text:
    Allen v. Harmony Grove Consolidated School District No. 19.
    Opinion delivered October 31, 1927.
    1. Schools and school districts — validity op order consolidating districts. — Where an election was held on the question of the proposed consolidation of three school districts, the board of education erred in making an order consolidating two of the districts, where a majority of the electors of one of the three districts voted against consolidation, the consent of each of the three districts being essential to a valid order, under Crawford & Moses’ Dig., § 8846.
    2. Schools and school districts — irregularity in consolidating district — curative act. — Irregularities in orders of the board of education in consolidating the two of three school districts and dissolving a separate district, under Crawford & Moses’ Dig., §§ 8846, 8869, were validated by Acts 1927, p. 549.
    Appeal from- Saline Chancery Court; W. R. Duffie, Chancellor;
    affirmed.

      Wallace Toimsend, for appellant.

      Brouse & McDaniel, for appellee:
   Smith, J.

Harmony Grove Consolidated School District No. 19 of Saline County was organized by the board of education of that county by an order made September 18,1925, and by a subsequent order made March 12, 1927, which dissolved Haskell School District No. 66 and added the territory of that district to the consolidated district. The directors of the consolidated district caused notice to be published, prior to the annual school meeting held in May, 1927, calling upon the electors of the district to vote for or against a building fund, and, at the election held pursuant to this notice, a majority of the electors voted for a six-mill building fund. After this election the school directors advertised for bids for the sale of $20,000 of the bonds of the district, and let a contract for the erection of a school building to be paid for out of this bond issue.

B. F. Allen, who is a resident and taxpayer in the consolidated district, brought this suit to enjoin the issuance of these bonds upon the ground that the consolidated district had not been properly organized.

An answer was filed by the directors on behalf of the district, in which the proceedings whereby the consolidated district had been organized were set out, and to this answer a demurrer was filed. The demurrer was overruled, and the taxpayer elected to stand thereon, and the case was submitted, as the decree recites, upon the complaint and the answer and exhibits to the answer, and the relief prayed by the taxpayer was denied and his complaint dismissed, and this appeal is from that decree.

The answer alleged that on July 31,1926, an election was held under an order of the county board of education, made pursuant to a proper petition therefor upon the question of "the proposed consolidation of Districts Nos. 11, 21 and 41, and at this election a majority of the qualified electors of Districts Nos. 11 and 41 voted for consolidation, but in District No. 21 a majority voted against consolidation. Whereupon the directors of Districts Nos. 11 and 41 presented a petition to the board of educa-' tion for the consolidation of those districts, it being therein stated that a majority of the electors of these districts had voted for the consolidation, and on September 18,1926, the board of education made an order consolidating these districts into one district, to be known as Harmony Grove Consolidated District No. 19 of Saline County.

On March 12,1927, the board of education heard and considered a petition signed by persons who denominated themselves as patrons. of Haskell School District No. 66, praying that the district be dissolved and its territory added to and made a part of Consolidated District No. 19. The board found that this petition contained the signatures of a majority of the electors of District No. 66, and made the order as prayed.

The complaint of the taxpayer alleged that the notice of the election called upon the electors to vote upon, the question of creating a building fund, but did not specifically state that the voters would also be asked to authorize a bond issue as a means of providing funds to erect the school building*, and the taxpayer insists that the authority to issue bonds does not exist because of that omission and the failure of the electors to specifically vote for a bond issue.

We think the board of education was in error in making the order consolidating* Districts Nos. 11 and 41. It is true a majority of the electors of those districts voted for the consolidation, but the question submitted was not whether those two districts should be consolidated, but was whether districts Nos. 13, 21 and 41 should be consolidated, and the statute requires that “a majority of the qualified voters of each school district proposing to enter into the consolidation” shall be obtained, and the consent of all three districts was essential to the making of a valid order of consolidation. Section 8846, C. & M. Digest.

' Appellant also contends that the action of the county board of education in dissolving District No. 66 land in attaching its territory to the consolidated district was void because the petitioners praying that order designated themselves as patrons whereas the statute (§ 8869, C. & M. Digest) provides that this may be done upon the petition of a “majority of the electors residing in such district.” The board of education, in making the order dissolving District No. 66, found that a majority of the electors had petitioned that the order of dissolution be made.

However, upon both these questions, that is, the creation of the original consolidated district and the subsequent annexation of District No. 66, it may be said that these orders of the board of education were validated by act 156 of the Acts of 1927. (Acts 1927, page 549). This act amends § 8823, C. & M. Digest, and gives the board of education enlarged powers in the matter of the creation and consolidation of school districts and in changing the boundaries thereof, and further provides that “in all cases the proceedings heretofore done by county boards of education are hereby ratified and declared valid.”

This curative act was obviously passed for the purpose of curing any defective proceedings in the consolidation, etc., of school districts, such as are found to exist in the proceedings here under review.

We are of the opinion that the act does cure the irregularities set out above, as many acts of this kind have been approved by this court. In Green v. Abraham, 43 Ark. 420, the court quoted and 'approved the following statement of the law from Cooley’s Constitutional Limitations, § 483:

“The rule applicable to cases of this description is substantially the following: If the thing wanting, or failed to be done, and which constitutes the defect in the proceeding’s, is something the necessity for which the Legislature might have dispensed with by prior statute, then it is not beyond the power of the Legislature to dispense with it by subsequent statute. And if the irregularity consists in doing some act, or in the mode or manner of doing some 'act which the Legislature might have made immaterial by prior law, it is equally competent to make the same immaterial by a subsequent law.”

This language was again quoted and approved in the case of Faver v. Wayne, 134 Ark. 30, 203 S. W. 22, after which it was said that “this rule has repeatedly been followed since,” and the following cases were there cited as instances in which that had been done: Bell v. Phillips, 116 Ark. 177, 172 S. W. 864; Pelt v. Payne, 90 Ark. 603, 20 S. W. 426, 134 Am. St. Rep. 45; Stuttgart v. John, 85 Ark. 525; 109 S. W. 541; Lanzer v. Butt, 84 Ark. 339, 105 S. W. 595; and Sudberry v. Graves, 83 Ark. 384, 103 S. W. 728.

In the early case of Allen v. Archer, 49 Maine 346, the Supreme Court of that State said it was competent for the Legislature to make valid the action of a town in changing the limits of a school district which would otherwise be void on account of some informality or technical defect.

We have many times recognized the plenary power of the General Assembly in organizing and dissolving school districts, and, in the case of Jones v. Floyd, 129 Ark. 185, 195 S. W. 360, we held, quoting a syllabus: ‘ ‘ The control of the Legislature over the organization of school districts and of changes in their boundaries is plenary, and the Legislature may itself exercise this power, or it may confer it upon other agencies of government.”

As the General Assembly might itself have consolidated these districts, and might have dissolved District No. 66 by its own action, or might have conferred the power so to do upon an agency of its own creation, and could have prescribed the procedure for so doing, it follows that the General Assembly had the right to cure and confirm the action of the board of education, and we therefore hold that the irregular orders of the board of education have been cured, confirmed and made valid.

Upon the question of the authority of the board of directors of the consolidated district to issue bonds, it may be said that the electors of the consolidated district voted a building fund of six mills, and by § 8976, C. & M. Digest, it is provided that, “If a majority of the votes cast are ‘For Building Fund,’ it shall be equivalent to voting a building tax of the amount or rate as determined by this section for each succeeding year until the money borrowed by the board of directors, pursuant to such vote, together with fall interest thereon, shall have been fully paid. When a building fund has been specially voted for, as provided in this section, the board of directors may borrow money and mortgage the real property of the district as security therefor, under such conditions and regulations as to amount, time and manner of payment as the hoard of directors shall determine, land may, from time to time, renew or extend any evidence of indebtedness or mortgage issued or executed hereunder.” Connelly v. Earl Frazier Special School District, 170 Ark. 135, 279 S. W. 13; Davis v. White, 171 Ark. 385, 284 S. W. 764.

The court below was correct in refusing to enjoin the bond issue as prayed by the appellant, and the decree will therefore be affirmed.


source: Caselaw Access Project

author: Smith, J.-

license: Public Domain

text:
    Underwood v. Farrell.
    Opinion delivered October 31, 1927.
    1. Evidence — judicial notice. — The court takes judicial notice that the' Boys’ Industrial School at Pine Bluff is an institution for the care, imprisonment, and reformation of delinquent criminals, convicted of a felony.
    2. Infants — jurisdiction to sentence to industrial school.— Where a 16-year-old boy, charged with the crime of arson, had not been convicted by a jury or on a plea of guilty in the circuit court, the juvenile court was without jurisdiction to sentence him as a delinquent to the Boys’ Industrial School, established under Acts 1917, p. 288, § 1, for imprisonment which might be imposed on a conviction for arson.
    Certiorari to Greene Circuit Court; W. W. Bandy, Judge;
    judgment quashed.

      M. P. Huddleston and J.ason L. Light, for appellant.

      H. W. Applegate, Attorney General, and John L. Carter, Assistant, for appellee.
   Smith, J.-

On the 19th day of July, 1927, information was filed by the deputy prosecuting attorney of Greene County before a .justice of the peace of that county, charging Archie Underwood with the crime of arson, alleged to have been committeecl by the accused by burning a-'building, the property of James Keisler, and at the examining trial the accused was held to await the action of the grand jury of that county at its ensuing term.

On the day of this trial Keisler filed a petition in the juvenile court of Greene County, charging that the said Archie Underwood was a delinquent child, sixteen years old, and “that said child has committed some wrongful acts, and that his parents fail to control him. ’ ’ The hearing of this petition was had on the following day, and the court found that “said Archie Underwood is guilty of delinquency, and should be sent to the Boys’ Industrial School at Pine Bluff. ” Upon this finding it was adjudged that the sheriff of the county “take immediate charge of the said Archie Underwood and deliver him to the Boys ’ Industrial School at Pine Bluff, Arkansas, there to remain in the care, custody and control of the authorities of the said Boys'’ -Industrial School for a term of three years. ’ ’

Immediately thereafter a petition for a writ of habeas corpus was filed by the father of ’said Archie Underwood, in the circuit court, and, at the same timé, a petition for a writ of certiorari was filed, praying the circuit court to quash the order and judgment of the juvenile court. By consent these petitions were heard as a single cause, and the prayer thereof denied, and the infant was remanded to the sheriff of the county, to be delivered to the authorities of the Boys’ Industrial School, as directed by the order of the juvenile court, and this proceeding has been brought before us by certiorari for review'.

We judicially know that the Boys ’ Industrial School at Pine Bluff, to which the order of the juvenile court committed the petitioner, Archie Underwood, is an institution used for the care, imprisonment and reformation of delinquent criminals who have been convicted of the commission of some felony. This institution was established under authority of act 67 of the Acts of 1917 (vol. 1, p. 288, Acts 1917), § 1 of which recites that its erection and maintenance was authorized for “the purpose of securing a better location and improved condition for the State Reform School, * * * ” etc. Sections 802 et seq., C. & M. Digest.

Section 804, C. & M. Digest, provides that all persons under the age of eighteen years hereafter' sentenced- to the penitentiary' shall he committed to and placed in the reform school, provided that persons under that age convicted of a felony may be sent to the penitentiary, if, in the judgment of the trial judge, such course may be expedient.

The Boys’ Industrial School at Pine Bluff is therefore an institution designed for the care, imprisonment and reformation of juvenile criminals, and it was to this institution that the order of the juvenile court committed the petitioner, Archie Underwood.

The testimony taken before the county judge, as judge of the juvenile court, was to the effect that the petitioner was not, prior to the commission of the alleged crime of arson, delinquent, and his delinquency consisted in the commission of that crime, if, in fact, he is guilty of it.

The evident purpose of the order here under review was to punish the delinquent. He was sentenced to the institution to which juvenile felons may be sent, and for the definite period of three years, which is a sentence that might have been imposed upon a conviction before a jury for the crime of arson. Section 2422, C. & M. Digest.

It was not the purpose of the law under which the juvenile courts function to confer any such jurisdiction. The intention of the Legislature was declared in the case of Ex parte King, 141 Ark. 213, 217 S. W. 465, where it was said:

“The intention of the lawmakers was not to confer upon the county court the power to institute proceedings, against minors by way of criminal prosecution or punishment for alleged violations of law. The act therefore could not be construed as depriving minors • of that personal liberty guaranteed by the Constitution and trial by jury before-they can be deprived of that liberty. On the contrary, the sole purpose of this act seems to be to supply those who are ‘destitute, homeless, abandoned,’ wayward, or incorrigible, who have not yet arrived at the age where they are entitled, by the law of nature or of the State, to absolute freedom, with such environments as will conduce to their physical, moral and intellectual wellbeing. This law undertakes to reclaim and reform, rather than to condemn and punish. For these unfortunate minors who come within the terms of the act it opens the doors of an asylum, but not a jail.”

The order here under review is such a sentence as could have been imposed only after a trial before and a conviction by a jury in the circuit court, or upon a plea of guilty in that court. The juvenile court should not have sentenced petitioner to a definite term of imprisonment, as upon a conviction for a crime, as it was without jurisdiction so to do, and that judgment will therefore be quashed, and it is so ordered.

Of course the criminal proceeding begun by the deputy prosecuting attorney is not involved here.


author: Humphreys, J.

text:
    McCraw, Perkins & Webber Company v. Yates.
    Opinion delivered October 31, 1927.
    1. Account — jurisdiction op equity. — In an action by a cotton factor against a shipper for balance due on cotton sold, an itemized account containing items of credit and debit, and showing the balance due, was not so intricate and complicated as to state a cause of action within the jurisdiction of equity. .
    2. Trusts — necessity op accounting. — Before equity will exercise jurisdiction over a trust for the purpose of compelling an accounting, it must appear from the complaint that an accounting is necessary to determine the amount due.
    3. Account — necessity of accounting. — A complaint by a cotton factor for a balance due on account, involving items of credit and debit, and alleging that a gwasi-fiduciary relation existed between the plaintiff and defendant, did not show any necessity for an accounting, so as to give equity jurisdiction.
    4. Trial — demurrer treated as motion .to transfer. — Where a complaint in equity stated a good cause of action at law, the court should have treated a demurrer to the complaint as a motion to transfer the cause to the circuit court, and should have transferred the cause.
    Appeal from Sharp Chancery Court, Northern -District; Alvin S. Irby, Chancellor;
    reversed.

      Horace Sloan, for appellant.
   Humphreys, J.

Appellant filed the following complaint against appellee, omitting caption and verification, in the chancery court of the Northern District of Sharp County:

“Comes the plaintiff, McG-raw, Perkins & Webber Company, a corporation duly organized and existing under and by virtue of the laws of the State of Tennessee, and complaining of the defendant, Ben N. Tates, doing business as Ben N. Tates & Company, for its cause of action states: During the years shown on the attached statement marked Exhibit A is hereby made a part of this complaint. The defendant, Ben N. Tates, doing business as Ben N. Tates & Company in'Williford, Arkansas. During said period -of time plaintiff was engaged in doing business in Memphis, Tennessee, as a cotton factor. During said period of time said defendant has shipped to the plaintiff, as cotton factor, certain bales of cotton, also drew various drafts in writing on the plaintiff, which drafts' were accepted and paid by the plaintiff, said drafts being advances made by the factor on account of the shipment of said bales of' cotton by the defendant to the plaintiff. The account consists of various mutual items of debt and credit, involved the sale of numerous bales of cotton, and that the balance due thereon as of date July '20, 1923, is the sum of $1,271.65. An itemized account showing said drafts and bales of cotton shipped and charges by way of freight, storage, insurance and interest is attached to ' this complaint, marked Exhibit A and made a part thereof. Said account is complicated and intricate, and proof supporting the details of said account will be voluminous, intricate and too' complicated other than in a court of equity. In addition a gwusi-fiduciary relation existed between the plaintiff as cotton factor and defendant 'as customer, and plaintiff is, for that reason, entitled to an accounting in equity. Plaintiff further states that repeated demands have been made on defendant to pay the balance due on the above account, but he has wholly refused to pay same or any part thereof. Wherefore plaintiff prays judgment against defendant for the said sum of $1,271.65, with interest thereon from July 20, 1923, until paid, together with judgment for costs and all -other proper relief. ’ ’

An itemized 'account was attached to the complaint showing’ a balance of $1,271.65.

Appellee filed a demurrer to the complaint upon the ground that it failed to state an equitable cause of action. The court sustained the demurrer, and dismissed appellant’s complaint, from which is this appeal.

Appellant’s first contention for a reversal of the decree is that the complaint states a good cause of action in equity for two reasons:

(1). Because the account is intricate and complicated. (2). The gitasi-fiduciary relation existing between factor and principal. (Equity having jurisdiction of trusts 'and their enforcement).

(1). The account exhibited is itemized, containing items of credit and debit, and showing a balance due of $1,271.65. It is not very long, and we see nothing in it which can be characterized as intricate or complicated.

(2). It is true that courts of equity have jurisdiction over all trusts for the purpose of compelling an accounting, but, before exercising such jurisdiction, it must appear from the complaint • that an accounting is necessary to determine the amount due. There is nothing in the complaint quoted above showing that such a necessity exists.

Appellant’s last contention for a reversal of the decree is that the court erred in not treating the demurrer as a motion to transfer the cause to the law court. We think the complaint states a good cause of action at law, so the court should have treated the demurrer as a motion to transfer tlie cause, and should have accordingly transferred same to the circuit court.

On account of the error in not doing so the decree dismissing appellant’s complaint is reversed, and the cause is remanded, with instructions to transfer same to the circuit court.


author: Kirby,' J.

text:
    Cleaver v. Bert Johnson Orchards, Inc.
    Opinion delivered October 31, 1927.
    1. Appeal and error — review op directed verdict. — In determining on appeal the correctness of the trial court’s action in directing a verdict, the evidence should be viewed in the. light most favorable to the party against whom the verdict was directed, and, if there was any evidence tending to establish an issue in favor of the party against whom the verdict was directed, it was error to take the ease from the jury.
    2. Master and servant — negligence-—burden op proof. — In an action by a farm hand, employed in a peach orchard, to recover damage for injury to his eye, alleged to have been caused by the negligence of the master in furnishing an improperly tempered hoe, burden of proof was on the servant to show negligence by the master in failing to perform some duty owed to him, which proximately caused or resulted in his injury.
    3. Master and servant — care in furnishing tools. — A master is not an insurer of a servant’s safety, and is only bound to use ordinary care proportionate to the danger to be incurred in furnishing proper tools to the servant for performance of his duty.
    4. Master and servant — negligence—sufficiency of evidence.— In an action by a farm hand employed in a peach orchard to recover damages for injury to his eye, alleged to have been caused by negligence of the master in furnishing an improperly tempered hoe, evidence which failed to Show that the hoe selected by the plaintiff was defective or that the injury resulted from steel breaking off the hoe, and showing affirmatively that the master furnished skilled and experienced blacksmiths for sharpening- hoes, was not legally sufficient to show negligence by the master in failing to exercise ordinary care to furnish safe tools to its servant for performance of his duty.
    Appeal from Pike Circuit- Court; J. 8. Lake, Special Judge;
    affirmed.

      STATEMENT BY THE COURT.
    Appellant brought this suit to recover damages for an injury to his eye, destroying the sight of it, alleged to have been caused by the negligence of the defendant in furnishing him with a defective tool with which to work.
    The complaint alleges: “ * * * that said negligence of appellee consisted in appellee’s negligently furnishing appellant with which to do said work a hoe that was improperly tempered, making it too hard and brittle, so that, when said hoe struck a.rock while appellant was using it in said work, a piece of metal broke from said hoe, by reason of said improper tempering, and struck appellant in the eye and injured him; that said condition of said hoe was known to appellee, or by the exercise of ordinary care could have been known to it, before the occurrence of said injury * * '
    Defendant denied any negligence, denied having directed the appellant to select any particular hoe or having selected one for him, and that it knew of any defective condition of the hoe, or failed to exercise ordinary care to discover any such defect; denied that the injury oc-. curred from a piece of steel splintering off the hoe and striking plaintiff in the eye, as alleged, and all other allegations of the complaint.
    It appears from the testimony that appellant was working in the Bert Johnson Orchards, the largest peach orchards in the world, the surface of which is undulating, and much of it contains gravel and rocks'up to large bowlder size. That appellant, a farmer, had been working in the orchards from April 13 to June 16,1926, the day of the injury. He had been cutting bushes with pruning shears until about 10:30 that morning, at which time he began hoeing or cutting the weeds from around the trees. He stated that the foreman told him to cut the weeds, and that there were two hoes newly sharpened lying on the ground inside appellee’s blacksmith shop, and the foreman-said, “Take one of those hoes there,” and he did not observe any defect in the hoes, and picked up the one nearest to Mm, which was about 4 inches wide and had a hole in the top for the handle. The hoe was known as a cane hoe, and it was about half worn out, and when new was about 7 inches long. It was freshly sharpened, and had not been used since being sharpened. The hoes were sharpened by blacksmiths employed by appellee. This was the regular place where hoes were sharpened on that work. Describing the injury, he said he was hoeing around the third peach tree, the ground was loose, freshly plowed, and had some gravel where he hoed the first two trees. There was a skip where there was no tree, and the third was down the hill, where it was rocky. While hoeing tins third tree he struck a rock, and a piece of steel broke off the hoe and struck him in the right eye. “It produced a stinging, sickening sensation when it first struck me,” and blinded the eye at once, and that he had never been able to see out of it since the injury. He went home, and in the afternoon to see a doctor at Nashville, who discovered something in the eye, but did not try to remove it. The next day, at Texarkana, Dr. Fuller removed the sliver from his eye with a magnet.' The doctor held the magnet up and said, ‘ ‘ There is the steel. ’ ’ Appellant was considerably blinded, and could not say positively he saw the steel, but saw the magnet and felt the object come out of his eye, when it was attracted and drawn by the magnet. He went home after several days, and had to return again to Texarkana for treatment by Dr. Fuller. Had suffered much pain from the injury and the loss of sight from the injured eye, from which he still suffered at the time of the trial, and his other eye had been weakened also by the injury; that he was not able to do more than about one-fourth of a farm hand’s work since the injury. On cross-examination he stated he was 46 years old; could read a little with strong glasses; knew the make of hoe the company furnished its men; had used them some in 1920, but had not used such a hoe since until the day of the injury, but had used hoes of similar make and style. Made a casual examination of the hoe, when he picked it up, to see if it was sharp. It appeared to be all right. The hoes were-lying on the ground in the shop, and he was. at the blacksmith shop every day, and knew where the hoes were kept. Was just finishing cutting the-weeds around the third tree “when the hoe struck a rock, and a piece slivered off and struck me in the eye.” He did not examine the hoe to see whether it was gapped, and carried it to the turn-row or street, put it down on the ground, and had never seen it since.
    Harold Stewart', an 11-year-old boy, hoeing peach trees on the opposite row, about 15 feet from the appellant, stated that he saw appellant when he got hurt; that he staggered when he was struck, and came up, had his -hand over his eye, and asked if he could see anything in his eye. Witness saw something about the center of the eye-ball, but could not tell whether it was a piece of steel or rock. He appeared to be suffering, and he went with him to Kimball’s house. Said appellant was using an old grubbing hoe that appeared to'have been sharpened that morning. Said on cross-examination that he had been hoeing along there all morning with appellant; that it was a sort of a rocky place; that witness had hoed about 25 or 30 trees with a hoe Pollock had brought out and used awhile, and appellant had been hoeing about the same length of time, with a hoe like witness was using; they worked just alike, and witness’ hoe came from the shop. Did not know what became of the hoe appellant was using; worked out there after appellant got hurt, and left his hoe out there. Appellant carried his hoe up to the road. Witness also stated there was a number of old plow points and things like that around the trees, where they had been changed, but he did not see any around.the tree where appellant got hurt, but did not look for any. There were rocks there.
    George Boggs testified that he was a blacksmith; had been a blacksmith about 54 years, 30 of which had been in Arkansas, and had worked 17 months as a smith near appellee’s orchards, and had -sharpened hoes in their orchards. That a blacksmith, in sharpening a hoe to be used in rocky ground, should temper it so that it would be tough enough not to break or sliver when used in the rocks. “If the blacksmith will use proper skill he can so sharpen the hoe and so temper it in sharpening it that it will not chip in using it in the rocks.” That the natural result of tempering a hoe too highly is to make it brittle and liable to chip or break. That the ordinary farmer, not skilled as a blacksmith, could not tell by looking at a hoe whether or not it was too highly tempered. Witness did not claim to be a perfect blacksmith. Admitted that he made mistakes, but that it was very rare that he made a mistake in tempering a piece of steel. Said the user of the hoe can tell as soon as he commences to work with it, whether it is properly tempered and sharpened.
    J. R. Sevier stated that he had been a blacksmith 40 years, and had sharpened hoes ever since he began the business. That if a hoe was properly tempered it would not chip or .sliver. Stated how the tempering was done, and the changing color of the metal after heating until the completion of the tempering. That one without experience as a blacksmith could not tell about the temper of the hoe by looking at it.
    Several doctors testified about the injury to the eye and the result of it. One of them stated that an operation had been performed on the eye for a cataract, would say a traumatic cataract. Usual cause of cataract is old age.
    Oarl Prior testified that he was foreman on division 1 of Bert Johnson Orchards; that he had given appellant directions to hoe the young trees that day, about 15 minutes before 7 that morning. The instructions were given before the blacksmith shop, which was maintained in connection with division 1 of the orchard; that each division of the orchard has a shop. Hoes are kept in the blacksmith shop, and he supposed appellant got a hoe from the rack. Appellant told him in the evening that he had hurt his eye in the morning and had gone to the doctor. Did not know what hoe appellant was using. “After he quit work witness found two hoes on the road near where they were working. Mr. Pollock and Mr. Cleaver were working down there. The Stewart boy was working close. * * * Found two hoes beside the road near where Cleaver had been working. Examined the hoes. Did not find any defective condition in them. Picked the hoe up and looked for a break. Had heard the man had been hurt, and wanted to see whether or not the hoe he' was using was broken, whether it was a defective hoe. Does not know whether either one of the two hoes was the hoe appellant was using. It was supposed to be. * * * Found no break or sliver broken off.” Did not know whether he examined the hoes closely enough to detect a small gap in the edge that might have been made by a bit of steel breaking off. Practically all the country is rocky, and it was rocky where appellant was sent to work. The hoes had to be sharpened once a day. The company kept a'blacksmith to sharpen the hoes, and the workmen bring in the dull hoes to the blacksmith shop and get sharp ones.
    L. W. Huddleston was the blacksmith at the orchard on the 16th of June, 1926, the day appellant was hurt, and had a helper named Ray. He and the helper sharpened the hoes of appellee. It is necessary to sharpen the hoes frequently; sometimes they would be standing in the corner, and, after they were sharpened, they might be thrown down on the ground and left there over night. The blacksmith hardly ever puts the handles back in the hoes; the men who get the hoes do that, and they select their own hoes.' Does not remember the date, but heard of the injury of appellant, and witness and Ray were sharpening the hoes at that time. Does not know whether or not Ray sharpened the hoe used by appellant, but they were the only blacksmiths at this division shop, and the blacksmiths sharpened all the hoes. That he had been blacksmithing for appellee 13 years. That the hoes used in the orchards at the time were called cane hoes, and, when new, were about 4 inches wide and 7 inches long, and the body is about one-fourth of an inch thick. They have a broader blade than the old-fashioned grubbing hoe, and thicker. Described the method of sharpening and tempering them by holding them in water. Seldom tempers one too hard, and, if it is too hard, he reheats and tempers it again. Always sees that a hoe is properly tempered by watching the temper come. If the hoe is tempered too soft, the rocks will canse it to bend, and if too hard, will break off at the water-line. The entire hit of the hoe will break off, when used in the rocks; instead of chipping it will break off at the water-line. Being too highly tempered he thinks will not cause it to chip or gap. That, if they did not chip or gap upon striking the rocks, they would not need to be sharpened but once, and very few hoes will hold all day among the rocks. The men change hoes twice a day. Stated his helper knew how to sharpen hoes and give them the right temper.
    Graves testified he had been a blacksmith for 38 years, and had been operating the appellee’s shop on division 2 for 10 years. Stated the method of sharpening hoes and tempering them, as had been stated by the others.
    Bay testified that he had been a blacksmith 7 years, and was working in the appellee’s orchard with L. W. Huddleston in the shop in division 1, on the day appellant was injured. Sharpened some hoes for the orchard. Told how he sharpened the hoes and the manner of tempering them, judging whether the hoe was properly tempered by the color of the metal, and, if too highly tempered, he retempers it. Always makes an honest effort to see that the hoes are properly tempered. Was Mr. Huddleston’s helper in the blacksmith shop on division 1.
    After the testimony was all introduced, the court directed the jury to return a verdict for the defendant, which was done, and from the judgment thereon this appeal is prosecuted.

      Frank Pace, Tom Kidd and Tom W. Campbell, for appellant.

      J. C. Pinnix, T. I). Wynne and Chas. A. Miller, for appellee.
   Kirby,' J.

The only question for determination is whether the court erred in taking the case from the jury and directing the verdict for appellee.

■ The settled rule for its determination is:

In determining on appeal the correctness of the trial court’s action in directing a verdict, the rule is to take that view of the evidence that is most favorable to the party against whom the verdict is directed, and, where there is any evidence tending to establish an issue in favor of the party against whom the verdict is directed, it is error to take the case from the jury.” Cruce v. Mo. Pac. Rd. Co., 167 Ark. 88, 266 S. W. 981; Crawford v. Sawyer & Austin Lbr. Co., 91 Ark. 337, 121 S. W. 286; Williams v. St. L. & S. F. R. R. Co., 103 Ark. 401, 147 S. W. 93; Farmers’ Bank v. Johnson, 105 Ark. 136, 150 S. W. 401; Jones v. Lewis, 89 Ark. 368, 117 S. W. 561.

The evidence does not certainly show that appellant’s injury was caused by a piece of steel broken from the hoe which he was using in cutting weeds, upon striking a rock, although the statement that it was withdrawn from his eye by a magnet indicates that it was a piece of metal. No witness examined the hoe after the injury occurred, unless it was one of two hoes inspected by appellee’s foreman, picked up out at the road, in the orchard near where appellant and the Stewart boy were working, and where appellant said he had laid his hoe down. Neither of these hoes was defective or gapped, however.

It is also true that the cane or grubbing hoe was a simple tool, not complex of construction nor difficult of operation, and that appellant was a farmer accustomed for years to the use of such tools. The court has held that, in the selection and use of simple tools, whose defects are patent and obvious and as discoverable to the servant as to the master, the servant assumes the risk of the ordinary use thereof. Fordyce Lbr. Co. v. Lynn, 108 Ark. 377, 158 S. W. 501, 47 L. R. A. (N. S.) 270; Arnold v. Doniphan Lbr. Co., 130 Ark. 486, 198 S. W. 117.

The burden of proof was upon the injured servant to show negligence on the part of the master in the failure to perform some duty owed to him, as such servant, which proximately caused or resulted in his injury. Here the servant, according to his own statement, made selection of the tool or implement which he was to use, a grubbing hoe, for cutting weeds in rocky soil, with the ordinary use of which the servant had been familiar always, and there is no testimony tending to show that the tool selected was defective, nor certainly that the injury resulted from a piece of steel slivering and breaking off from the edge of the hoe, upon its being struck against a rock, in its ordinary use. No witnesses stated that the hoe was gapped or the blade slivered, and the foreman testified that neither of the two hoes left in the road, near where appellant passed and left his hoe, was gapped or showed that a sliver had broken off from the edge of the blade.

It may be that neither of these hoes examined by him was the one which appellant was using when he was injured. The master, in any event, is not an insurer of his servant’s safety, and was only bound to the use of ordinary care proportionate to the danger to he incurred in furnishing proper tools to the servant for the performance of his duty, and his negligence is charged to consist in furnishing a defective hoe, too highly tempered in the sharpening, with which to do the work. Although the simple tool doctrine has never been established in this jurisdiction, there was said about it, in Arnold v. Doniphan Lbr. Co., supra: “The master does not owe the servant the duty of inspecting tools given to the latter with which to work, where the tool furnished is one which requires no special skill or training for its safe use, and when the defect in the tool, if any, is as obvious to the servant as it is to the master, or when the defect arises from the use of the tool, and the servant would naturally be the first person to discover the existence of the defect.”

The undisputed testimony shows that the appellee furnished only skilled and experienced blacksmiths for the sharpening of these hoes, that were dulled twice a day in their ordinary use in the rocky ground of the orchard. Some of the smiths have been at work for as much as 30 years, and all of them are skilled in sharpening and tempering such tools. That the one having the least experience in such work, Bay, a blacksmith for 7 years, the helper of Huddleston, the blacksmith in charge of the shop at division 1, who had been working for appellee for 13 years, knew how to sharpen and temper hoes properly. That he always made an honest effort to see that the hoes were properly tempered, and that, if he discovered one too highly tempered, he retempered it. Neither does the testimony show that Bay had .sharpened the hoe that was being used by the appellant at the time the injury occurred, nor was there any testimony tending to show that any of the hoes sharpened in the blacksmith shop of division 1, nor any of the other shops, had ever before been complained of as having been improperly sharpened and made defective from being too highly tempered.

Assuming that the injury occurred as stated by appellant, the testimony is not legally sufficient to show negligence on the part of appellee in the failure to exercise ordinary care to furnish reasonably safe tools to its employee for the performance of his duty, and, it being necessary for him to show such negligence in order to recover, the court did not err in directing the verdict against him.

The judgment is accordingly affirmed.


author: Kirby, J.

text:
    Turner v. State.
    Opinion delivered October 31, 1927.
    1. Criminal law — sufficiency of evidence. — In testing the legal sufficiency of evidence to support a verdict of guilty, the Supreme Court will consider it in the light most favorable to the State, giving it its strongest probative force.
    2. Homicide — assault with intent to kill — sufficiency of evidence. — In a prosecution for assault with intent to kill, evidence held to sustain a conviction.

      3. Homicide — assault with intent to kill — evidence.—Where an assault is made without warning, and without circumstances of mitigation, justification, or excuse, and where, if death had resulted, a charge of murder in the second degree would have been sustained, a conviction of assault with intent to kill will be sustained.
    Appeal from Calhoun Circuit Court; L. 8. Britt, Judge;
    affirmed.

      Patil G. Matlock and J. 8. McKnight, for appellant.

      ff. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Kirby, J.

This appeal is prosecuted from a judgment of conviction for assault with intent to kill, fixing the punishment therefor at two years in the penitentiary. It is only urged here that the evidence is insufficient to sustain the verdict.

It appears from the State’s testimony that the parties were all attending a dance in the community; that Jep Turner went into the room, taking the little girl of Walter Tomlinson to her mother, who asked what he was doing with the baby, and where Walter was; he replied “Out yonder,” and she said, “Carry the baby back to him.” But took the baby, and said, “I guess you have made Walter drunk,” and he said, “You are a G-d— liar, and if you don’t shut up I will slap yoúr jaws.” He then turned and walked out of the room down to the yard. A few minutes afterward he intercepted and stopped Walter Tomlinson, who was coming from the gate to the .steps of the house to enter.

One witness said: “Jep called him back, and told him he wanted to see him. Walter went to where he was. I heard Jep say, ‘And I don’t like it a G-d-bit.’ I heard Walter say, ‘Jep, let us drop this and be friends,’ and Jep said, ‘Well, if she is that big, ignorant Gd-fool, we will drop it.’ Walter said, ‘Don’t Call my wife that.’ Jep then pulled his gun and stuck it in Walter’s stomach, and said, ‘That is what she is.’ I ran between them, told Bruce to take Jep off and I would take Walter. .1 went toward the house with Walter and Jep, and Brnce went out of the gate. I heard Jep say, ‘Bruce, I will kill that son of a hitch.’ Walter and I talked in the yard about three minutes, and went toward the steps, and as we went on to the steps I heard some one run behind me. I turned, and Jep hit me on the side of the head and hit Walter on the back of the head. I fell to my knees, Walter staggered to one side, and Jep hit him again. Hit him four licks. After Jep hit him the second lick Bruce came in and told him to .stop. Bruce had a gun under his coat, aimed at me. They went down the road. I picked Walter up, thought he was dead, he did not breathe for about a half a minute. I found this stick (a piece of 2x4 scantling) about 75 yards from where he hit us. It was covered with some leaves. It is a two-by-four.”

Walter Tomlinson stated that he and his family had gone to the dance at Porter’s, and that Turner had been there for some time; that they had never had any trouble before; that defendant called his wife a G-d-ignorant fool to his face, out near the gate; that he had started back into the house, and got about half way between the gate and the steps; met Jep, who said to him, “Tour wife gave me a damn good cursing a while ago, and I don’t like it a Gr — — ¿.— bit,” to which he replied, “We have been good friends, and let.us 'don’t have any fiiss. He said, ‘She is a G- d — '— ignorant fool,’ and stuck a gun in my stomach. Chesley, my brother, was standing there, and walked betweén ’ us and told Bruce to .take Jep off, and we would go - home; They went out of the gate, and we started back" in' the house. As we started up the steps some one struck me in the back of the head. It is 15 or 20 feet from the gate to the door steps. I did not see who struck me. It- knocked me' crazy, and I knew nothing for five days.” He was in bed a month, and had not yet recovered; there were several fractures of the' skull. Witness and defendant were friends, and had never had anj^ trouble before. Other witnesses standing 75 yards away heard the licks,, and one saw defendant witli the stick hiding it in the leaves, when he passed after the difficulty.

The jury evidently believed the testimony of the State’s witnesses in arriving at its verdict, and this court, in testing the legal sufficiency of the evidence to support the verdict, must consider it in the light most favorable to the State, giving it its strongest probative force. White v. State, 164 Ark. 517, 262 S. W. 338; Knight v. State, 165 Ark. 226, 263 S. W. 782.

Although defendant denied that he had struck Tomlinson from behind, and stated and attempted to prove by others that he had only struck him when he was advancing on him with a drawn knife, and in self-defense, the .jury were warranted in believing that defendant had stopped Tomlinson in the yard with a view to provoking him to a difficulty by abusing his wife and presenting a pistol against him, and after Tomlinson had insisted that they should continue to be friends and not have any fuss; and then, after Tomlinson’s brother had got between them and told Bruce to take Jep Turner away and that he and his brother would leave the dance, the defendant then went outside the yard, saying he would kill the son of a bitch, and got the 2x4, came back in the dark, and struck Walter Tomlinson from behind, without warning, knocking him down, and then striking him two or three times after he wias down, and until his brother made him stop.

■ There were no circumstances of mitigation, justification, or excuse shown, and the law implies malice, and, if death had resulted from the assault, it would have constituted murder in the second degree. Allen v. State, 117 Ark. 441, 174 S. W. 1179; Clardy v. State, 96 Ark. 52, 131 S. W. 46; Davis v. State, 115 Ark. 566, 173 S. W. 829; and Slaytor v. State, 141 Ark. 11, 215 S. W. 886.

The evidence is sufficient to support the verdict,- and the judgment is affirmed.


text:
    Cavanaugh v. Madden.
    Opinion delivered October 31, 1927.
    1. Wills — intention op testator. — A testator’s intention must be gathered from the language employed by him in making the will, and such intention, when ascertained, must prevail.
    2. Wills — -time of taking effect. — Wills speak only from the death of the testator, and cannot be varied by subsequent events.
    3. Wills — disposition of residue of estate. — Where a will provided that the testator’s widow should take a life estate with the privilege of disposing of one-half of the estate by will, and that another should receive the other half of the estate only in the event that the widow died without disposing thereof by will, held that, when the widow renounced the provisions of the will and took her dower under the law, the rights of the other person in the estate ceased. '
    Appeal from Pulaski Chancery Court; John-E. Martineau, Chancellor;
    affirmed.

      Clayton & Cohn, for appellant.

      J. I. Traiwich and Owens & Ehrman, for appellee.
   Kirby, J.

This appeal involves the construction of the will of Patrick J. 0 ’Brien, who died in the latter part of 1919 or early in 19'20. The will provides for the payment of all debts, and clauses 2, 3 and 4 make several small bequests, aggregating $350; by clause 5 the testator devises and bequeaths to his wife, Annie M. O’Brien, and the Union' Trust & Mercantile Company (now the Union Trust Company) all the residue of his property, giving them the right to sell, mortgage, convey and invest and reinvest and be held in trust for the following purposes:

“(1). Said trustees shall appropriate and apply the net income from the property in their hands for the support and maintenance of my wife, Annie M. 0 ’Brien, for and during her natural life. (2). Upon the death of my wife, Annie M. 0 ’Brien, the property in the hands of my said trustees shall be divided by my surviving trustee into two equal parts, and I hereby give, devise and bequeath to my said wife, Annie M. O’Brien, the rights and power to dispose of one of these parts by last will and testament, and in the event that she die without disposing of this part of my estate by last will 'and testament, said property shall thereupon vest absolutely, in Miss Elizabeth Cavanaugh, of Little Rock, Arkansas. (3). The remaining one-half of the property in the hands of said trustees shall be divided by my remaining trustee into eight equal parts, which shall be distributed to his nieces, in the amounts named in the will, with the proviso that, in the event of the death of any of the said nieces, the share of the one so dying shall go to his or her surviving issue, if any, and if not, then to the survivor or survivors of said beneficiaries.”

By the 7th clause of the will it was provided that the. provisions for the benefit of his wife should be in lieu of all her dower rights under the law. The widow, Mrs. O’Brien, subsequently renounced the Avill and took one-half of the estate as dower, the testator leaving no descendants. The widow died, and by her will devised and bequeathed all her estate to Miss Elizabeth Cavanaugh. She made no attempt to dispose of any of the estate of her husband in her will. The court decreed a partition of the estate among the devisees entitled thereto, and that Elizabeth Cavanaugh was not entitled to distribution of any part thereof under the will, and from this decree the appeal is prosecuted.

Appellant contends that the election of the wife to take dower had no effect, except to diminish the amount of the estate to be distributed under the will, and that she is entitled thereunder to one-half the estate devised by the will, and that the chancellor erred in holding-otherwise.

The will of the testator is clear and unambiguous, and his intention must be gathered from the language employed by him in making the will, and that intention, as expressed in the will, must prevail where ascertained. LeFlore v. Handlin, 153 Ark. 421, 240 S. W. 712; Cook v. Worthington, 116 Ark. 328, 173 S. W. 395; Duensing v. Duensing, 112 Ark. 362, 165 S. W. 956.

In State v. Gaughan, 124 Ark. 548, 187 S. W. 918, the court said:

“The purpose of all rules for the construction of wills is to ascertain and effectuate the intention of the testator; but these rules are ordinarily resorted to only where there are ambiguous, inconsistent or repugnant clauses.”

The testator knew what portion of his estate could be set aside under the law to his widow for dower, one-half, there being no children or descendants, and made the provisions of the will for his wife’s benefit in lieu of such dower. She renounced'the will, however, as she had the right to do, and took that part of the estate which she was entitled to under the law as dower, and at her death devised all her estate to her niece, Elizabeth Cavanaugh.

It is true that wills speak only from the death of the testator, and are not to be varied by subsequent events, as said in Blakeney v. DuBose, 167 Ala. 627, 50 So. 746, by the Supreme Court of Alabama: “Wills speak only from the death of the testator, and must be construed as they would have been construed at the moment of death, and without regard to the consequences resulting from subsequent events, which were probably not foreseen or anticipated at the making of the will.” See also McFarland v. McFarland, 177 Ill. 208, 52 N. E. 281; Wales v. Templeton, 83 Mich. 177, 47 N. W. 238; Crocker v. Crocker, 230 Mass. 478, 120 N. E. 110, 5 A. L. R. 1617.

It is clear from the will that the testator intended his widow to have all the income from his estate during her life and that the residue should be divided at her death into two equal parts, to one of which he gave the right of disposition by will to his wife, and provided that, if such disposition was not made by her, such property should vest absolutely in Miss Elizabeth Cavanaugh. His intention was equally clear that the remaining one-half of the property in the hands of the trustees should be divided by them into eight equal parts and distributed to his nieces in the amounts named in the will,- with the provision that, in the event of the death of any of the said nieces, her share should go to the surviving issue, if any, and if not, then to the survivor or survivors of said beneficiaries.

It was only the intention finally to distribute one-half the property of the testator, in the hands of the trustees, to whom it had been devised for the life of his wife, with the right of disposition by will, and to Elizabeth Cavanaugh by the testator’s will, in case it should not be disposed of by the will of his wife. In other words, there was no intention to grant the right to his wife of disposition by will of one-half of the residue of the property in the hands of the trustees, unless she accepted the provisions of the will in lieu of her dower, nor to vest in said Elizabeth Cavanaugh by his will any part of his estate of which his wife was not given the right of disposition thereunder.

It was the certain, unmistakable intention of the testator, as shown by the will, to give one-half the residue of the property, in the hands of the trustees at the death of his wife, to his nieces, as provided‘in clause 3 thereof, in any event. This intention could not be defeated by any action taken by the widow, since she could only dispose of one-half of the residue of the estate, if she accepted the provisions made in the will in lieu of her dower under the terms of the will, and rights of Elizabeth Cavanaugh In the estate depended necessarily upon the action of the wife in taking under the will, and ended when she renounced its provisions and took her dower under the law.

' It "follows that the chancellor did not err in his construction of the will, and the decree is accordingly affirmed.


text:
    Watson v. Stout Lumber Company.
    Opinion delivered October 31, 1927.
    1. Logs and logging — -extension of term for removing timber.— An instrument conveying timber for a substantial consideration . with the right to cut and remove same for a 3-year period and providing for an extension of time from year to year thereafter for 2 years additional, on the payment- yearly in advance to the owner of the land of a certain -sum, held as to the extension provision not a mere option to purchase, of which time is of the essence.
    2. Logs and logging — -extension of- contract for removal of timber. — Under an instrument conveying, for a substantial consideration, a right to cut and remove timber for a 3-year period, with a privilege of extending the time from year to year thereafter for an additional 2 years, upon payment yearly in advance of a specified sum, payment of the money to secure the extension within 5 days after the expiration of the 3-year period, and before notice by the grantor of an intention to declare a forfeiture, held a substantial compliance with an agreement entitling the grantee to an extension of time as against the grantor’s claim of forfeiture not expressly provided for in the contract.
    Appeal from Calhoun Chancery Court; J. Y. Stevens, Chancellor;
    affirmed.

      Compere & Compere and J. R. Wilson, for appellant.

      Gaughan & Sifford, for appellee.
   Kirby, J.

Appellant brought this suit to cancel the original timber deed made- by him to the Stout Lumber Company as a cloud upon his title, and to declare a forfeiture of the rights of the grantee to the timber conveyed, and to confirm and quiet his title as against the lumber company, and from the decree dismissing his complaint for want of equity this appeal is prosecuted.

It appears from the testimony that appellant sold the timber on 160 acres of land in Calhoun County to the lumber company for $2,200 cash, and conyeyed same by his deed executed-on the 13th day of January, 1923, which recites: ‘ ‘ For and in consideration of the sum of two thousand two hundred dollars to the parties of the first part paid by the party of the second part, receipt of which is hereby acknowledged, the said parties of the first part do this day grant, bargain and sell nnto the said party of the second part, and unto its successors and assigns, all of the timber and trees on the above described lands, ten inches and over at the stump at the time of cutting. It is agreed that the party of the second part, the grantee herein, its successors, heirs or assigns, shall have the period of three years from the date of this instrument within which to cut and remove said timber from said lands, together with the privilege of extending said time for cutting and removing said timber from year to year thereafter for an additional two years upon the payment, yearly in advance, to the owner of said land, a sum of money equal to the ten per cent, of the purchase price paid for the timber as hereinabove set out, or said payment may be made to the credit of the said vendees or the then owner of said lands in the Bank of Hampton, at Hampton, Arkansas.”

The appellant testified that he had called at the bank, where the contract provided the money to be paid for the extension of time should be deposited, and was informed by the cashier, on the 14th,- that no such deposit had been received. He then consulted his attorney, and had him to notify the lumber company, by letter of Jan. 20, 1926, in which the $220 check was returned, that he claimed a forfeiture under the deed because of failure to pay the money within the time required. This letter reads as follows:

“January Twentieth, 1926.
“The Stout Lumber Company,
Thornton, Arkansas.
“Gentlemen: I am returning herewith the check for $220 which you mailed to Mr. J. L. Watson at Tinsman, Arkansas. The money was to be paid to Mr. Watson on the 13th of January, or deposited to his credit at the Bank of Hampton. Mr. Watson did not receive the money himself on the 13th, and he went to the bank on the 14th, and no money had been deposited there.
“We note that the check was dated January 12, but if it was written on that date, you evidently let it stay in your office until the 17th, as Mr. Watson did not receive the check until this week. He lives on a rural route, and, as soon as he received the check, he came down to see me; ■that is, as soon as he was able to get an engagement with me, and, after considering his legal rights, I advised him to return the check uncollected.
“Mr. Watson advises me to state further that’you ■have forfeited all rights that you have under the timber deed, and that he would like to have you advise me whether you will relinquish any further claim or whether it will be necessary to take court action to clean up his title and get things in shape so that he will not be bothered with any further claim on the part of your company as to his land, or any rights thereto.
“Yours truly.”

Appellant had not consulted his attorney about the matter until he received the check for $220, on January 18, made no objection to the payment because it was attempted to be made by check instead of money, and said: “I regarded the contract as forfeited upon the grounds that they had failed to meet the terms of the contract, therefore I returned the check, because it was their timber. They had forfeited the contract. The term mentioned in the timber deed expired on January 13, 1926. The company was” to have not to exceed two additional years, if they wanted it, by paying 10 per cent, each year in advance.” Had had no correspondence with the company about extending the time for removing the timber.

The court found that the lumber, company tendered and offered to ..pay into the registry of the court $220, being the sum heretofore tendered to the plaintiff, together with 6 per cent, interest thereon from Jan. 13,1926, and that the plaintiff’s complaint should be dismissed for want of equity, which was done.

Appellant contends time was of the essence of the contract, that the provisions for the extension of time for removal of the timber partook of the nature of an option to purchase, and that, to effect such extension, the grantee would have had to pay the $220 specified, yearly in advance, beginning before the expiration of the three year period, and, not having done so, the court erred in not holding the contract forfeit and canceling it.

The lumber company purchased the standing timber on the lands with the right to enter and remove it, paying therefor the substantial sum of $2,200. It was provided by the terms of the contract that the time for removal of the timber could be extended for two years by payment of 10 per cent, of the purchase price of the timber yearly in advance. There was nothing said in the contract about time being of its essence, nor that purchase right to the timber should be forfeited if it was not removed within the three-year period, or an extension of time effected by payment in advance of 10 per cent.- of the purchase price.

It is also undisputed that the appellee wrote its letter, dated on the 12th day of January, 1926, inclosing its check of same date for $220 in payment for the extension of time, the day before the three-year period for removal of the timber expired, and, although the letter, for some unexplained reason, did not appear to have been mailed until the 17th and did not reach appellant, grantor, until the 18th, he had made no complaint of any failure to receive notice of an intention to extend the time or the money for such extension, nor had he manifested any intention of declaring the contract forfeit because the money had not been paid sooner than it was received by him.

In 17 R. C. L. it is said:

“Where, as is frequently the case, agreements carry within themselves a provision for the extension of the time for cutting and removing, it is difficult to lay down rules for* their construction, as. the question in each case must depend upon the terms of the contract.”

In 10 R. C. L. it is said:

■ “The doctrine of equity being not forfeiture, but compensation, the most vital question in determining whether a court of equity will grant relief against a penalty or a forfeiture may be said to be the ability and willingness of the party in default subsequently to perform the condition or make compensation for his failure of performance. * * * On account of the impracticality of laying down any definite rule or principle by which it is to be determined whether compensation can be made when the breach consists in something more than the payment of - money, it has been stated by some courts that equity will only grant relief against a forfeiture where the condition broken was for the payment of money, this holding being based on the principle that the allowance of interest for the delay forms a certain rule of compensation and is equivalent to payment at the day. * * * In such cases, where compensation can be made, and in the absence of circumstances making such action clearly inequitable, relief (that is, relief against forfeiture) will be granted almost as a matter of course.” (Section 77).

The purchaser. of the timber, with the right to remove it, had paid a substantial consideration, the amount required by the seller, and owned it, till the expiration of the time allowed for removal. He had also paid for the privilege of an extension beyond the three-year period for removal, for two years, upon the further payment of 10 per cent, of the purchase price of the timber yearly in advance. He certainly was the owner of the timber during the three-year period granted for its removal, and could continue his right to the removal of his property for another two years upon compliance with the terms of the contract, and unless he forfeited such ownership and right by the failure to comply with the terms of the contract. Here was an attempt made to pay the money required to be paid in advance before the expiration of the three-year period and an actual delivery of the money specified for such extension within five days after the expiration of the first period for removal, and also before any complaint of the failure to pay the money sooner, or any intention to declare the contract forfeit for its not having been paid, was made. Not only so, but the grantee came into court upon the grantor’s suit for cancellation of the deed and forfeiture of the timber, and renewed his tender of payment of the money required for the yearly extension.

This suit is not one asking relief against a penalty or forfeiture, but one by the grantor invoking the powers of equity to declare a forfeiture, which equity is said to abhor. The doctrine of equity is not for forfeiture, and the most vital question in determining whether a court of equity will grant relief against a penalty or forfeiture is said to be' the ability and willingness of the party in default subsequently to perform the condition or make compensation for his failure of performance. The appellee herein not only attempted to pay the money “nominated in the bond” or contract, but actually delivered it to the appellant within five days after the expiration of the first period designated for the removal of the timber, and before the appellant had indicated any intention of declaring a forfeiture for its noncompliance, and, in his answer to the complaint for forfeiture, alleged his willingness and ability to perform the condition or make compensation for his failure of performance, and tendered the money necessary therefor.

We think that this provision of the contract for an extension of the time for removal of the timber was more than a mere option to buy where the consideration is only paid for the time in which to do something else necessary to effect the purchase, the grantee herein having already purchased and paid for the timber, with the right to remove it, and partakes rather of the nature of a condition subsequent, and that, under the circumstances of this case, the payment of the money specified in order to secure the extension for one year, within five days after the expiration of the three-year period designated for its removal, and before any notice by the grantor of an intention to declare a forfeiture, was a substantial compliance with the condition relating to the extension, amounting to the payment yearly in advance within the meaning of the contract.

The decree is accordingly affirmed.


author: Mehapfy, J.-

text:
    Arkansas Power & Light Company v. Orr.
    Opinion delivered October 31, 1927.
    1. Evidence — hearsay statements — In an action by a landowner for injury- to his corn cro-p by having his land flooded by defend- ■ • ant’s opening the gates of a dam, testimony of witnesses detail- ,. ing statements of the person in change of the gates, made out of. court on the day following the flood and damages, relative to his being the defendant’s agent, as to his authority under such' '■agency, .and as to his actions and other conditions at the time of 'the damage complained of, held improperly admitted as hearsay.
    2. 'Appeal and error — admission of evidence. — harmless error. — . The improper admission in evidence of the declaration of a person* that he w;as defendant’s agent in charge of the gate at the. time the .damage was done, held not. a ground for reversal, where there was direct and competent evidence as to the same-matters.
    3. '. Waters and watercourses — instruction as to liability for flooding land. — Where, in an action for the destruction of plaintiff’s corn crop by waters released through defendant’s negligent operation of a. dam gate, the court instructed the jury that plaintiff could recover if defendant negligently raised the gates and caused the water to flow, such instruction was not erroneous as making defendant an insurer.
    ■ ; Appeal from Hot Spring Circuit Court; Thomas E. Tóler, Judge;
    reversed.

      W. H. Holmes, Harry E. Meeh and Robinson, Hoiose & Moses, for appellant.

      H. B. Meang, D. D. Glover and D. M. HaVbert, for appellee.
   Mehapfy, J.-

The appellees, plaintiffs below, filed suit' in the Hot Spring Circuit Court against the appellant, défendant below, alleging that they.are residents of Hot Spring County, and that Orr' is the owner of' a tract of land in a high state of cultivation, which he rents to tenants and receives part of the crops raised thereon as rent. That the land is low, and lies adjacent to the Ouachita Eiver. That the defendant company is a corporation, and is engaged in the business of generating electricity, which it supplies to the public for hire, and, for the purposes of generating said electricity, it has constructed a dam across the Ouachita Eiver near Cove Creek, in Hot Spring County, and has created a very large lake of water, and, in connection with said dam, it has installed a system of floodgates which it can raise and lower, and that it is doing business under the laws of the State of Arkansas. That, in the year 1925, plaintiff Orr rented said tract of land to Walter Hughes, and was to receive one-half of the corn which was raised thereon as his rent for said land. That Hughes planted and cultivated a crop of corn, and it grew and matured thereon. That, on the 16th day of October, 1925, the agents, servants and employees of the defendant company in charge of said dam carelessly and negligently, and without regard to the rights of the plaintiffs, raised the floodgates on said dam and permitted the water to flow out of the lake as aforesaid, causing it to overflow the plaintiff’s land and destroying the plaintiff’s said corn, destroying four hundred bushels, which was of the market value of $1 per bushel. Plaintiffs allege that, on account of the carelessness and negligence of the agents, servants and employees of the defendant company in raising the floodgates on their .dam as aforesaid and overflowing the plaintiff’s crop of corn as aforesaid, the plaintiffs have been damaged in the sum of $400.

Defendants filed a motion .to make more definite .and certain the '-complaint, and thereupon the plaintiffs, in response to said- motion, stated that the land mentioned in plaintiff’s complaint is a part of-the southeast'quarter of the southeast quarter of section 32, township 5 south, range 18 west, in Hot Spring County, Arkansas.

The defendants answered, denying the allegations about the ownership of the land and cultivation of it, and admitted that it was a corporation generating electricity which it supplies to the public for hire; admitted the construction of the dam and the creation of the lake, and that it had installed a system of floodgates, and that it was doing business in Arkansas. It denied that its agents, servants and employees carelessly and negligently, and without -regard to the rights of the aforesaid plaintiffs, raised the floodgates on said dam and permitted water to flow out of said lake as aforesaid, causing it to overflow plaintiff’s crops in the amount set forth in the complaint. Defendant denies that it is guilty -of: any negligence and denied that plaintiffs were damaged in any amount.

Further answering, the defendant stated that, -under the express permit and license of the State of Arkansas and the United -States of America, it built a dam for commercial and public service purposes, and that the dam was constructed by competent engineers in a satisfactory manner and for the best protection of the property rights of any persons who might be affected by said construction; that such dam is so constructed as hot to interfere in any way with the natural flow of said running stream, nor the volume thereof, nor the natural channel thereof; said dam being' built on this defendant’s property and maintained and operated with care and caution at all times. That the land described by plaintiffs is and has long been subject to overflow by the Ouachita River, even before the construction of said dam herein mentioned; that the construction of said dam or its opération in no way affected the susceptibility of plaintiffs’ lands to overflow; that, at the time of the damage herein complained of, there was a general overflow caused by excessive rains and freshets that rendered the destruction of all crops situated as was plaintiff’s inevitable, including plaintiffs’, independent of the defendant’s dam; that crops both above and below defendant’s dam were destroyed, and that the conditions were the same or similar as to such other farms and crops as those that surrounded plaintiffs ’; that plaintiffs knew, or, by the exercise of reasonable diligence, could have known of this condition and the susceptibility of their lands to overflow and their crops ’ consequent destruction, and guarded against same. That, if plaintiffs suffered any damage at all, the damage was caused by surface water and acts of Cod.

The defendant filed motion for change of venue, which was by the court overruled, and exceptions saved. There was a verdict and judgment for the plaintiffs in the sum of $300. Defendants filed motion for a new trial, which was overruled and exceptions saved, and defendants have appealed to this court.

The appellant’s first contention is that the court erred in admission of testimony of witnesses Fisher, Stanley and Keith, detailing statements of party in charge of the gates of the dam, alleged to have been made on the day after the flood and damage. And appellant states that the entire case is based on this improper and highly prejudicial testimony.

We think this testimony was incompetent. The court should not have permitted these witnesses to testify to statements and declarations made by Murray. Neither the fact of agency nor the extent of an agent’s authority can be proved by his declarations out of court.

“The authority of an agent, and its nature and extent where these questions are directly involved, can only be established by tracing it to its source in some word or act of the alleged principal. The agent certainly cannot' confer authority upon himself or make himself agent merely by saying that he is one. Evidence of his own statements, declarations or admissions, made out of court therefore (as distinguished from his testimony as a witness), is not admissible against his principal for the purpose of establishing, enlarging or renewing his authority; nor can his authority be established by showing that he acted as agent or that he claimed to have the powers which he assumed to éxercise. His written statements ’and admissions are as objectionable as his oral ones, and his letters, telegrams, advertisements and other writings cannot be used as evidence of his agency. Tho fact that the agent has since, died does not change the rule. ’ ’ Mechem on Agency, § 285.

‘ ‘ Evidence is called hearsay when its probative force depends, in whole or in part, on the competency and credibility of some person other than the witness by whom it is sought to produce it. The courts will not receive the testimony of a witness as to what some other person told him, as evidence of the existence of the fact asserted. This rule of exclusion is the same whether the evidence offered consists of a statement purported to be based on the declarant’s own knowledge, but objectionable as unsworn, or of a sworn statement as to matters known to the declarant only through hearsay. The reason for the rule is that the unsworn statement of a person not called as a witness or subjected to the test of cross-examination is not recognized as having a sufficient probative effect to raise an inference that the fact is as stated.” 22 C. J. 199.

The unsworn declarations of an agent are not admissible on behalf of the principal, even though the agent is dead. They are not admissible against the principal as a general rule.

The admission of the testimony as to the declaration of Murray that he was the agent, or in charge of the property, was improper, but that part of his declarations would not justify a reversal of the case, because “where there is direct evidence as to the same matters as to which a party’s declaration has been admitted in evidence against the objection that it was self-serving, the admission of the declaration, even if technically improper, cannot be regarded as error.” 22 C. J. 230.

“A rule which has been stated and applied many times by reviewing courts, is that the admission of improper or objectionable evidence is harmless error where the fact involved is fully and clearly established by other evidence which is competent. This rule applies not only where the evidence improperly admitted consists of oral testimony, but also where it consists of photographs, maps, depositions, and, although the rule as stated is supported by numerous cases, it has even 'greater force where the evidence properly received is admitted without objection or is of a more conclusive character than that improperly admitted, where not only the fact in question but the whole of the prevailing party’s case is amply sustained by competent evidence, or' where the complaining party himself adduces evidence to the same effect.” 4 C. J. 975.

As to the question of agency and the testimony of these witnesses as to Murray’s declarations, the error of admitting this incompetent testimony was cured by the testimony introduced by the defendant itself. It proved by Murray that he was the agent, and it also proved the .same fact by others. If this were true as to the other testimony of these three witnesses as to Murray’s •declarations, the improper admission would not be a ground for reversal. But plaintiffs did not prove the same facts with reference to raising the gates and the manner in which they were raised by other and competent eyidence. In other words, these three witnesses testified as to the declarations of Murray with reference to raising the gates and what he said about the height of the water, and that he said he was in charge of the property, etc. Also his statement about how high the water went below the dam, and other declarations, some of which were denied by Murray, and Murray’s testimony contradicted the statements that these witnesses said he made.

An examination of the testimony of these witnesses and Murray’s testimony will show that the testimony of these witnesses as to his declarations, except as to his ■agency, were different from his testimony, and therefore they would not come within the rule that, when incompetent testimony has been admitted and the same • facts proved by competent testimony, the error is cured. The testimony of these witnesses was hearsay, and improperly admitted. The testimony of these three witnesses was not proper as part of the res gestae.

If plaintiffs had wished to contradict Murray’s testimony about any of these matters they would first have to ask him about the statement and then put on their witnesses to contradict him.

“It appears that the admissibility of one class of statements depends upon their being spontaneous and impulsive, the material inquiry being whether the statements offered as evidence were made at a time and under such circumstances as to induce the belief that they were not the result of reflection or premeditation. A distinct class, however, exists in the case of statements which themselves are facts constituting a part of the transaction under the investigation. * * * Such statements are of the res gestae, are of the nature of verbal acts, and are admissible in evidence with the remainder of the transaction which they illustrate.” 10 R. C. L. 976.

The testimony of these witnesses simply showed that Murray narrated the facts the following day, and they were wholly inadmissible as a part of the transaction.

It is next contended by the appellant that the instructions of the court, given at the instance of the plaintiff, and those given in behalf of the defendant, were confusing and contradictory, submitting conflicting views of the law, could not be' harmonized, and constituted prejudicial error.

We do not agree with appellant that the instructions are confusing and contradictory. And, since the plaintiff introduced testimony of the declarations of the agent and this testimony was incompetent, the evidence in another trial will necessarily be from other witnesses, and it may be that this testimony, if introduced, might necessitate the giving of different instructions. At any rate, we do not think it can be said that the instructions as given by the court were confusing and contradictory.

It is next contended that the court erred in giving plaintiff’s instruction No. 1, which makes the defendant an insurer of plaintiff’s crops, and gives an erroneous view of the law governing riparian rights. Instruction No. 1 tells the jury that plaintiff may recover if it negligently raised the gates and caused the water to flow, etc. No matter what the rights of the defendant might be with reference to building the dam and gates and operating the same, if it did' these things negligently and this negligence caused the injury to the plaintiff, of course it would be liable. It is not liable because it built the dam or gates or operated the same, but it is only liable if its negligence caused damage. And this is what instruction No. 1, requested by plaintiff, tells the jury.

Appellant next contends that there was no testimony to sustain the verdict.

We have already held that the testimony of witnesses as to the declarations of the agent was incompetent, and that proof of the facts necessary to make a case would have to be by Avitnesses other than those simply testifying to the declarations of the agent. And, since the case Avill have to be retried and the erroneous evidence eliminated or omitted, we do not pass on the question of the sufficiency of the evidence, and deem it unnecessary to set out the evidence here.

For the error in admitting incompetent testimony the case is reversed, and remanded for a new trial.