any subsequent monthly payment be not paid on or before its due date, and if the member has not, prior to such due date, selected one of the options available under the nonforfeiture provisions of this certificate, the association will, without any action on the part of the member, advance as a loan to the said member the amount of the monthly payments required to maintain this certificate in force from month to month until such time as the accumulated loans, together with compound interest thereon at the rate of five per cent, per annum, and any other indebtedness hereon to the association, equal in cash value hereof at the date of default in the payment of the monthly payments. When the said cash value has been consumed in loans advanced and interest thereon, then this certificate shall become null and void; provided that, while this certificate is continued in force under this provision, the member may resume the payment of monthly payments without furnishing evidence of insurability, and the accumulated loans and interest thereon shall become a lien upon this certificate and shall continue to bear interest at the same rate. Provided further, that such lien may be paid in whole or in part at any time’by the member, but, if not paid, loan and accumulated interest thereon shall be deducted upon any settlement with the member, or from the amount payable at the death of the member.”

The by-laws of the society, which, by the terms of the application and certificate, became a part of the contract, provided for the monthly installment of assessments to be due and payable on or before the last day of the month, and that failure to make the same should work the suspension of said member from the society, and render the certificate void and terminate the contract of insurance.

Beginning with the month of June, 1929, down to and including the month of September, 1931, the insured paid each monthly installment when due, amounting to a total of 28 monthly payments. He did not pay the installment falling due in the month of October, 1931, or any other installment thereafter, and died on February 24, 1933, in arrears to the society for sixteen monthly premiums the total amount of which, with accrued interest, was $89.82. At the time of the exchange of policies the insured Avas 51 years old, but because of the fact that under his first certificate he Avas due a certain amount of accumulated reserves, the rate charged him in the ucav policy was as of the age of 45 years, and the nonforfeiture values were to be computed as if the certificate had been issued on June 1, 1923, and, after the accumulated reserves had been used for the purposes last stated, there remained a cash reserve of $186.24, Avhieh Avas credited to the new certificate as reserve on June 1, 1929, the date of its issuance. At the end of the policy year, June 1, 1931, the cash and loan value of the certificate amounted to $268.38, up to which time the monthly payments had been regularly made down to and including the month of September following. Hence it appears, and this is admitted, that there was a cash reserve on the old policy which was credited on the neAV on June 1,1929, in a sufficient sum with the 28 monthly payments made on the latter to carry it well beyond the date of the death of the insured, and which it was the duty of the society to apply to the payment of monthly premiums and thus prevent a forfeiture of the policy. Pfeiffer v. Mo. State Life Ins. Co., 174 Ark. 783, 297 S. W. 847; Security Life Ins. Co. v. Matthews, 178 Ark. 775, 12 S. W. (2d) 865; Supreme Lodge, etc., v. Walker, 181 Ark. 407, 26 S. W. (2d) 94.

.But appellant insists that the cash reserve, although it existed at the time of the issuance of the neAv policy in a sum sufficient Avith the monthly premiums paid to carry the policy to a date beyond the death of the insured, was not available for that purpose because it contends that the plain language of the special provisions of the certificate, §§ 2 and 3, supra, are to that effect and could only become available after 36 monthly payments were made after the issuance of the new certificate, and that this follows because of the language in “waiver of old certificate,” i. e., “I waive all rights and benefits which I, or my beneficiaries may have heretofore acquired or may now have under said certificate.” It is argued that, if the beneficiary is to derive any advantage from the reserves which accrued by reason of premium payments on the old certificate, such advantage must be derived by virtue of the terms and provisions of the new certificate, and therefore the reserves accumulated under the old could not be automatically transferred to the new unless its terms so stipulated. We do not agree to this interpretation of the waiver, first, because under the old certificate there was sufficient cash reserve to justify the writing of the insured as of the age of 45 years, and any waiver of the right to the benefit of the balance of the cash reserve remaining would be without consideration. McClain v. Reliance Life Ins. Co., 170 Ark. 478-482, 280 S. W. 15.

Second, when all of the language in the waiver is considered, it is manifest that the language quoted above and relied on by the appellant was inserted as a precaution on the contingency that the old certificate which was thought to have been lost might not have been so in fact, and the benefits of the insured and his beneficiaries must have referred to the amount contracted, that is, the payment of the $2,000 on the death of the insured, or cash surrender value of the same, so these might not be asserted by any one in the future in whose hands the old certificate might be. That this waiver was required and executed simply because the old certificate was lost is made clearer by the agreement in it that the same should be canceled, and that it should be forwarded to the home office of the society if it should again come into the possession of the insured; and that the right to the cash •reserve was not waived was clearly shown by the fact that the society, on the date of the new certificate, credited snch reserve to it. Thus the parties themselves construed the contract of waiver, and this supports our view. Mo. State Life Ins. Co. v. Ross, 185 Ark. 556, 48 S. W. (2d) 230.

It is admitted that there was a cash value sufficient to extend the policy beyond the death of the insured, but it is further argued that such value was not available under the terms of the policy. What we have said heretofore sufficiently disposes of this contention. But, even if it should be assumed that the right to the use of the cash reserve was waived, it is our opinion, when the contract is considered, including the application, the certificate with its provisions, and by-laws of the society, the contention of the appellant could not be sustained. It is the settled rule of this court that insurance contracts, like all others, must be considered as a whole, and the several parts construed together, those defining liability as well as those stipulating against it; and that, since the contract was written by the insurer, it must be construed liberally in favor of the insured and strictly against the insurer; if there are any conflicting’ provisions, those most favorable to the insured must be given effect to effectuate the purpose for which the insured paid" his premiums, i. e., that his beneficiaries should be paid the stipulated sum in the event of his death. American Indemnity Co. v. Hord, 183 Ark. 266, 35 S. W. (2d) 353; Travelers’ Protective Ass’n v. Stephens, 185 Ark. 660, 49 S. W. (2d) 364; Franklin Fire Ins. Co. v. Butts, 184 Ark. 263, 42 S. W. (2d) 559; Mechanics’ Ins. Co. v. Inter-Southern Ins. Co., 184 Ark. 625, 43 S. W. (2d) 81.

The contention that the clause providing that the nonforfeiture values shall be computed as if this certificate had been issued on the first day of June, 1923, provided merely the method of computation after they had become available, cannot be sustained for the reason that in the application, which is a part of the contract, their availability is not deferred and made conditional to the payment of any number of installments on the new policy, but it is plainly provided that the “new policy is to bear date of June 1, 1923, and the withdrawal values to be available three full years from date thereof,” and from this it necessarily follows that this date was fixed as a basis for making the very computation contended for by the appellee and determined by the court below.

Sections 2 and 3 of the special provisions, where the 36 monthly premium clause appears, are standard clauses inserted in all similar certificates, regardless of the effective date, and are clearly those which control when one is first insured, for it appears from the table of cash and loan values in the policy that there are none until the end of the third certificate year, and it is for this reason, it seems to us, that the 36 monthly premium clause was inserted, and applicable to an original contract of insurance and not to a case where an existing contract was exchanged for another, as in the case at bar.

In Daly v. Sov. Camp, W. O. W., twice decided by the Kansas City Court of Appeals of Missouri, and reported in 34 S. W. (2d) 229 and 55 S. W. (2d) 743, and in Higgins v. Sov. Camp, W. O. W., decided by the Supreme Court of Alabama and reported in 224 Ala. 644, 141 So. 562, the appellant in the instant case was the party defendant in those, and the policies considered by the courts were the same as the one here involved. The contention in those cases was that, because of the 36 monthly payment clause, the availability of the cash reserve or loan value was deferred until the payment of 36 monthly premiums, was denied by the courts under facts much more favorable to the society than in this case; for it does not appear that in those cases there were reserves accrued under the old policies exchanged for the new, sufficient to keep the latter alive beyond the date of the death of the insured, as in the case at bar. To say the least, such an ambiguity arises because of the provision in the application that the new certificate should bear date as of June 1, 1923, and the reserves be available three years from date thereof, and the provision in the certificate that the non-forfeiture values shall be computed as if the certificate had been issued on June 1, 1923, and the 36 monthly payments provided for in §§ 2 and 3 of the policy, supra, before the options in the first-mentioned section and the premium loan in the last should be available, to leave it doubtful as to whether or not the provisions of §§1,2 and 3 related to holders of old certificates exchanging- them for new, and calls for the application of the rule that the doubt must be resolved ag-ainst the insurer, and for an affirmance of the case on this contention.

Affirmed.


author: Johnson, C. J.,

text:
    Moore v. Brasel.
    4-3281
    Opinion delivered January 15, 1934.

      J. Loyd Shouse, A. B. Arbaugh, W. S. Moore and Jack Holt, for appellant.

      S. W. Woods, for appellee.
   Johnson, C. J.,

(after stating the facts). It will be seen from the foregoing Statement of facts that appellant is a subsequent creditor seeking to set aside a conveyance made some years prior to the creation of his debt.

This court held in Jenkins v. Smith, 170 Ark. 806, 281 S. W. 377: “In order for a subsequent creditor to secure the avoidance of a voluntary conveyance, the intention to defraud existing or subsequent creditors must be proved by the facts and circumstances surrounding the transaction, and the presumption of such intention -will not be indulged from the execution of a voluntary conveyance.”

It will thus be seen that no presumption can be indulged that the gift of the old Brasel farm by James Brasel to his wife was fraudulent in aid of appellant’s rights. The intent to defraud subsequent creditors is not made to appear merely because of outstanding liabilities against the grantor; these liabilities must be shown to have been in excess of all property retained by him. The chancellor found, from the testimony, that James Brasel was solvent at the time the gift was made to his wife, and we think this finding is supported by the testimony. At any rate, we are unwilling to hold that the chancellor’s finding to this effect was clearly against the preponderance of the testimony. In this view the chancellor’s findings should not be disturbed. Arnold v. McBride, 78 Ark. 275, 93 S. W. 989; Eureka Stone Co. v. First Christian Church, 86 Ark. 212, 110 S. W. 1042; Craig v. Craig, 90 Ark. 40, 117 S. W. 765; Waite v. Stanton, 104 Ark. 9, 147 S. W. 446; Nevada County Bank v. Sullivan, 122 Ark. 235, 183 S. W. 169.

Neither is any question of estoppel presented here. Appellant is not only a subsequent creditor, but is a secured one as well. As late as 1931, the security held by him was reasonably worth twice the amount of his debt. Under these circumstances, appellant was not injuriously misled by the outstanding title to this piece of property. Moreover, the title was never in the name of James Brasel; therefore it cannot be said that James Brasel did any affirmative act, in reference to this title, which has misled appellant. The contention that James Brasel told appellant at the time that he borrowed this money that he was the owner of the Hudson farm is flatly contradicted by James Brasel.

The contention that Lulu Brasel permitted her husband to improve the property, collect rents therefrom and to pay taxes thereon are likewise without merit. It was the natural thing for a wife to do to permit her husband to perform these duties.. Neither fraud nor estoppel can, or should be, based upon these acts.

It is true, of course, that, where a wife permits her husband to handle her property as his own, holding out to creditors this indicium of ownership, the wife thereby estops herself to assert ownership as against creditors who contract on the faith of this prima facie ownership, but such are not the facts of this case.

Neither is the contention that appellant’s money was used by James Brasel in extinguishing prior indebtedness, thereby subrogating appellant to all rights of existing creditors, established by the testimony. The chancellor found, and we concur, that appellant’s money was not in fact used for such purpose.

Since the chancellor’s findings of law and facts conform to the views here expressed, the decree must be affirmed.


author: Smith, J.

text:
    Boston Mountain Company v. Himmelberger-Harrison Lumber Company.
    4-3282
    Opinion delivered January 15, 1934.

      Pace & Davis, Walter L. Pope and D. T. Cotton, for appellant.

      Oliver & Oliver and J. Loyd Shouse, for appellee.
   Smith, J.

This suit was brought to foreclose a mortgage given to secure a note, the execution and nonpayment of which is admitted. The question here in issue arose out of the cross-complaint and the answer thereto. It appears that John H. Himmelberger, individually, and as trustee, owned large tracts of land in Newton County, and that the Himmelberger-Harrison Lumber Company, of which he was president, owned other lands. Ben E. McFerrin represented Himmelberger and his corporation in Newton County, and the extent of this agency, whether general or special, is one of the disputed questions of fact in the case. The testimony shows without dispute that McFerrin received a salary of $25 per month, and, in addition, was paid twenty-five cents per acre for land sales in which he took part. It was McFerrin’s duty to pay the taxes, and to report timber depredations. We find it unnecessary .to consider or decide what, if any, additional authority McFerrin had.

In August, 1929, McFerrin opened negotiations with Himmelberger for the purchase of certain tracts of land containing 4683.02 acres, and in January, 1930, McFerrin met Himmelberger’s son by appointment in Poplar Bluff, Missouri, to consummate their prior negotiations. Out of this conference developed the sale and purchase of the lands which is the subject of this litigation. A contract was entered into by McFerrin, W. R. Foley and N. Gr. Sawyer, as individuals, to buy the lands for a cash payment of $5,000, two deferred payments of $15,000 each, and a third deferred payment slightly in excess of $15,000. Notes were executed to cover these deferred payments, and two of them were paid, and it is the third and last of these notes which is here involved.

The deed was not made to these gentlemen, as the contract of sale provided, but was made to a corporation which they organized on February 4, 1930, known as the Boston Mountain Company, of which McFerrin became and is president, and notes for the deferred purchase money were executed in the name of the corporation by McFerrin as president.

The cross-complaint alleged that McFerrin was the general agent of the vendor, and in that capacity made representations as to the amount of timber on the lands, which representations induced the contract of sale and were later found to be erroneous, and that there was a very material shortage in the quantity of timber, and credit was asked upon the last note to mature for this shortage. The answer to this cross-complaint raised a number of questions, but we consider only one of them, as we find it decisive of this ease.

The testimony on the part of the vendor was to the effect that in this transaction McFerrin occupied the relation, not of an agent of the owner, but that of a prospective purchaser who later became purchaser. We think the testimony establishes this fact, and it is therefore unimportant to consider the representations which Mc-Ferrin made to Sawyer and Foley, his associates.

The decree from which this appeal comes rendered judgment against the Boston Mountain Company for the amount of the note, and against McFerrin individually, and decreed the foreclosure of the mortgage. McFerrin has not appealed from that decree.

It is true the owner made concessions in the price of the lands on account of McFerrin’s previous agency, but McFerrin dealt with the owner, not as agent, but at arm’s length as a prospective purchaser, and he knew as much or more about the quantity of timber than the owner did. McFerrin testified that he made representations to Foley and Sawyer as to the quantity of timber on the lands, and that his estimates were excessive, but he admitted that the owner of the lands made no representations to him in this respect.

We are confirmed in the view expressed by the minutes of the meeting of the stockholders of the Boston Mountain Company, held February 4, 1930, which recite that “The president (McFerrin) reported that he, together with N. G. Sawyer and W. R. Foley, had negotiated the purchase of 4,683.02 acres of timber land in fee from John H. Himmelberger, trustee, same situated in Newton County, Arkansas,” etc. The minutes recite the terms of the payments and the three notes to be executed, and that these were to be secured by a mortgage on the lands, “and further by personal indorsement of Ben E. McFerrin, N. G. Sawyer and W. R. Foley.”

It may be said that McFerrin did not profess to have accurate knowledge as to the quantity of timber on the lands; indeed, the lands had not then been surveyed. An inspector was employed and a cruise of the lands was begun, but before it was completed McFerrin was called away to fill another engagement, and the inspection was not completed, although more than half of the lands were inspected. It was later found, after the lands had been purchased and surveyed, that a large quantity of timber had been removed by the owners of adjacent lands who may have been mistaken as to their property lines.. At any rate, we have concluded that McFerrin acted for himself and Ms associates in the purchase of the lands, and they may not now charge their vendor with the responsibility for his excessive estimate.

We conclude that the chancellor was correct in holding that the cross-complaint was without equity, and that it was properly dismissed for that reason. The decree is therefore affirmed.


author: Humphreys, J.

text:
    Ozan Graysonia Lumber Company v. Ward.
    4-3274
    Opinion delivered January 15, 1934.

      McRae & Tompkins, for appellant.

      J. H. Lookadoo, for appellee.
   Humphreys, J.

This suit was brought by appellee against appellant in the circuit court of Clark County to recover damages for injuries received while assisting in taking up steel rails from a logging railroad, through the alleged negligent failure of appellant to warn the crew in which he was working that the train was going to move forward before giving the move-up signal to the engineer.

Appellant filed an answer, denying the negligence alleged, and pleading as additional defenses the assumption of the risk, contributory negligence and a settlement and release for all injuries received by appellee on account of the alleged negligence on appellants’ part.

The cause was submitted to the jury upon the pleadings, testimony and instructions of the court, resulting in a verdict and judgment for $15,000, from which is this appeal.

At the time appellee received his injury, he was a member of a crew of about twenty-five men engaged in taking up steel rails from a log road and loading them on flat cars. An engine and several flat cars were used to haul the rails when taken up and loaded. The train would move forward the length of a rail and stop while the employees would pull the spikes holding the rails on each side with claw-bars and disconnect and load the rails. The men would then throw the claw-bars and other tools used by them under the back part of the last flat car and then load the rails. After the rails were loaded, the train would move forward the length of another rail, in order that they might be taken up and loaded in the same way. The testimony is conflicting as to whether the custom was to notify the crew that the train was about to move before signaling the engineer to move same forward. The testimony was also in conflict as to whether appellee stooped over to pick up one of the claw-bars about the time the train moved forward or whether he was standing behind the flat car waiting for the customary notice when he was injured. The testimony was also in conflict as to whether one of the claw-bars was raised and shot backward with force, striking appellee on the left cheek, when said bar was run over by the flange of the car wheel, or whether one end was raised up, striking appellee on the cheek, while he was in the act of picking it up before the flat ear had time to clear it by moving forward. The end of the claw-bar in question struck appellee on the cheek and. caved in the molar or cheek bone, from which injury, according to the testimony introduced by appellee, he suffered great pain and the loss of all earning power. The testimony was also in conflict as to whether appellee settled with, and released appellant from, all damages sustained for the consideration of $200 on the representation of appellant’s regularly employed physician that his injury was not a permanent one, but one from which he would entirely recover.

"When the case was called for trial, appellant sought a continuance on account of the absence of two of its witnesses, Dr. Cole, who performed an operation on appellee in an effort to raise or elevate the depressed or caved-in cheek bone, and Harvey Eobinson, who was the engineer operating the engine at the time appellee was hurt. .The motion for continuance on account of their absence contained a statement of what each would swear if present. Appellee admitted that, if present, each absent witness would testify to the statements contained in the.application for a continuance. These statements were subsequently read to the jury and treated as evidence in the ease. Section 1270 of Crawford & Moses’ Digest provides that a trial shall not be postponed on account of the absence of a witness if the adverse party will admit that on the trial the absent witness, if present, would testify to the statement contained in the application for a continuance. The trial court followed the statute in overruling the motion, and, as appellant was not deprived of the benefit of the evidence of the absent witnesses, we are unable to say that the court abused its discretion in refusing to continue the case until the next regular term of court, which would convene in about two months thereafter.

Appellant also contends for a reversal of the judgment because appellee was behind the last flat car, which was moving away instead of toward him, and that therefore the failure to notify the crew that the train was about to start before signaling the engineer to start same could not have been the proximate cause of the injury. It is argued that he was in the clear, as much so as if the notice had been given him. Perhaps so, as far as being clear of the train, but perhaps not so as far as being, out of danger. He was not injured by the train itself, but by a claw-bar which was raised up and shot backward by the forward movement of the train. Appellee testified that, had he known the train was going to move, he would have been on his guard, and would have avoided the injury. Of course, if appellee knew that the train was going to move without the customary notice being given, then the notice would not, and could not, have benefited him, but this was a disputed question of fact for determination by the jury.

Appellant next contends for a reversal of the judgment because appellee’s own negligence was the direct and proximate cause of the injury. This would be true if the undisputed evidence reflected that he stooped over and attempted to pick up the claw-bar, prematurely or before the train moved forward, so as to clear the bar. On this issue there was a conflict in the testimony. There was testimony tending to show that he was struck by the bar being shot backward when he was standing up, and at a time when he was not attempting to pick it up.

Appellant next contends for a reversal of the judgment because, though it be conceded that appellee’s testimony was true concerning the way in which he was injured, yet it was an accident which appellant could not have reasonably anticipated. The testimony showed that the tools used in pulling the spikes so that the rails might he loaded onto the flat ears were, under appellant’s direction, thrown under the last car, without reference to whether the wheels might run over them when the train was moved; and also that, if run over by the wheels, they might be lifted and moved in any direction. In view of this testimony, appellant should have anticipated and provided against any resultant injury.

Appellant also contends for a reversal of the judgment because the trial court refused to give its requested instruction No. 4, which is as follows: “You are told that no duty devolved upon the defendant to notify the plaintiff or the steel gang before setting the train in motion under the circumstances, and you will disregard his allegation of negligence.”

This instruction was peremptory, and was requested on the theory that the customary notice could not have benefited appellee because he knew the train was about to move, or knew it was moving when he was hurt. Appellee testified that he did not think the train would start without notice, so it cannot be said that, under the undisputed testimony, he knew the train was about to start or had started when he was hurt.

Appellant also contends for a reversal of the judgment because the court gave instruction No. 1, requested by appellee, in substance, to the effect that, if they found Dr. O. O. Purtle, the local physician of appellant, who took charge of appellee and treated him for the injury, told him he would recover after a lapse of time and that, relying upon said representation, he settled with and released appellant, and afterwards it turned out that the representations were false, then appellee would not be bound by the release. This court is committed to the rule that a release executed by an injured person, relying on a mistaken statement of the physician of the party responsible for the injury that it was slight and temporary and not permanent, is not binding upon the party making it. Kiech Mfg. Co. v. James, 164 Ark. 137, 261 S. W. 286. The instruction seems to have been framed upon this rule, and is a correct declaration of the law applicable to the facts in this case, as will be seen from the following excerpt from appellee’s testimony: “Q. Mr. Ward, how come you to sign that release? A. On what Dr. Purtle told me. Q. And what did Dr. Purtle tell you? A. He told me my face would get well and never cause me any more trouble. Q. Would you have signed it if he had not told you that you were not injured very bad? A. No, sir.” It will be noted that the misrepresentation relied upon was one of fact, and not of opinion, so it was unnecessary to show that it was fraudulently made. Misrepresentation of existing facts, though innocently made, will avoid a release induced by it.

Appellant also contends for a reversal of the judgment because instruction No. 1 permitted an avoidance of the release if Dr. Purtle made representations of an existing fact which afterwards proved to be false; whereas instructions Nos. 10 and 11, requested by appellant and given by the court, required appellee to show that the false representations were fraudulently made by Dr. Purtle. It is argued that instructions Nos. 10 and 11 conflicted with instruction No. 1, but, even- so, it resulted in no prejudice to appellant. Appellant was not entitled to instructions 10 and 11, so the conflict was immaterial so far as it was concerned. It could not be prejudiced by a conflict between a correct instruction and instructions more favorable than it was entitled to. Clark v. Pickler, 168 Ark. 818, 271 S. W. 462.

Appellant also contends for a reversal of the judgment because the court gave instruction No. 3, requested by appellee. We find no merit in either the general or specific objections made to it. The instruction is a general statement of the law applicable to the facts and could ^not in any way have prejudiced the rights of appellant.

Appellant also contends for a reversal of the judgment because the release contains the following clause: “I hereby represent that I rely wholly upon my own judgment, belief and knowledge of the nature, extent and duration of said injuries, disabilities and damages, and that no representations or statements about them have induced me to make this settlement.”

Such a clause appeared in the release sought to be avoided in the case of Kiech Mfg. Co. v. James, supra, but this court ruled in that case that, when it appeared that the release was actually induced by representations of the extent of the injury by the party’s physician who caused said injury, which representations were not substantially correct, as shown by subsequent developments, then the injured one was not bound by the release.

Appellant also contends for a reversal of the judgment because Dr. Ross, who examined appellee for the purpose of informing counsel for appellee as to the extent of the injury and to testify in the case as an expert, was permitted to testify as to subjective symptoms. No objections were made or exceptions saved to any particular testimony of the doctor, and we are unable to say whether he based his opinion as to the condition of appellee on subjective or objective symptoms.

Lastly, appellant contends for a reversal of the judgment because the verdict was excessive. The testimony introduced by appellee tends to show that at the time of the injury he was an able-bodied man with an actual earning capacity of $1,000 a year; that his life expectancy was 28.91 years; that his ability to earn and work was destroyed by the injury; that his left sinus is entirely gone; that his left eye is turned a little and held wider open than it was, and that his eyesight is impaired; that his upper lip is partially paralyzed and interferes with his speech; that he suffers much pain and is never free therefrom due to a disturbance of the nerves. In view of the destruction of his earning capacity, his long life expectancy, his disfigurement and his pain and suffering, it cannot be .said that the judgment for $15,000 is excessive.

No error appearing, the judgment is affirmed.


text:
    Arkansas General Utilities Company v. Oglesby.
    4-3283
    Opinion delivered January 15, 1934.

      DuVal L. Purkins and Leffel Gentry, for appellant.

      R. W. Wilson and W. F. Norrell, for appellee.
   Humphreys, J.

The questions presented on this appeal are: first, whether instruction “B”, given at the request of appellee, ignored the defense of contributory negligence interposed by appellant to the alleged cause of action; second, whether instruction “ C, ” given at the request of appellee, made the test of care which he should have exercised when confronted by an emergency a matter within his own judgment or within the judgment of an ordinarily prudent man; and, third, whether the judgment recovered is excessive.

Appellee sued appellant for damages on account of personal injuries received from electric shocks while attempting to disconnect his radio from an overcharged insulated cord and the switch on the porch connecting the service line with the house, which cord and line had become overcharged through the alleged negligence of the employees of appellant. Appellant, at the time, was the owner and operator of a water and electrical system at Wilmar, where appellee resided. Appellee was one of its electric patrons.

The testimony introduced by appellee tended to show that, when the high and excessive current or voltage entered his home, he heard a muffled report like a gun, and discovered that the radio was in flames, and that his house might burn; whereupon he caught the line that connected the radio with the socket and snatched it loose from the connection; that the shock partially blinded him; that the blaze entering the house through the wire looked like .jagged lightning, and, in order to prevent the house from burning, he ran out on the porch and threw the switch, at which time he received another shock, resulting in painful and permanent injuries.

Appellant’s defense of contributory negligence was based upon the fact that appellee took hold of the cord to disconnect the current from the radio and hold of the switch to disconnect the service line from the house.

(1) Instruction “B,” requested by appellee and given by the court, which appellant contends ignored its defense of contributory negligence, is as follows: “You are instructed that corporations can act only through their agents, and it devolves upon the defendant company to have some one available to perform its duties to the public, and you are instructed that notice to an employee of defendant of the alleged defective condition of the wire was notice to the company, and, if you find from a preponderance of the evidence that after notice of the alleged defective condition of the wire the defendant, acting through its agents, carelessly failed, neglected and refused to correct the alleged sagging condition of the wire, if you find it was sagging as alleged in the complaint, and you find from the evidence that the action of the defendant in failing to remedy the sagging condition of the wire after notice of same was negligence, your verdict ought to be for the plaintiff; and, provided you further find that the plaintiff was injured as alleged in his complaint as the direct and proximate result of such negligence, and provided further you find that plaintiff was not negligent.”

Appellant argued that the effect of the instruction was to submit -to the jury the question of whether the proximate cause of the injury was due solely to the acts of appellant or solely to the acts of appellee, whereas, appellant was entitled to an instruction to the effect that, although it was negligent, yet, if appellee was also negligent or if the concurrent acts were the proximate cause of the injury, appellee could not recover. We do not construe the last proviso in instruction “B,” set out above, to mean that before appellant can be excused from its negligent acts it was necessary for the jury to find that the sole cause of the injury was a separate and distinct negligent act of appellee. Certainly the instruction does not say so, and, when read in connection with instruction No. 8, requested by appellant and given by the court, the real meaning of the last proviso is made plain. Instruction No. 8, as given, is as follows: “You are instructed that it was the duty of the plaintiff, at all times, and under all circumstances, to exercise that degree of care for his own safety as would be ordinarily exercised by a reasonable and prudent man under like circumstances and conditions.”

When instructions “B” and 8 are read together, they necessarily mean that, if the concurring negligence of appellant and appellee was the proximate cause of the injury, no recovery could be had against appellant. If appellant’s construction of instruction “B” is correct, then it was useless to ask instruction No. 9, which was given by the court, and which is as follows: “It is for the jury to determine whether or not the plaintiff was injured, and if you find that he was, and you further find that he was negligent and that his negligence was the sole and proximate cause of the injury, then he cannot recover, and your verdict will be for the defendant.”

(2) Instruction “0,” requested by appellee and given by the court, and which appellant contends announces an erroneous test of care when fronted with an emergency, is as follows: “If you find from the evidence in this case that the plaintiff was confronted with an emergency or sudden peril which at the time appeared to him to threaten destruction of his property,-and that he, acting in such emergency, jerked a cord that connected the radio with the electric socket in his house and pulled the switch on the porch, he is not thereby alone chargeable with contributory negligence if he, at the time, acted as a man of ordinary care and prudence would have acted under the circumstances, even though he did not act in the most judicious manner, since an act done in an emergency or extreme circumstance is not to be judged by the same rules which are chargeable'ordinarily to acts done in cool blood with time and opportunity for the party to consider the reasonableness and the merit of the act he is about to do.”

Appellant assails the instruction because same did not leave it to the jury to determine whether a reasonable, prudent person would have believed that there was a threatened destruction of appellee’s property, but left it to the jury to determine whether appellee himself thought that there was a threatened destruction of his property. This interpretation might be placed upon the instruction if the words “which at the time appeared to bim to threaten destruction of his property” stood alone and without modification, but the entire paragraph, including the words mentioned, was modified by the words “if he, at the time, acted as a man of ordinary care and prudence would have acted under the circumstances.” When read as a whole, the instruction necessarily means that the jury must have found that it appeared to appellee, as a reasonably prudent man, that the destruction of his property was threatened.

(3) According to the testimony introduced by appellee, at the time of his injury he was in good health, earning $120 per month, and he had ah expectancy of 15.39 years; as a result of the electrical shocks, he was totally and permanently disabled; as a result of the injury, he suffered great physical pain and mental anguish, and would continue to suffer such pain and anguish throughout life on account of being partially paralyzed and blind for all practical business purposes.

The jury seems to have believed this testimony relative to appellee’s condition rather than the testimony introduced by appellant to the contrary, and, in view of such finding by the jury, we cannot say that their award of $10,000 is excessive.

No error appearing, the judgment is affirmed.


author: Kirby, J.,

text:
    Spadra Coal Company v. White.
    4-3260
    Opinion delivered January 15, 1934.

      J. H. Brock and Patterson & Patterson, for appellant.

      J. J. Montgomery and Reynolds & Maze, for appellee.
   Kirby, J.,

(after stating the facts). Appellant contends that the court erred in giving said requested instruction No. 5, set out above, and the contention must be sustained. This instruction requires a higher degree of responsibility from employers than the law warrants, placing on the master in effect the absolute duty to furnish a safe place for his servant to work, while under the law he is only bound to the exercise of ordinary care to provide a reasonably safe place in which to work. It was so held by this court in the case of Fort Smith-Spadra Mining Company v. Shirley, 178 Ark. 1007, 13 S. W. (2d) 14, wherein an instruction almost identical with the one-here was condemned and held to be erroneous.

The error in giving appellee’s instruction No. 5 was not cured by the giving of a correct instruction on the point for appellant, said correct instruction necessarily being in conflict with, and contradictory of, said erroneous instruction of appellee’s. St. Louis-San Francisco Ry. Co. v. Horn, 168 Ark. 191, 269 S. W. 576; Bullman Furniture Co. v. Schmuck, 175 Ark. 422, 299 S. W. 738. “Separate and disconnected instructions, each complete, and irreconcilable with each other, cannot be read together so as to modify each other and present a harmonious whole” Temple Cotton Oil Co. v. Skinner, 176 Ark. 17, 2 S. W. (2d) 676.

Neither was appellant required to make a specific objection to the instruction, as it was inherently erroneous; a general objection being sufficient to reach the defect. First National Bank v. Peugh, 160 Ark. 517, 255 S. W. 4.

There are some other objections to the instructions which we do not notice, since they do not appear to have been preserved in the motion for a new trial.

For the error committed in the giving of appellee’s requested instruction No. 5, the judgment is reversed, and the cause remanded for a new trial.


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    Brooks v. Randolph State Bank.
    4-3284
    Opinion delivered January 15, 1934.

      Hal L. Norwood, Attorney General, Geo. H. Steimel and E. Newton Ellis, for appellant.

      H. L. Ponder, for appellee.
   Kirby, J.,

(after stating the facts).„The learned chancellor held that, under the ruling of this court in the case of Taylor v. Hale, 186 Ark. 873, 56 S. W. (2d) 428, this was an attempt to collect taxes on shares of stock as provided by § 9944, Crawford & Moses’ Digest; but, in the absence of a showing that the Commissioner in charge of the insolvent bank had assets in his hands belonging to the stockholders with which to pay delinquent taxes assessed against such shares of stock, there was no liability on the part of the Commissioner to pay the. delinquent taxes.

The chancellor obviously misconceived the purpose of this suit, as disclosed by his memorandum opinion holding it to be one to collect taxes assessed against the shares of capital stock of the insolvent bank, when the complaint and amendment thereto clearly shows that it is a suit to collect taxes assessed against the personal property of the insolvent bank subject to taxation in accordance with the statute. Section 9853-, Crawford & Moses’ Digest.

Under said statute, the property of the insolvent bank continued subject to taxation notwithstanding the bank’s insolvency. Said property was regularly and duly assessed by the deputy bank commissioner in charge of said bank, and the complaint shows there were funds on hand belonging to the said bank sufficient to pay the taxes. The complaint alleged further that demand was duly made by the collector for payment, and same was refused by the Deputy Bank Commissioner in charge of said insolvent bank; that the property against which the taxes were levied had been sold and disposed of, converted into money and was beyond distraint by the officer, and he was entitled therefore to bring the action in equity to follow and impound the proceeds arising from the disposition and sale of the property in the hands of the defendants or in possession of any one of them.

Having sold the property upon which the State’s lien for taxes existed, and having’ on hand an amount sufficient to pay the taxes, it was the duty of the Bank Commissioner to pay same, and the chancellor should have required him to do so, and erred in holding’ otherwise and sustaining’ the demurrer to the complaint. See 34 Cyc., page 347, title “Receivers.”

For the error designated, the decree will he reversed, and the cause remanded for further proceedings not inconsistent with this opinion. It is so ordered.


author: Mehaffy, J.

text:
    Mississippi River Fuel Corporation v. Young.
    4-3264
    Opinion delivered January 15, 1934.

      Harry L. Ponder, Owens & Ehrman and John M. Lofton, Jr., for appellant.

      W. F. Smith, for appellee.
   Mehaffy, J.

The appellant, Mississippi River Fuel Corporation, owns a pipe line through which it transmits natural gas from the Monroe field in Louisiana, through the State of Arkansas, to St. Louis, Missouri. The line was constructed in 1929.

The appellee, E. E. Young, was a fireman on the Missouri Pacific Railroad, and was going north near Judsonia, Arkansas. The pipes to be used in the construction of the lines were shipped from some point in Pennsylvania to the appellant, at Judsonia, and were being unloaded when one of the heavy pipes fell across the railroad track. Appellee, seeing the pipe, thought there would be a derailment, and, to avoid this danger, jumped from the cab of the engine and was injured.

This suit was brought against the appellant to recover damages for the injury, and appellee alleged that the pipe was being unloaded and thrown across' the railroad track by appellant’s servants; that it was the negligence of the appellant and its servants that caused his injury.

Appellant denied the allegations in the complaint, and further answered, alleging that it was not engaged in laying the pipe line at the time of the injury of appellee ; that it had nothing to do with the unloading or laying of said pipe; that the construction work was being done by an independent contractor ; that appellant did not exercise any control or supervision over the unloading of said pipe; that it had contracted with a contractor for the construction of the entire line, and that the contractor, in the performance of said contract, unloaded', hauled and laid said pipe; that the contractors had sublet the loading; and that appellant’s servants and agents had no connection with the unloading, and were therefore not liable.

There was a verdict and judgment against appellant for $1,500, and the case is here on appeal.

It is not contended that appellee was guilty of any contributory negligence, and it is not contended that the persons who unloaded and threw said pipe on the track were not guilty of negligence. The only question for our consideration is whether there is sufficient evidence to show that the appellant ivas responsible for unloading the pipe; in other words, whether the pipe was being unloaded by appellant or by an independent contractor. If the pipe was being unloaded by appellant, it is liable for the injury. If, however, the appellant has shown that the unloading was being done by an independent contractor, over which it had no control, it is not liable. This is the only question in the case.

It is admitted that the appellant owned the pipe and the pipe line; that the pipe was shipped from Pennsylvania to Judsonia, and delivered to appellant there; the receipts for the pipes, which were consigned to appellant and delivered to it were signed by J. G. Reece, by W. H. C.; that W. H. :C. Avas on the ground, and did the signing for the Mississippi River Fuel Corporation, the consignee.

It is contended, however, that the appellant entered into a written contract Avith Ford, Bacon & Davis, contractors, to do the construction work on the line; that the appellant received the pipe at Judsonia and turned it over to the contractors, who were to be responsible for the unloading, hauling and constructing the line, and that Ford, Bacon & Davis sublet to Williams Bros., and that Williams Bros, sublet the job of stringing the pipe along the right-of-way to the firm of Tibbetts & Tibbetts.

II. B. Lowther testified that Reece Avas employed by the Mississippi River Fuel Corporation, and the receipts for the pipes were signed “J. G. Reece, by W. II. C. ” It is, in fact, undisputed that Reece was in the employ of the appellant. Lowther, however, testified that there Avas no one in the employ of appellant Avith initials W. II. C. He also testified that the work was under a written contract, and that he had had possession of the contract, but did not have it Avith him. His testimony Avas then objected to because it was contended that the contract, if there was a written one, was the best evidence. In this we agree with the appellee.

The fact being admitted that the appellant was the owner of the pipe line, was having it constructed, that the pipe was shipped to and delivered to it to be used on the pipe line, raises the presumption that the persons engaged in unloading and stringing the pipe were working for the appellant. The appellant, owning the pipe line, shipping the pipe to itself, cannot escape liability without showing that it was having the line constructed in such a manner as to relieve itself of liability for the negligence of the persons doing the work. The burden was upon it to show that the work was being done by an independent contractor.

When the person employed is in the exercise of a distinct and independent employment and not under the immediate supervision and control of the employer, the relation of master and servant does not exist, and the liability of a master for the negligence of the servant does not exist. We recognize the rule that where one person contracts with another to do and perform certain work or labor, and the person for whom the work is done has no control or management thereof, the one who undertakes the work becomes an independent contractor.

When one relies on a written instrument and fails to produce the instrument when called for by the other party, or where objection is made to the testimony introduced as to the contents of the written instrument, and the one relying on such instrument fails to produce it, the presumption is that the production of the instrument would disprove the contentions of the party relying on such instrument.

In this case, the appellant, relying on a written contract to show that the work was being done by an independent contractor, had the burden of proving this, and its failure to produce the written contract raises the presumption that it would not support appellant’s contention.

“Where it is apparent that a party has the power to produce evidence of a more explicit, direct and satisfactory character than that which he does introduce and relies on, it may he presumed that, if the more satisfactory evidence had been given, it would have been detrimental to him, and would have laid open deficiencies in, and objections to, his case which the more obscure and uncertain evidence did not disclose. * * * Failure of a party to call an available witness possessing peculiar knowledge concerning facts essential to a party’s ease, direct or rebutting, or to examine such witness as to the facts covered by his special knowledge, especially if the witness would naturally be favorable to the party’s contention, relying instead upon the evidence of witnesses less familiar with the matter, gives rise to an inference that the testimony of such uninterrogated witness would not sustain the contention of the party.” 22 C. J. 115-116; Wigmore on Evidence, vol. 1 (2d ed.), 584 et seq.; Lynch v. Stephens, 179 Ark. 118, 14 S. W. (2d) 257.

Appellant here relies on a written contract, making the firm of Ford, Bacon & Davis an independent contractor, which, if true, would be shown by the written contract. Oral testimony as to the terms of the written contract was improper, and the failure of the appellant to introduce in evidence the written contract raises an inference that the contract would not support appellant’s contention. Appellant relies solely on the written contract.

The statute provides that, if either party should rely on any deed or other writing, he shall file with his pleading the original deed or writing, if in his power, or a copy thereof. Section 1223, 'Crawford & Moses’ Digest.

“Mere withholding or failure to produce evidence, which, under the circumstances would be expected to be produced, and which is available, gives rise to a presumption less violent than that which attends the fabrication of testimony or the suppression of documents in which other parties have a legal interest; but the courts recognize and act upon the natural inference that the evidence is held back under such circumstances because it would be unfavorable.” Jones on Evidence, vol. 1, 152; see also notes on page 582 of 34 L. R. A.; Ramey v. Fletcher, 176 Ark. 196, 2 S. W. (2d) 84.

The evidence proving that the negligent party was the servant of the appellant is not very strong, but, when any party constructing a pipe .line or work admits that it owns the pipe- line and that it is having it constructed, the presumption is that the persons performing labor in the construction of the work are the servants of the person owning the property, and having the work performed. At any rate, we are unwilling to say as matter of law that the secondary testimony is sufficient to destroy the presumption -created by appellant’s ownership and possession at the time of the injury. It is quite possible that the only way that proof could be made of the relation of master and servant would be to show that the master was having the work done, and that the servant was doing the work which the master was having done, and this evidence would be sufficient to show the relation, unless the master introduced evidence showing that the work was being done by an independent contractor. The jury could have found under the evidence in this case that the work was being done by an independent contractor. It did not so find, however, but found against this contention of the appellant, and this finding is conclusive here. We find no error, and the judgment is affirmed.