text:
    Moline Timber Company v. McClure.
    Opinion delivered December 8, 1924.
    ■ 1. Master and servant — assumed risk. — Where the conditions under which a servant works are constantly changing- so as .to increase or diminish his safety, it is his duty to make his place of work safe, and no duty in that regard rests, upon the master, the servant assuming the risk arising from the use of the working place and appliances.
    2. Master and servant — negligence of foreman — jury question. — In an action by an employee for personal injuries, where there was a conflict in the testimony as to whether another employee was a vice principal, for whose negligence the master would be liable, the issue was -properly submitted to the jury.
    3. Master and servant — negligence—failure to furnish safe place. — In an action by an employee for personal injuries, evidence held to warrant a finding that his injuries were received because of the omission o.f the foreman to exercise reasonable ■ care to provide a safe working place.
    4. Master and servant — assumed risk. — In an action by an employee for injuries caused by being struck in the eye by a nail which he was driving, evidence held not to show assumption of risk as matter of law.
    5. Appeal and error — presumption as to objections. — -Where only one objection to an instruction is raised on appeal, it will be presumed that it was the only objection in the trial court.
    6. Master and servant — duty to furnish safe place. — Where an employee was working under.the immediate direction of his foreman, it was the duty of the master to exercise ordinary care to furnish a reasonably safe place in which to work.
    7. Trial — construction of charge. — In an action by an employee for personal injuries, an instruction on the subject of contributory negligence was not objectionable as ignoring the defense of assumed risk, where the latter defense was correctly submitted in another instruction.
    Appeal from Hot Spring Circuit Court; .Thomas E. Toler, Judge;
    affirmed.

      Henry Berger and T. D. Wynne, for appellant.
    Tbe duty -of the master to provide his servants a safe place in which to work does not attach where the place becomes dangerous in the progress of the work, either necessarily or from the manner in which the work is done. 73 Fed. 970; Labatt, Master & Servant, vol. 3, p. 3140; 19 L. R. A. (N. S.) 345; 14 C. C. A. 492 ; 49 C. C. A. 347; 76 Ark. 69; 95 Ark. 560; 88 Ark. 292; 33 L. R. A. (N. S.) 223; 173 Pa. 162. Appellee could have continued to use the ladders supplied him or he could have built a scaffold. • The method used by him was of his own adoption, and he therefore assumed the risks and dangers incident thereto. 122 Ark. 533; 93 Ark. 140; 108 Ark. 377. Appellee knew that the boards being used had knots in them, and he assumed the risk from their use. 97 Ark. 486; 57 Ark. 503; 67 Ark. 209; 79 Ark. 20; 82 Ark. 11; 95 Ark. 560. There was no compulsion on appellee that he- do the work without a scaffold, and, if he knew and appreciated the danger from doing the work without such appliance, he must be deemed to have assumed the risk. 188 S. W. 549. The facts did not warrant the submission of the case to a jury. 76 Ark. 69; 93 Ark. 140; 88 Ark. 292. •

      D. D. Glover, for appellee.
    This was not a case where the work became more dangerous as it progressed, and the cases cited by appellant on that point do not apply. ' Where a servant is working in a place of danger, it is the master’s duty to '• adopt such reasonable precaution to provide for his safety as a reasonably prudent man would have considered sufficient for his own safety under the same circumstances. 81 Ark. 592; 80 Ark. 260; 91 Ark. 341; 87 Ark. 217; 105 Ark. 392; 88 Ark. 292. The servant does not assume the risk if there is any negligence on the part of the master. 90 Ark. 223; 79 Ark. 20; 98 Ark. 340. The servant is justified in going ahead with the work under the master’s direction unless he realizes the danger to which he is exposed. 95 Ark. 292; 87 Ark. 296; 98 Ark. 228; 102 Ark. 640.
   McCulloch, C. J.

The plaintiff, E. N. McClure, received personal injuries while he was at work as a carpenter in the service of the defendant, Moline Timber Company, and he instituted this action to recover damages. An eight-penny nail which plaintiff was attempting to drive through, a piece of lumber flew out when struck by the hammer and pierced one of plaintiff’s eyes, and the injury was so severe that the eye had to be entirely removed. The plaintiff not only lost his eyesight, in one eye, but the sight of the other eye was greatly impaired and he suffered great pain. The jury awarded damages for an amount which is not claimed to be excessive.

Plaintiff claims that he is not an experienced carpenter, and had been working for defendant in another capacity, but was called on to do this kind of work in assisting one of the foremen in partitioning off a section of defendant’s dry-shed; that he and the foreman were engaged in boarding up the gable end of the section partitioned off, which was at an elevation of about six feet above the floor of the shed, and in doing the work he was required to stand on a piece of timber two by six in size, to which the bottom end of the plank was to be nailed; that he requested the foreman to build a scaffold to stand on instead of standing on the narrow piece of timber, but that the foreman declined to permit the scaffold to be built, and directed plaintiff to stand, on the narrow piece of timber and nail the plank thereto. Plaintiff testified in support of his claim, and explained to the" jury how the injury occurred. He stated that a scaffold could have been built out of three pieces of timber in a very short time, and that he could safely have stood on the scaffold to nail on the plank, but that, in standing on the narrow piece of timber, as required by his foreman, he could not get a fair lick at the nail being driven, and had to swing his body out as far as possible and lay his head against the rafter, and, while nailing, put one hand through the crack between rafter and the roof in order to hold the nail, and that on this account he hit the nail a slanting lick, which caused it to fly out of place and strike him in the eye. He testified also that the foreman handed up a timber that had a knot in it at the place where the nail was to be put through, and that he could not see the knot plainly where he was standing.

Negligence of the defendant is charged in failing, through its foreman, to provide a safe place to work— a scaffold — and also in furnishing a defective hammer with a worn face. Plaintiff also testified at the trial with reference to the condition of the hammer and pleaded that the worn face was partly the cause of his failure to strike the nail a direct blow so as to drive it in.

The principal contention for reversal is that the testimony is not sufficient to sustain the verdict.

There is a sharp conflict in the testimony on the question whether or not plaintiff was working under the immediate direction and supervision of the foreman or whether he was merely working in conjunction with a fellow-servant. Plaintiff testified that he was working-under the immediate supervision and direction of Joe Mason, who was a foreman over him, but defendant introduced testimony to the effect that Mason was not a foreman, and that the two men were assigned to this work as fellow-servants engaged in the same service.

Learned counsel for defendant invoke the rule, established by decisions of this court and by other authorities, that, where the conditions under which a servant is put to work are constantly changing so as to increase or diminish his safety, it is the servant’s duty to make the working place safe and that no duty in that regard rests upon the master. That rule is well established by decisions of this court. Grayson-McLeod Lbr. Co. v. Carter, 76 Ark. 69; Murch Bros. Cons. Co. v. Hays, 88 Ark. 292; Southern Anthracite Coal Co. v. Bowen, 93 Ark. 140; Fordyce Lbr. Co. v. Lynn, 108 Ark. 377; Sheldon Handle Co. v. Williams, 122 Ark. 552. That doctrine is an exception to the general rule that the master owes his servant the duty to exercise ordinary care to make the working-place and appliances with which to work reasonably safe. Of course, where the duty is delegated to the servant himself to make his own working place and appliances safe or to determine the sufficiency of the appliances, there is no duty on the part of the master, and the servant assumes the risk of any danger arising from the' use of tbe working place and the appliances and material. Sheldon Handle Co. v. Williams, supra. According to the testimony adduced by the defendant, the present case fell within the exception to the general rule, and. there was no liability to the injured servant; but, on the other hand, according to the testimony adduced by the plaintiff, the general rule as to the master’s duty was applicable; for, according' to that testimony, the plaintiff was working under the immediate supervision of the foreman, whose orders he was bound to obey. According to his testimony he had no control or choice in the selection of the working place or the appliances with which to work, and, if the foreman failed to exercise ordinary care in providing a working place and tools with which to work, the defendant is liable under the doctrine of respondeat superior. There being a conflict in the testimony upon the crucial point as to whether Joe Mason was plaintiff’s foreman or his fellow-servant, there was evidence sufficient to warrant a submission of the issue of actionable negligence on account of the failure of the foreman to exercise reasonable care to provide a reasonably safe working place. The evidence was sufficient to warrant the jury in finding that, cn account of this omission, the plaintiff was put in a strained position, where he could not see how to do the work properly, and that the injury was caused by plaintiff’s inability in that position to properly strike the nail which flew out from the piece of timber and struck him in the eye.

It is also insisted that, according to the undisputed evidence, plaintiff assumed the risk of the danger, but we cannot say that, under this evidence, there was an assumption of the risk as a matter of law. That was a question for submission to the jury. Plaintiff testified that he was not an experienced carpenter, and that he did the work in the manner indicated under the immediate direction of his foreman. It was not impossible to do the work in that-manner with safety, and it cannot be said as a matter of law that the danger was so obvious that plaintiff must be deemed to have assumed the risk. On the other hand, the jury was warranted in drawing the conclusion that it was negligence to require plaintiff to stand on the narrow piece of timber instead of providing a scaffold.

Error of the court is assigned in giving plaintiff’s instruction No. 1, which submitted the question of the duty of the defendant to exercise ordinary care to furnish plaintiff, its servant, a reasonably safe place in which to work. The only contention on this assignment is that the instruction was abstract and out of place in the trial of this case, because the evidence does not show a state of facts upon which there could be predicated the duty of defendant to provide a safe place in which the servant was to work. No other objection to the instruction is suggested, and we must assume that that was the only objection made to it in the court below. We think this objection is unfounded, for, as we have already seen, there was affirmative evidence to the effect that plaintiff was working under the immediate direction of the foreman, and it was the duty of the master, through its foreman, to exercise ordinary care to furnish a reasonably safe working place. Under those circumstances there was no delegation to the plaintiff, as the servant, to himself make the working place safe.

Error of the court is also assigned in giving plaintiff’s instruction No. 4, which reads as follows:

“You are instructed that, if you find from the evidence in this case that the defendant is a corporation, that the plaintiff was, at the time of the injury complained of, in its employ and working in the performance of his duty, and you find from the evidence that the plaintiff’s injury resulted, in whole or in part, from .the negligence of the defendant company, then you are told that the fact that the plaintiff may himself have been guilty of contributory negligence will not bar or prevent his recovery on account of his contributory negligence, but it will be your duty, if you find for the plaintiff, to diminish any damages which, in your opinion, he might be entitled to recover in. proportion to the amount of negligence found, by you to be attributable to the plaintiff, if any.”

The contention is that this instruction ignores the defense of assumed risk. We are of the opinion that the instruction does not ignore that defense, which was correctly submitted in other instructions given by the court at the request of defendant’s counsel. This instruction related solely to the question of contributory negligence. It does not require the jury to return a verdict in plaintiff’s favor regardless of the assumption of the risk, and merely tells the jury, in substance, that contributory negligence is not a bar to recovery, but calls for a diminution of the damages.

These are the only assignments of error, and, as • before stated, we are of the opinion that they are not well founded.

The judgment is therefore affirmed.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    Importers’ & Exporters’ Insurance Company v. Jones.
    Opinion delivered December 8, 1924.
    1. Insurance — intention op parties. — In arriving at the intention of parties to.an insurance contract, the language of a particular clause must he considered in connection, not only with its immediate context, hut with all the other language of the policy, and interpreted in the light of the situation of the parties and the subject-matter of the contract.
    2. Insurance — ambiguity—construction.—Where the language of an insurance policy is of doubtful meaning and susceptible of two constructions, one favorable to the insured and the other to the insurer, that construction must be given which is most unfavorable to the party framing the contract.
    3. Insurance — loss op automobile “while being transported.”— Under a clause of a policy insuring an automobile “while being transported in any conveyance by land or water, the stranding, sinking, collision, burning, or derailment of such conveyance,” etc., the insurers’ liability was not limited to loss by sinking, etc., of the conveyance rather than of the automobile itself.
    4. - Insurance — construction op contracts. — An insurance contract should be given such fair, reasonable and sensible construction as it is to be assumed that intelligent business men would give it, rather than a strained or unreasonable construction or one which would lead to an absurd conclusion.
    5. Insurance — loss of automobile.- — -Loss -of an automobile sinking into a river when its rear wheels pushed back the ferryboat from which it was being driven after being transported across the river, was covered by a policy insuring against sinking, etc., while being transported in any conveyance by land or water.
    • 6. Carriers — ferries.—Public ferrymen are common carriers, required to provide entrance and exit to the ferry, and transportation across the stream is not completed until a passenger entering on one shore has landed on the other.
    Appeal from Pulaski Circuit -Court, Second Division; Richard M. Mann, Judge;
    affirmed.

      Rogers, Barber <& Henry, for appellant.

      A. L. Rotenb&rry, for appellee.
   Wood, J.

This is an action by the appellee against the appellant on an insurance policy to recover the sum of $295, alleged to be due on account of damage to appellee’s -automobile by the sinking of same in Black 'River. The cause was submitted to the court, sitting as a' jury, on the following agreed statement of facts:

“That the plaintiff, Claudius Jones, on November 12, 1922, was the owner of a -certain Hupmo-bile coupe, - upon which there was in full force and effect a certain insurance policy issued by the defendant herein, covering loss or damage by fire, theft and transportation to the body, machinery and equipment, of said car.
“That the said Claudius Jones and C. C. Larimer drove said car on to a ferryboat at Point Ferry, about 200 yards above Black River, where it goes into White River, about eight miles north of Newport, Arkansas, and were transported on said boat across said river. When the boat arrived at the other side of the river, the ferryman threw down the apron of said boat. The embankment was steep, and it was also raining. Plaintiff and the said Larimer were in the said automobile with the door and windows closed. After the boat was landed and the apron to the boat let down by the ferryman, plaintiff, believing that all was safe, started to drive off the said ferryboat. When the front wheels of said automobile landed on the bank, the rear wheels pushed the boat back, which let the said automobile back off into the water, which was some fifteen feet deep.”

It was agreed that the appellee had sustained damages by reason of the accident in the sum of $295.

Attached to the agreed statement was a copy of the insurance policy which is headed: “Customer’s Copy— Non-Valued Fire, Theft, and Transportation Form.” On the back of the policy is plainly printed: “Automobile Certificate — Non-Valued Fire, Theft and Transportation Form.” In the body of the policy.the automobile “is insured against direct loss or damage by fire, theft and transportation to the body, machinery and equipment, subject to all conditions, stipulations, provisions, exclusions and warranties contained and set forth in said policy, or set forth herein which are a part of said policy. ’ ’ On the back of the' policy, among many other provisions, is the following:

“Perils insured against — (a) fire, arising from any cause whatsoever; and lightning.
‘ ‘ (b) While being transported in any conveyance by land or water, the stranding, sinking, collision, burning or derailment of such conveyance, including general average and salvage charges for which the insured is legally liable.
“(c) Theft, robbery,, or pilferage, except by any person or persons in the assured’s household,” etc.

The court entered a judgment upon the above facts in favor of the appellee in the sum of $295, and for penalty and attorney’s fee, from which judgment is this appeal.

The only question for our decision is whether the damages sustained by the appellee were covered by the policy. If appellant is liable at all, its liability must be predicated upon subdivision “b,” siopm, of the policy. The appellant contends that’ it is not liable under this provision because, first, the car, at the time of the accident, was not being transported in any conveyance by land or water, and second, because if the car was being transported in a conveyance, the clause of the policy did not cover loss or damage by the “sinking” of the car for the reason that there was no £‘stranding,” ££sinking,” “collision,” “burning” or “derailment” of the conveyance in which the car was being transported. To sustain this contention, appellant relies upon the case of Wample v. British Empire Underwriters’ Agency, 54 Dom. L. R. 657, in which the Supreme Court of Canada had under review a policy containing precisely similar provisions to those set forth above. In construing these provisions, the court, among other things, said: “And the risk that the policy assumes is the stranding, burning, sinking, collision and derailment of the conveyance containing the motor car while being transported by land or water. It is not the stranding, sinking, etc., of the motor car itself which is covered, but of the conveyance. And any damage to the motor car resulting from such accident to the conveyance would be covered by the policy. The opening words of the clause are to be interpreted solely as marking the occasion upon which any specified accident to the conveyance will entitle the insured to recover.”

We cannot concur in this construction of the contract. To our minds it is entirely too narrow and superficial, and does not carry out the intention of the parties to the contract of insurance. In arriving at the intention of the parties to the contract of insurance, the language of the clause in subdivision “b” in the policy must be considered in connection, not only with its immediate context, but with all the other language of the policy. It must be interpreted in the light of the situation of the parties and the subject-matter of the contract; and if the language used by the parties is of doubtful meaning and susceptible of two constructions, the one favorable to the insured, and the other to the insurer, that construction must be given which is most unfavorable to the party framing the contract and using the language to express the intention of the parties.

These are familiar canons for the construing of all contracts, and especially insurance contracts. Wood v. Kelsey, 90 Ark. 272; Fort Smith Light & Traction Co. v. Kelly, 94 Ark. 461-71; Hope Spoke Co. v. Maryland Cas. Co., 102 Ark. 8; Harrison v. Interstate Business Men’s Assn. of Des Moines, 133 Ark. 163; Lincoln Reserve Life Ins. Co. v. Smith, 134 Ark. 245; Benham v. Am. Central Life Ins. Co., 140 Ark. 612; Home Mutual Benefit Assn. v. Mayfield, 142 Ark. 240; Eminent Household of Columbian Woodmen v. McCray, 156 Ark. 300. In the last named case, we said: .“Insurance policies are usually prepared on blank forms prepared by experts of the company, and, where the language used is doubtful, it must be given the strongest interpretation against the insurer which it will reasonably bear.’ See also Benham v. Am. Cent. Life Ins. Co., supra.

Now, the subject-matter of the insurance was an automobile, and it occurs to us, when all the language of the policy is considered, that it was the intention of the parties to insure the automobile against direct loss or damage by fire, theft and transportation; against fire arising from any cause whatever, and- against transportation arising from any cause whatever. To be sure, by feather-edge refinements in the construction of language and a process of strained reasoning, the language of clause “b” is susceptible of the construction given it by the Canada court, and in accordance with the conten- ■ t-ion of learned counsel for appellant. But such construction would not carry out the intention of the parties to the contract. It was manifestly their intention, by the language used, to cover all conceivable losses to the automobile while it was being transported, and they used the terms “sinking, collision, stranding, burning and derailment” as an enumeration of the methods by which such loss or damage might occur. - When the subject-matter of the insurance and the language of the policy as a whole is considered, it certainly cannot be said that it was the intention of the company to limit its liability to the appellee for a loss or damage caused only by the sinking, collision, stranding, burning and' derailment of the conveyance in wbicb the car was being transported, rather than the “sinking,” eta, of the car itself. The words “sinking,” etc., were words of enumeration or description of the: manner of loss of the car rather than a limitation of the liability to the manner of the description of the vehicle or means of transportation. Such we believe to be the plain, common-sense meaning of the contract. Any other view would lead to the rather absurd conclusion that, although the automobile was damaged or destroyed by “sinking,” yet the appellant did not intend to be liable for such loss or damage unless the boat in which the car was being transported was also lost or destroyed by ‘ ‘ sinking, ’ ’ etc. If such was the meaning of the appellant, it should have used phraseology that would express it in plain terms, instead of ambiguous language indorsed in exceedingly fine print among multitudinous other provisions on the back of the policy.

“■Contracts of insurance should be given a fair, reasonable and sensible construction, su'ch as it is to, be assumed intelligent business men would give it, rather than a strained, forced and unnatural, unreasonable or strict technical interpretation, or one which would lead to an absurd conclusion, or render the.policy nonsensical.” 32 C. J., p. 1151.

In Wheeler v. Globe & Rutgers Fire Ins. Co., 118 S. E. 609, the plaintiff’s automobile was insured under a policy containing a precisely similar provision to that of the policy under review. In that case the driver of plaintiff’s car was- attempting’ to drive the car on to a ferryboat to be transported across Great Pee Dee Biver. In so doing the end of the flatboat broke off, and the car was precipitated into the river. The plaintiff instituted an action against the company for damages under the policy and recovered judgment for the amount claimed. At the close of the testimony the appellant moved for a nonsuit on the ground that “the entire proof shows that the car was not being transported when damaged, and therefore the plaintiff cannot recover,” which motion being overruled, the appellant moved for a directed verdict, one of the grounds being that “the plaintiff lias failed to prove that the damage to his car was occasioned by either the stranding or sinking of the flat, and he cannot therefore recover.” This motion was overruled, and, on appeal, the Supreme Court of South Carolina affirmed the judgment. Among other things, the court said: ‘ ‘ The proper way to get the car on the boat was to drive it on, and-in driving it on it was being transported. * * * The driving on the ferryboat and driving off is transporting the car. * •* * His honor was right in not granting a nonsuit or directing a verdict as asked for by the defendant:”

The above case thoroughly comports with our own views of the meaning of the contract of insurance under consideration. Unquestionably the transportation of appellee’s car had not ended when the ferryboat landed at the bank where the car was to debark. Public ferrymen are common carriers. Harvey v. Rose, 26 Ark. 3; Evans v. Rudy, 34 Ark. 383. See also St. Paul F. & M. Ins. Co. v. Harrison, 140 Ark. 158. The duty of a ferryman, like any other common carrier, requires that he .provide an entrance and exit to his ferry, and the transportation across the stream is not completed until the passenger, having entered on the one shore, has landed on the other. This the appellee had not done, but, on the contrary, while attempting so to do, the rear wheels of ■ appellee’s car “pushed the boat back, which let the automobile back off into the water.”

The record presents no error, and the judgment is therefore affirmed.


author: Hart, J.,

text:
    Pylant v. Braden.
    Opinion delivered December 8, 1924.
    Vendor and purchaser — rescission for fraud — laches.—The right of a purchaser to rescind a contract for fraud is barred by laches where he waited more than two years after discovery of the fraud and until the vendor had commenced a suit for the balance of the purchase money.
    Appeal from Craighead Chancery Court, Eastern District; J. M. Futrell, Chancellor;
    affirmed.
    STATEMENT OF FACTS.
    R. L. Braden and W. A. Stewart brought this suit in equity against G-. L. Pylant and Minnie Pylant, his wife, to recover judgment in the sum of $333.33, the balance of the purchase price of a town lot in Monette, Ark., and to foreclose their vendor’s lien on said lot.
    The defense was that the contract sought to be enforced had been procured by false representations, and the defendants sought to rescind the contract and to obtain a cancellation of the notes described in the complaint.
    It appears from the record that G-. L. Pylant purchased the lot in question at .an auction sale held by R. L. Braden and "W. A. Stewart. He paid one-third of the purchase price in cash' and executed two notes for $166.60 each for the balance of the purchase money. The notes were dated January 27, 1920, and due respectively on or before the 1st day of October, 1920, and 1921. Pylant bought the lot for the purpose of establishing a home on it, and relied upon the representations of R. L. Braden that a park of twenty acres in front of the lot had been dedicated to the public, and that a hard road wouhl be constructed in front of the lot. Pylant did not dis cover that the park was not to be dedicated to the public until the following summer after purchasing the lot. He then offered to surrender his deed to the property and to lose what he had paid on it and to give Braden a mule if he would rescind the contract. Pylant was asked why he had done this, and testified that hard times had come and that he had promised to pay more than the lot was worth, which was especially true since there was to be no park or hard road or paved street in front of it.
    _ Other testimony was introduced by the defendants to corroborate the testimony of Pylant.
    R. L. Braden was the principal witness for the plaintiffs. He admitted that a park was shown on the plat containing the lot in question. He stated that he had agreed to sell the park to certain citizens of the town of Monette, and that the sale was abandoned because they failed to pay him for the park. He stated that he was still willing to sell the land for the park at the agreed price. He denied making any other announcement about the park than it was to be a public park if the sale was carried out, and also stated that the street in front of the lot in question would be paved. The. street was a part of a road in an existing improvement district which was subsequently abandoned. Braden admitted that, later on, Pylant came to him and told him that he was not able to pay the balance of the purchase price of the lot. He offered to return the deed .and give Braden a mule if he would rescind the contract. Braden told Pylant that he did not have any use for the mule, and refused to rescind the contract. Pylant gave as a reason for wishing to rescind the contract that property had greatly depreciated in value on account of the panic in 1920, and that he was not able to pay for it.
    The chancellor rendered a decree in favor of the plaintiffs, and ordered the property to be sold in default of the payment of the balance of the purchase price within the time mentioned in the decree. To reverse that decree, the defendants have prosecuted this appeal.
    Appellant pro se.

    It is admitted by all the persons testifying that the existence of the park was of material inducement, that it enhanced the value of adjacent lots, and that appellant had this in mind when he purchased. When a hid is obtained by the suppression of a material fact, the seller cannot enforce the purchase, and the buyer is entitled to recover the amount of the deposit made in conformity with the terms of the sale. 59 Ñ. Y. 462. If the vendor makes a false statement of fact material to a sale, either with knowledge of its falsity, or in ignorance of its falsity, when, from his special means of information, he ought to have known it, and thereby induces the vendee to purchase to his damage, he is liable therefor in an action at law, or the purchaser may in equity have the same rescinded. 112 Ark. 502 ; 71 Ark. 91. See also 43 Ark. 449; 4 Johns, 1; 200 N. Y. 268; 93 N. E. 235; 34 L. R. A. (N. S.) 927, note. To support an action for false representations, it is not necessary that the representations be addressed directly to the plaintiff, if made with intent to induce all to whom it may be communicated, nor is it essential that such representation be the sole inducement. 43 Ark. 454-462; 112 Ark. 501. If appellant was partially influenced by other representations, still, if he mainly and substantially relied on the fraudulent representation that there was an actual park, and that “this street is the main street to the park,” he is entitled to cancellation or his damages. 30 Ark. 363, 373-4 Appellees, having a written contract on their part to convey, and on the part of substantial business men to pay for the park site, cannot justify the publishing of the existence of the park as a fact, by saying that they rescinded that contract. Equity ought not to deny appellant relief under such circumstances. 87 Ark. 510-11; 36 Ark. 326; 76 Ya. 404-408.

      J. F. Johnson and O. H. Hurst, for appellee.
    One who desires to rescind a contract for the purchase of land on the ground of fraud must act promptly after receiving information thereof. (Ark.) 219 S. W. 33. Moreover, t'o justify rescinding and canceling a contract for the sale of land on the ground of misrepresentation, the evidence thereof must not only be clear, but it must be of a decided and reliable character, relating to some matter of inducement calculated to mislead the purchaser and induce him to buy on the faith thereof, in the absence of means of information to be derived from his own inspection, and to his injury. 71 Ark. 91; 82 Ark. 20. The means of information are accessible alike to both, and the purchaser will be presumed to have acted upon his own judgment and to have acted with ordinary prudence and diligence, and, if he failed therein, he must abide by the consequence's. 46 Ark. 337; 47 Ark. 148.
   Hart, J.,

(after stating the facts). If it be conceded that the representations made by Braden as to the park and the hard road should .be considered as sufficient to entitle Pylant to have the contract for the purchase of the lot rescinded, and that the preponderance of the evi-c dence establishes the falsity- of the representations, still Pylant is not entitled t-o rescind the contract, because he did not promptly avail himself of this right as soon as it was discovered. He could not wait to experiment and see whether the transaction mig*ht not, after all, turn out well. Pylant purchased the property at the auction sale on the 27-th day -of January, 1920. He admitted that he found out that the park was abandoned, and that the street was not to be paved, during the latter part of the summer of 1920. He continued to hold the property until the present suit was commenced on the 14th day of December, 1922. Indeed, he did not file his answer setting up this defense until January 15, 1923. During all of this time he was silent and continued to treat the property as his own. Under the circumstances he will be held to have waived the objection, and will be conclusively bound by the contract as if the alleged fraud had not occurred. He cannot play fast and loose with reg’ard to the matter. Fitzhugh v. Davis, 46 Ark. 337, and Fleming v. Harris, 142 Ark. 553.

It is true that Pylant offered to rescind the contract and to give Braden a mule if he would permit him to do so. Braden refused this offer, however, and at no time did Pylant rescind the contract on the ground that it had been procured by the false representations of Braden with regard to the park and hard road.

It follows that the decree must be affirmed.


text:
    Hogan v. Richardson.
    Opinion delivered December 8, 1924.
    •1. Vendor and purchaser — revocation of option. — An option for the sale of land for a nominal consideration may be withdrawn at any time before acceptance, on notice to the vendee, but, where a valuable consideration is paid for an option, it cannot be withdrawn by the vendor before expiration of the time specified therein.
    2. Mines and minerals — revocation of option. — An option to purchase an interest in oil and minerals in and under certain land, given in consideration of one dollar, and provided that upon acceptance a substantial sum should be paid, is based upon a nominal consideration, and may. be withdrawn by the vendor on notice to the purchaser at any time before acceptance.
    Appeal from Ouachita Chancery Court, Second Division; George M. LeCroy, Chancellor;
    'affirmed.
    STATEMENT OE EAOTS.
    Charles Richardson and Harriet Richardson, his wife, brought this suit in equity against C. B. Hogan and W. H. Strong to cancel a written option contract executed by the plaintiffs to the defendants, on the ground that they had withdrawn their offer before it was accepted by the defendants.
    The defendants admitted that the instrument, which is the basis of this suit, was in law an option to purchase the oil, gas and other minerals therein described at the price of $6,000, but aver that the contract is a valid and binding ene, because it is based on a valid consideration, and asked for specific performance of the same.

      The instrument upon which the suit is based is as follows:
    “This agreement, made this 13th day of July, 1922, by and between Charles Richardson and Harriet Richardson, his wife, hereinafter designated as party of the first part (whether one or more), and C. B. Hogan and W. H. Strong, of Denver, Colo., hereinater designated as party of the second part (whether one or more).
    “Witnesseth: That said party of the first part, for and in consideration of one ($1) dollar, and other good and valuable considerations given by party of the second part, hereby agree to sell and deliver by warranty deed an undivided one-half (y2) interest in and to ail of the oil, gas and other minerals in, under and upon the following described lands lying within the county of Ouachita and State of Arkansas, to-wit: NE% and Ey2 of NW1^ of sec. 29, twp. 15 south, range 15 west, containing 240 acres, more or less; subject, however, to a certain oil, gas and mineral lease executed by party of the first part on the-day of-, 19’ — , unto Sid Umstead on said lands, which lease is recorded in said county, and for the said consideration party of the first party agrees hereby to grant and convey unto the said party of the second part, and unto his heirs and assigns, the right to collect and receive, under the aforesaid lease, such undivided one-half (y2) part and interest of all oil royalties and gas rentals due us, or that may become due us under-the aforementioned lease.
    “It is agreed that said party of the first part shall personally deliver an abstract of title to party of the second part, brought down to date of delivery, showing a good, marketable and record title in parties of the first part, and to allow attorney for party of the second part reasonable time after delivery to examine same, and, in the event any defects are discovered in this abstract. party of the first part shall have time to cure same, and in the event party of the first part do not correct these defects pointed out, the said party of the second part shall be allowed additional time to correct same if he so elects.

      “The said party of the second part, upon acceptance of title to the above described oil, gas and mineral royalty, shall place to the credit of the party of the first part, in the First National Bank of El Dorado, Arkansas, the snm of six thousand ($6,000) dollars, a receipt of which shall be sufficient acknowledgment of payment.
    “Witness our hands and seal this 13th day of July, 1922.
    (Signed) ‘ ‘ Chas. Richardson, her
    “Harriet x Richardson. mark
    “Witness to signature: J. Morgan Russell.” •
    The instrument was duly acknowledged and filed for record.
    As Frank Staples, the agent of Hogan and Strong, was leaving, Charles Richardson stated that he wanted the receipt to show that, unless Hogan and 'Strong exercised the option and took the property, he would get his royalty back. Staples then executed to him the following:
    “This is to certify that the agreement made between Chas. Richardson and wife and C. B. Hogan and W. H. Strong is not a dea.1 unless ($6,000) six thousand dollars is deposited to their credit in First National Bank of El Dorado, Arkansas, according to the agreement herein.
    “C. B. Hogan,
    “W. H. Strong.”
    According to the testimony of Charles Richardson, the company'was drilling a well on his land at the time he signed the option contract, and the well was down about 1,700 feet. About five days after the option was executed Charles Richardson went to El Dorado to get the $6,000 which he understood was to be deposited in a bank to his credit by that time. He found that Hogan and Strong had not exercised their right to purchase under the option contract; but that they had filed it for record. On the 20th day of July, 1922, the plaintiffs brought this suit as above stated to cancel said option contract as a cloud upon their title. The evidence shows that the option was worth $3,000.
    Other facts appear in the record, but, inasmuch as they have no bearing on the issues raised by the appeal, we do not deem it necessary to state them.
    After hearing the evidence the chancellor was of the opinion that the prayer of the plaintiff’s complaint should be granted, and that the prayer of the defendants’ cross-complaint should be dismissed for want of equity.
    From a decree entered of record in accordance with the finding of the chancellor, the defendants have duly prosecuted an appeal to this court.

      Powell, Smead do Knox, for appellants.
    1. One who signs a contract after opportunity to examine it cannot be heard to say that, when he signed it, he did not know what it contained. 71 Ark. 185; 78 Ark. 177; 105 Ark. 37; 110 Ark. 632; 119 Ark. 553. Even though ignorant, he is bound under the law to know the contents of the paper signed by him. 109 Ark.. 537. The evidence does not support the contention of appellees that it was agreed that they would be paid the six thousand dollars in three days; but such evidence was not competent, since its effect was to vary the terms of the written-contract. 142 Ark. 234; 150 Ark. 428; 140 Ark. 384; 10 R. C. L., §§ 208, 209; 203 Mass. 122, 89 N. E. 189.
    2. Appellees cannot seriously urg’e, on appeal, the want of mutuality in the contract. That is the distinguishing element of an option contract, which the contract involved -here is. 27 R. C. L., par. 31,- Options.
    3. Appellees contend that, because no definite time was fixed in which appellants must exercise their option, the contract is not enforceable. It is clear that the parties contemplated that each should have a reasonable time in which to perform their respective obligations, but, if no time was fixed in the contract, the law would imply a reasonable time. 150 Fed. 85; 48 S. W. 1106; 75 N. E. 482: 51 N. E. 614: 64 So. 51; 73 Atl. 694; 155 Pac. 460: 73 S. E. 253; 14 S. E. 249; 64 Atl. 938. Until appellees tendered performance on their part, they conld not insist that appellant did not act within a reasonable time. 108 N. Y. 168; 72 N. E. 947.
    4. As to whether or not a nominal consideration of one dollar is sufficient to support an option contract, it appears that this court has not passed directly on that point. True, in Jones v. Lewis-, 89 Ark. 368, the court seems to hold that it is not a good and valid consideration, but, in that case, no consideration was paid at all. The great weight of authority in this country is contrary to that holding, and upholds the nominal one-dollar consideration as sufficient to support the contract, especially if under seal. R. C. L. 27, Vendor and Purchaser ; 70 So. 680; 97 Pac. 163; 82 N. E. 645; 129 N. W. 425; 103 Va. 230; 48 S. E. 891; 51 N. E. 580; 27 Fed. 828; 168 N. W. 486; 97 S. E. 654; 186 Pac. 437; 100 S. E. 644; 178 N. W. 696; 181 N. W. 945.

      T. J. Gcmghom, J. T. Sifford, J. E. Gaughan and Elbert Godwin, for appellees.
    1. The contract lacks consideration, and therefore cannot be enforced. Whatever the rule of law in other States, it is settled in this State that courts of equity will not enforce voluntary contracts, nor validate voluntary conveyances by reformation. 15 Ark. 519; 80 Ark. 458; 44 Ark. 182; 127 Ark. 54; 152 Ark. 387.
    2. Treating the contract as an option, appellee was clearly within his rights in withdrawing from the option before its acceptance, the consideration therefor being merely nominal. 6 L. R. A. (N. S.) 403 and case note; 21 L. R. A. (O. S.) 127; 10 L. R. A. (N. S.) 195; 86 S. W. 558; 121 Fed. 674.
    3. Equity will not enforce an unconscionable contract. 6 Pomeroy, Eq. Jur. par. 785.
    ■ 4. No time limit having been fixed in the option for its acceptance, it was subject to being- withdrawn by the optioner at any time. 121 Fed. 678; 21 L. R. A. (O. S.) 129, note; 31 Minn. 512; 56 111. 204; 96 N. Y. 565; 5 N. Y. S. 866; 87 Ky. 91.
   Hart, J.,

(after stating the facts). The parties to this suit concede that the written instrument copied in our statement of facts, which is the basis of this lawsuit, is an option contract, within the rule laid down in Indiana & Arkansas Lbr. & Mfg. Co. v. Pharr, 82 Ark. 573, and we shall so treat it.

The consideration recited in the option contract was one dollar, and the defendants did not complete the contract by the payment of the $6,000 recited in it before the plaintiffs withdrew their offer.' There is some conflict in the authorities as to whether or not there must be a valuable consideration for the option to render it more than an offer revocable before acceptance, but this court has recognized the rule to be that a recited consideration of one dollar is merely nominal, and that the offer may be revoked at any time before it is accepted. Jones v. Lewis, 89 Ark. 368.

In the earlier case of Greenfield v. Carlton, 30 Ark. 548, the court recognized that, in a complaint to enforce the specific performance of a contract for the sale of land, among other things, it was necessary to allege the execution of a binding agreement for a sufficient consideration.

Again, in Ashcraft v. Tucker, 136 Ark. 447, the court said that it is well settled in this State that an option contract, based upon a valuable consideration, does not lack mutuality, and that equity will compel the specific performance of such a contract when it has been accepted by the party seeking to enforce it.

The distinction between an option for the sale of land for a nominal consideration and one for a valuable consideration is that the former is merely an offer to sell and may be withdrawn at any time before acceptance, upon notice to the vendee; but in the latter, where a valuable consideration is paid for the option, it cannot be withdrawn by the vendee, before the expiration of the time specified in the option. Ide v. Leiser (Mont.), 24 Am. St. Rep. 19, and Cummins v. Berners (Va.), 106 Am. St. Reps. 881.

The reason for the distinction in the two classes of cases is clearly stated by Judge Lurton in Bradford v. Foster, 87 Tenn. 4, as follows: “Before acceptance such an agreement can be regarded only as an offer in writing to sell upon specified terms the lands referred to. Such an offer, if based upon no consideration, could be withdrawn by the seller at any time before acceptance. It is the acceptance, while outstanding, which gives an option not given upon a consideration vitality. If, however, an offer to sell is made in writing, and, for a valuable consideration, time is given within which it shall stand open for acceptance, such an option is irrevocable. It is based upon a consideration, and has all the elements of a contract. Such a contract is a conditional agreement. Upon the vendee accepting the offer, a contract of sale between the parties is complete.”

The contract in the case at bar was a mere option given by Charles Richardson and wife to C. B. Hogan and W. H. Strong to purchase an undivided one-half interest in all of the oil, gas and other minerals in 240 acres of land, and there was no consideration to support the contract until Hogan and Strong should accept the offer of Richardson unless one dollar should be considered a valuable one. It would be therefore in the power of Richardson to withdraw his offer before it was accepted if the consideration was nominal, and he in effect did withdraw it by bringing the present suit.

It was conceded that an option to purchase land without consideration may be withdrawn at any time before acceptance, and that an option founded upon a valuable or adequate consideration cannot be withdrawn before the time specified therein has expired. This is the settled rule in this State, as will be readily seen by reading our cases cited above.

It is insisted by counsel for appellant, however, that the sum of one dollar named in the option contract is a valuable, or at least an adequate, consideration. The authorities on this point are in direct conflict, and we do not deem it necessary to cite or review them in this opinion. We consider that the better reasoning and the right of the matter is that one dollar is not an adequate consideration for such an option. It is merely a nominal consideration, and should be disregarded by a court of equity. It cannot be said that the consideration for the option extends to and includes the purchase price named therein. The persons to whom the option was given were not to take possession of the property, nor were they to make any improvements thereon. The sole consideration for the option was the sum of one dollar.

In this respect the case. is different from that of Lawrence v. MaHioney, 145 Ark. 310. There the court had under consideration an oil and gas lease which recited a consideration of one dollar, and an agreement by the lessee to drill an oil and gas well within a stipulated time. The obligation on the part of the lessee to drill the oil and gas well within a given time, or to pay an additional rental, constituted a substantial consideration to support the lease contract. The object on the part of the lessor was to have his property developed as oil and gas property, and the lessee agreed to develop it by drilling an oil and gas well on it.

It is not so in the case at bar. The option stated the terms and conditions on which the owner was willing to sell an interest in his land; but it was a mere proposal to sell the land until its terms were accepted. The holder of the option was not bound to do anything except to pay one dollar. This consideration was purely nominal and was infinitesimal in amount when compared with the value of the right granted.

It results from the views we have expressed that the court was right in dismissing the cross-complaint for want of equity and in granting the prayer of the complaint.

Therefore the decree will be affirmed.


author: Smith, J.

text:
    St. Louis Southwestern Railway Company v. Rogers.
    Opinion delivered December 8, 1924.
    1. Master and servant — death of servant — evidence.—In an action for the death of a railroad brakeman, evidence held to sustain a finding- that deceased was killed while under a freight car repairing a leaking air valve of the train.
    2. Master and servant — duty of engineer to give warning. — In an action for the death of a brakeman killed while repairing a defective air valve, evidence held to sustain a finding that it was the engineer’s duty to signal a warning to the brakeman of his intention to start the train.
    3. Master and servant — death of servant — proximate cause.-— In an action for the death of a ¡brakeman killed when the train was moved while he was repairing-a defective air valve, evidence held to sustain a finding that the engineer’s starting the train without a signal was the proximate cause of the brakeman’s death.
    4. Master and servant — death of servant — contributory negligence. — In an action for the death of a brakeman, killed when the train was moved while he was repairing a leaking valve, evidence held to support a finding that he exercised due care for his own safety.
    5. Master and servant — death of servant — instruction.—In an action for the negligent killing of a railroad brakeman, where the answer alleged that deceased’s negligence was the sole cause of the injury, it was not error to give an instruction defining contributory negligence, since the jury might have found defendant guilty of contributory negligence, though it was not pleaded.
    6. Master and servant — negligence of engineer in starting train. — Where an engineer, under defendant’s operating rule, was not permitted to start his train except upon signal from a brakeman, mere blowing of the whistle by the engineer in the usual way as a signal of intention to start the train held not, as matter of law, to excuse the starting without signal from the injured brakeman, in the absence of a showing that he heard the signal:
    7. Trial — construing instructions together. — In an action for the negligent killing of -a brakeman, who died shortly after his injuries, where plaintiff’s instruction authorized a recovery for conscious pain and suffering, and defendant’s instruction stated that no recovery could be had -for pain and suffering if the latter was contemporaneous and incidental to death, held that there was no conflict between the instructions.

      8. Trial — oral instructions — efeect of withdrawal. — The giving of oral instructions to the jury was cured by withdrawing them and submitting the case upon written instructions.
    Appeal from Prairie Circuit Court, Southern District; George W. Clark, Judge;
    affirmed.

      J. B. Turney and Lamb & Frierson, for appellant.
    There is no presumption of negligence in this case, and plaintiff cannot recover in the absence of negligence by defendant. 62 L: ed. 167. Independently of the Federal statute, plaintiff could not recover without proof of negligence, since deceased was a member of the 'train crew by whose alleged negligenec the injury was caused. 100 Ark. 467. It was incumbent upon the plaintiff to negative any inference that the injury resulted from a danger or cause for which the defendant was not responsible and to take the case out of the realm of speculation and conjecture, and if, from the evidence, it appears that the injury might have been due to a cause for which the defendant was not responsible as well as to one for which it was, there can be no recovery. 109 Ark. 206; 116 Ark. 56; 105 Ark. 161; 35 N. E. 89; 105 N. W. 197; 64 111. App. '249; 158 Mass. 36; 113 Mich. 582; 20 N. Y. 65; 58 N. J. L. 658; 117 Ind. 439 ; 28 Wis. 522; 10 Or. 161; 18 Atl. 334. Instruction No. 4 did no.t correctly define contributory negligence. It can only exist as a coordinate or counterpart of or with negligence on the part of the defendant, of which there was none. 38 Fed. 711; 156 Cal. 58; 112 La. 599; 153 Ind. 163. Instruction No. 5, after allowing damages to the widow and child for pecuniary benefits, also allowed further damages for. the. physical pain and anguish suffered1 by deceased, which was error. 237 U. S. 48. It was in conflict with instruction No. 10.

      Tom Campbell, and Pace & Davis, for appellee.
    In testing the legal sufficiency of evidence to support a verdict for a plaintiff, it must be considered in the light most favorable to plaintiff. 131 Ark. 593; 131 Ark. 509; 133 Ark. 30; 147 Ark. 159; 157 Ark. 409; 158 Ark. 598. It is not necessary for the facts to establish negligence conclusively, but is sufficient if negligence may be fairly inferred therefrom. 107 Ark. 486; 103 Ark. 61. A cause will not be reversed on appeal where there is any substantial evidence to support it. 129 Ark.. 369. Instruction No. 4 correctly defined contributory negligence under the following decisions: 77 Ark. 367; 101 Ark. 376; 78 Ark. 103. Instructions 5 and 10 were not conflicting. They are supplementary and must be considered together. 133 Ark. 206; 147 Ark. 302; 158 Ark. 639.
   Smith, J.

Appellee brought suit under the Federal Employers’ Liability Act to recover damages on account of the alleged negligent killing of E. L. Eogers, while employed as a brakeman by the appellant railroad company, on the night of September 6, 1921.

Eogers was the head brakeman on a” freight train running from Stuttgart to Jonesboro, and his train had been ordered to take the passing track about one mile north of Stuttgart for the purpose of giving the right-of-way to a passenger train. Eogers was last seen alive by the engineer of the train, swinging on the ladder of a boxcar about five-lengths from the engine, with his lantern in his hand. At that time he was on the east or right side of the train, and his mangled body was found on the left or west side of the train, where he was next -seen by any of the witnesses who testified in the case. How, when or for what purpose Eogers crossed over the train or under it is -one of the controlling facts in the case.

It is the theory of the defendant railroad company that, in some unexplained way, Eogers fell or was knocked from the train while it was pulling in on the passing-track. In support -of this theory the defendant urges the following facts: The train whs 63 cars in length, and Eogers’ duty was at the head or front of the train, near the engine, and he had no duty to perform at the rear of the train, and it is not affirmatively shown that he was performing any duty there. As the train pulled in on the mssing track, it was discovered that there was a leak in the airline running under the cars, and Mitchell, the conductor, discovered a car where this condition existed, and directed Yeargan, one of the brakemen, to repair or adjust this leak. There 'is no affirmative testimony that there was any other leaking air valve in the train. Bogers had opened the switch to the passing-track, and was last seen near the engine, riding the train as it pulled into the passing-track. No member of the train crew saw him go to the rear end of the train, and no one knew that he had done so until his body was found. Indeed, it is the theory of the defendant railroad company that he liad not gone there at all, but had fallen from the train, or crossed under it, and had been run over and mangled, and that the train passed on over his body until the engine was near the north end of the passing-track, thus leaving Bogers’ body at the rear of the train when it stopped. In further support of this theory it is pointed out that Bogers’ foot was found 32 fail lengths north of the place where the body was found, thus indicating that it had been caught on the wheels and the amputated foot had been carried along the moving train until it finally fell from the wheel. Plaintiff admits that the foot was found the distance stated from the body, but insists that this fact does not tend to show that Bogers was not killed by the second movement of the train, that is, after the train had come into the passing-track and had started to pull out of this track on to the main line, and that the foot hung on the brakebeam or other attachment of the trucks until the train started to leave the next morning, when it was jostled loose and fell to. the ground, when the car was moved 32 rail lengths north of where the hodj^ was found.

The testimony shows that, when a freight train stops, it is the duty of the brakemen to look for hot boxes, leaking air valves, broken brakebeams, or other trouble with the train equipment, and it is the theory of the plaintiff that the leaking valve which Conductor Mitchell told brakeman Yeargan to repair was not the only leaking-air valve, and that, when Bogers causht the car near the enaiue. he went over to the west, or left, side of the train, and dropped off the car on which he was last seen riding. and there waited for the oars to pass by, as the train rolled through the passing-track, searching for a leak; that Yeargan repaired the leak pointed out to him by Mitchell, which was near the middle of the train, and Rogers, seeing Yeargan on the car where the known leak existed, permitted the train to pass on until another leak was discovered. The presence of a leak was discoverable by the hissing sound made. No leak was discovered by Rogers until about the fifteenth car from the rear of the train passed, and Rogers caught this car and rode it until the train stopped, and then went under the train from the west side of the train to repair the leak, as Yeargan had done to repair the one near the center of the train.

On behalf of the defendant railroad company it is insisted that this is all surmise and conjecture, and that there was no testimony upon which the jury could find the facts so to be. One reason for this insistence is that only one leak was found, and that was the one which Yeargan repaired.

We do not think, however, that this theory is mere surmise. On the contrary, there is substantial testimony upon which to base it. One significant fact is that, although it is insisted that only one leak was admitted to exist 'by the train crew who testified on behalf of the railroad company, there was great difficulty in moving the train on to the passing-track, and difficulty was also experienced in starting the train as it moved to pull out of this track, and the witnesses testified that this resulted from the brakes locking on account of escaping air. Another circumstance even more significant is that, when the body of Rogers was found, his hat and lantern were found near his body in the center of the track on which he was killed. There were no bruises about Rogers’ body above his waist, except a- small scratch on his forehead which did not break the skin. The hat, a straw one, ■ was undamaged, and the lantern, which was also undamaged, was setting upright, although it was extinguished. The earth was disturbed where the hat was found in a manner which looked as if it had been.done by one’s heel.

These circumstances tend strongly to refute the theory that Rogers had fallen between the cars, and the jury was warranted in finding that these circumstances support the theory that Rogers was engaged in repairing, or had just completed repairing, a leak under the car where he had been working.

It will be borne in mind that no one saw Rogers killed, yet he was killed, and the testimony establishes the fact that he was an efficient and faithful' servant, thoroughly cognizant of his duties, and thoroughly familiar with the rules under which trains operated, and one of his f ellow-brakemen testified that he was a man who always did his part.

• We are unable therefore to say that the finding by the jury that Rogers was, in fact, engaged in repairing a leak was mere surmise or conjecture.

In the case of St. L. I. M. & S. R. Co. v. Hempfling, 107 Ark. 476, we said: “In actions for damages on account of negligence, plaintiff is bound to prove not only the negligence, but that it was the cause of the damage. This causal connection must be proved by evidence, as a fact, and not be left to mere speculation and conjecture. The rule does not require, however, that there must be direct proof of the fact itself. This would often be impossible. It will be sufficient if the facts proved are of such a nature and are so connected and related to each other, that the conclusion therefrom may be fairly inferred. ’ ’

It is very earnestly insisted that plaintiff’s instruction numbered 1, which summarized the theory upon which a recovery was sought, was erroneous, and prejudicial. It reads as follows: “In this case, if you find from a prenonderance of the evidence that the deceased, E. L. Rogers, was injured while in the employ of the defendant as a brakeman, assisting* in the operation of a freight train from Pine Bluff to Jonesboro, Arkansas, and that, while said train was standing on the sidetrack at Stuttgart. said E. L.‘Roa*ers, in the performance of his dutv, went between two of the cars in said train to fix the airline on said train, and that, while he was so engaged, the engineer carelessly and negligently, and without warning to the said E. L. Rogers that he was about so to do, started said train and ran the .same over the said E. L. Rogers and injured him, and that, as a result of said injuries, the said E. L. Rogers thereafter died, and that the said engineer thereby failed to exercise ordinary care to avoid injuring the said E. L. Rogers, and that the act of the engineer in starting said train (if you find from a preponderance of the evidence that he did so start the train) was the proximate cause of the injury, and that the deceased at the time was exercising ordinary care for his own safety and had not assumed the risk, you will be authorized to find for the plaintiff, and assess damages at such a sum as will, from the evidence, fully compensate for the injuries received.”

Specific objections were made to this instruction:

(1) . That there was no evidence tending to show that Rogers went between any two cars of the train to fix an air-line.
(2) . That there was no evidence tending to show that it was the duty of the engineer to warn Rogers before starting the train, other than by giving the signals shown to have been given.
(3) . That the failure to give the signals as shown . by the evidence would not have been the direct or proximate cause of the injury.
(4) . That there is no evidence to show that Rogers was exercising any care for his own safety.
(5) . That there is no evidence tending to show that there was any defect in any air-line.

A discussion of these objections will dispose of the princiual questions raised on this appeal.

We think it was not mere speculation or conjecture for the jury to find, from the facts herein stated, that Rogers, in the performance of his duty, had gone under a car to fix the air-line.

Upon the second objection to the instruction it may be said that the testimony shows that an operating rule of the railroad company prohibited the engineer from moving’ the train unless and until some member of the train crew signaled him so to do. Had Eogers not been killed, it would have been his duty to open the switch at the north end of the passing-track to admit the passage of the .train on to the main line, and it would have been the duty of the end brakeman to close this switch. The fireman himself opened this switch, being furnished a key thereto by the engineer for that purpose. No signal was, in fact, given to start the train, although the engineer and fireman testified that they looked down on the west side of the train, which was the fireman’s side, and saw a man with a lantern advancing towards the engine. This man was brakeman Yeargan, but the engineer and fireman supposed it was Eogers, and that he was coming to the end of the switch, and that they saw a motion of the lantern Yeargan carried which they mistook for a signal, although they virtually admitted, on their cross-examination, that they were mistaken in assuming that a signal was given. At any rate, Yeargan, the man seen advancing with the lantern, testified positively that he gave no signal,, so the jury was warranted in finding that no signal was given for the train to start. The testimony shows that there was trouble with the air-line. This was evidenced by the difficulty in moving the train, and the testimony further shows that the existence of such trouble would be registered on a gauge in the engine. After tibie train had been standing for ten or fifteen minutes, the engineer blew four blasts of the whistle, which was a signal to the crew that the engineer was awaiting orders, and after doing this, and after seeing Yeargan come up the track, the engineer blew two blasts of the whistle, which was a signal that he was about to move forward.

We think, from this testimony, -the jury was warranted in finding that there was trouble with the air-line, and that the engineer knew this fact, and should have known that an effort would be made to remedy this trouffie. Indeed, the fireman testified that, after waiting about ten 'minutes for a signal, he said to the engineer: “They have all been busy back there, and I will line the switch up,” and if it be true, as the jury might have found from the testimony recited, that the engineer knew that the train crew were engaged about the train, then the jury was warranted in finding that the engineer should have given warning that he was about to start the train, especially so if he had received no signal to start it.

As to the objection that the failure of the engineer to signal that he was about to start the train was not the proximate cause of the injury, it may be said that, if Rogers was, in fact, engaged in repairing a leak at the time he was killed, the starting of the train was the proximate cause of his death, as he had the right to assume that the engineer would not start the train until he was signaled so to do. Of course, if a signal had been given to start, obedience thereto would have exonerated the engineer from the charge of negligence, and the question which would then have been presented would have been whether the signal to start was negligently given. But, as the train started without any signal so to do, we think the jury was warranted in finding that this negligent act was the proximate cause of the injury.

As to the objection that there was no evidence that Rogers was exercising any care for his own safety, it may be said that the jury, in determining this question, might have concluded that Rogers was in the exercise of due care, in that he was performing a duty incumbent upon him as brakeman, and that it was not negligence for him to be engaged in the discharge of this duty, inasmuch as it was his duty to open the switch for the train to leave the passing-track, a fact known to the engineer, and that he had the right to assume that no other member of the train crew would attempt to discharge this duty of his without knowing why he did not do so himself.

As to the last objection, that there was no evidence that there was any defect in the air-line in the rear of the train, where Rogers was killed, we think it appears, from the testimony set out above, that the jury might have found -this was not mere speculation or conjecture, It is true, Conductor Mitchell and rear brakeman Crowder testified that there was no such defect, that the inspection made after the injury disclosed none, but their testimony at the trial is not in harmony with the testimony given by them on this subject in depositions taken before the trial, and we cannot say that it was arbitrary for the jury to refuse to accept as true their testimony at the trial, that there was no leak in the rear of the train for Eogers to fix. Besides, Eogers might have finished the job of adjusting the leak which called him. under' the train before he was killed.

The court gave an instruction on the question of contributory negligence, to which the defendant objected on the grounds that the instruction did not correctly define that defense, and also that no such issue had been raised by the pleadings. We do not think either objection is well taken. The instruction is in a form which has frequently been approved by this court, and we think no prejudicial error was committed in giving the instruction on that subject, although the defendant did not plead contributory negligence. The answer alleged that the negligence of Eogers was the sole cause of his injury. Of course, if this were true, there was no question of contributory negligence. But the jury might have found that the railroad company was guilty of negligence, in which event the question would naturally arise whether Eogers was not also guilty of negligence contributing to his injury, and it was not therefore improper for .the court to declare the law of that subject.

The defendant asked an instruction numbered 9 to the effect that, if the jury found that it was not the duty of the engineer to learn or know where Eogers was, and that, before starting the train, the engineer gave two distinct blasts of the whistle, and that such blasts were the usual and well-known signals that the train would start, and that ample time was given, after so blowing the whistle, for Eogers to have gotten into a place of safety, that there was no negligence on the part of the engineer in sfarting the train.

We think no error was committed in refusing this instruction. If the engineer had no right to start the train without a signal, and if it was negligence so to do, then it could not be said as a matter of law that merely blowing the whistle absolved the act of starting the train without a signal of its negligent character. It will be observed that the instruction did not impose the requirement that Rogers heard or should have heard the whistle.

An instruction numbered i3, requested by defendant, embodied this same idea; but this instruction which was given, was modified to impose the requirement that deceased heard the whistle, or, by the exercise of ordinary care for his own safety, should have heard it. We think no error was committed in thus modifying the instruction. Without this modification the engineer could move his train in violation of an operating rule of the company that he should not do so except upon signal, and be excused from the charge of negligence, if he, in fact, gave a signal that he was going to do so in time for the persons who knew the significance of the signal to .reach places-of safety Ly exercising reasonable care to do so, whether they heard the signals or not. This is not the law.

In instruction numbered 5, given at the request of the plaintiff, the jury was told, if they found for the plaintiff, that “you will also assess further damages for such a sum as will reasonably compensate for the physical pain and mental anguish suffered and endured by Rogers as a result of said accident, if any, from the time of the alleged injury until his death.”

The specific objection made to this instruction, in addition to the one that there was no evidence entitling plaintiff to recover, was that if, after Rogers was injured, he was conscious to any extent, such consciousness continued but for a few moments, and his expressions of pain and suffering were practi.callv contemporaneous with his injury and death, there could be no separate award on that account.

The court gave on this subject, at the request of defendant, an instruction numbered 10, reading as follows: “If you find from the evidence that the time between the injury and death, of Rogers was but a few minutes; that he was conscious during any part of such time, and experienced pain and suffering, but that this period and the pain and suffering were substantially contemporaneous with his death and were incident to -it; that the injuries sustained were such as to necessarily result in death, and that death did follow in close, natural and necessary sequence, notwithstanding there may have been moments of sensibility, then you cannot find any separate verdict or award any separate amount on account of such pain and suffering.”

This instruction numbered 10 conforms to the law as thus announced by the Supreme Court of the United States in actions for damages under the Federal Employers ’ Liability Act, in the case of St. L. I. M. & S. R. Co. v. Craft, 237 U. S. 648, 59 L. ed. 1160, 18 R. C. L., title Master and Servant, § 326, and it would, of course, be erroneous to give an instruction in conflict with it. We think, however, the two instructions may be read together, and that, when this is done, there is no conflict between them. The plaintiff’s instruction told the jury that there may be a recovery for conscious pain and suffering, and this is permitted'under the Federal statute. The defendant’s instruction numbered 10 modifies this statement by advising the jury that there can be no recovery if such pain and suffering is contemporaneous and incidental to • death. ’ The defendant’s instruction dealt only with the exception when such a recovery would be denied, and it will therefore be regarded as a modification of the plaintiff’s instruction. It would have been a better practice to have combined the two into a single instruction stating the rule and-the exception thereto, but this was not requested.

It is also insisted that there was no testimony to support the finding that Rogers suffered consoiouslv. But we are unable to say that this was not a question for the jury. Bogers lay mangled for some minutes before he was discovered. He was found by rear brakeman Crowder after that employee had left the caboose to. ascertain the cause of the delay in starting the train. When Crowder found Bogers, he reported Bogers’ condition to the conductor, who ordered Crowder to out loose a refrigerator car, or a freezer, as the train crew called it, near the head of the engine, and to back it down to where Bogers was for the purpose of'putting Bogers on the cot which had been procured, and carrying him back to Stuttgart for medical treatment. The testimony is to the effect that, when the train crew came up to Bogers, he appeared to be suffering. He was asked how he had got hurt, but he made no reply. The conductor testified as follows:' “When I first reached Bogers, and before I started to find Yeargan, he raised himself up to a sitting position, and I caught him by the shoulders and spoke to him, and asked him how he got hurt. He looked at me, but spoke no word. He sort of wrenched himself out of my hands and turned over on his right side. Then he raised up again to a sitting position. I spoke to him again, and again asked him how he got hurt. He just looked at me, and never did say a word. Then he turned over on his right side and exclaimed, ‘Oh, Lord!’ ”

Other members of the crew testified to substantially the same effect, and we cannot say therefore that there was no testimony that Bogers did not suffer any pain except the expiring agony of death.

At the conclusion of the argument the court gave an oral instruction, to which the defendant objected. The bill of exceptions recites that Mr. Pace, of counsel for plaintiff, “then requested the court, since objections had been made by Mr. Lamb, attorney for the defendant, to the oral statements to the jury by the court, that the court withdraw these statements from the jury and let the jury decide the case noon the written instructions that had heretofore been read to the jury. Thereupon the court agreed to do this, and said to the jury: ‘I will read you again the written instructions, which are the rules of law that shall govern you in your deliberations in this case, and they are the only instructions that you are to consider in the case.’ The court then read again the written instructions given in the case. Mr. Lamb then stated: ‘I want the oral instructions written out and read to the jury, and then have the court to tell the jury that they are not to consider them as part of the instructions in the case.’ The court said: ‘I have told them that the instructions as given them now are the only instructions that they are to consider in this case.’ Mr. Pace said: ‘You mean by that that these last instructions are the only ones that they are to consider in this case?’ The court said: ‘Yes, sir; and I also told them, in the last statement made, and I now tell them, that the instructions I just read to them, and the evidence in this .case, is the only guide they shall consider in arriving at their verdict in this case.’ After the jury retired, Mr. Lamb stated to the court: ‘And the court refuses to recall the jury and tell them that the oral instruction is specifically withdrawn?’ The court answered: ‘They were withdrawn bv the declaration of' the court to the jury heretofore made.’ ”

The defendant then excepted to the action of the court in refusing to recall the jury and state to them specifically that the oral instruction had been withdrawn.

We think it sufficiently appears, from the recitals of the record set out above, that the oral instruction given by the court had been withdrawn and that the case was submitted to the jury under the written instruction only, and that this removed anv prejudice there may have been in having given the oral instruction.

Numerous exceptions to the giving and to the refusal to give other instructions are argued; but, as they relate to questions which have been frequently nassed upon by this court, we do not discuss them. It suffices to say that we find ho error in the particulars stated.

The case .is a close one on the facts, but, considered in its entirety, we think that the inferences could be drawn from the testimony recited raising the issues herein discussed for the decision of the jury, and, as we find no prejudicial error, the judgment is affirmed.


author: Humphreys, J.

text:
    Pacific Mutual Life Insurance Company v. Smith.
    Opinion delivered December 8, 1924.
    1. Insurance — notice óf accidental death. — Under an accident policy requiring notice of -assured’s death as soon as reasonably possible, proof that assured’s wife, who was the beneficiary, immediately after the burial was in run-down condition and went to her mother’s home and did not give the insurer notice of assured’s death until her return seven days later, held to sustain a finding that notice was given as soon as reasonably possible.
    2. Appeal and error — instruction—necessity of specific objection. — -An instruction enumerating the wife’s “bereavement” as a circumstance to be considered in determining the reasonableness of the notice of deceased’s death was not open to a general objection.
    3. Trial — instruction—general objection. — A party objecting to the use of a certain word in an instruction should call the court’s attention thereto by specific, and not by general, objection.
    4. ' Insurance — accidental injury- — proximate cause. — Under a policy insuring against death resulting from accidental injury as proximate cause of death, it was immaterial whether other causes contributed to the death if the accident was the proximate cause thereof.
    5. Insurance — notice of injury. — Where.insured’s wife was beneficiary only under the “death clause,” and not under “loss of time clause,” upon death of insured resulting from accidental injury, the wife, under terms of the policy, was not required to give notice of the accidental injury within 20 days after the accident, but only notice of assured’s death.
    Appeal from Boone Circuit Court; J. M. Shinn, Judge;
    affirmed.

      Marvin Hathcoat, for appellant.

      Shouse do Rowland, for appellee.
   Humphreys, J.

Appellee instituted -this action against appellant in the circuit court of Boone County to recover $1,000 upon a policy of accident insurance issued by appellant to' her husband, Bean Y. Smith, by the terms of which appellant agreed to pay appellee said sum in case her husband should die from accidental means during the life of the policy. It was alleged in the complaint that, on the 22d day of December, 1922, during the life of the policy, the insured sustained, by accidental means, a sprain to his ankle, which resulted in his death on the 5th day of February, 1923; that the beneficiary had duly performed all the conditions of the policy and was entitled to recover the face value thereof, together with interest, penalty, and attorney’s fees.

Appellant filed an answer admitting the issuance of the policy, but denying liability thereon for the alleged reasons, first, that- the insured did not die on account of the sprain to his ankle caused by accidental means, and second, that appellee failed to comply with a provision in the policy that appellant be given immediate notice in case of the accidental death of the insured.

The cause was submitted to a jury upon the pleadings, testimony introduced by the parties, and instructions of the court, which resulted in a verdict and consequent judgment in favor of appellee in the total sum of $1,335, from which is this appeal.

The policy contained the following clauses with reference to notice of the accident and death of the insured:

“Written notice of injury on which claim may be based must be given to the company within twenty days after the date of the accident causing’ such injury. In case of accidental death immediate notice thereof must be given to the company. The failure to give the notice within the time shall not invalidate the policy, provided it be shown that it wa.s not reasonably possible to give such notice, and if notice be given as soon as is reasonably possible to give it.”

The testimony introduced by appellee tended to «how that-the insured died as the result of an accidental injury to his ankle, and that introduced by appellant tended to show that his death resulted from an inflammation around the left kidney.

The undisputed testimony revealed that the insured died on the 5tJi day of February, 1923, after having sprained his ankle on December 22, 1922; that he was buried on the 6th day of February, 1923; that, immediately after the funeral, appellee, on account of her distress and run-down condition, due to ill health and waiting on her husband, went to her mother’s home in the country, where she remained until February 12, at which time she returned to her home, and notified appellant of her husband’s death.

The court sent the cause to the jury upon instructions which in effect told them that, in order to recover on the policy, the burden was upon appellee to prove by a preponderance of the evidence that the death of the insured resulted from the sprain to his ankle, and that notice of his death was given to appellant as soon thereafter as was reasonably possible under the circumstances in the case.

Appellant contends that, under the terms of the policy, immediate written notice of the death of the insured was a necessary prerequisite to the recovery on the policy. We think not, for the policy itself, in another clause, provided that' the requirement for immediate notice is sufficient “if notice be given as soon as is reasonably possible to give it. ” We think the jury was warranted in finding that appellee gave the notice as soon as she could have reasonably done so, under the circumstances in the case. Appellant condemns instruction No. 4, given by the court, however, because, in enumerating the circumstances which the jury might consider in determining whether she gave the death notice in time, he mentioned her bereavement. Of course, her bereavement could not excuse her from complying with the terms of the policy, but we think the word “bereavement” did not nreiudice appellant. The iurv.was warranted, from the short time that elapsed before the death notice was p-iven. the visit to her mother for a few days immediately affe-*’ the funeral, and her general condition of health, in finding that she gave the notice as soon as she could reasonably have done so. Had appellant thought the use of the word “bereavement” would prejudice him he should have called the attention of the court thereto by a specific objection to the word and not by a general objection to the whole instruction.

Appellant’s next and last contention for a reversal of the judgment is that the court erred in refusing to give instruction Nos. 2 and 3 requested by it. These instructions were the converse of the instructions given by the court. They did not present a different theory from that expressed in the instruction which the court gave, but simply changed the form of the instructions. The instructions requested were also erroneous in that they told the jury that, if they should find that some disease, or something other than the injury, contributed to the the death of the insured, they must find for appellant. If the accidental injury was the primary or approximate cause of the death of the insured, it made no difference whether other things contributed to his death. Fidelity & Casualty Co. v. Meyer, 106 Ark. 91; French v. Fidelity & Casualty Co. of N. Y., 17 L. R. A. (N. S.) 1011; Cary v. Preferred Accident Ins. Co., 5 L. R. A. (N. S.) (Wis.) 926.

Appellant’s requested instruction No. 2 was also erroneous because it told the jury that appellee could not recover unless she notified appellant of the accidental injury within twenty days after it occurred. Appellee was the beneficiary in the policy under the “death clause” and not under the “loss of time clause.” Her only duty was to give notice of the death of her husband, resulting from accidental means. In construing this kind of a clause in an accident policy, this court said, in the case of Maloney v. Maryland Casualty Co., 113 Ark. 174, “she (referring to the beneficiary) could not know whether she had a claim until after' her husband’s death; and she was not required to give notice of the accident on account of which her claim arose before she knew whether or not it would come into existence.”

No error appearing, the judgment is affirmed.


text:
    Tipton v. Jonesboro Grocer Company.
    Opinion delivered December 8, 1924.
    1. Payment — appropriation.—Where a supply company transferred cotton receipts as security for an open account, this amounted to an appropriation in advance of the proceeds thereof, when sold, to the payment of the open account, and it would require the consent of both parties to the transaction to change the appropriation to secure notes instead of the open account.
    2. Pledges — measure op damages por conversion. — Where cotton receipts were deposited with plaintiff as security for an open account, if plaintiff sold them without authority, the measure of damages in a suit against it for an accounting would be the market value of the cotton at the time of the conversion.
    Appeal from Craighead Chancery Court, Western District; Archer Wheatley, Judge;
    affirmed.

      Kenneth Bayner, .for appellant.
    ' A debtor has the right, in the first instance, to appropriate the payment made to any debt which he may owe. 174 S. W. (Ark.) 553; Cyc. 1228. See also 54 Ark. 446. Appellee held the cotton as a pledge, subject to all the duties and liabilities of a pledgee. The sale should have been at public auction after due advertisement. 250 S. W. 321 (Ark.) and cases cited, especially 95 Ark. 542. Appellee, under the circumstances shown, took the cotton impressed with a trust. Yol. 3, Pom. Eq. Jur. (3d ed.) p. 2015, § 1048 (3).

      Horace Sloan, for appellee.
    Appellant had no power to demand as a matter of right that the cotton receipts be changed as security from the open account to the notes. After the petition in bankruptcy had been filed, the change could not then have been made, even with appellee’s consent. 103 Ark. 473; 57 Ark. 270; 49 Ark. 508; 47 Ark. 17; 98 Ark. 459. The unauthorized sale, if any, was ratified by appellant. 21 it. C. L., p. 692, <§ 52. The cotton brought the market value, and that is all appellant can contend for. 92 Ark. 472. Assuming that the appellants owned the equity in the cotton, they could not be subrogated against Ihe appellee for amounts credited by appellants on customers’ accounts of the Farmers’ Supply Co. 148 J. S. 573,'37 Cyc. 374.
   Humphreys, J.

Appellee filed suit against appellant in the chancery court of Craighead County, Western District, upon three promissory notes.

An answer and cross-complaint thereto, presenting equitable defenses and counterclaims, were filed by appellants, to which appellee filed a reply, whereupon the case was transferred to the chancery court of said county.

The cause was heard by the chancery court upon the pleadings and testimony adduced, which resulted in a decree against appellants upon notes, including interest, for $3,748.34, with interest thereon at the rate of 10 per cent, per annum from the date of the decree, from which is this appeal.

In order to decide the controlling questions presented by this appeal, it is only necessary to set out a summary of the evidence, and in doing so we will follow, in part, the statement of the facts prepared by appellant.

The Farmers ’ Supply Company was a corporation of Manila, Arkansas, whose stockholders were Joe Horner, Jake Nice, C. W. Tipton, Joe Benson and E. W. Pierce. On the 25th day of May, 1921, the Farmers’ Supply Company was duly adjudged a bankrupt in the United States District Court for Jonesboro Division of the Western District of Arkansas.. Appellants purchased its assets, including its notes and accounts.

Prior to the bankruptcy of this concern, it had been buying considerable merchandise from Jonesboro Grocer Company,, appellee herein. In 1920, Jonesboro Grocer Company began to exact promissory notes from Farmers ’ Supply Company for its prior purchases of merchandise, requiring that additional security be given on the promissory notes bv having certain individual stockholders of the corporation sign the notes as such securities, along with the corporation itself. The first of these notes was executed June 1. 1970. in the principal sum of $1,452.95. due November 16, 1920; the second on March 3, 1921, in the principal sum of $453.23, due June 3, 1921; the third on April 15, 1921, in the principal sum of $1,026.70, due' on November 15, 1921; each of the said notes bearing-interest at the rate of 10 per cent, per annum from date. The notes were signed by appellants.

The Farmers ’ Supply Company had accounts against various farmers in the neighborhood for goods furnished them. To secure payment of these accounts, this concern had received, as collateral from the debtors, certain bales of cotton in which the debtors had equities. "Warehouse receipts covering the cotton were issued to the debtors and by them delivered to the Fhrmers’ Supply Company.

Some time prior to March 29, 1921, the Farmers’ Supply Company delivered to Jonesboro Grocer Company this cotton and the warehouse receipts covering-same, but not the accounts of the debtors, as collateral for the account then owing by it to Jonesboro Grocer Company. Jonesboro Grocer Company acknowledged receipt of the warehouse receipts covering- the cotton. On these receipts the names of the owners of the cotton were noted. As stated, this took place before the bankruptcy proceedings. The bales of cotton in controversy numbered twenty-nine.

According to the testimony introduced by appel- . lants, in May, 1921, before the institution of the bankruptcy proceeding’s above referred to, Farmérs’ Supply Company, then owing Jonesboro Grocer Company the three notes as set out above, as well as the open account in addition thereto, C. W. Tipton, president of the Farmers ’'Supply Company; instructed Ashley Sale, manager of the Jonesboro Grocer Company, that, upon sale of the cotton by the pledgee of the cotton posted as collateral with it, the proceeds thereof should be applied on the indebtedness due pledgee by Farmers’ Supply Company, as evidenced by the three promissory notes referred to. to which Sale agreed; that this instruction was later reiterated by Tipton and Eice, Eice being- another stockholder in Farmers’ Supply Company, while the cotton was still held as collateral by Jonesboro Grocer Company. According to the testimony introduced by appellee, Sale refused to grant the request.

After the bankruptcy proceedings had been instituted, Jonesboro Grocer Company sold the cotton which had been posted with it as collateral, at private sale, under the advice and consent of the trustee in bankruptcy. The cotton was never advertised for sale. The total sale price of the cotton, sold under the circumstances as stated, was $1,173.30, representing $.0'58 per pound, net, and was a fair market value for the cotton at the time it 'was sold. This entire sum was credited on the open account of Farmers’ Supply Company, none of it being credited on the indebtedness evidenced by the promissory notes.

Farmers’ Supply Company accounted to the owners of the cotton from which it had originally received same, at 12 cents per pound-for their equities in same. This is declared to have been a fair market price for the cotton.

The first question arising for determination on this appeal is whether C. W. Tipton, president of the Farmers’ Supply Company, had a right to demand that the warehouse cotton receipts, which had been pledged by it to appellee as collateral security for an open account, should be sold and applied on payments of notes which he and other stockholders of the Farmers’ Supply Company had theretofore executed 'to appellee. There is a dispute in the testimony as to whether the warehouse cotton receipts were originally pledged to secure the open account, but the chancellor found that they were, and appellants themselves proceed in their argument upon the theory that the finding is supported by the weight of the evidence. Appellants could not, as a matter of right, demand that the cotton receipts be changed as security from the open account to the notes. The transfer of said receipts as security for the open account constituted an appropriation in advance of the proceeds thereof, when sold, to the payment of the open account, under the law of the application of payments, and it would require the consent of both parties to the transaction to change the appropriation. Greer v. Turner, 47 Ark. 17; Caldwell v. Hall, 49 Ark. 508; Atkinson v. Cox, 54 Ark. 446; Faisst v. Waldo, 57 Ark. 270; Bonham v. Johnson, 98 Ark. 459; Kissire v. Plunkett-Jarrell Grocer Co., 103 Ark. 473. It is contended, however, by appellants that appellee consented to change the appropriation of the proceeds from the cotton receipts, when sold, from a payment upon the open account to a payment upon the notes. The testimony is in sharp conflict upon this point, and, after a careful reading thereof, we are of opinion that the finding of the chancellor to’ the effect that appellee never agreed to such a change is supported by the weight of the evidence.

Other questions are raised and argued by appellants as grounds for a reversal of the decree, viz., that they were the owners of the equity in the cotton, after paying the open account, by virtue of having purchased the notes and accounts of the Farmers’ Supply Company at the bankruptcy sale, and, by way of subrogation, to the rights of the original owners of the cotton; that the sale of the cotton was void because privately made and without notice to appellants, etc. It is unnecessary to decide these questions, because, according to the undisputed testimony, the cotton was not of sufficient value at the time it was sold to satisfy the open account for which it had been pledged. Treating, but not deciding, the sale as void, and appellee as a tort-feasor for selling same, the measure of damages in a suit against appellee for an accounting would have been the market value of the cotton at the time of the conversion. Hamburg Bank v. George, 92 Ark. 472. The weight of the evidence was to the effect that the cotton was sold at the best price obtainable upon the market. No surplus remained, as the proceeds were insufficient to pay the open account.

No error appearing, the decree is affirmed.