author: Humphreys, J.

text:
    Austeel v. Bridges.
    Opinion delivered October 27, 1930.

      Martin, Wootton $ Martin, for appellant.

      Arthur Cobb, for appellee.
   Humphreys, J.

Appellant, owner of the Yellow Cab Company, institutes this action in the chancery court of Garland County to enjoin appellee, a competitor in the taxicab business, from parking and soliciting taxicab business on the property of the Missouri Pacific Railroad Company, in the city of Hot Springs, Arkansas, alleging that he had an exclusive contract with said railroad company for said privilege and had entered into a bond for the faithful performance of the contract on his part; and further alleging that he had no adequate remedy at law by which to protect and enjoy his privilege.

Appellee filed an answer denying that he had parked his taxicabs and solicited taxicab business on the property of the Missouri Pacific Railroad Company; also denying’ that the Missouri Pacific Railroad Company had authority to grant appellant an exclusive right to park his taxicabs and solicit business on its property, such privilege being a monopoly, against public policy and therefore contrary to law.

The cause was submitted to the chancery court apon the pleadings and evidence introduced by the respective parties which resulted in a dismissal of appellant’s complaint for the want of equity, from which is this appeal.

The contract awarded appellant by the Missouri Pacific Railroad Company was introduced in evidence. The latter part of the third paragraph thereof reads as follows :

“Carrier (Missouri Pacific Railroad Company) also grants to contractor (appellant) the right, exclusive so far as lawful, to solicit in the waiting rooms and upon the passenger station grounds and premises of carrier at junction, passenger and baggage transfer business destined to points in Hot .Springs and vicinity.” * * *

' An ordinance of the city of Plot Springs dated July 7,1914, was also introduced in evidence. Section 1 of the ordinance provided for the closing of portions of Olive Street between Elm and Yalley streets to public travel. Section 2 of the act is as follows:

“The above described portions of Olive and Yalley streets are hereby granted to the St. Louis, Iron Mountain & Southern Railway Company for depot and other railway purposes, which may now or may hereafter be needed by the St. Louis, Iron Mountain & Southern Railway Company.”

The decree rendered by the chancery court of Garland County at its December term, 1926, in the case of Missouri Pacific Railroad Company, plaintiff, v. Leo P. McLaughlin, as city attorney of Hot Springs, Arkansas, V. S. Ledgerwood, as judge of the municipal court of Hot Springs, Arkansas, and Robert A. Jones, as mayor of the city of Hot Springs, Arkansas, defendants, was introduced in evidence, which sustained the right of said railroad company, under the law and ordinance of the city of Hot Springs, Arkansas, to maintain, lay, construct and operate its tracks, side tracks, turnouts and switches across that portion of Orange and Olive streets in said city which lies between Elm and Valley streets, provided said condition iby such construction and occupancy should not materially interfere with the traffic on said streets and use of said streets- by the public.

The undisputed proof in the record reflects that Olive Street, between Elm and Valley streets, was never actually closed but remained open after the passage of said ordinance in 1914 for use by the public and has been continuously used by the public as far east as the railroad track; that part of Olive Street east of the railroad track is open, but not used by either said railroad company or the public on account of its rough condition.

It is also reflected by the undisputed proof that appellee and all other1 owners olf independent taxicabs park their taxicabs and solicit business on what is known as the dead end of Olive-Street, being a space of about sixty by forty feet, which was allotted to them for parking purposes by the municipal authorities of said city, leaving the remainder of Olive Street out to Elm -Street, a space of about one hundred seventy by one hundred forty feet, for use by appellant.

It is also reflected by the undisputed evidence that all passengers debarking from the incoming trains enter Olive Street, and that, if appellee and the other independent owners of taxicabs are denied the use of the dead end of Olive Street to- park their taxicabs and solicit business they would have to park them on Elm Street where passengers do not get -off trains and where they could not solicit any business.

' It is also reflected by the undisputed proof that the dead end of Olive Street is the only part of Olive Street where appellee has parked his taxicabs and solicited business.

Under our view of the interest the Missouri Pacific Railroad -Company, successor to the St. Louis, Iron Mountain & Southern Railway Company, has in Olive Street between Elm and Valley streets it will be unnecessary to determine whether a railroad company may enter into a contract with a taxicab company granting said taxicab company the exclusive right and privilege of parking its cabs on railroad property for the purpose of soliciting and transporting to various parts of the city passengers that debark from its trains at its depots or terminals. Under the ordinance of the city of Hot Springs, relied upon by appellant as a basis for his suit, said railroad company acquired no private ownership in or exclusive control over Olive Street between Elm and Valley streets which it could farm out to taxicab companies, even if permissible under the law to make such exclusive contracts. The only right it acquired therein or thereon under the ordinance in question was for “depot and railway” purposes, which was construed in the G-arland Chancery Court in the case of the Missouri Pacific Railway Company v. McLaughlin et al., supra, and affirmed by this court, to mean that said railroad company might “maintain, lay, construct and operate its tracks, side tracks, turnouts, and switches across Olive Street between Elm and Valley streets in the city of Hot Springs, Arkansas, provided that in doing so it did not materially interfere with the traffic on said streets by the public. Independent of the ruling in the McLaughlin case, we are of the opinion that the ordinance upon which appellant relies as a basis for his suit vests no exclusive rights in said railroad company, as 'successor to the St. Louis, Iron Mountain & Southern Railway Company, to control traffic over and upon Olive Street between Elm and Valley streets, or to interfere with the use of the public thereon and therein.

No error appearing, the decree is affirmed.

Hart, C. J., and Kirby and McHaney, JJ., dissent.

        McLaughlin v. Missouri Pac. R. Co., 175 Ark, 912, 300 S. W. 929.


source: Caselaw Access Project

author: Humphreys, J. McHaney, J.

license: Public Domain

text:
    Kimbrough v. Johnson.
    Opinion delivered October 27, 1930.

      B. W. Huie, Jr., and J. H. Loohadoo, for appellant.

      McElhavmon *& Callaway, for appellee.
   Humphreys, J.

Appellant ¡brought this suit against appellee in the circuit court of Clark County to recover damages in the sum of $5,000' for injuries which he re-ceived by falling in a hole alleged to have been excavated and negligently left open by appellee’s employees when they removed a gasoline tank appellee had theretofore installed by burying same in the street in front of appellee’s store in Hollywood.

Appellee filed an answer denying that his employees negligently left the hole open; and a cross-complaint alleging that appellant was indebted to him in the sum of $99.54 with six per cent, interest from the 20th day of September, 1928, and prayed that appellant’s complaint be dismissed and that he have judgment against him for his debt with six per cent, interest from said date.

The cause was submitted to a jury upon the pleadings, testimony and instructions of the court, resulting in a judgment in favor of appellee on his cross-complaint for $110.50 and in favor of appellant for $114.04 in his action for damages, from which is this appeal.

About tbe only disputed issues of fact reflected by tbe record are whether appellee’s employees protected the hole they dug in the ground in excavating the tank by covering same, and whether appellant was indebted to appellee in any sum for gasoline. The evidence is in conflict upon these two issues.

The undisputed evidence in the record reflects that appellee installed a tank of 550 gallons capacity by burying same in the ground in front of appellant’s store in order that he might sell his products to appellant, who agreed to buy his products and operate the tank. Several months thereafter appellant went out of business and the store was occupied by his son and family as a residence. About a year subsequent thereto appellee, without the knowledge of appellant, in his absence from town, sent his employees out one morning and dug up> the tank. Appellant came back after dark, and he and his family had started over to a neighbor’s house, and as he turned the corner, it'being night and dark, he stepped into the hole and was injured.

Appellant’s first contention for a reversal of the judgment is that the court erroneously amended instruction number one requested by him by adding thereto the following words: “If you believe from the evidence it was the duty of the defendant to fill the hole,” and in giving the instruction as amended over his objections. Ajppellant argues that there was no evidence in the record, tending to show that it was his duty to fill the hole when the tank was excavated, and that the jury should have been told as a matter of law that it was appellee’s duty to do so. We do not think, under appellee’s own testimony, that this issue should have been submitted to the jury. Appellee admitted that his employees excavated’ the tank and does not state that when it was installed appellant assisted in doing so, or that he agreed to assist him in any way when he excavated and removed the tank. Appellee did not testify that there was any'agreement or contract on the part of appellant to fill the hole after he (appellee) removed the tank. Of course, the jury found in favor of appellant, and awarded him damages in the sum of $114.04 for the injury received when he fell in the hole, hut it cannot be said that his cause was not prejudiced by the submission of the issue to the jury of whose duty it was to fill the hole. If the court had instructed the jury that it was appellee’s duty under the law to fill the hole, a greater amount might have been awarded appellant for his injuries. Under the evidence in the case the court should have refused to amend the instruction.

Appellant’s next contention for a reversal of the judgment is that the court erred in refusing to give his requested instruction number 5. This instruction follows § 375 of Crawford & Moses’ Digest, which states, in substance, that every person who shall dig an opening on any unenclosed land shall be required to securely enclose same, or cover same and keep ‘same covered with strong and sufficient covering. This section was to protect animals running at large on enclosed land and not for protection of persons. The court correctly refused to give appellant’s requested instruction number-5.

Appellant’s next contention for a reversal of the judgment is that the court erred in giving instruction number 3 requested by appellee, which is as follows: ‘‘3. You are instructed that contributory negligence is a good and valid defense, and if any is shown by the evidence to exist, however slight, which contributed to the accident, the plaintiff cannot recover.” The instruction was abstract, and should not have been given. There is no evidence in the record tending to show that appellant was guilty of contributory negligence, although pleaded.

Appellant’s -next contention for a reversal of the judgment is that the jury erred in figuring interest at eight per cent, on appellee’s account against appellant ■for gasoline instead of six per cent., and from May 9, 1928, instead of from September 20, 1928, as prayed for in appellee’s complaint.

As the cause must be reversed, and as these alleged errors will likely be corrected on a retrial of the cause, we deem it unnecessary to discuss them.

On account of the errors indicated the judgment is reversed, and the cause is remanded for a new trial.

McHaney, J.

I dissent from the judgment of reversal on the ground that the instructions complained of, even though erroneous, were not prejudicial, for the reason that appellant recovered a judgment. Since the jury found a verdict in his favor, he is in no position to complain of the instructions, as the jury necessarily found that it was not his duty Oto fill the hole and that he was not guilty of contributory negligence. Mr. Justice Kirby joins me in this dissent. We think the judgment should be affirmed.


author: Kirby, J.,

text:
    Winfrey v. Moss.
    Opinion delivered October 27, 1930.

      Partain <& Agee, for appellant.

      C. M. Wofford, for appellee.
   Kirby, J.,

(after stating the facts). Appellant insists for reversal that the court erred in giving certain instructions, especially instruction No. 1, leaving out of the jury’s consideration his contention that the note was owned by the Bank of Dyer at the time of its failure, and the estate was therefore entitled to a set-off against it of any amount due from the bank to the maker of the note.

The undisputed testimony shows, however, that the note was purchased and paid for by appellee Moss, and duly transferred by the bank to him by its cashier on the date indorsed oil the transfer, and also it was shown, and the jury could well have found from the testimony, virtually undisputed, that W. P. Winfrey made a claim for the amount of his certificate of indebtedness against the Bank of Dyer after its failure and was paid in dividends 53 per cent, of the amount of his claim. The direct testimony also disclosed that the note upon which the claim was based was never transferred to nor listed among the assets of the Farmers’ State Bank, successor to the Bank of Dyer. There was no testimony therefore warranting the submission of the question to the jury, and no error was committed in the giving of said instruction No. 1, properly defining the issues. The instructions as a whole submitted the issues fairly to the jury, and its verdict was amply sustained by the evidence.

As already said, the undisputed testimony showed that the note was transferred on the date indorsed thereon for a full consideration paid by him to appellee Moss, and that no payments had ever been made on it by the maker except the one for $200 indorsed thereon. Even if the note had been transferred after it was due, which was not the case, or an unreasonable time after its date as a demand note, it would in no wise’have relieved the maker from its payment. See Moss v. Chitwood, 180 Ark. 600, 22 S. W. (2d) 398.

The note was properly read in evidence, there being no affidavit filed denying the genuineness of the signature thereto, and was prima facie evidence of its execution. Section 4114, G. & M. Digest; Heatkcock v. Brooke, 169 Ark. 73, 272 S. W. 843.

A careful examination of the whole record discloses it free from prejudicial error, and the judment is affirmed.


text:
    Gates v. Flanagin.
    Opinion delivered October 27, 1930.

      McMillan McMillan, for appellant.

      McElhannon <& Callaway, for appellee.
   Kirby, J.,

(after stating the facts). Appellants contend that Flanagin had breached the contract in failing to make payments before removal of the timber from the lands in accordance with its terms, and that the undisputed testimony showed such to be the case, and that the court erred in not directing a verdict in their favor.

It is undisputed that appellee failed to pay for the timber cut before its removal from the land every two weeks in accordance with the terms of the contract, his own letter introduced in evidence admitting that such was the fact and arguing it would be to the advantage of appellants to allow him to continue to perform the contract. He did not contend, however, that he was given permission to proceed after appellants’ agent stopped him from cutting the timber, but only insists that, because of the agreement with the agent about the acceptance of the scale at the mill for timber cut, appellants had waived the provision for the payment of the timber every two weeks and before its removal from the ground.

The burden was upon him, of course, to show that an agent with authority to do so had done some act that would amount to a waiver of performance of this condition by appellants. The only authority claimed for the agent was that expressly given in the written contract made with appellee, and a fair construction of it shows only authority on the part of said agent as attorney in fact to represent appellants under the contract and require all things done which either of appellants could require done if personally present, expressly authorizing him to supervise the cutting of the timber and to cause the cutting and removal to be stopped at any time there might be a breach thereof. It was the duty of appellee, in dealing with Bullock, to ascertain the extent of his authority, a limited one by the terms of the contract appointing him. He was acquainted with all the provisions of the contract and necessarily knew that the agent’s authority could not be extended by any of his declarations or his conduct in the performance of his duties, unless such conduct was shown to be known to the principals, and that they had acquiesced therein by receiving benefits therefrom. It is not even claimed that appellants had acquiesced in any conduct of the agent’s that could be construed as a waiver of the terms of the contract or that they had received benefit therefrom; and he was bound to know the extent of the agent’s .authority created by the written contract to which he was a party, and that he could only insist upon the performance of the contract, that it was without the agent’s authority to waive any of its terms, and the court erred in not so instructing the jury. Korey v. East Ark. Lbr. Co., 181 Ark. 478, 26 S. W. (2d) 896 ; American Agricultural Chemical Co. v. Bond, 177 Ark. 168, 6 S. W. (2d) 2 ; U. S. Bedding Co. v. Andre, 105 Ark. 114, 150 S. W. 413, 41 L. R. A. (N. S.) 1019, Ann. Cas. 1914D, 800 ; Welch y. McKinzey, 66 Ark. 251, 50 S. W. 505 ; American Southern Trust Co. v. McKee, 173 Ark. 147, 293 S. W. 50.

As already stated, the undisputed testimony shows that appellee breached the contract by failure to pay for the timber cut in accordance with its terms, and, having done so, was not entitled, of course, to a recovery of damages for the acts of appellants in denying him the right to proceed further in its performance thereafter, and the court erred in not directing a verdict in appellants’ favor as requested.

The judgment is accordingly reversed, and the cause, appearing to have been fully developed, will be dismissed. It is so ordered.


author: Bjqby, J.

text:
    Fones Brothers Hardware Company v. Mears.
    Opinion delivered October 27, 1930.

      Barber & Henry and Troy W. Lewis, for appellant.

      G. P. George and Pace $ Davis, for appellee.
   Bjqby, J.

This suit was brought in the' common pleas court of Ashley County and judgment recovered against appellee on a verified open account for. goods and merchandise sold and delivered to him. Upon his appeal to the circuit court and trial by jury verdict was returned in favor of appellee, and from the judgment thereon this appeal comes.

After the verdict was rendered appellant immediately filed what it called a motion in arrest of judgment objecting to the rendition of the judgment on the verdict on the ground that one of the jurors, Charley Slocum, was related to appellee. The motion reads as follows:

“Comes the plaintiff and files its motion in'arrest of judgment in above-styled cause, and for Cause states:
“That the court, while qualifying the regular panel of the jury in this cause upon their voir dire, inquired of all the members of the panel if they were related by blood or marriage to either of the parties to this suit by consanguinity or affinity; to which question all answered in the negative with the exception of one Roy Oliver, who replied that he is a third cousin; and the court thereupon ruled that the said juror was qualified, and it was.necessary for the plaintiff to strike said juror and thus exercising one of its challenges upon said juror who was so disqualified.
“That, since submitting this case to the jury and the return of its verdict, it has become known to this plaintiff for the first time that one Charley Slocum, a juror who sat in the trial of the cause and participated in the verdict, and who answered the foregoing voir dire examination of the court in the negative, is related to defendant, C. G-. Hears, in the degree of first cousin, blood relationship, and who is by law disqualified as a juror.
‘ ‘ That by reason of the court qualifying Roy Oliver, it was necessary for plaintiff to exhaust one of its challenges in order • to remove said juror from the jury selected to hear the cause.
“That by reason of Charley Slocum misrepresenting his relationship to the defendant, the jury which heard this cause was legally disqualified to render a verdict.
“Wherefore, plaintiff prays an order from this court in arrest of judgment and setting aside the verdict of the jury in favor of the defendant, and that said cause be immediately reset for trial.”

The motion-was supported by the affidavit of two persons as follows:

“We, W. >S. Allen, J. A. Kilcrease, citizens and residents of Ashley County, Arkansas, state on oath that we are well acquainted both with C. G-. Mears and his parents, and with Charley Slocum and his parents, and that the father of C. G. Mears and the mother of Charley Slocum are brother and sister.
“This January'21,1930.
“W. S. Allen,
“ J. A. Kilcrease. ’ ’

The court overruled the motion and exceptions were saved to the ruling, which was made a ground in the motion for a new trial which the court also denied. The motion and affidavit were not included in the bill of exceptions, but were brought into the record by certiorari.

Appellant insists that the court erred in denying its objection to the rendition of judgment or motion in arrest of judgment, on the verdict because of the disqualificati on of one of the jurors by reason of his being related to appellee within a prohibited degree and in refusing to grant a new trial on that ground. The statute provides:

“No person shall serve as a petit juror who is related to either party to a suit within the fourth degree of consanguinity or affinity * * Acts of 1919, p. 400, C. & M. Digest, § 6334.
“No verdict shall be void or voidable because any of the jurymen failed to possess any of the qualifications required in this chapter; nor shall exceptions be taken to any juryman for that cause after he is taken upon the jury and sworn as a juryman. ’ ’ Section 6343, C. & M. Digest. - • ■

In Durben v. Montgomery, 145 Ark. 368, 224 S. W. 729, this court said:

“We have stated the rule on this subject to be that ‘when objection is -made to a juror after the verdict for the first time, due diligence must be shown by the objecting party,’ and that it then ‘becomes to some extent a matter of discretion with the trial court as to whether or not the verdict shall be set aside; and when there is no fraud intended or wrong done or collusion on the part of the successful party, it is not reversible error for the trial court to refuse to set aside the verdict.’ Gershner v. Scott-Mayer Com. Co., 93 Ark. 301, 124 S. W. 772.”
In. Mo. Pac. Rd. Co. v. Bushey, 180 Ark. 19, 20 S. W. (2d) 614, this court said: “Under statute as well as the practice in this State, it is too late after the rendition of a verdict to raise the ineligibility of a juror to serve, unless it can be shown by the complaining party that diligence was used to ascertain his disqualifications and prevent his serving as a juror. Citing Crawford & Moses’ Digest, § 6343 and cases. In the instant case diligence was not shown. The contention of appellant for reversal of the judgment upon this ground is without merit. ’ ’

Appellee contends that the record does not show any diligence exercised by appellant to discover the relationship of the juror before the rendition of the verdict, the bill of exceptions not disclosing any questions asked by it of the jurors on voir dire, and therefore that no error was committed in overruling the objection to the rendition of the judgment on the verdict and the motion for a new trial on the ground of the relationship of the juror in a prohibited degree to appellee.

It is true that the bill of exceptions does not show any questions asked, either by the court or appellant’s counsel, of the jurors to ascertain whether they were related to either of the parties., and does not in fact show that Charley Slocum was a member of the jury returning the verdict, and also the bill of exceptions does not contain the .so-called motion in arrest o!f judgment with the affidavit disclosing the relationship of the juror to the appellee, the motion and affidavit being brought up by certiorari.

The majority is of the opinion that in the state of the record there was no such showing of due diligence made by the objecting party (the objection being made to the juror after the return of the verdict for the first time) as would require the granting of the motion to refuse to enter judgment on the verdict and refusing to grant the motion for a new trial on the ground of the alleged relationship of the juror to appellee. As heretofore held, it is a matter off discretion of the trial court as to whether the verdict should be set aside when objection is made to a juror after the verdict for the first time, and the majority of the court from the state of the record is not able to say that the court abused its discretion in overruling the motion and refusing to grant a new trial because of the alleged relationship.

The writer dissents from this view which allows a technicality to prevent the setting aside of a verdict rendered by a jury one otf the members of which was related to the defendant in a degree prohibited by law, who failed to disclose such relationship, which was necessarily known to him and the defendant at the time off his examination on voir dire and selection which amounts to a fraud intended or wrong done and collusion on the part of the successful party in the trial. The objection was made immediately after the fact of the relationship of the juror to appellee, of which appellant was unaware at the time of his acceptance on the jury, was discovered.

The judgment is affirmed.


author: Mehaeey, J.

text:
    Beard v. Albritton.
    Opinion delivered October 27, 1930.

      Thomas W. Hardy, for appellant.

      Poivell, Smead <£> Knox, for appellee.
   Mehaeey, J.

The appellees filed a petition with the county board of education of Ouachita County, alleging that they were a majority of the qualified electors residing in School Districts No. 1 and No. 50 of Ouachita County and asking that the boundary lines of said District No. 1 be changed so as to include within said School District Nú. 1 all -of the territory now comprising said School District No. 50; which district adjoins No. 1. Then followed a description of the territory of No. 50 by sections. A plat was attached to the petition and made part of it. This petition was filed on December 2, 1929, and notice of the proposed change on October 31, 1929* more than 30 days before the petition was filed. The petition was signed by J. A. Graston and 104 others. The appellants filed a remonstrance signed Iby J. S. Beard and 21 others. One of the grounds for opposing the change was that the children of the remonstrants would be compelled to go a distance off from 12 to 15 miles to attend school, and it would be virtually denying school facilities to a great many children. It was further alleged that the children would have to cross District No. 61 in order to get to1 the school; that they would have to cross Freeo Creek, which is sometimes impassable. There was no evidence to support these allegations, and these questions are not before the court. It was alleged that a majority of the patrons of School District No. 50 opposed the consolidation. The remonstrants alleged that the notice given was not in compliance with the statute in that it. was not a geographical description of the territory to be embraced in the proposed new district. That there was no geographical description of the territory embraced in District No. 1, and that the petition did not contain a geographical description of the territory to* be created. The county board of education on December 2, 1929, after reciting its finding of facts, made the order changing the boundary so that District No. 1 included all of the territory of both No. 1 and No. 50. Other orders were made with reference to the transfer of funds. After the decision of the board of education, an affidavit and bond for appeal to the circuit court was filed by remonstrants, and in the circuit court a demurrer was filed which was by the court overruled. The f ollowing stipulation was entered into by counsel:

“It is stipulated and agreed between counsel for the parties that the notices of the application to the board of education, a copy of which is contained in the transcript in this case, were posited in the time and manner and in number as required by law. That the petition which was filed with the county board of education herein, a copy of which is included in the transcript herein, is signed by a majority of the qualified electors of the territory affected by the petition and the order of the board of edueátion. That t,he order made by the county board of education, which was appealed from, contemplates that the district formed by the order of the county board of education shall include all of what was formerly School District Number 1 of Ouachita County, Arkansas, and all of School District Number 50, of Ouachita County, Arkansas. That, while said petition does contain a majority of the qualified elector of both of saidiSchool Districts No. 1 and 50, it does not contain a majority of the qualified electors of said School District No. 50. That the agreement herein, to the effect that the notices were given in time and manner and number, as required by law, does not mean, and is not an admission, that the description of property contained therein is according to law.”

The case was tried in circuit court on February 27, and the circuit court after a recital of the facts found by it, ordered that the new School District No. 1 be established and created as ordered by the county board of education consisting of the territory set forth. Motion for new trial was filed, overruled and exceptions saved. This appeal is prosecuted to reverse the judgment of the circuit court.

It is first contended by the “appellants that the notices given did not contain a geographical description of the territory to be embraced in the district. The boundaries of both No. 1 and No. 50 were of course well known and describing them as Districts No. 1 and No. 50, of Ouachita Oounty, Arkansas, would be a geographical description of the territory. The notice and petition as contended by appellant must be in compliance with the statute, but to describe the territory as District No. 1 of Ouachita Oounty, Arkansas, would give all the information to persons entitled to know that a description by sections or by metes and bounds would give, and the purpose of notice of course is to advise persons interested as to the territory affected. If the formation of a new district took a portion of one district or all of one district and part of another, it would of course be necessary to describe the part taken. To say that a part of District No. 50 was taken would be no description at all, and the law requires that there must be a geographical description; but when it is described as District No. 1 or District No. 50, this is a complete description and a geographical description, and the notice and petition would have been valid, and there would have been a substantial compliance with the statute if it had described each district by number only.

"We agr ee with the appellants in their contention that the giving of the notice prescribed by statute was a prerequisite to the exercise of jurisdiction and that a failure to comply with the statute would make the organization invalid, but we do not agree that describing a district as No. 1 or No. 50' is not a geographical description. It is also contended that the petition is defective because it does not contain a geographical description of the territory, 'but what is said with reference to geographical description contained in the notice is applicable to the petition also.

This court, prior to the passage of act 156 of the Acts of 1927, had held that boards of education had no jurisdiction to annex territory comprising a special rural district created by special act. In School District No. 25 v. Pyatt, 172 Ark. 602, 289 S. W. 778, we said: “The only question to be determined is whether the county board of education can change the boundary line of a district created by special act of the Legislature. This court has several times held that a school district is the creature of the Legislature, or of some governmental agency named by the Legislature. This court has said: ‘The Legislature is primarily vested with the power to create school districts, and it may create or abolish a school district, or change the boundaries of those established, (for any reason that may be satisfactory to it. The Legislature may do this without consulting and without obtaining the assent of those persons who reside in the territory affected.’ ” In that case we also said: “Again it has been said repeatedly that, in all cases, the legislative control over the creation and boundaries of school districts is plenary, subject only, however, to the limitation that such action shall not impair the contracts or obligations of such districts. The Legislature has full power, it may organize a district itself, and may do so •without the consent of the inhabitants of the district, or it may authorize the county court or board of education or other governmental agency to form districts and change boundary lines; but, when the Legislature itself creates a district, of course, it cannot be said that it authorizes any governmental agency to change the boundaries of a district so created, and neither the comity board of education nor any other agency would have authority to change the boundaries of a school district created by the Legislature, unless the Legislature expressly authorized such agency to do so-. ’ ’

This court has in a number olf oases held that county boards of education have no authority to change the boundary lines of a school district established by special act of the Legislature. Park v. Rural Special School Dist. No. 26, 173 Ark. 514, 292 S. W. 697 ; School District No. 25 v. Pyatt Special School Dist., 1721 Ark. 602, 289 S. W. 778 ; McCrory Special School Dist. v. Curtis, 174 Ark. 343, 295 S. W. 971.

These cases were all decided prior to the passage of act 156 of the Acts of 1927. In all. of the cases, however, we held that the Legislature had plenary power, that it could authorize the boards of education or the courts to create school districts or that the Legislature itself could create school districts without the consent of the inhabitants of the territory affected. In a case decided after the passage of act 156 olf the Acts of 1927, we reviewed the cases which had been decided before the passage of the act, and, in construing the act, we said: “It gives the board of education authority to change the boundary lines of any district, and we think it necessarily leaves to- the- board of education the manner in which it will do this. That is to say whether it will do it by consolidating school districts or otherwise. ‘Any school district’ is sufficiently broad and comprehensive to include any school district and every school district in the State. ” Manley v. Moon, 177 Ark. 260, 6 S. W. (2d) 281.

The questions argued by appellant have been settled by the above case. It is agreed in this case that the petition contains a majority of the qualified electors of both of said School Districts No. 1 and No. 50, but tbat it does not contain a majority of tbe qualified electors of School District No. 50. Tbe law requires not tbat tbe petition shall contain a majority of each district, but tbat it shall contain a majority of tbe qualified electors residing* in tbe territory to be affected. Of course, in this case tbe territory to be affected is tbe entire territory embraced in No. 1 and No. 50.

“Said statute under which tbe proceeding was instituted was recently interpreted by this court in tbe case of Manley v. Moon, 177 Ark. 260, 6 S. W. (2d) 281, to mean tbat a majority of tbe electors in tbe districts to be affected, and not a majority of tbe electors in each district to be affected, was necessary in order to warrant tbe consolidation of tbe districts embraced in tbe petition. Tbe trial court correctly construed tbe statute to mean that a majority of tbe electors in tbe districts embraced in tbe petition were necessary to obtain an order consolidating same. * * * The county board of education is authorized by said act to form new school districts and to change tbe boundary lines between any school districts theretofore formed when a majority of tbe qualified electors in tbe territory to be affected sign and present a petition to tbe board for tbat purpose.” School Districts 14, 15 and 44 v. County Board of Education, 177 Ark. 734, 7 S. W. (2d) 798.

Judgment of tbe circuit court is. affirmed.


author: Mehaffy, J.

text:
    Blanton v. Missouri Pacific Railroad Company.
    Opinion delivered October 27, 1930.

      McMillan S McMillan, for appellant.

      B. E. Wiley and Henry Donham, for appellee.
   Mehaffy, J.

Tlie appellants -were partners and the owners of certain personal property which was stored in a barn they had leased from Mrs. Ed Anderson. The barn was located near the line of appellee’s railroad track, about 150 yards south of the track. On December 6, 1918, the barn was destroyed by fire, and appellants’ property which was in the barn was destroyed. The fire originated near the railroad track, and it was alleged that it was caused by the operation of appellee’s trains or that it resulted from acts of employees of appellee. The value of the property destroyed was alleged to be $342.70. Suit was brought in the circuit court to recover this amount and also to recover $80 attorney’s fee.

The fire was started sometime after 10 o ’clock in the morning of December 6. Neither of appellants saw the •fire or knew about the bam haying burned until that night after the fire. They were shown, however, where the fire started, and the undisputed proof shows that it started on the north side of the railroad track. Three trains passed the place on December 6, between 8:30 and noon; all of them were oil burners.

George Osborne, who saw the fire, testified that he saw the bam thrée times the day it was burned, at 8:30 a. m., 10:30 a. m. and 12:30 p. m. That the bam was about 100 yards from appellee’s railroad track; that he saw the fire burning on the east side of the railroad track opposite the barn at 10:30 a. m. At that time the fire, had burned over 'about one acre; he testified that it originated ón defendant’s right-of-way, and that about half an hour after the train passed the fire was on the opposite side of the right-of-way from the barn, about 100 yards north of the barn. The fire at that time was spreading towards the south, due to a stiff wind. At 2:30 p. m. the same day, the witness saw the barn in flames. He saw a section crew working on the tracks at a point about a quarter of a mile south of the barn while the bam was burning. The section crew was burning ties in the vicinity that day. He said when he passed that place at 10:30 that the fire had originated and burned a spot of grass along the. right-of-way on the opposite side of the track; the wind was high, and the fire had crossed the tracks and was burning rapidly. The wind was from the north blowing south and carrying the fire towards the bam. The train this witness saw pass was a freight train. He said he took special notice that there were no hunters in the field that day. It was about 2:30 that day that witness saw the section crew burning ties albout a quarter of a mile below the barn.

Finnis Osborne testified that he was at home that day; he lived between Mrs. Anderson’s bam and Okolona, on the opposite side of the railroad track from the bam; his house isi 200 or 300 yards from the railroad track on the north side of the track, and the barn is on the south side. He could see the barn burning from his. house; saw fire burning down by the railroad track about 11 o’clock that morning, and heard a train pass before he saw the fire burning near the track. He said it might have been an hour after the train passed before he saw the fire. It was about half a mile- from his house to the bam.

Appellee’s witnesses testified that three trains passed between 8:30 a. m. and noon; the first two were freight trains and the next was a passenger, which passed Okolona at 11:52, going north. The next train that passed that way was in the afternoon at 2:50. All these trains would pass by the bam.

The engineer on the first freight train that passed said he passed the barn about 8:40; that his engine was an oil burner and in first class condition, and that there was no fire burning as he went by that morning; saw the fire in the evening as he came back. He testified that the burning of oil makes no sparks or cinders. He testified about the length of time he had run an engine and his familiarity with the oiFburning engine, and then was permitted to testify, over the objection of plaintiffs, that it was impossible for an oil-burning engine to throw out sparks, and1 that it was impossible for an oil-burning engine to put out fire as it was running along the road; that it was impossible for fire to get out as the engine was running along.

Another engineer testified to substantially the same facts and testified about it being impossible for an oil burner to set out fire. Tbis testimony was objected to by plaintiffs.

The engineer running’ the other train testified substantially to the same facts as the first two engineers.

The boilermaker testified about his experience in inspecting locomotives and was also permitted to testify, over objection of ■ plaintiffs, that it was not possible for an oil burning engine to put out a fire between the tracks.

Plaintiffs’ witnesses in rebuttal testified to having seen engines with oil burners set out fire near the track.

The jury returned a verdict for' the defendant, and this appeal is prosecuted to reverse the judgment of the circuit court.

The appellants first insist that the case should be reversed because the court refused to give the following instruction: “The jury are instructed that if you believe from the evidence that the plaintiffs’ property was destroyed by fire, and further find that the fire which destroyed the property was caused by fire from any locomotive, engine, machinery, train, car or other thing used upon said railroad or in the operation thereof or which resulted from or was caused by any employee, agent or servant of such defendant railroad company, while such agent or servant was in the discharge of his duty, then you should find for the plaintiff.” The court modified the instruction requested by plaintiffs by striking out after the word car, “or other thing,” and gave the instruction as modified. Appellants insist that they were entitled to the instruction as requested because the statute makes the companies liable for destruction of property which may be caused by fire or result from any locomotive, engine, machinery, train, oar or other thing used, etc. It is insisted that the instruction as requested should be given because no evidence was offered by appellee tending to show that something other than one of these locomotives or trains or box-cars or caboose or the employees thereon, or the motor-car, or the employees thereon, caused this fire. In other words, it is insisted that appellants were entitled to the instruction because there was no proof showing* how the fire originated; no proof, no evidence, that the fire was set out by some agency other than those of the railroad company. If there had been any evidence tending to show that the fire was set out by other things used by the railroad, the instruction would have been proper, but there is no evidence in the record tending to show that the fire was set out by any other thing than those enumerated in the instruction. It is true that one off plaintiffs’ witnesses testified that the section hands were burning ties about a quarter of a mile away, but he said this was at 2:30 in the afternoon, long after the fire had started, which burned the bam, and there is no evidence that any fire originated or spread from the burning of these ties. There was therefore no evidence upon which to base that part of the instruction which the court struck out. It is true that if the evidence had shown that the fire came from some other part of the train, whether from the locomotive, machinery, the train, the car or other thing used upon said railroad, then the defendant would be liable the same as if the fire had been caused by the locomotive. The burden of proof was upon the appellants to show that the fire was set out by the railroad company, or that it resulted from the locomotive, engine, machinery, train, car or other thing, etc., and they were not entitled to an instruction unless there was some evidence upon which to base it. There was no evidence that any other thing than those mentioned by the court in its instruction caused the fire, and the only testimony about other employees is that some section hands about a quarter of a mile away were burning ties, but it was not only a quarter of a mile away and after the fire had already started, but there is no evidence either direct or circumstantial that the fire was set out by burning the ties.

Appellants are not required to prove by direct evidence, but if the evidence either direct or circumstantial showed that the fire was set out as mentioned in instruction 1, the appellee would be liable.

It is next insisted that the court erred in refusing to give the following instruction: “If you find from the evidence that the fire which destroyed plaintiffs’ propr erty originated and spread from a fire which was discovered near defendant’s railroad track shortly after a train had passed, and the proof does not establish some other origin off the fire, the presumption is justified that the fire originated from sparks from the engine of the train.” The court modified this instruction to read as follows: “If you find from the evidence that the fire which destroyed plaintiff’s property originated and spread from a fire which was discovered near defendant’s railroad track shortly after a train had passed, this is a circumstance which may be considered by the .jury in determining how the fire originated,” and gave it as modified.

The instruction, as asked by appellants, was a peremptory instruction to find for appellants. It simply tells the jury that, if they believe from the evidence that the fire which destroyed plaintiffs’ property originated and spread from a fire which was discovered near defendant’s railroad track shortly after a train had passed and the proof does not establish some other origin of the fire, the presumption is justified that the fire originated from sparks from the engine of the train. The undisputed proof shows that the fire was discovered near the railroad track after a train had passed, and there is no proof to establish some other origin. The giving of the instruction as requested therefore would have told the jury in effect that they were justified in finding for the plaintiffs. When the evidence shows that a fire originated and spread near a railroad track after a train passed, and there is no evidence of any other origin of the fire, this court has said an inference is justified that the fire originated from sparks, etc., but this inference is to be drawn by the jury and not by the court. This court has frequently approved instructions which told the jury that, if they found from the evidence, either direct or circumstantial, that the railroad company set out the fire and destroyed the property, the defendant would be liable. 'That means that if the evidence shows that a train passed shortly before a fire started up and there was no other origin of the fire shown in the evidence, this is a circumstance justifying the inference, but this inference must be drawn by the jury and not by the court. But, as this court has said, if all the facts and circumstances in evidence fairly warrant the conclusion that the fire did not originate from some other cause, then the jury may infer that it originated from sparks or flames.

An instruction relating to negligence or acts for which a defendant would be liable should not be given where the evidence did not show that these acts caused the injury. “It may be first said that certain of these instructions should not have been given for the reason that the acts of negligence complained of were not the proximate or -contributing causes of the injury. This is true of the allegations of negligence in regard to the blow-pipe and the oily condition -of the floor. There is no testimony' showing that these conditions, even though their existence constituted negligence, contributed to appellee ’s injury, and the instructions on those subjects were therefore abstract and erroneous.” Garrison Co. v. Lawson, 171 Ark. 1122, 287 S. W. 396 ; Texas Pipe Line Co. v. Johnson, 169 Ark. 235, 275 S. W. 329 ; Mo. Pac. Rd. Co. v. Parker, 167 Ark. 42, 266 S. W. 959 ; Lee County National Bank v. Hughes, 165 Ark. 463, 265 S. W. 50 ; Mo. Pac. Rd. Co. v. Brooks, 165 Ark. 466, 265 S. W. 46.

The court was therefore correct in refusing to give instruction No. 2 as requested. Appellants objected to the giving of instruction No. 2 as modified by the court, but their objection was general, and no specific objection was pointed -out. When the evidence established the fact that a train has passed and shortly thereafter a fire was discovered burning nearby, it is sufficient to justify a finding that the train put out the fire, but it does not justify the court in telling the jury that there is a presumption that it did. The jury are to find from the evidence direct and circumstantial whether the railroad company set out the fire. In the instant case, the undisputed proof shows that the fire originated on the north side of the track. Appellants’ witness Osborne saw the fire early, and he testified it was on the north side of the track. The undisr puted evidence also shows that there was a stiff wind from the north. It is difficult to imagine how with a stiff wind from the north the fire from the engine or train would set out a fire on the north side of the track and bum an acre or more 'before it reached the track, and yet this is what the undisputed proof shows. Some of appellee’s witnesses say that the fire originated in a field. However, Osborne, á witness for appellant, says' it originated on the right-of-way north of the track.

Appellants next contend that the court erred in giving instructions 3, 6 and 7 requested ¡by defendant because they claim that it confined the .jury to the theory that the fire must have been set out by a locomotive. No. 3 was not objected to by the appellants. No. 6 was given over the general objection of appellants. It told the jury that it was not incumbent on the defendant to show how the fire originated, but that the burden was up'on plaintiffs to show that the fire was caused by sparks, flames or cinders from one of defendant’s locomotives, and that the plaintiffs must prove this by a fair preponderance of the evidence before they are entitled to recover, and, unless they had so proved this by competent testimony, the verdict should be for the defendant. In the first place, we think this included all of the things about which there was any testimony tending to show how the fire originated, and, during the progress of the trial, the court said: “Well, as I understand the issue, you are attempting by facts and circumstances to show that this fire was put out — the fire that burned that property, was put out by the operation of the defendant’s railroad train.” Plaintiff’s attorney answered, “Yes, sir.” It is true the defendant would be liable if it set out the fire whether it came ¡from the locomotive or from its caboose or from a burning hot-box or even if one of its employees should throw a lighted match or burning cigarette from the train. That the fire came from the caboose or a burning hot-box or from one of the employees throwing' a lighted match or burning cigarette from the train is mere conjecture. There is no evidence tending'to support this theory. But, if appellants had wanted these things stated in the instruction, it was their duty to call the court’s attention to it and make specific objection to the instruction as given.

We do not think objection to' No. 7 is well taken. Appellants say that it told the jury that the plaintiffs must produce some witness who saw sparks, flame, or cinders go from that locomotive into the grass or weeds and then saw a fire spring up from that, before they could find for the plaintiffs. This is not a proper interpretation of the instruction. They were told that the plaintiffs must establish by a preponderance of the evidence that the fire which damaged his property was caused or set out by the operation of one of defendant’s trains; that does not mean by direct evidence, but if plaintiffs had shown by either direct or circumstantial evidence that the railroad company set out the fire, it would be liable, and the court would doubtless have given an instruction to this effect, if it had been requested to do so. The first instruction given at request of plaintiffs told the jury that, if they believed from the evidence that plaintiff’s property was destroyed by fire, and if they further found that the fire which destroyed the property was caused by fire from any locomotive, engine, machinery, train or car used upon said railroad or in operation thereof or which resulted from or was caused by an employee, agent or servant of such defendant railroad company while such agent or servant was in the discharge of his duty, then they could find for the plaintiffs. The court also told the jury at the request of appellants that, if fire was discovered near defendant’s railroad track shortly after a train had passed, this is a circumstance which may be considered by the jury in determining how the fire originated. The instructions given by the court, when considered as a whole, correctly stated the law to the jury, and we do not think they could have been misled. They might have found a verdict either way.

It is next contended that the court erred in permitting defendant to introduce locomotive engineers and prove by them that the engine was in good working condition, an oil burner, and that it was impossible for the oil burner to set out a fire. The evidence of these witnesses was admissible, and the court admitted it, but at the time stated that it was all a question for the jury from the evidence. The court stated that the witnesses had qualified as experts, and it was a question for the jury as to whether or not their testimony was true. The appellants then put on witnesses to contradict them and showed by these witnesses that oil burners had set out fires. The opinions of expert witnesses are admitted in evidence for the sole purpose of aiding the court or jury to understand questions which inexperienced persons are not likely to decide correctly without such assistance. They are admissible when the witnesses have had special experience and from this experience can testify as to things which the ordinary witness would not know about. A witness may testify as an expert where experience and observation in the special calling of such witness gives him knowledge of the subject in question beyond that of persons of common knowledge. The expert witnesses in this case testified to having had long experience in the operation of engines with oil burners and had acquired knowledge which the ordinary person would not have, and we think their evidence was admissible, but the truth of what they said was to be determined by the jury. Newport Mfg. Co. v. Alton, 130 Ark. 542, 198 S. W. 120'; St. L. I. M. & S. R. Co. v. Dawson, 77 Ark. 434, 92 S. W. 27 ; K. C. Sou. Ry. Co. v. Henrie, 87 Ark. 443, 112 S. W. 967.

The theory of appellants is that the fire was set out by the railroad company by the operation o.f its train, and the evidence on their part is introduced to establish this fact. The theory of appellee is that the train did not set out the fire and undertook to show by expert evidence that a burner like the ones used on the trains passing that day could not set out the fire. These were questions for the jury to determine, and wé think there was sufficient evidence to "sustain the finding of the jury.

The judgment is affirmed.


author: McHaney, J.

text:
    Harris v. Pruett.
    Opinion delivered October 27, 1930.

      G. E. Morris, for appellants.

      G. V. Holloway, for appellees.
   McHaney, J.

In November, 1926, the appellees entered into a three-cornered rental contract as follows: Hutto was to furnish the land and “necessary hay to feed the Pruetts’'stock during the making of the above mentioned crop. ” Pruetts were to pay Hutto, as rent for the land, one-fourth of all cotton and cotton seed, one-third of the com, and ten dollars per acre for the alfalfa land. Perry agreed “to finance the said Pruetts to enable them to make the 1928 crop on said land. To furnish them corn and cotton seed sufficient to plant and make the crop, and sufficient mules to make the crop, and to take, care of them financially for the year of 1928.” It was further agreed that Hutto should waive his landlord’s lien in favor of Perry, until he had collected for all he had furnished the Pruetts in the making of said crop-during the year 1928. Pruetts executed and delivered to Perry a mortgage odl their mnles, tools, wagons, harness and plow gear to secure him for advances made. Perry advanced on open account $561.61, and sold the Pruetts twelve mules valued at $1,280, retaining title to them until they were paid for. In order to get further •financial assistance, the Pruetts, on February 1, 1928, gave a mortgage to the Bank of England on all their crops to be raised that year, and a second mortgage on the property already mortgaged to Perry, which secured five supply notes of $550 each, running from March until July, inclusive, which said notes were indorsed by Perry, and was in performance of his contract to furnish the Pruetts financial assistance. In addition to this, Hutto made advancements to the Pruetts in the sum of $1,290.80. Pruetts also obtained supplies from appellant Harris, in the sum of $446.30, and secured appellant, therefor, by a third mortgage on his mules, tools, etc., and a second mortgage on his crops, which were already incumbered with the landlord’s lien for rents and supplies in favor of Hutto.

Appellant brought this action to subject the property covered by his mortgage to the satisfaction of his debt, claiming that Ms lien was superior to that of Perry and Hutto, and claiming that Perry and Hutto converted to their own use certain bales of cotton upon which appellant had a mortgage. He prayed for the appointment of a receiver to take charge of the property, and for a judgment against the Pruetts in the amount of Ms claim. A receiver was appointed, who took charge of the property of the Pruetts, converted it into cash, and filed his report with the court. Upon a trial of the case, the court found that the Pruetts were indebted to Perry in the sum of $1,280 for twelve mules, $561.61 for supplies advanced and $107.30 balance due to the Bank of England, which was paid by Perry and assigned to him by the bank, together with the lien of its mortgage, making a total of $1,948.91, wMch should be credited with the $1,115, the value of the mules returned to Perry, leaving a balance of $833.91, with interest; that the Pruetts were indebted to Hutto in the sum of $780 and to appellant Harris in the sum of $446.30; that Perry received nine bales of cotton from the Pruetts and their croppers and sold same for $781.46, out of which he paid Hutto $195.36, labor for picking $30.25, to the share-croppers their part, and retained himself $359.41; that the receiver sold $728.26 worth of cotton out o!f which Hutto is entitled to one-fourth as rent, or $182.06; that Perry is entitled to a first lien on the proceeds of the mules, tools, etc., sold by the receiver, by virtue of his mortgage, except one cow covered by appellant’s mortgage; and that Perry is entitled to a first lien on the crop, by reason of the deed of trust given the Bank of England, and which had been assigned to him; that Hutto is entitled to a prior lien for his rents and supplies which amount to $780; and that subject to all prior liens appellant is entitled to a lien on the property for $446.30. A decree was entered in accordance with the court’s findings.

This appeal challenges the correctness of this decree. It is said that Perry should not have paid to the sharecroppers their share of the proceeds of the sale of cotton delivered to him by the Pruetts. The evidence is undisputed that he did do this without knowing that appellant had furnished any supplies and claimed any lien on their share of the crops grown. Under these circumstances we do not think appellant is entitled to a judgment against Perry for the amount paid to share-croppers. The whole matter is quite involved, and, after a careful consideration of all the evidence, we are of the opinion that the court worked out the equities of the parties correctly, and that its findings are not against the preponderance of the evidence.

We find no error, and the decree is affirmed.


text:
    Hazel v. Sharum.
    Opinion delivered October 27, 1930.

      J. G. Waskom, for appellant.

      Cwmingham <& Gumvmgham and G. M. Gibson,,for appellee.
   McHaney, J.

Appellants have correctly stated the case as follows: “On April 1,1922, M. W. Hazel, Wilmer Smith, C. A. Dawson, L. Y. Ritter, N. J. Hazel, O. E. Causey and T. J. Sharum were directors of the First National Bank of Marked Tree, Poinsett County, Arkansas, T. J. Sharum being president and N. J. Hazel, vice president, and C. E. Causey, cashier. A short time prior to said date of April 1, 1922, the bank examiner found that the capital stock of said bank had been impaired as the result of which the persons named executed and delivered to said bank their promissory note in the sum of $30,-304.91, dated April 1, 1922, and payable 60 days thereafter. On October 19, 1922, M. W. Hazel paid on said note the sum of $12,500 and one Gr. H. Williams paid enough in addition thereto to discharge about one-half of said note, leaving about the sum of $15,000 due and payable thereon. In January, 1923, T. J. Sharum, president of the bank and one of the signers of the note, died and J. J. Sharum and Mrs. Myrtle Meriwether, appellees herein, succeeded to the estate and obligations of the said T. J. Sharum. Subsequent to the death of the said T. J. Sharum, the bank had añade several requests upon the appellees to pay the remainder due on said note, and after various negotiations and conferences between appellees and officers of the (bank, appellees, on April 19, 1923, paid the remainder of about $15,000 due on said note and took an assignment thereof signed by N. J. Hazel, cashier. On May 30, 1927, appellees filed this suit against the persons who had signed said note, praying for the recovery of the amount appellees had paid on said note.”

Appellants Bitter and Dawson answered, denying the allegations of the complaint, and, in addition, alleged that the appellees paid the balance due on the note on April 19, 1923', and that they did not bring- their action within three years from that date, and, consequently, the action was barred by the statute of limitations. There was a default decree rendered against Hazel, Smith and Dawson. M. W. Hazel, having been discharged in bankruptcy, the case as to him was dismissed. The court entered a decree against appellants Bitter and Dawson in the sum of $3,302.34 each, with seven per cent, interest per annum.

The only question presented by this appeal is whether the appellees’ cause of action was barred by limitation at the time suit was instituted. Appellants contend that the action is a simple suit for contribution based on an implied obligation, and that the three-year statute (§ 6950, C. & M. Digest) applies. On the other hand, it is the contention of appellees that they had, first, a right of contribution as against the other makers of the note who did not contribute to its payment; and, second, had also the right to be subrogated to all the rights oif the First National Bank of Marked Tree in and to the note which they paid; and that their action is based on the note itself, and is governed by the five-year statute of limitation (§ 6955, C. & M. Digest).

All the signers of the note in question were joint obligors. They were jointly and severally liable to the bank for the whole amount of the note. Each was liable for the whole amount. T. J. Sharum, appellees’ ancestor, during his lifetime, and his estate, after his death, was bound for the full amount. After his death, on April 19, 1923, appellees paid the balance due on the note, $15,000, took an assignment thereof, and took down the valuable collateral deposited by T. J. Sharum to secure the note. This was a payment of an obligation for which the estate of T. J. Sharum was primarily liable. He was liable as a principal and not as a surety, except in the sense that all the signers were liable for their pro rata part of the debt, and that each was surety for the other on their pro rata share of the indebtedness. Having paid the debt to to bank for which their testator, or intestate, was primarily liable, we are of the opinion that the assignment of the note to appellees was ineffectual in preserving to them a right of action based on the note, which the bank had, while the note was in its hands. In other words, that appellees were not subrogated to the rights of the bank to bring a suit on the note against the other joint makers. They had paid an indebtedness that was their own, as it is conceded that they had succeeded to all the estate and obligations of said T. J. Sharum. Having paid an indebtedness for which they were primarily liable, it is difficult to perceive on what principle they could be said to be subrogated to the rights of the bank to maintain an action on the note, and we hold that they were not, except to enforce contribution. Here the appellees, having paid the whole amount of the debt for which all were jointly liable, were entitled to maintain an action for contribution against the other joint makers of the note, not on the note, but on the contract which the law implies, an obligation worked out by courts of equity in order to do exact justice between the parties. This court in Cooper v. Hush, 138 Ark. 602, 212 S. W. 94, said: “The right of action for contribution accrues when one surety pays more than his share of the common liability. In most of the cases it is said that the contract for contribution between sureties is one which the law implies for their mutual protection and indemnity. Nearly all the cases agree, however, that no cause of action arises until payment by one of their common debt, and the statute of limitation begins to' run against an action to enforce contribution at the time of such payment. Woods v. Leland, 1 Metc. (Mass.) 387, and Mentser v. Burlingame (71 Kan. 581) 81 Pac. 196, and case note. Numerous' decisions which we have read are cited in the note and support the principal case.” The three-year statute of limitations was held applicable. The same rule was applied and followed in Pennington v. Karcher, 171 Ark. 828, 286 S. W. 969. See also Lingo v. Swicord, 150 Ark. 384, 234 S. W. 264. We think the principles announced in these cases, especially in Cooper v. Rush and Pennington v. Karcher, are controlling here. It is true that there was no' assignment of the instruments in these cases to the parties plaintiff, but we are of the opinion that this does not alter the situation. When appellees paid the debt on April 19, 1923, the right of action for contribution accrued, and, being an implied obligation, one not in writing, the three-year statute controls, and was barred April 19', 1926. Not having been brought in that time, but more than a year later, appellants’ plea of the statute as a bar to the action should have been sustained. Numerous cases are cited by learned, counsel for appellees to the general effect that when a note shows that the person paying it is a surety only, an assignment of the note to him does not operate as a discharge thereof so as to prevent Trim from realizing on collaterals deposited by the principal debtor with the creditor, or to pursue any remedy of the creditor against the principal. We think these cases have no application to the facts in this case, for Sharum was not a surety merely, but a joint maker, obligor, or principal debtor.

The decree of the chancery court is therefore reversed, and the cause dismissed.


author: Butler, J.

text:
    Rankin v. Mills Novelty Company.
    Opinion delivered October 27, 1930.

      Ben F. Reinberger, for appellant.

      June P. Wooten, for appellee.
   Butler, J.

The appellee is a manufacturer of candied mints and other confections. Appellee also manufactures and leases an automatic vending machine to dealers throughout the country. The mints manufactured by the appellee are designated as “Home'Runs,” which identifies the mints with the machine called “The Baseball Mint Vender.” The machine has across its front a picture of a baseball field with bases and players thereon. The amusement feature consists of three metal discs or reels upon the outer surface of which appear bright colored pictures of baseball players, baseballs, etc., in various combinations, so arranged that when the reels are spun they cause a flare of rapidly moving contrasting colors which attract and interest the attention of the passing public to the machine. The mechanism of the machine is so arranged that a symbolic game of baseball may be played thereon by the operator. The operator deposits a nickel in the machine. He receives in return therefor a standard package of mints, together with a varying number of slugs — from two to twenty. These slugs may then be used by the operator to start the machine in motion for the purpose of playing the game of baseball. The slugs received have no value except for playing the game of baseball on the machine; they cannot be used to play the machine again for candied mints. When a patron makes a “base hit,” the machine issues a metal or playing disc so that the game may be continued until he completes the inning or the game.

Appellee had arranged with several dealers to lease the machines and was preparing to install them in Pulaski County when the appellant, who is a peace officer, advised that he would seize and confiscate all of the machines upon their being installed, and would arrest all persons who set them up in their places of business. Appellee thereupon instituted this action wherein it sought to enjoin the appellant from interfering with its business. The complaint set forth in detail the manner of operating the machine.

In order to constitute a gaming device under the statute, it must be one that is adapted or designed for the purpose of playing any game of chance or at which cmy money or property may he won or lost, and any one who shall bet any money or other valuable thing, or “any representative of any thing that is esteemed of value,” is guilty under § 2634 of Crawford & Moses’ Digest of betting on a gambling device. By § 2640 of the same chapter of the Digest gambling is defined as the betting of any money or any valuable thing on any game of hazard or skill. It is clear from these sections and the entire chapter on gaming that the word “property” as used in § 2630 and the words “valuable thing” mentioned in other sections are used synonymously, and that any valuable thing or “any representative of any thing that is esteemed of value” is “property” within the meaning of § 2630, supra. The machine in question is one which always gives in exchange for a nickel a package of mints, and in addition to the mints a number of “slugs” in varying amounts from two to twenty with which a game may be played, there being an element of chance in the number of slugs obtained for a nickel. Is the right to play a game obtained in the above manner “property” or a “thing of value” within the meaning of our statute prohibiting the setting up of gambling devices and gambling? We think it is. It is a matter -of common knowledge that the maintenance of places having no value in themselves but which are used for amusement only are among the most remunerative kinds of property, such as miniature golf courses and other like means of amusement, and any thing that contributes to the amusement of the public is a thing Off value. The machine under consideration is attractive to children, and the fact that they may sometimes secure the right to play an attractive game — the opportunity varying with the number of slugs first received and upon “base hits” made — induces them to spend their nickels, not for the mints but for the possibility of the game, and is gambling within the meaning of our statute. We therefore conclude that the trial court erred and that its decree should be reversed with directions to dismiss the plaintiff’s complaint. It is so ordered.


author: Per Curiam.

text:
    Jones v. State.
    Opinion delivered October 27, 1930.

      Williams <& Morrow, for appellant.

      Mal L. Norwood, Attorney General, for appellee.
   Per Curiam.

Sentence was pronounced upon the defendants on the 27th day of June, 1930, and the transcript on appeal was filed in this court on August 15, 1930. No brief was filed by the defendants. The State filed its motion to affirm the judgment on October 16, 1930. 'The defendants filed their motion to require the stenographer to transcribe his- notes on October 20, 1930. The stenographer was at all times amenable to the order of the circuit court in the matter of transcribing his notes. The circuit court did not (by reason of the appeal lose its .jurisdiction to compel him to fulfill the ministerial duties of his office in the case. Therefore, the defendants should have taken earlier steps to enforce their rights in the premises; and, having failed to do so, the case is before us as one where there is no bill of exceptions. There is no error apparent from the face of the record, and it follows that the judgment must be affirmed.


author: Hart, C. J.

text:
    Daniels v. State.
    Opinion, delivered November 3, 1930.

      LuTte F. Monroe, for appellant.

      Hal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   Hart, C. J.

John Daniels has prosecuted this appeal to reverse a judgment of conviction against him for the crime of murder in the second degree. The jury trying him has fixed his punishment at twenty-one years in the State penitentiary.

It is first insisted that the judgment should be reversed because the court erred in refusing to grant the defendant’s motion for a change of venue. Under our statute, the allegations for a change of venue in a criminal case must be supported by the affidavits of two credible persons, who are qualified electors, actual residents of the county, and not related to the defendant in any way. The statute, however, does not provide how it shall be shown that the affiants are credible persons. This is left to the court to determine. The court may permit the witnesses themselves to be examined or it may hear the testimony of other witnesses bearing on the credibility of the affiants, but it cannot go into the question of whether the facts sworn were true or false. White v. State, 83 Ark. 36, 102 S. W. 715 ; Strong v. State, 85 Ark. 536, 109 S. W. 536, 14 Ann. Cas. 229 ; Latourette v. State, 91 Ark. 65, 120 S. W. 411 ; Whitehead v. State, 121 Ark. 390, 181 S. W. 154 ; Hale v. State, 146 Ark. 579, 226 S. W. 527 ; Adams v. State, 179 Ark. 1047, 20 S. W. (2d) 130.

Tested by this well-settled rule, it cannot be said that the court abused its discretion in not granting a change of venue. We do not deem it necessary to set out in detail "the examination of the witnesses as to the credibility of the supporting affiants. We deem it sufficient to say that we have carefully examined it and are of the opinion that the court was justified in finding that they did not have knowledge of the conditions of the minds of the inhabitants throughout the entire county, and were not therefore credible persons within the meaning of the statute.

Besides this, the supporting affiants did not comply with the statute by stating that they were qualified electors and not related to the defendant, in any way. Padgett v. State, 171 Ark. 556, 286 S. W. 819 ; and Adams v. State, 179 Ark. 1079, 20 S. W. (2d) 119.

According to the evidence for the State, the defendant shot and killed Mildred Jobe, a young girl, at the home of her parents in Nevada County, Arkansas, on the 8th day of July, 1980'. John Jobe, her father, was a spe-' cial deputy sheriff, and a few days before had arrested a son of John Daniels, and had taken a gun away from him. On the day of the killing, John Daniels approached the house of John Jobe with a single barrel shotgun in his hand. He asked Mrs. Jobe where her husband was. She informed him that he was plowing back of the house. The defendant went on back of the house, and Mrs. Jobe followed him by going through the house. The defendant asked Mrs. Jobe if her husband had arrested his boy. She replied, “Yes, sir.” The defendant then asked her if John Jobe had the gun. She replied, “No, sir, the sheriff has it.” The defendant then said, “They can have my boy, but that is my gun, and John must get it.” When the defendant met John Jobe, he said, “I have got to have my gun. Where is it?” Jobe replied that the sheriff had it. The defendant then commenced cursing, and said that he would job his gun clear through him if he didn’t get it. The defendant put his gun right in Jobe’s stomach, and John Jobe grabbed the gun with both hands. Mildred Jobe came up and grabbed the gun barrel, and the defendant gave her a push with the gun and shot her in the side. She lived about thirty minutes.

The above is the testimony of Mrs. John Jobe, and it was corroborated by Velma Jobe, a sister of the deceased. Both Mrs. Jobe and her daughter testified in addition that John Jobe struck the defendant with his fist before the gun fired. Velma Jobe said that the defendant was doing his best to get the gun on her father to shoot him when her sister grabbed hold of the gun with both hands. The defendant then shoved her so hard that she turned loose of the gun and he then shot her. The defendant pulled the trigger at the time the gun fired.

According to the testimony of the sheriff of Nevada Cbunty, the gun was a hammer gun, that is, it was a gun that you had to pull the hammer back and then pull the trigger to fire it. "When he pulled the hammer back, it would rest until the trigger was pulled.

According to the evidence of the defendant, he did not intend to kill either John Jobe or his daughter. He was not mad at John Jobe and only came there to get his gun. He said the killing was wholly accidental.

Under our rules of practice, the jury is the judge of the credibility of the witnesses and the weight to be given to their testimony. The jury was justified in finding that the defendant was trying to shoot John Jobe, and that the gun was fired and killed John Jobe’s daughter while the defendant was endeavoring to shoot the father. They might have found that the gun was not discharged accidentally after John Jobe struck the defendant with his fist. According to the testimony of the sheriff, the gun was a hammer gun, and it was necessary to pull the hammer back before the trigger could be pulled to fire the gun. The witnesses for the State testified that the defendant was trying to shoot John Jobe when the latter’s daughter came up and grabbed the gun in an effort to save her father. The jury might have' found that the defendant had pulled the hammer back and was ready to fire the gun before John Jobe struck Kim.

If he had killed John Jobe, the jury would have been justified in. finding him guilty of murder in the second degree. The leading characteristic of murder in the second degree is the presence of malice, distinguishing it from manslaughter, and the absence of premeditation and deliberation. The attendant circumstances warranted the jury in finding that the defendant was actuated by malice in trying to shoot John Jobe. When the accused shoots at one man and kills another, malice will be implied as to the latter, and the felonious intent will be transferred. Brooks v. State, 141 Ark. 57, 216 S. W. 705.

It is insisted that the judgment should be reversed because the court erred in its instructions to the jury on murder in the first deg’ree. The jury found the defendant guilty of murder in the second degree, and thus removed all prejudice which might have resulted from erroneous instructions on murder in the first degree. Witham v. State, 149 Ark. 424, 232 S. W. 437 ; Williams v. State, 162 Ark. 285, 258 S. W. 386 ; and Sullivan v. State, 163 Ark. 353, 258 S. W. 980.

It is next insisted that the court erred in giving an instruction to the jury to the effect that if the defendant was attempting to shoot John Jobe with the gun at the time it fired and killed his daughter, then the defendant would stand in the same postition as if he had actually killed John Jobe. There was no error in giving this instruction. It is quite lengthy, and we need not set it out. We deém it sufficient to say that in form it complied with the principles of law decided in Brooks v. State, supra.

Counsel for the defendant insists that there was no testimony upon which to base it, and for that reason it was erroneous. We cannot agree with counsel in this contention. As we have already seen, the gun with which the deceased was killed was a hammer gun, and it was necessary to pull the hammer back before it could be fired by pulling the trigger. The jury might have found that the defendant had pulled the hammer back in an effort to shoot John Jobe, and that he pulled the trigger in an effort to do so and that the daughter of John Jobe was killed when the gun was fired. Although she had turned the gun loose when the defendant pulled the trigger, the jury was warranted in finding that he had already cocked the gun and was trying to kill John Jobe before the latter struck him and before the gun was actually fired. This warranted the jury in finding a verdict against the defendant of murder in the second degree because it might have found from the attendant circumstances that the defendant was actuated by malice at the time he was endeavoring to shoot John Jobe, and shot the latter’s daughter.

We find no prejudicial error in the record, and therefore the judgment will be affirmed.


author: Hart, C. J.,

text:
    Shultz Construction Company v. Crawford County Bank.
    Opinion delivered November 3, 1930.

      Hardin ■& Barton, for appellant.

      C. M. Wofford and Partain $ Agee, for appellee.
   Hart, C. J.,

(after stating the facts). The first contention of appellants, Shultz Construction Company, is that the court erred in not directing a verdict in their favor. In this contention, we think they are correct. It is settled in this State, as well as elsewhere, that one who takes a negotiable note, payable to order, by delivery merely and without written assignment, is not an innocent purchaser and takes subject to all equities between the original parties. Webster v. Carter, 99 Ark. 458, 138 S. W. 1006 ; and Harrison v. Morgan-Curry Co., 115 Ark. 54, 170 S. W. 578.

When the instrument is payable to the order of the payee, indorsement is necessary to constitute the holder of commercial paper a purchaser in the ordinary course of business, and where he receives the paper by assignment or sale instead of indorsement, he takes it subject to all equities. In the application of this principle of commercial law in O. J. Lewis Mercantile Co. v. Harris, 101 Ark. 4, 140 S. W. 981, 37 L. R. A. (N. S.) 544, it was held that the drawee of a draft, payable to order, who takes upon a forged or unauthorized indorsement does so at his peril. The court said that it is well settled that the holder of commercial paper, payable to order, must trace his title through a genuine indorsement, and that the drawee of a draft, payable to order who takes upon a forged or unauthorized indorsement does so at his peril. Again, in the application of the principle in Schaap v. First National Bank, 137 Ark. 251, 208 S. W. 309, it was held that a bank collecting checks payable to plaintiff, which were without authority indorsed by plaintiff’s collecting agent, is liable therefor to plaintiff if he was innocent of fraud or negligence, irrespective of the bank’s good faith in paying the check to another than plaintiff.

This is in recognition of the general rule that a bank or other corporation, or an individual, who has obtained possession of a check upon an unauthorized or forged indorsement of the payee’s signature and who collects the amount of the check from the'drawee or holder of the check is liable for the proceeds thereof to the payee or other owner, notwithstanding they have been paid to the principal, from whom the check was obtained. Allen v. Mendelsohn & Son, 207 Ala. 527, 93 So. 416, 31 A. L. R. 1063 ; Merchants’ Bank v. National Capital Press, 53 App. D. C. 59, 288 Fed. 265, 31 A. L. R. 1066 and case note at 1068 ; and California Stucco Co. v. Marine National Bank, 148 Wash. 341, 268 Pac. 891, 67 A. L. R. 1531.

This rule of commercial law has not been changed by our Negotiable Instruments Act. Section 7796 of Crawford & Moses’ Digest, provides that an'instrument is negotiated when it is transferred from one person to another in such manner as to constitute the transferee the holder thereof. If payable to bearer, it is negotiated by delivery; if payable to order, it is negotiated by the indorsement of the holder completed by delivery. Section 7797 provides that the indorsement must be written on the instrument itself. Section 7825 provides that every holder is deemed prima facie to be a holder in due course; but when it is shown that the title of any person who has negotiated the instrument is defective, the burden is on the holder to prove that he or some other person under whom he claims acquired the title is holder in due course. Section 49 provides .that when the holder of an instrument payable to his order transfers it for value without indorsing it, the transfer vests in the transferee such title as the transferrer had therein, etc.

In the present case, the undisputed evidence shows that the check was cashed by the plaintiff and was not indorsed by the Barnsdall Refining Company to the order of which it was drawn by the Shultz Construction Company. Hall testified in positive terms that he did not indorse it and had no authority to do so. Spradley testified that Hall did not indorse it for the Barnsdall Company, and that he indorsed it for that company. He admitted that Hall told him that he had no authority to indorse it. If Hall did not indorse it and had no authority to do so, he could not confer such authority upon Spradley. The cashier of the bank says that Spradley indorsed it in his presence before he cashed it. He also said that it was purported to ¡be indorsed by the Bamsdall Refining Company, and if the cashier had made a close inspection of that indorsement, he would have seen that it was in the same handwriting as the indorsement of his own name by Spradley. Therefore the undisputed evidence shows that the bank cashed the check with the indorsement of the payee on it by a person who was not authorized to indorse it. In this view of the case, the bank took the check without the indorsement of the payee on it, and thereby took it subject to all equities. The undisputed evidence shows that the Barnsdall Refining Company does not claim that the Shultz Construction Company owes -it anything or that it authorized the check to be drawn in its favor. The Barnsdall Refining Company does not claim that the construction company owes it the amount of the check or that it is entitled to it. Hence there is no liability on the part of the defendant construction company to an action on the check.

This brings us to a consideration of whether there would be any liability on the tickets which are purported to have been given haulers to haul batch on the road work near Charleston in Franklin County, Arkansas. We are of the opinion that the undisputed evidence shows that these checks were not issued by the Shultz Construction Company or by any one for it. Mahoney testified positively that he did not issue any of the checks. He examined them all and said that the signature which purported to be his own was not signed by him nor was any one else authorized to sign them for him. Boy Shultz, one of the defendants, testified that he was on the work at all times and knew in a general way that most of the tickets which had been issued to haulers on the work had been cashed at the branch office of the company at Charleston. Most of the haulers were witnesses in the ease and testified that they cashed their tickets at the office of the company. Boy Shultz also testified that he was familiar with the signature of Mahoney and that the signature in question was not that of Mahoney. Mahoney said that he signed the tickets with an indelible pencil, and that the tickets examined by him had been signed in pen and ink. Thus it will be seen that the undisputed evidence shows that the tickets in question were not issued by the defendants.

The mere fact that the tickets were issued on the blank forms prepared by the defendants does not show that they were issued by authority of the defendants. All banks prepare printed forms to be used in .their business, but these blanks are to be filled out and used by the customer. The mere fact that a company has blank forms for use in its business does not imply that any one who fills them out makes a prima facie case of his right to do so. The undisputed evidence shows that the tickets in question were signed by some one who was not authorized to do so, and it is immaterial, for the purposes of this case, to discuss or consider who that person might have been. It is sufficient to say that the undisputed evidence shows that it was not done by an agent of the Shultz Construction Company or by any one authorized by them to issue them. •

It follows that the judgment must be reversed, and, inasmuch as the case seems to have been fully developed, the complaint will be dismissed here.


author: Smith, J.

text:
    Luten Bridge Company v. Cook.
    Opinion delivered November 3, 1930.

      Andrew I. Roland and Thos. W. Roland, for appellant.

      John L. McClellan, for appellee.
   Smith, J.

Appellant company, a corporation, had a contract with the State Highway, Commission for the construction of a bridge across Ouachita River, the girders of which were constructed of reinforced concrete. In the construction of the girders heavy forms were used to support them until the cement had set, after which the forms were removed. The forms were built of heavy pieces of lumber and weighed from 150 to 250 pounds each. The testimony is conflicting as to the number of men usually employed in removing the forms, but the testimony supports the finding* made by the jury on this issue of fact that the usual number was from four to eight men.

The testimopy clearly establishes the fact that the men were in positions imposing strains upon them while employed in removing the forms, as they were working under the floor of the bridge and about fourteen or eighteen feet above the ground, and they had only the cap sills on which to stand or sit while they were so employed. There was no scaffolding upon which they could stand and work.

On October 24, 1929, appellee, who is a carpenter by trade and thirty years of age, was sent by his foreman to assist two other employees in removing one of these forms. He had not previously performed work of that kind, and was given no instructions as to the manner of removing the forms, except that they were not to be wrecked but were to be taken out whole, so that they might again be used for the same purpose. Appellee and his fellow-servants were furnished wrecldng- bars, to be used in removing the forms. These bars were of different length and thickness. The one selected by appellee was about three feet long, one inch thick, and made of steel.

In order that the form might be held properly in place, it was nailed with 20-penny nails to another form called the “girder form,” and it was the theory of the defendant company that appellee’s injury was caused by attempting to remove the form before he withdrew the nails, but this question of fact was submitted to the .jury under an instruction to the effect that there could be no recovery if this had been the cause of the injury. The verdict of the jury finding for appellee concludes this question of fact.

The testimony on behalf of the appellee was to the effect that all of the nails had been removed which the work required, and that the trouble was that the form was wedged in between the concrete, and appellee and his fellow-servants had pulled the form down until they had no leverage for their bars. When this condition arose, the men used their hands. The company’s foreman testified that the bottoms of the forms came out first, and then the men prized straight down, but there was testimony, as has been stated, that the forms upon which appellee was working when he was injured had been pulled down to a point where there was no longer a fulcrum to afford leverage for pulling down with the bars. Upon this point appellee testified as follows: “We all prized -with our1 wrecking bars, and we couldn’t get it out; so that the other two men were prying, and we got it open enough so I could get my arm in there, and I said, ‘Just hold and I believe I can do more with my shoulder than I can with my wrecking bar.’ So they used their wrecking bars, and I set one foot against the second girder and one on the cap and .gave a surge against it to pull out, but I didn’t get the form out at that time, only I hurt myself. Three men couldn’t get it out without doing all that straining.”

Appellee was ruptured, and no contention is made that the judgment returned in his favor, from which is this appeal, is excessive.

Liability on the part of the master, the bridge company, is predicated upon the proposition that appellee was directed to perform a service, which was made dangerous by reason of not having been furnished sufficient help, and that the work could have been performed safely, had sufficient help been supplied.

We have stated the testimony in the light moist favorable to appellee, as we are required to do in testing its legal sufficiency, but, when thus viewed, it appears to us that appellee must be held, as a matter of law, to have assumed the risk of his injury. He did not act in an emergency. The case is not one where the form was about to fall and be damaged, or injure appellee or one of his fellow-servants unless he attempted to support it. In fact, he sustained his injury in an unsuccessful attempt to. remove the form. To use his own expression, he “surged” against the form with a force su great that he ruptured himself. No one could know better than he what force might safely be applied, and the danger of injuring himself if he overtaxed his strength was an obvious one, the risk of which he must be held to have assumed.

Moreover, the undisputed testimony shows that, even after appellee was injured, the same three men continued their efforts to. remove the form, .and by resorting to first one expedient and then another they succeeded in doing so without further injury to any one.

Under the facts stated, we think there was no liability in this case, and that a verdict should have been directed for the defendant. It appears, however, that appellee had sustained two separate injuries during the course of his employment, and that he brought separate suits, which were consolidated and- tried together, but separate verdicts were returned in his favor in each case, and while the entire record of the trial of both cases is before us, we are asked to reverse the judgment only in the case which we have discussed. This will be done, and, as it appears to have, been fully developed, it will be dismissed. The judgment in the other case will be affirmed.