author: Mehaffy, J.,

text:
    Arkansas Power & Light Company v. Cates.
    Opinion on Rehearing Delivered January 27, 1930.

      Raymond Roddy, W. ff Holmes, Harry E. Meelc and Robinson, House & Moses, for appellant.

      Tom W. Campbell and W. R. Donham, for appellee.
   Mehaffy, J.,

(on rehearing). On the 30th day of April, 1915, the town council of Waldo, Arkansas, passed an ordinance granting* to the Arkansas Power & Light Company for fifty years “a free right-of-way for the erection and maintenance of poles and wires with the necessary appurtenances thereto for the purposes of operating and transacting a general electric light and power plant business over, through and upon all the streets, alleys, roads and highways within the boundaries of the present and future limits olf' the town of Waldo, Arkansas. The said poles shall be placed at points on a line where streets and sidewalks come together.” Section one of the ordinance.

Section four of the ordinance reads as follows:

‘ That the latest method of construction and good material shall always be used, and the wires shall be insulated so as not to endanger life or property in the maintenance and operation of the aforesaid light and power plant.”

Section five of the ordinance reads as follows: “This ordinance, upon its acceptance in writing by the Arkansas Light & Power 'Company, filed with the clerk or recorder olf the incorporated town of Waldo, Arkansas, shall constitute a contract between the Arkansas Light & Power Company, its successors and assigns, on the one hand, and the incorporated town of Waldo, Arkansas, on the other.”

Thereafter, the Arkansas Power & Light Company, as provided in section five of the ordinance, accepted in the following language: £ £ To the Mayor and City Council of Waldo, Arkansas: The Arkansas Power & Light Company, by H. C. Couch, its president, being duly authorized, hereby accepts the franchise granted, passed and approved on the 30th day of April, 1915. Arkansas Power & Light Company, by H. C. Couch, President.”

The Arkansas Power & Light Company sold its property in Waldo, but re-acquired it in 1925. -In 19T5 and for ten years thereafter the distribution system in Waldo was 6,600 volts. After the appellant re-acquired the property, and until 1926, the wires carried 6,600 volts. But in 1926, so far as the record shows, without any authority from the town of Waldo, the voltage was increased from 6,600 volts to 13,000 volts. The wires carrying the high voltage were not insulated. Two of them were wrapped, and, according to the evidence of appellant, the wrapping was for protection against the weather. Bnt the third wire, the one nearest the building, was not wrapped or insulated in any way.

In 1928 a two-story brick building was erected on Main .Street, the second story being 4% feet from the inside wire, the one that was not wrapped or insulated, and this wire was on a level with the top olf the windows in the second story.

Appellee’s intestate, Yirgil L. Cates, was in the employ of the Gay Oil Company of Little Bock, which company operated a filling station in the building above mentioned. His duties for his employer took him to Waldo, and, on November 15, 1928, while there, he discovered an electric sign which had not 'been attached to the building. He employed a contractor, Frank Spradling, to put up the sign, and attach it to the building which was done according to directions. This was accomplished by twisting together two No. 9 wires, attaching them to the end of the sign, running them through a vent hole in the wall of the building and fastening them to a joist in the attic above the second story, which left the sign hanging about 16 feet above ground. After the wire was fastened to the joist in the attic, Spradling’s helper, Johnson, broke off the surplus wire, and .pushed it back through the vent hole. Spradling, who was on a ladder near the sign, was pulling the surplus wire through the vent, and, by reason of a crook on the end oif the wire it caught in the mortar joint between the brick. The lower end of the wire extended down to the ground and appellee’s intestate took hold of it to assist Spradling in pulling it through the vent. Spradling jerked the wire loose, and it fell over against the heavily charged electric wire, causing a short circuit, the entire force of the electric current passing through Oates’ body, which caused his death.

This suit was instituted by his widow as administratrix to recover damages for herself and two minor children, and for his estate. The trial resulted in a verdict and judgment against appellant for $10,000.

As stated by appellant: “Nothing is involved in this appeal except the sufficiency of the testimony to sustain the verdict.” And appellant insists the case should not have been submitted to the jury. Therefore, there is no question for us to consider, but the sufficiency of the evidence to sustain the verdict.

The ordinance provided, among other things, that the wires shall be insulated so as not to endanger life or property in the maintenance and operation of the aforesaid light and power plant.

Section five of the ordinance provides, among other things, that upon the acceptance in writing by the Arkansas Power & Light Company, filed with the clerk or recorder of the incorporated town of Waldo, Arkansas, shall constitute a contract between the Arkansas Light & Power Company, its successors and assigns, on the one hand, and the incorporated town of Waldo, Arkansas, on the other.

Thereafter, the Arkansas Power & Light Company accepted in the language above set forth, and it thereby! became a contract, binding upon both parties.

The evidence introduced on the part of the appellant tends to show that the provisions of the ordinance were complied with except the insulation of the wires, and appellant insists that there is no negligence on the part of the appellant for failure to insulate its wires. They earnestly contend that because witnesses testify that, if the wires had been wrapped, it would have been no protection, but that does not in any way show that if the wire had been properly insulated it would not have been a complete protection. It may be that no type of wrapping could have been a protection, but this ordinance was passed and accepted by the Arkansas Power & Light Company, and became a contract which the Arkansas Light & Power Company and its successors were bound 'to comply with. And appellant insists that insulation can only mean the proper and standard size and type of poles and cross.-arms and insulators.

The ordinance provides that the company shall always use the latest method of construction and good material. If appellant’s contention were true, that would cover all that it was required to do under the ordinance, because its contention is that proper construction meant the standard construction, and that they complied with the ordinance in that way, But the ordinance says they must do that, meaning, certainly, in addition to that, the wires shall be insulated so as not to endanger life or property.

Appellant does not contend that it insulated the wire so as to be of any protection whatever, but insists that, “but from the standard point of the public, it is now recognized as safer to have 6,600- and 13,000-volt wire bare, and this distinguishes the high voltage from the low voltage wire, and acts as a signal to put the pulblic on notice that, since these wires are bare, they carry a high voltage and should be avoided.” But that is not the ordinance; not the contract. The contract is to insulate the wires, and by this promise to insulate the wires it secured the passage of the ordinance. It was not required to accept the ordinance, but it did do so and the ordinance itself expressly provided that, when it did, it became a contract.

Some of appellant’s witnesses testify that it would be expensive and impracticable, and that it would not be feasible. Whether it was not feasible or practicable and was very expensive is immaterial. The company contracted to do1 this. It evidently knew at the time that it could insulate the wires of 6,600 volts, and knew whether it was feasible, knew how expensive it would be, and knew whether it was practicable. It certainly knew more about these things than the other contracting party, and it agreed to do this.

“Inconvenience, or the cost of compliance, though they might make compliance a hardship, cannot excuse a party from the performance of an absolute and unqualified undertaldng to do a thing that is possible and lawful. Parties sui juris bind themselves by their lawful contracts, and 'Courts cannot alter them, because they work a hardship. The rights of the parties must be measured by the contract which they themselves made. A contract is not invalid, nor is the obligor therein in any manner discharged from its binding effect, because it turns out to be difficult or burdensome to perform. Nor will unforseen difficulties, however great, excuse him. The law regards the sanctity of contracts. ’ ’ 6 R. C. L. 929.

Most of appellant’s witnesses did not testify that it would be impossible to insulate wires with 13,000 volts, but they testified that it would be expensive. They, however, did not testify to facts showing how expensive it would be or how much it would cost to' insulate the wire. They simply testify that it would be expensive, and one witness says it would be ridiculous.

The fact that it is expensive or ridiculous would not excuse the appellant from performing its contract. But, if it did, the testimony in this case is not with reference to any facts; no witness testifies to how much it would cost, nor do they testify to any facts that would prevent it from being feasible. "What the witnesses of appellant might think was expensive or not feasible might not agree with what others would think was feasible or inexpensive, and, for that reason, if this question was involved, the witnesses would not be required to give their opinion of these things, but give the facts, and let the jury determine from the facts whether it was feasible or not.

One cannot contract to do a thing and then, because witnesses testify that it was unreasonable or expensive, be discharged from its obligation. In the first place, this is not material. The ordinance required the wires to- be insulated, and the appellant accepted the ordinance, and it was bound to insulate the wires, no matter whether it was expensive or feasible or not. But, even if it could not insulate the wires, it would be required to provide other means of safety that would be equally as effective as the insulation of the wires.

This court has recently held: “There is involved here no question about the duty of the electric company to insulate all its wires. The authorities appear to be unanimous in holding’ that there is no such duty, but the cases do hold, as we understand them, that this duty must be performed, or other sufficient safety methods employed to prevent contact with wires conveying’ the current at such places as danger of contact may reasonably be anticipated.” Hines v. Consumers’ Ice & Light Co., 168 Ark. 914, 272 S. W. 59; Morgan v. Cockrill, 173 Ark. 910, 294 S. W. 44; 9 R. C. L., 1213, § 21.

The above authorities, as said in Morgan v. Cockrill, supra, have recognized the true rule, but it is the rule under the common law, and where there is no ordinance or statute. In the instant case the above rule would be correct if there had been no contract and no ordinance. And it would require, without any regard to- the ordinance as held in these cases, that the duty of insulating the wires must be performed, or other sufficient safety methods employed, to' prevent contact with wires conveying’ the current at such places as danger of contact may reasonably be anticipated. But, without regard to the ordinance, it might be reasonably anticipated that a wire carrying 13,000 volts within 4y2 feet of a building was a situation from which it might reasonably be anticipated that persons would conle in contact with the wire.

The above is the rule, as we have said, without regard to statute or ordinance, and would be a question for the jury, and not the witnesses to determine. The court cannot say wires should not be insulated because some witnesses swear it would -be expensive or would not be feasible. This court has always held that the wires must be insulated or other sufficient safety methods employed to prevent contact with wires conveying the current at such places as danger of contact may reasonably be anticipated.

“Not infrequently the duty of insulating electric wires is imposed by municipal ordinance, and in such a case persons whose business or duty takes them in proximity to such wires have the right to assume that the law has been complied with, and if an electric company fails to perform the obligation thus placed upon it, such failure is prima facie evidence of negligence, entitling a person injured by reason of such omission to recover damages unless guilty of contributory negligence.” 9 R. C. L. 1224; 20 C. J. 361.

This is the well-established rule and has been repeatedly approved by this court.

“It is manifest that, in passing the ordinance prescribing the height of the wires of the telephone company, and of the street railway company, and their relative distance from each other when it was necessary for their wires to cross each other, the council recognized the danger to the public when these wires came in contact, and had in view the protection of persons who had a right to travel upon the streets. The passage of the ordinance was a municipal regulation, authorized by the laws of the 'State, and has the force of a statute within the limits of the city. It was the duty of the defendant companies to comply with the ordinance, and failure to do so is prima facie evidence of negligence on their part. These principles are established by the following cases.” S. W. Tel. & Tel. Co. v. Myane, 86 Ark. 548, 111 S. W. 987; Hayes v. Michigan Central Rd. Co., 111 U. S. 228, 4 S. Ct. 369; Mitchell v. Raleigh Electric Co., 129 N. C. 166, 39 S. E. 801, 55 L. R. A. 398, 85 Am. St. Rep. 735; Bush Electric Light & Power Co. v. Lefever, 55 S. W. 396; Knowlton v. Des Moines Edison Light Co., 117 Iowa 151, 90 N. W. 818; Clements v. La. Electric Light Co., 44 La. Annual, 692, 11 So. 51, 16 L. R. A. 43, 32 Am. St. Rep. 348.

Within the city limits of Waldo' the ordinance, as held by this court, had the force of a statute. It had the same force as if the Legislature had passed a law requiring wires to be insulated; that is, the same force within the limits of Waldo.

Cates was an employee of the Gay Oil Company, and his duties took him to Waldo and other places, presumably to look after the interest of the company, and he saw the sign, that had not been put up, and arranged to have this sign put up. He employed iSpradling to do this, but Gates himself was assisting in the matter, and was therefore where he had a right to assume that the company had complied with the law, and that therefore there was no danger. He was killed, while in the discharge of his duties in a place where he had a right to be, because the company had not complied with the law.

“A company maintaining electrical wires, over which a high voltage of electricity is conveyed, rendering them highly dangerous to others, is under the duty of using the necessary care and prudence at places where others may have a right to go, either for work, business, or pleasure, to prevent injury. It is. the duty olf the company, under such condition, to keep the wires perfectly insulated, and it must exercise the utmost care to maintain them in this condition at such places. And the fact that it is very expensive or inconvenient to so insulate them will not excuse the company for failure to keep their wires perfectly insulated.” 1 Joyce on Electricity, 735; Duncan Electric & Ice Co. v. Chrisman, 59 Okla. 57, 157 Pac. 1031.

The above rule is also stated by another writer in substantially the same language, and, continuing, he says: “This statement of the rule implies that, in the absence of statute or municipal ordinance, it is not necessary to insulate wires which are so placed that no one could reasonably be expected to come in proximity to them.” Curtis on Electricity, 765; 20 C. J. 355.

But the wire which was not insulated and which caused Cates’ death was so placed that it would be reasonably expected in putting the sign on the 'building that persons engaged in this work might come in proximity to the wire. At any rate, it certainly could not be held, as matter of law, that it would not be reasonably ex.pected that persons would come in proximity to the wire.

The .authorities are practically unanimous in holding that a failure to comply with a statute or ordinance is prima facie evidence olf negligence. The facts in this case are that the ordinance was passed imposing the duty to insulate the wires. This duty was not performed, and, by reason of the "failure to comply 'with the ordinance, Gates was killed when he was at a place where he had a right to be, and he had the right to assume that the appellant had complied with the ordinance. But, if there had been no ordinance requiring the wires to be insulated, and had been no contract, it was the duty of the appellant to insulate its wires where it might reasonably be anticipated that persons, pursuing business or pleasure may come in contact with them. In this case a wire carrying 13,000 volts was within 4% feet of the building. Cates was on the ground helping to pull a wire from the building. "When the wire came loose, it fell and came in contact with the wire of the appellant and Cates was killed. He had a right to help hang the sign, and had a right to be where he was.

The appellant, however, insists that, if its wire had been ten feet from the building, this wire that was pulled out by Cates would have reached it. This is a mere matter of opinion and is given by the witnesses as opinion. It was a question of fact for the jury. This was not an iron rod, but a wire, and persons might very well have different opinions as to where and how it would have fallen if the appellant’s wire had been further away. It is not for the court or the witnesses to say what their opinion is, but it is a question for the jury. Appellant, however, says it was not required to insulate the wire, because it would not have been (feasible or practicable and would have been very expensive. This, if true, would not relieve the appellant.

“'Considering' the dangerous character of the force produced by the gas company, there was a duty imposed on each to see that the wires into which it was sent were properly insulated. The danger was exactly the same, whether the wires were owned by one or both of the corporations. When one, through the instrumentality of machinery, can accumulate or produce such deadly force as electricity, he should be compelled to know that the means of its distribution are in such condition that those whose business or pleasure may bring -them in contact with it may do so with safety. * * If the wires were not properly insulated, and the death resulted therefrom, then both companies are liable, as it was the duty of the street railway company to have its wires properly insulated, and there was a duty resting on the gas company to see it was done before charging them with electricity.” Maysville Gas Co. v. Thomas, (Ky.) 75 S. W. 1129; Thomas v. Maysville Gas Co., 108 Ky. 224, 56 S. W. 53, 53 L. R. A. 147.

“Either the wire must be insulated, or it must be so located as to be, comparatively speaking, harmless. If the company does not choose to properly insulate a deadly wire of its maintenance, it must place the same underground, at a high altitude, or at some inaccessible place. ’ ’ Curtis on Electricity, 772.

It is true that the two-story house was built after appellant’s wire was put up, but when the building was erected it was the duty of the appellant to use ordinary care with reference to the building and proximity to the wire after the erection of the fwo.-story building.

“The duty of an electric company in reference to keeping its appliances in safe condition is a continuing one. Not only must it exercise a high degree of care in the original selection and installation of its electric apparatus, but thereafter it must use commensurate care to keep the same in a proper state of repair. The obligation of repairing defects does not mean merely that the company is required to remedy such defective conditions as are ¡brought to its actual knowledge. The company is required to -use active diligence to discover defects in its system. In other words, an electric company is bound to exercise due care in the inspection of its poles, wires, transformers and other appliances.” Curtis on Electricity, 699.

The evidence in this case shows that appellant knew all about the erection of the building, and knew the proximity of the wire to it, and it was its duty to exercise care, either to insulate it, put it under ground, or elevate it so that there would be no reasonable apprehension of persons rightfully there coming in contact with its wires.

It has been uniformly held that the question as to the negligence of the company, where one comes in contact with a dangerous wire, is for the jury, and it is always the duty of a company in conveying a current of high potential to exercise commensurate care under the circumstances ; and it is required to insulate its wires and to use reasonable care to keep the same insulated whenever it may reasonably be anticipated that persons pursuing business or pleasure may come in contact therewith. See Curtis on Electricity, 765.

It is argued by appellant that the injury would have occurred if the wires had been 8 or 10 feet from the building, and they state that the evidence of Dice that they should have been at least 6 feet from the building, cannot indict the appellant company with negligence. It is true that Dice said that he had not had experience in plants olf that kind, but no' one needs experience to know that a -wire without insulation that close to. a building would be very much more dangerous than if removed at some distance away. And no experience is needed to know that, if the wires were elevated sufficiently, it would be safe. And Dice had had experience in constructing a plant and setting poles and wires, and testified that wires should have been at least 30 or 35 feet high. A competent electrician or an expert in anything would know no more about this fact, that it-would be less dangerous to put them up 30 or 35 feet than where they were, 4% feet from the building'. But, at any rate, we think under all the authorities that the negligence of the company was a question for the jury.

Appellants state that the case of Kentucky Utilities Co. v. Searcy, 167 Ky. 840, 181 S. W. 662, is a perfect illustration of the matter they are discussing. That is, with reference to- the testimony of Dice and the expert witnesses. About the questions there being discussed, an expert would probably know more than a nonexpert, because the testimony referred to in the Kentucky case was testimony with reference to whether or not wires carrying 11,000 volts could be insulated. Certainly, a nonexpert witness would not know whether it could or could not, but in that case the wires were approximately 30 feet high, and the telephone company’s wires were attached to thé electric company’s poles about 4y2 feet below the two insulated wires of the Kentucky Utilities Company, which put them at a distance of about 8y2 feet below appellant’s uninsulated wires. Here was a distance of 8l/2 feet from the telephone wire to the uninsulated wire, but the question of negligence in maintaining that wire and in knowing that to put it 30 or 35 feet would be safer than where it was put, and to put it at a greater distance from the building would make it more safe, is within the knowledge of everybody who observes the situation. Of course a nonexpert witness would not be able to testify about- how and when wires could be insulated.

They held in the Kentucky case that the undisputed proof showed that it was impossible to insulate wires carrying 11,000 volts. That is not the undisputed proof here because one of the appellant’s witnesses testified that wire of 100,000 volts could be insulated. But, whether it could or could not, malíes no difference, because, i-f it could not be insulated, then they had no right to place it and maintain it at a place where people would be reasonably certain to come in contact with it; or where it might reasonably be anticipated that they would come in contact with i;t. If they can not do one, they must do the other. They must, as said by numbers of authorities, either put them underground, insulate them, or elevate them SO' that they will not maintain them at a place where it may be anticipated that persons will come in contact with them.

It is next contended that the evidence conclusively shows that Cates’ death was due to an accident over which the company had no control. It is well established by the decisions of this court that no one is responsible for a mere accident. But there is no evidence of accident in the instant case at all. But, whether the injury resulted from accident or otherwise, of course was a question of fact and was determined by the jury against the appellant. Besides, the word “accident” means an effect that takes place without one’s forethought or expectation. An effect which proceeds from an unknown cause or an unusual effect of a common cause and therefore not expected; a casualty or contingency.

The appellant asked no instruction in the court 'below on the question of an accident, and the case was tried by both parties on the questions of negligence of appellant and contributory negligence of «Cates, and m> other theory was advanced. No mention was made of accident until the appellant’s 'brief was filed in this court.

If injury could be reasonably anticipated from persons coming in contact with the wire, then it was no accident. In fact, there is nothing in the evidence in this case that tends to show that the injury was accidental in the sense olf excusing the persons who' maintained the wire from liability.

All these questions that are argued now «by the appellant were questions of fact properly submitted to the jury.

“It is the province of the .jury to pass upon the conflict in and the weight of the testimony, and the fact that the testimony is conflicting, and that the verdict may even appear to- be contrary to' the preponderance of the testimony, furnishes no ground for reversal. ’ ’ Hyatt v. Wiggins, 178 Ark. 1085, 13 S. W. (2d) 301; S. W. Bell Tel. Co. v. McAdoo, 178 Ark. 411, 10 S. W. (2d) 503; Ark. Power & Light Co. v. Orr, 178 Ark. 329, 11 S. W. (2d) 761; Mo. Pac. Rd. Co. v. Juneau, 178 Ark. 417, 10 S. W. (2d) 867; Mo. Pac. Rd. Co. v. Edwards, 178 Ark. 732, 14 S. W. (2d) 230; Western Union Tel. Co. v. Downs, 178 Ark. 933, 12 S. W. (2d) 887; Wright v. State, 177 Ark. 1089, 9 S. W. (2d) 233; Turner v. State, 109 Ark. 138, 158 S. W. 1072; Peoples Bank v. Brown, 136 Ark. 517, 203 S. W. 579; Harris v. Wray, 107 Ark. 281, 154 S. W. 499; Gazola v. Savage, 80 Ark. 249, 96 S. W. 981.

It is next contended by appellant that the death of Cates was caused by his own voluntary act. The only voluntary act, so far as the proof shows, is that he employed ¡Spradling to hang- a sign, and he was assisting him with it. We have already said that he had a right to assume that the company had not been guilty of negligence and to act accordingly, and, if he did that, it was not his voluntary act, but the negligence of the company that caused the injury. These questions, that is, the questions of contributory negligence, accident, and voluntary act of Cates were all questions of fact properly submitted to the jury, and the jury found against the appellant, and their finding is conclusive here.

There is ample evidence to sustain the verdict, and the judgment of the circuit court is affirmed.

Hart, C. J., Smith and McHaney, JJ., dissent.


source: Caselaw Access Project

author: Hart, C. J.,

license: Public Domain

text:
    Oil Fields Corporation v. Cubage.
    Opinion delivered February 3, 1930.

      Albert L. Wilson and Marie T. Wilson, for appellant.

      Gaughan, Gifford, Godwin $ Gaughan, for appellees.
   Hart, C. J.,

(after stating the facts). In the first place, it may be stated that where a. case is tried on oral evidence, and such evidence is not brought into the record by bill of exceptions or otherwise, and no motion for a new trial is filed, this court can only consider on appeal errors apparent from the face of the record. Buchanan v. Halpin, 176 Ark. 822, 4 S. W. (2d) 510; Tuggle v. Tribble, 177 Ark. 296, 6 S. W. (2d) 312. In the application of the rule to the present appeal, we must indulge the presumption that the evidence introduced warranted the jury in returning- a verdict for appellees in the sum of $500.

Counsel for appellant recognizes this rule, but rely for a reversal of the judgment on the ground that the court erred in not sustaining appellant’s motion for judgment notwithstanding the verdict. They rely upon § 6273 of Crawford & Moses ’ Digest, which provides that where, upon the statements in the pleadings, one party is entitled by law to judgment in his favor, judgment shall be so entered by the court, although a verdict has been found against such party.

In the first place, it may be said that judgment notwithstanding the verdict can be entered only when motion is made after the verdict, and before the entry of judgment thereon. Freeman on Judgments (5th ed.), vol. 1, § 10; 15 R. C. L. 608; and 33 C. J. 1187, at paragraph 117.

While the common law has been relaxed to the extent that a defendant may have a judgment notwithstanding the verdict in a proper case, still such a judgment can be rendered only when the pleadings entitled the party against whom the verdict is rendered to a judgment. Fulbright v. Phipps, 176 Ark. 356, 3 S. W. (2d) 49; and 33 C. J. 1180, at § 112. See also Collier v. Newport Water, Light & Power Co., 100 Ark. 47, 139 S. W. 635, Ann. Cas. 191313, 458, and Scharff Distilling Co. v. Dennis, 113 Ark. 221, 168 S. W. 141.

Even if appellant had filed its motion before the entry of judgment, it cannot be said that there was no statement in the complaint to justify the court in entering a judgment in favor of the appellees, who were the plaintiffs below. They allege in their complaint that the appellant committed a 'breach of the contract (by failing to supply them with living and traveling expenses while securing the additional acreage as it had agreed to do. They also allege that it had failed and refused to pay appellees two dollars per lease as it had agreed to do. Both these matters constituted, under the allegations of the complaint, a violation of the contract between the appellant and appellees, and we must indulge the presumption that the proof showed that the amount of damage was $500. In any event, it was some substantial amount, and the court could not have entered a judgment in favor of the defendant notwithstanding the jury had found a verdict in favor of the plaintiff. As above stated, there being no motion for a new trial, we must indulge the presumption that the evidence was legally sufficient to support the verdict.

Again, it is insisted that the motion should have been granted, because appellees could have secured the 1,000 additional acreage from the Fordyce Lumber Company, and that this, together with the 2,800 acres of leases in escrow, would have made un the 4,000 acres which they required. The complaint, however, alleges that appellant failed and refused to enter into a contract with the Fordyce Lumber Company for leases on its 1,000 acres of land, and that, on this account, appellees failed to secure the leases from the Fordyce Lumber Company. Again, they stated that appellees were not damaged, because they were in control of oil and gas, leases largely in excess of the amount which appellant agreed to secure from them. This would not make any difference. Under the allegations of their complaint, appellees were entitled to recover damages against appellant for breach of contract. One of the grounds for the breach of the contract wias that appellant had failed and reifused to pay them their living expenses and traveling expenses in securing the additional leases, and had also refused to pay them for certain additional leases. No matter howr much appellees might have made from the contract, they were entitled to recover whatever damages they may have suffered by reason of the breach of it on the part of appellant.

We find no prejudicial error in the record, and the judgment will therefore be affirmed.


text:
    Skelly Oil Company v. Murphy.
    Opinion delivered February 3, 1930.

      Marsh, McKay <& Marlin, W. P. Z. German, Robert M. Turpin, Geo. W. Cunningham, Alvin F. Mblowy and Gaughcm, Sifforcl, Godwin & Gaughan, for appellants.

      J. P. Machen, Jr., for appellee.
   Hart, C. J.,

(after stating" the facts). The parties to this lawsuit have agreed that Oscar T. Murphy has no interest in the land in -controversy, and that his interest therein was legally conveyed by the deed executed by his father on March 3, 1888, and by his recognition of the validity of that deed after he became of age. Oscar T. Murphy owned the lands at the date of his marriage, and his wife never relinquished her dower in the lands. She was married to Oscar T. Murphy on January 19, 1888, and continued to live with him until his death. Oscar T. Murphy ¡moved off the land on March 3, 1888, and never lived on it any more. He died on the 28th day of May, 1927, and appellants claim that appellee is barred of her dower right under an act passed by the Legislature of 1923, entitled, “An Act to Bar, Under Certain Conditions, the Inchoate Right of Dower of Married Women in Real Estate.” General Acts of 1923, p. 250. The act was approved March 5, 1923, and § 1 reads as follows:

“The inchoate right of dower of any -married woman in any real estate in the -State of Arkansas is hereby barred in all cases when the husband has been barred of his title, or of any interest in said property for fifteen years or more, and also in real estate or interest therein conveyed by the husband, but not signed by his wife when such conveyance is made fifteen years ago or more. This act shall affect her inchoate right of dower in real estate only where the husband has now" been barred fifteen years or more, or, when a conveyance by him without her signature has been made fifteen years or more prior to the passage of this act.”

It will be seen from the terms of the act, that the interest of the husband in the land was barred for more than fifteen years before the passage of the act, and that the inchoate right of dower in the wife is barred, provided the act is valid.

A majority of the courts hold that, before the death of a husband, and while the right of dower is inchoate, it is subject to legislative control, and may be enlarged, diminished, or abolished, by the Legislature. Case note to 12 Ann. Cas., p. 191; and case note to 20 A. L. R. at 1330. Among the cases cited in support of the rule is that of Hatcher v. Buford, 60 Ark. 169, 29 S. W. 641, 27 L. R. A. 507.

The reason for the rule is that, since the wife’s right of dower is not a vested right in property, it is not protected from legislative impairment or destruction by the constitutional guaranties for the protection of property. Randall v. Kreiger, 23 Wall. (U. S.) 137.

The cases cited hold that dower is not a right based on contract, but one resulting from wedlock as an incident to it, and as a matter of social and domestic policy. Therefore the right to dower results from operation of law, and is not an impairment of the obligation of a contract to change or abolish it before the right becomes vested.

In the case of Boney v. State, 156 Ark. 169, 245 S. W. 315, the court held that, the right of the widow to take dower being’ a privilege which the Legislature'may give or withhold, it might impose a tax upon the exercise of the right against the person to whom it is given; such a tax, not being’ a property tax within the constitutional requirements of equality and uniformity. In that case the court expressly said, that the estate of dower was as old as the common law, and that the lawmaking power possesses full and complete control over it.

Again, in Tatum v. Tatum, 174 Ark. 110, 295 S. W. 720, 53 A. L. R. 306, the court recognized that the wife’s inchoate right of dower is not a vested right in the sense that it is not subject to change, or even abolishment, by the Legislature so long as it is contingent, but held that it could not be divested by any act of the husband, and on that account it was a valuable right, which the law would recognize and protect. It necessarily results that, since the right of dower does not exist by virtue of contract, but by operation of law, the obligation of a contract is not impaired by the modification of the law which governs it.

Neither does a modification of a dower statute fall within the ban of the Constitution of the United States, or of the 'State of Arkansas, as to equality of privileges, immimities, and protection of property. In Ferry v. Spokane, Portland & Seattle Ry. Co., 258 U. 85. 314, 42 S. Ct. 358, it was held that dower is not a privilege or immunity of citizenship,' State or Federal, within the meaning of § 2 of article 4 of the Constitution, or the Fourteenth Amendment, but at most a right attached to the marital relation, and subject to regulation by each 'State respecting property within its limits.

In that case, the court upheld the constitutionality of a statute relating to dower in the State of Oregon, which' gave a dower right to resident wives in the lands in which the husband was seized of an estate of inheritance at any time during the marriage; but restricted the dower right of nonresident wives to the land of which the husband died seized. The court, after stating that dower given by the law is believed to be the only kind ever obtained in this country, quoted with approval from Randall v. Kreiger, 23 Wall. (U. S.) 137, the following:

“During- the life of the husband the right is a mere expectancy or possibility. In that condition of things, the lawmaking power may deal with it as may be deemed proper. It is not a natural right. It is wholly given by law, and the power that gave it may increase, diminish, or otherwise alter it, or wholly take it away. It is upon the same footing* with the expectancy of heirs, apparent or presumptive, before the death of the ancestor. Until that event occurs the law of descent and distribution may be moulded according to the will of the Legislature.”

The court also quoted with approval from the opinion of the Circuit Court of Appeals, in the same case, the following:

“The Legislature having the power to give or withhold dower, it follows that it has the power to' declare the manner in which the dower right may be barred, or the grounds upon which it may be forfeited, and, if so, it has the right to provide that it may be barred by the wife’s nonresidence in the State.”

If the Legislature has the power to provide, as it has done in § 3514 of Crawford & Moses ’ Digest, that a widow shall foe endowed of one-third of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage, unless the same shall have been relinquished in legal form, it might amend that statute by providing that a widow shall be endowed of a one-third part of all the lands of which her husband died seized, or it might provide that a widow shall be entitled to dower in the lands of which her husband was seized within a certain number of years before his death.

The general doctrine established by the cases above cited, including our own cases, is that the widow’s right of dower is to be determined by the law in force at the time of her husband’s death, and that during his lifetime her inchoate right of dower may be modified or entirely cut off by statute.

But it is contended that this holding is contrary to the principles decided in Little Rock v. Parish, 36 Ark. 166. We do not think, however, that the principles decided in that case have any application to the present case. Under the provisions of the Constitution construed in that case, cities and towns were required to be organized under general laws, and no change in the boundary lines of a city could therefore foe made by special act. It was further held in that case that, whether a municipal corporation has definite boundaries, and what they are, is for the courts and not the Legislature to determine. Hence the court held that it was a judicial act, and not a legislative one, to determine what were the boundaries of the city of Little Rock under the existing law. 'So it would be a question for the courts to determine what dower a widow would take under laws existing at the time of her husband’s death, but it would be a legislative question to prescribe what portion of her husband’s estate should be given a widow as her dower. To illustrate: Dower is one thing, and the assignment, or allotment, of dower is a different thing. Dower results from marriage, and is an incident to it, and is that part of the husband’s estate which the common law or the Legislature in the change of the common law gives to the widow upon her husband’s death; and the act of giving it is legislative, whether as the result of the adoption of the common law or by act of the Legislature.

On the other hand, the assignment of 'dower is the ascertainment the widow’s interest by laying out or marldng off that part of her husband’s estate at his death, which the law has given her, and is a judicial act.

The act under consideration was passed by the Legislature of 1923, and that was before the adoption of the amendment construed in Webb v. Adams, ante p. 713, prohibiting the Legislature from passing local or special acts. Therefore, at the time the act in question was enacted by the Legislature, it could change or modify the existing statute relating to dower in any manner it saw fit, since its act in doing so did not impair the obligation of a contract within the meaning of the Constitution of the United States or of this State, and did not fall within the ban of these Constitutions against abridging the privileges or immunities of citizens, or depriving any person of property without due process of law, or denying to any person within its jurisdiction the equal protection of the law. By the enactment of the statute in question, the Legislature evidently had in mind to protect innocent purchasers of land when the husband had been barred of his land, or any interest in the property for fifteen years or more prior to the passage of the act. It will be noted that the act expressly states that it shall affect the inchoate right of dower in real estate only where the husband has been barred for fifteen years or more, or when a conveyance by him without the signature of his wife has been made fifteen years or more prior to the passage of the act.

It makes but little difference whether this act be called a general or a special one, since it was within the power of the Legislature at that time to pass special laws. We are of the opinion, however, that the act was a general one, and that the Legislature merely made an amendment to existing* dower laws prescribing- the conditions under which dower should be given, and that there was a reasonable basis for the classification.

The result of our views is that the decree of the chancery court was erroneous, and it will be reversed, and the cause will be remanded with directions to dismiss the complaint of the appellee, who was plaintiff 'below, for want of equity.


author: Smith, J.

text:
    North River Insurance Company of New York v. Loyd.
    Opinion delivered February 3, 1930.

      W. P. Strait and McMillen & Scott, for appellant.

      Edward Gordon, for appellee.
   Smith, J.

Appellee sued the appellant insuranoe company, and recovered judgment for a thousand dollars, the amount of a policy of fire insurance on a stock of goods owned by. him, which was totally destroyed by fire. The insurance company denied liability upon the grounds that the insured had negligently failed to extinguish the fire when he might have done so, and had taken out a thousand dollars additional insurance, contrary to the provisions of the policy sued on, to the effect that no other insurance would be permitted.

There was evidence on the part of the insurance company to the effect that appellant had failed to extinguish the fire when, by ordinary care, he might have done so, but, on the contrary, had caused a fire, which had originated in an adjoining ¡building, to spread to the one in which his stock of goods was housed by scattering hay. This testimony was denied, and, on the contrary, it was asserted that the hay was removed to prevent the spread of the fire. This issue of fact was submitted to the jury under the following instruction: “If you find or believe from the testimony in this case, taking into consideration all the facts and circumstances, that the property covered by the policy sued on was destroyed as a result of a fire originated or started by the plaintiff, then he cannot recover in this suit, and your verdict should be for the defendant.”

The verdict of the jury, which was in appellee’s favor, is conclusive of this issue of fact.

It appears that two policies were issued on the samp, day, each being for a thousand, dollars, and that both policies provided that there should be no other concurrent insurance. The. insured testified, in effect, that he did not intend to keep both policies, and that he took out the policy sued on because of his apprehension that the other would be canceled on account of the location of the building which housed his stock of goods, and the undisputed testimony shows that it was agreed, before the fire occurred, that the other policy should be canceled, although the premium thereon was not actually returned until -after the fire.

Instructions of the court were given upon the theory that the policy sued on was void if there was, in fact, an outstanding* policy for additional insurance at the time of the fire, but that there was liability if the other policy had been canceled before the fire, although the premium had not been returned, and the instructions made the liability of the insurance company dependent upon the good faith of the cancellation of the other policy.

It was and is the theory of the insurance company, as expressed in the instructions asked by it and refused by the court, that the existence of concurrent insurance invalidated the policy sued on, and that the cancellation of the other policy before the fire did not' operate to make the policy sued on a binding; and effective contract of insurance. The correctness of this contention is the decisive question in the case.

The case of Nabors v. Dixie Mutual Fire Ins. Co., 84 Ark. 184, 105 S. W. 92, recognized the rule which appears to be followed by all the courts that “where a policy of fire insurance contains a clause avoiding the policy if insured procures additional insurance, the procurement of su-ch additional insurance without the insurer’s consent avoids the policy.”

The policy there sued on contained such a clause, and liability was denied upon the ground that another policy was outstanding. It was contended, however, that the other policy was void on two g’rounds, “first, because the insured executed a mortgage on the property in violation of the terms of the policy; second, because the insured had taken out additional insurance not permitted by the policy.” The judgment in favor of the insurance company which had been sued, and which judgment had been rendered in its favor upon a verdict directed -by the court, was reversed, for the reason there stated that there was competent testimony tending to show that the other policy had become void before the loss had occurred, and that there was, therefore, no policy of insurance in force at the time of the fire except the one sued upon.

At § 321 of the chapter on Insurance in 14 R. C. L. page 1139, it is said: 1‘ There is a conflict of opinion on the question, whether the fact that a policy obtained in violation of a warranty expires or is canceled before a loss restores the liability of the insurer. Some courts hold that in such a case the insurer is liable; others hold that it is not. ’ ’

Among the cases cited in the note to this text is that of Born v. Home Ins. Co., 110 Iowa 379, 81 N. W. 678, which is annotated in 80 A. S. R. 300. In the annotator’s note it is said: “The general rule to be deduced from the weight of authority is, that the violation ¡of a condition in a policy of insurance, which works a forfeiture thereof, merely suspends the insurance during the violation, and that, if such violation is discontinued during the life of the policy, and is nonexistent at the time of loss, the policy revives, the insurance is restored, and the insurer is liable, although he has never consented to a violation ¡of the conditions in the policy, and such violation has been such that the insurer could, had he known of it at the time, have declared a forfeiture therefor. The decisions upon this subject, however, are by no means uniform, and, while the majority of them maintain the doctrine above stated, a considerable number assert that, upon a breach of condition for which a forfeiture of the insurance might be declared, the policy, from that fact itself, becomes void, and can never be restored to validity except with the consent of the insurer, and that the fact that the breach of condition is past and did not contribute to the loss does not necessarily put an end to the right of the insurer to avoid the policy. Both classes of cases will be noticed in the following note.”

Another case oited in the note to the text from R. C. L. quoted above, is that of Sumter Tobacco Warehouse Co. v. Phoenix Ins. Co., 76 S. C. 76, 56 S. E. 654, 10 L. R. A 736, 12 Am. St. Rep, 941, 11 Ann. Cas. 780. This case is extensively annotated in 10 L. R. A. (N. S) 736, and the annotator’s note accords with that of the annotator in the Born case, supra.

In the Sumter Tobacco Warehouse Company case, supra, the facts were that the policy provided that “This entire policy, unless provided by agreement indorsed hereon or added hereto, shall be void * * * if the hazard be increased by any means within the control or knowledge of the insured. ’ ’ The owner of the building in whose favor the insurance had been written leased the property insured to a tenant, who made a different and more hazardous use of the building, but before the loss by fire occurred the owner took .possession of the building from his tenant, and devoted it to its former use. When liability was asserted against the insurance company on account of damage by fire, liability was denied for the reason stated. In holding the insurance company liable under the facts stated the Supreme Court of South Carolina said: “On this point the authorities are in hopeless conflict. Some courts of high authority hold the policy to be finally avoided by such temporary increase of hazard, ’ ’ and cases to that effect were cited. But the court also said: “It may be reasonable to suppose an insurance company would desire to reserve the valuable right of canceling a policy, even on a temporary increase of hazard, if known to it at the time, because such change might result in loss; but it is not reasonable to impute to it a purpose or desire to curtail its own revenue by canceling a policy on account of a temporary increase of hazard, which has come to an end without loss, and from which it could not possibly suffer detriment. Hence there may be ground for holding’, a temporary increase of hazard forbidden by the policy to avoid the insurance without action, or even knowledge, on the part of the company, when the loss resulted from that cause; but there is no ground for such an inference when the increase of hazard comes to an end without loss. The greater weight of authority supports this conclusion.” ('Citing authorities).

In 2 Wood on Insurance (2d ed.) § 397, p. 809, it is said: “When a policy provides that if other insurance or insurance beyond a certain amount shall be obtained, such policy shall be of no effect, the policy is not rendered void by other insurance, or over insurance, but only inoperative during the period that such ‘other’ or ‘over insurance’ exists, and if, prior to a loss, such other insurance has ceased to exist, or no over insurance exists, the policy is operative and enforcible.”

We do not review the numerous cases cited in the annotator’s notes above referred to, and we accept as true their statements that the weight of authority is to the effect that a policy is not made void by the fact that there was other insurance contrary to the terms of the policy sued upon, where such other insurance had ceased to be in force before a loss occurred. We are convinced that the sounder reason supports this view, and that this rule is more in consonance with principles of justice than the other, as it is not all probable that, if a policy, such as the one here sued upon, expired without a loss, any portion of the premium would be tendered in return, if it were thereafter discovered that there had been in fact concurrent insurance in violation of the provisions of the expired policy on account of which the policy might have been declared void.

In so far as the views here expressed are in conflict with the opinion in the case of German-American Insurance Co. v. Humphrey, 62 Ark. 348, 35 S. W. 428, 54 Am. St. Rep. 297, that case is overruled.

No error appearing, the judgment must be affirmed, and it is so ordered.


text:
    Magna Pipe Line Company v. Ober.
    Opinion delivered February 3, 1930.

      John Bruce Cox and G. E. Wright, for appellant.
    * Mahony, Yocrnn <& Saye, for appellee.
   Smith, J.

In support off the judgment which appellee recovered in the court below, he testified that Joe and Louis Olsan, who were brothers, operated through two corporations which they owned, one being known as the Magna Pipe Line Company and the other as the Magna Producing Company, and that Olsan Brothers owned a half interest in an oil lease, and he owned the other half. One of these corporations, as its name indicates, was a pipe line company, and the other corporation was engaged in buying and selling oil. Joe Olsan represented to him that he had negotiated a contract to purchase 160,000' barrels of oil at a net profit of ten cents per barrel, but that approximately $50,000 would be required to handle the deal, as the oil would be delivered over a period oif several months, the proceeds of such sales to be applied to the payment of the oil, as it was moved under the contract which the Olsan brothers had negotiated.

Appellee was a stockholder and director in the Exchange National Bank, of Shreveport, and through his connection with this bank he was able to borrow the money required to carry out the Olsan contract.

Appellee further testified, that he and Joe Olsan called on the cashier of the bank and made application for the loan, which was made upon notes signed by all parties, and secured by a mortgage upon the oil lease owned by appellee and the Olsan brothers. Appellee further testified that the terms of his contract with the Olsan brothers were restated in the presence of the cashier of the bank, and that officer testified that he made the loan for the accommodation of appellee, who was a large depositor and officer of the bank. The cashier fully corroborated appellee as to the terms of the agreement, which were that appellee should finance the deal in the manner stated, and that appellee should have one-half of the net profits, which were represented to be ten cents per barrel, less the interest on the loan and the commission charged for mailing it.

The oil began to move pursuant .to the contract, and $25,000 was required to make a payment, but, as the title to the oil lease-had not then 'been examined and approved, appellee obtained from the bank $25,000 on his personal note, and advanced that sum of money to the credit of an account which had been opened in the name of Magna-Ober Producing Company for the purpose of financing the deal.

A few days later appellee stated to the Olsans that he had no writing to show his interest, whereupon the following writing was 'delivered to him:

“September 22, 1927.
“Mr. J. Ober,
“Shreveport, La.
“Bear sir: This is to confirm our agreement that you are to receive one-half of the net profits derived from the sale of one hundred and fifty thousand barrels to be shipped by us to Penn Oil Company. This confirms our agreement whereby we acknowledged receiving $25,000, this being your half of the money to apply in financing this deal.
£ £ Magna Pipe Line- Company, “Louis Olsan,
£ '.Secretary & Treasurer. ’ ’

The law question in the case is the admissibility of the testimony recited above.

It is the insistence of the Olsans that the contract was not one required to be in writing*, but was reduced to writing, and, while signed by only one party, was nevertheless accepted and acquiesced in by the other, and has therefore the attributes of a written contract. They are correct in this contention. Parker v. Carter, 91 Ark. 162, 126 S. W. 836, 134 Am. St. Rep. 60; Vieth v. Mushrush Lbr. Co., 167 Ark. 669, 269 S. W. 44.

Upon this predicate it is insisted that it was erroneous and prejudicial to permit appellee to offer testimony to the effect, that he was to share a profit of ten cents per barrel (less interest and commission) whereas the writing provided that he was “to receive one-half the net profits derived from the sale of one hundred and fifty thousand barrels to be shipped by us to Penn.Oil Company,” and the testimony in appellant’s behalf showed that no profits had been realized, but, on the contrary, an actual loss had been sustained.

We think it quite apparent that the writing referred to and copied above, was not the complete contract between the parties, and did not purport to be. It was merely a written confirmation of the fact, that there was an existing contract between the parties, the details of which the writing did not purport to recite.

In the chapter on Evidence in 22 C. J., page 1283, § 1715, it is said: “Where a written instrument, executed pursuant to a prior verbal agreement or negotiation, does not express the entire agreement or understanding of the parties, the parol evidence rule does not apply to- prevent the introduction of extrinsic evidence with reference to the matters not provided for in the writing, and under such circumstances it is not necessary that there should be any allegations of fraud, accident, or mistake in order to render parol evidence as to the real contract between the parties admissible.”

Many cases from all the States are cited in support of the text quoted, and among them the folio-wing* cases by this court: American Sales Book Co. v. Whitaker, 100 Ark. 360, 140 S. W. 132, 37 L. R. A. (N. S.) 91; Cox v. Smith, 99 Ark. 218, 138 S. W. 978; St. Louis, etc. R. Co. v. Wynne Hoop Co., 81 Ark. 373, 99 S. W. 375; Bloch Queensware Co. v. Metzger, 70 Ark. 232, 65 S. W. 929. Other cases by this court might be cited, but this rule of evidence does not appear to require further discussion.

This question of law being settled adversely to appellant’s contention, there remains only the question of fact as to what the net profits were within the meaning of the contract.

Appellant submitted a statement showing the cost of the oil to have been $130,696.95, and its sale price $146,280.40, but from the difference, $15,583.45, they subtract various items in arriving at what they say were the net profits, included in which was a purported fee of one cent per barrel to- the Penn Oil 'Company itself, and some dishonored cheeks given by that company in payment of the oil.

The verdict returned in appellee’s favor w*as in the sum of $6,642.54, which is one-half of $15,000, less one-half of the interest and commission, which amounted to $1,712.93.

The testimony is legally sufficient to support this verdict, and the judgment rendered thereon. According to the testimony offered on appellee’s behalf the parties had, in their oral contract, defined the term net profits to appellee as meaning" five cents per barrel, less o-ne-half of the interest and commission, and the verdict was ifor this sum.

It does not appear that the Olsans made any explanation to appellee of the details of their contract with the Penn Oil Company. Appellee was not advised where; from whom, or at what price, the oil had been purchased, nor at what price it had been sold, and, so far as he knew when he agreed to finance the deal, there might have been a profit of more than ten cents per barrel. He was promised, according to the testimony in his (behalf, the right to share in a profit of ten cents per barrel, less interest and commission; and while the testimony is conflicting on this issue, the issue is concluded by the verdict of the

jury.

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


author: Humphreys, J.

text:
    St. Louis-San Francisco Railway Company v. Bay.
    Opinion delivered February 3, 1930.

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

      J. F. Gautney and A. U. Tadlock, for appellee.
   Humphreys, J.

This is an appeal from, a judgment in the circuit court of 'Craighead County, Jonesboro District, condemning lands for street purposes across the right-of-way of appellant, upon which its main and side tracks are constructed, which are in the corporate limits of the town of Bay, and assessing damages in its favor for one hundred dollars.

.Appellee followed the procedure for condemning and opening the street across said right-of-way authorized by §§ 4006-07, 4009 et seq., and 8483-87 of Crawford & Moses’ Digest, which procedure was and is challenged by appellant.

It is contended by appellant, that the judgment should be reversed, and the complaint of appellee dismissed upon the alleged ground that the Railroad Commission has the exclusive original jurisdiction to determine the necessity for, and order street crossings over railroad tracks or rights-of-way within towns and cities.

It is argued that the sections of Crawford & Moses’ Digest above referred to, under which this suit was brought and prosecuted, were all repealed by § 1645 of Crawford & Moses’' Digest. Section 1645 of Crawford & Moses’ Digest is as follows:

“It shall further be the duty of said Corporation Commission, or any member thereof, to make a personal inspection of any designated place, where it is desired that a road or street, either public or private, cross any railroad in this State, and upon ten days’ notice, as now required by law, and, after a public hearing, may make such order as in their judgment shall be just and proper. Said order may provide for a crossing at grade over or under the railroad, and shall be enforced as others now made by the Corporation Commission. ’ ’

Neither this section, nor the act of which it is a part, conferred exclusive jurisdiction upon the Railroad Commission to determine the necessity for- and order street crossings over railroad rights-of-way and tracks. The section referred to is a part of act of March 29, 1913, which also contains the following section:

“Section 3. Nothing in this act shall be so construed as to amend or repeal any other act now in force, nor to curtail or remit the powers of the Railroad Commission of the State of Arkansas..”

From this declaration it is apparent that the Legislature did not intend to- amend or repeal any law then on the statute books by the passage of the act of March 29, 1913, conferring the authority upon the Railroad Commission to designate and order crossings at grade over or under any railroad being operated in the State of Arkansas. It is a remedial act in nature, and provides for an alternative proceeding for the protection of existing crossing’s, and the establishment of public or private crossing’s over railroad rights-of-way and tracks in the State. It was intended as a. supplemental act to all other existing acts on the subject.

It is argued that § 1645 of Crarwlford & Moses’ Digest was borrowed from the statutes of Missouri, and that the highest courts of that State have construed the statute as conferring exclusive jurisdiction upon the Public Service 'Commission in said ¡State to regulate and establish crossings over the rights-of-way and tracks of railroad companies. Both acts were passed in 1913, and the -acts are not alike- in all essential particulars. At the time § 1645 of Crawford & Moses’ Digest was passed the Missouri act (Laws 1913, p. 556) had not been construed by its courts, -so, if the acts were alike in all essential particulars, the construction placed upon the act by the Missouri courts would only be persuasive and not binding upon our courts.

Again, the Missouri act did not contain a provision that it should not repeal any law upon the subject then in .force, nor did § 1645 of Crawford & Moses’ Digest confer the exclusive power upon the Railroad Commission to protect existing crossings, and establish other crossings over railroad rights-of-way and tracks which was conferred by § 2 upon the Public Service Commission by the Public Service Act of Missouri passed by the Legislature of 1913.

Again, after the passage of § 1645 of Crawford & Moses’ Digest, the procedure adopted by the town of Bay was the same as that adopted and followed by Mena in the ease of K. C. Sou. Ry. Co. v. Mena, 123 Ark. 323, 185 S. W. 290, which procedure was approved by this court in that case. It is true the question of jurisdiction was not raised in that case, as it has been in the instant case, yet the opinion of the court in that case was a tentative or implied declaration of this court that 4006-07, 4009 et seq., and 8483-87 of C. & M. Digest had not been repealed.

No error appearing, the judgment is affirmed.


author: Kirby, J.,

text:
    Chicago, Rock Island & Pacific Railway Company v. Lusby.
    Opinion delivered February 3, 1930.

      Thos. S. Busbee, H. T. Harrison and Geo. B. Pugh, for appellant.

      Hays, Priddy, Rorex <& Madole, for appellee.
   Kirby, J.,

(after stating the facts). The undisputed testimony discloses that the decedent was a trespasser upon the railroad company’s track at the time and place where he was killed by the passing train, but the refusal of the court to tell the jury that he was a trespasser in requested instruction No. 3 was not prejudicial, if erroneous, since the case was tried througiiout, and the instructions all given on the theory that the deceased was a trespasser and entitled only to consideration as such.

If the engineer’s testimony had been believed by the jury or could be regarded as undisputed, appellant would have been entitled to a directed verdict. The engineer stated that he saw the decedent sitting on the tie or rail of the track in the range of his headlight distant, that he immediately blew the warning blasts with the whistle, and that decedent turned and saw the train coming, and got up as if to get away from the track, which he expected him to do, and that his feet suddenly seemed to slip ont from under him letting him fall back on the track. Nothing possible could have been done to prevent the injury thereafter. It was impossible to stop the train before it was stopped, two coach lengths beyond where he was struck. This testimony however, was not undisputed since six witnesses who lived or were in the vicinity of the station all of whom testified that they could have heard the signals, if any were given, saw the train coming in, watched its approach, and none of them heard any signals given until after the train stopped suddenly when the blasts of the whistle were made calling out the brakeman. No error was committed in refusing to direct a verdict.

The court discussing the liability of railroad companies for damages for injuries to persons trespassing upon the tracks and failing to keep a lookout under Act 284 of 1911, said in Railroad v. Gibson, 107 Ark. 431: “We think the construction there placed upon the act applies to persons alike, and that the railroad company now owes the same duty to keep a lookout to avoid injuring the trespasser upon its tracks, and that upon proof of injury to such person by the operation oif its trains under such circumstances as to raise a reasonable inference that the danger might have been discovered, and the injury avoided if a lookout had been kept, that a prima facie case is made, and the burden of proof then devolves upon the railroad company to show that a proper lookout was kept as required by the statute, and that it used ordinary care to prevent the injury to the person after his discovery in a perilous position in order to escape liabilty for such injury.” The engineer testified that a lookout was kept, and the perilous position of the decedent upon the track or ties was discovered as soon as could have (been done in the night with the headlight of the train, that he gave the warning and the trespasser looked toward the oncoming train, got np as if to get away from the track, and that suddenly his feet seemed to- slip from under him, and he fell babk upon the track, and it was thereafter impossible to stop the train or prevent the injury. A prima facie case of liability was made by the proof herein to go to the jury, and the case is different from the cases relied upon (St. L. I. M. & S. R. Co. v. Coleman, 97 Ark. 438, 135 S. W. 338; Kelley v. DeQueen & E. R. Co., 174 Ark. 1000, 298 S. W. 347), and appellant was not entitled to a directed verdict as already said.

On the question of the excessiveness of the verdict the testimony is rather meager as to the disposition and ability of the deceased to continue to contribute to the support of his father, but it was shown that he had been contributing about one-half of his earnings to his father since his coming of age, and that he stated frequently that his father should not worry about the future, as he would take care of him when he could no longer work. The expectancy of the father and the decedent, his son, was shown, .and the majority has concluded that the amount of damages, $2,000, awarded the father as the next of kin for pecuniary loss on account of the negligent killing of his son,' is not excessive.

The .judgment is accordingly affirmed.


author: Mehajty, J.

text:
    Unionaid Life Insurance Company v. Munford.
    Opinion delivered February 3, 1930.

      J. V. Walker, Robert Bailey and Duty <& Duty, for appellant.

      C. C. Wait, for appellee.
   Mehajty, J.

This action was begun by appellee to recover on an insurance policy issued by the appellant to W. W. Munford, on the 20th day of March, 1928.

The deceased, W. W. Munford, on the 26th day of April, 1916, made application for a certificate of membership in the Mutualaid Union, an assessment company, and the certificate issued by this company to Munford, among other things, provided that, upon the death of the applicant within the first six months after the date of the certificate, the company would pay $75; if within the calendar month next succeeding, the sum of $87.50, and the amount thereafter to increase each calendar month in the sum of $12.50 for and during the term of eighty months. And that after the expiration of eighty months, upon condition only that prompt and due payments be made to the home office of the Mutualaid Union of all assessments that may be made under the rules and by-laws, that it would pay $1,000.

W. W. Munford paid all dues and assessments from that time until the reinsurance agreement 'between the appellant and the Mutualaid Union.

On December 14, 1926, the appellant entered into an agreement with the Mutualaid Union by which it was agreed, in substance, that the members of the membership of the reinsured association is taken over by the reinsuring company, its successors or assigns, under the terms and conditions set forth in the contract. It provides that all living’ contributing members and policyholders of the reinsured association in good standing in said association on the first day of April, 1927, are hereby taken over, and the liability of the reinsured association to such members under their certificates of membership is assumed by the reinsuring company under the terms and conditions herein set forth, in consideration of such members complying all and singular with the terms and conditions of this contract and with the rules, regulations, laws and requirements of the reinsuring company.

It also provided that the reinsuring company should be subrogated to all the powers, privileges, authority, rights and good will enjoyed by the reinsured association, including the authority delegated under the constitution and by-laws of the reinsured association for the government and control of its members, and provided that it should be subrogated to. each and every defense that would have been available to the reinsured association in the conduct of its business.

Section three of the contract provided that all living members of the reinsured association, that is, the Mutual-aid Union, in good standing, should pay to the reinsuring company, the appellant, contributions and assessments that they were then paying to the Mutualaid Union.

And a statement of the Unionaid Life Insurance Company was delivered to W. W. Munford, advising him of the reinsurance contract, and that it assumed all liabilities under his certificate.

Sometime in March he received a letter from the appellant with reference to exchanging his certificate for a policy in the appellant company. In response to this letter, he made an application for the change, and sent in his insurance certificate issued by the Mutualaid Union, as directed by appellant, to ¡be canceled.

On the 20th day of March the appellant canceled his old certificate, issued a new policy, and sent it to their agent to be delivered to Munford. The evidence, however, shows that they directed him not to deliver it until Mun-ford had signed an application which was presented to him, in which it was said he did not have stomach trouble or pellagra. This was presented to him three days after his old certificate had been canceled, and after the new policy had been issued.

He answered all the questions, and, among other things, stated that he did not have any disease of the stomach, or cancer, or pellagra.

It appears that on the 23rd day of March, the same day that his policy was taken to him, and he signed this application in which he stated that he was in good health, that he went to see Doctor Smith, of Russellville, and complained of his stomach. Dr. -Smith, at that time, examined him, but told him that he would have to have an X-ray picture made in order to determine what his ailment was. Thereafter, the X-ray picture was made, and it showed some ailment that the doctor thought required an operation, and he performed the operation, and a short while after the operation Munford died of pellagra.

It is contended that Mr. Munford, on the day he signed the application, warranted that he was in good health, and had no physical defects at that time; and appellant states he was then in a serious condition, and was fully aware of the fact. There is no evidence at all that he had any kind of physical ailment at the time he secured the certificate in the Mutualaid Union in 1916. And when the company wrote him to send in his policy, together with an application to be made on a blank which was sent by the company, he had a rig’ht to assume that that was all he had to do. And, so far as the evidence shows, at that time he at least thought that he was in good health.

It is contended 'by the appellant that his statements in this application were warranties, and numerous authorities are cited, among others, § 14 of act 139 of the Acts of 1925. That section reads as follows:

“Statements, representations and answers on the part of applicants for membership as to questions of age, condition of health and eligibility shall be construed as warranties on the part of the applicant, and such applicant bound thereby, and shall constitute a part consideration for issuance of the policy or certificate of membership. ’ ’

The above section has no application. The appellant is not an assessment company, not organized under the act referred to, and that act is an act to define assessment, liability, health and accident associations or companies, industrial insurance companies, to provide how same may be organized, and transact business in this .State, for proper regulation of the same, and for other purposes.

The appellant, as we have said, is not an assessment company, and the act referred to has reference to assessment companies only, or such companies as are mentioned in the act, and the appellant is not in that class.

The court was justified in finding that, when Munf ord applied to. the doctor, he did not think he had any ailment mentioned in the application, or that he did not have any serious ailment at all. And if he, in good faith, answered the questions, or if he believed the answers he gave were true, the fact that they turned out to be untrue would not affect the policy. United States Annuity & Life Ins. Co. v. Park, 129 Ark. 43, 195 S. W. 392, 1 A. L. R. 1254.

There is no law making statements, representions and answers as to. condition of health or eligibility warranties in an application to a company of this kind. And there was no law at the time Munford made his application to the Mutualaid Union making statements of this kind of warranties. The difference between a representation and a warranty is that a warranty must be true, and a representation is not required to be true, but it is only required that the applicant state what he honestly believes to be the truth. This question was discussed at length in the case of Modern Woodmen of America v. Whittaker, 173 Ark. 921, 293 S. W. 1145, and numerous authorities cited..

It is not necessary here to repeat the discussion or review the authorities reviewed in that case. In that case, however, we said, among other things:

“A warranty is in the nature of a condition precedent; it must appear on the face of the policy; or, if on another part of it, or on a paper physically attached, it must appear that the statements were intended to form a part of the policy; or, if on another paper, they must be so referred to in the policy as clearly to indicate that the parties intended them to form a part of it. A warranty cannot be created nor extended by construction.”

The appellant company entered into a contract of reinsurance with the Mutualaid Union, and in that contract section seven is as follows: “The members of the reinsured association hereby admitted shall be accepted by the reinsuring company upon the original application heretofore made to such association, and the reinsuring company shall 'be subrogated to each and every defense that would have been available to the reinsured association, and it is hereby expressly understood and agreed that such members taken over are subject to the conditions and limitations set forth in this contract, and the reinsuring company shall not be liable to such members or their beneficiaries in any other manner, except as herein provided. ’ ’

■The law under which the reinsurance contract was made provided, among other things, that the membership or policyholders of consolidating associations or companies shall he bound in all respects by the contract of consolidation as filed with the insurance commissioner of the State. Acts 1925, No. 137, § 8. It is also provided that the general insurance laws of this State or [and] any laws governing the organization and control of mutual assessment companies shall not apply to or govern companies organized under this act. Id., § 16.

At the time of the reinsurance contract and at the time that Munford made application to change his certificate for a policy in the Unionaid Life Insurance Company, he had a certificate issued by the Mutualaid Union entitling him to $75 if he died within six months after it was issued, and to an additional sum of $12.50 each month thereafter until he had paid for eighty months, and then he was entitled to $1,000. It is true the by-laws of that association provided that this should be raised by assessment on the members, but the reinsurance contract certainly did not contemplate that one should pay for ten or fifteen years, and continue to pay to the reinsuring company, and be limited in recovery to the amount paid by those persons who belonged to his circle. There might be none of them left or there might be a very few. But, in either event, whether there were many or none at all, the member would have to continue to pay his assessments.

Appellant could not secure the certificate from Mun-ford, cancel it, and then require him thereafter to make any statements with reference to his health as a condition precedent to delivering him his policy. He had a right to the policy under the reinsurance contract 'by complying with the terms of the letter written to him by the appellant. He had signed that application, sent the money required, and it canceled his policy and issued another, and it was its duty to deliver it to him.

In the view we take of the case, however, it is immaterial whether the policy issued by appellant was void or not. If it was valid, as we hold that it was, then he can recover on the policy. If it was not valid, then he would be entitled to recover on his certificate, and, under the evidence in this case, we think the recovery would be the same.

The statements made in the application signed on the 23d day of March were made after the policy was issued, and after Munford had done all that he had been requested to do in order to secure the change, but the statements in'this application were not warranties.

We have held in the case of Modern Woodmen of America v. Whittaker, supra, that such statements are not warranties, but are representations. And, if the applicant believed them to be true, it would not avoid the policy if they afterwards turned out to be untrue. Mun-ford had been going about his business as usual. It is true the evidence shows that he complained of his stomach and went to see Dr. Smith, but he evidently did not think he had any serious ailment. He certainly did not know he had pellagra.

One of appellant’s witnesses, Dr. Eoss, testified that it was his stomach, constipation and indigestion, and he gave him a treatment for that. Certainly Munford did not think this constipation or indigestion was any serious trouble, but must have thought it was temporary. He consulted this witness just a. short time before he went to Dr. Smith. Nothing was said by Dr. Eoss about pellagra.

Appellant then put on the stand Dr. Scarlett. He testified that pellagra, the disease that caused the death of Munford, is not always readily recognizable. A great many of the affected discover it themselves, and this doctor testified from the history of the disease he would say that he had pellagra.

Dr. Smith testified that when Munford came to him he complained of pain in his stomach. He made an examination, and that he came back to- see him on the 4th day of April. He performed the operation on the 14th day of April; but Dr. ¡Smith testified at his first examination that he did not determine what was the matter with him.

One of the physicians testified that pellagra was not hard to detect, but that yon might not notice it very much for two or three years. At any rate, neither of the doctors at first discovered that it was pellagra, and they did not know it was. It would be unreasonable to assume that Munford knew that he had pellagra when the doctors did not know it. He had been at work continuously, and, while he may have had pellagra all that time, he had never been told so by a doctor, and he evidently did not know it. And he must have thought that whatever ailment he had was not a serious trouble. Besides that, the agent who delivered him the policy had known him for years and lived just across the street from him, and he testified that he collected his dues every month. He also testified that he could not say what Munford’s health was, but that he was tending to his business, and, with his knowledge of him and long association with him, he did not detect any difference in his condition of health on that day — the day that the policy was delivered — to what he had known for years.

The company did not require medical examination, but simply gave directions to its agent, who had known him for years and who, when he went to deliver the policy, believed him to be in good health, saiw no- difference between him then and for years.

The statements made being representations and not warranties, the evidence was sufficient to justify the court in holding that the answers were made in good faith.

Finding no error, the judgment is affirmed.


author: Mehaeey, J.

text:
    International Harvester Company of America v. Hawkins.
    Opinion delivered February 3, 1930.

      J. A. Comer and Wathms & Pate, for appellant.

      George W. Emerson and W. R. Bonham, for appellee.
   Mehaeey, J.

This action was begun in the Pulaski Circuit Court by appellee, who alleg’ed in his complaint that the appellant was a corporation engagéd in the business of selling harvesting’ machines, parts for machinery and other merchandise, and has a place of business, stock of parts of machines and machines and machinery, and other property in the city of Little Rock.

Appellee was employed by defendant in its place of business, and he alleges that, pursuant to directions of appellant’s foreman, he was engaged in taking inventory of parts which were located across the walls of the building, said parts being in various bins. The appellant provided a chair upon which appellee was to sit while engaged in such duties, the chair being attached to the bins several feet from the floor; that appellant and its servants negligently and carelessly furnished a chair and parts of said bin upon which said chair was attached, and appliances which were insecure, insufficient and unsafe for appellee to sit upon while discharging his said duties, and that, on account of this condition, while appellee was in the exercise of care for his own safety, said part upon which said chair was attached broke and plaintiff fell several feet, and that as a result of the fall he was severely injured.

Defendant answered, denying the material allegations of the complaint, pleaded assumed risk, and alleged that the accident complained of by appellee was one of risks and hazards which he assumed in his contract of employment.

It appears from the testimony that the appellee was at the time of the injury engaged in mailing an inventory. The parts and merchandise were in small bins against the wall. A strip of timber was nailed to the bins at the bottom part, and this strip served as a place to fasten the chair, and also to prevent the parts from coming out. While the appellee was in the discharge of his duties, making an inventory and using this chair, the strip of board to which the chair was attached at the bottom of the bin broke, and caused the appellee to fall and receive the injuries of which he complains. There is some conflict in the evidence as to whether the board simply broke or whether it broke and also the nails pulled out; one witness testifying that the nails were pulled loose. At any rate, the board broke, and appellee fell and received the injuries complained of.

Appellant first argues that the burden is upon the appellee to show not only that the appliances furnished him were unsafe and defective, but that the master had notice of such unsafe condition or defect, or could by the exercise of reasonable care have discovered same.

This court has many times held that, in order to recover because of the failure of the master to furnish an employee with safe appliances or a safe place to* work, the burden is upon the complaining party to establish the fact that the appliances or place was unsafe, and also that the master either had notice of the unsafe condition or defect or could, iby the exercise of ordinary care, have known of the defect. A master is not required to furnish an absolutely safe place to work, but he is required to exercise ordinary care to provide safe appliances and a safe place to work.

Appellant cites many authorities supporting’ the rule contended for, but it is unnecessary to review them here because there is no dispute or controversy about this being the well established rule. One of the cases cited and relied on by appellant in this connection is the case of St. L. S. F. Ry. Co. v. Smith, 179 Ark. 1015, 19 S. W. (2d) 1102, in which the court stated:

“Juries are not permitted to base verdicts on mere conjecture or speculation. 'There must be substantial testimony of essential facts, or facts which would justify a reasonable inference of such essential facts, on which to base a verdict, before it will be permitted to stand.”

This proposition of law is not only correct, but has been repeatedly announced by this court. Juries must base their verdict on facts, and not on mere conjecture or speculation. Butin the instant case the undisputed facts are that the strip of board which broke was constantly used for the very purpose for which the appellee was using it at the time of the injury; that it broke, causing appellee to fall and receive his injuries. There is no conjecture about this, and no speculation about it. It is an undisputed fact. If there was a defect that caused the break, then, under the evidence in this case, the appellant was liable because there is no contention and no claim that it was such a defect as was obvious or might be discovered without inspection. In other words, there is no contention that appellee might have discovered the defect. Moreover, it was not the duty of the appellee, the servant, to make inspection, but it was the master’s duty.

It is not only the duty of the master to use ordinary care to- provide safe appliances, but it is also its duty to exercise ordinary care to- maintain them in a safe condition; to make inspection, if necessary, to ascertain the condition, and it is not the duty of the servant to make inspection.

It is next contended by the appellant that negligence cannot be inferred merely from the injury. This is also a rule of law so well established that we need not cite authorities in support of it. "While negligence cannot be inferred merely from the injury, negligence may be inferred from facts shown in evidence. And the facts here are sufficient to justify the jury under proper instructions to find that the appellant was guilty of negligence, and that this negligence caused the injury.

It is next contended that appellee assumed the ordinary risk of his employment. This is correct. The servant, when he enters into the employment, assumes all of the ordinary risks and hazards of the employment, but he does not assume the risk of negligence of the company for which he was working or any of its servants. And where a servant engaged in the performance of his duty for the master, in the exercise of ordinary care for his own safety, is injured, whether by the negligence of the company for which he works or by the negligence of any other servant of the company, he is entitled to recover. Aluminum Co. of North America v. Ramsey, 89 Ark. 522, 117 S. W. 568.

If the strip of timber which broke causing appellee’s fall and injury was the strip provided by the master to be used in the manner in which it was being used by the appellee at the time, this was sufficient to justify the jury in finding that the master was negligent. While negligence cannot be presumed, but must be established by the evidence, it is not established by witnesses saying it is negligence, but it is established by showing facts from which the jury may say it is negligence. It is established by evidence of facts which show the negligence.

There is no question in this case about the failure of the court to give any instructions requested by appellant. In fact, the appellant does not set out any of its instructions, whether given or refused by the court, and in appellant’s motion for a new trial no suggestion is made that the verdict is excessive.

Appellant argues in his brief that, if there is any liability at all, the appellee’s measure o!f damages would be extremely small. He does not, however, make the amount of damages, or the fact that he claims it was excessive, a ground for its motion for a new trial.

Witness August Kahler, a general contractor, testified that the board was perfectly sound and safe, and he also said: “The nails would have to give away before the board can break, that is certain, but the sound of the nails giving can be heard, the nails would .squeak as it come out; that took quite a little jerk to pull that loose; this nail, I presume, was put in afterwards, when it was nailed back np because the original nails were six penny; there were two originally nailed into the board.”

This witness also said, in speaking about it breaking by reason of the man’s weight, that he did not know. He was asked if the thing broke or was pulled off by a man’s weight, how he would account (for it, and he simply said he did not know.

The circumstances and evidence show that either the board was insufficient, or that it was insufficiently nailed. In either event, the master was guilty of negligence if he knew the condition or, by the exerffise of ordinary care, could have known it. If witness Kahler is correct about the nails having" to pull out before the board would break, then the jury were justified in reaching the conclusion that an ordinary inspection would have discovered the defect.

Appellant urges that the court erred in giving instruction No. 2 because, he says, it was given without testimony to justify it, and, for that reason, it was confusing. This is the only error urged to the instruction by appellant. Instruction No. 2 was as follows:

“The defendant has interposed, as a defense to plaintiff’s cause of action, the doctrine of assumed risk, that is that plaintiff by proceeding- with the work assigned to him by defendant, assumed the risk of being injured under the circumstances, and that the defendant would not be liable to him for injuries, in the event he should be injured, and you are instructed that while plaintiff, as a matter of law, assumed the risks ordinarily incident to the work he was doing, yet he did not assume the risk of the negligence of defendant, or any of its employees in failing, if there was such failure, to exercise ordinary care to provide plaintiff a reasonably safe place to Avork, unless plaintiff was aware that such place was unsafe, or unless such danger was so apparent as to' be observed by an ordinary prudent person, and if, therefore, you find that defendant failed to exercise ordinary care to provide plaintiff with "a reasonably safe place to work, and find that plaintiff was not aware olf such place being unsafe, if it were unsafe, and that the danger was not so apparent as to be obvious to a person of ordinary prudence, then the plaintiff would not assume the risk, and you cannot find for defendant on the ground of the assumed risk. ’ ’

This was a correct instruction, and there seems to be nothing in it or about it, that would confuse the jury.

Appellant also urges that the court erred in giving instruction No. 4. Its special objection to this instruction is that appellant was not responsible for latent defects that were not open to observation in the exercise of ordinary care. We do not agree with appellant in this contention. The correct rule is that the master is not responsible for latent defects that were not open to observation in the exercise of ordinary care, or that would not be discovered by a proper inspection. Whether the defect was open to observation or not, and whether it was known to the employer, if it was such a defect as was discoverable by a careful inspection, then the master was gudlty of negligence if he failed to make the proper inspection. The servant is required to take notice of obvious risks, and all the usual and ordinary risks, but he is not required to inspect, and he does not assume any risk resulting from the negligence of the master or other servants unless he knows of such risk. He assumes the ordinary and usual risks of his employment, whether he knows them or not, but he has a right to assume that the master and all the other servants will exercise care, and he has the right to' act on this presumption unless he knows of the negligence. No. 4 was a correct instruction, and was not open to the objection urged by the appellant.

It would serve no useful purpose to set out the evidence in full. We have carefully considered all of the evidence, and reached the conclusion that there was sufficient evidence of negligence to justify the submission of the case to the jury.

There is substantial evidence upon which to base the verdict, and the judgment of the circuit court is affirmed.