author: Hart, J.,

text:
    State v. Bain.
    Opinion delivered December 20, 1926.
    1. Animals — trespassing on uninclosed land. — Though the common-law doctrine that an owner who permits his stock to run at large is a trespasser ii they enter upon the uninelosed land of another is inapplicable to conditions in this State, the Legislature may enact such law and make it the statute law.
    2. Statutes- — implied repeal. — Where two acts relating to the same subject are necessarily repugnant to or in conflict with each other, the later act must control, and, to the extent of such repugnancy or conflict, operates as a repeal of the prior act, whether so expressly declared or not.
    3. Animals — stock running at large. — Special Acts of 1921, p. 219, §§ 5, 6, prohibiting the running at large of stock in a certain district in Lonoke County, though not inclosed by a lawful fence, held to repeal inconsistent provisions in Crawford & Moses’ Digest, §§ 4655-4692, rquiring a lawful fence before conviction can be had for allowing stock to run at large.
    4. Constitutional law — power op legislature. — As the action of the Legislature within its province is supreme, its reasons for legislation cannot be inquired into by the courts.
    5. Animals — permitting stock to run at large. — If cattle run at large with the knowledge and consent of their owner, he is guilty of permitting them to run at large.
    6. Criminal law — reversal—new trial. — Where the court erred in directing the jury to find the defendant not guilty, since the punishment is a fine only, the judgment will be reversed and the cause remanded for a new trial.
    Appeal from Lonoke Circuit Court; George W. Clark, Judge;
    reversed.
    STATEMENT BY THE COURT.
    Upon information filed by the deputy prosecuting attorney, D. Bain was arrested and convicted before a justice of tbe peace for unlawfully permitting bis stock to run at large witbin a stock-law district in Lonoke County, Arkansas.
    Bain appealed to tbe circuit court. In that court tbe evidence for tbe State shows that D. Bain lived about, five miles from the boundaries of fencing district B-3, Lonoke County, Arkansas, and that he bad lots of horses, cattle, sows and mules running in said fencing district during .the year 1925. Frequently bis stock was impounded for running at large in the district, and Bain paid damages. He would be notified to come and get his stock, and they would be back in thirty minutes. One witness, who lived about a mile witbin tbe limits of tbe fencing district, said that he bad frequently turned back tbe cattle of the defendant from his place, and bad several times notified Mr. Bain that his cattle were running at large witbin the fencing district. At one time be turned back twenty-eight bead of cattle which were destroying his corn.
    The fence around the district had been cut at dififerr ent places, and it was found to be impossible to keep the gates up. The fencing district was not- surrounded by a legal fence at the time the defendant permitted his cattle to run within the limits of the district.
    The circuit court directed a verdict for the defendant, and from the judgment of acquittal the State has duly prosecuted an appeal to this court.

      H. W. Applegate, Attorney General, John L. Garter, Assistant, W.J. Waggoner, prosecuting attorney, and Chas. A. Walls, for appellant.

      W. A. Leach, for appellee.
   Hart, J.,

(after stating the facts). This court has held that the doctrine of the common law, that, if the owner permits his stock to run at large and they enter upon the land of another, though uninclosed, he becomes a trespasser, is inapplicable to the condition and circumstances of our people, and has never been recognized in this State. L. R. & F. S. Ry. Co. v. Finley, 37 Ark. 562; and St. Louis I. M. & S. R. Co. v. Newman, 94 Ark. 458, 127 S. W. 735.

While this is true, it does not follow that the Legislature may not re-enact the common law, in whole or in part, or make that law the statute law of the State. As said by the Supreme Court of North Carolina in State v. Mathis, 149 N. C. 546, 63 S. E. 99: “If the condition in respect to the agricultural system of the people so changes as to make it conducive to their interest to require all stock to be 'fenced in/ and relieve the landowner of the of the duty to 'fence it out/ we can see no good reason why the Legislature may not, by appropriate legislation, do so, either in respect to the whole State or political divisions thereof.”

Such is the effect of our own decisions. In DeQueen v. Fenton, 100 Ark. 504, 140 S. W. 716, 18 A. L. R. 63, it was held that one who resides outside a municipality is guilty of an infraction of an ordinance against permitting his stock to run at large within the city limits, if the stock are driven by him within the municipal limits, or if they run at large therein with his knowledge. Again, in Howell v. Daughet, 148 Ark. 450, 230 S. W. 559, it was held that statutes authorizing the impounding and sale of stock found running at large in violation of law are valid as police regulations. This principle of law seems to have been recognized as sound by counsel for both parties in the case at bar.

The ruling of the circuit court'in directing a verdict of acquittal was predicated upon the theory that there could be no conviction under the statute where there was no lawful fence around the fencing district. The fencing district was organized under the provisions of § § 4655-4692 of Crawford & Moses’ Digest. Under the provisions of the statute, the district must be surrounded by a lawful fence before there can be a conviction for allowing stock to run at large within its limits. The Legislature of 1921 passed an act to provide for the regulation of certain fencing districts in Lonoke County, to provide for the enforcement thereof, and to define the powers and duties of the fencing board. Special Acts of 1921, p. 215.

Sections 5 and 6 of said special act read as follows:

“5. That in any criminal or civil proceeding for the violation of this act or the general fencing district act, it shall be no defense to any person residing in and. owning live stock in that part of Lonoke County, south of the Chicago, Rock Island & Pacific Railroad, affected by § 1 of this act, that any fence has been destroyed, gate removed, or that any part of the said area or district is not inclosed by a lawful fence.
“6. It shall be unlawful for any person residing in that part of Lonoke County, south of the Chicago, Rock Island & Pacific Railroad affected by § 1 of this act, to drive out of said area, for the purpose of grazing or pasturing, unless said live stock is grazed or pastured upon land owned by them, and likewise it shall be unlawful for any person residing on the outside of said territory to ride, or drive into, or to permit to run at large, in the restricted area any of the live stock enumerated in § 3 of this act, and all persons violating the provisions hereof shall he fined not less than $10 or more than $50.”

The special act just referred to does not, in express terms, repeal any of the provisions of the general act relating to the formation of fencing districts. When two legislative acts relating to the same subject are necessarily repugnant to or in conflict with each other, the later act must control, and, to the extent of such repugnancy or conflict, it opérates as a repeal of the first act, whether it is so expressly declared or not in the later act. DeQueen v. Fenton, 100 Ark. 504, 140 S. W. 716. In the application of this rule of statutory construction, we are of the opinion that the special act of 1921 repealed the provisions of the prior general act in so far as the requirements of a lawful fence around District B-3 in Lonoke County, Arkansas, is concerned.

While it is true that § 5 above quoted seems to apply to those living within the district, it does allow the district to exist without a lawful fence. As we have already seen, this the Legislature had the power to do. It might change or modify the law with regard to building fences and permitting stock to run at large in cultivated lands in any way it deemed proper.

Section 6 makes it unlawful for any person residing on the outside of the fencing district to permit to run at ■ large in the district any of the live stock enumerated in § 3 of the act. Section 6 specifically defines the ways the act may be violated, and it expressly prohibits people on the outside of the district from permitting their live stock to run at large within the district, and this indicates a purpose on the part of the Legislature to make such acts unlawful, regardless- of the fact of whether the district was inclosed by a lawful fence or not. No useful purpose could have been served in passing the act if its provisions in this regard were only to apply to persons living within the limits of the fencing district.

It is insisted by counsel for the defendant that such a construction is inconsistent with the provisions of the statute requiring that Fencing District B-4, which was not at that time inclosed by a lawful fence, to be inclosed. In answer to this, it need only be said that the Legislature had the power to enact such legislation as it deemed proper in the premises. Its action being supreme, its reason cannot be inquired into by the courts, and it is sufficient to say that the legislative will is a valid reason for its action.

If cattle run at large with the knowledge and consent of their owner, he is guilty of permitting them to run at large. Beattie v. State, 77 Ark. 247, 95 S. W. 163. Under this rule the evidence stated is legally sufficient to warrant a conviction.

The result of our views is that the court erred in directing the jury to find the defendant not guilty. Inasmuch as the punishment by the statute is a fine only, under our practice, the judgment will be reversed, and the cause remanded for a new trial.


source: Caselaw Access Project

license: Public Domain

text:
    West v. Meillmier.
    Opinion delivered December 20, 1926.
    1. Corporations — refund of income tax — right of stockholder.— Where stockholders in a corporation advanced the money to pay the corporation’s income tax, and were not repaid, the refund of such tax was payable to such stockholders, and one who subsequently purchased the interest of one of the stockholders was not entitled to share in the refund, though the sale included debts and demands due the company, and the buyer assumed all debts chargeable against the seller’s interest.
    2. Attorney and client — agreement as to fee. — An agreement by two of the three stockholders in a corporation to pay 50 per cent, of the income tax refund as attorney’s fee is not binding on the third stockholder, against whom only a reasonable fee can be charged.
    3. Attorney and client — reasonable fee. — Fifty per cent, of an income tax refund to a corporation held a reasonable attorney’s fee for recovery thereof, in view of the amount involved and the nature, character and extent of services.

      4. Appeal and error — conflict between decree and bill of exceptions. — There is no conflict between a decree reciting that oral testimony was introduced and a hill of exceptions reciting that there was an agreed statement of facts, since it will be considered that such agreed statement is the oral testimony referred to in the decree.
    5. Stipulations — conclusiveness.—No amount of oral testimony can overturn facts which are undisputed, and which the parties have agreed to be the facts in the case.
    Appeal fr.om Sebastian 'Chancery Court, Greenwood District; J. V. Borland, Chancellor;
    reversed.
    STATEMENT BY THE COURT.
    W. H. Meillmier and the widow and heirs at law of John W. White, deceased, brought this suit in equity against W. E. West to recover their distributive share of $1,773.01 as asset^of the Eoughley Coal Company. West filed an answer, in which he admitted the receipt of the money as a refund by the United States of income taxes of the Eoughley Coal Company, but avers that the money belongs to the original stockholders of said corporation, and asks that the money be distributed to them.
    Abe Eoughley, an original stockholder of said corporation, was allowed to intervene and claim his proportionate share of said fund.
    The case was submitted to the court upon an agreed statement of facts as follows:
    “The Eoughley Coal Company, a corporation, was organized during the summer of 1917. Abe Eoughley, John W. White and W. E. West were the, corporators, each holding a one-third share in the corporation. The capital stock of said corporation was only $400, and the company operated a small mine near Hartford,’Sebastian County, Arkansas, each stockholder performing some part in its operation, for which they respectively drew a salary which practically exhausted the funds of the corporation as they were earned.
    “In the year 1918 the United States Internal Eevenue Department, in checking up the Eoughley Coal Company, made demand upon it for additional income taxes for the year 1917, and, the company having. no funds with which to pay such demands, each of said stockholders advanced out of his own private funds one-third • of such demand, and paid the taxes demanded. Nothing further was done by the stockholders of the company with inference to this amount of income tax so paid. The stockholders never made demand upon the corporation to be reimbursed for such sums so paid, and the corporation never 'at any time repaid to them the amounts so paid.
    “On January 27, 1920, intervener, Abe Roughley, sold his interest in said corporation to W. E. West, who in turn sold the same interest to W. H. Meillmier, either on the same day or shortly thereafter.' In selling his interest to West, Roughley executed a bill of sale which provided that it ‘ shall include all debts, demands or other credits due the said Roughly Coal Company, • whether liquidated or otherwise, and it is understood the purchaser shall assume all debts and other demands against said Roughley Coal Company.’ Nothing’ was said by West or Roughley at the time concerning the income taxes which had been previously paid by such corporation, nor was there any mention made of it by either West or Meillmier when West sold the interest to Meillmier. It was agreed at the trial that neither of them knew at that time that any excessive taxes had been paid by the corporation or by the stockholders for the corporation.
    “After this sale of stock, the stockholders of the corporation were W. H. Meillmier, W. E. West and John W. White, who immediately began to liquidate, selling its tangible property, paying its debts, and this same year (1920) the corporation was dissolved in accordance with the statutes. After the dissolution of the corporation, John W. White died, and his wife and children became his heirs, and are plaintiffs in this action as such.
    “In March, 1923, W. E. West and Abe Roughley were informed by Mr. John W. Philbeck, who was at the time preparing an income tax return for West, that, during the first few years that the income tax was in force, gross errors had been committed in calculating the amount of taxes due, and that they could probably obtain a repayment of some of the past paid taxes of the- Eoughley Coal Company by making application. He offered his services for the purpose of making demand for a refund, making a charge of $25 and his expenses per day for getting up the data and presenting it to the department. This was not satisfactory to Mr. West. He finally agreed to let Philbeck take the matter in hand and work it out and present the claim on a fifty-fifty basis. This agreement was finally made, and Philbeck took a contract, a copy of which is filed as Exhibit A to intervener’s petition.
    “Philbeck, on March 9, 1923, prepared a demand on the United States Treasury Department for such refund, and appended his argument to same. He demanded $1,800-, and, during the following year, 1924, received a refund of $1,773.01. This money came to West as trustee for the Eoughley Coal Company, and Philbeck was paid the sum of $704.16, leaving a balance of $182.34 claimed by Philbeck and unpaid. The plaintiff in this action had no knowledge of the action of West and Eoughley until after the money was received and turned over to West.”
    The chancellor found that the amount of the income tax refunded by the United' States to the Eoughley Coal Company amounted to $1,773.01; that twenty per cent, of this amount should be paid to John W. Philbeck as a reasonable fee for his legal services in recovering said fund; that Abe Eoughley was not entitled to any part of said fund; that the twenty per cent, attorney’s fees allowed Philbeck was a proper charge against the fund, and that, after deducting the same, West should pay one-third of the balance- to W. H. Meillmier and one-third thereof to the widow and heirs-at-law of John W. White, -deceased, as the distributees of his estate. A decree was entered of record in accordance with the findings of the chancellor. To reverse that decree W. E. West and Abe Rougbley have duly prosecuted an appeal to this court.

      Hays, Pridcly & Hays and John W. Goolsby, for appellant.

      A. M. Dobbs, for appellee.
   Hart, J.,

(after stating tbe facts). It is tbe contention of counsel for appellants, West and Roughley, that W. H. Meillmier had no interest in the fund involved in this lawsuit; that Philbeck is entitled to one-half of it, and that the balance should be distributed equally between W. E. West, Abe Roughley and the widow and heirs of John W. White, deceased, as the distributees of his estate.

The undisputed facts show that these parties originally advanced to the Roughley Coal Company the amount of its income tax, which is the basis of the refund to that corporation by the United States of the $1,773.01 involved in this case. In this contention we think counsel are correct.

Counsel for appellee, Meillmier, bases his right to a distributive share of the funds under his contract whereby he acquired the one-third interest of Abe Roughley in the Roughley Coal Company.

The record shows that Roughley sold his stock to West, and West at once transferred the same to Meillmier. The bill of sale provides that it ‘ ‘ shall include all debts, demands or other credits due the said Roughley •Coal Company, whether liquidated or otherwise, and it is understood the purchaser shall assume all debts and other demands against said Roughley Coal Company.”

Counsel for appellee seeks to uphold the decree upon the principles of law decided in Delano v. Butler, 118 U. S. 634, and Bidwell v. P. O. & E. L. Pass. Ry. Co. 114 Pa. 535, 6 A. 729.

In the case first cited, a national bank became insolvent, and the Comptroller of the Currency authorized an increase of the capital stock of the bank in order to enable it to resume business. The stockholders voluntarily paid an assessment for this purpose. The capital stock was increased to an amount equal to' the aggregate sum of the voluntary assessments, and the money so obtained was used by the bauk in the regular course of business. Under these facts the court held that the assessment was a voluntary one, made by the stockholders themselves under authority of law, to increase the capital stock to enable the bank to resume business, and therefore was not a loan of money to the bank.

In the second case cited, the affairs of the corporation were in bad condition. A large part of the track of the company needed repairing, and new station houses were needed. New equipments of cars and horses were also needed. The treasury was empty. To meet the emergency the three persons who owned all the corporate stock voluntarily assessed their stock and applied the money thus raised to the improvement and repairing of the company’s property. This resulted in the enhancement of the value of the corporate property and in the betterment of their stock. It was held that, as a matter of fact, the transaction amounted to a voluntary assessment of their stock, and was not a loan of money by the stockholders to the corporation.

The facts are materially different in the case at bar. The transaction did not result in the increase in value of the property of the corporation or in the betterment of its stock. No new assets accrued to the corporation. The money advanced was not placed in the general assets of the corporation and used by it in due course of business. The money was paid in by the stockholders for a specific purpose, and used for that purpose alone. While the proof is not definite and specific, it is fairly inferable, from the agreed statement of facts, that the three stockholders intended to advance what money was actually needed to pay the income tax of the corporation for the year 1917. They evidently thought that the amount demanded was the amount due the United States. They only intended to advance the amount due to the United States, and there is nothing to show that it was intended that any excess payment should be returned to the corporation and constitute a part of its assets. Rather, the equity of the case is that, if the amount advanced by the stockholders was in excess of the income tax due by the "corporation for the year 1917, the payment of the excess was made either under a sort of compulsion or under mistake of fact. The excess should be returned ratably to the persons who contributed it, and not to the corporation for whose benefit it was paid.

In this connection, it may be stated that neither of the parties to this suit knew of the excess payment of taxes at the time West sold to Meillmier. The equity of the case upon the merits is with the persons who advanced the money with which to pay the income tax of the corporation for the year 1917, and we hold that they are entitled to the excess thereof in equal shares as a loan of money to the corporation.

If it be conceded that the $1,773.01 returned by the United States to the Roughley Coal Company is a debt or demand due said corporation and that Meillmier acquired an undivided one-third interest therein under the terms of the bill of sale, this does not help his case any. The bill of sale likewise makes him liable for all debts and other demands against the Roughley Coal Company. Now the undisputed facts show that the income tax of the Roughley Coal Company was not paid out of its assets, but was paid hy West, White and Roughley out of their individual funds. They each owned one-third of the stock of the corporation, and contributed an equal amount in the payment of the income tax of the corporation. The amount of money so advanced by them was never repaid by the corporation. Hence it is a debt due them by the corporation. The corporation has dissolved and has no other distributive assets than the amount refunded to it by the United States. This fund constitutes its sole assets for the payment of its debts. No other debts are shown to have been owed by the corporation. Hence this sum of money should have been distributed to West, Roughley, and the widow and heirs of the estate of John W. White, deceased, in equal proportion, after deducting the amount which should have been allowed and paid to John Philbeck for recovering the same.

This brings us to a consideration of the proper amount to be allowed Philbeck for his legal services in recovering the fund in question. West and Itoughley made a contract with him whereby he was to receive as a contingent fee fifty per cent, of the amount recovered. They had no authority from the corporation or from the remaining stockholder to make such a contract. Hence White could not be bound by the contract, and his proportionate part of the fund could only be charged with a reasonable attorney’s fee.

There is no testimony in the record to show what would be a reasonable fee. West and Itoughley were entitled to two-thirds of the amount recovered, and the fact that they made a contract with Philbeck to give him fifty per cent, of the amount recovered indicates that they thought this to be a reasonable fee. Then, too, the fact that the corporation had been dissolved, the uncertainty of the recovery, the complex nature of the claim, and the fact that the attorney’s services might be extended over a long period of time, are all elements to be considered in determining whether or not the contract fee of fifty per-cent, of the amount recovered was reasonable. The corporation had its domicile at a great distance from Washington, and the fund was recovered by the exertions of Philbeck. In the absence of any direct and positive evidence as to whether the fee was reasonable, considering the amount involved, the nature, character and extent of the services required, we are of the opinion that a contingent fee of fifty per cent, of the amount to be recovered was not unreasonable, and that such fee should be a charge against the whole fund. It follows that the court erred in the rendition of its decree as set forth in our statement of facts.-

Finally, it is insisted that the decree must be affirmed because the record does not contain all the evidence. In making this contention, counsel for appellees rely upon the principles of law in Weaver-Dowdy Co. v. Brewer, 129 Ark. 193, 195 S. W. 367, to the effect that, where there is a conflict between the recitals of the decree and the bill of exceptions, the record entry must prevail. The decree, after reciting the appearance of all the parties, contains the following:

“And all the parties announcing ready for trial, the trial proceeds upon the pleadings filed' by the parties, exhibits, oral testimony introduced and the agreements of the parties.” The bill of exceptions at the commencement contains the following:
“Thereupon the pleadings in the case, the complaint of plaintiff, the answer of defendant, and interplea of the intervener, were by the respective parties presented to the court, and the cause was submitted to the court on an agreed statement of facts,-as follows.”

At the conclusion of the 'bill of exceptions there is an agreement between the attorneys of the respective parties that it is a true and correct statement of the facts as agreed to in the trial of the case. In the first place, it may be said that, when the recitals of the decree and of the bill of exceptions copied above are considered together, there is no inconsistency between them. Inferentially, at least, it should be considered that the agreed statement of facts is the oral testimony referred to in the decree. This is especially true when we consider that the chancellor filed a written opinion in which the facts are set out substantially as stated in the agreed statement of facts. Then, too, the facts agreed to are' undisputed, and no amount of oral testimony could overturn facts which are undisputed and which the parties, by their agreement, have alleged to be true and to be the facts in the case. Then, too, the facts agreed to settle all the issues raised by the pleadings.

It follows that the decree will be- reversed, and the cause will be remanded with directions to the chancellor to enter a decree in accordance with this opinion.


author: Humphreys, J.

text:
    Robinson v. St. Louis-San Francisco Railway Company.
    Opinion delivered December 20, 1926.
    1. Appeal and error — review of directed verdict. — In reviewing an order directing a verdict for defendant, the evidence is to be viewed most favorably for plaintiff.
    2. Trial — direction of verdict. — Where, in viewing the evidence most favorably for the plaintiff, he is entitled on any theory to recover, it is error to direct a verdict for defendant.
    3. Negligence — attractive nuisance doctrine.- — Evidence in an action by an eight-year-old child for injuries from falling in a pile of burning coal, that the -coal was crusted over, and was situated near a path which the public had used for years, and where children had been accustomed to play, held to make a case for the jury under the attractive nuisance doctrine.
    Appeal from Little River Circuit Court; B. E. Isbell, Judge;
    reversed.

      Shaver, Shaver & Williams, for appellant. '

      A. P. Steele and A. D. DuLaney and King, Mahaffey (& Wheeler, for appellee.
   Humphreys, J.

This is an appeal from an instructed verdict against appellant, and a consequent judgment dismissing her complaint.

The suit was instituted by her father, as next friend, in the circuit court of Little River County, against appellee, to recover damages for burns received .by her while walking over a pile of slack coal and cinders on its right-of-way near a pathway used by the public in crossing its railroad tracks. The gist of the complaint is that appellee’s employees negligently set fire to the interior of the pile of slack coal, which continued to burn and create a cavity therein, leaving a crust on the outside so thin that the appellant, an eight-year-old child, stepped through it into the fire, and burned her right foot and leg, resulting in temporary injuries and considerable pain and suffering.

In reviewing the testimony in this case to ascertain whether the trial court erred in peremptorily instructing a verdict in favor of appellee and dismissing appellant’s complaint, the governing rule-is to view it in the most favorable light to appellant, and, when viewed in that light, if appellant was entitled to recover, upon any theory under the law, the judgment should be reversed, and the cause remanded for a new trial. Williams v. St. Louis & S. F. Rd. Co., 103 Ark. 401, 147 S. W. 93; Brown v. Holliday, 160 Ark. 560, 254 S. W. 1057.

The undisputed testimony shows that there was a pile of slack coal on the right-of-way near a pathway used by the public in crossing the railroad track in going from one part of Ashdown to another; that the employees of appellee wrecked some old buildings, and piled the unusable lumber therefrom on the coal pile and set fire to it; that it burned for several days, and, during that time, entered the interior of said bed or deposit of coal and continued to burn within, creating a cavity, and leaving a crust on the outside thereof so thin that it was unsafe to walk upon; that appellant, who was eight years old, left the pathway, and, in walking over the pile of slack coal fell through the crust or hull into the burning cavity and burned her foot and leg; that, on account of the burn, she was confined to her bed for about two weeks, and suffered considerable pain.

There is evidence in the record tending to show that, although the pathway across the railroad right-of-way was not intended for the use of the public, the public had used it for many years with the knowledge of appellee, and without any objection on its part other than the posting of two signs, one about 90 feet east and one about 90 feet west of a bridge over a pond in the line of the pathway. The signs read, “Private Property, Keep off.” There is also testimony in the record tending to show that children had been playing in the vicinity of the bridge, pathway and slack-coal pile for a long time.

¥e think the testimony showing that the public had been passing at this place and that children had been playing in this vicinity for years was sufficient to warrant the submission of the issue to the jury of whether appellant was a licensee at the time she received the injury, and, if a licensee, whether the coal pile was a dangerous object, so attractive to children that one of ordinary prudence might expect that a child of the intelligence of appellant might be attracted thereto and injured. In other words, that there is sufficient substantial evidence in the record to support the verdict under the attractive nuisance doctrine, and that the evidence in the case'brings it within the rule announced in Brinkley Car Co. v. Cooper, 70 Ark. 331, 67 S. W. 752, 57 L. R. A. 724. This is the only theory upon which a verdict mig’ht be sustained, so the judgment is reversed, and the cause is remanded for a new trial upon this theory and no other.


author: McCulloch, C. J.

text:
    Lewellyn v. Street Improvement District of Russellville.
    Opinion delivered January 10, 1927.
    1. Municipal corporations — improvement district — assessment op annexed territory.- — -A general statute applicable to- the method of assessments in original districts is applicable to assessment proceedings in annexed territory, under Crawford & Moses’ Dig., § 5733.
    2. Municipal corporations — assessment op benefits — -collateral attack. — An action instituted by property owners attacking an assessment of benefits in a street improvement district is collateral where it is instituted more than 30 days after approval of assessments at the hearing on notice pursuant to Crawford & Moses’ Dig., § 5658.
    3. Municipal corporations — validity of assessment on front foot basis. — An assessment of benefits in an improvement district on a front foot basis is not erroneous on its face, on collateral attack.
    4. Municipal corporations — assessment of benefits. — In a col- ' lateral attack upon the assessment of -benefits in an improvement district, it will be presumed that the assessors considered all the elements of enhancement of value or detriment which might result from the improvement.
    Appeal from Pope Chancery Court; W. E. Atkinson, Chancellor;
    affirmed.

      Ward é Caudle, for appellant.

      Hays, Priddy & Rorex, for appellee.
   McCulloch, C. J.

Appellants are the owners of real property constituting a part of the territory annexed to Street Improvement District No. 5 of Russellville, and they instituted this action against the commissioners of the district, attacking the assessment of benefits. They also challenged the legality of the annexation proceedings, but have abandoned that portion of the controversy and confine themselves' to an attack on the assessments.

Street Improvement District No. 5 was organized as a municipal improvement district under general statutes (Crawford & Moses’ Digest, § 5656 et seq.), and the territory involved in this litigation was also annexed under the general statute (Crawford & Moses’ Digest, § 5733), which provides that, after the passage of the ordinance annexing the territory, the commissioners of the original district “shall make the assessment for said improvement on the territory annexed under the provisions of this act on the same basis as if said territory was included in the original district.”

We have held that the general statute applicable to the method of assessments in original districts is applicable to assessment proceedings concerning annexed territory. Poe v. Street Improvement District, 159 Ark. 569, 252 S. W. 616. The assessment of benefits in the annexed territory was duly made and notice of the date of hearing given, pursuant to statute. Crawford & Moses’ Digest, § 5658. This action was instituted by appellants more than thirty days after the approval of the assessments, therefore the attack upon the validity of the assessments is collateral.

The contention of appellants is that the assessments are void because made on front-foot basis. This does not necessarily condemn the assessments, even on a direct attack, for such a basis of assessments may coincide with the actual benefits. In a direct attack upon the validity of assessments, it becomes a question of proof whether or not the assessments are correct, but in a collateral attack we must indulge the presumption that the assessors considered all tlie elements of enhancement of value or detriment which .might result from the improvement, and the court is not at liberty to disturb the finding of the assessors unless the assessment is demonstrably erroneous on its face.

Decree affirmed.


author: Wood, J.

text:
    Presley v. Actus Coal Company.
    Opinion delivered January 10, 1927.
    1. Master and servant — personal injuries — jury questions. — In an action for death of an employee, the issues of negligence, contributory negligence and assumption of risk held, Under the evidence, to be issues for the jury.
    2. Appeal and error — conclusiveness of verdict. — The verdict of a jury on the issue of fact, on which there was conflicting evidence, is conclusive on appeal.
    3. Trial — instruction ignoring issues. — In an action for the death of an employee, an instruction authorizing the jury to find for the plaintiff if the defendant was negligent, was properly refused where it ignored the defenses of assumed risk and contributory negligence.
    4. Trial — instruction submitting statute. — In an action against a mining company for negligence causing the death of an employee by electrocution, an instruction giving in charge § § 7145, 7146, of Crawford & Moses’ Digest, without setting out such sections or explaining them in connection with the facts, was properly refused.
    5. Master and servant — instruction as to assumed risk. — In an action against a coal mining company for the negligently caused death of an employee, an instruction that deceased assumed the risk if he departed from the line of duty to fix an electric light globe or wire, held proper, in view of the evidence.
    6. Appeal and error. — necessity of motion for new trial.— Refusal of requested instruction will not be considered on appeal where it was not made a ground of the motion for new trial.
    7. Master and servant — negligence—instruction.—In an action for the death of an employee, an instruction that, if the death could have been due to either of two causes, only one of which involved negligence on defendant’s part, the jury should return a verdict for defendant, was not open to a general objection.

      8. Master and servant — negligence—instruction.—In an action for the death of an employee, an instruction that- defendant can not be held liable for the result if deceased came to his death in a manner that could not have been reasonably anticipated or foreseen, was not erroneous. .
    9. Master and servant — negligence—evidence.—In an action for alleged negligence of -a mining company causing electrocution of a miner, it was not error to exclude a question whether more than 110 voltage was necessary for ordinary lighting purposes, where it was not alleged that the light wire carried an excessive and dangerous current.
    Appeal from -Sebastian Circuit Court, Greenwood District; John E. Tatum, Judge;
    affirmed.

      I. S. Simmons, U. G. May and O. R. Smith, for appellant.

      Pryor, Miles & Pryor, for appellee; Geo. W. Johnson and T. D. Wynne, of counsel.
   Wood, J.

This is an action by the administrator of the estate of F. S. Bratcher, deceased, against the Actus Coal Company, to recover damages for the benefit of the estafe and next of kin of F. O. Bratcher. For his cause of action the plaintiff alleged that the defendant is an Arkansas corporation engaged in the mining of coal; that Bratcher was an employee of the defendant; that, acting under the orders and directions of its agents and servants, Bratcher was driving a mule pulling coal from the rooms in the mine out to the parting, where the cars were picked up and carried to the top of the mine by electric power; “that the defendant, its agents and servants in authority, negligently and carelessly failed to furnish Bratcher a reasonably safe place in which to work, in that it negligently and carelessly failed to furnish and keep in repair a suitable and proper transformer to reduce the current of electricity to proper voltage on light wire and to keep a switch at or near said parting in a known and convenient place, so that' electric power could be turned off; that the defendant negligently and carelessly failed to keep said wire on said parting, which wire furnished electricity for said light on said parting, properly insulated and the current properly reduced; that, on the second day of December, 1924, without fault or carelessness on the part of Bratcher, he, while in the discharge of his duty, came in contact with a live wire on said parting, which wire was made alive by reason of insufficient insulation, and which wire carried a very heavy and excessive and unnecessary voltage of electricity, transferring same to the body of Bratcher, seriously and painfully torturing and burning him, from which effect he died, to plaintiff’s damage .for the benefit of the estate in the sum of $25,000, and to plaintiff’s damage for the benefit of Bratcher’s wife and minor child in the sum of $34,500. Plaintiff therefore prayed judgment in the aggregate sum of $59,500.

The plaintiff alleged that Bratcher died intestate, leaving a widow and minor son, and that plaintiff was the duly appointed administrator of Bratcher’s estate.

In the answer of the defendant all the material allegations of the complaint are denied, and, for affirmative defenses, the defendant sets up that Bratcher had assumed the risk and was guilty of contributory negligence. The answer admits that the defendant is a corporation and that plaintiff was the duly appointed and acting administrator of the estate of Bratcher, deceased.

The undisputed testimony shows that Bratcher was killed while working in a coal mine operated, by the defendant on December 2, 1924. He was killed by coming in contact with a live electrinlight wire which carried two hundred and fifty volts of electricity.

John Elliott, one of the witnesses for the plaintiff, testified in substance that he assisted in putting up the wire, which was new when installed, and which had been in use three months at the time of Bratcher’s injury. At the time it was installed it was properly insulated. He had not recently inspected it. He did not see Bratcher until he was dead. He had to go 600 feet from the place where Bratcher was killed to turn off the current. • The current could have been turned off instantly if a switch had been at the No. 3 parting, the accident occurring on the main slope. Bratcher must have had his fingers a-hold of the light socket, as the globe was broken in some manner. There was no switch on the main wire, where the light wire turned off from it. Bratcher was lying on the track, both hands and the light bulb under him. The light bulb was in the socket that morning, but was burned out.

Gene Newman was with Bratcher when witness took Bratcher loose from the wire. The wire came from the main wire around Bratcher’s back and under him. Witness was about five minutes getting to him after he received information that he was injured. Bratcher was about five or six feet high. He might have touched the wire. It was away from the track he had crossed to pull the coal from the parting. Bratcher and Gene Newman worked together. Bratcher had to pull past the place to get to the parting, but did not have to go under it. Bratcher was supposed to be at the parting at 7:30 a. m., and he was killed at 2 p. m., after he had made more than a dozen trips back and forth from the parting. The mules turned in about five feet of the light or near, at times. On other occasions they turned about ten feet away. In the morning Bratcher would have to go under the light with the mules. Witness did not know how the wire happened to be down. The globe was in the socket that morning. Witness found the socket with the outside gone and the inside intact.

Gene Newman was the only eye witness to the injury. He testified that Bratcher hollered out, .saying, “Knock me loose.” Witness looked, and.Bratcher’s hands were up a-hold of the wire two feet from the light globe. Witness knocked the wire down, and Bratcher fell with both hands under him, across the track, with the wire wrapped around his body. The closest switch was 200 feet. away. Elliott turned off the current from five' to eight minutes after Bratcher was struck. Miners had to pass under this light and wire in a stooped position.

Sam Settles testified that he was an electrician. A wire properly insulated, according to his testimony, carrying 250 volts, would not electrocute a person coming in contact with it. If Bratcher came in contact with the wire and was electrocuted, the insulation was not proper. The power could be cut off instantly with a switch. If Bratcher was electrocuted, he stuck to the wire because the insulation was not proper. Two hundred and fifty volts passing over a properly insulated wire would not electrocute a person and would not fasten a person taking hold of a light bulb. Witness could not crush with his fingers a bulb of the kind exhibited if it were properly screwed into the socket. If a party broke the globe and got his hands against the small wires, he could not get loose. One hundred and ten volts might kill — had been known to kill.

Roberts testified .that it was customary for the miners to work along under the light. They were right there together any time the empties were on the track. The drivers, in order to get loads out, had to go right under the wire. The workers went back under the wire to get water to drink. They could stoop around the other way and not go under the wire, but it was the usual thing for them to go under the wire. The company had not given Bratcher any orders not to pass under the wire. They had given no instructions that there was any danger lurking around the wire or light bulbs. The ground under the lamp was damp. The light globe had been out a week. Witness saw nothing in Bratcher’s hand. If witness had not known the wire to be there, he would not have seen it in passing under it.

One of the witnesses testified that the men working in the mine turned off from the main entry a short distance from the light. They passed on into the entry under the wife across the parting, the only way they could go. There was testimony tending to show that the light was put where it was for the engine at the hoist and for the convenience of the drivers.

One of the witnesses for the defendant testified that he saw the burns on Bratcher’s hands, and it looked as *if he had caught hold of something. The globe was broken off in the socket at the time the witness saw Bratcher. There were four or five cuts on Bratcher’s hand. Little jagged edges of glass remained in the socket, and witness thought the glass made the cuts. .The wire carrying the light jet had burned out. The little wires would, be charged with electricity. Both of Bratcher’s fingers, his • thumbs, and a spot about his navel, were burned when witness knocked the wire down. Bratcher had hold of it with both fingers. There was a drop about six inches from the wire, the light -bulb being four feet and eight inches from the ground. Witness never saw the wires in contact with Bratcher or in his bands. If one came in contact with the little wires in the socket he would' be shocked.

The mine foreman of the defendant testified to the effect that he saw Bratcher immediately after he was killed. Witness was not' an electrician, but had worked all over the country where they had electricity. Bratcher was lying on his back, dead, when witness saw him. The light bulb hung down six or seven inches below the timber. The wire had ¡been up about three months. Witness saw it every day, and had instructed one of the workmen to put it there. There are wires in the mine which had been there four years, and the insulation was still good. The globe was in the socket about 11 a. m., and the accident occurred between one and two p. m. When they got the wire down, .the globe was gone. Witness saw the burns on Bratcher’s fingers and body. Witness knew positively that the wires were properly insulated and dry. The only way Bratcher could have been killed was that he took hold of the globe, trying to screw it in the socket, and caught hold of the wire, broke the glass, burned and cut himself. He was standing on props, and got off and swung this way, throwing the wire under there, and fell on the wire. It made a short circuit with Ms body, and killed Mm. That is all witness could see that would have killed him. The driver’s duty is to pull coal, and not to handle wires or lights. The wire was safe, dry, properly insulated, and, if Bratcher had attended to his own business, he would not have been hurt.

The plaintiff asked witness Sam Settles, an electrician, the following, question: “Is it necessary, for ordinary lighting purposes, .to have a lamp with more than 110 voltage?” The defendant objected to the question, and the court sustained the objection.

Among other instructions, the plaintiff asked the court to instruct the jury as. follows:

“No. 2. You are instructed that, if you find from the' evidence in this case that defendant had notice of the defective condition of the light bulb and wire in question and failed to use reasonable and ordinary care to repair same, and the deceased came in contact with same and was electrocuted, and plaintiff suffered damages thereby, then your verdict shall be for the plaintiff.”
“No. 6. The court gives you in charge § 7145, Crawford & Moses’ Digest of the Laws of the State of Arkansas, and § 7146, Crawford & Moses’ Digest of the Statutes of Arkansas. ’ ’

In instructions Nos. 8 and 9, granted at the- request of the defendant, the court told the jury, in effect, that if Bratcher, while working in the mine as driver for the defendant, for some unknown reason took hold of the incandescent light globe which was not burning, and that the lighting of said mine or the handling of said globe was not in the line of his employment, and that in so doing Bratcher acted without direction from the officers or agents of the defendant, then Bratcher assumed the risk of handling such light globe, and, if such act caused his death, he could not recover, and the verdict of the jury should be in favor of the defendant.

The appellee’s prayers for instructions numbered 13 and 14 are as follows:

“No. 13. The court instructs the jury that, if you find from the evidence that the death of the deceased was due to one of two causes, one of which could involve negligence on the part of defendant, the other only an incident for which the defendant is not liable, then, under the law, it would be your duty to adopt the theory which would relieve the defendant from any charge of negligence, and therefore it would be your duty to return a verdict for the defendant.
“No. 14. You are instructed that the defendant company cannot be held liable for the result of any act or omission the results of which could not have been reasonably foreseen or anticipated. And in this case, if you find that the deceased came to his death in such a manner as could not have been reasonably anticipated or foreseen by the defendant company, you will find for the defendant.”

The jury returned a verdict in favor of the defendant. Judgment was rendered in defendant’s favor, from which the plaintiff duly prosecutes this appeal.

1. The issues of negligence, contributory negligence and assumption of risk were, under the evidence, issues of fact for the jury. There was testimony to warrant the jury in finding that the appellee had exercised ordinary care to furnish Bratcher a safe place to work. The testimony does riot tend to prove that the particular place where Bratcher was required to “pull” the cars was at all unsafe. Bratcher had gone from the place where he was required to do his work, and could do the same in safety, to the place where there was an electric light globe and wire. It was not his duty to fix the electric light and wires. That was the duty of the electrician. The testimony tended to prove that the workers in the mine, including the drivers of the mules pulling the cars, had carbide lamps on their caps to give them light. The testimony tends to prove that Bratcher was killed by attempting to fix the electric light globe. He had departed from his regular work and his duty to do this. There was testimony to warrant the jury in finding that the electric light wire was properly insulated, and that Bratcher came in contact with the little wires in the socket holding the electric light bulb or globe, when he broke the same in attempting to screw it up or to fix it in some manner, and that his fingers were caughtthat this caused his electrocution. The voltage was sufficient to kill him, as the proof tends to show. The jury might have found that the wire outside of the socket was properly insulated, or they might have found that the wire was not properly insulated. This testimony made it a question of fact as to whether the appellee was negligent in not properly insulating the electric wires, but the verdict of the jury on this issue of fact is conclusive here in favor of the appellee.

2. The court did not err in refusing appellant’s prayer for instruction No. 2. The instruction ignored the affirmative defenses of assumption of risk and contributory negligence, and authorized the jury to find for the plaintiff if they found that the appellee was negligent.

There was no error in refusing appellant’s prayer for instruction No. 6. This instruction does not set out the sections of the statute mentioned in it and does not request an explanation of these statutes making the same applicable to the facts adduced in evidence. This court has held that it is error for the trial court to give statutes without an explanation thereof in connection with the facts, where an explanation was necessary. ,An explanation would have been necessary here. Kansas City, etc., Ry. Co. v. Becker, 63 Ark. 477, 39 S. W. 358.

The court did not err in granting appellee’s prayer fon instructions Nos. 8 and 9. These instructions, in effect, told the jury that Bratcher assumed the risk if he departed from his line of duty in order to fix the electric light globe or wire, and correctly declared the law applicable to the facts which the testimony tended to prove.

"We have not set out and do not comment upon prayers for.instructions numbered 10 and 12, of which the appellant complains in his brief, for the reason that the granting of these prayers is not made a ground of the motion for a new trial.-

Instruction No. 13 was in substantial compliance with the*law as announced by this court in Fort Smith Light & Traction Co. v. Cooper, 170 Ark. 286, 280 S. W. 990, and Denton v. Mammoth Spring Electric Light & Power Co., 105 Ark. 161, 150 S. W. 572. No specific objection was made to the instruction, and it was not inherently erroneous.

Appellee’s'prayer for instruction No. 14 declared the law applicable to the facts in substantial conformity with the rule announced by this court in Pekin Stave Co. v. Ramey, 108 Ark. 488, 158 S. W. 156. The instruction was, in effect, the same as instruction No. 4, which was refused by the trial court in that case and which was by this court, on appeal, approved as a correct declaration of law. Only a general objection was made to the instruction.

3. The court did not err in refusing to'permit the witness Sam 0. Settles to testify that the amount of electricity carried and conducted to the light bulb was excessive and dang'erous. This assignment of error in the motion for a new trial is not in conformity to the record as to the question which was asked the witness in his examination. The question was, “Is it necessary, for ordinary lighting purposes, to have a lamp with more than 110 voltage ? ’ ’ That issue was not presented by the pleadings and was not involved.

The issues were correctly submitted to the jury under the instructions of the court, and there was testimony to support the verdict. We find no error in the record, and the judgment is therefore affirmed.


text:
    St. Louis-San Francisco Railway Company v. Rogers.
    Opinion delivered January 10, 1927.
    1. Master and servant — personal injuries — contributory negligence. — In an action by an employee for injuries received in falling from the raised apron of a locomotive engine, where the testimony showed that there was no negligence in propping up the apron and that a safe place was furnished for his work, it was error to refuse to direct a verdict for defendant.
    2. Master and servant — safe place to work. — It is the master’s duty to exercise ordinary care to -furnish to servants a safe place to work.
    3. Master and servant — negligence—burden of proof. — In an action by an employee for injuries received in the course of his employment, the burden is on the plaintiff to show that the employer was guilty of actionable negligence.
    4. -Master and servant — negligence—what law governs. — In an action by an employee for personal injuries received in another State, the law of that. State governs as to the negligence of the employer and the contributory negligence of the employee.
    5. Master and servant — contributory -negligence. — An employee was guilty of contributory negligence as matter of law where he stepped on the apron of a locomotive engine when it was so insecurely propped that any prudent employee, in exercise of ordinary care, was bound to know and appreciate the danger of doing so.
    Appeal from Randolph Circuit Court; John C. Ashley, Judge;
    reversed.

      E. T. Miller and W. J. Orr, for appellant. Schoonover & Jackson, of counsel.

      Booth & Higginbotham and Pope & Bowers, for appellee.
   Wood, J.

The appellee instituted this action against the appellant for damages for personal injuries. The facts, stated most strongly in appellee’s favor, are substantially as follows: Appellee was an employee of the appellant in its shops at Chaffee, Missouri, on February 11, 1925. He had been working inside the shops or roundhouse about four or -five days before his injury. Appellee was working under Fred Williams, a mechanic, as his helper. The locomotive on which he was working at the time of his injury had been in the roundhouse several days for repairs. These repairs consisted of work on the engine, and also repairs on the tank. To make the repairs on the tank it was necessary to nnconple it from the engine and move it away from same. Williams was testing the superheater of the engine, and, not getting the expected pressure, he sent the appellee into the cab to see if the throttle was open. There are three routes one may take from the front end of a locomotive to the cab: one along the running-board to the engineer’s front window, one along the running-board to the fireman’s window, and the third along the ground to the rear of the engine and thence into the cab. If the engine and tank are coupled together, one entering the cab uses the steps on the tank. If the tank is separated from the engine, as it was in this case, one has to climb into the cab by means of iron hand-hold and rods that extend down the side of the cab. The appellee was on the running-board that runs along the side of the boiler. He went to the door or window of the cab on the right side of the engine, and it was locked from the inside. He then descended from the engine to the ground, and .went back to the cab and caught hold of the iron rods that extended down the side of the cab and pulled himself up into the cab. The appellee had been on engines before that time, two or three times, but had never been on an engine from which the tender was disconnected. They had been working on the engine about thirty minutes at the time of the injury. The appellee had performed this work that he was called upon to do once or twice before, and in the same manner that he performed it at the time he was injured. In order to test the superheater, the throttle to the engine must be opened. The throttle is located in the cab of the engine, along*side the engineer’s seat. It is an appliance which the engineer uses to apply the steam when he is operating the engine. The engineer works it with his left hand while seated in his seat. It is easily operated. The throttle was about as high from the lower deck of the cab as a man’s head. There is a piece of steel, called an apron, attached to the engine by hinges, which covers the space between the engine and the tank when the engine and tank are coupled together. When the tank is separated from the engine, the apron drops down in a vertical position. When the tank and engine are coupled together, lthe loose side of the apron rests on the floor of the tank, which allows it to move when the engine and tank are in motion. When it is necessary to couple the tank to the engine, the apron must be elevated so as to allow the floor of the tank to run under it. The apron makes the floor between the engine and tank continuous when they are connected. The usual and proper method of elevating the apron so that the tank may run under it when coupled to the engine was to support the apron with a square oak stick about 22 ■inches long, having a blunt end and a sharpened end, the blunt end resting on an iron projecting from the engine and the sharpened end fitting into one of the indentations on the under side of the apron. The apron, at the time of the injury, was elevated by this prop in the usual and proper manner. The space between the inner edge of the apron and the fire-box of the engine was twenty-four inches' in width. When the appellee reached the cab on the engineer’s side he found the throttle standing nearly open and extending back over the engineer’s seat. The appellee reached up and took hold of the throttle to see if it was entirely open, and, in doing so, placed himself in a pulling position, putting his left foot back on the apron and his right foot up on a step’ leading to the engineer’s seat. The apron gave way, and precipitated the appellee into the pit, causing the injuries of which he here complains. The mechanic, Fred Williams, under whom the appellee was working, had been upon the cafe a few minutes before the injury, and had pulled open the throttle himself. He went upon the cab from the same point the appellee went upon it. He noticed that the apron had been propped up for thirty minutes or an hour. He didn’t notice when it was first propped up. The apron had been propped up for the purpose of connecting the coal tender. To raise the apron required only about a minute. It is done merely by raising the apron with the left hand and placing the stick under it, as above indicated. When appellee came from the front of the engine to the cab, he was facing the tender or tank, some thirty or forty feet away from the engine. No one was then on the tender or tank, and it was not being brought up to the engine. Appellee did not climb into the engineer’s seat before he moved the throttle. In moving the throttle it was not necessary for the appellee to place either foot on the apron.

The appellee alleged that it was his custom, in the performance of his duty, and a necessary part of his duty, to step back with one foot on the apron which connected the cab or engine with the tender or tank attached to the cab or engine; that, at this particular time, he adopted the usual and customary course in performing his duty; that another one of appellant’s employees had disconnected the tender or tank from the cab or engine, and such employee, in the usual course of his employment, had placed a stick under the apron which is used to connect the engine and tender, and left the apron temporarily propped in a horizontal position, easily thrown down; that the act of raising said apron and propping it took only a very few seconds of time; that the fellow employee propped up the apron, and negligently and carelessly left it so propped for a long and unnecessary period of time; that the appellee did not know that the apron was temporarily propped, and believed that it was in its usual safe condition; that, in performing his duty as an employee of the appellant, in closing the throttle he braced himself and placed his left foot on said apron, and, in doing so, the apron fell, precipitating the appellee into the pit, four or five feet deep. At the time of his injury appellee was 29 years old.

The appellant, in its answer, denied specifically the above allegations of negligence, and set up the affirmative defenses of contributory negligence and assumed risk on the part of the appellee, and also set up that the appellee had voluntarily executed to the appellant a release of all liability, if any, for the injury which he had sustained. In the view we have taken it becomes unnecessary to set forth this alleged release and the testimony concerning its execution. It also becomes unnecessary, in view of the conclusion reached by us, to set out the allegations of the pleadings and the testimony concerning the nature of the appellee’s injuries and the prayers for instructions granted and refused on the issue of the release. At the conclusion of the testimony the appellant moved the court to direct the jury to return a verdict in its favor, which instruction the court refused, to which ruling the appellant duly excepted. From our conclusion on the undisputed facts of the case, it becomes unnecessary to set out the prayers for instructions granted and refused on the issues of negligence, contributory negligence, and assumed risk.

The jury returned a verdict in favor of the appellee in the sum of $2,500. Judgment was rendered in his favor for that sum, from which is this appeal.

1. The court erred in refusing appellant’s prayer for an instruction directing the jury to return a verdict in its favor. The undisputed testimony proves that the appellant was not negligent in having the apron to the engine propped up in the manner disclosed by such testimony. It is shown by the uncontroverted testimony that, when the engine and tender have been uncoupled and separated and it becomes necessary to again couple them, the apron attached to the engine must he elevated and propped up so as to allow the tender or tank to slip under the same and couple to the engine. The apron, at the time of the appellee’s injury, was elevated in order to enable the tender to be coupled thereto, and it was .propped up and supported by a stick in the usual and proper manner. There was therefore no negligence on the part of the appellant in the method used by it in raising the supporting apron. The method used was the proper and usual one. Indeed, the appellee does not allege that the method used by the appellant in elevating and supporting the apron was negligent. The only negligence alleged is that the employee of the appellant left the apron propped up for a long and unnecessary period of time. But this was not negligence on the part of the appellant, for the reason that the appellant owed appellee no duty to leave the apron down or in its vertical position while the engine and tank were uncoupled. While the undisputed testimony shows that it was only necessary to elevate the apron in order to allow the tank to slip under the same to make the coupling, and that this could be done in a minute of time, nevertheless it was not negligence on the part of the appellant to elevate the apron as soon as the engine and tank were uncoupled and to prop the same in the usual and proper manner and to leave the same in that position in order that the tank and engine might be recoupled when it became necessary. The leaving of the apron elevated in this manner, while the engine and tank were undergoing repairs, was not an act of negligence on the part of the appellant. It was the duty of the appellant to exercise ordinary care to furnish the appellee a safe place to work. The leaving of ' the apron elevated in the manner indicated did not render the appellee’s place of work, in opening the throttle for the purpose of testing the superheater, unsafe. The apron was designed as a walkway and covering for the coupling or space over the coupling between the tank and the engine. It was not designed as a place whereon the appellee and the mechanic working about the engine were to stand or walk. There is no testimony in the record tending to prove that this apron had ever been used, with the knowledge of appellant, by any of the employees of the appellant as a place on which to stand or to place their feet when it became necessary to open.the throttle or to do any repair work about the engine. The undisputed evidence shows that it was unnecessary for the appellee to place his foot upon the apron while he was opening or attempting to open the throttle. The place for him to stand or for him to occupy while opening the throttle, which was furnished by the appellant for that purpose, was perfectly safe. The appellee’s own testimony shows that the space between the fire-box and the point where the apron was connected with the cab was about two feet, and his own testimony, and the other undisputed testimony in the record, shows that, in opening or operating the throttle, it was wholly unnecessary for the appellee to place his foot and rest his weight upon the apron. The apron was not elevated and left in the position for that purpose, and the place for appellee to do his work in the proper manner was perfectly safe. If the appellee, in the exercise of ordinary care for his own protection in the performance of his duty, had occupied the place and used the instrumentalities the master had furnished in the manner they were intended to be used, he could not have been injured. The burden was upon the appellee to show that the appellant was guilty of actionable negligence. This he has wholly failed to do.

The case is ruled by the doctrine announced by the Supreme Court of Missouri in Manche v. St. Louis Basket & Box Co., 262 S. W. 1021, as follows: “It is sufficient that defendant was guilty of no actionable negligence, because plaintiff made use of the platform for a purpose for which it was not furnished or intended by defendant and for a purpose not shown to have been customarily made of it with knowledge on the part of defendant.” See also Grattis v. K. C. P. & G. Ry. Co., 153 Mo. 380, 55 S. W. 108, where it is said: “The. master cannot be adjudged guilty of a failure of duty where he furnishes a servant machinery and appliances which are reasonably safe when used in the manner they -are intended to be used, but which may become dangerous if their use is perverted by the servant.” See also Royal v. White Oil Corporation, 160 Ark. 467, 254 S. W. 819.

The undisputed testimony, as we view this record, shows that there was no actionable negligence on the part of the appellant, because, as we have stated, the appellant owed the appellee no duty to keep the apron in a vertical position while the engine and tender were separated, and owed the appellee no duty not to elevate such, apron and to keep it propped in the usual and proper manner for the recoupling of the engine and tender after same had been separated. Appellee’s own testimony and the other undisputed testimony in this record proves conclusively that the proximate cause of appellee’s injury was his own negligence in placing his foot and resting his weight upon the apron when the cars were uncoupled.

2. But if we be mistaken, and if it could be said that there is testimony to justify the inference that appellant was guilty of negligence in not leaving the apron down, in a vertical position, until such time as was necessary to elevate and prop the same for the purpose of immediate recoupling of the tender and engine, nevertheless the appellee, in such case, is not entitled to recover,because the undisputed evidence shows that he was guilty of contributory negligence. As the injury occurred in Missouri, the law of that State governs as to the negligence of the master and the contributory negligence of the servant. St. Louis-San Francisco Ry. Co. v. Bates, 163 Ark. 335, 258 S. W. 992.

In Mathis v. Stockyards Co., 185 Mo. 434, 447, it is said: “But, if the appliance is obviously so dangerous that it cannot 'be safely used even with care or caution, or, as it is sometimes said, if the danger of using it is patent or such as to threaten immediate injury, then the servant is guilty of contributory negligence if he uses it, and the master is not liable, notwithstanding his prior failure of duty. Mere knowledge of the danger in working with the defective instrumentality will not defeat the action unless the danger was so glaring as to threaten immediate injury.”

Now, the undisputed testimony shows that the. mechanic and his helper, the appellee, had been working about the engine for thirty minutes. The apron had been elevated and propped up between a half hour and an hour in the manner indicated by the testimony and the photographs adduced in evidence. While the appellee testified that the position of the apron was the same, as near as he could tell, as when he operated it before, nevertheless the undisputed testimony shows that the tank was disconnected from the engine, and the appellee knew this fact. In the exercise of ordinary care for his own protection in the performance of his duties about the engine, he was bound to know that the apron was not supported by the tank which made it secure as a floor on which to walk, but'that it was only supported by a stick in the center of the apron. The apron was six feet long and two feet wide. The supporting stick was blunt at one end and sharpened at the other, and was loose at both ends, resting temporarily on the iron of the engine at the blunt end and supporting the apron at the sharpened end. The danger or risk of stepping with one foot and resting ■one’s weight, wholly or partially, upon the apron, thus so insecurely supported, was so obvious and' imminent that any prudent employee, in the exercise of ordinary care for his own protection in the performance of his duties, was bound in law to have known and appreciated it. The risk was so glaring that no prudent man would be willing to subject himself to the hazard of doing the work in the manner it was being done by the appellee. See St. L. I. M. & S. Ry. Co. v. Holman, 90 Ark. 555-567.-Such being the fact, under the law of Missouri, as above mentioned, he was .guilty of contributory negligence which bars his recovery.

After carefully considering -the testimony in this record, it occurs to us that the above are the conclusions, and the only conclusions, from the testimony to which all reasonable minds must come. Therefore it is our duty to declare as a matter of law that the appellant is not liable. The judgment is therefore reversed, and, inasmuch as it appears that the cause ha-s been fully developed, the same will be dismissed. It is so ordered.


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    Fenton v. Halliday.
    Opinion delivered January 10, 1927.
    1. Fraudulent' conveyances — voluntary conveyances. — Conveyances made to members of the household and to near relatives of an embarrassed debtor are looked upon with suspicion and scrutinized with care; when voluntary, they are prima facie fraudulent; and when the embarrassment proceeds to financial wreck, they are presumed to be fraudulent as to existing creditors.
    2. Fraudulent conveyances — evidence.—Evidence held not to show that a debtor was insolvent at the time he made a conveyance to his wife, or that his financial embarrassment was such as led to insolvency, so as to justify setting a conveyance by him aside at the suit of creditors.
    3. Fraudulent conveyances — insolvency—evidence.—In a suit to set aside a conveyance of a debtor to his wife in- Jánuary, 1923, when the conveyance was made, was not shown by a nulla bona return of the sheriff in October, 1924.
    4. Equity — remedy at law. — The general rule is that equity will not interfere in aid of the collection of a debt while the remedy at law exists.
    Appeal from Sevier Chancery Court; C. E. Johnson, Chancellor;
    reversed.
    statement by the court.
    On the 23rd day of August, 1924, appellees brought suit in equity against appellants to set aside a conveyance of three town lots executed by appellant, W. 0. Fenton, to his wife, E. A. Fenton, the other appellant.
    The record shows that, on the 27th day of May, 1922, appellees instituted an action in the circuit court against appellant, W. 0. Fenton, to recover the sum of $559.37. Fenton filed an answer, denying liability, and asking for judgment, on his cross-complaint, ag’ainst appellees, who were the plaintiffs in that suit. On August 19, 1924, appellees recovered judgment in the case against W. 0. Fenton in the sum of $437.90, with six per cent-, interest per annum from July 1, 1921.
    At the time that the suit was filed W. 0. Fenton was the owner of lots 2, 3 and 4, block 1, in DeQueen, Sevier County, Arkansas. On November 22,1922, W. 0. Fenton and E. A. Fenton, his wife, gave a mortgage on these lots to H. C. Pride to secure an indebtedness of $1,663.90, evidenced by note of even date. On the 10th day of January, 1923, W. 0. Fenton conveyed said lots to E. A. Fenton, his wife. The consideration recited in the deed was $750. The deed also expressly recites that it is executed subject to a mortgage on the lots to H. C. Pride. On the 20th day of May, 1924, the said W. O. Fenton and E. A. Fenton conveyed said lots to D. 0. Goff. A part of the purchase price owed by Goff for the lots, sufficient to satisfy the claim of appellees, has 'been impounded in this suit.
    Appellees also caused an execution to be issued by the circuit court on the 30th day of August, 1924, in the case of S. R. Halliday and J. R. Knox, who are the appellees herein, against W. 0. Fenton, who is one of the appellants. The sheriff made a return of nulla bona on this execution on October 26, 1924. The proof shows that the three lots in question have, at all times, been worth $8,000, and that they were rented for $80 per month.
    The chancellor found that the conveyance made by W. O. Fenton to E. A. Fenton, his wife, was in fraud of the rights of appellees as his existing creditors, and it was decreed that, appellees recover of E. A. Fenton the sum of $437.90, with interest at the rate of six per cent, per annum from July 1, 1921, and that she be restrained from disposing of the notes given by D. C. Goff for the purchase price of said lots until the decree against her was satisfied in full. The case is here on appeal.

      Abe Collins, for appellant.

      Lake, Lake & Carlton, for appellee.
   Hart, J.,

(after stating the facts). The principle of law applicable to cases of this sort is stated in Wilks v. Vaughan, 73 Ark. 174, 83 S. W. 913, as follows: ‘ ‘ Conveyances made to members of the household and to near relatives of an embarrassed debtor are looked upon with suspicion and scrutinized with care; when voluntary, they are prima facie fraudulent; and, when the embarrassment of the debtor proceeds to financial wreck, they are presumed conclusively fraudulent as to existing creditors.”

The rule as thus stated has been repeatedly quoted and applied by this court according to the particular facts in each case. All of these decisions are cited and many of them reviewed in the opinions and dissenting opinions in Home Life & Accident Co. v. Schichtl, ante, p. 31; and Gavin v. Scott, ante, p. 234.

Counsel for appellees concede that the principles of law above quoted are. settled by the uniform current of our own decisions, but they contend that the facts of this case are, in all essential respects, similar to those in Brady v. Irby, 101 Ark. 573, 142 S. W. 1124, Ann. Cas. 1913E, 1054, and that this case should be ruled by it. We do not agree with counsel in this contention. In that case, the court found the facts to he that, when the voluntary conveyance was made by the husband to his wife, he owed a large amount of existing indebtedness and did not own property sufficient to pay it. Such was the finding of the chancellor, and this court held that his finding was sustained by a preponderance of the evidence. The court further said that the facts presented a case where -a husband, engaged in business and involved in debt resulting in insolvency, made a voluntary transfer of property to his wife. From the testimony, the result of such transfer was to reduce the assets of the husband to such an extent as to delay and hinder his creditors in the collection of their debt, and, under the rule above stated, the conveyance was held to be fraudulent.

There is nothing in the facts as shown in the case at bar to establish that W. 0. Fenton, while heavily in debt and in embarrassed financial condition, made a voluntary conveyance to his wife. It is not a case where the assets of the husband did not greatly exceed the amount of his indebtedness. It was not shown that Fenton was engaged in any speculative venture at the time that the conveyance to his wife was made, and it is not shown that the result of the transfer was to reduce his assets to such an extent as to delay and hinder appellees in the collection 'of their debt.

The transfer from Fenton to his wife was made on the 10th day of January, 1923. It is true that he was indebted to appellees at that time, but the amount claimed by appellees in their suit against him was only $559.37, and they only recovered judgment against him in the sum of $437.90, with six per cent, interest per annum from July 1,1921. The undisputed evidence shows that the property in question was worth $8,000, and rented for $80 per month. The only other indebtedness shown by the record to have been owed by Fenton at that time was his debt to H. C. Pride, which amounted to $1,663.90, and which was secured by a mortgage on the lots in question. For aught that appears to the contrary, at the time the conveyance from Fenton to his wife was made he might have had other property amply sufficient to pay any judgment which appellees might have secured against him in their pending suit. As above stated, the ámount claimed by the plaintiffs in that suit was only a little over $500, and it is not shown that Fenton owed any other debt. When these facts are considered, together with the fact that the property greatly exceeded in value the amount of his debt, we do not think that, it has been established that Fenton was insolvent at the time he made the conveyance to his wife, or that his financial embarrassment was such that it led to his-insolvency.

Again, it is insisted by counsed for appellees that the insolvency of Fenton was shown by the molla bona return of the sheriff. In making this contention reliance is had upon the case of Tidwell v. J. H. Askew & Co., 165 Ark. 57, 262 S. W. 988. We do not think that case supports the contention of. appellees. The general rule is that equity will not interfere in aid of the collection of a debt while a remedy at law exists.

In the Tidwell case the return of nulla bona was held to make out a prima facie case of insolvency sufficient to give a court of equity jurisdiction to set aside the fraudulent conveyance. The nulla bona return showed that the debtor, at that time, had no property, real or personal, upon which a levy might be made. Hence a recourse to equity might be had to cancel any fraudulent incumbrance or transfer of his property which might obstruct the legal remedy by preventing a sale of such property for its full price under execution. In that case, the court said that the facts developed by appellees in the proof showed that appellant, Tidwell, rendered himself insolvent by stripping himself of substantially all of his property except that which was exempt.

No such state of facts is shown hy the record in the present case. In order to bring this case within the facts of the Tidwell case, appellees should have shown that Fenton had no other property subject to execution at the time he ipade the conveyance to his wife. The conveyance to his wife was made on the 10th day of January, 1923. The return of nulla bona was made on the 26th day of October, 1924. Thus it will be seen that the return of nulla bona was made a year and nine months after the conveyance. Proof that Fenton had no property subject to execution on the 26th day of October, 1924, falls short of showing that he did not have property subject to execution on the 10th day of January, 1923.

The result of our views is that appellees failed to prove facts sufficient to bring- the case within the well-established rule of this court above announced. It follows that the decree must be reversed, with directions to dismiss their cause of action.


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    Rainwater v. Wildman.
    Opinion delivered January 10, 1927.
    1. Trusts — right to trace trust funds. — A cestui que trust who can trace trust funds to particular property may assert a right to that property and its proceeds, if they are traceable and are found in the hands of those who can assert no better right thereto.
    2. Trusts — right to follow trust fund. — The mere fact that an insolvent bank owes one for trust funds does not entitle such creditor to a preference, to obtain which he must show that the receiver or person having charge of the assets of the insolvent bank has in his hands some of the trust funds or property purchased by such funds or into which such funds have been changed or invested.
    3. Banks and banking — following trust funds. — One who left notes with a bank for collection is not entitled to a preference over other creditors out of the assets of the bank upon its subsequent insolvency, in the absence of proof that the notes or a fund derived therefrom was in the bank when it went into the hands of the Bank Commissioner.
    Appeal from. Franklin Chancery Court, Ozark District; J. V. B our land, Chancellor;
    reversed.
    STATEMENT BY THE COURT.
    This is a proceeding in equity by Clara Wildman against Loid Rainwater, State Bank Commissioner, and, as such, receiver of the People’s Bank of Ozark, Arkansas, to recover notes belonging to the plaintiff, or the proceeds thereof, or that the plaintiff’s claim be decreed to be a preferred one. The defendant admitted the amount of plaintiff’s claim to be correct, but defended the suit on the ground that, under the facts, the plaintiff’s claim was not entitled to preference over the claims of the general creditors of the insolvent bank.
    According to the evidence of Mrs. Clara Wildman, she had in the People’s Bank in the year 1923 notes the principal of which amounted to $6,100. These notes were placed in an envelope and were left with the bank for collection. Subsequently the cashier of the bank collected these notes and substituted other notes for like amounts in the place of them. After the bank closed its doors she made a demand for the notes or the proceeds thereof. Said notes were not returned to her, and she has not received any part of thb proceeds thereof'.
    According to the testimony of the cashier of the bank, he first took the money of the plaintiff and purchased notes with it. These notes were made payable to her, and were placed in an envelope showing that they were her property. Subsequently these notes were paid, and the cashier invested the proceeds in the purchase of other notes, which were also payable to the plaintiff. When these notes were collected, the cashier of the bank invested the proceeds in various smaller notes which were payable to the order of the People’s Bank. These notes were also placed in an envelope with the plaintiff’s name on it.
    The bank closed its doors on the 19th day of January, 1926, and Loid Rainwater, the State Bank Commissioner, took possession of the property and assets of the bank for the purpose of settling its affairs. The notes which were set apart by the cashier as the property of the plaintiff are not shown to have gone into the hands of the State Bank Commissioner. In other words, the evidence does not disclose what became of these notes. It only shows that an effort was made to find them after the bank closed its doors, but the plaintiff was unable to do so.
    The evidence also reflects that the cashier of the bank was indicted in relation to his connection with the affairs of the bank, but the nature of the indictments is not shown.
    The chancery court found the issues in favor of the plaintiff, and it was decreed that the plaintiff recover from the defendant the amount of her claim and that the same be declared a preferred claim over the general creditors of the insolvent bank. The case is here on appeal.

      Hill <& Fitshugh, for appellant.

      D. L. Ford, for appellee.
   Hart, J.,

(after stating the facts).- It is the settled doctrine in this State that a cestui que trust who can trace trust funds into a particular property may assert .a right to that property and its proceeds, if the proceeds are traceable and are found in the hands of those who can assert no better right thereto.

In Hill v. Miles, 83 Ark. 487, 104 S. W. 199, the court held: ‘ ‘ The mere fact that an insolvent bank owes one for trust funds does not entitle such creditor to a preference, to obtain which he must show that the receiver or person having charge of the assets of the insolvent hank has in his hands some of the trust funds or property purchased by such funds or into which such funds have been changed or invested.”

In Red Bud Realty Company v. South, 96 Ark. 281, 131 S. W. 340, in discussing the subject, the court, said: “But, before such a trust arises, it is essen-. tial that the fund thus wrongfully appropriated and converted be traced to the acquisition of the new species of property or investment upon which it is sought to impress the trust. The misappropriated funds must be traced to and located in the changed form or species of property. It cannot be pursued and located in the general mass of the wrongdoer’s property, because such wrongdoer has incurred indebtedness generally in the acquisition of the general-mass of his property and has subsequently applied the misappropriated funds to the payment of his debts-generally.”

The case of Covin v. Gleason, 105 N. Y. 262, 11 N. E. 506, recognizes the rule and states the reason therefor in a clear and comprehensive way. It is there said:

“It is clear, we think, that, upon an accounting in bankruptcy or insolvency, a trust creditor is not entitled to a preference over general creditors of the insolvent merely on the ground of the nature of his claim; that is, that he .is a trust creditor as distinguished from a general creditor. Ve know of ■ no authority for such contention. The equitable doctrine that, as. between creditors, equality is equity, admits, so far as we know, of no exception founded on the greater supposed sacredness of one debt, or that it arose out of a violation of duty, or that its loss involves greater apparent hardship in one case than another, unless if appears, in addition, that there is some specific recognized equity founded on some agreement, or the relation of the debt to the assigned property, which entitles the claimant, according to equitable principles, to preferential payment. If it appears that trust property specifically belonging to the trust is included in the assets, the court doubtless may • order it to be restored to the trust. So, also, if it appears that trust property has been wrongfully converted by the trustee, and constitutes, although in a changed form, a part of the assets, it would seem to be equitable, and in accordance with equitable principles, that the things into which the trust property días been changed should, if required, be set apart for the trust, or, if separation is impossible, that priority of lien should be adjudged in favor of the trust estate for the value of the trust property or funds, or proceeds of the trust property, entering into and constituting a part of the assets. This rule simply asserts the right of the trust owner to his own property.
. “But it is the general rule, as well in a court of equity as in a court of law, that, in order to follow trust funds and subject them to the operation of the trust, they must be identified. A court of equity, in pursuing the inquiry and in administering relief, is less hampered by technical difficulties than a court of law; and it may be sufficient, to entitle a party to equitable preference in the distribution of a fund in insolvency, that it appears that the fund or property of the insolvent remaining for distribution includes the proceeds of the trust estate, although it may be impossible to point out the precise thing in which the trust fund has been invested, or the precise time when the conversion took place. The authorities require at least this degree of distinctness in the proof before preference can be awarded. ’ ’

It follows that Mrs. Wildman is not entitled to a preference over the other creditors of the insolvent bank out of property or assets to which no part of the trust fund or proceeds thereof is traceable. While courts will go as far as they can in tracing the trust fund, where such fund cannot be traced the equitable right of the cestui que trust to follow it fails.

The facts proved in the case at bar fall short of establishing a preference within the rule above announced. The trust fund was not traced into the assets in the hands of the receiver. While it is clear that the trust fund has been lost by the act of the trustee bank or its cashier, the facts do not show the fund to be specifically in the hands of the trustee or the receiver, nor is it represented by other notes or property into which it has been converted and traced. The trust fund is not shown to have been used by the bank in the purchase of a specific property, which is now in the hands of the receiver, or to have been deposited so that the notes purchased may be traced as derived from the trust fund.

The view most favorable to Mrs. Wildman, under the facts, that could be taken is that the cashier of the bank collected the notes which were in the possession of the bank, for her, and then loaned the proceeds to various other persons in smaller amounts and took their notes therefor. These notes were made payable to the bank and placed in an envelope where the cashier usually kept the notes payable to Mrs. Wildman. The evidence does not show what became of these notes. They are not traced into the hands of the receiver nor identified as being in his possession. They may have been placed by the cashier in the general assets of the bank before it went into the hands of the receiver. The cashier may have collected the notes and used the proceeds for purposes of his own. The proceeds may have been squandered, wasted, or lost by him. It is sufficient to say that the fund is not traced or identified as being in the hands of the receiver as a part of the assets of the insolvent bank.

The result of our'views is that the court should have held that Mrs. Wildman was not entitled to a preference, and it should have allowed her claim as a general creditor of the insolvent bank. It follows that the decree must be reversed, and the cause will be remanded with direction to the chancery court to allow the claim of Mrs. Wildman as a general creditor of the insolvent bank, and for other proceedings in accordance with the principles of equity and not inconsistent with this opinion.