author: ■MoHaney, J.

text:
    New Union Coal Company v. Walker.
    Opinion delivered October 20, 1930.

      Hays, Priddy S Smallwood, for appellant.

      Cochran <£ Arnett, for appellee.
   ■MoHaney, J.

Appellee sued appellant to recover damages for personal injuries sustained by Mm. by the falling of a rock, in the entry of the coal mine of appellant, in which he was working. He alleged that his injury was caused “by the negligence and carelessness of the defendant in failing to send down props, when requested to -do so by plaintiff, with which to prop the roof of his working place, and in further failing to send down the necessary props to prop said roof,” when requested so to do by another. Appellant denied the plaintiff’s contention that appellee’s injury was caused by its negligence or carelessness in failing to send down props when requested by him, or in failing to send down props when requested to do so by another. The case was tried to a jury, which resulted in a verdict and judgment for appel lee, in the sum of $4,000.

For a reversal of the case, appellant first contends that the court erred in permitting witnesses, Walker and Nelson, to testify over its objections and exceptions that Griffith, the day foreman of the crew working in the same entry as appellee and his crew, ordered props during the day and had failed to get them. We do not agree with appellant in this contention. The gist of the action was the alleged violation of a statutory duty to furnish props. Statute 7271, C. & M. Digest, provides that: “It shall be the duty of the owner, agent or operator to send down all such props when required and deliver said props to the place where cars are delivered. ’ ’ The request made by Griffith, as testified to by said witnesses, tends to prove notice to the company that props were required. We think this assignment of error is ruled adversely to appellant by the case of Bauschka v. Western Coal & Mining Co., 95 Ark. 477, 129 S. W. 1095.

The second assignment is that the court erred in refusing to direct a verdict for appellant, at its request. This assignment challenges the sufficiency of the evidence to sustain the* verdict. We have not reviewed the evidence, for, in view of the disposition we make of the case, it becomes unnecessary. We have examined the evidence very carefully, however, and find it sufficient to take the case to the jury. The facts were in dispute as to whether appellant failed to furnish the props when demanded, or within a reasonable time after demanded, and the court submitted the question to the jury, under an instruction that required the jury to find, by a preponderance of the evidence, that the proximate cause of appellee’s injury was the failure of appellant to send down props in accordance with the requirements of the statute.

The only other assignment of error that we consider it necessary to discuss relates to the refusal of the court to give appellant’s requested instructions 2, 5, 6 and 7: After a careful consideration of these instructions, we have reached the conclusion that the court erred in refusing to give requested instruction No. 6, which is as follows: “If you should find from the evidence that the plaintiff ordered props from the defendant through its duly authorized agent whose duty it was to deliver props in the mine, and that after the same was ordered the defendant willfully failed to send same down to plaintiff and deliver same at the place where cars were delivered, after it had had a sufficient length of time to deliver same, and as a direct and proximate result of such willful failure the plaintiff was injured, then the plaintiff would be entitled to recover.” Some such instruction should have been given, in view of the provisions of § 7269, C. & M. Digest. This section reads: “For any injury to persons or property occasioned by willful violation of this act, or willful failure to comply with any of its provisions, a right of action shall accrue to the party injured for any direct damages sustained thereby; provided, should death ensue from any such injury, a cause of action shall survive in favor, first, of the widow and minor children of such deceased; if there be no widow nor minor children then to the father if living; then to the mother; if no mother, then to the brothers and sisters’ and their descendants. ’ ’ This section, as it now stands, down to the proviso, was included in the original miners’ act of April 9, 1893, and was § 12 thereof. In Johnson v. Mammoth Vein Coal Co., 88 Ark. 243, 123 S. W. 1180, 19 L. R. A. N. S. 646, it was held that the right of action did not survive under that section, as the act creating' the statutory duty failed to provide for a survivor of the action. So the Legislature of 1905 added the proviso to the above section. Section 7271, C. & M. Digest, relating to the duty to furnish props, was § 14 of the original miners’ act. As heretofore stated, appellant’s right of action is based solely on the statutory duty to furnish props, and another section in the same statute provides for a willful violation of the act in order to create a right of action based upon’ a violation of statutory duty imposed by said act. In Kansas & Texas Coal, Co. v. Gabsky 70 Ark. 434, 66 S. W. 915, the action was based upon the statutory duty placed upon the owner or operator of a mine not to permit persons under the age of fourteen years to work. therein. The court quoted § 7269, as originally written, and said: ‘ ‘ The direct damages here referred to mean damages for injury occasioned by the fact of being permitted to work in the mines; and, the working in the mines under the prohibited age being shown, and to be willful in the legal sense, it is ordinarily conclusive upon the defendant, for the object of the act was to .prohibit the working of children under fourteen years of age in coal mines at all.” Where a cause of action against a coal company is based upon an alleged violation of'a statutory duty, enacted for the safety of employees, the defenses of contributory negligence and assumed risk are entirely abolished. Sections 7145-7146, C. & M. Digest. The only defense then left to the coal company is to show that the props were not requested or that the failure to furnish, when requested, was not the proximate cause of the injury. While counsel for appellee say that they did not base the cause of action upon § 7271, but that same was based on § 7144, we are of the opinion that the necessary effect of the allegation in the complaint above set forth is to charge negligence based on the failure to perform a statutory duty, to-wit, the failure to furnish props as provided in § 7271. As further indicative of this fact, appellant requested an instruction in the language of the statute, § 7271, which the court gave.

Appellant’s requested instruction No. 7, defining the word “willful,” reads as follows: “The word ‘willful’ as used in these instructions is used not alone in the sense that implies a wrongful intent, but is employed likewise as including a conscious knowing or intentional failure to perform or meet a duty imposed by statute.” The case of Roberts, Johnson & Rand Shoe Co. v. Dower, 208 Fed. 270, is cited to support this definition of the word “willful.” This definition is not correct, and the court was right in refusing to give such a definition, but, since the question will arise on another trial, we deem it proper to say that the' court should tell the jury what the word “willful” means, as used in § 7269, C. & M. Digest. In the last case above cited, Judge Sanborn followed the Illinois cases in defining the word “willful.” One of the cases cited is Odin Coal Co. v. Denman, 185 Ill. 413, 57 N. E. 192, 76 Am. St. Rep. 45. In that case the court said, speaking of the omission to perform a statutory duty: “The omission was not through mere inadvertence, but was intentional. There was no evil intent operating to induce the failure, 'but that element is not a necessary ingredient of willfulness, within the correct meaning of the word ‘willful,’ as employed in this statute. As used in criminal and penal statutes, the word ‘willful’ has frequently been interpreted to mean, not merely a voluntary act, but an act committed with evil intent, etc. The statute here involved is not a penal statute.. The recovery awarded is not a penalty in the nature of a fine or a forfeiture, nor is it awarded as a punishment, but is confined, by-the express terms of § 14 of said chapter 93, to ‘the direct damages sustained’ by reason of the omission or failure of which complaint is made. ‘Compensation for injuries inflicted, not punishment, is the ground of recovery.’ ‘Willful’ is a word of familiar use in every branch of law, and, although in some branches of law it may have a special meaning, it generally, as used in courts of law, implies nothing blamable, but merely that the person of whose action or default the expression is used is a free agent, and that what has been done arises from the spontaneous action of his will. It amounts to nothing more than this: ‘that he knows what he is doing, and intends to do what he is doing, and is a free agent. ’ 29 Am. & Eng. Enc. Law 113. An act consciously omitted .is willfully omitted, in the meaning of the word ‘willful,’ as used in these enactments of our Legislature relative to the duty of mine owners. In Coal Co. v. Abbott, 181 Ill. 495, 55 N. E. 131, we said (page 502, 181 111., and page 134, 55 N. E.), ‘Where an owner, operator, or manager so constructs or equips his mine that he knowingly operates it without conforming to the provisions of this act, he willfully disregards its provisions, and willfully disregards the safety of miners employed therein’.”

In the Roberts, Johnson, Rand Shoe Co. case, supra, the court followed the Hlinois decisions under the miners’ act, § 14, being in substance the same as § 7269, C. & M. Digest, and held that a “willful” violation is established by proof of any conscious knowing or intentional failure to comply with the statute, without a showing of actual, wrongful intent. So in our statute the word “willful” means only that the omission to perform the duty imposed by statute was a conscious act of the mind, and was not from mere inadvertence. It means something more than mere negligence. As said by the Illinois court, in the Odin Coal Co. case, supra, “In criminal proceedings, where it is designed to punish the defendant, and in that class of civil cases where a penalty is provided, the amount whereof is fixed 'by statute, as in the nature of punishment, or in those cases where, in addition to damages recoverable as indemnity to the plaintiff for the injury sustained, exemplary or vindictive damages may be assessed as punishment of the defendant, the intent of the defendant becomes material. In all cases in those classes the word ‘willful’ is interpreted to include malice, evil intention, or other wrongful motive. In the case at bar the recovery, is limited to actual or direct damages, and the amount to be recovered is not to be mitigated or aggravated by the presence or absence of the element of fraud, malice, or evil intent. ’ ’

For the error indicated the judgment will be reversed, and the cause remanded for a new trial. It is so ordered.


source: Caselaw Access Project

author: Mehaffy, J.

license: Public Domain

text:
    Gaither Coal Company v. LeClerch.
    Opinion delivered October 20, 1980.

      E. E. McCulloch, for appellant.

      White ¡é White, G. L. Grcmt, and Mosmam, Rogers & Buzará, Kansas City, Mo., for appellee.
   Mehaffy, J.

This appeal is prosecuted to reverse a judgment of the circuit court against' appellant and in favor of appellee for $10,000 for the death of appellee’s husband, Frank LeClerch.

On and prior to July 13, 1928, Frank LeClerch, who was the husband of appellee, was in the employ of the Gaither Coal Company as a coal miner engaged in mining coal' at appellant’s 'mine in Logan County, Arkansas. Within the mine where deceased, Frank LeClerch, was at work for appellant, there was a line of wires charged with electricity, and appellee alleged that appellant negligently and carelessly failed to reasonably and sufficiently insulate said wires so as to prevent the discharge therefrom of such dangerous, deadly current of electricity, and negligently and carelessly failed to insulate said wires; that appellant negligently and carelessly permitted the insulation of said wires to become old, rotten, worn out and defective, insufficient, wet and insecure so that the deadly and dangerous current of electricity had passed through said insulation and negligently and carelessly failed to warn and notify its employee, Frank LeClercli, of the hazards and dangers of coming in contact with said wires; that while deceased, on July 13, 1928, was passing along and through the slope entry and along adjacent to said wires, he came in contact with said wires as a direct result of the negligence and carelessness of defendant; that, because of the negligence of the appellant, the electricity from said wires escaped from said wires and into said Frank LeClerch; that the negligence of appellant was the cause of the death of said Frank LeClerch, and that appellee was thereby damaged. .'

Appellant filed answer admitting it was a corporation and denying all the other material allegations in the complaint, and pleaded contributory negligence and assumption of risk. The evidence as to the condition of the wires and as to insulation is conflicting; some of the witnesses testifying that the insulation was poor, some places naked, fabric ruffed up and saturated with water. Other witnesses testified that the insulation was perfectly good. After deceased went into the mine to work, his body was found about seventy or eighty feet from the entry, with his head towards the mouth and feet down the slope; he died a little after 4 o’clock. There were three electric wires in the mine along the west side of the slope, the lowest five feet from the ground and two above, six or eight inches apart.

According to the testimony of Dr. Jewell, there was found on deceased a fresh burn on the left orbit, seared brown just like a piece of hot iron would burn;' looked like all other electric burns he had seen; had a deep burn on the left shoulder, like a hot iron had been laid on the shoulder, about three inches long and about an inch wide; burn on temple about three inches long and an inch or more wide, were the only marks found. - This witness, Dr. Jewell, had studied electricity for twenty-two years and understood its effect on the human system and body; made experiments and knows the effect of electricity upon the body. In his opinion, death was caused by coming in contact with these wires, saw nothing to indicate that deceased had heart trouble. Deceased was fifty-one years old and appellee was forty-seven years old. They had been married twenty-five years, and had only one child, a daughter, who was twenty-two years old and married. Deceased’s health was good, and he had no heart trouble that appellee knew of: He had no bums on head or shoulder before his death; earned fifty or sixty dollars a week and spent fifty or sixty dollars a month on appellee.

A number of witnesses for appellant, including some members of the coroner’s jury, testified that they found no naked places on the wires, and that they appeared to be in good condition; that the insulation appeared to be fairly good. Some of them stated that they did not think a man could go along and fall and get killed where deceased was found. They testified also that the wires were the same as used in other mines. Some of the appellant’s witnesses also testified in substance that there was a little scar on deceased’s head and a burned place on his shoulder. They ran their hands over the wire without any injury or shock; that they did not find any place where deceased could have been hurt on the wire. Some of' these witnesses, however, admitted that the insulation was a little frizzly around the wire. The wires were three years old. It was shown by one of appellant’s witnesses that a fuse had blown out about the time they found the body; that there was a little noise or flash. After this fuse blew out he found the body, found the man was dead.

The testimony was conflicting on all material points, and. no useful purpose could be served by setting it out at length.

The appellant contends that the court erred in not granting it a new trial and in permitting a verdict to stand against the weight of the evidence and physical facts, but a sufficient answer to this is that there was ample testimony to make the negligence of the appellant a question for the jury, whose province it is to pass upon the credibility of witnesses and the weight to be given their testimony.

It is next contended that the court erred in not permitting appellant to put on all the members of the coroner’s jury. The court said: “Don’t call any more coroner’s jury to show the same thing. You have had a number of the members of the jury. If you have anything new, I will permit it. If it is the same thing, it just takes the time of the jury.” However, appellant did not make any objection to this statement of the court at the time, and did not state what he expected to prove by any other witnesses he wished to put on. The court had already permitted six of the coroner’s jury to testify.

After the statement by the court, the appellant continued with the examination, of the witness he had just called, and did not call any other witness and did not offer any other evidence but- acquiesced, without objection, in the ruling of the court. This objection cannot be considered by this court for further reason that it was not made one of the grounds of appellant’s motion for new trial. A question not raised in appellant’s motion for new trial will not be considered on appeal. United Order of Good Samaritans v. Anderson, 171 Ark. 1033, 287 S. W. 194 ; Welch Stove $ Mercantile Co. v. Burris, 165 Ark. 556, 265 S. W. 68 ; Jones v. Fowler, 171 Ark. 594, 285 S. W. 363 ; Pierce v. Secard, 176 Ark. 511, 3 S. W. (2d) 337 ; Presley v. Actus Coal Co., 172 Ark. 498, 289 S. W. 474 ; Miller Rubber Co. v. Brewster-Stevens Service Station, 171 Ark. 1179, 287 S. W. 577 ; Myers v. Andre, 161 Ark. 393, 256 S. W. 363 ; Battle v. Draper, 149 Ark. 55, 231 S. W. 869.

Appellant’s next contention is that the case should be reversed because the court gave its preliminary instruction or statement to the jury. This simply stated the issues, and we do not think the statement was improper. It is contended that, as no one saw the death, the jury had to guess how it happened. We do not agree with appellant in this contention. A number of witnesses testified as to defective wires and poor insulation and testified that there were burns on the body. In addition to the testimony of these witnesses, Dr. Jewell, the county health officer, testified that in his judgment his death was caused by coming in contact with wires. The undisputed evidence shows that Dr. Jewell had had considerable experience and was qualified to testify as to the effect of coming in contact with the wire. The cause of death was a jury question, and there was substantial evidence to support the verdict.

It is finally insisted that the case should be reversed on the ground that the plaintiff was not the proper party. to sue, and that she had no right under the law to maintain this action. This question was not raised in the court below, and was not made one of the grounds for new trial in the motion for new trial. Appellant calls attention to and relies on the following authorities. Railway v. Hutchinson, 101 Ark. 424, 142 S. W. 527 ; Jenkins v. Midland Valley Rd. Co., 134 Ark. 1, 203 S. W. 1 ; Railway v. Henrie, 87 Ark. 443, 112 S. W. 967 ; Railway v. Sweet, 63 Ark. 563, 40 S. W. 463 ; Alko Nak Coal Co. v. Barton, 88 Okla. 212, 212 Pac. 591 ; M. K. & T. Ry. Co. v. Perino, 89 Okla. 136, 214 S. W. 907 ; and Sanders v. Ry. Co., 66 Okla. 313, 169 S. W. 891. In the first case cited the court said: “The proof shows that no personal representative had been appointed, and that all the heirs of the deceased were parties which supplied any defects in the averments of the complaint, and such' suit could be maintained by them.” In the next case relied on, the trial court sustained a demurrer to the complaint, and this court said that was right. If this question had been raised in this case in the court below it would doubtless have been properly settled by that court. In the next case, Ry. Co. v. Henrie, the evidence did not show that there was no personal representative, and the court, after stating that, while the evidence did not expressly negative the facts contended for by appellant, it did so by fair implication, and said: “Aside from a formal denial in the answer of the allegations of the complaint concerning administration and next of kin, appellant does not appear to have insisted on the question until the case reached this court.” The case of Ry. Co. v. Sweet, relied on, does hot decide the question here involved. The court said: “But they were instituted to recover different damages, and neither is a bar to the other. ’ ’ In each of the Oklahoma cases referred to the question was raised by demurrer in the trial court. In the instant case there was no demurrer, and no objection on the ground that the plaintiff did not have the legal capacity to sue. Our statute expressly provides that: “The defendant may demur to the complaint where it appears on its face that the plaintiff has not legal capacity to sue.” C. & M. Digest, § 1189.

Our statute also provides that: “When any of the matters enumerated in § 1189 do not appear upon the face of the complaint, the objections may be taken by answer. If no such objection is taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, except only the objection to the jurisdiction of the court over the subject of the action, and the objection that the complaint does not state facts sufficient to constitute a cause of action.” C. & M. Digest, § 1192.

The appellant, at the close of appellee’s testimony, made the following motion: “The defendant moves the court for an instructed verdict for the reason that the plaintiff has shown no act of negligence on the part of the defendant that would have or could have caused the death of the deceased. ’ ’ At no time was it suggested that the plaintiff was not the proper party to sue. The objection that plaintiff did not have legal capacity to sue must be made in the manner provided in the statute. Murphy v. Myar, 95 Ark. 33, 128 S. W. 359 ; Love v. Cohn, 93 Ark. 215, 124 S. W. 259 ; Ry. Co. v. Watson, 97 Ark. 560, 134 S. W. 949 ; Texarkana Gas & Elec. Co. v. Orr, 59 Ark. 215, 27 S. W. 66. The evidence in the instant case shows that the daughter was made a party, that she is the only heir of the deceased, that she is married and 22 years of age. The undisputed proof shows that she was not receiving any contribution from her father, and at the close of the evidence the court directed a verdict in favor of the defendant as to the daughter. The undisputed evidence shows that appellee was the only person entitled to recover for the death of the deceased, and both parties asked and the court gave instructions to the jury, limiting her recovery to the amount of her pecuniary loss as shown by the evidence.

We find no error, and the judgment is affirmed.


author: Butler, J.

text:
    Scott v. County Board of Education of Saline County.
    Opinion delivered October 20, 1930.

      John D. Shackleford, for appellant.

      Ernest Briner and W. A. Utley, for appellee.
   Butler, J.

The county board of education of Saline County by its order consolidated a number of school districts into a special school district known as Collegeville Special School District No. 31. Complaint was made regarding the alleged arbitrary conduct of the board in its proceedings, but no appeal was taken from its order of consolidation. Thereafter appellants, A. A. Scott et al., residents of former school districts Nos. 3, 49 and 62, which districts had been consolidated and formed into the special school district aforesaid, filed their petition praying that the consolidated school district be dissolved, and that districts Nos. 3, 49 and 62 be restored to their status as before the order of consolidation had been made.

The county board denied the prayer of the petition, and an appeal was taken to the circuit court where the action of the county board was sustained. From this last order this appeal is prosecuted.

It is insisted by the appellants that the county board of education was obligated by law to dissolve the district upon the presentation of a petition signed by a majority of the qualified electors residing within the district, and that the county board had no discretionary power to refuse to grant the petition. By act No. 234 of the Acts of 1919 the county board of education was created, and by § 4 of that act was clothed with the powers relating to schools and school affairs theretofore residing in the county court. That court had been empowered by act No. 66 of the Acts of 1895 with power to dissolve any school district when a majority of the electors residing in the same should petition the court so to do. Section 1 of said act granting this power providing as follows : “The county courts of this State shall have power to dissolve any school district now established or which may hereafter be established in its county and attach the territory thereof in whole or in part to an adjoining district or districts, whenever a majority of the. electors residing in snch district shall petition the court, so to do.” This court, in determining the powers of the county court, held that there was a discretion vested in the court to be exercised for the best interests of the citizens of the district to be affected, although that discretion was not in express terms given in the statute. Hughes v. Special School District, 135 Ark 454, 205 S. W. 824.

Section 4 of act No. 234 of the Acts of 1919 provides: “That the county board of education shall have direction and supervision of the public schools of the county, unless otherwise provided by law, in their respective counties. The county board shall also have all the powers and discharge all duties pertaining to the schools, school affairs, and school revenues of the county, heretofore imposed upon the county judge, such as the following: Apportion all school funds as provided by law and in conformity to the regulations of the State Board of Education; form local school districts; change district boundary lines; transfer children; dissolve upon petition local school districts, where conditions and the best interests of the children demand; transfer funds and attach territory which is in no school district to the proper district or districts.” It will be noted that in this act a discretion is conferred upon the board by the express terms thereof, namely, that it may discharge certain duties relating to schools among which, power is given “to dissolve upon petition local school districts where conditions and best interests of the children demand.” So, by the authority of Hughes v. School District, supra, and the express terms of the statute, we are of the opinion that a discretion was vested in the court to be reasonably exercised in the granting or refusing, to grant petitions for the dissolution of the district, and it might refuse 'to dissolve any district, even though a majority of the qualified electors therein might petition therefor, where it appeared to the board that the conditions and best interests of tbe children demanded such action.

When this cause was heard on appeal in the circuit court, several witnesses were introduced who testified that school facilities were better in the district as consolidated than in districts Nos. 3, 49 and 62 before consolidation ; that there was a much better average attendance from those districts than before, and that the roads were good and the means of transportation adequate, and that it was for the best interests of the children that the consolidated district be not dissolved. There was no testimony to the contrary. Therefore, assuming that the petition contained a majority of the qualified electors in the districts, there is no showing that the action of the board in denying their prayers was arbitrary, but appears to us to be a reasonable exercise of the discretion vested in it by law.

The petition containing a majority of the qualified electors was necessary to give the board jurisdiction, and an examination of the evidence adduced on the trial of the case in the court below discloses the fact that there was no majority. Dr. W. W. Ward, one of the witnesses for the appellant, testified that there were sixty-seven persons in the territory affected who were qualified electors and who did not sign the petition, and that the petition was signed by seventy-two other persons qualified under the law to sign such petitions, thus making a majority. This is all the testimony as to the number of qualified electors who lived within the district, but of the seventy-two who signed the petition the uneontradicted testimony of a number of witnesses discloses the fact that a considerable number of the persons who signed the petition were not qualified electors of the district. •Several signed who had transferred their children and taxes to, but who themselves did not reside within the district. These were not qualified electors. Jones v. Floyd, 129 Ark. 185, 195 S. W. 360. Two had been convicted of felonies, and their citizenship not restored. One whose name appeared on the petition did not sign it himself nor authorize any one to sign it for him. Altogether it was shown that of those signing the petition there was a number who were not qualified electors sufficient to reduce the number of qualified electors below a majority. Also, it may be said that the persons circulating the petition did not testify, nor was there any showing made that the purported names were the genuine signatures of those persons, and without such showing there was no duty resting’ upon the board to consider the petition.

“The court properly eliminated from its consideration a petition that was circulated by one Boss Hughes, because there was no competent testimony that the names thereon were genuine signatures of electors residing within the district.” Hughes v. Special School District, supra, quoting page 458. Therefore, in any view of the case, the judgment of the trial court was correct, and it is affirmed.


text:
    St. Louis-San Francisco Railway Company v. Hall.
    Opinion delivered October 20, 1930.

      E. T. Miller, E. L. Westbrooke, Jr., and E. L. Westbrooke, for appellant.

      Harrison, Smith >ds Taylor and C. T. Carpenter, for appellee.
   Butler, J.

The appellee, G. A. Hall, had for many years operated stations for pumping water for engines of the appellant company. For about a month preceding October 12, 1927, he was engaged in this business for the appellant at M'onette, Arkansas. The engine which he operated at this place was a coal oil burner, and the fuel was delivered toy the section crew at the pump house and by them carried within and placed in proper position. On the morning of the 12th of October, 1927, the section crew, composed of the foreman and four men, loaded a push cart at the depot with a case of cup grease, a thirty-gallon drum of gasoline and a one hundred and ten-gallon drum of coal oil, and pushed the car by means of the motor ear used by the section crew to a point opposite the pump house, variously estimated at being from six to nine feet from the door of said pump house. It was the purpose of the section crew to there unload and place the grease, gasoline and coal oil in the pump house for the use of the operator Hall. In the course of unloading Hall’s leg was broken by the drum of coal oil rolling against it, catching it between the drum and the door sill of the pump house. Hall was carried to a hospital in Jonesboro where he remained for about twelve days when he was transported to one of the company’s hospitals at Springfield, Missouri, at which he remained until December 20, 1927. For some days before that date he had recovered sufficiently to go about the hospital on crutches, and he was informed by the physician in charge that he might go home for the Christmas holidays. He left the hospital on December 20, and reached his son’s hoim'e near Leachville on the morning following.

On December 22,1927, Mr. Allard, the claim agent of the appellant company, visited Hall Iflor the purpose of effecting a settlement for the injury- sustained by Hall. He found Hall in bed, complaining of being exhausted by the journey'from the hospital at Springfield and feeling very unwell. Allard did not press the question of settlement, but left. Some three or four days afterward Hall visited his wife’s brother-in-law, John Dunham, at Holcomb, Missouri, and remained there for three or four days. He left in company with his son-in-law, N. D. Oxley, for the latter’s home at St. Francis, Arkansas, at which place he was on the 9th of January, 1928. On that date, the claim agent again visited Hall, and a settlement was agreed upon for the sum of $750, and Hall signed a written instrument which by its terms in consideration of the said $750’ released the appellant coim puny from all liability and from all claims for the injury which occurred in the preceding October; including those that then existed or which might thereafter develop. Upon the execution of the release Allard delivered to Hall the company’s check for $750 which Hall retained until January 18, 1928, when he deposited the same to his credit in a bank at Blytheville, Arkansas, immediately drawing out $250 in cash. After leaving the bank it was Hall’s purpose to consult with Ms physician regarding the condition of his leg, and, while going along the street, one of his crutches slipped causing him to fall breaking his leg again. He was given first aid and immediately táken to the company’s hospital at St. Louis, Missouri, where his leg was reset and treated for a time until he could again go about the building on crutches. His leg did not heal properly and was then placed in a plaster cast, and in this condition he returned to his home with instructions to return to the hospital at the end of forty days. In about forty-six days he did return, and after further examination it was determined that it would be necessary to amputate his leg, which operation was performed on July 12, 1928.

In the month, of August, 1928, he checked on the remainder of his deposit in the Bank of Blytheville for two small amounts. He drew two checks in 'September, four in October, one in December, four in January, 1929, and one in February, 1929, when there was left .in the bank of the $750 received (from the appellant company the sum of $120. On the 25th day of April, 1929, Hall filed suit against the appellant company for damages for the injury sustained on October 12, 1927, alleging that his injury was occasioned by reason of the negligence of t-he appellants employees. The appellant company answered denying negligence, and pleading as a further defense the settlement entered into January 9, 1928. To the plea of settlement the appellee replied alleging that the settlement was induced by fraud and entered into by reason of a mutual mistake, and that the same was not valid and binding. The case was presented to the jury on these issues, and from a verdict and judgment adverse to the appellant is this appeal. 'Such further (facts as are necessary for an understanding of the issues and conclusions reached will be hereinafter stated.

The three major propositions presented here, as in the court below, and urged as grounds for reversal are, first, that the evidence failed to show any negligence on the part of the appellant’s employees; second, that the release signed was fairly entered into without misrepresentation or fraud or because of mutual mistake and is valid and binding; and third, that the appellee by his act accepted the benefits of the settlement and ratified the same.

1. The testimony regarding the happening of the injury to Hall is in hopeless conflict, but, for the purpose of testing its sufficiency, the testimony of the appellee must be accepted and viewed in its moist favorable light and given its strongest probative value. All of .the testimony for the appellee was given by himself alone, which was to the effect that, as the push cart with its load approached down the railroad track and stopped at a point opposite the front door of the pump house, he entered the pump house for the purpose of stopping the engine and removing the (belt; that it was necessary to do this in order that the coal oil drum might be rolled .beyond the engine and placed upon a shelf elevated at some distance from the floor; that immediately after stopping the engine he turned facing the door and started in that direction, the section crew at that time being immediately in front of the pump house having already unloaded the case of cup grease and the smaller drum containing gasoline; that at this time the appellee and the section crew were in full view of each other. Preparing to come out of the pump- house, appellee made a step so that one foot and leg were beyond the door sill, at which time the large drum weighing 950 pounds was rolled by the section crew from the push cart catching appellee’s leg between the door sill and the drum, causing the injury. Appellee stated that his purpose for leaving the pump- house at this time was to assist the section crew in unloading the drum of oil and placing it in the pump house; that he was sixty-five years old and had been operating pump stations for the appellant company for a number of years, and that the manner in which the -oil was unloaded was -customary; that this was the first time since he had been at Monette that it was necessary to deliver any oil to his station. Appellee also stated that ‘ isidds ’ ’ were used in unloading push carts, but that they had no Skids -on this -occasion.

The evidence i-s undisputed that it was the duty of the section crew to unload the coal oil and other articles, and, after having unloaded them, to- bestow them in the proper place within the pump house, and that none of this was a part of the duty of appellee. Appellee insists that upon this state of facts a case was made fo-r the submission ■off* the question of negligence of appellant’s servants to the jury and in support of this contention has cited a number of cases, among which is that of Cruce v. Missouri Pac. Ry. Co., 167 Ark. 88, 266 S. W. 981, where the negligence alleged was the failure to furnish a safe place in which to work in that the appliance for holding up a tool box near the place where plaintiff worked was defective causing the tool box to fall, injuring the plaintiff.

In Pollock v. Hamm, 177 Ark. 348, 6 S. W. (2d) 541, the plaintiff was alleged to have been injured by the negligent operation of a motor truck. In Beal-Doyle Dry Goods Co. v. Carr, 85 Ark. 479, 108 6. W. 1053, 14 Ann. Cas. 48, cited as a case directly in point, the negligence was alleged to be the leaving open of the door of an elevator to which plaintiff had been directed for ascent to a higher floor in the building, and through which he stepped falling and injuring himself. These cases are entirely dissimilar to the instant case and can have no application to the issue here involved. The case most nearly in point cited by the appellee is that of St. Louis etc., Ry. Co. v. Burdg, 93 Ark. 88, 124 S. W. 230. In that case the cour-t said: “The evidence on the part of the plaintiff tended to prove that the end of the box car had been knocked out, and that the plaintiff and his fellow-servant were engaged in removing the brake rod. This rod was encased in the brake plate at the top of the car, and this plate was fastened to the car with screws; and when the plate was entirely loosened, it would slide down the rod. The employee on top of the oar had loosened the plate from the car by removing the screws, and was holding the plate against the side of the car while the plaintiff on the ground took hold of the lower end of the brake rod and was raising it out of the socket. The employee on the top of the car let the iron plate drop or slide down on the plaintiff while he was thus raising the rod. He gave no warning off letting the plate drop, and at the time the plaintiff was looking down while engaged in the duty of raising the rod and did not see the plate as it fell. From the facts and circumstances detailed we are of the opinion that the evidence is sufficient to sustain a finding that the fellow-servant was negligent in permitting or causing the brake plate to fall upon the plaintiff; and that at the time the plaintiff was in the exercise of due care.” That case is readily distinguishable from the case at bar. There, the two servants were engaged in a common enterprise which needed the combined efforts of both to accomplish, and the nature of the duty to be performed by the person who was injured necessarily required him to look downward at the work he was doing and from his position below the other workman and the direction in which he was obliged to look prevented him from observing the conduct of his fellow-servant who on his part could plainly see the position of the other, and, seeing this, dropped the brake plate over the top upon his fellow-servant without any warning being given. Here, the facts are entirely different. Hall was not engaged in a common enterprise with the section crew, and was in a position where he could observe all they were doing and while they could also see him, they were more directly concerned with the unloading of the coal oil and had no occasion to scrutinize Hall’s position with any great degree of attention. They were engaged in a simple operation requiring no skill or extraordinary care and while skids were sometimes, used, it was not the invariable custom nor was it necessary on this occasion. Hall had entered the pump- house when they were preparing to unload the push cart without telling them what his purpose was and there was no reason for them to anticipate that he would leave the pump house, nor was there any occasion for him to do so. Therefore, there was no reason for the section crew to warn Hall of their intention to roll the coal oil drum off the cart; nor was there an opportunity for doing so as the act of pushing the oil off the cart and that of Hall in stepping from the puimp house appear to have been simultaneous. "We are unable to see any conduct on the part of the section crew different from that of ordinarily prudent men engaged in similar work under the same circumstances. As before stated, the section crew was engaged in doing a simple piece of work such as is done continually, and one which would require no more than ordinary foresight and prudence. As has been aptly said: “A reasonable man can be guided only by reasonable estimate of probability. If men were bound to guard themselves against every risk to themselves or others which might by ingenious conjecture be conceived as possible, human 'affairs could not be carried on at all.” Anderson v. Forrester-Nace Box Co., 103 Mo. Appeals 382, l. c. 387, 77 S. W. 486.

2. The appellee contends that he was induced to sign the release under the mistaken belief that his leg would soon get well, and that this belief was induced by the statements of Dr. Cecil and the claim agent, and that this mistaken belief continued until he consulted with a physician who expressed surprise at his being out of the hospital, and when speaking of the condition of appellee's leg, said: “You haven’t got any leg.” This statement alarmed appellee especially because his leg had begun to swell and to hurt more and more severely. The appellee stated this interview with the physician occurred three or four days after the settlement of January 9 so that from that time on he was no longer deceived as to his condition, and with this knowledge retained the appellant company’s check several days longer before depositing it, drawing $250 in cash and placing $500 to his credit in the bank at Blytheville, this being-done before the time of his second injury on the same day he made the deposit. Assuming that the release had been procured as alleged by the appellee, his taking advantage of the settlement by depositing the check to his credit was a ratification of such release, for if he had been deceived he learned the truth and it was then his duty to disaffirm the contract as quickly as reasonable diligence would allow, and, having failed to do so and deriving- all possible benefit from the transaction, he can- ‘ not now be relieved as by his conduct he has waived all benefit of, and relief from, the misrepresentations. Wilson v. Strayhorn, 26 Ark. 28 ; Lamden v. St. L. S. W. Ry. Co., 115 Ark. 238, 170 S. W. 1001 ; McCormack v. Daggett, 162 Ark. 16, pgs. 22 and 23, 257 S. W. 358, and cases therein cited.

Having reached the conclusions as above stated, it follows that the judgment must be reversed, and the case dismissed. ' It is so ordered.

Mr. Justice Humphreys concurs on the ground that appellee ratified the release.


text:
    Kansas City Southern Railway Company v. Sanford.
    Opinion delivered October 20, 1930.

      Frank H. Moore (Kansas City, Mo.), A. F. Smith and James B. McDonough, for appellant.

      S. P. Jones, Franklin Jones (Marshall, Texas), and Steel $ Edwards, for appellee.
   Butler, J.

Appellee, plaintiff in the court below, was a switchman in the employ of the appellant railway company and engaged in the work of moving interstate commerce which was being transported by the defendant, a common carrier by railroad, and engaged at the time in commerce as such (between the States. On the 11th day of December, 1927, while employed as aforesaid, appellee received severe personal injuries by reason of the defective condition of the track over which commerce was being handled in Shreveport, Louisiana.

There is no conflict in the evidence with reference to tie manner in which the injury was received or the cause of it. This evidence conclusively establishes the freedom of the appellee from blame and the negligence of the appellant company. The injuries were not thought to be serious or permanent, and, after having been confined at his home for a few days, the appellee reported to the company physician, and on being advised that he was able to return to work reported for duty. He was informed by the yardmaster that he could not begin work until he had signed a release. On the 26th day of .September a release was executed and appellee was paid the sum of $92.68, that being the amount which would have been due him had he continued at work from the 11th of September to the 26th, and was payment for this lost time. Appellee returned to work on the 27th of September, and soon after began to suffer from unaccustomed pains and soreness and stiffness of the body and progressively grew worse until January 5, 1928, when he had to stop work and go to the hospital where he remained for twenty days under the examination and treatment of physicians. A short time after his release from the hospital on March 26, 19-28, he was discharged from the service of the company because his physical condition was such that he could no longer perform his duties.

Appellee filed this action on March 9, 1929, alleging the nature and extent of his injury, and that it was caused by the negligence of the appellant company. The appellant answered denying the allegations of the complaint and pleading the settlement and release before executed in ¡bar of the action, to which plea appellee replied alleging that the settlement was procured by fraud, and was the result of a mutual mistake. The jury found the issues in favor of the appellee and returned a verdict in favor of the appellee in the sum of $22,500, on which judgment was accordingly entered and from which the appellant has duly prosecuted this appeal.

As before stated the evidence established the negligence of the appellant and the resultant injury to the appellee while in the performance of his duties and in the exercise olf' ordinary care for his own safety. There is also but little', if any, conflict in the testimony relative to the physical condition of the appellee at the time of the trial, the great weight of the evidence being to the effect that he was suffering from a diseased condition of the vertebrae which rendered him unable to perform manual labor and which would probably never be any better, but would progressively become worse. The cause of that condition, however, was a matter of dispute upon which the testimony was in sharp conflict, that of the appellant tending to show that appellee’s condition was the result of rheumatic trouble arising from an unknown origin and which was antecedent to the injury received on September 11, which injury, it is contended, was slight and not permanent. The testimony on behalf oif the appellee, on the other hand, tended to show that prior to the injury appellee was a man otf' more than ordinary strength and vigor, was in good health, and that his then physical condition was the result of the injury received. This question was submitted to the jury under proper instructions, and its verdict on this issue is conclusive here, and no question is raised as to the amount of the verdict.

During the trial of the case the appellant interposed numerous objections to the action of the trial court in its rulings on the admissibility of testimony, to the action of the trial judge in himself propounding questions to witnesses, to the refusal of the court to give a number of instructions requested by. the appellant, and in giving other instructions on its own motion and at the request of the appellee, and to improper remarks made by counsel during the course of their argument and here urged as error.

One of! the assignments of error was- for the court’s action in overruling appellant’s motion to suppress the deposition of certain witnesses taken before a notary puiblio in the State of Texas. The record discloses the fact that the appellant was represented by counsel at the taking of the deposition, and no objection was there interposed to the manner of taking- or the form, the only right to object reserved was to the competency, relevancy and immateriality of the questions and answers. Appellant argues that the certificate of the notary public fails to show that the witnesses were sworn, but it does not state that they were not sworn. Appellant complains also that the testimony was taken down iby the notary public in shorthand, and that this was a failure to meet the requirements of the statute that the stenographer taking down the testimony must be sworn. Had the appellant not been represented by counsel at the taking of the deposition, the certificate would have been defective, but since appellant was so represented we must assume that the deposition was r egularly taken, and that all irregularities were waived since only the right to object to the deposition for competency, etc., was reserved. The requirement that the stenographer must be sworn (§ 4235, C. & M. Digest) has no application where the notary himself takes down the testimony. The correctness of his action is guaranteed by his oath of office, and it would be immaterial in what manner the testimony was written, in the absence of a specific objection.

Appellant moved to transfer the cause to equity and complains of the action of the court in overruling its motion. The court did not err. The case was properly triable at law, and the appellant was entitled to present all the grounds of defense pleaded. St. L. I. M. & S. R. Co. v. Smith, 82 Ark. 106, 100 S. W. 884.

'We now pass to what we consider the important questions involved, namely, is the release executed September 26, 1927, valid and binding, or was it entered into through mutual mistake or procured by false representations of the appellant’s agents believed and relied upon by the appellee, and were these issues properly submitted to the jury under correct instructions? It is admitted that the settlement and release executed in accordance therewith was signed by the appellee 'with full knowledge of its terms, and is. a complete bar to his cause of action unless entered into through mutual mistake or procured by false representations believed and relied upon by the appellee. In order to appreciate the effect of the representations on the mind of the appellee regarding the extent and probable duration of the injury, it is necessary to briefly consider and review the circumstances attendant upon the incident of appellee’s injury and what occurred to him thereafter that might be attributable to his injury.. To perform his duties as switchman in the yards of the appellant company, it was necessary for appellee to stand on the running board of the locomotive while it was moving to and fro. While in this position and while the locomotive was moving at the rate1 of from six to eight miles an hour, an obstruction on the track came in contact with the running board off the locomotive bending it so as to cause the appellee to fall. He fell forward and in front of the running board which caught his body as the locomotive continued to move, doubling him under it and rolling him forward some 25 or 30 feet before the engineer who witnessed the fall could bring the engine to a stop. Appellee was extricated ¡by Ms fellow workmen. His clothing’ was 'badly torn, one shoe heel ground off by the revolving wheel of the engine, he was badly shocked, and complained at the time of an injury to his shoulder. After a short time he recovered sufficiently to climb into the cab without assistance and there rode the engine to within about five blocks of his home where he descended and started in that direction. He had to sit down to rest twice before reaching home and the following morning remained in bed and sent for the company physician who came and made a perfunctory examination of his body. Appellee requested on several occasions that the physician come again, but this request was not complied with and within three or four days he was able to go to the doctor’s office and there a splinter was taken from his body and a bit of germicide of some sort put on his abrasions. In a few days he went back to work, but soon discovered that he was not improving but growing steadily worse, until he had to stop work and was finally discharged from the service of the company because of his physical condition.

Appellee testified that when “he (Dr. Quinn, the company physician) saw me at my home, all he done out there was to put mercurochrome where I was scratched. He never did anything to my back at all; when I went to his office he did nothing for my back; I saw him in Ms office about four times, I think. During that time I was still suffering. The last time I was at his office was September 23 — some eleven or twelve days the pain and swelling had not left my body at that time. I had a conversation with Dr. Quinn at that time. He told me that the best tMng I could do would be to return to work; that the exercise and use of my muscles would cause tMs soreness to disappear — that the exercise would cause the remaining soreness to disappear and in a few days I would be as good as I ever was. He said my injuries were merely sprains and bruises and no bones or bony structure was injured, and as soon as I returned to work that the remaining soreness would disappear, and I would he as well ais I ever was 'before I was injured. I certainly did believe that.” Appellee further testified, “The claim agent visited me in Shreveport on the 26th, I believe it was, for the purpose of settling my claim. I talked with him. I told him what Dr. Quinn told me. He said he had also talked to the doctor and that the doctor told him my injuries were merely sprains and bruises; that when I returned to work the remaining soreness would disappear. He told me that the doctor knew what he was talking about; that the doctor assured him, that my condition was not and had not been serious. I asked the claim agent for $200 and straight time for settlement. The claim agent represented that I was not seriously injured and was able to return to work and continue to work as well as I ever was before I was injured. He would not give me any more than straight time. He gave me straight time — paid me for fourteen days’ work for the time I was off. I accepted that. I accepted the settlement because the doctor told me my condition was not serious — that there was no bone or bony structure hurt — that when I returned to work the exercise would cause the soreness to leave and I would be as good a man as I ever was. The claim agent told me that I was not seriously injured; that I was able to. return to work and continue to work as well as I did before I was injured. I believed that to be true at that time. That caused me to make the settlement.”1

The doctor and claim agent denied that any such statements had been made by them. This denial created an issue of fact which was determined by the jury in favor of the appellee, and this is conclusive upon us if the evidence as accepted by the jury was sufficient to establish a state of facts that would justify an avoidance of the release. These facts are sufficient and bring this case within the rule announced in the case of St. L. I. M. & S. R. Co. v. Hambright, 87 Ark. 614, 113 S. W. 803, 804. In that case the misrepresentation of the physician relied on was that when the doctor examined Hambright he told him his injuries were not serious, that he would be able to go to work by the first of March, and he replied to him, ‘ ‘ Doctor, it is up to yon — I don’t know and I want to know just what you think,” and the doctor said, “It is nothing bad, and yon will be all right by the first of March.” Hambright further stated that at the time the settlement was being negotiated the claim agent called the physician over the telephone and, after inquiring as to Hambright’s condition, listened a few moments, and then turned to witness and said, “The doctor says that you are not badly hurt and that you will be able to go to work by the first of March.” Hambright said he placed every reliance upon the statement of the doctor, thought he knew what he was talking about, consulted no other doctors at that time regarding his condition, and after receiving information from Jones, the claim agent, he made the settlement and executed the release.

It was the contention of the appellant in that case that the evidence was not sufficient to show that the appellee was either deceived or misled or that any fraud was practiced on him in obtaining the settlement. In discussing this question, the court cited and reviewed a number of cases and concluded by saying, “The appellee’s evidence fully meets the requirements of the authorities to avoid a release induced by fraud. ’ ’ That case has been followed and approved in a line of decisions beginning with the case of St. L. I. M. & S. R. Co. v. Carter, 93 Ark. 589, 126 S. W. 99. Among the later cases approving the doctrine announced in the Hambright case, supra, are the cases of Newsum, etc. Co. v. Shoemaker,. 173 Ark. 872, 294 S. W. 11 ; Sun Oil Co. v. Hedge, 173 Ark. 729, 293 S. W. 9 ; F. Keich Mfg. Co. v. James, 164 Ark. 137, 261 S. W. 24 ; Mo. Pac. Ry. Co. v. Elvins, 176 Ark. 743, 4 S. W. (2d) 528.

The court submitted the foregoing' question to the jury under proper instructions, but on the degree of proof required gave the following instruction: “The jury are instructed that if they find that the settlement entered into between the plaintiff and defendant was not based upon false misrepresentation or mutual mistake, you will find for the defendant, and the burden devolves upon the plaintiff to prove by a preponderance of the evidence that such misrepresentations were made or mutual mistake existed.” The appellant earnestly insists that the giving of this instruction was error in that it authorized a verdict (for the plaintiff on a ¡bare preponderance of the evidence, and that in this ldnd of a case it was not sufficient for the plaintiff to establish his case by mere preponderance of the evidence, but that the jury should have been instructed that the burden was upon the plaintiff to establish its allegations of fraud or mistake “by evidence clear, cogent and convincing,” and relies upon the case of Chicago etc. Ry. Co. v. Wilcox (C. C. A.), 116 Fed. 913, and the case of Wallace v. Skinner, 15 Wy. 233, 88 Pac. 221, to support its contention.

It will be noted that the first-named case was a suit in equity to cancel a written release, and in that case the court held that a release might not be rescinded for fraud or mistake unless the evidence of fraud or mistake is clear, unequivocal and convincing. This is likewise our rule in equity cases where fraud or mistake is pleaded and affirmative relief sought. Ogletree v. Smith, 176 Ark. 597, 3 S. W. (2d) 683. But the instant case is a suit at law and the allegation of fraud or mistake is defensive only, no cancellation of the written instrument being asked, but its consequence merely sought to be avoided. The Wyoming case, supra, was an action at law for a recovery of damages, and the defense of fraud or mistake was offered in avoidance of a release pleaded in bar to the cause of action. In that case the court laid down the clear preponderance rule, but we have been unable to find any support for this case, but think the weight of authority and the decisions of our own court are to the contrary. This view is supported by the case of Capitol Traction Co. v. Smead, 58 App. D. C. 141, 26 Fed. (2d) 296, page 303; Lumley v. Wabash Ry. Co. (C. C. A.), 76 Fed. 66 ; St. L. I. M. & S. R. Co. v. Phillips (C. C. A.), 66 Fed. 35, while in this State the mere preponderance rule has been uniformly given to juries without any question raised and considered by this court without criticism, and tacitly approved. Ind. Mut. Ind. Co. v. Thompson, 83 Ark. 575 (582), 104 S. W. 200, 10 L. R. A. (N. S.) 1064, 119 Am. St. Rep. 149 ; St. L. I. M. & S. Ry. Co. v. Hambright, 87 Ark. 614, 113 S. W. 803 ; St. L. I. M : & S. R. Co. v. Carter, 93 Ark. 589 (594), 126 S. W. 99 ; F. Kiech Mfg. Co. v. James, 164 Ark. 137 (142) 261 S. W. 24 ; St. L.-S. F. Co. v. Cox, 171 Ark. 103, 283 S. W. 31 ; Sun Oil Co. v. Hedge, 173 Ark. 729, 293 S. W. 9.

In the case of Rice-Stix Dry Goods Co. v. Montgomery, 164 Ark. 161, 261 S. W. 325, 329, the issue was whether the maker of the note sued on was induced to execute the same through fraud and misrepresentation. In that case it was argued that the burden of proof was on the maker the same as if he was asking in equity to rescind his contract and cancel the note. A number of cases were cited to sustain that view. In referring to those cases this court said: “But the rule in these cases, to-wit, that before equity will cancel, set aside, or reform a deed or instrument for fraud, the proof of the alleged fraud must be clear, convincing, and unequivocal, has no application to actions like this at law. Here no affirmative relief of cancellation or reformation of an instrument is sought, but the defense is simply that of non-liability .because of deceit and fraud in procuring the instrument which is the foundation of the action. While fraud at law, as well as in equity, is never to be presumed and must be proved, yet in actions at law one who has the burden of proof to establish fraud meets the requirements of the rule when he proves the fraud only by a preponderance of the evidence.”

It is the contention of the appellant that, although this might be the rule in this court, it cannot be applied in the instant case as the injuries received by reason of appellant’s negligence are determinable by the Federal Employers’ Liability Law (45 U. S. C. A., §§ 51-59) as interpreted and applied by the decisions of the federal courts. In the first place, it may be said that we have not been able to find where the federal courts have laid down the rule that in actions at law in defending’ against the validity of a release the degree of proof required should be clear, unequivocal and convincing, nor do we understand that such rule; if held by the federal courts, would be binding upon this court in the instant case. The Federal Employers’ Liability Act and the principles announced by the federal courts for its interpretation and application are limited to a declaration of the substantive law fixing liability and the conditions under which causes of action may exist, but the remedies for making effective those rights or enforcing the liabilities created must be determined by the laws of the forum in which the action is brought. This appears to be clearly implied from the language- used by the court in Minneapolis, & St. Louis Ry. Co. v. Bombolis, 241 U. S. 211, 36 S. Ct. 595, 598, 60 L. ed. 961, Ann. Cas. 1916E, 505, L. R. A. 1917A, 86, where it is said: “It is conceded that rights •conferred by Congress, as in this case, may be enforced in State courts; but it is said this can only be, provided such courts in enforcing the Federal right are to be treated as Federal courts and be subjected pro hac vice to the limitations of the seventh amendment. And, of course, if this principle were well-founded, the converse would also be the case, and both Federal and State courts would by fluctuating hybridization be bereft of all real, independent existence. That is to say, whether they should be considered as State or as Federal courts would from day to day depend not upon the character and source of the authority with which they were endowed by the government creating them, but upon the mere subject-matter of the controversy which they were considering.” That the right to recover for the injury and the rules by which that injury is to be established is governed by tbe act of Congress as construed by tbe Federal courts cannot be denied. To our mind, it is equally certain that where the action is brought in a. State court the procedure for making effective that right is determinable under the rules of procedure in that State. We are therefore of the opinion that the instruction quoted, supra, was properly given. See also St. L.-S. F. R. Co. v. Cox, 171 Ark. 103, 283 S. W. 31.

The abstracts and briefs presented for our consideration are of such volume as to make a detailed discussion and analysis of all the questions raised impractical. We have endeavored to discuss the most salient features and those which appear to have been most .doubtful. On the whole case, it is our conclusion that there was no prejudicial error committed in the trial of the case, that the issues were fairly presented to the jury, and its verdict is supported by substantial evidence.

Affirmed.


author: Per Curiam.

text:
    Reynolds v. Union Bank & Trust Company.
    Opinion delivered July 14, 1930.
   Per Curiam.

Appellant, having obtained an appeal from a decree of the White Chancery Court and having lodged a certified copy of the decree in this court, now asks the court to make an order directing the stenographer who took in shorthand a report of the oral testimony in said cause as required by act 267 of the Acts of 1925, to make and file with the clerk of said chancery court a transcript of his stenographic notes as required by said act. See Acts of 1925, p. 823. He asks that the court direct said stenographer to prepare and deliver said transcript of his notes, free from costs, in forma pauperis. This court has no jurisdiction to make such order. The remedy of appellant in such case is in the chancery court. While the chancery court could not make any change in its decree after an appeal had been taken and a transcript containing a certified copy of the decree was lodged in this court, it retained jurisdiction to perform any act in furtherance of the appeal. Rindlaub v. Rindlaub, 19 N. D. 352, 125 N. W. 479, and cases cited. The lower court does not by reason of the appeal lose its jurisdiction to do anything that may be necessary for the presentation of the case in the appellate court. 3 C. J., p. 1254, par. 1367. See also Schofield v. Rankin, 86 Ark. 86, 109 S. W. 1161.

In State of Louisiana v. Clark, 33 La. Ann. 422, it was held that, although the jurisdiction of the lower court ceases when the order of appeal has been granted, yet the court retains its power over its clerk to compel him to fulfill the ministerial duties of his office in the case. Our original jurisdiction in matters of mandamus does not extend to cases like this, and the application is denied.


author: Hart, O'. J.,

text:
    Ætna Life Insurance Company v. Spencer.
    Opinion delivered October 27, 1930.

      Hill, Fitshugh & Brizzolara and Owens & Ehrmcm, for appellant.

      Partain $ Agee, for appellee.
   Hart, O'. J.,

(after stating the facts). Evidence was introduced by appellant tending to show that appellee was not totally disabled and also that his disability was not permanent; but, inasmuch as the verdict of the jury must be tested by the evidence in the light most favorable to appellee, we need not abstract the testimony for appellant. Under our settled rules of practice, if there is any evidence of a substantive character to support a verdict, it cannot be disturbed upon appeal.

Contracts of insurance should receive a reasonable construction so as to effectuate the purposes for which they are made. In oases where the language used is ambiguous, it should be construed in favor of the insured because the policy is written' on forms prepared by the insurer. Of course, legal effect should be given to all the language used, and the object to be accomplished by the contract should be considered in interpreting it.

The disability clause has been copied in our statement of facts and need not be repeated here. Total disability is generally regarded as a relative matter which depends largely upon the occupation and employment in which the party insured is engaged. This court has held that provisions in insurance policies for indemnity in case the insured is totally disabled from prosecuting his business do not require that he shall be absolutely helpless, but such a disability is meant which renders him unable to perform all the substantial and material acts of his business or the execution of them in the usual and customary way. Industrial Mutual Indemnity Co. v. Hawkins, 94 Ark. 417, 127 S. W. 457, 29 L. R. A. (N. S.) 635, 21 Ann. Cas. 1029 ; Brotherhood of Locomotive Firemen & Enginemen v. Aday, 97 Ark. 425, 134 S. W. 928 ; and Ætna Life Ins. Co. v. Phifer, 160 Ark. 98, 254 S. W. 335.

Thus it will be seen that our court makes no distinction between accident policies and life insurance policies containing total disability clauses. The construction placed upon policies of this sort follows the general trend of authority in the United States. Case Notes to 41 A. L. R. at 1376 ; 37 A. L. R. at 151 ; 24 A. L. R. at 203 ; and 7 Ann. Cas., page 815.

It only remains to apply the principles to the facts . of the present case. "While, as above stated, the evidence was conflicting, still the evidence introduced on the part of the appellee warranted the jury in finding that he was totally and permanently disabled within the meaning of the terms of the policy under consideration. The object to be accomplished was to indemnify the insured for loss of time for being wholly disabled from prosecuting his business. It has been well said that, if the language used was to be construed literally, the insurer would be liable in no case unless the insured should lose his life or his mind. Of course, as long as he is in possession of his mental faculties, he is capable of transacting some part of his business; but, as we have already seen, he was not able to prosecute his business within the meaning of the policy unless he was able to do all the substantial acts necessary to be done in its prosecution. The very purpose of obtaining the policy was to indemnify him in case he should become disabled, so that he could not carry on his business. In the present case, the premiums were paid and the policy kept up by the insured according to its terms until his disability occurred.

It is fairly inferable from the evidence introduced in favor of appellee that he was no longer able to carry on his business after about the first of August, 1928. His condition at that time became so that he could not attend to any of the duties of his business except to advise about the sales and purchases of produce. Before that time he was able to go about the streets and purchase produce from the various wagons where he anight find them. After his disability he could only purchase-produce from wagons which came to his place of (business. Even then he could not handle the produce and examine it with his hands. He could only walk with great difficulty and suffered constant pain. His right hand was numb, and he could no longer assist in keeping’ his books or in helping to sort cut vegetables or in loading and unloading produce. In crder to conduct his business successfully, it was necessary that he should do all these things. His business was such that he could not profitably conduct it by merely supervising it and hiring others to perform the work. His disability necessitated him to take his two sons in partnership with him in order to successfully carry on the business. His loss in this respect was the very object of taking out the insurance. Hence, when the character of the business, together with the attendant circumstances, is considered, we are of the opinion that reasonable minds might reach the conclusion that the insured was totally and permanently disabled within the meaning of the policy as above defined, and that the jury was warranted in finding a verdict in his favor.

- After the judgment was rendered, a motion was filed on behalf of appellee for the allowance of attorney’s fees against appellant to be included as part of the costs. ■ Under our statute, a reasonable attorney’s fee for the prosecution of the case may be allowed; and, inasmuch as this pertains to the remedy, it is taxed as part of the costs. Vaughan v. Humphreys, 153 Ark. 140, 239 S. W. 730, 22 A. L. R. 1201.

The amount of the judgment rendered in this case was $2,550, and the court allowed the sum of $500 as attorney’s fee. The record of the case is before us; and, without in any manner disparaging the ability and services of the attorneys for appellee, it seems to us that' the fee allowed is somewhat excessive and should be reduced to $400. Merchants’ Fire Ins. Co. v. McAdams, 88 Ark. 550, 115 S. W. 175 ; Mutual Life Ins. Co. v. Owen, 111 Ark. 554, 164 S. W. 720 ; Maryland Casualty Co. v. Maloney, 119 Ark. 343, 178 S. W. 387, L. R. A. 1916A, 519 ; Ætna Life Ins. Co. v. Taylor, 128 Ark. 155, 193 S. W. 540, Ann. Cas. 1918B, 1122 ; Metropolitan Ins. Co. v. Chambers, 136 Ark. 84, 206 S. W. 64 ; Indiana Lumberman’s Mutual Life Ins. Co. v. Meyers Stave & Mfg. Co., 158 Ark. 199, 250 S. W. 18 ; Camden Fire Assn. v. Meloy, 174 Ark. 84, 294 S. W. 378 ; and St. Paul Fire & Marine Ins. Co. v. Green, 181 Ark. 1096, 29 S. W. (2d) 304.

Therefore the judgment recovered by appellee for the amount of the policy sued on will be affirmed, and the attorney’s fee will be reduced to $400.


author: Hart, C. J.,

text:
    Shipley Baking Company v. Hartford.
    Opinion delivered October 27, 1930.

      W. L. Curtis, for appellant.

      John W. Goolsby, for appellee.
   Hart, C. J.,

(after stating the facts). The decree of the chancery court was erroneous. This ease is ruled by the decision in Phillips v. City of Siloam Springs, ante p. 137. In that case the court held that under Crawford & Moses’ Digest, § 5125, et seq., the power is conferred on the State Board of Health to require inspection of bakeries and to regulate the sale of their products, and that it was not within the power of a city to enact an ordinance exacting an inspection fee for products of a bakery located in another city which had complied with all the rules and regulations'of the State Board of Health and city board of health of the city in which the bakery was located, and manufactured and shipped its products under the supervision of such State and city boards of health. The court said in effect that the statute giving the power of regulation in the sale of foods and drinks was paramount, and that it is elementary law that a municipal ordinance, in so far as it conflicts with the statute, is invalid. The reason is that the statute of the State operates within the limits of the municipal corporation the same as it does elsewhere, and that local laws- and regulations are at all times subject to the paramount authority of the Legislature. Hence, ordinances of cities and towns inconsistent with statutes on the same subject must be held of no effect unless they are authorized by an express legislative grant. As applying this principle according to the facts of the particular case, we cite the following: Carpenter v. Little Rock, 101 Ark. 238, 142 S. W. 162 ; State v. Haynes, 175 Ark. 645, 300 S. W. 380 ; Duncan v. Jonesboro, 175 Ark. 650, 1 S. W. (2d) 58 ; and Bragg v. Adams, 180 Ark. 582, 21 S. W. (2d) 950. Therefore, the decree will be reversed, and the cause will be remanded, with directions to the chancery court to grant the prayer of the complaint of the plaintiffs.


author: Smith, J.

text:
    McGowan v. Burns.
    Opinion delivered October 27, 1930.

      D. E. McGowan, for appellant.

      Claude B. Brinton and Caraway, Baker <& Gautney, for appellee.
   Smith, J.

Appellant bought a tract of land in Poinsett County at a sale for the taxes of 1925, and, after pay-' ing the taxes for the ensuing two years, obtained a clerk’s deed. On November 15, 1928, after receiving his deed, appellant brought suit against the tenant in possession for rent. The original owners and the holder of a mortgage from them intervened, and were thereafter treated as defendants, and the canse was transferred to equity, where a decree was rendered canceling the tax deed, hut declaring a lien against the land in favor off appellant for the amount of the taxes which he had paid, and a commissioner was appointed to sell the land if the amount so adjudged was not paid within the time limited.

Pursuant to this authority, the commissioner advertised and sold the land on August 17, 1929, at which sale appellant became the purchaser. A report of this sale was duly made, which came on for confirmation and was duly heard on September 9, 1929, at which time defendants filed exceptions to the report of sale and objected to its confirmation upon the grounds that the land had been sold for an inadequate price, and that a tender had been made and refused before the sale of the amount due under the decree of sale, and there was a renewal of the tender of the amount due under that decree.

The matter of the confirmation of the sale was heard on September 9, 1929, and the decree then rendered recites that it was heard upon “the report of the sale by the commissioner above named and the decrees of this court formerly rendered in this cause, and the evidence of J. L. Burns, from all of which the court finds: that the sale in question should be set aside upon condition.” It ■ was then decreed that the commissioner’s sale be set aside upon the condition that the defendants, or either of them, pay to the plaintiff, or to the clerk of the court, on or before the next regular term thereof, the sum due plaintiff, “as fixed by the prior decree of this court herein,” with interest at six per cent.

Thereafter, on January 6, 1930, which appears to have been a day of the ensuing December term of the court, the matter was further heard on a motion filed by plaintiffs to set aside the decree of September 9, 1929, and a response thereto filed by J. L. Burns.

Plaintiff insisted, in his motion last referred to, that there had heen even then no sufficient tender of the sum due him, and he prayed that the decree of September 9, 1929, be set aside, and that the court approve and confirm the sale of the commissioner which the decree of September 9,1929, had refused to do. Upon this hearing the court found there had been a substantial tender and a payment to the clerk of the court of the full amount demanded by the clerk under and in satisfaction of the prior decrees of the court, and that the defendants had “substantially, if not literally, complied with the order of the court,” and the prayer for confirmation of the commissioner’s sale was again refused, and this appeal is from that decree.

The decree of the court below must be affirmed. The appeal was perfected July 5, 1930, which was barely less than six months from the date of the decree of January 6,1930, but this latter was not the final decree. The rights of the parties were fully adjudged under the decree rendered 'September 9, 1929, and that was the final decree, and the decree of January 6, 1930, was a mere refusal to vacate the prior decree. Feild v. Waters, 148 Ark. 325, 229 S. W. 735 ; Harvey v. Marr, 173 Ark. 90, 291 S. W. 981 ; Flanagan v. Drainage Dist., 176 Ark. 31, 2 S. W. (2d) 70 ; Foulkes v. Foulkes, 173 Ark. 188, 293 S. W. 1 ; Prouty v. Guaranty Loan & Trust Co., 174 Ark. 19, 294 S. W. 362 ; Security Mortgage Co. v. Bell, 175 Ark. 128, 298 S. W. 865 ; Parker v. Bodcaw Bank, 161 Ark. 426, 256 S. W. 384 ; Robertson v. Yarbrough, 160 Ark. 223, 254 S. W. 492 ; Simmons v. Turner, 171 Ark. 96, 283 S. W. 47 ; Wharf Imp. Dist. v. United States Gypsum Co., 181 Ark. 288, 25 S. W. (2d) 425.

The appeal was not therefore perfected in time, but we would be required to affirm the decree of September 29, 1929, even though an appeal had been perfected in time.

Appellant says the decree of September 9, 1929, was erroneous in two respects. First, that no reason was shown for the refusal to approve the commissioner’s prior sale except that the land had sold at an inadequate price; and, second, that it was error to allow him interest at six per cent., whereas he was entitled to interest, as a tax purchaser, at ten per cent.

It is conceded that mere inadequacy of price was not a sufficient reason to refuse to confirm the report of the commissioner’s sale. But this was not the only reason assigned in the exceptions to the confirmation of the commissioner’s report. It was alleged in the exceptions that a full tender had been made of the amount due plaintiff — appellant—under the decree which had canceled the tax sale. The decree of September 9, 1929, recites that that decree had been rendered upon the oral testimony of J. L. Burns, with other evidence. Burns was the administrator of the estate of his father, who had become the owner of the mortgage on the land by assignment of it to him, and this oral testimony has not been preserved and is not now before us. There is therefore a conclusive presumption that this oral testimony sustained the allegation that a tender had been made before sale. Petroleum Producers’ Assn. v. First Nat. Bank, 165 Ark. 267, 263 S. W. 965 ; Roth Tobacco Co. v. Layton Department Store, 163 Ark. 221, 260 S. W. 25.

It is also to be remembered that in his exceptions Burns renewed his tender. If’ therefore, there had been a tender before the sale, which was renewed when the report of the commissioner was heard, the sale should not have been confirmed, and the court was correct in refusing to allow interest thereafter at a higher rate than six per cent., as appellant could not refuse to accept the money due him and demand interest thereafter at ten per cent. Bender v. Bean, 52 Ark. 132, 12 S. W. 180, 241.

The decree must therefore be affirmed, and it is so ordered.


author: Smith, J. P'er ¡Curiam

text:
    Maloney v. State ex rel. Prosecuting Attorney.
    Opinion delivered October 27, 1930.

      June P. Wooten, for appellant.

      A. B. Gypert, Prosecuting Attorney, F. A. Isgrig, Grover T. Owens and A. F. House, for appellee.
   Smith, J.

The prosecuting attorney of the judicial circuit in which the city of Little Bock is situated, together with the members of the grievance committee of the Little Bock Bar Association, filed charges in the circuit court against Laurence O. Maloney for his disbarment as an attorney-at-law, pursuant to the provisions oí §§ 610-626, O. & M: Digest.

Three separate charges were presented, and the respondent was found guilty upon each of them by nine of the jurors who tried the case, and the separate verdicts returned upon each of these charges were signed by the nine jurors. Upon the verdicts thus returned the circuit court pronounced a judgment permanently disbarring the respondent, and this appeal has been prosecuted to review that judgment.

Testimony tending to sustain the charges preferred was to the following effect: Mrs. A. C. Harding had some money which she had put at interest, and in doing so had been assisted by one Douglass, whose full name does not appear to have been stated. It became necessary for Mrs. Harding to employ an attorney to collect these loans, and she employed respondent for that purpose. The testimony clearly shows that the relation of client and attorney was established, and respondent admits that Mrs. Harding paid him a fee of $100 in making these collections, and for other services subsequently rendered she paid him a fee of $15.

This business was transacted with such satisfaction to the client that the attorney appears to have completely gained her confidence. Respondent represented to Mrs. Harding that he had occasional applications for loans, which he could make for her account, and that he could and would guarantee that the loans would be safe and be properly secured, and we think the jury was warranted in finding that in the first two transactions thereafter had between these parties Mrs. Harding was warranted in assuming that respondent was acting as her attorney.

The first of these transactions was as follows: Maloney represented that he had a friend named Wilson, who wanted to borrow $500 on the security of a diamond ring worth $1,200, and Mrs. Harding made the loan on the recommendation of Maloney, who represented that he had taken a proper note. Mrs. Harding gave Maloney a check for the $500, payable to Wilson’s order, which, after being apparently indorsed by Wilson and by Maloney also, was cashed. The ring was retained by Maloney, for the reason that Mrs. Harding had no secure place to keep it.

The second transaction was of a similar nature, and involved an ostensible loan of $250 to a man named Barks-dale upon another diamond ring, which Maloney also kept in his possession.

The testimony amply supports the finding that these transactions were fictitious, and were mere subterfuges by means of which Maloney obtained the use of Mrs. Harding’s money for his own purposes, although he did have two diamond rings which he exhibited to her as the security for the loans which he represented that he had made.

It is difficult to disassociate these transactions from the existing relation of attorney and client, and the jury did not do so. There was nothing in either of these transactions to indicate that Mrs. Harding did not regard Maloney as her agent and attorney to negotiate these loans and to see that they were properly secured. Maloney was not in'the br okerage business, and, while he does not appear to have made any separate charges for his services in these transactions, they appear to be an incident to the relation of attorney and client existing between the parties, and were induced by the confidence which that relation had inspired. Mrs. Harding trusted Maloney to see that proper notes were taken, as she supposed, and to keep the rings which g'ave the notes their value.

The relation of attorney and client is not limited to trial of cases or to work connected with the courts. Many duties are entrusted to attorneys which might be performed by a layman, the lawyer being chosen, not because litigation is contemplated, but because the proper discharge of the duty requires some knowledge of the law, which leads the client to assume that the lawyer could more safely transact the business. "We think the transaction about the rings were of that character, although no specific fee was paid or charged for that service, because the transactions grew out,of and were related to the existing relation of attorney and client. They were related-to the business for the transaction of which Mrs." Harding had employed and paid Maloney, that of lending money.

After procuring these fictitious loans to himself, Maloney made application for a direct loan to himself of $800, and the third charge was based upon this transaction, the history of which is stated in the opinion of this court in the case of Maloney v. Harding, 181 Ark. 1075, 29 S. W. (2d) 290.

To secure this $800 loan Maloney gave a mortgage on the south half of a quarter section of land which he owned. After giving this mortgage Maloney retained it in his possession for a short time, when he gave it to Mrs. Harding', and she, after keeping it in her possession for some time, returned it to Maloney, but she had in her possession at all times the note for the $800 which the mortgage secured. It would be difficult to find a case of more simple faith or more trusting confidence, and it is not to be doubted that this faith and confidence arose out of the relation of attorney and client, which had never been terminated.

Maloney reported to Mrs. Harding that certain interest had been paid on the loans secured by the rings, but he later reported that default had been made in this respect. He also made default in the payment of the loan secured by the mortgage and of the interest thereon. Mrs. Harding saw Maloney frequently about these payments, and finally became importunate, and it is certain that he was not candid with her about these transactions. It finally became necessary for her to incur the expense of •employing an attorney to make the collection in each of these three cases, and this attorney frequently called upon Maloney demanding payment, and the same lack of candor on Maloney’s part continued, although he finally admitted to the second attorney that he had not, in fact, made the loans to Wilson and Barksdale, but at the trial from which this appeal comes he denied having made that admission.

It appears from the opinion in the case of Maloney v. Harding, supra, Maloney sold the entire quarter section of the land upon the south half of which he had given the mortgage to Mrs. Harding, and as her mortgage had not been placed of record, Maloney’s purchaser took the title to the entire tract free of the mortgage lien. In that case we reversed the judgment imposing the statutory penalty under §■§ 2453-2455, O. & M. Digest, for the reason that it had not been shown that the effect of the sale of the land by Maloney was to denude him of all bis property, not leaving enough to pay his creditors.

It was shown that, immediately upon the remand of that cause, Maloney paid Mrs. Harding the amount there adjudged to be due, and it was also shown that Maloney paid Mrs. Harding the amount of the loans made on the two rings, with interest thereon, but these payments were not completed until after the disbarment proceeding had been instituted.

It is very earnestly insisted that, as this showing was made and was admitted to be true, Mrs. Harding has not been damaged, and that as she has received her money it is now immaterial that she may have been deceived in regard to the loans on the rings. But the transactions cannot thus be rendered innocuous. Mrs. Harding was deceived in the first instance, and was later delayed and annoyed, and has incurred the expense of employing another attorney and of having a lawsuit.

At respondent’s request the court gave an instruction numbered 11, which reads as follows: “You are instructed that to constitute an improper retention of a client’s money sufficient to warrant disbarment, some element of fraud or dishonesty must appear'from the evidence. In other words, mere nonpayment of money by an attorney is insufficient as a ground for disbarment, in the absence of fraud or dishonesty in the retention of money.”

It thus appears that, before finding respondent guilty upon any of the charges, the jury was required to find that “some element of fraud or dishonesty must appear from the evidence,” and without further review of the testimony, we announce our conclusion that the testimony Avas sufficient for this purpose.

It is objected that other instructions permitted the jury to make this finding upon a mere preponderance of the evidence, whereas the finding should have been permitted only upon evidence that was clear and satisfying, such as would be required in a criminal case.

We said, hoAvever, in the case of Wernimont v. State, 101 Ark. 210, 142 S. W. 194, Ann. Cas. 1913D, 1156, that “Proceedings for the suspension or disbarment of attorneys for professional misconduct are not criminal, but civil in their nature. They are not instituted or intended for the purpose of punishment. Their object is to preserve the purity of the court's and the proper and honest administration of the law. Attorneys are officers of the court, made so by its order when they are admitted to practice therein. The purpose of the proceedings for suspension and disbarment is to protect the court and the public from attorneys who, disregarding their oath of office, pervert and abuse those privileges which they have obtained by the high office they have secured from the court. The right to practice law is not an absolute right, but a privilege only. It is but a license which the court grants by its judgment of admission to the bar, and which the same court may revoke whenever misconduct renders the attorney holding such license unfit to be entrusted with the powers and duties of his office. The revocation of such license is therefore only a civil proceeding, governed by the rules applicable to all civil actions.”

As we have announced the rule to be followed in this State in proceedings of this character, no occasion arises to consider the rules prevailing in other jurisdictions. Having held that this is a civil proceeding, it is governed by the rules applicable in such cases, and it has been held error to require that the material allegations in cases of that character be established by anything more than a preponderance of the evidence. Hays v. Williams, 115 Ark. 406, 171 S. W. 882 ; Bocquin v. Theurer, 133 Ark. 448, 202 S. W. 845 ; Sealy Mattress Co. v. Southern Cotton Oil Co., 167 Ark. 405, 268 S. W. 611 ; Whaley v. Nivin, 175 Ark. 839, 1 S. W. (2d) 3.

It is finally insisted that the judgment of the court permanently disbarring respondent is unnecessarily severe ; that the court was not required to make this order, and that the ends of justice would have been subserved by suspending respondent for some fixed period of time only. The case of State v. Huddleston, 173 Ark. 686, 293 S. W. 353, is cited to support this contention. There the attorney was disbarred for the period of one year only, and we affirmed that judgment. The appeal in that case was prosecuted by the local bar association, which had instituted the proceeding, for the purpose of making the disbarment order permanent. We there said, however, that the statute under which both that proceeding and this was conducted requires the trial court, in all cases of conviction, to pronounce judgment of removal or suspension according to the facts found, and vested the trial court with discretion either to remove or suspend according to the facts found, and that “Where the trial court is vested with judicial discretion, it has always been the rule of this court not to reverse the trial court in the exercise of such discretion, unless, in the judgment of this court, under the facts presented, the trial court in its ruling has abused its discretion.”

Under the facts in this case we are unable to say that there has been an abuse of discretion, and the judgment of the court below must therefore be affirmed, and it is so ordered.

Haet, C. J., Kirby and Meiiaffy, JJ., dissent.

P'er ¡Curiam

on rehearing. In the early case of Beene v. State, 22 Ark. 149, the court quoted with approval the language of Chief Justice Marshall in Ex parte Burr, 9 Wheat. 530, as follows: “On one hand, the profession of an attorney is of great importance to an individual, and the prosperity of his whole life may depend on its exercise. The right to exercise it ought not to be lightly or capriciously taken from him. On the other, it is extremely desirable that the respectability of the bar should be maintained, and that its harmony with the bench should be preserved. For these objects, some controlling power, some discretion, ought to reside in the court. This discretion ought to be exercised with great moderation and judgment; but it must be exercised; and no other tribunal can decide, in a case of removal from the bar, with the same means of information as the pourt itself. If there be a revising tribunal, which possesses controlling authority, that tribunal will always feel the delicacy of interposing its authority, and would do so only in a plain case. ’ ’

This rule has been followed and applied according to the' varying facts of each particular case since that time. Wernimont v. State, 101 Ark. 210, 142 S. W. 194, Ann. Cas. 1913D, 1156 ; Nichols v. Little, 112 Ark. 213, 165 S. W. 301 ; Craig v. Sims, 160 Ark. 269, 255 S. W. 1 ; State v. Huddleston, 173 Ark. 686, 293 S. W. 353 ; McGehee v. State, post p. 603 ; and the original opinion in this case.

After mature deliberation, with the full sense of our responsibility and delicacy in reviewing the action df the lower court, the majority is of the opinion that the judgment of disbarment should be set aside and that the protection of the public, the ends of justice, and the atonement of appellant for the offense committed will be attained by his suspension from the practice of the law for a period of one year from the date of disbarment in the court below. The grounds of disbarment relate to the professional conduct of appellant. It was not shown that he was guilty of unprofessional conduct of a continuing character. He was only found guilty by the jury of a single offense. His past conduct at the bar had been of an exemplary character, in so far as the record discloses. The office of an attorney is his property; it is the capital from which his income is derived. Disbarment is the severest penalty known, to the law; and, when all the circumstances are considered together, we believe that the harshest penalty of the law should not he pronounced against the appellant, and that his suspension from the practice for one year will enable him to regain his former character as a lawyer and warrant him in returning to the practice again. It is so ordered.

SmiHee and Humphreys, JJ., dissent.