author: Smith, J. Mjehafpv, J.,

text:
    Coca Cola Bottling Company v. Shipp.
    Opinion delivered May 23, 1927.
    1. Municipal corporations — negligence in parking truck without lights. — In an action for damages in an automobile col- . lision, evidence held as support of finding in effect that the owner of a motor truck was negligent in parking it at night without lights at the side of the street.
    2. Appeal and error — conclusiveness op verdict. — In an action for damages in an automobile collision, where the jury were instructed that, if plaintiff was guilty of contributory negligence, he could not recover, and the jury found in favor of the plaintiff, it will he assumed on appeal that they found that the plaintiff was not guilty of contributory negligence.
    3. Negligence — contributory negligence. — Plaintiff cannot recover for an injury which he would not have sustained, had he not himself been negligent.
    4. Municipal corporations' — contributory negligence in driving automobile. — One who drives an automoble at night too fast to stop within the range of his own lights in case of a collision is not guilty of contributory negligence as matter of law, but each case must be considered in the light of its particular facts and circumstances, the test being what an ordinarily prudent person would have done under circumstances ’as they then appeared to exist:
    5. Municipal corporations — negligence and contributory negligence as jury questions.- — In an action for damages in an automobile collision whether the driver, going too fast to stop within the range of his own lights, was guilty of contributory negligence, and whether defendant parking a motor truck on the side of the street at night without lights was guilty of negligence, held under the evidence to be questions for the jury.
    6. Negligence — questions por jury. — Wherever evidence is such that fair-minded men might honestly differ about negligence or contributory negligence, .such questions are for the jury and not for the court. '
    7. Municipal corporations — automobile collision — admission of ordinance in evidence. — In an action for damages in a collision with a motor truck parked at night without lights at the side of the street, the admission in evidence of a city ordinance relating to lights on motor vehicles, which could not aid the jury in determination of the issues and instructions referring thereto, was erroneous, in view of the fact that the ordinance did not impose on the owner of the truck any additional duties relating to the issues in the case, and did not aid the jury.
    8. Negligence — definition. — Negligence is doing something a person of ordinary prudence would not do, or failure to do something that persons of ordinary prudence would do, under the circumstances.
    9. Evidence — irrelevancy. — All facts are admissible in evidence which afford reasonable inferences or throw any light on the matter contested, but circumstances having no direct connection with the case, which are remote, collateral, or irrelevant, are not admissible.
    Appeal from Monroe Circuit Court; George W. Clarli, Judge;
    reversed.

      Roscoe R. Lynn and June P. Wooten, for appellant.

      Rogle & Sharp, Carl E. Bailey and Sam T. & Tom Poe, for appellee.
   Smith, J.

Appellee is a traveling salesman, selling oil and gas in the vicinity of Little Rock. He took orders for Ms wares, and in some cases made deliveries, in doing which he drove a Ford roadster. On August 18, 1925, he had been to Carlisle and Lonoke, in which last named town he arrived about 10:30 p. m., "where he remained, eating supper until about midnight, after which he started to Little Rock, his home and headquarters. In doing this if was necessary for him to drive through the city of North Little Rock, where he arrived shortly after 1 a. m. He reached East Third Street in that city, which is shown to be one of the city’s largely used streets, especially at that season of the year, when many persons went to the bathing beach at Willow Beach, and who,, in returning, drove down that street. At the intersection of East Third and Olive Streets, in the city of North Little Rock,, there is a large concrete post, on the top of which a red light was burning, and on the northeast corner of Third Street was an electric -light, set upon an arm which extended over the corner of the streets. There is a conflict in the testimony as to the size of the light and the area it illuminated, but the undisputed testimony shows that it was a part of the city’s lighting system.

About 8. p. m. on August 18, 1925, the driver of a truck belonging to the Coca-Cola Bottling Company found out his truck was disabled so that the truck could not proceed to the garage where it was kept. He called the office of that company, and was hdvised. that the mechanic who attended to such repairs was not at hand, and the driver of the truck was directed to park the car where it was, if he was unable to make the necessary repairs which would enable him to reach his destination. The truck was equipped with a large wooden body, which extended out from the rear wheels about a foot and a-half on each side. The truck was used for transporting the products of appellant from its plant in Little Rock to near-by towns, and had been so used on the day in question, and was filled to its capacity with cases containing empty bottles-, and at the fear end of the truck a large barrel was piled on top of the load. The driver was unable to make the necessary repairs of the truck, so he parked it near the northeast corner of the intersection of Bast Third and Olive streets, headed west, which was the direction appellee was driving on Third Street. The truck was not placed against- the curb, and the rear end extended further into the street than the front. The testimony shows that the truck was so parked as to interfere with the traffic, and this interference was increased hy the presence of the traffic post in the center of the two intersecting streets. There were no lights of any kind on either end of the truck.

Appellee testified that' he had been driving about twenty-five miles an ho'ur, but, as he approached the.intersection of East Third and Olive streets, he slowed down to about twenty miles per hour on account of the approach of another automobile from the opposite direction. This car had bright lights, which blinded appellee to some extent as it. came nearer, and, as the approaching car was about to pass, appellee turned his car slightly to the right, and ran into the truck, which he did not see until he turned. Appellee immediately applied his brakes, but was unable to avoid the collision, and a terrific impact occurred. So great was the force of the collision that the car appellee was driving- was driven under the rear of the truck, and it was necessary to pry them apart. The impact, smashed the radiator, the windshield, and the steering wheel of appellee’s car, and inflicted upon him a very serious injury. The force of the collision was so great that a man sleeping in a house on the opposite corner Avas awakened from his sleep.

Appellee recovered a judgment to compensate his injuries, and this appeal is from that judgment.

Error is assigned in giving and in refusing to give certain instructions; but we find it unnecessary to discuss this assignment of error. The instructions given required the jury to find, before returning a verdict for the plaintiff, that the defendant was negligent. This féature of the case presents but little difficulty, as we think the testimony fully supports that finding. The jury was also instructed that, if plaintiff was guilty of negligence contributing to his injury, he could not recover, and, as there was a verdict in his favor, we assume that the jury found that appellee was not guilty of contributory negligence. The correctness of this finding presents the controlling and the difficult question in the case.

We have concluded, after a careful consideration of the testimony in the case and a review of many authorities applicable thereto, that plaintiff was guilty of contributory negligence, and that -the trial court should have so instructed the jury. Under this view it is unnecessary to determine whether error was committed in giving or in refusing to give instructions as requested.

A leading case on the subject is that of Lauson v. Fond du Lac, 123 N. W. 629, 141 Wis. 57, 25 L. R. A. (N. S.) 40, 135 Am. St. Rep. 30, which was decided' by the Supreme Court of Wisconsin in 1909. This case is annotated in 25 L. E. A. (N. S.) 40. The facts there were that a car was being driven at a speed of eight miles per hour on a dark, rainy night, and the driver could not see objects more than ten or twelve feet ahead, and could not bring his car to a stop within less than fifteen or twenty feet. The driver ran into a hole which had been negligently left in the road. The trial court submitted the question of negligence and pf contributory negligence to the jury, and there was a verdict and judgment in plaintiff’s favor. This judgment was reversed and the cause dismissed, for the reason that the driver of the car was guilty of contributory negligence. In so holding it was pointed out that self-propelling machines of great weight and high power had come into general use, which, when driven at a reckless speed, are a constant menace to their occupants and to the traveling public, which has not and cannot abdicate its right to use the streets and roads of city and country. It was there said that the automobile had created a new peril in the use of the public highways, and one which is greatly enhanced by the recklessness of drivers who propel them with the speed of trains on well-defined tracks, and that some rule consonant with the public .safety and not unduly harsh or restrictive upon the users of motor cars must be evolved to meet conditions which the automobile had created. In declaring such a rule the court said:

“It seems to us, and we decide, that the driver of an automobile, circumstanced as was the driver of the ear in which the plaintiff was riding, and operating it under such conditions as he operated his machine on the-night of the accident, is not exercising ordinary care if he is driving the car at such a rate of speed that he cannot bring it to a standstill within the distance that he can plainly see objects or obstructions ahead of him. If his light be such that he can see objects for only a distance of 10 feet, then he should so regulate his speed as to be able to stop his machine within that distance; and, if he fails to do so, and an accident results from such failure, no recovery can be had. This, it seems to us, is the minimum degree of care that should be required. Circumstances might arise where it would be reckless to drive at such a rate of speed, or even at a rate approximating it. We do not ground this rule on the fact that we have a statute requiring automobiles to carry reasonably bright lights while being operated during the hours of darkness. Independent of any statute, and considering the character of these -machines, we hold it would be negligent operation to run them without sufficient lights to enable the driver to see objects ahead of him in time to avoid them. Such is substantially the rule adopted by the Supreme Court of Connecticut in a well-considered case in reference to the running of a street car.”

This case has been frequently cited and approved, and, while there are cases which do not state the rule so broadly, it announces what we conceive to be the proper rule. We hold therefore that, if one drives his car at night at a speed so great that he cannot stop within the range of his vision, the lights are of but little value, and if, while so driving, he has a collision, he is negligent. He cannot say that he depended on his lights when the rays thereof do not project a sufficient distance to 5 enable him to stop after discovering- the peril. The excessive speed neutralizes the protection which the lights would otherwise afford where one drives so fast that he cannot stop after the lights have made the obstruction visible. Due care requires one to take into account the distance his lights project and forbids driving at a speed so great that a stop cannot be made within the distance one can discover a peril to.himself or to another. If one drives at a greater speed than this, he is taking a chance which prudence would avoid, and if, while taking this chance, his negligence coincides with the negligence of another and produces an injury, the negligent party cannot recover, because his own negligence contributed to his injury. Nothing is better settled than that one cannot recover for an injury which he would not have sustained, had he himself not been negligent.

A ease in which the facts are strikingly similar to those of the instant case is that of Knoxville Ry. & Light Co. v. Vangilder, 178 S. W. 1117, 132 Tenn. 487, L. R. A. 1916A, 1111, decided by the Supreme Court of Tennessee, the first syllabus of which reads as follows:

“A person who drove an automobile at night in a'dark place on the highway so fast that he could not avoid an obstruction within the distance lighted by his lamps was g'uilty of contributory negligence, barring his recovery, though, just before the accident, the bright lights of an approaching automobile and a curve where his own light did not shine directly in the way the machine was going hindered him from seeing the obstruction. ’ ’

Among the numerous cases which support the view here announced are the following: Shawano County v. Froeming Bros., 202 N. W. 186, 186 Wis. 491; Fannin v. Minneapolis, St. P. & S. S. M. Ry. Co., 200 N. W. 651, 185 Wis. 30; Worden v. Chicago & N. W. Ry. Co., 193 N. W. 356, 180 Wis. 551; Raymond v. Sauk County, 166 N. W. 29, 167 Wis. 125; Pietsch v. McCarty, 150 N. W. 482, 159 Wis. 251; Holsaple v. Superintendents of Poor of Menominee County, 206 N. W. 529, 202 Mich. 603; Gleason v. Lowe, 205 N. W. 199, 232 Mich. 300; Spencer v. Taylor, 188 N. W. 461, 219 Mich. 110; Serfas v. Lehigh & N. R. Co., 113 Atl. 370, 270 Pa. 306, 14 A. L. R. 791; Kelly v. Knobb, 300 Fed. 256; Berry on Automobiles (5th ed.) § 177, p. 341; Huddy on Automobiles (8th eel.), § 396, p. 411.

In the application of this rule to the facts of this case we hold that appellee was guilty of contributory negligence, and cannot recover for that reason. If the street light did not reveal the presence of the truck, 'the light of appellee’s own car would have done so, had he been driving with due care. It is true appellee testified that, upon passing the approaching car, which slightly blinded him, he turned somewhat to the right, but his lights shone in advance of his car and always in the direction in which he drove, and he should have kept his car under such control that he could stop within the range of his vision as aided by the lights of his car.

The judgment is therefore reversed, and, as the cause appears to be fully developed, it will be dismissed.

Mjehafpv, J.,

(on rehearing). Thé facts are stated in the original opinion, and it is unnecessary to restate them here. A. majority of the court has reached-the conclusion that a rehearing should be granted and that the ease should be reversed and remanded for a new trial, a majority believing that the question of whether plaintiff was guilty of contributory negligence under the circumstances in this case is a question about which fair minded men would differ, and, having reached that conclusion, under the decisions of this court, this question should have been submitted to the jury for its determination.

The ease of Lauson v. Fond du Lac, 123 N. W. 629, 141 Wis. 57, 25 L. R. A. (N. S.) 40, 135 Am. St. Rep. 30, referred to as the leading case on the subject, we think states the rule too broadly, and that the better rule is announced in the case of. Murphy v. Hawthorne, 244 Pacific 79, 117 Ore. 319, 44 A. L. R. 1397, decided by the Supreme Court of Oregon, March 2, 1926. The court said:

“Appellant’s principal contention, aside from the question as to the proper measure of damages, is that we should hold as a matter of law that plaintiff was guilty of contributory negligence in failing to stop his automobile within the range of his vision. While some courts have announced a hard and fixed rule that it is negligent to drive an automobile at such rate of speed that it cannot be stopped within the range of the driver’s vision, * * * we think it improper to do so. Each case must be considered in the light of its own peculiar state of facts and circumstances. After all, the test is, what would an ordinarily prudent person have done under the circumstances as they then appeared to exist! Can we say that all reasonable minds would reach the conclusion that plaintiff failed to exercise due care to avoid this collision ? We think not. Plaintiff had a right to assume, in the absence of notice to the contrary, that defendant would not put this dusty gray colored truck on the highway after dark without displaying a red light on the rear thereof. If the truck had been lighted, the jury might, well have drawn the reasonable inference that plaintiff would have been able to avoid striking it. * * * While there is authority to the contrary, we believe the better reasoned cases support the holding that whether plaintiff failed to exercise due care to avoid the collision was a question of fact for the jury.”

After a careful consideration of the case of Lauson v. Fond du Lac, supra, and many other authorities, we have concluded that the rule adopted by the Oregon court in Murphy v. Hawthorne, supra, is the better rule. The Wisconsin case was decided in 1909, and has been followed by a number of cases. The Oregon case was decided in 1926, and is therefore a much more recent decision, and the court in that case reviewed the authorities, considered those supporting both rules, and, we believe, reached the proper conclusion.

This court has frequently in negligence cases approved the rule announced in the Oregon case. This court has said: ‘ ‘ The rule is that, where fair-minded men might honestly differ as to the conclusion to be drawn from facts, either controverted or uncontroverted, the question at issue should go to the jury.” St. L. I. M. & S. Ry. Co. v. Fuqua, 114 Ark. 112, 169 S. W. 786.

While appellee did not succeed in stopping his car before striking the train, he almost did so after he discovered it, and he would perhaps have done so within the distance if the road had not been wet and unduly slick. * * * The most careful and cautious man will frequently make mistakes in measuring and estimating distances within which he can stop his automobile. We think, under the facts and circumstances of this case, the question of negligence on the part' of the appellees in this regard is a question solely for the jury. ’ ’ Bush v. Brewer, 136 Ark. 246, 206 S. W. 322.

“The jury were the judges of the credibility of the witnesses, and might have found that the evidence was in equal poise as to the negligence of Edmonton. Hence it might have returned a verdict in his favor because, as above stated, the burden was upon appellee to establish his negligence, and it might have returned a verdict against appellant because the burden was upon it to show that it was not negligent. Therefore the court did not err in refusing.to give the instruction.” Davis v. Hareford, 156 Ark. 67, 245 S. W. 833.

In the case at bar the question of the contributory negligence of the plaintiff, as well as the question of the negligence of the defendant, was a question that should have been submitted to the jury under proper instructions, -because his contributory negligence was a matter about which fair-minded men might honestly differ.

Many other decisions might be cited in support of the rule we have announced. The California court has said: “From the recognized disposition of every rational person to avoid injury, the jury doubtless may infer, where the circumstances shown in evidence warrant it as a legitimate inference of fact, that the injured person did use due care.” Ham v. Los Angeles County, 189 Pac. 462, 46 Cal. App. 148.

This court therefore recognizes that it is a question for the jury to determine whether the injured party was in the exercise of due care; whether he was guilty of contributory negligence. And certainly it will not be contended that any person would intentionally run into a truck where injury would certainly follow. But the disposition of every rational person, as said by the California court, is to avoid injury. And -whether he exercised ordinary care is a question of fact.

“It was shown that appellant’s driver might have, without the contour of the ground preventing him from so doing, removed the train of vehicles entirely off the paved portion of the roadway before stopping. He gave his reason for not so doing that the ground was wet and he was afraid the wheels might slip. It was a question for the jury to determine whether his act in this, as in other regards, was consistent with the exercise of a reasonable degree of care.” Western Indemnity Co. v. Wascon Land & Stock Co., 197 Pac. Rep. 390, 51 Cal. App. 672.

It would be useless to undertake to cite all the authorities. There are the two rules — one announced by the Wisconsin court, the other announced by the Oregon court. We think that the rule announced by the Oregon court is the better rule, and we think it is supported by many decisions of this court. In every case where fair-minded men would honestly differ about a question, that! fact makes it a question for the jury and not for the court.

It is contended by appellant that the court erred in permitting the city ordinance to be introduced in evidence, and erred in giving instruction number one, based on said ordinance. -The ordinance reads as follows:

“ All automobiles shall have at least two white lights forward and one red light to the rear, and all motorcycles and bicycles one light forward from dark to daylight, same to be visible at least 200 feet. Where' two lights forward for automobiles, as prescribed by this section, cannot be had, one will be considered sufficient.”

Instructions number 1 and number 5, referring to the city ordinance, should not have been given. If it was improper to introduce the ordinance, and we hold that it was, then, of course, it was improper to instruct the jury with reference to the ordinance or any of its provisions. The authorities are in conflict about the admissibility of municipal ordinances, some authorities holding that a violation of a municipal ordinance is negligence per se, and others holding that it may be introduced and considered as a circumstance with the other evidence in determining whether the person who violated the ordinance was guilty of negligence.

This court said, with reference to a city ordinance: “The ordinance passed by the city council o;f Little Rock did not impose upon appellant any additional duty, so far as affected the issues in this case; did not aid the jury, was unnecessary, and should not have been read in evidence.” S. W. Tel. & Tel. Co. v. Beatty, 63 Ark. 65, 37 S. W. 570.

The ordinánce introduced in the case át bar, which is set out above, certainly did not impose upon the appellant any additional duties so far as it affected the issues in this case; it. did not laid the jury, it was unnecessary, and it should not have been read in evidence. We do not mean to be understood as saying that a city ordinance may not.be read in evidence if it aided the jury in any way to determine the issues in the case. We said in a recent case:

“The admission of every light which reason and experience can supply for the discovery of truth, and the rejection of that only Avhich serves not to guide, but to bewilder and mislead, is the great principle that ought to be the foundation of every system of evidence. Common experience rather than technical rules should be adopted as the test. Mercantile and industrial life, producing, as they do, nearly all the transactions of men that come 'before the courts of law and equity, are essentially practical. * * * The courts need not discredit what the common experience of mankind relies upon. Judge Cooley once said that 'courts would justly be the subject of ridicule if they should deliberately shut their eyes to the'sources of information which the rest of the world relies upon.’ Lastly, whenever there is any serious doubt in the law as to whether certain proof is or is not permissible, ia safe rule to pursue is to permit the testimony to go to the jury.” 10 R. C. L. 861; Heard v. Bank of Hardy, post, p. 194.

The ordinance introduced has been interpreted since its passage by the public and the officers as applying to cars being used on the streets and*not to cars parked on the streets. Hundreds of cars may be seen every night parked on the streets with no light. This is the universal custom, and the above is the interpretation of the ordinance, the meaning given to it by both the public and officials. And, if it does not apply to cars parked on the streets, then, of course, it was improper to introduce it. Its introduction in effect told the jury that a oar parked oh the street in the night time without light was in violation of the ordinance. Whether it was negligent to leave the car parked as it was, at the time without light was a question to be determined by the jury. If a person of ordinary prudence, under the circumstances, would not have left it without lights because of the danger to persons traveling on the street, then it was negligent to leave it that way. In other words, negligence is the doing something that a person of ordinary prudence would not do under the circumstances, or the failure to do something that a person of ordinary prudence would do under the circumstances. This rule for measuring the conduct of persons charged with negligeuce has been approved by this court many times. And'whether .the ordinance prohibited parking a car on the streets without light or not, if parking them without light was negligence and this negligence caused injury, the person so parking the car would be liable. But the ordinance, since we hold that it did not apply to cars parked on the street, had no connection with the case whatever. All-facts are admissible in evidence which afford reasonable inferences or throw any light upon the matter contested, but circumstances having no direct connection with the case, which are remote, collateral and irrelevant, should not be admitted as evidence. And this ordinance, as it did not refer to cars parked on the street, was collateral and irrelevant and should not have been admitted.

The views expressed in the original opinion are adhered to, except as Ave have stated above. After a careful reconsideration of the entire matter, we decline to follow the Wisconsin rule and we íoIIoav the Oregon rule, Avhich Ave think is the one in harmony Avith our .own opinions.

It follows from what we huA^e said that the case must be reversed and remanded for a new trial, and it is so ordered.

Wood, Saiitit and Hitmphrf.ys, JJ., dissent.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Abrams v. Hoff.
    Opinion delivered May 23, 1927.
    1. Appeal and error — question reviewed. — Alleged error in refusing to remand a cause from the circuit court to the chancery-court will not be reviewed, in the absence of a bill of exceptions, where the appellant did not elect to stand on the issues joined by the pleadings, but proceeded to trial in the circuit court.

      2. Appeal and error — presumption in favor of judgment. — In the absence of a bill of exceptions and*the testimony, it is presumed on appeal that the verdict and judgment against appellant were proper, where the appellant failed to stand on the issues raised by the pleadings and proceeded to trial.
    Appeal from Pulaski Circuit Court, Third Division; Marvin Harris, Judge;
    affirmed.

      James E. Hogue, for appellant.

      Wallace Townsend, for appellee.
   Smith, J.

Appellant filed in the chancery court a complaint containing the following allegations: Plaintiff owns two lots, upon which she resides, in the city of Little Eock, having a total value of $5,100. That, on or about September 20, 1924, the servants, agents and employees of Improvement District No. 364 of the city of Little Eock caused a sewer pipe about three feet in diameter to be laid across plaintiff’s lots, extending through and across the front yard of her home. That in laying the pipe the district destroyed the sodded lawn, cracked the concrete walk, and disfigured the yard, to the great depreciation of the value of the property, and to the jeopardy and injury of the health, comfort and happiness of plaintiff herself. That the laying of said pipe resulted in the accumulation of surface water on said lots, which plaintiff has been forced, at great expense, to drain. That the earth has caved in around the pipe, and noxious vapors and odors are emitted therefrom, all of which constitute a nuisance. That, in the absence of plaintiff, and without her consent, the improvement district entered upon the lots and used the residence thereon as a shelter for the workmen engaged in laying the pipe, and these workmen damaged the plastering of the house and did other damage amounting to a thousand dollars, for which plaintiff has been paid no compensation. Wherefore plaintiff prayed that a mandatory injunction be issued requiring the improvement district to remove the pipe from the premises and to restore the premises to its former condition, and that- she have judgment for a thousand dollars to compensate her for the damages sustained to the lots and the house.

The answer filed by the improvement district denied each and all of the allegations of the complaint, and also denied that any surface water had been diverted on the plaintiff’s property, but alleged, on the contrary, that the district had greatly benefited her property “by carrying underground the large volume of water which theretofore ran across the surface of said lots,” thereby greatly benefiting plaintiff’s property.

The decree of the chancery court recites that, when the cause came on for hearing, it appeared from the pleadings that plaintiff was not entitled to an injunction, and the cause was transferred to the circuit court for the adjudication of the question of damages. Plaintiff excepted to this action of the chancery court, and in the circuit court moved to remand the cause to the chancery court, which motion was denied, and plaintiff excepted to that ruling. Thereafter a trial was had in the circuit court before a jury, and a verdict was returned' in. favor of the defendant, and from the judgment pronounced on this verdict is this appeal.

There is no bill of exceptions in the case, and we have before us none of the testimony heard at the trial in the circuit court. Plaintiff insists, however, that there is error appearing upon the face of the record which renders a bill of exceptions unnecessary, the error being the action of the chancery court in transferring the cause to the circuit court and the refusal of that court to remand the cause to the chancery court.

Appellant insists that the improvement district, without authority of law, entered upon her property and constructed the sewer pipe complained of. It does not appear, however, from the record before us that such is the case. We do not know the boundaries of the district, nor the plans of the improvement. There has been a trial of this action in a court of law, and a verdict and judgment against plaintiff there. So far as we know to the contrary, the district may have had the right to enter upon the lots of appellant, or may, in some manner, have acquired that right from her, and may have done her no damage in the exercise thereof.

Plaintiff did not elect to stand upon the issues joined by the pleadings in the chancery court, as she might have done. It is true she moved to remand, but she did not stand upon that motion. Upon the contrary, she went to trial in the circuit court, and, in the absence of any showing as to what proceedings were had at that trial, it must be conclusively presumed that the defendant did not wrongfully enter upon plaintiff’s property, or, if so, that she was in some manner compensated for any injury occasioned thereby.

The judgment of the circuit court must therefore be affirmed, and it is so ordered.


author: Humphreys, J.

text:
    Natural Gas & Fuel Company v. Lyles.
    Opinion delivered May 23, 1927.
    1. CORPORATIONS — SERVICE OF PROCESS ON FOREIGN CORPORATIONS.— Crawford & Moses’ Dig., § 1829, providing that service of process on an agent of a corporation anywhere within the State shall he sufficient to give any court jurisdiction, held not unconstitutional.
    2. Master and servant — simple appliance doctrine_The rule that a servant cannot recover for injuries growing out of the use of simple appliances does not apply where a servant was injured while using a jack and jack-bar in threading the pipe in a pipe line used for conveying gas in an oil field.
    8. Master and servant — instruction as to furnishing safe place. —An intruction that it was the duty of an employer to exercise reasonable care in furnishing his employee a reasonably safe place in which to work, and safe tools with which to work, instead ■of reasonably safe tools, held not erroneous as imposing on employer too high a degree of care.
    4. Master and servant — instruction as to exercise care.— In a suit by an employee for personal injuries an instruction that, if dangerous condition is not apparent to the employee, and would not have been discovered by him in the exercise of reasonable care for his own safety, instead of ordinary care, the employer was negligent, held not reversible error.
    5. Trial — instruction excluding defenses. — In a suit by an employee'for personal injuries, an instruction that the jury should render a verdict for the employee, if they found the employer guilty of negligent acts detailed in instruction, held erroneous, as excluding the defenses of contributory negligence and assumed risk.
    6. Master and servant — duty to furnish safe place — instruction. — An instruction imposing the duty on an employer' to furnish the employee a safe place in which to work, held erroneous, as the law imposes only the duty to exercise ordinary care to provide , a reasonably safe place for an employee to work.
    7. Trial — error in instruction not cured when. — The omission in instructions to take into account the employer’s defenses of contributory negligence, and assumed risk held not cured by other instructions with reference to those defenses.
    Appeal from Perry Circuit Court; Robert L. Rogers, Special Judge;
    reversed.

      John M. Shackleford .and Buzbee, Pugh & Harrison, for appellant.

      J. H. Bowen and Owens & Ehrman, for appellee.
   Humphreys, J.

This suit was brought in Perry County, Arkansas, by appellee against appellant, upon service procured in Union County, Arkansas, under § .1829 of Crawford & Moses’ Digest. A motion was made by appellant to quash the service upon the ground that said, section of the statute was void as being repugnant to the 14th Amendment to the Constitution of the United States. The validity of the statute in question has been sustained by this court in the case of Power Manufacturing Company v. Saunders, 169 Ark. 748, 276 S. W. 599."We adhere to our views announced in that case.

The purpose of the suit was to recover $3,000 damages for personal injuries received by appellee on the 10th day of December, 1925, through the alleged negligence of appellant while engage'd in its employment as a laborer. It was alleged in the complaint that, at the time of the injury, appellee was working for appellant in the oil fields, and, on the day of the injury, was Avorking under the direct supervision of its foreman, C. W. Watson; that they were engaged in connecting a broken pipe line used for the purpose of conveying gas from the field to the main plant; that, just immediately prior to the time the injury occurred, appellee and one of the other men were finishing putting* up a jack about 90 or 100 feet away from the place where the injury occurred; that appellant’s foreman, Watson, and one of the other men raised the pipe up on the jack and jack-bar preparatory for appellee and a fellow-servant to cut the dies in order -that the same could be put together, and said foreman, upon the pipe being raised, told appellee to hurry up and thread the pipe, as the plant was down, and that everything was ready for him to begin; that appellant, through its foreman, negligently and carelessly set up the jack and jack-bar in that it Avas in a crooked position, not braced, which left it in an unbalanced condition, and that the weight resting upon it by virtue of the pipe caused it to fall on appellee when he went to cut the die, and that this constituted negligence on the part of the company. The complaint contained a prayer for $3,000 damages on account of the personal injuries received.

Appellant filed an answer to the complaint, denying the material allegations as to injuries and damages, and pleaded as affirmative defenses assumed risk and contributory negligence on the part of appellee.

The cause was submitted upon the pleadings, the testimony adduced by the respective parties and'the instructions of the court, which resulted in a judgment in favor of appellee for $3,000, from which is this appeal.

A miniature model of the jack, jack-bar and the pipe line was introduced in evidence, and it and the use thereof Avere described and explained by the Avitnesses. When in use, it- sits in an upright- position, and is about eighteen or twenty inches wide at the bottom and two inches thick. The jack-bar is notched in order to afford a resting place for the jack. The jack has iron pins extending through it about one inch in diameter. At the bottom of the jack there is a bolt in which there, is supposed to be placed a block in order to brace it with the jack-bar. When placed on the ground for use, the jack rests on the jack-bar where it is notched, and the other end of the jack-bar rests on the ground at an angle so that the short pins on the jack extend over the jack-bar, while the bottom of the jack rests at the desired stop on the jack-bar. The pipe is then placed on the jack, and one of the pins which extends upward from this position forms a groove in which the pipe firmly rests while being threaded with a die in order to connect same. The pins clear the bar and make a firm structure to hold the pipe.

. Appellee testified that, when he was injured, the pipe was resting on a third pin, and was about three and one-half feet from the ground; that the notches on the jack-bar were parallel with the pipe on which he was undertaking to cut the threads; that the jack was not setting squarely with the jack-bar, and was put up in a' crooked manner; that same was not noticed by him until after he had touched the die handle; that Watson, the foreman, had told him to hurry and cut the die threads on the pipe, and that when he went around the pipe with his tools to approach same from the front, without noticing its being improperly set up, immediately upon touching it it fell, thereby injuring him.

The testimony introduced by appellee tended to support the allegations contained in the complaint, and that introduced by appellant tended to disprove negligence on its part, and contributory negligence and assumption of risk on the part of appellee.

Appellant’s first contention for a reversal of the judgment is that no liability was shown to exist against it because the undisputed testimony disclosed that the tool or appliance complained of and the method of using it was extremely simple. In other words, appellant invoked as a defense to the cause of action the rule of non-liability for injuries growing out of the use of ‘ ‘ simple appliances” or tools, as expressed by this court in many cases in the following language.:

“The duty of the master to exercise ordinary care to provide reasonably safe tools and appliances for his servants has no application where the tools are common tools in ordinary use and the servant possesses ordinary intelligence and knowledge of their use and construction.” Royal v. White Oil Corporation, 160 Ark. 467, 254 S. W. 819; Railway Co. v. Kelton, 55 Ark. 483, 18 S. W. 933; and Fordyce Lumber Co. v. Lynn, 108 Ark. 377, 158 S. W. 501, 47 L. R A. (N. S.) 270. .

The inspection of the miniature model, made an exhibit in the evidence, the description thereof and method of using same, did not bring it within the ‘1 simple appliance” doctrine.

Appellant’s next contention for a reversal of the judgment is that the court erred in giving instruction number 1, which is as follows:

“You are instructed that it was the duty of the defendant company to exercise reasonable care in furnishing the plaintiff a reasonably safe place in which to work and safe tools with which to work, and if you find from the evidence in this case that the pipe, when jacked up on the jack-board and jack, was not securely fastened, which would have been discovered by the employer in the exercise of ordinary care, and if you find that such defective or dangerous condition was not apparent to the plaintiff and would not have been discovered by him in the exercise of reasonable care for his own safety, and if you further find that the plaintiff suffered an injury on account of such alleged defective manner in which said pipe was laid upon said jack and jack-board, then you are told that the defendant was guilty of negligence, and your verdict will be for the plaintiff. ’ ’

The instruction, is assailed because the word “ reasonable” is used instead of the word “ordinary” to modify the word “care,” and to the use of the phrase “safe tools” instead of the phrase “reasonably safe tools.” The use of the word “ordinary” would he preferable, but the difference in meaning in the connection used is so slight that the use of the word “reasonable” does not constitute reversible error. Wisconsin & Arkansas Lumber Co. v. Standridge, 132 Ark. 535, 201 S. W. 295. Reading the first part of the instruction in connection with “safe tools,” “reasonably” is necessarily implied before the phrase “safe tools,” as the two parts of the instruction are conjunctively connected. We do not think the instruction imposes upon appellant a higher degree of care than the law imposes upon it. The instruction, however, is erroneous because it told the jury that they should render a verdict in favor of appellee if they found appellant guilty of the negligent act detailed in the instruction. The effect of this was to exclude appellant’s defenses of contributory negligence and the assumption of the risk, if they should find that appellee was guilty of either.

Appellant’s next contention for a reversal of the judgment is that the court erred in giving instruction number 2 at the request of appellee, which is as follows:

“You are instructed that it wás the duty of the defendant to furnish the plaintiff a safe place in which to perform his duties, and if you find-from the evidence that the foreman of the defendant company raised the pipe from the ground at the place 'where it was to be repaired, or had it done, and affixed same upon the jack and jack-board in a position where plaintiff could get to it, and that, after doing so, notified said plaintiff to go to work on it as quickly as possible, that it was all ready for them to begin work, you are instructed that the plaintiff had a right to assume that the defendant had fixed the pipe in a secure manner, so "that it would be -safe for him to proceed to work thereon, and if you find from the testimony that the defendant had not fastened said pipe in a safe and secure manner, and that the failure thereof was not known to this plaintiff, nor, in. the exercise of ordinary care, would have been discovered by him, then the defendant will be guilty of negligence, and your verdict will be for the plaintiff.”

The instruction is assailed because it imposed the duty upon appellant to furnish appellee a safe place in which to perform his duty. The instruction was inherently defective on this account. The law only imposed the duty upon appellant to exercise ordinary care to provide a reasonably safe place for appellee to perform his duty. Instructions numbers 1 and 2 are in open conflict in this particular. Instruction number 2 is also inherently defective because it omitted' to take into account the defenses tendered by appellant of contributory negligence and the 'assumption of risk by appellee. The question of whether appellee assumed the risk or was guilty of contributory negligence was a disputed question of fact under the evidence and a question for determination by the jury. The defect with reference-to the omission of appellant’s defenses in the two instructions mentioned above ran through all of the instructions given by the court at the request of appellee, and should be corrected so as to recognize these two defenses on a retrial of the cause.

Appellee contends that the omission in the two instructions to take into account appellant’s defenses of contributory negligence and the assumption of the risk by appellee was cured by instructions numbers 2 and 4 requested by appellant and given by the court. Number 2 related to contributory negligence and number 4 to the assumption of the risk, and would have cured the defect, had the court not told the jury in both cases to render a verdict in favor of appellee in case they found that appellant was guilty of negligence as alleged. This declaration on the part of the court created a conflict between the two instructions given at the request of appellee and instructions 2 and 4 given at the request of appellant. Southern Anthracite Co. v. Bowen, 93 Ark. 140, 151-152, 124 S. W. 1048.

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


text:
    Smith v. Pearce.
    Opinion delivered May 23, 1927.
    1. Landlord and tenant — conflict in instructions. — In unlawful detainer by a landlord against his tenant, an instruction that, if the parties made an oral lease of a farm for the ensuing year, it would be valid, but, if they made an oral lease for two years, it would be void under the statute of frauds, held not contradictory.
    2. Landlord and tenant — jury question. — Where the evidence conflicted as to whether defendant claimed under an oral lease for two years, the issue was for the jury.
    3. Landlord and tenant — eviction — instruction as to damages. —In a cross-action for eviction brought by a tenant who was compelled to hire two teams for several days and to use his own teams for much longer time in moving, an instruction to assess such damages as he had proved as a result of being evicted from the premises held not abstract.
    4. Trial — indefinite instruction — remedy. — If the court’s instruction that the jury could allow the tenant such damages as he had proved as a result of being- evicted from the premises was not as definite on the measure of damages as the landlord desired, he should have asked for a more definite instruction.
    Appeal from Jackson Circuit Court; Dene II. Coleman, Judge;
    affirmed.

      Gustave Jones, for appellant.

      Piclcens & Ridley, for appellee.
   Humphreys, J.

This is a suit in unlawful detainer by appellant as landlord against appellee as tenant for a certain farm in Jackson County. It was alleged in the complaint that appellant let to appellee said farm for the year 1925, and that he was willfully and unlawfully holding the possession thereof after written demand for same. ■

Appellee filed an answer, denying that he was unlawfully holding over, and alleging, by way of cross-complaint, that in August, 1925, he leased the farm for the year 1926, and had been unlawfully evicted, for which he prayed damages in the sum of $200. The cause was submitted upon the pleadings, testimony adduced by the respective parties and instructions of the court, which resulted in a judgment dismissing appellant’s complaint and for damages in the sum of $37.50 on appellee’s cross-bill, from which is this appeal.

The testimony introduced by appellant, plaintiff below, tended to show that she leased the farm to appel-lee, the defendant below, for the year 1925, but that they were unable to agree upon terms, and, on that account, failed to consummate a contract for the year 1926.

The testimony introduced by appellee tended to show that, in August, 1925, an oral rental contract was entered into between the parties whereby it was agreed that appel-lee should keep’the farm for the year 1926 upon the same terms provided in the rental contract for 1925.

In December, 1925, an attempt was made to get appellee to sign a written contract to pay $15 an acre for the land, which he refused to do, claiming that he had already entered into an oral contract whereby he was to have the farm for the year 1926 for one-fourth the cotton and the cotton seed, and $10 an acre for that part of the land upon which he might plant corn and hay. The testimony is conflicting as to whether he then claimed the right to hold the farm under an oral contract for two years, 1925 and 1926, when he first moved there, or under an oral contract made in August, 1925.

Appellant’s first contention for a reversal of the judgment is that instructions numbers 2 and 6 given by the court, over her objection and exception, are in conflict and misleading. The instructions are as follows:

“The burden of proof is upon the plaintiff, Miss Fannie Smith, to show, by the greater greater weight of evidence or by a preponderance of the evidence in the case, her right of possession to the premises at the time of the filing of the suit. Under the testimony and the law governing this cause, the plaintiff would be entitled to the possession of the premises at the time suit was filed, and she was entitled to the possession of them at the time the suit was filed, unless you believe from the evidence that the defendant, Pearce, had a contract which had been entered into prior to the time of the filing of this suit between Miss Fannie Smith and himself, whereby he was to have possession of the land and the right to cultivate the lands in question during the year 1926. And the terms of this contract should have been plain and should have been understood and agreed to by both parties prior to the institution of this suit.”
“There has been some testimony, gentlemen, relative to a purported contract for the rental of the premises for the term of two years. The defendant is not claiming, on his part, under such a contract as that, so he alleges. The plaintiff, however, claims that he made that complaint to the plaintiff at one time. I instruct you that a contract of rental of real estate for more than one year would not be enforceable in this court, unless it was in writing. ”

We see no conflict in the instructions. Number 2 relates to the issue of fact as to whether appellant and appellee entered into an oral lease in August, 1925, for the farm for the year of 1926, and number 6 relates to the issue of fact as to whether appellant and appellee entered into an oral lease for the farm for -two years, 1925 and 1926, when he moved on the place. The court told the jury in the two instructions, when read together, that, if they should find that the contract was made in August, 1925, for the use of the farm for 1926, it would be a valid contract, whereas, if made for the years 1925 and 1926, at the time he moved on the place, it would be void under the statute of frauds. There is no inconsistency whatever in the instructions.

Appellant’s next contention for a reversal of the judgment is that the court should have given her request for a peremptory instruction. This insistence is based upon the theory that the undisputed evidence showed that appellee claimed the right to hold the farm by virtue of an oral contract to lease same for two years, 1925 and 1926. The evidence was conflicting upon this point, and appellant was' not entitled to an instructed verdict. The conflict made the issue one for the jury.

Appellant’s next and last contention for a reversal of the judgment is that the instruction as to damages was erroneous. The instruction told the jury that, if they found in favor of appellee, they should assess such damages as they might find from the evidence he had proved as a result of being evicted from the premises. There was testimony to the effect that appellee was compelled to hire two teams for several days and use his own much longer in moving to a place he rented three miles from appellant’s farm. The instruction was not abstract, and, if appellant desired a more definite instruction on the measure of damages, he should have made a request to that effect.

No error appearing, the judgment is affirmed.


text:
    Tuggle v. State.
    Opinion delivered May 23, 1927.
    1. Intoxicating liquors — sufficiency of evidence. — Evidence held sufficient to sustain a conviction for manufacturing and being interested in the manufacture of liquor.
    2. Intoxicating liquors — instruction. — In a 'prosecution for manufacturing and being interested in the manufacture of. liquor, an instruction that the State need not show that defendant was present when the liquor was manufactured, if he was interested either directly or indirectly in its manufacture, held not error.
    3. Criminal law — instruction. — An instruction requested by defendant, which was in conflict with a correct instruction given, was properly refused.'
    4. Intoxicating liquors — interest in manufacturing liquor. — In a prosecution for manufacturing and being interested in manu-factoring liquor, the State is not required to show what interest defendant had in manufacturing it, but only that he had some interest.
    Appeal from Hot Spring Circuit Court; Thomas E. Toler, Judge;
    affirmed.

      D. E. Waddell, for appellant.

      H. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Humphreys, J.

Appellant was indicted, tried and convicted in the circuit court of Hot Spring County for the crime of unlawfully manufacturing and being interested in manufacturing liquor, and, as a-punishment therefor, was adjudged to serve a term of one year in the State Penitentiary, from which is this appeal. Two assignments of error are urged in support of a reversal of the judgment. First, that the evidence is insufficient to support the judgment; and, second, that the court erred in giving instructions numbers 1 and 2 requested by appellant.

(1). T. S. Fisher, sheriff of said county, and W. 0. Richardson, his deputy, discovered the still in the northern part of the county. On November 20, 1926, they went to it and found two negroes making whiskey, and arrested them. There were ten gallons of whiskey near the still. They told the sheriff that they had been forced to work there during the day by two white men, who had gone, but would return by night., The sheriff kept the negroes near the still, and directed his deputy to go down to the road about 400 yards away and, if the men came, +o follow them to the still. About sundown a car stopped on the road near the deputy, and Charlie Pinion and appellant got out. Each took a sack of sugar about half-way to the still, where they stopped and talked a few minutes. Appellant laid the sack down that he was carrying and returned to the car for a third sack, which he carried and placed beside the one he had laid down. Charlie Pinion took the sack he was carrying in the direction of the still. Appellant returned to the car and deposited the second sack of sugar, drove up the road a short distance, turned, and started hack, when he was stopped by the deputy. Appellant got out of the car and asked the deputy what he meant, and the deputy asked him what he was going to do with the sugar. Appellant asked him, “What sugar!” About that time shots rang out at the still, and appellant said, “What in hell is that happening up there now!” The deputy said that he did not know, but that they would go up and see. Appellant took the lead, and went directly to the still. As Charlie Pinion approached the still, he observed the sheriff, dropped the sugar, and ran, although the sheriff was trying to halt him by firing upon him. The two negroes stated to the sheriff and his deputy, and testified, that appellant was not one of the two men who forced them to work at the still. The sugar was purchased from Bauckman, and he told the sheriff, and afterwards the deputy, that appellant bought the sugar from him. He testified, however, that Charlie Pinion bought it from him, and that appellant came and hauled it away.

Appellant testified that he called at Bauckman’s for the sugar at the request of Charlie Pinion, who paid him $5 for hauling it out t,o where the deputy arrested him; that, after getting the sugar, he met Charlie Pinion by agreement at an old house by the road and took the sugar to the place where the arrest was made; that he did not know a still < was there, and that he was not interested in the still or the manufacture of the liquor. Appellant had served a term in the penitentiary for ' selling whiskey prior to his arrest.

A legal inference which can be drawn from the purchase of the sugar and the manner in which it was handled is that it was purchased for use in manufacturing liquor at the still where the negroes were arrested. If the jury believed that appellant purchased it, that fact alone is sufficient to support the verdict finding that he was interested in the manufacture of liquor. The jury had additional circumstances, however, from which such an inference might have reasonably been draw7n. The circumstances, for example, of answering the deputy as he did when .asked what lie was doing ' with the sugar; his remark when the shots rang out at the still; his bee-line lead to the still to see what happened up there; his former conviction for selling whiskey; and his flimsy explanation to the effect that he charged and received $5 for hauling three sacks of sugar that distance when on his way home. We,think the evidence sufficient to sustain the verdict.

(2). Instruction number 1, given by the court at the request of the State, was not abstract as contended by appellant. The conflict in the testimony as to who purchased the sugar and the legitimate inferences of guilt which might be drawn from the circumstances detailed above constitute sufficient ground for the instruction.

Instruction number 2, given by the court at the request of the State, is assailed because the court told the jury it was not necessary for the State to show that appellant was present at the time the liquor was manufactured, if they believed, beyond a reasonable doubt, from the evidence that he was interested, either directly or indirectly, in the manufacture of whiskey. This instruction was based upon § 6160 of Crawford & Moses’ Digest, which provides that it shall be unlawful for any person to manufacture or be interested in the manufacture of any intoxicating liquor.

Instruction number 1, requested by appellant, was in conflict with instruction number 2 given by the court, and therefore an incorrect declaration of law. The court did not err in refusing to give the instruction.

Instruction number 2 requested by appellant and refused by the court is as follows:

“It is the duty of the State in this case to show what interest, if any, the defendant had in the manufacturing of liquor as charged,, and, if it has failed to show his interest beyond a reasonable doubt, you will find him not guilty.”

This instruction is not a correct declaration of law. The State is not required to show what interest, but only that the accused has an interest, directly or indirectly, in the manufacture of liquor. The rights of appellant were sufficiently protected by instructions numbered 3 and 5, requested by appellant and given by the court. Number 3 told the jury that the burden of proof was upon the State to prove every material allegation in the indictment, and, if it failed to do so in any particular, then they should acquit him. Number 5 told the jury that they should not convict appellant unless his guilt had been established to the exclusion of every other reasonable hypothesis of his innocence.

No error appearing, the judgment is affirmed.


author: Kirby, J.,

text:
    Lesser-Goldman Cotton Company v. Cache River Drainage District.
    Opinion delivered May 23, 1927.
    1. Drains — authority to extend ditches.- — Under Crawford & Moses’ Dig-., § 36S0, authorizing- a drainage district to extend, widen and deepen its ditches, a drainage district is authorized to lengthen its ditches.
    2. Drains — jurisdiction to establish drainage district. — Where lands of a drainage district are in more than one county, a proceeding by the district to authorize lengthening of the outlet ditch must be before the circuit court.
    Appeal from Craighead 'Circuit. Court, Jonesboro District; A. L. Adams, Special Judge; affirmed.
    STATEMENT BY THE COURT.
    This appeal challenges the validity of a judgment authorizing the extension of the improvement, a drainage ditch, beyond the limits of the original district without the extension of the boundaries of the district itself, and after the virtual completion of the original improvement for the construction of which the district was created.

      The purpose of the petition for extension of the district is expressed in the title thereof as follows:
    “In the matter of extending the ditch in Cache River Drainage District of Craighead, Jackson and Lawrence counties, Arkansas, and to levy taxes for the payment of the cost thereof.”
    The petition was made by the commissioners of the district to the circuit court for the Jonesboro District of Craighead County, stating that the district was duly organized and created under the provisions of act 279 of the General Assembly of Arkansas, approved May 27, 1909, and later acts amendatory of and supplementary thereto, by proceedings before the circuit court for the Jonesboro District of Craighead County, the lands affected lying in more than one county, the greater portion thereof being situated in Craighead.
    It is alleged further:
    “(3). The commissioners of said drainage district "find that the existing outlet for the drainage improvement heretofore constructed by said district, although not entirely completed, has been and will be entirely inadequate; that, under existing conditions and upon the final completion of the improvement as originally planned under plans actually filed of record, the lands in the lower part of the said drainage district are not and will not be reclaimed and are not and will not be properly and. adequately drained as was contemplated, understood and intended by the commissioners of the district at the time that the assessment of benefits was made in the said district. That said assessment of benefits was made under the belief that all of the lands situate in the district and within the same distance of the drainage improvement would be equally reclaimed and benefited by the proposed improvement. In. order to afford to the lands in the lower part of said district the same degree of benefit and protection as is afforded to lands in the upper part of the district, it will be necessary to extend the ditch for a distance of two miles below the present terminus thereof; that Jas, R. Rhyne, engineer of said district, lias made a report in writing to tlie commissioners of said district on the proposed extension, describing the extension of said ditch, stating the necessity thereof, and'estimating the cost thereof to be $50,000. A trne copy of said report, marked Exhibit A, is attached to this petition and is asked to be considered as part hereof to the same extent as if fully copied herein. ’ ’
    Prayed that the court fix a date for the hearing of the petition and hold a special session for the purpose of acting upon it; that notice be given of the filing of the petition by two weeks’ publication in a newspaper in-each of the counties embraced in the district, in accordance with § 3630 of C. & M. Digest of the Statutes of Arkansas. That, upon the hearing, “the court direct the levy of sucli additional taxes as may be required to complete and construct the proposed extension of said ditch in said drainage district for the purpose of affording an adequate outlet for the drainage system arid to perfect the system of improvements.”
    The petition was verified by the commissioners, and a report of the engineer of the district was attached as an exhibit thereto. This report recites that it was suggested in his original report that it was possible it might have to extend the main ditch, in order to secure an adequate outlet into Poinsett and Jackson counties for some distance, and that means should be taken to secure the cooperation of the landowners therein. That the plans for the original ditch were finally prepared for the Cache River Drainage District to end their ditches in a small channel of Cache River, on the presumption that the proposed district in 'Jackson and Poinsett counties would provide an outlet. One of the ditches was excavated to within 50 feet of the old channel of Cache River, and the other to within approximately 100 feet thereof.
    The report stated further that the condition in the south end of the district, since the construction of the ditches, had shown certainly the necessity for an outlet beyond its boundaries in the other counties, as suggested, and also the dimensions of the extension to the district necessary to bring the anticipated benefits to the lands in the south end thereof.
    A special term of court was ordered for the hearing of the petition and notices were published in the counties of the day set therefor. On the 23d day of October, 1926, the date fixed, the petition was filed, and the cause continued to the 27th, at which time appellants’ responses were filed, admitting the creation of the district, the amount of benefits assessed and bonds issued, the filing of the engineer’s report showing the necessity for and the estimated cost of the proposed extension of the ditches, and denying that an additional tax levy should be made upon the lands therein and additional bonds sold for the purpose, for the reason that the original improvements had been completed in accordance with the plans therefor at an expenditure of a sum considerably greater than the estimated cost thereof, and that the commissioners were without power to alter the original plans after the completion of the work; alleged that the proposed extension could not be made without an alteration of the original plans by the extension of the district for two and one-half miles through Poinsett County and a short distance through Jackson County, “all of which will be through lands that are on the outside of the lands of this district. That the land through which the ditches will be extended would be greatly benefited and enhanced in value at the expense of the land within the district and without cost to the lands lying outside of the district, and which would receive a greater part of the benefit. That said lands cannot be embraced in the present district without the formation of a new district or a subdistrict, and only by an extension of the boundaries and lines of the present district, so -as to include all of the' said lands that will be so benefited in the counties of Poinsett and Jackson. That, on account thereof, this proposed extension of the ditches is illegal and void, and in violation of the statutes, and beyond the power of the commissioners of this district to assess lands therein for the payment of said extension of the proposed ditches for the improve-
      meat of lands lying entirely outside of the district, and that the owners of property within the district would have the entire cost of the said improvement to pay, and that an assessment for the purpose would constitute a tax of their property without due .process of law, and in violation of the Constitution of the State of Arkansas and of the Constitution of the United States. An assessment upon the lands in the district would, in fact, amount to a charge against said lands and the taxpayers or owners thereof in order to benefit lands lying wholly without the district, although it might he found that a few tracts of land in said district would be benefited.” Further, that the right-of-way would have to be procured through lands beyond the boundaries of the district by taxation of lands therein, that all the lands were assessed on equalized assessments now, being in accordance with the benefits received, and the proposed extension was only intended to benefit certain lands within the south end of the district, and taxes levied therefor would be a,discrimination against all the other lands in the district; denied the necessity for any additional levy, and alleged that the taxes already levied were sufficient to meet all the reasonable needs of the district and to pay for the improvements as originally planned and completed, and that the proposed new improvement was outside of the district and -an addition to the original plans and specifications already completed and finished. '
    The court granted the petition, approved the report of the engineer showing the location, specifications and dimensions of the extensions, directed the commissioners to have the extension made, made an assessment against the property within the drainage district, divided it into installments, specifying the amount, thereof to be paid in annual installments, authorizing the issuance of $50,000 in bonds additional, same to be secured by pledge of the revenue of the district, etc.
    The interveners, praying that the commissioners be authorized to make the extension, were made parties, and from the judgment respondents bring this appeal.

      Basil Baker and H. L. Ponder, for appellant.

      Horace Sloan, for appellee.
   Kirby, J.,

(after stating the facts). Appellants only insist here that no authority is granted by % 3630 of C. & M. Digest to extend the ditches or improvement, the same having been completed, and that the court could not authorize it done under the provisions of § 3625 of the statutes, which only permit alteration of ’the plans for the ditches or drains before the completion of the project; and that no authority is given by law for an issuance of bonds or levying taxes upon assessment of benefits already made, the law not authorizing the further issuance of bonds to make new or additional improvements.

Section 3630 of C. & M. Digest provides as follows:

“The district shall not cease to exist upon the completion of its drainage system, but shall continue to exist for the purpose of preserving the same, of keeping the ditches clear from obstructions, and of extending, widening or deepening the ditches from time to time as it may be found advantageous to the district; to this end the commissioners may, from time to time, apply to the county court for the levying of additional taxes. Upon the filing of such petitions notices shall be published by the clerk for two weeks in a newspaper published in each of the counties in which the "district embraces lands, and any property owner seeking to resist such additional levy may appear at the next regular term of the county court and urge his objections thereto, and either such property owners or the commissioners may appeal from the finding of the county court. ’ ’

This section declares that the district shall not cease to exist upon completion of its drainage system, “but shall continue to exist for the purpose of preserving the same, of keeping the ditches clear from obstructions and of extending, widening or deepening the ditches from time to time as it may be found advantageous to the district.” * * *

This does not preserve the district for any purpose other than expressly declared, and does not authorize the district to make a new or different improvement therein not in the nature of extending, widening or deepening the ditches already constructed, after the completion of the first one, as held in Indian Bayou Drainage District v. Walt, 154 Ark. 335, 243 S. W. 575.

In Bayou Meto Drainage District v. Ingram, 165 Ark. 318, 264 S. W. 947, the court held that the plans of the improvement could he altered before the project had been completed, as originally planned, allowing the extension of the boundaries of the district to include 'additional lands, which would necessarily be benefited by the extension of the main ditch, saying, relative to the completion thereof:

“The statute clearly takes cognizance that a drainage scheme is ineffectual and incomplete unless the water is completely gathered up and an outlet provided for carrying it entirely away. In other words, the statute contemplates that a drainage ditch does not drain unless the water is taken care of and entirely carried away. So there is a clearly expressed purpose on the part of the lawmakers to authorize everything that is necessary to get the water off the land and into an outlet which will carrry it somewhere into the open channel of a stream. ” * * #

Appellants contend that-the case of Clay v. England, 172 Ark. 373, 288 S. W. 895, is in point, and holds conclusively that § 3630, C. & M. Digest, does not authorize the extension of the ditches herein. It was only held there, however, that the new canal, proposed to be constructed to furnish an adequate outlet, being no part of the original plans of the district, as approved or revised, could not be authorized constructed under the statute, the plans having been fully completed.

Authority is expressly given by said section of the statutes for the purpose of preserving the drainage system, keeping the ditches clear from obstructions and “of extending, widening or deepening the ditches from time to time as it may be found advantageous to the district.” Giving these words of the statute tbeir plain^and obvious meaning, it is manifest that the Legislature intended that the district should have the authority for extending, widening or deepening the ditches £ ‘ as it may be found advantageous to the district” to do. Extending can mean nothing else, in the connection used, but lengthening, since-authority is also given for widening and deepening the ditches already made.

It is not contemplated here that a new or different canal or ditch shall be constructed, but only that the main ditches shall be extended or lengthened to reach or terminate in an adequate outlet which was in contemplation at the time of the adoption of the original plans as suggested in the engineer’s report. In fact, the project has never been more than substantially completed, since the one ditch lacks about 50 feet and the other about 100 feet of being carried into the small channel of the river. It was substantially completed, however, since the construction was stopped at this point and the water carried by wearing its way into the channel of the river.

When the construction was stopped, the necessity for an adequate outlet was more apparent, and it was contemplated that another district might be formed, joining the one in operation, for extending the improvement on to an adequate outlet in the open lake. This was hot accomplished, and, even though the original plans may be regarded completed and the improvement constructed, preventing the change or alteration of the plans, nevertheless, under the provisions of the statute authorizing the “extending, widening or deepening the ditches,” power is given and authority conferred to lengthen or extend the ditches into an adequate outlet, as held by the lower court.

There is no conflict between this holding and any heretofore made in the construction of these statutes.

The court below found that the lands through which the extension would be constructed would not be benefited, and they could not, of course, be required to be included in the district. Tlie statute expressly authorizes the district, where necessity requires it, to obtain a proper outlet 'for the drainage system, to construct ditches on lands beyond the limits of the district and outside the jurisdiction of the county court. Section 3629, C. & M. Digest.

The lands of the district being in more than one county, the proceeding must necessarily be before the circuit court, as the statute provides, which procedure was followed in this cause.

The judgment and orders of the lower court authorizing the procuring of the right-of-way for the extension of the improvement or outlet and the assessment of benefits and issuance of bonds for the completion thereof are correct and in all things affirmed.


author: Kirby, J.

text:
    Missouri Pacific Railroad Company v. Sisk.
    Opinion delivered May 23, 1927.
    1. CARRIERS — RECOVERY OF CORRECTED FREIGHT CHARGE. — In the absence of competent evidence as to shipments and weights, the court properly directed a verdict for defendant in an action by a ' railroad company for the balance claimed to be due on a corrected charge of freight rates.
    2. Carriers — recovery of correct rate. — -A railroad company charging a consignee less than the co'rrect freight rate is entitled to recover the difference between the rate charged and the correct rate.
    3. Carriers — undercharge — sufficiency of evidence. — In a railroad company’s action for the balance due from the consignee on a correct charge of freight rates, a letter from defendant to plaintiff’s auditor, denying that plaintiff had any claim since defendant would not have purchased the hay for shipment except upon the understanding that the rate given him was correct, held insufficient to take plaintiff’s case to the jury.
    Appeal from Independence Circuit Court; Dene H. Coleman, Judge;
    affirmed.

      Thos. B. Pryor and H. L. Ponder, for appellant.

      J. R. Alexander, for appellee.
   Kirby, J.

The railroad company brought this suit in a-justice court of Independence County for a balance of $73 claimed to be due on a correct charge of freight rates on three cars of hay shipped from White Bead, Oklahoma, to appellee at Tuckerman, Arkansas, the charge and payment for such shipment being made under a rate of 5iy2e per hundred, by mistake or otherwise, when it should have been on the basis of the correct rate fixed by the Interstate Commerce Commission for shipment of a like kind of 61%0 per hundredweight.

Appellant attempted to introduce in evidence what it claimed to be the original bills of lading and waybills of the three shipments, which the court excluded, same not being identified by any witness who had any knowledge of or connection with the transaction. It introduced certificates from the Interstate Commerce Commission showing the rates that should have been applied and charged for transporting the hay. There was also a letter from Sisk to the auditor of the freight rates of the railroad company introduced in evidence, denying, that the company should have any claim against him for freight charges, since he ascertained from the agent of the road, before buying the hay, that the rate was 5iy2c per hundred; otherwise the hay would not have been purchased.

There was no testimony introduced showing the shipments nor the weight of the commodity shipped, and the court directed a verdict against the railroad company, from which it prosecutes this appeal.

It is contended that there was some testimony supporting plaintiff’s claim, and that the court erred in directing a verdict against it.

The court excluded from the consideration of the jury the original bills of lading and the waybills showing the contents of the car, the weight of the product and the rate charged in what purported to be such bills, because same were not identified by any witness wbo had any knowledge of the making of same or the transactions reflected by them. It correctly told the jury that the plaintiff would be. entitled to recover the difference between the rate actually charged and paid and the correct rate that should have been charged, but that there was no competent evidence on which they could find for the railroad company, and directed the verdict against it accordingly.

The most that could have been inferred from the letter acknowledged to have been written by Sisk was that the railroad company should have no claim against him at all, since he would not have purchased any hay for shipment if he had not understood that the rate of 5iy2G per hundred had-been correctly given him. This admission alone could not, of course, have indicated the amount the railroad was entitled to recover, and no error was committed in directing "the verdict.

The judgment is affirmed.


text:
    Lewis v. Pettis.
    Opinion delivered May 23, 1927.
    1. Appeal and error — conclusiveness op chancellor’s finding.— The chancellor’s finding of fact based on conflicting evidence has persuasive authority, and is entitled to weight and consideration on appeal.
    2. Cancellation of instruments — evidence. — The cancellation of a deed from aged negroes to the wife of the family physician held not error, in view of testimony that they were incapable of making a valid conveyance. -
    3. Cancellation op instruments — improvident disposition of property. — While solemn contracts between men should never be disturbed on slight grounds, yet, whenever a person through age, decrepitude, affliction or disease ¡becomes imbecile and incapable of managing his affairs, an Unreasonable or improvident disposition of his property will be set aside in a court of chancery.

      Appeal from Phillips Chancery Court; A. L. Hutchins, Chancellor;
    affirmed.

      Sheffield & Coates, for appellant. -

      Moore, Walker & Moore, for appellee.
   Kirby, J.

This appeal comes from a decree of the chancery court of Phillips County canceling a deed made by appellees to appellant, conveying 156.86 acres of land, upon allegations that same was procured by false and fraudulent representations and impositions upon the grantors, aged and ignorant negroes of feeble mind and intellect, lacking capacity to make such conveyance.

The answer denied the allegations of the complaint; alleged that the grantors understood the nature of the transaction; that, although the deed recites only the payment of $10 consideration and other good and valuable consideration, the grantee agreed to pay $2,000 for the lands, and executed 10 promissory notes for the sum of $200 each, payable yearly, one each year, on the same date, the first one the 24th of March, 1925; that she also assumed the payment of an indebtedness to the bank of $400, secured by a mortgage on the land; had paid the interest of $40 due thereon and kept it up since; made improvements thereon amounting to $769.39; that they had put the lands into appellant’s hands to sell, and, after several unsuccessful attempts to make the sale thereof for $2,000, they had importuned appellant to purchase the lands, which was done on the terms alleged.

The testimony shows that the grantors, old and feeble, past 70 years of age, lived alone on the lands, and were not able to cultivate them; that they were ignorant and childish and incapable of intelligently comprehending their acts or making a valid conveyance of their lands; that they did not understand they had made such a conveyance anyway, but only thought they had executed a contract to convey at the end of the. 10 years, when all the consideration was paid, and that the .contract and notes would be held by the bank until it was performed. There does appear in the record a copy of a contract of the kind, bearing date two days after the execution of the deed.

The testimony is in conflict as to the mental capacity of the grantors in the deed, hut we cannot say that the finding of the chancellor, that they were incapable of intelligently comprehending or acting upon the affairs out of which the conveyance grew and understanding the nature and consequences of their act in making it, is against the preponderance of the evidence. In this kind of a conflict the chancellor’s finding has persuasive authority, and is entitled to weight and consideration.

The evidence discloses, as found, that the lands were worth about $5,000, that they were conveyed for a grossly inadequate consideration by these old negroes, and,no lien retained in the deed nor security given even for the payment of the amount agreed to be paid.

One of the witnesses, a merchant and banker, who had known and dealt with the appellees for 20 years, testified that, in his opinion, they were incapable of making a valid conveyance of their property; that they had approached him and desired to convey their lands to him if he would take care of them during the balance of their lives, but he did not believe them possessed of sufficient understanding to make a conveyance of their lands, and would not permit them to do so. Then, too, appellant’s husband, who negotiated the transaction for her, was the family physician of the grantors.

Other witnesses testified that the grantors had sufficient capacity to understand the consequences of their act and to make a valid conveyance of their lands, and that the arrangement made with appellant was really to their advantage under the circumstances, if faithfully carried out.

The rule under which such conveyances are- set aside has been followed by the court since its announcement in Kelly’s Heirs v. McGuire, 15 Ark. 555, as follows:

“While the solemn contracts between men should never be disturbed on slight grounds, yet it may perhaps be assumed as a safe general rule that, whenever a person, through age, decrepitude, affliction or disease, becomes imbecile and incapable of managing his affairs, an unreasonable or improvident disposition of his property will be set aside in a court of chancery. ’ ’ See also Oxford v. Hobson, 73 Ark. 170, 83 S. W. 942; Boggianno v. Anderson, 78 Ark. 420, 94 S. W. 51; West v. Whittle, 84 Ark. 490, 105 S. W. 955; and Morton v. Davis, 105 Ark. 104, 150 S. W. 117.

The chancellor also ascertained the balance due appellant on account of payments and improvements made after charging her with rents for the time the place was occupied, and fixed a lien on the lands for the payment thereof.

On the whole case we find no prejudicial error, and the decree is affirmed.


author: Mehaeey, J.

text:
    Barton v. Drainage District No. 30.
    Opinion delivered May 23, 1927.
    1. DRAINS — PROPERTY PARTLY OUTSIDE city. — The fact that a portion of the property included in a drainage district was within a city and part of it outside does not render the district invalid.
    2. Drains — distinction between drains and sewers. — The chief difference between drains and sewers is that they are called “sewers” in cities and closely populated communities, while they are called “drains” in rural and agricultural communities.
    3. Drains — validity of district. — A drainage district embracing about 6,500 acres of land, of which 1,000 were within a city, held not invalid as .being two improvements.
    Appeal from Craighead Circuit Court, Jonesboro District; G. E. Keck, Judge;
    affirmed.

      Basil Baker, for appellant.

      Gordon Frierson and Penix & Barrett, for appellee.
   Mehaeey, J.

A petition was filed in the county court at Jonesboro, by owners of real property, asking for the formation of a drainage district. Certain taxpayers filed remonstrance, and the circuit court, after a hearing, found that all of the real property included within the proposed district would be greatly enhanced in value and the health of the= residents greatly improved, public roads and highways benefited, and it would be to the advantage of the owners of real property to establish the district, and ordered the establishment of the. district and the drainage as prayed in the petition.

Certain property owners appealed to this .court, and their contention is that the entire scheme is one for purely municipal improvements, or, if not for municipal improvements, there is not any unity in the several projects.

The drainage district embraces about 6,510 acres of land, according to appellant’s statement, and to be taxed at $212,975. One thousand and ten acres of the property is city property,, divided into approximately 3,500 lots. The appellant's earnestly contend that the district cannot be formed lawfully because there is no unity and no authority in law for this kind of proceedings. - That this is a scheme to drain the city with a system of storm-sewers, seeking an outlet through the rural property.

We think this question is answered against the contention of appellants in the case of Butler v. Board of Directors Fourche Drainage Dist., 99 Ark. 100, 137 S. W. 251. In that case the -court said, speaking through Chief Justice McCulloch :

“Appellant owns real property in the city of Little Rock, and in an action instituted in the chancery court of Pulaski County he attacked the validity of an act of the General Assembly creating and laying off an improvement district 'for the drainage of certain portions of the Fourche bottoms and contiguous territory.’ The boundaries of the district include the whole of the city of Little Rock and several adjoining townships outside of the city. Fourche Bayou, the stream to be drained, lies wholly without the city limits, but the bottom or flooded lowlands extend into the city limits. The statute, as subsequently amended, authorizes the board of directors of the district to proceed with the making of the improvement, the assessment and collection of taxes, the borrowing of money, etc., without procuring the assent of a majority in value of the owners of real property in the district. ’ ’

The court then quotes art. 19, § 27, of the Constitution of Arkansas, and, continuing, the court says:

“The question is now presented to us, for the first time, whether the above-quoted section of the Constitution applies to and forbids the creation of an improvement district lying partly in and partly outside of a city or town without obtaining the consent of the property owners. The Constitution of the State is not a grant or an enumeration of powers vested in the legislative department, but is a limitation upon the exercise of such powers, and the Legislature can exercise all the powers not expressly or by fair implication forbidden by the Constitution. State v. Ashley, 1 Ark. 511, 513.
“We are of the opinion that the above quoted provision of the Constitution applies only to assessments for improvements purely local to a municipality, and not to local improvements covering wider territory, even though a part or all of the municipality be included therein. An improvement district like this, covering territory both in and out of a municipal corporation, does not fall within either the letter or the spirit of the constitutional provision. It is not a local improvement in a town or city, and therefore not within the letter of the constitutional prohibition. It is not within its spirit, for, there being no inhibition upon the creation of districts outside of cities or towns, there is no reason for construing the provision to mean that the consent of the property owners inside of the city or town must be obtained, whilst the wishes of the property owners in the same district outside of the city or town may be ignored.” Butler v. Bd. Dir. Fourche Drainage Dist., 99 Ark. 100, 137 S. W. 251; Cox v. Road Improvement Dist. No. 8 of Lonoke County, 118 Ark. 119, 176 S. W. 676; Cumnock v. Alexander, 139 Ark. 153, 213 S. W. 767; Thompson v. Mann, 159 Ark. 391, 252 S. W. 4.
“So far as the authority of the Legislature to form a district or to authorize its formation by the circuit court Or other agency is concerned, including property both in the city and in the country, is settled by the decision in Butter v. Board of Directors Fourche Drain. Dist., above mentioned. The fact that a portion of the property was in the city of Jonesboro and a part of it outside the city does not make the district invalid.
.“Appellants, however, argue earnestly that it is invalid because it is two improvements; that there is a distinction between a sewer and a drain or ditch, and, in support of that argument, call attention to Words & ■Phrases and Ruling Case Law. We do not agree with counsel for appellant in this contention. There may be a distinction between a sewer and a drain or ditch, but there is not necessarily any distinction.”
“The section of R. C. L. referred to b}r appellant, among other things, states: ‘The words “drain” and “ditch” have no technical or exact meaning, but are used to signify a hollow space in the ground, either natural or artificial, where water is collected or conveyed away. A drain as distinguished from a sewer may be open and is so arranged as to carry away surface water, but, as used in a statute, the word has been construed as broad enough to include sewers, and the.term “sewage” is generally held to include matter carried away in drains as well as that carried away in sewers, though not such matter as may incidentally be washed or cast into streams without the mediation of a sewer or drain. It has been said that the only difference between drains and sewers is that they are called sewers in cities and closely populated communities, while they are called drains in rural and agricultural communities, and the further difference that sewers are generally covered over to prevent the escape and dissemination of foul odors and noxious gases, and conceal the passage of their contents through the streets, while drains are open. And whatever technical differences there may be in the definitions of the two, the principles applicable to drains and sewers are very similar’.” 9 R. C. L. 618.

The authorities referred to in Words & Phrases are also in accord with the rule of law above stated. That is, that the chief difference between drains and sewers is that they are called sewers in cities and closely populated communities while they are, called drains in rural and agricultural communities. The .object of drains, both inside and outside of the city of Jonesboro, in this.case is the same.

We do not deem any extended discussion necessary, for the reason that we think the case is ruled by the ease of Blutler v. Bd. Dir. Fourche Drain. Dist. above mentioned. We conclude that it is one improvement for the purpose of draining the territory described, and that it is a valid district. It does not violate any constitutional or statutory provision as heretofore construed by this court. The judgment of the circuit court is therefore affirmed.