author: McCulloch, C. J.'

text:
    St. Louis-San Francisco Railway Company v. Barron.
    Opinion delivered December 15, 1924.
    1. Removal of causes — right to removal. — The rule that where the right of removal to a Federal court - does not appear when defendant is called upon to plead, defendant may petition therefor at any stage of the proceedings when facts warranting it are shown to exist by pleadings, has no application where the complaint disclosed facts entitling- defendant to such removal.
    2. Master and servant- — safety appliance act — assumed risk. —The defense of assumed risk is not' available in an action based on a violation of the Federal Safety Appliance Act.
    .3. Commerce — safety appliance act — A railway company engaged in interstate commerce is.liable to an employee injured in consequence of its failure to comply with the Safety Appliance Act (U. S. Comp. Stat. § 8605 et seq.) though the engine on which plaintiff was injured was not at the time' actually engaged in interstate commerce.
    4. Master and servant — test of employment. — In an action under the Safety Appliance Act, whether plaintiff was acting as employee -at the time of his injury depends upon the language of the statute as construed by the Supreme Court of the United States.
    5. Master and servant — employee riding home from work.— Under a custom permitting employees to ride home from work, an employee riding home on the employer’s engine was entitled to be treated as an employee, rather than as a bare licensee or- • trespasser.
    6. Evidence — rule of interstate commerce coMMissiON.-^-The courts take judicial notice of the regulations of the Interstate Commerce Commission.
    7. Master and servant — violation of regulation — evidence.— Evidence held to warrant a finding that a railroad negligently permitted a valve on its tender to come within two inches of the handhold, in violation of the requirements of the Interstate Commerce Commission.

      8. Master and servant — duty to comply with safety appliance act.- — A railroad company has a continuing- duty to maintain its equipment so as to comply with the Safety Appliance Act and the rules of the Interstate Commerce Commission, and it is liable for any damages resulting from violation of that duty.
    9. Master and servant — proximate cause of injury — jury question. — Testimony of plaintiff that the gauntlet of his glo.ve caught on a valve located within the prohibited distance from a handhold held to raise the question for the jury whether the railroad’s negligence in permitting the valve to be so placed was the proximate cause of plaintiff’s injuries.
    10. Master and servant- — -contributory negligence. — The act of an experienced railroad fireman in alighting from an engine moving at the speed of two miles per hour was not contributory negligence as a matter of law.
    11. Master and servant — contributory negligence. — Use by a fireman of gauntlet gloves, one of which caught on a valve as he was alighting from the engine, was not contributory negligence as- matter law.
    12. Evidence — opinion.-—-Testimony of plaintiff that, had the valve .been in proper position, his glove would not have caught, held not inadmissible as an opinion, or, if an opinion, not objectionable where he stated the facts on which such opinion was based.
    Appeal from Crawford Circuit Court; James Cochran, Judge;
    affirmed.

      W. F. Evans, and Warner, Hardin & Warner, for appellant.
    The court erred in denying the petition for removal to the U. S. District Court. 75 Ark. 116; 152 Ark. 258. A case not removable when commenced may afterwards become removable. . 246 U. -S. 276; 169 TJ. S. 94. The, petition to remove was- in time when it was filed as soon as the amendment to the complaint was made proving citizenship in Arkansas. 212 TJ. S. 364; 89 Ark. 95; 209 Pac. 312. Upon proof of citizenship in this State the complaint is deemed amended to conform thereto. 88 Ark. 363. Defendant did not waive its right of removal by answering and going to trial. 27 B. C. L. § 2, p. 904; Id. § 5, p. 908. See also 96 Ark. 379; 36 Ark. 481. Plaintiff was a mere licensee, and no duty to him was violated by defendant. 113 Ark. 265; 172 Pac. 929; 56 Okla.' 765; 156 Pac. 654; 77 Okla. 54; 4 Elliott on B. B. . (3rd ed.) § 1869, p. 126; 3 Elliott on B. B. § 1789, p. 837; 212 Pac. 314; 195 Pac. 139, § 114 Ark. 218; 159 Ark. 423; 138 Pac. 325. Even if it be assumed that plaintiff was an employee, still there was no negligence shown upon the part of deféndant. 220 Pac. 853; 155 Ark. 585; 219 Pac.. 372; 221 Pac. 80. See also 133 Ark. 336; 80 Ark. 396. If any negligence of defendant was proved it was not the proximate cause of the injury. 220 Pac. 853; 154 Pac. 667; 179 Pac. 590; 184 Pac. 758; 113 Ark. 60; 106 Ark. 436; 90 Ark. 210. Plaintiff was guilty of contributory negligence, which bars a recovery by him. 163 Ark. 335; 48 Okla. 15; 41 Ark. 542; 90 Ark. 387; 93 Ark. 484; 198 S. W. 529. Plaintiff assumed the risk, and cannot recover. 170 Pac. 485; 254 U. S. 415; 135 Ark. 563. See also 153 Ark. 236.; 137 Ark. 95; 149. Ark. 77. Instruction No. 2 was erroneous in that it assumed the existence of certain facts not proved in the case. ■ 88 Ark. 20; 71 Ark. 518; 69 Ark. 489; 87 Ark. 471; 156 Ark. 46'5; 152 Ark. 90. There was ho competent testimony to prove the existence of the interstate commerce rule relied on. Courts will not take judicial notice of such rules. 23 C. J. § 900, p. 102; 138 N. W. 809; 63 S. W. 323. Instruction No. 4 was erroneous in declaring that plaintiff did not assume the risks or dangers created by the negligence of the master or his servants, unless such risks and dangers were known to him and appreciated by him. 147 Ark. 95; 153 Ark. 236; 170 Pac. 485. The court erred in admitting opinion evidence. 66 Ark. 494; 82 Ark'. 214. See also 85 Ark. 488; 97 Ark. 180; 133 Ark. 336.

      George G. Stochard and G. L. Grant, for appellee.
    By failing to file its petition to remove before answering, appellant waived its rigiht to a (removal.' Lewis on Bemoval of Causes, 135; 169 IT. S. 92; 138 U'. S. 298; 246 U. S. 276; 260 U. 'S. 261; 260 IT. S. '653. Appellee was an employee and not a licensee at the time he was injured. 161 Ark. 183; 98 Ark. 259; 78 Ark. 510; 85 Ark. 503; 115 Ark. 478; 44 Atl. 592; 74 N. E. 1097; 82 N. E. 705; 19 L. R. A. (H S.) 717; 60 Utah 161. .Plaintiff was protected by the Safety Appliance Act. It is sufficient that the company was an interstate carrier. 241 U. S. 33. The Federal statute imposes an absolute duty upon appellant to maintain the safety appliances in. a secure condition. Roberts, Fed. Liab., vol. 2, § 834, p. 1368; 241 U. S. 33; 71 Ark. 445; 210 U. S. 281; 83 Ark.-591; 220. U. S. 559; 220 U. S. 580. The court will take judicial notice that appellant is an interstate carrier^ 94 Pac. 138; 16 Cyc. 861;'23 €. J. 1823, p. 66; 605 E. 506. Under the Federal statute it is not necessary to prove negligence as in cases under the common law. -112 Ark; 305. See also-86 Ark. 244. The question of. contributory negligence was properly submitted to the jury. 86 Ark. 244; Roberts, Interstate Liability, vol. 2; p. 1400. On the question of assumed risk, appellee was not required by law to make an inspection to find the defect. 98 Ark. 240. It was the unqualified duty of appellant to provide appliances as required by the statute. 242 U. S. 617; 241 U. S. 33; 86 Ark. 244. Courts will take .judicial notice of safety appliance standards for the Interstate Commerce Commission. 20 C. J. 1897, p. 97, citing 107 Atls 118; 149 Ark. 502; 90 Ark. 350; 130 Ark. 456; 134 Ark. 424; 137 Ark. 165; 141 Ark. 495; 150 Ark. 303.. The evidence objected to by appellant cannot be classed as expert evidence, and is in line with the holding in 88 Ark. 484.
   McCulloch, C. J.'

This is an action instituted by appellee against appellant to . recover for personal injuries., The injuries occurred at a suburb of the city of Muskogee, in the State of Oklahoma. Appellee was a fireman in the service of appellant. He had a regular day run in the operation of a train, and worked extra at night as hostler in the yards at Muskogee, the duties of that position being to prepare trains for road service. On the evening of the day before appellee received his injury he returned to Muskogee from his regular run, and was cálled to serve as hostler during the night. This work was finished early next morning, and, after riding on an engine from the roundhouse to the passenger station to put away the shovel with which he worked, he started for his home, riding an engine, from which he alighted while the engine was moving slowly, at a street near his home. He wore a pair of gauntleted gloves, which firemen were accustomed to wear, and, as he was about to alight, he took hold of the grab-iron on the edge of the tender, near which was an appliance called a globe valve, and, as he stepped off the engine, the gauntlet of his glove caught on some part of the valve, which caused him to swing around, and he fell to the ground. One of his legs was projected under the tender, and was run over by one of the wheels. It became necessary to amputate the leg below the knee.

Appellee charges that there was a general custom of long standing for employees to ride on the engines on their return to their homes after work, so that this privilege became a part of the contract of service, and that, while riding towards his home on this occasion, he was still in tlie service of his employer, and not a bare licensee or trespasser.

The engine on which appellee was riding w.as not actually engaged in performing an act of interstate commerce, but appellant is an interstate carrier, and it is claimed that liability of appellant falls within the control of the Federal statute known as the Safety Appliance Act. There is a rule of the Interstate Commerce Commission, adopted March 13, 1911, which prescribes that, on all locomotives in service, there shall be “a minimum clearance of two, preferably two and a half inches,” for all handholds, and the charge of negligence in this case is that the globe valve in question at the time of appellee’s injury was situated within less than two inches of the handhold on the tender, in violation of the- rules of the Commission. It is alleged in the complaint that the globe valve was placed in dangerous proximity to the handhold, and it is also charged that the valve was permitted to get out of repair so as to lessen the distance below the requirements of the Commission. There was a denial of the allegations with respect to the charge of negligence, and there was a plea of contributory negligence on the part of appellee, and also a plea of assumption of risk.

. The action was instituted in the circuit court of Crawford County, and tried in that court.

The complaint contained an allegation that appellee was a citizen and resident of the State of Oklahoma, and that appellant is a Missouri corporation. There was a verdict in favor of appellee, assessing damages in the sum of $15,000. It developed from thé testimony adduced by appellee that, at the time of the trial, he had become a resident of Crawford County, in the State of Arkansas, and thereupon appellant filed its petition and bond for removal of the causé to the Federal court on the ground of diversity of citizenship. ' The petition was overruled, and that ruling constitutes the basis for appellant’s first assignment of error.

Counsel for appellant invoke the rule established by decisions of the Supreme Court of the United States that, where the jurisdictional facts upon which the right of1 removal exists do not appear from the face of the pleadings at the time the defendant in the action is called upon to plead, the petition may be filed at any stage of the proceedings when those facts aré shown to exist by the pleadings. Fritzler v. Boatmen's Bank, 212 U. S. 364; Great Northern Ry. Co. v. Alexander, 246 U. S. 276. The difficulty with appellant’s contention is that, according to recent decisions of the Supreme Court of the United States, the jurisdictional facts for removal existed under the original pleadings, in that the complaint charged that appellee was a citizen and resident of Oklahoma, and that appellant was a Missouri corporation. General Investment Co. v. Lake Shore & M. S. Ry. Co., 260 U. S. 261; Lee v. Chesapeake & Ohio Ry. Co., 260 U. S. 653. The contention therefore that the jurisdictional facts, according to the allegations of the original complaint, did not exist, is unfounded.

It is argued that, at the time of the commencement-of the action, under the decisions of the Supreme Court of the United States in the case of Ex parte Wisner, 203 U, S. 449, there was no right of removal under the facts charged, and that the law was subsequently changed by another decision of that court. This is not correct, for, under the decisions of the Supreme Court of the United States cited above, the law had always been, under the removal statute, notwithstanding what was thought to be the ruling in the Wisner case, that the facts set forth in the original complaint afforded jurisdictional grounds for removal of a cause to the Federal court. In other words, there was no change in the law at all between the time of the commencement of this action and the filing of the petition for removal, and the fact that counsel misconceived the state of the law at the time appellant was first required to plead did not avert the effect of the failure to appropriately petition for a removal as a waiver of that right. It follows therefore that the trial court was correct in denying the petition for removal.

It is next contended that the evidence is not legally sufficient to sustain the verdict, in that it fails to establish negligence on the part of appellant, and that it establishes beyond dispute that appellee was guilty of contributory negligence, and that he assumed the risk.

The plea of assumption of the risk may be easily disposed of on the ground that that defense is not available in an action involving a violation of the Federal Safety Appliance statute. It is clear that that statute applies in this case, and is the sole test of liability. Though the engine on which appellant was riding at the time of his injury was not actually engaged in interstate commerce at that time, the fact that the company was engaged in interstate commerce brings the case within the operation of the Federal statute so far as concerns the question of assumed risk. Texas & Pacific Ry. Co. v. Rigsby, 241 U. S. 33.

The first consideration in testing the sufficiency of the evidence is the particular relation which subsisted between appellant and appellee at tbe time of the latter’s injury, whether he was acting as an employee at that time, or whether he was, a trespasser or a bare licensee. The character of this relation depends upon the decisions of the Supreme Court of the United States, if any have been rendered on that question. Though the injury occurred in the State of Oklahoma, the test of all substantive questions relating to liability must depend upon the Federal statute and the interpretation thereof by the Supreme Court of the United States. N. O. & N. E. R. Co. v. Harris, 247 U. S. 367. No decisions of that court have been brought to. our attention directly deciding what the relation is upon the state of facts shown in this record, and we are therefore at liberty to look to the general principles of the law as announced by our own court- in determining what the character of that relationship was. According to our decisions, appellee was, under the facts shown, neither a bare licensee nor a trespasser, but was an employee within the line of his duty in being transported from his place of work to his home. Arkadelphia Lbr. Co. v. Smith, 78 Ark. 505; St. L. I. M. & S. Ry. Co. v. Harmon, 85 Ark. 503; St. L. I. M. & S. Ry. Co. v. Wiggam, 98 Ark. 259; Chicago, R. I. & P. Ry. Co. v. Smith, 115 Ark. 473; Boyle-Farrell Land Co. v. Haynes, 161 Ark. 183. According to the evidence adduced, it was, at the time of appellee’s injury and for a long time prior thereto, the general custom for employees to ride on the engines from their places of work to their homes. This was done by the direction of the superior agents of the company in charge at Muskogee. • This custom became, impliedly, an element of the contract between the company and its servants at that place, and appellee was entitled to the privilege -as a part of his. contract. Boyle-Farrell Land Co. v. Haynes, supra. Appellee at that time, pursuant to that custom, had the right, under his contract, to ride, and was entitled to the same protection as that afforded to a passenger. St. Louis, I. M. & S. Ry. Co. v. Harmon, supra.

There was no evidence introduced as to the requirement prescribed by the Interstate Commerce Commission, but of that we take judicial, notice. K. C. S. Ry. Co. v. State, 90 Ark. 343; Cazort v. State, 130 Ark. 453. The failure to comply with the requirements .of the Commission created liability for any injury which proximately resulted.

This brings us to a consideration of the' principal contention in the case, that the evidence does not show any negligence in failing to comply with the rules of the Commission with respect to the clearance distance between the globe valve and the grab-iron. Appellant introduced numerous witnesses who testified that the valve was affixed to the wall of the tender in an upright position, as it should be, and about six inches distant from the grab-iron, or handhold. Two of the witnesses introduced by appellee testified that they examined the appliance immediately after appellee’s injury, and that the part of the valve nearest the grab-iron was “within two or two and a-half inches of the grab-iron.” Those witnesses and others testified that the valve, when in proper place, was in an upright position from four and a-half to six inches distant from the grab-iron, but, at the time of appellee’s injury, the valve had been allowed to,become loosened, so that it leaned over at an angle of forty-five degrees in the direction of the grab-iron. This brought the valve at its nearest point less than two inches distant from the grab-iron. While the question is by no means free from doubt, we are of the opinion that this testimony warranted the jury in finding, from the situation described by witnesses, that the valve came within less than two inches of the grab-iron, which was in violation of the requirements of the Commission. There was a .continuing duty on the part of appellant to maintain its equipment in condition so as to comply with the Federal statute and the rules of the Interstate Commerce Commission, and it is liable for any damages resulting from violation of that duty. Texas & Pacific Ry. Co. v. Rigsby, 241 U. S. 33; Louisville & Nashville Ry. Co. v. Layton, 243 U. S. 617.

Counsel for, appellant argue' with much earnestness that the evidence adduced shows beyond doubt and is undisputed that the valve could not have become loose without causing a water leak, and that thé undisputed evidence shows that there was no leak. If the evidence was'undisputed, this contention would be sound, but the testimony adduced by appellant to the effect that the' valve was not bent and that it could not have been bent over without causing a leak, and the testimony adduced by appellee to the effect that the valve was, in fact, bent over towards the grab-iron at an angle of forty-five degrees, constituted a direct conflict in the testimony, which made it a question for the jury to determine which state of facts existed. We cannot say therefore that the testimony was undisputed. The jury might have found from thé testimony that the nut holding the valve in place became loose, permitting the valve to. turn over in the direction of the grab-iron. Appellee testified that the gauntlet of his glove hung on the wheel of the valve as he attempted to alight from .the engine, and this made a question for the-jury to'determine whether or not the failure to comply with the rules of the Commission with respect to the clearance distance between the valve and the grab-iron was the proximate cause of appellee’s injury.

■ The issue as to contributory negligence was submitted to the jury, and we are of the opinion that the evidence was sufficient to justify a finding in favor of appellee on that issue. There was evidence tending to show that the train was only moving at a speed of about two miles ah hour when appelléé attempted to alight. He was an experiénced railroad man, and it cannot be said ás á matter of law that it constituted negligence for: him to alight from the engine while it was moving at that rate of speed.

It is argued that the wearing of’ gloves with gauntlets was, under the circumstances, an act of negligence, but we cannot agree to that view. The evidence shows that the gloves were of a kind usually worn by trainmen, with, gauntlets to protect their wrists, and it did not, as a matter of law, constitute negligence to wear such an article of apparel.

The failure to comply -with the requirements of the Interstate Commerce Commission can be deemed the proximate cause of appellee’s injury, for the reason that the grab-iron was in place for the use of the trainmen in entering and alighting from the engine, and the requirement for certain clearance was for the specific purpose of protecting the men while so using the grab-iron.

We are of the opinion therefore that the evidence was sufficient to sustain the verdict on every issue in the case.

The assignments of error with respect to the court’s charge and refusal to give instructions requested by appellant are very numerous, and we .deem it unnecessary to discuss them, for the reason that all of the rulings of the court in that regard are in conformity with the law as herein announced.

There is another assignment of error with respect to the ruling of the court in permitting appellee, over the objections of appellant, to state that, if the valve had been in proper position, his glove would not have caught on it. The objection to this testimony is based on the contention that it was merely the opinion of a non-expert witness, and was therefore inadmissible. If we so treat the nature of the testimony, it does not follow that it was inadmissible, for the witness at the same time stated the facts upon which he based his opinion. We do not, however, think that the statement constitutes a mere opinion of the witness, for he was describing to the jury his own act in taking hold of the grab-iron, and it was a statement of a fact to say that, under the circumstances and the situation of the grab-iron, his glove would not have hung on the valve if it had been in an upright position with the proper clearance.

On the whole case, we are of the opinion that the record is free from error, and the judgment is therefore affirmed.


source: Caselaw Access Project

author: Hart, J., McCulloch, C. J.

license: Public Domain

text:
    Arkansas Natural Gas Company v. Sealy.
    Opinion delivered December 8, 1924.
    1. Evidence — judicial notice — inflammability of natural gas.— The courts •will' take judicial notice of the fact that natural gas is so inflammable that it will ignite with instant explosion immediately upon the application of flames to it.
    2. Master and servant — duty of master to promulgate rules.— Generally, where a master is engaged in a dangerous business, he must adopt and promulgate such rules for the conduct of his business and the government of his servants in the discharge of their duties as will afford reasonable protection to them, and he must adopt measures reasonably necessary to enforce observance of such rules.
    3. Master and servant — negligence—evidence.-—Evidence held sufficient to support finding that an employee’s negligence in striking a match, in violation of rules, caused an explosion of gas which burned plaintiff.
    4. Master and servant — liability for fellow-servant’s negligence. — Under a statute making a master responsible for injury to a servant caused by a fellow-servant’s negligence, the negligent act of a fellow-servant in striking a match where gas was escaping, causing injury to plaintiff, was attributable' to the master.
    Appeal from Hot Spring Circuit Court; Thomas E. Toler, Judge;
    affirmed.
    STATEMENT OF PACTS.
    A. "W. Sealy sued the Arkansas Natural Gas Company to recover damages for personal injuries alleged to have been received b,y him while in the employment of the gas company.

      The accident happened in March, 1923, and A. W. Sealy at that time was nearly twenty-five years of age. The Arkansas Natural Gas Company has a pipe-line extending through Hot Spring County, Arkansas, and Sealy had been.working for the company nearly a month when he was injured. John E. Barber was foreman of the gang, and was present when Sealy was burned. They were putting a six-inch flange together, connecting two six-inch lines from the well to the separator. There were six or seven men in the gang, and they were all present. Pour were working oil the connection, two of whom were tightening and two holding the bolts. The connection was being made in the usual and customary way, and the crew was using the usual tools and fittings. The line was about two feet off of the ground. Gas was escaping from the connection, and it was getting late. The hazards and dangers of oil and gas field work are much greater than usually attend other work. The company had posted a rule prohibiting smoking, and the foreman had always instructed his crew not to strike matches while they were at work. Some of the men say that the foreman started to hold the nuts and then told Sealy to hold them. He was holding the nuts for the other workmen at the time he was injured. One of the men, named Knight, who was not doing anything at this particular time, struck a match on his pants, with which to light a cigarette, and this caused the explosion which burned Sealy. Knight was standing between five and ten feet away at the time he struck the match. All of the men knew that the gas was escaping, and stated that Knight violated the rules of the company when he struck the match. Knight had been working, helping to put on the pipe, just ’before the match was struck, and knew that the gas was escaping. He stepped back just after he had quit work on the pipe line. he smoked cigarettes, and usually smoked eight or ten per day. He stated that he had been working on the connection where the gas was escaping, and knew that the gas was escaping. He stated further that the foreman had always warned them not to strike matches when they were engaged in work of that character.

      C. M. Knight was a witness for the defendant.
    He denied striking the match that ignited the gas, and said that he was carrying a pair of tongs to the wagon when the fire started. He admitted, on cross-examination, that

      Sealy was burned severely, and was disfigured for life.
    The jury returned a verdict for the plaintiff in the sum of $2,'250, and, from a judgment rendered against it in favor of the plaintiff, the defendant has duly prosecuted an appeal to this court.

      Mahony, Yocum & Saye, for appellant.
    The proximate cause of the injury was the striking of a match by one of the servants of appellant, and at a time when this servant was not in the course of .his employment or acting within the scope of his authority. The doctrine of res ipsa loquitur has no application here. It does not make any difference whether gas was escaping at the time, because it was not the fact that gas was escaping that caused the injury, but the striking of the match, without which appellee would not have been injured. 108 Ark. 483; 44 Fed. 857 ; 94 N. W. 444; 90 Ark. 210; 92 Ark. 13i3. When the master, conformably with his duty, has made reasonable rules for the protection of his servants, and has made them known to the servants, he is not liable if one servant is injured because of the failure of another servant to obey the rules, unless the rules have been abrogated. ' It is shown by the weig’ht of the evidence that Knight had finished his work for the day, and was standing by, looking at the others work. His striking the match was for purely a personal reason, and not in the course of his employment or within the scope of his authority as an employee. 115 Ark. 288, 296; 115 Ky. 447; 103 Am. St. Rep. 330; 93 Ark. 402; 2 Cooley on Torts, 1032; Wood on Master & Servant, 562; 66 L. R. A. 592; 96 S. W. 1073-74; 152 Ark. 258.

      D. D. Glover, for appellee.
    The evidence shows that the rule relied on here was for the protection of the company’s employees and for the protection of the foreman, as appears by his own testimony, and the evidence also shows that it was abrogated. Having learned that Knight was a smoker, it was negligence not to discharge him. Pelan Stave Co. v. Ramey, 108 Ark. 483, relied on by appellant, is not opposed to appellee’s contention, since the evidence here shows that the master’s negligence was the proximate cause of the injury. It is not sufficient to relieve the master from liability that he make a rule. He must see to it that it is obeyed. 58 Ark. 324, 332; 54 Ark. 299; 100 Ark. 442; 77 Ark. 405; 84 Ark. 376. If a rule is made, it must be one which is proper and sufficient under the circumstances, for due diligence is not satisfied by an insufficient and inadequate rule. 1 Bailey, Master and Servant, 798. The reasonableness of rules made for the protection of the master’s interests is quite different from the sufficiency of rules made to protect the servant. Id. 811. The question whether the risk was assumed by the servant in this case was one for the jury, and the verdict settles that issue in appellee’s favor. 88 Ark. 548; 95 Ark. 291; 97 Ark. 486; 90 Ark. 223.
   Hart, J.,

(after stating the facts). The sole ground upon which the judgment is sought to be reversed is that the evidence is not legally sufficient to warrant the verdict.

The evidence for the defendant, as well as for the plaintiff, shows that it is very dangerous to work in oil and gas fields. Indeed, it is a scientific fact of which the court will take judicial notice, that natural gas is so inflammable that, the moment a flame is applied to it, it will immediately ignite with an instant explosion. Holmberg v. Jacobs (Ore.), Ann. Cas. 1917D, p. 496; Jamieson v. Indiana Natural Gas & Oil Co. (Ind.), 12 L. R. A. 652, and Whittemore v. Baxter Laundry Co. (Mich.), Ann. Cas. 1916C, p. 818.

The general rule is that, where a master is engaged in a dangerous business, he must adopt and promulgate such rules for the conduct of his business and the government of his servants, in the discharge of their duties, as will afford reasonable protection to them. He must also adopt such measures as may be reasonably necessary to secure the observance of such rules. Railway Company v. Tripplett, 54 Ark. 289, and Railway Company v. Hammond, 58 Ark. 324.

In the case before us the master adopted a rule prohibiting the servants from smoking while they were working near the pipe lines where gas was likely to escape, and they were especially instructed by their foreman not to strike a light while working in such places. The men were working under the direct supervision of their foreman. He had a g’ang of seven men who were working together under his directions. They were engaged in fitting some pipes together which conducted gas from the main pipe line. Some of the men were doing one thing and some another; but all were engaged in the same work.

According to the testimony of the foreman, who was a witness for the defendant, Sealy was in the discharge of his duty at the time he was 'burned, and the work was being done in the usual and customary way. All of the gang knew that the gas was escaping. He stated further that if a match had been struck by some one standing ten feet away the flame would ignite the gas and the fire would travel like lightning.

Other witnesses testified that Knight smoked cigarettes daily, and that he started the fire which burned Sealy by striking .a match with which to light a cigarette.

The foreman further stated that he did not see what ignited the gas, but it must have.been a match, and that, if any one struck a match, it was negligently done.

Knight denied striking a match at the time Sealy was injured, but admitted that he carried matches and smoked cigarettes. He knew it was against the rules to strike matches while they were doing the work that they were doing when .Sealy was burned. He was gathering up the tools and was carrying a pair of tongs to the wagon at the time Sealy was burned.

Another witness said that Knight had ¡been working just before he struck the match, and knew that the gas was escaping when he struck it. Knight had been helping to put on the pipe, and then stepped back about ten feet when he struck the match.

It is legally and fairly inferable from this evidence that the lighted match caused the gas to explode and to burn Sealy. The evidence also shows that Knight struck the match, and that he was guilty of negligence in doing so. He was engaged in the same work with Sealy, and his negligence in striking the match caused the explosion which resulted in setting fire to the gas, and burned Sealy before he was aware that the match had been struck or could take any precautions to avoid the injury.

It is claimed by counsel for the defendant that the case comes within the exceptions to the rule as laid down in Arkansas Natural Gas Co. v. Lee, 115 Ark. 288, and American Ry. Express Co. v. Davis, 152 Ark. 258. We cannot agree with counsel in this contention. In each of those cases the servant had stepped aside from Ms employment, and was acting solely on his own account in a matter in which the master had no connection. So it was said that the servant was not acting for the master and was not his representative in the act which caused the injury.

In the case first cited the plaintiff was assaulted by another servant pursuant to a plan to drive him out of the defendant’s employment.

In the case last cited the plaintiff was killed by a fellow servant in playing with a pistol intrusted to him by the master. He was not engaged in doing any work for the master at the time, but had stepped aside to play with the pistol, a matter which was in no way connected with his employment.

In the case before us all of the men were working in the same gang. They knew that the gas was escaping and that it was against the rules to strike a match while engaged in such work. Knight, who 'struck the match, had just finished his work on the pipe, according to one witness, and was carrying some tools to the wagon, according to his own testimony. It is true that he denied striking the match, hut the fact that he did so is established by the testimony of other witnesses. The foreman of the defendant admitted that the striking of the match caused the injury, and that it was negligence to strike it at the time and place in question.

All of the servants were working together at the time Sealy was injured, and it constituted actionable negligence for one of them to violate a rule made for their common protection, the doing of which would likely result in injury to some of them. To illustrate: If several men, engaged in working around a place where gas was escaping or likely to- escape, should agree not to strike a light so that they might avoid exploding the gas and injuring each other, all would agree that it was actionable negligence for one of the persons to strike a match and cause an explosion which would burn one of his fellow workers. Now, under our statute, the master is responsible for the negligent act of one servant causing injury to his fellow workers. Therefore, the negligent act of Knight in striking the match which caused the g-as to explode and burn Sealy was also attributable to the master.

No other assignment of error is presented for a reversal of the judgment, and it will therefore be affirmed.

concurring opinion.

McCulloch, C. J.

The evidence seems to be legally sufficient to sustain a finding that the defendant, acting through its foreman, was negligent in failing to enforce the rule intended to afford protection to its employees, and the case is thus brought within the principles announced in Barrentine v. Henry Wrape Co., 105 Ark. 485, and cases there cited, hence I concur in the judgment of affirmance on that ground. I do not, however, agree that there is any liability on account of the negligence of Knight, the other employee, for he was-not acting at the time within the scope of his employment, but, on the contrary, his act in striking the match to light a cigarette constituted a stepping aside from his line of duty, and, in the performance of that act, he was not representing his employer. The case in that respect falls within the principle announced in the cases cited in the opinion of the majority.

The statute referred to in the opinion has no reference to the negligent act of a fellow-servant done during a departure from his line of duty. It is true that any negligent act committed by a servant is beyond the scope of his authority and the master is nevertheless responsible, but if the act itself is committed by the servant for his own personal convenience, and is entirely disconnected from the work which he is authorized to do, then the master is not responsible. In the present case the act of Knight in striking the match to light the cigarette was wholly for his own personal taste and convenience, and was entirely disconnected from any duties which Knight was authorized by his employer to perform, and there is therefore no liability on that account.

Mr. Justice Wood concurs.


author: Humphreys, J. McCulloch, C. J.

text:
    Snyder v. Bridewell.
    Opinion delivered December 8, 1924.
    1. Deeds — certainty.—As a general rule, deeds or mortgages, to pass title, must describe land with sufficient certainty to describe it, or make reference to something tangible by which the land can be located.
    2. Mortgages — description by reference to ownership. — A mortgage describing the lands conveyed as “all property owned by ■ the” mortgagor “or afterwards acquired by it in” certain counties was sufficient to constitute constructive notice to all persons dealing with lands owned by such mortgagor in those counties.

      S. Vendor and purchaser — rescission—laches.—Since an offer to rescind a contract of purchase of land must be made within a reasonable time after having had an opportunity to discover the grounds therefor, purchasers who remained in possession of the land for several years after purchase thereof without offering to rescind for defect or failure of title will be held to have forfeited the right to rescind.
    Appeal from Howard Chancery Court; C. E. Johnson, Chancellor;
    affirmed.

      W. P. Feasel, for appellant.
    Appellee had no title to the land conveyed. The words “all of the property of the Nashville Lumber Company owned by it on the date of the filing for record of the deed of trust” are too indefinite to pass the title to any particular tract of land. In all conveyances the grantor must describe the thing granted with sufficient certainty to ascertain its identity, or else the grant conveys nothing. 3 Ark 18; 30 Ark 640; 30 Ark. 659; 35 Ark. 476. The covenant of seizin contained in plaintiff’s deed was broken as soon as made, and, under the cases at- 33 Ark. 640, 8 Ark 368, and 74 Ark. 34, defendants, having tendered a quitclaim deed to plaintiffs, thereby placing plaintiff in statu quo by conveying the land back to him, is entitled to recover the purchase money paid for said land with interest thereon.

      Jas. 8. McConnell, for appellee.
    A deed is void for uncertainty unless it contains on its face a description of the land which is sufficiently certain to enable the property to be identified, or unless it contains such description as, with the aid of evidence outside of the deed and not contradictory, will identify and locate the land. 59 W. Va 91, 8 Ann. Cas. 929. This is a correct rule, and is not inconsistent with 3 Ark. 18 and the other cases cited by appellant. The purchasers located and took possession of the land by the aid of “evidence outside of the deed,” and the rule announced in 51 Ark. 390 applies.
   Humphreys, J.

This suit was brought by appellees against appellants in the chancery court of Howard County to foreclose a vendor’s lien for unpaid purchase money against all that part of the N% of the of section 36, township 7 south, range 27 west, north of Muddy Fork, in Howard County, Arkansas.

Appellants filed an answer and cross-complaint, interposing the defense that appellees had no title to the land when they conveyed it to them, and had acquired none since, and offering to rescind the contract of sale and purchase. In keeping with their offer to rescind their contract, they tendered a deed into court conveying said land back to appellees, and prayed for a judgment against them for the purchase money, which they had theretofore paid.

The cause was heard upon the pleadings and testimony adduced, which resulted in a judgment and decree of foreclosure for the unpaid purchase money of $433.18 and interest thereon, from which an appeal has been duly prosecuted to this court.

The record herein reveals the following undisputed facts: The land in question was formerly owned by the Nashville Lumber Company. This company executed a mortgage on all of its property in Howard and several other counties in Arkansas to the Lesser-Goldman Cotton Company for a large sum. The land in question was described in the mortgage, if at all, as “all property owned by the Nashville Lumber Company,' or afterwards acquired by it, in Howard and other counties in Arkansas.” The mortgage was foreclosed in the United States District Court for the Western District of Arkansas, Texarkana Division, and in all the proceedings the description of the property followed the description in the mortgage. The property was conveyed to the purchaser at the foreclosure sale, and by the purchaser at said sale to appellees under the same general description. Appellees however conveyed it under specific and definite description to appellants and placed them in possession thereof. Prior to the foreclosure proceedings aforesaid, the Nashville Lumber Company conveyed the land in question under specific and definite description to the Grays onia-Nashville Lumber Company, who still claims title thereto, but has never brought suit to evict appellants.

The instant suit was brought on March 28, 1923, and at that time appellants had been in actual possession of the land in question for several years, having moved upon same a short time after they purchased it on the 10th day of June, 1919.

The only questions arising on the appeal for determination by this court are, first, whether the general description contained in the Goldman mortgage, and the foreclosure proceedings thereunder, were sufficient in law to convey a title to the land; and second, whether appellants were in a position to interpose a defect or failure of title as a defense to a recovery of the unpaid purchase money.

(1) The general rule as to the sufficiency of a description to pass title to land under deed or mortgage in this State is that it shall be described with sufficient certainty to identify it. If not particularly and certainly described in the deed, the deed itself must make reference to something tangible by which the land can be located. Doe ex dem. Phillips Heirs v. Porter, 3 Ark. 18; Tolle v. Curley, 159 Ark. 175. The deed itself must furnish a key by which the land sought to be conveyed may be identified, and the real question in this case is whether the reference to ownership of lands in a certain county and State will accomplish this purpose. It will be observed that the description in the mortgage and foreclosure proceedings in the instant case embraces all the property owned by the Nashville Lumber Company in Howard and certain other counties in Arkansas. . Of course, a reference to a part of the lands owned by said company in said counties would be too indefinite and uncertain to pass title to any lands, but we think the description covering all the lands owned by said company in said counties is definite enough to satisfy our registration laws, and was constructive notice to all parties dealing with lands owned by said company in said counties. This exact point has never been decided by this court, but the rule thus announced is in accord with the weight of authority, and follows the rule laid down by the Supreme Court of the United States. Wilson v. Boyce, 92 U. S. 325; Harmon v. James, 45 Amer. Dec. 296 (Miss.); Roehl v. Haumesser, 114 Ind. 314; Higgins v. Higgins, 121 Cal. 489; Strouse v. Cohen, 113 N. C. 349; Smith v. Westall, 17 Tex. 509; Devlin on Deeds, § 1013; 8 R. C. L. 1076.

(2) Moreover, if the description were defective, appellants are not in a position to interpose a defect or failure of title as a defense to the recovery of the unpaid purchase money. Appellants remained in possession of the land for several years after purchasing same, and made no effort to rescind the contract on account of a defect or failure of title. Even if such a defense were permissible in .a suit for purchase money before eviction, a question unnecessary to determine, appellants, by lapse of time, have forfeited the right to rescind the contract. An offer to rescind a contract must be made within a reasonable time after having had an opportunity to discover the grounds therefor.

No error appearing, the decree is affirmed.

Chief Justice McCulloch and Mr. Justice Smith concur.

CONCURRING OPINION.

McCulloch, C. J.

The mortgage executed by Nashville Lumber Company to Lesser-Groldman Cotton Company conveyed by definite and accurate descriptions, according to government plats, a large number of tracts of land in Howard and other counties, and the list of properties concluded with the language copied in the opinion of the majority, and, prior to the foreclosure Qf the Nashville Lumber Company, conveyed the lands involved in this controversy to another concern, describing the tracts accurately by reference to government plats. The tract in controversy was, at the time of the execution of the mortgage, unoccupied, and there was no reference in the mortgage to occupancy. The question involved in the present discussion is whether or not such a description in a mortgage is sufficiently definite to constitute constructive notice to third persons. There is no question presented as to whether the description is sufficient to carry title as between the parties, or even as against third parties with actual notice. The effect of our own decisions is, I think, correctly stated in the opinion of the majority to be that there must be a particular and certain description in the deed, or the deed “must make reference to something tangible by which the land can be located.” Reference to occupancy or to any other tangible object would be sufficient, but I do not believe that it is sound to say that mere reference to ownership is sufficient to put third parties upon notice. There are, undoubtedly, many authorities which appear to sustain the views of the majority, but an examination of the cases discloses that many of them make no distinction 'between a mortgage deed, as in the present case, and an executory contract, as in the case of Higgins v. Higgins 121 Cal. 489, cited by the majority, or statute creating a lien, as in the case of Wilson v. Boyce, 92 U. S. 325. A distinction in those phases of the question does, I think, exist. Where a statute creates a lien on all property of a corporation, as was the case in Wilson v. Boyce, supra, all persons must take constructive notice of the application of the statute; and, in the case of an executory contract, all persons with actual notice are bound by it. There are, however, cases which go to the same extremes as do the majority of this court now, but there is authority to the contrary. In the case of Herman v. Deming, 44 Conn. 124, the court expressed the view which seems to be reasonable and sound. See also the case of Green v. Witherspoon, 37 La. Ann. 751. In both of the cases just cited the description was substantially the same as that employed in the present instance, and in both cases it was held that it was ineffectual as against third parties.

A description of this kind is too indefinite to constitute constructive notice, for the obvious reason that it is not practicable for a third person to make tlie notice real so as to obtain actual information, of the conveyance. We know that, in the customary method of preparing an abstract of title, such a description would not appear on a set of abstract books so as to apprise the abstracter of the information as to all the tracts of land to which it applied, and, in making an abstract for a given tract of land, no information would be afforded as to such conveyance. To hold that such a description constitutes constructive notice may therefore work a hardship. In the present instance a third person would be compelled to search the records in all of the counties where the mortgage was recorded to ascertain what lands were owned by the mortgagor.

I concur in the judgment on other grounds, but I do not agree with the majority on this point.

Justice Smith concurs in the views here expressed.


author: McCulloch, C. J.

text:
    Duncan v. West.
    Opinion delivered December 15, 1924.
    1. Habeas corpus — irregularity in judgment of conviction. — The court has no right, on application for habeas corpus, to discharge from custody, on .account of any irregularity in a judgment of conviction, if the court acted within its jurisdiction.
    2. Prosecuting attorneys — fees.—The prosecuting attorney is not entitled to a fee under Crawford & Moses’ Dig., § 8310, in a prosecution for a misdemeanor ¡before a justice of the peace, where defendant entered a plea of guilty.
    3. 'Convicts — time of detention. — In determining whether or not the time during which a convict may be legally detained has expired, the court may determine from the face of the proceedings the amount of the fine and costs chargeable against him.
    4. Convicts — right to discharge. — Defendant was entitled to discharge on habeas corpus from the custody of the county contractors working convicts, under Crawford & Moses’ Dig., § 5076, where it appeared from the commitment, that he had been in the custody of the contractors a sufficient time, at the rate allowed by § 2071, Id., to extinguish the fine and costs for which he was committed, though there was no proof of the number of days of actual work, the contractors claiming no deduction for his failure to work.
    Appeal from Lonoke Circuit Court; George W. Clark, Judge;
    affirmed.

      J. 8. Utley, Attorney General, John L. Garter, Assistant; W. J. Waggoner, prosecuting attorney, and Trimble <& Trimble, for appellant.

      Williams & Holloway, for appellee.
    There is no presumption in favor of the validity of judgments of a justice court. At least, if the fact of jurisdiction is denied, the burden of proof is on the party relying on the judgment. 15 it. C. L., p. 880-882; 29 C. J., p. 166; Cooley Const. Lim., 5th ed. 503; Church on Habeas Corpus, § 268 ; 55 Cal. 212. One restrained of his liberty on a void judgment will be discharged on habeas corpus. 12 R. C. L., p. 1197; Church on Habeas Corpus, 362 and cases in note. The prosecuting attorney was not entitled to a fee on a plea of guilty. 158 Ark. 502; 103 Ark. 601. The lease contract under which Duncan was operating was not assignable. 48 Ark. 283. Appellee was entitled to discharge the fine at the rate of seventy-five cents per day instead of fifty cents. C. & M. Dig., § 2071.
   McCulloch, C. J.

Appellants are the keepers of the county convict farm of Lonoke County, under assignment of a contract made between their assignors and the county for the working of convicts of the county. Appellee was convicted of misdemeanor in three cases on pleas of guilty, and, on failure to pay the fines and costs, was duly committed to the custody of the contractors, to work out the amounts for which he was liable. He instituted proceedings before the circuit court of Lonoke County on habeas corpus to test the legality of his confinement, after he had remained in the custody of the contractors for a period of 118 days. On the hearing of the cause, which was heard by the trial judge on the pleadings and documentary evidence, consisting- of the original judgments of conviction against appellee before a justice of the peace, and the warrants of commitment, etc., a judgment was rendered discharging appellee from custody. The contractors have appealed.

The court decided that appellee was entitled to his discharge on several grounds, all of which we need not discuss if any ground at all can be found upon which the judgment can he sustained.

The documentary evidence shows the amount of fines and costs adjudged against appellee and the items thereof and the length of time which has elapsed since his commitment. It shows that the fines and costs in all three of the cases aggregated the sum of $83, which included three fees of $10 each in favor of the prosecuting attorney, and that 118 days have elapsed since appellee was committed to the custody of the contractors. The record of convictions before the justice of the peace also shows that appellee entered a plea of guilty in each case.

The first question presented is whether or not the prosecuting attorney is entitled to a fee. The court has no right on habeas corpus to discharge from custody on account of any irregularity in the judgments of conviction, if the court acted within its jurisdiction. Ex parte Byles, 93 Ark. 612; State v. Martineau, 149 Ark. 246. The statute provides that, if the time during which a party may be legally detained has expired,, he may be discharged on habeas corpus. Crawford & Moses’ Digest, § 5076. The statute regulating the fees of prosecuting attorneys in cases pending in justice of the peace courts (Crawford & Moses’ Digest, § 8310) provides that, where the defendant “shall plead not guilty, and shall secure the services of an attorney to represent him on the trial, it shall be the duty of the justice of the peace to cause the prosecuting attorney, or deputy, for such county to be notified of the nature of the charge, and the time and place of the trial, and such prosecuting attorney shall attend and prosecute in behalf of the State, and, in case of conviction, shall be allowed the same fee as is now allowed for similar cases in the circuit court.” In the case of State v. Staples, 158 Ark. 502, we construed that statute as meaning that the prosecuting attorney “is only entitled to a fee in a criminal case pending in said court, on affidavit or otherwise, when the defendant pleads not guilty, and employs an attorney to make a defense, and is convicted.”

The case of Brown v. Welch, 151 Ark. 142, has no bearing, for the reason that it involved the claim of a deputy prosecuting attorney under a different statute. C. & M. Dig., § 8309. The opinion in State v. Staples, supra, holds that the right of a prosecuting attorney to fees in cases before justices of the peace depends on C. & M. Dig., § 8310, and § 4571 does not allow fees otherwise than under the conditions stated in § 8310, supra. It is true that the Staples case, supra, differed from the present one in that the prosecuting attorney did not, in that ease, file information, but that difference in the facts does not alter the application of § 8310, for, as before stated, we held that § 8310 prescribed the only conditions under which a prosecuting attorney can claim fees in cases pending before justices of the peace.

In determining whether or not the time during which an accused may be legally detained has expired, the court may determine from the face of the proceedings the amount of the fine and costs chargeable against the convict. In so doing it is found that the fees of the prosecuting attorney should be deducted, which leaves only the amount of $53.50 chargeable against appellee. It also appears from the commitment that the accused has been in custody 118 days, which, at seventy-five cents a day, as allowed by statute (Crawford & Moses’ Digest, § 2071), is more than sufficient to extinguish the fines and costs.. The statute cited above, as originally enacted, fixed the amount allowed convicts at the rate of fifty cents per day, but the act of 1899, amending certain sections of the original statute, provides, in one of the sections, that “the convict defendant shall receive seventy-five cents per day, including Sunday, for which he is so hired out to such contractor, in excess of any liability for care or sickness.” There was originally some doubt as to whether this change in the amount of credit to he allowed a convict applied to those hired out as well as those working on the roads, but that doubt has been resolved by the decision of this court in the case of Ex parte Brady, 70 Ark. 376, and, since that time, the digesters have changed the section with reference to hiring out convicts so as to allow a credit of seventy-five cents per day. There was no proof in the record as to what length of time appellee actually worked, but it is shown from the face of the commitment' that he had been in the custody of the contractors for a period of 118 days, and it devolved on the contractors to show by proof any deductions to which they would have been entitled, if any. No proof was offered on that subject.

We do not deem it necessary to discuss the other grounds upon which the court held that .appellee should be discharged.

The judgment is therefore affirmed, for the reasons herein stared.


author:
Humphreys, J. McCulloch, C. J.
      Humphreys, J.,

text:
    Dupree v. Virgil R. Coss Mortgage Company.
    Opinion delivered November 3, 1924.
    1. Principal and agent — commission to lender’s agent. — Where a partnership acted as an intermediary between a borrower and a lender, by inspecting the property, approving the lo’an, preparing notes and mortgages on blanks furnished by the lender, paying over.the money loaned to the borrower, collecting interest on the loans and looking after the payment of taxes on the mortgaged property, such partnership will be held to be the agent of the lender in exacting a commission from the borrower for securing the loan.
    2. Usury — commission to lender’s agent. — Where a borrower who, after a commission to the lender’s agent was deducted, received only $1,000, and, in order to repay same, would have to pay more than $1,000 with interest at 10 per cent, per annum for the term of the loan, the contract is usurious.
    3. Usury — invalidity of contract. — Though a mortgage given to secure a loan provided that, if interest in excess of the legal maximum is charged, it is through error in computation and will be credited on the amount remaining unpaid, such provision will not prevent the taint of usury from attaching to such contract where no mistake in computation is shown, but simply a mistake as to the legal effect of the contract.
    4. Usury — presumption.—Where a note and mortgage securing a loan to a borrower residing in Arkansas provided that debt and interest were payable at the home office of the lender in Oklahoma, and, under the laws of Arkansas, the contract was usurious, but, under the laws of Oklahoma, the contract was valid, except as to the interest, the presumption is that the parties intended to contract with reference to the law of the place of performance, and with reference to the law upholding rather than invalidating the contract.
    5. Usury — contract to avoid usury laws. — Although parties residing in different States may, in good faith, contract with reference to the law of either State, they cannot do so to avoid the force of the usury law of either State.
    6. Usury — presumption as to good faith. — Where a note and mortgage securing a loan to a borrower residing in Arkansas provided that the debt and interest were payable at the home office of the lender in Oklahoma, evidence held not to overcome the (presumption that the parties contracted in good faith with reference to the laws of Oklahoma.
    7. Usury — Oklahoma statute. — The usury law of Oklahoma, as amended in 1916 (Comp. Stat. 1921, § 5098), does not render ■a usurious contract void or even voidable.
    8. Appeal and error — failure to plead set-off or counterclaim.— Where, in suit to cancel note and mortgage on ground of usury, which was governed by the Oklahoma law, appellants failed to plead in the court below by way of set-off or counterclaim, benefits to which they were entitled under Comp. Stat. Okla. 1921, § 5098, they cannot thereafter complain on appeal.
    Appeal from Chicot Chancery Court; E. G. Hammock, Chancellor;
    affirmed.

      John Baxter and B. W. Wilson, for appellant.
    The contract is usurious and void for the reason that the American Farm Mortgage Company was the agent of the lender, and the latter has attempted to exact interest and commission in excess of ten per cent, per annum. 27 E. C. L., 203-204; Crawford & Moses’ Digest, § 7354; Id. § 7362; Id. §§ 7363, 7364, 7366. The calculation of interest on this loan hy Gr. A. Franklin, following the rule approved in the case of Green v. Gonservative Loan Life Insurance, 153- Ark. 219, shows it to be usurious, in that more than ten per cent, was charged. The commission collected here was not only known to,' but equally shared in, by the lender with the agent. 51 Ark. 535; 54 Ark. 40 to 57 inclusive. See also 54 Ark. 573; 62 Ark. 375; 109 Ark. 69-77; 128 Ark. 74-75. The power of attorney naming the American Farm Mortgage Company as the agent of the borrower was a mere subterfuge, and will not be tolerated. 100 111. 611; 54 Ark. 40-57. A transaction is no less usurious because payment is made to the lender himself, or, as in this case, is equally shared by the lender with the agent. 132 Ark. 376, 377. It having been shown that more than ten per cent, per annum had been charged, it devolved upon the appellee to show that an honest mistake had been made, otherwise that clause in the mortgage disclaiming any intention to charge excessive interest was shown to have been a mere device or subterfuge to conceal the usury. 62 Ark. 380; 132 Ark. 377. A mutual agreement to give and receive unlawful interest is not necessary to constitute usury. If it be actually reserved, taken or secured, or agreed to be taken or reserved, the contract is usurious. 37 Minn. 441; 135 Ark. 578. Since a simple calculation of interest, as was done in this case, shows that more than ten per cent, was charged, the case depends upon the question of agency, and the facts in the case clearly .disclosed the American Farm Loan Company’s agency for the lender. 138 Ark. 262, 267; 150 Ark. 612; 2 Corpus Juris, 448, and nóte 78-B; 31 Cyc. 1661-1662. The facts establish the strongest form of agency, viz., a partnership, under all the tests of that relationship. 20 R.. C. L. 27; Id. 823 (27) (28); Id. 825 (29); 63 Ark. 518-526; 87 Ark. 417; 44 Ark. 423; 63 Ark. 518; 74 Ark. 437; 80 Ark. 23; 87 Ark. 412-418; 143 IT. S. 611; 91 A,rk. 26-30; 95 Ark. 406-9; 144 Ark. 621-629.

      W. D. Jones and James M. Golden, for appellees.
    The burden is upon the party pleading usury to show that the transaction is usurious, by clear and cogent proof. 24 A. L. R., 856;-14 Ore. 47, 12 Pac. 89; 44 Ore. 530-533, 1 Ann. Cases, 418; 27 R. C. L. 268; 159 Ark. 141; 135 Ark. 578, and cases cited; 18 N. J. Eq. 481; 54 Ark. 566-569; 105 Ark. 661; 107 Ark. 21. To constitute usury there must be an agreement to pay for the use of money more than ten per cent. 54 Ark. 566-569. And the wrongful act of usury will never be imputed to the parties, and it will not be inferred where the opposite conclusion can be reasonably and fairly reached. 91 Ark. 462; 67 Ark. 370; 68 162; 74 Ark. 241; 83 Ark. 31; 87 Ark. 534. The intention of the parties is the principle that governs. 153 Ark. 219. Even if the American Farm Mortgage Company be held to be the agent of appellee in this transaction, still there can be no usury because of the provision in the mortgage to the effect that the interest should not, in any event, exceed the maximum legal rate permitted by the laws of Arkansas, and that any excess collected should be credited upon principle or interest remaining unpaid upon discovery of the erroneous overcharge. 56 Ark. 340; Id. 339; 129 Ark. 167; 167 S. ~W. 362. The statement of facts and the reasoning of the court in the case ,of Bolt v. Kirby, 57 Ark. 251, refute the contention of counsel for the borrowers here that the American Farm Mortgage Company was acting as the agent of appellee in making the loans. To sustain the plea of usury it must appear that excessive interest was paid to the lender or that a bonus or commission was paid to the agent of the lender, with his knowledge, of under circumstances from which his knowledge will be presumed, which, when added to the interest paid or to be paid, would exceed the lawful rate. A bonus or commission paid to the agent of the borrower will not make the transaction usurious. 54 Ark. 573; 51 Ark. 548. It is provided in the notes and mortgages that the same should be payable at the office of appellee in Muskogee, Oklahoma. The transaction is governed by the laws of that State. 25 Ark. 53. Oklahoma Statutes, § 5097; 59 Okla. 215; 39 Cyc. 899; 15 N. Y. 986; 39 Cyc. 1054-1055.

      Williams ■& Williams, amici curiae.

   Humphreys, J.

Appellant brought suit against appellees in the chancery court of Chicot County to cancel a note and mortgage he executed to Virgil R. Coss Mortgage Company on the 17th day of November, 1920, and by it assigned to the New Milford Security Company, upon the ground that the contract provided for a greater rate of interest than 10 per cent, per annum, which rendered it usurious and void under the laws of Arkansas, both as to principal and interest. It was alleged in the bill that appellant procured the loan from the Virgil R. Coss Mortgage Company, an Oklahoma corporation, residing at Muskogee, Oklahoma, through its agent, American Farm Mortgage Company, a partnership composed of H. D. Price and Guy V. Busenburg, which had its office at Pine Bluff, Arkansas; that the loan was for $1,300 on its face, payable in ten years, bearing interest' at the rate of 7 per cent, per annum from date until paid, and it was agreed in the written application for the loan that $300 of the amount should be deducted as a commission to the American Farm Mortgage Company for procuring the loan, and that, pursuant to the contract, the cash bonus was deducted from the $1,300, which rendered the contract usurious. The mortgage in'which the note was described was made an exhibit to the bill. The mortgage and note were executed in Arkansas, and made payable at the office of Virgil R. Coss Mortgage Company in Muskogee, Oklahoma. The mortgage also contained the following paragraph:

‘‘ It is agreed that the rate of interest herein reserved and charged shall not in any event exceed the maximum legal rate permitted by the laws of Arkansas. If interest in excess of the maximum legal rate has been charged, it is through an error in computation, and it is agreed, that any excess collected above the maximum legal rate shall be credited, upon any amount, either principal or interest, remaining unpaid when such overcharge is discovered.’’

The American Farm Mortgage Company filed a demurrer to the bill, which was sustained by the court.

The other appellees filed separate answers to the bill, denying each material allegation therein.

The cause was submitted upon the pleadings and testimony adduced, which resulted in a finding that there was no usury in the transaction, and a decree dismissing appellant’s bill for the want of equity, from which finding and decree an appeal has been duly prosecuted to this court.

This is a companion case with that of Virgil R. Coss Mortgage Company v. Marcus and Malvina Jordan, appealed to this court from the chancery court of Drew County, involving the same issues. Much of the testimony was taken at the same time to be used and treated as testimony in each case. Learned counsel for appellant has summarized the facts disclosed by the testimony, which we adopt in the main, with some necessary additions, as a statement of the facts by the court. It is as follows:

“About twenty-five years ago, H. D. Price, who had for a number of years been engaged in the farm loan business, moved from Oklahoma City to Wilburton, Oklahoma, and opened up a bank. This placed him so far out of touch With his Eastern investors that he turned over, or was instrumental in turning over, his loans to the Virgil R. Coss Mortgage Company. From Wilbur-ton, H. D. Price went to Keota, where, in addition to the banking business, he was at all times a farm loan man. When Price and Coss first became acquainted, they were competitors in Oklahoma City; afterwards Coss moved to Muskogee, where he is now operating the Virgil R. Coss Mortgage Company. For a number of years H. D. Price lived at Stigler, Oklahoma, where Price and Busenburg and a Mr. Zebold operated a farm loan brokerage under the name of the American Farm Mortgage Company. About eight years ago, Mr. Price disposed of his business at Stigler and Keota, Oklahoma, and moved to Pine Bluff, Arkansas, where he and Guy Y. Busenburg formed a partnership under the name of American Farm Mortgage Company. Mr. Zebold, who had formerly been with Price and Busenburg at Stigler, moved to Muskogee and became associated with the Yirgil R. Coss Mortgage Company as vice president. For several years prior to this time the Coss Mortgage Company had been handling loans for the American Farm Mortgage Company. Mr. Coss states that it was generally understood that if, upon the investigation of the Arkansas territory, he found it a desirable place to make loans, he would handle their business. At that time the Virgil R. Coss Mortgage Company had never done business in Arkansas, but, shortly after the American Farm Mortgage Company was organized at Pine Bluff, it entered the State of Arkansas as a foreign corporation, for the sole purpose of handling loans secured by the American Farm Mortgage Company, and named H. D. Price as its agent for service of summons.
“The American Farm Mortgage Company advertised in the papers and by circular letters that it had money to loan on long time paper at a low rate of interest, but confined its business, almost exclusively, to colored people. When it received an application for a loan from a prospective customer, H. D. Price, the field man of the American Farm Mortgage Company, would go and inspect the property, and, if he found it desirable security for the amount applied' for, he took the mortgages and notes, and then and there, in the name and on the blank forms of the Yirgil R. Coss Mortgage Company, and, in some instances, as in the Dupree case, secured a power of attorney from the borrower, designating the American Farm Mortgage Company agent to secure a loan for him, and forwarded same with the application, the mortgages and notes, direct to the Yirgil R. Coss Mortgage Company, always at the time fixing the rate of interest and the length of the loan, and never at any time going into the open market, unless the loan was turned down by the Virgil R. Coss Mortgage Company.
“The blank mortgages, the principal notes and the commission notes all were prepared and furnished by the Virgil R. Coss Mortgage Company, which kept them on hand, and used them in preparing the papers. "When the loan application, with notes and mortgages, were sent to the Virgil R. Coss Mortgage Company, the American Farm Mortgage Company proceeded to inspect the land, to have the title to the land perfected, always had same approved by the attorney for the American Farm Mortgage Company and the Virgil R. Coss Mortgage Company. If it was a big loan, Coss and Price made a joint inspection. When the title was perfected, the money was sent by the Virgil R. Coss Mortgage Company to the American Farm Mortgage Company, and was disbursed in paying off other mortgages, in perfecting the title and paying for the recording of the papers from the borrower to Coss, and the balance, if any, was turned over by the American Farm Mortgage Company to the borrower. In some cases a first mortgage and a second mortgage were taken, and all the notes secured by the same given to the Virgil R. Coss Mortgage Company, and the second in the name of the American Farm Mortgage Company, and the notes secured by each mortgage were given to Coss Mortgage Company and the American Farm Mortgage Company, respectively. In other instances, only one mortgage and one set of notes were taken, and that in the name of Virgil R. Coss Mortgage Company, the commission being deducted at the time the money was disbursed. The work of securing the loan, of perfecting the title, of disbursing the money and recording the lender’s paper, was all attended to by the American Farm Mortgage Company. The Virgil R. Coss Mortgage Company advanced the money, found a market for the loan, and attended to all other features of the business at the Oklahoma office, each doing about one-half of the work. The commission was then divided between the two companies on a fifty-fifty basis. When payment ■became due, either on the commission or the principal notes, collections were made by the American Farm Mortgage Company on instructions of the Virgil B. Coss Mortgage Company to the borrower, regardless of how the loan was made, whether two mortgages, one mortgage in the name of Coss and one in the name of American Farm Mortgage Company, or both to Coss, or whether one mortgage only to Coss and a cash commission paid. If the borrower failed to pay taxes, they were paid by the American Farm Mortgage Company. If the borrower was delinquent on any payment necessary to the protection of the lender, he was ofttimes notified by both companies, and always notified by both companies to make payment through the American Farm Mortgage Company.
“If the borrower failed to meet his payments, and a loss was .sustained thereby, the Virgil B. Coss Mortgage Company charged back to the American Farm Mortgage Company its proportion of the loss, thus equally sharing the profits when there was a profit, and equally sharing the loss when there was a loss.
“In addition to the connection in Pine Bluff with American Farm Mortgage Company, the Virgil B. Coss Mortgage Company now has a partnership in Fort Smith, Arkansas, and their business is handled in the same way and on the same basis.”

The testimony also disclosed that appellant agreed, in his written application for the loan, to pay the American Farm Mortgage Company $300' as a commission for procuring the loan, to be deducted from the amount borrowed; that appellant executed his note and mortgage for $1,300, payable in ten years, at the rate of 7 per cent, per annum from date until paid; that ten coupon notes for $91 each were executed to cover the ten annual interest payments maturing each year; that, pursuant to the agreement in the application, a $300 cash bonus was deducted from the loan and equally divided between the Virgil B. Coss Mortgage Company and the American Farm Mortgage Company; that the American Farm Mortgage Company also deducted from the $1,000 balance $201.63 as expenses, several items of which were not properly chargeable to appellant, only paying appellant in actual cash $798.37 out of the $1,300 loan.

The initial question arising on this appeal for determination is whether or not the American Farm Mortgage Company acted as agent for the Virgil E. Coss Mortgage Company in negotiating the loan, or whether said mortgage company was the exclusive agent of appellant. While the application for the loan constituted the American Farm Mortgage Company the agent of appellant, the services rendered by that partnership to the Virgil E. Coss Mortgage Company in this and other transactions convinces us that said partnership was really representing the Virgil E. Coss Mortgage Company, and not. appellant. The American Farm Mortgage Company inspected the property, approved the loan, prepared the note and mortgage on blanks furnished by the Virgil'E. Coss Mortgage Company, paid over the money to appellant, after deducting the expenses and commission, which commission was divided between the two companies, collected the interest on this and other loans, and looked after the payment of taxes on the mortgaged property. The relationship between the two companies, as reflected by the evidence, constituted an agency in the law. Banks v. Flint, 54 Ark. 40; Ellis v. Terrell, 109 Ark. 69; Tompkins v. Vaught, 138 Ark. 262; McHenry v. Vaught, 150 Ark. 612.

The next question to be determined is whether the contract is usurious. Appellant received in actual cash only $1,000, for which he executed a note to the Virgil E. Coss Mortgage Company in the sum of $1,300, payable in ten years, with ten coupon notes attached in the sum of $91 each, to cover the interest for a period of ten years. In order to repay the loan under the contract he would have to' pay $2,291, or $291 more than enough to repay the $1,000 actually received with interest thereon at the rate of 10 per cent, per annum, the highest rate allowable, for ten years. This is the method of calculation approved in the case of Ellis v. Terrell, 109 Ark. 69, the test announced in that case being whether the borrower would have to pay more than 10 per cent, per annum on the money actually received under the contract, if fully executed. The contract is therefore usurious and void under the Arkansas law, unless saved by the clause in the mortgage to the effect that no usury was intended. This clause only related to errors in computation or calculation. No contention is made that the excess charge above the maximum legal rate of interest was the result of errors in computation or calculation. On the contrary, the testimony reveals that appellees intended to charge 7 per cent, per annum and deduct a $300 cash bonus. A clause of this kind cannot prevent the taint of usury attaching to a contract, where there was no mistake of fact, but simply a mistake as to the legal effect thereof. Castleberry v. Weil, 142 Ark. 627.

The next question arising for determination is whether the contract is an Arkansas or an Oklahoma contract. At the time the contract was made appellant was a resident of Arkansas, and the Virgil R. Coss Mortgage Company was a resident of Oklahoma. While it had qualified to do business in this State as a foreign corporation, it still retained its domicile in Oklahoma. The mortgage and note contained a provision making the debt and interest payable at the home office of the Virgil R. Coss Mortgage Company in Muskogee, Oklahoma. There is no direct evidence in the record tending to show why this paragraph was inserted in the contract. No one has testified that it was inserted in order to evade the usury laws of Arkansas, and, if such an inference is drawn, it must be drawn from the circumstances alone that the Virgil R. Coss Mortgage Company denied that the American Farm Mortgage Company was its agent, and its further claim that it was the purchaser of the note and mortgage in the open market. The inference could be as readily drawn that the contract was made performable in Oklahoma because it was the bona fide residence of the Virgil R. Coss Mortgage Company. In order to indulge the inference that the parties intended to contract with reference to the laws of Arkansas, the evidence should be of sufficient weight to overcome two presumptions to the contrary, the. first being that the parties intended to contract with reference to the place of performance, and the second that the parties intended to contract with reference to the law that would uphold,rather than one that would invalidate, their contract. It is the law that parties residing in different States may, in good faith, contract with reference to the law of either State, but would not be permitted to do so for the purpose of avoiding the force of the usury law in either one of the States. Whitlock v. Cohn, 77 Ark. 83; Wilson-Ward Co. v. Walker, 125 Ark. 404. We do not think the evidence in the case sufficient to overcome the presumption that the parties contracted, in good faith, with reference to the laws of Oklahoma, where the contract is valid, and where the penalty for contracting for more than 10 per cent, interest per annum works a forfeiture of the interest only.

No error appearing, the decree is affirmed.

McCulloch, C. J.

I agree to the conclusion reached in this case and to all of the opinion except the following sentence: “ It is the law that parties residing in different States may in good faith contract with reference to the laws of either State, but would not be permitted to do so for the purpose of avoiding the force of the usury law in either one of the States.” The authorities cited to sustain this statement of the law (Whitlock v. Cohn, 72 Ark. 83, and Wilson-Ward Co. v. Walker, 125 Ark. 404) do not, in fact, sustain it. In Whitlock v. Cohn, the court said:

“Where the intention of the parties is not otherwise more directly and definitely expressed in the contract, nor can be otherwise inferred, the place of payment will determine the law with reference to which parties have contracted; but parties will not be presumed to have contracted with, reference to a law which will have the effect of annulling their contract for illegality in its very making, where another intention can be gathered, unless it be found that they were seeking in some way to avoid the force of the law, as in case of usury, for instance. The contract of the parties would be valid on its face under the laws of Arkansas, but not under the laws of Illinois. The presumption is against the contention that the parties contracted with reference to the laws of Illinois. ’ ’

This is far from .stating the rule''deduced from it by the majority in this case that, where the parties reside in different States, their right to contract with reference to the laws of either State and the presumption that they have done so, is subject to the qualification that it must be done in good faith. The authorities on this question are thoroughly reviewed in the annotations in the case of Green v. Northwestern Trust Co., 128 Minn. 30, L. R. A. 1916D, p. 739, and the Alabama case of United States Saving & Loan Co. v. Beckley, 62 L. R. A. 33. The rule deducible from all the authorities, as shown by the case notes referred to, is that, where a contract for the payment of money is executed in one State and is to be performed in another, the presumption is that the parties contracted with reference to the laws of the State where the contract would be valid and enforceable, unless it be shown that the form of the contract was adopted in bad faith to evade the usury law. Where, however, the parties reside in different States, they have the absolute right to contract with reference to the laws of either one of those States in which the contract is valid, and it does not constitute an evasion of the law merely because they make the election in order to take advantage of the laws where the contract is not usurious. It is only where parties residing- in different States undertake to make a contract referable to the laws of still another State that the question of good faith or evasion can arise. If the contract is a lawful one, the presence of a bad motive will not invalidate it, and when parties residing in different States contract with reference to the laws of either, as they have a legal right to do, they necessarily do so for the purpose of gaining some advantage by the election, and, if that is to defeat their contract, it is equivalent to denying them the right to make the election.

Where the question of usury is involved, if the facts are undisputed, it became a question of law for the court, and, as before stated, when the parties reside in different States, they are presumed to contract with reference to the laws of the State which will uphold the contract, and it is the duty of the trial court to declare, as a matter of law, that the contract is not usurious. The contract under these circumstances cannot be’ defeated merely by showing- that the motive was to escape the usury law of one State and to get the advantage of the less onerous one in the other.

In the principal case cited in L. R. A. 1916D, p. 743, the court said:

“The parties cannot arbitrarily assign their contract to a particular State. * * * Effect can be given to the presumed intention that the law of a particular State shall be the governing law only when such State has a vital connection with the transaction; or where elements of the contract, important in determining the governing law, have their situs in such State.”

In that case, where the parties resided in different States, the court declared as a matter of law that the contract was valid under the presumed intention to contract with reference to the laws of the State which upheld the contract. .

In the case of Mortgage Co. v. Jefferson, 69 Miss. 770, the borrower resided in Memphis and the lender resided in New York, and the parties undertook to contract with reference to the laws of Mississippi, but the court held that this was an evasion, and, in doing so, said:

“The presumption of law is always in favor of the legality of purpose and motive of contracting parties; and, where a contract is made in one State, to be executed in another, and, under the laws of one would be illegal and under those of the other legal, it is reasonable to presume that the parties intended their contract to be controlled by the laws of the State in which it would be valid, and so the courts will, in furtherance of a presumed lawful intention, assign it to that State of which its validity will be upheld. * * * This is not a case for the application of the rule of favoring a lawful purpose by presumption, but it is one in which the parties, manifestly and purposely providing for usury, have sought to cloak the transaction and evade the laws against usury by which their contract is controlled by stipulating that, if litigation shall arise, the laws of another State may be invoked as a shield to the usurer. The laws of this State and access to its courts cannot be thus made the subject of contract.”

Let us suppose that in this case the agent for the lender had been called as a witness and asked what his purpose was in making the contract payable in Oklahoma, the place of the lender’s domicile, and he frankly replied that he understood the law to be that he had the right to contract with reference to the laws of either State and that he chose the laws of Oklahoma because it was less onerous with respect to usury. According to the qualification stated by the opinion of the majority, this would make the contract void, and yet that is really the only reason the parties could have had in choosing the laws of Oklahoma as controlling. It is also the reason why the law presumes that they intended to contract with reference to the laws of that State. It is, I think, incongruous to say that the motive and reason for making the election defeats the contract which would otherwise be lawful.

Justice Smith concurs in views here expressed.

Humphreys, J.,

(on rehearing). On motion for rehearing onr attention has been called to the fact that at the time the mortgages in question were executed the law of Oklahoma relating to the penalty for usury had been amended by an act of the Legislature in 1916, citing § 5098, Comp. Stats. 1921. "We do not understand that the amended statute rendered an usurious Oklahoma contract void or even voidable, as does the law in Arkansas. Stockyards State Bank v. Johnson, 152 Pac. 585. The only change the amended statute made in the Oklahoma law relative to the penalty for usury was to allow the injured person to plead as a set-off or counterclaim in a suit brought upon the contract twice the amount of the entire interest collected, recovered, charged, or received in said transaction or in all such transactions between the same parties. The exact language of the proviso in the statute is as follows: “Provided further, that, when any suit is brought upon any note, bill or other evidence of indebtedness or to foreclose uny mortgage or lien given to secure such indebtedness when a greater rate of interest has been collected, reserved, charged, or received than is provided for in the act, the defendant, or his legal representative may plead as a set-off or counterclaim in said action twice the amount of the entire interest collected, reserved, charged or received in said transaction or in all such transactions between the same parties.”

Neither Dupree nor Jordan pleaded by way of set-off or counterclaim the benefits to which they were entitled under the Oklahoma statute of 1916, and, having, failed to claim the benefit thereunder, cannot now be heard to complain.

The Virgil R. Coss Mortgage Company did not request a rehearing and modification of the opinion, hence the directions to the lower court will not be changed.

For the reasons given the motion for a rehearing is denied.