text:
    Morrison v. Weinstein.
    Opinion delivered December 24, 1921.
    1. Landlord and tenant — failure to deliver possession to lessee —damages.—A lessor who was unavoidably prevented from delivering possession of the leased property is liable for damages resulting from the breach of an implied covenant for possession, and it is immaterial that the lessee knew at the time the lease was executed that certain tenants in possession would attempt to hold over.
    2. Landlord and tenant — failure to deliver possession- — measure of damages. — The measure of damages in an action by a lessee against a lessor for failure to deliver possession of leased premises is the difference between the rent reserved and the value of the premises for the term.
    3. Damages — breach of contract — special damages. — In order to recover special damages for breach of contract, plaintiff must show that at the date of the contract defendant had notice of the special conditions rendering such damages the natural and probable result of such breach, under circumstances showing that the contract was to some extent based upon or made with reference to such eondititons.
    4. Landlord and tenant — breach of covenant — special damages. —Where, at the time a lease was executed, the lessee knew that another tenant was in possession of the premises, claiming the right to hold over, it could not have been in contemplation that special damages would be claimed for breach of the implied covenant to deliver possession.
    5. Appeal and error — waiver of objection. — Where, under the undisputed facts in the case, the appellee was not entitled to recover special damages, so much of the verdict as awards such damages will, be set aside, even though appellant was estopped to object to instructions covering the issue of special damages, as appellant did not thereby waive the right to contend that she was not liable for special damages.

      6. Appeal and error — harmless error. — Error in instructing on special damages will not be considered when the party complaining was not entitled to special damages.
    Appeal from Sebastian Circuit Court, Ft. Smith. District; George W. Dodd, special Judge;
    reversed in part.

      Cravens, Oglesby é Cravens and R. P. Williams, for appellant.
    1. There was no breach of the implied covenant to put the plaintiff in possession, resulting from the holding-over by the former tenants of the leased premises. Their holding over was wrongful and unlawful, and of the fact that they would hold over plaintiff was fully advised. The defendant could not have put the plaintiff in possession on the first day of January, 1920, and the plaintiff know it. 35 Ore. 166; 58 Pac. 37; 1 Taylor, Landlord & Tenant, § 305; 3 Sutherland on Damages, § 863; 1 Tiffany on Landlord & Tenant, 1301, § 186; Id. 535, § 79; Id. 546, § 83 ; 38 Am. Dec. 637, 638; Jones, Landlord & Tenant, § 361; 37 Okla. 553; 133 Pac. 74; 49 L. E. A. (N. S.) 372; 159 Wis. 47, 51; 1 McAdams, Landlord & Tenant, 430, § 125.
    2. If the wrongful act of the former tenants in holding over was the sole cause of the failure of the plaintiff to obtain possession, then the defendant was not liable in damages for the breach of the covenant to put him in possession, but only for the amount paid for lease rent, which he was compelled to pay in order to hold his rights under the lease. 3 Sutherland on Damages, § 863; 177 App. Div. Sup. Ct. (N. Y.) 88; 13 Pa. Sup. 395; 2 McAdams, Landlord & Tenant, 382; 97 Pa. St. 120; 18 Supr. Ct. (N. Y.) 907; 64 Hun. 209; 17 N. Y. Sup. 741; 139 N. Y. 432; 34 N. E. 1055; 159 Wis. 47, 51; 75 Conn. 486; 54 Atl. 213.
    3. The damages recoverable, if any, are such as would naturally arise from the breach of the contract to give possession, i. e., the difference between the rent reserved and the value of the premises for the term. 42 Ark. 257; 102 Id. 113; 125 Id. 174; 75 Id. 589; 76 Id. 468; 96 Id. 78.

      . In this case special damages were not in contemplation of the parties, and the only proper elements of damages allowable consisted in the value of the premises, any rent that may have been paid and any reasonable expenses to which the lessee had gone in order to be able to occupy the premises at the beginning of the term. The bonus paid for the lease at 715 Garrison Avenue and money expended for fixtures and repairing that building are special damages and not recoverable. 104 Ark. 215; 75 Id. 469; 72 Id. 275; 60 N. Y. Rep. 487, 492; 190 S. W. 1149; 89 Tex. 429; 35 S. W. 6, 7; 1 Sedgwick, Measure of Damages, § 156; Id. § 52; 137 S. W. (Ky.) 800; 120 S. W. (Tex.) 560, 563; 48 Mich. 106-109; 190 U. S. 540; 47 L. Ed. 1171; 69 Atl. 394; 54 Atl. 213, 217.
    4. The damages assessed are excessive. Plaintiff could in no event be entitled to receive more than one satisfaction for breach of the contract. 63 Wis. 322; 32 F. W. 35, 41; 89 Mich. 34; 50 F. W. 747; 2 Underhill, Landlord & Tenant, 694; 1 S. W. (Ark.) 869; 70 111. 426; 172 F. Y. Sup. 206, 209.

      Hill & Fitzhugh, for appellee.
    1. The decided weight of authority is to the effect that it is the duty of the lessor to put the lessee into possession, that the lessor agrees to give possession. Jones, Landlord & Tenant, § 361; 1 Tiffany, Landlord & Tenant, § 81; 1 Taylor, Landlord & Tenant, § 324; 9 L. R. A. (F. S.) 1127, note; 21 L. R. A. (F. S.) 239. It is settled in this State that the landlord must respond in damages for failure to deliver demised premises, even though unavoidably prevented from so doing. 42 Ark. 257; 102 Id. 108.
    2. If, as appellant contends, the plaintiff knew that he would not get possession of the property on January 1st, that fact did not relieve appellant. A lessor must comply with his contract, or suffer the consequences. Hence there san be no question as to the item of rent paid by the plaintiff, which the defendant concedes, nor as to the item of recovery for the difference between the rent reserved in the lease and the fair rental value of the property.
    3. As to the expenses incurred by plaintiff in procuring a temporary lease at 715 Garrison Avenue and in repairing and fitting up the building for occupancy, these expenses were the natural consequences of the breach of the contract and necessarily flowed therefrom. 42 Ark. 257; 1 Tiffany, Landlord & Tenant, 548.
    4. Appellant having herself asked that the issue as to repairs made on the building at 715 Garrison Avenue and the bonus paid for the temporary lease thereof be submitted to the jury, ought not now to be heard to say that she is not liable for such items of damages. 82 Ark. 105;-93 Id. 472; |87 Id. 386; 74 Id. 72; 80 Id. 376.
    Objections to instructions will not be considered . where the abstract fails to set out all of the instructions given. 75 Ark. 347; 90 Id. 398.
   Humphreys, J.

Appellee instituted suit against appellant in the Sebastian Circuit Court, Fort Smith District, to recover $1,960 . together with interest on account of rents paid by him to appellant on a lease contract for a business house owned by appellant, situated at 712. Garrison Avenue, in the city of Fort Smith, Arkansas, of which he failed to obtain possession, and general and special damages resulting from an alleged breach of an implied covenant for possession thereof. . The general damages claimed were for the difference between the rent reserved in the lease and the rental market value of the property, and the special damages were for expenses incurred in procuring a building for temporary occupancy and repairs thereon, at No. 615 Garrison avenue. Appellant filed an answer admitting the indebtedness on account of rents received from appellee, but denying liability for general or special damages. The cause was submitted upon the pleadings and evidence, which resulted in a judgment against appellant in the sum of $7,711.95, consisting of the following items: $2,072.80 on account of rent paid; $2,400 on account of the difference between the rent reserved in the lease and the market value of the lease; $2,837.74 on account of expenditures made by . appellee in installing temporary fixtures at No. 615 Garrison Avenue; and $401.41 on account of the bonus paid by appellee to procure a lease on the building at 615 Garrison Avenue. From the judgment an appeal has been duly prosecuted to this court.

The facts revealed by the record, in so far as necessary to determine the questions presented on appeal, are as follows:

Appellant executed a written lease for her building at 712 Garrison Avenue to 'appellee for the term of four years, beginning the first day of January, 1920, for $280 per month. The lease did not contain an express covenant for possession of the property. The property at 712 Garrison Avenue was occupied by the Apple Hat Company and the Southern Millinery Company. These tenants asserted the right to occupy the building for the year 1920, and advised both appellant and appellee before they entered into the lease contract, of date December 5, 1919, that they were going to keep the building and would not remove therefrom on the first day of January, 1920, or at any time during the year. On the first day of January, 1920, they refused to move out of appellant’s building, and appellant and appellee joined in a suit to evict them. They gave bond, however, and retained possession of the building. The court ruled that appellee was not a proper party to the suit and dismissed the action as to him. The ease was continued from one term of the court for lack of proper service, and at the October term thereafter appellant, without the consent of appellee, dismissed her suit against the Apple Hat Company and the Southern Millinery Company for possession of the property and leased the property to the Apple Hat Company, who indemnified her to the extent of $3,500 against loss in any suit that appellee might bring against her. On October 16th appellant notified appellee that she intended to allow the old tenants to continue to occupy her building and inclosed in the letter of notification a check covering the amount of rent she had collected from appellee to that date with interest thereon, which she tendered in full satisfaction of any claim appellee might make against her. Appellee refused to accept the check. During the pendency of the suit appellant demanded and collected from appellee the rental of $280 per month. In May, 1920, appellee was compelled to give up the old stand occupied by him. He notified appellant that it would be necessary to obtain temporary quarters until he could get possession of her building. After an interview with her attorney, who advised him to lease the building at No. 615 Harrison Avenue, he did so. He was compelled to pay a bonus of $401 to get the lease on that building and to expend a large amount in repairing it for use. Appellee notified appellant of the amount of and necessity for making these expenditures.

Appellant’s first insistence for reversal is that she is not liable for damages because she made every effort to put appellee in possession .of the property, and that he was prevented from taking possession by her old tenants who wrongfully retained possession of the property after their lease expired. This court ruled, in the case of Rose v. Wynn, 42 Ark. 257, which ruling was confirmed in the later case of Thomas v. Croom, 102 Ark. 108, that a lessor who was unavoidably prevented from delivering possession of leased property was liable for damages resulting from the breach of the covenant, express or implied, for possession. Appellant attempts to differentiate these cases from the instant case because in those cases the lessees had no knowledge at the time the leases were executed that the old tenants would attempt to hold over, whereas in the instant case appellee had such knowledge. We think this can make no difference. A lessor’s liability grows out of the fact that he entered into a binding covenant or contract to give possession in any event in so far as human affairs are concerned. We think, therefore, there can be no question that appellee was entitled to recover the difference between the rent reserved and the value of the premises for the entire four years’ term.

This court is committed to the rule that the measure of damages in an action by a lessee against a lessor for failure to deliver possession of leased premises is the difference between the rent reserved and the value of the promises for the term. Rose v. Wynn, supra. While ordinary or general damages follow as a matter of course for a breach of the covenant or contract for possession of leased premises, special damages do not. Special damages are allowable only in case they were in contemplation of the parties at the time of the execution of the lease in the event a breach of the covenant for possession should occur. The rule concerning special damages in the case of M. K. & T. Railroad, Co. v. Belcher, 89 Texas 429, seems to be 'fair and just. It is as follows: “The rule seems to be settled that plaintiff, in order to recover special damages for breach of a contract, must show that at the date of the contract defendant had notice of the special conditions rendering such damages the natural and probable result of such breach, under circumstances showing that the contract was to some extent based upon or made with reference to such condition. ’ ’

The claim of appellee in the instant case for special damages could not have been within the contemplation of the parties or in reliance upon the contract at the time it was executed, for it was then known that the old tenant claimed the right to hold the premises and would exercise that right, and that appellee would or might have to move out of his old stand and secure temporary quarters before the old tenants were evicted. With this knowledge or information in possession of each party to the contract, it could not have been within contemplation that special damages would be claimed, for under those circumstances appellee had no right to rely on getting possession of the premises at the beginning of the lease. The facts in this case, under the rule announced, did not warrant a verdict for special damages. The judgment is affirmed for rents and damages for the difference between the rent reserved and the market value of the lease, but is reversed and dismissed in so far as special damages were adjudged.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    McDonnell Motor Hauling Company v. Morgan Construction Company.
    Opinion delivered December 24, 1921.
    1. Sales — breach op warranty — rescission.—Where plaintiff sold certain machinery to defendant, reserving title until the purchase money should be paid, there was an implied warranty of absolute title in plaintiff; and where plaintiff at the time had only a conditional title depending on the purchase money due to plaintiff’s original vendor being paid, there was a breach of warranty, upon discovering which defendant had a right to treat the contract as at an end and to recover damages resulting from such breach.
    2. Sales — when contract executed. — Where plaintiff sold machinery to defendant, reserving title until the purchase money should he paid, and delivered possession of the machinery, the transaction constituted an executed contract of sale, and not an executory contract for its sale at a future date.
    Appeal from Pulaski Circuit Court, Second Division ; Guy Fulk, Judge;
    reversed.

      John D. Shackleford, for appellant.
    In the sale of chattels warranty of title is implied. 79 Ark. 435; 24 Id. 223; 19 Id. 447; 24 Id. 222. If title fails, buyer may rescind the contract and demand return of money paid. 35 Ark. 483; 78 Id. 444; 22 Id. 522; 68 Id. 299.
    The machine was never of any benefit to appellant, but, on account of the fraud perpetrated upon him by appellee, he was out a large sum of money. If appellee is permitted to keep this money, it amounts to allowing it to profit by its own fraud. 22 Ark. 521; 35 Id. 48524 Id. 222; 42 Id. 97; 48 Id. 138; 49 Id. 320; 53 Id. 222.

      G. E. Garner, for appellee.
    The vendor here was in position to perform, and did perform by actual delivery of chattel. Such being the case, and the purchaser refusing to complete the transaction, the latter cannot recover purchase money paid. 27 E. C. L. § 378, and cases cited. If appellant desired to rescind, he should have notified appellee, and placed it in statu quo. 27 E. C. L. § 379.
   Humphreys, J.

Appellant instituted suit against appellees in the Pulaski Circuit Court to recover $1,000 paid upon the purchase price and $397.31 paid for freight and unloading upon a steam shovel purchased by appellant from appellees for failure of title. Appellees filed an answer denying the sale and breach thereof by failure of title, but alleged that the contract entered into between appellant and appellees was to sell the shovel in question for $13,000 in partial payments when the entire purchase money had been paid; that appellant had breached the contract by failure to pay the purchase price, to appellees’ damage in the sum of $2000, occasioned by the loss of the use of the steam shovel and the expense in caring for it. The case was submitted to the court sitting as a jury upon the pleadings and evidence, which resulted in a finding of fact, declaration of law, and judgment against appellant in favor of appellees, from which an appeal has been duly prosecuted to this court.

The memorandum of the transaction signed by the parties assumed the form of a proposition and acceptance, which is as follows:

“ June 28, 1920.

“McDonnell Motor Hauling Company, St. Louis, Mo.

“Gentlemen: Confirming conversation of even date, we agree to sell you Osgood Machine No. 853, steam shovel and drag line equipment, including Page Bucket, for the sum of thirteen thousand dollars, $1,000 cash, balance in ten payments of $1,200 each, due monthly beginning August 1, 1920. If you desire to make other payments before due we agree to accept same. In case you should fail to go through with entire agreement, the payments having been made to be applied as rent.

(Signed) “Morgan Construction Company,

“By P. J. Dove.”

“Morgan Construction Company, Little Bock, Ark.

“Gentlemen: We hereby accept the above proposition and hand you our check for one thousand dollars.

(Signed) “McDonnell Motor Hauling Company,

“By M. P. McDonnell.”

Appellant testified that appellees represented that they had a good title to the shovel; that appellees agreed to prepare ten notes for $1200 each, maturing monthly beginning August 1, 1920; that he called several times to execute the notes, but they were never prepared by appellee; that the shovel was shipped to him at Carthage, Arkansas; that he paid $140.81 for freight thereon and $246.50 for unloading and watching same; that the shovel was out of repair, and while in St. Louis in search of repairs he ascertained from the Central Supply Company, who were agents for the company that manufactured the shovel, that the manufacturing company had sold the shovel to appellees upon a cash and credit payments and had retained the title in the shovel until the full purchase price thereof was paid, and that appellees had only paid one-fourth of the purchase price at the time they sold the shovel to appellant; that he obtained this information on July 24, 1920; that he never used the shovel at all and had nothing to do with it after July 28; that the Central Supply Company of St. Louis said it was going to take up the shovel on August 2; that a number of letters were received by him between July 14 and July 28, 1920, containing acceptances for him to sign covering the August and September payments, to which lie paid no heed, and a telegram of date August 2, 1920, in words as follows: “Your remittance one thousand not here; advise quick by wire if you have remitted, otherwise will .declare agreement canceled and take up engine. (Signed); Morgan Construction Company,” to which he did not respond.

The other testimony in the case was to the effect that the Osgood Manufacturing Company sold the shovel to appellees for $12,500, part cash and part on time, and retained title until all the purchase money was paid; that it paid one-fourth of the purchase money in cash, and, after paying three deferred payments, defaulted, and that suit was instituted against appellees in replevin by the Osgood Manufacturing Company for the property; that, after a judgment was obtained for the possession of the shovel in the circuit court, the Osgood Manufacturing Company resold the shovel to appellees.

Appellant contends that the contract between the parties was one of sale and purchase breached by appellees ab initio on account of express or implied warranty of title. Appellees’ contention is that the oral evidence was inadmissible as contradicting the written contract, in the form of a written proposition and acceptance, which was merely a contract to sell the steam shovel and furnish a good title when all the purchase money should be paid by appellant. We deem it unnecessary to pass upon the competency or relevancy of the evidence, because our construction of the written contract is that it constituted a conditional sale of the steam shovel by appellees to appellant. The proposal was to sell and the acceptance to buy the steam shovel of that date for a total consideration of $13,000, $1000 cash and the balance in monthly payments of $1200 each. The title, of course, passed, but conditionally, the condition being that, unless all the payments were made, appellees might retake the machine and treat the payments made as rent for its use during the interim. The contract being a conditional sale of the shovel, warranty of title was implied, and appellant, the vendee, had a right to treat the contract at an end by refusing' to make further payments and to recover damages resulting from appellee’s breach. Strayhorn v. Giles, 22 Ark. 517; Merritt v. Robinson, 35 Ark. 483.

Appellant’s refusal to pay the acceptances, therefore, did not constitute a breach of the contract on his part. Appellees were the first to breach it by failure to furnish a good title. Appellees had no title to sell at the time they sold and delivered the shovel to appellant, the same having been retained in the Osgood Manufacturing Company. The court erred in treating the contract as executory for the sale of the shovel at a future date. It was an executed contract. It was complete and passed a defeasible title to the shovel on delivery thereof under the contract.

For the error indicated, the judgment is reversed and the cause remanded for new trial.


author: McCulloch, C. J.

text:
    McClain v. State.
    Opinion delivered January 16, 1922.
    1. Drunkenness — on public highway — evidence.—In a prosecution for being drunk on a public highway in a certain county, it was admissible to prove that defendant, while intoxicated, was seen driving an automobile on the highway near the county line, and that he was apparently going toward the county seat, where he resided, and where he occupied an official position.
    2. Drunkenness — instruction as to venue. — An instruction in a prosecution for being drunk on a public highway that it was necessary to prove the commission of the offense “at the time and place mentioned in the indictment” was not objectionable for failure to state that it devolved on the State to prove that the offense was committed in the county of the venue.
    Appeal from Lincoln Circuit Court; W. B. Sorrels, Judge;
    affirmed.

      A. J. JoTwison and Rowell & Alexander, for appellant.

      The court erred in refusing to exclude the testimony of Mr. Vick and Mr. Reed relative to matters that happened in Jefferson County. The instruction approved in the case of Simmons v. State, 149 Ark. 348, although the same as the instruction in this case, is not controlling here, because in that case there was no testimony of anything which happened outside of the county in which the defendant was indicted. The court erred in its instruction in not limiting the offense to Lincoln county. Murry v. State, 150 Ark. 461.

      J. S. TJtley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    The testimony of Mr. Vick was admissible for the purpose of showing the habits of defendant in getting drunk. 136 Ark. 372. The testimony of both Mr. Vick and Mr. Reed was properly submitted to the jury. 133 Ark. 599. The instruction complained of was proper. 149 Ark. 348.
   McCulloch, C. J.

Appellant was indicted and tried in the circuit court of Lincoln County for the statutory offense of drunkenness “at any public gathering of any kind, or upon any public highway, street, park or thoroughfare, or on any train in this State.” Crawford & Moses’ Digest, § 2626.

There was evidence tending to establish the charge, but it is contended that the court erred in the admission of certain testimony.

.Two of the witnesses, Vick and Reed, testified that they met appellant one night between 7 and 8 o’clock in an automobile which had halted on the roadside; that they had a conversation with appellant, and he appeared to be intoxicated. The witnesses stated that this occurred near the boundary line between Lincoln and Jefferson counties and was on the Jefferson County side of the line, but that appellant’s car was headed in the direction of Star City in Lincoln County. Appellant moved to exclude this testimony on the ground that it did not tend to show the commission of the alleged offense in Lincoln County.

The venue may be proved in a criminal case by circumstances as well as by direct testimony on the subject. Spivey v. State, 133 Ark. 314. The testimony of these witnesses shows that appellant was on a public highway near the county line — so close to the line that they were not entirely certain which side he was on, but thought that he was on the Jefferson County side — and that his car was headed in the direction of Star City in Lincoln County. It was night, and it was reasonable to infer that appellant would immediately cross the line into Lincoln County, where he resided and where he occupied an official position, and that he was intoxicated when he traveled along the road in that county. In overruling appellant’s motion to exclude this testimony, the court said, in the presence of the jury, that “of course the State must prove beyond a reasonable doubt that he (appellant) was drunk in Lincoln County.”

The court gave an instruction in which it was stated that it devolved on the State to prove that the offense was committed “at the time and place mentioned in the indictment,” and appellant’s counsel objected to this instruction on the ground that the instruction failed to state that it was necessary for the State to prove that the offense was committed in Lincoln County, as alleged in the indictment. It was charged in the indictment that the offense was committed in Lincoln County, and that the court told the jury that it was necessary for the State to prove the commission of the offense “at the time and place mentioned in the indictment.” The court also stated in the presence of the jury at the time appellant’s objection was overruled that the State must prove that appellant was drunk in Lincoln County. It is not conceivable that the jury could have been misled by the failure of the court to state specifically in its final instruction to the jury that the State must prove that the offense was committed in that county.

These are the only assignments of error argued in the brief, and, since we conclude that these assignments are not well founded, it follows that the judgment must be affirmed, and it is so ordered.


text:
    Rose City Bottling Works v. Godchaux Sugars, Inc.
    Opinion delivered January 16, 1922.
    1. Liens — jurisdiction of chancery. — A deposit of goods sold with a third person, for the benefit of the seller, to secure the price, and for the benefit of the purchaser, constituted an equitable lien in favor of the seller, and the remedy fell within the jurisdiction of the chancery court.
    2. Equity — retaining jurisdiction for complete relief. — Where equity once acquired jurisdiction, it was proper for that court to retain jurisdiction for the purpose of granting complete relief.
    3. Frauds, statute of — memorandum of sale. — Where a broker, as agent of both parties to a contract of sale, transmitted to a seller on order for the purchase of goods, such memorandum of the sale was sufficient to satisfy the statute of frauds.
    4. Commerce — sale of goods. — Where a seller shipped goods consigned to its order at the buyer’s place of business in another State, thereby reserving title as security for the purchase price, the transaction constituted interstate commerce.
    5. Commerce — sale of goods.- — Where a seller shipped goods consigned to its order at the buyer’s place of business in another State, the transaction, being an interstate one, did not change its character where a subsequent arrangement was made whereby the goods were deposited with a third party until paid for, and the legality of the transaction was not affected by the fact that the seller, a foreign corporation, had not complied with the laws of the State.
    6 Commerce — sale of goods — foreign corporation. — Where a foreign corporation sold goods to a resident of this State, and consigned the goods to its order at the buyer’s place of business, and the seller’s local agent negotiated an arrangement whereby the agent should hold the goods until paid for, neither the adjustment of the debt nor the bringing of a suit to collect the purchase price constituted doing business within the State, within the prohibition of the statute.
    7- Principal and security — fraud—promissory representations._ Where sugar sold was, in the buyer’s inability to pay therefor, deposited with, the seller’s agent and secured by a bond, sureties on the bond could not escape liability upon the ground that they had been induced to sign by the agent’s statement that he had arranged sale of most of the sugar at prices only slightly below the contract price, and that the loss would be very slight, as such representations wére merely promissory, in view of the fact that the agent would have no authority to sell before the contract was executed.
    Appeal from Pulaski Chancery Court; John E. Martinecm, Chancellor;
    affirmed.

      Frauenthal & Johnson and Will Q. Akers, for appellant.
    1. The demurrer and motion to transfer should have been sustained. The cause .of action was solely an action by a vendor for damages for breach of a contract of sale of personalty, — purely a legal action. 44 N. Y. 72; 140 N. Y. 70; 155 N. Y. 481; 63 Am. St. Rep. 692; 79 Ark. 63; 92 Id. 111. It was a prerequisite to the existence of a seller’s lien, that the title of the property should have passed to the buyer. 93 Me. 549; 45 Ati. 829; 37 Mo. App. 352; 8 L. R. A. 147. Here the title did not pass to appellant. Consignment of the goods to the seller’s order with directions to notify the buyer, and sending draft with bill of lading attached, requiring payment of draft before delivering the bill of lading, held the title in the seller until payment of the draft. 24 R. C. L., 44, 45, § 307; 104 Ky. 559; 47 S. W. 602; 118 Ark. 17; 77 Id. 482; 92 Id. 287.
    A receiver cannot be appointed upon the petition of the owner of the property. 23 R. C. L. 15.
    2. The contract was not enforceable. The entire transaction transaction was intrastate, conducted by a foreign corporation which had not conformed to the laws of this State. C. & M. Digest, §§ 1826, 1827, 1832; 136 Ark. 52, 55; 168 N. Y. Supp. 689; 162 Wis. 279; 156 N. W. 158.
    3. The agreement and bond ought not to 'be enforced because of the fraudulent representations by which appellants were induced to become parties thereto. 75 Ark. 92; 110 Ark. 123; 12 R. C. L. 408, § 154. Appellee was liable for its representative’s misstatements. 21 R. C. L. 851, § 30; Id. 904, 905, § 81 and 82. Reckless statements are a defense. 12 R. C. L. 337 § 94. Equity will grant relief even though no actual fraudulent intent be shown. 12 R. C. L. 345, § 100.

      Coókrill cB Armistead and John W. Newman, for appellee.
    Equity had jurisdiction. Goods pledged for unpaid purchase money by a vendee to the vendor confers a lien thereon in favor of the vendor in the nature of an equitable mortgage. 99 Ark. 329; 98 Id. 379;-49 Id. 279; 52 Id. 385. Moreover the defendants themselves set up fraud and prayed for equitable relief.
    Principal and guarantors may all be sued in one action. 126 Ark. 307; 141 Id. 64; C. & M. Dig., §§ 1099, 1100.
    The transactions were interstate througiiout. The memoranda of Leig’h acting as a merchandise broker were sufficient to satisfy the statute of frauds. 20 Cyc. 256; 25 R. C. L. 683; 182 S. W. 1037, 1038; 74 Ark. 395. The settlement agreement and bond and the transactions affecting it were but a means of securing the payment of a debt. These transactions did not constitute doing business in the State within the meaning of the statute. 90 Ark. 76; 63 Id. 268; 185 Fed. 899; 204 Id. 839; 208 Id. 409.
    A sale by a foreign corporation through a broker with consignment from another State to shipper’s order in this State, does not constitute doing business in this State within the meaning of the statute. 182 S. W. 1036; 191 U. S. 441, 48 L. Ed.*440; 229 S. W. (Ark.) 25; art. 1 §.8, Const. U. S.; 241 U. S. 48, 60 L. Ed. 880; 85 Ark. 278; 136 Ark. 417; 228 S. W. (Ark). 730; L. R. A. 1916-F, 334, note and annotations.
    As to fraudulent representations: There is no intimation in the agreement or bond in regard to resales. All antecedent negotiations, oral or written, will be deemed to have been merged in the written contract. 83 Ark. 163. Moreover there is no showing that there were false representations, or that they were material, or that they worked an injury, or that they were in any such position as that they may be presumed to have .contracted upon the faith reposed in such representations and relied thereon. 101 Ark. 608; 33' Id. 468; 119 Id. 617.
   McCulloch, C. J.

Appellee was, at the time when the transactions now under review took place, a foreign corporation with its principal place of business in the State of Louisiana, engaged in the refining of sugar and selling it at wholesale. On or about April 28, 1920, it accepted, through Henry Leigh, a merchandise broker in Little Rock, an order from appellant Rose City Bottling Works for 100,000 pounds of sugar at the price of 25 cents per pound, to be delivered in July, 1920. The order for the sugar was taken from said appellant by Leigh in conformity with ordinary trade custom pursued by merchandise brokers and was submitted to appellee at its place of business in the city of New Orleans and accepted. Immediately thereafter appellee shipped the sugar in two carload lots of 500 sacks each to its own order, and attached the bills of lading to a draft drawn on said appellant for collection through ordinary bankings channels. Leigh was not the agent of either of the parties to the purchase further than such agency for both parties as arises from the fact that as a merchandise broker he accepted the order from the purchaser and forwarded it to the seller for acceptance. When the consignment of sugar reached Little' Rock, the Bottling Works was unable to pay the draft, and negotiations at once arose between the parties looking to some adjustment whereby the delivery could be made.. Leigh was then authorized by appellee to act as its agent in the adjustment, and an arrangement was made as per written contract, which, after reciting the. foregoing facts, contained the following stipulation:

“The bottling company agrees to pay the freight and all demurrage charges on said cars at once. Said sugar shall be unloaded and placed in storage with Leigh at the expense of the bottling company, storage charges to be five cents per sack per month or fraction thereof, from date of unloading until sugar is removed from Leigh warehouse. The bottling company will pay for said sugar twenty-five (25) cents per pound in addition to freight, demurrage and storage charges above stipulated for, and the discount of two per cent, provided in the original contract is eliminated. And in addition thereto shall be paid Godchaux interest at the rate of six per cent, per annum until the said sugar is paid for. The bottling company shall have sixty days from the date hereof within which to make payment, and within such time may make partial salts of said sugar, the proceeds of such sales to be delivered to Leigh in certified checks or New York or New Orleans exchange, payable to Godchaux. At the end of sixty days from date hereof, the balance remaining, if any, shall be paid by the bottling company in certified checks or New York or New Orleans exchange to the order of Godchaux and delivered to Leigh. No sugar shad be released until Leigh’s storage is paid. The bottling company is to furnish a bond with sureties to be approved by Leigh in the sum of ten thousand dollars, conditioned upon the faithful performance hereof.”

The bond recited in the stipulation was also executed with appellants Weinman, Harper, Booker and Putney as sureties.

Upon the execution of this contract and the bond pursuant thereto, the two cars of sugar were transferred to the tracks at Leigh’s warehouse and there unloaded and remained there at the time of the commencement of this action. The bottling company failed to make any sales of the sugar or to pay any part of the price, and after the expiration of sixty days from the date of the contract appellee instituted this action in the chancery court of Pulaski' County against fall of the appellants, praying for judgment against the Bottling Works for the price of the sugar and that a lien on that commodity be decreed and the same sold and the proceeds credited on the said judgment; also for a judgment against the sureties on the bond for the sum of $10,000. Appellants demurred to the complaint on the ground that the chancery court had no jurisdiction, and also moved that the cause be transferred to the circuit court. The demurrer and the motion were each • overruled. There was a trial of the cause on the pleadings, the documentary and oral testimony, and th’e decree was in favor of appellee, awarding all the relief prayed for in the complaint. The sugar had declined in price to a considerable extent, and it was sold under order of the court and the proceeds applied on the decree in favor of the appellee. The decree against the Bottling Works, after crediting on the debt the price of the sugar, was for the sum of $18,367.06, and the decree against the sureties was for the sum of $10,000 with interest.

The first contention is that there were no grounds claimed for equitable relief, and that the cause should have been transferred to the law court. Appellee asserted a lien on the sugar held by Leigh under the contract in the nature of a pledge, and this gave jurisdiction to a court of equity to grant relief. Under the contract the deposit of the sugar in the hands of Leigh was for the benefit of the appellee as security for the payment of the price as well as for appellant Bottling Works as purchaser, and this constituted an equitable lien in favor of appellee, and the remedy fell within the jurisdiction of the chancery court. Thornton v. Findley, 97 Ark. 43; Ark. Cypress Shingle Co. v. Meto Valley Ry. Co., 97 Ark. 534; Lee Wilson Co. v. Crittenden County Bank & Trust Co., 98 Ark. 379; Mattar v. Wathen, 99 Ark. 329. It is not essential that the title should have absolutely passed from the seller to the purchaser by delivery of tbe goods in order to create such a lien as a court of equity would enforce. Tbe contract, as before stated, conferred rights upon all parties which a court of equity would enforce. It is therefore unnecessary to consider whether the title had actually passed before the execution of the contract. Having rightfully acquired jurisdiction of part of the subject-matter on equitable grounds, it was proper for the court to retain its jurisdiction for the purpose of granting all appropriate and complete relief. This upon familiar principles too well settled for it to be necessary to cite authorities in support of them.

It is next contended that the transaction involved in the contract was intrastate in it character, and that, since appellee is a foreign corporation and has never complied with' the laws of this State so as to authorize it to do business here, it should be repelled from the court and denied relief. The position of appellants in this phase of the case is that at the time the contract for the storage of the sugar was entered into between the parties appellee was here acting through Leigh, its agent, and in possession, as holder of the bills of lading, of the sugar which had been consigned to the shipper’s order; that the transaction was entirely intrastate in its character and constituted doing business in this State in violation of our laws. Counsel contend, in other words, that, as the bottling company had never signed a written order for the sugar, it was never bound by any contract until it executed the contract hereinbefore referred to for the storage of the sugar. They say that this was the first binding obligation between the parties, and that it occurred between them when appellee, as the vendor, was here with the goods and making a disposition of them which was wholly intrastate in its operation.

In the first place, it may be said, whether important in this phase of the controversy or not, that it is a mistake to say that appellant bottling company was not bound by the order transmitted through the broker for the purchase of the sugar. The broker was the agent of both parties in the transaction, and his memoranda of the sale was sufficient to satisfy the statute of frauds. 20 Cyc. 256; 25 R. C. L. 683. The sugar was, as before stated, consigned to shipper’s urder at Little Rock. This constituted a reservation of the title as security for the purchase price. It will scarcely be contended that the delivery of the bills of lading upon the payment -of the draft would change the nature of the transaction so as to transform .it into an intrastate rather than an interstate incident. If such were the law, it would circumscribe business carried on between citizens of different States within such narrow limits that it could scarcely be transacted without changing the whole nature of the transaction. The contrary is well established as the law -on the subject. Norfolk & Western Ry. Co. v. Sims, 191 U. S. 441. If, therefore, the goods came into the State under shipper’s order consignment, retaining its character as interstate, it follows that there was no change in the character of the transaction in the further arrangement between the parties stipulating the method of payment of the price. The transaction from inception to the end was continuous and interstate in its character, for the contract now under consideration related to the method of the payment of the price and did not constitute a new contract for the sale of the goods. The following authorities fu.lly sustain the view that the whole transaction was interstate, and that its legality was not affected by the fact that the vendor had not complied with the laws of this State. Rosenberg v. Pacific Express Co., 241 U. S. 48; York Mfg. Co. v. Colley, 247 U. S. 21; In re Selman Heating & Plumbing Co., 204 Fed. 839; Duniba Farmers’ Union Packing Co. v. Anderson Grocer Go. (Mo.) 182 S. W. 1036; Dahnke-Walker Milling Co. v. Bondurant, U. S. 66 L. ed. 114, 42 S. C. Rep. 106.

The case of York Manufacturing Co. v. Colley, supra, is especially in point as announcing the law that the fact that a part of the transaction incidental to the main one is local does not separate the transactions so as to bring the main one within the control and operation of local laws. The character of the transaction is not altered by the fact that Leigh, a resident of this State, became the agent of appellee for the purpose of negotiating this contract. It appears that Leigh executed the contract as agent of appellee, but he was also a party to the contract as pledgee and trustee for the benefit of all parties. The transaction stands the same as if appellee had sent any of its officers or agents into this State for the purpose of negotiating an adjustment of the method of securing the selling price of the goods and had in that way entered into a contract for the storage of the goods with Leigh for the purposes mentioned. It would still have constituted a mere adjustment of the method of payment of the price, and would not have changed the character of the transaction. Appellee, had a right to come into the State for the purpose of collecting its debt under the contract of sale without subjecting itself to the statutes of this State in regard to doing business here, for neither the adjustment of the debt here nor the maintenance of the litigation here for the purpose of collecting it constituted doing business within the State within the meaning of our statute. Swtmy South Lhr. Go. v. Niemeyer Lbr. Co., 63 Ark. 268; Simmons-Burlcs Clothing Co. v. Linton, 90 Ark. 73; Hoyt v. Ogden Portland Cement Co., 185 Fed. 889.

This brings us finally to the consideration of the further defense brought forward by appellants who were sureties on the bond, to the effect that they were induced to sign the bond by false and fraudulent misrepresentations by Leigh acting as agent of appellee. It is contended by the sureties that Leigh represented to them, in substance, that he had arranged an immediate sale of the greater portion, if not all, of the sugar to other parties at prices slightly below the contract price between appellee and the Bottling Works, and that upon the consummation of those sales the loss in the transaction would be very slight. There is a sharp conflict in the testimony, and the chancellor found ■against appellants on that issue. We are unable to discover a preponderance of the evidence against the findings of the chancellor. In fact, if it was clear, when the testimony is fully considered, that Leigh made the representation claimed to have been made by him to the sureties to induce them to make the bond, it was merely a statement of a promissory nature to the effect that he could and would make an advantageous sale of the sugar so as to obviate any serious loss. The contract at that time had not been execeuted, and the sureties knew that Leigh had no authority to consummate a sale of the sugar. They knew, too, that, until the sale was consummated, any negotiations were necessarily dependent upon the fluctuation of prices from day to day, and therefore they had no right to rely upon a statement of this character as the sole inducement for the execution of the bond. The chancellor was correct, therefore, in holding that under those circumstances the sureties could not escape liability on the ground that they had been induced to sign the bond by the alleged statements that the sugar could and would be immediately resold to other parties. The case presents an instance of hardship resulting from rapidly falling prices of sugar after this purchase was made, but the courts are powerless to relieve from the results of such business hazards. There is no escape from enforcing the rights of the parties according to 'the letter of the contract.

The decree is therefore affirmed.

Hart, J., dissents.


text:
    L. J. Smith Construction Company v. Tate.
    Opinion delivered January 16, 1922.
    1. Master and servant — negligence—sufficiency of evidence._ Evidence tending to prove that the negligence of defendant’s servants in hooking one of the chains of a dump ear with a twisted chain caused the chain to fly out and strike an implement in the hands of plaintiff’s intestate, which caused him to fall and receive fatal injuries, held to sustain a finding that such negligence was the principal cause of intestate’s death.
    2. Master and servant — assumed risk. — Where the foreman of a dumping crew, after knocking one of the chains of a dump car loose, discovered that the other chain was twisted, and that it was liable, when released, to swing out and strike him, he cannot be said, as a matter of law, to have assumed such risk where it does not appear under the circumstances that the risk of releasing the second chain was greater than a person of ordinary prudence would have undertaken.
    3. Trial — instruction—specific objection. — Where the proof narrowed the issue in a case to the single question as to the duty of the master to furnish safe appliances, and the court instructed as to the master’s duty to furnish safe appliances and place to work, an objection as to the reference to the place of work should have been specific.
    4. Appeal and error — instruction—invited error. — Appellant cannot complain of an instruction as abstract where he requested an instruction on the same issue.
    5. Trial — instructions—objections in gross. — An objection in gross to five separate instructions is ineffectual..
    6. Appeal and error — harmless error. — While statements of defendant’s superintendent concerning the necessity or propriety of removing plaintiff’s intestate to a hospital were improperly admitted, such evidence was not prejudicial.
    Appeal from Boone Circuit Court; J. M. Shinn, Judge;
    affirmed

      John W. Nance, for appellant.
    Appellant was not an insurer of the safety of the deceased. 18 R. C. L. par. 60, p. 544; 80 Ark. 260; 59 Ark. 465; 56 Ark. 206; 56 Ark. 232.
    The fact that deceased was injured while doing appellant’s work, is not sufficient in itself to create liability. 91 Ark. 389; 79 Ark. 437;
    The fact that the chain was twisted and the injury to deceased resulted thereform is not enough. Negligence must be shown. 77 Ark. 367; 41 Ark. 283; 58 Ark. 168; 76 Ark. 436.
    The injury must have been the natural and probable consequence of the chain being twisted, and such eonsequence must have been foreseen by appellant or its employees in the light of attending circumstances. 18 R. C. L. 548; 113 Ark. 60; 105 Ark. 392; 90 Ark. 34; 86 Ark. 289; 35 Ark. 602; 92 Ark. 138.
    If the deceased had knowledge of the negligence and dangerous condition, equal or superior to that of appellant, he can not complain of appellant’s negligence. The doctrine of comparative knowledge should apply. 18 R. C. L. par. 173 p. 685; 45 Ark. 318; 96 Ark. 206.
    Deceased assumed the risk of all the usual and ordinary dangers incident to his work. 18 R. C. L. p. 676; 35 Ark. 602; 48 Ark. 388; 95 Ark. 560.
    The ordinary dangers incident to the employment are those which the employee has notice of or which are patent and obvious to him. 18 R. C. L. par 167, p. 676. Deceased assumed the risk of all dangers arising from the negligence of appellant, of which he had knowledge and of which he appreciated the danger. 96 Ark. 337 ; 88 Ark. 548; 95 Ark. 560; 97 Ark. 486.
    Instructions 1, 2, 4 and 5 were erroneous as being abstract, without testimony to support them, and conflicting.
    Error to permit testimony of witness G-rassman to be introduced concerning the matter of sending the deceased to a hospital after he was injured, and also to permit witness Greaves to detail alleged statements of Grass-man about the same matter. 100 Ark. 114.

      George J. Gmmip for appellee; John 1. Worthington, of counsel.
    Appellant failed to carry his objection, which was a general one, into his motion for new trial, hence he cannot now insist on any alleged error. 24 Ark. 224; 126 Ark. 564. The only objection saved by appellant to an instruction in his motion for new trial is to No. 2, which are deemed to have been waived, since appellant asked and the court gave his instructions 13, 14, and 15 on the same subject. 132 Ark. 454; 121 Ark. 570. The testimony of the witnesses mentioned by appellant could not have been prejudicial or amount to reversible error. In the case cited by appellant similar testimony was considered for the purpose of reducing an excessive verdict. It was not claimed that the verdict in this case is excessive.
    The main issue in the case was whether or not the chain was negligently twisted, and the jury were required to so find before they could find a verdict for appellee, and their finding is conclusive. 18 R. C. L. 547; 104 Ark. 4.
    Deceased may have been negligent, but it was not an assumption of the risk. Proof of an emergency makes a case for the jury. 18 R. C. L. p. 654, sec. 147. See also 82 Ark. 11, 53 Ark. 458; 79 Ark. 53; 1 Labatt, Master & Servant, No. 333; 100 Ala. 451; 99 Ala. 346.
    Deceased did not appreciate the danger. 18 R. C. L. p. 649, see. 141; also p. 663, sec. 156.
    The instructions were correct, and the issues settled by the jury. 143 Ark. 122; 88 Ark. 243.
   McCulloch, C. J.

This is an action against appellant to recover for the benefit of the estate and the widow and next of kin of AY. R. Tate, deceased, damages accruing by reason of the death of the said deceased while working in the service of appellant.

Appellant is a foreign corporation, and at the time of the injuries to Tate, which resulted in his death, was engaged in performing railroad construction work for the Missouri Pacific Railroad Company. The work consisted of filling in a number of high trestles in Boone County on what is known as the AYhite River Branch of said railroad company. These trestles were from 60 to 100 feet high, and they were filled in with rock and earth so as to build a dump and eliminate the trestles. Appellant had been engaged in this work for about a year and its predecessor in the contract had likewise been engaged for more than a year before that time. Tate was foreman of the dumping crew; he had been so engaged throughout the period of appellant’s work under the contract, and also had been engaged under appellant’s predecessor in this work. This crew consisted of a foreman and four helpers. The earth and rock was taken from adjacent hillsides and by means of steam shovels and other equipment was loaded into dump cars, which- were hauled to the trestles by engines and there unloaded so as to dump the dirt under the trestles. The dumping was, of course, done while the cars were standing on the trestles.’ The trestle at which deceased received his injuries was originally 119 feet high, and at the time the injury occurred it had been filled in so that it was about 60 feet high. Tate lost his balance and fell from the trestle while releasing the chains so as to cause the car to expel the earth and rock from it. These cars were 26 feet in length, 9 feet in width and 21 inches deep and' were of a capacity of 60,000 lbs. There were two pairs of dump chains on each side of a car, one near each end of the car, so that the load of dirt could be expelled from either side of the car, according to the necessities of the case. One end of the dump chains with a ring or clevis on it was fastened to the body of the car, and the other end with a hook on it was fastened to the truck of the car. The two ends were fastened together by a connection made between the hook and the clevis. Before the car was loaded, the two ends of each dump chain were thus hooked together, and the chains became tightened as the load increased. This was, of course, done after each dumping trip was completed. When a car was in place to be dumped, the ends of the chain were disconnected by knocking loose the ring or clevis, and when each of the two pairs of dump chains on the side of the car were disconnected, the weight of the load caused the floor of the car on the opposite side to drop down suddenly so that the load slided out. This knocking loose of the ring or clevis was done by an iron implement called a knocker. It was part of the duty of the foreman of the dumping crew to knock loose the clevis, and Tate, while performing this service, fell from the trestle and received injuries ■which caused his death fourteen days later. When he struck the clevis with the knocker and the hook became disconnected, it swung out with such forcé that it hit the knocker in Tate’s hands, and caused him to lose his balance. He was standing on the end of the ties when this duty was performed.

The dump chains were composed of links about sis inches in length, made of steel or iron rods about an inch in diameter. The chains and hooks, of course, were in plain view of a person using the knocker, and according to the undisputed evidence in the case a twist in the chain could be readily observed by the one doing the knocking.

Tate had been sick for a week or more before the date of his injury and returned to his work that morning considerably weakened by the illness. His injury was received while he was dumping the first car. This occurred on Monday morning, and the train of cars had been loaded the Saturday before, during Tate’s absence, and the first opportunity he had to observe the manner in which the chains had been hooked together was after he had knocked loose the chains on one end of the car, and with the whole weight of the load on the last chain he had proceeded to knock it loose. He was then, as before stated, standing on the trestle 60 feet high.

There was, according to the testimony, a rod on the side of the car which he could have taken hold of with his hand not using the knocker, or he could have taken hold of the flange of the wheel. 'Before the car was dumped, the wheels were fastened to the track by means of heavy chains- so as to prevent the car from turning over or “bucking” when the bottom dropped for the load to slide out.

There are several acts of negligence charged in the complaint, but the one upon which appellee relies to sustain the recovery of damages is that this particular pair of dump chains had been improperly connected together — that, instead of properly connecting the hook and the clevis so that the hook would hang parallel with the body of the car, it was connected with a half twist in the chain so that the hook turned out from the body of the car, and when the whole weight of the load fell on this chain it would, when released by the stroke of the knocker, swing out with great force and strike the implement in the hands of the foreman.

The complaint also contained allegations that there was negligence with respect to overloading the car, also that the handle of the knocker furnished to deceased was too long for proper use in performing his duties.

Appellant in its answer denied each of the charges of negligence and pleaded both contributory negligence and assumption of the risk on the part of Tate. At the trial the jury returned a verdict in favor of appellees, and fixed damages at the sum of $5,000 for the benefit of the widow and next of kin, but awarded no damages for the benefit of the estate.

The principal ground urged here for reversal of the judgment is that the evidence is not sufficient to sustain the verdict, and that the trial court should have given a peremptory instruction. ' The /Contention is that there was no negligence on the part of appellant’s servants proved, and that, according to the undisputed evidence, Tate should be held to have assumed the risk. Each of these issues was submitted to the jury upon correct and appropriate instructions, and we are of the opinion that the evidence was sufficient to sustain the verdict.

The two ends of each of the pair of dump chains were hooked together by other servants of appellant during Tate’s absence. It was not, according to the evidence, part of his duty' to see. that the chains were properly hooked together. There was no duty of inspection resting upon him further than to take notice of obvious defects. The defect of hooking the chains together with a half-turn or twist might appear at first glance to be trivial, but, when considered in the light of the testimony, it is highly important and was the proximate cause of Tate’s injury. The testimony was sufficient to warrant the conclusion that, if the two ends of the chain had been hooked together properly, the lower end with the hook on it would, when released from the upper end, have dropped downward, and would not have swung out with any considerable force, but that, when hooked together with a half-turn or twist, when released from the strain of the whole load, it would violently swing out and strike the knocker in the hands of the person using that implement. There was evidence that this had occurred several times before when the ends of the chains were improperly hooked together as in this instance, but it had never occurred when the chains were properly hooked together. With this danger likely to arise, it was highly important to properly hook the ends of the chain together, for the work of releasing them was always done on a high trestle where the slightest impact or blow might cause the person performing his duty there to lose his balance and fall from the trestle. There were means of safety provided to guard against this danger, and it is clear that Tate was guilty of contributory negligence in not taking these precautions for his own safety, but that phase, of the case will be discussed later. We think that the evidence was sufficient to sustain the charge of negligence, and that this act of negligence in improperly connecting the chains was the proximate cause of Tate’s injury.

Nor can it be said, as a matter of law, under the undisputed evidence, that Tate assumed the risk. It is clear from the testimony that, after the first chain on the other end of the car was released and the weight of the whole load was thrown upon the other chain, the defect was open and obvious to Tate when he was about to knock the clevis loose in order to release the chain. He was a man who had had long service and experience in this particular kind of work and must have been aware of whatever danger there was in knocking loose the clevis under those circumstances; but it cannot be said that the danger was indisputably an absolute one so that a man of reasonable prudence would not have undertaken to release the chains under those circumstances. The danger undoubtedly existed, but it might have been avoided. Tate was then placed in a situation that he was called upon to make a choice of proceeding with the work, notwithstanding the danger, or retiring from the dangerous situation by causing the caito- be removed from the trestle at great inconvenience and perhaps with other attendant dangers. The car was then chained down to the track to prevent “bucking,” and one of the pairs of dump chains had already been released and the whole load was thus thrown on the remaining pair of chains. The pair of chains which had already been released could not have been reconnected without dumping the car, and in order to remove the car from the trestle without dumping it, it would have been necessary to take loose the chains that held it to the track and haul it away with one pair of chains released and the other holding it. This constituted an emergency in which Tate, as foreman of the crew, was called on to compare the dangers attending the release of the chains with the inconvenience and attendant dangers of removing the undumped car and to decide what course he should pursue. Under those circumstances he is' not, as a matter of law, deemed to have assumed the risk in making the choice. The principle which controls this case was stated by Judge Biddiok in the opinion of this court in Fordyce v. Edwards, 60 Ark. 438, where a locomotive engineer was injured while performing his duties by reason of a defect in the pilot of his engine. This defect was discovered by the engineer while out on a trip, and in disposing-of the case the court said:

“If appellee, without fault on his part, first discovered the condition of the pilot after he had commenced his trip, and the defect was not such as to render the engine immediately dangerous, he would not be required to abandon his engine, or lose his right to recover by continuing on his journey until he reached a station where the defect could be cured, or a new engine obtained, if the defect was such that it was reasonable to believe that the engine might still be safely operated by the exercise of great care, and if the risk was not greater than a person of ordinary, prudence would have taken under the same circumstances.”

In the present case it cannot be said, as a matter of law, that the risk of releasing the chains under the circumstances mentioned was greater than a person of ordinary prudence would have undertaken. That was a question for the determination of^the jury, for, as before stated, the extent of the danger was, under the circumstances, a relative one, and not absolute. Tate’s contributory negligence consisted, not so much in proceeding with the work of knocking loose the clevis, but in doing so without observing the proper precautions. But for our statutes on the subject of contributory negligence in eases of this sort, recovery would be denied on account of Tate’s contributory negligence in failing to take hold of the rod on the car or the flange of the wheel to steady himself while knocking loose the clevis. The statutes of this State provide that in suits against corporations for personal injuries contributory negligence shall not bar a recovery, but that the damages “shall be diminished by the jury in proportion to the amount of negligence attributable to such employee.” Crawford & Moses’ Digest, § 7145. This statute was, in substance, submitted to the jury by the court in its instructions, and the very moderate assessment of damages made by the jury indicates that it had its controlling effect upon the minds of the jury in assessing the damages. It appears reasonable from the testimony that, if the jury had found that there was no negligence upon the part of Tate, a much larger sum would have been awarded.

I't is next contended that the court erred in its instructions to the jury. The court gave an instruction (No. 4) over appellant’s general objection as follows:

“I charge you that it was the duty of the defendant to exercise ordinary care to provide the deceased with reasonable safe appliances, tools and place to work.”

It is true that the charges of negligence were by the proof narrowed to the single question whether or not the chain was properly hooked, but the chain, when adjusted for the work, was a part of the appliances, and appellee was entitled to an instruction defining the duty of the employer with respect to these appliances. The purpose of this instruction was to define the duty of the employer with respect to the degree of care he should observe in matters about which there is a charge of negligence, and the fact that the reference to the duty in regard to the place of work was improperly incorporated in this instruction should have been called to the attention of the court by a specific objection.

The court also, over the objection of appellant, gave instruction No. 2, which not only submitted the question of negligence in regard to the hooking of the chain, but submitted all the other charges of negligence by telling the jury that if one of the alleged acts of negligence had been established by the evidence, it was sufficient for recovery without proof of the other acts of negligence. The objections now urged against this instruction is that it improperly submitted 'the charges of negligence in regard to furnishing a knocker witli a handle that was too long, and negligence in overloading the car, whereas, there was no proof to justify the submission of either of those issues. Appellant asked an instruction submitting the issue with respect to the knocker, and is therefore in no attitude to complain of the court in giving the instruction on that subject at the request of appellee. National Fruit Products Co. v. Garrett, 121 Ark. 570. But there is still another reason why we.cannot now review this error in regard to the charge as to either of the acts of negligence. Instruction No. 2 consisted of five separate paragraphs devoted to distinct phases of the case and was tantamount to five separate instructions. The general objection amounted to an objection in gross to five separate instructions, and if either one of these separate instructions was correct, that method of objection was ineffectual to bring up for review the alleged error. Young v. Stevenson, 75 Ark. 181; Wells v. Parker, 76 Ark. 41; Dowell v. Schisler, 76 Ark. 482; H. D. Williams Cooperage Co. v. Clark, 105 Ark. 157.

There were other criticisms of the court’s instructions by assignments of error which we do not deem of sufficient importance to discuss.

Finally, it is insisted that the court erred in permitting appellee to prove certain statements made, by Mr. Grassman, appellant’s superintendent, concerning the necessity or propriety of removing Tate to a hospital after he was injured. After Tate fell from the trestle he was removed to his home and lived fourteen days. There is a conflict in the testimony as to whether or not he was conscious after he fell, and the verdict of the jury failing to award damages on that branch of the case settles that issue in favor of appellant. During the cross-examination of Mr. Grass-man, who was introduced as a witness by appellant, he was asked if the suggestion had not been made to him that Tate be taken to the hospital, that he replied in the negative, saying, “We will lose 10 cars of dirt per day.” The witness denied that any sucli conversation took place, and appellees then introduced, over appellant’s objection, witness Graves, who stated that in a talk with Mr. Grassman after Tate fell from the bridge he (witness) asked the question whether or not Tate should be sent to the hospital, and that Grassman replied, “No, he is not hurt bad enough to take him to the hospital.” Witness further stated that he asked Grass-man why they did not telephone to Tate’s wife, and he replied there was no use of her knowing it until he got home. We cannot see that this could possibly have had any prejudicial effect. The extent of Tate’s injuries were not known at that time, and the alleged statement of Grassman was a mere expression of Ms opinion that it was unnecessary to take Mm to the hospital. Of course, this statement was inadmissible for any purpose whatever, but we should not reverse a judgment for error where it appears improbable that any prejudice could have resulted.

Upon the whole, we find no reversible error in the record, and the judgment is therefore affirmed.

Smith, J., dissents.


author: Hart, J.

text:
    Padgett v. State.
    Opinion delivered January 16, 1922.
    1. Homicide — matricide—evidence.—In a prosecution for murder, evidence held to warrant finding that defendant was guilty of murdering his mother.
    2. Homicide — evidence.—Where the body of deceased was found floating in the river, with no bruises on her body except two small cuts on her lips, the jury might have found that defendant either knocked her senseless and left her in a leaky boat to drown or threw her body into the river.
    3. Criminal law — venue.—In prosecution of a son for murder of his mother whose body was found floating in the Mississippi River between Arkansas and Tennessee the courts of both States had concurrent jurisdiction where the crime was committed on the river.
    4. Criminal law — objection not made below. — Where the court submitted a case to the jury one evening, but directed them not’ to return a verdict until the next morning on account of the importance of the case, no objection thereto will be considered on appeal where none was made in the trial court.
    Appeal from Crittenden Circuit Court; R. E. L. Johnson, Judge;
    affirmed.

      Davis, Gosten é Harrison, for appellant.
    The jurisdiction is in the State of Tennessee, for the reason that no valid act has been passed by that State similar to § 2862 of C. & M. Digest. Act 290 Acts 1909. See also 118 Ark. 362.
    The evidence was not sufficient to support the verdict. 68 Ark. 529; 85 Ark. 360; 68 Ark. 529; 97 Ark. 156; 34 Ark. 639.

      J. S. TJtley, Attorney General; Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    The jurisdiction was properly laid. Similar acts having been passed by the States of Arkansas and Tennessee, act 290 of Acts of Arkansas, approved March 31,1909, and chapter 123 of the Public Acts of Tennessee, approved May 17,1915.
   Hart, J.

Elvus Padgett was indicted for the crime of murder in the first degree, charged to have been committed by killing his mother on the 19th day of .July, 1921, in Crittenden County, Ark.

He was tried before a jury and found guilty of murder in the second degree. His punishment was fixed by the jury at a term of sixteen years in the State penitentiary, and, from the judgment pronounced on the verdict, the defendant has duly prosecuted an appeal to this court.

It is earnestly insisted by counsel for the defendant that the evidence is not legally sufficient to support the verdict. According to the evidence adduced in favor of the State, the defendant, Elvus Padgett, was the son of Mr. and Mrs. J. W. -Padgett. Sometime before the death of J. W. Padgett, his wife secured a divorce from him, and in a short time thereafter married W. J. Felton. After J. W. Padgett’s death, 'W. J. Felton and wife moved on a place owned by Padgett on Centennial Island in the Mississippi River on the Tennessee side of the river opposite Crittenden county in the State of Arkansas. W. J. Felton and wife separated about two months before Mrs. Felton met her death, but were not divorced. After W. J. Felton and his wife separated the defendant continued to live with his mother at their home on Centennial Island in the river. He went home on Tuesday preceding the death of his mother on Thursday, and was asked by his mother to plow some com. After plowing a while he had a quarrel with his mother about his work. He cut up the plow-line and horse-collar and broke .the pump and some windows in the house. Thus far the facts are undisputed.

W. J. Felton, the husband of the deceased, was a witness for the State. According to his testimony, he had been separated from her about two months. After J. W. Padgett and wife had been divorced, W. J. Felton married the divorced wife. After J. W. Padgett’s death they moved on Centennial Island and continued to live there until about two months before Mrs. Felton was found dead in the Mississippi River about the 20th of July, 1921. W. J. Felton had seen his wife on the Saturday preceding the Thursday morning her body was found floating in the Mississippi River. Their separation occurred on account of the defendant, and there was no ill feeling between them at the time Mrs. Felton met her death. ~W. J. Felton found the body of his dead wife floating in the Mississippi river about twenty-five yards below the landing on the Arkansas side. There was a split -something like three-eighths of an inch on each of her lips and there was a bruise on her face. Her body looked as if it had been in the river about two days. Near her body there was a small paddle boat which had formerly been under the house on Centennial Island and used there as a feed trough. One end of this boat was split off to within two inches of the water. There was a piece of blanket nailed over that end. By sitting in the other end of the boat the split place would be above the water. Mrs. Felton owned two other boats which were kept near her house at the landing. They were found tied close together on the Arkansas bank of the river above where her body was found.

At the coroner’s inquest the defendant said that the last he saw of his mother was on Tuesday morning, and that she was riding a pony down the Tennessee side of the river on her way to have him arrested. The defendant said that he had refused to plow some com when asked to do so by his mother, and his mother told him that he could not stay there unless he did something to support himself. The defendant then broke out the window lights and threw some stuff through the windows at his mother. He then took both boats across the river so that his mother could not - get across to have him arrested. The defendant further stated that, after he heard his mother call for help over there on the island, he went back there. He then got his clothes and came back to the Arkansas side, and stayed there until he was arrested just before his mother’s body was found.

W. J. Felton had been told about his wife’s calling for help, and went over to the island on "Wednesday before the body was found on Thursday morning. He found the pump and other articles broken and scattered about the house and things chopped up with an ax. Mrs. Felton was not there. Felton then proceeded to search the river for the body of his wife, and found it near the bank on the Arkansas side opposite Crittenden County on the next morning. The body was found at a place on what was called Old River where there was no current.

T. E. Scammehorne testified that the defendant came to his house on Tuesday evening before the body was found on Thursday morning, and stayed all night with him. He left Wednesday morning*, and said that he was going home after his wagon. He said that he and his mother had had some trouble, and that he had picked up and left home.

According to the testimony of Allie Horton, the defendant stayed all night there the night before the body was found. Defendant stated that he and his mother had had a racket the day before.

It was also shown that a pair of .muddy shoes was found at Mrs. Felton’s house on the island, and also a pair of muddy overalls was found in a tub by the porch. The mud on them appeared to be sticky like that on the Arkansas side of the Mississippi river. It was also shown that the Arkansas side of the river was soft and muddy, and that the Tennessee side had a hard firm bank.

The defendant on the Wednesday night that he stayed all night at Allie Horton’s house sent to Mrs. Laura Gleason a letter, which is as follows:

“Don’t let anybody read.

from Elvus.

“Mrs. Gleason: Say woman: I want to see you on some business this very night for I am about to be locked up. Felton and Sanders are looking for mo right now and I have got something to tell you about Nova.

“I will tell you how you can get away; tell them Mama sent for you and that she is very sick. Darling, please come, I want to see you; come out by the garden. I will take Allie back home and come to the fence Answer on here.

“Mrs. Laura Gleason.”

Mrs. Laura Gleason testified that she received the letter, and that the Nova referred to in it was her daughter. She did not reply to the note, but sent word to the defendant that she would see him the next morning. Mrs. Gleason lived about a mile and a half from where the defendant lived.

Lottie Ellis testified that she lived at Lamberthville on the Arkansas side of the Mississippi Eiver just opposite to where Mrs. Felton’ lived on the Tennessee side; that she lived three or four hundred yards from the river; that, on the Tuesday before the body of Mrs. Felton was found in the river, she went to the levee and heard Mrs. Felton say in a loud voice, “Oh, me, come here, somebody,” and then she squalled again. This was between eight and nine o’clock in the morning. The voice that she heard screaming came from the direction of Mrs. Felton’s house, and it sounded like her voice. She said she heard some loud talking over there at the same time. About eleven o’clock on the same morning she saw the defendant on the Arkansas side of the river.

Dan Allen testified that he lived near Lamberthville in July, 1921, at a contractor’s camp, and at about nine o’clock on the Tuesday morning before the body of Mrs. Felton was found floating in the Mississippi River on Thursday, he heard a woman on the island where Mrs. Felton lived crying, “Oh! oh! help! help!” that in about a half hour after this the defendant came to where he was, and he asked the defendant if he did not live over the river. The defendant replied that he did; that he then told the defendant that he had heard an awful noise over there that morning, and that the defendant said that he was there.

A. B. McCorkle testified that Lottie Ellis, a negro woman, reported that there had been some trouble over on the island where Mrs. Felton lived; that about an hour and a half after this he saw the defendant, and asked him about it. The defendant' said, “Oh, I was raising a little hell over there.” He admitted that he broke up the window lights and tore up the house. He said that he had brought the boats over the river and locked up the house.

O. L. Sanders is a deputy sheriff of Crittenden County, and arrested the defendant. According to his testimony, the body of the deceased was found about thirty yards below the landing on the Arkansas side of the river, on the 20th of July, 1921. Her body was lying ten or fifteen feet from the edge of the water. The body of the deceased was stripped down to her waist, and no bruises were found on it. No marks of violence were found on her body except two cuts on the lips. The body looked like it had been in the water about two days. Sanders arrested the defendant at Allie Horton’s place about a mile from where the body was found. The water on the Arkansas side at this point was very muddy, and on the opposite side where the house of Mrs. Felton was on the island, the bank is hard, and the water is deep. They found a pair of the defendant’s heavy shoes over at Mrs. Felton’s home on the island that he had worn every day. They had been partly washed off in a dish-pan sitting there, and they found a pair of overalls in a tub that had the sticky river mud on them. The body was found in Crittenden County, Ark. This evidence was sufficient to warrant the jury in finding the defendant guilty. The defendant and his mother lived alone on the island. Mrs. Felton was heard to scream and call for help on the Tuesday morning preceding the finding of her body in the Mississippi River on Thursday morning. The defendant admitted that he was at home that morning, and that he had a quarrel with his mother. He had cut up his plow gear and had broken the pump and the window lights in the house. This indicated that he was in a violent rage. He admitted that he crossed over the river on the same morning and brought both of the skiffs which were anchored in the water near their island home. Fie also admitted that he had been, as he expressed it, “raising hell over there.” The body was found on Thursday morning, and it appeared to have been in the water about two days. The husband of the deceased said that, while he had been separated from her about two months, there were no hard feelings between them. He also stated that he had not seen her since the Saturday preceding the finding of her body in the river. As soon as he heard that there had been a disturbance on the island, he went over there, and when he found the disturbed condition of the house and that his wife was not there, he began a search of the river for her body, and found it floating near the bank on the Arkansas side. The jury might have found from this that he had no part in the killing, and that Mrs. Felton’s son killed her after having had a violent quarrel with her.

Counsel for the defendant point to the fact that there were no bruises found on her body except two small cuts on her lips, and that this negatives the idea that her son killed her. Under the circumstances the jury might have found that he knocked her senseless and placed her in the old paddle boat, which he tore loose from under the house and dragged her into the Mississipi river and left her in the leaky boat to drown. Or the jury might have found that he threw her body into the river and drowned her and left the leaky boat there in an attempt to conceal his act by making it appear that she had drowned herself while attempting to cross the river in the old leaky boat.

It is insisted by counsel for the defendant that, if he killed her at all, he killed her at their home on the island which was in Tennessee, under the rule in Means v. State, 118 Ark. 362. The record shows that all the witnesses lived at or near Lamberthville, which is on the Mississippi River in Crittenden County, Arkansas. The body was found near the landing there, and the deputy sheriff who was present when the body was found testified that- it was in Crittenden County. It is true the island home of Mrs. Felton was on the Tennessee side of the Mississippi River, but it was just opposite Lamberthville. From the fact that no bruises except the two cuts on the lips were found on the body of the deceased it is inferable that she was not killed on the island, but that she had been knocked senseless and carried by her son to the Mississippi River and killed there by his drowning her.

The Mississippi River at that point forms the boundary between the States of Arkansas and of Tennessee, and proof that Mrs. Felton was killed by being drowned in the river opposite Crittenden County, which borders on the Mississippi River, was sufficient to warrant the jury in finding the defendant guilty, for the reason that the courts of the two States at that point would have concurrent jurisdiction over the crime. See Brown v. State, 109 Ark. 373, and Means v. State, 118 Ark. 362.

It is next insisted that the court erred in giving instruction No. 18, which is as follows: “You are further instructed that if you find from the evidence in this case beyond a reasonable doubt that the crime as alleged in the indictment was committed, and that the same was committed by the defendant in the way and manner alleged therein, and that the same was committed by the defendant at any point on or in the Mississippi River opposite Crittenden County, and between the east boundary line of such county and any point of the east bank of the Mississippi River in the State of Tennessee, then you are instructed that such crime would be committed within the jurisdiction of this court, under the provision of an act approved May 31, 1909, and that this court would have full and complete jurisdictional authority to punish same, although you may find that such crime was actually committed in that part of such river within the boundary line of the State of Tennessee, and not within the boundary line of the State of Arkansas, inasmuch as under the provision of such act and a joint act passed by the Legislature of the State of Tennessee, which was in tforce on the 19th day of July, 1921, (which is now in full force and effect) the courts of the State of Arkansas and the courts of the State of Tennessee have concurrent jurisdiction to punish crimes which may be so committed.”

The instruction was correct. The Legislature of Arkansas in 1909 passed an act providing that the States of Arkansas and Tennessee should have concurrent criminal jurisdiction over the parts of the Mississippi River lying opposite the territory of each State. This act was upheld in the case of Means v. State, 118 Ark. 362. The .Legislature of the State of Tennessee by an act approved May 17, 1915, also passed an act providing that the States of Tennessee and of Arkansas have the concurrent jurisdiction over that part of the Mississippi River lying opposite the boundaries on each of said States. Public Acts of Tenn. 1915, p. 342.

Therefore, under the doctrine announced in Means v. State, supra, the circuit court of Crittenden County, Arkansas, had jurisdiction to try the defendant for an offense committed by him on the Mississippi River opposite the boundary lines of Crittenden County on said river.

As above stated, the jury might have found under the facts and circumstances introduced in evidence that the crime was committed on the waters of the Mississippi River at a point opposite Crittenden County, Arkansas, and the guilt of the defendant was made to depend upon such finding in this instruction. It is also insisted that the judgment must be reversed because the' court instructed the jury one evening and submitted the case to them for their consideration, but directed them not to return a verdict until the next morning on account of the importance of the case. No objection at the time was made to the action of the court below. It is unnecessary to set out the exact language of the court in this respect, because no objection was made to it in the court below. On this account we cannot consider this alleged assignment of error. Wells v. State, ante p. 221.

The court fully and fairly instructed the jury on the various degrees of homicide and upon the question of reasonable doubt; We find no reversible error in the judgment, and it will therefore be affirmed.