text:
    Greening v. Planters’ Bank & Trust Company.
    Opinion delivered February 21, 1921.
    Garnishment — trust funds. — Funds advanced to a trustee by the government to be applied to the operating expenses of a railroad, which the government had undertaken to guaranty, are not Subject to garnishment by the railroad’s judgment-creditor, under the rule that a trustee can not, during the pendency of the trust, be held as a garnishee in an action to collect a debt which the cestui que trust owes.
    Appeal from Howard Circuit Court; J. S. Steel, Judge;
    affirmed.

      Jas. H. McCollum, for appellant.
    Appellant had the right to subject the earnings of the railroad company in the hands of the bank to the garnishment. The money earned by the railroad company, after its property was returned by the government, belonged to the company, and the Director General had no authority over it. The following case supports the contention of the appellant: 140 Ark. 572. The money belonged to the railroad company and was subject to garnishmenh

      J. G. Sam, for appellee.
    The (finding of the lower court to the effect that the garnishee had no funds in its hands at the time and after the garnishment was served was a question.of fact, and there is nothing here for this court to review.
   McCulloch, C. J.

Prior to March 1, 1920, the date on which the Government of the United States returned the railroads to their respective owners, appellant obtained judgment in the circuit court of Howard County in the sum of $1,241.55 against the Memphis, Dallas & Gulf Railroad Company for damages on account of the negligent loss of cotton delivered to said company for transportation; and on July 20, 1920, appellant sued out a writ of garnishment against appellee, Planters’ Bank & Trust Company, a corporation doing a banking, business at Nashville, Arkansas. Appellee filed its reply, denying that it was indebted to the principal defendants in any sum, or that it had in its hands any funds or other property belonging to said defendant. Appellant' filed a reply to this answer, raising an issue as to whether or not appellee had funds in its possession belonging to said defendant. There was a trial of the issué before the court, which resulted in a judgment in favor of appellee, as garnishee.

The material facts are undisputed. When the Government returned to the defendant, Memphis, Dallas & Gulf Railroad Company, its property which had theretofore been operated under government control, the Director General of Railroads caused to be delivered to Geo. H. Bell, as trustee, the sum of $12,467.87, which had accrued from the earnings of such operations while under government control. This fund, as well as the funds which subsequently came to the hands of the trustee, was held by him under directions given in a general order issued by the Director General of Railroads upon the return of railroad property to their owners. Pursuant to the statutes of the United States extending to the railroad corporations the government’s guaranty for a period of six months for reimbursement of expenses of operation, the government, acting through the Director General of Railroads, advanced to some, if not all, of the railroads sufficient funds to use in operating expenses, with directions that the same should be deposited in the name of the trustee named by the Director General and used exclusively in operating expenses of the railroad. Under this arrangement the government advanced to the Memphis, Dallas & Gulf Railroad Company the sum of $90,000, which was paid over to Bell, as trustee and deposited by Bell in appellee bank in his name as such trustee. The revenues of the railroad were also paid to Bell as trustee from time to time and were, under the instructions of the Director General, deposited in his name.

This fund received by the trustee from the earnings of the defendant company was also paid out with the other funds on the operating expenses of the railroad. According to the undisputed testimony, the earnings of the railroad company, after restoration to the owner, were less than the operating exepnses paid out of the funds in the hands of the trustee, and on the date of the garnishment the trustee had in his hands and on deposit with appellee bank forty thousand nine hundred sixty-eight dollars and fifty-six cents.

BelDwas the treasurer of defendant company and also cashier of appellee bank, but the funds were, as before stated, paid over to him as trustee and were deposited by him in that capacity with appellee bank.

The question presented in this case is whether or not the funds in ,the hands of appellee deposited to the credit of Bell as trustee were subject to garnishment. This question is not difficult of solution. It is an elemental principle of the law that “a trustee can'not, during the pendency of the trust, be held as a garnishee in an action to collect a debt which the cestui que trust owes. The creditor has no better claim to the fund or property than the beneficiary had; and when the latter has no right to maintain an action for it or any part of it, garnishment against the trustee will be unavailing.” 2 Shinn on Attachment and Garnishment, § 531; State Nat. Bank v. Wheeler-Motter Merc. Co., 104 Ark. 222.

The funds .advanced by the government to be expended in the operation of the railroads did not become the property of the' railroad company, except to the extent permitted by the government authorities, and the funds were held in trust by the trustee for the use to which the funds were dedicated. The authority for the use of the' funds expressly excluded the application thereof to anything except the current operating expenses which the government had undertaken to guaranty. Neither the railroad company nor its creditors could compel the appropriation of that fund to any other use. But it is contended that appellant was at least entitled to relief by garnishment process out of the, funds on deposit which were derived from the earnings of the company in its operation of the railroad after the return to the owner from government control. These earnings, it appears from the testimony, were paid to Bell as trustee ‘■'nd mingled with the other funds which he had received from the government. It is unnecessary to decide whether or not the assumption by the Director General of Railroads of authority to direct and control the use of the funds received from the operation of the road after the return of it to the owners was wrongful. It .does not appear from the proof that there were funds on deposit in the appellee bank which had been derived from the earnings of the company. On the contrary, the undisputed testimony establishes the fact that the earnings from the operation of the road were far less than the operating expenses, and that the funds were exhausted before they went into the hands of Bell, as trustee. Therefore, there were never any funds on hand from that source to be reached by garnishment if they were, under the circumstances, subject to that process.

The circuit court was therefore correct in rendering judgment in favor of the garnishee.

Affirmed.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    Runyan v. Goodrum.
    Opinion delivered February 21, 1921.
    1. Physicians and surgeons — liability for negligence of x-ray specialist. — Where defendant surgeons maintained an x-ray department in their hospital, and employed a competent and skilled specialist in that department, over whom they had no control as to the method used in doing x-ray work, the defendants were not liable for the negligence of such specialist.
    2. Physicians and surgeons — degree of care in use of x-ray machine. — Surgeons maintaining an x-ray department at their hospital are bound to exercise ordinary care to see that this department is equipped with such apparatus as is generally approved by roentgenologists as best adapted for the proper diagnosis and treatment of diseases, and to provide competent specialists to do the work in the department; ordinary care in such case meaning a very high degree of care.
    3. Evidence — sufficiency.—A jury should not be allowed to speculate on probabilities of an instrument being defective in the face of positive testimony that the instrument was not defective or unsafe.
    4. Physicians and surgeons — negligence in x-ray exposure.— The doctrine of res ipsa, loquitur does not apply to a case of alleged negligence on the part of surgeons by burning a patient in the application of an x-ray machine; it being shown that on account of the idiosyncracies of that machine one person of a eertain type and temperament would be susceptible to a burn while another person of a different type under the same circumstances would not be burned, and that bums do occasionally occur in the ordinary course of the exposure, in spite of the highest diligence and skill to prevent them.
    5. Physicians and surgeons — burden of proving negligence.— The burden of proof was on one suing surgeons for bums during x-ray exposure by their operator to show negligence on the part of the operator, and that such negligence was the proximate cause of plaintiff’s injury.
    6. Physicians and surgeons — x-ray burns — proximate cause. — In an action against surgeons for x-ray bums received by plaintiff, evidence held! to show that the proximate cause of plaintiff’s injuries was not a defect in defendants’ x-ray machine, but was the negligence of an independent operator of the machine.

      Appeal from Lonoke Circuit Court; George W. Ciarle, Judge;
    reversed.

      Busbee, Pugh & Harrison, for appellants.
    1. It is well settled that a physician, or surgeon may recommend or employ another physician or surgeon to treat a patient for him or assist him in treating a patient, and in the absence of negligence in such selection he will not be liable for the negligence or lack of skill of the physician or surgeon so recommended or employed by him. 30 L. R. A. 345; 65 Ark. 578; 132 Id. 18; L. R. A. 1918 C 132; 199 Fed. 760; 211 S. W. 214; 218 Id. 924.
    2. It is also well established that a physician or surgeon may be liable for damages caused by the negligence or default of his- employee or servant under his direction. 64 L. R. A. 969; 180 Mo. 322; 87 Ohio St. 401; 45 L. R. A. (N. S.) 640; 46 Id. 611; 239 Pa. St. 351. The liability of appellants is governed by the rule laid down with reference to the employment by a physician or surgeon of another physician or surgeon rather than by the rule established in reference to the employment of a nurse or similar assistant, but the court declined to adopt our theory and hence this appeal, as the court refused to give the instructions requested, which was error. 30 L. R. A. 345; 65 Ark. 578.
    Appellants were not liable for the negligence of Miss Green, if any there was. The relation of master and servant did not exist between appellants and Miss Green, and the doctrine of respondeat superior does not apply. One who employs a person who follows a distinct and independent occupation of his own is not responsible for the neglect or improper acts of the other. 98 Ark. 399; 51 Tex. .510; 211 S. W. 214; 2 Mich. 369.
    X-ray work is a distinct and independent occupation and a profession, and appellants were not liable for the negligence of either Doctor McGill or Miss Green and the case should be reversed.
    3. The verdict is outrageously excessive under the evidence, and the argument of counsel for appellee to the jury was prejudicial. 100 Ark. 526; 78 Id. 56; 92 Id. 569; 59 Id. 105; 58 Id. 454; 65 Id. 619; 70 Id. 179; 188 S. W. 838.

      Lewis Rhoton and J. C. Goodrum, for appellee.
    1. The complaint and amendments allege negligence on the part of Miss Green, the admitted agent, servant and employee of defendants, and that defendants were negligent in not using reasonable care in furnishing a reasonably safe x-ray machine. The evidence shows negligence for which appellants were responsible and the jury so found, and the verdict is sustained by the evidence and should not be disturbed.
    2. The verdict is not excessive. 122 Ark. 305; 35 Id. 492; 278 S. W. 924; 2 Bingh. 156. This case is controlled by the principles announced in 208 S. W. 924; 108 Mo. 322; 45 L. R. A. (N. S.) 640-; 46 Id. 611. See, also, 106 Ark. 91. The instructions were really too favorable to appellants. Appellee was seriously and permanently injured, and appellants were clearly liable.
   Wood, J.

The appellee brought this action against the appellants to recover damages for personal injuries. She alleged in substance that the appellants were partners in the general practice of medicine and surgery; that they owned and operated St. Luke’s Hospital in the city of Little Rock, Arkansas; that she became a patient of appellants and under, the advice of appellant Kirby went to St. Luke’s Hospital, where a Miss Green, an employee, servant and agent of appellants, made an exposure of appellee’s body to an x-ray machine; that, through the negligence and ignorance of Miss Green in exposing the body of appellee to the x-ray machine for an unreasonable length of time in the morning and again in the afternoon of the 3d day of December, 4918, and again on the following day, she was seriously burned and permanently injured. Appellee also alleged that appellants permitted Miss Green to use an old and defective screen, which, in order to obtain proper reflectionfor fluoroscopic examination, required a current dangerous in strength and a dangerous and excessive length of time-in making the exposure. Other acts of negligence were alleged, but all except the above were abandond at the hearing. The appellee alleged that she had been damaged through the negligence of appellants as above set forth in the sum of $25 8nn for which she prayed judgment.

The appellants answered, denying the allegations of the complaint. They set up that the injury resulted without any fault on the part of the operator and without any defect in the machine itself, and by reason of the uncontrollable nature of the x-rays.

Over the objection of appellants,’ the court gave instructions to the jury in which it was assumed that under the evidence the relation of master and servant existed between the appellants and Miss Green, and told the jury in effect that if they found that Miss Green was negligent in the use of the machines and that the injury to the appellee was the result of such negligence, the appellants were liable. The court further instructed the jury, over the objection of appellants, that appellants were liable if they failed to exercise ordinary care to furnish reasonably safe appliances, provided such failure was the proximate cause of the injury to the appellee. The appellants prayed the court to instruct the jury to the effect that if the appellants exercised ordinary care in employing Miss Green to operate the x-ray machine in question, they were not liable for her negligence, if she was negligent. Appellants also asked the court to tell the jury in effect that if the appellants failed to furnish a machine that was in good condition, and if such failure resulted in injury to the appellee, appellants would not be liable for such injury, provided they exercised that care which ordinarily prudent physicians and surgeons would have exercised in the circumstances. The court refused these prayers, to which the appellants duly excepted. The trial resulted in a judgment in favor of the appellee in the sum of $25,000, from which is this appeal.

1. The .first question is, Did the relation of master and servant exist between the appellants and Miss Green? The facts concerning this are substantially as follows: The appellants are partners in the general practice of medicine and surgery. They maintain a hospital in the city of Little Rock, known as St. Luke’s. At this hospital they have various departments, and among them a laboratory and x-ray department, which in December, 1918, was in charge of Dr. A. C. McGill, who was in the employ of the appellants as a specialist in laboratory and x-ray work. Doctor McGill was a graduate in medicine of Tulane University, and had made special preparation for x-ray work at Battle Creek, Michigan, and also at the Presbyterian Hospital, Chicago, Illinois. He had been doing the x-ray work at St. Luke’s Hospital since 1913, and was an experienced and skillful operator of the x-ray machine, familiar with all of its parts and accessories. Appellants Kirby and Sheppard became associated with appellant Runyan about 1916 or 1917. Thereafter there was a great increase in the x-ray work at St. Luke’s, and Miss Green was employed by appellants to assist Doctor McGill in that work. She began to work under Doctor McGill early in 1917, and continued for about two years, and was operating the x-ray machine at the time of the injury to appellee.

Concerning the qualifications of Miss Green as an x-ray specialist, Doctor McGill, a witness for the appellee, testified that she was as competent as he; that he had given her the same instructions that he had received. “She was very careful and very efficient and had x-rayed «hundreds of patients,” which he estimated all the way from six hundred.to a thousand. She was not a graduate of medicine, but the testimony both for the appellants and for the appellee shows that this was not essential in order to make one an x-ray specialist. Doctor McGill testified that “one of the best x-ráy men he knew of on the face of the earth was not a doctor.” He referred to the person who operated the x-ray machine for the Mayos, “whose x-ray department was something enormous.” Doctor Kirby testified that when he was pursuing his medical studies in St. Louis, the man in charge of the x-ray department in the St. Louis City Hospital, and who was considered one of the best x-ray men in that city, was not a doctor.

Doctor McGill testified that the x-ray business or profession is a distinct and separate profession from that of surgery; that “it is a true specialty, as much so as surgery.” He and Doctor Bathurst, another witness for the appellee, testified that in the vicinity of Little Rock it is rather the rule than the exception that the x-ray work is done- by some other person than the surgeon himself ; that, while a few surgeons here do their own x-ray work, it is not the rule. The testimony of appellants Kirby and Runyan was to the same effect, and further that, with the amount of surgery done 'by them, it would be impossible for them to personally do their own x-ray work. Moreover, none of the appellants were x-ray specialists. They were entirely ignorant of x-ray work, and were wholly dependent for such work on their x-ray department, which was under the supervision and full control of Doctor McGill and operated by him and his assistant, Miss Green.

The testimony of appellants Runyan and Kirby and of their business manager, King, shows that the x-ray department at St. Luke’s Hospital is separate and distinct from the other departments of the hospital work and used for x-ray purposes by the doctors in attendance at the hospital. During the progress of the trial, when evidence concerning the competency of Miss Green was being adduced, counsel for the appellee made the following statement: “There is an allegation that Miss Green, was incompetent, but I think it has been shown here that she is competent, and there will be no argument on my part that she wasn’t.” Therefore, it is thoroughly established by the undisputed testimony in this record that x-ray work is a specialty, and that this work at St. Luke’s Hospital was maintained and operated as a separate and distinct department in charge of competent x-ray specialists. The appellee does not now controvert this, and we have only set forth the above facts because we laave found them helpful in the solution of another question, namely: In an action by a patient against physicians and surgeons to recover damages for their alleged malpractice, caused by the alleged negligence of an x-ray specialist whom they had employed to assist them, does such specialist stand in the same relation to the physicians who employed him as if he had been another physician employed to give the patient necessary attention in their absence?

The question is a most interesting and important one, and it has given us the greatest concern. It is one of first impression in this State, and counsel have not cited, nor has our own research discovered, any case elsewhere that decides the exact question. A correct answer to the question requires a brief resume of the history of the x-ray, the field it occupies, and what it has accomplished in the realm of modern science.

In 1895 Professor Eoentgen, a celebrated German physicist, discovered the x-rays, or, as they are sometimes designated, “Eoentgen” rays. Eoentgenology, so called in honor of Professor Eoentgen, is the science which treats of the x-ray and its uses and the art of applying it. Those who devote themselves to the study and practice of this specialty as a profession are called Eoentgenologists. The use of the x-ray other than in the sciences of medicine and surgery is practically negligible. While yet comparatively in its infancy, nevertheless giant strides have been made in the development of Eoentgenology. The apparatus necessary for the application of the x-ray to the human body in. the diagnosis and treatment of diseases has been brought up from a crude beginning to seemingly the highest perfection and standardization. So that now, through the work of the x-ray specialist, or Eoentgenologist, the mysteries of numerous diseases hidden beneath the tissues of the human body have been uncovered. Many of these are diseases of the most malignant type, which had hitherto baffled the skill of the best physicians and surgeons. Today they are able to correctly diagnose and successfully treat them solely because of the aid given by the x-ray specialist. Even in the last quarter of a century, wonderful progress has been made in the sciences of medicine and surgery, and the science of roentgenology has been their most helpful ally.

Dr. Sinclair Tousey of New York City, in an article on the x-ray, 29 Americana, page 595, said: ‘ ‘ The x-ray has led to one of the most important discoveries in modern science. It has shown that many diseases of the type of rheumatism, arthritis, neuritis and myositis, also endocarditis, digestive troubles, including ulcer of the stomach and many other symptoms and lesions of a varied character, frequently have their origin in tooth infection. * # * Such infection is readily disclosed by an x-ray examination, and easily cured by the dentist. ’ ’•

Doctor Osier, one of the most eminent medical authorities in the world, mentions twenty-five diseases, some of them hitherto incurable, in which the x-ray is resorted to, both for successful diagnosis and treatment, and others in which it is most helpful. Principles and Practice of Medicine — Osier, Index, X-ray,' p. 1224.

In an article by Dr. R. B. Carman of the section of Roentgenology in the Mayo clinic, is the following: “During the year 1919 the examinations made in the department of Roentgenology numbered 50,668, as follows: Kidney, ureter and bladder, 6,088; bone, 12,129; chest, 17,301, and gastro-intestinal tract, 11,825.” American Journal of Roentgenology for December, 1920, p. 557. Other authority for the above observations may be found in Medical Jurisprudence, Forensic Medicine and Toxicology. Witthaus & Becker, vol. 3, p. 733, et seq.; Keen’s Surgery, vol. 5, p. 1143; Industrial Medicine and Surgery, Mock, p. 60, et seq., and p. 568 et seq.; Ene. Brittanica, vol. 28, p. 887; X-ray in Medicine and Surgery, New International Ene., vol. 23, p. 850; American Journal of Roentgenology for December, 1920, p. 5i84; 29 Americana, X-ray, p. 595; The Roentgen Rays in Medical Work, Walsh (3 ed.), Preface and Appendix 2, p. 301.

In Witthaus & Becker, volume 3, page 799, it is said: “Personal responsibility and liability to a patient for damages caused by the use or misuse of the x-ray rest upon the same principles of law as any other branch of medicine or surgery. The same rules, so far as malpractice is concerned, must be applied as laid down in our court of last resort, to guide the medical and surgical practitioner.” See also 21 R. C. L., p. 386, § 31. For the rules applicable to physicians and surgeons as announced by our court, see Dunman v. Raney, 118 Ark. 337.

We conclude, therefore, that, because the science of roentgenology is so inter-related with the sciences of medicine and surgery in the diagnosis and treatment of human diseases, it should be classed in the same category with those sciences. And the x-ray specialist, or Roentgenologist, must be placed in the same class with the physician and surgeon because of the peculiar knowledge and technic that he must possess, and because in the practice of his profession such knowledge and technic is dedicated almost exclusively to the aid of the physician and surgeon in the diagnosis and treatment of diseases of the human ■body. The x-ray specialist, or Roentgenologist, can not be placed in the same class with the chauffeur or elevator operator, as contended by counsel for appellee,nor even with engineers, electricians,. and other employees whose employment contemplates the exercise of the peculiar skill and technic possesesd only by those who are engaged in and qualified for their line of work. Because all such employees are under contract to exercise their peculiar skill to produce certain definite and specific results which are known in advance of employment. In all such cases the employer, by virtue of the express or implied agreement “retains the right to direct the manner in which the business shall be done, as well as the result to be accomplished ; or, in other words, not only what shall be done, but how it shall be done.” Singer Mfg. Co. v. Rahn, 132 U. S. 518, 32 Law. Ed. 440; Bailey v. Troy & B. R. Co., 57 Vermont 252, 52 Amer. Rep. 129; Wood, Master and Servant, § 311; DeForrest v. Wright, 2 Mich. 368; 1 Labatt on Master and Servant (2 ed.), pages 9 and 222, and other authorities cited in brief for appellants. Unless expressly so provided, such employees have not the right at all times in the prosecution of their work to exercise their own independent judgment and discretion as to the mode and manner in which it shall be done, and they are not engaged in an employment which has for its object the treatment of the manifold diseases of our human flesh and the alleviation of the physical pain and suffering of mankind. Whereas, as we have already - shown, the x-ray specialist, or Roentgenologist, like the physician and surgeon, unless he expressly contracts to produce certain results, has the right to, and must at all times, act according to his independent judgment and discretion in the exercise of his skill and learning in the treatment of human diseases. The very nature of his profession and the character of his contract of employment' involves this right.

Such being our conclusion, it inevitably follows under the doctrine of our own cases that the relation of master and servant can not exist between physicians and surgeons who are not x-ray specialists themselves and the x-ray specialist, or Roentgenologist, whom they employ to assist them in the diagnosis and treatment of diseases.

In Arkansas Midland Railroad Co. v. Pearson, 98 Ark. 399, we said: “A physician can not be regarded as an agent or servant in the usual sense of the term, since he is not and necessarily can not be directed in the diagnosing of diseases and injuries and prescribing treatment therefor, his office being to exercise his best skill and judgment in such matters, without control from those by whom he is called or his fees paid. ’ ’

In the case of Keller v. Lewis, 65 Ark. 578, Doctor Keller was called in by Lewis to treat his son, who had sutained a dislocation of the arm. Doctor Keller attended and gave the patient temporary treatment, and, being about to leave the city of Hot Springs, recommended that the patient be taken to another physician whom he had engaged to look after his patients in his absence. Doctor Keller was sued for the alleged negligence of the other physician. In that case we held that the employment of the other doctor constituted an independent contract, and that Doctor Keller was not responsible for the negligence or want of skill of that doctor.

In the still later case of Norton v. Hefner, 132 Ark. 18-23, Doctor Norton was called by Hefner to perform a surgical operation upon his wife. Doctor Norton performed the operation and arranged with a young physician at the hospital to look after the patient until she recovered. An action was brought against Doctor Norton to recover damages for the alleged negligence of the doctor whom Doctor Norton had selected to take charge of his patient. In disposing of that case we cited and quoted from the above cases and said: “Appellant (Norton) was not guilty of negligence in the performance of the operation, nor in the selection of a physician to continue the treatment after he left the city. Not being negligent in those respects, he can not be held responsible for the negligence of the other physician who was left in charge merely because the other physician took charge on his suggestion and arrangement.” We further said: “This view of the law is based upon the theory that the doctrine of respondeat superior applies only in case of the negligence of a servant who acts under the direction and control of the master1 (De Forrest v. Wright, 2 Mich. 368), and does not apply to a physician or other professional man who, when employed, acts upon his own initiative without direction from others.”

The fact that the x-ray specialist for whose negligence recovery is sought was working at St. Luke’s Hospital in the x-ray department equipped by the appellants for such work, does not affect the character of employment between appellants and Miss Green, so far as the performance of her work is concerned. Under the evidence, the appellants had no more control over her as to the manner and method she used in making her investigations, interpretations and reports, than if she had maintained an office down town and had been employed by appellants to do all their x-ray work at that place with apparatus and equipment not furnished by appellants. So far as the manner and method of her work was concerned, she was no more under the control of the appellants in the one case than she would have been in the other. For illustration, would the Mayos, in whose x-ray department over 50,000 patients were examined in one year, be liable to any of these patients in damages for injuries caused by the negligence of their Roentgenologists, because of the fact that they were maintaining an x-ray department at their institution fully equipped by themselves, instead of committing that work to x-ray specialists on the outside? We are convinced that they would not be liable unless they had been negligent, that bs, had failed to exercise ordinary care to employ competent Roentgenologists, and to furnish the proper apparatus. The difference between the Mayos and the appellants in these respects is only in numbers. For the business of appellants had grown to such an extent as to make it necessary, in order to meet the requirements of their practice, to maintain at their hospital a separate and distinct department of Roentgenology fully equipped, and to employ for all their time two Roentgenologists for that department.

To sustain their contention that appellants are liable for the alleged negligence of Miss Green, counsel for the appellee rely upon the following cases: Gross v. Robinson, 218 S. W. 924; Longan v. Weltmer, 180 Mo. 322; Palmer v. Hunnister, 45 L. R. A. (N. S.) 640; Davis v. Kerr, 46 L. R. A. (N. S.) 611.

In Gross v. Robinson, the defendant, Gross, himself had exposed the plaintiff to the x-ray machine, two or more times, and Gross claimed to be an x-ray specialist, After failing to secure a picture, he called in another x-ray specialist, who, in the presence of Gross, made another exposure, and failing to get the desired picture, Gross continued himself to make further exposures, and also after again failing, called in another person who made no pretense to the experience and skill óf an eXpert in the medical profession, to make another exposure. Of course, under such a state of facts, it was a question for the jury to say whether the defendant was negligent, as the Supreme Court held. The facts bear no analogy to the case at bar. In the case of Longan v. Weltmer, the defendants “held themselves out, not as practicing physicians, but magnetic healers, claiming and pretending to cure all mental and physical ailments.” The facts show that case has no application to the present case. The other cases were actions against surgeons for alleged malpractice in leaving sponges in wounds after an operation. One of the defenses was that the reason the sponges were not removed was because of the negligence or oversight of the attending nurses at the hospital in failing to make proper count of the number of sponges that had been placed in the wound, and in their misleading the surgeon as to the number when he came to remove the sponges. It was the custom at one of the hospitals for the head nurse in attendance at the operation 10 count the number of sponges that were placed in the wound. Of course, in these cases it was held that the surgeons, whose duty it was to remove the sponges, as a part of the operation, had no right to rely upon the accuracy of the count made by the nurses. The nurses had expert knowledge as physicians or surgeons and were under the immediate direction of the surgeon. To state the facts is enough to clearly distinguish all of the above cases from the case in hand.

It is necessary, according to certain distinguished professors of Roentgenology and writers on the subject, that one should possess some knowledge of the science of pathology in general, and of anatomy and physiology in particular, in order to constitute such one a competent x-ray specialist. See preface to “Roentgen Interpretation” — Doctor Holmes of the Harvard Medical School and Doctor Ruggles of the University of California Medical School. There is no express allegation that Miss Green was incompetent, and that appellants were negligent in employing her because she was incompetent. There was no proof that she was incompetent. On the contrary, as we have shown, the undisputed testimony proved that she was an excellent technician in the art of applying the x-ray machine and in interpreting the revelations of the fluoroscopic examinations. As we have stated, counsel for the appellee expressly admitted that she was competent. Therefore, although she was not a graduate of medicine, we must assume that she was competent, i. e., that she possessed all the technique and whatever knowledge of medical science was necessary to render her a proficient x-ray specialist. It therefore appears from the undisputed facts of this record and the law applicable thereto that appellants are not liable for the alleged negligence of Miss Green.

' 2. The next questions are: Was the screen used by Miss Green for making fluoroscopic examinations of the appellee defective, and, if so, were appellants negligent in failing to exercise ordinary care to furish a perfect screen, and was such negligence, if any, the proximate cause of the injury?

The testimony concerning these issues is substantially as follows: Doctor McGill testified that,' about seven months before the injury to appellee, he discovered that the' fluoroscopic screen was defective because it strained his eyes. His testimony and the testimony of Doctor Hill was to the effect that more voltage would have to be used with a defective screen, and the exposure would have to continue for a longer time. Doctor McGill testified that he was a chronic complainer, and it seemed to him he had complained a time or two of the defective screen. He was asked to whom he complained and answered: “Let me see, now, I would naturally go to Doctor Runyan or Mr. King (the business manager), one or the other.” Notwithstanding the defect in the screen, he considered the machine safe, and continued to operate it after the defect was discovered and x-rayed from that time, using the same screen, about six hundred people before appellee was injured, and more than one hundred afterward before the purchase of the new screen. He would not have used it if he had considered it dangerous. He had full power to order anything he wished and was instructed to order the best.

Doctor Runyan and Mr. King both testified emphatically that Doctor McGill did not notify them of, any defect in the screen, and Doctor Runyan testified that Doctor McGill was expected to keep the x-ray apparatus in perfect condition. He had full authority to order anything he needed for that purpose. The appellants and their business manager did not know anything about the x-ray machine or its accessories.

The appellee and her mother and father testified that appellee was exposed three different times to the x-ray machine, two the first day, once in the morning and again in the afternoon, and again on the following morning. Each time appellee was kept exposed to the rays for thirty or forty minutes. Appellee was exposed each time both for the x-ray picture and the fluoroscopic examinations. During the first exposure her mother was present, and during the second exposure Miss Green had appellee’s mother and father to come in and showed them all the parts of her body being exposed, and the third time likewise pointed out all the parts and explained them to both mother and father. During the second exposure appellee felt unpleasant sensations — an itching. She told Miss Green about it and asked her to wait until she could scratch it, but Miss Green continued to look and look, and finally after she stopped looking, appellee still had the itching and tingling in her back that felt like a thousand needles sticking in her back. She told Miss Green about it. Miss Green advised her to come back the next morning, and then exposed appellee again for thirty or forty minutes. There was the same itching as the day before, only a little worse. Appellee was burned from her neck to below her waist line, the deepest part of the burn being in the small of back, which was a very severe burn.

Mrs. Chamberlain, formerly Miss Green, the operator, and only other eye witness, testified: That the usual method was to darken the room and wait until the eyes became accustomed to the darkness, which sometimes takes several minutes: then turn the current on and look through the patient standing; then have them recline to make the plates for the pictures. Before the mrrent is turned on, and while patients are standing, they frequently complain that they are being burned. Witness had been x-rayed many times herself and knew personally, from her experience in the x-ray business, that one feels no burning sensations when the current is turned on. She did not remember whether appellee complained of sensations of pain while she was ■ being exposed to the x-ray, but if she had witness would have given it no attention because it was purely imaginary. Witness had x-rayed so many people she could not testify definitely as to exactly what she did in Miss Good-rum’s case. The usual method was to turn the current on only for a few minutes, and witness was''satisfied that she had treated Miss Goodrum just as she did all the other pátients in that respect. Doctor McGill, who had examined appellee’s back after the burn, said that taking into consideration appellee’s size, if the machine had been in proper condition and had been properly operated one couldn’t see any reason why she should have been burned. He further stated that he had seen some of the finest experts who, in using the best machines, had not only burned themselves, but other people. Doctor Bathurst also testified that the people who are the most experienced are the people who sometimes have trouble; that is one of the unfortunate things to deal with, but only one in ten thousand will come up with trouble. Doctor Hill testified that he had x-rayed over 7,000 patients and had never burned any one, and that there was no excuse now for burning a person during an x-ray exposure.

To get the best results the time required for the exposure is from two to four seconds. Both Doctors Hill and McGill, especially the latter, explained in’ detail the x-ray machine and its accessories, and their testimony shows that, in a properly equipped machine, the operator can increase or diminish at will the current that produces the rays with which the fluoroscopic observations and the pictures are made. The electricity that goes into the body is measured, not by volts, but millamperes. They are measured accurately and can be turned on or off instantly. Doctor McGill selected the machine that was in use, and “it was first class in every respect, except the screen. ’ ’

The principles of law applicable to the facts stated are well established. Since appellants maintained an x-ray department at St. Luke’s Hospital, it was their duty to exercise ordinary care to see that this department was equipped with such apparatus as was generally •approved by Roentgenologists as best adapted for the proper diagnosis and treatment of diseases; also, to exercise such care to provide competent specialists to do the work in that department. Ordinary care for the successful management of such institution means a very high degree of care because it has to do with the lives and health of human beings. The x-ray machine, of the highest type and manipulated by a competent expert, is of inestimable value to mankind, but otherwise it is an exceedingly dangerous agency. This duty of appellants to exercise ordinary care to employ competent Roentgenologists and provide safe apparatus for their x-ray department could not be delegated to another. If, therefore, there was in use in appellant’s x-ray department a defective screen, which appellants or their chief Roentgenologist, Doctor McGill, knew to be defective, or by the exercise of ordinary care should have known to be defective, and if the use of such defective screen was the proximate cause of the injury to appellee, then appellants were liable to her in damages. Doctor McGill, so far as the duty of furnishing the necessary apparatus was concerned, was the agent, the alter ego, of the appellants, and his knowledge was their knowledge. For this purpose he was at all times under the immediate control of the appellants and could not exercise his independent judgment and discretion. While the testimony of Doctor McGill tends to prove that the use of a defective screen would result in an imperfect fluorescence and would probably cause a longer exposure and an increase of current, yet his testimony further shows that he did not consider that the defect in the screen in use was one that could in any manner cause or contribute to the injury of which the appellee complained; for he further states most emphatically that, if he had considered the machine unsafe or dangerous, he would not have used the same, and, to show that this was his sincere belief, after the discovery of the defect, he used the same screen in making 600 or 1,000 exposures. To further show that he did not have knowledge of any defect which he considered dangerous or unsafe, he stated that the defect might cause a second or third exposure; but, in view of the fact that these exposures were from two to four seconds, witness manifestly did not regard the screen unsafe or dangerous, even though it might cause such additional exposures. The jury should not be allowed to speculate on probabilities, in the face of the positive testimony of the witness himself that he did not consider the machine unsafe or dangerous. St. L., I. M. & S. Ry. Co. v. Owens, 103 Ark. 61-64. Therefore, it occurs to us that all reasonable minds must reach the conclusion , that there was no unsafe or dangerous condition of the screen. But, if we are mistaken in this, we are of the opinion that, whatever may have been the defect in the screen, it was not the proximate cause of the injury to the appellee.

This brings us to a consideration of the question as to whether or not Miss Green was negligent and, if so, whether such negligence was the proximate cause of the injury. The doctrine of res ipsa loquitur does not apply in such cases because the testimony shows that, on account of the idiosyncracies of the. x-ray machine, one person of a certain type and temperament would be susceptible to a burn while another person of a different type, under the same circumstances, would not be burned. Moreover, it is shown that burns do occasionally occur, in the ordinary course of the exposure, in spite of the highest diligence and skill to prevent them. 4 Labatt’s Master and Servant, p. 4864, §§ 1601 (834) and cases in note; Sweeney v. Erving, 35 App. D. C. 57, 43 L. R. A. 734 (N. S.); Wilkins v. Brock, 81 Vt. 333, 70 Atl. 572.

The burden of proof was upon the appellee to show negligence on the part of Miss Green and that such negligence was the proximate cause of appellee’s injury. Appellee has fully met this burden. While Miss Green testified that she was satisfied she followed the custom of the office, which was to expose a patient only a few moments at a time, she did not remember specifically what she did in appellee’s case. She did not remember whether appellee complained of burning sensations during the exposure or not, but, if appellee had done so, she would have paid no attention to it because she regarded such sensations as imaginary. On-the other hand, the testimony of appellee, her mother and father, showed that appellee was exposed continuously for thirty or forty minutes, and that she complained of itching and burning sensations. The testimony of Doctor Hill showed that the operator should immediately respond to such complaints on the part of the patient and disconnect the current, and that subsequent exposures in such cases should not be had until some weeks afterward. The proof was abundantly sufficient to sustain the verdict as to the negligence of Miss Green. No- doubt, the jury believed, and they were justified in believing, that Miss Green became interested and absorbed in explaining the mysteries of her science and art to the mother and father of Miss Goodrum and thus unconsciously let the time go by for thirty or forty minutes while, with disastrous effect, the rays were penetrating the back -of the appellee. That this negligence of Miss Green was the proximate cause of appellee ’s injury there is not the shadow of a doubt. Even if there had been a defect in the screen which caused a longer time of exposure and greater current than, in the usual course, the undisputed testimony shows that this would have only necessitated a second or third exposure of two to four seconds -each, but Miss Green, according to the evidence, exposed the appellee for eighteen or twenty-four hundred seconds. Besides, she failed to heed the warning and shut off the current when the first danger signal was given by the appellee. The occurrence was most unfortunate and deplorable, but it follows from what we have said that the appellants are not liable, and, inasmuch as the testimony seems to have been fully developed, the judgment will be reversed and the cause dismissed.

Smith, J., dissenting.


author: Hart, J.

text:
    Barnett v. Bank of Pangburn.
    Opinion delivered February 21, 1921.
    1. Banks and banking — authority of president to receive payment. — Where a debtor owing notes to a bank delivered to the president notes which were accepted as payment of his notes, the bank was bound by the act of its president in receiving such payment, though he converted the payment to his own .iuse.
    2. Bills and notes — burden of proving payment. — One asserting payment of notes has the burden of proving payment by a preponderance of the evidence.
    Appeal from Cleburne Chancery Court; L., F. Reeder, Chancellor;
    reversed.
    STATEMENT OE FACTS.
    E. B. Crump brought this suit in equity against T. N. Barnett, Harry Chur chill, and the Bank of Pangburn to recover damages for a breach of warranty and for the cancellation of two notes given by him for the purchase price of the lands described in his complaint.
    The Bank of Pangburn answered, claiming that it was the owner of the notes mentioned, and averred that it had a lien on the lands described in the complaint for the payment of said notes.
    T. N. Barnett filed a separate answer in which he set up that the two notes referred to had been paid by him and asked that the lien of the bank be satisfied and his title to the lands be quieted against it.
    The bank filed a reply, denying that the two notes in controversy had been paid, and asked judgment for the amount of same, and for a lien on the land to secure the payment thereof.
    On November 27, 1917, Harry Churchill conveyed by warranty deed to T. N. Barnett 257 acres of land in Cleburne County, Arkansas, for the consideration of $5,000. The sum of $1,000 was paid in cash: and the balance in notes as follows: Two notes for $1,250 each,' due twelve and eighteen months after date and two notes for $750 each, due twenty-four and thirty months after date. These notes were transferred by Churchill for value received before maturity to the Pangburn State Bank. On the 12th day of October, 1918, T. N. Barnett conveyed eighty acres of these lands to E. B. Crnmp for the consideration of $3,000. One thousand and eight hundred dollars were paid in cash and the balance by two notes for $600 each, due one and two years after date. T. N. Barnett was represented by W. A. Barnett, his brother, and Harry Churchill. The cash and notes paid by Crump, after deducting the commissions due Churchill and W. A. Barnett, were delivered to the Pangburn State Bank to be applied to the notes owed by T. N. Barnett. On March 1, 1920, T. N. Barnett sold forty acres of the land conveyed to him-by Churchill to A. F. Williams for the consideration of $1,500. He took in payment three land notes executed by Y. D. Whitehurst to A. F. Williams for $187.50 and the note of A. F. Williams to himself for $937.50.
    Harry Churchill was the president of the Pangburn State Bank and also the local representative of the Western Tie & Timber Company. Subsequently the Pang-burn State Bank became insolvent, and its property was taken over by the Bank of Pangburn and its liabilities were assumed by that bank. The Western Tie & Timber Company is one of the principal stockholders of the Bank of Pangburn. Churchill transferred the notes given by A. F. Williams for the purchase price of the forty acres of land to the Western Tie & Timber Company, and that company now claims the notes.
    The record shows that all the. notes originally given to T. N. Barnett for the purchase price of the land have been paid except the two notes for $750 each, held and claimed by the Bank of Pangburn. At the time Crump purchased the eighty acres of land, the cashier of Pang-burn State Bank assured him that the lien of the bank for the unpaid purchase money would be released, and Crump relied upon his statement in making the purchase. At the time these representations were made by the cashier, he had in his possession for the bank one of the $750 notes, and soon thereafter the bank became the holder of the other.

      Other facts will be stated or referred to in the opinion.
    The chancellor was of- the opinion that the lien of the bank for the unpaid purchase money of the land should be released on account of the representations made by its cashier. He was also of the opinion that tlie Bank of Pangburn should recover from the plaintiff, E. B. Crump, the sum of $1,200 which was declared to be a lien upon the land purchased by him, and the chancellor further was of the opinion that the Bank of Pangburn should have judgment against T. N. Barnett for the amount due on the two notes for $750 each, and that this amount should constitute a lien upon the land of the original purchase now owned by T. N. Barnett. A decree was entered in accordance with the finding of the chancellor. Crump has satisfied the decree in so far as it affects him, and T. N. Barnett alone has appealed to this court.
    The appellant, pro se.

    1. Whether or not the Bank of Pangburn holds the two notes as owner or liquidating agent, it- came into possession of them at a receiver’s sale, and it has no better title than the insolvent State Bank of Pangburn had at the time it closed its doors. 98 Ark. 200; 97 Id. 534; 98 Id. 370; 115 Id. 235; 128 Id. 449; 131 Id. 140. The bank was not an innocent purchaser, but took subject to all the equities between the original parties. 99 Ark. 458; 115 Id. 44.
    2. The two notes were paid by appellant, as the evidence shows. The burden is upon the holder of an altered negotiable note to show that the alteration was made with the maker’s consent. 27 Ark. 108. The presumption is that the alteration was made by the one having the custody. 5 Ark. 347; 50 Id. 358. The testimony showed that appellant instructed Churchill to make the sale to Williams in order to pay the $750' notes, and that the cashier of the Pangburn State Bank told that the notes had been paid. The testimony is conclusive, and the findings of the court should not be based upon inference or conjecture. 116 Ark. 82; 114 Id. 112; 117 Id. 638; 113 Id. 353. The record shows conclusively that appellant paid the two notes, and the chancellor was in error in finding against appellant.

      Hammock & Bittle, for appellee.
    The only question is whether or not the two $750 lien notes, executed by appellant to Harry Churchill, have been paid. The chancellor found they had been paid, and his finding is not against the preponderance of the testimony.
   Hart, J.

(after stating the facts). The issue raised by the appeal has been narrowed down to the question of whether or not the two notes for $750 each have been paid. Barnett assumes the affirmative of this issue and the Bank of Pangburn the negative. One of the $750 notes was delivered to the Pangburn State Bank, and the other $750 note was transferred to it by Churchill, the president of the bank, as collateral security. Both notes were held by the Pangburn State Bank and were turned over to the Bank of Pangburn when it was organized and had taken over the assets and assumed the liabilities of the Pangburn State Bank.

It is the contention of T. N. Barnett that these two notes were paid when he sold forty acres of the land originally purchased to A. P. Williams and took three land notes given to Williams for $187.50 each and the individual note of Williams for $937.50. On the other hand, it is contended by counsel for the bank that Churchill took these notes and endorsed them to the Western Tie & Timber Company on his own account and that the two $750 notes are due and unpaid.

It will be remembered that Churchill was the president of the Pangburn State Bank and was also the local representative of the Western Tie & Timber Company, and that his office was in the bank building. It is true that he acted as the agent for T. N. Barnett in making the sale of the forty acres of land to A. P. Williams; but he also acted for the bank in accepting the notes given for the purchase price of the land by Williams if in fact he did accept them in payment of the two. $750 notes. As president of the bank, it was his duty to collect the debt which T. N. Barnett owed it; and if the notes were turned over to him by T. N. Barnett in payment of the two $750 notes, the bank was bound by his action in receiving the notes in payment of the notes of B'arnett held by it, although. Churchill may have afterward converted the notes received in 'payment to his own use. Binghampton Trust Co. v. Auten, 68 Ark. 299.

On this point Barnett testified that Churchill agreed with him to apply the notes given by Williams in payment of the two $750 notes held by the bank and which were a lien on the land originally purchased by Barnett, and which are still owned by him. Indeed, Barnett said that he sold the forty acres of land to Williams for the very purpose of settling with the bank for these two $750 notes. He said that Churchill told him that the bank had the notes and would deliver them to him in a few days; but that the notes were never in fact delivered to him by the bank. Barnett is corroborated by the testimony of his brother who negotiated the sale for him.

Again, A. F. Williams who purchased the, forty acres of land testified that at the time he purchased the land the cashier of the bank told him that the title was good and that there was nothing against it. Williams did not know at the time that the bank held the two $750 notes.

This testimony, if true, shows that the bank agreed to accept the notes given by Williams for the purchase price of the lands in payment of the two $750 notes. The testimony tending to contradict this is that the two $750 notes were not surrendered at the time the transaction was had. Barnett said, however, that the president and cashier told him that the bank had the notes and would surrender them at a more convenient time in the near future. His testimony in this respect is not disputed.

The cashier of the Bank of Pangburn does testify that T. N. Barnett promised to pay the two $750 notes after that bank took over the assets of the defunct Pang-bum State Bank. His testimony, however, is not sufficient to overcome the affirmative testimony to the effect that such payment was agreed upon between the parties at the time Barnett sold the lands to Williams. Barnett states positively that he sold the lands to Williams for the purpose of paying these two notes. There is certainly nothing in the record tending to show that he delivered the notes given to him by Williams to Churchill for the purpose of accommodating the latter and allowing him to transfer them to the Western Tie & Timber Company for his own debt. Barnett did not owe that company anything, but did owe the Pangburn State Bank the two $750 notes. As above stated, the president of that bank had the authority, and it was his duty, to collect from Barnett the debt owed by him to the bank.

The testimony shows that the notes for the purchase price of the forty acres of land given by Williams to Barnett were turned over by Barnett to Churchill for the payment of the two $750 notes. The burden was on Barnett to establish payment by a preponderance of the evidence, and we think he has done so. The chancellor erred in holding to the contrary.

It follows that the decree must be reversed, and the cause will be remanded for further proceedings in accordance with this opinion.


text:
    Suter v. Mason.
    Opinion delivered February 21, 1921.
    1. Damages — when liquidated. — In a contract for the sale of 720 acres of land for $54,000, the greater part of which was on deferred pyments extending over a period of eleven years, an agreement that the initial payment of $3,000 should be liquidated damages in case the buyer failed to perform was not unreasonable nor void as a penalty, in view of the magnitude of the transaction and the risk of monetary depression.
    2. Vendor and purchaser — freedom prom incumbrances. — An agreement to convey land clear of incumbrances does not refer to permanent easements across the land visible to the purchaser, such as a public road or the right-of-way of an electric light company.

      3. Vendor and purchaser — fraudulent representation. — In a sale of a 720-acre tract of land, of which only 280 acres were cleared, the purchaser had a right to rely on the vendor’s representation that 360 acres were cleared, as such representation could not be considered a matter of opinion only.
    4. Vendor and purchaser — fraudulent representation. — Where a vendor represented the number of acres of cleared land to be 360 when only 280 were cleared, the purchaser was entitled to rescind, though the vendor offered to clear up the deficiency of 80 acres.
    Appeal from Arkansas Chancery Court, Northern District; John M. Elliott, Chancellor;
    affirmed.
    STATEMENT OF FACTS.
    On the 9th day of January, 1920, R. H. Suter brought this suit in equity against the Bank of Stuttgart and James S. Mason to recover the sum of $3,000 damages for the failure of the defendant, Mason, to carry out a contract made by him with the plaintiff for the sale of 720 acres of land in Arkansas County, Arkansas.
    Mason filed an answer, in which he claimed that he was entitled to rescind the contract because the title tendered was insufficient and because the contract had been procured by the fraudulent representations of the plaintiff.
    In October, 1919, Dr. James S. Mason, a resident of the State of Illinois, came to Arkansas County, Arkansas, for the purpose of examining a tract of land belonging to R. H. Suter with the view of purchasing it. Suter, with his agent, went with Doctor Mason to the land for the purpose of examining it. According to the testimony of Doctor Mason, they drove over a part of the land, and he was induced to make the contract on account of certain representations made by Suter. Suter represented to Doctor Mason that the tract comprised 720 acres and that 400 acres were in cultivation. Suter also' represented that the land was free from overflow and that there were no incumbrances on the title. On the 27th day of October, 1919, the parties entered into a written contract whereby Mason agreed to purchase the 720 acres of land for the sum of $54,000. Of this amount $3,000 were deposited in the Bank of Stuttgart with a copy of the contract.
    The contract provided that within twenty days thereafter Suter was to furnish a good abstract of title showing the land to be free from incumbrances, except two mortgages, which were described. A further payment of $5,000 was to be made on January 1, 1920. The balance of the purchase money was in deferred payments extending over a period of years from the date of the contract to January, 1931.
    It was also provided that the initial payment of $3,000 should be liquidated damages in case Mason failed to carry out the contract on his part.
    According to the testimony of Mason he had the cleared land surveyed soon after he signed the contract of purchase and found that there were only 280 acres of cleared land. He also ascertained that a material part of the land was subject to annual overflow to such an extent that it was not susceptible to cultivation. There was a public road running across the land, and an electric power company had a right-of-way across the land over which it had erected its poles. Mason also ascertained that the land was in a road improvement district, and that road improvement taxes would be levied on it for a period of more than twenty years. The testimony of • Mason was corroborated by that of other witnesses.
    According to the testimony of the plaintiff, Suter, he carried Mason over about three-fourths of the land, and Mason expressed himself as satisfied with what he had seen. Suter suggested to him that he had better examine the place more closely before he completed the contract of purchase. Mason replied that he had seen enough to satisfy him about the quality and condition of the land. Suter denied that he had made any false representations to Mason about the overflow of the land and testified that but a very small quantity of the land was subject to overflow. His testimony in this respect was corroborated by other witnesses. He said that Mason observed that the light poles were on the land, and that the light company had a right-of-way over the land at the time they viewed it. Suter denied that he had represented to Mason that 400 acres of the land were in cultivation. He said that he told Mason that he had never surveyed the cleared land separate from the balance, but. that' he thought that about one-half of the land was cleared, and that he based this opinion upon the fact that he had stepped off the cleared land and estimated it to be that much. His testimony was corroborated by that of other witnesses.
    Other facts will be stated or referred to in the opinion.
    The chancellor made separate findings in favor of the defendant on all the issues raised by the pleadings. The chancellor found that the $3,000 sued for was a penalty and not liquidated damages. He found that the plaintiff did not furnish an abstract of title showing a good and sufficient title in fee to the. land in the plaintiff. He also found that Mason was induced by the fraudulent representations of the plaintiff, Suter, to enter into the contract for the purchase of the land.
    A decree was entered in accordance with the findings of the chancellor, and the plaintiff, Suter, has duly prosecuted an appeal to this court.

      George G. Lewis, for appellant.
    1. The chancellor erred in finding that the contract was induced by fraud and misrepresentation, and that appellant had failed to show a good and sufficient title. The evidence fails to show any misrepresentations' or fraud by appellant, but, admitting for argument that the representations were made and were untrue, the appellee is not in an attitude to complain. 71 Ark. 97; 87 Id. 567. A vendee of land seeking cancellation of the sale for false representations of the vendor must show that the representations induced him to purchase and that he relied upon them and had a right to so rely upon them in the belief of their truth. 11 Ark. 58; 47 Id. 148; 71 Id. 91. Taking the view of the testimony most favorable to defendant, the testimony fails to bring this case within the rule. 19 Ark. 522; 192 U. S. 232; 24 Sup. Ct. Rep. 259; 48 S. W. 729; 28 Fed. 708-12.
    2. The chancellor erred in holding that, if the second payment should not be made and the notes and mortgage executed, the first payment should become the property of appellant as liqmdated damages and all rights of both parties cease and determine and that it was in the nature of a penalty and not enforceable. 93 Ark. 371; 122 Id. 167.
    3. The chancellor erred in his finding as to the sufficiency of the title. Appellee knew of the existence of the transmission line, the road and the road assessments before he signed the contract. The abstract of title disclosed all these assessments, and no objection was made, and this was a waiver. Maupin on Marketable Title to Real Estate (2 ed.), pp. 19*7-9; 146 Pac. 975; 168 Id. 633; 64 Misc. (N. Y.) 422; 124 N. Y. Supp. 370; 116 N. Y. 501; 22 N. E. Rep. 1087; 10 Am. St. Rep. 836. The fact that part of land conveyed with covenant of warranty was at time of conveyance a highway and used as such is not a breach of covenant. The decree should be reversed, and judgment entered for appellant Bank of' Stuttgart for $3,000 and interest.

      John L. Ingram, for appellees.
    1. The lands described were misrepresented in two respects, that they were free from .overflow and that there were 400 acres cleared or open lands, when there were only 28014 acres. These representations were false and material, and appellee had a right to and did rely on them. The evidence fully supports the decree. 71 Ark. 71; 99 Id. 438. See, also, 101 Ark. 95; 100 Id. 28.
    2. Appellant failed to comply with his contract.
    3. The sum sued for is a penalty, and not enforcible in equity. Fetter on Equity, pp. 96-107; 8 Am. Dec. 598; Eaton on Equity, pp. 99, 102; Í Sutherland on Damages (3 ed.), pp. 733, 753; 1 Pomeroy, Eq. Jur. (2 ed.). The cases cited by appellant are not in point.
   Hart, J.

(after stating the facts). We are of the opinion that the chancellor erred in holding the $3,000 to be a penalty and not liquidated damages. The contract provided for the sale of 720 acres of land for $54,000, the greater part of which was on deferred payments extending over a period of eleven years. The contract contemplated that only the $3,000 and an additional $5,000 should be paid within a short time after the contract was completed. In view of the magnitude of the transaction and the consequent risk of a monetary depression, it was not unreasonable that the parties should agree that the $3,000 should be liquidated damages in case the purchaser failed to carry out the agreement on his part.

We also think that the chancellor erred in holding that the plaintiff did not have a good and sufficient title because there was a public road running through the land and because the electric light company had' a right-of-way over the land for the erection of its .poles. An agreement to convey land clear of all incumbrances does not refer to permanent easements across the land visible to the purchaser. Mason knew that the public road ran across the land when he purchased it. He also knew that the poles of the electric light company were across the land. He purchased the property in contemplation of its physical condition and with reference thereto. Therefore, the defendant can not rely upon the existence of the road and right-of-way across the land as matters calling for a rescission of the contract. Skinner v. Stone, 144 Ark. 353; Geren v. Caldarera, 99 Ark. 260, and McCarthy v. Wilson (Cal.), 193 Pac. 578.

In Sandum v. Johnson, Ann. Cas. 1914 D, p. 1007, the Supreme Court of the State of Minnesota held that the existence of an easement for a rural public highway across the land conveyed by a deed containing a covenant against incumbrances is not a breach of the covenant. The case note cites many decisions sustaining the holding that the existence of a known easement for a public highway does not constitute a breach of a covenant against the incumbrances.

Upon the question of fraudulent representations, we will first take up the question as to the deficiency in the acreage of the cleared land. According to the testimony of Mason, Suter represented that there.were 720 acres of land in the tract and that there were 400 acres in cultivation. Mason believed this representation to be true, and the amount of the cleared land was a material inducement to him to make the purchase. After he had entered into the contract of purchase, he had the cleared land surveyed and ascertained that only 280 acres of the entire tract were cleared. Suter, himself, admitted that he told him that he thought that 360 acres of the land were cleared. Then, according to his own statement, there was a deficiency in the cleared land of eighty acres. The land was purchased for a farm, and the amount of cleared land on the tract was necessarily a factor in inducing the purchase. It is true that in transactions of this kind men are expected to exercise reasonable prudence and not to rely upon persons with whom they are dealing to protect their interests; but this requirement should not be regarded so that the law will ignore positive fraud. If the tract of land had been a small one and the parties had examined it, it might be said that, owing to the small area, the purchaser could not be deceived about the quantity of cleared land and could not rely upon the representations of his vendor about a matter which was patent to an ordinary observer and about which he could scarcely make a mistake if he relied upon his own judgment. This is not the case, however, in the sale of a large tract of land where the deficiency in the amount of cleared land is great in proportion to the whole number of acres conveyed. In such cases/ the vendor can not say that the vendee ought not to have trusted him, and that his statement with regard to the number of acres of cleared land was only a matter of opinion which could not be considered as evidence of fraud.

In-the present case Suter had had the land cultivated and had collected rent therefrom. The number of acres cleared and in cultivation was a matter peculiarly within Ms own knowledge, and it can not be said that Mason was negligent in relying upon his representations in this respect. On account of the size of the tract, it can not be said that Mason could judge of the area of cleared land by the eye. Suter represented that one-half of the land was in cultivation. His representations in this respect were material, and under the circumstances were equivalent to an assurance of an approximately accurate measurement. Mason relied upon his assertions and representations in making the purchase. Hi's representations could not be considered as a matter of opinion merely. Neither can it be said that Mason was negligent in relying upon them, and should have had the cleared land surveyed if he was not satisfied with his own measurement by viewing the land. When the size of the tract and situation of the cleared land is considered, Mason had a right to presume that Suter knew the amount, of cleared land in the tract and was justified in relying on Suter’s statement based on a better knowledge of the area of the cleared land than he could obtain by simply walking over it on one occasion. Neely v. Rembert, 71 Ark. 91; Kincaid v. Price, 82 Ark. 20; Cooper v. Merritt, 30 Ark. 686, and 39 C. J. 1270, and cases cited.

We tMnk the court erred in finding that a material part of the land was subject to overflow. The testimony is in direct and irreconcilable conflict on this point; but we are of the opinion that a preponderance of the evidence shows that only a very small quantity of the land was subject to overflow, and that no rescission of the contract should be had on this ground. However, chancery cases are tried de novo upon appeal, and, inasmuch as the chancellor found that the defendant, Mason, was entitled to a rescission of the contract because there was a material deficiency in the amount of cleared land, it can not be said that the decree should be reversed.

It is claimed by counsel for the plaintiff that the decree should be reversed because Suter offered to make good the deficiency in the amount of cleared land and to clear up an additional quantity of land so that one-half of the land in the tract would be cleared as he had represented it to be to Mason. This was not a matter, however, upon which Suter had the right to make an election. The election was for the purchaser. He might have accepted the contract and sued his vendor for an abatement of the purchase price on account of the damages suffered by him by reason of the deficiency in the amount of cleared land. On the other hand, he had the right to rescind the contract on account of the misrepresentations of his vendor as to the quantity of cleared land in the tract. As above stated, the deficiency was eighty acres, and under the circumstances the deficiency was great in proportion to the whole amount of cleared land in the tract. It follows that Mason had a right to rescind the contract, and the decree of the chancellor must be affirmed.


text:
    Holland v. Alexander.
    Opinion delivered February 21, 1921.
    1. Deeds — delivery.—Where a grantor executes a deed in the absence of the grantee, and has it recorded, this amounts to a delivery where the record shows that the acceptance of the deed would be of advantage to the grantee.
    2. Deeds — evidence op mistake. — In a suit by an illegitimate son to restrain a sale of land under his father’s mortgage which his father had bought and paid for and taken title to plaintiff, evidence held to justify the chancellor’s finding that the father bought the land for himself, and that the deed was by mistake made to plaintiff.
    Appeal from Mississippi Chancery Court, Chickasawba District; C. D. Frierson, Chancellor;
    affirmed.
    STATEMENT OF FACTS.
    J. B. Holland, a minor, by his next friend, J. T. Wood, brought this suit in equity against the New England Securities Company and A. C. Little to restrain them from selling, under a mortgage, a tract of lánd described in the complaint.

      The New England Securities Company filed an answer, denying the allegations of the complaint, and also a cross-complaint, in which it asked that Hettie Wood and the administrator of the estate of J. W. Holland, deceased, be made parties. In the cross-complaint it set up the fact that the land had been sold under the power of sale contained in the mortgage and that T. C. Alexander had become the purchaser at the sale.
    The prayer of the cross-complaint was that T. C. Alexander’s title be quieted as against J. B. Holland, Hettie Wood and the administrator of the estate of J. W. Holland, deceased. The facts set up in the cross-complaint were established by the proof.
    The record also shows that J. B. Holland was born on August 15, 1899. The land in controversy comprises forty acres, and on the 16th day of October, 1899, H. P. Davis and wife executed a deed to it to J. B. Holland for the consideration of $1,000. The deed recites a consideration of $1,000 as follows: $160 in hand, paid by J. B. Holland, one note for $340, due and payable on the 15th day of November, 1900, and one note for $100 due and payable on the 15th day of November, 1901, and one note due and payable on the 15th day of November, 1902, for $100, and one note for $100 due and payable on the 15th day of November, 1903, and one note for $100 due and payable on the 15th day of November, 1904, and one and the last note for $100 payable on the 15th day of November, 1905.
    J. B. Holland was the illegitimate son of J. W. Holland. During December, 1906, or January, 1907, J. W. Holland applied to the New England Securities OcDmpany for a loan of $600 and offered the land in controversy as security for the loan. The agent of the securities company called attention to the fact that the deed was made from H. P. Davis and wife to J. B. Holland. J. W. Holland told the agent that his initials were originally J. W. B. Holland; that in preparing the deed from Davis to himself the draftsman left out the “W” and made the deed to J. B. Holland, and that subsequently he had dropped the “B” entirely from his name, and made affidavit to that effect.
    J. W. Holland married the mother of J. B. Holland, and she joined with him as his wife in the execution of the mortgage in January, 1907. Subsequently J. W. Holland died, and his widow paid the interest on the loan one year after his death. The notary public taking the acknowledgment to the mortgage testified that Mrs. Holland stated that at the time she understood the meaning of the instrument and acknowledged it of her own free will and accord. J. W. Holland lived on the land from the time he purchased it until his death.
    The mother of J. B. Holland testified that she had heard J. W. Holland say that the lands belonged to his son, J. B., and that her husband had paid the taxes in the name of J. B. Holland.
    The chancellor found the issue in favor of the defendants, and the complaint of the plaintiff was dismissed for want of equity; and on the cross-complaint it was decreed that the title be quieted and confirmed in the purchaser at the mortgage foreclosure sale against the claims of J. B. Holland, his mother, Hettie Wood, and Rex Baker, the administrator of the estate of J. W. Holland, deceased.
    The case is here on appeal.

      J. T. Coston, for appellant.
    1. The court erred in reforming the deed, as there is no evidence whatever to justify the court in so doing. The evidence of W. F. Rhea was incompetent, and the declarations of J. W. Holland were ex parte and self-serving, not part of the res gestae and incompetent; and if competent they were wholly insufficient to offset the positive testimony of Hettie Wood and overturn the deed itself. 2 Wigmore on Ev., § 1481.
    2. The declarations of J. W. Holland were also incompetent, as they were made while a controversy and litigation was pending and self-serving. 2 Wigmore on Ev., §§ 1482-3.

      3. The evidence of the boy’s mother, Mrs. Wood, was competent, because such acts, statements and declarations were against the interest of J. W. Holland. 131 S. W. 671; 146 Id. 502. A mere affidavit is inadmissible. 2 Wigmore on Ev„, § 1384; 42 Ark. 357; 9 Ore. 315. See, also, 17 Conn. 400; 90 Mass. 100; 6 Mich. 14. It was hearsay and not part of the res gestae. 7 So. Rep. 747.
    4. It was error to admit Robert A. Campbell’s testimony. It was self-serving and incompetent. See 58 S. W. 8. To the same effect are 87 Mo. App. 219; 2 So. Rep. 30; 51 Mass. 53; 39 S. W. 187; 85 Id. 215; 42 S. E. 887; 31 Id. 734; 37 So. Rep. 405; 54 S. W. 609; 67 Id. 735; 77 Id. 135; 72 N. W. 423.
    5. The evidence is insufficient, even if competent. The evidence of mistake must be clear, unequivocal and decisive. 77 S. W. 53; 101 Id. 724; 131 Id. 452; 219 Id. 328.

      Buck & Lasley, for appellees.
    The only witness for appellant was the mother, Hettie Wood, and she was an interested witness, living on the land and anxious to defeat the N. E. Security Company’s deed. The burden was on appellant, and he has failed. 20 Cyc. 1219, 1195; 66 Ark. 299. The testimony of Rhea as to the declarations of J. W. Holland were clearly competent and sustain the decree.
   Hart, J.

(after stating the facts). The decree of the chancellor was correct. It is true, as contended by counsel for appellant, that where a grantor executés a deed in the absence of the grantee and has it recorded, this amounts to a delivery where the record shows that the acceptance of the deed would be to the advantage of the donee. Graham v. Suddeth, 97 Ark. 283.

There is nothing in the present record, however, that tends to show that the deed was to the advantage of the minor, even if it could be said that the record shows that it was intended to be made to the minor.

The deed was made in October., 1899, when the infant was only a few weeks old. The deed was for forty acres of land and recited a consideration of $1,000. One hundred and sixty dollars of it were paid in cash, and the balance was payable in yearly installments for each succeeding year until the 15th day of November, 1905.

There is nothing in the record to show whether it would be for the benefit of the minor or not to have had the land conveyed to him. Moreover, it appears from the recitals of the deed that the cash payment was made by the grantee and that the deferred payments were evidenced by promissory notes to be signed by the grantee. J. B. Holland was an infant at that time, and, of course, could not have made the cash payment and could not have signed the notes for the deferred payments.

It is fairly inferable from what happened at the time, that J. W. Holland purchased the land for himself, and by mistake the deed was made to J. B. Holland. It was shown that the full initials of J. W. Holland were J. W. B. Holland. J. W. Holland went into possession of the land himself and lived there until he died. In the latter part of 1906 or the first part of 1907 he mortgaged the land to secure a loan of $600 made to him by the New England Securities Company. His wife joined him in the execution of this deed. All these facts and circumstances tend to show that J. W. Holland bought the land for himself, and that by mistake the deed was made in the name of J. B. Holland, instead of J. W. Holland. The whole substance of the transaction and the conduct of J. W. Holland and his wife until he died show that he purchased the land for himself. The only contradiction of it is the testimony of his widow to the effect that her ■ husband always spoke of the land as belonging to his infant son, J. B. Holland. Her testimony, in this respect, is contradicted by her own action in the premises. When her husband desired to mortgage the land to secure a loan, she readily signed the deed as his wife and relinquished her dower in the premises. This act indicated that she regarded the land as belonging to her husband at that time. She knew that her husband paid the interest on the loan, and she paid the interest thereon for the first year after his death. Her conduct then tends to show that she regarded the land as belonging to' her husband and is entitled to more weight than her bald testimony to the contrary after her husband’s death.

It follows that the decree will be affirmed.


author: Smith, J.

text:
    Jefferson v. Conway County Bridge District.
    Opinion delivered February 21, 1921.
    Bridges — list of lands subject to taxation. — Failure of the secretary of the board of commissioners of a bridge district to file with the county clerk a list of lands subject to taxation in the year 1919, as required by Acts 1917, p. 314, did not defeat the right of the district to sue to enforce the collection of the assessments for that year, where a correct list had been furnished to the clerk by the secretary for the year 1917; no change having been made in the assessments since 1917.
    Appeal from Conway Chancery Court; Jordan Sellers, Chancellor;
    affirmed.
    J. Allen Eads, for appellant.
    Under the rule of construction universally followed by this court the chancery court should have denied the complaint of appellee and rendered a decree for appellant and dismissed the complaint. The secretary of the board did not certify to the clerk of the county court the taxes' to be collected for the year 1919. The appellants were not entitled to the relief prayed for under the proof. Act No. 71, Acts 1917, § 12. The statute must be strictly construed and strictly complied with.

      Edward Gordon, Sellers & Sellers and Bose, Hemingway, 'Cantrell é Loughborough, for appellee.
    It was not necessary for the secretary of the district to annually file with the clerk of the county a list of the lands subject to taxation with the amount of taxes assessed against each tract. See act 71, Acts 1917, §§ 9, 12, etc. The correct amount of taxes was shown by the tax books. The provisions of section 12 are directory merely. It was unnecessary for the secretary to strictly pursue a mere form of procedure that was unnecessary in this case and a waste of effort. Other sections of the act provide for the assessment of benefits and the levy of the annual installments of taxes to be paid in each year. See 40 Ark. 34; 11. 491; 64 Id. 39.5; 98 Id. 505. It is not necessary to follow the literal language of the provisions of section 12 in regard to the annual list to be furnished the county clerk. 116 Ark. 538; 133 Id. 491.
   Smith, J.

Appellant owns real estate in the Conway County Bridge District, and seeks by this suit to enjoin the collector of taxes and the commissioners and officers of the district from returning his land as delinquent for the taxes for the year 1919. The basis of the suit is that the secretary of the district did not certify to the clerk of the county court the taxes to be collected for the year 1919.

The secretary of the board made a certificate which the parties agreed should be treated as an agreed statement of facts. It there appears that in the year 1917 the secretary of the board, under the directions of the board, filed with the . clerk of the county court, a list of all the property subject to taxation within the district, with a tax of five per cent, extended thereon against the amount of benefits assessed against each particular piece of property. That by proper resolution the same rate had been fixed for the years 1918 and 1919, for and in each of which years the secretary had personally directed the clerk of the county court to continue to use the list which he had originally filed for the year 1917. In other words, the assessments for the years 1917,1918 and 1919, and subsequent years, were made by the same resolution, and for each of those years the resolution directed a collection of five per cent, of the assessed betterments, and the resolution further directed the annual collection of these installments, a copy of all of which was filed in- 1917 with the list of the lands.

Section 12 of the act under which the district was organized (Act 71, Acts 1917, vol. 1, page 314) provides that “the secretary of the board shall annually deliver to the county clerk, before he has made up the tax books, a list of all the property subject to taxation thereunder within the district, with the amounts assessed against each tract to be paid at the next collection of taxes.” Appellant’s insistence is that the failure of the secretary to file a list of lands subject to taxation in the year 1919 defeats the right of the district to sue to enforce the collection of the assessments for that year.

We do not concur in this view. Other sections of the special act provide for the assessment of the benefits and for the levy of the annual installments thereof to be paid in each year, and make the same a lien upon the property in the district, which continues until the assessments are paid. The board, by proper resolution, had discharged its duty under the statute, and the secretary had furnished the county clerk a certificate showing the lands taxed.

It was, of course, essential that a list' of the lands be furnished the clerk showing the lands taxed and the amount of the assessments against the respective tracts, and additional lists would necessarily be required to cover any changes made either in the lands or in the amount of assessments. The statute does not require an annual certificate from the secretary of the board to confer authority to collect the taxes. It does require an annual list, but we perceive no reason why a correct list once furnished should not be used until some change in the assessment made a new or revised list necessary. The purpose of the statute quoted was evidently to convey information to the clerk, and not to confer authority. The collection was not made by the clerk. This information was obtainable from the secretary of the board. It was the duty of that officer to furnish it, and it is agreed that “the said clerk has since the filing of said list used said list in extending the taxes each year after being verbally directed to do so each year by the secretary of the board of commissioners. ’ ’

We think there was a substantial compliance with the requirements of the statute, and the decree of the court denying appellant the relief prayed is affirmed.


author: Humphreys, J.

text:
    Kell v. Butler.
    Opinion delivered February 21, 1921.
    Easements — prescription — permissive use. — Continuance for the statutory period of the use of a ditch permissive in its inception will not ripen into a hostile right.
    Appeal from Carroll Chancery Court, Eastern District; B. F. McMahan, Chancellor;
    reversed.

      Johnson & Simpson, for appellant.
    The court erred in holding that appellee acquired an easement by adverse possession for drainage purposes over his land. Appellee had no easement over the land by grant or reservation or by adverse possession. 14 Cyc. 1144; 19 Ark. 23. A mere permissive use of the land of another for any length of time confers no right of continued enjoyment. 14 Cyc. 1201; 19 Ark. 23. Appellee had no easement, and the • chancellor erred in so holding.

      Roy Thompson and Andrew J. Rwsseil, for appellee.
    1. The findings of the chancellor as to facts are clearly sustained by the clear preponderance of the evidence.
    2. The doctrine of easements by prescription rule this case. Butler’s possession was not only open and notorious but hostile and adverse. 79 Ark. 5.
    3. Kill is estopped; the purchase of the right to remove the dirt from either side of the ditch forms the basis for invoking the principle of law enunciated in 221 S. W. 454, citing many cases. 19 Ark. 23; 49 Id. 503; 93 Id. 608; 54 Id. 519.
    4. The question of license is involved — in view of the evidence — and this is equivalent to an easement. 25 Cyc. 646. If a license merely, it can not be revoked under the law and the proof here. 47 Ark. 66; 19 Id. 23; 88 Cal. 217; 22 Am. St. Kep. 298; 120 Ga. 760; 48 S. E. 332; 33 Pa. St. 169.

      5. There were mutual benefits, as the evidence proves, and appellee has established an easement by prescription, and appellant is bound by equitable estoppel.
   Humphreys, J.

Appellee instituted suit against appellant in the Eastern District of the Carroll Chancery Court to enjoin him from obstructing a ditch on his land, which served to carry water from appellee’s adjoining land to the main ditch, which served as the drainage for that particular section, alleging as a ground for the injunction that appellee had acquired an easement to the ditch.

Appellant filed answer, denying all the material allegations in the bill. The cause was submitted to the court upon the pleadings and the evidence, which resulted in a decree enjoining appellant from obstructing the ditch. From that decree, an appeal has been duly prosecuted to this court, and the cause is here for trial de novo.

Appellee is the owner of ten acres in the northeast corner of the southwest quarter of the northwest quarter, section 36, township 20 north, range 25 'west, in said county. Appellant is the owner of the balance of the 40. Appellee purchased the 10-acre tract from Jim Fanning, who at the time owned the entire 40, in the year 1909. A portion of the tract was low and wet at the time he purchased it. A branch ran through the 30-acre tract, which carried the drainage water from that particular section. In the year 1910, appellee cut a ditch on his 10-acre tract, and, for the purpose of reaching the main ditch by a shorter route, continued the ditch across the 30-acre tract for about twenty-nine feet until it intersected S’aid branch. The ditch dug by him on the 30-acre tract was very narrow and about two feet deep. .At this time there was no division fence between the 10 and 30-acre tracts —that portion of the thirty acres, upon which the ditch was dug, being in the woods. Afterward, Jim Fanning sold the 30-acre tract to Mr. G-rove, who sold it to Carl Freeman. On November 7, 1913, appellant purchased the 30-acre tract from Carl Freeman. Appellee and his son, Fred Butler, testified that, at the time they dug the ditch on the 30-acre tract, Jim Fanning, the then owner of said tract, gave appellee oral permission to dig the ditch. Jim Fanning testified that they dug the ditch without any permission from him. In the year 1915, appellee bought some dirt on each side of the ditch for the purpose of filling his land and widening the ditch. The banks were beveled so that stock might pass from one side to the other. Appellee paid appellant $1 and a part of a straw stack for the dirt. It was possible for appellee to drain his tract of land through a ditch entirely upon his own land, by an expenditure of about $100. After the division fence was built on the line between the 10 and 30-acre tracts, appellant and his grantors were in actual possession of the land on which the ditch was dug and paid the taxes thereon. A controversy arose between appellant and appellee as to appellee’s right to use the ditch, whereupon appellant placed obstructions therein and this suit was instituted.

Appellant insists that the court erred in holding that appellee had acquired an easement by adverse possession for drainage purposes over his land. We think appellant correct in this contention, as the evidence shows only a permissive use of the land for an indefinite period of time. The right to dig and use the ditch for drainage purposes was entirely permissive. No consideration was paid for the right, and no valuable improvements were made on account of it. The ditch itself was only twenty-nine feet long and two feet deep and very narrow. “A user to ripen into a prescriptive right must be adverse, not by license or favor, but under a claim or assertion of right hostile to the rights of the owner, so as to expose the claimant to an action of trespass if his claim is not well founded.” 14 Cyc. 1150. It is true that appellee used the ditch for drainage purposes for more than seven years, but a “continuance for the statutory period of .a use permissive in its inception will not ripen into a hostile right.” 14 Cyc. 1150. “A mere permissive use of lands of another for any length of time confers no rights of continued enjoyment. The owner may prohibit the use or discontinue it altogether at his pleasure as long as it is merely permissive. ’ ’ 14 Cyc. 1150. The evidence fails to show that appellee renounced the permissive use of the ditch for drainage purposes and thereafter claimed adversely for the period of séven years. The holding during the entire period was under the original permission to dig and use the ditch.

For the error indicated, the decree is reversed and the cause remanded with directions to dismiss appellee’s bill for the want of equity.